Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, it is not often that the President of the United States, the editorial board of the Washington Times, People for the American Way and Gary Bauer all agree. They all do about the importance of the upcoming election to the rights of Americans in the decades ahead because of its impact on the third branch of the Federal Government, our federal judiciary. This first national election of this new century will give the American people a choice--a clear choice for President and for Congress. Also at stake is the third branch of our Federal Government, the judiciary. It is this branch of government, headed by the Supreme Court, that is the guardian of our rights under the Constitution. The next President is likely to nominate not only the next Justice on the United States Supreme Court, but possibly as many as four of the nine members of the Supreme Court over the course of his term. The next Senate will be called upon to vote to confirm or reject the President's nominations to the Supreme Court and the federal courts throughout the country. These are the judges who can give meaning to the Bill of Rights in cases they decide every day or who can take away our rights and the authority of our elected representatives and impose their own narrow view of our Constitution. The rights of free speech, to practice any religion or no religion as we choose, the right to be treated equally by the government, the right to privacy and a woman's right to choose are fundamental rights that require constant vigilance and protection. This new century will pose challenges to our fundamental rights. Will we have a President and a Senate who will combine to provide judges to protect those rights, or ideologues who will erode them? Nothing is more sharply at stake this November than the future of our constitutional rights. Five-to-four--five-to-four is how closely the Supreme Court is now dividing on fundamental issues. One or two votes on the Supreme Court can, for the next half century, tip the balance away from the right to choose, away from rights of privacy, away from equal rights and toward government establishment of religion and government orthodoxy over free expression. One or two votes could make it much harder to protect the environment or pass meaningful campaign finance reform. This last year by a five-to-four majority the Supreme Court held that a rape victim can bring no claim in federal court and that Congress was wrong to provide that remedy in the Violence Against Women Act. By five-to-four majorities the Supreme Court held that state employees have no rights to be paid for overtime work and have no protection from age discrimination, in spite of the laws passed by Congress. What will this mean for other laws prohibiting discrimination in the workplace, regulating wages and hours and health and providing safety standards for working Americans? And by a mere five-to-four vote, the Supreme Court decided that a Nebraska law imposed an undue burden on a woman's right to choose when it sought to prohibit medical procedures by vague language and without regard to the health of the woman. I am confident that Al Gore and Joe Lieberman will nominate women and men who understand the proper role of judges as protectors of our rights and the proper limits on judicial power. On Tuesday evening the President of the United States spoke about the importance of the election to the Supreme Court, to the federal courts generally, to our rights and to the distribution of power in our country. The President noted that ``the American people will make a decision in this election which will shape the Supreme Court and the other federal courts, and the range of liberty and privacy, and the range of acceptable national action for years to come'' and that ``whether we have a new form of ultra-conservative judicial activism that rejects the government's authority to protect the rights of our citizens and interests of our citizens'' is at stake in the November election. As the President explained: Now we're just a vote or two away from reversing Roe v. Wade in the United States Supreme Court, and I think it's inevitable that the next President will have two appointments to the Supreme Court, could be more. Beyond that, as I intimated in my opening remarks, there has already been a majority in this Court for restricting the ability of Congress, even a bipartisan majority in Congress, to get the states to help implement public interest legislation that protects people. There is much at state in the next election and in the appointment of our Supreme Court Justices and other federal judges. In June, the People for the American Way Foundation published an extensive report called ``Courting Disaster: How a Scalia-Thomas Supreme Court Would Endanger Our Rights and Freedoms'' that considered the future makeup of the Supreme Court and its likely effects on our fundamental rights. In his message accompanying that report, Ralph Neas observed: The United States Supreme Court is just one or two new Justices away from curtailing or abolishing fundamental rights that millions of Americans take for granted. The Washington Times lead editorial on Thursday noted pointedly: Before the Supreme Court could overturn Roe vs. Wade, it would take the appointment of two pro-life justices to replace two pro-choice jurists--and their successful confirmation in what would undoubtedly be among the most explosive battles in U.S. Senate history. Mr. Bauer made much the same point in a recent appearance on NBC's Today Show, in which he said: ``I think if Governor Bush gets to put a couple of justices on the court, we will be more likely to protect our unborn children under the Constitution.'' The Republican party platform talks of ideological litmus tests for judges and the end of a woman's right to choose. The Republican candidate for President says that his models for judicial nominees are the most conservative current Justices, Antonin Scalia and Clarence Thomas. If they formed the majority in the years ahead, our rights would be greatly diminished, protections approved by Congress would be routinely invalidated and our Constitution would be harshly reinterpreted. While the other party's platform is filled with calls for rewriting the Constitution, we Democrats seek to preserve the Constitution and protect our fundamental rights as the guaranties of our freedoms. While the Republican Senate has delayed and dissembled over judicial nominations during the last six years--to the point that the Chief Justice of the United States chastised them for refusing to vote up or down--Vice President Gore, Senator Daschle and I have pressed for action on outstanding judicial nominees, including historic levels of women and minorities. While Republican Senators all voted lockstep against the confirmation of the first African-American Justice on the Missouri Supreme Court to become a federal judge, Democrats voted for Ronnie White of Missouri, for Richard Paez and Marsha Berzon of California, for Sonia Sotomayor of New York, for Julio Fuentes of New Jersey, and for Barbara Lynn and Hilda Tagle of Texas. While the Republican leadership of the Congress sought to intimidate federal judges, Vice President Gore and Democrats have been working for fair up or down votes on the nominations of qualified women and minorities such as Enrique Moreno of Texas, Judge James Wynn of North Carolina, Roger Gregory of Virginia, Judge Helene White and Kathleen McCree Lewis of Michigan, Judge Legrome Davis of Philadelphia, Dolly Gee of California, and Rhonda Fields of the District of Columbia. While the Republican candidate for President made a fine statement in which he called for votes on judicial nominations within 60 days, he has not prevailed upon the Senate Republican majority to treat nominees fairly now. Instead of 60 days, we see Judge Helene White's nomination to the Sixth Circuit pending more than 1400 days; Elena Kagan, U.S. Court of Appeals for the District of Columbia, pending 500 days; Judge James Wynn, U.S. Court of Appeals for the Fourth Circuit, pending more than 440 days; Kathleen McCree Lewis, U.S. Court of Appeals for the Sixth Circuit, pending more than 400 days; Enrique Moreno, U.S. Court of Appeals for the Fifth Circuit, pending more than 400 days; Bonnie Campbell, U.S. Court of Appeals for the Eighth Circuit, pending more than 240 days; Roger Gregory, U.S. Court of Appeals for the Fourth Circuit, pending more than 115 days; Lynette Norton, U.S. District Court for the Western District of Pennsylvania, pending more than 1300 days; Judge Legrome Davis, U.S. District Court for the Eastern District of Pennsylvania, pending more than 800 days; Patricia Coan, U.S. District Court for the District of Colorado, pending more than 500 days; Dolly Gee, U.S. District Court for the Central District of California, pending more than 500 days; Rhonda Fields, U.S. District Court for the District of Columbia, pending more than 350 days; Linda Riegle, U.S. District Court for the District of Nevada, pending more than 180 days; Ricardo Morado, U.S. District Court for the Southern District of Texas, pending more than 165 days. The Senate is adjourning leaving 33 judicial nominees whose nominations have been pending without Senate action for more than 60 days. And while the Republican majority in the Senate refused for over three years to vote up or down on the confirmation of Bill Lann Lee to head the Civil Rights Division, this outstanding American continued to do his job on behalf of all Americans. With Vice President Gore's support, this Senate slight has finally been made right by the recess appointment of the first Asian-Pacific American to lead the Civil Rights Division. The election next month presents a clear choice. The choice the American people make will determine what kind of judges sit on the Supreme Court and on federal courts all across the country. Those elected by the American people in November will select the judicial guardians of our liberties and the enforcers of our constitutional protections next year and in the decades to come. The future for our children and grandchildren hangs in the balance. I am proud that to support Al Gore and Joe Lieberman. They will nominate judges who understand the Constitution and the Bill of Rights.

Mr. LEAHY

Mr. LEAHY. Mr. President, recently the Burlington Free Press had an article about Ann Kriesel of Burlington, VT and praised her as the volunteer of the week. The Leahy family has known Ann Trueblood Kriesel almost from the time she came to Burlington. She is an extraordinary person, loved and respected by all who know her. She and her husband, Peter, are dear friends of Marcelle's and mine, and she has made her mark on our community in a way that would bring great pride and credit to anyone. As an exemplary teacher, as a mother and grandmother, her intelligence, quiet wit and grace has helped Vermonters of all ages. It is with pride that I ask the article about her be included in the Congressional Record, so that all Senators might know this exemplary woman and how much she and Peter mean to all of us. The article follows: [From the Burlington Free Press, Oct. 18, 2000] Former Teacher Enjoys New Role as a Volunteer (By Beth Gillespie) Anne Kriesel is one of those special people who go out of their way to enrich other people's lives. The volunteer at The Converse Home in Burlington browses through local libraries for short stories, essays and articles that the home's residents would enjoy and reads the selections once a week. She also calls out for bingo games and facilitates group crossword puzzles. A hostess during their social hours, Kriesel visits with people and serves refreshments, and during outings she helps those who use walkers get on and off the bus, carries articles for them and keeps track of everyone. Kriesel introduces herself to new residents and helps them feel comfortable. She worked one-on-one with one woman until her death, visiting with her and playing canasta, Kings in the Corner, rummy and other games. ``Anne is generous, genuine and dependable,'' says Patti Meyer, activity/volunteer director for Converse. ``Her bright personality and positive `can-do' attitude are priceless--she enthusiastically embraces her responsibilities and gladly does whatever she can to help out. Anne has become part of our family as she helps to make Converse a true home. The time she shares with us is very precious and we thank her from the bottom of our hearts.'' Kriesel also substitutes for Meals on Wheels and is involved with the Joint Urban Ministries Program through her church, College Street Congressional. She greets clients who come to the Urban Ministries Program for counseling, helps them fill out forms and visits with them until they can see a counselor. A retired teacher, Kriesel spent 22 of her 27 years in education at Colchester Middle School, and now works part- time for the University of Vermont Department of Education as a supervisor of student teachers. She lives in Burlington with her husband, Peter, and the couple has two adult sons and one granddaughter. She enjoys walking, gardening, cooking, reading and writing. ``I loved my 27 years of full-time public school teaching,'' Kriesel says. ``It's fun for me now to branch out, try some new things and work with people at the opposite end of the age spectrum. I find that they have such rich lives and wonderful stories to tell.''

Mr. LEAHY

Mr. LEAHY. Mr. President, Senator Kyl spoke on the floor yesterday about the Counterterrorism Act of 2000, S. 3205, which he introduced two weeks ago on October 12, 2000. I had planned to speak to him directly about this legislation when I got into the office yesterday, but before I had the opportunity to speak to him, even by telephone, my colleague instead chose to discuss this matter on the Senate floor. I have worked with Senator Kyl to pass a number of matters of importance to him in past Congresses and in this one. Most recently, for example, the Senate passed on November 19, 1999, S. 692, the Internet Gambling Prohibition Act, and on September 28, 2000, S. 704, the Federal Prisoner Health Care Copayment Act. Moreover, in the past few months, we have worked together to get four more judges in Arizona. I was happy to help Senator Kyl clear each of those matters. Unlike the secret holds that often stop good bills from passing often for no good reason, I have had no secret hold on S. 3205. On the contrary, when asked, I have made no secret about the concerns I had with this legislation. An earlier version of this legislation, which Senator Kyl tried to move as part of the Intelligence Authorization bill, S. 2507, prompted a firestorm of controversy from civil liberties and human rights organizations, as well as the Department of Justice. I will include letters from the Department of Justice, the Center for Democracy and Technology, the Center for National Security Studies and the American Civil Liberties Union for the Record at the end of my statement. I shared many of the concerns of those organizations and the Justice Department. I learned late last week that Senator Kyl was seeking to clear S. 3207 for passage by the Senate, even though it had been introduced only the week before. I do not believe the Senate should move precipitously to pass a bill that has garnered so much serious opposition before having the opportunity to review it in detail and ensure that earlier pitfalls had been addressed. Let me say that having reviewed the bill introduced by Senator Kyl, it is apparent that he has made efforts to address some of those serious and legitimate concerns. Senator Kyl has suggested that if the Justice Department was satisfied with his legislation, I or my staff had earlier indicated that I would be satisfied. I respect the expertise of the Department of Justice and the many fine lawyers and public servants who work there and, where appropriate, seek out their views, as do many Members. That does not mean that I always share the views of the Department of Justice or follow the Department's preferred course and recommendations without exercising my own independent judgment. I would never represent that if the Justice Department were satisfied with his bill, I would automatically defer to their view. Furthermore, my staff has advised me that no such representation was ever made. That being said, I should note that the Department of Justice has advised me about inaccurate and incorrect statements in Senator Kyl's bill, S. 3205, which are among the items that should be fixed before the Senate takes up and passes this measure. I have shared those items and other suggestions to improve this legislation with the cosponsor of the bill, Senator Feinstein, whose staff requested our comments earlier this week. My staff provided comments to Senator Feinstein, and understood that at least in the view of that cosponsor of this bill, some of those comments were well-taken and would be discussed with Senator Kyl and his staff. Indeed, my staff received their first telephone call about S. 3205 from Senator Kyl's staff just yesterday morning, returned the call without finding Senator Kyl's staff available, and hoped to have constructive conversations to resolve our remaining differences. Yet, before these conversations could even begin, Senator Kyl chose to conduct our discussions on the floor of the Senate. There may be more productive matters on which the Senate should focus its attention, but I respect my colleague's choice of forum and will lay out here the continuing concerns I have with his legislation. First, the bill contains a sense of the Congress concerning the tragic attack on the U.S.S. Cole that refers to out-dated numbers of sailors killed and injured. I believe that each of the 17 sailors killed and 39 sailors injured deserve recognition and that the full scope of the attack should be properly reflected in this Senate bill. I have urged the sponsors of the bill to correct this part of the bill. I note that last week the Senate passed at least two resolutions on this matter, expressing the outrage we all feel about the bombing attack on that Navy ship. Second, this sense of the Congress urges the United States Government to ``take immediate actions to investigate rapidly the unprovoked attack on the'' U.S.S. Cole, without acknowledging the fact that such immediate action has been taken. The Navy began immediate investigative steps shortly after the attack occurred, and the FBI established a presence on the ground and began investigating within 24 hours. The Director himself went to Yemen to guide this investigation. That investigation is active and ongoing, and no Senate bill should reflect differently, as this one does. We should be commending the Administration for the swift and immediate actions taken to this attack and the strong statements made by the President making clear that no stone will be left unturned to find the criminals who planned this bloody attack. Third, as I previously indicated, the Department of Justice has suggested several corrections to the ``Findings'' section of this bill. For example, the bill suggests there are ``38 organizations'' designated as Foreign Terrorist Organizations (FTOs) when there are currently 29. The bill also states that ``current practice is to update the list of FTOs every two years'' when in fact the statute requires redesignation of FTOs every two years. The bill also states that current controls on the transfer and possession of biological pathogens were ``designed to prevent accidents, not theft,'' which according to the Justice Department is simply not accurate. Fourth, the bill requires reports on issues within the jurisdiction of the Senate Judiciary Committee without any direction that those reports be submitted to that Committee. For example, section 9 of the bill would require the FBI to submit to the Select Committees on Intelligence of the Senate and the House a feasibility report on establishing a new capability within the FBI for the dissemination of law enforcement information to the Intelligence community. I have suggested that this report also be required to be submitted to the Judiciary Committees. As the Chairman of the Senate Judiciary Subcommittee on Technology, Terrorism and Government Information, I would have expected that Senator Kyl would support this suggested change. Fifth, the bill would require reports, with recommendations for appropriate legislative or regulation changes, by the Attorney General and the Secretary of Health and Human Services on safeguarding biological pathogens at research labs and other facilities in the United States. No definition of ``biological pathogen'' is included in the bill and the scope could therefore cover a vast array of biological materials. I have suggested that the focus of these requested reports could be better directed by more carefully defining this term. Finally, the bill would require reimbursement for professional liability insurance for law enforcement officers performing official counterterrorism duties and for intelligence officials performing such duties outside the United States. I have asked for an explanation for this provision. I have scoured the record in vain for explanatory statements by the sponsors of this bill for this provision. It is unclear to me why law enforcement officers conducting investigations here in the United States need such insurance, let alone intelligence officers acting overseas. There may be a good reason why these officers need this special protection, beyond the limited immunity they already have and beyond what other law enforcement and intelligence officers are granted. I need to know the reason for this special protection before any of us are able to evaluate the merits of this proposal. I stand ready, as I always have, to work with the sponsors of S. 3205 to improve their bill. I ask unanimous consent to print in the Record the two letters to which I referred.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the ``Protecting Seniors from Fraud Act'' passed the Senate. I was an original cosponsor of this bill, S. 3164, which Senator Bayh introduced on October 5, 2000, with Senators Grams and Cleland. I have been concerned for some time that even as the general crime rate has been declining steadily over the past eight years, the rate of crime against the elderly has remained unchanged. That is why I introduced the Seniors Safety Act, S. 751, with Senators Daschle, Kennedy, and Torricelli over a year ago. The Protecting Seniors from Fraud Act includes one of the titles from the Seniors Safety Act. This title does two things. First, it instructs the Attorney General to conduct a study relating to crimes against seniors, so that we can develop a coherent strategy to prevent and properly punish such crimes. Second, it mandates the inclusion of seniors in the National Crime Victimization Study. Both of these are important steps, and they should be made law. The Protecting Seniors from Fraud Act also includes important proposals for addressing the problem of crimes against the elderly, especially fraud crimes. In addition to the provisions described above, this bill authorizes the Secretary of Health and Human Services to make grants to establish local programs to prevent fraud against seniors and educate them about the risk of fraud, as well as to provide information about telemarketing and sweepstakes fraud to seniors, both directly and through State Attorneys General. These are two common-sense provisions that will help seniors protect themselves against crime. I hope that we can also take the time to consider the rest of the Seniors Safety Act, and enact even more comprehensive protections for our seniors. The Seniors Safety Act offers a comprehensive approach that would increase law enforcement's ability to battle telemarketing, pension, and health care fraud, as well as to police nursing homes with a record of mistreating their residents. The Justice Department has said that the Seniors Safety Act would ``be of assistance in a number of ways.'' I have urged the Chairman of the Senate Judiciary Committee to hold hearings on the Seniors Safety Act as long ago as October 1999, and again this past February, but my requests have not been granted. Now, as the session is coming to a close, we are out of time for hearings on this important and comprehensive proposal and significant parts of the Seniors Safety Act remain pending in the Senate Judiciary Committee as part of the unfinished business of this Congress. Let me briefly summarize the parts of the Seniors Safety Act that the majority in the Congress declined to consider. First, the Seniors Safety Act provides additional protections to nursing home residents. Nursing homes provide an important service for our seniors--indeed, more than 40 percent of Americans turning 65 this year will need nursing home care at some point in their lives. Many nursing homes do a wonderful job with a very difficult task--this legislation simply looks to protect seniors and their families by isolating the bad providers in operation. It does this by giving federal law enforcement the authority to investigate and prosecute operators of those nursing homes that engage in a pattern of health and safety violations. This authority is all the more important given the study prepared by the Department of Health and Human Services and reported this summer in the New York Times showing that 54 percent of American nursing homes fail to meet the Department's ``proposed minimum standard'' for patient care. The study also showed that 92 percent of nursing homes have less staff than necessary to provide optimal care. Second, the Seniors Safety Act helps protect seniors from telemarketing fraud, which costs billions of dollars every year. This legislation would give the Attorney General the authority to block or terminate telephone service where that service is being used to defraud seniors. If someone takes your money at gunpoint, the law says we can take away their gun. If someone uses their phone to take away your money, the law should allow us to protect other victims by taking their phone away. In addition, this proposal would establish a Better Business Bureau-style clearinghouse that would keep track of complaints made about telemarketing companies. With a simple phone call, seniors could find out whether the company trying to sell to them over the phone or over the Internet has been the subject of complaints or been convicted of fraud. Senator Bayh has recently introduced another bill, S. 3025, the Combating Fraud Against Seniors Act, which includes the part of the Seniors Safety Act that establishes the clearinghouse for telemarketing fraud information. Third, the Seniors Safety Act punishes pension fraud. Seniors who have worked hard for years should not have to worry that their hard- earned retirement savings will not be there when they need them. The bill would create new criminal and civil penalties for those who defraud pension plans, and increase the penalties for bribery and graft in connection with employee benefit plans. Finally, the Seniors Safety Act strengthens law enforcement's ability to fight health care fraud. A recent study by the National Institute for Justice reports that many health care fraud schemes ``deliberately target vulnerable populations, such as the elderly or Alzheimer's patients, who are less willing or able to complain or alert law enforcement.'' This legislation gives law enforcement the additional investigatory tools it needs to uncover, investigate, and prosecute health care offenses in both criminal and civil proceedings. It also protects whistle-blowers who alert law enforcement officers to examples of health care fraud. I commend Senators Bayh, Grams and Cleland for working to take steps to improve the safety and security of America's seniors. We have done the right thing in passing this bipartisan legislation and beginning the fight to lower the crime rate against seniors. I also urge my colleagues to consider and pass the Seniors Safety Act. Taken together, these two bills would provide a comprehensive approach toward giving law enforcement and older Americans the tools they need to prevent crime.

Mr. LEAHY

Mr. LEAHY. Thank you, Senator Sessions. Mr. President, I too, want to congratulate and commend my distinguished colleague from Alabama for his leadership and perseverance in getting this legislation passed. I fully support S. 768, which I believe was significantly improved with this most recent substitute amendment. The due process considerations regarding appearances before U.S. Magistrates before removing civilians from overseas were added after earlier Senate consideration and, I believe, improve the bill. This important legislation will close a gap in Federal law that has existed for many years. With foreign nations often not interested in prosecuting crimes against Americans, particularly when committed by an American, the result is a jurisdictional gap that allows some civilians to literally get away with murder. The House Report 106-778, which Senator Sessions just referred to a moment ago, outlines many of the problems resulting from this loophole. I agree with Senator Sessions with respect to the report. I am glad this legislation will pass this Congress because the gap that has allowed individuals accompanying our military personnel overseas to go unpunished for heinous crimes must be closed. That is why I have been a strong proponent and co-sponsor of this legislation. I yield the floor.

Mr. LEAHY. Mr. President, I am pleased that the Senate is voting on final passage of S. 768, the Military and Extraterritorial Jurisdiction Act. I have worked on this issue for some time now and believe that the Congress should promptly move forward with this important legislation. Specifically, in the last Congress, I originally introduced most of the provisions in this bill as part of the comprehensive crime bill, S. 2484, the Safe Schools, Safe Streets and Secure Borders Act of 1998. On the first day of this Congress, I again included these provisions in S. 9, the Safe Schools, Safe Streets and Secure Borders Act of 1999. Last year, I was pleased to join Senators Sessions and DeWine in supporting the Sessions-Leahy-DeWine substitute amendment to S. 768, which was reported favorably by the Senate Judiciary Committee and then passed unanimously by the Senate on July 1, 1999, over a year ago. The bill then sat in a House subcommittee for almost one year until the House of Representatives finally took action in late July, 2000 to consider and pass an amended version of S. 768. S. 768 closes a gap in federal law that has existed for many years and permitted individuals who accompanied military personnel overseas to ``get away with murder.'' Foreign nations often have no interest in vindicating crimes against American servicemen stationed overseas, particularly when committed by Americans, The lack of Federal jurisdiction over such crimes has allowed the perpetrators to go unpunished. This bill establishes authority for, and sets up procedures to implement the exercise of, Federal jurisdiction over felony crimes committed by certain people overseas. I had some concerns with certain aspects of S. 768, as originally introduced, and worked to address those concerns and improve the bill in the Sessions-Leahy-DeWine substitute amendment. For example, the original bill would have extended court-martial jurisdiction over DOD employees and contractors whenever they accompanied our Armed Forces overseas. I was concerned that this extension of court-martial jurisdiction ran afoul of the Supreme Court's decisions in Reid v. Covert, 354 U.S. 1 (1957), Kinsella v. Singleton, 361 U.S. 234 (1960) and Toth v. Quarles, 350 U.S. 11 (1955). Those rulings made clear that court-martial jurisdiction may not be constitutionally applied to crimes committed in peacetime by persons accompanying the armed forces overseas, or to crimes committed by a former member of the armed services. We made progress in the Sessions--Leahy-DeWine substitute amendment passed by the Senate to limit the proposed extension of court-martial jurisdiction to DOD employees and contractors, and ensure its application only in times when the armed forces are engaged in ``contingency operation'' involving a war or national emergency declared by the Congress or the President. While his correction would, in my view, have comported with the Supreme Court rulings on this issue and cured any constitutional infirmity with the original language, I appreciate the action of the House to remove altogether this section of the bill, which had originally given me concern. In addition, the original bill contained a provision that would have deemed any delay in bringing a person before a magistrate due to transporting the person back to the U.S. from overseas as ``justifiable.'' I was concerned that this provision could end up excusing lengthy and unreasonable delays in getting a civilian, who was arrested overseas, before a U.S. Magistrate, and thereby raise due process and other constitutional concerns. The Sessions-Leahy-DeWine substitute cured that potential problem by eliminating the ``justifiable'' delay provision in the original bill. Thus, the general standard from Federal Rule of Criminal Procedure 5 about avoiding unnecessary delays in bringing an arrested person before a magistrate would apply to the removal of a civilian from overseas to answer charges in the United States. The House has made further improvements to the removal and detention procedures in the bill, and I support them. In particular, the House has clarified the procedures necessary to protect the rights of the accused in both removal and detention hearings, and to facilitate and expedite the conduct of initial appearances by the accused before federal magistrate judges. Finally, S. 768 as introduced authorized the Department of Defense to determine which foreign officials constitute the appropriate authorities to whom an arrested civilian should be delivered. I urged that DOD make this determination in consultation with the Department of State, and the Sessions-Leahy-DeWine substitute amendment adopted such a consultation requirement. I am pleased that the House maintained this part of the substitute amendment in House-passed version of the legislation and requires consultation with the Department of State. The inaction of the Congress on closing the jurisdictional gap that has existed over the criminal actions of civilian on military installations overseas has been the source of terrible injustice. For example, most recently the Second Circuit Court of Appeals was compelled to reverse a conviction and dismiss an indictment of sexual abuse of a minor committed by a civilian at a military base in Germany. The Court took the ``unusual step of directing the Clerk of the court to forward a copy this opinion'' to the relevant Committees of the Congress. We have gotten our wake-up call and should waste no more time to send this legislation to the President.

Mr. LEAHY

Mr. LEAHY. Mr. President, on June 9, 1999, our departed friend and colleague, the former senior Senator from Georgia, introduced the National Forensic Sciences Improvement Act of 1999. This important legislative initiative called for an infusion of Federal funds to improve the quality of State and local forensic science services. I am pleased that Senator Sessions has revived the bill, and that we are passing it today as the Paul Coverdell National Forensic Sciences Improvement Act of 2000, S. 3045. The use of quality forensic science services is widely accepted as a key to effective crime-fighting, especially with advanced technologies such as DNA testing. Over the past decade, DNA testing has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene. Because of its scientific precision, DNA testing can, in some cases, conclusively establish a suspect's guilt or innocence. In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value for investigators. While DNA's power to root out the truth has been a boon to law enforcement, it has also been the salvation of law enforcement's mistakes--those who for one reason or another, are prosecuted and convicted of crimes that they did not commit. In more than 75 cases in the United States and Canada, DNA evidence has led to the exoneration of innocent men and women who were wrongfully convicted. This number includes at least 9 individuals sentenced to death, some of whom came within days of being executed. In more than a dozen cases, moreover, post-conviction DNA testing that has exonerated an innocent person has also enhanced public safety by providing evidence that led to the apprehension of the real perpetrator. Clearly, forensic science services like DNA testing are critical to the effective administration of justice in 21st century America. Forensic science workloads have increased significantly over the past five years, both in number and complexity. Since Congress established the Combined DNA Index System in the mid-1990s, States have been busy collecting DNA samples from convicted offenders for analysis and indexing. Increased Federal funding for State and local law enforcement programs has resulted in more and better trained police officers who are collecting immense amounts of evidence that can and should be subjected to crime laboratory analysis. Funding has simply not kept pace with this increasing demand, and State crime laboratories are now seriously bottlenecked. Backlogs have impeded the use of new technologies like DNA testing in solving cases without suspects--and reexamining cases in which there are strong claims of innocence--as laboratories are required to give priority status to those cases in which a suspect is known. In some parts of the country, investigators must wait several months--and sometimes more than a year--to get DNA test results from rape and other violent crime evidence. Solely for lack of funding, critical evidence remains untested while rapists and killers remain at large, victims continue to anguish, and statutes of limitation on prosecution expire. Let me describe the situation in my home State. The Vermont Forensics Laboratory is currently operating in an old Vermont State Hospital building in Waterbury, Vermont. Though it is proudly one of only two fully-accredited forensics labs in New England, it is trying to do 21st century science in a 1940's building. The lab has very limited space and no central climate control--both essential conditions for precise forensic science. It also has a large storage freezer full of untested DNA evidence from unsolved cases, for which there are no other leads besides the untested evidence. The evidence is not being processed because the lab does not have the space, equipment or manpower. I commend the scientists and lab personnel at the Vermont Forensics Laboratory for the fine work they do everyday under difficult circumstances. But the people of the State of Vermont deserve better. This is our chance to provide them with the facilities and equipment they deserve. Passage of the Paul Coverdell National Forensic Sciences Improvement Act will give States like Vermont the help they desperately need to handle the increased workloads placed upon their forensic science systems. It allocates $738 million over the next six years for grants to qualified forensic science laboratories and medical examiner's offices for laboratory accreditation, automated equipment, supplies, training, facility improvements, and staff enhancements. I have worked with Senator Sessions to revise the bill's allocation formula to make it fair for all States. We have agreed to add a minimum allocation of .06 percent of the total appropriation for each fiscal year for smaller states and have increased the maximum percentage of federal funds available for facility costs from 40 percent to 80 percent for these smaller states. This is only fair for smaller States with limited tax bases and other finite resources, such as my home State of Vermont. The bill we pass today also authorizes $30 million for fiscal year 2001 for the elimination of DNA convicted offender database sample backlogs and other related purposes. I support this provision, although I regret that it does not go further. Senator Schumer and I have proposed increasing this authorization by $25 million, which is the amount needed to eliminate the backlog of untested crime scene evidence from unsolved crimes. This backlog is as serious a problem as the convicted offender sample backlog, and we should take the opportunity to address it now. I am also deeply disappointed that S. 3045 fails to address the urgent need to increase access to DNA testing for prisoners who were convicted before this truth-seeking technology became widely available. Prosecutors and law enforcement officers across the country use DNA testing to prove guilt, and rightly so. By the same token, however, it should be used to do what is equally scientifically reliable to do-- prove innocence. I was greatly heartened earlier this month when the Governor of Virginia finally pardoned Earl Washington, after new DNA tests confirmed what earlier DNA tests had shown: He was the wrong guy. He was the 88th wrong guy discovered on death row since the reinstatement of capital punishment. His case only goes to show that we cannot sit back and assume that prosecutors and courts will do the right thing when it comes to DNA. It took Earl Washington years to convince prosecutors to do the very simple tests that would prove his innocence, and more time still to win a pardon. And he is still in prison today. States like Virginia continue to stonewall on requests for DNA testing. They continue to hide behind time limits and procedural default rules to deny prisoners the right to present DNA test results in court. They are still destroying the DNA evidence that could set innocent people free. These sorts of practices must stop. We should not pass up the promise of truth and justice for both sides of our adversarial system that DNA evidence offers. By passing S. 3045, we substantially increase funding to improve the quality and availability of DNA analysis for law enforcement purposes. That is an appropriate use of Federal funds. But we at least ought to require that this truth-seeking technology be made available to both sides. I proposed a modest Sense of Congress amendment to S. 3045, which the Senate is passing today. It describes how DNA testing can and has resulted in the post-conviction exoneration of scores of innocent men and women, including some under sentence of death, and expresses the sense of Congress that we should condition forensic science-related grants to a State or State forensic facility on the State's agreement to ensure post-conviction DNA testing in appropriate cases. Because post-conviction DNA testing has shown that innocent people are sentenced to death in this country with alarming frequency, and because the most common constitutional error in capital cases is egregiously incompetent defense lawyering, my amendment also calls on Congress to work with the States to improve the quality of legal representation in capital cases through the establishment of counsel standards. I introduced legislation in this Congress that would have accomplished both of these things. The Innocence Protection Act of 2000 contains meaningful reforms that I believe could save innocent lives. As the 106th Congress winds down, we have 14 cosponsors in the Senate, and about 80 in the House. We have Democratic and Republican cosponsors, supporters of the death penalty and opponents. President Clinton, Vice-President Gore, and Attorney General Reno have all expressed support for the bill. Tragically, real reform of our nation's capital punishment system foundered on the shoals of election-year politics. But with the Sense of Congress provision that we pass today, at least we have agreed on a blueprint for effective reform legislation in the 107th Congress. Finally, I want to discuss another amendment that I proposed, together with Senator Sessions, and that the Senate passes today. It concerns the Civil Asset Forfeiture Reform Act of 2000, which the Senate passed on March 27, 2000. The Civil Asset Forfeiture Reform Act was an important step forward, and I want to thank Mr. Hyde, Mr. Conyers and Senators Sessions, Schumer, Biden, and all others who worked with us in good faith to enact these long overdue reforms. At the same time, there was some unfinished business in connection with this legislation that my amendment completes. The bill that the Senate passed by unanimous consent on March 27th was supposed to be a substitute amendment to H.R. 1658. I had been led to believe that the substitute was word-for-word that which I had painstakingly worked out over the preceding weeks for approval by the Senate Committee on the Judiciary the previous Thursday, March 23, 2000. Imagine my surprise to see reprinted in the Record the next day a substitute amendment at variance with the version to which I had agreed to and at variance with the language that had been circulated to and approved by the Committee. Specifically, the agreed upon version of the bill would amend section 983(a)(2)(C) of title 18, United States Code, to describe what a claimant in a civil asset forfeiture case must state to assert a claim. The amendment to which I agreed and which the Judiciary Committee ``ordered reported'' requires that a ``claim shall--(i) identify the specific property being claimed; (ii) state the claimant's interest in such property; and (iii) be made under oath, subject to penalty of perjury.'' By contrast, the version of the amendment submitted to the Senate for passage contained the following additional clause in subparagraph (ii): ``state the claimant's interest in such property (and provide customary documentary evidence of such interest if available) and state that the claim is not frivolous''. I did not approve the language inserted in the version considered by the Senate and this language was not approved by the Judiciary Committee. The inserted language is superfluous at best, since even without it, a claimant must provide evidence of his interest in the property early in the proceeding or face summary dismissal for lack of standing. Moreover, a claim already must be made under oath and penalty of perjury. At worst, the inserted language is an invitation for mischief in an area where the record has already amply demonstrated overreaching by law enforcement agencies. At the claim stage, most claimants do not have counsel. Many are uneducated and unsophisticated. They may not know what ``customary documentary evidence'' means, and even if they do, they may not know how to get it. It is not so simple for such individuals to obtain a bank statement or a title document, much less to obtain such documents within the 30 days afforded by the Act. They may be deterred from filing a claim simply because they cannot produce documentary evidence--even if no documentary evidence exists. Take for example an all cash seizure. What constitutes ``customary documentary evidence'' of an interest in cash? An ATM receipt? A bank record? What about money that is received from legitimate sources other than financial institutions. A waiter would be hard pressed to produce documentary evidence of his interest in tip money. Beyond this, the inserted language gives seizing agencies too much discretion to reject claims because the documentary evidence is incomplete or otherwise unsatisfactory, and prior experience tells us that agencies may exercise their discretion to deny claims arbitrarily. The requirement that claims be certified as non-frivolous is also problematic. If an uncounseled claimant certifies in good faith that his claim is not frivolous, and a court ultimately determines otherwise, would the claimant be put at risk of a perjury prosecution? Even the threat of such risks puts additional burdens on claimants and may dissuade claimants from filing claims. In sum, the inserted language has the potential to deter valid claims as well as frivolous claims, and it is unnecessary: Frivolous claims will be dismissed anyway, when the claimant is unable to meet his burden of establishing standing. For these reasons, I had objected to insertion of this language and approved a substitute amendment that did not contain this problematic insert. Moreover, the version of that substitute amendment ``ordered reported'' by the Judiciary Committee and in the Committee's official files simply does not contain that problematic insert. We rely every day on each other and on the professionalism of our staffs. Having raised my concern about the change as soon as it was discovered, I am pleased that Chairman Hatch and Senator Sessions have worked with me to pass a correction to the law that strikes the language that was added without agreement. I hope that the House will move quickly to pass the Paul Coverdell National Forensic Sciences Improvement Act, as amended, before it winds up its work for the year. Amendment No. 4345

Mr. LEAHY

Mr. LEAHY. Mr. President, earlier I had mentioned Robin Cleveland and Tim Rieser. I also want to thank Jennifer Chartrand and Billy Piper on the Republican side, who are always very helpful and did a superb job. On the Democratic side, Mark Lippert, who recently joined my staff from the Democratic Policy Committee, is mastering the Appropriations Committee process. I saw Jay Kimmitt on the floor earlier of the committee staff. Not only is he a good friend but a repository of all knowledge and the one to whom we can all turn when we need to know just how to get out of whatever mess we have stumbled into.

Mr. LEAHY. I would be happy to. As the Senator has correctly pointed out, the conference report includes a significant increase for child survival activities at USAID. AID is strongly encouraged to dedicate more recourses to the micronutrient programs.

Mr. LEAHY. Mr. President, I ask for the yeas and nays on final passage of the conference report.

Mr. LEAHY. Mr. President, I had to leave the floor for a moment. Am I correct that the continuing resolution will not be here for a 4:30 vote?

Mr. LEAHY. Mr. President, I am glad we are here. I commend Senator McConnell and also our counterparts in the House, Chairman Callahan and Mrs. Pelosi. The chairman, Senator McConnell, and I have worked closely together on this bill. In the same way I tried to accommodate those concerns of his side of the aisle, he has tried to do the same on our side. As a result, we have a good bipartisan bill. We tried to meet everyone's concerns without putting in unnecessary earmarks or taking away the appropriate flexibility the President should have. We funded the President's important priorities, and I note that both sides of the aisle supported those. I am disappointed, of course, as I am sure the Senator from Kentucky is, with the amount of time it took to get here. Finally, we are here. Had it been left to the two of us, we could have finished this bill before the August recess, but while we were told to make sure the cars in the train would follow, we were not allowed in the engineer's seat to get it down the track. It is here now, and it is a good result. I am glad that we found an acceptable compromise on family planning that does not restrict what private organizations can do with their own private funds. That is only wise. After all, we have heard speeches forever from people here about how the government should get off the backs of individuals. We have finally agreed to do that. It was not easy. I give very high praise to Congresswoman Pelosi for her work on this. I am also pleased that we include $425 million, the Senate funding level for family planning. This is not money for abortions. No funds in this bill can be used for abortions. This is money for family planning. So many countries I have visited are among the poorest of the poor, and they tell me that reducing the rate of population growth is one of their highest priorities but they lack the money to do so. They also say that when they have money for family planning, the number of abortions in their country goes down. We provide adequate authority and funding for debt forgiveness. That had overwhelming support at the meeting the President had with Republicans and Democrats, members of the clergy across the ideological spectrum, representing all faiths and persuasions. I felt honored to be in that meeting. One of our Senate guest Chaplains that week, Father Claude Pomerleau of the University of Portland, accompanied me there. I thank him for his advice and help on this. I should also say that Father Pomerleau is my wife's brother, my brother-in-law. Even the President said that it was probably Father Pomerleau's recommendation that got me into the White House, rather than my position that got him in. In seriousness, on the issue of debt forgiveness, we want to help the world's poorest countries get out of debt. We also want to be sure they make the necessary economic reforms so they can stay out of debt in the future. It is not enough to say, look, we are going to pay your bills so you can get out of debt. It does nothing if then within a few years they are back in debt. We provided aid to Serbia, subject to important conditions relating to Serbia's cooperation with the War Crimes Tribunal. Chairman McConnell, myself, as well as Senator Biden and others, strongly support these conditions. The conditions do not take effect until March 31, 2001, and we do not intend the aid spigot to be opened wide before then. We expect the administration--this administration and the next one--to proceed cautiously. We will be watching, as appropriators, just how cautious they are. After all, administrations come and go, but the Appropriations Committee stays here, and we will be here to watch what is done next year. We want to support the new Serbian Government, but only if it is truly democratic and respects the rights of its neighbors and also the rights of minorities. We expect the administration to treat the apprehension and prosecution of war criminals as a priority. I am pleased with the amount of funds for HIV/AIDS. It is a $100 million increase above last year's level. We provided up to $50 million for child immunization, and substantial increases for programs to combat TB, malaria, and other infectious diseases. There are a lot of other provisions I could mention, from restrictions on assistance for Peru--we did that because of the recent efforts to subvert democracy there. We hear the President of Peru make promises, but then take actions that belie what he has said. We put in additional funding for refugees. Unfortunately, we know that the reality throughout the world today is that there are more and more refugees. However, I strongly object to one House provision that was included. And I told the conferees that I objected. It is a $5.2 million earmark for AmeriCares. This is a private organization that does work in Latin America and other places. I cannot recall a single instance--certainly not since 1989, when I became chairman of the Foreign Operations Subcommittee; nor in the 5 years I have been ranking member, and the Senator from Kentucky has been chairman--when we have earmarked funds for a private organization such as this. It was done here, as I understand it, because a 6-year, $5.2 million proposal of AmeriCares was rejected by AID. According to AID, the proposal was too high-tech to be sustainable in the country in question, and because some of the work was already being done by others. I suspect it was a proposal which would buy a lot of expensive equipment from some manufacturer somewhere but might not be something appropriate for that country. Although AID suggested to AmeriCares that they submit a revised proposal, AmeriCares opted instead to seek a congressional earmark, ignoring the usual practice, and basically saying: Just give us the money. We will decide what to do with it. I have no opinion on the merits of their proposal. But if you are going to be applying for Federal funds, you ought to follow the same rules everybody else does. There are literally hundreds of PVOs that submit requests to AID, and many are rejected--some because they do not make sense, and others because there is not the money to fund them. Are we now going to give those other dissatisfied PVOs their own earmarks? It is a terrible precedent. It does not belong in this bill. I will give you an example. I have fought to ban landmines all over the world. We have the Leahy War Victims Fund that spends millions of dollars every year for landmine victims. I wrote the legislation that was the first piece of legislation ever in any country to ban the export of landmines. There are many NGOs and PVOs--that is, nongovernmental organizations and private voluntary organizations--that have come in and worked to get rid of landmines and care for landmine victims. Some are funded through the foreign aid bill or the defense appropriations bill. Some are funded through private donations that they raise. Many contact me because of my identification with this and say: Could I get Federal funding? One of the nice things is that a lot of these--they are screened just before the money goes out. But can you imagine how it would be if we simply gave them the money just because it was requested by a Senator who wants to eradicate landmines? It has always been my view we should let the experts judge the merits of these proposals, rather than just hand over the money to whichever organizations have the most political clout. Some have complained--and I heard this morning--that this is a Republican bill. Others have said it is a Democratic bill. They are both wrong. Neither side got everything they wanted. There were significant compromises on funding and on policy by both sides. That is as it should be, especially for a bill that deals with foreign policy. And that is why I am proud to be here with the Senator from Kentucky, because we should not have a Republican foreign policy or a Democratic foreign policy. We should have a foreign policy that represents the interests of the United States. We have had somewhat of an uneven record since the time when Senator Vandenberg spoke about ``politics ending at the water's edge.'' But on this bill, at least, Republicans and Democrats have come together. It is interesting, too, because the Subcommittee on Foreign Operations of the Appropriations Committee has probably the smallest staff of any committee around here--on the Republican side, with Robin Cleveland, and Tim Rieser on our side, aided by just a couple of people whom I will mention later--to put this together. We don't have huge armies of people to help us, but maybe that is just as well because as a result, in the end, Senators talk to Senators. That is the best way to do things around here. I see the Senator from Utah is on the floor. I yield the floor and retain the remainder of my time.

Mr. LEAHY. I ask the distinguished Senator from Kentucky, would it be his intention, once all time is finished or yielded back, to go to a rollcall vote on this bill?

Mr. LEAHY. Yes, I would be happy to work for the Senator.

Mr. LEAHY. I would be delighted to do so with the distinguished Senator from Maryland, a member of the subcommittee.

Mr. LEAHY. Yes, we have provided sufficient funds to fund polio eradication at the Senate level of $30 million.

Mr. LEAHY. Mr. President, if the Senator will yield, I also yield back the time of the distinguished senior Senator from West Virginia, Mr. Byrd.

Mr. LEAHY

Mr. LEAHY. Mr. President, all of us who knew him during his decade of service in Congress, and others who knew him only by reputation, mourn the recent passing of Gunn McKay. Gunn McKay was a leading member of the Committee on Appropriations in the other body and chaired the Subcommittee on Military Construction. He was effective. He knew how to lead and how to legislate. His voice was an influential voice on energy issues and military readiness and Federal land policy. And he knew how to bring people together to get things done. It was not politics that motivated Gunn McKay in his public service; it was people. He thrived in being able to help people get and keep good-paying jobs. He deeply, unequivocally believed that there is a role for government, through programs like Medicare and Social Security and in other ways, in helping those who struggle. Gunn achieved all of the good he accomplished in life through a deep- down and infectious optimism about people and about the future. More than being a great public servant, he was a good man. Those who worked with him will tell you that Gunn did not have a mean bone in his body. When he left public life Gunn and his wife, Donna, devoted much of their time to church service abroad. The Nation and its Congress are better for the fact that Gunn McKay served here. And so, certainly, are the people of his beloved State of Utah. I ask unanimous consent that an article from the Salt Lake Tribune about Gunn McKay be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I come to the floor once again to announce that Big Oil is beginning to release its third quarter profit reports and while the news is great for investors, it's not so great for American consumers. As American families have been paying sky-high prices at the gas pump and are bracing for record-high home heating costs this winter, the oil industry has been savoring phenomenal profits. Something is wrong when working families are struggling to pay for basic transportation and home heat while Big Oil rakes in obscene amounts of cash by the barrel. The overall net income for major petroleum companies more than doubled in the third quarter of 2000 relative to the third quarter of 1999. Let me illustrate the phenomenal profits of the oil industry for the past year when gasoline prices soared and heating oil stocks fell. In the third quarter of 2000, Chevron Corporation reported net profits of $1.53 billion, Exxon Mobil Corporation reported net profits of $4.29 billion, and Texaco reported net profits of $798 million. Compared to the third quarter of 1999, the profits in the third quarter of 2000 increased 163 percent for Chevron, 96 percent for Exxon Mobil, and 106 percent for Texaco. I ask unanimous consent that a chart of these statistics be printed in the Record. Not surprisingly, these multi-million and even multi-billion dollar profits are making record profits. Exxon Mobil executive Peter Townsend is quoted as saying: ``We've got a lot of cash around here. It's coming in pretty fast, flying through the door.'' And according to Fadel Gheit, an analyst with Fahnestock & Company: ``The fourth quarter could beat the third.'' There is no doubt that Big Oil reaped record profits while American consumers and small business owners dug deeper into their pockets to pay for soaring gasoline prices. And more record profits for Big Oil at the expense of consumers and small business owners are expected this winter when heating costs go through the roof. Mr. President, that is outrageous. Even more disturbing are the recent press reports that the major oil companies are not using their record profits to boost production and lower future prices, but are instead cutting back on exploration and production. Listen to this from a report in the Wall Street Journal: ``Exploration and production expenditures at the so-called super majors--Exxon Mobil Corp., BP Amoco PLC, and Royal Dutch/Shell Group-- fell 20 percent to $6.91 billion in the first six months of the year from a year earlier. . . .'' The investment firm UBS Warburg in London estimated this month that the surplus cash of the top 10 global energy companies will total $40 billion this year and grow to $130 billion by the end of 2004. The companies, Warburg predicts, will use about two-thirds of the surplus to repurchase stock to bolster market price, and one-third to reduce debt. Indeed, last week Texaco and Chevron agreed to merge with Chevron paying $35.1 billion to acquire Texaco. Well I for one have had enough of Big Oil making record profits at the expense of the working families and the small business owners who pay the oil bills, live by the rules and struggle mightily when fuel and heating costs skyrocket. On September 27, 2000, I introduced S. 3118, the Windfall Oil Profits For Heating Assistance Act of 2000. My legislation imposes a windfall profits assessment on the oil industry to fund heating help for consumers and small business owners across America. In true arrogance to the needs of Americans struggling to heat their homes, John Felmy of the American Petroleum Institute has publicly stated: ``The profits aren't owned by consumers, they're owned by the shareholders. The companies have to do what's appropriate for owners of the enterprise.'' The oil industry is made up of corporations formed under the laws of the United States. These oil industry corporations have a responsibility to the public good as well as their shareholders. To reap record windfall profits and then cut back on exploration and production to further increase future profits is poor corporate citizenship and an abuse of the public trust by these oil industry corporations and their executives. In response to the energy crisis of the 1980s, Congress enacted the Crude Oil Windfall Profit Tax Act of 1980. This windfall profits tax, which was repealed in 1988, funded low-income fuel assistance and energy and transportation programs. Similar to the early 1980s, American families again face an energy crisis of high prices and record oil company profits. This past June, gasoline prices hit all-time highs across the United States, with a national average of $1.68 a gallon, according to the Energy Information Administration. This winter, the Department of Energy estimates that heating oil inventories are 36 percent lower than last year with heating oil inventories in New England estimated to be 65 percent lower than last year. In my home state of Vermont, energy officials estimate heating oil costs will jump to $1.31 per gallon, up from $1.19 last winter and 80 cents in 1998. Given the oil industry's record windfall profits in the face of this energy crisis, it is time for Congress to act and again limit the windfall profits of Big Oil. My bill would do just that and dedicate the revenue generated from this windfall profits adjustment to help working families and small business owners with their heating oil costs this winter. Specifically, the Windfall Oil Profits For Heating Assistance Act of 2000 would impose a 100 percent assessment on windfall profits from the sale of crude oil. My legislation builds on the current investigation by the Federal Trade Commission into the pricing and profits of the oil industry. The bill requires the Federal Trade Commission to expand this investigation to determine if the oil industry is reaping windfall profits. The revenue collected from windfall oil industry profits, under my legislation, would be dedicated to two separate accounts in the Treasury for the following: 75 percent of the revenues to fund heating assistance programs for consumers such as the Low Income Home Energy Assistance Program (LIHEAP), weatherization and other energy efficiency programs; and 25 percent of the revenues to fund heating assistance programs for small business owners. American consumers and small business owners continue to pay sky-high gasoline prices and home heating oil costs are expected to hit an all- time high this winter while U.S. oil corporations reap more record profits. It is time for Congress to restore some basic fairness to the marketplace. It is time for Congress to transfer the windfall profits from Big Oil to fund heating oil assistance for working families. I urge my colleagues to support the Windfall Oil Profits For Heating Assistance Act of 2000. Mr. President, I ask that the chart to which I referred, be printed in the Record.

Mr. LEAHY

Mr. LEAHY. I am pleased that the House of Representatives tonight approved the Bulletproof Vest Partnership Grant Act of 2000, S. 2413, and sent it to the president for his signature. President Clinton has already endorsed this legislation to support our nation's law enforcement officers and is eager to sign it into law. Senator Campbell and I introduced this bipartisan bill on April 12, 2000. The Senate Judiciary Committee passed our bill unanimously on June 29. For the past four months, we have been urging passage of the Bulletproof Vest Partnership Grant Act of 2000. The Senate finally passed our bipartisan bill on October 11, 2000 by unanimous consent. I want to thank Senators Hatch, Schumer, Kohl, Thurmond, Reed, Jeffords, Robb, Reid, Sarbanes, Bingaman, Ashcroft, Edwards, Bunning, Cleland, Hutchison, Abraham and Grams for cosponsoring and supporting our bipartisan bill. To better protect our Nation's law enforcement officers, Senator Campbell and I introduced the Bulletproof Vest Partnership Grant Act of 1998. President Clinton signed our legislation into law on June 16, 1998, pubic law 105-181. That law created a $25 million, 50 percent matching grant program within the Department of Justice to help state and local law enforcement agencies purchase body armor for fiscal years 1999-2001. According to the Federal Bureau of Investigation, more than 40 percent of the 1,182 officers killed by a firearm in the line of duty since 1980 could have been saved if they had been wearing body armor. Indeed, the FBI estimates that the risk of fatality to officers while not wearing body armor is 14 times higher than for officers wearing it. In its two years of operation, the Bulletproof Vest Partnership Grant Program funded more than 325,000 new bulletproof vests for our nation's police officers, including more than 536 vests for Vermont police officers with federal grant funds of $140,253 for Vermont law enforcement agencies. More information about the Bulletproof Vest Partnership Grant Program is available at the program's web site at http://vests.ojp.gov/. The entire process of submitting applications and obtaining federal funds is completed through this web site. The Bulletproof Vest Partnership Grant Act of 2000 builds on the success of this program by doubling its annual funding to $50 million for fiscal years 2002-2004. It also improves the program by guaranteeing jurisdictions with fewer than 100,000 residents receive the full 50-50 matching funds because of the tight budgets of these smaller communities. In addition, under the Leahy-Campbell floor amendment to this bill, the purchase of stab-proof vests will be eligible for grant awards to protect corrections officers and sheriffs who face violent criminals in close quarters in local and county jails. More than ever before, police officers in Vermont and around the country face deadly threats that can strike at any time, even during routine traffic stops. Bulletproof vests save lives. It is essential the we update this law so that many more of our officers who are risking their lives everyday are able to protect themselves. In the last Congress, we created the Bulletproof Vest Partnership Grant Program in part in response to the tragic Drega incident along the Vermont and New Hampshire border. On August 19, 1997, Federal, State and local law enforcement authorities in Vermont and New Hampshire had cornered Carl Drega, after hours of hot pursuit. This madman had just shot to death two New Hampshire state troopers and two other victims earlier in the day. In a massive exchange of gunfire with the authorities, Drega lost his life. During that shootout, all federal law enforcement officers wore bulletproof vests, while some state and local officers did not. For example, Federal Border Patrol Officer John Pfeifer, a Vermonter, who was seriously wounded in the incident. If it was not for his bulletproof vest, I would have been attending Officer Pfeifer's wake instead of visiting him, and meeting his wife and young daughter in the hospital a few days later. I am relieved that Officer John Pfeifer is doing well and is back on duty today. The two New Hampshire state troopers who were killed by Carl Drega were not so lucky. They were not wearing bulletproof vests. Protective vests might not have been able to save the lives of those courageous officers because of the high-powered assault weapons used by this madman. We all grieve for the two New Hampshire officers who were killed. Their tragedy underscore the point that all of our law enforcement officers, whether federal, state or local, deserve the protection of a bulletproof vest. With that and lesser-known incidents as constant reminders, I will continue to do all I can to help prevent loss of life among our law enforcement officers. The Bulletproof Vest Partnership Grant Act of 2000 will provide state and local law enforcement agencies with more of the assistance they need to protect their officers. Our bipartisan legislation enjoys the endorsement of many law enforcement organizations, including the Fraternal Order of Police and the National Sheriffs' Association. In my home State of Vermont, the bill enjoys the strong support of the Vermont State Police, the Vermont Police Chiefs Association and many Vermont sheriffs, troopers, game wardens and other local and state law enforcement officials. Since my time as a State prosecutor, I have always taken a keen interest in law enforcement in Vermont and around the country. Vermont has the reputation of being one of the safest states in which to live, work and visit, and rightly so. In no small part, this is due to the hard work of those who have sworn to serve and protect us. And we should do what we can to protect them, when a need like this one comes to our attention. Our Nation's law enforcement officers put their lives at risk in the line of duty everyday. No one knows when danger will appear. Unfortunately, in today's violent world, even a traffic stop may not necessarily be ``routine.'' Each and every law enforcement officer across the nation deserves the protection of a bulletproof vest. Mr. President, I look forward to President Clinton signing this life- saving legislation into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased that the Senate is passing S. 3137, the James Madison Commemoration Commission Act. I was an original cosponsor of this legislation, which will establish a bipartisan commission to recognize the life and accomplishments of James Madison on the 250th anniversary of his birth, March 16, 2001. Among his many accomplishments, James Madison was the primary author of the U.S. Constitution, a document so brilliantly constructed that it has been amended only 27 times in our Nation's history. The first 10 amendments were ratified as our Bill of Rights in 1791, over two centuries ago. There have been just 17 additional amendments. Our tribute to the Father of the Constitution comes in the same year that the Senate defeated no less than three ill-conceived proposals to amend his handiwork. I am proud that we were good stewards of the Constitution, and that the anniversary of Madison's birth will truly be a cause for celebration.

Mr. LEAHY

Mr. LEAHY. Mr. President, I rise today to express my strong support for S. 1898, the Interstate Transportation of Dangerous Criminals Act, also known as ``Jeanna's bill.'' I worked with Senator Dorgan in developing this legislation, which passed the Judiciary Committee in September with unanimous bipartisan support. I praise Senator Dorgan's leadership, and am proud to be an original cosponsor. Kyle Bell was sentenced to life in prison for the brutal murder of 11-year old Jeanna North. On October 13, 1999, Bell escaped, while being transferred interstate by a private prisoner transport company. He picked the locks on his handcuffs and leg irons, and slipped off the bus while it was stopped for gas in New Mexico. He was wearing his own street clothes and shoes. The guards did not notice that Bell was missing until nine hours later, and then delayed in notifying New Mexico authorities. Kyle Bell's escape is not an isolated case. In recent years, there have been several escapes by violent criminals when vans operated by private prisoner transport companies broke down or guards fell asleep on duty. There have also been an alarming number of traffic accidents in which prisoners were seriously injured or killed because drivers were tired, inattentive or poorly trained. Privatization of prisons and prisoner transportation services may be cost efficient, but public safety must come first. Jeanna's bill, S.1898, requires the Attorney General to establish some basic, common- sense guidelines for private companies that transport violent criminals across State lines, including: minimum standards for pre-employment background checks; minimum standards for training employees; minimum standards for the identification, restraint, and safety of violent prisoners; and a requirement that private prisoner transport companies notify local law enforcement in advance of any stops in their jurisdiction. A violation is punishable by a $10,000 fine, plus restitution for the cost of re-capturing any violent prisoner who escapes as the result of such violation. This should create a healthy incentive for companies to abide by the regulations and operate responsibly. As Senator Dorgan has pointed out, a company hauling hazardous waste, cattle, or even circus animals has to meet certain minimum standards. Yet there are no requirements for hauling violent criminals around the country. Jeanna's bill has been endorsed by a wide range of law enforcement and victims' rights groups, including the National Sheriff's Association, the National Association of Police Organizations, the Fraternal Order of Police, the California Correctional Peace Officers Association, the New York Correctional Officers and Police Benevolent Association, the National Organization of Parents of Murdered Children, the KlassKids Foundation, and many others. It will go a long way toward preventing more violent criminals from escaping. I am pleased that the Senate is finally passing this important legislation, and urge the House of Representatives to do the same.

Mr. LEAHY

Mr. LEAHY. Mr. President, today we consider four bipartisan bills offered together as a package: the Public Safety Officer Medal of Valor Act, H.R. 46, the Computer Crime Enforcement Act, which I introduced as S. 1314, on July 1, 1999, with Senator DeWine and is now also co- sponsored by Senators Robb, Hatch and Abraham; a Hatch-Leahy-Schumer ``Internet Security Act'' amendment; and a Bayh-Grams-Leahy-Cleland ``Protecting Seniors from Fraud Act'' amendment. I thank my colleagues for their hard work on these pieces of legislation, each of which I will discuss in turn. I support the Public Safety Officer Medal of Valor. I cosponsored the Stevens bill, S. 39, to establish a Public Safety Medal of Valor Act. In April and May, 1999, I made sure that the Senate acted on Senator Stevens' bill, S. 39. On April 22, 1999, the Senate Judiciary Committee took up that measure in regular order and reported it unanimously. At that time I congratulated Senator Stevens and thanked him for his leadership. I noted that we had worked together on a number of law enforcement matters and that the senior Senator from Alaska is a stalwart supporter of the men and women who put themselves at risk to protect us all. I said that I looked forward to enactment of this measure and to seeing the extraordinary heroism of our police, firefighters and correctional officers recognized with the Medal of Valor. In May, 1999, I was privileged to be on the floor of the Senate when we proceeded to consider S. 39 and passed it unanimously. I took that occasion to commend Senator Stevens and all who had worked so hard to move this measure in a timely way. That was over one year ago, during National Police Week last year. The measure was sent to the House where it lay dormant for over the rest of last year and most of this one. The President of the United States came to Capitol Hill to speak at the Law Enforcement Officers Memorial Service on May 15, 2000, and said on that occasion that if Congress would not act on the Medal of Valor, he was instructing the Attorney General to explore ways to award such recognition by Executive action. Unfortunately, these calls for action did not waken the House from its slumber on this matter and the House of Representatives refused to pass the Senate-passed Medal of Valor bill. Instead, over the past year, the House has insisted that the Senate take up, fix and pass the House-passed version of this measure if it is to become law. House members have indicated that they are now prepared to accept the Senate- passed text, but insist that it be enacted under the House bill number. In order to get this important measure to the President, that is what we are doing today. We are discharging the House-passed version of that bill, H.R. 46, from the Judiciary Committee, adopting a complete substitute to bring it into conformance with the Stevens bill, S. 39, and sending it back to the House. Senator Stevens' version of this bill which I cosponsored is preferable to the House-passed bill, H.R. 46, and I am pleased that the version we pass today conforms to the Senate version. For example, the House-passed version would limit the number of possible recipients of the Medal of Valor to 5 in any given year. The Stevens bill had allowed for up to 10 in any year. There is no requirement that the Board select the maximum possible recipients in any year, but I fear that 5 may be an artificially low ceiling for extraordinary valor across this country. I would not want officers from rural areas to be slighted because of such a low number. I would not want firefighters or correctional officers to be slighted. In addition, I can imagine a year where an incident involves a group of officers, maybe even a group numbering more than 5, and recognition of those involved in a single incident could consume all 5 of the awards allowed by the substitute that year and leave others, even others from that incident, without recognition. I believe that the Senate had it right the first time and is getting it right in the version we pass today. In addition, the House-passed version omits any reference to a role for the Board in the creation of criteria and procedures for recommendations of nominees. The Senate-passed bill would have required the concurrence of the Board in the National Medal of Valor Office's establishing of those criteria. Again, I believe the Senate had it right and that is the version we pass today. I hope that the proponents of proceeding in this manner and of making these changes in the language of the bill will explain to the Senate and the American people why we have had to wait over a year for action, why the Senate is being asked to act a second time on a bill strikingly similar to S. 39 but under a House number, and why each of these changes are necessary. I wish the House would have just passed S. 39. The information age is filled with unlimited potential for good, but it also creates a variety of new challenges for law enforcement. A recent survey by the FBI and the Computer Security Institute found that 62 percent of information security professionals reported computer security breaches in the past year. These breaches in computer security resulted in financial losses of more than $120 million from fraud, theft of information, sabotage, computer viruses, and stolen laptops. Computer crime has become a multi-billion dollar problem. Many of us have worked on these issues for years. In 1984, we passed the Computer Fraud and Abuse Act to criminalize conduct when carried out by means of unauthorized access to a computer. In 1986, we passed the Electronic Communications Privacy Act, ECPA, which I was proud to sponsor, to criminalize tampering with electronic mail systems and remote data processing systems and to protect the privacy of computer users. In 1994, the Violent Crime Control and Law Enforcement Act included the Computer Abuse Amendments which I authored to make illegal the intentional transmission of computer viruses. In the 104th Congress, Senators Kyl, Grassley and I worked together to enact the National Information Infrastructure Protection Act to increase protection under federal criminal law for both government and private computers, and to address an emerging problem of computer-age blackmail in which a criminal threatens to harm or shut down a computer system unless their extortion demands are met. In the 105th Congress, Senators Kyl and I also worked together on criminal copyright amendments that became law to enhance the protection of copyrighted works online. The Congress must be constantly vigilant to keep the law up-to-date with technology. The Computer Crime Enforcement Act, S. 1314, and the Hatch-Leahy-Schumer ``Internet Security Act'' amendment are part of that ongoing effort. These complementary pieces of legislation reflect twin-track progress against computer crime: More tools at the federal level and more resources for local computer crime enforcement. The fact that this is a bipartisan effort is good for technology policy. But make no mistake about it: even with passage of this legislation, there is more work to be done--both to assist law enforcement and to safeguard the privacy and other important constitutional rights of our citizens. I wish that the Congress had also tackled online privacy in this session, but that will now be punted into the next congressional session. The legislation before us today does not attempt to resolve every issue. For example, both the Senate and the House held hearings this session about the FBI's Carnivore program. Carnivore is a computer program designed to advance criminal investigations by capturing information in Internet communications pursuant to court orders. Those hearings sparked a good debate about whether advances in technology, like Carnivore, require Congress to pass new legislation to assure that our private Internet communications are protected from government over- reaching while protecting the government's right to investigate crime. I look forward to our discussion of these privacy issues in the next Congress. The Computer Crime Enforcement Act is intended to help states and local agencies in fighting computer crime. All 50 states have now enacted tough computer crime control laws. They establish a firm groundwork for electronic commerce, an increasingly important sector of the nation's economy. Unfortunately, too many state and local law enforcement agencies are struggling to afford the high cost of enforcing their state computer crime statutes. Earlier this year, I released a survey on computer crime in Vermont. My office surveyed 54 law enforcement agencies in Vermont--43 police departments and 11 State's attorney offices--on their experience investigating and prosecuting computer crimes. The survey found that more than half of these Vermont law enforcement agencies encounter computer crime, with many police departments and state's attorney offices handling 2 to 5 computer crimes per month. Despite this documented need, far too many law enforcement agencies in Vermont cannot afford the cost of policing against computer crimes. Indeed, my survey found that 98 percent of the responding Vermont law enforcement agencies do not have funds dedicated for use in computer crime enforcement. My survey also found that few law enforcement officers in Vermont are properly trained in investigating computer crimes and analyzing cyber-evidence. According to my survey, 83 percent of responding law enforcement agencies in Vermont do not employ officers properly trained in computer crime investigative techniques. Moreover, my survey found that 52 percent of the law enforcement agencies that handle one or more computer crimes per month cited their lack of training as a problem encountered during investigations. Without the necessary education, training and technical support, our law enforcement officers are and will continue to be hamstrung in their efforts to crack down on computer crimes. I crafted the Computer Crime Enforcement Act, S. 1314, to address this problem. The bill would authorize a $25 million Department of Justice grant program to help states prevent and prosecute computer crime. Grants under our bipartisan bill may be used to provide education, training, and enforcement programs for local law enforcement officers and prosecutors in the rapidly growing field of computer criminal justice. Our legislation has been endorsed by the Information Technology Association of America and the Fraternal Order of Police. This is an important bipartisan effort to provide our state and local partners in crime-fighting with the resources they need to address computer crime. The Internet Security Act of 2000 makes progress to ensure that we are properly dealing with the increase in computer crime. I thank and commend Senators Hatch and Schumer for working with me and other Members of the Judiciary Committee to address some of the serious concerns we had with the first iteration of their bill, S. 2448, as it was originally introduced. Specifically, as introduced, S. 2448 would have over-federalized minor computer abuses. Currently, federal jurisdiction exists for a variety of computer crimes if, and only if, such criminal offenses result in at least $5,000 of damage or cause another specified injury, including the impairment of medical treatment, physical injury to a person or a threat to public safety. S. 2448, as introduced, would have eliminated the $5,000 jurisdictional threshold and thereby criminalized a variety of minor computer abuses, regardless of whether any significant harm resulted. For example, if an overly-curious college sophomore checks a professor's unattended computer to see what grade he is going to get and accidently deletes a file or a message, current Federal law does not make that conduct a crime. That conduct may be cause for discipline at the college, but not for the FBI to swoop in and investigate. Yet, under the original S. 2448, as introduced, this unauthorized access to the professor's computer would have constituted a federal crime. Another example is that of a teenage hacker, who plays a trick on a friend by modifying the friend's vanity Web page. Under current law, no federal crime has occurred. Yet, under the original S. 2448, as introduced, this conduct would have constituted a federal crime. As America Online correctly noted in a June, 2000 letter, ``eliminating the $5,000 threshold for both criminal and civil violations would risk criminalizing a wide range of essentially benign conduct and engendering needless litigation. . . .'' Similarly, the Internet Alliance commented in a June, 2000 letter that ``[c]omplete abolition of the limit will lead to needless federal prosecution of often trivial offenses that can be reached under state law. . . .'' Those provisions were overkill. Our federal laws do not need to reach each and every minor, inadvertent and harmless computer abuse--after all, each of the 50 states has its own computer crime laws. Rather, our federal laws need to reach those offenses for which federal jurisdiction is appropriate. Prior Congresses have declined to over-federalize computer offenses as proposed in S. 2448, as introduced, and sensibly determined that not all computer abuses warrant federal criminal sanctions. When the computer crime law was first enacted in 1984, the House Judiciary Committee reporting the bill stated: the Federal jurisdictional threshold is that there must be $5,000 worth of benefit to the defendant or loss to another in order to concentrate Federal resources on the more substantial computer offenses that affect interstate or foreign commerce. (H. Rep. 98-894, at p. 22, July 24, 1984). Similarly, the Senate Judiciary Committee under the chairmanship of Senator Thurmond, rejected suggestions in 1986 that ``the Congress should enact as sweeping a Federal statute as possible so that no computer crime is potentially uncovered.'' (S. Rep. 99-432, at p. 4, September 3, 1986). The Hatch-Leahy-Schumer substitute amendment to S. 2448, which was reported unanimously by the Judiciary Committee on October 5th, addresses those federalism concerns by retaining the $5,000 jurisdictional threshold in current law. That Committee-reported substitute amendment, with the additional refinements reflected in the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46, which the Senate considers today, makes other improvements to the original bill and current law, as summarized below. First, titles II, III, IV and V of the original bill, S. 2448, about which various problems had been raised, are eliminated. For example, title V of the original bill would have authorized the Justice Department to enter into Mutual Legal Assistance Treaties (MLAT) with foreign governments that would allow the Attorney General broad discretion to investigate lawful conduct in the U.S. at the request of foreign governments without regard to whether the conduct investigated violates any Federal computer crime law. In my view, that discretion was too broad and troubling. Second, the amendment includes an authorization of appropriations of $5 million to the Computer Crime and Intellectual Property (CCIP) section within the Justice Department's Criminal Division and requires the Attorney General to make the head of CCIP a ``Deputy Assistant Attorney General,'' which is not a Senate-confirmed position, in order to highlight the increasing importance and profile of this position. This authorized funding level is consistent with an amendment I sponsored and circulated to Members of the Judiciary Committee to improve S. 2448 and am pleased to see it incorporated into the Internet Security Act amendment to H.R. 46. Third, the amendment modifies section 1030 of title 18, United States Code, in several important ways, including providing for increased and enhanced penalties for serious violations of federal computer crime laws, clarifying the definitions of ``loss'' to ensure that the full costs to a hacking victim are taken into account and of ``protected computer'' to facilitate investigations of international computer crimes affecting the United States, and preserving the existing $5,000 threshold and other jurisdictional prerequisites for violations of section 1030(a)(5)--i.e., no Federal crime has occurred unless the conduct (1) causes loss to 1 or more persons during any 1-year period aggregating at least $5,000 in value, (2) impairs the medical care of another person, (3) causes physical injury to another person, (4) threatens public health or safety, or (5) causes damage affecting a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security. The amendment clarifies the precise elements of the offense the government must prove in order to establish a violation by moving these prerequisites from the current definition of ``damage'' to the description of the offense. In addition, the amendment creates a new category of felony violations where a hacker causes damage to a computer system used by or for a government entity in furtherance of the administration of justice, national defense, or national security. Currently, the Computer Fraud and Abuse Act provides for federal criminal penalties for those who intentionally access a protected computer or cause an unauthorized transmission to a protected computer and cause damage. ``Protected computer'' is defined to include those that are ``used in interstate or foreign commerce.'' See 18 U.S.C. 1030(e)(2)(B). The amendment would clarify the definition of ``protected computer'' to ensure that computers which are used in interstate or foreign commerce but are located outside of the United States are included within the definition of ``protected computer'' when those computers are used in a manner that affects interstate or foreign commerce or communication of this country. This will ensure that our government will be able to conduct domestic investigations and prosecutions against hackers from this country who hack into foreign computer systems and against those hacking through the United States to other foreign venues. Moreover, by clarifying the fact that a domestic offense exists, the United States will be able to use speedier domestic procedures in support of international hacker cases, and create the option of prosecuting such criminals in the United States. The amendment also adds a definition of ``loss'' to the Computer Fraud and Abuse Act. Current law defines the term ``damage'' to include impairment of the integrity or availability of data, programs, systems or information causing a ``loss aggregating at least $5,000 in value during any 1-year period to one or more individuals.'' See 18 U.S.C. Sec. 1030(e)(8)(A). The new definition of ``loss'' to be added as section 1030(e)(11) will ensure that the full costs to victims of responding to hacking offenses, conducting damage assessments, restoring systems and data to the condition they were in before an attack, as well as lost revenue and costs incurred because of an interruption in service, are all counted. This statutory definition is consistent with the definition of ``loss'' appended by the U.S. Sentencing Commission to the Federal Sentencing Guidelines (see U.S.S.G. Sec. 2B1.1 Commentary, Application note 2), and will help reconcile procedures by which prosecutors value loss for charging purposes and by which judges value loss for sentencing purposes. Getting this type of true accounting of ``loss'' is important because loss amounts can be used to calculate restitution and to determine the appropriate sentence for the perpetrator under the sentencing guidelines. Fourth, subsection 3(e) of the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 clarifies the grounds for obtaining damages in civil actions for violations of the Computer Fraud and Abuse Act. Current law authorizes a person who suffers ``damage or loss'' from a violation of section 1030 to sue the violator for compensatory damages or injunctive or other equitable relief, and limits the remedy to ``economic damages'' for violations ``involving damage as defined in subsection (e)(8)(A),'' relating to violations of 1030(a)(5) that cause loss aggregating at least $5,000 during any 1-year period. To take account of both the new definition of ``loss'' and the incorporation of this jurisdictional threshold into the description of the offense (rather than the current definition of ``damage''), the amendment strikes the reference to subsection (e)(8)(A) in the current civil action provision and retains Congress' previous intent to allow civil plaintiffs only economic damages for violations of section 1030(a)(5) that do not also affect medical treatment, cause physical injury, threaten public health and safety or affect computer systems used in furtherance of the administration of justice, the national defense or national security. The Congress provided this civil remedy in the 1994 amendments to the Act, which I originally sponsored with Senator Gordon Humphrey, to enhance privacy protection for computer communications and the information stored on computers by encouraging institutions to improve computer security practices, deterring unauthorized persons from trespassing on computer systems of others, and supplementing the resources of law enforcement in combating computer crime. [See The Computer Abuse Amendments Act of 1990: Hearing Before the Subcomm. On Technology and the Law of the Senate Comm. On the Judiciary, 101st Cong., 2nd Sess., S. Hrg. 101-1276, at pp. 69, 88, 92 (1990); see also Statement of Senator Humphrey, 136 Cong. Rec. S18235 (1990) (``Given the Government's limited capacity to pursue all computer crime cases, the existence of this limited civil remedy will serve to enhance deterrence in this critical area.'')]. The ``new, civil remedy for those harmed by violations of the Computer Fraud and Abuse Act'' was intended to ``boost the deterrence of the statute by allowing aggrieved individuals to obtain relief.'' [S. Rep. No. 101-544, 101st Cong., 2d Sess., p. 6-7 ( 1990); see also Statement of Senator Leahy, 136 Cong. Rec. S18234 (1990)]. We certainly and expressly did not want to ``open the floodgates to frivolous litigation.'' [Statement of Senator Leahy, 136 Cong. Rec. S4614 (1990)]. At the time the civil remedy provision was added to the Computer Fraud and Abuse Act, this Act contained no prohibition against negligently causing damage to a computer through unauthorized access, reflected in current law, 18 U.S.C. Sec. 1030(a)(5)(C). That prohibition was added only with subsequent amendments made in 1996, as part of the National Information Infrastructure Protection Act. Nevertheless, the civil remedy has been interpreted in some cases to apply to the negligent manufacture of computer hardware or software. Most notably See, e.g., Shaw v. Toshiba America Information Systems, Inc., NEC, 91 F. Supp. 2d 926 (E.D. TX 1999) (court interpreted the term transmission to include sale of computers with a minor design defect). The Hatch-Leahy-Schumer Internet Security Act amendment adds a new sentence clarifying that civil actions may not be brought ``for the negligent design or manufacture of computer hardware, computer software, or firmware.'' This change should ensure that the civil remedy is a robust option for private enforcement actions, while limiting its applicability to cases that are more appropriately governed by contractual warranties, state tort law and consumer protection laws. Fifth, sections 104 and 109 of the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 authorize criminal and civil forfeiture of computers, equipment, and other personal property used to violate the Computer Fraud and Abuse Act, as well as real and personal property derived from the proceeds of computer crime. Property, both real and personal, which is derived from proceeds traceable to a violation of section 1030, is currently subject to both criminal and civil forfeiture. See 18 U.S.C. Sec. 981(a)(1)(C) and 982(a)(2)(B). Thus, the amendment would clarify in section 1030 itself that forfeiture applies and extend the application of forfeiture to property that is used or intended to be used to commit or to facilitate the commission of a computer crime. In addition, to deter and prevent piracy, theft and counterfeiting of intellectual property, the section 109 of the amendment allows forfeiture of devices, such as replicators or other devices used to copy or produce computer programs to which counterfeit labels have been affixed. The forfeiture amendments are based on the procedures set forth in section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. Sec. 853) and chapter 46 of title 18, as revised this year by the Civil Asset Forfeiture Reform Act of 2000, and thereby build in all of the existing due process protections in existing law. In particular, these provisions protect innocent property owners. Sections 104 and 109 subject to forfeiture only property which belongs to the person who knowingly violated the law, not innocent third parties whose property unbeknownst to them was used to violate the law. Under existing law, for example, a drug trafficker may avail herself of the facilities of a telephone company to communicate with her source of narcotics, send pager messages to drug confederates and signal the buyer by beeper when the sale is ready to be consummated, but the law does not authorize forfeiture of the facilities of the telephone company which was neither aware of nor intended the drug deal. Likewise, a rogue employee of an Internet access provider or other computer hacker or cyber-criminal will almost necessarily use the facilities of an Internet access provider to commit her violation, but Sections 104 and 109 do not authorize forfeiture of the provider's facilities simply because its facilities were used. The criminal forfeiture provision in section 104 specifically states that only the ``interest of such person,'' referring to the defendant who committed the computer crime, is subject to forfeiture. Moreover, the criminal forfeiture authorized by Sections 104 and 109 is made expressly subject to Section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, but subsection (d) of section 413 is expressly exempted from application to Section 104 and 109. That subsection (d) creates a rebuttable presumption of forfeiture in favor of the government where a person convicted of a felony acquired the property during the period that the crime was committed or within a reasonable time after such period and there was no likely source for such property other than the criminal violation. Thus, by making subsection (d) inapplicable, Sections 104 and 109 make it more difficult for the government to prove that the property should be forfeited. Chapter 46 of title 18, to which the civil forfeiture provision of section 104 is expressly made subject, provides property owners with important safeguards from unwarranted forfeitures and government overreaching. First, the civil forfeiture law states that ``[n]o property shall be forfeited . . . to the extent of the interest of an owner or lien holder by reason of any act or omission . . . to have been committed without the knowledge of that owner or lien holder.'' 18 U.S.C. Sec. 981(a)(2). Furthermore, the chapter puts the burden on the government to prove forfeiture by a preponderance of the evidence, permits courts to appoint counsel to represent indigent owners where the owner is represented by a court-appointed attorney in a related federal criminal case, and permits recovery of attorney fees and costs for property owners not appointed counsel if they substantially prevail on their claim. Sixth, the amendment contains certain provisions intended to deter computer crimes by juveniles. The amendment would permit federal prosecution, under 18 U.S.C. Sec. 5032, of juveniles as juveniles upon certification by the Attorney General, after investigation, that the offense charged is one of the most serious felonious violations of our federal computer crime laws and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction. The computer crime offenses that would qualify for federal prosecution of a juvenile offender as a juvenile are: violations of 1030(a)(1) (accessing a computer and obtaining information relating to national security with reason to believe the information could be used to the injury of the United States or to the advantage of a foreign nation and willfully retaining or transmitting that information or attempting to do so); (a)(2)(B) (intentionally accessing without authorization a federal government computer and obtaining information); (a)(3) (intentionally accessing without authorization a federal government computer and affecting the use by or for the government); and (a)(5)(A)(i) (knowingly causing the transmission of a program to intentionally cause damage without authorization to a protected computer). The amendment would also authorize a judge to exercise discretion and impose as part of a sentence for a violation of the Computer Fraud and Abuse Act termination of or ineligibility for federal financial assistance for education at a post-secondary institution. The court is expressly authorized to reinstate such eligibility upon motion of the defendant. Unlike the version reported by the Judiciary Committee, the amendment does not require that prior delinquency adjudications of juveniles for violations of the Computer Fraud and Abuse Act be counted under the definition of ``conviction'' for purposes of enhanced penalties. This is an improvement that I urged since juvenile adjudications simply are not criminal convictions. Juvenile proceedings are more informal than adult prosecutions and are not subject to the same due process protections. Consequently, counting juvenile adjudications as a prior conviction for purposes of the recidivist sanctions under the amendment would be unduly harsh and unfair. In any event, prior juvenile delinquency adjudications are already subject to sentencing enhancements under certain circumstances under the Sentencing Guidelines. See, e.g., U.S.S.G. Sec. 411.2(d) (upward adjustments in sentences required for each juvenile sentence to confinement of at least sixty days and for each juvenile sentence imposed within five years of the defendant's commencement of instant offense). Seventh, section 108 of the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 would authorize the interception of wire and oral communications relating to computer fraud and abuse violations by expanding the enumerated list of predicate offenses that may support such authority to include felony violations of section 1030. Under current law, federal investigators and prosecutors have the authority to obtain an order for interception of electronic communications, such as e-mail, when investigating any felony, including a felony violation of Section 1030. Current law, however, does not permit federal investigators and prosecutors to intercept wire or oral communications in investigations of such crimes. Section 108 addresses this anomaly by adding felony violations of Section 1030 to the list of federal crimes for which federal law enforcement officials may seek evidence by intercepting wire or oral communications. Applications for such interception are to be governed by the same stringent Title III requirements that govern all such applications. See 18 U.S.C. Sec. 2510 et seq. Some have objected to this provision, questioning the necessity of adding computer crimes to the list of crimes for which interception of wire and oral communications are authorized since this provision would, for example, permit government wiretapping for some relatively minor computer felonies. I disagree. We have come to rely on computers for everything from banking and stock-trading to travel reservations to our most intimate personal conversations with friends and family. Opportunists are exploiting our reliance on computers to advance fraudulent schemes or just for the sport of disruption. We have seen the global havoc that is threatened by a lone hacker transmitting a single virus. Giving law enforcement a full complement of tools to fight computer crime serves to protect the security, confidentiality and privacy of our computer communications and stored electronic information. That there are some computer felonies that are less serious than other computer felonies that might not be as worthy of a wiretap is true of all felonies. The stringent procedural requirements for wiretaps and the investment in time and resources necessary to execute a wiretap within the bounds of the law provide incentive for law enforcement to make prudent use of this important investigative tool in computer fraud and abuse cases. Developments in technology have placed wire, oral and electronic communications on more equal footing in terms of frequency of use, expectation of privacy, and exploitation for criminal purposes. The law should recognize that more equal footing, particularly for electronic messages, and accord the same privacy safeguards to electronic communications as apply to both oral and wire communications. In fact, the Administration has proposed such changes in the legislation transmitted to the Congress in July, 2000 called the ``Enhancement of Privacy and Public Safety in Cyberspace Act.'' For example, the Administration's proposal would apply existing prerequisites for court- authorized wire communications, such as high-level official approval and investigation of an enumerated predicate offense (rather than any felony), to most electronic communications, such as e-mails and fax transmissions. Unfortunately, as I have noted, we have been unable to reach a consensus on privacy legislation in general or on this more specific instance where additional legislative attention is needed. These are matters that should be addressed. Eighth, the amendment changes a current directive to the Sentencing Commission enacted as section 805 of the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, that imposed a 6-month mandatory minimum sentence for any conviction of the sections 1030(a)(4) or (a)(5) of title 18, United States code. The Administration has noted that ``[i]n some instances, prosecutors have exercised their discretion and elected not to charge some defendants whose actions otherwise would qualify them for prosecution under the statute, knowing that the result would be mandatory imprisonment.'' Clearly, mandatory imprisonment is not always the most appropriate remedy for a federal criminal violation, and the ironic result of this ``get tough'' proposal has been to discourage prosecutions that might otherwise have gone forward. The amendment eliminates that mandatory minimum term of incarceration for misdemeanor and less serious felony computer crimes. Ninth, section 110 of the amendment directs the Sentencing Commission to review and, where appropriate, adjust sentencing guidelines for computer crimes to address a variety of factors, including to ensure that the guidelines provide sufficiently stringent penalties to deter and punish persons who intentionally use encryption in connection with the commission or concealment of criminal acts. The Sentencing Guidelines already provide for enhanced penalties when persons obstruct or impede the administration of justice, see U.S.S.G. Sec. 3C1.1, or engage in more than minimal planning, see U.S.S.G. Sec. 2B1.1(b)(4)(A). As the use of encryption technology becomes more widespread, additional guidance from the Sentencing Commission would be helpful to determine the circumstances when such encryption use would warrant a guideline adjustment. For example, if a defendant employs an encryption product that works automatically and transparently with a telecommunications service or software product, an enhancement for use of encryption may be not be appropriate, while the deliberate use of encryption as part of a sophisticated and intricate scheme to conceal criminal activity and make the offense, or its extent, difficult to detect, may warrant a guideline enhancement either under existing guidelines or a new guideline. Tenth, section 105 of the Hatch-Leahy-Schumer Internet Security Act amendment to H.R. 46 would eliminate certain statutory restrictions on the authority of the United States Secret Service (``Secret Service''). Under current law, the Secret Service is authorized to investigate offenses under six designated subsections of 18 U.S.C. Sec. 1030, subject to agreement between the Secretary of the Treasury and the Attorney General: subsections (a)(2)(A) (illegally accessing a computer and obtaining financial information); (a)(2)(B) (illegally accessing a computer and obtaining information from a department or agency of the United States); (a)(3) (illegally accessing a non-public computer of a department or agency of the United States either exclusively used by the United States or used by the United States and the conduct affects that use by or for the United States); (a)(4) (accessing a protected computer with intent to defraud and thereby furthering the fraud and obtaining a thing of value, unless the object of the fraud and the thing obtained consists only of the use of the computer and the value of such use is not more than $5,000 in a one-year period); (a)(5) (knowingly causing the transmission of a program, information, code or command and thereby intentionally and without authorization causing damage to a protected computer; and illegally accessing a protected computer and causing damage recklessly or otherwise); and (a)(6) (trafficking in a password with intent to defraud). The Secret Service is not authorized to investigate offenses under subsection (a)(1) (accessing a computer and obtaining information relating to national security with reason to believe the information could be used to the injury of the United States or to the advantage of a foreign nation and willfully retaining or transmitting that information or attempting to do so); (a)(2)(C) (illegally accessing a protected computer and obtaining information where the conduct involves an interstate or foreign communication); and (a)(7) (transmitting a threat to damage a protected computer with intent to extort). Section 105 of the Internet Security Act removes these limitations on the authority of the Secret Service and authorizes the Secret Service to investigate any offense under Section 1030 subject to agreement between the Secretary of the Treasury and the Attorney General. Section 105 also makes a stylistic change, describing the inter-agency agreement as ``between'' the Secretary of the Treasury and the Attorney General rather than one ``which shall be entered into by'' them. Prior to 1996 amendments to the Computer Fraud and Abuse Act, the Secret Service was authorized to investigate all violations of Section 1030. According to the 1996 Committee Reports of the 104th Congress, 2nd Session, the 1996 amendments attempted to concentrate the Secret Service' s jurisdiction on certain subsections considered to be within the Secret Service's traditional jurisdiction and not grant authority in matters with a national security nexus. According to the Administration, which first proposed the elimination of these statutory restrictions in connection with transmittal of its comprehensive crime bill, the ``21st Century Law Enforcement and Public Safety Act,'' however, these specific enumerations of investigative authority ``have the potential to complicate investigations and impede interagency cooperation.'' (See Section-by-section Analysis, SEC. 3082, for ``21st Century Law Enforcement and Public Safety Act''). The current restrictions, for example, risk hindering the Secret Service from investigating ``hacking'' into White House computers or investigating threats against the President that may be delivered by such a ``hacker,'' and fulfilling its mission to protect financial institutions and the nation's financial infrastructure. The provision thus modifies existing law to restore the Secret Service's authority to investigate violations of Section 1030, leaving it to the Departments of Treasury and Justice to determine between them how to allocate workload and particular cases. Eleventh, section 107 of the Hatch-Leahy-Schumer Internet Security Act amendment would provide an additional defense to civil actions relating to preserving records in response to government requests. Current law authorizes civil actions and criminal liability for unauthorized interference with or disclosures of electronically stored wire or electronic communications under certain circumstances. 18 U.S.C. Sec. Sec. 2701, et seq. A provision of that statutory scheme makes clear that it is a complete defense to civil and criminal liability if the person or entity interfering with or attempting to disclose a communication does so in good faith reliance on a court warrant or order, grand jury subpoena, legislative or statutory authorization. 18 U.S.C. Sec. 2707(e)(1). Current law, however, does not address one scenario under which a person or entity might also have a complete defense. A provision of the same statutory scheme currently requires providers of wire or electronic communication services and remote computing services, upon request of a governmental entity, to take all necessary steps to preserve records and other evidence in its possession for a renewal period of 90 days pending the issuance of a court order or other process requiring disclosure of the records or other evidence. 18 U.S.C. Sec. 2703(f). Section 2707(e)(1), which describes the circumstances under which a person or entity would have a complete defense to civil or criminal liability, fails to identify good faith reliance on a governmental request pursuant to Section 2703(f) as another basis for a complete defense. Section 107 modifies current law by addressing this omission and expressly providing that a person or entity who acts in good faith reliance on a governmental request pursuant to Section 2703(f) also has a complete defense to civil and criminal liability. Finally, the bill authorizes construction and operation of a National Cyber Crime Technical Support Center and 10 regional computer forensic labs that will provide education, training, and forensic examination capabilities for State and local law enforcement officials charged with investigating computer crimes. The section authorizes a total of $100 million for FY 2001, of which $20 million shall be available solely for the 10 regional labs and would complement the state computer crime grant bill, S. 1314, with which this bill is offered. I am pleased to see the ``Protecting Seniors from Fraud Act'' pass as an amendment to this legislation. I was an original cosponsor of this bill, S. 3164, which Senator Bayh introduced on October 5, 2000, with Senators Grams and Cleland. I have been concerned for some time that even as the general crime rate has been declining steadily over the past eight years, the rate of crime against the elderly has remained unchanged. That is why I introduced the Seniors Safety Act, S. 751, with Senators Daschle, Kennedy, and Torricelli over a year ago. The Protecting Seniors from Fraud Act includes one of the titles from the Seniors Safety Act. This title does two things. First, it instructs the Attorney General to conduct a study relating to crimes against seniors, so that we can develop a coherent strategy to prevent and properly punish such crimes. Second, it mandates the inclusion of seniors in the National Crime Victimization Study. Both of these are important steps, and they should be made law. The Protecting Seniors from Fraud Act also includes important proposals for addressing the problem of crimes against the elderly, especially fraud crimes. In addition to the provisions described above, this bill authorizes the Secretary of Health and Human Services to make grants to establish local programs to prevent fraud against seniors and educate them about the risk of fraud, as well as to provide information about telemarketing and sweepstakes fraud to seniors, both directly and through State Attorneys General. These are two common-sense provisions that will help seniors protect themselves against crime. I hope that we can also take the time to consider the rest of the Seniors Safety Act, and enact even more comprehensive protections for our seniors. The Seniors Safety Act offers a comprehensive approach that would increase law enforcement's ability to battle telemarketing, pension, and health care fraud, as well as to police nursing homes with a record of mistreating their residents. The Justice Department has said that the Seniors Safety Act would ``be of assistance in a number of ways.'' I have urged the Chairman of the Senate Judiciary Committee to hold hearings on the Seniors Safety Act as long ago as October 1999, and again this past February, but my requests have not been granted. Now, as the session is coming to a close, we are out of time for hearings on this important and comprehensive proposal and significant parts of the Seniors Safety Act remain pending in the Senate Judiciary Committee as part of the unfinished business of this Congress. Let me briefly summarize the parts of the Seniors Safety Act that the majority in the Congress declined to consider. First, the Seniors Safety Act provides additional protections to nursing home residents. Nursing homes provide an important service for our seniors--indeed, more than 40 percent of Americans turning 65 this year will need nursing home care at some point in their lives. Many nursing homes do a wonderful job with a very difficult task--this legislation simply looks to protect seniors and their families by isolating the bad providers in operation. It does this by giving federal law enforcement the authority to investigate and prosecute operators of those nursing homes that engage in a pattern of health and safety violations. This authority is all the more important given the study prepared by the Department of Health and Human Services and reported this summer in the New York Times showing that 54 percent of American nursing homes fail to meet the Department's ``proposed minimum standard'' for patient care. The study also showed that 92 percent of nursing homes have less staff than necessary to provide optimal care. Second, the Seniors Safety Act helps protect seniors from telemarketing fraud, which costs billions of dollars every year. This legislation would give the Attorney General the authority to block or terminate telephone service where that service is being used to defraud seniors. If someone takes your money at gunpoint, the law says we can take away their gun. If someone uses their phone to take away your money, the law should allow us to protect other victims by taking their phone away. In addition, this proposal would establish a Better Business Bureau-style clearinghouse that would keep track of complaints made about telemarketing companies. With a simple phone call, seniors could find out whether the company trying to sell to them over the phone or over the Internet has been the subject of complaints or been convicted of fraud. Senator Bayh has recently introduced another bill, S. 3025, the Combating Fraud Against Seniors Act, which includes the part of the Seniors Safety Act that establishes the clearinghouse for telemarketing fraud information. Third, the Seniors Safety Act punishes pension fraud. Seniors who have worked hard for years should not have to worry that their hard- earned retirement savings will not be there when they need them. The bill would create new criminal and civil penalties for those who defraud pension plans, and increase the penalties for bribery and graft in connection with employee benefit plans. Finally, the Seniors Safety Act strengthens law enforcement's ability to fight health care fraud. A recent study by the National Institute for Justice reports that many health care fraud schemes ``deliberately target vulnerable populations, such as the elderly or Alzheimer's patients, who are less willing or able to complain or alert law enforcement.'' This legislation gives law enforcement the additional investigatory tools it needs to uncover, investigate, and prosecute health care offenses in both criminal and civil proceedings. It also protects whistle-blowers who alert law enforcement officers to examples of health care fraud. I commend Senators Bayh, Grams and Cleland for working to take steps to improve the safety and security of America's seniors. We are doing the right thing today in passing this bipartisan legislation and beginning the fight to lower the crime rate against seniors. I also urge my colleagues to consider and pass the Seniors Safety Act. Taken together, these two bills would provide a comprehensive approach toward giving law enforcement and older Americans the tools they need to prevent crime. On March 27, 2000, the Senate passed H.R. 1658, the Civil Asset Forfeiture Reform Act of 2000. This was an important step forward and I want to thank Mr. Hyde, Mr. Conyers and Senators Sessions, Biden, Schumer and all others who worked with us in good faith to enact these long overdue reforms. At the same time, there was some unfinished business in connection with this legislation that a Hatch-Leahy amendment to H.R. 46 completes. The bill that the Senate passed by unanimous consent on March 27th was supposed to be a substitute amendment to H.R. 1658. I had been led to believe that the substitute was word-for-word that which I had painstakingly worked out over the preceding weeks for approval by the Senate Committee on the Judiciary the previous Thursday, March 23, 2000. Imagine my surprise to see reprinted in the Record the next day a substitute amendment at variance with the version to which I had agreed to and at variance with the language that had been circulated to and approved by the Committee. Specifically, the agreed upon version of the bill would amend section 983(a)(2)(C) of title 18, United States Code, to describe what a claimant in a civil asset forfeiture case must state to assert a claim. The amendment to which I agreed and which the Judiciary Committee ``ordered reported'' requires that a ``claim shall--(i) identify the specific property being claimed; (ii) state the claimant's interest in such property; and (iii) be made under oath, subject to penalty of perjury.'' By contrast, the version of the amendment submitted to the Senate for passage contained the following additional clause in subparagraph (ii): ``state the claimant's interest in such property (and provide customary documentary evidence of such interest if available) and state that the claim is not frivolous''. I did not approve the language inserted in the version considered by the Senate and this language was not approved by the Judiciary Committee. This inserted language is superfluous, at best, since the claim must already be made under oath and penalty of perjury. At worst, this inserted language is an invitation for mischief in an area where the record has already amply demonstrated overreaching by law enforcement agencies. For example, if a claimant provides only partial paperwork supporting a claim to property seized by the government, would the claim be subject to dismissal for failure to state a claim? If a claimant certifies that the claim is not frivolous, as required by the inserted language, and a court ultimately determines otherwise, would the claimant be put at risk of a perjury prosecution? Even the threat of such risks puts additional burdens on claimants and may dissuade claimants from filing claims. For these reasons, I had objected to insertion of this language and approved a substitute amendment that did not contain this problematic insert. Moreover, the version of that substitute amendment ``ordered reported'' by the Judiciary Committee and in the Committee's official files simply does not contain that problematic insert. We rely every day on each other and on the professionalism of our staffs. Having raised my concern about the change as soon as it was discovered, I am pleased that Chairman Hatch has worked with me to pass a correction to the law that strikes the language that was added without agreement.

Mr. LEAHY

Mr. LEAHY. Mr. President, last Thursday, the Senate passed the Hatch- Leahy-DeWine-Kohl substitute amendment to S. 1854, the ``Hart-Scott- Rodino Antitrust Improvements Act,'' that will make significant improvements to this important antitrust law. Section 7 of the Clayton Act, as amended by the Hart-Scott-Rodino Act of 1976 (HSR), requires companies that plan to merge to notify the Justice Department's Antitrust Division and the Federal Trade Commission of their intention and submit certain information. HSR pre-merger notifications provide advance notice of potentially anti-competitive transactions and allow the antitrust agencies to block mergers before they are consummated, which is easier than undoing them after-the-fact. Since passage of the Hart-Scott-Rodino Act, this law has worked well to help the American economy flourish, despite larger and more complex mergers and consolidations within and among different industries. The Hatch-Leahy-DeWine-Kohl substitute amendment to S. 1854, the ``Hart- Scott-Rodino (HSR) Antitrust Improvements Act,'' will update this law and make it work even better. Specifically, the substitute would raise the minimum threshold for the ``size of the transaction'' required to provide HSR notifications from $15,000,000 to $50,000,000. Thus, no pre-merger filing will be required if the transaction is valued at less than $50,000,000. A pre- merger filing would always be required if the size of the transaction is valued at more than $200,000,000. With regard to transactions valued at between $50,000,000 and $200,000,000, the amendment would require pre-merger filing if the total assets or net annual sales of one party are over $100,000,000 annually while the other party's total assets or net annual sales are over $10,000,000 annually. The thresholds may be adjusted by the FTC every three years to reflect the percentage change in the gross national product for that period. These threshold changes are supported by the antitrust agencies. The remaining part of the substitute directs the Federal Trade Commission and the DOJ's Antitrust Division to implement regulations to improve the manner in which these agencies obtain information as part of the review of a proposed merger. The antitrust agencies do not object to these parts of the substitute amendment. As explained in more detail below, this substitute addresses the most significant flaws in the original bill. To appreciate the issues addressed in the bill, the pre-merger review procedures currently in effect must be understood. Upon receipt of the merger notification, the agency takes a ``quick look'' and determines whether to open a Preliminary Investigation, PI. A PI may take from a few weeks to several months to determine whether to close the PI or proceed with a Second Request or Civil Investigative Demand, CID, for additional information. Second Requests were issued in only 2.5 percent of reported transactions in 1999. Under statutory time limits, the Second Request must be made within 30 days from the initial filing. In addition, only a single Second Request is allowed so it must be complete. This Second Request extends the waiting period before the merger may be completed for up to 20 days from the time that all responsive documents are submitted to the agency. Second requests for voluminous documents, combined with the requirement that ``all responsive documents'' have been supplied by the companies to the agency, can cause substantial delays in the waiting period and the time when a merger may be completed. To address business concerns over broad second requests and the delay such requests may cause, the original bill substantially limited the scope of agencies' second requests and authorized judicial review of both the scope of and compliance with these critical requests, as detailed below. First, the original bill would have limited the scope of second requests to information or documents ``not unreasonably cumulative or duplicative'' and that ``do not impose a burden or expense that substantially outweighs the likely benefit of the information to the agency.'' The antitrust agencies raised significant, valid questions about whether these limitations were workable. In particular, at the time a second request is issued, an agency generally cannot evaluate the cost/benefit tradeoff because it does not know the costs of production, and has only limited knowledge about the potential benefits of the information for the investigation (in part because the anticompetitive issues are often still indefinite). The documents themselves provide this information. The bill would also have required the antitrust agency to provide, with each second request, a specific summary of the competitive concerns presented by the proposed acquisition and the relation between such concerns and the second request specifications. The antitrust agencies questioned this requirement because anticompetitive concerns are still often general and evolving at the time a second request is issued. Consequently, a specific summary may not be possible at that time and would likely be incomplete since additional competitive concerns may be discovered during the investigation. Furthermore, according to the agencies, this requirement was unnecessary since they ordinarily provide a general explanation of their concerns and provide more specific information as it develops, in face-to-face conferences between parties (or their counsel) and investigating staff. Second, the original bill would have limited the agencies' ability to claim that the production of documents in response to a second request is deficient only if the deficiency ``materially impairs the ability of the agency to conduct a preliminary antitrust review.'' This proposed standard for claiming deficiency (that is, for requiring further document production) is higher than the ordinary standard for discovery and would limit the agency's ability to investigate, especially given HSR's stringent time frames and the fact that the second request is the single opportunity to seek information in a premerger review. This could have seriously harmed the agency's posture in court, as courts often examine the entire substance of the agency's case even in a preliminary injunction action. Finally, the original bill would have authorized a merging company to seek review by a magistrate judge of both the scope of the second request and any claim of deficient production. The magistrate was required to apply the scope and deficiency standards described above, which impose more limits on antitrust agencies than general civil discovery rules. Moreover, magistrates were unlikely to be familiar with the types of information that form the basis for the complex antitrust analysis required in predicting likely future competitive effects of a proposed transaction--a shortcoming with possible adverse consequences for antitrust agencies seeking relevant information for an investigation since this experience is particularly important in light of HSR's special time constraints and the agencies' single opportunity to seek documents prior to the merger. The substitute amendment eliminates these three problematic procedural limitations on the second request investigation process contained in the original bill. Instead, the Hatch-Leahy-DeWine-Kohl substitute amendment directs the agencies to reform the merger review process to eliminate unnecessary delay, costly duplication and undue delay. In addition, the agencies are directed to designate senior officials within the agencies to review the second requests to determine whether the requests are burdensome or duplicative and whether the request has been substantially complied with by the merging companies. These changes are consistent with reforms that the FTC and Antitrust Division already have underway. Indeed, the FTC on April 5, 2000, and the Antitrust Division the next day, announced their adoption of new procedures and other initiatives to improve the premerger ``second request'' investigation process to make the process more efficient for both businesses and the agencies. I commend both agencies for their efforts in this regard and look forward to working with them to ensure that implementation of their regulations proceeds smoothly. The Hatch-Leahy-DeWine-Kohl substitute amendment also imposes a reporting requirement on the FTC to provide the Congress with information on the number of HSR notices filed and on the reviews conducted by the antitrust agencies. The antitrust agencies did not support the fee structure in the Committee reported bill since, in their view, the level of fees authorized in the substitute amendment would not provide them with the ability to collect sufficient fees to meet their budget request for FY 2001. Although these agencies are funded by direct appropriations and not by their fees, the reality is that the appropriations to these agencies usually corresponds to the level of the fees collected. Nevertheless, the Committee reported bill authorized the collection of sufficient fees to be revenue neutral and at a level that would enable the agencies, according to the CBO, to collect fees at a level amounting to an increase of ten percent over the agencies' last year's budget. The Hatch-Leahy-DeWine-Kohl substitute amendment eliminates reference to the revised fee structure. I intend to work with my colleagues and the antitrust agencies, as I have in the past, to ensure that they receive all the funding necessary to support their mission and carry out their important work through the appropriations process.

Mr. LEAHY

Mr. LEAHY. Mr. President, during the last presidential debate, Governor Bush told the American people, as he has frequently during the campaign, that if he and Republicans are in control, there will be a more even-handed, cordial and respectful atmosphere in Washington and less partisan politics. I know that Governor Bush has tried to cast himself as a Washington outsider, so maybe he has not been paying attention to how the Republican majority here in Washington has been doing things these past few years. A resolution on the agenda for the final two meetings of the Judiciary Committee in this Congress might help bring Governor Bush up to speed. That resolution proposed by the Republican leadership of the Judiciary Subcommittee on Administrative Oversight and the Courts sought to authorize issuance of a subpoena compelling Department of Energy Secretary Bill Richardson to testify before the Subcommittee about the investigation and prosecution of Wen Ho Lee and provide thirteen different categories of documents. Under the proposed resolution, if by November 8, 2000, Secretary Richardson did not agree to testify and provide the demanded documents, the subpoena would be authorized. This resolution was ultimately not brought to a vote due to the lack of the requisite quorum, sparing the Judiciary Committee from making an unnecessary and embarrassing demand for which the only enforcement mechanism is a contempt trial in the Senate. It might appear from the targets of this subpoena resolution, namely, Secretary Richardson and the Department of Energy, that the Judiciary Committee and the Subcommittee on Administrative Oversight and the Courts are charged with oversight of the Department of Energy (DOE). In fact, the Republicans have proposed this resolution as part of the Subcommittee's oversight of the Justice Department. While the Department of Energy may have information helpful to an understanding of the Justice Department's handling of the Lee case, the manner in which the Republican majority has chosen to proceed both with regard to Secretary Richardson and other matters before the Subcommittee have been marked by an unprecedented political intervention in pending criminal matters and second-guessing of the handling of certain cases by federal agencies. For example, the majority on the Senate Judiciary Committee has broken from tradition and called line assistants to testify before the Subcommittee, questioned federal judges about pending cases over which they are presiding, attempted to exact assurances that particular cases will be handled particular ways, and made public internal and confidential recommendations by senior prosecutors to the Attorney General on how to proceed in ongoing investigations. The Subcommittee's earlier intervention in the Waco matter prompted a rebuke from Special Counsel Jack Danforth, who wrote to the Senate Judiciary Committee twice in September, 1999, requesting that the Committee ``conduct its inquiries in a way that does not undermine the work of the Special Counsel.'' I should note that the Subcommittee on Administrative Oversight and the Courts persisted in seeking documents from the Department of Justice on the Waco matter, and that 250 boxes of Waco documents produced by the Department of Justice sit largely unopened in Judiciary Committee offices. Let me help bring Governor Bush up to speed with the most recent example of how the majority is conducting itself. Sponsors of this subpoena resolution made it sound as if a subpoena were necessary because Secretary Richardson had been dodging a discussion of the Lee case since March 2000. Indeed, a sponsor of the subpoena resolution stated at a Judiciary Committee meeting on October 5, 2000, that ``[t]he efforts to secure Secretary Richardson's attendance go back to March of this year when we requested his appearance and he declined, with comments about his unavailability on a specific date.'' Yet, as some Republicans have even acknowledged, from December 1999 until just six weeks ago when Dr. Lee pled guilty, the Committee was honoring FBI Director Freeh's urgent request that the Committee suspend review of Dr. Lee's case during the pendency of the criminal prosecution so as not to compromise the case. When former Senator Danforth testified to Congress about his independent investigation of the tragic raid on the Branch Davidian compound in Waco, Texas, he commented that, ``We have totally overblown our willingness to just trash people.'' Senator Danforth said about those who make reckless claims of government misconduct and who grandstand on matters of public importance: ``The wrong information was presented to the American people and it caused a real shaking of confidence of people in their government . . . When people make dark charges--I mean really, really serious charges--the people who make the charges should bear some kind of burden of proof before we all buy into them.'' His words have not been sufficiently heeded by the majority in this Congress, as this unwarranted and scurrilous subpoena resolution directed at Secretary Richardson makes clear. Governor Bush may also not be aware of the following: Despite Director Freeh's request that the Congress suspend the Lee hearings during pendency of the case, and the Judiciary Committee's honoring of that request, an interim report on the Lee matter was issued by a Republican Member in March 2000. He did so over the written objections of a Member of his own party, who expressed concern about the haste of issuing the report despite an incomplete investigation and the lack of a consensus in the Judiciary Committee about key matters. The Committee's suspension of its inquiry into this matter was lifted only six weeks ago, September 13, 2000, when Dr. Lee pled guilty and was sentenced. The March 2000 hearing to which Secretary Richardson was invited, but for which he had a conflict, was not about the facts of Dr. Lee's case, but legislation on which the Judiciary Committee was then working. It might help Governor Bush size up the source of partisan bickering in Washington if he were aware of how the Senate Judiciary Committee was rushing to issue a subpoena to a cabinet secretary, even though Members of his own party acknowledge that the complete story of the Lee matter will not and cannot come out for some time. I concur with Senator Grassley's comments on October 3, 2000, at a hearing conducted by the Subcommittee on Administrative Oversight and the Courts on the Lee matter: ``For now, Dr. Lee's side of the story is on hold. That is because his attorneys have asked that his side be told only after he is debriefed by the government. We also asked to interview Judge Parker about his views of the case but Judge Parker declined our invitations, so the public is not going to get the full picture, which may not come into view for some time yet.'' Nonetheless, for Secretary Richardson, a high-ranking member of this Administration, the Judiciary Committee was asked to authorize a subpoena and get him before Congress immediately in an apparent effort to make it seem as though he is dodging congressional oversight, even though by Senator Grassley's candid admission that Congress will not have the full picture of Dr. Lee's case ``for some time.'' In fact, the investigation of Dr. Lee remains open with intense debriefings ongoing. The agencies involved are rightfully sensitive that the debriefings of Dr. Lee are not complete and concerned that public discussion of the case not jeopardize the debriefings or future steps in the case. Republicans have not shown similar interest in oversight of other open criminal matters about which the American people might truly want all the facts immediately and certainly before Election Day. For example, no effort by the majority has been made to get to the bottom of ``Debategate,'' the mailing of Bush debate preparation materials to the Gore campaign. That incident might be a third-rate mail fraud, but it might also be serious campaign misconduct of the type we saw during the Watergate scandal. Some have speculated that it was a dirty trick by the Bush campaign to set up the Vice President. I have heard nothing from the Republicans about the matter. I have heard no outrage that Governor Bush and his campaign aides are not being put under oath or dragged before grand juries to get to the bottom of the scandal. In contrast to the majority's preference to investigate rather than legislate, their silence on the Debategate case is deafening. On that investigation, the Republicans are happy to allow the ongoing criminal investigation to take its course. But not here, where the important debriefings of Dr. Lee are sensitive and ongoing. The fact is that in the six short weeks since Dr. Lee pled guilty, the Department of Energy has been extremely cooperative, just as the Department of Energy was cooperative with other committees' previous reviews of the Lee matter. At the first hearing on the matter after Dr. Lee pled guilty, the Judiciary Committee's joint hearing with the Senate Committee on Intelligence on September 26th, Deputy Secretary T.J. Glauthier of the Department of Energy appeared to testify in place of Secretary Richardson because the Secretary was testifying before another committee. Secretary Richardson agreed to testify at that afternoon's closed session when he would be available, but no such afternoon session was conducted. At the second hearing on September 27th, DOE Security Chief Edward Curran appeared to testify. At the third hearing on October 3rd, DOE computer specialist Ronald Wilkins appeared to testify. In addition, the Subcommittee on Administrative Oversight and the Courts heard from Los Alamos officials Dr. Stephen Younger and former officials Robert Vrooman and Notra Trulock. In sum, Department of Energy has provided witnesses before a total of 11 House and Senate committees and has provided testimony 37 times in hearings and briefings on the Lee case and related espionage and security matters in the past two years. Moreover, the thirteen categories of documents called for in the subpoena resolution-- to the extent not already produced--were requested only a few days before the subpoena was sought. A chronology of the relevant events shows that the Department of Energy has made and is making every effort to produce documents. On November 17, 1999, the Republicans on the Judiciary Committee approved a resolution to issue subpoenas to five cabinet secretaries, including Secretary Richardson, containing a general request for all documents related to Wen Ho Lee and three other matters. Because the Judiciary Committee a few short weeks later, in December 1999 honored Director Freeh's request that the Committee suspend inquiry of the Lee matter, no subpoena was ever issued and forwarded, and it is unclear whether that document request was ever communicated to the Department of Energy. On September 13, 2000, Dr. Lee pled guilty and was sentenced. On September 28, 2000, Senator Specter wrote to DOE requesting that five pages of a DOE Inspector General report be declassified, but making no other request for documents. My understanding is that the request was honored. On September 29, 2000, Senator Specter wrote a letter directly to Secretary Richardson enclosing follow-up written questions to DOE's Security Chief Edward Curran, who testified before the subcommittee on September 27th. Neither the letter to Secretary Richardson nor the questions to Mr. Curran contained any request for documents. On October 3, 2000, Senator Specter wrote to both Secretary Richardson and the Attorney General requesting documents relating to Dr. Lee's claim of racial profiling that the prosecution would have been required to submit to Judge Parker for in camera review had Dr. Lee not pled guilty. DOE has produced materials in response to that request. On October 5, 2000, Secretary Richardson met with Senator Specter and discussed the case. My understanding is that Senator Specter's staff thereafter orally requested five documents or files from DOE Chief Larry Sanchez. On October 12, 2000, Senator Specter asked the Judiciary Committee to approve a resolution authorizing a subpoena for Secretary Richardson's testimony. That resolution contained no request for documents. Finally, on the evening of October 16, 2000, Senator Specter wrote a letter to Secretary Richardson listing the thirteen categories of documents sought by the subpoena resolution. Despite that record of the DOE's good faith, on October 19, 2000, less than two weeks since Senator Specter's office made an oral request of Mr. Sanchez for five documents or files and just three days since Senator Specter submitted his list of thirteen categories of documents, the Republicans sought a resolution seeking issuance of a subpoena. The Department of Energy has made three deliveries of materials over the past two weeks, and I have no doubt that the Department of Energy will continue to comply with these document requests and act in good faith. Moreover, I understand that Secretary Richardson has met recently with Senator Specter and with Chairman Hatch to discuss the facts of the case. Far from dodging congressional oversight, the Secretary has made himself available for such meetings in the midst of recent crises over the price of oil. The sponsors of the subpoena resolution advanced three reasons to justify its issuance. They claimed that the Judiciary Subcommittee on Administrative Oversight and the Courts needs to hear immediately from Secretary Richardson so that he may (1) respond to allegations that the Department of Energy was to blame for the delay between April 1999, when Dr. Lee's residence was searched and evidence of his downloading was seized, and December 1999, when he was indicted; (2) explain why his signature was purportedly on the order to put Dr. Lee in leg irons; and (3) respond to allegations made by DOE's former intelligence chief Notra Trulock at an earlier Congressional hearing that he had been told by New York Times reporter James Risen that Secretary Richardson had leaked Dr. Lee's name. Based on the record, as I understand it, these three claims are unsupportable. First, between April and December 1999, numerous agencies participated in sorting out a hugely complex case, analyzing a million computer files, interviewing a thousand people, and assessing the sensitive question of how to prosecute Dr. Lee in a public courtroom without publicly disclosing the nuclear secrets that he downloaded. As to the second claim, Secretary Richardson wrote to the Attorney General certifying, as required by a federal regulation, that national security would be threatened if Dr. Lee communicated classified information to a confederate, and requesting that she direct prison authorities to implement whatever measures might be appropriate to prevent such communication while Dr. Lee was in custody. Secretary Richardson did not order leg irons. To the contrary, Secretary Richardson noted his understanding that ``the conditions of [Dr. Lee's] confinement are in no respect more restrictive than those of others in the segregation unit of the detention facility,'' and he emphasized his concern that Dr. Lee's civil rights be scrupulously honored. As to the third claim, my understanding is that, immediately after the hearing at which Mr. Trulock testified, Mr. Risen walked up to Mr. Trulock and said that he had never told Mr. Trulock any such thing about Secretary Richardson. In addition, Secretary Richardson has already categorically denied the allegation. These reasons are hardly a basis for taking the extraordinary step of authorizing the issuance of a subpoena for a member of the President's cabinet. At the Judiciary Committee's meeting on October 19, 2000, it was suggested that Chairman Hatch might have the authority to issue a subpoena for Secretary Richardson pursuant to a resolution which the Republicans on the Committee approved in November 1999. The Democrats opposed that resolution in part because a subpoena might interfere with the ongoing investigation of Dr. Lee. Over the Democrats' objection, that partisan resolution was rushed through the Judiciary Committee by the majority precipitously and was never executed. Indeed, just a few weeks later, Director Freeh made his urgent request that the Committee suspend its inquiry into the Lee matter during the pendency of the criminal case. As it related to the Department of Energy, the partisan resolution authorized issuance of a subpoena to Secretary Richardson for documents, not his personal appearance. As for the documents, the resolution authorized issuance of a subpoena for all documents related to DOE's investigation of Dr. Lee and identified just two particular documents that were sought. That resolution did not identify the thirteen categories of documents for which authorization was sought in the last meetings of the Judiciary Committee. Since the Judiciary Subcommittee on Administrative Oversight and the Courts began its oversight of the Justice Department, no fewer than nine subpoenas have been authorized for cabinet secretaries, not including a subpoena for Secretary of State Madeleine Albright in connection with Elian Gonzalez which was authorized and later rescinded. If the American people want to test the credibility of Governor Bush's claim about the kinder and gentler America that he claims only a Republican-led government can bring to our nation, they should examine the record of the oversight efforts by Republican-led Judiciary Committee and its Subcommittee on Administrative Oversight and the Courts.