Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce the ``Corporate and Criminal Fraud Accountability Act of 2002.'' I want to thank the majority leader, and Senators Durbin and Harkin for joining me as original cosponsors in this effort to prevent corporate and criminal fraud, protect shareholders and employees, and hold wrongdoers accountable for their actions. This bill is a crucial part of ensuring that the corporate fraud and greed that have been on display in the Enron debacle can be better detected, prevented and prosecuted. We cannot legislate against greed, but we can do our best to make sure that greed does not succeed. The fraud at Enron was not the work of novices. It was the work of highly educated professionals, spinning an intricate spider's web of deceit. They created sham partnerships with names like Jedi, Chewco, Rawhide, Ponderosa and Sundance to cook the books and trick both the public and federal regulators. The actions of Enron's executives, accountants, and lawyers exhibits a ``Wild West'' attitude which valued profit over honesty. Nor is this web of corporate deceit the end of the Enron story. When they thought that investigators might be coming, what did these ``professional'' men and women apparently do? First, they warmed up the shredders and began destroying evidence. Then, after they successfully shredded thousands of documents, they began the finger pointing. Now, the Enron executives are blaming their accountants at Arthur Andersen; the accountants are blaming the executives right back; and they are both blaming their lawyers. The truth is that just as there was enough greed to go around, there is now enough blame to go around. But the blame does not end with the people involved in this case. It extends to our courts, our regulators, and to Congress, whose actions in the past decade helped create the permissive atmosphere which allowed Enron to happen. No one in Congress intended for such outrageous conduct to happen, but now it is our job to stop it. We must restore accountability. Accountability is important because Enron is not alone. At a Judiciary Committee hearing which I recently chaired, experts gave the public markets grave warnings, it is likely that there are more ``Enrons'' lurking out there waiting to be discovered. Waiting to be discovered not only by investigators or the media but by the more than one in two Americans who depend on the transparency and integrity of our markets. The majority of Americans depend on our capital markets to invest in the future needs of themselves and their families, from their children's college fund to their retirement nest eggs. American investors are watching what we do here and want action. We must act now to restore confidence in the integrity of our markets and deter fraud artists who think that their crimes will go unpunished. Restoring such accountability is what this bill is all about. This bill has three major components that will enhance accountability. First, this bill provides prosecutors with new and better tools to effectively prosecute and punish those who defraud our Nation's investors, which means ensuring our criminal laws are flexible enough to keep pace with the most sophisticated and clever con artists. It also means providing criminal penalties which are tough enough to make them think twice about defrauding the public. Second, this bill provides tools that will improve the ability of investigators and regulators to collect and preserve evidence which proves fraud. That means ensuring that corporate whistleblowers are protected and that those who destroy evidence of fraud are punished. Third, the bill protects victims' rights to recover from those who have cheated them. In short, this bill is going to both save documents from the shredder and send wrongdoers to jail once they are caught. This bill is only one part of the response needed to solve the problems exposed by Enron's fall. Securities law experts, consumer protection groups, and others Members of Congress, both in the Senate and the House of Representatives, have made other proposals and introduced legislation that deserves careful consideration. Working with the majority leader, we have developed a comprehensive plan to attack this problem. Certainly, in light of recent events, we must carefully reexamine both the decisions of the Supreme Court and our current laws. Despite the best of intentions, our laws may have helped create an environment in which greed was inflated and integrity devalued. This bill is an important starting point in that process. Let me explain its provisions. Section 2 of the bill would create two new 5 year felonies to clarify and plug holes in the existing criminal laws relating to the destruction or fabrication of evidence, including the shredding of financial and audit records. Currently, those provisions are a patchwork which have been interpreted, often very narrowly, by Federal courts. For instance, certain of the current provisions in Title 18, such as Section 1512(b), make it a crime to persuade another person to destroy documents, but not a crime for a person to personally destroy the same documents. Other provisions, such as Section 1503, have been narrowly interpreted by courts, including the Supreme Court in United States v. Aguillar, 115 S. Ct. 593 (1995), and the First Circuit in United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996), to apply only to situations where the obstruction of justice may be closely tied to a judicial proceeding that is already pending. Still other provisions, such as sections 152(8), 1517 and 1518 apply to obstruction in certain limited types of cases, such as bankruptcy fraud, examinations of financial institutions, and healthcare fraud. In short, the current laws regarding destruction of evidence are full of ambiguities and limitations that should be corrected. Section 2 would create a new felony, 18 U.S.C. section 1519, for use in a wide array of cases in which a person destroys evidence with the specific intent to obstruct a Federal agency or a criminal investigation. There would be no technical requirement that a judicial proceeding was already underway or that the documents were formally under subpoena. The law would also be used to prosecute a person who actually destroys the records themself in addition to one who persuades another to do so. The law would apply to the intentional shredding of evidence in any matter within Federal regulatory or civil jurisdiction, such as an SEC or civil fraud matter, as well as criminal jurisdiction, eliminating another series of technical distinctions imposed by some courts under current law. Second, Section 2 creates a 5-year felony, 18 U.S.C. section 1520, to punish the willful failure to preserve financial audit papers of companies that issue securities as defined in the Securities Exchange Act. The new statute, in subsection (a), would require that accountants preserve audit records for 5 years from the conclusion of the audit. Subsection (b) would make it a felony to knowingly and willfully violate the 5-year audit retention period. This section both penalizes the willful failure to maintain specified audit records and sets a bright line rule that would require accountants to put strong safeguards in place to ensure that such records are, in fact, retained. Had such clear requirements been in place at the time that Arthur Andersen was considering what to do with its audit documents, countless documents might have been saved from the shredder. Section 3 of this bill proposes an amendment to the civil Racketeer Influenced and Corrupt Organizations, RICO, statute, enhance the abilities of Federal and State regulators to enforce existing law. It would give State Attorneys General and the Securities and Exchange Commission, ``SEC'', explicit authority to bring a suit under the civil RICO provisions. Currently, only the U.S. Attorney General has such authority under RICO. At a Judiciary Committee hearing on Enron's fall, Washington State Attorney General Christine Gregoire strongly supported this change, testifying that State and local law enforcers are on the front lines in protecting consumer's rights. Providing such authority to State Attorneys General and to the SEC would provide them a potent weapon in that battle and would allow us to take advantage of their significant expertise in protecting consumers. Others have suggested that we also consider repealing the one-of-a- kind securities fraud exception to civil RICO, created in 1995 over the veto of President Clinton. Congressman Conyers, the distinguished ranking minority member of the House Judiciary Committee, has already introduced a bill to repeal this unique exemption. As someone who voted against the 1995 Private Securities Litigation Reform Act and voted to sustain President Clinton's veto, I did not support this one-of-a-kind exemption when it became law. Now, given what has happened in our markets, I think that we all need to consider whether or not the exemption for securities fraud makes sense. No one who voted for the 1995 Private Securities Litigation Reform Act or voted to override President Clinton's veto meant for Enron to occur, but now that it has occurred, none of us can ignore it. In addition to giving the SEC the authority to sue under civil RICO, we have to ensure that the SEC has all the powers and resources that it needs to protect our Nation's shareholders. The SEC needs to have sufficient attorneys, training, and investigative resources, and enough power to pursue the most complex of cases against the best funded defendants in our legal system. In particular, one idea that is worth serious consideration is amending the statutes related to the Federal Rules of Criminal Procedure to allow SEC attorneys in fraud investigations to seek search warrants from a Federal judge, the same way that Department of Justice attorneys currently may, when they can demonstrate probable cause to believe that a crime has been committed. Taking such a step might allow the SEC to act more quickly and to prevent the destruction of documents and evidence in the future, as they were not able to do in the Enron case. The SEC has to have the tools it needs to protect what has truly become a nation of shareholders. Section 4 of this bill would amend the Bankruptcy Code to make judgments and settlements based upon securities law violations non- dischargeable, protecting victims' ability to recover their losses. Current bankruptcy law may permit such wrongdoers to discharge their obligations under court judgments or settlements based on securities fraud and other securities violations. This loophole in the law should be closed to help defrauded investors recoup their losses and to hold accountable those who perpetrate securities fraud after a government unit or private suit results in a judgment or settlement against the wrongdoer. State securities regulators have indicated their strong support for this change in the bankruptcy law, and I have received letters supporting the passage of this bill from the North American Securities Administrators Association, whose membership includes the securities administrators in all 50 States and Vermont's chief banking and securities regulator. Under current laws, State regulators are often forced to ``reprove'' their fraud cases in bankruptcy court to prevent discharge because remedial statutes often have different technical elements than the analogous common law causes of action. Moreover, settlements may not have the same collateral estoppel effect as judgments obtained through fully litigated legal proceedings. In short, with their resources already stretched to the breaking point, these State regulators have to plow the same ground twice in securities fraud cases. By ensuring securities fraud judgments and settlements in State cases are non-dischargeable, precious state enforcement resources will be preserved and directed at preventing fraud in the first place. Section 5 would protect victims by extending the statute of limitations in private securities fraud cases. This section would set the statute of limitations in private securities fraud cases to the earlier of 5 years after the date of the fraud or 3 years after the fraud was discovered. The current statute of limitations for such fraud cases is 3 years from the date of the fraud. This can unfairly limit recovery for defrauded investors in some cases. As Attorney General Gregoire testified at our recent hearing, in the Enron State pension fund litigation the current short statute of limitations has forced some States to forgo claims against Enron based on securities fraud in 1997 and 1998. In Washington State alone, the short statute of limitations may cost hard working State employees, firefighters and police officers nearly $50 million, lost Enron investments which they can never recover under current law. Especially in complex securities fraud cases, the current short statute of limitations may insulate the worst offenders from accountability. As Justices O'Connor and Kennedy said in their dissent in Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, 111 S. Ct. 2773 (1991), the 5-4 decision upholding this short statute of limitations in most securities fraud cases, the current ``one and three'' limitations period makes securities fraud actions ``all but a dead letter for injured investors who by no conceivable standard of fairness or practicality can be expected to file suit within 3 years after the violation occurred.'' The Consumers Union also strongly supports the bill, and views this section in particular as a needed measure to protect investors. The experts agree with that view. In fact, the last two SEC Chairmen supported extending the statute of limitations in securities fraud cases. Then Chairman Arthur Levitt testified before a Senate Subcommittee in 1995 that ``extending the statute of limitations is warranted because many securities frauds are inherently complex, and the law should not reward the perpetrator of a fraud, who successfully conceals its existence for more than 3 years.'' Before Chairman Levitt, in the last Bush administration, then SEC Chairman Richard Breeden also testified before Congress in favor of extending the statute of limitations in securities fraud cases. Reacting to the Lampf opinion, Breeden stated in 1991 that ``[e]vents only come to light years after the original distribution of securities, and the Lampf cases could well mean that by the time investors discover they have a case, they are already barred from the courthouse.'' Both the FDIC and the State securities regulators joined the SEC in calling for a legislative reversal of the Lampf decisions at that time. In fraud cases the short limitations period under current law is an invitation to take sophisticated steps to conceal the deceit. The experts have long agreed on that point, but unfortunately they have been proven right again. As we know from recent experience, it only takes a few seconds to warm up the shredder, but unfortunately it will take years for victims to put this complex case back together again. It is time that the law be changed to give victims the time they need to prove their fraud cases. Section 6 of this bill ensures that those who destroy evidence or perpetrate fraud are appropriately punished. It would require the United States Sentencing Commission, ``Commission'', to consider enhancing criminal penalties in cases involving the actual destruction or fabrication of evidence or in serious fraud cases where a large number of victims are injured or when the victims face financial ruin. Currently, the United States Sentencing Guidelines recognize that a wide variety of conduct falls under the offense of ``obstruction of justice.'' For obstruction cases involving the murder of a witness or another crime, the guidelines allow, by cross reference, significant enhancements based on the underlying crimes, such as murder or attempted murder. For cases where obstruction is the only offense, however, they provide little guidance on differentiating between different types of obstruction. This provision requests that the Sentencing Commission consider a specific enhancement in cases where evidence and records are actually destroyed or fabricated in order to thwart investigators, a serious form of obstruction. This provision, in subsections 3 and 4, also requires the Commission to consider enhancing the penalties in fraud cases which are particularly extensive or serious. The current fraud guidelines require the sentencing judge to take the number of victims into account, but only to a very limited degree in small and medium-sized cases. Specifically, once there are more than 50 victims, the guidelines do not require any further enhancement of the sentence, so that a case with 51 victims may be treated the same as a case with 5,000 victims. As the Enron matter demonstrates, serious frauds, especially in cases where publicly traded securities are involved, can effect thousands of victims. The Commission may well have not foreseen such extensive cases, and subsection 3 requires it to reconsider whether they merit an additional enhancement. In addition, current guidelines allow only very limited consideration of the extent of devastation that a fraud offense causes its victims. Judges may only consider whether a fraud endangers the ``solvency or financial security'' of a victim to impose an upward departure from the recommended sentencing range. It is not a factor in establishing the range itself unless a bank is the victim. Subsection 4 requires the Commission to consider requiring judges to consider the extent of the fraud in setting the actual recommended sentencing range in cases such as the Enron matter, where many private victims have lost their life savings. Section 7 of the bill would provide whistleblower protection to employees of publicly traded companies who report acts of fraud to Federal officials with the authority to remedy the wrongdoing or to supervisors or appropriate individuals within their company. Although current law protects many government employees who act in the public interest by reporting wrongdoing, there is no similar protection for employees of publicly traded companies who blow the whistle on fraud and protect investors. With an unprecedented portion of the American public investing in these companies and depending upon their honesty, this distinction does not serve the public good. In addition, corporate employees who report fraud are subject to the patchwork and vagaries of current State laws, even though most publicly traded companies do business nationwide. Thus, a whistleblowing employee in one State may be far more vulnerable to retaliation than a fellow employee in another State who takes the same actions. Unfortunately, one thing that often transcends State lines, as we all know from the State tobacco litigation, are certain companies with a corporate culture that punishes whistleblowers for being ``disloyal'' and ``litigation risks.'' Most corporate employers, with help from their lawyers, know exactly what they can do to a whistleblowing employee under the law. Unfortunately, Enron has supplied us with another grievous example of corporate conduct as shown by a recently released email from one of Enron's lawyers. The email responds to a request for legal advice after an Enron employee tried to report accounting irregularities at the highest levels of the company in late August, 2001: You asked that I include in this communication a summary of the possible risks associated with discharging (or constructively discharging) employees who report allegations of improper accounting practices: 1. Texas law does not currently protect corporate whistleblowers. The supreme court has twice declined to create a cause of action for whistleblowers who are discharged . . . This legal advice lays bare the fact that employees who do the ``right thing'' are vulnerable to retaliation. After this high level employee at Enron reported improper accounting practices, Enron is not thinking about firing Arthur Andersen, they are considering discharging the whistle blower. No wonder that so many employees are scared to come forward. Our laws need to encourage and protect those who report fraudulent activity that damages investors in publicly traded companies. That is why this bill is supported by groups such as the National Whistleblower Center, the Government Accountability Project, and Taxpayers Against Fraud, who have written a letter calling this bill ``the single most effective measure possible to prevent recurrences of the Enron debacle and similar threats to the nation's financial markets.'' This bill would create a new provision protecting employees when they take lawful acts to disclose information or otherwise assist criminal investigators, Federal regulators, Congress, their supervisors, or other proper people within a corporation, or parties in a judicial proceeding in detecting and stopping actions which they reasonably believe to be fraudulent. Since the only acts protected are ``lawful'' ones, the bill would not protect illegal actions, such as the improper public disclosure of trade secret information. In addition, a reasonableness test is also provided under the subsection (a)(1), which is intended to impose the normal reasonable person standard used and interpreted in a wide variety of legal contexts. See generally Passaic Valley Sewerage Commissioners v. Department of Labor, 992 F. 2d 474, 478. Certainly, although not exclusively, any type of corporate or agency action taken based on the information or the information constituting admissible evidence would be strong indicia that it could support of such a reasonable belief. Under this bill's new protections, if the employer does take illegal action in retaliation for such lawful and protected conduct, subsection b allows the employee to elect to file an administrative complaint at the Department of Labor, as is the case for employees who provide assistance in airplane safety, or to bring a case in Federal court, with a jury trial available for an action at law. See United States Constitution, Amendment VII; Title 42 United States Code, Section 1983. Subsection (c) of this section would require both reinstatement of the whistleblower, double backpay, and compensatory damages to make a victim whole. In severe cases, where the finder of fact determines that underlying fraud posed a substantial risk to the shareholders' or the general public's health, safety or welfare, punitive damages would be allowed in the discretion of the finder of fact based on a number of enumerated factors. The bill does not supplant or replace State law, but sets a national floor for employee protections in the context of publicly traded companies. Section 8 of the bill would create a new ten year felony under Title 18 for defrauding shareholders of publicly traded companies. Currently, unlike bank fraud or health care fraud, there is no generally accessible statute dealing with the specific problem of securities fraud. In these cases, Federal investigators and prosecutors are forced either to resort to a patchwork of technical Title 15 offenses, which may criminalize particular violations of securities law, or to treat the cases as generic mail or wire fraud cases and to meet the technical elements of those statutes, with their 5 year maximum penalties. This bill, then, would create a new ten year felony for securities fraud, a more general and less technical provision comparable to the bank fraud and health care fraud statutes in Title 18. Specifically, it would add a provision to Chapter 63 of Title 18 which would criminalize the execution or attempted execution of a scheme or artifice to defraud persons in connection with securities of publicly traded companies or obtain their money or property. The provision would provide needed enforcement flexibility in the context of publicly traded companies to protect shareholders and prospective shareholders against all the types of schemes and frauds which inventive criminals may devise in the future. This bill can only be part of the needed response to the problems exposed by the Enron debacle. It is clear that changes are needed to restore accountability in our markets. As a lawyer and a former prosecutor I am appalled at the role that lawyers and accountants played in the Enron case. Instead of acting as gatekeepers who detect and deter fraud, it appears that Enron's accountants and lawyers brought all their skills and knowledge to bear in assisting the fraud to succeed and then in covering it up. We need to reconsider the incentive system that has been set up that encourages accountants and lawyers who come across fraud in their work to remain silent. Others have suggested that we restore aider and abettor liability to the law as it existed for almost five decades before the Supreme Court, in another 5-4 decision, took away the ability of private parties to sue aiders and abettors for securities fraud. I hope that Senators on the Banking Committee will seriously consider this change, which restores the ability to hold liable accountants and lawyers who knowingly or recklessly provide substantial assistance in perpetrating a fraud. Others have also proposed to restore joint and several liability in securities fraud cases so that fraud victims are not left empty handed watching the accountants, lawyers, and executives point fingers at each other, until they can blame everything on the one company that files for bankruptcy protection, like Enron, another change worth careful consideration. In short, we have to ask ourselves whether, as a nation, we have unintentionally stacked the deck against fraud victims. I think that we have, and we need to have the courage to admit it and reshuffle the cards to restore basic fairness. For all of these reasons, I am pleased to introduce the ``Corporate and Criminal Fraud Accountability Act of 2002.'' I look forward to working with members on both sides of the aisle to enact its provisions into law. I ask unanimous consent for this bill to be printed in the Record along with the sectional analysis and a copy of the entire e-mail document to which I referred as well as the letters of support which I have referenced.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to introduce the ``Corporate and Criminal Fraud Accountability Act of 2002.'' I want to thank the majority leader, and Senators Durbin and Harkin for joining me as original cosponsors in this effort to prevent corporate and criminal fraud, protect shareholders and employees, and hold wrongdoers accountable for their actions. This bill is a crucial part of ensuring that the corporate fraud and greed that have been on display in the Enron debacle can be better detected, prevented and prosecuted. We cannot legislate against greed, but we can do our best to make sure that greed does not succeed. The fraud at Enron was not the work of novices. It was the work of highly educated professionals, spinning an intricate spider's web of deceit. They created sham partnerships with names like Jedi, Chewco, Rawhide, Ponderosa and Sundance to cook the books and trick both the public and federal regulators. The actions of Enron's executives, accountants, and lawyers exhibits a ``Wild West'' attitude which valued profit over honesty. Nor is this web of corporate deceit the end of the Enron story. When they thought that investigators might be coming, what did these ``professional'' men and women apparently do? First, they warmed up the shredders and began destroying evidence. Then, after they successfully shredded thousands of documents, they began the finger pointing. Now, the Enron executives are blaming their accountants at Arthur Andersen; the accountants are blaming the executives right back; and they are both blaming their lawyers. The truth is that just as there was enough greed to go around, there is now enough blame to go around. But the blame does not end with the people involved in this case. It extends to our courts, our regulators, and to Congress, whose actions in the past decade helped create the permissive atmosphere which allowed Enron to happen. No one in Congress intended for such outrageous conduct to happen, but now it is our job to stop it. We must restore accountability. Accountability is important because Enron is not alone. At a Judiciary Committee hearing which I recently chaired, experts gave the public markets grave warnings, it is likely that there are more ``Enrons'' lurking out there waiting to be discovered. Waiting to be discovered not only by investigators or the media but by the more than one in two Americans who depend on the transparency and integrity of our markets. The majority of Americans depend on our capital markets to invest in the future needs of themselves and their families, from their children's college fund to their retirement nest eggs. American investors are watching what we do here and want action. We must act now to restore confidence in the integrity of our markets and deter fraud artists who think that their crimes will go unpunished. Restoring such accountability is what this bill is all about. This bill has three major components that will enhance accountability. First, this bill provides prosecutors with new and better tools to effectively prosecute and punish those who defraud our Nation's investors, which means ensuring our criminal laws are flexible enough to keep pace with the most sophisticated and clever con artists. It also means providing criminal penalties which are tough enough to make them think twice about defrauding the public. Second, this bill provides tools that will improve the ability of investigators and regulators to collect and preserve evidence which proves fraud. That means ensuring that corporate whistleblowers are protected and that those who destroy evidence of fraud are punished. Third, the bill protects victims' rights to recover from those who have cheated them. In short, this bill is going to both save documents from the shredder and send wrongdoers to jail once they are caught. This bill is only one part of the response needed to solve the problems exposed by Enron's fall. Securities law experts, consumer protection groups, and others Members of Congress, both in the Senate and the House of Representatives, have made other proposals and introduced legislation that deserves careful consideration. Working with the majority leader, we have developed a comprehensive plan to attack this problem. Certainly, in light of recent events, we must carefully reexamine both the decisions of the Supreme Court and our current laws. Despite the best of intentions, our laws may have helped create an environment in which greed was inflated and integrity devalued. This bill is an important starting point in that process. Let me explain its provisions. Section 2 of the bill would create two new 5 year felonies to clarify and plug holes in the existing criminal laws relating to the destruction or fabrication of evidence, including the shredding of financial and audit records. Currently, those provisions are a patchwork which have been interpreted, often very narrowly, by Federal courts. For instance, certain of the current provisions in Title 18, such as Section 1512(b), make it a crime to persuade another person to destroy documents, but not a crime for a person to personally destroy the same documents. Other provisions, such as Section 1503, have been narrowly interpreted by courts, including the Supreme Court in United States v. Aguillar, 115 S. Ct. 593 (1995), and the First Circuit in United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996), to apply only to situations where the obstruction of justice may be closely tied to a judicial proceeding that is already pending. Still other provisions, such as sections 152(8), 1517 and 1518 apply to obstruction in certain limited types of cases, such as bankruptcy fraud, examinations of financial institutions, and healthcare fraud. In short, the current laws regarding destruction of evidence are full of ambiguities and limitations that should be corrected. Section 2 would create a new felony, 18 U.S.C. section 1519, for use in a wide array of cases in which a person destroys evidence with the specific intent to obstruct a Federal agency or a criminal investigation. There would be no technical requirement that a judicial proceeding was already underway or that the documents were formally under subpoena. The law would also be used to prosecute a person who actually destroys the records themself in addition to one who persuades another to do so. The law would apply to the intentional shredding of evidence in any matter within Federal regulatory or civil jurisdiction, such as an SEC or civil fraud matter, as well as criminal jurisdiction, eliminating another series of technical distinctions imposed by some courts under current law. Second, Section 2 creates a 5-year felony, 18 U.S.C. section 1520, to punish the willful failure to preserve financial audit papers of companies that issue securities as defined in the Securities Exchange Act. The new statute, in subsection (a), would require that accountants preserve audit records for 5 years from the conclusion of the audit. Subsection (b) would make it a felony to knowingly and willfully violate the 5-year audit retention period. This section both penalizes the willful failure to maintain specified audit records and sets a bright line rule that would require accountants to put strong safeguards in place to ensure that such records are, in fact, retained. Had such clear requirements been in place at the time that Arthur Andersen was considering what to do with its audit documents, countless documents might have been saved from the shredder. Section 3 of this bill proposes an amendment to the civil Racketeer Influenced and Corrupt Organizations, RICO, statute, enhance the abilities of Federal and State regulators to enforce existing law. It would give State Attorneys General and the Securities and Exchange Commission, ``SEC'', explicit authority to bring a suit under the civil RICO provisions. Currently, only the U.S. Attorney General has such authority under RICO. At a Judiciary Committee hearing on Enron's fall, Washington State Attorney General Christine Gregoire strongly supported this change, testifying that State and local law enforcers are on the front lines in protecting consumer's rights. Providing such authority to State Attorneys General and to the SEC would provide them a potent weapon in that battle and would allow us to take advantage of their significant expertise in protecting consumers. Others have suggested that we also consider repealing the one-of-a- kind securities fraud exception to civil RICO, created in 1995 over the veto of President Clinton. Congressman Conyers, the distinguished ranking minority member of the House Judiciary Committee, has already introduced a bill to repeal this unique exemption. As someone who voted against the 1995 Private Securities Litigation Reform Act and voted to sustain President Clinton's veto, I did not support this one-of-a-kind exemption when it became law. Now, given what has happened in our markets, I think that we all need to consider whether or not the exemption for securities fraud makes sense. No one who voted for the 1995 Private Securities Litigation Reform Act or voted to override President Clinton's veto meant for Enron to occur, but now that it has occurred, none of us can ignore it. In addition to giving the SEC the authority to sue under civil RICO, we have to ensure that the SEC has all the powers and resources that it needs to protect our Nation's shareholders. The SEC needs to have sufficient attorneys, training, and investigative resources, and enough power to pursue the most complex of cases against the best funded defendants in our legal system. In particular, one idea that is worth serious consideration is amending the statutes related to the Federal Rules of Criminal Procedure to allow SEC attorneys in fraud investigations to seek search warrants from a Federal judge, the same way that Department of Justice attorneys currently may, when they can demonstrate probable cause to believe that a crime has been committed. Taking such a step might allow the SEC to act more quickly and to prevent the destruction of documents and evidence in the future, as they were not able to do in the Enron case. The SEC has to have the tools it needs to protect what has truly become a nation of shareholders. Section 4 of this bill would amend the Bankruptcy Code to make judgments and settlements based upon securities law violations non- dischargeable, protecting victims' ability to recover their losses. Current bankruptcy law may permit such wrongdoers to discharge their obligations under court judgments or settlements based on securities fraud and other securities violations. This loophole in the law should be closed to help defrauded investors recoup their losses and to hold accountable those who perpetrate securities fraud after a government unit or private suit results in a judgment or settlement against the wrongdoer. State securities regulators have indicated their strong support for this change in the bankruptcy law, and I have received letters supporting the passage of this bill from the North American Securities Administrators Association, whose membership includes the securities administrators in all 50 States and Vermont's chief banking and securities regulator. Under current laws, State regulators are often forced to ``reprove'' their fraud cases in bankruptcy court to prevent discharge because remedial statutes often have different technical elements than the analogous common law causes of action. Moreover, settlements may not have the same collateral estoppel effect as judgments obtained through fully litigated legal proceedings. In short, with their resources already stretched to the breaking point, these State regulators have to plow the same ground twice in securities fraud cases. By ensuring securities fraud judgments and settlements in State cases are non-dischargeable, precious state enforcement resources will be preserved and directed at preventing fraud in the first place. Section 5 would protect victims by extending the statute of limitations in private securities fraud cases. This section would set the statute of limitations in private securities fraud cases to the earlier of 5 years after the date of the fraud or 3 years after the fraud was discovered. The current statute of limitations for such fraud cases is 3 years from the date of the fraud. This can unfairly limit recovery for defrauded investors in some cases. As Attorney General Gregoire testified at our recent hearing, in the Enron State pension fund litigation the current short statute of limitations has forced some States to forgo claims against Enron based on securities fraud in 1997 and 1998. In Washington State alone, the short statute of limitations may cost hard working State employees, firefighters and police officers nearly $50 million, lost Enron investments which they can never recover under current law. Especially in complex securities fraud cases, the current short statute of limitations may insulate the worst offenders from accountability. As Justices O'Connor and Kennedy said in their dissent in Lampf, Pleva, Lipkind, Prupis, & Petigrow v. Gilbertson, 111 S. Ct. 2773 (1991), the 5-4 decision upholding this short statute of limitations in most securities fraud cases, the current ``one and three'' limitations period makes securities fraud actions ``all but a dead letter for injured investors who by no conceivable standard of fairness or practicality can be expected to file suit within 3 years after the violation occurred.'' The Consumers Union also strongly supports the bill, and views this section in particular as a needed measure to protect investors. The experts agree with that view. In fact, the last two SEC Chairmen supported extending the statute of limitations in securities fraud cases. Then Chairman Arthur Levitt testified before a Senate Subcommittee in 1995 that ``extending the statute of limitations is warranted because many securities frauds are inherently complex, and the law should not reward the perpetrator of a fraud, who successfully conceals its existence for more than 3 years.'' Before Chairman Levitt, in the last Bush administration, then SEC Chairman Richard Breeden also testified before Congress in favor of extending the statute of limitations in securities fraud cases. Reacting to the Lampf opinion, Breeden stated in 1991 that ``[e]vents only come to light years after the original distribution of securities, and the Lampf cases could well mean that by the time investors discover they have a case, they are already barred from the courthouse.'' Both the FDIC and the State securities regulators joined the SEC in calling for a legislative reversal of the Lampf decisions at that time. In fraud cases the short limitations period under current law is an invitation to take sophisticated steps to conceal the deceit. The experts have long agreed on that point, but unfortunately they have been proven right again. As we know from recent experience, it only takes a few seconds to warm up the shredder, but unfortunately it will take years for victims to put this complex case back together again. It is time that the law be changed to give victims the time they need to prove their fraud cases. Section 6 of this bill ensures that those who destroy evidence or perpetrate fraud are appropriately punished. It would require the United States Sentencing Commission, ``Commission'', to consider enhancing criminal penalties in cases involving the actual destruction or fabrication of evidence or in serious fraud cases where a large number of victims are injured or when the victims face financial ruin. Currently, the United States Sentencing Guidelines recognize that a wide variety of conduct falls under the offense of ``obstruction of justice.'' For obstruction cases involving the murder of a witness or another crime, the guidelines allow, by cross reference, significant enhancements based on the underlying crimes, such as murder or attempted murder. For cases where obstruction is the only offense, however, they provide little guidance on differentiating between different types of obstruction. This provision requests that the Sentencing Commission consider a specific enhancement in cases where evidence and records are actually destroyed or fabricated in order to thwart investigators, a serious form of obstruction. This provision, in subsections 3 and 4, also requires the Commission to consider enhancing the penalties in fraud cases which are particularly extensive or serious. The current fraud guidelines require the sentencing judge to take the number of victims into account, but only to a very limited degree in small and medium-sized cases. Specifically, once there are more than 50 victims, the guidelines do not require any further enhancement of the sentence, so that a case with 51 victims may be treated the same as a case with 5,000 victims. As the Enron matter demonstrates, serious frauds, especially in cases where publicly traded securities are involved, can effect thousands of victims. The Commission may well have not foreseen such extensive cases, and subsection 3 requires it to reconsider whether they merit an additional enhancement. In addition, current guidelines allow only very limited consideration of the extent of devastation that a fraud offense causes its victims. Judges may only consider whether a fraud endangers the ``solvency or financial security'' of a victim to impose an upward departure from the recommended sentencing range. It is not a factor in establishing the range itself unless a bank is the victim. Subsection 4 requires the Commission to consider requiring judges to consider the extent of the fraud in setting the actual recommended sentencing range in cases such as the Enron matter, where many private victims have lost their life savings. Section 7 of the bill would provide whistleblower protection to employees of publicly traded companies who report acts of fraud to Federal officials with the authority to remedy the wrongdoing or to supervisors or appropriate individuals within their company. Although current law protects many government employees who act in the public interest by reporting wrongdoing, there is no similar protection for employees of publicly traded companies who blow the whistle on fraud and protect investors. With an unprecedented portion of the American public investing in these companies and depending upon their honesty, this distinction does not serve the public good. In addition, corporate employees who report fraud are subject to the patchwork and vagaries of current State laws, even though most publicly traded companies do business nationwide. Thus, a whistleblowing employee in one State may be far more vulnerable to retaliation than a fellow employee in another State who takes the same actions. Unfortunately, one thing that often transcends State lines, as we all know from the State tobacco litigation, are certain companies with a corporate culture that punishes whistleblowers for being ``disloyal'' and ``litigation risks.'' Most corporate employers, with help from their lawyers, know exactly what they can do to a whistleblowing employee under the law. Unfortunately, Enron has supplied us with another grievous example of corporate conduct as shown by a recently released email from one of Enron's lawyers. The email responds to a request for legal advice after an Enron employee tried to report accounting irregularities at the highest levels of the company in late August, 2001: You asked that I include in this communication a summary of the possible risks associated with discharging (or constructively discharging) employees who report allegations of improper accounting practices: 1. Texas law does not currently protect corporate whistleblowers. The supreme court has twice declined to create a cause of action for whistleblowers who are discharged . . . This legal advice lays bare the fact that employees who do the ``right thing'' are vulnerable to retaliation. After this high level employee at Enron reported improper accounting practices, Enron is not thinking about firing Arthur Andersen, they are considering discharging the whistle blower. No wonder that so many employees are scared to come forward. Our laws need to encourage and protect those who report fraudulent activity that damages investors in publicly traded companies. That is why this bill is supported by groups such as the National Whistleblower Center, the Government Accountability Project, and Taxpayers Against Fraud, who have written a letter calling this bill ``the single most effective measure possible to prevent recurrences of the Enron debacle and similar threats to the nation's financial markets.'' This bill would create a new provision protecting employees when they take lawful acts to disclose information or otherwise assist criminal investigators, Federal regulators, Congress, their supervisors, or other proper people within a corporation, or parties in a judicial proceeding in detecting and stopping actions which they reasonably believe to be fraudulent. Since the only acts protected are ``lawful'' ones, the bill would not protect illegal actions, such as the improper public disclosure of trade secret information. In addition, a reasonableness test is also provided under the subsection (a)(1), which is intended to impose the normal reasonable person standard used and interpreted in a wide variety of legal contexts. See generally Passaic Valley Sewerage Commissioners v. Department of Labor, 992 F. 2d 474, 478. Certainly, although not exclusively, any type of corporate or agency action taken based on the information or the information constituting admissible evidence would be strong indicia that it could support of such a reasonable belief. Under this bill's new protections, if the employer does take illegal action in retaliation for such lawful and protected conduct, subsection b allows the employee to elect to file an administrative complaint at the Department of Labor, as is the case for employees who provide assistance in airplane safety, or to bring a case in Federal court, with a jury trial available for an action at law. See United States Constitution, Amendment VII; Title 42 United States Code, Section 1983. Subsection (c) of this section would require both reinstatement of the whistleblower, double backpay, and compensatory damages to make a victim whole. In severe cases, where the finder of fact determines that underlying fraud posed a substantial risk to the shareholders' or the general public's health, safety or welfare, punitive damages would be allowed in the discretion of the finder of fact based on a number of enumerated factors. The bill does not supplant or replace State law, but sets a national floor for employee protections in the context of publicly traded companies. Section 8 of the bill would create a new ten year felony under Title 18 for defrauding shareholders of publicly traded companies. Currently, unlike bank fraud or health care fraud, there is no generally accessible statute dealing with the specific problem of securities fraud. In these cases, Federal investigators and prosecutors are forced either to resort to a patchwork of technical Title 15 offenses, which may criminalize particular violations of securities law, or to treat the cases as generic mail or wire fraud cases and to meet the technical elements of those statutes, with their 5 year maximum penalties. This bill, then, would create a new ten year felony for securities fraud, a more general and less technical provision comparable to the bank fraud and health care fraud statutes in Title 18. Specifically, it would add a provision to Chapter 63 of Title 18 which would criminalize the execution or attempted execution of a scheme or artifice to defraud persons in connection with securities of publicly traded companies or obtain their money or property. The provision would provide needed enforcement flexibility in the context of publicly traded companies to protect shareholders and prospective shareholders against all the types of schemes and frauds which inventive criminals may devise in the future. This bill can only be part of the needed response to the problems exposed by the Enron debacle. It is clear that changes are needed to restore accountability in our markets. As a lawyer and a former prosecutor I am appalled at the role that lawyers and accountants played in the Enron case. Instead of acting as gatekeepers who detect and deter fraud, it appears that Enron's accountants and lawyers brought all their skills and knowledge to bear in assisting the fraud to succeed and then in covering it up. We need to reconsider the incentive system that has been set up that encourages accountants and lawyers who come across fraud in their work to remain silent. Others have suggested that we restore aider and abettor liability to the law as it existed for almost five decades before the Supreme Court, in another 5-4 decision, took away the ability of private parties to sue aiders and abettors for securities fraud. I hope that Senators on the Banking Committee will seriously consider this change, which restores the ability to hold liable accountants and lawyers who knowingly or recklessly provide substantial assistance in perpetrating a fraud. Others have also proposed to restore joint and several liability in securities fraud cases so that fraud victims are not left empty handed watching the accountants, lawyers, and executives point fingers at each other, until they can blame everything on the one company that files for bankruptcy protection, like Enron, another change worth careful consideration. In short, we have to ask ourselves whether, as a nation, we have unintentionally stacked the deck against fraud victims. I think that we have, and we need to have the courage to admit it and reshuffle the cards to restore basic fairness. For all of these reasons, I am pleased to introduce the ``Corporate and Criminal Fraud Accountability Act of 2002.'' I look forward to working with members on both sides of the aisle to enact its provisions into law. I ask unanimous consent for this bill to be printed in the Record along with the sectional analysis and a copy of the entire e-mail document to which I referred as well as the letters of support which I have referenced.

Mr. LEAHY

Mr. LEAHY. Madam President, today, the Senate is voting on the 40th judicial nominee to be confirmed since last July when the Senate Judiciary Committee reorganized after the Democrats became the majority party in the Senate. With the confirmation of Ralph Beistline of Alaska, we will have confirmed more judges in the last 9 months than were confirmed in 4 out of 6 years under Republican leadership. The number of judicial confirmations over these past nine months-- 40--now exceeds the number of judicial nominees confirmed during all 12 months of 2000, 1999, 1997 and 1996. Thus, during the last 9 tumultuous months we have exceeded the one-year totals for 4 of the 6 years in which a Republican majority last controlled the pace of confirmations. During the preceding 6\1/2\ years in which a Republican majority most recently controlled the pace of judicial confirmations in the Senate, 248 judges were confirmed. The larger number, the total judges confirmed during President Clinton's two terms includes 2 years in which a Democratic majority proceeded to confirm 129 additional judges in 1993 and 1994. During the 6\1/2\ years of Republican control of the Senate, judicial confirmations averaged 38 per year--a pace of consideration and confirmation that has already been exceeded under Democratic leadership over these past nine months. During the recent Republican control of the Senate 46 nominees to the Courts of Appeal were confirmed, a rate of approximately seven per year on average, including one whole session, 1996, in which no circuit court judges were confirmed at all. In only nine months of Democratic control of the Senate, seven of President Bush's nominees to the Courts of Appeals have been confirmed. Two additional circuit court nominees have had hearings and the hearing scheduled for next week will include another circuit court nominee. Under Democratic leadership we have had more hearings, for more nominees, and had more confirmations than the Republican leadership did for President Clinton's nominees during the first 9 months of 1995. In each area--hearings, number of nominees given hearings, and number of nominees confirmed--this Committee has exceeded the comparable period when Republicans were in power. And 1995 was one of the most productive years. It was 1996 and after that the Republican majority began stalling the judicial confirmation process and the session in which only 17 judges were confirmed all year with none to the Courts of Appeals. Additionally, under Democratic leadership, we have reformed the process and practices used in the past to deny Committee consideration of judicial nominees. The fact that 248 judicial nominees were confirmed in the prior 6\1/2\ years of Republican leadership does not diminish the fact that almost 60 other judicial nominees never received a hearing by the Senate Judiciary Committee or received a hearing but were never voted on by the Committee. The Majority Leader, Senator Daschle, the Assistant Majority Leader, Senator Reid, and the members of the Judiciary Committee have worked hard to return the Senate's consideration of judicial nominations to a more orderly and open process. We have been working hard to move away from the anonymous holds and inaction on judicial nominations that characterized so much of the period from 1995 through 2000. Today's vote to confirm the 40th judicial nominee since the reorganization of the Committee last July demonstrates that we have made a positive difference in the confirmation process by improving the pace and fairness of consideration of nominees for lifetime appointment to the federal courts. Not only has the Senate been able to confirm more judges in a shorter time frame than were confirmed in 4 of the past 6 years, but we have also done so at a faster pace than in any of the recent 6\1/2\ years in which Republicans were most recently in the majority. I make these observations to set the record straight. I do not mean by my comments to be critical of Senator Hatch. Many times during the 6\1/2\ years he chaired the Judiciary Committee, I observed that were the matter left up to us, we would have made more progress on more judicial nominees. I thanked him during those years for his efforts. I know that he would have liked to have been able to do more and not have to leave so many vacancies and so many nominees without action. With the confirmation of Ralph Robert Beistline, there will be no active vacancies on the Alaska District Court. We have moved expeditiously to consider and confirm Judge Beistline. He was nominated in November, received his ABA peer review in January, participated in a hearing in February, was reported favorably by the Committee last week, and is today being confirmed. Judge Beistline has an extensive career litigating civil cases in state and Federal courts, providing pro bono services in civil matters, including social security appeals. I congratulate the nominee and his family on his confirmation today. This nominee has the support of both Senators from his home state and appears to be the type of qualified, consensus nominee that the Senate has been confirming to help fill the vacancies on our Federal courts.

Mr. LEAHY

Mr. LEAHY. Madam President, I rise today, joined by my good friend Senator Grassley, to introduce the FBI Reform Act of 2002. This bill stems from the lessons learned during a series of Judiciary Committee hearings on oversight of the FBI that I chaired beginning last June. Even more recently, the important changes which are being made under the FBI's new leadership after the September 11 attacks and the new powers granted the FBI by the USA PATRIOT Act have resulted in FBI reform becoming an pressing matter of national importance. Since the attacks of September 11, 2001, and the anthrax attacks last fall, we have relied on the FBI to detect and prevent acts of catastrophic terrorism that endanger the lives of the American people and the institutions of our country. The men and women of the FBI are performing this task with great professionalism at home and abroad. I think that we have all felt safer as a result of the full mobilization of the FBI's dedicated Special Agents, its expert support personnel, and its exceptional technical capabilities. We owe the men and women of the FBI our thanks. For decades the FBI has been an outstanding law enforcement agency and a vital member of the United States intelligence community. As our hearings and recent events have shown, however, there is room for improvement at the FBI. We must face the mistakes of the past, and make the changes needed to ensure that they are not repeated. In meeting the international terrorist challenge, the Congress has an opportunity and obligation to strengthen the institutional fibre of the FBI based on lessons learned from recent problems the Bureau has experienced. This view is not mine alone. When Director Bob Mueller testified at his confirmation hearings last July, he forthrightly acknowledged ``that the Bureau's remarkable legacy of service and accomplishment has been tarnished by some serious and highly publicized problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen, and the McVeigh documents--these familiar names and events remind us all that the FBI is far from perfect and that the next director faces significant management and administrative challenges.'' Since then, the Judiciary Committee has forged a constructive partnership with Director Mueller to get the FBI back on track. Congress sometimes has followed a hands-off approach about the FBI. But with the FBI's new increased powers, with our increased reliance on them to stop terrorism, and with the increased funding requested in the President's budget will come increased scrutiny. Until the Bureau's problems are resolved and new challenges overcome, we have to take a hands-on approach. Indeed our hearings and other oversight activities have highlighted tangible steps the Congress should take in an FBI reform bill as part of this hands-on approach. Last year's hearings demonstrated the need to improve FBI internal accountability, extend whistleblower protection, end the double-standard for discipline of senior FBI executives, enhance the FBI's internal security program to protect against espionage as occurred in the Hanssen case, and modernize the FBI's information technology systems. Since last year's oversight hearings, the committee has explored additional management issues that are reflected in the FBI Reform Act. Senator Grassley called attention to concerns about the practices of the FBI and other Federal criminal investigative agencies in reporting and using statistics on their investigations. In addition, FBI officials responsible for protecting its facilities informed us of difficulties in retaining the most qualified people on the FBI's own police force to protect some of our nation's most important and, unfortunately, most targeted facilities. When Director Mueller announced the first stage of his FBI reorganization last December, he stressed the importance of taking a comprehensive look at the FBI's missions for the future, and Deputy Attorney General Thompson's office has told us that the Attorney General's management review of the FBI is considering this matter. Director Mueller has stated that the second phase of FBI reorganization will be part of a ``comprehensive plan to address not only the new challenges of terrorism, but to modernize and streamline the Bureau's more traditional functions. . . .'' Thus, through our hearings, our other oversight efforts, and the statements and efforts of the new management team at the FBI, an initial list of challenges facing the FBI has been developed. The provisions in the FBI Reform Act address each of these challenges. Titles I, II, and VII of the FBI Reform Act strengthen the system for uncovering and reviewing FBI misconduct and imposing appropriate discipline, so that there is appropriate accountability. Title I creates statutory jurisdiction for the DOJ Inspector General over allegations of misconduct in the FBI. It brings the statutory authorities of the Justice Department's Inspector General into line with the administrative regulations adopted by the Attorney General on July 11, 2001, ensuring that there will be no return to a system in which the FBI enjoyed unique exemption for scrutiny by an independent Inspector General. Title II strengthens whistleblower protection for FBI employees and protects them from retaliation for reporting wrongdoing. Title VII eliminates statutory disparities in disciplinary penalties for Senior Executive Service and non-SES personnel. The committee received testimony in our oversight hearings showing that, too often, the independence that is part of the FBI's culture crossed the line into arrogance. Senator Danforth expressed concern to the committee about entrenched executives at the FBI who had created a closed and insular culture resistant to disclosure of mistakes and to reforms. His concern was echoed in testimony the committee heard from experienced FBI Special Agents, including a unit chief in the FBI's own Office of Professional Responsibility, who told us of a ``club'' mentality among some Bureau executives who viewed any criticism or change as a threat to their careers. If there was one message from these witnesses, it was that FBI executives needed to be more willing to admit their mistakes. Too often their response was to shield the Bureau from embarrassment by sacrificing accountability and needed reform. For example, Senator Danforth testified that the FBI helped fan the flames of conspiracy theories at Waco by covering up evidence that it used pyrotechnic rounds, even though they had nothing to do with starting the fire. The FBI culture demanded covering up rather than admitting a mistake. Of course, as the FBI painfully discovered, the price for circling the wagons in this way can be the loss of public confidence. The Justice Department Inspector General is in a position to conduct an independent investigation that enables the Attorney General and the FBI Director to hold FBI personnel accountable and learn the necessary lessons from mistakes. When Director Mueller was asked at his confirmation hearing about a separate FBI Inspector General, he replied, ``If I were the Attorney General I might have some concern about a separate Inspector General feeding the perception that the FBI was a separate institution accountable only to itself. And I'm not certain in my own mind whether or not what the accountability you seek cannot be discharged by an Inspector General with appropriate personnel in the Department of Justice, as opposed to establishing another Inspector General in the FBI.'' Attorney General Ashcroft decided to follow this route, and Title I of the FBI Reform Act codifies his action. The committee also heard disturbing testimony about retaliation against FBI Agents who are tasked to investigate their colleagues or who discuss issues with the Congress, either directly or through cooperation with the General Accounting Office, which assists in congressional oversight. Therefore, Title II is important to ensure that the Federal whistleblower protection laws protect FBI personnel to the greatest extent possible. Senator Grassley deserves great credit for stressing the need for this provision and developing the language in the bill. The bill extends whistleblower protections to employees who report wrongdoing to their supervisors or to Congress, and ensures that whistleblowers will enjoy basic procedural protections, including the normal procedures and judicial review provided under the Administrative Procedure Act, if they are subjected to retaliation. It also ensures that those who report wrongdoing to the Office of the Special Counsel have access to the normal Merit System Protection Board rights if retaliated against. Title VII addresses the issue of a double standard for discipline of senior executives. Internal investigations must lead to fair and just discipline. A troubling internal FBI study that was released at the committee's July hearing documented a double standard at work, with senior FBI executives receiving a slap on the wrist for the same kind of conduct that would result in serious discipline for lower level employees. At his confirmation hearing, Director Mueller said it is ``very important that there be no double standards in accountability. I know there have been allegations that senior FBI officials are sometimes treated more leniently than more junior employees. Any such double standard would be fundamentally unfair and enormously destructive to employee morale.'' Title VII embodies that principle by eliminating the disparity in authorized punishments between Senior Executive Service members and other Federal employees. The Hanssen espionage case was a tremendous shock to the nation and to the FBI. A trusted and experienced FBI Supervisory Special Agent was found to have sold many of the nation's most sensitive national security secrets to the Soviet Union and to Russia. Just as the Ames case forced the CIA to revamp its security program after 1994, the Hanssen case requires major changes in FBI security. Former FBI and CIA Director William Webster chairs a commission that is completing its review of lessons learned from the Hanssen case for the Attorney General and the FBI Director. It is my hope that Judge Webster will testify before the Judiciary Committee when his report is complete to present his unclassified findings and recommendations. The FBI Reform Act includes provisions that are based on the Judiciary Committee's initial oversight hearings and we remain open to incorporating the considered recommendations and reforms for which the Webster Commission may call. Title III of the FBI Reform Act would establish a Career Security Program in the FBI and Title IV would establish an FBI Counterintelligence Polygraph Program for screening personnel in exceptionally sensitive positions with specific safeguards. In addition, as a result of concerns about terrorist attacks against FBI targets, Title V would authorize an FBI police force as part of comprehensive security enhancements. The FBI Career Security Program would bring the FBI into line with other U.S. intelligence agencies that have strong career security professional cadres whose skills and leadership are dedicated to the protection of agency information, personnel, and facilities. The challenges of espionage, information technology vulnerability, and the FBI's high profile as a target of terrorist attack require that the FBI match or exceed the best security programs in the intelligence and national security community. This can only be achieved by a fundamental change that reverses the tendency, found too often in civilian agencies, to treat security as a secondary mission and security assignments as obstacles to career advancement. Before the Hanssen case, an FBI Special Agent experienced as a criminal investigator might be assigned for a few years to a security position and then move on without building continuity of security expertise. Turnover in FBI security work was high, the top rank was Headquarters Section Chief. Director Mueller has changed direction by creating a Assistant Director position to head a new Security Division and supporting the principle of a Security Career Program. I support this change. Title II of the FBI Reform Act provides the statutory mandate and tools to achieve this goal based on the experience of the Defense Department in reforming its acquisition career program. The key requirements are leadership and accountability in a Security Director, creation of security career program boards, designation of security positions, identification of security career paths requiring appropriate training and experience, and development of education programs for security professionals. To help ensure that security professionals gain stature comparable to Special Agents, the program would limit the preference for Special Agents in considering persons for security positions. FBI security managers would complete a security management course accredited by the Joint Security Training Consortium recently formed by the Intelligence Community and the Department of Defense. The FBI Counterintelligence Polygraph Program that would be established under Title III of the Act also addresses the security issue. Title III recognizes the security value of polygraph screening, but provides specific safeguards for those who may be subject to adverse action based on polygraph exams. Screening procedures must address the problems of ``false positive'' responses, limit adverse actions taken solely by reason of physiological reactions in an examination, ensure quality assurance and control, and allow subjects to have prompt access to unclassified reports on examinations that relate to adverse actions against them. Title III is based upon the simple conviction that increased security and protection of employee rights can and must coexist at the FBI. Title IV of the Act provides long overdue statutory authorization for a permanent FBI Police force, to protect critical FBI facilities. It would provide the men and women who currently guard the highest risk targets with the same pay and benefits as members of the Uniformed Division of the United States Secret Service. Today the FBI police force operating under delegated authority from the General Services Administration has been unable to retain skilled personnel at a rate commensurate with the threat and the need for experienced leadership. The FBI Reform Act would bring the FBI police force generally into line not only with the Uniformed Division of the Secret Service, but also with the Capitol Police and the Supreme Court police. It is intended to be consistent with the current Memorandum of Agreement between the FBI and the Metropolitan Police Force of the District of Columbia with respect to FBI buildings and grounds covered in Washington, D.C.. The Attorney General has directed Deputy Attorney General Thompson to lead a management review of the FBI, while Director Mueller has already begun reorganizing the Bureau. Congress must participate in reviewing the FBI's structure and identifying its future priorities. The FBI is being called on today to protect the national security from terrorist and intelligence threats mounted from abroad. FBI investigations now extend overseas far more often because of our government's decision to use law enforcement as an instrument of national security along with diplomacy, military deployments, and intelligence operations. At the same time, it must continue with other uniquely Federal areas of enforcement. Title VI requires a set of reports that would enable Congress to engage the Executive branch in a constructive dialogue building a more effective FBI for the future. To help Congress participate in charting the FBI's course, Title VI directs the Attorney General to submit a comprehensive report on the legal authorities for FBI programs and activities. In the late 1970s the Judiciary Committee considered enactment of a legislative charter for the FBI that would spell out its authorities and responsibilities. That proposal was set aside in 1980 despite determined efforts by then- Judiciary Committee Chairman Kennedy, Judge Webster and Attorney General Civiletti to reach agreement. The time is ripe to revive consideration of this effort. In addition to a comprehensive charter, Congress should consider whether the FBI should continue to have responsibility for the broad range of investigations that it is currently expected to conduct. I believe we have gone too far in federalizing criminal law enforcement and that more responsibilities which are not uniquely federal can be transferred back to the states. In addition, even within the Federal law enforcement family, numerous agencies perform redundant functions. The Attorney General's report would recommend whether the FBI should continue to have all its current investigative responsibilities, whether existing legal authority for any FBI program or activity should be modified or repealed, and whether the FBI must or should have express statutory authority for new or existing programs or activities. Title VI also recognizes that the task of modernizing FBI's information technology and management is as important as setting the FBI's future missions. Judiciary Committee oversight hearings have documented, and Director Mueller has acknowledged, that the FBI must overcome years of neglect in this regard. Congress is providing the funds, especially in the FY 2002 Counterterrorim Supplemental for technology assistance. We must ensure, however, that the FBI can and does use these funds effectively. There is concern that the FBI may need greater flexibility than is allowed under current law to procure new technologies. Congress also needs to see detailed plans as to how the FBI plans to update its information technology systems. Unfortunately, the Department of Justice and the FBI have not provided quarterly status reports on the principal FBI computer upgrade program, known as TRILOGY, as requested in the Appropriations act for FY 2001. Title VI directs the Attorney General to address these concerns in a comprehensive report on FBI information management and technology. Finally, Title VI requires the Comptroller General to investigate and complete a report on how statistics are reported and used by Federal law enforcement agencies, including the FBI. Senator Grassley has focused attention on the question whether the FBI and other agencies may be double-counting criminal investigations and arrests in the reporting of accomplishments. We also need to ascertain whether the FBI and other agencies properly use the statistics which they compile in making management decisions. It is important to get the facts and recommendations that put the FBI into the context of the full spectrum of Federal law enforcement agencies. Title VI ensures that the GAO can complete this important task by requiring agencies to comply with its requests for the information that is necessary to assist in preparing this report. The legislation which Senator Grassley and I introduce today is just one part of a bipartisan, hands-on approach to FBI reform. The committee plans additional oversight hearings to consider the Justice Department Inspector General's report on the belated production of documents in the Oklahoma City bombing case and the report of Judge Webster's Commission on the security lessons of the Robert Hanssen espionage case. The committee also intends to hear from Director Mueller and Deputy Attorney General Thompson on their response to these reports and on their actions and goals in reorganizing the FBI and charting its management course for the future. At the same time, we are focusing oversight attention on key aspects of FBI and law enforcement performance in connection with the September 11 terrorist attacks and the lessons learned for developing an effective counterterrorism and homeland security program. As contemplated by the sunset provisions in the USA PATRIOT Act, we must monitor the implementation of new surveillance and investigative powers provided to strengthen counterterrorism efforts and, in some provisions, law enforcement and counterintelligence generally. The FBI Reform Act is designed to strengthen the FBI as an institution that has a unique role as both a law enforcement agency and a member of the intelligence community. As the Judiciary Committee continues its oversight work and more is learned about recent FBI performance, additional legislation may prove necessary. Especially important will be the lessons from the attacks of September 11, 2001, the anthrax attacks, and implementation of the USA PATRIOT Act and other counterterrorism measures. Strengthening the FBI cannot be accomplished overnight, but today, with the introduction of FBI Reform Act, we take an important step into the future. For all of these reasons, I am pleased to introduce this legislation with Senator Grassley. I ask unanimous consent that the text of the bill be printed in the Record along with the sectional analysis.

Mr. LEAHY

Mr. LEAHY. Madam President, I am pleased to join with my colleagues this afternoon to pay tribute to Senator Edward Kennedy on his birthday. I am proud to call Ted Kennedy a colleague, a friend, a mentor and a neighbor. I arrived in the Senate as the most junior member in 1974. Ted Kennedy, only a few years my senior, had already been in the Senate for 12 years. He generously provided me with guidance on everything from policy matters to committee selections. Over the course of his career Ted Kennedy has championed the cause of those Americans living on the margins; those individuals in our society who for whatever reasons are denied basic human necessities like safe housing, nourishing food, a steady income, or access to health care. His dedication over the past decades has been unwavering, and as we see every day here in the Senate, continues to be unwavering. Ted and I have worked together on many issues over the years. In fact we still serve together on the Judiciary Committee, which he preceded me in chairing at one time. Whether it is in supporting heating assistance for low-income people, so essential to surviving the cold winters that we experience in New England, or in championing nutrition programs, I have always admired Ted's knowledge of the issues, and his tenacity in pursuing that which he believes is right. Through his service on the Health, Education and Labor Committee, whether as ranking member, or chairman, Ted Kennedy has continually strived to improve Americans' access to health care with the hope that one day no American will be without the basic services that so many of us take for granted. He has fought to improve the education of our children, with the knowledge that a good education is the basic building block to their future success, reducing the chances of living in poverty by ensuring access to quality employment. And he has consistently advocated on behalf of the worker, with the understanding that no person should have to work 40 hours a week and still live in poverty. I have valued the time that I have served with Ted Kennedy in the Senate. Over this period, hundreds of Senators have had the privilege of serving their Nation and the people of their state, but few members have achieved the distinction of truly making an impact on the lives of millions of Americans. Ted Kennedy has done that and oftentimes for those Americans who do not have a powerful voice in Washington. Several years ago, the Washington Post Magazine had a story about Ted Kennedy that entitled him the ``King of the Senate.'' Our Founding Fathers tossed off the shackles of the monarchy over 200 years ago but it was an appropriate acknowledgement that Ted Kennedy is a lion at the gate protecting the interests of working class Americans.

Mr. LEAHY

Mr. LEAHY. Madam President, I understand this amendment is going to be set aside. I am glad to see that. This amendment is premature. It would be an extension of the Voting Rights Act absent any hearings of any sort. We have the current difficulty, as we have seen, of an extremely activist U.S. Supreme Court which basically acts as a kind of super legislature and has been setting aside act after act of the Congress, even some that have had years of hearings. I would be concerned that when they set aside acts of Congress passed by very solid majorities, both Republicans and Democrats, following years of hearings, what they might do on something like this that has not had a hearing. The Supreme Court's 1997 decision in City of Boerne v. Flores provides an instructive example. In that case, the Court distinguished between the Religious Freedom Restoration Act of 1993--which it invalidated--and the Voting Rights Act. The Court criticized the lack of evidence of religious bigotry Congress had adduced to support its passage of the RFRA. Conversely, it said, Congress had developed a record of widespread bigotry to support its passage of the Voting Rights Act. I believe the Court overstepped its bounds and thwarted Congress' will through this decision, and I fear the same could happen if we hastily make the Voting Rights Act permanent without establishing an ample record of why such a decision is necessary. There is no need for such haste--we should make the Voting Rights Act permanent, but we should do it in a way that would withstand challenge before even the most skeptical court. Am I correct that the amendment has now been withdrawn?

Mr. LEAHY

Mr. LEAHY. Mr. President, I see nobody seeking recognition at the moment. I ask unanimous consent that I may speak as in morning business for such time as I may consume.

Mr. LEAHY. Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. LEAHY

Mr. LEAHY. Mr. President, last night, the Senate voted to confirm three additional nominees to the Federal district courts: James Gritzner from Iowa, Richard Leon from Maryland, who will serve as a judge on the District Court for the District of Columbia, and David Bunning from Kentucky. With these votes, the Senate will have confirmed nine judges since beginning the second session three weeks ago. With these confirmations, the Senate will have confirmed 37 judges since the change in majority last June. That number exceeds the number of judges confirmed in all 12 months of 1997 or 1999 and, of course, more than during the entire 1996 session. I would, again, urge the White House to work with home-state Senators, to work with Democratic and as well as Republican Senators, and to send nominees like James Gritzner, who received bipartisan support from his home-state Senators. With the confirmation of Judge Gritzner, the Senate has confirmed two Federal judges from Iowa this week, the other being Judge Michael Melloy for the United States Court of Appeals for the Eighth Circuit. The Judiciary Committee moved quickly on these nominations. Both Judge Gritzner and Judge Melloy participated in the first nominations hearing of this session, which was the first confirmation hearing held in January in more than half a decade. They were reported favorably by the Committee at the earliest possible Executive Business Meeting this year, on February 7, and they are now confirmed, just one week later. Indeed, Judge Melloy's confirmation filled a judicial emergency vacancy. That seat on the Court of Appeals for the Eighth Circuit, which includes eight states, Iowa, Arkansas, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, has been vacant since May 1, 1999. I recall that it was not so long ago, in 2000, when the Senate was under Republican control, that another nominee to this very seat on the Eighth Circuit, Bonnie Campbell, did not receive the courtesy of a vote by the Committee following the hearing on her nomination. She did not receive a vote due to the previous policy of allowing anonymous holds to be placed on nominees, even though in her case, both of her home- state Senators, one a Democrat and the other a Republican, supported her nomination. Bonnie Campbell, the former Attorney General of Iowa, did not receive the courtesy of a vote, up or down, during the 382 days between her nomination by President Clinton and the time that the Bush Administration withdrew her name. In contrast, we moved expeditiously to consider and confirm Judge Melloy's nomination to the Eighth Circuit. Judge Melloy's confirmation eliminated the judicial emergency vacancy in that Circuit caused, in part, by the Committee's failure to act on Bonnie Campbell's nomination when Republicans controlled the Senate and the confirmation process. Judge Melloy was the seventh Court of Appeals nomination confirmed by the Senate in the last seven months. That is seven more Court of Appeals judges than a Republican majority confirmed in the 1996 session, and as many as were confirmed in all of 1997 and in all of 1999. I think that the last District Court Judge confirmed in Iowa was Judge Robert Pratt in 1997. Nominated initially in early August 1996, Judge Pratt was not confirmed until late May the following year, more than nine months after his initial nomination. I am glad that the Committee and the Senate were able to act more quickly than that with respect to Judge Gritzner. In connection with both Iowa nominees confirmed this year, I thank the Senators from Iowa for working with the Committee. I especially appreciate the kind words of the senior Senator, Senator Grassley, both at the Committee consideration and in connection with these confirmation. Last night, the Senate also confirmed Richard Leon to the United States District Court for the District of Columbia. This is the third confirmation to this District Court considered by the Senate since I became Chairman last summer. Indeed, nominees to the District of Columbia District Court were among those included in our unprecedented hearings during the August recess last year. I thank Representative Eleanor Holmes Norton for working closely with the Committee to fill all three vacancies that had existed in this Federal court. Richard Leon's nomination was fairly and expeditiously considered by the Judiciary Committee and the Senate. His nomination was received last September, the ABA peer reviews were completed favorably in November, the Judiciary Committee held a hearing on his nomination during the first week the Senate was in session in January, his nomination was promptly considered by the Committee and reported favorably to the Senate last week, and last night the Senate confirmed his nomination to fill the last current vacancy on the United States District Court for the District of Columbia. Richard Leon received a unanimous well-qualified rating from the ABA peer reviews and received high recommendations from members of the legal community in the District of Columbia. Of course, during the years preceding the change in majority, two nominees to the District Court for the District of Columbia, James Klein and Rhonda Fields, never received a hearing before the Committee or votes on their nominations. In fact, James Klein's nomination was pending for almost four years without a hearing during both the 105th and 106th Congresses. Despite Representative Norton's strong and consistent efforts during those years, we were unable to obtain any action in connection with the vacancies that we have now successfully filled. Judge Leon will join Judge Bates and Judge Walton. Last night the Senate also confirmed the nomination of David Bunning to a vacancy in the Eastern District of Kentucky. Since the elections in November 2000, three vacancies have arisen on the Eastern District bench. With this confirmation, the Senate will have acted to fill all three. I scheduled a hearing for Karen Caldwell just six days after her file was complete. Her nomination was reported by the Committee 16 days later, and only 25 days after her file was complete, Judge Karen Caldwell was confirmed by the Senate. Danny Reeves, another nominee for that same district, was able to have a hearing within 40 days of his file being completed, was voted out of Committee only a few weeks after that, and he was confirmed 69 days from the time all his paperwork was complete. Indeed, we proceeded to confirm the first two nominees to the bench of the Eastern District of Kentucky so quickly that they had to delay being sworn in and assuming their judicial duties in order to wind down their legal practices. This stands in sharp contrast to the length of time it took to get nominees hearings and confirmations in the recent past. During the last six years of the Clinton Administration, it took an average of about 150 days to move a district court nominee to confirmation. I am proud that we have been able to do better since last July. The hearing on the Bunning nomination included testimony by his home- state Senators as well as testimony by representatives from the American Bar Association's Standing Committee. While a majority of the ABA Committee found the nominee not qualified and a minority found him to be qualified for the federal bench, three United States District Court Judges and a former United States Attorney testified in support of his confirmation. Yesterday, the Senate acted to confirm the President's nomination, as we have with a number of other nominees who received mixed peer review ratings. For 50 years, beginning with the Eisenhower Administration and including the Clinton Administration, the ABA had provided a valuable public service to Presidents as they determined whom to nominate to the federal bench. In addition, the Senate has had the benefit of the ABA peer reviews. No Senator is bound by the recommendations of the ABA. As I have said before, it is unfortunate that President Bush decided to shift the ABA's role in the pre-nomination process, but I am grateful that the ABA has agreed to continue to provide their evaluations to the Senate Judiciary Committee. We have always valued their contribution to the process and the willingness of the members of the Standing Committee to volunteer their time, efforts and judgment to this important task. I congratulate each of the successful nominees and their families on their Senate confirmations. I intend to notice another confirmation hearing for judicial nominations for February 26. Even though this is a short month with a week's recess, the Committee will hold a second hearing involving judicial nominees in February. This will be the first time in four years that the Committee will have held two February hearings for judicial nominees.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to discuss two disturbing and shameful milestones for our Nation, one that we reached this past December and one that is fast approaching. The milestone we have reached: 100 people in the United States have now been exonerated through the use of DNA testing. The milestone that approaches: The 100th exoneration of a death row inmate. We can no longer ignore the fact that innocent people can, and do, get convicted in our country, and in some cases they are sentenced to death. We need to focus on these cases. We need to learn from them. And we need to do something about them. This is not a matter of whether you are for or against the death penalty, it is a matter of common conscience for our Nation. So let me turn, first, to milestone No. 1, the 100th DNA exoneration. In December 2001, a man named Larry Mayes became the 100th person in the United States to be exonerated by postconviction DNA testing. Mayes served 21 years in Indiana's prisons for a rape and a robbery--21 years for a rape and a robbery--but a rape and a robbery he did not commit. For 21 years an innocent man sat behind bars. How was he exonerated? Was it by brilliant lawyers? Was it by the justice system recognizing a mistake? No. It was by law students at the Cardozo Law School's Innocence Project. They spent years searching for the rape kit that had been used at trial, only to be told it had been lost. But, fortunately--and, actually, fortuitously--the rape kit eventually resurfaced, and DNA testing proved what Mayes had been saying all along to anybody who would listen: He was the wrong guy. This has become a familiar story. You can hardly pick up a paper these days without reading about another person freed by DNA testing. Larry Mayes was No. 100, but No. 101 was not far behind. Shortly after Mayes was released, Indiana prosecutors asked a court to vacate the conviction of another man, Richard Alexander, after DNA tests persuaded them of his innocence. Like Mayes, Alexander was officially cleared of all charges and released. Just last week we learned that DNA tests had cleared yet another man, Bruce Godschalk, although the Philadelphia prosecutors initially refused to let him out of prison. He was finally released yesterday, after 15 years of what he called ``a living hell.'' Attorney General Ashcroft has referred to DNA testing as a kind of truth machine, which can ensure justice both by identifying the guilty and by clearing the innocent. The Attorney General and I agree on this, and I think most prosecutors would agree on this. I had the privilege of being a prosecutor for 8\1/2\ years. I know nothing worried me more--this would be similar for any good prosecutor--than thinking that you might charge the wrong person. You wanted to make sure the person you charged was guilty. You do everything possible to make sure that you do not put into the system somebody who is innocent. Because the fact is that in many cases, the prosecutor is going to get a conviction no matter what. That is why some prosecutors have taken the initiative when it comes to DNA testing, by systematically reviewing their convictions with an eye toward identifying cases in which DNA testing may be appropriate, and then offering testing to the inmates in those cases. It is an interesting choice to make. These prosecutors understand that their job is not to get convictions but to get at the truth, whatever it might be, even if it means admitting error. It could be a two-edged sword, too, because you have some who will claim innocence but do not want the DNA testing because they know the claim may not be real. But for some who are there, the claim is real. And those in the criminal justice system must make every effort to make sure they have the right person. I applaud those prosecutors who, having secured a conviction, say, if you think DNA is going to prove differently, then we will give you the DNA test. Unfortunately, there are still some prosecutors and some courts that continue to resist requests for postconviction DNA testing. It took Bruce Godschalk 7 years to get access to the DNA evidence that showed his innocence, and weeks more before he was freed. When I prepared these remarks, he was still in prison. We committed ourselves to addressing this problem more than a year ago when Congress passed legislation in which we resolved to work with the States to assure access to postconviction DNA testing in appropriate cases. We can make good on our commitment in this session by passing the Innocence Protection Act, which I introduced last year with Senator Smith, Senator Susan Collins, and others, which now has 25 cosponsors in the Senate, more than 200 in the House. The bipartisan Innocence Protection Act proposes a number of basic commonsense reforms to our criminal justice system. One of the principal reforms is aimed at ensuring that people like Larry Mayes and Richard Alexander and Bruce Godschalk can get the DNA tests they need to prove their innocence. The need for Federal legislation could not be clearer. Just last month, the Fourth Circuit Court of Appeals held that convicted offenders do not have a constitutional right to postconviction DNA testing. They reversed a lower court ruling in the case of a man serving 25 years for a rape he claims he did not commit. The Fourth Circuit concluded that postconviction DNA testing must be conferred by either State or Federal legislation. When I first introduced the Innocence Protection Act in February of 2000, only two States, New York and Illinois, had any postconviction legislation dealing with DNA testing. Since then more than 20 States have acted. My cosponsors and I are gratified that our bill has been a catalyst for reform in many of these States, but there is much more to do. By passing the Innocence Protection Act, we can assure that the DNA truth machine is available nationwide to help remedy miscarriages of justice. We should also be doing more to fund the use of DNA technology. In December 2000, Congress authorized two new grant programs to help our State crime labs update their facilities and reduce the backlog of untested DNA evidence. Unfortunately, the administration has not requested any funding for one of these programs, and neither is fully funded. To make matters worse, the Justice Department recently decided to shelve its plans to make $750,000 in grants available for postconviction DNA testing. In a multibillion-dollar budget, the Justice Department said it could not make available a small amount to make sure that the people we have locked up are the right people. It is one thing to talk the talk at the Department of Justice; it is time for them to walk the walk. Certainly if they find that this cannot be funded when their budget comes before my committee, I will look very carefully at what things they believe should be funded. With more than 100 DNA exonerations nationwide, we can be pretty sure that more testing would uncover more wrongful convictions and save innocent lives. I hope the Department reconsiders its ill-founded decision and moves forward with this important program. Let me turn now to milestone No. 2. An estimated 99 people have been exonerated and freed from death row since 1973, according to the Death Penalty Information Center. If history is any indicator, another death row inmate will be exonerated in the next few months, bringing the total to 100. To put this in perspective, consider this: 2 years ago, when I first introduced the Innocence Protection Act, I pointed out the startling number of cases in which death row inmates had been exonerated after long stays in prison. The number then was 85. In just 2 years, another 14 people have been cleared of the crimes that sent them to death row. These are people convicted, on death row, waiting to take that last walk down to the death chamber and be executed, and only at the last minute we find, sorry, made a mistake, got the wrong guy. Gee, glad we didn't pull the switch. Most recently, in January, in the State of the distinguished Presiding Officer, prosecutors decided to drop all charges against Juan Roberto Melendez. He had spent 18 years on death row. A State judge overturned his conviction last year after determining that prosecutors in the original trial withheld critical information. Not long before Melendez was released, the State of Idaho released a man named Charles Fain, who had also served 18 years on death row. The Attorney General of Idaho, Alan Lance, deserves a great deal of credit for authorizing postconviction DNA tests in this case and then--when the tests came back in Fain's favor--asking a Federal court to throw out the conviction. I applaud the Attorney General for doing that. The third recent death exoneree was a man named Jeremy Sheets, who had served 4 years on Nebraska's death row. The prosecutors dropped all the charges against him after their State supreme court overturned the conviction. Some people would argue that exonerations like these prove that the system is working. If you sat for years and years and years on death row or spent 21 years in prison all for crimes you did not commit, all in cases where if people just checked the evidence they would know they have the wrong person, and then they open the door of the prison and say, sorry about that great chunk of your life, we will give you a new suit and a bus ticket out of here, you can leave now, would you say that is a system that is working? Families and lives are destroyed. In June of the year 2000, Professor James Liebman and his colleagues at the Columbia Law School released the most comprehensive statistical study ever undertaken in modern American capital appeals. They found that serious error permeates American's death penalty system, compelling courts to reverse more than two-thirds of all death verdicts. With the capital system collapsing under the weight of its mistakes, the risk of executing the innocent is shockingly high. Part II of the Columbia study, which was just released this week, reaffirms the fundamental conclusion of his first study--that the death penalty is fraught with errors and inconsistencies nationwide. But it also adds a new and disturbing twist: In a rigorous empirical examination, the new study shows that the States and counties that use the death penalty most are also the most error-prone, and the most likely to send innocent people to death row. When I read that, it sent a shiver up my spine. The States and counties that use the death penalty the most are the ones most likely to make mistakes. When the legal machinery of the death penalty system is broken, practice does not make perfect. It is leading to more mistakes. Can you imagine how long any commercial enterprise would last if it accepted and refused to correct failure rates like these? And this is not a commercial enterprise; here we are talking about life and death decisions. There is one other thing we should keep in mind. If the wrong person is on death row for a murder, if somebody is convicted of a murder they did not commit, that means that the real murderer is still running loose. Maybe everybody can feel comfortable that we have locked up somebody for that murder, but if there is still a killer on the loose, everything has broken down. Not only is an innocent man on death row, but a guilty man is running free. Thanks to the careful research of Professor Liebman and his team, responsible people from across the political spectrum are now united in acknowledging that the question is not whether the system is broken, but whether it can be fixed. Shortly after the Judiciary Committee held its most recent hearing on this subject last year, Supreme Court Justice Sandra Day O'Connor expressed skepticism about the administration of capital punishment in the Nation. She said: The system may well be allowing some innocent defendants to be executed. She went on to say: Perhaps it is time to look at minimum standards for appointed counsel in death cases and adequate compensation for appointed counsel when they are used. I could not agree more. In fact, the reforms suggested by Justice O'Connor mirror core components of the Innocence Protection Act. In addition to providing for postconviction DNA testing, our bill would establish a national commission to formulate reasonable minimum standards for ensuring competent counsel in capital cases. Ask any good prosecutor. They will tell you they want a good, competent counsel on the other side. You want to make sure you do not make mistakes. As a prosecutor, I might win a case only to have it go up on appeal and get thrown out because of incompetent counsel on the other side. Five years later, I will be retrying the case. You want to do it right. DNA tests, which have exonerated so many, are not as much a solution to the death penalty problem as they are a window, exposing the flaws of a broken system. We have to understand in many cases--perhaps most--there will be no DNA evidence. In many cases--perhaps most criminal cases--there are no fingerprints. This is not Perry Mason. There probably will not be any DNA or fingerprints. But where there is DNA evidence, it can show us conclusively, even years after a conviction, where mistakes have been made. And what it has shown us in case after case is that many of the mistakes that have landed innocent people in prison and on death row could have been avoided--and probably would have been avoided--if the defense counsel had been reasonably competent. Ensuring competent counsel is the single most important step we can take to get at the truth and protect innocent lives. By helping States improve the quality of legal representation in their life or death cases, the Innocence Protection Act strikes at the very heart of injustice in the administration of capital punishment. As I said when I began, it is not a question of whether you are for or against the death penalty. People of good conscience can and will disagree on the morality of the death penalty. But we all share the goal of preventing the execution of the innocent. I hope Senators will read the Columbia Law School study and consider the comments of Justice O'Connor. We should reflect on these two milestones and ask ourselves if we are satisfied with a system that condemns one innocent person to death for every 7 or 8 that it executes. It is past time for the straightforward reforms of the Innocence Protection Act.

Mr. LEAHY

Mr. LEAHY. Mr. President, on November 13, 2001, President Bush signed a military order authorizing the use of military commissions to try suspected terrorists. This order stimulated an important national debate and led to a series of Judiciary Committee hearings with the Attorney General and others to discuss the many legal, constitutional, and policy questions raised by the use of such tribunals. Our hearings, and the continued public discourse, helped to clarify the scope of the President's order and better define the terms of the debate. For example, the Judiciary Committee held a hearing on November 28, 2001, at which several legal experts challenged the validity of the military order. Philip Heymann of Harvard Law School, a former Deputy Attorney General, testified that the order was so broad that it amounted to a dangerous claim of executive power. In his view, the order improperly bypassed congressional review, undermined confidence in our civil justice system, and jeopardized relationships with our allies abroad. Retired Air Force Colonel Scott Silliman who is now at Duke Law School, questioned the President's authority to use military commissions with respect to the September 11 attacks absent authorizing legislation by Congress. Professor Silliman also echoed the comments of Professor Heymann, arguing that tribunals convened under the order could adversely impact our international credibility as a Nation under the rule of law. On December 4, 2001, Senator Schumer chaired another important hearing on the issue of military commissions. Harvard Law Professor Laurence Tribe testified at that hearing that ``Congress alone can avoid the constitutional infirmities that plague the Military Tribunal Order of November 13.'' Professor Tribe argued for the establishment of procedural guidelines to ensure the protection of defendants' due process rights, and called for Congress to set limits in consultation with the President. He cautioned that if the Administration acted on its own--under authority that Professor Tribe believed was constitutionally infirm, any convictions could later be overturned by the courts, with the result that dangerous individuals could be set free. By contrast, convictions obtained by military tribunals constituted under the authority of the Congress and the President acting together would more likely be shielded from constitutional challenge on appeal. At the same December 4 hearing, Cass Sunstein of the University of Chicago Law School testified that ``from the standpoint of both constitutional law and democratic legitimacy, it is far better if the President and Congress act in concert,'' adding that ``the executive branch stands on the firmest ground if it acts pursuant to clear congressional authorization.'' Professor Sunstein suggested that Congress limit the scope of military tribunals by allowing the use of military tribunals ``only on certain essential occasions.'' Finally, on December 6, the Judiciary Committee heard from Attorney General Ashcroft on military commissions and a number of other unilateral actions taken by the Administration last fall. I believe that we had a constructive conversation that day, despite our disagreements on substantive points. The Attorney General took issue with anyone who dared question the thinking of the executive branch on such topics, charging them with ``fearmongering'' and aiding the terrorists. I would note, however, that several members of the Committee, including some of my colleagues from the other side of the aisle, suggested to the Attorney General that if military tribunals were used, they should provide a number of basic due process guarantees. Suggestions like these, coming from both Republicans and Democrats, are not intended to bait the Administration. Rather, constructive criticism can be, should be and has been useful in developing sound policy that can better protect Americans and American soldiers, particularly when they are serving abroad. The Attorney General testified at our hearing on December 6 that the President does not need the sanction of Congress to convene military commission, but I disagree. Military tribunals may be appropriate under certain circumstances, but only if they are backed by specific congressional authorization. At a minimum, as the distinguished senior Senator from Pennsylvania stated on this floor on November 15, ``the executive will be immeasurably strengthened if the Congress backs the President,'' Clearly, our government is at its strongest when the executive and legislative branches of government act in concert. We demonstrated this unified strength in negotiating the USA Patriot Act last fall. The Congress, the White House and the Department of Justice worked intensively for seven weeks to craft a bill that provided law enforcement agencies with the tools they said were needed to fight terrorism while preserving American values and democratic principles. In that same spirit, and with my friend, the senior Senator from Illinois, I am today introducing the Military Tribunal Authorization Act. This legislation would provide the executive branch with the specific authorization it now lacks to use extraordinary tribunals to try members of the al Qaeda terrorist network and those who cooperated with them. Specifically, this legislation authorizes the use of ``extraordinary tribunals'' for al Qaeda members, and for persons aiding and abetting al Qaeda in terrorist activities against the United States, who are apprehended in, or fleeing from, Afghanistan. It also authorizes the use of tribunals for those al Qaeda members and abettors who are captured in any other place where there is armed conflict involving the U.S. Armed Forces. Like the November 13 order, the Military Tribunal Authorization Act exempts U.S. citizens from the jurisdiction of the tribunals, as well as those individuals determined to be prisoners of war under the Geneva Convention. The bill also exempts individuals arrested while present in the United States, since our civilian court system is well-equipped to handle such cases. These exemptions are consistent with the Administration's treatment of Zacharias Moussaoui, the suspected 20th hijacker in the September 11 attacks, who is awaiting trial in Federal district court. A second terrorist suspect, Richard Reid, the so-called ``shoe bomber,'' is also being tried in Federal district court. In fact, one of the nine charges against Reid, ``attempted wrecking of a mass transportation vehicle,'' is a new anti-terrorism offense that was created by the USA Patriot Act. Finally, the Administration has decided to bring Federal criminal charges against John Walker Lindh, who allegedly took up arms against Americans to fight with al Qaeda and the Taliban in Afghanistan. A significant question raised about the November 13 order is that it vests the President with plenary and unreviewable discretion to determine who is subject to trial by military tribunal. The President's order also implied that those who were arrested under its terms could be held indefinitely. Detainees were to receive a ``full and fair trial,'' but no explanation of the terms ``full'' and ``fair'' is offered. While the Administration has deferred providing any explanation to the development of regulations by the Secretary of Defense, requests for an opportunity to review and be consulted about the draft regulations have been denied. This leaves introduction of legislation showing how military tribunals may be constituted to comport with constitutional mandates and values as one of the few avenues to inform the process in development of regulations. The Military Tribunal Authorization act defines the jurisdiction and procedure of tribunals in a way that ensures a ``full and fair'' trial for anyone detained. Under the bill, the Secretary of Defense is charged with elaborating on the procedures that the tribunals must follow and publishing any draft regulations in the Federal Register. First, the bill makes clear that tribunals may adjudicate violations of the law of war, including international laws of armed conflict and crimes against humanity, targeted against U.S. persons. Wars have rules, as defined by the Geneva Conventions and other international agreements. These rules protect civilians from harm and define how captured soldiers must be treated Under the bill, individuals who violated those rules by targeting innocent American civilians can face trial in a military tribunal. In addition, individuals who committed crimes against humanity, such as murder, torture, or other inhumane acts, may face charges in a tribunal. Second, on the length of detention, the bill authorizes detention of individuals subject to military tribunals for as long as the President certifies that the United States is in armed conflict with al Qaeda or Taliban forces in Afghanistan or elsewhere, or that an investigation, prosecution or post-trial proceeding against the detainee is ongoing. The certification must be made every six months. Third, on the conditions of confinement, the bill requires that detainees be ``treated humanely,'' which is consistent with the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988. this includes adequate food, water, shelter, clothing and medical treatment, hygienic conditions, the necessary means of personal hygiene, and the free exercise of religion. Detention determinations and the conditions of detention are subject to review by the Court of Appeals for the D.C. Circuit. Fourth, the bill incorporates basic due process guarantees, including the right to independent counsel. In imposing this requirement, I am not suggesting that suspected terrorists deserve special treatment. Rather, the bill follows well-established standards for indigent defense. In the first of its ``Ten Commandments'' of public defense programs, the Department of Justice calls for full independence of defense counsel and judicial functions. The department's ``Ten Commandments'' also require that counsel's ability, training, and experience must be matched to the complexity of the case. Providing independent counsel and judicial review is critical to ensuring that any convictions are free from political influence. An independent process with experienced counsel will also safeguard against otherwise valid convictions being overturned for violations of due process or incompetent counsel. Under the terms of this bill, tribunals would be required to apply reasonable rules of evidence to ensure that material admitted at trial was of probative value. Defendants would be presumed innocent until proven guilty, and proof of guilt must be established beyond a reasonable doubt. Defendants may not be compelled to testify against themselves. Finally, defendants could appeal their convictions and sentences to a higher tribunal, the U.S. Court of Appeals for the Armed Forces. These procedures do not, as some have claimed, provide greater protections to suspected terrorists than we offer our own soldiers. These are, rather, the very basic guarantees provided under various sources of international law, including the Geneva Conventions, the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the Statute of the International Criminal Tribunal for former Yugoslavia, among others. Several of the procedural protections are also drawn from the U.S. Rules of Courts- Martial and the Military Rules of Evidence. In addition, the trial procedure statute of the Uniform Code of Military Justice, which is cited in the President's military order, recommends that the President apply to military commissions the principles of law and rules of evidence that are generally recognized by the federal district courts. I submit for the record a list the international conventions that serve as sources for the eighteen procedural protections included in my bill. As the ABA resolution urges, in establishing military tribunals, we should ``give full consideration to the impact . . . as precedents in . . . the use of international legal norms in shaping other nations' responses to future acts of terrorism.'' Respecting those international legal norms, will redound to the benefit of Americans. It is important to note that last week the President reevaluated his position on a related issue. He decided to apply the Geneva Conventions to Taliban captives. This decision sends a signal to the world that the United States respects the Geneva Conventions and expects them to be applied to American soldiers captured overseas. I commend Secretary Powell, who supported this application of the Geneva Conventions. I also commend Secretary Rumsfeld, whose draft rules on military commissions contained a number of important procedural protections. Both Secretaries Powell and Rumsfeld have worked to bring the original military order and subsequent decisions over detention within the framework of international law. I urge the Administration to follow this example of flexibility and inclusiveness by working with Congress to establish tribunals that are authorized by statute and consistent with international law. Finally, the bill comes down squarely on the side of transparency in government by providing that tribunal proceedings should be open and public, and include public availability of the transcripts of the trial and the pronouncement of judgment. The only exceptions are for demonstrable reasons of national security or the necessity to secure the safety of observers, witnesses, tribunal judges, counsel or other persons. In sum, the Military Tribunal Authorization Act establishes a legal framework for proceedings that are truly ``full and fair.'' The provisions of this bill track very closely with recommendations arrived at independently by the American Bar Association and issued on February 4, 2002. The ABA calls on the executive branch to provide due process guarantees similar to those used in courts-martial, including a number of rights included in this bill. It also urged the Administration to work with Congress in defining the rules for military commissions. Passage of authorizing legislation would ensure the constitutionality of military tribunals and protect any convictions they might yield, while at the same time showing the world that we will fight terrorists without sacrificing our principles. We can also show by example how we expect our soldiers and nationals to be treated if they are swept into foreign courts or tribunals. Our government is at its strongest when its executive and legislative branches act in concert. I provided earlier drafts of this legislation to the Attorney General and Secretary of Defense, but received no response. With the introduction of this bill, I again invite the Administration's cooperation and comment. I ask unanimous consent that the text of the bill and the sectional analysis be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, on November 13, 2001, President Bush signed a military order authorizing the use of military commissions to try suspected terrorists. This order stimulated an important national debate and led to a series of Judiciary Committee hearings with the Attorney General and others to discuss the many legal, constitutional, and policy questions raised by the use of such tribunals. Our hearings, and the continued public discourse, helped to clarify the scope of the President's order and better define the terms of the debate. For example, the Judiciary Committee held a hearing on November 28, 2001, at which several legal experts challenged the validity of the military order. Philip Heymann of Harvard Law School, a former Deputy Attorney General, testified that the order was so broad that it amounted to a dangerous claim of executive power. In his view, the order improperly bypassed congressional review, undermined confidence in our civil justice system, and jeopardized relationships with our allies abroad. Retired Air Force Colonel Scott Silliman who is now at Duke Law School, questioned the President's authority to use military commissions with respect to the September 11 attacks absent authorizing legislation by Congress. Professor Silliman also echoed the comments of Professor Heymann, arguing that tribunals convened under the order could adversely impact our international credibility as a Nation under the rule of law. On December 4, 2001, Senator Schumer chaired another important hearing on the issue of military commissions. Harvard Law Professor Laurence Tribe testified at that hearing that ``Congress alone can avoid the constitutional infirmities that plague the Military Tribunal Order of November 13.'' Professor Tribe argued for the establishment of procedural guidelines to ensure the protection of defendants' due process rights, and called for Congress to set limits in consultation with the President. He cautioned that if the Administration acted on its own--under authority that Professor Tribe believed was constitutionally infirm, any convictions could later be overturned by the courts, with the result that dangerous individuals could be set free. By contrast, convictions obtained by military tribunals constituted under the authority of the Congress and the President acting together would more likely be shielded from constitutional challenge on appeal. At the same December 4 hearing, Cass Sunstein of the University of Chicago Law School testified that ``from the standpoint of both constitutional law and democratic legitimacy, it is far better if the President and Congress act in concert,'' adding that ``the executive branch stands on the firmest ground if it acts pursuant to clear congressional authorization.'' Professor Sunstein suggested that Congress limit the scope of military tribunals by allowing the use of military tribunals ``only on certain essential occasions.'' Finally, on December 6, the Judiciary Committee heard from Attorney General Ashcroft on military commissions and a number of other unilateral actions taken by the Administration last fall. I believe that we had a constructive conversation that day, despite our disagreements on substantive points. The Attorney General took issue with anyone who dared question the thinking of the executive branch on such topics, charging them with ``fearmongering'' and aiding the terrorists. I would note, however, that several members of the Committee, including some of my colleagues from the other side of the aisle, suggested to the Attorney General that if military tribunals were used, they should provide a number of basic due process guarantees. Suggestions like these, coming from both Republicans and Democrats, are not intended to bait the Administration. Rather, constructive criticism can be, should be and has been useful in developing sound policy that can better protect Americans and American soldiers, particularly when they are serving abroad. The Attorney General testified at our hearing on December 6 that the President does not need the sanction of Congress to convene military commission, but I disagree. Military tribunals may be appropriate under certain circumstances, but only if they are backed by specific congressional authorization. At a minimum, as the distinguished senior Senator from Pennsylvania stated on this floor on November 15, ``the executive will be immeasurably strengthened if the Congress backs the President,'' Clearly, our government is at its strongest when the executive and legislative branches of government act in concert. We demonstrated this unified strength in negotiating the USA Patriot Act last fall. The Congress, the White House and the Department of Justice worked intensively for seven weeks to craft a bill that provided law enforcement agencies with the tools they said were needed to fight terrorism while preserving American values and democratic principles. In that same spirit, and with my friend, the senior Senator from Illinois, I am today introducing the Military Tribunal Authorization Act. This legislation would provide the executive branch with the specific authorization it now lacks to use extraordinary tribunals to try members of the al Qaeda terrorist network and those who cooperated with them. Specifically, this legislation authorizes the use of ``extraordinary tribunals'' for al Qaeda members, and for persons aiding and abetting al Qaeda in terrorist activities against the United States, who are apprehended in, or fleeing from, Afghanistan. It also authorizes the use of tribunals for those al Qaeda members and abettors who are captured in any other place where there is armed conflict involving the U.S. Armed Forces. Like the November 13 order, the Military Tribunal Authorization Act exempts U.S. citizens from the jurisdiction of the tribunals, as well as those individuals determined to be prisoners of war under the Geneva Convention. The bill also exempts individuals arrested while present in the United States, since our civilian court system is well-equipped to handle such cases. These exemptions are consistent with the Administration's treatment of Zacharias Moussaoui, the suspected 20th hijacker in the September 11 attacks, who is awaiting trial in Federal district court. A second terrorist suspect, Richard Reid, the so-called ``shoe bomber,'' is also being tried in Federal district court. In fact, one of the nine charges against Reid, ``attempted wrecking of a mass transportation vehicle,'' is a new anti-terrorism offense that was created by the USA Patriot Act. Finally, the Administration has decided to bring Federal criminal charges against John Walker Lindh, who allegedly took up arms against Americans to fight with al Qaeda and the Taliban in Afghanistan. A significant question raised about the November 13 order is that it vests the President with plenary and unreviewable discretion to determine who is subject to trial by military tribunal. The President's order also implied that those who were arrested under its terms could be held indefinitely. Detainees were to receive a ``full and fair trial,'' but no explanation of the terms ``full'' and ``fair'' is offered. While the Administration has deferred providing any explanation to the development of regulations by the Secretary of Defense, requests for an opportunity to review and be consulted about the draft regulations have been denied. This leaves introduction of legislation showing how military tribunals may be constituted to comport with constitutional mandates and values as one of the few avenues to inform the process in development of regulations. The Military Tribunal Authorization act defines the jurisdiction and procedure of tribunals in a way that ensures a ``full and fair'' trial for anyone detained. Under the bill, the Secretary of Defense is charged with elaborating on the procedures that the tribunals must follow and publishing any draft regulations in the Federal Register. First, the bill makes clear that tribunals may adjudicate violations of the law of war, including international laws of armed conflict and crimes against humanity, targeted against U.S. persons. Wars have rules, as defined by the Geneva Conventions and other international agreements. These rules protect civilians from harm and define how captured soldiers must be treated Under the bill, individuals who violated those rules by targeting innocent American civilians can face trial in a military tribunal. In addition, individuals who committed crimes against humanity, such as murder, torture, or other inhumane acts, may face charges in a tribunal. Second, on the length of detention, the bill authorizes detention of individuals subject to military tribunals for as long as the President certifies that the United States is in armed conflict with al Qaeda or Taliban forces in Afghanistan or elsewhere, or that an investigation, prosecution or post-trial proceeding against the detainee is ongoing. The certification must be made every six months. Third, on the conditions of confinement, the bill requires that detainees be ``treated humanely,'' which is consistent with the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, a resolution adopted by the United Nations General Assembly in 1988. this includes adequate food, water, shelter, clothing and medical treatment, hygienic conditions, the necessary means of personal hygiene, and the free exercise of religion. Detention determinations and the conditions of detention are subject to review by the Court of Appeals for the D.C. Circuit. Fourth, the bill incorporates basic due process guarantees, including the right to independent counsel. In imposing this requirement, I am not suggesting that suspected terrorists deserve special treatment. Rather, the bill follows well-established standards for indigent defense. In the first of its ``Ten Commandments'' of public defense programs, the Department of Justice calls for full independence of defense counsel and judicial functions. The department's ``Ten Commandments'' also require that counsel's ability, training, and experience must be matched to the complexity of the case. Providing independent counsel and judicial review is critical to ensuring that any convictions are free from political influence. An independent process with experienced counsel will also safeguard against otherwise valid convictions being overturned for violations of due process or incompetent counsel. Under the terms of this bill, tribunals would be required to apply reasonable rules of evidence to ensure that material admitted at trial was of probative value. Defendants would be presumed innocent until proven guilty, and proof of guilt must be established beyond a reasonable doubt. Defendants may not be compelled to testify against themselves. Finally, defendants could appeal their convictions and sentences to a higher tribunal, the U.S. Court of Appeals for the Armed Forces. These procedures do not, as some have claimed, provide greater protections to suspected terrorists than we offer our own soldiers. These are, rather, the very basic guarantees provided under various sources of international law, including the Geneva Conventions, the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the Statute of the International Criminal Tribunal for former Yugoslavia, among others. Several of the procedural protections are also drawn from the U.S. Rules of Courts- Martial and the Military Rules of Evidence. In addition, the trial procedure statute of the Uniform Code of Military Justice, which is cited in the President's military order, recommends that the President apply to military commissions the principles of law and rules of evidence that are generally recognized by the federal district courts. I submit for the record a list the international conventions that serve as sources for the eighteen procedural protections included in my bill. As the ABA resolution urges, in establishing military tribunals, we should ``give full consideration to the impact . . . as precedents in . . . the use of international legal norms in shaping other nations' responses to future acts of terrorism.'' Respecting those international legal norms, will redound to the benefit of Americans. It is important to note that last week the President reevaluated his position on a related issue. He decided to apply the Geneva Conventions to Taliban captives. This decision sends a signal to the world that the United States respects the Geneva Conventions and expects them to be applied to American soldiers captured overseas. I commend Secretary Powell, who supported this application of the Geneva Conventions. I also commend Secretary Rumsfeld, whose draft rules on military commissions contained a number of important procedural protections. Both Secretaries Powell and Rumsfeld have worked to bring the original military order and subsequent decisions over detention within the framework of international law. I urge the Administration to follow this example of flexibility and inclusiveness by working with Congress to establish tribunals that are authorized by statute and consistent with international law. Finally, the bill comes down squarely on the side of transparency in government by providing that tribunal proceedings should be open and public, and include public availability of the transcripts of the trial and the pronouncement of judgment. The only exceptions are for demonstrable reasons of national security or the necessity to secure the safety of observers, witnesses, tribunal judges, counsel or other persons. In sum, the Military Tribunal Authorization Act establishes a legal framework for proceedings that are truly ``full and fair.'' The provisions of this bill track very closely with recommendations arrived at independently by the American Bar Association and issued on February 4, 2002. The ABA calls on the executive branch to provide due process guarantees similar to those used in courts-martial, including a number of rights included in this bill. It also urged the Administration to work with Congress in defining the rules for military commissions. Passage of authorizing legislation would ensure the constitutionality of military tribunals and protect any convictions they might yield, while at the same time showing the world that we will fight terrorists without sacrificing our principles. We can also show by example how we expect our soldiers and nationals to be treated if they are swept into foreign courts or tribunals. Our government is at its strongest when its executive and legislative branches act in concert. I provided earlier drafts of this legislation to the Attorney General and Secretary of Defense, but received no response. With the introduction of this bill, I again invite the Administration's cooperation and comment. I ask unanimous consent that the text of the bill and the sectional analysis be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 2852

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to bring to the Senate's attention an issue that I hope we might continue to work on during the conference on the farm bill. Last year President Bush set a theme that we ``should not leave any child behind.'' While the world has certainly changed in the past year, I believe that one of the reasons we will succeed in the war against terrorism is that we understand the importance of leaving no child behind. It is my hope that as we work through this conference we will keep our children's health as a top priority. The Food Stamp Act provides assistance to millions of children living in the United States. In 1980, Congress removed Puerto Rico from the food stamp program as a budget-cutting initiative and established in its place the Nutrition Assistance Program, a block grant for Puerto Rico to provide a modified Food Stamp Program. The Nutrition Assistance Program in Puerto Rico known as NAP, provides support to over 400,000 children. Over the past year, Puerto Rico's Governor Sila Calderon and her administration have moved aggressively and voluntarily to complete implementation of an Electronic Benefits System for the nutrition program. The Commonwealth thus joins the 50 States as they modernize their food stamp distribution services to ensure authorized purchases by the individuals for whom the benefits were intended. They have worked effectively with the USDA's Food and Nutrition Service to strengthen the administration of the program to ensure that limited dollars are stretched to the maximum. However, as of 2000, the annual purchasing power of NAP was $147 million less than when it was enacted 22 years ago, compared to the cost of household food on the mainland. If you use the index measuring the increased cost of food in Puerto Rico, you find that the purchasing power of the program has fallen by almost $1 billion. The loss of purchasing power has real effects on real children. If you look at the NAP and compare it to the Federal Food Stamp Program, you find that the program, 1, does not provide similar benefits; and 2, the budget limitations have excluded many low-income children in Puerto Rico from participation in the program. For example, the Food Stamp Program's monthly income limitation is $1,531 for a family of three on the mainland and in the Virgin Islands, but the NAP program must limit participation in the program to families of three whose income is $558. This amount equals about 47% of the Federal poverty level, while participation in the Federal Food Stamp Program is extended to those whose incomes are less than 150% of the Federal poverty level. The NAP maximum benefit level for the family of three is $268 as compared to $341 for food stamps on the mainland and $431 on the Virgin Islands. this problem becomes even more egregious when the cost of purchasing essential food items is compared between Puerto Rico and the mainland. For example, a gallon of milk in San Juan costs $3.89 compared to $2.87 in Washington, D.C. When Congress established the Nutritional Assistance Program it was our intent to reduce cost and permit the Commonwealth flexibility in providing nutrition support. We certainly did not intend to create a gap such as the one that now exists between these two programs. Puerto Rico's children are U.S. citizens who deserve a greater opportunity for nutritional support. These young men and women will serve in the U.S. military, they will pay Social Security, Medicare and unemployment taxes, and they are expected to compete in the U.S. labor market. I believe that we need to ensure that children who are U.S. citizens and live in Puerto Rico are not left behind when it comes to nutrition. I look forward to working with the distinguished chairman; the distinguished ranking member Senator Lugar; and the other conferees to examine alternatives for providing resources to the Nutrition Assistance Program so that there is some narrowing of the gap between the Federal Food Stamp Program and the Nutrition Assistance Program. Again, I thank the chairman for his excellent work on this issue, and I look forward to working with him to advance this cause.

Mr. LEAHY. I fully concur with and support the comments of all four of my distinguished colleagues that have just spoken on the nutrition title of the farm bill. In addition to the many important features of the bill highlighted in their remarks, I would like to add that this legislation also takes major steps to simplify the program. Households would be permitted to report on changes in their circumstances by filling out a simple form every six months rather than having to take time off from work to visit the food stamp office, as often happens today. The cumbersome recertification process would be replaced by the same kind of redetermination process long used in the SSI and Medicaid programs. The crucial excess shelter deduction would be retained. This is essential to protect families in cold weather states like Vermont from facing the cruel choice between heating and eating. Nonetheless, legislation would greatly simplify the calculation of households' utility costs. States would be given the option to conform their definitions of income and resources in the food stamp program to those they use in other programs. This should allow states to eliminate unnecessary questions from their application forms. In simplifying the program, this legislation strives to protect families in need from experiencing hardship. Simplification should be a means of helping the program serve families better, not an end unto itself. I believe the simplification provisions in this legislation meet that test. As a result, this legislation makes important progress toward simplifying the program in ways that the benefit of State administrators and needy families alike.

Mr. LEAHY. Mr. President, I ask to be recognized for the purpose of engaging in a colloquy with my good friends, the distinguished senior Senators from Massachusetts, Pennsylvania, Florida, and Minnesota. Each of us worked closely with the distinguished Chairman and Ranking Member of the Committee on Agriculture to ensure that the nutrition title of the pending legislation represents an important step forward to improve the program's ability to help low-income children, working poor, and the elderly. As a former chairman of the Agriculture Committee, I know the importance of achieving balance in a farm bill. To ensure broad, bipartisan and bicameral support, a farm bill must have a strong nutrition title that benefits urban and suburban areas that feel less of a direct stake in the agricultural provisions of the bill. I think the pending legislation has that. Unfortunately, the bill passed by the other body earlier this fall does not. A mere $3.6 billion out of a $73.5 billion farm bill does not come close to representing balance and leaves unmet too many of the urgent nutritional needs of low-income families in urban, suburban, and rural areas alike.

Mr. LEAHY. I respond to my colleague that that is our understanding. Hopefully, this colloquy will serve as an announcement to all of our colleagues who may be listening to the debate, wherever they may be, that they should proceed rapidly to the floor. Three o'clock is the cutoff time for the introduction of amendments. On our side of the aisle, we have attempted to make that known in many ways. I am hopeful that at least no one will be under any other illusion. At 3, we will have an opportunity to survey the amendments that have in fact been placed before us to try to determine, as I understand, either time agreements or the ability to accept on both sides of the aisle some of these amendments. I see, having said that, the distinguished Senator from Oklahoma has arrived just in time. I yield the floor and suggest the absence of a quorum.

Mr. LEAHY. Mr. President, I ask that it be in order to offer amendment No. 2834 which I believe is at the desk.

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

Mr. LEAHY. Mr. President, I rise today to offer an amendment to authorize the establishment of a new voluntary organic research and promotion program. Just over a year ago we finalized the National Organic Program Rule. As this rule is implemented, it will provide assurance to the American public that the organic food they buy is subject to strict and consistent regulation. In addition, this rule will assist organic producers who want to export their products and will ensure that imported organic agricultural commodities meet standards on par with those of the United States. In the decade that this rule was under development, the organic industry has experienced tremendous growth rates of more than 20 percent annually--it was estimated that in 2001 sales topped $9 billion. As this industry continues to develop, it is important to adapt existing programs to support and enhance organic agriculture, as well as provide equitable benefits to organic producers. Currently, organic farmers are required to pay into existing mandatory research and promotion programs for various commodities. Many organic farmers object to this because they believe insufficient checkoff program funds are devoted to promoting or assisting in the development of organic agriculture. While they would prefer to be exempt from those assessments entirely, my amendment offers a viable and fair alternative. My amendment authorizes a new voluntary organic research and promotion checkoff program, which will only be established if it is proposed and approved by a majority of certified organic producers and handlers. What distinguishes this from existing checkoff programs is that any assessments under the order would be voluntary, not mandatory-- individual farmers will have the flexibility to opt-in or opt-out of this research and promotion program. To avoid double taxation, producers who choose to contribute to the organic order would be entitled to a credit against assessments under another order--which is similar to the credit producers are entitled to under existing checkoff programs if they contribute to a state or regional order covering the same commodity. Additional provisions in the amendment address concerns raised about existing checkoff programs--representatives on the board must reflect both the regional distribution and differing scales of organic production and, at least once every four years, a referendum on the continuance of the order must be held. I urge my colleagues to vote in favor of this amendment, which simply gives organic farmers the opportunity to choose how their research and promotion dollars are spent.

Mr. LEAHY. Mr. President, I ask unanimous consent the amendment be laid aside.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to join my good friend Senator Mikulski in introducing the Law Enforcement Officers Retirement Equity Act of 2002. This bill would correct an inequity that exists under current law, whereby U.S. Customs Service and INS Inspectors as well as revenue agents from the IRS are denied the same retirement benefits provided to other law enforcement officers. I have introduced a similar bill, S. 1828, with the support of Senator Hatch and Senator Mikulski, which would provide similar benefits to the Nation's Federal prosecutors, who are now more than ever facing the immense dangers and challenges of the war on terrorism. Both measures are long overdue and important corrections in the Federal law. This bill would increase the retirement benefits given to federal INS and Customs inspectors and IRS Revenue agents by including them as ``law enforcement officers,'' LEOs, under the Federal Employees' Retirement System and the Civil Service Retirement System. The relevant provisions of the United States Code dealing with retirement benefits define an LEO as an employee whose duties are ``primarily the investigation, apprehension, or detention'' of individuals suspected or convicted of violating Federal law. See 5 U.S.C. Sec. Sec. 8331(20) & 8401(17). Under that definition, it is inconceivable that Customs and INS Inspectors and IRS Revenue Agents would not be included, yet they are not. Customs and INS Inspectors spend their entire days searching, questioning, and investigating potential violations of Federal law by those who either cross our borders or those who send goods and freight into and out of the United States. In many cases, they are our first and last defense against smugglers and those who seek to enter the United States unlawfully. IRS Revenue Agents have a long history of tax enforcement, sometime in dangerous circumstances involving contraband materials. This bill would make these agents and inspectors eligible for immediate, unreduced retirement benefits at age 50 with 20 years of service. For example, those who are covered by the Civil Service Retirement System would receive 50 percent of the average of their three highest years' salary. That is the retirement package that is currently afforded to nearly every other Federal law enforcement employee. Just like the Federal prosecutors covered by S. 1828, there is no good justification for not including these Customs, INS and IRS law enforcement employees with their peers in terms of their retirement benefits, and plenty of good reasons supporting their inclusion. First and foremost, the danger faced by these men and women supports their inclusion as LEOs. The primary reason for granting enhanced retirement benefits to LEOs is the often dangerous work of law enforcement, and at no time in our Nation's history has both the danger and importance of protecting our Nation's borders been more clear. As the September 11 attacks on our nation amply demonstrated, the tools of terrorism and the terrorists themselves are often imported to the United States from abroad--and often times illegally. The people who are included in this bill are the men and women who literally stand their posts to make sure that, among other things, illegal weapons and terrorists are not allowed into the United States. What could possibly be more dangerous? I know first hand, from my experience as a former prosecutor in Vermont that the men and women who stand watch at our Northern border put themselves in harm's way each and every day that they put on their uniforms and go to work. In Vermont, I know that these men and women have a proud history of confronting and apprehending those who seek to enter the county illegally and smuggle contraband into the United States. Already, as part of the USA PATRIOT Act, I was able to work to include important provisions which enhanced the protection of our Northern border. This bill is yet another overdue measure which recognizes the importance of such border protection. Another reason for correcting this inconsistency in the law is the retention of good officers at the agencies which guard the border. Faced with new security challenges, it is crucial that the Customs Service and the INS possess the tools to maintain an experienced and professional cadre of agents at our Nation's land borders, airports, and seaports. When one type of Federal law enforcement officer is provided worse benefits than all others for no good reason, there is a risk that the most qualified and successful agents will move to other comparable jobs with better benefits. Since LEO retirement benefits are currently afforded to nearly every other group of people that enforce our laws, there is currently a risk that the best and most dedicated Customs and INS Inspectors will be lured away from their jobs protecting the border for ``greener'' pastures. This bill would eliminate this risk by providing proper incentives for the best people to stay right where we want them, protecting our borders. To conclude, I commend Senator Mikulsi's leadership in this area, and I join her in introducing the Law Enforcement Officers Retirement Equity Act of 2002. For all of these reasons, I urge its swift enactment into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, my colleagues sometimes may wonder whether we Vermonters will ever run out of examples to illustrate the pride we take in our beautiful State and its people. Not today, we won't. Today I rise to describe two of Vermont's finest athletes representing all Americans at the 2002 Winter Olympics in Salt Lake City. Vermont's cold winters and plentiful snow breed true winter athletes. We need not look any further than this year's Olympic roster to see this. At least 21 of America's competitors can claim ties to Vermont. Some of them have lived in the Green Mountain State for their entire lives, while others have come to our mountains to attend one of our schools or universities. During the last two days, two of these Vermonters swept the Olympic snowboarding halfpipe competitions, winning America's first two gold medals of the 2002 Winter Olympics. Vermont is famous for its firsts. Many of snowboarding's newly formed roots reach deep into the Green Mountains of our State. It is fitting that two Vermont snowboarders have shown the world how it is done. On Sunday, February 10th, 18-year-old Kelly Clark of West Dover, VT, became the first American to win a gold medal in the 2002 Winter Olympics, scoring a 47.9 out of 50 points in the women's halfpipe competition. Then on Monday, Ross Powers, 23, of South Londonderry, Vermont, took gold in the men's halfpipe competition, winning America's second gold medal of this year's Winter Games. Since the fourth grade, Kelly Clark has been riding the slopes of Vermont. Her parents own a small restaurant near the beautiful resort of Mount Snow. It was on our Green Mountains that Kelly exerted herself beyond belief, pushing the limit, jumping higher and attempting new moves. She succeeded because she refused to let danger, fear, and exhaustion keep her down. Kelly is no stranger to winning. Only two short months ago she won the gold medal at the Winter X-Games in Aspen, CO. On Sunday, not only did she win the gold medal, but she managed to do it under great pressure. As the last competitor of the event, she only had one last chance to show the world what she could do, and she rose to the challenge. The day after Kelly introduced herself to the world, Ross Powers won his second Olympic medal adding to a collection of medals he began during the 1998 Nagano Games when snowboarding made its Olympic debut. All the more remarkable is the fact that Ross led America in a medal sweep of a winter event for the first time in nearly half a century. He impressed the judges and spectators by shooting off the snow 15 feet into the air, landing flawlessly and performing trick after trick. His family and friends back at Vermont's Bromley Mountain and Stratton Mountain resorts watched Ross, as a child snowboard prodigy, work hard and push himself from the time he first strapped a snowboard to his feet at age five. Three years later he began competing. Recognizing the hard work, determination and financial backing it takes to become a world-class athlete, Ross formed the Ross Powers Foundation. This non-profit program gives talented and hard-working children the financial support they need to follow their winter sports dreams. I am sure many more of my fellow Vermonters will find their way onto our sports pages before the Olympics leave Salt Lake City. I know that the country shares our pride in the accomplishments of these courageous Olympic athletes. We Vermonters join all Americans in thanking Kelly and Ross, and all Olympic athletes, for their hard work and devotion to competition and to their country.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise to join my good friend Senator Mikulski in introducing the Law Enforcement Officers Retirement Equity Act of 2002. This bill would correct an inequity that exists under current law, whereby U.S. Customs Service and INS Inspectors as well as revenue agents from the IRS are denied the same retirement benefits provided to other law enforcement officers. I have introduced a similar bill, S. 1828, with the support of Senator Hatch and Senator Mikulski, which would provide similar benefits to the Nation's Federal prosecutors, who are now more than ever facing the immense dangers and challenges of the war on terrorism. Both measures are long overdue and important corrections in the Federal law. This bill would increase the retirement benefits given to federal INS and Customs inspectors and IRS Revenue agents by including them as ``law enforcement officers,'' LEOs, under the Federal Employees' Retirement System and the Civil Service Retirement System. The relevant provisions of the United States Code dealing with retirement benefits define an LEO as an employee whose duties are ``primarily the investigation, apprehension, or detention'' of individuals suspected or convicted of violating Federal law. See 5 U.S.C. Sec. Sec. 8331(20) & 8401(17). Under that definition, it is inconceivable that Customs and INS Inspectors and IRS Revenue Agents would not be included, yet they are not. Customs and INS Inspectors spend their entire days searching, questioning, and investigating potential violations of Federal law by those who either cross our borders or those who send goods and freight into and out of the United States. In many cases, they are our first and last defense against smugglers and those who seek to enter the United States unlawfully. IRS Revenue Agents have a long history of tax enforcement, sometime in dangerous circumstances involving contraband materials. This bill would make these agents and inspectors eligible for immediate, unreduced retirement benefits at age 50 with 20 years of service. For example, those who are covered by the Civil Service Retirement System would receive 50 percent of the average of their three highest years' salary. That is the retirement package that is currently afforded to nearly every other Federal law enforcement employee. Just like the Federal prosecutors covered by S. 1828, there is no good justification for not including these Customs, INS and IRS law enforcement employees with their peers in terms of their retirement benefits, and plenty of good reasons supporting their inclusion. First and foremost, the danger faced by these men and women supports their inclusion as LEOs. The primary reason for granting enhanced retirement benefits to LEOs is the often dangerous work of law enforcement, and at no time in our Nation's history has both the danger and importance of protecting our Nation's borders been more clear. As the September 11 attacks on our nation amply demonstrated, the tools of terrorism and the terrorists themselves are often imported to the United States from abroad--and often times illegally. The people who are included in this bill are the men and women who literally stand their posts to make sure that, among other things, illegal weapons and terrorists are not allowed into the United States. What could possibly be more dangerous? I know first hand, from my experience as a former prosecutor in Vermont that the men and women who stand watch at our Northern border put themselves in harm's way each and every day that they put on their uniforms and go to work. In Vermont, I know that these men and women have a proud history of confronting and apprehending those who seek to enter the county illegally and smuggle contraband into the United States. Already, as part of the USA PATRIOT Act, I was able to work to include important provisions which enhanced the protection of our Northern border. This bill is yet another overdue measure which recognizes the importance of such border protection. Another reason for correcting this inconsistency in the law is the retention of good officers at the agencies which guard the border. Faced with new security challenges, it is crucial that the Customs Service and the INS possess the tools to maintain an experienced and professional cadre of agents at our Nation's land borders, airports, and seaports. When one type of Federal law enforcement officer is provided worse benefits than all others for no good reason, there is a risk that the most qualified and successful agents will move to other comparable jobs with better benefits. Since LEO retirement benefits are currently afforded to nearly every other group of people that enforce our laws, there is currently a risk that the best and most dedicated Customs and INS Inspectors will be lured away from their jobs protecting the border for ``greener'' pastures. This bill would eliminate this risk by providing proper incentives for the best people to stay right where we want them, protecting our borders. To conclude, I commend Senator Mikulsi's leadership in this area, and I join her in introducing the Law Enforcement Officers Retirement Equity Act of 2002. For all of these reasons, I urge its swift enactment into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, I begin by thanking the nominees' home State Senators for working with us on this nomination and by commending the majority leader and our assistant majority leader for bringing this matter to successful conclusion today. I also want to thank Senator Cantwell for chairing the hearing in January that laid the groundwork for today's confirmation of Judge Michael Melloy as a judge on the United States Court of Appeals for the Eighth Circuit. That confirmation hearing was held on the second day of this session of Congress and was the twelfth confirmation hearing for judicial nominees since the majority shifted last summer. Judge Melloy and the five district court nominees included in the hearing that Senator Cantwell chaired are the first judicial nominees to receive a confirmation hearing during January since at least 1995. Those nominees were all promptly considered by the committee at our business meeting last Thursday and, today, due to that unusually fast start by the committee, Judge Melloy's nomination is being considered by the Senate for final action. Last year I noticed our first judicial nominations hearing within 10 minutes of the Senate being permitted to reorganize. We held that first hearing last session on the day after committee members were assigned. In fact, during the past 7 months we have held 12 hearings involving judicial nominees. That is more hearings involving judicial nominees than were held in all of 1996, 1997, 1999 or 2000 and a more rapid pace than in either 1995 or 1998. Unlike the preceding six and one-half years in which no hearings were held in 30 of the months, since the Committee has reorganized last summer, we have held at least one hearing for judicial nominees every month. In fact, we held two in July, two unprecedented hearings during last summer's August recess, two in December and three in October. With the hearing at which Judge Melloy appeared, we now have held at least one hearing for judicial nominees every month since we were permitted to reorganize last summer after I became chairman of the committee and the Democrats became the majority party in the Senate. Judge Melloy's confirmation fills a judicial emergency vacancy. That seat on the Court of Appeals for the Eighth Circuit, which includes eight States--Iowa, Arkansas, Minnesota, Missouri, Nebraska, North Dakota and South Dakota--has been vacant since May 1, 1999. I recall that it was not so long ago, in 2000, when the Senate was under Republican control, that another nominee to this very seat on the Eighth Circuit, Bonnie Campbell, did not receive the courtesy of a vote by the committee following the hearing on her nomination. She did not receive a vote due to the previous policy of allowing anonymous holds to be placed on nominees, even though in her case, both of her home State Senators, one a Democrat and the other a Republican, supported her nomination. Bonnie Campbell, the former Attorney General of Iowa, did not receive the courtesy of a vote, up or down, during the 382 days between her nomination by President Clinton and the time that the Bush Administration withdrew her name. In contrast, we moved expeditiously to consider and report Judge Melloy's nomination to the Eighth Circuit. He participated in the first confirmation hearing this year, and his nomination was favorably reported by the Committee last week, during the first full week of this session. Judge Melloy's confirmation will eliminate the judicial emergency vacancy in that circuit caused, in part, by the committee's failure to act on Bonnie Campbell's nomination when Republicans controlled the Senate and the confirmation process. Since the change in majority last summer, we have already moved ahead to confirm another new member of the Eighth Circuit. Judge Melloy will join Judge William J. Riley of Nebraska as the second judge considered and confirmed to the Eighth Circuit since the summer. Both nominees were supported by well-respected home-state Senators from both parties. Judge Melloy will be the seventh Court of Appeals nomination confirmed by the Senate in the last seven months. That is seven more Court of Appeals judges than a Republican majority confirmed in the 1996 session, and as many as were confirmed in all of 1997 and in all of 1999. During our consideration of Judge Melloy's nomination to be elevated to the Eighth Circuit, we learned that Judge Melloy has a reputation for decisions that are fair, well-reasoned and well-written, without editorial comment or ideological bent. Judge Melloy was nominated to the Northern District of Iowa in 1992 by President George H.W. Bush and confirmed by the Senate. He previously served for six years as a United States Bankruptcy Judge for the Northern District of Iowa. While serving on the District Court for these past 9\1/2\ years, Judge Melloy also sat by designation on the Eighth Circuit on several occasions and wrote a number of appellate opinions. I congratulate the nominee and his family on his confirmation today. With today's confirmation, the Senate will have confirmed five additional judges since returning late last month. The Senate will have confirmed 33 judges since the change in majority last summer. More than one-quarter of the judges confirmed have been for judicial emergency vacancies, nine so far. Unfortunately, the White House has yet to work with many home-state Senators to send nominees for 14 other judicial emergency vacancies. I am working to hold another confirmation hearing for judicial nominations, as well, before the end of February, even though it is a short month with a week's recess. The Committee has not held two hearings in the month of February in four years, since 1998. I noted on January 25 in my statement to the Senate that we inherited a frayed process and are working hard to repair the damage of the last several years. I have already laid out a constructive program of suggestions that would help in that effort and help return the confirmation process to one that is a cooperative, bipartisan effort. I have included suggestions for the White House, that it work with Democrats as well as Republicans, that it encourage rather than forestall the use of bipartisan selection commissions, that it consider carefully the views of home State Senators. Working together, we can make significant progress in filling judicial vacancies.