Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Madam President, I move to reconsider the vote.

Mr. LEAHY. Madam President, I have moved swiftly in the Judiciary Committee to consider and move forward the nomination of Robert S. Mueller, III, to be Director of the Federal Bureau of Investigation. His nomination was sent to the Senate on July 18 but his paperwork was not completed until July 24. Less than one week later, we held 2 days of hearings, on July 30 and 31, and made sure that the committee considered his nomination the same week, on August 2, in order to ensure committee and Senate consideration of this important nomination before the August recess. The committee unanimously and favorably reported this nomination. I thank the Democratic and Republican members of the committee for their cooperation and attention in allowing this nomination to move forward on an expedited basis. Mr. Mueller has had an outstanding career in law enforcement, serving as a Federal prosecutor in three different United States Attorneys' Offices and in Main Justice under both Republican and Democratic administrations. As he testified at his confirmation hearing, he has ``either personally prosecuted or supervised the prosecution of just about every type of Federal Criminal offense, including homicide, drug trafficking, organized crime, cyber crime, major frauds, civil rights and environmental crime.'' Mr. Mueller was the only witness at his hearings. The committee did not call other witnesses we are in the midst of intensive and ongoing FBI oversight hearings. These FBI oversight hearings were an integral part of the committee's preparation to consider the nomination of a new FBI Director, and Mr. Mueller's opening statement at his confirmation hearings specifically addressed significant issues raised in the prior hearings. At the oversight hearing on June 20, 2001, the committee examined both outside oversight mechanisms and methods to restore confidence in the FBI. Witnesses included former Senator John C. Danforth, who investigated the events at Waco as Special Counsel to the Attorney General; the Honorable William H. Webster, former FBI and CIA Director, currently heading a review of FBI security in the aftermath of the Hanssen espionage case; Glenn A. Fine, current Inspector General of the Department of Justice; Michael R. Bromwich, former Inspector General of the Department of Justice; and Norman J. Rabkin, Managing Director, Tax Administration and Justice Issues, General Accounting Office. At the oversight hearing on July 18, 2001, the committee considered the reform of FBI management with views from inside and outside the FBI. Witnesses included Raymond W. Kelly, former New York City Police Commissioner and Commissioner of the U.S. Customs Service; Bob E. Dies, FBI Assistant Director for Information Resources; Kenneth H. Senser, Acting FBI Deputy Assistant Director for Security Programs and Countermeasures; John E. Roberts, Unit Chief, FBI Office of Professional Responsibility; John Werner, former Supervisory Special Agent, FBI Office of Professional Responsibility; Frank L. Perry, Supervisory Senior Resident Agent, Raleigh, North Carolina, and former head of the Office of Law Enforcement Ethics at the FBI Academy; and Patrick J. Kiernan, Supervisory Special Agent in the Law Enforcement Ethics Unit at the FBI Academy. This nomination comes at a crucial juncture for the FBI. Mr. Mueller acknowledged at his confirmation hearing ``that the Bureau's remarkable legacy of service and accomplishment has been tarnished by some serious and highly publicized problems in recent years. Waco, Ruby Ridge, the FBI lab, Wen Ho Lee, Robert Hanssen and the McVeigh documents--these familiar names and events remind us all that the FBI is far from perfect and that the next director faces significant management and administrative challenges.'' Mr. Mueller reminded us ``that these problems do not tell the whole story of the FBI in recent years.'' He correctly observed that the FBI has had ``astonishing success during the same period'' and that ``the men and women of the FBI have continued, throughout this period of controversy, to do an outstanding job.'' Nevertheless, Mr. Mueller recognized that ``highly publicized problems have, indeed, shaken the public's trust in the FBI.'' The Judiciary Committee aims to forge a constructive partnership with Mr. Mueller to get the FBI back on track. Congress sometimes has followed a hands-off approach about the FBI. Until the Bureau's problems are solved, we will need a hands-on approach for awhile. The rights of all Americans are at stake in the selection of an FBI Director. The FBI has extraordinary power to affect the lives of ordinary Americans. By properly using its extraordinary investigative powers, the FBI can protect the security of us all by combating sophisticated crime, terrorism, and espionage. But unchecked, these same powers can undermine our civil liberties, such as freedom of speech and of association, and the right to privacy. By leaking information, the FBI can destroy the lives and reputations of people who have not been charged or had a trial. Worse, such leaking can be used for political intimidation and coercion. By respecting constitutional safeguards for criminal suspects, the FBI can help ensure that persons accused of Federal crimes receive a fair trial and that justice is served. Our paramount standard for evaluating a new Director is his demonstrated adherence to the Constitution as the bulwark of liberty and the rule of law. This is necessary to assure the American people that the FBI will exercise its power effectively and fairly. Throughout is career and in his testimony at his confirmation hearing, Mr. Mueller has showed his commitment to these principles. He testified, ``I care deeply about the rule of law. In a free society a central responsibility of government. I believe, is to protect its citizens from criminal harm within the framework of the Constitution.'' He stressed that ``the FBI is vital to the preservation of our civil order and our civil rights.'' This was the sixth time the Judiciary Committee has held confirmation hearings for an FBI Director since 1973, when the first nomination was made under the 1968 law requiring Presidential appointment and Senate confirmation of the FBI Director. That first nomination hearings, along with enactment in 1976 of the 10-year term for the Director, were conducted against the backdrop of Watergate. The nominee then was L. Patrick Gray, an Assistant Attorney General who became Acting Director after the death of J. Edgar Hoover in 1972. Gray held that position when the Watergate break-in and cover- up occurred. At the time of his confirmation hearings in early 1973, very little of the scandal was known beyond the reporting of the Washington Post. Patrick Gray had met with the President's Counsel John Dean, so this committee prepared to subpoena Dean and expected strong resistance in the name of Executive privilege. Other events then took over, the Gray nomination was withdrawn, and he later admitted personally destroying evidence. Those were dark days for the Bureau. Lost confidence in the FBI is not just a PR problem. The challenges facing the next FBI Director are different from the issues of abuse of power three decades ago but are just as tough. The American public has lost some confidence in the Bureau. This is not just a PR problem. This erosion of public trust threatens the FBI's ability to perform its mission. Citizens who mistrust the FBI will be less likely to come forward and report information about criminal activity. Judges and jurors will be less likely to believe the testimony of FBI witnesses. Even innocent or minor mistakes by the FBI in future cases may be perceived in a sinister light that is not warranted. Since FBI agents perform forensic and other critical work for many law enforcement agencies on the Federal, State and local levels, the repercussions of this decline in public confidence in the FBI has rippled far beyond Federal criminal cases. In his confirmation testimony, Mr. Mueller took special note of the impact within the FBI: ``The shaken trust, in turn, inevitably affects the morale of the men and women who serve at the Bureau.'' He pledged to ``make it my highest priority to restore the public's confidence in the FBI, to re-earn the faith and trust of the American people.'' Constructive oversight is necessary. For too long, the Congress has taken a hands-off approach to the FBI. Problems have been allowed to fester. The Congress has a duty to the American people to conduct systematic and ongoing oversight of the FBI to ensure it meets the highest standards of professionalism, competence, and adherence to the law. Constructive, bipartisan oversight of the FBI can greatly improve its effectiveness. While reviews by Inspectors General and other outside experts are important--the ultimate test is accountability to the people through the Congress. Three principles guide the Judiciary Committee's oversight of the FBI. First, our task is to rebuild confidence in the FBI as a vital national asset, not to tear it down. Second, when we look at mistakes, we do so as an essential first step to find and fix their cause. The purpose is not to detract from the outstanding work of the dedicated professional men and women of the FBI who go to work every day to keep this nation safe. Highly publicized mistakes have created an impression that the Bureau is unmanageable, unaccountable and unreliable. Unfortunately, these mistakes detract from the outstanding performance of FBI Special Agents and other employees who handle the most complex criminal, terrorist, and counterintelligence cases day in and day out. Only by fixing those problems, and continuously improving the organization, will the tremendous work done by so many agents and employees get the full credit it deserves. Finally, our efforts will be to reach bipartisan solutions that make the FBI better able to fulfill the weighty mission we demand of it. Working with the new Director and the Attorney General, I am convinced we can achieve these goals. Several Members discussed with the nominee his views on providing information to Congress. In response to Senator Schumer's concern about a request he had made for documents from the FBI on a policy issue regarding records of gun sales, Mr. Mueller said: I do believe that the Bureau should do everything possible to accommodate the requests of Congress. If there are documents that relate to the policy, that are generated by the FBI, then I believe the Department of Justice and the FBI should do everything possible to accommodate the request of Congress, consistent with its law enforcement responsibilities. Mr. Mueller repeated this assurance when Senator Specter cited a number of problems in getting FBI documents over the years. Mr. Mueller stated, ``I absolutely agree that Congress is entitled to oversight of the ongoing responsibilities of the FBI and the Department of Justice.'' He added that ``it is incumbent upon the FBI and the Department of Justice to attempt to accommodate every request from Congress swiftly and, where it cannot accommodate or believes that there are confidential issues that have to be raised, to bring to your attention and articulate with some specificity, not just the fact that there's an ongoing investigation, not just the fact that there's an ongoing or an upcoming trial, but with specificity why producing the documents would interfere with either that trial or for some other reason or we believed covered by some issue of confidentiality.'' Mr. Mueller cited two cases, BCCI and BNL, when he was head of the Justice Department's Criminal Division where an accommodation was reached to provide information to Congress on pending cases. He said he ``would expect that we would always have that ability to accomplish the accommodation that is necessary for Congress to discharge its responsibilities in oversight.'' Questioned further, Mr. Mueller said ``congressional oversight is appropriate, even if there is a pending prosecution or investigation'' and ``it is incumbent upon us to attempt to accommodate the necessity of the oversight committee to have the information it needs.'' He went on to say there may be ``the assertion of executive privilege'' and ``where there is a clash or disagreement between the executive and the legislative, I believe the courts are the final arbiters.'' Senator Grassley expressed concern about a deliberate pattern of denying, delaying or simply not complying with legitimate requests and asked the nominee how he would change the Bureau's penchant for denying legitimate access to documents and witnesses. Mr. Mueller replied that if there is an investigation by a committee of Congress, he would ``expect to have somebody responsible for assuring that we are responsive on that particular issue'' and, where ``some confidential interests'' are implicated, ``to state honestly and directly to the committee what should be done to accommodate the committee's request.'' He would like to ``foster a change in the perception so that you do have the feeling at the end of the day that the FBI has been responsive.'' Accommodation, rather than obstruction, of congressional requests for documents will be Mr. Mueller's goal. That is a positive promise. Three core problems: The questions being asked about the FBI are directed at three interrelated issues: the Bureau's security and information technology problems, management problems, and insular ``culture.'' The committee is in the midst of examining each of these areas at oversight hearings that began in June shortly after I became chairman. Serious security breakdowns and information technology inadequacies: In the national security field, our country depends on FBI counterintelligence to protect the most sensitive intelligence, military, and diplomatic secrets from foreign espionage. The espionage case of Robert Hanssen demonstrates, however, that the FBI's own security and the investigation of espionage in its own ranks failed dramatically, with enormous potential consequences. What is more disturbing is how many red flags the FBI apparently overlooked during the many years that Hanssen was a spy. The reviews by the Inspector General and Judge Webster will not be done for many months, but testimony before the Committee in July shed light on how this spy was able to operate with impunity for so long. We were told that there were no less than 15 different areas of security at the FBI that were broken and needed to be ``bolstered, redesigned, or in some cases established for the first time.'' The committee intends to continue its oversight work in this area, including closed sessions with the Director and other FBI officials to consider classified aspects of FBI information security. One of the things Director Freeh did after Hanssen's arrest was to require periodic security-screening polygraph exams for FBI agents with access to the most sensitive information. Reviews are currently underway that focus on the benefits and risks of the polygraph as a security screening tool. If the FBI needs wider use of polygraph exams, there must be firm assurances of consistency in their administration, application and quality controls. In response to a question from Senator Hatch, Mr. Mueller said he is willing to continue the requirement for polygraph exams for managers handling national security matters. He confirmed that he had already completed that polygraph exam. He stated his belief that ``you don't ask people to do that which you're unwilling to do yourself.'' The FBI needs to fully join the 21st century. This is the information age, but the FBI's information technology is obsolete. The committee has been told that the FBI's computer systems have not been updated for over 6 years; that more than 13,000 desktop computers are so old they cannot run on today's basic software; that the majority of the smaller FBI field offices have internal networks that work more slowly than the Internet connections many of us have at home; and that the investigative databases are so old that FBI agents are unable to store photographs, graphical or tabular data on them. Hard-working, dedicated FBI agents trying to fight crime across the country deserve better, and they should have the computer and network tools that most businesses take for granted and many Americans enjoy at home. To the credit of former FBI Director Louis Freeh, in the last year of his tenure, he reached outside the Bureau for fresh management perspectives and expert advice. He recruited two new senior FBI officials, who were not career agents but were brought into the FBI from IBM and the CIA to develop plans for addressing the Bureau's security and information technology problems. The Director should continue to look for the best advice from outside the Bureau, while at the same time identifying leaders within the Bureau who are committed to necessary reforms. In the months ahead the committee will watch closely to see if the Director backs up the proponents of reform when they face opposition from Bureau officials wedded to the status quo. At his confirmation hearings Mr. Mueller placed great emphasis on the need ``to upgrade the information systems and to upgrade the systems and procedures to integrate modern technology. Every FBI manager, indeed, every agent needs to be computer literate, not a computer programmer, but aware of what computers can and cannot do to assist them with their jobs.'' When asked by Senator DeWine how quickly he would be able to fully implement the FBI's information technology plan, Mr. Mueller said the Bureau has ``a 3-year technology update plan called Trilogy, and the goods news about that is that it's laying the foundation, whether it be the networks or the software, the hardware, the user interfaces for bringing the FBI agent into the modern era.'' He added that the ``not- so-good news is that once we have that structure in place, there's a lot more to do.'' Mr. Mueller cited in particular ``the storage and each retrieval of documents, of imaging documents when they come in immediately so that you have ultimately what is referred to in the private sector as a paperless office.'' The security and information technology problems facing the FBI are not problems of money. The Congress has poured money into the FBI. They are management problems and they can no longer be ignored. Mr. Mueller has seen the FBI up close for many years--as Acting Deputy Attorney General, as Assistant Attorney General, and in three United States Attorneys' offices. The committee wanted to know what management objectives he would bring to the job, based on his past experience, and what other resources he would draw on to bring about needed changes. Mr. Mueller spelled out his overall ``management priorities'' in his opening statement to the committee: ``Underlying these priorities is my belief that the core asset of the FBI is its employees. I am committed to providing the leadership, and management, and energy necessary to enable these talented and dedicated people to do their jobs as effectively as possible.'' His first priority will be ``to recruit, encourage, and select the highest quality leadership'' resulting in ``a management team that reflects the diversity of our society.'' Second to ``review carefully management structures and systems'' with special concern ``about the span of control, the degree of decentralization, and whether responsibilities are clearly defined.'' Third is to rebuild the information infrastructure, as discussed earlier. Fourth is for the FBI ``to review continuously its priorities and its allocation of resources'' in order to ``anticipate the challenges the Bureau will be facing 10 and 20 years into the future and prepare now to meet those challenges.'' Fifth is to ``develop the respect and confidence of those with whom it intersects, including other law enforcement agencies, both domestic and international, and Congress.'' Mr. Mueller added that he would ``move quickly on administrative and management changes.'' Personnel changes would be made first. Changes in structure and span of control would take more time, with input from a management consultant study commissioned by the Attorney General, other pending reviews, and ideas from other executives who rule large organizations. The management structure at the FBI may simply have become too unwieldy. when the Bureau was smaller, its headquarters could reasonably attempt to keep track of the activities in its field offices. In recent years, however, the Bureau has grown tremendously with 56 field offices, plus 44 overseas legal attaches. It may not be possible for headquarters to effectively monitor field activities. The belated production of documents in Oklahoma City bombing case happened despite 16 separate orders from headquarters for pretrial production of those documents. Similar problems arose in the Wen Ho Lee case, where a field office disregarded instructions from headquarters. At the FBI oversight hearings Former New York Police Commissioner and Customs Commissioner Ray Kelly testified that a regional structure makes a large law enforcement organization more manageable. At the confirmation hearings I asked Mr. Mueller whether this is something that would be considered. He replied, ``Absolutely,'' and said he ``did read Commissioner Kelly's testimony with some interest.'' He added, ``I would look at that proposal with a view to whether it goes toward affording appropriate span of control.'' He went on to stress the need ``to have the technological infrastructure be such that I would be able to review, as would the intermediate managers, review the work on critical cases or critical classes of cases by turning on your computer and using the mouse to click on a series of cases to see what has been done the last 3 days, what you expect to be done in the next 30 days.'' Senator Kohl asked if it was realistic to expect big changes quickly, given the size of the FBI with more than 27,000 employees and a budget of more than $3.5 billion. Mr. Mueller replied, ``I do think that one can relatively quickly, over several weeks/months, learn the institution and learn the people, learn what are the largest problems, whether it is span of control, what are the larger personnel problems and in a relatively short time. And I don't want to specify any particular time, but certainly within months start to make substantial changes.'' He added that making ``the most critical decisions'' about positions of leadership ``is not an extraordinarily time-consuming undertaking.'' Changing the organizational structure and the span of control ``will take longer time than perhaps making some personnel changes.'' I asked the nominee what management problems caused the FBI's failure to produce documents in the McVeigh case. Mr. Mueller cited two contributing factors. One was ``the lack of an infrastructure to have all documents coded and readily available'' in a case with ``a huge volume of documents spread across any number of offices in this country and internationally.'' Second was ``accountability'' and ``overlapping areas of responsibility in various areas of the FBI'' which make it ``very difficult to have accountability.'' There was ``perhaps a failure of accountability down to the lowest levels.'' Mr. Mueller said he would address this issue: ``It has been my practice in the past to identify areas of responsibility, put somebody in charge of that area of responsibility and hold that individual accountable for discharging that responsibility. And I want to make certain that where that is done within the Bureau, there is clear accountability.'' I also asked Mr. Mueller to discuss the time of his own reporting to the Attorney general on the document production problem in the McVeigh case. He testified: ``Turning to the issue of the time line, upon hearing about the issue, I heard about it I believe on a Wednesday afternoon. On that Friday, the decision was made to put over the execution of Mr. McVeigh. When I heard about it on a Wednesday afternoon, the initial response, and I believe I talked to the prosecutor that night or the following morning, the initial thrust of what I was concerned about is to make certain that defense counsel were aware of this immediately so that defense counsel could make its or their own interpretation of whether these documents contained any Brady or exculpatory information.'' Mr. Mueller also testified: I was not aware, I don't believe, at the outset the extent of the commitment to turn over documents until the following morning. And I actually had brief discussions with Mr. Ashcroft's staff on Wednesday afternoon, I think it was, about it, but I did not have an opportunity to fully brief the Attorney General until the following day, at which point I did have an opportunity to brief him more expansively that the fact that I had mentioned previously to his staff, that there was an issue. And, thereafter, the discussions ensured as to what was the appropriate response we would take to the fact that these documents had come to our attention. Both Senator Feingold and Senator Sessions raised concerns about the FBI's failure to provide information to prosecutors in the 1963 Birmingham bombing case. Mr. Mueller testified that he shared this concern. In cases ``involving national security information that may bear on a particular prosecution,'' there may be ``valid reasons for keeping certain of the information from the prosecutors that go into court,'' but mechanisms exist ``to assure that there is no Brady information, exculpatory information that should be given to the defense.'' He added that the day-to-day problem of FBI inability to produce documents quickly ``is attributable in part to its antiquated filing system.'' He said his objective is to have an FBI system to image documents into a database to make them ``immediately accessible so that you do not have the problem such as you saw with he prosecution of the McVeigh documents.'' Mr. Mueller expressed his willingness to reach out to experts wherever they may be found, including in and outside the FBI to address management and infrastructure problems. He stated that he has ``reached out, and will continue to reach out'' to ``persons who have been in the Bureau previously'' and ``persons in large corporations, CEOs, who have run successful corporations to try to identify those management structures that worked well and would work best at the FBI.'' He also is ``looking forward to receiving the report of the consulting firm that is charged with looking at the FBI from top to bottom.'' Mr. Mueller added that he ``would welcome the insight from any other individuals, assuming it is a combination of individuals with experience in management and private industry, law enforcement, and other walks of life. With regard to FBI personnel management, Mr. Mueller agreed that promotion of diversity within the FBI to ensure that the FBI employment level is reflective of America is a priority. The FBI should be more sensitive to recruiting and training minorities. In addition, Mr. Mueller acknowledged in response to questions from Senator Durbin that ``racial profiling is abhorrent to the Constitution, it is abhorrent in any way, shape or form. And I would make certain that from the first day an FBI agent sets foot in the academy in Quantico that that refrain is repeated as part of the training, and as one goes through the ranks, continuous retraining, and focus on the fact that the FBI, in order to be the preeminent law enforcement organization in the country if not in the world, has to have an unblemished record with regard to addressing and strongly attacking any indication of racial profiling.'' It is especially important to understand how the nominee views the FBI Director's relationship with the Attorney General in the overall management structure at the Department of Justice. Too often in the past Directors have had the final word on management of the Bureau. Of course, there are legitimate concerns about political interference with investigations, as Watergate demonstrated. The FBI Director is not, however, unique in having to resist with interference. Both the FBI Director and the Attorney General have that duty, and they should work together to ensure the integrity of both investigations and prosecutions. The FBI Director should be part of the Justice Department's leadership team. I asked Mr. Mueller under oath at his confirmation hearing to give his commitment that if he were ever pressured politically by the Republications or the Democrats to affect an investigation, that he would resist that pressure with all his might. Mr. Mueller replied, ``Absolutely.'' I questioned the nominee on how he sees the FBI Director's relationship with the current and subsequent Attorneys General, since he may work with more than one Attorney General over his 10-year term. Mr. Mueller testified: This is the most difficult issue I think that a director of the FBI has to address, in that the FBI has its ultimate responsibility to the American people to be independent, to pursue its investigations without any favor to one political party or the other or to any particular individual, no matter how powerful that individual should be. And on a day-to-day basis, on the other hand, I do believe that, absent extraordinary circumstances, the Director of the FBI, and the FBI, is a component of * * * the Department of Justice, reporting to the Attorney General. And there should be a close relationship on, for instance, policy matters, and there is a requirement in almost every matter that the Attorney General be apprised of that. And, again, I report, in essence, to the Attorney General and then to the President. There may be circumstances--there have been in history-- where it is important for the FBI and the Director of the FBI to put * * * the interests of the people above that reporting structure. And I hope that I do not have occasion to meet such a situation, but there is the possibility, perhaps even the probability, that I will. If there is an occasion where I believe that for reasons of political influence or the influence of the powerful that the Bureau is asked to do something that is inappropriate, wrong under the Constitution, that under those circumstances I have an obligation to find a way to address that. It may be going elsewhere in the administration. It may be going to Congress. It may be going to the American people. I don't know what the exact answer is. But I hope I do not have to face that situation because it will be the hardest decision that, should I be confirmed as Director, would have to make. I consider this answer to be a model for all Mr. Mueller's successors as FBI Director. Senator Specter and Senator Sessions asked the nominee what he would do if he had information that the Attorney General was taking an improper law enforcement action for political reasons. Mr. Mueller replied that he would ``go to the Attorney General first before I made perhaps a disclosure to Congress.'' He would also ``explore other alternatives or a variety of alternatives in order to make certain that justice was done.'' Questioned further on the second day of the hearing, Mr. Mueller said that ``if it was a matter of substantial consequence'' and he ``was turned down by the Attorney General, I would think I'd have an obligation to inform the Senate of that, and produce those documents.'' In the discussion of this issue, reference was made to a memorandum from FBI Deputy Director Esposito to FBI Director Freeh, dated December 9, 1996. In that memorandum Mr. Esposito said Lee Radek, chief of the Justice Department's Public Integrity Section, had made a comment to Director Freeh. According to the Esposito memorandum, Mr. Radek had commented that there was a lot of ``pressure'' on him regarding a case before the ``Attorney General's job might hang in the balance.'' The accuracy of this memorandum has been seriously questioned. At a Subcommittee hearing on May 24, 2000, Mr. Radek testified that he felt pressure from the Attorney General to do a good job, but that there was no connection in his mind between any such pressure and whether or not the Attorney General would continue in her job as Attorney General during the second Clinton Administration. Mr. Esposito's second-hand account has not been corroborated. This episode should be a warning of the risk that lower level officials may seek to sabotage political appointees. The use of this memorandum as a straw man for questioning the nominee should not imply agreement by other Members to its credibility. The nominee was also asked to consider the possibility that he and the Attorney General might decide to withhold information on national security matters from a President if the President were the target of a criminal investigation. In response to a question from Senator Specter, Mr. Mueller stated, ``There may be an occasion where it's possible, yes.'' Mr. Mueller also explained that, if disclosing ``information to a target would hamper or undercut the investigation,'' he would expect ``that any decision as to whether or not that information should be disclosed to the target would be made in conjunction with the Attorney General. But the decision may well be that that information should not be disclosed.'' Mr. Mueller went on to state, ``If it is national security information, on the other hand, that bears upon the security of the United States, I think we have an obligation to assure that anything within those materials that bears on the national security finds its place in the national security structure.'' I am troubled by an apparent inconsistency in this response, because the President bears full and ultimate responsibility for the national security structure and all the diplomatic, military, intelligence, and other actions necessary to protect the nation's security. An FBI Director must find a way to accommodate the legitimate needs of the President to exercise his constitutional responsibilities for national security, just as it accommodates the needs of the Congress to exercise its oversight responsibilities. The FBI ``culture'' needs an overhaul. The committee is receiving testimony in our oversight hearings showing that, too often, the independence that is part of the FBI's culture has crossed the line into arrogance. Senator Danforth expressed concern to this committee about entrenched executives at the FBI who have created a closed and insular culture resistant to disclosure of mistakes and to reforms. His concern was echoed in testimony the committee heard from experienced FBI Special agents, who told us of a ``club'' mentality among some Bureau executives who resist criticism or change that threatens their careers. Senator Danforth recommended that the new director should be prepared to clean house to the extent necessary to implement needed changes. If there is one message that a new Director should get from recent problems, it is that FBI executives need to be more willing to admit their mistakes. Too often their response is to protect the Bureau from embarrassment or shield self-serving executives from criticism and needed change. As Senator Danforth testified, the FBI helped fan the flames of conspiracy theories at Waco by covering up evidence that it used pyrotechnic rounds, even though they had nothing to do with starting the fire. The present FBI culture makes it easier to cover up rather than admit a mistake. A new Director must understand that this type of conduct risks a far greater cost in the lost of public confidence, as compared with admitting mistakes when they occur. Let me cite one example that occurred just a week ago. In its recent weekly newsletter for FBI employees, the FBI reported on the Judiciary Committee's July 18 hearing. But the newsletter reported on the Testimony of the two senior FBI agents, who told us about what they were doing to fix the security and information technology problems at the FBI. Their testimony was also the only testimony posted on the FBI website. Yet, the testimony of the four other FBI agents who testified about problems of a double standard in adjudicating discipline and about retaliation within the FBI was ignored--not mentioned in the newsletter nor posted on the Website. Ignoring the testimony will not make it disappear. This kind of attitude makes it much harder to make the changes that need to be made. If the FBI tries to suppress information that things have gone wrong, it will never get them fixed. When I asked Mr. Mueller at his confirmation hearings about this newsletter, he stated ``that it is important that everybody in the Bureau look at both the good and the bad in order to address it.'' After my remarks at the nomination hearings, FBI Headquarters decided to send the testimony of the four other FBI agents to the field offices. That was the right decision. In his opening statement, Mr. Mueller discussed the broader concerns about the FBI's culture: [A]s we examine the mistakes of the past, we must be resolved to respond quickly and forthrightly to the mistakes of the future. Three elements are critical to a proper response: First, we must be willing to admit immediately that a mistake has occurred. This includes providing timely information to the appropriate committees of Congress. And for matters involving cases and courts, immediately informing the court and defense counsel as appropriate. Failure to admit one's mistakes contributes to the perception of institutional arrogance. Second, those responsible for the mistake must be held accountable. This does not mean punishing employees for simple errors in doing their jobs. Nobody is perfect, and we want to encourage people to come forward immediately when mistakes are made, but we must hold people accountable, and we cannot tolerate efforts to cover up problems or to blame others for them. If confirmed, I will be committed to inculcating a culture which understands that we all make mistakes and that we must be forthright and honest in admitting them and correcting them as quickly as possible. We must tell the truth and let the facts speak for themselves. The truth is what we expect in our investigations of others, and the truth is what we must demand of ourselves when we come under scrutiny . . . . And, third, every significant mistake must be examined to determine whether broader reform is necessary. We must learn from our mistakes or we will be bound to repeat them. I questioned Mr. Mueller about two recent cases where mistakes have not been rectified. Documents provided to the Committee on the Justice Department's January 2001 decision on Ruby Ridge discipline revealed that discipline given to some FBI agents in January 1995 was incorrect. Another example was a CIA officer who was initially suspected of espionage before the FBI discovered that Hanssen was the real culprit. The CIA officer was cleared and allowed to return to his work, but the FBI did not formally notify him or his family that he is no longer suspected of any wrongdoing. Mr. Mueller agreed to look into these matters. In other questioning of the nominee, Senator Sessions observed that there has been a concern in the FBI that if somebody made an honest error, the hierarchy would be too hard on them. He saw this as a factor in the lack of willingness to come forward with and admit an error. Mr. Mueller agreed and said ``the bedrock principle ought to be to tell the truth . . . the sooner the better.'' Senator Specter asked Mr. Mueller what his response would be when an FBI official deliberately does not correct a mistake in testimony to Congress or deliberately does not disclose important information. He replied that ``absolutely anybody who lies deserves the strongest sanction, up to and including dismissal from the FBI.'' Another concern about the FBI culture is the Bureau's treatment of local law enforcement agencies. Senator DeWine asked how the nominee intended to set the right tone for the FBI in this area. Mr. Mueller replied that one way would be ``outreach'' to address any complaints such as stealing an investigation. He also stressed that ``the FBI can and should allow others to trumpet its successes.'' He stated, ``In my own mind, the praise that makes the biggest difference is that that comes from others with whom you've worked. And my hope would be that we could operate on that principle.'' Senator Grassley expressed concern about a culture of arrogance at the FBI, exemplified by the practice of holding press conferences in very high-profile cases before the investigation is complete. Mr. Mueller responded that he is ``not a great one for press conferences'' and that in cases where the FBI assists local law enforcement ``I would much rather have, at the conclusion of an investigation, that the state and locals stand at the podium, do the press conference, and thank the FBI.'' Senator Specter, citing an unanswered letter he sent to Director Freeh about leaks in the press regarding an alleged investigation of Senator Torricelli, asked what action the FBI Director could take to preclude these types of leaks. Mr. Mueller replied, ``Generally speaking . . . I abhor leaks. They are detrimental to the mission of the FBI. They are detrimental to most particularly the individual who is the subject of them. I think you set a standard of very harsh treatment when an investigation is conducted and somebody is determined to have leaked.'' He pledged to ``do everything in my power to assure'' that Justice Department regulations on public statements ``are abided by and that any breach of those regulations is treated firmly.'' He also agreed ``to determine whether there is predication'' for an inquiry on the leaks regarding Senator Torricelli and, if there is predication, to ``conduct an inquiry.'' To ensure full investigation of mistakes, I support the change made by the Attorney General to give the Justice Department's Inspector General full authority over the FBI. The Inspector General statute should be amended to make this regulatory change permanent. Witnesses at the oversight hearings expressed concern that the Inspector General will not get the same cooperation from FBI personnel as a separate Inspector General for the Bureau. The Director's responsibility includes ensuring that FBI personnel cooperate fully with the Inspector General. One former Justice Department Inspector General testified that, when his office sought FBI personnel to work on a review of FBI performance, experienced Agents were reluctant to participate and declined to have their names listed in the report. Agents did not view this work as ``career-enhancing.'' A Director must make clear that FBI executives should reward--not discourage--participation in Inspector General, and other oversight, investigations of Bureau performance. The committee has heard disturbing testimony about retaliation against FBI Agents who are tasked to investigate their colleagues or who discuss issues with the Congress, either directly or through cooperation with the General Accounting Office, which assists in congressional oversight. It is important that a new Director send a clear message to FBI employees that he will not tolerate retaliation against agents who conduct internal investigations or who bring information about wrongdoing to the Congress directly. In response to a question from Senator Durbin about his proposal for a separate FBI Inspector General, Mr. Mueller noted the Attorney General's recent action and said he sees the Inspector General from the Department of Justice ``working very closely with the FBI Office of Professional Responsibility to allocate responsibilities.'' He added, ``If I were the Attorney General I might have some concern about a separate Inspector General feeding the perception that the FBI was a separate institution accountable only to itself. And I'm not certain in my own mind whether or not what the accountability you seek cannot be discharged by an Inspector General with appropriate personnel in the Department of Justice, as opposed to establishing another Inspector General in the FBI.'' Senator Durbin asked what steps the nominee would take to ensure that there will be a healthy relationship with an Inspector General in the management of the FBI. Mr. Mueller replied that the FBI Director should meet weekly or every other week ``with the Inspector General to review the cases, in the same way that the Attorney General meets with the Inspector General.'' Mr. Mueller also stated, ``To the extent that the Inspector General in the past was hampered by having to go to the Attorney General and specifically requesting authority, that has been removed.'' Internal investigations must also lead to fair and just discipline. Here the recent record is troubling. An internal FBI study that was released at the Committee's July hearing found a double standard at work, with senior FBI executives receiving a slap on the wrist for the same kind of conduct that would result in serious discipline for lower level employees. The most vivid example occurred when seven Senior Executives submitted false travel vouchers to they could fly to Washington for the retirement dinner of a Deputy Director. They received only letters of censure for a voucher fraud offense that could cost an average Agent his or her career. Two of them actually received promotions and cash awards. In another case, the argument was asserted within the Justice Department that the FBI Director may not be disciplined because he is a Presidential appointee and that, in any event, the FBI Director should not be disciplined for exercising poor judgment. This argument conflicts with the basic principle that all public officials should be held equally accountable. In his opening statement, Mr. Mueller said it is ``very important that there be no double standards in accountability. I know there have been allegations that senior FBI officials are sometimes treated more leniently than more junior employees. Any such double standard would be fundamentally unfair and enormously destructive to employee morale. If anything, senior FBI officials should be held to a higher standard than other employees, for, after all, they should serve as an example. I commit to this committee, to the employees of the FBI, and to the American people that there will be no such double standard should I become director of the FBI.'' In response to my questions, Mr. Mueller put even greater emphasis on appointing ``leaders in the FBI who are held to a higher standard'' because they ``serve as example for others in the FBI.'' During the confirmation hearings, Committee members raised issues regarding the scope and methods of FBI investigations. Senator Feingold asked if the nominee was willing to consider requiring FBI agents to record interviews electronically, a practice consistent with the practice of many law enforcement agencies around the country. Mr. Mueller said that he would and that the FBI no longer has a ``hard and fast rule'' against it. Interviews may be recorded with the approval of the Special Agent in Charge. While working homicides in the District of Columbia, Mr. Mueller saw ``the advantage of the use of recording interviews.'' However, given the thousands of FBI interviews conducted daily including background investigations, he thought it would be ``counterproductive to require recording and transcribing all such interviews.'' The FBI ``will continue to look at it, particularly in an instance where it is important that a confession or critical evidence relating to a terrorist attack needs to be deciphered accurately with no room for error.'' Senator Feingold also expressed concern about the FBI's difficulty distinguishing between peaceful political dissent and criminal activity in the past and possibly in the targeting of Arab Americans today. He asked what steps Mr. Mueller would take to ensure that the Bureau does not infringe on fundamental First Amendment rights and restricts itself to investigating only criminal activity. Mr. Mueller replied that he does ``share the concern.'' Citing his experience in criminal investigations, he said he ``would insist that whenever we are undertaking an investigative enterprise, that there be adequate predication for the steps we take to pursue that investigation.'' He also said he would address the problems of ``span of control'' and the FBI's computer infrastructure in order to ``have transparency of information all the way to the top.'' This would ``provide the oversight necessary'' to assure that ``predication is being looked at, demonstrated, before a particular important investigation is going forward or a class of investigation is going forward.'' Senator Specter raised the issue of FBI agents asking someone who has been arrested if they have information about some other person who is a public figure, with the suggestion that the case against the individual under arrest will go easier if that individual is able to identify somebody who is well known. Mr. Mueller responded that ``a general targeting, without predication, is anathema to the Bureau, and to the extent that any incident such as that comes to the attention of the Director, it should be dealt with firmly.'' Senator Cantwell raised a privacy concerns, which I share, about the FBI's Carnivore system, or DCS-1000, and new technologies such as a key logger system. Mr. Mueller said he was sensitive to those concerns and had talked with a number of privacy groups when he was Acting Deputy Attorney General. Asked by Senator Cantwell to review Carnivore, Mr. Mueller said the Justice Department is conducting such a review and he would look at it when it is completed. The Fourth Amendment must be kept up to date in response to new and emerging surveillance technologies. This is an issue about which I alerted Mr. Mueller that the FBI should anticipate increased oversight from the Judiciary Committee and increased concern on both sides of the aisle. I asked the nominee to look at the procedures in place for law enforcement access to electronic information because so much of it is stored in the hands of third parties. Our aim should be to make sure that privacy is properly protected in the electronic age, whether it is a keystroke, thermal imaging, or dealing with the proliferation of small companies that hold our data. Mr. Mueller agreed to do so, observing that ``there are issues where there is a law enforcement tool, there are privacy interests implicated, and yet one doesn't know where the line is.'' Privacy interests are also implicated by the Attorney General's decision to cut-back on the retention of records of gun sales to legitimate gun owners. Mr. Mueller initially acknowledged that this decision ``could'' subvert the FBI's effort to keep guns out of the hands of criminals and go after the bad dealers, but noted that he was ``not familiar with the debate or what evidence there is, what study there has been of the impact of the change, but, yes, it could.'' Mr. Mueller accepted my invitation to work with members of the Committee and the Attorney General to ensure that the National Incident Criminal Background Check System maintains an accurate auditing system, but also protects the legitimate rights of gun owners. The FBI has long been considered the crown jewel of law enforcement agencies. Today, it has lost some of its earlier luster. The next FBI Director has both a great challenge and a great opportunity to restore public confidence in the Bureau, and the Judiciary Committee stands ready to help. The Committee needs to forge a strong and constructive oversight partnership with the leadership at the Department of Justice and the FBI to shape the reforms and find the solutions to make the FBI the premier law enforcement agency that the American people want and expect it to be. Robert Mueller seems well prepared to meet this challenge and take advantage of this opportunity as the next Director of the FBI. With a statutory ten-year term, the position of FBI Director is unique in our government, and confirmation of a nominee to that position is an exceptionally serious responsibility for the Senate. With full consciousness of that responsibility, I urge my colleagues to confirm the nomination of Robert S. Mueller, III, to be Director of the Federal Bureau of Investigation.

Mr. LEAHY. Madam President, are these 10-minute rollcall votes?

Mr. LEAHY. Madam President, I am pleased to vote today to confirm Sarah V. Hart to be the Director of the National Institute of Justice, the research and development agency of the Department of Justice. For the last 6 years, Ms. Hart has served as Chief Counsel of the Pennsylvania Department of Corrections, and before that as an Assistant District Attorney in Philadelphia for many years. And it is not only her resume, but the strong support of former District Attorney from Philadelphia, my good friend Senator Specter, that makes it easy for me to vote to confirm Ms. Hart. I hope that, once confirmed, Ms. Hart will take her stewardship of the National Institute of Justice seriously. The NIJ is tasked with undertaking objective, independent, non-partisan research on crime and justice issues. In order to do that it is crucial that NIJ remain independent from the political aims of the administration and the Justice Department, and remain committed to publishing its research no matter what the results. Ms. Hart assured us, both at her hearing before the Judiciary Committee, and in answer to written questions submitted to her, that she understands this, and I look forward to seeing the results of the research conducted by NIJ under her supervision. In particular, I look forward to seeing the NIJ study on the role of racial bias in the federal death penalty carried out in a way that is true to its original intent, and not in a way that presumes before it even begins that racial bias is not a problem. And, again, at her hearing, and in writing afterwards, Ms. Hart assured us that would be the case. Because of those answers, and, as I said, because of Senator Specter's support, I am pleased to be able to vote to confirm Sarah Hart.

Mr. LEAHY. Mr. President, I ask unanimous consent that the Senator from Nebraska have 5 minutes.

Mr. LEAHY. Madam President, I move to reconsider the vote.

Mr. LEAHY. I thank the Senator.

Mr. LEAHY. Mr. President, we are going to have a series of votes on nominees, all of whom went through the Judiciary Committee this morning. Mr. Riley was the subject of nomination hearings before the Judiciary Committee on July 24. That was the fourth of five nomination hearings I scheduled in less than 3 weeks the Senate Judiciary Committee was allowed to have such hearings. Mr. Riley's was the fourth judicial nomination, the second nominee to a Court of Appeals considered by the Judiciary Committee since that date. I mention this because the Senate Judiciary Committee, in the less than 4 weeks we have been allowed to have a full committee, has probably moved through judicial nominations faster than at any time in the past several years. We will also have nominations of a Department of Justice nominee, also voted on this morning. The most important of all of these, I believe, is the nomination of Robert Mueller to be Director of the Federal Bureau of Investigation. We received his paperwork and completed it on July 24. We are now at August 2, again probably a speed record, to get this nomination before the Senate for confirmation. I thank the Senators on both sides of the aisle for making it possible to move that rapidly. Mr. Mueller served as a Federal prosecutor in three different U.S. attorneys' offices, main Justice, in both Republican and Democratic administrations. He testified he either personally prosecuted or supervised the prosecution of just about every type of Federal criminal offense, including homicide, drug trafficking, organized crime, cybercrime, major fraud, civil rights, and environmental crime. Mr. Mueller answered some very searching questions of Members on both sides of the aisle. I think all of us have enormous respect for so many of the men and women in the FBI. They are the best trained and best motivated law enforcement agents anywhere in the world. Many of us share also the concern that some within the hierarchy of the FBI let them down as a result of the problems with Waco, Ruby Ridge, the Hanssen spy case, and the foul-ups in the FBI lab. I thought that whoever the next Director was owed it to all the wonderful men and women in the Bureau to make it better. I am convinced Robert Mueller can. I told him we were expediting his nomination, we were moving his nomination faster than any nominee has ever moved for such a prominent position, whether it has been a Republican President or Democratic President. It is because of our faith in him. We know he has a difficult job ahead of him. I told him that all Americans look forward to his making sure the FBI is the preeminent law enforcement agency in the world and that he has the faith, and the hope, of 100 Senators. All 100 of us have an awesome responsibility. We represent a quarter of a billion people, and we have to make the judgment: Is the President's choice the best person? I believe it is. I have that faith in him. I have the faith that Attorney General Ashcroft has done a very good job in his work, and I applaud Attorney General Ashcroft for what he has done. I applaud President Bush for his appointment. We will move forward on that. Mr. President, the Senators from Nebraska made a powerful statement on behalf of William Riley of Nebraska to serve as a judge for the United States Court of Appeals for the Eighth Circuit. That is one of the reasons it moved so quickly. I see the former Governor of Nebraska, now a distinguished colleague in this Chamber, former Governor Nelson and now-Senator Nelson. I yield to Senator Nelson.

Mr. LEAHY. Mr. President, I am pleased to today to vote to confirm William J. Riley of Nebraska to serve as a judge on the U.S. Court of Appeals for the Eighth Circuit. Mr. Riley was the subject of a nominations hearing before the Judiciary Committee on July 24th, which was the fourth of five nominations hearings I have scheduled since the Senate was allowed to reorganize on June 5. Mr. Riley's was the fourth judicial nomination considered by the Judiciary Committee since that date, and the second nominee to a Court of Appeals. The Judiciary Committee has considered and the Senate confirmed three judicial nominees in that period of time, and Mr. Riley will be the fourth, before the August recess begins. William J. Riley, 54, is a native Nebraskan, and a graduate of the University of Nebraska and the University of Nebraska Law School. Mr. Riley served as a law clerk to the Honorable Donald Lay of the U.S. Court of Appeals for the Eighth Circuit, and went on to a distinguished career with the Omaha law firm of Fitzgerald, Schorr, Barmettler & Brennan. Over the course of his legal career he handled a variety of types of cases, including insurance defense, commercial litigation, and plaintiffs' personal injury, and his clients have ranged from individuals to large corporations. He has extensive litigation experience in both Federal and State courts. Mr. Riley has been active in bar activities at the State and local level, and in other professional associations. He served as chair of the Nebraska State Bar Ethics Committee from 1996-1998, and in that capacity he was responsible for a non-discrimination amendment to the Nebraska Code of Professional Responsibility. He has also been a member of the Nebraska State Bar's House of Delegates for the last three years. He is on the Executive Council of the Omaha Bar Association, is its immediate past president, and in the past served as its treasurer. He also served as chair of the Federal Practice Committee of the U.S. District Court in Nebraska, and is active in the American College of Trial Lawyers and the American Board of Trial Advocates. I am always glad to see qualified nominees who are supported by both home-State Senators, and Mr. Riley is such a nominee. In this case, both of the Senators from Nebraska, Chuck Hagel, a Republican, and Ben Nelson, a Democrat, strongly supported his nomination. Both contacted me to ask that he be scheduled for a hearing, and both came to his hearing and spoke convincingly on his behalf. Senator Hagel told the Judiciary Committee about Mr. Riley's, ``knowledge, experience, and temperament,'' and that he knows Mr. Riley, ``will be an excellent addition to the Eighth Circuit and will serve with distinction.'' When Senator Ben Nelson introduced Mr. Riley at his hearing, he too attested to Mr. Riley's credentials, and underscored the nominee's support from both sides of the aisle, telling us that ``Mr. Riley exemplifies the kind of nominee that we would like to see put forth for these very important judgeships. He is not only a qualified person for this position, but he has earned broad bipartisan support and respect in Nebraska as well.'' I know that both Senator Nelson and Senator Hagel believe that this sort of bipartisan support is a crucial component of a successful nomination, and they followed through by working together with the White House to find a qualified candidate on whom they could agree. I hope the process that they undertook, like the one that recently produced the two District Court judges in Montana, demonstrates the advantages to such an approach. I hope it makes clear that when the President works with Members of the Senate from both parties on the selection of qualified, consensus candidates to be judicial nominees, those nominations are likely to move more smoothly through the confirmation process. The question is, Will the Senate advise and consent to the nomination of William J. Riley, of Nebraska, to be a U.S. Circuit Judge for the Eighth Circuit? On this question, the yeas and nays have been ordered, the clerk will call the roll.

Mr. LEAHY. I move to reconsider the vote.

Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask unanimous consent that the call of the quorum count against whatever time is still pending.

Mr. LEAHY. Madam President, I thank the distinguished majority leader and Members on both sides of the aisle for arranging to expedite the scheduling of these three votes. As I said to the Senator from Nevada, the majority whip, it is extremely important that we were able to move especially Bob Mueller as quickly as we did. I thank the leadership for making this possible, and I thank all Senators on both sides of the aisle for voting for him. It sends a strong signal. We have somebody who wants to preserve the very best of the FBI and to correct those areas where there are problems. I think he can do both. He comes with a strong mandate from the Senate, and that will help. I yield the floor.

Mr. LEAHY

Mr. LEAHY. Madam President, I am pleased to introduce the 21st Century Department of Justice Appropriations Authorization Act. I thank Senator Hatch, the Ranking Republican Member of the Judiciary Committee, for his hard work and support of this legislation. The last time Congress properly authorized spending for the entire Department of Justice, ``DOJ'' or the ``Department'', was in 1979. Congress extended that authorization in 1980 and 1981. Since then, Congress has not passed nor has the President signed an authorization bill for the Department. In fact, there are a number of years where Congress failed to consider any Department authorization bill. This 21-year failure to properly reauthorize the Department has forced the appropriations committees in both houses to reauthorize and appropriate money. We have ceded the authorization power to the appropriators for too long. Our bipartisan legislation is an attempt to reaffirm the authorizing authority and responsibility of the House and Senate Judiciary Committees. I commend Chairman Sensenbrenner and Ranking Member Conyers of the House Judiciary Committee for working in a bipartisan manner to pass similar legislation in the House of Representatives. The ``21st Century Department of Justice Appropriations Authorization Act,'' is a comprehensive authorization of the Department based on H.R. 2215 as passed by the House of Representatives on July 23, 2001. Our bipartisan legislation contains four titles which authorize appropriations for the Department for fiscal year 2002, provide permanent enabling authorities which will allow the Department to efficiently carry out its mission, clarify and harmonize existing statutory authority, and repeal obsolete statutory authorities. The bill establishes certain reporting requirements and other mechanisms, such as DOJ Inspector General authority to investigate allegations of misconduct by employees of the Federal Bureau of Investigation (FBI), intended to better enable the Congress and the Department to oversee the operations of the Department. Finally, the bill creates a separate Violence Against Women Office to combat domestic violence. Title I authorizes appropriations for the major components of the Department for fiscal year 2002. The authorization mirrors the President's request regarding the Department except in two areas. First, the bill increased the President's request for the DOJ Inspector General by $10 million. This is necessary because the Committee is concerned about the severe downsizing of that office and the need for oversight, particularly of the FBI, at the Department. Second, the bill authorizes at least $10 million for the investigation and prosecution of intellectual property crimes, including software counterfeiting crimes and crimes identified in the No Electronic Theft, NET, Act, Public Law 105-147. The American copyright industry is the largest exporter of goods from the United States, employing more than 7 million Americans, and these additional funds are needed to strengthen the resources available to DOJ and the FBI to investigate and prosecute cyberpiracy. The bill does not contain an authorization for appropriations for several unauthorized grant programs. Senator Hatch and I have decided to review each of these expired programs and authorize them as needed. In addition, Title I authorizes $9 million in FY 2002 to add an additional Assistant United States Attorney in each of the 94 U.S. Attorney Offices to implement part of the Administration's Project Safe Neighborhoods proposal to reduce school gun violence across the nation. These prosecutors will assist in targeting juveniles who obtain weapons and commit violent crimes, as well as the adults who place firearms in the hands of juveniles. Title II permanently establishes a clear set of authorities that the Department may rely on to use appropriated funds, including establishing permitted uses of appropriated funds by the Attorney General for Fees and Expenses of Witnesses, the FBI, the Immigration and Naturalization Service, the Federal Prison System, and the Detention Trustee. Title II also establishes new reporting requirements which are intended to enhance Congressional oversight of the Department, including new reporting requirements for information about the enforcement of existing laws, for information regarding the Office of Justice Programs, OJP, and the submission of other reports, required by existing law, to the House and Senate Judiciary Committees. Section 206(e) expands an existing reporting requirement regarding copyright infringement cases. Title II also establishes a counterterrorism fund and provides the Attorney General with additional authority to strengthen law enforcement operations. Title III repeals outdated and open-ended statutes, requires the submission of an annual authorization bill to the House and Senate Judiciary Committees, and provides states with flexibility to use existing Truth-In-Sentencing and Violent Offender Incarceration Grants to account for juveniles being housed in adult prison facilities. Title III requires the Department to submit to Congress studies on untested rape examination kits, and the allocation of funds, personnel, and workloads for each office of U.S. Attorney and each division of the Department. Section 305 requires the Attorney General and Director of the FBI to provide the House and Senate Judiciary Committees with a detailed report on the use of DCS 1000, also known as Carnivore, and other similar Internet surveillance systems. Many have raised legitimate privacy concerns with Carnivore. Congress needs to know the facts about Carnivore to find a way to balance the needs of law enforcement investigators with the privacy interests of all Americans. In addition, Title III provides new oversight and reporting requirements for the FBI and other activities conducted by the Justice Department. Specifically, section 308 codifies the Attorney General's order of July 11, 2001, which revised Department of Justice's regulations concerning the Inspector General. The section insures that the Inspector General for the Department of Justice has the authority to decide whether a particular allegation of misconduct by Department of Justice personnel, including employees of the Federal Bureau of Investigation and the Drug Enforcement Administration, should be investigated by the Inspector General or by the internal affairs unit of the appropriate component of the Department of Justice. Section 309 requires the Attorney General to submit a report and recommendation to the House and Senate Committees on the Judiciary not later than 90 days after enactment of this Act on whether there should be established an office of Inspector General for the FBI or an office of Deputy Inspector General for the FBI that would be responsible for supervising independent oversight of programs and operations of the FBI. Title IV establishes a Violence Against Women Office (VAWO) within the Justice Department. The VAWO is headed by a Director, who is appointed by the President and confirmed by the Senate. In addition, Title IV enumerates duties and responsibilities of the Director, requires the Attorney General to ensure VAWO is adequately staffed and authorizes appropriations for the VAWO. I look forward to working with Senator Hatch, Congressman Sensenbrenner and Congressman Conyers to bring the important business of re-authorizing the Department back before the Senate and House Judiciary Committees. Clearly, regular reauthorization of the Department should be part and parcel of the Committees' traditional role in overseeing the Department's activities. Swift passage into law of the ``21st Century Department of Justice Appropriations Authorization Act'' will be a significant step toward restoring our oversight role. I ask unanimous consent that the text of the bill and a section-by- section analysis of the bill be printed in the Record.

Mr. LEAHY. Madam President, I am pleased to introduce today, with my good friend from Utah, Senator Hatch, the Judicial Improvement and Integrity Act of 2001. I would like to thank Senator Hatch for his co- sponsorship of this measure. This effort builds on other legislation that Senator Hatch and I have worked on together to improve the criminal justice system, including, in this Congress alone, the Drug Abuse Education, Prevention and Treatment Act, S. 304, and the Children's Confinement Conditions Improvement Act, S. 1174. This bill would improve the criminal code and safeguard the integrity of the judicial system. It would protect witnesses who come forward to provide information on criminal activity to law enforcement officials; eliminate a loophole in the criminal contempt statute that allows some defendants to avoid serving prison sentences imposed by the Court; eliminate a loophole in the statute of limitations that makes some defendants immune from further prosecution if they get their plea agreements vacated; grant the government the clear right to appeal the dismissal of a part of a count of an indictment, such as a predicate act in a RICO count; insure that courts may impose appropriate terms of supervised release in drug cases; give the District Courts greater flexibility in fashioning appropriate conditions of release for certain elderly prisoners; and clarify the District Court's authority to revoke or modify a term of supervised release when the defendant willfully violates the obligation to pay restitution to the victims of the defendant's crime. Section two of the bill would amend title 18, United States Code, Section 1512, which prohibits attempts to tamper with witnesses, victims and informants. The statute currently provides that, if the offense involves murder or attempted murder, the maximum sentence is 20 years. If the defendant uses intimidation, physical force, threats or corrupt persuasion, the maximum is 10 years. The bill would increase the statutory maximum sentence for offenses involving the use or attempted use of physical force to 20 years. This change recognizes that the use or attempted use of physical force to tamper with a witness is closely related to attempted murder and that this fact should be reflected in the applicable penalty. For example, if the defendant severely beats the witness, causing serious bodily injury, the offense is arguably as serious as attempted murder, even if the government cannot prove that the defendant intended to kill the witness. It is therefore appropriate that the defendant face a potential 20-year sentence. The bill would also add a conspiracy provision that would make the maximum penalty for conspiring to tamper with a witness in violation of section 1512 or to retaliate against a witness in violation of title 18, United States Code, Section 1513 the same as that for the underlying substantive offense that was the object of the conspiracy. A similar provision was part of the Hatch-Leahy Juvenile Justice legislation, S. 254, which passed the Senate in 1999 but did not emerge from Conference. The third section of the bill would close a loophole in title 18, United States Code, section 401, which contains penalties for criminal contempt of court. This statute provides that a court may punish contempt by a fine ``or'' imprisonment. Courts have held that this language permits the imposition of either a fine or a term of imprisonment, but not both. This limitation on sentencing is highly unusual, since virtually all criminal statutes permit both a fine and imprisonment. More importantly, it creates the potential for an enormous, unjust windfall for defendants in cases where the court fails to notice the peculiar language of the statute and mistakenly imposes both a fine and imprisonment. In such cases, the defendant can simply pay the fine and then appeal the prison sentence as illegal. Surprisingly, courts have held that, once the fine is paid, the case can no longer be remanded to the district court to have the sentence corrected because the defendant has served the sentence. Thus, the only option is to vacate the prison term and set defendant free. See In re Bradley, 318 U.S. 50 (1943). Courts have continued to follow this rule even after the passage of title 18, United States Code, section 3551(b) as part of the Sentencing Reform Act, which generally permits a court to impose a fine in addition to any other sentence. See United States v. Versaglio, 85 F.3d 943, 946-47 (2d Cir. 1996); United States v. Holloway, 991 F.2d 370, 373 (7th Cir. 1993). It is time for Congress to correct this recurring problem. It is unjust to permit a defendant to go free without any serving time in prison simply because the judge made an obvious and easily-correctable mistake in imposing sentence. Moreover, there is no good reason to limit courts to only one sentencing option in criminal contempt cases. Allowing the imposition of both a fine and imprisonment should not result in harsher sentences; if anything, defendants may benefit because courts may choose to impose a fine and a shorter prison sentence instead of a longer prison sentence. The second section of our bill would therefore amend section 401 to allow the court to impose both a fine and imprisonment for criminal contempt. It would make similar changes on a handful of other statutes that contain language similar to section 401: sections 1705, 1916, 2234, and 2235, of title 18 and in section 636 of title 28 of the United States Code. The fourth section of the bill would add a new provision extending the statute of limitations for counts that are dismissed pursuant to a plea bargain. This would also close a loophole that exists under current law, which is illustrated by United States v. Podde, 105 F.3d 813 (2d Cir. 1995). In that case, a defendant who was charged with fraud pled guilty to a lesser offense pursuant to a plea agreement, and the fraud charges were dismissed. Later, however, the defendant was able to get his guilty plea set aside based upon a new Supreme Court decision. The district court then granted the government's motion to reinstate the original fraud charges, and the defendant went to trial and was convicted. On appeal, however, the court of appeals vacated the defendant's conviction based upon the statute of limitations. The court ruled that the fraud indictment could not be reinstated because the statute of limitations for the fraud charges had expired before the defendant's guilty plea was vacated. The Third Circuit reached the same result on similar facts in United States v. Midgley, 142 F.3d 174, 178- 80 (3d Cir. 1998). Under these decisions, the defendants could no longer be prosecuted for any offense, even though the government had brought the case within the limitations period and pursued it diligently. Our provision would prevent such unjust results in the future by allowing the government 60 days to move to reinstate the dismissed counts after the order vacating the defendant's guilty plea becomes final. This approach is similar to that of 18 U.S.C. Sec. 3288, which gives the government a grace period to obtain a new indictment where counts are dismissed after the statute of limitations has expired. The fifth section of the bill would amend title 18, United States Code, section 3731, which permits the United States to appeal certain orders of the District Court to the appropriate Court of Appeals. It would clarify that the government is allowed to appeal the dismissal of a part of a count, such as an overt act in a conspiracy count or a predicate act in a RICO count. This approach is consistent with the Supreme Court's observation that section 3731 permits ``an appeal from an order dismissing only a portion of a count.'' Sanabria v. United States, 437 U.S. 54, 69 n.23 (1978). The majority of Federal circuits already interpret section 3731 to permit this where the portion of the count that is dismissed could itself constitute a ``discrete basis of liability.'' See United States v. Mobley, 193 F.3d 492, 495, 7th Cir. 1999; United States v. Levasseur, 846 F.2d 786, 1st Cir. 1988. However, one federal circuit has held that section 3731 does not permit any government appeal from the dismissal of only part of a count. See United States v. Louisiana Pacific Corporation, 106 F.3d 345, 10th Cir. 1997. In other cases, appellate review of orders dismissing predicate acts or overt acts has been denied where the dismissed acts could not themselves have been charged in separate counts. See United States v. Terry, 5 F.3d 874, 5th Cir. 1993; United States v. Tom, 787 F.2d 65, 2d Cir. 1986. It is time to resolve these conflicting results definitively. The reach of section 3731 should clearly be extended to orders dismissing portions of counts. In some cases, the dismissal of an overt act or a predicate act may significantly impair the government's ability to prove its case. Defendants, of course, may get appellate review of the denial of a motion to dismiss part of a count after the trial if they are convicted. The government should also be able to appeal when such motions are granted, and it has no way of doing so other than through section 3731. Section six of the bill would resolve a conflict in the circuits as to the permissible length of supervised release in controlled substances cases. Under 18 U.S.C. 3583(b), ``[e]xcept as otherwise provided,'' the maximum authorized terms of supervised release are 5 years for Class A and B felonies, 3 years for Class C and D felonies, and 1 year for Class E felonies and certain misdemeanors. The drug trafficking offenses in 21 U.S.C. Sec. Sec. 841 and 960 prescribe special supervised release terms, however, that are longer than those applicable generally under section 3583(b). Those longer terms, which may include lifetime supervised release, were enacted in 1986 in the same Act that inserted the introductory phrase ``Except as otherwise provided'' in section 3583(b). Because of this clear legislative history and intent, three courts of appeals have held that section 3583(b) does not limit the length of supervised release that may be imposed for a violation of 21 U.S.C. Sec. Sec. 841 or 960 when a greater term is there provided. United States v. LeMay, 952 F.2d 995, 998 (8th Cir. 1991); United States v. Eng, 14 F.3d 165, 172-3 (2d Cir. 1994); United States v. Garcia, 112 F.3d 395 (9th Cir. 1997). Two courts of appeals, however, have reached the opposite result, holding that the length of a supervised release term that can be imposed for controlled substance cases is limited by 18 U.S.C. 3583(b). United States v. Gracia, 983 F.2d 625, 630 (5th Cir. 1993); United States v. Kelly, 974 F.2d 22, 24-5 (5th Cir. 1992); United States v. Good, 25 F.3d 218 (4th Cir. 1994). Although the issue has not arisen with frequency, the conflict is entrenched and should be dealt with definitively. Accordingly, the amendment would add the words ``Notwithstanding section 3583 of title 18'' to the title 21 controlled substance offenses in the parts of those statutes dealing with supervised release to make clear that the longer terms there prescribed control over the general provision in section 3583. Section seven of the bill would confer express authority on District Courts under 18 U.S.C. Sec. 3582(c)(1)(A), when exercising the power to reduce a term of imprisonment for extraordinary and compelling reasons, to impose a sentence of probation or supervised release with or without conditions. Such added flexibility is consistent with the purposes for which this statute was designed and will likely facilitate its use in appropriate cases. Under section 3582(c)(l)(A), a court is authorized, on motion of the Bureau of Prisons and consistent with the purposes of sentencing in 18 U.S.C. Sec. 3553, to ``reduce the term of imprisonment'' upon a finding that ``extraordinary and compelling reasons'' warrant such a reduction. This limited authority has been generally utilized when a defendant sentenced to imprisonment becomes terminally ill or develops a permanently incapacitating illness not present at the time of sentencing. In such circumstances, the situation of a prisoner (e.g., one suffering from a contagious debilitating disease), may make a court reluctant simply to release the prisoner back into society unless another sentencing option such as home confinement as a condition of supervised release or probation can be imposed. Presently, however, it is doubtful whether a court can order such a sentence since section 3582(c)(1)(A) speaks only in terms of reducing ``the term of imprisonment,'' not imposing in its stead a lesser type of sentence. Compare Fed. R. Crim. P 35(b), which gives a court the power to ``reduce a sentence'' to reflect substantial assistance. Finally, section eight would remedy a statutory ambiguity relating to restitution as a condition of supervised release. Under 18 U.S.C. Sec. 3583(c) and (e), the court is authorized to consider various sentencing factors set forth in 18 U.S.C. Sec. 3553 as a basis for imposing restitution as a condition of supervised release or for revoking or modifying the conditions of supervised release. Supervised release is among the purposes of sentencing enumerated in section 3553, in paragraph (a)(7), but is not among the factors enumerated in section 3583(c) and (e). However, 18 U.S.C. Sec. 3583(c) also authorizes the court to impose any condition of supervised release that is an authorized condition of probation under 18 U.S.C. Sec. 3563(b), and making restitution is among those conditions (see section 3564(b)(2)). Thus, it appears clear that a court has authority to impose a restitution condition upon a term of supervised release. See, e.g., United States v. Payan, 992 F.2d 1387, 1395-96 (5th Cir. 1993). But the absence of a reference to section 3553(a)(7) in the revocation subsection of section 3583 raises a question whether, even though it is an authorized condition of supervised release, a court has authority to revoke or modify the term for the willful failure to make restitution. This amendment would provide a reference to section 3553(a)(7) in the supervised release statute and remove any ambiguity in this regard. Of course, even under the amended statute, a court could not revoke or modify the defendant's supervised release for failure to pay restitution unless the defendant had the resources to pay and willfully refused to do so. See Bearden v. Georgia, 461 U.S. 660 (1983); Payan, 992 F.2d at 1396-97. For all of these reasons, I am pleased to introduce this legislation along with Senator Hatch, and I urge its swift enactment into law.

Mr. LEAHY. Madam President, I am proud to introduce the Refugee Protection Act, a bipartisan bill that would sharply reduce the use of expedited removal at our borders while also reducing the number of asylum seekers whom we detain. This is a bipartisan bill, I am joined today by Senators Brownback, Kennedy, Collins, Durbin, Jeffords, and Graham. I am grateful for the support of the Chairman and Ranking Member of the immigration subcommittee. In 1996, I introduced an amendment to the Illegal Immigration Reform and Immigrant Responsibility Act, ``IIRIRA'', that would have authorized the use of expedited removal only at times of immigration emergencies. The bill we introduce today is modeled on that proposal. That amendment passed the Senate with bipartisan support, but was omitted from the bill that was reported out of a partisan, closed conference. As a result, expedited removal took effect on April 1, 1997. America's historic reputation as a beacon for refugees has suffered as a consequence, and it is long past time to restore it. Expedited removal allows INS inspections officers summarily to remove aliens who arrive in the United States without travel documents, or even with facially valid travel documents that the officers merely suspect are fraudulent, unless the aliens utter the magic words `political asylum' upon their first meeting with American immigration authorities. This policy is fundamentally unwise and unfair, both in theory and in practice, and its efficacy and fairness has come under increasing criticism. First, expedited removal ignores the fact that many deserving asylum applicants are forced to travel without papers. For example, victims of repressive governments often find themselves forced to flee their homelands at a moment's notice, without time or means to acquire proper documentation. Or a government may systematically strip refugees of their documentation, as the Serbian government did in Kosovo in 1999. Second, expedited removal places an undue burden on refugees, and places too much authority in the hands of low-level INS officers. Refugees typically arrive at our borders ragged and tired from their ordeals, and often with little or no knowledge of English. Our policy forces them to undergo a secondary inspection interview with an INS officer without expertise in asylum and with the power to deport them on the spot, subject only to a supervisor's approval. By law, anyone who indicates a fear of persecution or requests asylum during this interview is to be referred for an interview with an asylum officer. But no safeguards exist to guarantee that this happens, and the secondary inspection interviews generally take place behind closed doors with no witnesses. Indeed, this interview often becomes unduly confrontational and intimidating. As the Lawyers Committee for Human Rights has documented, refugees are detained for as long as 36 hours, are deprived of food and water, and are often shackled. If they are lucky, they will be provided with a competent interpreter. If they are unlucky, they will receive no interpreter at all, an interpreter with extraordinarily limited knowledge of their language, or even an interpreter who works for the airline owned by the government that they claim is persecuting them. Such a system is a betrayal of our ideals, and we need to reform it. I was heartened to hear James Ziglar, the President's choice to head the INS, criticize expedited removal at his confirmation hearing. He said: ``I definitely think we need to change the process where asylum- seekers come here, to make sure that we know who these people are and what their claims are and whether they're legitimate before we turn around and put them on a plane back to an uncertain future.'' I could not agree more with Mr. Ziglar, and I look forward to working with him on this issue. I was also moved by the recent words of Theodore McCarrick, the new Archbishop of Washington, in a July 22 op-ed in the Washington Post. Archbishop McCarrick described how expedited removal forces potential asylum seekers arriving on our shores ``to immediately articulate their fear of return'' or be ``subject to immediate deportation without any recourse to the legal system.'' He wrote: ``Those who come to our shores and request asylum should be given a chance to make their case before a qualified asylum officer and immigration judge. The Refugee Protection Act to be considered by Congress would reform the U.S. asylum system appropriately and should be enacted.'' The Archbishop described the case of Ditron, an ethnic Albanian from Kosovo who fled from the Milosevic government in early 1998 and made it all the way to Newark International Airport, where he tried to gain asylum. But the language barrier prevented him from communicating his fear of returning to Kosovo to the INS inspector, and he was put on a plane and deported under expedited removal. We only know about his story because he was somehow able to make it back to the United States a second time, and his application for asylum is now pending. But such a 50 percent success ratio is simply unacceptable for this Nation. I became aware of another very disturbing case last summer. A domestic violence victim from the Dominican Republic fled to the United States. The INS believed that she had been a victim and that her life would be endangered if she were returned to her native country. Nonetheless, she was ordered deported under expedited removal because the INS officers who interviewed her took it upon themselves to make a legal determination that victims of domestic violence were ineligible for asylum on that ground. It is bad enough that these officers decided their responsibilities in implementing expedited removal went so far as interpreting U.S. asylum law. Even worse, they got the law wrong. Although a recent Board of Immigration Appeals decision had indicated that domestic violence victims could not gain asylum here, that decision was under review at the time and was later vacated by then- Attorney General Janet Reno. Luckily, a number of Members of Congress intervened in the case and the INS did not deport this woman, who has since been granted asylum. But had her case not been brought to our attention by the Lawyers' Committee for Human Rights, she would likely have become a silent victim of the expedited removal process. Another expedited removal horror story came to our attention just last week. Libardo Yepes Holguin fled Colombia last November after his life was threatened by the paramilitary forces involved in the civil war there. When he arrived at Miami International Airport, he told the INS inspectors that he feared being returned to Colombia and that he wanted to seek asylum. He was nonetheless put on a plane back to Colombia, where his life was again threatened. He managed to escape again, and this time entered the United States by crossing a river from Mexico. He was seized by INS officers and has been detained in Texas since May. The INS is currently attempting to remove Mr. Yepes Holguin based on the prior removal order entered against him in Miami last fall, despite his sworn testimony that his repeated requests to apply for asylum were ignored. Finally, and most shockingly, expedited removal has even been used against U.S. citizens. Sharon McKnight, a 35-year old U.S. citizen with the mental capacity of a 5-year old, returned to the United States last June from a trip to visit her grandfather in Jamaica. INS inspectors did not believe she was a citizen, wrongly questioning the authenticity of her U.S. passport and dismissing as fake the birth certificate presented by her waiting relatives that showed she was born on Long Island. She was held overnight in a room at the airport, handcuffed and with her legs shackled to a chair. During the entire time she was at the airport she was given nothing to eat and was not allowed to use the restroom. Ms. McKnight was put on a plane back to Jamaica, denied entrance to her own country because of expedited removal. Although immigration officials realized their mistake eventually and allowed her to return, any system that permits such ``mistakes'' is sorely in need of reform. For her part, Ms. McKnight has said: ``They treated me like an animal--I will have nightmares all my life.'' These stories, just four of the many stories demonstrating the human cost of expedited removal, go a long way toward showing the inhumanity of the new immigration regime that Congress imposed in 1996. But refugees and U.S. citizens are not the only people affected by expedited removal. Human rights groups have also documented numerous cases where people traveling to the United States on business, with proper travel documents, have been removed based on the so-called ``sixth sense'' of a low-level INS officer who suspected that their facially valid documents were fraudulent. In other words, the damage done by expedited removal also threatens the increasingly international American economy, if businesspeople from around the world are treated disrespectfully at our ports of entry, they are likely to take their business elsewhere. But perhaps the most distressing part of expedited removal is that there is no way for us to know how many deserving refugees have been excluded. Because secondary inspection interviews are conducted in secret, we typically only learn about mistakes when refugees manage to make it back to the U.S. a second time, like Ditron, or when they are deported to a third country they passed through on their way to the U.S., like Mr. Thevakumar. This uncertainty should lead us to be especially wary of continuing this failed experiment. As I said, my bill would limit the use of expedited removal to times of immigration emergencies, defined as the arrival or imminent arrival of aliens that would substantially exceed the INS' ability to control our borders. The bill gives the Attorney General the discretion to declare an emergency migration situation, and the declaration is good for 90 days. During those 90 days, the INS would be authorized to use expedited removal against people coming from a nation whose crisis has given rise to the emergency migration situation. The Attorney General can extend the declaration for further periods of 90 days, in consultation with the House and Senate Judiciary Committees. This framework allows the government to take extraordinary steps when a true immigration emergency threatens our ability to patrol our borders. At the same time, it recognizes that expedited removal is an extraordinary step, and is not an appropriate measure under ordinary circumstances. This bill also provides safeguards that will guarantee refugees some due process rights, even during immigration emergencies. First, aliens would be given the right to have an immigration judge review a removal order, and would have the opportunity both to speak before the immigration judge on their own behalf and to be represented at the hearing at their own expense. To make these rights meaningful, immigration officers would be required to inform aliens of their rights before they are removed or withdraw their application to enter the country. This provision takes away from INS inspectors the unilateral, and prior to 1997, unprecedented, power to remove an alien from the United States. Second, this bill reforms the procedures used to determine whether an applicant who seeks asylum has a credible fear of persecution. If an asylum officer determines that an applicant does not have a credible fear of persecution, the applicant will now have a right to a prompt review by an immigration judge. The applicant will have the right to appear at that review hearing and to be represented, at the applicant's expense. Even those asylum seekers who are found to have a credible fear of persecution and thus escape expedited removal move on to another troubled system. Under current law and practice, they are often detained in INS detention facilities or in local jails where the INS rents space. In other words, these men and women who have fled persecution in their native lands are all too often treated like common criminals. We need to do something to solve this problem as well, and the Refugee Protection Act attempts to do so. As a young girl in Zaire, now the Democratic Republic of Congo, Adolphine Mwanza lived in a convent and was studying to be a nun. Her family was known to be opposed to the corruption of the ruling Mobutu regime. Her brother was killed, and she was kidnapped, tortured, and raped. She escaped from the country and fled to the United States in November 1999 on a Zambian passport. She was sent to an INS detention facility in Elizabeth, New Jersey, where she was found to have a credible fear of persecution. But despite the fact that she had volunteer attorneys from the New York University Law School clinic, and a Roman Catholic convent had agreed to house and support her, her request for parole from detention was denied by the INS. She was held in a detention facility for eight months, until she was granted aslyum. This is senseless. We should not detain people whom our own government has found to be likely candidates for asylum as if they were awaiting a criminal trial. Moreover, the cost to the government to detain someone like Adolphine Mwanza for eight months cannot be justified. And she is not alone. Many asylum seekers are detained for more than a year even though there are family members or nongovernmental organizations that are willing to house them and ensure that they appear for their asylum hearing. The Refugee Protection Act would clarify that the Attorney General has the option to parole asylum seekers, and would add language to existing law to say that it is the policy of the United States not to detain asylum seekers who have been found to have a credible fear of persecution. It also instructs the Attorney General to promulgate regulations to authorize and promote the use of alternatives to the detention of asylum seekers, such as paroling them to private nonprofit voluntary agencies. For those who would still be detained, the bill would guarantee access to legal and religious services. It would also ensure that they are only detained in INS facilities or in contract facilities that contain only immigration detainees asylum seekers would no longer be housed alongside criminals in county jails. In addition, asylum seekers would have the right to have an asylum officer make a determination about whether they should be paroled from detention, and to have an immigration judge review that determination. These changes will reduce the use of detention against asylum seekers, offer them fundamental due process rights, and improve the conditions of their confinement in those cases where detention is appropriate. These are crucial steps, and we should act on them as quickly as possible. Finally, this bill includes three additional provisions. First, it would eliminate the one-year deadline for asylum applicants that was imposed in 1996. By definition, worthy asylum applicants have arrived in the United States following traumatic experiences abroad. They often must spend their first months here learning the language and adjusting to a culture that in many cases is extraordinarily different from the one they know. Therefore, although I can understand the desire to have asylum seekers submit timely applications, the existing one-year rule does not make sense. Second, the bill would eliminate the existing annual limit on the number of people who have been granted asylum who can become legal permanent residents. Once we have decided that someone is worthy of asylum, we should not delay their adjustment into American society. These are people who have chosen the United States because of its ideals and its freedoms, in other words, they are exactly the sort of people we would want to become citizens. We need to eliminate the backlogs that prevent them from starting that process by getting their green cards. This bill will do that. Third, the bill eliminates the annual limit on the number of refugees who may be admitted or granted asylum because they are subject to persecution for resistance to coercive population control methods. Under current law, only 1000 people can be accepted to the United States in any year for that reason. Americans are united in their opposition to forced sterilization and abortion, and we should not place an artificial limit on the number of people fleeing from such policies that we will accept. This bill has received the support of a wide variety of civil rights and religious groups, with a coalition of over 50 groups, from the Lawyers' Committee for Human Rights to the Hebrew Immigrant Aid Society to the Lutheran Immigration and Refugee Service, endorsing it. And even before it has been introduced it has been the subject of favorable editorials or op-eds in the Washington Post, Pittsburgh Post-Gazette, San Francisco Chronicle, San Diego Union- Tribune, Newark, Star-Ledger, Arizona Republic, Baltimore Sun, Minneapolis Star-Tribune, San Antonio Express-News, South Florida Sun- Sentinel, Oakland Tribune, Buffalo News, Bangor, ME., Daily News, and Harrisburg, PA., Patriot-News. Meanwhile, the immigration subcommittee of the Judiciary Committee has already heard testimony this year about the inherent unfairness of our current expedited removal and detention policies from people who went through those systems before being granted asylum. I hope that the momentum this bill already has will lead to prompt consideration by the Senate. Even in 1996, a year in which immigration was as unpopular in this Capitol as I can remember, this body agreed that expedited removal was inappropriate for a country of our ideals and our historic commitment to human rights. And that agreement cut across party lines, as many of my Republican colleagues voted to implement expedited removal only in times of immigration emergencies. I urge them, as well as my fellow Democrats, to support this legislation and to work for its prompt passage.

Mr. LEAHY

Mr. LEAHY. Madam President, on July 20, I was pleased that we were able to confirm a number of judicial and executive nominations. We confirmed Judge Roger Gregory for a lifetime appointment to the United States Court of Appeals for the Fourth Circuit. Last year and earlier this year, he was unable even to get a hearing from the Republican majority. Having gotten that hearing, his nomination was reported favorably to the Senate on a 19 to 0 vote by the committee and the Senate voted to confirm him by a vote of 93 to 1 vote. The supposed controversy some contend surrounded this nomination was either nonexistent or quickly dissipated. In addition we have confirmed the two nominees to the District Court vacancies in Montana in order to help end the crisis in that district that was brought to our attention by Chief Judge Molloy. Today we report and the Senate is confirming William Riley, nominated to the United States Court of Appeals for the Eighth Circuit. Mr. Riley was strongly supported by both his home State Senators, one a respected Republican and one a valued Democratic Senator. In the entire first year of the first Bush Administration, 1989, without all the disruptions, distractions and shifts of Senate majority that we have experienced this year, only five Court of Appeals judges were confirmed all year. In the first year of the Clinton Administration, 1993, without all the disruptions, distractions and shifts in Senate majority that we have experienced this year, only three Court of Appeals judges were confirmed all year. In 1993, the first Court of Appeals nominee to be confirmed was not until September 30. During recent years under a Republican Senate majority, there were no Court of Appeals nominees confirmed at any time during the entire 1996 session, not one. In 1997, the first Court of Appeals nominee was not confirmed until September 26. Having confirmed our first Court of Appeals nominee on July 20, the Senate this year is ahead of the pace in 1993, the first year of the Clinton Administration, and ahead of the pace in 1996 and 1997, when the Senate was under Republican control. A fair assessment of the circumstances of this year would suggest that the confirmation of a single Court of Appeals nominee this early in the year and the confirmation of even a few Court of Appeals judges in this shortened time frame of only a few weeks in session should be commended, not criticized. Today we confirm our second Court of Appeals nominee. The Judiciary Committee held two hearings on two Court of Appeals nominees in July. In July 1995, the Republican Chairman held one hearing with one Court of Appeals nominee. In July 1996, the Republican Chairman held one hearing with one Court of Appeals nominee, who was confirmed in 1996. In July 1997, the Republican Chairman held one hearing with one Court of Appeals nominee. In 1998, the Republican Chairman did hold two hearings with two Court of Appeals nominees, but neither of whom was confirmed in 1998. In July 2000, the Republican Chairman did not hold a single hearing with a Court of Appeals nominee. During the more than 6 years in which the Senate Republican majority scheduled confirmation hearings, there were 34 months with no hearing at all, 30 months with only one hearing and only 12 times in almost six and one-half years did the Judiciary Committee hold as many as two hearings involving judicial nominations in a month. Over the last 6 years only 46 nominees were confirmed by the Republican majority in the Senate to the Courts of Appeals around the country. This Democratic Senate has confirmed two within the month the Senate has been reorganized before the August recess. So without acknowledging the unprecedented shifts in majority status this year, our productivity compares most favorably with the last 6 years. With the confirmation of William Riley to the Eighth Circuit, we have exceeded the record in five of the last 6 years. I am considering holding another judicial confirmation hearing in August, during the Senate recess. No such hearing was held during any of the last 6 years. If we proceed, it may be the first time a judicial confirmation hearing was held during the August recess. I went to the White House for the President's announcement of his first judicial nominations as a demonstration of bipartisanship. I noticed our initial hearing on judicial nominees within 10 minutes of the Senate adoptions of S. Res. 120 reorganizing the Senate just before the July 4 recess. We held two hearings in July. We confirmed two Court of Appeals Judges in July. The facts are that the Democratic majority in the Senate has proceeded fairly. I have also respectfully suggested that the White House work with Senators to identify and send more District Court nominations to the Senate who are broadly supported and can help us fill judicial vacancies in our federal trial courts. According to the Administrative Office of the U.S. Courts, almost two-thirds of the vacancies on the federal bench are in the District Courts, 75 of 108. But fewer than one-third of President Bush's nominees initial 30 nominees have been for District Court vacancies. The two who were consensus candidates and whose paperwork was complete have had their hearing earlier this month and were confirmed July 20. I did try to schedule District Court nominees for our hearing last week, but none of the files of the seven District Court nominees pending before the Committee was complete. Because of President Bush's unfortunate decision to exclude the American Bar Association from his selection process, the ABA was only able to begin its evaluation of candidates' qualifications after the nominations were made public. We are doing the best we can, and we hope to include District Court candidates at our next nominations hearing. There has been talk that the President will be sending more District Court nominees to the Senate today or tomorrow. If he does, I hope that they are consensus candidates and that their home state Senators have been involved in the selection process. Unfortunately, they are being received late in this short session and without the peer review that the ABA had traditionally provided at the time of the nomination for more than 50 years. We will do the best we can to proceed with mainstream candidates with broad-ranging support in the limited time available to us before the Senate adjourns this year and given the heavy legislative agenda that we must accomplish. When some Republican Senators bemoan the current vacancies, they should also acknowledge that many of the current vacancies could have been filled and should have been filled over the last several years. Indeed, if the 65 judicial nominations sent to us over the past few years by President Clinton had been acted upon, we would have scores fewer vacancies. At the end of the last session of Congress in which there was a Senate Democratic majority, in 1994, there were 63 vacancies on the Federal courts, which included several new judgeships created by statute in 1990 and as yet unfilled. When the Senate returned to a Democratic majority on June 6 of this year, there were 104 vacancies. When the Senate was finally allowed to reorganize and made its Committee assignments on July 10, there were 110 vacancies. Of the judicial emergency vacancies, almost half would not exist if President Clinton's qualified nominees for those positions had been confirmed by the Republican majority over the last few years. I noted last week that the Republican Senate over the last several years refused to take action on no fewer than a dozen nominees to what are now emergency vacancies on the Courts of Appeals. I remind my colleagues of their failure to grant a hearing or Committee or Senate consideration to the following: Robert Cindrich to the Third Circuit; Judge James A. Beaty, Jr. and Judge James A. Wynn, Jr. to the Fourth Circuit; Jorge Rangel, Enrique Moreno and H. Alston Johnson to the Fifth Circuit; Judge Helene White, Kathleen McCree-Lewis and Kent Marcus to the Sixth Circuit; Bonnie Campbell to the Eighth Circuit; James Duffy and Barry Goode to the Ninth Circuit. Those were 12 Court of Appeals nominees to 10 vacancies who could have gone a long way toward reducing the level of judicial emergencies around the country. Our first confirmation this year was of Judge Roger Gregory to a judicial emergency vacancy. I have yet to hear our Republican critics acknowledge any shortcomings among the practices they employed over the last six years. When they have done that and we have established a common basis of understanding and comparison, we will have taken a significant step forward. That would help go a long way toward helping me change the tone here in Washington. It would make it easier to work together to get as much accomplished as we possibly can.

Mr. LEAHY

Mr. LEAHY. If the distinguished leader will yield, it is my understanding--and I have not had a chance to speak with the distinguished ranking member, but I hope there will be a very short time on these nominees on statements, in such a way that the leader will be able to propound, if he wishes, a request that the last two of the three votes be 10-minute votes.

Mr. LEAHY

Mr. LEAHY. Madam President, reserving the right to object, and I will not object, would the distinguished leader be willing to amend that to allow me to speak before that for 4 minutes on judicial nominations?

Mr. LEAHY. Madam President, I thank the Senate for moving expeditiously on the Hutchinson nomination. I note that on Monday and Tuesday of this week the Judiciary Committee followed through on its confirmation hearing for Robert Mueller III, the President's nominee to be Director of the Federal Bureau of Investigation. I mention this because this was the fifth confirmation hearing the Judiciary Committee held in July for judicial and executive branch nominees, which is pretty good because we were not allowed, under the reorganization, to have Members assigned to our committee until July 10. In fact, I cannot think of any time in the last 6 years where the Judiciary Committee held five confirmation hearings in 3 weeks. Two of those hearings involved judicial nominees to the Courts of Appeals. I appreciate the fact that the Senator from Montana, Mr. Baucus, noted that we held the hearing on the two district court nominees for Montana ``in a very expeditious fashion.'' It was gracious of Senator Hutchinson to offer his thanks for our scheduling the confirmation hearing of Asa Hutchinson to be head of the DEA ``so expeditiously'' after Senate reorganization. I appreciate William Riley, the nominee to the Eighth Circuit Court of Appeals, thanking the Judiciary Committee for ``holding a prompt hearing.'' It was gratifying when Senator Cochran noted that he was ``very pleased with the dispatch'' with which we held a hearing on the nomination of Jim Ziglar to head the INS. And this week, Mr. Mueller thanked us for holding his hearing as quickly as we did. With respect to executive branch nominees, considering the fact that the committee has only been able to hold hearings for 3 weeks, our work period has been outstanding. We held back-to-back days of hearings for the President's nominees to head the Drug Enforcement Administration and the Immigration and Naturalization Service 2 weeks ago, and 2 days of hearings on the nominee to head the FBI this week. In addition, we have held hearings on the Assistant Attorney General to head the Tax Division, the Assistant Attorney General to head the Office of Justice Programs, and the Director of the National Institute of Justice--all in July. We would have done more if we had been allowed to do this, of course, during the month of June. So the Senate has considered and confirmed the Attorney General, the Deputy Attorney General, the Solicitor General, the Assistant Attorney General in charge of the Criminal Division, the Assistant Attorney General in charge of the Civil Rights Division, the Assistant Attorney General in charge of the Antitrust Division, the Assistant Attorney General in charge of the Office of Legislative Affairs, the Assistant Attorney General in charge of Policy Development, and other key officials within the Department of Justice, as well as the Commissioner of the INS and, today, the Administrator of the Drug Enforcement Administration. I hope we can move very quickly on the Director of the FBI. We have not received the nomination yet for the No. 3 job at the Department of Justice, the Associate Attorney General. We have not yet received the nomination of someone to head the U.S. Marshals Service. Even though we are about to go into an August recess, we have not received a single nomination for any of the 94 U.S. marshals who serve in districts within our States. We have only received a handful of nominations for the 93 U.S. attorney positions that are in districts within our States. So there is a lot to be done. And it will be done if we work together, and not if we have people come and give statements on the floor, or elsewhere, that are not factual because, unfortunately, as somebody once said, those pesky little facts get in the way. And these are the facts. There is no time, in the 25 years I have been in the Senate Judiciary Committee, that I have seen so many nominees move in a 3-week period in the middle of the year. Madam President, I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am glad this has gone through as quickly as it has. After hearing the minority leader's comments, he is obviously not aware of how fast the Judiciary Committee is moving. By the end of this week I hope that a few more nominations will reach the Senate floor from the Judiciary Committee. If they do, I will request a roll call vote on them in order to demonstrate to all the Members how quickly we are moving nominations. The Ziglar nomination received a hearing before the Judiciary Committee within two weeks of the time that the other side of the aisle allowed the Senate to reorganize. We also held hearings for Asa Hutchinson, the President's choice to head the Drug Enforcement Administration, along with four judicial nominees and two additional Justice Department nominees. This pace was probably the fastest the Judiciary Committee has moved on nominations in the last six years. In addition, we completed confirmation hearings on Robert Mueller's nomination for FBI director this morning. I am pleased that we were able to begin his hearing within days of receiving the papers from the White House. If he is not blocked by the other side, we will bring him up Thursday before the Judiciary Committee. I am particularly pleased that we were able to move quickly to consider James Ziglar's nomination. I think he is extraordinarily qualified to head the Immigration and Naturalization Service, and I applaud President Bush for choosing him. Mr. Ziglar will work with both Republicans and Democrats. He will not seek partisan advantage but will rather act in the Nation's best interest, just as he has as Sergeant at Arms here. It was a very good move when Senator Lott first appointed him to this position. I am very impressed with him. I am pleased to be his friend, and I am happy to vote for his nomination. He has a distinguished background as a lawyer, investment banker, and government official. As Sergeant at Arms, he worked behind the scenes to ensure that the business of the Senate went smoothly even in stressful times such as the impeachment trial of President Clinton. We here all owe him a debt of gratitude for his hard and effective work. These next few years will be a pivotal time for the INS and for immigration policy in the United States. The Administration has expressed interest in reorganizing the INS and having the new Commissioner implement the reorganization plan. The Administration is also apparently considering proposing numerous changes in immigration law as part of bilateral discussions with Mexico. I trust that Mr. Ziglar will play a role in the Administration's consideration of these matters, and will encourage a fair approach to the problems faced by undocumented workers from both Mexico and the rest of the world. In addition to the new proposals the Administration is considering, there is significant unfinished business in the immigration area. The new Commissioner will inherit a number of questionable immigration policies that Congress enacted five years ago in the Illegal Immigration Reform and Immigrant Responsibility Act. There are also a number of unresolved issues from the last Congress that we must address in this one. Mr. Ziglar promised at his confirmation hearing to be an advocate for the many fine men and women who work for the INS, and I was glad to hear him say that. I know that in my State there are many hardworking men and women who work for the Law Enforcement Support Center, the Vermont Service Center and Sub-Office, the Debt Management Center, the Eastern Regional Office, and the Swanton Border Patrol Sector. These are employees Mr. Ziglar can rely on in his attempt to improve the agency. One of the bigger issues facing the next Commissioner will be restructuring the INS. I strongly support improving the agency and giving it the resources it needs. The tasks we ask the INS to do range from processing citizenship applications to protecting our borders, and I agree that there are some internal tensions in the INS' mission that might be resolved. I also believe, however, that we must ensure that the INS does not lose its strengths, which I think are well represented by the great efficiency of the INS offices in Vermont. I intend to play an active role in the development and consideration of any INS reorganization plan. I am also heartened that Mr. Ziglar questioned our nation's use of expedited removal and detention at his confirmation hearing. Later this week I will join with Senator Brownback and others to introduce the Refugee Protection Act, which would sharply limit the use of expedited removal and reduce the use of detention against asylum seekers. I think I can speak for Senator Brownback in saying we look forward to working with Mr. Ziglar to move this legislation. The use of expedited removal, the process under which aliens arriving in the United States can be returned immediately to their native lands at the say-so of a low-level INS officer, calls the United States' commitment to refugees into serious question. Since Congress adopted expedited removal in 1996, we have had a system where we are removing people who arrive here either without proper documentation or with facially valid documentation that an INS officer simply suspects is invalid. This policy ignores the fact that people fleeing despotic regimes are quite often unable to obtain travel documents before leaving--they must move quickly and cannot depend upon the government that is persecuting them to provide them with the proper paperwork for departure. In the limited time that expedited removal has been in operation, we already have received reliable reports that valid asylum seekers have been denied admission to our country without the opportunity to convince an immigration judge that they faced persecution in their native lands. To provide just one example, as Archbishop Theodore McCarrick described in an op-ed in the July 22 Washington Post, a Kosovar Albanian was summarily removed from the U.S. after the civil war in Kosovo had already made the front pages of America's newspapers. I believe we must address this issue in this Congress. In addition to questioning expedited removal and detention, I hope that Mr. Ziglar will work with us to address some of the other serious due process concerns created by passage of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. Through those laws, Congress expanded the pool of people who could be deported, denied those people the chance for due process before deportation, and made these changes retroactive, so that legal permanent residents who had committed offenses so minor that they did not even serve jail time suddenly faced removal from the United States. The Supreme Court has recently limited some of the retroactive effects of those laws, in INS v. St. Cyr, but we must do more to bring these laws into line with our historic commitment to immigration. Many of us have attempted throughout the last five years to undo the legislation we passed in 1996--it remains a high priority and I hope we can find areas of agreement with Mr. Ziglar and the Administration. Mr. Ziglar did not present himself at his confirmation hearing as an expert on immigration and immigration law--he said frankly that he has much to learn. He did offer his expertise in management and promised to work hard to solve some of the problems the INS has faced over recent years. We in Congress want to be partners in this effort, and I hope that the excellent working relationship we have had with Mr. Ziglar over the years will continue in his new capacity. James Ziglar is the President's choice to be the Commissioner of the Immigration and Naturalization Service, and I am happy to vote for his nomination. He has a distinguished background as a lawyer, investment banker, and government official. Furthermore, he was a distinguished Sergeant at Arms of the Senate, serving the needs of every Senator in a time of great partisanship. He worked behind the scenes to ensure that the business of the Senate went smoothly even in stressful times such as the impeachment trial of President Clinton. We here all owe him a debt of gratitude for his hard and effective work. These next few years will be a pivotal time for the INS and for immigration policy in the United States. The Administration has expressed interest in reorganizing the INS and having the new Commissioner implement the reorganization plan. The Administration is also apparently considering proposing numerous changes in immigration law as part of bilateral discussions with Mexico. I trust that Mr. Ziglar will play a role in the Administration's consideration of these matters, and will encourage a fair approach to the problems faced by undocumented workers from both Mexico and the rest of the world. In addition to the new proposals the Administration is considering, there is significant unfinished business in the immigration area. The new Commissioner will inherit a number of questionable immigration policies that Congress enacted five years ago in the Illegal Immigration Reform and Immigrant Responsibility Act. There are also a number of unresolved issues from the last Congress that we must address in this one. Mr. Ziglar promised at his confirmation hearing to be an advocate for the many fine men and women who work for the INS, and I was glad to hear him say that. I know that in my State there are many hardworking men and women who work for the Law Enforcement Support Center, the Vermont Service Center and Sub-Office, the Debt Management Center, the Eastern Regional Office, and the Swanton Border Patrol Sector. These are employees Mr. Ziglar can rely on in his attempt to improve the agency. One of the bigger issues facing the next Commissioner will be restructuring the INS. I strongly support improving the agency and giving it the resources it needs. The tasks we ask the INS to do range from processing citizenship applications to protecting our borders, and I agree that there are some internal tensions in the INS' mission that might be resolved. I also believe, however, that we must ensure that the INS does not lose its strengths, which I think are well represented by the great efficiency of the INS offices in Vermont. I intend to play an active role in the development and consideration of any INS reorganization plan. I am also heartened that Mr. Ziglar questioned our nation's use of expedited removal and detention at his confirmation hearing. Later this week I will join with Senator Brownback and others to introduce the Refugee Protection Act, which would sharply limit the use of expedited removal and reduce the use of detention against asylum seekers. I think I can speak for Senator Brownback in saying we look forward to working with Mr. Ziglar to move this legislation. The use of expedited removal, the process under which aliens arriving in the United States can be returned immediately to their native lands at the say-so of a low-level INS officer, calls the United States' commitment to refugees into serious question. Since Congress adopted expedited removal in 1996, we have had a system where we are removing people who arrive here either without proper documentation or with facially valid documentation that an INS officer simply suspects is invalid. This policy ignores the fact that people fleeing despotic regimes are quite often unable to obtain travel documents before leaving--they must move quickly and cannot depend upon the government that is persecuting them to provide them with the proper paperwork for departure. In the limited time that expedited removal has been in operation, we already have received reliable reports that valid asylum seekers have been denied admission to our country without the opportunity to convince an immigration judge that they faced persecution in their native lands. To provide just one example, as Archbishop Theodore McCarrick described in an op-ed in the July 22 Washington Post, a Kosovar Albanian was summarily removed from the U.S. after the civil war in Kosovo had already made the front pages of America's newspapers. I believe we must address this issue in this Congress. In addition to questioning expedited removal and detention, I hope that Mr. Ziglar will work with us to address some of the other serious due process concerns created by passage of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. Through those laws, Congress expanded the pool of people who could be deported, denied those people the chance for due process before deportation, and made these changes retroactive, so that legal permanent residents who had committed offenses so minor that they did not even serve jail time suddenly faced removal from the United States. The Supreme Court has recently limited some of the retroactive effects of those laws, in INS v. St. Cyr, but we must do more to bring these laws into line with our historic commitment to immigration. Many of us have attempted throughout the last five years to undo the legislation we passed in 1996--it remains a high priority and I hope we can find areas of agreement with Mr. Ziglar and the Administration. Mr. Ziglar did not present himself at his confirmation hearing as an expert on immigration and immigration law--he said frankly that he has much to learn. He did offer his expertise in management and promised to work hard to solve some of the problems the INS has faced over recent years. We in Congress want to be partners in this effort, and I hope that the excellent working relationship we have had with Mr. Ziglar over the years will continue in his new capacity.

Mr. LEAHY. Reserving the right to object, and I shall not, may I be recognized for 2 minutes as soon as the Senate has completed this action?

Mr. LEAHY

Mr. LEAHY. I think the Senator from Louisiana would agree with me that one of the problems we have is the huge growth of one major processor. We are talking about a situation where we have a program that should be embraced by everybody. The cost to the taxpayers is absolutely nothing, I believe the Senator from Louisiana will agree. The cost to the taxpayers is absolutely nothing. We are being asked to take huge amounts of tax dollars from various parts of the country, a lot of it from the eastern seaboard, to pay for programs in the Midwest. This is a program that costs taxpayers absolutely nothing. You might wonder why the big processors have spent millions of dollars to try to beat it through lobbying and every other possible effort. One of the reasons is, we see in our part of the world in New England, Suiza Foods is trying to get a stranglehold on prices. When Suiza started in Puerto Rico, it was down here with three plants. That is the way it started. But then Suiza started moving, and in the year 2000, look at the area they cover with their plants. Now they want to combine with Dean Foods. Here is a company that, if they could get rid of all competition, if they could control the price the dairy farmers get, if they could tell the consumers, you are going to pay this much and, by the way, dairy farmers, because we are the only game in town, we are only going to give you this much, that is competition? They call us a cartel. What we are saying is, let the consumers and the producers within the region decide what they are willing to pay. It has worked out well for us. We pay less, for example, in New England, where we have the compact. We pay less than they do in Minnesota and Wisconsin, if you go to the grocery store for the milk. Where is the pressure coming from and why do they want to get rid of this compact? Why do they want to get rid of the dairy farmers having any say over it? So that Suiza and Dean Foods, which are becoming a monopoly and want to control all of it--it is actually a ``Suizopoly,'' I would call it, at this point--can say just how much can be spent, where it can go. In fact, when we checked into this, we found that 90 percent of the cost increase goes to them.

Mr. LEAHY. If the Senator will yield without losing the right to the floor, I ask first, how much time does the Senator have?

Mr. LEAHY

Mr. LEAHY. Madam President, I was pleased that the Judiciary Committee was able to hold another confirmation hearing for judicial and executive branch nominees this week. Since the Senate was allowed to reorganize just before the July 4th recess, returned from that recess to reconvene on July 9 and then assigned members to committees on July 10, this was the fourth hearings on Presidential nominations that the Judiciary Committee has held in 2 weeks. I cannot remember any time in the last 6 years when the Judiciary Committee held four confirmation hearings in 2 weeks. Two of those hearings involved judicial nominees to the Courts of Appeals. I appreciated that when Senators Lott, Baucus, Cochran, and Hutchinson appeared before the Judiciary Committee to introduce nominees, they recognized that we were acting quickly. Likewise, the nominees who have appeared before the committee have recognized that we have been moving expeditiously and have thanked us for doing so. I appreciate their recognition of our efforts and their kind words. Just last Friday we were able to confirm a number of judicial and executive nominations. We confirmed Judge Roger Gregory for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit. This is a nominee who had waited in vain since June of last year for the Senate to act on his nomination. In the year that followed his nomination he was unable even to get a hearing from the Republican majority. This month, in less than 2 weeks the Judiciary Committee held that hearing, reported his nomination favorably to the Senate on a 19 to 0 vote and the Senate voted to confirm him by a vote of 93 to 1 vote. The supposed controversy some contend surrounded this nomination was either nonexistent or quickly dissipated. In spite of the progress we have been making during the few weeks since the Senate was allowed to reorganize, in spite of the confirmation on Friday of three judicial nominations, include one to a Court of Appeals; in spite of the confirmation of two more Assistant Attorneys General for the Department of Justice, including the Assistant Attorney General in charge of the Civil Rights Division; in spite of the back-to-back days of hearings for the President's nominees to head the Drug Enforcement Administration and the Immigration and Naturalization Service on Tuesday and Wednesday of last week; despite our noticing a hearing for another Court of Appeals nominee and another Assistant Attorney General for this Tuesday; despite our having noticed expedited hearings on the nomination to be Director of the Federal Bureau of Investigation beginning next Monday; despite all these efforts and all this action, on Monday our Republican colleagues took to the Senate floor to change the tone of Senate debate on nominations into a bitterly partisan one. That was most unfortunate. I regret that we lost the month of June to Republican objections to reorganization or we might have been able to make more progress more quickly. There was no secret about the impact of that delay at the time. Unfortunately, that month is gone and we have to do the best that we can do with the time remaining to us this year. This month the Judiciary Committee is holding hearings on the nominees to head the FBI, DEA and INS. In addition, we have held hearings on two more Assistant Attorneys General and the Director of the National Institute of Justice. Just last Friday we were able to confirm Ralph Boyd, Jr. to serve as the Assistant Attorney General to head the Civil Rights Division. Of course, the Republican majority never accorded his predecessor in that post, Bill Lann Lee, a Senate vote on his nomination in the 3 years that it was pending toward the end of the Clinton administration. Some of those now so publicly critical of the manner in which we are expediting consideration of President Bush's nominations to executive branch positions seem to have forgotten the types of unending delays that they so recently employed when they were in the majority and President Clinton was urging action on his executive branch nominations. I noted last Friday that we have already acted to confirm six Assistant Attorneys General as well as the Deputy Attorney General, the Solicitor General and, of course, the Attorney General himself. We have yet to receive a number of nominations including one for the No. 3 job at the Department of Justice, the Associate Attorney General. We have yet to receive the nomination of someone to head the U.S. Marshals Service. Even more disturbing, we have yet to receive a single nomination for any of the 94 U.S. Marshals who serve in districts within our States. We have yet to receive the first nomination for any of the 93 U.S. Attorneys who serve in districts within our States. We have much work to do. The President has work to do. The Senate has work to do. That work is aided by our working together, not by the injecting the type of partisanship shown over the last 6 years when the Republican majority delayed action on Presidential nominees or the partisan rhetoric that was cast about on Monday. That may make for backslapping at Republican fundraisers, but it is counterproductive to the bipartisan work of the Senate. In this regard, I am also extremely disappointed by the decision of the Republican Leadership to have all Republican Senators refuse to chair the Senate. I was one who suggested to Senator Daschle, Senator Lott and others that we resume the practice of having Senators from all parties chair the Senate. That was a longstanding practice in the Senate and the practice when I first joined this body. It was our practice until fairly recently when a breach in Senate protocol led to the period in which only Senators from the majority party sat in the chair of the President of the Senate. I thought that it sharing the chair was one of the better improvements we made earlier this year when we were seeking to find ways to lower the partisan decibel level and restore collegiality to the Senate. It was a good way to help restore some civility to the Senate, to share the authority and responsibility that comes with being a member of the Senate. I deeply regret that the Republican minority has chosen no longer to participate in this aspect of the Senate. I am disappointed, and fear this is another sign that they are coming to view the Senate through the narrow lens of partisanship. That partisan perspective, criticizing for criticism's sake or short- term political advantage, seems to be the motivation for the statements made in the wake of our achievements last Friday. If the Senate majority is going to be criticized when we make extraordinary efforts of the kind we have been making over the last two weeks, some will be forced to wonder whether such action is worth the effort. Moreover, the criticism is ignorant not only of recent facts but wholly unappreciative of the historical context in which we are working. Let me mention just a few of the many benchmarks that show how fair the Senate majority is being. This year has been disrupted by two shifts in the majority. We were delayed until March in working out the first resolutions organizing the Senate and its committees. Senator Daschle deserves great credit for his patience and for working out the unique arrangements that governed during the period the Senate was divided on a 50-50 basis. Likewise, I complimented Senator Lott for his efforts in late February and early March to resolve the impasse. In late May and early June the Senate had the opportunity to arrange a timely transition to a new majority. Republican objections squandered that opportunity and we endured a month-long delay in reorganizing the Senate. Ultimately, the reorganization ended up being what could have been adopted on June 6. Again, I commend Senator Daschle's leadership and patience in keeping the Senate on course, productive and working. During that month the Senate considered and passed the bipartisan Kennedy-McCain-Edwards Patients' Bill of Rights. But work in the Judiciary Committee was limited to investigative hearings. We could not hold business meetings or fairly proceed to consider nominations. That period finally drew to a close beginning on June 29 and culminated on July 10 when Republican objections finally subsided, a resolution reorganizing the Senate was considered and Committee assignments were made. Now consider the progress we have made on judicial nominations in that context. There were no hearings on judicial nominations and no judges confirmed in the first half of the year with a Republican majority. The first hearing I chaired on July 11 was one more than all the hearings that had been held involving judges in the first half of the year. The first judicial nomination who the Senate confirmed last Friday was more than all the judges confirmed in the first half of the year. In the entire first year of the first Bush administration, 1989, without all the disruptions, distractions and shifts of Senate majority that we have experienced this year, only five Court of Appeals judges were confirmed. In the first year of the Clinton administration, 1993, without all the disruptions, distractions and shifts in Senate majority that we have experienced this year, only three Court of Appeals judges were confirmed all year. In less than 1 month this year--in the 2 weeks since the committee assignments were made on July 10, we have held hearings on two nominees to the Courts of Appeals and confirmed one. In 1993, the first Court of Appeals nominee to be confirmed was not until September 30. During recent years under a Republican Senate majority, there were no Court of Appeals nominees confirmed at any time during the entire 1996 session, not one. In 1997, the first Court of Appeals nominee was not confirmed until September 26. A fair assessment of the circumstances of this year would suggest that the confirmation of a Court of Appeals nominee this early in the year and the confirmation of even a few Court of Appeals judges in this shortened time frame of only a few weeks in session should be commended, not criticized. The Judiciary Committee held two hearings on two Court of Appeals nominees this month. In July 1995, the Republican chairman held one hearing with one Court of Appeals nominee. In July 1996, the Republican chairman held one hearing with one Court of Appeals nominee, who was confirmed in 1996. In July 1997, the Republican chairman held one hearing with one Court of Appeals nominee. In 1998, the Republican chairman did hold two hearings with two Court of Appeals nominees, but neither of whom was confirmed in 1998. In July 2000, the Republican chairman did not hold a single hearing with a Court of Appeals nominee. During the more than 6 years in which the Senate Republican majority scheduled confirmation hearings, there were 34 months with no hearing at all, 30 months with only one hearing and only 12 times in almost 6\1/2\ years did the Judiciary Committee hold as many as two hearings involving judicial nominations in a month. So even looking at this month in isolation, without acknowledging the difficulties we had to overcome, our productivity compares most favorably with the last 6 years. When William Riley, the nominee included in the hearing this week is confirmed as a Court of Appeals Judge for the Eighth Circuit, we will have exceeded the Committee's record in 5 of the last 6 years. Given these efforts and achievements, the Republican criticism rings hollow. I also observe that the criticism that our multiple hearings are proceeding with one Court of Appeals nominee ignores that has been a standard practice by the committee for at least decades. Last year the Republican majority held only eight hearings all year and only five included even one Court of Appeals nominee. Of those five nominees only three were reported to the Senate all year. Nor was last year anomalous. With some exceptions, the standard has been to include a single Court of Appeals nominee at a hearing and, certainly, to average one Court of Appeals judge per hearing. In 1995, there were 12 hearings and 11 Court of Appeals judges were confirmed. In 1996 there were only six hearings all year, involving five Court of Appeals nominees and none were confirmed. In 1997 there were nine hearings involving nine Court of Appeals nominees and seven were confirmed. In 1998 there were 13 hearings involving 14 Court of Appeals nominees and a total of 13 were confirmed. In 1999, there were seven hearings involving a rehearing for one and nine additional Court of Appeals nominees and only seven Court of Appeals judges were confirmed. Thus, over the course of the last 6 years there have been a total of 55 hearings and only 46 Court of Appeals judges confirmed. I have also respectfully suggested that the White House work with Senators to identify and send more District Court nominations to the Senate who are broadly supported and can help us fill judicial vacancies in our Federal trial courts. According to the Administrative Office of the U.S. Courts, almost two-thirds of the vacancies on the federal bench are in the District Courts, 75 of 108. But fewer than one-third of President Bush's nominees so far, nine out of 30, have been for District Court vacancies. The two who were consensus candidates and whose paperwork was complete have had their hearing earlier this month and were confirmed last Friday. I did try to schedule District Court nominees for our hearing this week, but none of the files of the seven District Court nominees pending before the Committee was complete. Because of President Bush's unfortunate decision to exclude the American Bar Association from his selection process, the ABA is only able to begin its evaluation of candidates' qualifications after the nominations are made public. We are doing the best we can, and we hope to include District Court candidates at our next nominations hearing. The Senators who spoke earlier this week also sought to make much of judicial emergency designations. What they fail to mention is that of the 23 District Court vacancies classified as judicial emergencies by the Administrative Office of the Courts, President Bush has not sent the Senate a single nominee 23 District Court emergency vacancies without a nominee. Almost one-third of judicial emergency vacancies on the Courts of Appeals, 6 of the 16 are without a nominee, as well. Of course, Judge Roger Gregory was confirmed for a judicial emergency vacancy on the Fourth Circuit, but Republican critics make no mention of that either. What I find even more striking, as someone who worked so hard over the last several years to fill these vacancies, is that the Republican criticism fails to acknowledge that many of these emergency vacancies became emergency vacancies and were perpetuated as emergency vacancies by the Republican majority's refusal to act on President Clinton's nomination over the last 6 years. Indeed, the Republican Senate over the last several years refused to take action on no fewer than a dozen nominees to what are now emergency vacancies on the Courts of Appeals. I remind my colleagues of their failure to grant a hearing or Committee or Senate consideration to the following: Robert Cindrich to the Third Circuit; Judge James A. Beaty, Jr. and Judge James A. Wynn, Jr. to the Fourth Circuit; Jorge Rangel, Enrique Moreno and H. Alston Johnson to the Fifth Circuit; Judge Helene White, Kathleen McCree-Lewis and Kent Marcus to the Sixth Circuit; Bonnie Campbell to the Eighth Circuit; James Duffy and Barry Goode to the Ninth Circuit. Those were 12 Court of Appeals nominees to 10 vacancies who could have gone a long way toward reducing the level of judicial emergencies around the country. So when others talk about the progress we are finally making in Senate consideration of judicial nominations, I hope that in the future they will recognize our accomplishments, understand our circumstances, and consider our record in historical context. I have yet to hear our Republican critics acknowledge any shortcomings among the practices they employed over the last 6 years. When they have done that and we have established a common basis of understanding and comparison, we will have taken a significant step forward. As it is, I must sadly observe that partisan carping is not constructive. It seems part of an unfortunate pattern of actions this week that are a conscious effort to increase the partisan rhetoric. I would rather we work together to get as much accomplished as we possibly can.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to congratulate Senator Carnahan on the introduction of S. 1250. I am an original co-sponsor of her legislation that deals with health care shortfalls among members of the National Guard and Reserve. This bill will enable citizen-soldiers to receive health insurance coverage for up to one year following an extended deployment. It is an important part of a larger effort to ensure that all members of the National Guard and Reserve have adequate health insurance. This bill arises out of the changing role of the National Guard and Reserve in defending our Nation. During the Cold War, the military reserves served as an ace-in-the-hole, ready to fight but held back as a force of last resort. As our military posture has shifted, reservists have started supplementing active forces and taken up a greater share of the burden of projecting our national military presence abroad. In many cases, these proud men and women are serving side-by-side with their active duty counterparts in deployments that can last upward of six months. I will not repeat many of the facts and figures that Senator Carnahan so adeptly underscored in her statement, but, suffice to say here, our citizen-soldiers are experiencing all of the same hardships, challenges, dangers that full-time servicemembers go through every time they leave their barracks or launch into the skies. This courage and sacrifice deserves our support, both in symbolic and concrete terms. Unfortunately, many are experiencing difficulties as they transition back-and-forth between their usual, employer-provided health coverage and the military TRICARE Prime coverage they receive when they deploy longer than 60 days. More disturbing are the cases where a reservist might be between jobs in their professions, go on an extended deployment, and return to that unemployed status with no health insurance coverage at all. There are innumerable variations on each one of these stories, but each points towards a larger problem. Cases like those add up, inevitably impacting military readiness and raising troubling moral questions. Military readiness diminishes when soldiers, sailors, Marines, and airmen arrive for deployment less healthy than possible. Basic questions of fairness come into play when two people can do exactly the same job, but receive different levels of respect and gratitude from the country. Congress has the responsibility to deal with these inequities and tailor a solution to address the problem. Recently, Senators Carnahan, DeWine, Daschle, Cochran, Johnson, and Snowe joined me to introducing S. 1119, the Selected Reserve Health Care Act. This bill commissions an independent, detailed study of the health insurance needs of our citizen-soldiers, but, more importantly, expresses the sense of Congress that every reservist should have full health care coverage. This is a long-term goal that may take some time to achieve. In the meantime, though, we should take steps to move us in the right direction. Senator Carnahan's legislation will ensure a smooth transition back to civilian employment after an extended deployment. It increases the time that a member of the reserve can remain on TRICARE following deployment from one month to a year. Though it merely extends an existing benefit, it will provide a much-needed stopgap for those who are unemployed or facing difficulties with their civilian insurance providers. This legislation is sensible and affordable, finding a balance between our responsibilities to our servicemembers and our responsibilities as caretakers of the national treasury. Senator Carnahan has shown tremendous leadership on this issue, not only co-sponsoring a companion legislation that I introduced almost a month ago, but, more importantly, by coming up with a realistic, concrete step to start addressing this complex problem today. I am happy to be an original co-sponsor of this legislation, and I look forward to working with her to enact both of these bills.