Carl Levin

Mr. LEVIN

Mr. LEVIN. Mr. President, I call up amendment No. 2658.

Mr. LEVIN. Mr. President, I yield myself 10 minutes. Our amendment would change the bankruptcy code so that a firearm manufacturer or distributor who is found liable or may be found liable for negligence or reckless action cannot escape accountability by filing for reorganization in bankruptcy. Our amendment has the endorsement of the National League of Cities, the U.S. Conference of Mayors, Handgun Control, Inc., which is Sarah Brady's organization, and the Violence Policy Center. The amendment is cosponsored by Senators Durbin, Wyden, Kennedy, Feinstein, Lautenberg, and Schumer, and I thank them for their persistence and their hard work on this important issue. Under the current bankruptcy code, firearm manufacturers are able to ``take advantage of the system.'' Those are not my words. Those are the words of Lorcin Engineering Company, a manufacturer of cheap, semiautomatic handguns. Lorcin told Firearms Business, an industry publication, that it was ``taking advantage of the system'' by filing for chapter 11 bankruptcy protection in 1996. At the time, Lorcin was one of the chief producers of Saturday night specials or junk guns. Their semiautomatic pistol was number two on the Alcohol, Tobacco, and Firearms list of guns traced to crimes. Some of their cheaply constructed guns were made so poorly they did not meet basic safety requirements to be eligible even for importation. Lorcin sought to evade responsibility for the damages caused by their negligence by filing for chapter 11. Other manufacturers are following their lead, seeking to evade accountability for their wrongdoing by filing in bankruptcy court. For instance, Davis Industries, another producer of poorly constructed semiautomatic firearms, has also sought refuge in bankruptcy court. The New York Times reported on June 24, 1999, that a spokesman for Davis Industries said, ``I'm sure other companies will do the same thing.'' On July 19, 1999, at a creditors meeting for Davis Industries, the owner was asked a few questions by the bankruptcy trustee about his chapter 11 bankruptcy petition. Question: Now, the reasons for filing sounded to me like you're getting sued by all the municipalities in the United States. Is that pretty close to correct? Answer: I think you hit the button on the nose. Lorcin Engineering and Davis Industries found a loophole in our Federal bankruptcy law and the list of these companies grew and is still growing. When the bankruptcy code was enacted, its primary goal was debtor rehabilitation, to provide a fresh start to ``honest but unfortunate debtors'' through the discharge of debts. The code gives debtors the opportunity to shed indebtedness, but there are exceptions. These exceptions to the discharge of a debtor's liability were based on public policy or wrongful conduct of the debtor. Currently, the bankruptcy code defines 18 specific categories of debt that are nondischargeable. These exceptions have been created because of an overriding public purpose. A report issued by the National Bankruptcy Review Commission, an independent commission established by Congress to investigate and study issues relating to the bankruptcy code, says this about nondischargeability: Debts excepted from the discharge obtain distinctive treatment for public policy reasons. Many nondischargeable debts involve ``moral turpitude'' or intentional wrongdoing. Other debts are excepted from discharge because of the inherent nature of the obligation, without regard to any culpability of the debtor. Regardless of the debtor's good faith, for example, support obligations and many tax claims remain nondischargeable. Society's interest in excepting those debts from discharge outweighs the debtor's need for a fresh economic start. Among the debts that we exempt from discharge for public policy reasons are debts which arise from death or personal injury caused by the debtor's operation of a motor vehicle while intoxicated, debts incurred by fraud or falsehood, debts incurred by willful and malicious injury, family support obligations, taxes, educational loans, fines, and penalties payable to a governmental entity, et cetera. These exceptions reflect Congress' intent to carve out exceptions to dischargeability for important public interest policy considerations. One category of debt that was added not too long ago to the code ensures that debtors cannot escape debts incurred by a debtor's operation of a motor vehicle while intoxicated. This change, which was first introduced by Senators Danforth and Pell in the early 1980s, was considered part of an ``all-out attack on drunk driving.'' Congress was persuaded to amend the Federal bankruptcy code with respect to this important policy initiative. At the time, drunk driving accidents killed tens of thousands of Americans and disabled hundreds of thousands of people annually. Senator Danforth argued that drunk driving has caused insurmountable human suffering and economic loss, and in his words: We must assure victims and their families that if they win a civil damage award against the drunk driver, they need not fear that the offender will use Federal law to escape his debt. We should do no less for victims of negligence and recklessness and wrongdoing of gun manufacturers and distributors. Senator Danforth told us: It is a national scandal that 50,000 Americans are smashed and slashed to death on our highways and that 2 million people suffer disabling injuries in car accidents every year. He went on to say: The greatest tragedy is that we have become desensitized to the meaning of these statistics. We have almost come to accept this carnage as the unfortunate price we must pay for the mobility we enjoy. However, if we look behind the mind- numbing statistics--if we ask why so many people are suffering--we will see over half of this bloodshed results from our unwillingness to put a halt to the most frequently committed violent crime in America: drunk driving. The reduction of alcohol-related driving fatalities was an important public policy issue, and by making those debts nondischargeable, Congress acted wisely to protect victims of drunk driving and to deter drunk driving. Congress acted against those endless tragedies and senseless deaths and human suffering by amending the bankruptcy code so a drunk driver could not escape his debt by going bankrupt. Like debts incurred by drunk driving, debts for death or personal injury and costs to communities resulting from the unsafe manufacture or distribution of unsafe firearms and their negligent distribution should also not be dismissed in bankruptcy. The public policy involved here is an overriding one, given the damage caused by the unsafe manufacture and distribution of guns. Senator Danforth's plea to curb drunk driving is very similar to our people's plea to reduce gun violence. Week after week, Americans are lost to the senselessness of gun violence. Year after year, some 30,000 of us are lost to murder or suicide or unintentional shootings and tens of thousands of Americans are treated for firearm injuries. Many of these deaths and injuries are to children. When the carnage results from the unsafe manufacture or distribution of a firearm, we should not allow the manufacturer or distributor to evade the responsibility for its wrongdoing by reorganizing in bankruptcy. Cities around the country and their residents are taking on this problem on their own. Thirty cities and counties have filed lawsuits alleging negligence, wrongdoing, unsafe practices on the part of gun manufacturers or distributors. New Orleans started in October of 1998, followed by Chicago; Miami; Dade County; Bridgeport, CT; Atlanta, GA; Cleveland, OH; Cincinnati, OH; Wayne County, MI; and Detroit, MI; St. Louis, MO; San Francisco, and others. Citizens want the firearm industry to be accountable for unsafe actions on their part. They want firearm manufacturers to be held responsible for poorly constructed and unsafe products. Citizens want firearm manufacturers and distributors to be accountable for wrongful injuries resulting in public outlays for medical care, emergency rescue, and police investigative costs.

Mr. LEVIN. I thank the Chair and yield myself an additional 3 minutes. One way to deter such misconduct is to say that you cannot avoid that accountability by filing for reorganization in bankruptcy any more than you can evade a judgment for damages resulting from drunk driving. Sound public policy also dictates that the debt incurred by a company's action should not be ducked by a company reorganizing under chapter 11 while the company goes on its merry way and the victims are victimized twice. This amendment does not judge the merits of any lawsuit or the liability of any parties involved in these lawsuits. The amendment simply gives our citizens the assurance that if they win a civil damage award against a firearm manufacturer or distributor, the damages caused by the perpetrator cannot be evaded by being dismissed in bankruptcy court. Mr. President, I ask unanimous consent that letters from the U.S. Conference of Mayors, the National League of Cities, the Violence Policy Center, and Handgun Control, which is chaired by Sarah Brady, be printed in the Record.

Mr. LEVIN. My friend from Illinois is not here, so I simply yield the floor.

Mr. LEVIN. I thank the Chair. Amendment No. 2658 (Purpose: To provide for the nondischargeability of debts arising from firearm-related debts, and for other purposes.)

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

Mr. LEVIN. Mr. President, I yield 10 minutes to the Senator from Illinois.

Mr. LEVIN. Mr. President, I would be happy to alternate back and forth. If nobody is seeking recognition on that side, I will yield 6 minutes to the Senator from Massachusetts.

Mr. LEVIN. Mr. President, I yield 4 minutes to the Senator from Oregon.

Mr. LEVIN

Mr. LEVIN. Mr. President, there are few, if any, who haven't been moved by the triumphant story of Elian Gonzalez, a brave young boy found clinging to a raft on Thanksgiving Day. Elian endured a harrowing journey from Cuba to Florida, after his mother was lost at sea. Now, Elian finds himself in the center of an international tug-of- war. Both sides are entrenched in an emotional debate, that centers more around the Castro regime than it does around the young boy. No matter how hard it may be, for Elian's sake, politics must be taken out of the equation. The Immigration and Naturalization Service has made its ruling, that Elian father's has the authority to speak for his son. His father, Juan Gonzalez, has asked that applications for admission and asylum for Elian be withdrawn. Congress should not ignore the bond between father and child, and the responsibility a father has for his son, regardless of where they reside. People with a legal interest in the matter may test the INS order in Court. Congress should not undermine the Court proceedings, and in the process, possibly trample on the family values we so often claim to honor. Elian's extended relatives in Miami filed their lawsuit in federal court to block the child's return, and any action by Congress to bypass the Court on this matter is inappropriate. The Court will hopefully analyze the facts and decide Elian's future based on his interests, not heated debate or political rigidity. This is an issue that deserves an appropriate forum, one away from politics, where Elian's future can be based on the rules of law that this country has held out to the world.

Mr. LEVIN

Mr. LEVIN. Mr. President, our Nation's commitment to due process has been placed in doubt by the use of secret evidence in immigration proceedings. Until recently, the Department of Justice's use of secret evidence was not well known to the general public. Secret evidence was known only to some immigrants who have been held for months, sometimes years, without any opportunity to confront their accusers or examine the evidence against them. As the Washington Post of October 19, 1997, put it, the process is authorized by: [A] little-known provision of immigration law in effect since the 1950s allows secret evidence to be introduced in certain immigration proceedings. The classified information, usually from the FBI, is shared with judges, but withheld from the accused and their lawyers. The use of secret evidence in immigration proceedings threatens to violate basic principles of fundamental fairness. The only three Federal courts to review its use in the last decade have all found it unconstitutional. Yet the Immigration and Naturalization Service, the INS, continues to use it and to do so virtually without any limiting regulations. Under current law, the INS takes the position that it can present evidence in camera and ex parte whenever it is classified evidence relevant to an immigrant's application for admission, an application for an immigration benefit, a custody determination, or a removal proceeding. The Attorney General herself has expressed concern over the use of secret evidence--and for good reason. In October 1999, a district court declared the INS' use of secret evidence to detain aliens unconstitutional. Five days later, the INS dropped its efforts to deport a man it had held for over a year and a half on the basis of secret evidence. In November 1999, the Board of Immigration Appeals ruled that an Egyptian man detained on secret evidence for 3 and-a-half years should be released, and the Attorney General declined to intervene to continue his detention. Earlier in 1999, the Board of Immigration Appeals, the BIA, granted permanent resident status to a Palestinian against whom the INS had used secret evidence and alleged national security concerns. In all of these cases the government claimed that national security was at risk, yet in none of them were the individuals even charged with committing any criminal acts. The Attorney General has promised to promulgate regulations to govern the INS's use of secret evidence, but has not yet done so. In May of 1999, the Attorney General came to my state of Michigan to meet with Arab-American leaders and members of the Michigan Congressional delegation to discuss concerns about the use of secret evidence. At that meeting, she said she would implement a new policy, one in which the Department would implement a higher level of review, and take extra precautions before using secret evidence. She said she would have those regulations relative to the use of secret evidence within a reasonable time. In December, the Attorney General visited Michigan again. She had still not promulgated the promised regulations. She told us that she was dedicated to resolving this issue, and she was actively reviewing draft regulations, but that she was uncomfortable issuing those regulations in the form they had been presented to her by her staff. Mr. President, the Attorney General may eventually offer the promised regulations. But at the current time, she is not capable of putting a process in writing that is satisfactory even to her. It has been almost nine months now since the Attorney General agreed to look in to this matter, and promulgate regulations that will govern the use of this process. Under these circumstances, when the Attorney General cannot even satisfy herself that a fair process is in place, the use of this secret process should be suspended until she can, and I urge the Attorney General to do exactly that: suspend the use of secret evidence in immigration proceedings immediately until she can promulgate regulations relative to its use. I thank the Chair and yield the floor.

Mr. LEVIN

Mr. LEVIN. First, I congratulate, again, the good Senator from Oregon for his leadership in the area of prescription drugs. His effort to achieve a bipartisan move in this direction is very critical to the Nation. I commend him for it. I thank him for truncating his remarks a few minutes so I might have a few minutes. I hope I can complete this in 2 or 3 minutes. But if I do not, perhaps I could ask my good friend on the other side of the aisle to be able to extend it a minute or two beyond the appointed hour of 1 o'clock.

Mr. LEVIN

Mr. LEVIN. Mr. President, the Brady law has been very successful. The federal law that requires background checks on deals conducted by federally licensed firearms dealers has prevented more than 470,000 prohibited persons from purchasing firearms. Unfortunately, the Brady law is not the only law enforcement tool needed to prevent felons from purchasing firearms. Straw purchases are probably the best-known way around the Brady law. Straw purchases occur when a buyer with a clean record is hired to purchase a gun for someone who is prohibited by law from buying the gun or does not want to be traced. Often times, this is how gun trafficking is facilitated. Firearms are bought in the legal marketplace, and then transferred directly to the secondary market, where there are virtually no restrictions. A new report issued by Senator Schumer shows that most guns used in crimes are purchased in this secondary market. According to the report, which analyzed data compiled by the Bureau of Alcohol, Tobacco, and Firearms, in 13 percent of crimes, the crime gun could be traced to the original buyer and in 87 percent of the crimes, the gun had transferred hands. Many of the time, these crime guns can be traced back to a small percentage of high volume dealers, who are willing to sell a single person a large quantity of firearms. Guns bought in these large quantities are often characterized by a short ``time to crime,'' or a short period between the sale and time they are used in criminal acts. In another report issued by Senator Schumer, a small percentage of licensed dealers are responsible for a disproportionate number of crime guns. Specifically, in 1998, 137 dealers, or 1.1 percent of all gun dealers, were responsible for selling 13,000 crime guns. Mr. President, I am the cosponsor of a bill that would give ATF the authority it needs to put an end to these practices. The Targeted Gun Dealer Enforcement Act of 1999 focuses in on a specific group of businesses, who have an abysmal record of having their products used for illegal activities. It would outlaw all straw purchasing and give ATF additional law enforcement tools to suspend the licenses of high- volume crime gun dealers. I urge my colleagues to support this bill and help put an end to these unscrupulous practices, which keep violent persons armed.

Mr. LEVIN

Mr. LEVIN. Mr. President, once again the Senate is considering a massive appropriations bill in the final hours of a session of Congress. This one spends more than $385 billion, contains legislation which rightly belongs in five separate appropriations bills, and other important legislation which doesn't belong in an appropriations bill at all. This is a process which reflects poorly on the Congress both because it represents a failure to get the nation's work done on time, and because the final rush precludes the kind of careful consideration and debate which wise decisionmaking demands. The combination of its enormous size and the swiftness with which it was thrown together makes certain that Senators will only after the fact learn full details about many provisions which have been added. Democrats have won critical victories in this bill providing funds for new teachers to reduce class size in our schools, a first installment toward 50,000 new police officers by 2005, the necessary funding to implement the Wye River peace agreement and more than $514 million for the Lands Legacy Initiative to preserve and safeguard our most precious public lands, as well as funds for after-school programs to benefit 675,000 students. Other needed legislation is included to reverse some of the unintended consequences of the 1997 Balanced Budget Act on hospitals, nursing homes and other health care facilities and legislation to benefit consumers by increasing competition between cable and satellite companies and permitting satellite companies to provide local network signals in local markets. However, like last year, even as I acknowledge some important budget victories, I do not support this process and, on balance, cannot vote for this bill.

Mr. LEVIN

Mr. LEVIN. Mr. President, I start by thanking the Senator from Nebraska for the extraordinary service he has rendered to the Intelligence Committee. I have served with him on that committee for a very short period of time, but I have seen the way he, working with Senator Shelby, has been able to bring bipartisan leadership to this committee that is so essential for the working of this committee. I say to our colleagues--I know Senator Shelby has and as I know every member of the committee feels--Senator Kerrey has made a unique and extraordinary contribution to the committee. He has attempted to strengthen the intelligence community every step of the way. He has done so in a bipartisan way. I commend him on his service. I know he is being rotated out of the committee, but that is what our rules provide. He will be missed. The conference report to H.R. 1555, the Fiscal Year 2000 Intelligence Authorization Act, includes legislation under title 8 entitled ``Foreign Narcotics Kingpin Designation Act.'' Title 8 is intended to strengthen the Government's efforts to identify the assets, financial networks, and business associates of major foreign narcotics trafficking groups in an effort to disrupt these criminal organizations and bankrupt their leadership. I think all Senators agree with that laudable goal of combating the insidious effects of drug trafficking. In fact, an earlier version of this legislation was seen as being so without controversy that it was added by the Senate to the intelligence authorization bill in July of this year with little debate and on a voice vote. Senators should be aware, however, that title 8, as it is now written, does have a significant national security, law enforcement, judicial, and drug trafficking implication that belie the legislation's simple design and are somewhat different from the original amendment that was offered, I believe, by Senator Coverdell and by Senator Feinstein. I am not aware, however, despite the implications of this new language added in conference, of any committee of jurisdiction in either the Senate or the House having held a single hearing on the provision contained in title 8. The Senate Intelligence Committee has not had a hearing on title 8. The Senate Judiciary Committee has not had a hearing. Not a single legal or national security expert inside or outside of Government has testified before a congressional hearing as to whether title 8 should or should not become law, and if it does, how the legal rights of Americans might be changed as a result. Except for the recent and very perfunctory House of Representatives debate and vote on this provision, the only public debate on the complexities of title 8 has occurred in the press. The way the issue has been characterized in press reports erroneously suggest that if you are ready to sign up to title 8 as now set forth after this conference committee in H.R. 1555, then you are being tough on foreign drug traffickers. If, however, you are troubled by the effect that the title 8 language would have on currently existing due process protections afforded innocent Americans, you are described by some in the press as doing the bidding of narcolobbyists. This simplistic characterization is not only false, it is an insult to Members of this body, and it obscures a vitally important civil liberties issue which is at the core of title 8, which is the rights of innocent American citizens to challenge in our courts the taking of their property. As a member of the Intelligence Committee, I was a conferee. I did not sign the conference report accompanying the bill because of the contradiction existing between the stated legislative intent of title 8 and the actual language contained in the bill, a contradiction which I attempted but failed in conference to correct by amendment. Specifically, my objection is that title 8, as presently written, would undermine the due process protections now afforded a U.S. citizen or business that has interests or assets blocked under title 8 to challenge the legality of the blocking under the Administrative Procedures Act. This is what the conference report before us says about title 8: There is no intention that this legislation affect Americans who are not knowingly and willfully engaged in international narcotics trafficking, nor is it intended in any way to derogate from existing constitutional and statutory due process protections for those whose assets are blocked or seized pursuant to law. That is the stated intent. That is well and good, and I commend the authors on that intent. The problem is that the words of the bill before us do not, I am afraid, comport with that stated intention. According to the Department of Treasury, which is tasked in title 8 with developing the list of significant foreign narcotics traffickers, due process protections exist in law today for those U.S. citizens to challenge the legality of the blocking of assets in court. On November 8, I wrote a letter to the Secretary of Treasury Lawrence Summers requesting an opinion on two legal questions concerning title 8. The first question was the following: What existing constitutional and statutory due process protections would allow an American citizen who has an interest blocked by executive branch action to challenge the blocking? Question 2 was: If H.R. 1555 is enacted into law, how would these existing constitutional and statutory due process protections be changed? In his November 10 reply to me, Richard Newcomb, who is Director of the Treasury's Office of Foreign Assets Control, or OFAC, stated the following with regard to currently existing judicial review of the blocking of American assets: The Administrative Procedures Act, or the APA, provides for judicial review of final agency action. Mr. President, 5 U.S. Code 702 is the citation. In existing sanctions programs administered by the Office of Foreign Assets Control (OFAC) the final agency action related to blocking are subject to challenge by affected parties through judicial review afforded by the Administrative Procedures Act. Then they go on to say: Because of normal rules of standing and other jurisdictional principles, a U.S. citizen may, in many cases, not be able directly to challenge the blocking of a foreign person's assets pursuant to APA. However---- However, and this is the key line---- as discussed below, agency review by OFAC, followed by judicial review under APA of any resulting final agency action as to that citizen may still be available. In addition to any statutory review available under the APA, a U.S. citizen may also seek judicial review of constitutional claims or challenges related to blockings under existing OFAC sanctions programs. Under the process that is currently in place, OFAC determines who is a foreign drug kingpin after an internal Department of Treasury review of the evidence and evidentiary review that is coordinated with the Department of Justice. Under Executive Order 12978 issued in 1995, the State Department and Justice Department are required to be consulted by Treasury prior to that designation and prior to the blocking of assets. After designation is made and assets are blocked, OFAC regulations allow for a named party to petition OFAC--

Mr. LEVIN. If I could just have----

Mr. LEVIN. Parliamentary inquiry. I did not realize I was acting under a time constraint.

Mr. LEVIN. I am not going to complete my speech now. I simply want to apologize to my colleagues. I did not realize there was a unanimous consent agreement that would trigger a 3 o'clock debate on a different bill. That is all I had to say. I am perfectly happy to pick up my speech after whatever is scheduled is completed.

Mr. LEVIN. I ask unanimous consent to be yielded 30 seconds.

Mr. LEVIN. Mr. President, the conference report to H.R. 1555, the Fiscal Year 2000 Intelligence Authorization Act, include legislation under Title VIII of the bill entitled the ``Foreign Narcotics Kingpin Designation Act.'' Title VIII is intended to strengthen U.S. Government efforts to identify the assets, financial networks and business associates of major foreign narcotics trafficking groups in an effort to disrupt these criminal organizations and bankrupt their leadership. No doubt all Senators would agree with this laudable goal of combating the insidious effects of drug trafficking. In fact, an earlier version of this legislation was seen as being so without controversy that it was added by the Senate to the Intelligence Authorization bill in July of this year with little debate and on a voice vote. Senators should be aware, however, that Title VIII as it is now written has significant national security, law enforcement, judicial, and drug trafficking implications that belie the legislation's simple design. Yet, I am not aware of any committee of jurisdiction in either the Senate or the House having held a single hearing on the provisions contained in Title VIII. The Senate Intelligence Committee has not held a hearing. The Senate Judiciary Committee has not held a hearing. Not a single legal or national security expert, inside or outside government, has testified before a congressional hearing as to whether Title VIII should or should not become law, and, if it does, how would the legal rights of Americans be changed as a result. Except for recent and perfunctory House of Representatives debate on the provision, the only public debate on the complexities of Title VIII has occurred in the press. The way that the issue has been characterized in press reports erroneously suggests that if you are ready to sign up to Title VIII as set forth in H.R. 1555, you are tough on foreign drug traffickers. If, however, you are troubled by the effect that the Title VIII language would have on currently existing due process protections afforded innocent Americans, you are described as doing the bidding of ``narco-lobbyists.'' This simplistic characterization is not only false and an insult to the Members of this body, it obscures a vitally important civil liberties issue at the core of Title VIII: the rights of innocent American citizens to challenge in our Courts the taking of their property. As a member of the Senate Intelligence Committee, I was a conferee to H.R. 1555. However, I did not sign the conference report accompanying the bill because of the contradiction existing between the stated legislative intent of Title VIII and the actual language contained in the bill, a contradiction I attempted but failed in conference to correct by amendment. Specifically, my objection is that Title VIII, as presently written, would undermine the due process protections now afforded to a U.S. citizen or business who has interest in assets blocked under Title VIII to challenge the legality of the blocking under the Administrative Procedure Act. This is what the conference report accompanying H.R. 1555 says about Title VIII: ``There is no intention that this legislation affect Americans who are not knowingly and willfully engaged in international narcotics trafficking. Nor is it intended in any way to derogate from existing constitutional and statutory due process protections for those whose assets are blocked or seized pursuant to law.'' That's the stated intent. But what do the words of this CR do? According to the Department of Treasury, which is tasked in Title VIII with developing the list of significant foreign narcotics traffickers, due process protections exist today for those U.S. citizens to challenge the legality of the blocking of assets in court. On November 8th, I wrote a letter to Secretary of the Treasury Lawrence Summers requesting an opinion on two legal questions concerning Title VIII. The first question was: ``What existing constitutional and statutory due process protections would allow an American citizen who has an interest blocked by Executive Branch action to challenge the blocking?'' The second question was: ``If H.R. 1555 is enacted into law, how would these existing constitutional and statutory due process protections be changed?'' In his November 10, 1999 reply to me, Mr. Richard Newcomb, Director of the Treasury's Office of Foreign Assets Control (or ``OFAC''), stated the following with regard to currently existing judicial review of the blocking of American assets: ``. . . the Administrative Procedure Act (the ``APA'') provides for judicial review of final agency action. 5 U.S.C. 702. In existing sanctions programs administered by the Office of Foreign Assets Control (``OFAC''), the final agency actions related to blocking are subject to challenge by affected parties through judicial review afforded by the APA. Because of normal rules of standing and other jurisdictional principles, a U.S. citizen may in many cases not be able directly to challenge the blocking of a foreign person's assets pursuant to APA. However, as discussed below, agency review by OFAC, followed by judicial review under APA of any resulting final agency action as to that citizen, may still be available. In addition to any statutory review available under the APA, a U.S. also may seek judicial review of constitutional claims or challenges related to blockings under existing OFAC sanctions programs.'' Under the process currently in place, OFAC determines who is a foreign drug kingpin after an internal Department of Treasury review of the evidence, an evidentiary review that is coordinated with the Department of Justice. Executive Order 12978, issued in 1995, requires that the State and Justice Departments be consulted by Treasury prior to this designation and blocking of assets. After designation is made and assets are blocked, OFAC regulations allow for a named party to petition OFAC to have its designation removed through an administrative appeal. Most petitioners initiate this administrative review process simply by writing OFAC. Exchanges of correspondence, additional fact- finding, and, often, meetings occur before OFAC decides whether there is a basis for removing the designation and unblocking assets. Once the named party has exhausted this administrative remedies process, OFAC's final decision can be challenged in federal court under the Administrative Procedure Act. To repeat, the Administrative Procedure Act, or APA, provides some due process protection under current law for an American to challenge the blocking of his or her assets pursuant to a Department of Treasury OFAC agency decision. However, a straightforward reading of section 805 of Title VIII makes clear that these existing statutory due process protections, referenced in the conference report as being unaffected by the bill, could well be, in fact, foreclosed if H.R. 1555 becomes law in its present form. More specifically, section 805(a) of the bill states, in part: ``A significant foreign narcotics trafficker publicly identified . . . shall be subject to any and all sanctions as authorized.'' Section 805(b) of the bill provides that ``all property and interests in property within the United States, or within the possession or control of any United States person'' are blocked effective as of the date of a report designating the significant foreign narcotics traffickers. And then the critically important language of section 805(f): ``The determinations, identifications, finding, and designations made pursuant to section 804 and subsection (b) of this section shall not be subject to judicial review.'' In sum, under Title VII, designation in the drug kingpin report automatically results in the blocking of assets, including any assets held by innocent U.S. citizens and businesses unaware of the association the foreign business entity allegedly has with narcotics trafficking. The blocking of assets, in turn, is not subject to judicial review, according to section 805(f) of the bill. Thus, Title VII would limit the statutory opportunity that exists today under the APA for innocent Americans to petition the courts to challenge the blocking of assets. Could American citizens and businesses with no knowledge of, or participation in, foreign narcotics trafficking find their assets blocked under Title VIII of this bill? Certainly. For example, an American business involved in a joint venture agreement with a foreign shipping firm could find its assets blocked under the provisions of Title VIII. Or, American citizens owning stock in a company found to be owned or operated by drug traffickers and money launderers could have their assets blocked and suffer devastating economic loss as a result, despite being innocent of any wrongdoing themselves. Under current law, the scenarios I have described resulting in the blocking of assets under the control of U.S. citizens, if not remedied in the administrative appeals process, could be challenged in federal court. Title VIII will have the effect of taking away this judicial appeal opportunity, thereby enhancing the authority federal bureaucrats have to not only hear but decide all challenges to Department of Treasury designation and asset blocking decisions. The Department of Treasury confirms this change in statutory due process protections in its November 10th letter to me: ``If H.R. 1555 is enacted, section 805(f) presumably would foreclose U.S. citizens from bringing a claim under the APA to challenge the blocking.'' That is what the Department of Treasury, the agency empowered under current law as expanded by Title VIII to block assets, says about how this bill will foreclose currently existing statutory due process protections. Mr. President, at this point I ask that both my November 8, 1999 letter to Secretary Summers and the November 10, 1999 reply from OFAC be printed in the Record in their entirety.

Mr. LEVIN

Mr. LEVIN. Mr. President, the Senate has now approved a long-time crusade of mine--that of speeding the development and delivery of anti- addition medications that block the craving for illicit addictive substances. This is one way in which we can fight and win the war on drugs--by blocking the craving for illegal substances. The proposal, which has now passed the Senate as embodied in S. 324, the Drug Addiction Treatment Act, which I introduced in January of this year along with Senator Hatch, Senator Moynihan and Senator Biden, will achieve this goal. Mr. President, the Drug Addiction Treatment Act, reported out of the Judiciary Committee as Sec. 18 of the Methamphetamine Anti- Proliferation Act of 1999, enables qualified physicians to prescribe schedule IV and V anti-addiction medications in their offices, under certain strict conditions. There are a number of reasons why this legislation is necessary. The Narcotic Addict Treatment Act of 1974, requires separate DEA registrations for physicians who want to use approved narcotics in drug abuse treatment and separate approvals of registrants by the U.S. Department of Health and Human Services (HHS) and by state agencies. The result has been a treatment system consisting primarily of large clinics, preventing physicians from treating patients in an office setting or in rural areas or small towns, thereby denying treatment to thousands in need of it. Additionally, experts say that many heroin addicts who want treatment are often deterred because of the stigma that is associated with such clinics. The medications Buprenorphine and Buprenorphone/naloxone combination have proven to be effective blockers of craving for heroin. Dr. Alan Leshner, Director of the National Institute on Drug Abuse (NIDA) substantiates this finding in the ``many NIDA funded studies [that] support the effectiveness, safety and efficacy of Buprenorphine and buprenorphine combined with naloxone for the treatment of opiate dependence.'' The intent of the Drug Addiction Treatment Act, S. 324, is to make it possible for medications like Buprenorphine, because of the unlikelihood of diversion or abuse, to be used effectively to block the craving for heroin. To do this, the medication must be made available in physician offices and there must be safeguards that such availability is not abused. The protections in the legislation against such abuse are as follows: Physicians may not treat more than 20 patients in an office setting unless the Secretary adjusts this number; the Secretary, as appropriate, may add to these conditions and allow the Attorney General to terminate a physician's DEA registration if these conditions are violated; and the program may be discontinued within three years after the date of enactment, if the Secretary and Attorney General determine that this new type of decentralized treatment has not proven to be an effective form of treatment. States may opt out of the provision. Also, nothing in the waiver policy is intended to change the rules pertaining to methadone clinics or other facilities or practitioners that conduct drug treatment services under the dual registration system imposed by current law. In crafting the waiver provisions of this legislation, we consulted with the U.S. Department of Health and Human Services, including the Federal Drug Administration, and the Drug Enforcement Administration. The National Institute on Drug Abuse (NIDA), in collaboration with a private pharmaceutical company developed Buprenorphine for the treatment of heroin addiction. Because of the reluctance of the pharmaceutical industry to become involved in developing anti-addiction medications, NIDA has played an active role in supporting research at every step of the drug development process. NIDA's Medications Development Division has been working to accelerate the identification, evaluation, development, and approval of new medications to treat drug addiction, which I call anti-addiction drugs. Through this process, NIDA has been able to bring a number of effective medications into drug treatment. In the case of Buprenorphine products, NIDA has supported research for many years which indicates that the medication is effective in blocking the craving for heroin. Mr. President, the crisis of illegal drug use continues to cost society both in human toll and in the loss of billions of dollars each year. Consider the startling and compelling findings of the January 1995 Institute of Medicine Report, which estimates the cost to society for drug abuse and dependence treatment at $66.9 billion in 1990 alone, and estimated the cost of drug-related crime at $46 billion that same year. A 1995 report of the Office of National Drug Control Policy tells us that users of illegal drugs spent $48.7 billion on the purchase of illicit substances to feed their addiction. Recent findings of the Monitoring the Future Program, headed by Dr. Lloyd Johnson of the University of Michigan, indicates that heroin use among American teens doubled between 1991 and 1998, and represents a clear and present danger for a significant number of American young people. Dr. Johnson attributes this to a ``sharp increase in use . . . resulting from adoption of non-injectable modes of administration-- smoking and snorting, in particular.'' Dr. Johnson goes on to say that ``the very high purity of heroin on the street has made these new developments possible and that unfortunately, a number of those users will become dependent on heroin and will switch over to injection, which is a more efficient way to derive the equivalent high'' The President of the Michigan Public Health Association, Dr. Stephanie Meyers Schim, has spoken out eloquently about the ``great problems'' of substance abuse. In her recent letter in support of S. 324, she says: Substance abuse affects health care costs, mortality, workers' compensation claims, reduced productivity, crime, suicide, domestic violence, child abuse, and increases costs associated with extra law enforcement, motor vehicle crashes, crime, and lost productivity. Dr. Schim goes on to say, ``Buprenorphine will allow drug addicted individuals to maximize everyday life activities, and participate more fully in work day and family activities while seeking the needed treatment and counseling to become drug free''. Dr. James H. Wood, Professor of Pharmacology at the University of Michigan Medical School recently wrote: ``One of the most important aspects of your bill is the use of Buprenorphine by well-trained physicians to treat narcotic addiction from their offices, which has the potential to attract and treat effectively sizable populations of currently untreated addicts . . . a major byproduct of this increased treatment, of course, will be reduction in the demand for illicit narcotics in the U.S.'' Dr. Thomas Kosten, President of the American Academy of Addiction Psychiatry echoed these sentiments in recent testimony on The Drug Addiction Treatment Act before the House Commerce Committee on Health and Environment, and I quote: ``. . . I would like to support the availability of Buprenorphine for office based practice. Addiction is a brain disease and office-based practice is primarily needed for effective treatment of Buprenorphine.'' The American Society of Addiction Medicine (ASAM), and the College on Problems of Drug Dependence which is the nation's longest standing organization of scientists addressing drug dependence and drug abuse, have stated that the availability of Buprenorphine in physicians' offices adds a needed expansion of current treatment for heroin addiction. ASAM also cautioned that Buprenorphine will have limited utility if it is tied to the regulatory structure for current treatments of heroin addiction. There are other compelling reasons why we must expedite the delivery of anti-addiction medications. Of the juveniles who land behind bars in state institutions, more than 60 percent of them reported using drugs once a week or more, and over 40 percent reported being under the influence of drugs while committing crimes, according to a report from the Bureau of Justice Statistics. Drug-related incarcerations are up and we are building more jails and prisons to accommodate them--more than 1000 have been built over the past 20 years. According to the July 14, 1999 Office of National Drug Control Policy Update, and I quote: ``Drug-related arrests are up from 1.1 million arrests in 1988 to 1.6 million arrests in 1997--steady increases every year since 1991.'' These sentiments were also expressed during a May 9, 1997 Drug Forum on Anti-addiction Research, which I convened along with Senator Moynihan, Senator Bob Kerrey and other members of the Senate. Forum participants, including distinguished experts such as Dr. Herbert Kleber and Dr. Donald Landry of Columbia University, Dr. Charles Schuster of Wayne State University and Dr. James Woods of the University of Michigan, made it crystal clear that time is of the essence--we must act expeditiously on new treatment discoveries that block the craving for illicit addictive substances. Mr. President, I received a very supportive letter from HHS Secretary Donna Shalala: ``I am especially encouraged by the results of published clinical studies of Buprenorphine. Buprenorphine is a partial mu opiate receptor agonist, in Schedule V of the Controlled Substances Act, with unique properties which differentiate it from full agonists such as methadone or LAAM. The pharmacology of the combination tablet consisting of Buprenorphine and naloxone results in . . . low value and low desirability for diversion on the street. Published clinical studies suggest that it has very limited euphorigenic affects, and has the ability to percipitate withdrawal in individuals who are highly dependent upon other opioids. Thus, Buprenorphine and Buprenorphine/ naloxone products are expected to have low diversion potential. Buprenorphine and Buprenorphine naloxone products are expected to reach new groups of opiate addicts--for example, those who do not have access to methadone programs, those who are reluctant to enter methadone treatment programs, and those who are unsuited to them (this would include for example, those in their first year of opiates addiction or those addicted to lower doses of opiates). Buprenorphine and Buprenorphine/naloxone products should increase the amount of treatment capacity available and expand the range of treatment options that can be used by physicians. Secretary Shalala went on to say, ``Buprenorphine and Buprenorphine/Naloxone would not replace methadone. Methadone and LAAM clinics would remain an important part of the treatment continuum.'' Mr. President, a companion bill has been introduced and reported out of Committee in the House. It is my hope that full House will act as expeditiously as the Senate on this important legislation.

Mr. LEVIN

Mr. LEVIN. Mr. President, I thank the good Senator from Maine for her leadership in this and so many other consumer issues. This bill would not be here on the floor of the Senate without her leadership on the Permanent Subcommittee on Investigations, which has taken responsibility for getting this bill passed. S. 335, the bill we have just passed and sent to the President is going to crack down on deceptive sweepstakes practices that have affected people in all of our States. Most of us have personal knowledge of the kind of egregious deceptive practices which have been perpetrated by too many companies, including some otherwise reputable companies that are using deceptive practices to suck into their net people who will be lured into believing that if they buy something or subscribe to something, somehow or other that will increase their chances of winning a prize. The bill we are passing today is similar to one I had introduced in the 105th Congress to curb abuse of sweepstakes solicitations and provide for additional enforcement tools against deceptive mailings by the Postal Service. There were hearings held in September of 1998 in the Governmental Affairs Committee Federal Services Subcommittee that was then chaired by Senator Cochran. We learned from witnesses at that hearing, including the Florida attorney general, the Michigan assistant attorney general, and the Postal Inspection Service, that senior citizens in particular are vulnerable to these deceptive solicitations and that the financial cost to seniors for deceptive and fraudulent sweepstakes is a serious problem. Deceptive sweepstakes solicitations not only cause significant financial losses but frequently carry heavy emotional losses as well. We have constituents in Michigan, seniors, who have lost tens of thousands of dollars to deceptive sweepstakes. Their houses are frequently filled with hundreds of items they don't need that they bought because they thought somehow or other it might help them win the promised prize. The Postal Service has inadequate tools to effectively shut down these deceptive marketing people, so we have added some tough enforcement tools in this bill. Until this bill becomes law, the Postal Service, for instance, cannot impose a fine against a promoter who uses deceptive practices until the Postal Service first issues a stop order. Now, if you wait for a stop order to be violated before you can impose an administrative fine, what the deceptive sweepstakes promoter does is slightly modify in some way the deceptive mailing that is the subject of the stop order so they can avoid being caught by a violation of the Postal Service stop order. The Postal Service currently is too often powerless to stop these kinds of deceptive practices and the slight changes which are made in them which allow the companies that are using these practices to continue and ignore what appears to be a stop order. In March and July of this year, Senator Collins chaired hearings in the Permanent Subcommittee on Investigations, where I serve as ranking member. The bill we are taking up today, S. 335, reflects what we learned at those hearings as well. Senator Collins has set forth for us some of the egregious examples. I will not take the time of this body to go through some of these additional examples we have. We have seen them all. We have seen the big print that says, ``you have just won a big prize;'' we have seen the fine, unreadable print that says but only ``if you have the winning number;'' the headline which says ``a million dollars is yours'' or ``just submit this number'' and you will have this big prize. The fine print says ``no,'' you haven't. We have all seen those kinds of examples and the way people are taken in. Fortunately, most people aren't taken in, but enough people are, so that a billion pieces of this kind of mail, sweepstakes mail, is sent out each year, including by some companies that are otherwise companies that have good reputations. We have had these kinds of deceptive mailings sent out by Time Warner, by Reader's Digest, by other companies whose names have generally prompted positive responses in people because their products have been good products. Yet they have stooped, in the case of sweepstakes, to deceptive practices in order to lull the people who receive these sweepstakes mailings into believing that if they will just buy that magazine or just buy that product, they will really seal the deal and the truck will really show up with the check. We have seen these ads on television, the come-ons. Thank God, 90 or 95 percent of the people look at them and can see them for what they are. It is that 5 or 10 percent, frequently seniors, who are taken in. We are trying to stop these practices. This bill, hopefully, will do exactly that. We are going to require that the statement that a purchase will not increase an individual's chances of winning and that no purchase is necessary to win be clearly and conspicuously displayed in the mailing--in fact more conspicuously displayed than the other information in the mailing. The House changed the term ``prominently'' in our Senate bill, which was used to describe how these two key required statements must be displayed and substituted ``more conspicuously'' for ``prominently'' to better match previous uses of the term. The intent of both houses on this subject is the same, however, and we have emphasized that point in the committee report. There should be no misunderstanding by the Postal Service and by the direct mail industry on what we intend by this. S. 335 is also going to provide the Postal Service with authority to issue a civil penalty for the first-time violation of the statute, and we are going to give the Postal Service subpoena authority. Those are some of the things we have done. Again, I thank the good Senator from Maine, Ms. Collins, her staff, my staff, Linda Gustitus and her good crew, who have made it possible for this bill to happen. Senator Edwards has been extremely helpful with his provision requiring a delisting of persons not wanting to receive sweepstakes mailings. Senator Cochran has been very much in the forefront of this effort. Again, the majority and minority staffs of the Permanent Subcommittee on Investigations have done an absolutely superb job of putting together these hearings and developing this legislation. I am confident that with the Senate's passage today, the President will sign the bill into law. It is a bill that will help end the abuses which too often occur in this area and which take advantage of people who are too often vulnerable to the power of suggestion.

Mr. LEVIN

Mr. LEVIN. Mr. President, I am very pleased that the Senate is about to approve H.R. 748, legislation to repair a constitutional defect in the way the advisory commission was structured in the Act which established the Keweenaw National Historical Park. The Act instructed the Secretary of the Interior to select an Advisory Commission from a list of nominees provided by state and local officials. The Justice Department has taken the position that this provision violates the Appointments Clause of the Constitution (Article II, Section 2). Mr. President, I have worked hard to pass this legislation in the Senate which has already passed the House of Representatives. With the President's signature, this legislation can now become law, relieving the uncertainty and ambiguity relative to the commission which has lasted too long by permitting the appointment of the advisory commission to move forward. This will greatly assist in my efforts and those of the many supporters and admirers of this beautiful and historic park. Along with the money being appropriated today for the park, we are giving a major boost to the preservation of this significant part of Michigan's and America's history.

Mr. LEVIN

Mr. LEVIN. Mr. President, I voted in support of the Byrd amendment to provide for a 2-year moratorium during which mountain top mining activities may continue under a memorandum of agreement with the Environmental Protection Agency, the Department of Interior and the Army Corps of Engineers. The EPA which is in charge of implementation of the Clean Water Act was a party to the agreement which would continue to force during the 2-year moratorium. An environmental impact study will go forward during the moratorium and regulations pursuant to the environmental impact statement can be promulgated. My vote on this amendment does not commit me to support the continuation of any such moratorium beyond this 2-year period during which the courts and the regulatory agencies will more fully evaluate the impacts on both the environment and the affected coal miners and their communities. The fact that the court has stayed the effect of its own opinion is further evidence that this legislative moratorium is both warranted and will do no damage to the underlying act.

Mr. LEVIN

Mr. LEVIN. Mr. President, in July, when the Senate debated the Commerce, Justice, State, and Judiciary fiscal year 2000 spending bill, an important amendment was adopted to the bill. That amendment, offered by my colleague Senator Boxer, would have made it illegal to sell or transfer firearms or ammunition to anyone under the influence of alcohol. Unfortunately, the House-Senate conference committee, in working out the differences between the two versions of this spending measure, removed the Senate-passed amendment from the final bill. I do not understand how something so simple, so straightforward, could be deleted from the final bill. This amendment does nothing more than save lives and prevent injuries by prohibiting drunks from buying guns or ammunition. Under current law, it is illegal to sell firearms or ammunition to a purchaser under the influence of illicit drugs. This would simply close the loophole by making it illegal for someone under the influence of alcohol to purchase the same products. It is unconscionable that House and Senate conferees deleted this common-sense provision from the bill. Unfortunately, this is just another example of how reasonable legislation is repeatedly stymied by the power of the NRA.