Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment upon the death of one of America's great lawyers, Joseph A. Ball. On Saturday, the New York Times carried an extensive account of his background and history and accomplishments. I ask unanimous consent that at the conclusion of my remarks the copy of the New York Times article be printed in the Record.

Mr. SPECTER. The Times article details the specifics on the positions held by Mr. Ball in the lawyers associations, his professorial associations as a teacher, his experience as a criminal lawyer, and his experience, most pointedly, as one of the senior counsel to the Warren Commission, the President's commission which investigated the assassination of President Kennedy. It was on the Warren Commission staff that I came to know Joe Ball. The original complexion of the Warren Commission on staffing was that there were six senior counsel who were appointed and six junior counsel. That distinction was replaced by putting all of the lawyers under the category of assistant counsel. But if there was a senior counsel, it was Joe Ball. Then, in his early sixties, he was a tower of strength for the younger lawyers. When the commission began its work, I was 33. Most of the junior lawyers were about the same age. We looked to Joe Ball for his experience and for his guidance. He had a special relationship with Chief Justice Earl Warren, which was also helpful because Joe Ball could find out what Chief Justice Warren had in mind in his capacity as chairman and provide some valuable insights that some of the younger lawyers were unable to attain. Joe Ball worked on what was called area two, along with the very distinguished younger lawyer, David Belin from Des Moines, IA. Area two was the area which was structured to identify the assassin. Although the initial reports had identified Lee Harvey Oswald as the assassin, and on television, on November 24, America saw Jack Ruby walk into the Dallas police station, put a gun in Oswald's stomach and kill him, the Warren Commission started off its investigation without any presumptions but looking at the evidence to make that determination as to who the assassin was. My area was area one, which involved the activities of the President on November 22, 1963. There was substantial interaction between the work that Joe Ball and Dave Belin did and the work which was assigned to me and Francis W.H. Adams, who was senior counsel on area one. Frank Adams had been New York City police commissioner and had been asked to join the Warren Commission staff when Mayor Wagner sat next to Chief Justice Warren at the funeral of former Governor and former Senator, Herbert Lehman. Mayor Wagner told Chief Justice Warren that Frank Adams, the police commissioner, knew a lot about Presidential protection and had designed protection for motorcades in New York City, with dangers from tall buildings, which was an analogy to what happened to President Kennedy. There was question as to how we would coordinate our work, and it was sort of decided that Joe Ball and Dave Belin would investigate matters when the bullet left the rifle of the assassin in flight, which was no man's land, and when it struck the President. That came into area one, which was my area: the bullet wounds on President Kennedy, the bullet wounds on Governor Connally, what happened with the doctors at Parkland Hospital, what happened with the autopsy, all matters related to what had happened with President Kennedy. We had scheduled the autopsy surgeons for a Monday in early March. They were Lieutenant Commander Boswell, Lieutenant Commander Humes and Lieutenant Colonel Pierre Finck. The autopsy was done at Bethesda, where President Kennedy was taken, because of the family's preference that he go to a naval installation because he was a Navy man, so to speak, who had served in the Navy. The testimony was to be taken on this Monday in March. There was quite a debate going on with the Warren Commission staff as to whether we should talk to witnesses in advance. It seemed to many of us that we should talk to witnesses in advance so we would have an idea as to what they would testify to so we could have an orderly presentation, which is the way any lawyer talks to a witness whom he is about to call. The distinguished Presiding Officer has been a trial lawyer and knows very well to what I am referring. There was a segment on the Warren Commission staff which thought we should not talk to any witnesses in advance, lest there be some overtone of influencing their testimony. Finally, this debate had to come to a head, and it came to a head the week before the autopsy searchers were to testify. And on Friday afternoon, Joe Ball and I went out to Bethesda to talk to the autopsy surgeons. It was a Friday afternoon, much like a Friday afternoon in the Senate. Nobody else was around. It was my area, but I was looking for some company, so I asked Joe Ball to accompany me--the autopsy surgeons falling in my area. We took the ride out to Bethesda and met the commanding admiral and introduced ourselves. We didn't have any credentials. The only thing we had to identify ourselves as working on the Warren Commission was a building pass for the VFW. My building pass had my name typed crooked on the line, obviously having been typed in after it was signed. They sign them all and then type them in. It didn't look very official at all. So when Commander Humes and Commander Bozwell came down to be interviewed, Commander Humes was very leery about talking to anybody. He had gone through some travail with having burned his notes and having been subjected to a lot of comment and criticism about what happened at the autopsy, and there were FBI agents present when the autopsy was conducted. A report had come out that the bullet that had entered the base of the President's neck had been dislodged during the autopsy by massage. It had fallen out backward as opposed to having gone through the President's body, which was what the medical evidence had shown. That FBI report that the bullet had entered partially into the President's body and then been forced out had caused a lot of controversy before the whole facts were known. Later, it was determined that the first shot which hit the President--he was hit by two bullets--well, the second shot, which hit him in the base of the skull, was fatal, entering the base of the skull and exiting at the top at 13 centimeters, 5 inches--the fatal wound. The first bullet which hit the President passed between two large strap muscles, sliced the pleural cavity, hit nothing solid and came out, and Governor Connally was seated right in front of the President and the bullet would have to have hit either Governor Connally or someone in the limousine. After extensive tests were conducted, it was concluded that the bullet hit Governor Connally. There has been a lot of controversy about the single bullet theory, but time has shown that it is correct. A lot of tests were conducted on the muzzle velocity of the Oswald rifle. It was identified as having been Oswald's, purchased from a Chicago mail order store. He came into the building with a large package which could have contained the rifle. He said they were curtain rods for an apartment which already had curtains. The muzzle velocity was about 2,200 feet per second, and the velocity after traveling about 275 feet was about 1,900 feet per second. At any rate, as Joe Ball and I went through it with the autopsy surgeons, we found for the first time--because we had only seen the FBI reports--that the bullet did go through President Kennedy and decreased very little in velocity. It was at that moment when we talked to Dr. Humes and Dr. Finck that we came to hypothesize that that bullet might have gone through Governor Connally. We didn't come to a conclusion on that until we had reviewed very extensive additional notes, but it was on that occasion that Joe Ball and I had interviewed the autopsy surgeons. It was a marvel to watch Joe Ball work with his extensive experience as a lawyer and as a fact finder. He lived to the ripe old age of 97. The New York Times obituary had very extensive compliments about a great deal of his work and focused on his contribution to the Warren Commission, where he had written an extensive portion of the Warren Report, as he was assigned to area two which compiled a fair amount of the report. America has lost a great patriot in Joe Ball, a great citizen, a great lawyer, and a great contributor. I had the pleasure of knowing him and working with him on the Warren Commission staff and have had occasion to reminisce with him about his work. I noted that on his office wall in California is his elegantly framed building pass. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I thank the distinguished majority leader for his statement. I appreciate his last statement that he doesn't necessarily agree with me, which leaves some room that he doesn't necessarily disagree with me. I am not looking for a response at this time. Senator Lott is well known to have an open mind on controversial issues and on matters not debated. I agree with him when he says it is subject to passionate feelings on both sides. We had debates and witnesses. We had seven hearings on this issue. We had Senator Brownback, the principal opponent of the legislation, to testify, and Congressman Jay Dickey, the principal opponent of the legislation in the House, to testify. The hearings have always been balanced, and we have had people who have opposed the legislation at every one of the hearings. It is a matter which is appropriate for the Senate to consider. I appreciate what the majority leader has said about giving consideration to an early listing next year, and not making a commitment on pressing a cloture motion. I think a cloture motion could be filed by any 17 Senators. But we are not going to get involved in that at this time. But I did want to say for the Record why I believe it is important that the matter be considered. And it is because stem cells have such a remarkable opportunity to cure many of the most difficult maladies and diseases which confront America and the world today. These stem cells have the potential to be placed in the human body to replace other cells. We had testimony, for example, from Michael J. Fox, who suffers from Parkinson's. We had the experts testify that these stem cells could be enormously effective in curing Parkinson's. That is an obtainable goal perhaps in as early as 5 years. The stem cells may also be useful on Alzheimer's disease, on strokes, on spinal cord injuries, perhaps on cancer, and perhaps on heart ailments. There is virtually no limit to what these stem cells can do. They are a veritable fountain of youth. I have said publicly that I understand those on the other side of the issue. It involves taking an embryo which has been created for purposes of in vitro fertilization but not used. These embryos are discarded. There are some 100,000 embryos in existence today which will not be used. So the issue is whether you simply discard these embryos which will have no further effect, or whether you use these embryos to produce stem cells which can cure many very serious maladies. There are other alternatives such as adult stem cells. But the scientific evidence has been very compelling, in my judgment, that adult stem cells cannot do the job, but stem cells can from embryos. There are also stem cells from fetal tissue. Those stem cells are limited, and we really need the stem cells from these embryos to provide the research opportunities to cure so many of these ailments. This is not an issue which is going to lead to the creation of embryos for the purposes of extracting stem cells. When we have the fetal tissue discussion, many people are concerned that they will produce more abortions to have fetal tissue available. In fact, that was not the case--fetal tissue was used from abortions which would have occurred in any event. It is not a controversial pro-life versus pro-choice issue as we have had many Senators who are strongly pro-life support stem cell research in this legislation. Senator Strom Thurmond, who is very strongly pro- life and an acknowledged very conservative Senator, testified before the subcommittee in favor of this legislation to have Federal funding for extraction of stem cells from embryos. Senator Connie Mack of Florida has spoken about this bill, another pro-life Senator speaking in favor of it. Very strong statements have come from Senator Gordon Smith, who is pro-life and very concerned about these underlying issues, as to why he feels the balance is in favor of this sort of legislation. Since the issue was mentioned and there is not another Senator on the floor seeking recognition, I thought I would explain in abbreviated form where this legislation is pending, and why I have been pressing. It comes naturally within the subcommittee of appropriations which I chair. The prohibition against use of Federal funds to extract stem cells from embryos was placed in a bill which came out of this subcommittee. When the prohibition was imposed, there was no one who really knew the miraculous potential of stem cells, it being a veritable fountain of youth. This only came into existence with the research disclosed in November of 1998. Since that time, our subcommittee has had seven hearings to explore the issue very fully. It is my hope that the matter will come before the Senate early next year. I appreciate what the majority leader has had to say. We will let the Senate work its will. Let us consider it. Let us debate it. Let us analyze it and come to judgment on it, which is our role as legislators, in a way which considers all of the claims and considers all of the positions but resolves the matter so that public policy will be determined in accordance with our constitutional standards and our legislative procedures. I thank the Chair. I yield the floor. In the absence of any other Senator seeking recognition, I suggest the absence of a quorum.

Mr. SPECTER. Mr. President, I was not on the floor a few moments ago when the distinguished majority leader and the assistant leader for the Democrats had a colloquy when the majority leader propounded a unanimous consent request concerning legislation on stem cells. I think it useful to make a brief comment or two and then to have, if I might, a brief discussion with the majority leader about what will happen on the future of the bill. The stem cell legislation in question would eliminate the prohibition now in effect which limits the use of Federal funds, principally from the National Institutes of Health, from paying for extracting stem cells from embryos. Once the stem cells have been extracted from embryos, then Federal funds may be used on their research, and private funds--if I might have the attention of the majority leader for a moment while we discuss the stem cell issue, as to what is going to happen next. Without describing the legislation--which I can in a minute--I ask the distinguished majority leader what he anticipates in the future. When this issue to eliminate the limitation on funding was stricken from the appropriations bill last year, it was done so after I consulted with the majority leader because concluding it would have resulted in a filibuster and tied up that appropriations bill. The majority leader made a commitment, which he has fulfilled today, to bring the bill to the floor. It had been my hope that we would have had the bill on the floor at an earlier time, but I fully understand the complexities of the schedule; and once we had reached September, the only way to deal with the matter was on a limited time agreement to be obtained through unanimous consent. So it is my hope that the intent and the thrust of what was proposed--I think intended--was that that the bill would be on the calendar and considered when we reconvened, when it would not have to be subjected to a unanimous consent request, but it might have to pass a filibuster vote on a motion to proceed.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to explain briefly an action that I, as chairman of the Senate Committee on Veterans' Affairs, propose to take today with respect to a House-passed bill, H.R. 4864. I take this action with the concurrence and support of the committee's ranking member, Senator Jay rockefeller and Senator Patty Murray, the original sponsor of Senate legislation, S. 1810, to reinstate VA's duty to assist claimants in the preparation of their claims. In 1999, the United States Court of Appeals for Veterans claims issued a ruling, Morton v. West, 12 Vet. App. 477 (1999), which had the effect of barring the Department of Veterans Affairs (VA) from offering its assistance to veterans and other claimants in preparing and presenting their claims to VA prior to the veteran first accumulating sufficient evidence to show that his or her claim is ``well grounded.'' This decision overturned a long history of VA practice under which VA had taken upon itself a duty to assist veterans in gathering evidence and otherwise preparing their claims for VA adjudication. That practice was grounded in a long VA tradition of non-adversarial practice in the administrative litigation of veterans' claims. For over a year, the Senate Committee on Veterans' Affairs has worked to craft, and then to develop VA and veterans service organization support for, a legislative solution that returns VA to the pre-Morton status quo ante, and reinstates VA's duty to assist veterans and other claimants in the preparation of their claims. The product of the Senate committee's work is contained in section 101 of S. 1810, a bill which was approved by the Senate on September 21, 2000. Since S. 1810 was reported, however, committee staff has worked with the staff of the House Veterans' Affairs Committee to reconcile the provisions of section 101 of S. 1810 and a similar bill, H.R. 4864, which passed the House of Representatives on July 25, 2000. The Senate and House committees have now reached such an agreement, and have reconciled the differences between the Senate- and House- passed provisions. Those differences--which are, principally, matters of tone and emphasis, not substance--are contained in the proposed amendment to H.R. 4864 which I present to the Senate today and which is explained in detail in the staff-prepared joint explanatory statement which I have filed with the amendment's text. This compromise agreement has been reached after extensive consultation with VA's general counsel and the major veterans service organizations. I now ask that the Senate approve this compromise agreement by approving the proposed amendments to H.R. 4864. The House will then be in a position to approve the Senate-passed amendments to the House bill and send this legislation to the President for his signature.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to introduce legislation on behalf of Senator Biden and myself, a bill which, succinctly stated, would provide the following: The Supreme Court of the United States shall permit television coverage of all open sessions of the Court unless the Court decides by a vote of the majority of Justices that allowing such coverage in a particular case will constitute a violation of the due process rights of one or more of the parties before the Court. I will summarize that lengthy statement because of time limitations. The statement contains the citations of the cases referred to and the specific quotations which I shall cite. The purpose of this legislation is to open to public view what the Supreme Court of the United States does in rendering important decisions. It is grounded on the proposition that since the Supreme Court of the United States has assumed the power to decide the cutting- edge questions on public policy today and has in effect become virtually a ``super legislature'' in taking on the decisions on these public policy issues, that the public has a right to know what the Supreme Court is doing, and that right would be substantially enhanced by televising the oral arguments of the Court so that the public would be able to see and hear the kinds of issues which the Court is deciding. The public would then have an insight into those issues to be able to follow what the Court decides after the due course of the Court's deliberations. In a very fundamental sense, the televising of the Supreme Court has been implicitly recognized--perhaps even sanctioned--by a 1980 decision of the Supreme Court of the United States in a case captioned Richmond Newspapers v. Virginia, where the Supreme Court noted that a public trial belongs not only to the accused, but to the public and the press as well; and that people now acquire information on court procedures chiefly through the print and electronic media. That decision, in referencing the electronic media, perhaps might be said to anticipate televising court proceedings, although I do not mean to suggest that the Supreme Court is in agreement with this legislation. It might be appropriate to note at this juncture that the Court could, on its own motion, televise its proceedings but has chosen not to do so, which presents, in my view, the necessity for legislation on this subject. If one goes to the chambers of the Supreme Court, which are right across the green here in the Capitol complex, one may enter and observe the Court's arguments because they are public. Newspaper reporters are permitted to be in the Court. No cameras are permitted in the Court, of even still pictures, so when television wishes to characterize an argument, they have to send in an artist to have an artist's renderings. When I argued the case of the Navy Yard back in 1964, the Court proceedings were illustrated by an artist's drawings. But in the year 2000, when the public gets a substantial portion, if not most, of its information from television, the availability strictly to the print media, is insufficient to give the public a real idea as to what is going on in the Supreme Court of the United States. The Supreme Court has traditionally had an agenda. It is really nothing new. The Warren Court vastly expanded criminal rights. In the year 2000, I think no one would question at least some of the Warren Court's decisions, saying that anybody who is being prosecuted in a criminal proceeding has a right to counsel. It is really surprising to note that before 1963, the case of Gideon v. Wainwright, the defendant in a criminal case did not have a right to counsel except in murder cases. There is no doubt that the Supreme Court of the United States in the 1930s had an agenda in striking down New Deal legislation. And then, in a historic move, President Franklin Delano Roosevelt, an enormously popular President in the mid- to late 1930's, very unhappy about the Supreme Court's activism in striking down New Deal legislation by five to four decisions--President Roosevelt suggested packing the Court by adding six additional Justices. There was quite a public reaction adverse to that proposal. Perhaps the Supreme Court of the United States had more public attention at that particular time than at any other time in its history. In the face of what was happening, a Supreme Court Justice, Owen J. Roberts, who happened to be from Philadelphia, my hometown, decided to change his position and to support and hold constitutional the New Deal legislation leading to the famous phrase ``a switch in time saves nine,'' from the old adage about ``a stitch in time saves nine.'' The switch by Supreme Court Justice Owen Roberts, it is said, saved the nine-person constituency of the Supreme Court. The Rehnquist Court, I submit, is unusually activist in pursuing its agenda. The Court has stricken acts of Congress, saying: No Congressman or Senator purported to present a considered judgment, Or striking acts of Congress saying there was a: lack of legislative attention to the statute at issue, Or striking an act of Congress saying the legislation was: * * * an unwarranted response to perhaps an inconsequential problem, Or declaring an act of Congress unconstitutional saying: Congress had virtually no reason to believe [that the statute was well founded.] There is no effort here to challenge the authority of the Supreme Court of the United States to have the final word. That has been established since Marbury v. Madison in 1803. I believe it is necessary that the Supreme Court of the United States have the final word on interpreting the Constitution and beyond that on saying what is a constitutional question. But given the breadth of the Court's authority and given the sweeping scope of what the Court is doing, the point is that there ought to be public knowledge and there ought to be a public response. Because I think it is fair to say that the Court is aware and does watch the public response, and it ought to really be a factor in whatever the Court decides to do--again, recognizing that the Court has the final say. In June of 1999, the Supreme Court curtailed congressional authority in favor of the rights of States to sovereign immunity on patents and copyrights, not withstanding the express constitutional grant of authority to Congress to regulate patents and copyrights. Those cases led former Solicitor General Walter Dellinger, formerly a professor and a leading constitutional scholar, to describe these cases as: * * * one of the three or four major shifts in constitutionalism we have seen in the last three centuries. Those particular cases were subject to very substantial criticism by Professor Rebecca Eisenberg of the University of Michigan Law School, commenting on Florida Prepaid Postsecondary Education v College Savings Bank: * * * the decision makes no sense, Asserting that it arises from a: * * * bizarre States' rights agenda that really has nothing to do with intellectual property. The Court's decisions have moved, as I have noted, really onto the cutting edge of so many of the critical issues which are matters of great national concern. The Court has decided issues from birth to death and the vital issues in between, making the decision on the constitutional right to an abortion; making decisions on how the death penalty will be imposed; making decisions on the questions of freedom of religion, as illustrated by the case of City of Boerne v. Flores, where the Court struck down the Religious Freedom Restoration Act. Freedom of religion, of online speech, in Reno v. ACLU, the Court struck down two provisions of the Communications Decency Act of 1998; Prince v. United States, the Court, by a 5-to-4 decision, reversed some six decades of firmly established constitutional authority on the supremacy of Federal laws over States under the commerce clause. And, in the Lopez case in 1995, the Supreme Court of the United States invalidated congressional authority, which had been intact for some 60 years under the commerce clause. So we have seen the expansion of the authority of the Supreme Court of the United States in so many lines, really, taking on the aura and the perspective of a superlegislature. Justice Felix Frankfurter perhaps anticipated the day when the Supreme Court arguments would be televised when he said that he longed for a day when: The news media would cover the Supreme Court as thoroughly as it did the World Series, since the public confidence in the judiciary hinges on the public's perception of it, and that perception necessarily hinges on the media's portrayal of the legal system. It is interesting to note that the columns of the Senate match up exactly with the columns of the Supreme Court of the United States. In the early deliberations on the Constitution, there were proposals that Supreme Court Justices ought to be appointed by the Senate. I am not sure quite how that would have worked out given our large groupings and how we would go about making those decisions, but that was once thought about. There was a constitutional amendment proposed that would have allowed Supreme Court decisions to be overruled by a two-thirds vote of the Senate, a proposal which I think would have been very unwise and did not get very far. The Senate does have the constitutional authority on confirmation of Supreme Court Justices, perhaps our most important function as so many major decisions have been decided by a single vote on 5-4 decisions: 79 such decisions in the past 5 years; 20 such decisions in the last term of the Court. The Court has been a strong point in our historical development, but as the Court has expanded into areas traditionally reserved for Congress, functioning virtually as a superlegislature, without in any way challenging the independence of the Court, the independence of the Federal judiciary, I do believe it is appropriate for the Congress to speak on the operation of the Court. The Congress has the authority to establish the number of Justices so that if the Congress chose, we could expand the number beyond nine or curtail it. The Congress has established the number six as a quorum for the Court. The Congress has the authority to establish the jurisdiction of the Supreme Court of the United States and, in the landmark case of Ex parte McCardle, decided that the jurisdiction of the Court could be curtailed even on constitutional grounds. Frankly, I do not think that 1868 decision would stand today as to the authority of the Congress to curtail the jurisdiction of the Court on constitutional grounds, but during confirmation proceedings when those questions are asked, the nominees choose to leave that as an open question. It does remain an open question. Televising, of course, is vastly different and a far range from the issue of jurisdiction. The Congress of the United States has established the time limits for Federal trials under the speedy trial limit and has established time limits for consideration of habeas corpus cases. So there is ample authority for the Congress to call for the opening of the Supreme Court for television. Obviously, there are issues of separation of power which I think this legislation respects. Obviously, the final decision will be for the Court. I do not expect a rush to judgment on this very complex proposition, but I do believe the day will come when the Supreme Court of the United States will be televised. That day will come, and it will be decisively in the public interest so the public will know the magnitude of what the Court is deciding and its role in our democratic process. The public's interest would be significantly promoted by televising the proceedings of the Supreme Court of the United States. Given the enormous importance of the decisions made by the Court, and the fact that so many of these decisions are really public policy choices rather than strictly legal decisions, the public deserves as much access as possible to the Court's proceedings. This proposed legislation to televise sessions of the Supreme Court fully respects the authority of the Supreme Court to make the ultimate decision on Constitutional questions. It seeks to impose greater accountability upon a body which decides so many matters of the greatest importance to our country, often by a single vote. In the normal course of events, the Supreme Court often renders opinions which, at their core, decide cutting-edge issues which are really within the legislative domain under the Constitutional doctrine of Separation of Powers. In recent years the Supreme Court has exaggerated this policy role by explicitly substituting its judgment for that of Congress and striking down legislation which it has found is not based upon a ``considered judgment.'' In our Constitutional scheme, who are the justices of the Supreme Court to substitute their judgment for that of Congress on these issues of public policy? By what right do the Justices decide that Congress has not exercised a ``considered judgment''? When it rules on this basis, the Court goes far beyond its role as final Constitutional arbiter and becomes a super legislature. Senator Biden cogently addressed this issue in a July 26, 2000 floor statement. After discussing a number of recent Supreme Court opinions in which the Court exceeded its authority to strike down laws passed by Congress, Senator Biden noted that: It is crucial . . . that the American people understand the larger pattern of the Supreme Court's recent decisions and . . . the disturbing direction in which the Supreme Court is moving because the consequences of these may well impact upon the ability of American citizens to ask their elected representatives in Congress to help them solve national problems that have national impact. . . . Make no mistake, what is at issue here is the question of power . . . basically whether power will be exercised by an insulated judiciary or by the elected representatives of the people. The public has a right to know how, why and what the Court is doing. In particular, the deliberations of the Court should be open to the sunshine of public scrutiny. Television coverage would be a significant step to provide a meaningful opportunity for public to observe and understand what the Court is doing. Beyond educating the public, enhanced public scrutiny may very well have the effect of discouraging judicial activism and overreaching. The example of Justice Owen Roberts is instructive. In the mid-1930's, the Supreme Court struck down many significant pieces of New Deal legislation by votes of 5 to 4. President Roosevelt went to great lengths to publicize this episode of judicial activism, culminating in his infamous proposal to pack the Supreme Court by adding six new members. Notwithstanding FDR's enormous popularity, that proposal raised a storm of protest and failed. In the midst of that controversy, a swing justice, Owen J. Roberts, shifted his position to support the New Deal programs. Accordingly, a majority of the Court then supported and upheld New Deal legislation. Justice Robert's change in position led to the famous phrase, ``a switch in time saves nine.'' The current Court broke with sixty years of tradition in curtailing Congress's authority under the Commerce Clause in Lopez, which invalidated Federal legislation creating gun-free school zones. In June 1999 in three far-reaching decisions, the Supreme Court curtailed Congressional authority in favor of the right of states to sovereign immunity on patent, copyright and other intellectual property infringement matters. These cases are: College Savings Bank v. Florida Prepaid, 527 U.S. 666, Florida Prepaid v. College Savings Bank, 527 U.S. 627, and Alden v. Maine, 527 U.S. 706. The June 1999 patent and copyright infringement cases have been roundly criticized by the academicians. Stanford University historian Jack Rakove, author of ``Original Meanings'', a Pulitzer Prize winning account of the drafting of the Constitution, characterizes Justice Kennedy's historical argument in Alden v. Maine as ``strained, even silly''. Professor Rebecca Eisenberg of the University of Michigan Law School, in commenting on Florida Prepaid Postsecondary Education Expense Board vs. College Savings Bank, said: ``The decision makes no sense'', asserting that it arises from ``a bizarre states' rights agenda that really has nothing to do with intellectual property. Harvard Professor Laurence Tribe commented: ``In the absence of even a textual hint in the Constitution, the Court discerned from the constitutional `ether' that states are immune from individual lawsuits.'' (These decisions are) ``scary''. ``They treat states' rights in a truly exaggerated way, harking back to what the country looked like before the civil war and, in many ways, even before the adoption of the Constitution.'' College Savings Bank v. Florida Prepaid 1999 U.S. LEXIS 4375, Florida Prepaid v. College Savings Bank 1999 U.S. LEXIS 4376 and Alden v. Maine, 1999 U.S. LEXIS 4374. In addition to treating the Congress with disdain, the five person majority in all three cases demonstrated judicial activism and exhibited what can only be viewed as a political agenda in drastically departing from long-standing law. Former Solicitor General Walter Dellinger described these cases as: ``one of the three or four major shifts in constitutionalism we've seen in two centuries.'' A commentary in the Economist on July 3, 1999 emphasized the Court's radical departure from existing law stating: ``The Court's majority has embarked on a venture as detached from any constitutional moorings as was the liberal Warren Court of the 1960's in its most activist mood.'' In its two opinions in College Savings Bank v. Florida Prepaid and Florida Prepaid v. College Savings Bank, the Court held that the doctrine of sovereign immunity prevents states from being sued in Federal court for infringing intellectual property rights. These decisions leave us with an absurd and untenable state of affairs. Through their state-owned universities and hospitals, states participate in the intellectual property marketplace as equals with private companies. The University of Florida, for example, owns more than 200 patents. Furthermore, state entities such as universities are major consumers of intellectual property and often violate intellectual property laws when, for example, they copy textbooks without proper authorization. But now, Florida and all other states will enjoy an enormous advantage over their private sector competitors--they will be immune from being sued for intellectual property infringement. Since patent and copyright infringement are exclusively Federal causes of action, and trademark infringement is largely Federal, the inability to sue in Federal court is, practically speaking, a bar to any redress at all. The right of states to sovereign immunity from most Federal lawsuits is guaranteed in the Eleventh Amendment to the constitution, which provides that: The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state. It has long been recognized, however, that this immunity from suit is not absolute. As the Supreme Court noted in one of the Florida Prepaid opinions, the Court has recognized two circumstances in which an individual may sue a state: First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment--an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Secondly, a state may waive its sovereign immunity by consenting to suit. College Savings Bank v. Florida Prepaid at 7. Congress' power to enforce the Fourteenth Amendment is contained in Section Five of the Fourteenth Amendment, which provides that ``The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.'' One of the provisions of the Fourteenth Amendment, Section One, provides that no State shall, ``deprive any person of . . . property . . . without due process of law.'' Accordingly, Congress has the power to pass laws to enforce the rights of citizens not to be deprived of their property--including their intellectual property--without due process of law. Employing this power under Section 5 of the Fourteenth Amendment, Congress passed the Patent Remedy Act and the Trademark Remedy Clarification Act in 1992. As its preamble states, Congress passed the Patent Remedy Act to ``clarify that States . . . are subject to suit in Federal court by any person for infringement of patents and plant variety protections.'' Congress passed the Trademark Remedy Clarification Act to subject the States to suits brought under Sec. 43 of the Trademark Act of 1946 for false and misleading advertising. In Florida Prepaid v. College Savings Bank, the Court held in a 5 to 4 opinion that Congress did not validly abrogate state sovereign immunity from patent infringement suits when it passed the Patent Remedy Act. In an opinion by Chief Justice Rehnquist, the Court reasoned that in order to determine whether a Congressional enactment validly abrogates the States' sovereign immunity, two questions must be answered, ``first, whether Congress has unequivocally expressed its intent to abrogate the immunity . . . and second whether Congress has acted pursuant to a valid exercise of power.'' The Court acknowledged that in enacting the Patent Remedy Act, Congress made its intention to abrogate the States' immunity unmistakably clear in the language of the statute. The Court then held, however, that Congress had not acted pursuant to a valid exercise of power when it passed the Patent Remedy Act. The Court wrote that Congress' enforcement power under the Fourteenth Amendment is ``remedial'' in nature. Therefore, ``for Congress to invoke Section 5 it must identify conduct transgressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedy or preventing such conduct.'' Florida Prepaid v. College Savings Bank at 20. The Court found that Congress failed to identify a pattern of patent infringement by the States, let alone a pattern of constitutional violations. The Court specifically noted that a deprivation of property without due process could occur only where the State provides inadequate remedies to injured patent owners. The Court then observed that: Congress, however, barely considered the availability of state remedies for patent infringement and hence whether the States' conduct might have amounted to a constitutional violation under the Fourteenth Amendment. . . . Congress itself said nothing about the existence or adequacy of state remedies in the statute or in the Senate Report, and made only a few fleeting references to state remedies in the House Report, essentially repeating the testimony of the witnesses. Florida Prepaid v. College Savings Bank at 27-28. Accordingly, the Court concluded that: The legislative record thus suggests that the Patent Remedy Act does not respond to a history of widespread and persisting deprivation of constitutional rights of the sort Congress has faced in enacting proper prophylactic Section 5 legislation. Instead, Congress appears to have enacted this legislation in response to a handful of instances of state patent infringement that do not necessarily violate the Constitution. Florida Prepaid v. College Savings Bank at 31- 32. Not only is the result of this opinion troubling--that states will enjoy immunity from suit--but also by the reasoning which supports this result. Here we have a Chief Justice of the Supreme Court choosing to ignore an act of Congress because he has concluded that Congress passed the legislation with insufficient justification. In essence, the Chief Justice is telling us we did a poor job developing our record before passing the Patent Remedy Act. As we all know, however, many of us support legislation for reasons that don't make it into the written record. The record is an important, but imperfect, summary of our views. This is why past Courts have been reluctant to discuss Congressional motives in this fashion. In College Savings Bank v. Florida Prepaid, the Supreme Court decided in a 5 to 4 opinion that Trademark Remedy Clarification Act (the ``TRCA'') was not a valid abrogation of state sovereign immunity. The Court, in an opinion by Justice Scalia, noted that Congress passed the TRCA to remedy and prevent state deprivations of two types of property rights: (1) a right to be free from a business competitor's false advertising about its own product, and (2) a more generalized right to be secure in one's business interests. The Court contrasted these rights with the hallmarks of a protected property interest, namely the right to exclude others. Justice Scalia reached the surprising conclusion that protection against false advertising secured by Section 43(a) of the Lanham Act does not implicate property rights protected by the due process clause so that Congress could not rely on its remedies under Section 5 of the 14th Amendment to abrogate state sovereign immunity. If conducting a legitimate business operation with protection from false advertising is not a ``property right'', it is hard to conceive of what is business property. That Scalia rationale shows the extent to which the Court has gone to invalidate Congressional enactments. The Court then discussed whether Florida's sovereign immunity, though not abrogated, was voluntarily waived. Here, the Court expressly overruled its prior decision in Parden v. Terminal R. Co. 377 U.S. 184 (1964) and held that there was no voluntary waiver. In Parden, the Court had created the doctrine of constructive waiver, which held that a state could be found to have waived its immunity to suit by engaging in certain activities, such as voluntary participation in the conduct Congress has sought to regulate. Since Congress has sought to regulate interstate commerce, then a state which participated in interstate commerce by registering and licensing patents would be held to have voluntarily waived its immunity to a patent infringement suit. By overruling Parden, however, the Court held that a voluntary waiver of sovereign immunity must be express. Florida made no such express waiver of its sovereign immunity. In other relatively recent cases, the Court has gone out of its way, almost on a personal basis, to chastise and undercut Congress. The case of Sable v. FCC, 492 U.S. 115 (1989) provides a striking example of this trend. In Sable, the Court struck down a ban on ``indecent'' interstate telephone communications passed by Congress in 1988. In rejecting this provision, the Court focused on whether there were constitutionally acceptable less restrictive means, short of a total ban, to achieve its goal of protecting minors. The Court then declared, in unusually dismissive and critical language, that Congress has not sufficiently considered this issue: aside from conclusory statements during the debates by proponents of the bill . . . that under the FCC regulations minors could still have access to dial-a-porn messages, the congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be. The bill that was enacted . . . was introduced on the floor. . . . No Congressman or Senator purported to present a considered judgement with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages. (Emphasis Added) If a member of the Congress made a judgment, by what authority does the Supreme Court superimpose its view that it wasn't a ``considered judgment''? A fair reading of the statements from the floor debate on this issue undercuts the Court's disparaging characterization of this debate. For example, Representative Tom Bliley of Virginia gave a rather detailed and persuasive discussion of how he concluded that a legislative ban was necessary. Mr. Bliley noted that in 1983, Congress first passed legislation which required the FCC to report regulations describing methods by which dial-a-porn providers could screen out underage callers. Mr. Bliley then walks us through the repeated failure of the FCC to pass regulations which could withstand judicial scrutiny. Finally Mr. Bliley notes that: it has become clear that there was not a technological solution that would adequately and effectively protect our children from the effect of this material. We looked for effective alternatives to a ban--there were none. The Court repeats its critique of Congressional action in the case of Reno v. ACLU, 521 U.S. 844 (1997). Here, the Court struck down the Communications Decency Act, which prohibited transmission to minors of ``indecent'' or ``patently offensive'' communications. In this opinion, the Court again discusses whether less restrictive means were available and again concludes that Congress had not sufficiently addressed the issue. The opinion notes that: The Communications Decency Act contains provisions that were either added in executive committee after the hearings [on the Telecom Act] were concluded or as amendments offered during floor debate on the legislation. . . . No hearings were held on the provisions that became the law. The Court in Reno later notes that, ``The lack of legislative attention to the statute at issue in Sable suggests another parallel with this case.'' (Emphasis Added) Once again, if Congress passes a law, by what authority does the Supreme Court conclude that we did not devote sufficient legislative attention to the law? In the Reno opinion itself the Court noted that some Members of the House of Representatives opposed the Communications Decency Act because they thought that less restrictive screening devices would work. These members offered an amendment intended as a substitute for the Communications Decency Act, but instead saw their provision accepted as an additional section of the Act. In light of this record, how can the Court say that Congress did not consider less restrictive means? Most recently, in its January, 2000, opinion in Kimel v. Florida Board of Regents, 528 U.S. 62, the Supreme court once again took aim at Congress' judgment. In Kimel, the Court held that a 1974 amendment to the Age Discrimination in Employment Act (the ``ADEA'') to extend its application to discrimination by state and local governments was not a valid abrogation of state sovereign immunity. The Court rejected Congress' action in truly dismissive tones: Our examination of the ADEA's legislative record confirms that Congress' 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. * * * (Emphasis Added) A review of the ADEA's legislative record as a whole * * * reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. Kimel at (Emphasis Added) Almost every member of Congress had had close working relationships with employees of the state and local governments back home, and all members of Congress meet state and local government employees when they are back in their states or districts. In fact, many members of Congress were once themselves state employees. Congress is therefore in a very good position to know that age discrimination by the states is not an ``inconsequential'' problem. In fact, the absence of an in-depth debate on this topic likely reflects the fact that this proposition that state and local governments discriminate on the basis of age was non-controversial. The Supreme Courts failure to defer to Congress' experience on this issue and its jaundiced reading of the record are troubling. While numerous other instances of judicial activism may be cited, the decisions during Chief Justice Warren's tenure from 1953 through 1969 are illustrative. While few, if any at this late date, would disagree with the Warren Court's decision holding segregation unconstitutional in Brown v. Board of Education, it was a clear-cut case of judicial activism overturning Pleassey v. Ferguson since neither the legislative nor executive branches of the federal or state governments would correct those rank injustices. The Warren Court significantly expanded the interpretation of the due process clause of the 14th Amendment to add Constitutional rights to criminal defendants in state court cases. In Mapp v. Ohio, the Court rule that unconstitutionally seized evidence could not be introduced in a state criminal proceeding. In Gideon v. Wainwright, the Supreme Court required that the State provide a defendant a lawyer when ``hailed'' into criminal court. Miranda v. Arizona, perhaps the Court's most famous opinion, rule out a defendant's confession or statement unless five specific warnings were given by police and waivers obtained from the defendant before incriminating statements could be introduced against him/her in state court proceedings. Another era of judicial activism occurred in the mid-1930's. During this period, the Supreme Court embarked on a very different activist agenda by striking down many of the core laws passed as part of President Roosevelt's New Deal. In the 1935 case of A.L.A. Schecter Poultry Corp. v. United States, the Supreme Court struck down the National Industrial Recovery Act on the grounds that it exceeded Congress' power under the Commerce Clause. Also in 1935, in Railroad Retirement Board v. Alton R.R., the Supreme Court struck down the Railroad Retirement Act on the same Commerce Clause grounds. In the 1936 case of United States v. Butler, the Supreme Court struck down the agricultural Adjustment Act on the grounds that it sought to regulate a subject--the production of daily products--prohibited to Federal government under the 10th Amendment. Also in 1936, in Carter v. Carter Coal Co., the Court struck down the Bituminous Coal Conservation Act on the same 10th Amendment grounds. These decisions, led to the infamous proposal to pack the Supreme Court by adding six new members. Notwithstanding FDR's enormous popularity, that proposal raised a storm of protest and failed. Televised court proceedings better enable the public to understand the role of the Supreme Court and its impact on the key decisions of the day. Not only has the Supreme Court invalidated Congressional decisions where there is, in the views of many, simply a difference of opinion to what is preferable public policy, but the Court determines avant-garde issues such as whether aids is a disability under the Americans with Disabilities Act, whether Congress can ban obscenity from the Internet, and whether states can impose term limits upon members of Congress. Just this past term, the Court addressed whether the FDA has the authority to regulate tobacco products as a drug and whether states can ban partial birth abortion. The current Court, like its predecessors, hands down decisions which vitally affect the lives of all Americans. Since the Court's 1803 historic decision in Marbury v. Madison, the Supreme Court has the final authority on issues of enormous importance from birth to death. In Roe v. Wade (1973), the Court affirmed a Constitutional right to abortion in this country and struck down state statutes banning or severely restricting abortion during the first two trimesters on the grounds that they violated a right to privacy inherent in the Due Process Clause of the Fourteenth Amendment. In the case of Washington v. Glucksberg (1997), the court refused to create a similar right to assisted suicide. Here the Court held that the Due Process Clause does not recognize a liberty interest that includes a right to commit suicide with another's assistance. In the Seventies, the Court first struck down then upheld state statutes imposing the death penalty for certain crimes. In Furman v. Georgia (1972), the Court struck down Georgia's death penalty statute under the cruel and unusual punishment clause of the Eighth Amendment and stated that no death penalty law could pass constitutional muster unless it took aggravating and mitigating circumstances into account. This decision lead Georgia and many states to amend their death penalty statutes and, four years later, in Gregg v. Georgia (1976), the Supreme Court upheld Georgia's amended death penalty statute. Over the years, the Court has also played a major role in issues of war and peace. In its opinion in Scott v. Sanford (1857)--better known as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a slave who had been taken into ``free'' territory by his owner, was nevertheless still a slave. The Court further held that Congress lacked the power to abolish slavery in certain territories, thereby invalidating the careful balance that had been worked out between the North and the South on the issue. Historians have noted that this opinion fanned the flames that led to the Civil War. More recently, the Supreme Court played an important role during the Vietnam War. Prominent opponents of the war repeatedly petitioned the Court to declare the Presidential action unconstitutional on the grounds that Congress had never given the President a declaration of war. The Court decided to leave this conflict in the political arena and repeatedly refused to grant writs of certiorari to hear these cases. This prompted Justices Douglas, sometimes accompanied by Justices Stewart and Harlan, to take the unusual step of writing lengthy dissents to the denials of cert. In New York Times Co. v. United States (1971)--the so called ``Pentagon Papers'' case--the Court refused to grant the government prior restraint to prevent the New York Times from publishing leaked Defense Department documents which revealed damaging information about the Johnson Administration and the war effort. The publication of these documents by the New York Times is believed to have helped move public opinion against the war. In its landmark civil rights opinions, the Supreme Court took the lead in effecting needed social change, helping us to address fundamental questions about our society in the courts rather than in the streets. In Brown v. Board of Education, the Court struck down the principle of ``separate but equal'' education for blacks and whites and integrated public education in this country. This case was followed by a series of civil rights cases which enforced the concept of integration and full equality for all citizens of this country, including Garner v. Louisiana (1961), Burton v. Wilmington Parking Authority (1961), and Peterson v. City of Greenville (1963). When deciding issues of such great national import, the Supreme Court is rarely unanimous. In fact, a large number of seminal Supreme Court decisions have been made by a vote of 5-4. Such a close margin reveals that these decisions are far from foregone conclusions distilled from the clear meaning of the Constitution and legal precedents. On the contrary, these major Supreme Court opinions are really policy decisions reached on the basis of the preferences and views of each individual justice. In a case that is decided by a vote of 5-4, individual justices have the power by his or her vote to change the law of the land. Given the enormous significance of each vote cast by each justice on the Supreme Court, it is important that each justice know that they will be held accountable for their vote. Televising the proceedings of the Supreme Court will allow the sunlight to shine brightly on these proceedings and ensure greater accountability. The following are just a handful of examples of major 5-4 decisions handed down by the Supreme Court this century: Lochner v. New York (1905). The Court struck down an early attempt at labor regulation by holding that a law limiting bakers to a sixty-hour work week violated the liberty of contract secured by the Due Process Clause of the Fourteenth Amendment. Hammer v. Dagenhart (1918). The Court again struck down a labor law, this time the Keating-Own Federal Child Labor Act, on the grounds that Commerce Clause did not give Congress the power to completely forbid certain categories of commerce. Furman v. Georgia (1972). The Court struck down the death penalty under the cruel and unusual punishment clause of the Eighth Amendment. Plyer v. Doe (1982). The Court invoked the Equal Protection Clause of the Fourteenth Amendment to strike down a Texas statute which denied state funding for the education of illegal immigrant children. Webster v. Reproductive Health Services (1989). In this case, which has been widely viewed as a retreat from Roe v. Wade, the Court upheld various restrictions on the availability of abortion including a ban on the use of public funds and facilities for abortions. United States v. Eichman (1990). The Court invalidated state and Federal laws prohibiting flag desecration on the grounds that they violated the First Amendment. Adarand Constructors, Inc. v. Pena (1995). The Court held that Federal racial classifications, like those of a state, must be reviewed under a strict scrutiny standard. U.S. Term Limits v. Thornton (1995). The Court struck down a state law imposing term limits upon Members of Congress on the grounds that states have no authority to change, add to, or diminish the age, citizenship, and residency requirements for congressional service enumerated in the Qualifications Clause of the U.S. Constitution. During the past five years alone, there have been eighty 5 to 4 Supreme Court decisions. Out of the 79 cases decided in the Court's most recent term, 20 were decided by a single justice on a 5 to 4 vote. The following are some of the important decisions handed down by the Court in its last few sessions that were decided by a 5 to 4 vote: Tobacco regulation. In FDA v. Brown and Williamson Tobacco Corporation, the Court ruled that the FDA lacks authority under the Federal Food, Drug, and Cosmetic Act (FDCA) to regulate tobacco products. Abortion. In Stenberg v. Carhart, the Court ruled that Nebraska's statute criminalizing the performance of ``partial birth abortions'' is unconstitutional under principles set forth in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Violence Against Women Act. In United States v. Morrison, the Court struck down a key provision of the 1994 Violence Against Women Act (VAWA) that allowed victims of gender-motivated violence to bring private civil lawsuits against the perpetrators in federal court. The Supreme Court said that Congress, in enacting the VAWA provision, overstepped its authority to regulate interstate commerce and enforce the Constitution's equal-protection guarantee. HIV infection. In Bragdon v. Abbott, the Court ruled that HIV infection is a ``disability'' as defined by the American with Disabilities Act, even if the person who has tested positive for HIV is asymptomatic. Fourth Amendment. In Pennsylvania Board of Probation and Parole v. Scott, the Court limited the exclusionary rule by holding that it does not apply in parole revocation hearings. Freedom of Religion. In City of Boerne v. Flores, the Court struck down the Religious Freedom Restoration Act (``RFRA'') on the grounds that it exceeded Congressional power under Section 5 of the Fourteenth Amendment. RFRA had provided that governments can infringe upon religious practices only if they have health, safety or other ``compelling interest'' in doing so. Freedom of Speech Online. In Reno v. ACLU, the Court struck down two provisions of the Communications Decency Act of 1996 prohibiting transmission of obscene and indecent messages to minors on the grounds that they violated the First Amendment. In Printz v. United States, the Court voted 5 to 4 to reverse six decades of firmly established constitutional authority on the supremacy of federal laws over states rights under the Commerce Clause. Specifically, the Court held unconstitutional the provisions of the Brady Bill that require state and local law enforcement officers to conduct background checks on prospective handgun purchasers. In Agostini v. Felton, the Court voted to lower the barrier between church and state by holding that the Establishment Clause of the First Amendment does not bar use of public school teachers to provide remedial education to disadvantaged children in parochial schools. In Raines v. Byrd, the Court ruled that our colleagues, Senators Byrd, Levin, Moynihan, and Hatfield, lacked standing to challenge the constitutionality of the Line Item Veto Act since they failed to establish a particularized personal injury. The Court's rejection of an ``institutional injury'' to Congress as a basis for standing significantly limits the ability of legislators to raise constitutional challenges to legislation in the courts. Cameras Should be allowed in the Supreme Court on Basic Public Policy and Constitutional Grounds. Given the awesome national significance of the decisions made by the Supreme Court, the right of the public to view the process by which these decisions are made is self evident. In a democracy, the workings of the government at all levels should be open to public view. The more openness, and the more real the opportunity for public observation, the greater the understanding and trust. As the Supreme Court noted in the 1986 case of Press-Enterprise Co. v. Superior Court, ``People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.'' It was in this spirit that the House of Representatives opened its deliberations to meaningful public observation by allowing C-Span to begin televising debates in the House chamber in 1979. The Senate followed the House's lead in 1986 by voting to allow television coverage of the Senate floor. Beyond this general policy preference for openness, however, there is a strong argument that the Constitution requires that television cameras be permitted in the Supreme Court. It is well established that the Constitution guarantees access to judicial proceedings to the press and the public. In 1980, the Supreme Court relied on this tradition when it held in Richmond Newspapers v. Virginia that the right of a public trial belongs not just to the accused, but to the public and the press as well. The Court noted that such openness has ``long been recognized as an indisputable attribute of an Anglo-American trial.'' Recognizing that in modern society most people cannot physically attend trials, the Court specifically addressed the need for access by members of the media: Instead of acquiring information about trials by first hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. [emphasis added] In a sense, this validates the media claim of acting as surrogates for the public. [Media presence] contributes to public understanding of the rule of law and to comprehension of the functioning of the entire criminal justice system. Today, television is the means by which most Americans get their information. To exclude television cameras from the court is to effectively prevent large segments of American society from ever witnessing what transpires therein. Furthermore, television provides a level of access to courtroom proceedings far closer to the ideal of actual attendance in the court than either newspapers or photographs can provide. In addition, a strong argument can be made that forbidding television cameras in the court, while permitting access to print and other media, constitutes an impermissible discrimination against one type of media in contravention of the First Amendment. In recent years, the Supreme Court and lower courts have repeatedly held that differential treatment of different media is impermissible under the First Amendment absent an overriding governmental interest. For example, in 1983 the Court invalidated discriminatory tax schemes imposed only upon certain types of media in Minneapolis Star & Tribune Co. v. Minnesota commissioner of Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected the contention by the two candidates for mayor of New York that they could exclude some members of the media from their campaign headquarters by providing access through invitation only. The Court wrote that: Once there is a public function, public comment, and participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable. In the 1965 case of Estes v. Texas, the Supreme Court rejected the argument that the denial of television coverage of trials violates the equal protection clause. In the same opinion, the Court held that the presence of television cameras in the Court had violated a Texas defendant's right to due process. Subsequent opinions have cast serious doubt upon the continuing relevance of both prongs of the Estes opinion. In its 1981 opinion in Chandler v. Florida, discussed above, the court recognized that Estes must be read narrowly in light of the state of television technology at that time. The television coverage of Estes' 1962 trial required cumbersome equipment, numerous additional microphones, yards of new cables, distracting lighting, and numerous technicians present in the courtroom. In contrast, the court noted, television coverage in 1980 can be achieved through the presence of one or two discreetly placed cameras without making any perceptible change in the atmosphere of the courtroom. Accordingly, the Court held that, despite Estes, the presence of television cameras in a Florida trial was not a violation of the rights of the defendants in that case. By the same logic, the holding in Estes that exclusion of television cameras from the courts did not violate the equal protection clause must be revisited in light of the dramatically different nature of television coverage today. Given the strength of these arguments, it is not surprising that over the last two decades there has been a rapidly growing acceptance of cameras in American courtrooms which has reached almost every court except for the Supreme Court itself. Ironically, it was a Supreme Court decision which helped spur the spread of television cameras in the courts. In 1981, in the case of Chandler v. Florida, the Supreme Court decided that televising criminal proceedings did not inherently interfere with a criminal defendant's constitutional right to a fair trial, and that there was no empirical evidence to support a claim that it did. Shortly after the Chandler decision, the American Bar Association revised its canons to permit judges to authorize televising civil and criminal proceedings in their courts. Following the green lights provided by the Supreme Court and the ABA, forty-seven states have decided to permit electronic coverage of at least some portion of their judicial proceedings. In 1990, the federal Judicial Conference authorized a three-year pilot program allowing television coverage of civil proceedings in six federal district courts and two federal circuit courts. The program began in July, 1991 and ran through December 31, 1994. The Federal Judicial Center monitored the program and issued a positive final evaluation. In particular, the Judicial Center concluded that: Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program. The Judicial Center also concluded that: Judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence on participants in the proceedings, courtroom decorum, or the administration of justice. Despite this positive evaluation, the Judicial Conference voted in September, 1994, to end the experiment and not to extend the camera coverage to all courts. This decision was made in the aftermath of the initial burst of television coverage of O.J. Simpson's pretrial hearing. Some have argued that the decision was unduly influenced by this outside event. In March, 1996, the Judicial Conference revisited the issue of television cameras in the federal courts and voted to permit each federal court of appeals to ``decide for itself whether to permit the taking of photographs and radio and television coverage of appellate arguments.'' Since that time, two circuit courts have enacted rules permitting television coverage of their arguments. It is significant to note that these two circuits were the two circuits which participated in the federal experiment with television cameras a few years earlier. It seems that once judges have an experience with cameras in their courtroom, they no longer oppose the idea. On September 6, 2000, the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts held a hearing on ``Allowing Cameras and Electronic Media in the Courtroom.'' The primary focus of the hearing was Senate bill 721, legislation introduced by Senators Grassley and Schumer that would give federal judges the discretion to allow television coverage of court proceedings. One of the witnesses at the hearing, Judge Edward Becker, Chief Judge U.S. Court of Appeals for the Third Circuit, spoke in opposition to the legislation and the presence of television cameras in the courtroom. The remaining five witnesses, however, including a federal judge, a state judge, a law professor and other legal experts, all testified in favor of the legislation. They argued that cameras in the courts would not disrupt proceedings but would provide the kind of accountability and access that is fundamental to our system of government. In my judgment, Congress, with the concurrence of the President, or overriding his veto, has the authority to require the Supreme Court to televise its proceedings. Such a conclusion is not free from doubt and is highly likely to be tested with the Supreme Court, as usual, having the final word. As I see it, there is no constitutional prohibition against such legislation. Article 3 of the Constitution states that the judicial power of the United States shall be vested ``in one Supreme Court and such inferior Courts as the Congress may from time to time ordain and establish.'' While the Constitution specifically creates the Supreme Court, however, it left it to Congress to determine how the Court would operate. For example, it was congress that fixed the number of justices on the Supreme Court at nine. Likewise, it was Congress that decided that any six of these justices are sufficient to constitute a quorum of the Court. It was Congress that decided that the term of the Court shall commence on the first Monday in October of each year, and it was Congress that determined the procedures to be followed whenever the Chief Justice is unable to perform the duties of his office. Beyond such basic structural and operational matters, Congress also controls more substantive aspects of the Supreme Court. Most importantly, it is Congress that in effect determines the appellate jurisdiction of the Supreme Court. Although the Constitution itself sets out the appellate jurisdiction of the Court, it provides that such jurisdiction exists ``with such exceptions and under such regulations as the Congress shall make.'' In the early days of the Supreme Court, Chief Justice Marshall, writing for the Court in Durousseau v. United States, recognized that the power to make exceptions to the Court's jurisdiction is the equivalent of the power to grant jurisdiction, since exceptions can be ``implied from the intent manifested by the affirmative description [of jurisdiction].'' the Supreme Court recognized the power of Congress to control its appellate jurisdiction in a dramatic way in the famous 1868 case of Ex Parte McCardle. In this case, McCardle, a newspaper editor, was being held in custody by the military for trial on charges stemming from the publication of articles alleged to be libelous and incendiary. McCardle petitioned the Supreme Court for a writ of habeas corpus. The Court heard his case but, before it rendered its opinion, Congress repealed the statute that gave the Supreme Court jurisdiction to hear the habeas appeal. In light of this Congressional action, the Supreme Court felt compelled to dismiss the case for lack of jurisdiction. Congress also exercises broad and significant control over the timing within which federal courts must act. For example, Congress passed the Speedy Trial Act to quantify an individual's Sixth Amendment right to a speedy trial. Specifically, the Act requires that an individual arrested for a criminal offense be indicted within thirty days of arrest and be brought to trial within seventy days of an indictment. Likewise, the habeas corpus reform I authored, which became law as part of the comprehensive anti-terrorism act of 1996, imposes strict timetables upon the filing and review of habeas corpus petitions and appeals. For example, in the case of both death row inmates and other prisoners, the Act establishes a one-year deadline within which state and federal prisoners must file their federal habeas petitions. In capital cases, the Act requires a district court to render a final determination of a habeas petition not later than 180 days after the date on which it is filed, and it requires a court of appeals to hear and render a final determination of any appeal of an order granting or denying such petition within 120 days after the date on which the reply brief is filed. Some objections have been raised to televised proceedings of the Supreme Court on the ground that it would subject justices to undue security risks. My own view is such concerns are vastly overstated. Well-known members of Congress, including such high profile personalities as Senator Ted Kennedy, walk on a regular basis in public view in the Capitol complex. Other very well-known personalities, presidents, vice presidents, cabinet officers, all are on public view with even incumbent presidents exposed to risks as they mingle with the public. Such risks are minimal and, in my view, are worth the relatively minor exposure that Supreme Court justices would undertake through television appearances. The Supreme Court could, of course, permit television through its own rule but has decided not to do so. Congress should be circumspect and even hesitant to impose a rule mandating the televising of Supreme Court proceedings and should do so only in the face of compelling public policy reasons. The Supreme Court has such a dominant role in key decision-making functions that their proceedings ought to be better known to the public; and, in the absence of Court rule, public policy would be best served by enactment of legislation requiring the televising of Supreme Court proceedings.

Mr. SPECTER

Mr. SPECTER. Reserving the right to object, with that statement, as the Senator from Alaska is taking 15 minutes, I ask unanimous consent that 15 minutes be allocated to me and 15 minutes to Senator Biden.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have been advised that Senator Biden's schedule will not permit his arrival at this time, so I suggest holding his time in abeyance. I have no objection to the request by the Senator from Texas.

Mr. SPECTER

Mr. SPECTER. Madam President, I have been asked to make certain requests on behalf of the leader.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that the Special Committee on Aging be permitted to meet today, September 18, 2000, from 1:30 p.m.-4:00 p.m. in Dirksen 562 for the purpose of conducting a hearing.

Mr. SPECTER

Mr. SPECTER. Madam President, I ask unanimous consent that the Senate now proceed to the immediate consideration of S. Res. 358, submitted by Senator Lott and Senator Daschle.

Mr. SPECTER. Madam President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, and the motion to reconsider be laid upon the table.

Mr. SPECTER

Mr. SPECTER. Madam President, I ask unanimous consent that any committee amendments be agreed to where appropriate, the bills be read the third time and passed, any title amendments be agreed to, as necessary, the motions to reconsider be laid upon the table, and any statements relating to the bills be printed in the Record, with the above occurring en bloc.

Mr. SPECTER. Madam President, I ask unanimous consent that the Senate now proceed en bloc to the following two bills: Calendar No. 681, H.R. 940, and Calendar No. 680, S. 2247.

Mr. SPECTER

Mr. SPECTER. Madam President, on behalf of the leader, I announce, for the information of all Senators, the Senate will reconvene tomorrow at 9:30 a.m. At that time, the Senate will resume consideration of the China permanent normal trade relations bill, with 90 minutes of debate under the control of each leader. The Senate will recess under the order from 12:30 to 2:15 for the weekly policy luncheons to meet. By a previous consent, at 2:15 the Senate will proceed to the vote on passage of the China permanent normal trade relations bill, to be immediately followed by a vote on invoking cloture on the motion to proceed to the H-1B legislation. Therefore, there will be two stacked votes at 2:15 tomorrow. It is hoped that during Tuesday's session the Senate can begin consideration of the H-1B legislation, the Water Resources Development Act, any appropriations conference report, or any other legislative or executive matter that can be cleared for action.

Mr. SPECTER

Mr. SPECTER. Madam President, if there is no further business to come before the Senate--and I note there are no other Senators on the floor--I ask unanimous consent that the Senate stand in adjournment under the provisions of S. Res. 358, following the remarks of Senator Robb.

Mr. SPECTER. Madam President, I suggest the absence of a quorum.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, on another subject, I wish to comment briefly on legislation which will be introduced today in response to the tremendous problems posed by the Firestone tires and the Ford vehicles which turned over, and some 88 deaths. The Appropriations Subcommittee on Transportation, on which I sit, had a hearing on this subject on September 6, 2000. At that time, we heard comments, explanations, excuses which strained credulity. I then introduced legislation which would make it a criminal offense for someone to knowingly put on interstate commerce a deadly product which was likely to result in death. This is based on the experience I had as district attorney of Philadelphia, where reckless disregard for human life, which results in death, constitutes the requisite malice for a charge of murder in the second degree. I have discussed this provision with the distinguished Senator from Arizona who held a hearing on the matter this week, and the administration has submitted legislation which I am told will be introduced later today. I wanted to make a comment briefly at this time since I know we will be going out early. I compliment Senator McCain for this legislation which will require motor vehicle manufacturers and equipment manufacturers to obtain information and obtain records about potential safety defects in their foreign products that may affect the safety of vehicles and equipment in the United States. The legislation will increase the civil penalties for notification of reporting violations; will establish greater cooperation with foreign transportation safety agencies with the exchange of safety-related information and the recall of defective products; and requires additional testing to determine that a vehicle or equipment meets safety requirements. I am advised that there is coordination with the House and an excellent opportunity that this legislation will be completed before we finish our term, which would be exemplary and which would really show the American people that when we have a very dangerous situation brought to our attention, we will take action. I am very pleased to see this legislation will include the proposals I have for criminal penalties. In a floor statement made on September 7, 2000, I documented 10 illustrative cases where deadly products had been put on the market knowing them to be deadly and knowing that they contained the risk of death or serious bodily injury. That constitutes the requisite malice for a prosecution. That will be an effective way of dealing with this issue. The remedy of punitive damages has been illusory. Take the celebrated Pinto case where a calculation was made by Ford that it was cheaper to pay the damages resulting from injuries and deaths than it was to relocate the gas tank. A jury came in with an award of $125 million, later reduced it $3.5 million, which is the customary response where these punitive damage awards have been entered.

Mr. SPECTER

Mr. SPECTER. Mr. President, the Olympic Games, set to begin today in Sydney, Australia, will feature rowing, which brings to mind the great rowing tradition which has been a part of Philadelphia for generations. It also brings to mind John B. Kelly, Jr., a Philadelphia native who not only made great strides in the sport of rowing, but who personified the ideal of an Olympic athlete. John B. Kelly, Jr., better known as ``Jack'' or ``Kel,'' came from a distinguished family, on and off the water. His father won three gold medals in sculling in the 1920 and 1924 Olympics. His sister Grace was the late Princess of Monaco. After graduating from the William Penn Charter School, Jack enlisted in the United States Navy. After a short term of service, he attended the University of Pennsylvania where we were college friends in the late 1940's and early 1950's. He was a member of the Kappa Sigma social fraternity and was honored with a membership in the Sphinx Senior Society for his extracurricular accomplishments. Upon graduation, he was commissioned as an ensign, combining duty on a destroyer with his preparation for the 1952 Olympic games in Helsinki. By the time he hung up his oars, he had advanced the cause and the international name of American rowing and American sports. Jack was an eight-time national single sculls champion, four-time Olympian and bronze medallist in single sculls in 1956, and winner of two gold medals in the Pan American Games in 1955 and 1959. He was also the winner of the Diamond Sculls in the Henley Regatta in 1947 and 1949, a race from which the British had banned his father, purportedly because he worked with his hands and was not considered to be a gentleman. The winner of the 1947 James E. Sullivan award as the nation's outstanding amateur athlete, Jack was a leading advocate for amateur sports for more than 30 years. Following the 1960 Olympic games, Jack became active in the local swimming program in the Middle Atlantic Association of the Amateur Athletic Union. In 1970 he was elected President of the National Amateur Athletic Union, the youngest person to hold that office in more than 80 years. In 1985 he assumed the presidency of the United States Olympic Committee, and served in that capacity for three weeks until his untimely death on March 2. Philadelphia honored its native son by erecting a statue of Jack rowing, along the Schuylkill River, and also by renaming the drive along the boathouses on the Schuylkill River in honor of the Kelly family. I believe it would be appropriate for the United States to honor Jack through the creation of a commemorative postage stamp, which would pay tribute to his accomplishments as a world class athlete and to his contributions to our nation and to international athletics and goodwill. I urge my colleagues to join me in calling upon the Postmaster General to issue this stamp in a timely manner. The Olympics started today. Jack Kelly, Jr., has a monument on East River Drive which was renamed ``Kelly Drive'' in honor of the Kelly family, a very distinguished Philadelphia family. Father John B. Kelly, Sr., an Olympic gold medalist, was once denied entry into the Henley Regatta because he was someone who worked with his hands, a bricklayer; therefore, not considered a gentleman and, therefore, not entitled to enter into the competition. His son John B. Kelly, Jr., made up for all of it. I knew young Jack Kelly as a student at the University of Pennsylvania where we attended together. The family achieved perhaps its greatest notoriety from Princess Grace of Monaco being Jack Jr.'s sister. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on a number of matters. First, the situation with Dr. Wen Ho Lee has drawn national--really, international--attention, especially in light of President Clinton's statement yesterday that he was deeply troubled by the actions of the Department of Justice and the Department of Energy. The President put his finger on the critical question; that is, how could it be that on one day Dr. Wen Ho Lee was a major threat to national security, and on the next day the Government agreed to a plea bargain on one count, without jail time or without probation, allowing him to walk out free? The President was sharply critical, especially of the actions of the Attorney General, who had a rather extraordinary interview with the media yesterday. She was asked about the Wen Ho Lee case and she said that, had Dr. Lee cooperated with the Government, a result could have been achieved a long time before on the disclosure of what had happened with the tapes. But the problem with that answer is that the defense had offered the Government precisely what the Government finally got; that is, Dr. Lee's cooperation on what had happened to those downloaded materials. That offer had been made months ago, but the Government had never replied to that offer. So it is hardly an excuse for Attorney General Reno to say had Dr. Lee cooperated, the matter would have been resolved a long time ago. Then she was asked a question relating to any mistakes or anything that was done wrong in the handling of Dr. Wen Ho Lee's case. She said she was going to have to review the record to answer that question-- which is really extraordinary, since she is the Attorney General and this matter was under her direct, personal supervision. That is a fact we know because in August of 1997, FBI Director Louis Freeh sent one of his top deputies, Assistant Director John Lewis, to Attorney General Reno personally to ask for authorization to submit to the court an application for a warrant under the Foreign Intelligence Surveillance Act. At that time, the FBI had provided a statement of probable cause which was more than sufficient to have the warrant issued. Attorney General Reno then referred that request to a man named Daniel Seikaly in the Department of Justice, a man who had no prior experience with warrants under the Foreign Intelligence Surveillance Act. The wrong standard was applied. This has all been documented in a report submitted by the Judiciary subcommittee, which I chair, on oversight of the Department of Justice. And ultimately notwithstanding the request from the Director of the FBI through a top deputy to the Attorney General personally, that request for a FISA warrant was refused. Attorney General Reno doesn't have to study the matter further to acknowledge that mistake. Then the FBI let the case languish until December of 1998 without any active investigation. It was only when the Cox committee was about to publish its report, as rumored in late December, 1998, and as it came to pass in early January, sharply critical of the way the Wen Ho Lee case was handled, that a polygraph was ordered by the Department of Energy. The polygraph was not taken by the FBI, but taken by an outside contractor, Wackenhut. That was done on December 23, 1997. And the initial report was that Dr. Lee had passed the polygraph, had not been deceptive--grounds for discontinuing the investigation. It was only several weeks later when the FBI got the tapes and reviewed them and found that the Wackenhut conclusion was not accurate; that there was not exoneration of Dr. Lee. Then it appears that, finally, when the Department of Justice was thoroughly embarrassed, they really threw the book at Dr. Lee by holding him in detention in really extraordinary circumstances, in leg irons. I have seen prisoners held in leg irons. I witnessed that in Pennsylvania's correctional institution when I was district attorney. Do you know the reason you hold somebody in leg irons? Because they are so violent they threaten risk of bodily injury or worse to the guards who have to deal with them. What possible justification was there for treating Dr. Lee in that manner? And the restrictions which the Government imposed on Dr. Lee? There has been comment, unattributed sources, to law enforcement officials, that what was really in mind here was to coerce a guilty plea from Dr. Lee. The Government apparently thought he was guilty and they were thoroughly embarrassed with the way they had botched the case. What other explanation is there for the way Dr. Lee was treated? These are fundamental questions which our subcommittee will look into, on oversight of this matter. There are two aspects of this matter, really. One aspect is what, if anything, did Dr. Lee do to endanger national security? In the application for a search warrant, the Government laid out a long list of reasons stating probable cause for the issuance of that search warrant. Matters that had gone back as early as 1982 involving a great many suspicious activities, so that when the warrant was not issued, notwithstanding the request directly to Attorney General Reno, and when the investigation was, in effect, dropped--really languishing, but in effect dropped for some 15 months--we do not know, on this state of the record, what the quality of the evidence was which led to the indictments. It is not a sufficient answer, any of them which have been given, because the issue of national security is of the utmost importance. The subcommittee has in final stages a report on Dr. Peter Lee, who confessed to giving the People's Republic of China key information on nuclear secrets and also on detecting our submarines. That case was another comedy of errors, except it wasn't so funny--``comedy of errors'' I think is the wrong words--horrendous errors, where there was miscommunication between the Justice Department in Washington and the assistant district attorney who was trying the case. Dr. Peter Lee finally walked out with probation, notwithstanding the very serious charges brought against him. Beyond the issue of national security, there is the question as to the treatment of Dr. Wen Ho Lee, his constitutional rights, and whether he was fairly treated. There have been calls for Attorney General Reno's resignation, and the resignation of Secretary of Energy Richardson. I was asked about that earlier today on television and I declined to call for those resignations. I think it is too often that Members go to the klieg lights and make those demands. I was then asked what would be effective, what could be done. And I was asked whether the President ought to fire the Attorney General. Based on what the President has said, and the very troubled record which Attorney General Reno has had with Waco and with her decisions on independent counsels, that is something which would be meaningful, if the President really is concerned.

Mr. SPECTER

Mr. SPECTER. Mr. President, I compliment the Palestinian Council, the Palestinian Authority, and Chairman Arafat on their decision not to declare an independent state which had been proposed for September 13. I had urged Chairman Arafat not to declare an independent state when that was proposed last year, and I said at that time that if they desisted, I would make a statement on the Senate floor complimenting them on moving forward. I say today that their decision is an important one, a good one, and one which will provide a better basis for further negotiations on the Mideast peace process.

Mr. SPECTER

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

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment briefly on the extraordinary case of Dr. Wen Ho Lee who was released from custody yesterday by the Federal judge saying that Dr. Lee was owed an apology because of major mistakes made by ranking officials at the Department of Justice and the Department of Energy. This matter has been the subject of oversight inquiry by the Judiciary subcommittee, which I chair. Our inquiry began last October and ended in early December at the request of the Director of the FBI so that it would not interfere with the pending prosecution of Dr. Lee. There are many questions which arise from what has happened since-- especially the dramatic comments of Judge Parker yesterday that Wen Ho Lee was owed an apology, and that blame lay at the doorsteps of the top officials in Justice and Energy. The questions which need to be explored are: What evidence or what factors were there which led to Dr. Lee's detention and solitary confinement for some 9 months? What did the Department of Justice and the Department of Energy do by way of their investigation? What were the specifics where the key FBI witness changed his testimony from an earlier hearing where he said Dr. Lee was deceptive, to a later hearing where he omitted that very important fact which led to Wen Ho Lee's detention? Was there any racial profiling in this case? How did the Department of Justice focus on Dr. Lee? Those are among the many questions to be answered in an oversight hearing which our subcommittee is attempting to schedule now for the week of September 25. The inquiries which we have already made have suggested that there was significant reason for the FBI to conduct the investigation. Dr. Wen Ho Lee is entitled to the presumption of innocence like every American. And on this date of the report, he is presumed innocent, and he is, in fact, innocent. But on this date of the record, the Department of Justice has convicted itself of absolute incompetence. Let me be very specific about why. Director Louis Freeh sent his top deputy, John Lewis, to talk to Attorney General Janet Reno in August of 1997 to request a warrant for Dr. Lee under the Foreign Intelligence Surveillance Act. There was a statement of probable cause which was very substantial which justified the issuance of that warrant to gather further evidence. Attorney General Reno referred that matter to a man named Daniel Seikaly in her department, a person who had never handled a warrant under the Foreign Intelligence Surveillance Act. The wrong standard was applied, and the FBI was turned down notwithstanding the top deputy, John Lewis, having been sent there by Director Freeh. Then, inexplicably, for the next 16 months, the FBI did not conduct any investigations. Some memoranda were transmitted between Washington, DC, and Albuquerque, NM, but the case lay dormant. It is really hard to understand why the case would lie dormant when the FBI had been so arduous in asking for the warrant under the Foreign Intelligence Surveillance Act. But then, in late December of 1998, it was known that the Cox committee was about to publish its report and was said to be highly critical of the way the Department of Justice and the Department of Energy handled the Wen Ho Lee case. Then the Department of Energy initiated a polygraph of Dr. Lee on December 23, 1998, conducted by an outside agency--not by the FBI but by Wackenhut. The Wackenhut contractors told the FBI that Dr. Lee passed the polygraph but did not give the FBI agents the polygraph charts or the videotape of the interview. On January 17 of 1999, the FBI conducted an interview with Dr. Lee to close out the case. But then, on January 22, 5 days later, the FBI finally received the complete record of the December 23 polygraph and began to question the Wackenhut interpretation of the results. Without going into more of the details in the limited time I have at the moment--there will be more time to amplify this statement later in the subcommittee hearings--Dr. Lee was not terminated until March 8. The search warrant was not issued until April 9 in the context of substantial evidence of deletions and downloading. There are very significant questions for the Department of Justice to answer as to why the warrant was not issued under the Foreign Intelligence Surveillance Act, why the investigation was not made by the FBI from August of 1997 to December of 1998, why Dr. Lee was kept on the job in the face of downloading very substantial classified matters. The issues about his retention require very serious oversight. There are all the appearances that the FBI's failure to handle the matter properly, the Department of Justice's failure to handle the matter properly, through the disclosure by the Cox committee in January of 1999, and the ultimate firing, the ultimate search warrant, suggest that the Department of Justice really threw the book at Dr. Lee to make up for their own failings. But there needs to be a determination on oversight as to the justification for keeping Dr. Lee in solitary confinement. When the judge finally suggested that he was going to release Dr. Lee to house arrest, the Federal Government put out an objection to his having any contact with his wife, which was really extraordinary. Then suddenly, on a plea agreement, on one of 59 counts under the indictment, according to the Department of Justice, it is OK to release Dr. Lee on the plea bargain. There was no fine, no jail time on the conviction, only a debriefing. There is a real question as to how meaningful that is since those materials are customarily offered on a tender by Dr. Lee's counsel before the plea bargain is entered into. These are some of the issues which our Judiciary subcommittee will be looking into on oversight, both as to the Department of Justice and the Department of Energy. When a Federal judge says that America owes Dr. Lee an apology, the details have to be determined. When the FBI makes representations that Dr. Lee poses a threat to the security of the United States, and that the information he has downloaded could lead to the defeat of our military forces worldwide, those assertions need to be investigated as a matter of oversight. How did the Department of Justice move from those very serious allegations to a statement, in effect, that let the matter go, without a fine, without a jail sentence, with only probation on a single one of 59 counts. The handling of these espionage matters is of great import. The subcommittee is nearing completion of a report on Dr. Peter Lee, who confessed to providing information to the People's Republic of China on nuclear secrets and submarine detection. These are matters which require congressional oversight. Our Judiciary subcommittee will undertake just that. I yield the floor.