Patrick Leahy

Mr. LEAHY

Mr. LEAHY. I appreciate that. If the Senator will yield for this comment, I assume the Capitol will stay open. God forbid it would not, because after that we will run out of rooms. But the distinguished majority leader and the Secretary of the Senate have helped us in getting rooms. Senator Schumer is delaying his departure to help move some of these. We will do our best. Again, I urge everybody to be on time because the pressure is going to be on. We want to let a lot of the staff who won't otherwise have to be around have a chance to go home. I think their families need them at this time. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Fourteen, I say to the Senator from Nevada. Not only 14, but we have been doing U.S. attorneys as fast as they have come in--26 so far for the year. At times when we have gone to a markup for U.S. attorneys, the White House wouldn't even send up their material. We had my staff working until 3 in the morning to help them complete--for President Bush's nominees, to help them complete their paperwork to get it through. We are still waiting for them to send up the U.S. marshals. In 26 years, I have never known any President, Republican or Democrat, to take this long. And as the Senator from Nevada said, during the half a year the Republicans controlled the Senate, of course, they didn't have a single judicial confirmation hearing. They didn't confirm a single judge. We are now, of course, confirming them much faster than they were confirmed during the first year of the Clinton term or the first year of former President Bush's term. Actually, as I recall, when the Republicans controlled the Senate during the Clinton years, we had 34 months that they didn't even have hearings on judges. We have been doing hearings every single month, whether we are in recess or not. So I suppose I could take a partisan attitude and say we will go as slowly on judges as they did with President Clinton. I thought that was unfair then; of course it is unfair now. I have no intention of taking the irresponsible position my Republicans colleagues did during that time. What we are doing is debating a motion to proceed to the foreign operations appropriations bill. Senators have asked me earlier: Is all our Middle East money in the foreign operations bill? Yes, it is. Is money in there for such things as President Bush has talked about; for example, for aid to the Afghan people? Yes, some of that is in that bill. Some have asked me if the money we provide to countries we have been calling on to stand up for the United States during this time--some of that money is in this bill that the other side wants to hold up. An amazing fact, Mr. President. Everywhere President Bush has said we want to help and work together, and we want your help; and we want to help you, I say to the leaders, that money the President is talking about, which he wants us to support him on, guess what. It is in this bill. I suspect that all Democrats are going to vote to go forward. We want to give the President the money he needs to help in this effort against terrorism. I am amazed that some Senators want to stop the President from getting that money. If they vote against going forward, then he will not get it. That is why I am amazed to find--I read in one of the papers, Republican Senators would hold up this bill--the bill that funds our foreign policy--at a time when the President of the United States is going around the world asking for support. It makes no sense. Every Senator has a right to vote the way he or she wants. But I can imagine what would be said if Democrats had ever done that to any President--Republican or Democrat. They would probably be calling for our impeachment.

Mr. LEAHY. Absolutely true.

Mr. LEAHY. No. In fact, we have a procedure when we pass the bill; a certain amount is provided upfront. That is not going to be there because we can't do it under a continuing resolution. It would be misleading to suggest otherwise. We have billions of dollars for our friends in the Middle East, held up, as the Senator said. We have military assistance for our European allies. We asked them to stand behind us. We have antiterrorism assistance in this bill. Imagine that. This bill has $38 million in antiterrorism assistance. I wonder how many Senators who would vote against sending this bill forward are willing to go back home and explain, well, even though the Democrats went a lot faster in judicial nominations than we did, we held up antiterrorism assistance. I would hate to have to make that argument back home, but they are going to have to. We have assistance for refugees in Africa--the poorest of the poor. Are we going to hold up that money? We have victims of drought and earthquakes in Central America. Are we going to hold up that money? We have funding to combat HIV/AIDS, the worst public health crisis in half a millennium. Are we going to hold up that money? How about assistance for combating poverty around the world, which breeds the hopelessness and resentment that provides the fertile breeding grounds for terrorists? President Bush spoke about that. The Secretary of State has made the same point. Do we want to hold up that money? It is self-defeating and shortsighted, and it is irresponsible to hold up funding for foreign policy when anyone can see we have shortchanged foreign policy for years. It is time to recognize that global leadership requires acting like a leader, not like petulant children in a school ground. It is about more than dropping bombs; it is about diplomacy and foreign assistance. Let's stop holding up this bill and get on with the Senate's business. It is utterly lacking in judgment. It unfairly punishes the entire Nation to hold up this bill. Think of the things that are being held back. Then look at the reason. They claim it is because judges are being held up. I have a chart. I mention this because my friend from Nevada mentioned it earlier. He mentioned how Republicans--Republicans didn't hold a single hearing on a judicial nomination, not one, didn't confirm a single judicial nominee. When I became chairman of the reconstituted committee, 10 minutes after that we started having hearings. In fact, the Presiding Officer knows that a Republican appointee from his State, a nominee to the circuit court of appeals, the Presiding Officer and his colleague came to me and talked to me about it. That judge moved forward. Look at this chart. We have here the green line. This is what happened in the first term of George Herbert Walker Bush. By October 15, they had four judges. Take a look at President Clinton. He didn't get his first judge until September. By this time, we had four. Look what happened under our chairmanship. Within a couple of weeks of becoming Chair, I was having hearings on nominations. So this baloney about numbers--I thought I would share the facts. An easy fact to remember is that during this part of the year the Republicans didn't hold a single confirmation hearing or confirm a single judge. I have gone now faster than the first year of the last two Presidents--both President Bush and President Clinton--twice as fast, actually, moving judges through than it was done in their terms. That is only since becoming chairman of the committee in July. I held hearings two different days during the August recess. I was roundly criticized by two Republican members on the Judiciary Committee for even holding the hearings. You are almost damned if you do, damned if you don't. That is fine. They have an absolute right. I believe in the first amendment. The more important question here is not the judges.

Mr. LEAHY

Mr. LEAHY. Then do we vote?

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

Mr. LEAHY. I thank the distinguished Chair. The former Governor of Nebraska has spent an enormous amount of time in that chair. I know he is now giving up the chair, but he has done the Senate a great service with the amount of time he has spent there. I have a feeling the Senator from Nebraska, when he came from the executive branch, never thought he would be presiding as much, but he has done the Senate a great service. I love to hear quotes, especially those taken out of context. Back when the Republicans controlled the Senate I urged that they move quicker on judicial nominations. I think it is because they left an extraordinary number of President Clinton's nominees at the end of his term on which they never even allowed a vote. He had women, Hispanics, others who would wait 3, 4, 5 years and never even get a hearing. That created a real problem. Now, having created all of those vacancies, they come in and say, oh, my gosh, we have judicial vacancies. President Clinton tried to fill those judicial vacancies, as my colleagues may recall, and the Republican-controlled Senate refused to allow him. Time and time again, they would hold them up. They would keep sending more questions to them. They would not allow them to come forward. They would not have a hearing. They would not have a vote, and finally the nominations died. So, of course, there were vacancies. All the vacancies would have been filled if they had even allowed votes on these because, when on the rare occasions they would allow a vote, the person would get 90 votes, 95 votes, sometimes 100 votes. They would go through easily, but they would not allow them to have a vote. So the vacancies occurred. It is a little bit like the young person who is before the court. He is there for murdering his parents and he says, Your Honor, you have to have mercy on me. I am an orphan. Well, this is the same thing. Republicans spent 2, 3, 4, 5, 6 years creating enormous judicial vacancies and then they come in and say we have to fill these judicial vacancies. We are going to have hearings for five judges on Thursday. We will have a hearing for them. So there are five judges on Thursday alone who are coming up. As we wait for them to finish their questionnaires, I think it is good if we can find out if they have criminal records or things such as that before we go forward. If they fit at least a basic level of competence before they go forward, we will continue to have those hearings. I am not going to do what the Republicans did and have 34 months without having any hearings at all. We have been having hearings every month. It is an interesting complaint they make, when they had 6 months that they controlled the Senate and did not have any confirmation hearings of judges or votes. We started having them within a week after taking over the Senate. Be that as it may, maybe someone sits in a room somewhere and thinks we don't have enough work to do. After all, we spent 3 weeks putting together an antiterrorism bill--which did take up a little bit of time. I remember the number of times I was here late at night, and then to hear complaints we have not had Judiciary hearings--actually, we had a couple while we were working on the antiterrorism bill. Some things have happened in the last month in this country that have needed our attention. We have been trying to move U.S. attorneys as fast as they come up, but it is like pulling teeth to get them out of the White House so we can move them. I don't know if we have had any marshal nominations come up, but a week ago we had not had a single one. I have never known a President in my term to take that long. Holding up the foreign aid bill is an interesting tactic. I cannot figure out why. If Senators want to criticize me on judges, I am happy to make a commitment to move as fast as they moved the nominees of President Clinton, but I have a feeling no one would be happy if I, as chairman, were to treat President Bush's judicial nominees the way they treated President Clinton's. If I did that, we would hear screams. I think we would hear screams from Democrats, too, because it would be so patently unfair if we did to them what the Republicans did to President Clinton. I am not going to do that. I don't believe in doing that. When we get done, whatever time I am chairman of the Judiciary Committee, we will find President Bush's nominees were handled far more fairly than those of President Clinton. Having said that, I wonder what in Heaven's name is the masochistic attitude that is holding up this bill so they can make political points on the weekend talk shows. I cannot understand that. Secretary Powell is overseas now trying to solidify our antiterrorism coalition. Democrats have united behind the President and the Secretary of State in helping to bring together the support of leaders of other countries. The distinguished majority leader has pushed hard to get through money and authorization for President Bush to fight terrorism. We went the extra mile to get the antiterrorism bill completed. Having done that, we are now saying to the President: Look, Mr. President, you can call on all these people overseas, ask them to support us in our antiterrorism activities, but we are not going to give you your foreign aid bill. We will not give you the money you are now promising the foreign leaders for their help. We are not going to give you the money that goes to NATO allies. We will not give you the money that goes to the Middle East Camp David signers. We will not give you the money to fight AIDS in Africa. We are not going to give you the money to give child immunizations. We are not going to give you the money, apparently, to help feed the Afghanistan people after this war ends. It is a sad day when, for partisan reasons, an important appropriations bill is sabotaged. Even the ranking member of the foreign appropriations subcommittee will vote against proceeding to the appropriations bill. It is unfortunate, unjustified, especially after I have bent over backwards to work with him on this bill. Our economy is intricately intertwined with the global economy. Our health depends on our ability and the ability of countries in Africa, Asia, and Latin America to control the spread of deadly infectious diseases. Our security is linked to the spread of nuclear, biological, and chemical weapons and our ability to stop terrorism and narcotrafficking and organized crime. These threats are prevalent from as far away as China to our own cities. No less a threat but potentially the trigger that ignites many others is poverty. 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 whatever scraps they can scavenge. Many children die before the age of 5. This grinding, hopeless, desperate existence is overladen with despair. That despair fuels hatred, fear, violence, and even the terrorism that hit this country a month ago. We see it on many continents, including today in Pakistan, where thousands of people are threatening to overthrow their own government if it gives American troops access to Pakistani territory. We see it across Africa and in Colombia and Indonesia. We see it in the form of refugees and people displaced from their homes who number in the tens of millions. The world is on fire in too many places to count, and in most of those flashpoints poverty and the injustice that perpetuates it are at the root of instability. Our foreign assistance programs provide economic support to poor countries, health care to the world's neediest women and children, food and shelter to refugees and victims of natural and manmade disasters, and technical expertise to promote democracy, free markets, human rights, and the rule of law. This is as it should be. But as important as this is, what we give is a pittance when considered in terms of our wealth and the seriousness of the threats we face. Even this pittance, the other side doesn't want us to even vote on. Stand up and say we are all against terrorism. Of course we are. Wave the flag and say you want to protect America. Of course we do. But to say we might do something to actually stop some of the root causes of terrorism-- well, not if it interferes with the partisan political agenda; we can't do that. The approximately $10 billion we provide in this type of assistance-- whether through the State Department and the Agency for International Development or as contributions to the World Bank, the U.N. Development Program, the World Food Program, and other organizations--amounts to less than $40 per person in this country. We are all willing to give far more money than that--we were in my family--for the victims of terrorism. But at least give something that maybe will stop the terrorism from happening in the first place. We are also trying to help people in our country because our economy is suffering. But we cannot bury our heads in the sand and protect our national interests, in today's complex and dangerous world, on a foreign assistance budget that is less in real terms than it was 15 years ago. Our world is not simply our towns and our States and our country, it is the whole world. We live in a global economy. The Ebola virus is like a terrorist--the terrorists could get on a plane in one part of the world and could be in our backyard hours later. 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, to the countries that are failing from ignorance, poverty, and injustice. Almost 60 percent of the world's people live in Asia. That number is growing. Seventy percent of the world's people are nonwhite, 70 percent are non-Christian, 5 percent own more than half the world's wealth, half the world's people suffer from malnutrition, and 70 percent are illiterate. These people may not knock down skyscrapers that kill 6,000 Americans in a single day. But they pose immense long-term threats to our way of life: Extreme poverty on a massive scale in countries that cannot feed their people today, and the poisoning of our environment. All of these things should be attacked by us just as much as we attack the networks of Osama bin Laden. We give no credit to the Senate--the greatest parliamentary body--we give no credit to this great body if we block the foreign aid bill from going forward. I yield the floor.

Mr. LEAHY

Mr. LEAHY. I yield the floor.

Mr. LEAHY

Mr. LEAHY. We are prepared if the Senator from Wisconsin is.

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

Mr. LEAHY. Madam President, the administration originally wanted administrative subpoena authority in foreign intelligence cases for government access to any business record. I was able to reach agreement with the administration to subject this authority to judicial review and to bar investigations based on the basis of activities protected by the First Amendment. The Feingold amendment would ensure that current laws providing safeguards for certain types of records, such as medical and educational records, be maintained. Again, it is unfortunate that the administration did not accept this amendment. Mr. President, we are prepared to yield back the remainder of our time if the Senator from Wisconsin is prepared to yield back the remainder of his time.

Mr. LEAHY. If the Senator is going to yield his.

Mr. LEAHY. Madam President, Senator Feingold provided invaluable assistance to the committee during our consideration of this legislation. He also held a hearing in his Constitution Subcommittee last week on the critical civil liberties issues raised by the Administration's anti-terrorism bill. I fully appreciate the depth of his concern and his desire to improve this bill. The Attorney General and I agreed in principal that the roving, or multipoint, wiretap authority for criminal cases should be available under FISA for foreign intelligence cases. The need for such authority is especially acute to conduct surveillance of foreign spies trained in the art of avoiding surveillance and detection. Senator Feingold's amendment simply assures that when roving surveillance is conducted, the Government makes efforts to ascertain that the target is actually at the place or using the phone, being tapped. This is required in the criminal context. It is unfortunate that the Administration did not accept this amendment. I hope all time could be yielded back on both sides.

Mr. LEAHY. I ask the distinguished Senator from Utah--I see the distinguished senior Senator from Pennsylvania is here--perhaps after the senior Senator from Utah, and then after the senior Senator from Pennsylvania speaks, whether it might be possible to go to the Senator from Wisconsin for the purpose of bringing up his amendments, and we can then debate and vote on them. Will that be agreeable to everybody?

Mr. LEAHY. No. I am just saying what people are requesting for time. I am trying to get some idea. A number of Senators have asked the distinguished leader and myself how much longer we are going to be here tonight.

Mr. LEAHY. I am glad there will be a managers' package. We cannot vote on final passage until the managers' package is here. I thank the majority leader for his help. As I said before, I don't think the bill could have gotten as far as it did without that help. I wish the administration had kept to the agreement they made September 30. We would have a more balanced bill. I still am not sure why the administration backed away from their agreement. I am the old style Vermonter: When you make an agreement, you stick with it. But they decided not to, and it slowed us up a bit.

Mr. LEAHY. I move to reconsider the vote.

Mr. LEAHY. Madam President, I tell the distinguished Senator from Michigan and the distinguished Senator from Massachusetts, who made such strong and valid points on money laundering, we just received from the administration their statement of policy saying: This includes money laundering, other financial infrastructure provisions arising from separate legislative proposals. These provisions were added to this bill after unanimous approval to have these provisions in the Senate Banking Committee. The administration supports the effort to strengthen this-- And so on. They are extremely important, and I can assure both Senators that I will strongly support retention of this in conference.

Mr. LEAHY. Mr. President, the Senator from Utah wanted to say something for the record.

Mr. LEAHY. I yield back the remainder of our time.

Mr. LEAHY. I agree with you completely, and you can rest assured that the Judiciary Committee under my chairmanship will conduct meaningful oversight, as we already have begun to do over the summer. Although FISA requires oversight reporting to the Intelligence Committees, the law makes clear that other Committees may also have oversight jurisdiction. Section 108 of FISA, 50 U.S.C. 1808, states, ``Nothing in this title shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.'' Section 306 of FISA, 50 U.S.C. 1826, provides for semiannual reports from the Attorney General to the Intelligence and Judiciary Committees on the number of applications for physical search orders made, granted, modified, or denied, and the number of physical searches which involved the property of United States persons. The Judiciary Committee's responsibility will be greater under the amendment to FISA, because of the greater authority to use FISA for law enforcement purposes.

Mr. LEAHY. Yes, the Senator from Washington is correct. While improved, the USA Act would make it easier for the FBI to use a FISA wiretap to obtain information where the Government's most important motivation for the wiretap is for use in a criminal prosecution. This is a disturbing and dangerous change in the law. The Justice Department concedes that ``the few courts that have addressed the issue have followed a primary purpose test'', October 1, 2001 Letter from Daniel J. Bryant, Assistant Attorney General, p. 13. I appreciate the administration's agreement to move off its original position of changing the law to only require the FISA surveillance to ``a'' purpose of collecting foreign intelligence information. Indeed, the Justice Department's own constitutional analysis provided to the Committee at the request of our Members does not even attempt to justify the original proposal, but instead presents argument for why a change to ``a significant" purpose would be constitutional. I remain disappointed with the administration's insistence on forcing any change on this important statutory requirement. FISA was enacted for the express purpose of clarifying that different legal standards apply to those gathering foreign intelligence than to those seeking criminal evidence. This new provision will blur that distinction, and it is indeed very problematic in my mind. Federal courts have upheld FISA on the basis that what is reasonable under the fourth amendment may vary when national security is at risk. Thus, a FISA wiretap does not have to be based on probable cause to believe a crime has been or is about to be committed, and no notice is given unless the person is prosecuted. Further, while judges review warrants on the merits when targets are U.S. persons, the primary purpose for the wiretap must be the protection of our national security. Upon satisfaction of that critical condition, the statute authorized the use of evidence obtained under a FISA wiretap for criminal prosecution.

Mr. LEAHY. Mr. President, we are about to go to final passage. We thought there would be a managers' package. We signed off on this side, and apparently the other side has not, which is their right.

Mr. LEAHY. Mr. President, the Senator from Alaska is correct. Alaska is definitely part of America's Northern Border and it was the intent of the committee and the Senate that it be part of that definition. The unfolding facts about how the terrorists who committed the September 11 attack were able to enter this country without difficulty are chilling. Since the attacks many have pointed to our northern border as vulnerable to the entry of future terrorists. This is not surprising when a simple review of the numbers shows that the northern border has been routinely short-changed in personnel. 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. This remains true despite the fact that Admad Ressam, the Algerian who planned to blow up the Los Angeles International Airport in 1999, and who has been linked to those involved in the September 11 attacks, chose to enter the United States at our northern border. It will remain an inviting target until we dramatically improve our security. The USA Act includes my proposals to provide the substantial and long overdue assistance for our law enforcement and border control efforts along the Northern Border. My home State of Vermont has seen huge increases in Customs and INS activity since the signing of NAFTA. The number of people coming through our borders has risen steeply over the years, but our staff and our resources have not. I proposed--and this legislation authorizes in section 402--tripling the number of Border Patrol, INS inspectors, and Customs Service employees in each of the States along the Northern Border. Alaska is certainly one of those States. I was gratified when 22 Senators-- Democrats and Republicans--wrote to the President supporting such an increase, and I am pleased that the administration agreed that this critical law enforcement improvement should be included in the bill.

Mr. LEAHY. Mr. President, what is the time agreement that we are now operating under?