Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to express the deep sadness and anger that I and many of my Vermont constituents feel about the senseless, cold-blooded murder of one of Mexico's most respected and courageous human rights lawyers, Digna Ochoa y Placido. On October 20, 2001, Ms. Ochoa was shot at near point blank range in her office. At her side was a note that threatened other human rights activists who have defended environmentalists, labor leaders, or other unjustly imprisoned or tortured by the Mexican army and police. A former nun, Ms. Ochoa was a role model for all human rights defenders, because of her extraordinary courage, dedication, and commitment to some of the most disadvantaged members of Mexican society. Ms. Ochoa frequently put the people she represented ahead of her own personal safety, and was an easy target for those who represent the worst of society, who would threaten or kill the downtrodden to protect their own crimes. She had received many death threats, and in 1999 she was kidnapped twice. During one of those abductions, her kidnappers tied her to a chair, opened a gas canister, and left her to die as the fumes slowly filled the room--from which she narrowly escaped. Digna Ochoa's death is a tragedy for all Mexicans. But it is particularly outrageous because it could have been avoided. Although it was widely known that threats and acts of violence were being carried out against her and other members of Prodh--the human rights organization where she worked--Mexican officials failed to investigate or prosecute those crimes. It would be hard to overstate the optimism I felt when Vicente Fox was elected Mexico's President after 70 years of misrule by the PRI. This election meant that Mexico could begin to overcome years of official corruption, police brutality, injustice and poverty suffered by the fast majority of Mexico's population. When President Fox took office, he promised to end the long history of abuses by the Mexican army and police. No one expected miracles. No one expected him to transform those secretive, corrupt and brutal institutions overnight. But it is the Government's first duty to protect its citizens, and people did expect him to make justice a priority, get rid of the old guard, and demand accountability. That has not happened, at least not yet, and Digna Ochoa's death has, tragically, focused attention again on this festering problem. There are undoubtedly many others who have suffered similar fates--faceless Mexican who are not widely known, who have been threatened or murdered, or who languish in prison without access to justice. To his credit, on November 9 President Fox ordered the release from prison of two ecologists, represented by Ms. Ochoa in the past, who never should have been imprisoned in the first place. For possessing the courage to try to stop the destruction of forests where they lived, they were arrested and allegedly tortured. The destruction of tropical forests is an urgent problem from Indonesia to Latin America, as logging companies compete for profits until the forests are completely destroyed. Often, the militaries in these countries are directly involved in these destructive, yet lucrative, schemes, and do not hesitate to kill or frame those who get in their way because they have known only impunity. However, besides releasing these two men, the Mexican Government has done little to respond to Ms. Ochoa's death. A truth commission to examine past human rights abuses has not been established. That is presumably because it requires challenging some of the most entrenched, powerful, and dangerous forces within Mexican society. Nevertheless, President Fox made this promise, and that is what is urgently needed. Another troubling case is the imprisonment of Brigadier General Jose Francisco Gallardo, who was convicted of corruption based on evidence that is, at best, inconclusive. Many observers feel that the main reason he is in prison and the Mexican Government continues to oppose his release is because he spoke out about abuses in the military. President Fox must deal with this case immediately. I am convinced that President Fox is the right leader for Mexico at this critical time, and I have confidence in him and his advisors. I do not minimize the herculean tasks they face--political, economic and social reform on a national scale. But there is no way democracy can succeed in Mexico without the rule of law. And there is no better place to start than by tracking down Digna Ochoa's killers, and bringing them to justice for all to see. Mr. President, I ask unanimous consent that a piece written by Digna Ochoa, about her life, which was included in Kerry Kennedy Cuomo's extraordinary book ``Speak Truth To Power,'' be printed in the Record.

Mr. LEAHY

Mr. LEAHY. If the Senator will yield further on that point, first off, I could not agree more with him. I think his last point is one that bears emphasis--how they might be strengthened. The Senator from Pennsylvania and I have served here longer than most Members of this body. I think it is safe to say that we have seen more bipartisan-- virtually nonpartisan--support for the President in the last 2 months than we have for any President, Republican or Democrat, during the times he and I have been privileged to serve together in this body. That can be very helpful for the President. However, it raises one certain danger. That support in our common goal to fight terrorism and to protect our fellow citizens in this country is good, but if it goes beyond that, and nobody has a question, ultimately the Presidency is hurt, the Senate is hurt, and the country is hurt. I think we have to ask these questions. You have a question of basic rights such as counsel, jury trial, and whatnot. Obviously, there are exceptions. We understand that. But if the exception becomes the rule, then all of us suffer. We have seen this in efforts to go after organized crime and in other efforts. It is easy to push the envelope because we only need it this time. We have to ask what are the standards, what is the trigger for using this. I have read the Executive order. It is obvious it was thought about a lot. George Terwilliger, a former prosecutor from Vermont and former Deputy Attorney General, is quoted today as saying a lot of these items have been around the Justice Department in both Republican and Democratic administrations--my words, not his--for a long time and are being dusted off. Some were not dusted off in the past because cooler heads prevailed. I think the American public will, as the Congress has, support the President in a fight against terrorism, but the American public deserves having questions aired and answers given. The Senator from Pennsylvania does a service in raising that. I can assure him there will be a time set. The Attorney General will be requested to come before us prior to the Senate adjourning. There has not been consultation with either the Republican or Democratic leadership in the Congress on each of these issues. I do not know how many other shoes will drop between now and the time of the hearing, but whatever is there, we will ask about them. I do not want to interrupt the Senator from Pennsylvania any further, but I came to the Chamber simply to thank him for raising what is a very valid point.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to add my support to promoting electronic commerce and keeping it free from discriminatory and multiple State and local taxes. I strongly support the Senate quickly passing H.R. 1552 to extend the Internet tax moratorium for 2 years. Last month, I was pleased to join the senior Senator from Oregon and the senior Senator from Arizona as an original cosponsor of the Internet Tax Moratorium Extension Act, the Senate counterpart to H.R. 1552. I commend Senator Wyden and Senator McCain for their continued leadership on Internet tax policy. Although electronic commerce is beginning to blossom, it is still in its infancy. Stability is key to reaching its full potential, and creating new tax categories for the Internet is exactly the wrong thing to do. E-commerce should not be subject to new taxes that do not apply to other commerce. Indeed, without the current moratorium, there are 30,000 different jurisdictions around the country that could levy discriminatory or multiple Internet taxes on e-commerce. Let's not allow the future of electronic commerce, with its great potential to expand the markets of Main Street businesses, to be crushed by the weight of discriminatory taxation. Many Vermont companies have contacted me in the last month and weeks in support of extending the moratorium, including Green Mountain Coffee Roasters, the Army & Navy Store in Barre, and the Vermont Teddy Bear Company. Cyberselling is working for Vermonters. We also need a national policy to make sure that the traditional State and local sales taxes on Internet sales are applied and collected fairly and uniformly. This 2-year extension of the current moratorium gives our Governors and State legislatures time to simplify their sales tax rules and reach consensus on a workable national system for collecting sales taxes on e-commerce. Indeed, the National Conference of State Legislatures has endorsed our legislation to extend the Internet tax moratorium for two more years to give States time to complete work on sales tax simplification. I must also raise some serious questions about the approach of some Senators to pass legislation to waive Congress's authority to carefully review and approve interstate compacts. As chairman of the Senate Judiciary Committee, which has jurisdiction over interstate compacts, I cannot understand why we should recede congressional authority to approve an interstate compact on sales tax issues if 20 States join any compact. Despite good intentions of its proponents, this approach is asking the Senate to buy a pig in a poke. I am a strong supporter of interstate compacts where appropriate, such as the Northeast Dairy Compact, but the Senate should not approve of any interstate compact without carefully reviewing its details first. When the Northeast Dairy Compact was approved by the Congress, every detail and every aspect of it was known far in advance. It also raises constitutional questions for legislation to mandate that Congress automatically approve an interstate compact on sales taxes without reviewing its text since the Constitution explicitly requires Congress to approve interstate compacts. The Enzi amendment allows 11 jurisdictions to continue to tax Internet access, but permanently bans Internet access taxes everywhere else in the country. By permanently prohibiting taxation of Internet access in some States, but approving of such taxation in other States, the Enzi amendment may violate the ``uniformity clause'' in Article I, 8 of the United States Constitution. The uniformity clause states that ``all Duties, Imposts and Excises shall be uniform throughout the United States.'' The uniformity clause requires that Federal legislation levying taxes follow a consistent plan and apply in all portions of the United States where the subject of the tax is found. In United States v. Ptasynski, the Supreme Court held that it will subject geographic distinctions in Federal taxation to heightened scrutiny. In a unanimous decision, the Court stated that ``Where Congress does choose to frame a tax in geographic terms, we will examine the classification closely to see if there is actual geographic discrimination.'' The Enzi amendment proposal to lock in discrimination between States in taxation of Internet access raises questions under the uniformity clause that require careful consideration. In the case of a temporary moratorium, such as the one in the House bill, the grandfathering of Internet access taxes in a limited number of States may be explained as freezing the status quo while Congress comes up with a permanent solution to the Internet tax issue. Thus, it is unlikely to raise the geographic discrimination problem the Supreme Court discussed in Ptasynski, and would survive heightened scrutiny. In contrast, the Enzi amendment's permanent discrimination on the basis of where an Internet user lives is much harder to explain under the heightened scrutiny required by the Supreme Court. If courts treat the Federal Government's establishment of a discriminatory regime of taxation by the States as raising the same uniformity clause issues as the Federal Government's levying of discriminatory taxes, the Enzi amendment's Internet access tax moratorium will be ruled unconstitutional. As a result, this amendment appears to raise serious constitutional concerns. E-Commerce is growing, our moratorium law is working, and we should keep a good thing going. I am proud to cosponsor the Internet Tax Moratorium Extension Act to encourage online commerce to continue to grow with confidence and to continue to allow the States to move ahead with sales tax simplification efforts. I urge my colleagues to vote for a straight forward 2-year extension of the internet tax moratorium.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to commend Senators Baucus and Byrd for crafting a reasonable and appropriate economic stimulus bill. The package they have brought forward balances tax relief, assistance for unemployed workers, and spending for homeland security and economic recovery. With the United States economy in recession for the first time in over a decade, now is the time for Congress to act to help hard working Americans. The Baucus-Byrd legislation will strengthen consumer confidence as well as public safety. An already struggling economy was dealt a crippling blow by the September 11th terrorist attacks. In order to best jumpstart the economy, each part in the stimulus package has a substantial effect in the short-term, the greatest impact for the money spent, and no great cost in later years. I believe that the Baucus-Byrd stimulus package is directed toward boosting business and consumer confidence in the future. America's workers need assistance now. Today, with more than 7 million Americans out of work, the Nation is suffering through its highest level of unemployment in 20 years. More than half of unemployed people do not qualify for unemployment, and the vast majority cannot afford health coverage under our current system. As of mid-September, there were 10,888 unemployed people in Vermont, a seasonally-adjusted unemployment rate of 3.2 percent. Approximately 27,200 Vermonters will claim unemployment insurance in the next year, according to estimates from the Department of Labor's National Employment Law Project. Of those, 3,536 will exhaust their unemployment benefits during that time. The Senate's economic recovery plan addresses these problems by providing unemployment insurance and health coverage for laid-off workers, tax rebates for middle and low-income people who need immediate relief, and tax incentives for small businesses to encourage immediate investment in new plants and equipment. One of my primary goals in the wake of the September 11th attacks has been to increase the security of our border with Canada. Over the past decade or more, the northern border has continually been shortchanged. While the number of Border Patrol agents along the southern border has increased over the last few years to over 8,000, the number at the northern border has remained the same as a decade ago at 300. Even as the northern border was increasingly discussed as an attractive route of entry into the United States for terrorists, Congress failed to rectify this imbalance. We began to make up for this pattern of neglect with passage of the USA PATRIOT Act last month. That law authorized a tripling of the number of Border Patrol officers, INS Inspectors, and Customs agents in the States that share a border with Canada. It also authorized $50 million each to the INS and Customs to improve the technology used in monitoring the border and to purchase additional equipment. This law provides the basis for improving our security, but we must now ensure that these proposals are funded. This stimulus bill provides the first step. Senator Byrd proposes an additional $327 million for U.S. Customs-- $31 million to be used for new staffing which could result in as many as 350 new agents. Coupled with the 285 new agents for the northern border funded in the Treasury Postal Appropriations bill earlier this year, we are on the way to addressing the shortfalls felt by the Customs Service in the north. This bill also appropriates over $700 million for INS to improve INS facilities and border infrastructure to help better secure our country. While I had hoped more money and attention would have been dedicated to the staffing shortfalls, I am confident we can expand these initiatives in the supplemental appropriations bill scheduled to move after the Thanksgiving holiday. We will need to show continued vigilance on this issue. For too long, we have ignored the needs of the northern border and been complacent about our security. We no longer can afford such complacency. The proposal would also include $600 million for additional FEMA firefighting grants. This money would allow state and local communities to expand and improve their firefighting programs. Over 50 percent of the funding would go to volunteer fire departments in rural communities. Again, I thank the Chairman of the Finance Committee and the Chairman of the Appropriations Committee, for bringing forward this important legislation. America's national security must not be left behind as Congress considers an economic stimulus package.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask unanimous consent that I be allowed to use the remaining time of the Senator from Utah, unless he appears. I will then immediately yield to him.

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

Mr. LEAHY. Mr. President, I congratulate the nominee and her family on her nomination, confirmation and what is soon to be her appointment to the United States Court of Appeals for the Fifth Circuit. I also commend the Senators from Louisiana for working with the committee and the majority leader and working with the President to bring this nomination forward and to have the Senate act to confirm Judge Clement. I take special pride in this confirmation because we are finally bringing some help to the Fifth Circuit. Since 1999, Chief Judge King of the 5th Circuit has declared a state of emergency in the Circuit such that the hearing and determination of cases and controversies could be conducted by panels of three judges selected without regard to the qualification in 28 U.S.C. section 46(b) that a majority of each panel be composed of judges of the 5th Circuit. I well recall when delays in the confirmation process over the last several years threw the 2nd Circuit into a similar emergency in March 1998, and how hard I worked to get those five vacancies filled to end that emergency in my Circuit. I am glad that we are proceeding with Judge Clement today in order to try to help the 5th Circuit. Judge Edith Brown Clement from Louisiana was among the first nominees sent to this committee by the President. Unfortunately, in the wake of the Republican leader's objection to keeping that nomination and many others pending over the August recess, Senate rules required that her nomination be returned to the President without action as the Senate began its August recess. She was nominated again in September to serve on the U.S. Court of Appeals for the Fifth Circuit, which encompasses the States of Texas, Louisiana, and Mississippi. This is one of the many Circuits that were left with multiple vacancies at the end of the Clinton administration. Since January 23, 1997, Judge Garwood's seat on the 5th Circuit has been vacant. Despite the fact that former President Clinton nominated Jorge Rangel to fill this vacancy in July of 1997, Mr. Rangel never received a hearing and his nomination was returned on October 21, 1998. On September 16, 1999, former President Clinton nominated Enrique Moreno to fill the same vacancy. Once again, the nominee did not receive a hearing. Since April 7, 1999, the seat previously occupied by Judge Duhe of the 5th Circuit has been vacant. Although former President Clinton nominated Alston Johnson to fill that vacancy only 15 days later, on April 22, 1999, Mr. Johnson was never granted a hearing by the Judiciary Committee in 1999, during all of 2000, or during the first months of this year while his nomination was still pending. Over the last several years I have commented on those vacancies as I urged action on the nominations of Jorge Rangel, Enrique Moreno, and Alston Johnson to fill those vacancies on the 5th Circuit. None of those nominees were ever provided a hearing or acted upon by the Senate. After 15 months without action, Mr. Rangel asked not to be re- nominated. After 15 months and two nominations, Enrique Moreno's nomination was returned to the President without action. After nearly 23 months and two nominations without action, Mr. Johnson's nomination was withdrawn by President Bush in March of 2001. The nominations hearing for Judge Clement was the first hearing for a nominee to the 5th Circuit in 7 years--since September 14, 1994. She will likewise be the first judge confirmed to the 5th Circuit in 7 years. Since July 2001, when the Senate was allowed to reorganize and the committee membership was set, we have maintained a strong effort to consider judicial and executive nominees. With the confirmation of Judge Clement, we reach yet additional milestone. Judge Clement is the fifth nominee to the Courts of Appeals confirmed by the Senate since July 20 this year. We have now confirmed as many Court of Appeals nominees as were confirmed during the first year of the first Bush administration and two more than were confirmed during the first year of the Clinton administration. I thank the Majority Leader, the Judiciary Committee and all Senators for their cooperation in reaching this important goal. In addition, I note that by confirming our 18th judicial nominee, we have now confirmed more total judges this year than were confirmed in 1989, the first year of the first Bush administration. With the confirmations of Judges Armijo, Bowdre, Friot, and Wooten last week, the Senate confirmed its 10th, 11th, 12th and 13th District Court judges for the year and matched and then exceeded the number of District Court judges confirmed in 1989, which was 10. With the confirmation of Judge Wooten last week, the Senate confirmed its 17th judge over all and matched the number of judges confirmed in all of the 1996 session. With the confirmation of Judge Clement to the U.S. Court of Appeals for the Fifth Circuit we have exceeded that total for the 1996 session. Of course, in 1996, the Senate majority at that time did not proceed on a single nominee to a Court of Appeals and limited itself to confirming only 17 judges to the District Courts. Thus, despite all the upheavals we have experienced this year with the shifts in chairmanship and, more importantly, the need to focus our attention on responsible action in the fight against international terrorism, we have matched or beaten the number of confirmations of judges during the first year of first Bush administration and the last year of the first Clinton term. As a judge on the Court of Appeals, Judge Clement will have a vital role to play in protecting and preserving our civil liberties in the days ahead. Our system of checks and balances requires that the judicial branch review the acts of the political branches. I trust that Judge Clement will take this responsibility seriously and will rely on our rich history of judicial precedent to make wise decisions in the challenging times ahead.

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

Mr. LEAHY. Mr. President, I wanted to highlight that the Fifth Circuit is one of those circuits where for the last 6 or 7 years there was a refusal to hold any hearings on the nominees. I think we are changing the way things have been done in the past. On this nomination, there was a hearing within weeks after the nominee had cleared all the paperwork. I applaud the majority leader for bringing this nomination before the Senate. I also thank the members of the Judiciary Committee, and the distinguished Presiding Officer, who voted for this nominee on a rollcall vote in the committee.

Mr. LEAHY

Mr. LEAHY. Madam President, I rise to introduce the Anti-Terrorist Hoax and False Report Act of 2001. The bill would provide a new tool for law enforcement to deal with the problem of serious hoaxes and malicious false reports relating to the use of weapons of mass destruction, or biological, chemical, or nuclear weapons. These so- called ``hoaxes'' inflict both mental and economic damage on victims. They drain away scarce law enforcement resources from the investigation of real terrorist activity. They interrupt vital communication facilities. Finally, they feed a public fear that the vast majority of law abiding Americans are working hard to dispel. Federal, State, and local law enforcement already have statutes which they have been using aggressively to prosecute those who have taken advantage of these times to perpetrate hoaxes about anthrax contamination. Existing statutes create serious penalties for threats to use biological, chemical, or nuclear weapons, for sending any threatening communication through the mail, or for making a willful false statement to federal authorities. For example 18 U.S.C. Sec. Sec. 175, 229, 2332a, and 831 all have their own threat provisions punishable by up to life imprisonment. In addition, 18 U.S.C. Sec. 876 makes it a five year felony to mail a threatening communication of any type; and 18 U.S.C. Sec. 1001 makes it a five year felony to willfully make any false statement, or even willfully omit a material fact in a matter under the jurisdiction of a federal agency. In a recent Subcommittee hearing of the Judiciary Committee, James T. Caruso, the Deputy Assistant Director of the FBI's Counter-terrorism Division, stated that there are at least 11 Federal hoax cases which have actually been charged under existing statutes since September 11, 2001. Just last week a Federal conviction was obtained in Oakland, California under 18 U.S.C. Sec. 175, which carries a statutory maximum penalty of life imprisonment, for an anthrax hoax which occurred back in January of 1999. Thus, existing Federal statutes are already being employed to prosecute these cases when Federal prosecution is appropriate. In addition, numerous State provisions are available and are being used to prosecute these cases at the State and local level. Indeed, current Federal threat laws do not require that the defendant have either the intent or present ability to carry out a threat, which enables prosecutors to use such laws to prosecute these serious hoaxes. At the same terrorism hearing, Deputy Assistant Director Caruso made it clear that authorities are able to prosecute even ``non-credible'' threats under current Federal laws. However, while they carry high penalties, including a maximum of life imprisonment, at the same hearing James Reynolds, from the Department of Justice's Section on Terrorism and Violent Crime, indicated that these statutes can sometimes be awkward when applied in the hoax context. What this bill provides, is a well tailored statute that deals specifically with the problem of biological, chemical, mass destruction, and nuclear ``hoaxes'', that is, actions taken with the malicious intent to deceive the victim. For instance, it gives prosecutors a means to distinguished between a person who is actually threatening to use anthrax on a victim on one hand, and a person who never intends to use it, but truly wants the victim or the police to think they have done so, on the other. In the later case the statute creates a new five year felony. The bill requires that the defendant act ``knowingly and maliciously,'' so that we do not federalize juvenile pranks or the misguided though innocent spreading of rumors. For instance, a local prosecutor in Chicago recently placed an envelope containing sugar on a colleague's desk. He was administratively punished by being forced to resign from his job. In Utah, a disabled miner was charged locally because he put sugar and Nesquik into a junk mail envelope. In Anne Arundel County, MD, two juveniles were arrested after they placed powder in an envelope and did not even mail it, but it was found by someone else and reported, engendering an unintended emergency response. In Ohio, a security guard ``super-glued'' a telephone in a county welfare building, and when the glue left a powdery residue it caused a anthrax scare. In Williamsport, PA a firefighter is being prosecuted locally on a felony charge for claiming that he received a letter containing white powder at his home. These types of incidents do not merit a lengthy term in Federal prison. As the examples I have listed above demonstrate, we have appropriately serious ways to deal with cases when Federal criminal prosecution is not needed. Indeed, law enforcement agencies or private companies of the conduct ``readiness testing'' so that they will be able to deal with serious chemical or biological weapon threats. For instance, three weeks ago a Kentucky sheriff conducted such a readiness drill by leaving an envelope filled with crushed aspirin on a desk at a county courthouse in order to test the response. Requiring a malicious mens rea will ensure also that we do not criminalize or chill this type of admirable proactive effort. In sum, malicious acts deserve Federal felony prosecution; innocent bad judgment and juvenile behavior do not, and neither do laudable efforts by police and private actors to preserve readiness for biological or chemical attack. Another provision in the bill would provide for mandatory restitution to any victim of these crimes, including the costs of any and all government response to the hoax. An earlier Administration proposal, offered during the debate over the terrorism bill, would have limited such restitution to only the federal government. As we know all too well from recent events, however, it is state and local authorities, along with private victims, who are often the first responders and primary victims when these incidents occur. This bill would provide a mechanism so that they too can be reimbursed for their expenses. For all of these reasons, I am pleased to introduce this legislation and I urge its swift enactment into law. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Madam President, I have listened closely to some aspects of this debate, especially the amendment presently pending, raised by my distinguished colleague from my neighboring State of New Hampshire. I had the honor of serving for 8 years on the Senate Intelligence Committee, where I was vice chairman. I have enormous regard for the current chairman and vice chairman of the committee. I have also served as both ranking member and chairman of the Judiciary Committee. As I listened to the debate, something sounded familiar. Indeed, this amendment was raised during the debate in preparation of the antiterrorism bill that the Congress passed and the President signed last month. There was no enthusiasm for it from Republicans or Democrats. We looked at it, the White House looked at it, and the Justice Department looked at it. None of us were interested in including it in what became the USA Patriot Act. The idea of having a quasi-secret court, and making only limited evidence available to the defendant, as is true under existing law, is constitutionally questionable enough. But to say that we will not tell the defendant any of the evidence against him in the court, as Senator Smith proposes, is the kind of thing we rail against when other countries do it. Our government officials have gone all the way to the head of state level to register complaints when Americans have been held in other countries without being informed of the charges against them. Every President I have known has been forced at one time or another to raise such issues with another head of state. We should not make this task more difficult by approving of the amendment Senator Smith has offered here. Let us look at a little bit of history. The Alien Terrorist Removal Court was created in 1996. It was done largely through the efforts of Senators Hatch and Dole. It exists to provide a way for the Government to remove terrorist aliens whom it believes it cannot attempt to remove through public hearings, to balance the Government's need to maintain its existing intelligence sources while giving some rights to the accused. Under the law as it presently exists, the accused does not see the actual evidence against him but does receive an unclassified summary of that evidence. The law states very clearly that that unclassified summary has to be ``sufficient to enable the alien to prepare a defense.'' Under the amendment that Senator Smith has presented, an alien accused of being a terrorist would receive no information about the basis of the charges against him, not even the limited summary provided in existing law. If we were to pass something of this nature, there is no way the President of the United States or the Secretary of State or the Attorney General could go to any other country holding an American on undisclosed evidence and demand to see that evidence. That nation could simply say that it is doing what the United States, the country seen as the bulwark of freedom, is doing, the United States that has had a written Constitution that has survived for all these years. The U.S. Constitution, as written and interpreted over the last two centuries, makes it clear that the government cannot bring somebody into a court and say: ``We have all this information against you, but we are not going to tell you what it is. Are you guilty of what we have against you? I am not going to tell you what it is we have against you, but I want to know, are you guilty or not? And, if you are not guilty, then defend yourself against these charges we have brought. Sorry, you can't see the charges. Sorry, you can't hear the evidence. Sorry, we can't let you know what is going on. But we will give you a chance to defend yourself.'' It doesn't quite work that way. Anybody in this body who has been either a prosecutor or defense attorney, on either side, would not want that. The distinguished Presiding Officer knows as well as any Senator here the terrible nature of September 11. Her State was impacted in a horrible way, as were the surrounding States of New Jersey and Connecticut, just as the State of Virginia has been horribly harmed by the attack on the Pentagon. Nobody has stated the horror, the anger, and the feelings left in the wake of the September 11 attacks in a more articulate way than the distinguished Presiding Officer. We all share those feelings. But nobody here has ever suggested that we somehow abandon all our laws, all our rules, our Constitution and everything we stand for, the very democracy that got the terrorists to attack us. In effect, we would say, ``We surrender.'' The Senator from New York, the Senator from Vermont, the Senator from Florida, all 100 of us--none of us is about to surrender. We understand there is a problem with terrorism. I suspect throughout my lifetime we will face threats. But let's answer the threats in the ways that comport with what our constitutional history and our history as a nation. The Alien Terrorist Removal Court has not been used, but that is not because an unclassified summary has to be provided to the defendant. The Justice Department talked to us about why the court is not being used, and did not mention this. When the Department was given the opportunity to consider this amendment at the time of the terrorism bill, it did not want it. I suspect that this lack of interest is related to concerns within the Justice Department about constitutional challenges to the court itself, as it is formulated under existing law. Surely the Justice Department knows that if we approve this amendment those constitutional challenges will basically be irrefutable. We provide substantial new powers to the Justice Department with regard to terrorist aliens through the antiterrorism legislation we just passed, legislation I voted for, the distinguished senior Senator from Florida voted for, his colleague, the other Senator from Florida voted for; the distinguished Presiding Officer voted for it--98 of us voted for it. That legislation should make it easier for the Justice Department to use this court. But as chairman of the Judiciary Committee, I could never support this amendment, which has already been rejected once by the administration and by Republicans and Democrats who negotiated the antiterrorism bill. I certainly could not accept it absent any showing of why it is needed. I say to my friend from Florida, the distinguished chairman, that I have no problem calling upon the administration to notify the Judiciary Committee if it really believes a change in the law is needed. The administration did not believe this a couple of weeks ago. But if the Attorney General now believes he needs something such as this, I will be glad to hold hearings on the issue and bring his concerns forward. But to do something of such constitutional magnitude in an amendment on the floor, without any hearings in the Judiciary Committee or Intelligence Committee, is simply inappropriate. Madam President, we need to go back to basic constitutional law 101 here. The idea of giving the government the ability to bring removal proceedings against someone and force him to defend himself without telling him of the evidence against him flies in the face of all of our principles. We must not tell the rest of the world that the only way we can defend ourselves is to accuse somebody but not tell him what the evidence is against him. Back in the 1700s, we fought a revolution to ensure a much different principle. All of us share the terror of what happened. All of us are opposed to terrorists. All of us want to defend the United States. But we must not let our enthusiasm to defend our Nation lead us to do things that will hurt us further. Frankly, I would be delighted to have the Attorney General take a look at Senator Smith's amendment and see what he thinks. But I tell my friend from Florida that I certainly do not support this amendment, because the constitutional questions raised are of such enormous magnitude. To do so without any request from the administration and without any hearings would not be a responsible action for this body to take. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I congratulate the nominee and his family on his nomination and on what is soon to be his confirmation by the Senate and appointment by the President to the United States District Court for South Carolina. I thank all members of the Judiciary Committee for their attention to this nomination and thank the majority leader for his help in scheduling this vote. Since July 2001, when the Senate was allowed to reorganize and the committee membership was set, we have maintained a strong effort to consider judicial and executive nominees. With the confirmation of Judge Wooten, we reach additional milestones. Judge Wooten is the 17th judicial nominee we have confirmed since July. That is more total judges this year than were confirmed in 1989, the first year of the first Bush administration, and as many as were confirmed in all of the 1996 session. Of course, in 1996, the Senate majority at that time did not proceed on a single nominee to a Court of Appeals and limited itself to confirming only 17 judges to the District Courts. We have this year already confirmed four nominees to the Courts of Appeals. Thus, despite all the upheavals we have experienced this year with the shifts in chairmanship and, more importantly, the need to focus our attention on responsible action in the fight against international terrorism, we have matched or beaten the number of confirmations of judges during the first year of first Bush administration and the last year of the first Clinton term. As a judge on the United States District Court, Judge Wooten will have a vital role to play in protecting and preserving our civil liberties in the days ahead. Our system of checks and balances requires that the judicial branch review the acts of the political branches. Judge Wooten served as the Republican Chief Counsel of the Judiciary Committee when he worked for Senator Thurmond. Senator Thurmond has been an advocate for this nominee from the beginning. Earlier today the Judiciary Committee considered the Wooten nomination and voted without objection to report it to the Senate. Our bipartisanship in these matters was amply demonstrated by our moving as soon as possible in the wake of a serious allegation of wrongdoing to consider and report a former Republican staff member for the respected senior Republican in the Senate. I held an expeditious hearing for Judge Wooten on August 27, during the August recess of the Senate. On the morning of the hearing, we received serious allegations about him. These allegations raised questions about whether he had provided confidential materials to people outside the committee and the Senate with regard to the Clarence Thomas nomination. I asked Judge Wooten questions about the allegations and his actions, and he answered my questions. Senator Hatch and I agreed that the best course of action would be to ask the FBI to investigate this situation fully. We had been awaiting the results of that investigation until just recently. Once members of the Judiciary Committee had a chance to review the FBI materials and all other materials surrounding this nomination, we brought it to a vote. I believe that the allegations raised against Judge Wooten were serious and were worthy of inquiry. It appears to me from materials published in the aftermath of the confirmation battle that confidential committee materials were made available, contrary to our rules, to some outside the committee and the Senate. Having asked Judge Wooten about his involvement and having received his denials, I cannot say that there is a strong evidentiary basis on which to challenge his credibility or his denials with regard to his involvement in such matters. I have taken Judge Wooten at his word and voted to report his nomination. This afternoon I will vote in favor of this nomination. This week we held our ninth hearing on judicial nominations since I became chairman, when the Senate was allowed to reorganize and this committee was assigned its membership on July 10, 2001. We held our fifth hearing on judicial nominations since September 11. Overall we have held hearings on 28 judicial nominees, including seven to the Courts of Appeals. Since September 11 we have held hearings on 21 judicial nominees, including four to the Courts of Appeals. Within 2 days of the terrible events of September 11, I chaired a confirmation hearing for the two judicial nominees who drove to Washington while interstate air travel was still disrupted. Then on October 4, 2001 we held another confirmation hearing for five judicial nominees, which included a nominee from Nebraska who was unable to attend the earlier hearing because of the disruption in air travel. On October 18, 2001, in spite of the closure of Senate office buildings in the wake of the receipt of a letter containing anthrax spores and Senate staff and employees were testing positive for anthrax exposure, the committee proceeded under extraordinary circumstances in the U.S. Capitol to hold a hearing for five more judicial nominees. The building housing the Judiciary Committee hearing room was closed, as were the buildings housing the offices of all the Senators on the committee. Still we persevered. Two weeks ago, while the Senate Republicans were shutting down the Senate with a filibuster preventing action on the bill that funds our Nation's foreign policy initiatives and provides funds to help build the international coalition against terrorism, the Judiciary Committee nonetheless proceeded with yet another hearing for four more judicial nominees on October 25, 2001. Yesterday we convened the fifth hearing for judicial nominees within eight extraordinary weeks--weeks not only interrupted by holidays, but by the aftermath of the terrorist attacks of September 11, the receipt of anthrax in the Senate, and the closure of Senate office buildings. Yesterday's hearing was delayed by another unfortunate and unforseen event when one of the family members of one of the nominees grew faint and required medical attention. With patience and perseverance, the hearing was completed after attending to those medical needs. In addition, during the time during which we held five hearings on judicial nominees, we devoted our attention and efforts to expedited consideration of anti-terrorism legislation. Far from taking a ``time out'' as some have suggested, this committee has been in overdrive since July and we redoubled our efforts after September 11, 2001. With respect to law enforcement, I have noted that the Administration was quite slow in making U.S. Attorney nominations, although it had called for the resignations of U.S. Attorneys early in the year. Since we began receiving nominations just before the August recess, we have been able to report and the Senate has confirmed approximately 50 of these nominations. We have a few more with incomplete paperwork and we await approximately 35 nominations from the administration. These are the President's nominees based on the standards that he and the Attorney General have devised. I have asked for the standards and criteria they are using, but, as far as I am aware, have not received the courtesy of a reply. I note, again, that it is most unfortunate that we still have not received even a single nomination for any of the U.S. Marshal positions. U.S. Marshals are often the top Federal law enforcement officer in their district. They are an important frontline component in homeland security efforts across the country. It now appears that we will end the year without a single nomination for these 94 critical law enforcement positions. In the wake of the terrorist attacks on September 11, many of us have been disdaining partisanship to join together in a bipartisan effort in the best interests of the country. There were reports within 10 days of September 11 that some Republicans were disappointed because they would not be able to filibuster appropriations bills and contend that the Senate was treating Bush judicial nominees as badly as they had treated the Clinton nominees. Their initial disappointment apparently dissipated within days because they did initiate a 3-week filibuster of the foreign operations appropriations bill. That is the bill that contains funding for our international antiterrorism coalition building activities as well as other essential military and humanitarian programs. Fortunately, cooler heads prevailed and that filibuster ultimately faded. There have been other press accounts that some Republican operatives are trying to engage the White House and, even more unfortunately, the Department of Justice in a partisan effort to try to take political advantage of the aftermath of the September 11 attacks. Were those efforts to go forward, that would be disappointing. The bipartisan effort against terrorism is not something that Republicans should try to manipulate in such a way. Had the Senate moved more efficiently on nominations over the last 6 or 7 years, we would not have had so many vacancies perpetuated under their previous Senate majority. And finally, as the facts establish and as our actions today again demonstrate, we are moving ahead to fill judicial vacancies with nominees who have strong bipartisan support. These include a number of very conservative nominees. We have proceeded on nominees with mixed ABA peer reviews, including an Arizona nominee who was included in the hearing just yesterday. As I have noted, we have already confirmed more District Court judges since July of this year than were confirmed in the entire first year of the first Bush administration. Had the administration not changed the confirmation process from the precedents that had served us for more than 50 years, we might have been able to confirm a few more. The President has yet even to nominate to 46 District Court vacancies. I hope that he will work with the Senate to make sure those nominations will be consensus nominees and that they can be considered promptly. Because the White House was slow to name District Court nominees this year, the bulk of those who have not had hearings do not even have ABA peer review ratings. When this administration unilaterally changed the process from that followed by all prior Presidents beginning with Eisenhower, it backloaded the process. There are still nine nominees, received since September 10, who do not have ABA peer reviews. Several others have received mixed reviews that require additional time and study. I have noted that at our most recent hearing we included a District Court nominee from Arizona with a review that includes a minority of the peer review declaring the candidate ``not qualified'' to be a District Court judge. In addition, there are at least two more with those mixed ratings and at least one District Court nominee with a ``not qualified'' rating. Those ratings caution against rushing people through the confirmation process. With this confirmation today, the Senate will have confirmed another five District Court judges just this week. We held a hearing for five more District Court nominees yesterday. We have an additional three District Court nominees who could be considered as soon as they finish their paperwork and answer questions about their criminal histories. Thus, having confirmed 13 District Court judges in record time, we could confirm an additional eight with cooperation from the White House, nominees and our Republican colleagues.

Mr. LEAHY

Mr. LEAHY. Madam President, I rise to introduce the Anti-Terrorist Hoax and False Report Act of 2001. The bill would provide a new tool for law enforcement to deal with the problem of serious hoaxes and malicious false reports relating to the use of weapons of mass destruction, or biological, chemical, or nuclear weapons. These so- called ``hoaxes'' inflict both mental and economic damage on victims. They drain away scarce law enforcement resources from the investigation of real terrorist activity. They interrupt vital communication facilities. Finally, they feed a public fear that the vast majority of law abiding Americans are working hard to dispel. Federal, State, and local law enforcement already have statutes which they have been using aggressively to prosecute those who have taken advantage of these times to perpetrate hoaxes about anthrax contamination. Existing statutes create serious penalties for threats to use biological, chemical, or nuclear weapons, for sending any threatening communication through the mail, or for making a willful false statement to federal authorities. For example 18 U.S.C. Sec. Sec. 175, 229, 2332a, and 831 all have their own threat provisions punishable by up to life imprisonment. In addition, 18 U.S.C. Sec. 876 makes it a five year felony to mail a threatening communication of any type; and 18 U.S.C. Sec. 1001 makes it a five year felony to willfully make any false statement, or even willfully omit a material fact in a matter under the jurisdiction of a federal agency. In a recent Subcommittee hearing of the Judiciary Committee, James T. Caruso, the Deputy Assistant Director of the FBI's Counter-terrorism Division, stated that there are at least 11 Federal hoax cases which have actually been charged under existing statutes since September 11, 2001. Just last week a Federal conviction was obtained in Oakland, California under 18 U.S.C. Sec. 175, which carries a statutory maximum penalty of life imprisonment, for an anthrax hoax which occurred back in January of 1999. Thus, existing Federal statutes are already being employed to prosecute these cases when Federal prosecution is appropriate. In addition, numerous State provisions are available and are being used to prosecute these cases at the State and local level. Indeed, current Federal threat laws do not require that the defendant have either the intent or present ability to carry out a threat, which enables prosecutors to use such laws to prosecute these serious hoaxes. At the same terrorism hearing, Deputy Assistant Director Caruso made it clear that authorities are able to prosecute even ``non-credible'' threats under current Federal laws. However, while they carry high penalties, including a maximum of life imprisonment, at the same hearing James Reynolds, from the Department of Justice's Section on Terrorism and Violent Crime, indicated that these statutes can sometimes be awkward when applied in the hoax context. What this bill provides, is a well tailored statute that deals specifically with the problem of biological, chemical, mass destruction, and nuclear ``hoaxes'', that is, actions taken with the malicious intent to deceive the victim. For instance, it gives prosecutors a means to distinguished between a person who is actually threatening to use anthrax on a victim on one hand, and a person who never intends to use it, but truly wants the victim or the police to think they have done so, on the other. In the later case the statute creates a new five year felony. The bill requires that the defendant act ``knowingly and maliciously,'' so that we do not federalize juvenile pranks or the misguided though innocent spreading of rumors. For instance, a local prosecutor in Chicago recently placed an envelope containing sugar on a colleague's desk. He was administratively punished by being forced to resign from his job. In Utah, a disabled miner was charged locally because he put sugar and Nesquik into a junk mail envelope. In Anne Arundel County, MD, two juveniles were arrested after they placed powder in an envelope and did not even mail it, but it was found by someone else and reported, engendering an unintended emergency response. In Ohio, a security guard ``super-glued'' a telephone in a county welfare building, and when the glue left a powdery residue it caused a anthrax scare. In Williamsport, PA a firefighter is being prosecuted locally on a felony charge for claiming that he received a letter containing white powder at his home. These types of incidents do not merit a lengthy term in Federal prison. As the examples I have listed above demonstrate, we have appropriately serious ways to deal with cases when Federal criminal prosecution is not needed. Indeed, law enforcement agencies or private companies of the conduct ``readiness testing'' so that they will be able to deal with serious chemical or biological weapon threats. For instance, three weeks ago a Kentucky sheriff conducted such a readiness drill by leaving an envelope filled with crushed aspirin on a desk at a county courthouse in order to test the response. Requiring a malicious mens rea will ensure also that we do not criminalize or chill this type of admirable proactive effort. In sum, malicious acts deserve Federal felony prosecution; innocent bad judgment and juvenile behavior do not, and neither do laudable efforts by police and private actors to preserve readiness for biological or chemical attack. Another provision in the bill would provide for mandatory restitution to any victim of these crimes, including the costs of any and all government response to the hoax. An earlier Administration proposal, offered during the debate over the terrorism bill, would have limited such restitution to only the federal government. As we know all too well from recent events, however, it is state and local authorities, along with private victims, who are often the first responders and primary victims when these incidents occur. This bill would provide a mechanism so that they too can be reimbursed for their expenses. For all of these reasons, I am pleased to introduce this legislation and I urge its swift enactment into law. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today in support of the FY 2002 District of Columbia appropriations bill. I want to congratulate Senator Landrieu and Senator DeWine for their hard work in crafting this annual appropriations bill for the District of Columbia. This is an important piece of legislation and they have done their best to help ensure that the District of Columbia gets the resources it needs to run our Nation's capital. In addition to many important policy provisions and essential funding provisions, this legislation removes several restrictions Congress has placed upon the District of Columbia during the last several years. These congressional provisions have prevented locally passed laws and initiatives from being implemented even with the use of local funds. With the leadership of Senator Landrieu, the underlying legislation takes the necessary steps to correct those past wrongs. I am particularly pleased with Senator Landrieu's leadership in lifting the restriction limiting the autonomy of the local government in the District of Columbia and the rights of domestic partners who reside here. For the past 9 years, Congress has prohibited the District from using Federal or local funds to enact the locally passed Health Care Benefits Expansion Act. This law, passed by the D.C. City Council in 1992, would allow domestic partners to register with the Mayor's office. The Health Care Benefits Expansion Act would require all health care facilities to grant domestic partners visitation rights, and allow District employees to purchase health insurance at their own cost for domestic partners. This law recognizes the legal and civil rights of domestic partners in the District of Columbia and is similar to laws passed by more than 100 jurisdictions and city governments throughout this country-- including my own State of Vermont. Vermont passed its version of a domestic partnership law for health benefits in 1994. Last year, our State went even further when it took the bold and courageous step of extending the same legal State benefits already enjoyed by married couples to same sex couples. This restriction Congress placed on the D.C. Government sent the wrong message to District residents and local officials by telling the people of Washington, DC, that the U.S. Senate knows best how local officials should spend their local dollars. This restriction sent the wrong message to the American public by disregarding the rights of domestic partners. I am pleased that the Senate has not continued down the unfortunate path of dictating social policy for the District of Columbia. During consideration of the D.C. appropriations bill last month, the House Appropriations Committee approved an amendment to remove the ban on the use of local funds to implement the Health Benefits Expansion Act. During the House debate on the legislation, the provision prevailed, despite an effort similar to the one before us today to reinstate the ban on local funds. Our colleagues in the House have spoken on this measure, and the Senate has concurred. This is a challenging time for our entire Nation. During this time, leaders at all levels of government--especially our local leaders--are working to ensure the safety and preparedness of their communities. Mayor Anthony Williams and the local government of the District of Columbia should be provided the same opportunity to perform those duties, and others, as are enjoyed by other cities and jurisdictions throughout the Nation. With the hard work of Senator Landrieu, the underlying bill recognizes the rights of D.C. residents and their elected officials to debate and decide for themselves the same policy questions that each of the states and cities in our country may debate and decide for themselves. The issue of the rights of domestic partners--like rights for women, racial minorities, and people with disabilities--is one of basic civil rights for all people. Individuals should be evaluated on the basis of what they can offer and what they can contribute--not on irrelevant considerations like their race, gender or sexual orientation. It is a question of fundamental fairness. The United States Congress did not interfere with Vermont's approach to providing equal access to health insurance benefits, or with any of the other cities and localities throughout the country that passed their own laws governing domestic partnership. I strongly believe that Congress should follow its own example set in those instances, and should not treat the District of Columbia any differently. Again, I applaud Senator Landrieu for her leadership in drafting this bill and I encourage my colleagues to vote in support of the FY 2002 District of Columbia appropriations bill.

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate confirmed M. Christina Armijo of New Mexico to be a United States District Judge for the District of New Mexico. We now have the opportunity to act on the nominations of two additional judicial nominees. When we vote to confirm Karon Bowdre of Alabama and Stephen Friot of Oklahoma, the Senate will have confirmed 16 judges since July 20 of this year. When we confirm these District Court nominees, the Senate will have confirmed more District Court judges this year than were confirmed in the entire first year of the first Bush administration in 1989. In addition to our work on the antiterrorism legislation since September 11, the Senate Judiciary Committee has persevered in the wake of the terrible events of September 11 and will by tomorrow have held 5 hearings for 21 judicial nominees. Within 2 days of the terrible events of September 11, I chaired a confirmation hearing for the two judicial nominees who were able to drive to Washington while interstate air travel was still disrupted. At our committee meeting on October 4, 2001, we reported those two judicial nominees and held another confirmation hearing on five judicial nominees that same day. On October 18, 2001, in spite of the closure of Senate office buildings in the wake of the receipt of a letter containing anthrax spores and Senate staff and employees testing positive for anthrax exposure, the Committee proceeded with its previously scheduled business meeting under extraordinary circumstances in the United States Capitol and reported four judicial nominees favorably to the Senate. On that same day, despite the unavailability of the Judiciary Committee hearing room and the closure of Senators' offices, we proceeded with another confirmation hearing for an additional five judicial nominees. Two weeks ago, while the Senate Republicans were shutting down the Senate with a filibuster preventing action on the bill that funds our nation's foreign policy initiatives and provides funds to help build the international coalition against terrorism, the Judiciary Committee nonetheless proceeded with yet another hearing for four more judicial nominees on October 25, 2001, our third hearing involving judicial nominees in October. Tomorrow morning we are holding another hearing for five more judicial nominations. The facts are that since the committee was assigned its members on July 10, 2001, the committee will have held nine hearing involving 28 judicial nominees. By tonight the Senate will have already confirmed 16 judges, including four to the Courts of Appeals. These numbers show that there have been more hearings for more nominees, more confirmations of more judges to the District Courts, and more confirmations of more judges to the Courts of Appeals this year than by the same date in either the first year of the first Bush administration or the first year of the Clinton administration. The facts are that the Judiciary Committee and the Senate are ahead of the confirmation pace for judicial nominees in the first year of the first Bush administration or the first year of the Clinton administration. I know that Karon Bowdre has the strong support of the senior Senator from Alabama who came to introduce her at her hearing. I am told that Senator Sessions came to the floor earlier today to speak in support of this nomination. I recall that the senior Senator from Oklahoma came to the hearing to speak in favor of Stephen Friot and that he has the support of Senator Inhofe, as well. Both these nominees were among those District Court nominations sent to the Senate just before the August recess. They had to be returned to the White House without action when the Republican leader objected to retaining them here over the recess. They were nominated in early September and the Committee received their ABA peer review ratings in early October. They were then scheduled to participate in a hearing on October 18, considered by the committee at last week's business meeting and are being confirmed today, November 6, which is approximately 1 month after receiving the ABA ratings. I congratulate the nominees and their families on these confirmations.

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate will pass the fiscal year 2002 appropriations bill for the Departments of Labor, Health and Human Services, and Education and Related Agencies--the largest of the 13 appropriations bills before Congress this year. This measure contains support for some of the most important aspects of our Nation's work such as medical research that leads to advancements in health, the education of our youth from preschool through college, assistance to the elderly and those with disabilities, and the training of workers seeking employment. While there are many noteworthy initiatives in this bill, I would like to highlight just a few that are particularly important to Vermont. Hope for a cure for many diseases and illnesses must come through research and I am pleased that the Senate continues to work toward our goal of doubling the Federal Government's investment in the groundbreaking biomedical research conducted by the 25 Institutes and Centers that make up the National Institutes of Health. With this strong support, NIH funding for next year will increase to $23.7 billion, an increase of $3.4 billion over last year. Millions of Americans suffering from conditions ranging from Parkinson's and Alzheimer's diseases, to cancer, diabetes and heart disease, will benefit from the research undertaken by the thousands of NIH scientists, including many in Vermont, supported by this funding. This bill establishes an Aging Initiative that takes important steps toward assisting senior citizens in Vermont and throughout America. The Initiative is designed to increase the capacity of home- and community- based services to support a high quality life for older Americans. An Interagency Task Force on Aging Programs will coordinate and provide additional support to programs that serve older Americans. Increased funding has been provided for supportive services and senior centers, long-term care ombudsmen to prevent and address the problem of elder abuse and neglect, the National Family Caregiver Support Program, elderly nutrition programs to expand home delivered meal distribution, and Alzheimer's disease research. I am confident that this effort will result in an improved quality of life for our nation's seniors, especially for those living in rural parts of our nation. This legislation includes important funding for education that will support learning opportunities for Vermont schoolchildren of all ages. Funding for the Head Start Program, which provides comprehensive developmental education services for pre-kindergarten, low-income children, has been increased by $400 million. We have increased funding to assist low-income students who want to receive a college education. This bill will raise the maximum Pell Grant available to American college students from $3,750 to $4,000. This is the highest Pell Grant maximum in the history of the program. We have also increased funding for our students with special education needs by $1 billion. Although this increase brings us a step closer toward meeting our responsibilities under the Individuals with Disabilities Act, we still must do more. House and Senate Conferees on the bill to reauthorize the Elementary and Secondary Education Act currently have before them the opportunity to mandate that the federal government increase its share of special education funding to 40 percent of IDEA spending from its current level of 15 percent. I strongly urge my colleagues to support this provision. It will provide significant relief to state and local governments as they strive to pay for the quality educational services that our nation's disabled students need and deserve. I am very pleased that the Senate has provided increased funding for the Office of Civil Rights, OCR, at the Department of Health and Human Services. OCR is responsible for the enforcement of civil rights- related provisions in health and human services programs. Earlier this year, OCR's responsibilities were vastly expanded with the release of the final medical privacy regulation by HHS. Quality enforcement of this new regulation is essential to the protection of Americans' medical privacy. This increased funding will ensure that OCR can fulfill its new medical privacy enforcement obligations without dereliction from its many other civil rights enforcement responsibilities. Finally, I am pleased that this bill includes $1.7 billion in funds for the Low-Income Home Energy Assistance Program and an additional $300 million in emergency funds. LIHEAP is a critical program for citizens of states like Vermont, who endure long, cold winters. Last year LIHEAP helped nearly 18,000 Vermont families stay warm. I am concerned that demand for this program will rise dramatically this winter as the economy slows and incomes decline. I want to thank the Committee for including a significant increase in LIHEAP funding in anticipation of this great need. This spending bill is not perfect. There are areas where increased funding is still needed. However, we have taken the right steps in many important health, education, and human service programs, and I am pleased to support a measure that provides such great benefit to Vermonters.

Mr. LEAHY

Mr. LEAHY. Mr. President, I urge all Senators to vote for Ms. Armijo. I also thank both Senator Domenici and Senator Bingaman for working with the committee and with the President to help complete her confirmation. In fact, when she is confirmed, we will have confirmed as many district judges since July as we confirmed in the entire first year of the first Bush administration. I thank the Senators for working together. It made our job much easier. Both Senators strongly support her. I ask for the yeas and nays.

Mr. LEAHY

Mr. LEAHY. Madam President, my wife was kind enough to remind me that 27 years ago today I was first elected to this body. I am not quite sure I knew at the time I was first elected what I might be doing here today. I say to the distinguished Presiding Officer, when I took office, the Senate was comprised of 99 men, with one seat vacant because of a tied race in New Hampshire. Madam President, I must say, both on my feelings as a Vermonter and as a Senator with some seniority, I am delighted to see the changing face of the Senate that the distinguished Presiding Officer, and many others, have brought to it. We should, of course, have a far better balance of both men and women in this body, just as we have those who range across the political spectrum. Today we will confirm another judicial nominee--actually our 13th since July 20. Since becoming chairman of the Judiciary Committee, after the delay in Senate reorganization and assignment of Committee members, I have taken seriously the responsibility to fill these vacancies on the federal courts around the country with consensus nominees. Larry Hicks is another candidate strongly supported by both of his home State Senators. One of his home State Senators is the deputy leader among Democrats, the other a well-respected, strong Republican. We have confirmed as many court of appeals judges as were confirmed in the entire first year of the Clinton administration in 1993-- actually four more than the zero total confirmed by the Senate under other control in all of the 1996 session. We are moving forward. I think we have hearings on five more judicial nominees this week. Of these nominees, the ABA peer reviews on several were only completed and received last week. I remind the White House that we still have at least 10 or so nominees who do not have their ABA ratings here, having been nominated on September 10 or thereafter. The consequences of the unilateral changes that the Administration made in March to the procedures that had governed the judicial confirmation process for more than 50 years are still being felt. Others have not finished their paperwork. We are happy to help the White House with that. In spite of the special circumstances that have arisen this year, we remain well ahead of the pace for the confirmation of judges during the first year of the first Bush administration and the first year of the Clinton administration. I wanted to take the floor to thank both Senator Reid and Senator Ensign for working so closely together to bring us someone with such strong bipartisan support. I also thank Larry Hicks. I think the White House is well intentioned, but he was given poor advice on his paperwork and how to answer the written follow up questions after his hearing. After a quick phone call from Senator Reid to him, he immediately faxed a letter to help complete his paperwork--the only thing holding up the nomination. I hope that will be an example to others. It took about a 3-minute phone call and a fax, and we are done. I applaud both Senators for working this out. I yield the floor.

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

Mr. LEAHY. I yield such time to Senator Reid as he may need.

Mr. LEAHY

Mr. LEAHY. Mr. President, in June 1999, the U.S. Supreme Court issued a pair of decisions that altered the legal landscape with respect to intellectual property. I am referring to the Florida Prepaid and College Savings Bank cases. The Court ruled in these cases that States and their institutions cannot be held liable for patent infringement and other violations of the Federal intellectual property laws, even though they can and do enjoy the full protection of those laws for themselves. About 4 months after the Court ruled in these cases, I introduced a bill that responded to the Court's decisions. The Intellectual Property Restoration Act of 1999 was designed to restore Federal remedies for violations of intellectual property rights by States. I regret that the Senate Judiciary Committee did not consider my legislation during the last Congress, and that the Senate has yet to give any attention to the nearly 2-year-old Supreme Court decisions that opened such a troubling loophole in our Federal intellectual property laws. We should delay no further. Today, I am introducing the Intellectual Property Protection Restoration Act of 2001, IPPRA. This legislation builds on my earlier proposal and on the helpful comments I received on that proposal from legal experts across the country. In particular, I would like to thank Justin Hughes, David Carson, Steve Tepp, Michael Kirk, Michael Klipper, and John Kent for their assistance in improving and refining this legislation. I also want to thank the House sponsors of the counterpart bill, Howard Coble and Howard Berman, who are the chairman and ranking member of the Subcommittee on Courts, the Internet, and Intellectual Property. The IPPRA has two essential components. First, it places States on an equal footing with private parties by eliminating any damages remedy for infringement of State-owned intellectual property unless the State has waived its immunity in Federal suits for infringement of privately owned intellectual property. Second, it improves the limited remedies that are available to enforce a nonwaiving State's obligations under Federal law and the United States Constitution. I will discuss both provisions in more detail later in these remarks. Innovation and creativity have been the fuel of our national economic boom over the past decade. The United States now leads the world in computing, communications and biotechnologies, and American authors and brand names are recognized across the globe. Our national prosperity is, first and foremost, a tribute to American ingenuity. But it is also a tribute to the wisdom of our Founding Fathers, who made the promotion of what they called ``Science and the Useful Arts'' a national project, which they constitutionally assigned to Congress. And it is no less of a tribute to the successive Congresses and administrations of both parties who have striven to provide real incentives and rewards for innovation and creativity by providing strong and even-handed protection to intellectual property rights. Congress passed the first Federal patent law in 1790, and the U.S. Government issued its first patent the same year, to Samuel Hopkins of my home State of Vermont. The first Federal copyright law was also enacted in 1790, and the first Federal trademark laws date back to the 1870s. The Supreme Court has long recognized that intellectual property rights bear the hallmark of true constitutional property rights, the right of exclusion against the world, and are therefore protection against appropriation both by individuals and by government. Consistent with this understanding of intellectual property, Congress has long ensured that the rights secured by the Federal intellectual property laws were enforceable against the Federal Government by waiving the government's immunity in suits alleging infringements of those rights. No doubt Congress would have legislated similarly with respect to infringements by State entities and bureaucrats had there been any doubt that they were already fully subject to Federal intellectual property laws. But there was no doubt. States had long enjoyed the benefits of the intellectual property laws on an equal footing with private parties. By the same token, and in accordance with the fundamental principles of equity on which our intellectual property laws are founded, the States bore the burdens of the intellectual property laws, being liable for infringements just like private parties. States were free to join intellectual property markets as participants, or to hold back from commerce and limit themselves to a narrower governmental role. The intellectual property right of exclusion meant what it said and was enforced even-handedly for public and private entities alike. This harmonious state of affairs ended in 1985, with the Supreme Court's announcement of the so-called ``clear statement'' rule in Atascadero State Hospital versus Scanlon. The Court in Atascadero held that Congress must express its intention to abrogate the States' 11th Amendment immunity ``in unmistakable language in the statute itself.'' A few years later in Pennsylvania versus Union Gas Co., the Supreme Court assured us that if the intent to abrogate were expressed clearly enough, it would be honored. Following Atascadero, some courts held that States and State entities and officials could escape liability for patent, copyright and trademark infringement because the patent, copyright and trademark laws lacked the clear statement of congressional intent that was now necessary to abrogate State sovereign immunity. To close this new loophole in the law, Congress promptly did precisely what the Supreme Court had told us was necessary. In 1990 and 1992, Congress passed three laws--the Patent and Plant Variety Protection Remedy Clarification Act, the Copyright Remedy Clarification Act, and the Trademark Remedy Clarification Acts. The sole purpose of the Clarification Acts was to make it absolutely, unambiguously, 100 percent clear that Congress intended the patent, copyright and trademark laws to apply to everyone, including the States, and that Congress did not intend the States to be immune from liability for money damages. Each of the three Clarification Acts passed unanimously. In 1996, however, by a five-to-four-vote, the Supreme Court in Seminole Tribe of Florida versus Florida reversed its earlier decision in Union Gas and held that Congress lacked authority under article I of the Constitution to abrogate the States' 11th amendment immunity from suit in Federal court. Then, on June 23, 1999, by the same bare majority, the Supreme Court in Florida Prepaid Postsecondary Education Expense Board versus College Savings Bank told us that it did not really mean what it said in Atascadero and invalidated the Patent and Plant Variety Protection Remedy Clarification Act. In the companion case decided on the same day, College Savings Bank versus Florida Prepaid Postsecondary Education Expense Board, the same five Justices held that the Trademark Remedy Clarification Act also failed to abrogate State sovereign immunity. The Florida Prepaid decisions have been the subject of bipartisan criticism. In a floor statement on July 1, 1999, I highlighted the anti-democratic implications of the approach of the activist majority of the Supreme Court, who have left constitutional text behind, ripped up precedent, and treated Congress with less respect than that due to an administrative agency in their haste to impose their natural law notions of sovereignty as a barrier to democratic regulation. I also noted that ``the Court's decisions will have far-reaching consequences about how * * * intellectual property rights may be protected against even egregious infringements and violations by the states.'' One of my Republican colleagues on the Judiciary Committee, Senator Specter, expressed similar concerns in a floor statement on August 5, 1999. He noted that the Court decisions ``leave us with an absurd and untenable state of affairs,'' where ``states will enjoy an enormous advantage over their private sector competitors.'' Charles Fried, a professor at Harvard Law School and former Solicitor General during the Reagan administration, has called the Florida Prepaid decisions ``truly bizarre.'' He observed in an op-ed piece in the New York Times: [The Court's decisions] did not question that states are subject to the patent and trademark laws of the United States. It's just that when a state violates those laws--as when it uses a patented invention without permission and without paying for it--the patent holder cannot sue the state for infringement. So a state hospital can manufacture medicines patented by others and sell or use them, and state schools and universities can pirate textbooks and software, and the victims cannot sue for infringement. It is hard to see what sense this makes, and the claim that ``the Constitution made me do it'' is particularly unconvincing. The 11th Amendment does protect states from suits in Federal courts by residents of other states--a provision almost certainly not intended to protect states from suits based on Federal law. Not surprisingly, alarm has also been expressed in the business community about the potential of the Court's recent decisions to harm intellectual property owners in a wide variety of ways. A commentary in Business Week offered these cautions: Watch out if you publish software that someone at a state university wants to copy for free . . . Watch out if you own a patent on a medical procedure that some doctor in a state medical school wants to use. Watch out if you've invested heavily in a great trademark, like Nike's Swoosh, and a bureaucrat decides his state program would be wildly promoted if it used the same mark. I believe that these concerns are real. As Congress acknowledged when it waived Federal sovereign immunity in this area, it would be naive to imagine that reliance on the commercial decency of the government and its myriad agencies and officials would provide the security needed to promote investment in research and development and to facilitate negotiation in the exclusive licensing arrangements that are often necessary to bring valuable products and creations to market. Indeed, the good intentions of government may be beside the point, if businesses are unwilling to enter into agreements because one side cannot be bound by the law. Since the Court issued its decisions in June 1999, intellectual property scholars and practitioners across the country have come together to explore ways for Congress to restore protection for federal intellectual property rights as against the States. The Patent and Trademark Office hosted a particularly enlightening conference in March 2000, in cooperation with the American Intellectual Property Law Association and the Intellectual Property Section of the American Bar Association. I commend the PTO for taking the initiative on this important issue. More recently, in September 2001, the General Accounting Office released a report requested by Senator Orrin Hatch on State Immunity in Infringement Actions. The GAO's research confirmed that, after Florida Prepaid, owners of intellectual property have few alternatives or remedies available against State infringements. A State cannot be sued in Federal court for damages except in the unlikely event that it waives its sovereign immunity. As for the State courts, there is little chance of success with infringement-type a actions for patents and copyrights because of Federal judicial preemption and an absence of State-recognized causes of action. Furthermore, even if infringement suits can be brought in State court, it may not be possible to bring them against States that have governmental immunity shielding them from suit in their own courts. What I have just described is a series of dead ends for intellectual property owners. That is why the two Federal agencies with expertise in intellectual property matters, the U.S. Copyright Office and the U.S. Patent and Trademark Office, have expressed their support for corrective legislation by Congress. As the Copyrights Office told the GAO, ``Only in this way can the proper balance, and basic fairness, be restored.'' I hope we can all agree on the need for congressional action on this issue. We need to assure American inventors and investors, and our foreign trading partners, that as State involvement in intellectual property becomes ever greater in the new information economy, U.S. intellectual property rights are backed by legal remedies. This is important as a matter of economics: Our national economy depends on real and effective intellectual property rights. It is also important as a matter of justice: In conceding that the States are constitutionally bound to respect Federal intellectual property rights but invalidating the remedies Congress has created to enforce those rights, the Court has jeopardized one of the basic principles that distinguishes our Constitution from the constitution of the old Soviet Union, the principle that where there is a right, there must also be a remedy. It is also important as a matter of foreign relations: American trading interests have been well served by our strong and consistent advocacy of effective intellectual property protections in treaty negotiations and other international fora, and those efforts could be jeopardized by the loophole in U.S. intellectual property enforcement that the Supreme Court has created. Like most of the constitutional experts who have examined the issue, I have no doubt that several constitutional mechanisms remain open to Congress to restore substantial protection for patents, copyrights and trademarks. The Supreme Court's hypertechnical constitutional interpretations require us to jump through some technical hoops of our own, but that the exercise is now not merely worthwhile, but essential to safeguard both U.S. prosperity and the continued authority of Congress. My bill is based on a simple premise: That there is no inherent, ``natural law'' entitlement to Federal intellectual property rights and remedies. In discussing the policies underlying the intellectual property laws, the Supreme Court has emphasized that intellectual property is not a right but a privilege, and that it is conditioned by a public purpose. For example, the Court wrote in Mercoid Corp. versus Mid-Continent Invest Co., a 1944 case, that ``The grant of a patent is the grant of a special privilege `to promote the Progress of Science and useful Arts,' '' and that ``It is the public interest which is dominant in the patent system.'' Similarly, in discussing the copyright laws in Fogerty versus Fantasy, Inc, the Court underscored that ``the monopoly privileges that Congress has authorized, while intended to motivate the creative activity of authors and inventors by the provision of a special reward, are limited in nature and must ultimately serve the public good.'' The Constitution empowers but does not require Congress to make intellectual property rights and remedies available, and Congress should do so in a manner that encourages and protects innovation in the public and private sector alike. States and their institutions, especially State Universities, benefit hugely from the Federal intellectual property laws. All 50 States own or have obtained patents, some hold many hundreds of patents. States also hold other intellectual property rights secured by Federal law, and the trend is toward increased participation by the States in commerce involving intellectual property. Principles of State sovereignty tell us that States and their instrumentalities are entitled to a free and informed choice of whether or not to participate in the Federal intellectual property system, subject only to their constitutional obligations. Equity and common sense tell us that one who chooses to enjoy the benefits of a law, whether it be a Federal research grant or the multimillion-dollar benefits of Federal intellectual property protections, should also bear its burdens. Sound economics and traditional notions of federalism tell us that it is appropriate for the Federal Government to assist and encourage the sovereign States in their sponsorship of whatever innovation and creation they freely choose to sponsor by giving them intellectual property protection and, on occasion, funding, so long as the States hold up their end of the bargain by honoring the exclusive rights of other intellectual property owners. The IPPRA builds on these principles. In order to promote cooperative federalism in the intellectual property arena, it provides reasonable incentives for states to waive their immunity in intellectual property cases and participate in our national intellectual property project on equal terms with private parties. States that choose not to waive their immunity within 2 years after enactment of the IPPRA would continue to enjoy many of the benefits of the Federal intellectual property system; however, like private parties that sue non-waiving states for infringement, nonwaiving States that sue private parties for infringement could not recover any money damages that would otherwise be available under Federal law. That is because Federal intellectual property that has been owned by a nonwaiving State would be short one ``stick'' from the usual bundle of rights accorded by Federal law: The ability to sue for damages under Federal law when the intellectual property has been infringed. This scheme is plainly authorized by the letter of the Constitution. Article I empowers Congress to ``promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.'' Incident to this power, Congress may attach conditions on the receipt of exclusive intellectual property rights. Indeed, we have always attached certain conditions, such as the requirement of public disclosure of an invention at the Patent and Trademark Office in order to obtain a patent. My proposal is also consistent with the spirit of federalism, as interpreted by the Supreme Court, because it gives State entities a free, informed and meaningful choice to waive or not to waive immunity at any time. The condition imposed on receipt of federal benefits by the IPPRA, submitting to suit under laws that are already binding on the States, is not onerous, nor does it co-opt any state resources to the service of Federal policy. It simply levels the intellectual property playing field. Congress may attach conditions on a State's receipt of Federal intellectual property protection under its Article I intellectual property power just as Congress may attach conditions on a State's receipt of Federal funds under its Article I spending power. Either way, the power to attach conditions to the Federal benefit is an integral part of the greater power to deny the benefit altogether. Either way, the State has a choice, to forgo the Federal benefit and exercise its sovereign power however it wishes subject to the Constitution, or to take the benefit and exercise its sovereign power in the manner requested by Congress. Three Federal appeals courts have applied similar reasoning in connection with the 1996 Telecommunications Act. The Courts of Appeals for the Fifth, Seventh, Tenth Circuits have reasoned that, because Congress was under no obligation to allow States to participate in the regulatory scheme established by the 1996 Act, Congress could validly condition a state commission's decision to exercise regulatory authority under the Act on its waiving sovereign immunity. This seems like plain common sense to me. It would be a truly bizarre reading of the Constitution to say that it is up to Congress whether or not to let States participate in telecom regulation or in the intellectual property regime, but that if we choose to let them participate, we cannot hold them accountable for their actions. Given the choice between opting in to the intellectual property laws and forging some intellectual property protection under the Federal laws, States and their institutions will, I hope, choose to opt in. The benefit--being able to recover damages for an infringement--is significant, while the burden--consenting to be sued for future State infringements--is slight. Most States already respect intellectual property rights and will seldom find themselves in infringement suits. However, some State entities and officials have violated intellectual property rights in the past, and the massive growth of both intellectual property and state participation in the intellectual property marketplace that we are seeing in the new economy give ample cause for concern that such violations will continue. Now that the Supreme Court has seemingly given the States carte blanche to violate intellectual property rights free from any adverse financial consequences so long as they stand on their newly augmented sovereign immunity, the prospect of States violating Federal law and then asserting immunity is too serious to ignore. The IPPRA therefore also provides for the limited set of remedies that the Supreme Court's new jurisprudence leaves available to Congress to enforce a nonwaiving State's obligations under Federal law and the United States Constitution. The key point here is that, while the Court struck down our prior effort to enforce the intellectual property laws themselves by authorizing actions for damages against the states, it nonetheless acknowledged Congress' power to authorize actions for injunctions and actions to enforce constitutional rights related to intellectual property. First, for the avoidance of doubt, the IPPRA ensures the full availability of prospective equitable relief to prevent States from violating or exceeding their rights under Federal intellectual property laws. As the Supreme Court expressly acknowledged in its Seminole Tribe decision in 1996, such relief is available, notwithstanding any assertion of State sovereign immunity, under what is generally known as the doctrine of Ex parte Young. Second, to address the harm done to the rights of intellectual property owners before they can secure an injunction, the IPPRA also provides a damages remedy to the full extent of Congress' power to enforce the constitutional rights of intellectual property owners. Under the Supreme Court's recent decisions, this remedy is necessarily limited to the redress of constitutional violations, not violations of the Federal intellectual property laws themselves. However, the Supreme Court has reaffirmed on may occasions that the intellectual property owner's right of exclusion is a property right fully protected from governmental violation under the Fifth amendment's takings clause and under the 14th amendment's due process clause. The constitutional remedy provided by the IPPRA closely resembles the remedy that Congress provided decades ago for deprivations of Federal rights by persons acting under color of State law. The bill does not expand the property rights secured by the Federal intellectual property laws--these laws are already binding on the States' nor does the bill interfere with any governmental authority to regulate businesses that own such rights. It simply restores the ability of private persons to enforce such rights against the States. I view this bill as an exercise in cooperative federalism. Clear, certain, and uniform national rules protecting Federal intellectual property rights benefit everyone: Consumers, businesses, the Federal Government and the States. The IPPRA preserves States' rights, and gives States a free choice. At the same time, it ensures effective protection for individual constitutional rights closing the loophole created by the Supreme Court of Federal rights unsupported by effective remedies. We unanimously passed more sweeping legislation in the early 1990s, but were thwarted by Supreme Court's shifting jurisprudence. The IPPRA is designed to restore the benefits we sought to provide intellectual property owners while meeting the Court's new jurisprudential requirements. There are to be sure, other approaches that Congress could take to address the problems created by the Court's decisions. In consultation with experts in intellectual property law and constitutional law, I reviewed several alternatives before settling on the IPPRA's approach. In the end, I concluded that the approach I have outlined is the best way to achieve a solution that meets any constitutional concerns, fosters State-Federal cooperation, and encourages American innovation and creativity to providing certain and effective intellectual property protection. when I first introduced the IPPRA in 1999, it prompted a flurry of constructive comments and suggestions on how the legislation could be improved. I look forward to considering further refinements to the bill as the legislative process moves forward. I ask unanimous consent that the text of the bill and a section-by- section summary of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, it has been seven weeks since the horrifying attacks on the World Trade Center and the Pentagon, and the crash of the plane in Pennsylvania. We have all struggled with a flood of thoughts and emotions about the frightening and tragic loss of life, the national response to this cruel, mindless assault on innocent people, and where we go from here. My wife Marcelle and I have received hundreds of phone calls, letters and e-mails from people who have offered thoughtful suggestions, and I have read many articles, opinion pieces, and heartfelt letters to the editor of the national and local newspapers. I do not pretend to have all the answers. No one does. The United States military is carrying out bombing missions against the Taliban and terrorist sites in Afghanistan. The situation is unpredictable, and we are learning more each day. But I do want to express some of my thoughts at this time. First and foremost, my thoughts are with the victims' families. It has been hard, very hard, to see the images of the families as they try to come to terms with the loss of loved ones. I also share the pride in how our firefighters, police and other emergency workers rushed to the scene intent on rescue without thought for their own safety. We are in awe of the bravery of those on the United Airlines flight who struggled with the hijackers and prevented that aircraft from striking its target in Washington. I am proud of the skill and courage of our Air Force pilots, who fly thousands of miles, often in the darkness of night, into hostile territory. They are constantly in our thoughts, and we pray that each of them returns safely. Amid all the sadness and anger, I have been tremendously heartened by the way Americans of all races, religions and backgrounds rallied together to help each other. It should not be surprising that we would respond this way, but it is enormously uplifting and reassuring. And I was also encouraged when millions of people in cities around the world gathered to express their sympathy and support for the United States. There were 200,000 in Berlin alone. It was a vivid and moving reminder of how many people in so many countries respect what our country stands for, and look to us for leadership in solving the world's problems. It is that leadership, in combating terrorism but also in addressing other pressing global issues, that we must show today and in the future. I have been impressed by the leadership shown by President Bush and others in the Cabinet. I commend the President for voicing our common goal to seek justice for the victims and for our country, our condemnation of the despicable acts of harassment and intimidation of Muslims in the United States, and our resolve to protect our country from future terrorist acts. It has been said over and over that ``the world has changed.'' In one sense that is true. Our country has suffered its greatest loss of life on American soil, in a single day, since the Civil War. Our response to this tragedy is causing changes throughout our society. However, in another sense, it has a lot more to do with our perceptions of the world than with the world itself. The world was changing long before September 11, and threats that existed before that infamous day are no less present today. These attacks destroyed not only thousands of innocent lives, but they destroyed mistaken assumptions about our safety in isolation. They also, let us hope, erased our complacency. We are now beginning a struggle that may take decades, shake foreign governments, and cause great disruption in our daily lives. We are responding decisively. The American people want to feel secure and they want justice. If the Taliban continue to shelter bin Laden and other terrorists they will pay a heavy price. They have already lost the support of virtually every country in the world, and our military has destroyed many of their military assets. Others who knowingly harbor terrorists face similar consequences. Yet as we seek justice and security, let us not be blinded by anger or zealotry. We want a world without terrorists, but we owe it to ourselves to calmly ask constructive questions, as we commit to this cause thousands of American lives, billions of dollars, and the credibility of our nation. Our response must single out those individuals, organizations, or nations that are responsible for these atrocities. The terrorists want us to overreact. They want us to strike back blindly and cause the deaths of innocent civilians. They want to draw us into a so-called ``holy war,'' and they will use these images against us, alienating others in the Muslim world whose support we need to combat this threat, and among whom there are many who already resent our involvement in the Middle East. We need to understand the fact that the civilian casualties caused by our bombs in Afghanistan despite the efforts made to prevent them are not only tragic but also exacerbate the hatred of America by Muslims in many parts of the world, a hatred which has been building over many years. We are seeing this among Muslims in Pakistan, in Indonesia, in the West Bank, even in Africa. Despite President Bush's, Secretary Powell's, and Secretary Rumsfeld's clear statements to the contrary, they see our actions as attacks on their religion. We also know what happened to the Soviet army, and to the British before them, in Afghanistan. Two of the world's most powerful militaries suffered terrible losses and were forced to withdraw in humiliation. And we should remember our own disastrous experience in Somalia. We need to recognize that there are parts of the world, dominated by fierce warlords and clans, that we do not understand and probably cannot understand. We should be very, very careful not to repeat past mistakes. Our campaign against terrorism has no direct precedent, and we are still feeling our way forward. At this stage of the military dimensions of this effort, neither the President nor the Pentagon have yet explained, except in the most general way, what they expect to accomplish militarily in Afghanistan within the next month, 6 months, or year, and how they expect to accomplish it. Nor have they yet explained the risks to our Armed Forces, except to say that there will be casualties. Meanwhile, the American people have been asked to be patient, and they have been. Members of Congress have been asked to give the President and the Pentagon great latitude, and they have done so. But we are all in this together, and the time for clearer goals and more direct answers about our strategy is approaching. The fact that 2 weeks ago the Pentagon told us that they had eviscerated the Taliban's military capabilities, and a week later expressed surprise that the Taliban has proved to be a determined foe, already has raised troubling questions. No one wants to see an end to the Taliban more than I, and I have no doubt that we can force them from power. But there is no evidence it can be done by bombing alone, at least not without many civilian casualties. How many ground troops would it take, over what period of time? And then what? Surely the Taliban would regroup and fight from somewhere else. The American people will deserve and need answers to these and other questions. There is no doubt that we will need help from others to fight terrorism, which exists in every corner of the globe. To his credit, the President showed admirable patience in building a coalition to track down terrorists and their sources of income. The President must also continue to show an understanding of the particular situation of each country in the coalition, and of how much we can reasonably demand of them given their circumstances, their capabilities, their history. The situation we are in is unlike any that we have seen before. It is difficult always to know who the enemy is or where they may be hiding. They may be right among us, or they may be in the mountains of Central Asia. Secretary Powell and others have been clear that we are preparing for a long, sustained, comprehensive campaign, using all the means at our disposal--diplomacy, intelligence, law enforcement, financial, economic, and military. We must confront the entire superstructure of terrorism--the states that knowingly provide terrorists with support and safe haven, the system of financial support, and sources of recruits, and the hatreds that spawn them. In doing this, we must heed the lessons from other so-called wars that we have fought against other deeply rooted, complex problems--the war on poverty and the war on drugs. These ``wars'' have been fought with many weapons. They also depend on foreign cooperation. Yet we are nowhere near to winning either of those wars, despite the fact that we have spent tens of billions of dollars, and even, in the war on drugs, imprisoned thousands of people and deployed our forces in foreign countries. We must be resolute but realistic. We can no more completely eliminate terrorism from the face of the Earth than we can eliminate poverty. But there is a great deal we can do to protect ourselves. The President has waived sanctions against Pakistan so we can assist them in this effort. I have heard proposals that we should set aside other laws which affirm our commitment to the protection of human rights in our international relations. Others speak of waiving limitations on our support for dictatorial regimes in Central Asia, or countries that have engaged in proliferation of nuclear, chemical or biological weapons. I will listen to what the Administration proposes, but I am also mindful of the lessons of history. We supported the fighters who became the Taliban, when they sought to expel the Soviets. Today the Taliban, led by religious fanatics, systematically terrorize and brutalize their own people. The country has been turned into a virtual prison, where its inhabitants, many too weak from hunger and disease to flee, suffer the daily cruelty of the Taliban's tyrannical rule. We gave weapons to Iraq, and to the Shah of Iran, whose secret police tortured Iranian citizens who spoke out for democracy. We have supported other regimes that committed atrocities, which to the victims were no different from acts of terrorism. We must not repeat those mistakes. We must reaffirm the principles that make this country a beacon of hope around the world, and which reflect the most deeply held ideals of our people--ideals which the terrorists hate--our civil liberties, our individual and religious freedoms. These ideals, far more than our military power, are our country's greatest strength. Let us not lose sight of the fact that acts of terrorism are human rights atrocities. As we go forward, we must continue to show the world what sets us apart from the terrorists. Defense of human rights is one of these cherished principles. There can be no excuse, no justification whatsoever, for attacks against unarmed civilians--whether it is the suicide bomber or the suicide highjacker, or a government that commits acts of terrorism against its own citizens. But to reduce the threat of terrorism, of whatever form, over the long run, we must work to resolve the issues that foster deep and lasting hatreds the terrorists feed on, that produces their funding, and their recruits. Recently, the House of Representatives approved, after minimal debate and without a dissenting vote, payment of $582 million in arrears to the United Nations. That was both noteworthy and encouraging, since those funds had been held hostage by the House for years over unrelated issues like international family planning. How shortsighted that was. Many of those same Members took pride in cutting our foreign aid budget. Foreign aid, a meager one percent of the Federal budget--far, far less than most people believe it is-- is used, in part, to help alleviate the pervasive poverty in the Middle East, Africa and Asia that leads to despair, instability, violence, and hatred--conditions that breed recruits for terrorist organizations. Instead of one percent, we should increase five-fold the amount we spend to combat poverty, especially in parts of the world where there is such resentment toward the United States. We are surrounded by a sea of desperate people. Two billion people--a third of the world's inhabitants, live on the edge of starvation. They barely survive on what scraps they can scavenge, and many children die before the age of five. Refugees and people displaced from their homes, number in the many tens of millions. The world is on fire is too many places to count, and at most of those flash points poverty, and the injustice that perpetuates it, are at the root of the instability. Our foreign assistance programs provide economic support to poor countries, health care to the world's neediest women and children, food and shelter for refugees and victims of natural and man made disasters, and technical expertise to promote democracy, free markets, human rights and the rule of law. But as important as this aid is, the amount we give is a pittance, when considered in terms of our wealth and the seriousness of the threats we face. The approximately $10 billion that we provide in this type of assistance--whether through our State Department and the Agency for International Development, or as contributions to the World Bank, the United Nations Development Program, the World Food Program, and other organizations, amounts to less than $40 for each American each year. Forty dollars. It is embarrassing. We are failing the American people, and we are failing future generations. Our economy is suffering, and people are hurting in this country. We are trying to help them, and we need to do more. But we cannot continue to bury our heads in the sand. We cannot protect our national interests in today's complex, dangerous world on a foreign assistance budget that in real terms is less than what it was 15 years ago. We cannot. Our world is not simply our towns, our states, our country. It is the whole world. We live in a global economy. The Ebola virus is like a terrorist--an airplane's flight away. We can try our best to control our borders, but we cannot hide behind an impenetrable wall. We have to go to the source of the problem, and that is to countries that are failing--from AIDS, from ignorance, from poverty, from injustice. We need a better understanding of the world we live in, and how to protect our security. Almost 60 percent of the world's people live in Asia, and that number is growing. Seventy percent of the world's people are non-White, and 70 percent are non-Christian. About 5 percent own more than half the world's wealth. Half the world's people suffer from malnutrition. Seventy percent are illiterate. How can we justify spending so little to address these needs? We cannot, any more than we can justify failing to anticipate and prevent the attacks on the World Trade Center and the Pentagon. The Pentagon would be the first to say that they cannot solve these problems. I would hope that one of the positive things that comes from this time of national soul searching and recovery, is that we begin to think differently about what the future holds, and our role in the world. Let us act like a superpower. Let us lead the world in combating poverty, in supporting the development of democracy. Let us start paying our share. As the world's wealthiest nation we have a moral responsibility. But we also, because of who we are, have the most at stake. Like the Congress, the White House also needs to change its thinking. For the past six months, it took a hands-off approach to solving complex global problems, turning its back on half a dozen treaties and international agreements, ranging from arms control to protecting the environment. The unmistakable message is that we are so powerful that we do not need the rest of the world, that somehow we are immune from the world's problems. That notion was arrogant, dangerous and naive then, as it is today. We must move beyond the tired battles over foreign aid and the United Nations, and forge common approaches to global threats. It is clear that this is what is necessary to fight terrorism, and the same is true of AIDS, global warming, and so many other problems. This brings me to the difficult question of the Middle East conflict. No one who is familiar with the history of the Israeli-Palestinian conflict believes it will be resolved without the active, sustained involvement of the United States. And never has that involvement been so urgently needed, because to maintain strong Arab participation in the coalition we are organizing against terrorism, there must be visible progress toward peace between Israelis and Palestinians. Frankly, I have been dismayed as our credibility in the Middle East has badly eroded, and as resentment toward the United States has intensified and spread among Muslims throughout that region. We have to confront this problem earnestly and honestly, and recognize its historical and cultural roots. It is clearly in our security interests, as well as those of Israel, that we take actions to reestablish credibility with the Palestinians and their Arab supporters, while continuing to keep faith with Israel and its people--a valued ally and a leading democracy. We must get both Palestinians and Israelis back to the negotiating table, working seriously toward a viable peace agreement that addresses their long term needs and aspirations--a viable, Palestinian state, and lasting security for Israel. I do not count myself among those who believe that the deranged, hate-filled perpetrators of the September 11th terrorist attacks would not have carried out their heinous crimes if Israel and the Palestinians had already made peace. It may be that sympathy for the Palestinians had nothing to do with it. Nor do I believe that a solution to the Middle East conflict will solve the problem of international terrorism. But I am convinced that, as difficult a problem as it is, the Palestinian-Israeli conflict must be solved if we are to make tangible progress against some of the breeding grounds of terrorism. The same goes for our relations with the rest of the Arab world. In our single-minded zeal to secure a steady supply of Middle East oil to fuel our insatiable and growing demand for cheap gasoline, we have turned a blind eye to widespread repression by governments whose policies, including the systematic abuse of women, vary sharply from our own. We must take dramatic measures to reduce our wasteful consumption of oil and our dependence on these regimes. At the same time that we combat terrorism around the world, we must also get our domestic house in order. Over the last decade this country has put an enormous effort into counter-terrorism. It has been a top priority of the FBI, the CIA and other agencies. Yet, all those resources and all that concentrated work failed to prevent this enormous tragedy. It is astounding how unprepared we were, how even the simplest safeguards were ignored, how many weaknesses were waiting for the terrorists to exploit. It was a massive failure of our defenses. Let us look hard and honestly at where our defenses failed, and work to correct those weaknesses. We need to strengthen our intelligence agencies, law enforcement, border control, emergency response and all the manifold capabilities we will need to defend ourselves. That includes taking steps to eliminate the destructive competition between these agencies, which has impeded coordination and undermined their effectiveness. We have worked with the Administration on legislation to support law enforcement and our intelligence community, while at the same time protecting our constitutional freedoms. As Benjamin Franklin said, ``a people who would trade their liberty for security deserve neither.'' As we work to become more secure, we must also protect our liberty. I am concerned about press reports of people held in custody for weeks, who have not been charged with any crime, being denied meaningful access to counsel. This, if true, may be a common practice in some countries, but it should not be the practice in ours. I am also concerned about the erroneous assertion that the Congress has tied the CIA's hands by limiting its ability to recruit informants with unsavory backgrounds. There is no such law. In fact, the only constraint is the CIA's own internal guidelines, which require prior approval of senior management before recruiting such an asset. There are sound reasons for those guidelines, and the CIA leadership has said repeatedly that this is not a problem. Even more disturbing are claims that we need to change the ``law'' prohibiting assassinations of individuals involved in terrorism. Again, there is no such law. There is an Executive Order, first signed by President Ford and reaffirmed each year since then by every succeeding Administration that prohibits assassinations. No law, or executive order for that matter, protects Osama bin Laden or any other terrorist from the exercise of our legitimate right of self-defense, including use of lethal force. A policy of pre-emptive assassinations would be morally repugnant, a violation of international law, and fraught with dangers for our own government, as well as for our allies. It is also ineffective, because it creates martyrs whose deaths become a terrorist's rallying cry for vengeance. And we have seen how easily foreign identities can be mistaken or stolen, with potentially irreversible, tragic consequences. Our country has suffered a grievous loss. We have had to face our own vulnerability as never before. As we support the victims' families and set about to prevent future terrorist attacks, we should also rededicate ourselves to upholding the principles which set our nation apart: freedom, tolerance, diversity, respect for the rule of law, and the unique value of every individual. If our leaders appeal to these values--to the better angels of our human nature, not to the instincts of hate or fear or revenge--then this trial by fire will refine us, instead of coarsen us. And let us go forward from this experience, which has shown in such a tragic way how connected we are to the rest of the world and how much we need the support of other countries, to provide stronger leadership not only to combat the scourge of international terrorism but other urgent global problems, and make this world a better and safer place for all.

Mr. LEAHY

Mr. LEAHY. Mr. President, in June 1999, the U.S. Supreme Court issued a pair of decisions that altered the legal landscape with respect to intellectual property. I am referring to the Florida Prepaid and College Savings Bank cases. The Court ruled in these cases that States and their institutions cannot be held liable for patent infringement and other violations of the Federal intellectual property laws, even though they can and do enjoy the full protection of those laws for themselves. About 4 months after the Court ruled in these cases, I introduced a bill that responded to the Court's decisions. The Intellectual Property Restoration Act of 1999 was designed to restore Federal remedies for violations of intellectual property rights by States. I regret that the Senate Judiciary Committee did not consider my legislation during the last Congress, and that the Senate has yet to give any attention to the nearly 2-year-old Supreme Court decisions that opened such a troubling loophole in our Federal intellectual property laws. We should delay no further. Today, I am introducing the Intellectual Property Protection Restoration Act of 2001, IPPRA. This legislation builds on my earlier proposal and on the helpful comments I received on that proposal from legal experts across the country. In particular, I would like to thank Justin Hughes, David Carson, Steve Tepp, Michael Kirk, Michael Klipper, and John Kent for their assistance in improving and refining this legislation. I also want to thank the House sponsors of the counterpart bill, Howard Coble and Howard Berman, who are the chairman and ranking member of the Subcommittee on Courts, the Internet, and Intellectual Property. The IPPRA has two essential components. First, it places States on an equal footing with private parties by eliminating any damages remedy for infringement of State-owned intellectual property unless the State has waived its immunity in Federal suits for infringement of privately owned intellectual property. Second, it improves the limited remedies that are available to enforce a nonwaiving State's obligations under Federal law and the United States Constitution. I will discuss both provisions in more detail later in these remarks. Innovation and creativity have been the fuel of our national economic boom over the past decade. The United States now leads the world in computing, communications and biotechnologies, and American authors and brand names are recognized across the globe. Our national prosperity is, first and foremost, a tribute to American ingenuity. But it is also a tribute to the wisdom of our Founding Fathers, who made the promotion of what they called ``Science and the Useful Arts'' a national project, which they constitutionally assigned to Congress. And it is no less of a tribute to the successive Congresses and administrations of both parties who have striven to provide real incentives and rewards for innovation and creativity by providing strong and even-handed protection to intellectual property rights. Congress passed the first Federal patent law in 1790, and the U.S. Government issued its first patent the same year, to Samuel Hopkins of my home State of Vermont. The first Federal copyright law was also enacted in 1790, and the first Federal trademark laws date back to the 1870s. The Supreme Court has long recognized that intellectual property rights bear the hallmark of true constitutional property rights, the right of exclusion against the world, and are therefore protection against appropriation both by individuals and by government. Consistent with this understanding of intellectual property, Congress has long ensured that the rights secured by the Federal intellectual property laws were enforceable against the Federal Government by waiving the government's immunity in suits alleging infringements of those rights. No doubt Congress would have legislated similarly with respect to infringements by State entities and bureaucrats had there been any doubt that they were already fully subject to Federal intellectual property laws. But there was no doubt. States had long enjoyed the benefits of the intellectual property laws on an equal footing with private parties. By the same token, and in accordance with the fundamental principles of equity on which our intellectual property laws are founded, the States bore the burdens of the intellectual property laws, being liable for infringements just like private parties. States were free to join intellectual property markets as participants, or to hold back from commerce and limit themselves to a narrower governmental role. The intellectual property right of exclusion meant what it said and was enforced even-handedly for public and private entities alike. This harmonious state of affairs ended in 1985, with the Supreme Court's announcement of the so-called ``clear statement'' rule in Atascadero State Hospital versus Scanlon. The Court in Atascadero held that Congress must express its intention to abrogate the States' 11th Amendment immunity ``in unmistakable language in the statute itself.'' A few years later in Pennsylvania versus Union Gas Co., the Supreme Court assured us that if the intent to abrogate were expressed clearly enough, it would be honored. Following Atascadero, some courts held that States and State entities and officials could escape liability for patent, copyright and trademark infringement because the patent, copyright and trademark laws lacked the clear statement of congressional intent that was now necessary to abrogate State sovereign immunity. To close this new loophole in the law, Congress promptly did precisely what the Supreme Court had told us was necessary. In 1990 and 1992, Congress passed three laws--the Patent and Plant Variety Protection Remedy Clarification Act, the Copyright Remedy Clarification Act, and the Trademark Remedy Clarification Acts. The sole purpose of the Clarification Acts was to make it absolutely, unambiguously, 100 percent clear that Congress intended the patent, copyright and trademark laws to apply to everyone, including the States, and that Congress did not intend the States to be immune from liability for money damages. Each of the three Clarification Acts passed unanimously. In 1996, however, by a five-to-four-vote, the Supreme Court in Seminole Tribe of Florida versus Florida reversed its earlier decision in Union Gas and held that Congress lacked authority under article I of the Constitution to abrogate the States' 11th amendment immunity from suit in Federal court. Then, on June 23, 1999, by the same bare majority, the Supreme Court in Florida Prepaid Postsecondary Education Expense Board versus College Savings Bank told us that it did not really mean what it said in Atascadero and invalidated the Patent and Plant Variety Protection Remedy Clarification Act. In the companion case decided on the same day, College Savings Bank versus Florida Prepaid Postsecondary Education Expense Board, the same five Justices held that the Trademark Remedy Clarification Act also failed to abrogate State sovereign immunity. The Florida Prepaid decisions have been the subject of bipartisan criticism. In a floor statement on July 1, 1999, I highlighted the anti-democratic implications of the approach of the activist majority of the Supreme Court, who have left constitutional text behind, ripped up precedent, and treated Congress with less respect than that due to an administrative agency in their haste to impose their natural law notions of sovereignty as a barrier to democratic regulation. I also noted that ``the Court's decisions will have far-reaching consequences about how * * * intellectual property rights may be protected against even egregious infringements and violations by the states.'' One of my Republican colleagues on the Judiciary Committee, Senator Specter, expressed similar concerns in a floor statement on August 5, 1999. He noted that the Court decisions ``leave us with an absurd and untenable state of affairs,'' where ``states will enjoy an enormous advantage over their private sector competitors.'' Charles Fried, a professor at Harvard Law School and former Solicitor General during the Reagan administration, has called the Florida Prepaid decisions ``truly bizarre.'' He observed in an op-ed piece in the New York Times: [The Court's decisions] did not question that states are subject to the patent and trademark laws of the United States. It's just that when a state violates those laws--as when it uses a patented invention without permission and without paying for it--the patent holder cannot sue the state for infringement. So a state hospital can manufacture medicines patented by others and sell or use them, and state schools and universities can pirate textbooks and software, and the victims cannot sue for infringement. It is hard to see what sense this makes, and the claim that ``the Constitution made me do it'' is particularly unconvincing. The 11th Amendment does protect states from suits in Federal courts by residents of other states--a provision almost certainly not intended to protect states from suits based on Federal law. Not surprisingly, alarm has also been expressed in the business community about the potential of the Court's recent decisions to harm intellectual property owners in a wide variety of ways. A commentary in Business Week offered these cautions: Watch out if you publish software that someone at a state university wants to copy for free . . . Watch out if you own a patent on a medical procedure that some doctor in a state medical school wants to use. Watch out if you've invested heavily in a great trademark, like Nike's Swoosh, and a bureaucrat decides his state program would be wildly promoted if it used the same mark. I believe that these concerns are real. As Congress acknowledged when it waived Federal sovereign immunity in this area, it would be naive to imagine that reliance on the commercial decency of the government and its myriad agencies and officials would provide the security needed to promote investment in research and development and to facilitate negotiation in the exclusive licensing arrangements that are often necessary to bring valuable products and creations to market. Indeed, the good intentions of government may be beside the point, if businesses are unwilling to enter into agreements because one side cannot be bound by the law. Since the Court issued its decisions in June 1999, intellectual property scholars and practitioners across the country have come together to explore ways for Congress to restore protection for federal intellectual property rights as against the States. The Patent and Trademark Office hosted a particularly enlightening conference in March 2000, in cooperation with the American Intellectual Property Law Association and the Intellectual Property Section of the American Bar Association. I commend the PTO for taking the initiative on this important issue. More recently, in September 2001, the General Accounting Office released a report requested by Senator Orrin Hatch on State Immunity in Infringement Actions. The GAO's research confirmed that, after Florida Prepaid, owners of intellectual property have few alternatives or remedies available against State infringements. A State cannot be sued in Federal court for damages except in the unlikely event that it waives its sovereign immunity. As for the State courts, there is little chance of success with infringement-type a actions for patents and copyrights because of Federal judicial preemption and an absence of State-recognized causes of action. Furthermore, even if infringement suits can be brought in State court, it may not be possible to bring them against States that have governmental immunity shielding them from suit in their own courts. What I have just described is a series of dead ends for intellectual property owners. That is why the two Federal agencies with expertise in intellectual property matters, the U.S. Copyright Office and the U.S. Patent and Trademark Office, have expressed their support for corrective legislation by Congress. As the Copyrights Office told the GAO, ``Only in this way can the proper balance, and basic fairness, be restored.'' I hope we can all agree on the need for congressional action on this issue. We need to assure American inventors and investors, and our foreign trading partners, that as State involvement in intellectual property becomes ever greater in the new information economy, U.S. intellectual property rights are backed by legal remedies. This is important as a matter of economics: Our national economy depends on real and effective intellectual property rights. It is also important as a matter of justice: In conceding that the States are constitutionally bound to respect Federal intellectual property rights but invalidating the remedies Congress has created to enforce those rights, the Court has jeopardized one of the basic principles that distinguishes our Constitution from the constitution of the old Soviet Union, the principle that where there is a right, there must also be a remedy. It is also important as a matter of foreign relations: American trading interests have been well served by our strong and consistent advocacy of effective intellectual property protections in treaty negotiations and other international fora, and those efforts could be jeopardized by the loophole in U.S. intellectual property enforcement that the Supreme Court has created. Like most of the constitutional experts who have examined the issue, I have no doubt that several constitutional mechanisms remain open to Congress to restore substantial protection for patents, copyrights and trademarks. The Supreme Court's hypertechnical constitutional interpretations require us to jump through some technical hoops of our own, but that the exercise is now not merely worthwhile, but essential to safeguard both U.S. prosperity and the continued authority of Congress. My bill is based on a simple premise: That there is no inherent, ``natural law'' entitlement to Federal intellectual property rights and remedies. In discussing the policies underlying the intellectual property laws, the Supreme Court has emphasized that intellectual property is not a right but a privilege, and that it is conditioned by a public purpose. For example, the Court wrote in Mercoid Corp. versus Mid-Continent Invest Co., a 1944 case, that ``The grant of a patent is the grant of a special privilege `to promote the Progress of Science and useful Arts,' '' and that ``It is the public interest which is dominant in the patent system.'' Similarly, in discussing the copyright laws in Fogerty versus Fantasy, Inc, the Court underscored that ``the monopoly privileges that Congress has authorized, while intended to motivate the creative activity of authors and inventors by the provision of a special reward, are limited in nature and must ultimately serve the public good.'' The Constitution empowers but does not require Congress to make intellectual property rights and remedies available, and Congress should do so in a manner that encourages and protects innovation in the public and private sector alike. States and their institutions, especially State Universities, benefit hugely from the Federal intellectual property laws. All 50 States own or have obtained patents, some hold many hundreds of patents. States also hold other intellectual property rights secured by Federal law, and the trend is toward increased participation by the States in commerce involving intellectual property. Principles of State sovereignty tell us that States and their instrumentalities are entitled to a free and informed choice of whether or not to participate in the Federal intellectual property system, subject only to their constitutional obligations. Equity and common sense tell us that one who chooses to enjoy the benefits of a law, whether it be a Federal research grant or the multimillion-dollar benefits of Federal intellectual property protections, should also bear its burdens. Sound economics and traditional notions of federalism tell us that it is appropriate for the Federal Government to assist and encourage the sovereign States in their sponsorship of whatever innovation and creation they freely choose to sponsor by giving them intellectual property protection and, on occasion, funding, so long as the States hold up their end of the bargain by honoring the exclusive rights of other intellectual property owners. The IPPRA builds on these principles. In order to promote cooperative federalism in the intellectual property arena, it provides reasonable incentives for states to waive their immunity in intellectual property cases and participate in our national intellectual property project on equal terms with private parties. States that choose not to waive their immunity within 2 years after enactment of the IPPRA would continue to enjoy many of the benefits of the Federal intellectual property system; however, like private parties that sue non-waiving states for infringement, nonwaiving States that sue private parties for infringement could not recover any money damages that would otherwise be available under Federal law. That is because Federal intellectual property that has been owned by a nonwaiving State would be short one ``stick'' from the usual bundle of rights accorded by Federal law: The ability to sue for damages under Federal law when the intellectual property has been infringed. This scheme is plainly authorized by the letter of the Constitution. Article I empowers Congress to ``promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.'' Incident to this power, Congress may attach conditions on the receipt of exclusive intellectual property rights. Indeed, we have always attached certain conditions, such as the requirement of public disclosure of an invention at the Patent and Trademark Office in order to obtain a patent. My proposal is also consistent with the spirit of federalism, as interpreted by the Supreme Court, because it gives State entities a free, informed and meaningful choice to waive or not to waive immunity at any time. The condition imposed on receipt of federal benefits by the IPPRA, submitting to suit under laws that are already binding on the States, is not onerous, nor does it co-opt any state resources to the service of Federal policy. It simply levels the intellectual property playing field. Congress may attach conditions on a State's receipt of Federal intellectual property protection under its Article I intellectual property power just as Congress may attach conditions on a State's receipt of Federal funds under its Article I spending power. Either way, the power to attach conditions to the Federal benefit is an integral part of the greater power to deny the benefit altogether. Either way, the State has a choice, to forgo the Federal benefit and exercise its sovereign power however it wishes subject to the Constitution, or to take the benefit and exercise its sovereign power in the manner requested by Congress. Three Federal appeals courts have applied similar reasoning in connection with the 1996 Telecommunications Act. The Courts of Appeals for the Fifth, Seventh, Tenth Circuits have reasoned that, because Congress was under no obligation to allow States to participate in the regulatory scheme established by the 1996 Act, Congress could validly condition a state commission's decision to exercise regulatory authority under the Act on its waiving sovereign immunity. This seems like plain common sense to me. It would be a truly bizarre reading of the Constitution to say that it is up to Congress whether or not to let States participate in telecom regulation or in the intellectual property regime, but that if we choose to let them participate, we cannot hold them accountable for their actions. Given the choice between opting in to the intellectual property laws and forging some intellectual property protection under the Federal laws, States and their institutions will, I hope, choose to opt in. The benefit--being able to recover damages for an infringement--is significant, while the burden--consenting to be sued for future State infringements--is slight. Most States already respect intellectual property rights and will seldom find themselves in infringement suits. However, some State entities and officials have violated intellectual property rights in the past, and the massive growth of both intellectual property and state participation in the intellectual property marketplace that we are seeing in the new economy give ample cause for concern that such violations will continue. Now that the Supreme Court has seemingly given the States carte blanche to violate intellectual property rights free from any adverse financial consequences so long as they stand on their newly augmented sovereign immunity, the prospect of States violating Federal law and then asserting immunity is too serious to ignore. The IPPRA therefore also provides for the limited set of remedies that the Supreme Court's new jurisprudence leaves available to Congress to enforce a nonwaiving State's obligations under Federal law and the United States Constitution. The key point here is that, while the Court struck down our prior effort to enforce the intellectual property laws themselves by authorizing actions for damages against the states, it nonetheless acknowledged Congress' power to authorize actions for injunctions and actions to enforce constitutional rights related to intellectual property. First, for the avoidance of doubt, the IPPRA ensures the full availability of prospective equitable relief to prevent States from violating or exceeding their rights under Federal intellectual property laws. As the Supreme Court expressly acknowledged in its Seminole Tribe decision in 1996, such relief is available, notwithstanding any assertion of State sovereign immunity, under what is generally known as the doctrine of Ex parte Young. Second, to address the harm done to the rights of intellectual property owners before they can secure an injunction, the IPPRA also provides a damages remedy to the full extent of Congress' power to enforce the constitutional rights of intellectual property owners. Under the Supreme Court's recent decisions, this remedy is necessarily limited to the redress of constitutional violations, not violations of the Federal intellectual property laws themselves. However, the Supreme Court has reaffirmed on may occasions that the intellectual property owner's right of exclusion is a property right fully protected from governmental violation under the Fifth amendment's takings clause and under the 14th amendment's due process clause. The constitutional remedy provided by the IPPRA closely resembles the remedy that Congress provided decades ago for deprivations of Federal rights by persons acting under color of State law. The bill does not expand the property rights secured by the Federal intellectual property laws--these laws are already binding on the States' nor does the bill interfere with any governmental authority to regulate businesses that own such rights. It simply restores the ability of private persons to enforce such rights against the States. I view this bill as an exercise in cooperative federalism. Clear, certain, and uniform national rules protecting Federal intellectual property rights benefit everyone: Consumers, businesses, the Federal Government and the States. The IPPRA preserves States' rights, and gives States a free choice. At the same time, it ensures effective protection for individual constitutional rights closing the loophole created by the Supreme Court of Federal rights unsupported by effective remedies. We unanimously passed more sweeping legislation in the early 1990s, but were thwarted by Supreme Court's shifting jurisprudence. The IPPRA is designed to restore the benefits we sought to provide intellectual property owners while meeting the Court's new jurisprudential requirements. There are to be sure, other approaches that Congress could take to address the problems created by the Court's decisions. In consultation with experts in intellectual property law and constitutional law, I reviewed several alternatives before settling on the IPPRA's approach. In the end, I concluded that the approach I have outlined is the best way to achieve a solution that meets any constitutional concerns, fosters State-Federal cooperation, and encourages American innovation and creativity to providing certain and effective intellectual property protection. when I first introduced the IPPRA in 1999, it prompted a flurry of constructive comments and suggestions on how the legislation could be improved. I look forward to considering further refinements to the bill as the legislative process moves forward. I ask unanimous consent that the text of the bill and a section-by- section summary of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, in a year when we have seen such terrible news about New York, we do well to remind ourselves of all the good things that come from that great city. One such thing was the awarding of Chevalier in the Legion D'Honneur to my friend, Melvin Van Peebles, by the Consul General of the Republic of France on April 24 of this year. The award was made to Mr. Van Peebles because of his work as an author, a producer, and a director of award-winning films. I have known Melvin for years, and I know him as a man of conscience, talent, erudition, and eclectic friendships. I have always considered myself honored to be one of his friends. The man who first introduced me to Melvin was my good friend, Dr. Henry Jarecki, of New York, and he and Gloria Jarecki hosted the investiture at Gramercy House in New York City. I ask consent to print in the Record the comments made by Dr. Jarecki at that event, and to add my own congratulations to Melvin Van Peebles for an award justly deserved. The comments follow: Remarks of Dr. Henry Jarecki Back in the fifties, while Melvin was becoming well-known in America, I had been out of the country. So it is no surprise that when Katie McGee first mentioned the name Melvin Van Peebles some thirty-five years ago, I knew so little about his work that I expected to meet a Dutchman. It was indeed some years before I knew who I was dealing with but in the meantime he had become a close friend who I could hang out with and gab about philosophy, somebody who was an advisor and when needed, a fellow mischief-maker. Gradually, I got to see and know all about the famous Sweetback movie and his other films and I read and saw his plays, especially Ain't Supposed to Die a Natural Death and Don't Play us Cheap, two of the ones I think are among the great works of American literature. Waltz of the Stork, a musical I backed, was not one of the great works. Otherwise I would be rich today. But we reflected on a lot more plays, too, including the Bessie Smith piece called the Champeen that we argued about for five years and still have to make. Close friends sometimes disagree--we solved that by making bets. One bet he lost made him work for me on Wall Street for a year during which he became the first Black trader on the American Stock Exchange. Not surprisingly, he wrote a book about it as he does about almost anything he does. That book, called Bold Money, introduced many nonprofessionals to the world of security option trading. He always writes books about what he does. He makes movies about the making of movies and he writes books about the ``making of the making of a movie'' movie. Happily, all of this piques his viewers' and readers' interest and makes him a bunch of money. But he's made a lot more than movies, plays, and money. He has made a number of wonderful children, all of whom I've had the pleasure of hanging out with over the years, Megan, Mario, Max, and maybe more. Megan has the beauty and the wonderful heart she had when she worked at Mocatta and Mario has become a distinguished motion picture actor and director himself. Very few people know that one of the steps of his professional life, maybe the step that taught him all there was to learn about acting before he went to Hollywood was working as a gold trader for me at a company called Mocatta. The Van Peebles children have been friends of my children and Melvin himself has helped each of my children, most recently my son Eugene, who made a film called The Opponent based loosely on Eugene's early life friendship with Mike Tyson. Melvin's most recent French film, A Belly Full, was not the reason for this Legion of Honor award but was its occasion. Even before making a great name in America, Melvin had become well-known in France, partly for his book and movie, Story of a Three-Day Pass which had won many awards there, and throughout his life he has remained an American bridge to France, even having one French son, Max, who has helped him work on many of his movies. And so this clearly American icon has gradually become a French figure of the arts as well. We are all honored to be here tonight with Melvin Van Peebles to help celebrate his receiving this award from Consul-General Richard Duque who honors us with his presence. I personally have in my own very modest film-making career achieved only one thing: when I, following in Melvin's footsteps, was making a movie about Cuban music in Havana with my friend Gary Keys, I managed to buy some Cuban cigars and also a wonderfully appropriate humidor in which to keep them. And so, Melvin, I take pleasure in presenting you with this unusual-looking humidor and the accompanying box of Cuban cigars. If you choose to give some of these cigars out to some of your guests here, feel free to do so: I have a second one upstairs. And those who worry about smoking Cuban cigars--and I'm not one--can always say the words of Melvin's friend Pat Leahy, the Senator from Vermont, who tells us that he cannot be criticized for burning Castro's crops. Thank you all for coming.

Mr. LEAHY

Mr. LEAHY. We have to dramatically increase that cooperation or stop the noncooperation and start cooperating. We have added humanitarian relief to immigrant victims of the September 11 terrorist attacks. A lot of immigrants became victims of that attack. They suddenly became orphans or were spouses of people killed. We added help to the FBI to hire translators. I shudder to think how much information was available before September 11 that was never translated that might have prevented this. We have added more comprehensive victims assistance; measures to fight cyber-crime; measures to fight terrorism against mass transportation systems; important measures to use technology to make our borders more secure. Last, Madam President, and I cannot emphasize this enough, the Senate should never give a blank check to our law enforcement or to any President or Attorney General of either party. We have to protect the liberties of our people. Who watches the watchers? We watch. I said earlier, as Benjamin Franklin once said, a nation that would trade its liberties for security deserves neither. We can have our security and we can protect our liberties but only if we have adequate checks and balances. People who are professional law enforcement say give us the checks and balances. We give enormous power to Federal, State, and local law enforcement, but with that there have to be checks and balances. We have all seen times where if law enforcement is unchecked, innocent people can be hurt. I was a prosecutor for 8 years, and I know we have to have checks and balances. We have done that. You cannot simply have a case and say: Do this, we will set aside this pesky Constitution for the moment. We cannot do that. We built in checks and balances that were not in the original proposal. Ultimately, that will be the best thing for the country. We will give law enforcement translators, tools, computers, and other things necessary to help them. We stand united as a nation. We know the only way to protect ourselves is to stop the terrorists before they strike. Going to the funerals after the strike is too late. We will do that, but we will do it protecting the foundations of our Constitution and freedom which made us such a great democracy in the first place. None of us have any idea how long we will be in the Senate. I hope my colleagues are willing to stay here as long as they can. When I leave the Senate, as I will, I want to leave knowing I have done my best to protect our freedoms. I have said over and over again, the Senate is the conscience of the Nation. As much as any piece of legislation, this has to reflect our conscience. I reserve the remainder of my time.