Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that we set aside consideration of the Burr amendment and that I be able to call up amendment No. 1657.

Mr. SESSIONS. Mr. President, I wish to join my colleague, Senator Lieberman, in introducing amendment No. 1744, concerning the deployment of missile defenses in Europe, and also thank him for his leadership on this issue over many years. He is clearly one of the most effective spokesmen for clear and strategic thinking and has helped us for many years to establish good defense policy for our Nation. As Senator Lieberman has explained, this amendment would state it is the sense of the Congress that the administration should continue to develop the planned missile defense deployment through Poland and the Czech Republic, even as it considers other alternatives. Further, it would state that any alternative to the current plan must be as effective and affordable, and, most important, must be able to defend the United States as well as Europe against long-range ballistic missiles. This amendment is important at this time because the administration is now considering alternatives to the plan long pursued by the Bush administration to station ground-based interceptors in Poland, a missile-tracking radar system in the Czech Republic. Both Poland and the Czech Republic have signed agreements to host these missile defense assets after being told by the United States that we believed the plan is important to protect Europe and the United States from rogue states, more specifically, Iran's developing missile capability. After much effort and political capital has been expended, both in the United States and by our Polish and Czech Republic allies and friends, now the project has been put in somewhat of a limbo, I am afraid. Russia and the domestic left opposed this plan from the beginning. They lobbied the people and members of Congress in Poland and the Czech Republic to not do it. But they have gone forward with it today. If the objections of the United States to this system arise from Czech reasons, then I would refer my colleagues to a February 2009 CBO study Senator Lieberman cited, ``Options for Deploying Missile Defense in Europe,'' which came to the conclusion that a ground-based interceptor deployment in Poland and the Czech Republic is the most effective and affordable option available for the foreseeable future. The CBO concluded: ``This is the most effective and affordable option for the foreseeable future.'' Other options apparently now under consideration include the deployment of a land- or sea-based version of the Standard Missile 3, SM-3 which is now deployed on Aegis ships of the United States. The CBO found that this option, the SM-3, will not available until late in the next decade, is no less expensive than the GBI option and does not provide protection for the United States against long-range Iranian missiles. In other words, while the deployment of a land- or sea-based version of SM-3 may be suitable to protect Europe against medium- and intermediate-range missile threats, it would not contribute to the defense of the United States which could occur from the launch of an ICBM, an intercontinental ballistic missile, which would travel at a much higher altitude. Likewise, Admiral Stavridis, the new commander of the U.S. European Command, testified before the Senate Armed Services Committee during a hearing last month: Sea-based and transportable land-based assets are integral components of a comprehensive ballistic missile defense system but cannot defeat the entire range of threats by themselves. Sophisticated sensors are required for early acquisition and target determination, and ground-based interceptors are needed to defeat longer-range missiles. The missile Iran seeks to develop, and is moving forward to develop, would be capable of hitting the United States. Now they are seeking to develop ICBMs, and they are actively pursuing nuclear weapons, as we all know. Why, I would ask my colleagues, would we want to consider alternatives to the proposed GBI deployment in Europe that would not save any money and would not provide additional protection for the United States? I would recall the comments former Secretary of State Henry Kissinger made a few years ago about missile defense and whether we should deploy. His comment was: I have never heard of a nation whose policy it is to keep itself vulnerable to attack. Well, we do not need to be kept vulnerable to attack. We have the capability to defend ourselves and protect against incoming missiles. Some have suggested that such additional protection is not needed, that current ground-based interceptors deployed at our missile defense site in Fort Greely, AK, can provide complete protection for the United States against Iranian threats. But that argument does not tell the complete story. The truth is, deploying GBIs in Europe would provide an early opportunity to intercept Iranian missiles headed to the east coast, which could then be followed by an intercept attempt by Alaska, providing the United States an extra layer of protection. Just 10 missiles could provide a great additional protection for the United States. That is what is needed, an integrated, layered, ballistic missile defense shield that effectively protects America and her allies from rogue attack. Most Americans think we are adequately protected. I do remember a townhall meeting I held, and I asked the people there: What would happen if a missile was launched at the United States? They said: We would shoot it down. Well, that was before our system was up and running in Alaska, and it was not accurate. People think we do have a fully operational system, but we only have a few of those missiles up in Alaska, and we need this additional shield in Europe. Without the site in Poland, the United States would have only one opportunity to engage Iranian missiles headed for certain portions of our country. Why should we take that risk? Although the search for alternatives may please the Russians, it would perversely send the wrong message to our NATO allies and, in particular, to our friends in Poland and the Czech Republic who, despite pressure and threats from Russia, have agreed and stood firm and expressed their willingness to host these missile defense assets on their territory. I would remind my colleague that NATO, the North Atlantic Treaty Organization, the most successful defense treaty in the history of the world, endorsed the current plan at the April 2008 Bucharest Summit and noted in their declaration: We therefore recognize the substantial contribution to the protection of Allies from long-range ballistic missiles to be provided by the planned deployment of European-based United States missile defense assets. I also understand the Polish and Czech Parliaments have yet to ratify the agreements, and the ambivalence presented by the Obama Administration now regarding what was a firm policy of the United States, means, frankly, it is unlikely they will do so until our administration completes its consideration of alternatives. This has placed our situation in limbo. I am not happy with that. I think it was a mistake. After all, why should those parliaments take up an agreement that the United States may pull off the table? This unfortunate event was obvious from the beginning when we backed away from our plan and started showing uncertainty. It is obvious the political support in Central Europe may erode. I am left to conclude that the reason the administration is pursuing alternatives in this current plan is its hopes it will address Russian objections about the proposed deployment as part of a grand strategy to reset relations with Russia and conclude a follow-on to the START nuclear reduction agreement. I am not confident in this effort. In fact, it seems to, instead of moving our relations forward, have moved them backward. Let me make note of some recent events. Just days after the United States and Russia reached a broader agreement on arms reductions and missile defense cooperation at the July 6 Moscow summit, Reuters News Agency reported, on July 10, 4 days later, that Russian President Medvedev threatened the United States that if it did not reach agreement with Russia on our joint NATO/Polish/Czech plans for missile defense systems, Moscow would deploy rockets in an enclave near Poland. Typical Russian bluster, threat. Likewise, Russian Foreign Minister Sergey Lavrov has threatened to end arms control talks with the United States if we pursue cooperation with our allies on missile defense, a system that in no way threatens Russia's massive nuclear capability, and they know it. Ten interceptors of the United States in Europe are going to somehow have a capability to stop the thousands of Russian missiles and nuclear weapons that they have? Russia knows that our defenses would be no match. As reported by the Associated Press, just 1 day after the summit, Lavrov stated: If our partners make a decision to create an American missile defense system with global reach, then that will doubtless place a big question mark over the prospects for further reduction in strategic offensive weapons. Again, this is, unfortunately, a regressive approach by Russia on issues that I do not think is justified. It seems we are falling back into a darker approach to world affairs with threats instead of working together to build a more peaceful and prosperous, harmonious world. If, in fact, there were technical arguments in favor of alternative deployments, which there are not, Russian belligerence would now indeed be an argument for proceeding, nevertheless. The former Prime Minister of the Czech Republic, Mirek Topolanek, put the issue in its proper perspective when he stated: The moral challenge is clear and simple: If we are not willing to accept in the interests of the defense of the Euro-Atlantic area such a trifle as the elements of a missile defense system, then how shall we be able to face more difficult challenges that may come? That is an important statement. Are we losing confidence in ourselves? He is not alone in that view. Just last week, 22 prominent Eastern European political figures of important historic importance, including Poland's Lech Walesa and the Czech Republic's Vaclav Havel, published an open letter to President Obama expressing their uneasiness over U.S. maneuvers with Russia. This letter was sent to address their concerns in light of what appears to them to be Russia's attempt to reassert its influence over Russia's former Eastern European satellites. These are independent nations. They have been freed from Soviet domination. It is not their desire to kowtow to Russia and to have to seek Russia's permission over whether to put a radar site in their country. They are sovereign nations. These leaders noted in their letter that America's planned missile defense installations in Poland and the Czech Republic have become ``a symbol of America's credibility and commitment in the region.'' They further warned that: The Alliance should not allow the issue to be determined by unfounded Russian opposition. Abandoning the program entirely or involving Russia too deeply in it without consulting Poland or the Czech Republic can undermine the credibility of the United States across the whole region. I don't think that is no small matter. These are historic figures in Eastern Europe who suffered under the Communist boot. They do not want to go back. They are sending us a message. They are great American allies. They believe in freedom and democracy. This is not an academic matter to them, it is very real. I ask unanimous consent to have this letter printed in the Record at the conclusion of my remarks.

Mr. SESSIONS. I ask unanimous consent the order for the quorum call be rescinded.

Mr. SESSIONS. I know my colleague has given more time and effort to studying the sickness that is affecting our Congress with regard to how we spend money than anyone in this body, and he has taken a lot of heat for standing up and raising these issues. I salute him for it. But the amendment that is before us, it seems to me, is absolutely typical of how out of step Congress is. This may be a swell amendment for whoever benefits from it, but the people who are paying for it are not aware that the money they have earned from the sweat of their brow is now going to somebody who got a better health care plan, a better retirement plan and higher pay than they get, and more job security than they get. In my home county, the unemployment rate is over 20 percent. Then we have people with so much better jobs wanting more money. This is what, a $2 billion amendment? I would ask you, is this not sort of a pretty egregious example of the tendency we have to try to reward one group and ignore the cost that everybody else is going to have to pay?

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise to make a few remarks in support of the Kyl amendment. This amendment relates to the possible follow-on agreement to the 1991 Strategic Arms Reduction Treaty, so-called START. The Joint Understanding issued at the recent Moscow summit suggests the United States and Russian Federation are well on their way toward completing a new agreement, perhaps even before the end of this year. Rather than wait until the agreement is signed and submitted to the Senate for the Senate's consent, this amendment provides an opportunity for the Senate to give its advice before the treaty's provisions are agreed to. It reflects this Senator's desire to see a follow-on treaty that does not weaken our nuclear deterrent or place in doubt our nuclear guarantee to our allies and partners who depend on it. It also reflects a caveat that any future agreement should not limit U.S. missile defense capabilities or U.S. capabilities for long-range conventional strike. Finally, this amendment makes clear that any reductions in our nuclear stockpile should be supported by long-range plans to modernize our aging nuclear deterrent and supporting infrastructure. This is important. We have had testimony in the Armed Services Committee on a number of occasions from our top military commanders who deal with this issue. They say continued reductions of nuclear weapons must be accompanied by a modernization of the limited number we have left. When we do that, we can make them safer and far more difficult for anyone who were to nefariously obtain them to utilize and protect them and make them more reliable. Most, if not all, would agree that it is important to ensure that the verification and monitoring provisions of the START Treaty of 1991 not be allowed to lapse come December 6. While there are a number of ways to handle this, either by extending the current agreement or drafting a new agreement dealing specifically with these matters, the United States and Russia have chosen the more ambitious goal of a new treaty that would make further reductions in the current nuclear stockpiles which are today at the lowest levels since the Cold War. We have about 2,200 warheads today. We had 6,000 not too many years ago. We have reduced those numbers. I support that. The rush to complete an agreement before START expires in December has led the United States to agree to provisions in the Joint Understanding that potentially may not be in our best interest. It is not a critical thing that we reach a firm agreement by the end of December. We should not allow the Russians to put us in a position where we are so desperate to reach an agreement by the end of the year that we would reach a bad agreement. At the very least, it can be said that these matters have not sufficiently been analyzed to know whether they are in our interest. First, with respect to the central limits to be enshrined in a new agreement, the two sides agreed to warhead limits of between 1,500 and 1,675 warheads, and limits on the number of strategic nuclear delivery vehicles to somewhere between 500 and 1,100. That is quite a wide range. The final number is to be negotiated by the parties. The Senate has yet to see the analytical basis for the levels agreed to in the Joint Understanding which means we are not off to a good start in the advice and consent process. Today the United States deploys approximately 2,200 operational nuclear warheads on some 900 delivery vehicles. These are our ICBM missiles, our SLBMs, and bombers. Whether it is prudent to go below these numbers depends on some important considerations. To take that down to 500 would be a dramatic reduction of our delivery systems. Whether it is prudent to go below these numbers that we currently have depends on some important considerations, not the least of which is the impact on the size and shape of the U.S. nuclear TRIAD, the ICBMs, the submarine-launched missiles, and our bomber fleet; our ability to extend credible nuclear guarantees to our allies; and whether lower levels provide an incentive to other nuclear powers to build up their forces so they can be a peer competitor with the United States and Russia. I will have more to say on this in the future. Suffice it to say that I have yet to hear a convincing strategic rationale that would justify going this low. Indeed, I believe the burden of proof will be on those who think it is necessary to continue to reduce U.S. nuclear force levels that are today but a fraction of what they used to be. My major concern, however, is language in the Joint Understanding which seems to suggest the two sides may establish limitations on U.S. missile defense and long-range conventional strategic strike capabilities. In other words, an agreement could well involve a limitation, either in part of the treaty or a corollary agreement, to limit our national missile defense capabilities. That is a dangerous and unwise linkage. For example, the Joint Understanding states there will be a provision ``on the interrelationship of strategic offensive and strategic defensive arms.'' I find this troubling because we have made it clear to the Russians that our missile defense capabilities are not directed at, nor are they capable of being an effective defense against, massive Russian capabilities. We only have a plan to put in 44 missiles in the United States and 10 in Europe. That is a fraction of the capacity that the Russians have today. Instead we build missile defenses to address a threat to the United States and its allies posed by rogue nations such as North Korea and Iran. That is what 40 missiles in Alaska and California can do. That is what 10 in Europe could do. It can't defend against massive Russian delivery systems. It has no capability of doing that. They know it. So why do they object? What do we mean, as we carry out this discussion, by the term ``strategic defensive arms''? How does one distinguish between a strategic and nonstrategic missile defense system? Is the United States SM-3 missile, which has some capability against long-range North Korean missiles, considered a strategic missile defense system? It is best not to get into negotiations that could eventually constrain our ability to build missile defenses against countries such as Iran and North Korea. To be sure, any such limitations would make a START follow-on agreement dead on arrival in the Senate. I don't believe the Senate would pass such an agreement. The Joint Understanding also contains--between the Obama administration and Russia--a provision addressing the impact on strategic stability of strategic missiles in a nonnuclear configuration. This apparently is an attempt by Russia to constrain the ability of the United States to field long-range strike systems armed with conventional warheads, nonnuclear warheads. Conventionally armed long-range strike systems, also known as ``prompt global strike,'' are consistent with a move by both countries to place less reliance on nuclear weapons for deterrence. Prompt global strike would allow the United States to launch a missile without a nuclear weapon that could take out a dangerous threat anywhere around the world in a very prompt fashion. We have debated that over the years in the Senate. Finally, the amendment by Senator Kyl would send a strong message to the administration that a START follow-on agreement must be supported at the same time it is submitted to the Senate for ratification by a long-term program to modernize the remaining nuclear forces of the United States, including warheads, delivery systems, and infrastructure needed to support both. Such a modernization is called for by the Congressional Commission on the Strategic Posture of the United States and by the Secretary of Defense, Secretary Gates, who last October said: There is absolutely no way we can maintain a credible deterrent and reduce the number of weapons in our stockpile without resorting to testing our stockpile or pursuing a modernization program. Our colleagues don't want us to test. They think this would be a bad example to Iran and North Korea. If we did that, somehow they might be more likely to want to test. I don't think it will have any impact on those rogue nations. The Secretary of Defense is saying that if we don't continue testing, we need to modernize the weapons system we have. If we continue to draw down the number, these 40, 50-year-old weapons need to be modernized. They need to be reliable. This Senator will condition his support for a START follow-on agreement upon a serious commitment by the administration to modernize our nuclear deterrent which remains necessary to protect the United States and our allies against threats to our vital interests. I wish to note a similar version of this amendment was adopted unanimously by the House on their version of the national Defense authorization bill. I commend Senator Kyl for offering it and note the importance of sending a clear message to the administration and to our allies and to Russia regarding our views on the ongoing START follow-up negotiations. I wish to say what is obvious to all of us who have been here a long time. Senator Kyl is a real patriot who has maintained a deep interest in these issues throughout his career. This is a well-thought-out, well-conceived amendment that is wise for our Senate to pass. I believe we will. I think if my colleagues will find the time to review it and think it through, they will be convinced this is a wise step for us to take at this time so we don't end up with misunderstanding later on when a treaty plops down in the Senate that has a lot of problems for a host of Senators. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS. That is correct.

Mr. SESSIONS. The missile defense amendment is one that is a sense- of-the-Senate amendment that Senator Lieberman is offering now. That was not the two I referred to. I agree with Senator McCain that sense of the Senate definitely needs a vote. It is an important issue. The other two amendments I have I hope also can be considered. I will be pleased to talk with the Senator and his staff about it.

Mr. SESSIONS. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS. Reserving the right to object.

Mr. SESSIONS. Reserving the right to object, Mr. President.

Mr. SESSIONS. I wonder, I know the bill managers have many challenges, but I wonder if they contemplate that I would have the opportunity to call up Sessions amendments Nos. 1657 and 1533 before we go too far in this process.

Mr. SESSIONS. I am not delaying, of course. We want to see this bill move forward. But I do have two amendments I care about. Maybe I can talk to the chairman in a little bit. I thank him for his courtesy. I will not object.

Mr. SESSIONS

Mr. SESSIONS. Madam President, we have been busy in the Judiciary Committee with the Sotomayor hearing. I have not been able to participate in the debate over the hate crimes legislation. I want to follow up a little bit more on what I said earlier today. I have an obligation to assert a principle that I think is important in Federal criminal law. I was a Federal prosecutor for 15 years and was very familiar with the jurisdiction issues that are involved in Federal criminal law. We need to do this right. I do not think we have done that right. The bill has basically been made a part of this Defense bill already, so in one sense I guess the die is cast, but I will share a few thoughts. To repeat briefly, I will quote from the letter from six, I believe, of the eight members of the U.S. Commission on Civil Rights that was received June 16, was sent to the President and members of the Judiciary Committee. They said: We believe the MSHCPA-- That is the so-called hate crimes legislation, this is their opinion, six of the eight members-- will do little good and a great deal of harm. Provisions in the bill ``are very much a violation of the spirit that drove the framers of the Bill of Rights, who never dreamed that federal criminal jurisdiction would be expanded to the point where an astonishing proportion of crimes are now both state and federal offenses. We regard the broad federalization of crime as a menace to civil liberties. There is no better place to draw the line on that process than with a bill that purports to protect civil rights. In other words, this is an official commission of the U.S. Government, appointed by Presidents, and that is what they sent to us. Gail Heriot, who is a member of the commission, testified at our judiciary hearing a couple of weeks ago. She testified that: The proposed hate crimes legislation, which is being touted as a response to murders, should not have been treated as a mere photo opportunity. It is real legislation with real world consequences--and not all of them are good. A close examination of its consequences, especially its consequences for federalism and double jeopardy protections, is therefore in order. Given the many civil liberties issues that would raise, including the routine potential for double jeopardy prosecutions, this is a step that members of the Senate should think twice before they take. Bob Knight, a senior fellow--I guess I am going to show some members, liberal lawyers and conservative advocates, also sharing concern over this legislation. I hope my colleagues have not treated these concerns too lightly. It is hard to vote against legislation that purports to fight hate. You do not want to be somebody defending hate crimes. I certainly do not. Neither do these good people who have expressed their concern. Bob Knight, a senior fellow at the American Civil Rights Union, said this: The proposed law, whatever its sponsors' good intentions, is a grave threat to the constitutional guarantee of equal protection under the law. America's legal heritage of judging actions rather than thoughts or beliefs, and it will politicize law enforcement by making some crime victims' cases more important than others. Beyond the obvious unfairness of excluding some groups from enhanced protections, such as the elderly, homeless, veterans and children-- They are not given enhanced protections of the hate crimes bill-- the proposed law advances an underlying ambitious agenda to punish individuals and groups that hold traditional values. This law: . . . lays the groundwork for the concept of ``thought crime,'' in which someone's views or beliefs are criminalized. Violent acts are already illegal and punished under criminal law. This law adds penalties based on thought. In order to prove that the defendant holds particular beliefs that motivated a criminal act, his or her speech, writing, reading materials and organizational memberships would become key evidence. Brian Walsh, a senior fellow at the conservative Heritage Foundation, says this: The criminal justice system is in great need of principled reform . . . this reform should not be driven by some partisan politics. Unfortunately, the HCPA fails to measure up to this standard and would substantially undermine constitutional federalism and the high regard in which the American public should hold Federal criminal law. The three main problems with this amendment are that: . . . the Act's new ``hate crimes'' offenses are far broader and more amorphous than any properly defined criminal offense should be-- I agree with that, parenthetically. He goes on to say: --and they thus invite prosecutorial abuse, politically motivated prosecutions, and related injustices. The Act's ``hate crimes'' offenses violate constitutional federalism by asserting Federal law-enforcement power to police truly local conduct over which the Constitution has reserved sole authority to the 50 states. The Act's ``hate crimes'' offenses would be counterproductive, for nearly all States have--tough ``hate crimes'' laws and the violent conduct underlying the Act's ``hate crimes'' offenses has always been criminalized in all 50 states. Nat Hentoff is a famous civil rights and libertarian attorney, a writer well known in the country as being a passionate advocate for civil liberties from an objective, I would say, point of view. He has respect from both conservatives and liberals, but I guess his background has mostly been on a more liberal approach to law. He starts off saying: Why is the press remaining mostly silent about the so- called ``hate crimes law'' that passed the House on April 29? The Local Law Enforcement Hate Crime Prevention Act passed in a 249-175 vote--17 Republicans joined with 231 Democrats. These Democrats should have been tested on their knowledge of the First Amendment, equal protection of the laws . . . and the prohibition of double jeopardy. . . . No American can be prosecuted twice for the same crime or offense. If they had been, they would have known that this proposal, now headed for a Senate vote-- violates all these constitutional provisions. This bill would make it a federal crime to willfully cause bodily injury--or try to--because of the victim's actual or perceived ``race, color, religion, national origin, gender, sexual orientation, gender identity or disability''--as explained on the White House Web Site, signaling the president's approval. A defendant convicted on these grounds would be charged with a ``hate crime'' in addition to the original crime and would get extra prison time. The extra punishment applies only to these ``protected classes.'' He quotes a Denver, CO criminal defense lawyer: As Denver criminal defense lawyer Robert J. Corry Jr. asked . . . ``Isn't every criminal act that harms a person a hate crime?'' Then, regarding a Colorado ``hate crime'' law, one of 45 such state laws, Corry wrote: ``When a Colorado gang engaged in an initiation ritual specifically seeking out a `white woman' to rape, the Boulder prosecutor declined to pursue ``hate crime'' charges. She was not enough of one of its protected classes.'' Corry adds that the State ``hate crime'' law--like the newly expanded House of Representatives Federal bill--``does not apply equally,'' as the 14th amendment requires, essentially instead: ``Criminalizing only politically incorrect thoughts directed against politically incorrect victim categories.'' Hentoff concluded: Whether you're Republican or Democrat, think hard about what Corry adds: ``A government powerful enough to pick and choose which thoughts to prosecute is a government too powerful.'' David Rittgers of the CATO Institute, a libertarian group, said this: The Federal hate crimes being considered in the Senate undermines the rule of law and shows casual disregard, if not outright hostility, for the principles of limited government and equality under the law. The bill Federalizes violent acts against victims by reason of their actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. Never mind that these acts are already prosecuted by the states--45 of which have their own hate crime laws--and that violent crimes of this nature are universally perceived as an affront to justice. Matthew Shepard, a gay man brutally killed in Wyoming, has provided one of the rallying cries for passage of this legislation. His killers both received two consecutive life sentences from a state court. James Byrd, Jr., the African-American man dragged to death behind a truck in Texas, is cited as another reason to pass the law. His killers received death sentences or life imprisonment. The federal government would also be authorized to prosecute whenever ``the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-related violence.'' While this doesn't violate the letter of the Supreme Court's double jeopardy jurisprudence--the federal and state governments are considered separate sovereigns--it certainly violates its spirit. The National Religious Broadcasters write they are opposed to the concept as well as the current legislative permutations of the so- called ``hate crimes.'' This legislation takes any conduct that is viewed as a threat to homosexuals or bisexuals or a threat to persons who want to immunize their religion from public debate and turns that threat or perceived threat into a species of criminal felony. As a consequence, this legislation will inevitably stifle the free exercise of religion and freedom of speech, and brings with it the very real likelihood of abusive prosecutions. Federal ``hate crimes'' laws also ignore the fact that the underlying core offense, the causing of bodily injury to another, is already criminalized in all 50 states. The Research Council says this: Hate crimes laws force the courts to guess the thoughts and beliefs which lie behind a crime, instead of looking at the crime itself. The Family Research Council believes that all crimes should be prosecuted to the fullest extent of the law, and that every violent crime has some form of hate behind it. All around the country, crimes are being prosecuted in the State justice systems. American justice is being done. There is simply no need for a Federal hate crimes law. Violent attacks upon people or property are already illegal, regardless of the motive behind them. With hate crime laws, however, people are essentially given one penalty for the action they engage in and an additional penalty for the particular and highly selective attitudes and thoughts that motivated these actions. Motive-based analysis and intent-based analysis are not the same thing. For example, with the crime of manslaughter, intent-based analysis looks at whether the perpetrator intended the result. Hate crime legislation takes into account what the offender thinks, feels, or believes about the victim regardless of whether the perpetrator intended the result. This is why hate crimes may be referred to as ``thought crimes.'' The Traditional Values Coalition says: The so-called hate crimes bill will be used to lay the legal foundation and framework to investigate and prosecute and persecute pastors, business owners, Bible teachers, Sunday School teachers, youth leaders, Christian counselors, religious broadcasters, and anyone else whose actions are based upon and reflect the truths found in the Bible, which have been protected by the first amendment. That is not accurate? Well, they are concerned about that. And they object to the legislation. The Concerned Women for America note that: The legislation would violate genuine constitutional rights in an attempt to address a nonissue, create a caste system of victims, violate the spirit of the Double Jeopardy Clause of the Constitution, and unintentionally extend privileges to individuals who engage in illegal sexual acts even against children. I would share those thoughts and say that this is why this legislation has been controversial. The predicate for this legislation is the interstate commerce tag that is very weak. The Supreme Court has already found several Federal statues do not have sufficient interstate nexus to justify prosecuting a crime in Federal court. I would say if a few people walk out in the pasture and one finds a rock and murders a person, as a Federal prosecutor for 15 years I will tell you, there is no jurisdiction federally to try and prosecute that case. It is a criminal case in the State court only. And to make it a Federal case, you have to have some sort of peg to hang your hat on, so to speak. In that case, I do not think there is any. But if you are on a railroad train and you are traveling and you are in interstate commerce, you murder someone, that can be a Federal crime. If you steal from an interstate shipment, that can be a Federal crime. If you murder a postman, that is a Federal crime--or a Federal civil servant, and so forth. Those are Federal crimes. But normal murder, rape, robbery, theft, that occur by the tens of thousands every day all over America are not Federal crimes. They are not prosecutable in Federal court. The very small number of FBI agents, compared to the massive numbers of police and sheriffs, deputies, and State law enforcement officers is such that there is no way they can ever begin to prosecute or investigate these crimes. They have to focus on those crimes that are uniquely Federal, vindicate a uniquely Federal interest. With regard to the Civil Rights Act that was passed in the 1960s, it has some similarities, although it is more tightly written. I will conclude with these thoughts: There was a demonstrable record of failure to prosecute violations of civil rights against African Americans in the South, sad to say, and in other places in this country. It appeared that local law enforcement was ineffective, sometimes unwilling, to vindicate those rights, and so the Civil Rights Act said: If you are going to school or a legal activity at the city or county or Federal Government or voting and you are interfered with, that can be a Federal offense. There was a clear record to justify the need for Federal involvement in those cases. And most of those cases, I think virtually all, have been upheld as being sufficiently tied to interstate commerce to be a legitimate Federal crime to prosecute. We asked the Attorney General at a hearing recently, can he name any cases? He did not name a single one. But he said in his statement there were four. After the hearing we submitted questions to the Attorney General: Did he have any cases to show that these prosecutions are not being effectively prosecuted locally? He stood by the four. That is all we ever got over a period, I think, of 5 years. At least that is what I asked him for. And the four cases were very insubstantial. In each one of the four cases prosecutions were initiated. I think in all but one convictions were obtained. Some people were not happy with the results of the case, and they would have liked the Federal Government to take it over and prosecute it again. But as I said, there are tens of thousands of cases prosecuted every day, and many victims in those cases felt that the outcome of the case was not sufficient. They would like also for the Federal Government to prosecute it again. But they might not have been in these ``special classes'' that got this ``special benefit'' in this bill. Do you see then what it is all about? It is basically saying that the Federal Government sits up and hovers above the criminal justice system, and it can decide whenever, based on the length of the chancellor's foot, I suppose, when a case has not effectively resulted in justice. They said in their answer, they want to make sure that there is justice every time. That is a pretty high goal, I have got to tell you, especially when people might not agree. Juries make decisions. I hope we in this Congress will understand the huge responsibility we have to the historic concept that crimes of a local nature should be prosecuted locally, and that the Federal Government does not need to be involved in everything to try to ensure perfect justice. Indeed, it is not involved in every case and it never has been. It should not be. I wanted to make these quotes a part of the Record, and call on the Members of the Senate as we go forward in the future to make sure that the legislation we pass is consistent with our heritage, which understands that the Federal Government does not have a general criminal power, has only narrow limited enumerated power to make crimes Federal, and we ought not overreach and create a situation in which, according to the U.S. Civil Rights Commission in their letter to us: Every single rape would be a Federal crime because the action would have been carried out as a result of the gender of the person being assaulted. Ms. Heriot said she had talked with the Department of Justice in previous years about this, before she was on the Commission, and they refused to narrow the language because they wanted that broader language. I think that is too broad. This bill is too amorphous and too broad and should not become law. I yield the floor and I suggest the absence of a quorum.

Mr. SESSIONS. Madam President, I just want to say how much I appreciate the Senator's efforts. It is consistent with the retired law enforcement officers bill we passed, as I recall, not long ago that allowed them to carry their weapons in other States under certain circumstances. When people are traveling, they many times feel more vulnerable and they feel a greater need to protect themselves. I think it is a sound and reasonable approach--limited but important--and I thank Senator Thune for offering that amendment.

Mr. SESSIONS. Did we get an agreement on the time before we vote?

Mr. SESSIONS. Madam President, we have had problems with these assaults on our military officers. This will be a good step in correcting that situation. I thank the Chair for the opportunity to speak. I hope my colleagues will support the amendment.

Mr. SESSIONS. Madam President, I thank Senator Levin. It is always a pleasure to work with him and others who work with us to make sure that when we prosecute a hate crime that results in death, that it is possible to have the death penalty in Federal court. I think that is appropriate in those instances where it may be appropriate for the Federal Government to proceed with such a death penalty prosecution. It would be odd that it would not be possible and a crime could have resulted--easily in multiple murders--by one of the most vicious criminals one can imagine. The next amendment I call the soldiers amendment. It is distinct from the hate crimes legislation we have been discussing. It expands the protections that the United States of America provides to its soldiers. Remember, we provide protections now to Federal officers, postmen--any Federal officer of the United States is protected, and so are soldiers in certain circumstances. This amendment would create a new Federal crime which puts members of the U.S. military on equal footing with other protected classes. It makes it a crime to knowingly assault, batter a serviceman or immediate family member or knowingly destroy or injure their property ``on account of the military service or status of that individual as a United States serviceman . . . '' It is not a total expansion of Federal law, but it says if you are attacked or assaulted, battered, or your family members are simply because you are a member of the U.S. military serving your country, then the Federal Government would obviously have the ability to prosecute because it is a high duty, and no higher responsibility, for the U.S. Government to protect its soldiers from assaults arising from their service to our country.

Mr. SESSIONS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICDER (Mr. Warner). Without objection, it is so ordered.

Mr. SESSIONS. Mr. President, I am very concerned about legislation that has been added to the Defense bill, the so-called Hate Crimes Act. Certainly, none of us has any sympathy whatsoever for people who commit crimes of any kind, particularly those who would attack somebody because of their race, ethnicity, sexual orientation, or any other reason. I wish to take a few moments to explain why this is important and why this legislation is not good and it ought not to be passed. Some of my remarks may appear to be technical, but they are very important, in my view, as a former Federal prosecutor for almost 15 years. I don't think it was ever appropriate that we bring this legislation to the floor and stick it on this Defense bill without having a markup in the committee without the ability to discuss it and improve it. For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees. I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest? Most people do not understand that a majority of crimes--theft, rape, robbery, and assault--are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be. Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed. Instead of administering justice without fear or favor, this legislation that has been placed on this bill creates a new system of justice for individuals because of their sexual orientation or gender identity, providing them with a special protection, while excluding vulnerable individuals, such as the elderly or police officers or soldiers, from such special protections. I don't think we can justify that. The purpose of the DOD reauthorization bill is to make sure the men and women who protect our freedoms have the necessary resources to continue to do the fabulous job they have been doing. We should not deviate from this path by addressing matters wholly unrelated to the defense of our Nation. A bill of such breadth and lack of clarity as this should be carefully reviewed with the opportunity for discussion and amendment in committee. Yet this legislation had no markup in any committee. In fact, no version of the bill has been marked up since 2001, and this version is quite different and more expansive than the 2001 bill. The committee did hold a quickly thrown-together hearing on June 25 in which Attorney General Holder himself appeared. The Attorney General, however, failed to point to one single serious incident in the past 5 years, when I asked him that question, where the types of crimes that are referred to in the bill, to give special Federal protection to select individuals, were not being prosecuted by State and local governments. Additionally, the Attorney General refused to say attacks on U.S. soldiers predicated on their membership in the military by, for example, a Muslim fundamentalist, could be considered a hate crime. It is baffling to me, given previous opposition and serious concerns which have been raised about this legislation, that the act, instead of being constrained, is actually expanded in a vague and awkward way. It focuses on the perception of what someone might have been thinking when they committed the crime and includes categories which are undefined and exceedingly broad, such as gender-related characteristics and gender identity. From questions that have been raised, these categories do not have clear meaning. During the course of debate on hate crimes legislation--a debate that started in 2001--amendments have been offered to also protect our military men and women, where it is unquestioned they have been targeted. Those amendments were rejected. Mr. President, I will briefly outline my opposition to the legislation in the following ways: The hate crimes amendment is unwarranted, possibly unconstitutional-- certainly, I believe it is unconstitutional in certain parts--and it violates the basic principle of equal justice under the law. The hate crimes amendment to this bill has been said to cheapen the civil rights movement. When Congress passed the original civil rights statute in 1968, it criminalized violent and discriminatory actions directed at individuals because of race, color, religion, or national origin. There was, sadly, quite a substantial body of evidence that crimes were being committed against minorities and they were not being prosecuted. Section 245 that was then passed was never envisioned by Congress to be a hate crimes statute but one, rather, that would ensure access by minorities to specific activities legitimate to their freedom, such as enrolling in public schools, enjoying the benefit of programs administered by the State, or attending court as a juror. In 1968, care was taken to ensure that the underlying statute was carefully crafted and narrowly tailored to address the problem of access to ensure that criminal activity fell within the confines of the constitutional requirement that there be a Federal nexus with interstate commerce. The statute enumerates six instances in which a crime could be charged. That statute says this: Whoever, whether or not acting under the color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with any person because of his race, color, religion or national origin and because he is or has been. . . . And then it lists specific areas that would encompass a criminal offense. (a) enrolling in or attending any public school or public college. So if anyone who was attempting to attend a public school or college was interfered with or intimidated because of their race, color, religion or national origin, that would be the offense. (b) participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof. In other words, you can go to the city hall, you can go to the health department, and you cannot be discriminated against because of your race or background. Unfortunately, I have to say there were areas of the country-- particularly in my area of the South--where that was not so. People were being unfairly treated. In fact, in some other areas of the country also. I believe great care was taken with that act because, as I said, there was strong evidence to suggest that a Federal expansion of criminal law would be appropriate to deal with it. So the history of civil rights violations caused and fully justified Congress's passage of this statute. There was direct evidence, for example, that African Americans were being denied the right to vote or intimidated at voting precincts without State and local law enforcement protecting them. There was much evidence, sadly, that other rights of African Americans were not being protected. But that is not the case with this amendment, and I will talk about that in a minute. Gays and lesbians have not been denied basic access to things such as health or schooling or to the ballot box. They openly are able to advocate their positions today, which I think is certainly healthy, and have no difficulty in approaching government officials at whatever level. When Eric Holder testified a few weeks ago before the Judiciary Committee, I asked him point-blank for direct evidence that hate crimes against individuals over the past 5 years, because of their sexual orientation or otherwise, were not being prosecuted by local authorities. Instead of answering the question, he referred me to four cases in his written testimony which he had delivered to the committee. Let me make the number clear as strong evidence that these cases are being prosecuted. The Attorney General could not come up with 4,000 cases or 400 or 40 cases. He only named four cases in 5 years. So we took a look at those four cases he cited in his testimony, and this is what we found. In one case, Joseph and Georgia Silva assaulted an Indian-American couple on the beach. Although there was evidence that racial and ethnic slurs were used during the altercation, a California El Dorado County judge ruled that prosecutors failed to produce sufficient evidence that the alleged assault was motivated by racial prejudice. The prosecutor had pursued a hate crimes conviction, including charging Silva with a felony assault, punishable by up to 3 years in prison. The evidence, according to the judge, was that racial slurs were used in the heat of anger. There was no evidence the attack was initiated because of ethnicity. Both Joseph and Georgia Silva were convicted of assault, the basic crime that they committed, and Joseph Silva was sentenced to 6 months in prison and 3 months probation, while Georgia was sentenced to 1 year in prison. So the question is, was there an important Federal right left unaddressed that needed to be vindicated by charging this couple again for the crime arising from that assault? In other words, that is what this bill does. It says if we are unhappy with the result in State court under a select group of crimes, the Federal Government can try the case again. You might say, well, there is a double jeopardy clause in the Constitution; you can't be tried twice for the same crime. Good; if you asked that question, you get an A in constitutional law. However, there is an answer. It has long been established that the States are sovereign and the Federal Government is sovereign. So an individual can be tried by two separate sovereigns without implicating the double jeopardy clause of the Constitution. However, we have always understood that ought not to be done lightly. It ought not be done without a real justification because it violates the spirit of the double jeopardy clause of the Constitution. Attorney General Holder also cited a 2003 case in Holtsville, NY. In that case, three White men, while using racial slurs, assaulted a group of Latino teenagers as they entered a Chili's restaurant. One of the three defendants entered a guilty plea for his involvement in the assault and was sentenced to 15 months in prison. The other two defendants proceeded to trial and were acquitted because the jury apparently concluded there was insufficient evidence to prove beyond a reasonable doubt that the offense that occurred was to deny the victims access to the restaurant. So they had a trial, and one was convicted and two were not. The Attorney General cited a South Carolina case where a gay man was assaulted after leaving a bar. During the altercation, he fell and he suffered a fatal strike to the head from the concrete. Stephen Miller was convicted of involuntary manslaughter and sentenced to 5 years in prison. Finally, the Attorney General cited a case from here in the District of Columbia where a transgender prostitute was murdered. Apparently, after Derrick Lewis discovered that the prostitute he had picked up in his automobile was not female, and the prostitute refused to get out of his car, an altercation of some kind occurred--an argument--and he had a gun and shot and killed this transgender individual. He eventually pled guilty, gave a full statement of what happened, and was sentenced to 10 years in prison. The evidence showed they had begun fighting and that is when he pulled the gun and shot him. He said the individual would not get out of the car. Well, those are not insignificant crimes, but I can just advise my colleagues, if we just pause one moment and think, we know that at this very moment thousands, maybe 10,000 or more trials are ongoing in State and local courts all over America, and they do not always end as people would like them to end. What this bill does basically is it provides an opportunity for the Federal Government to pick and choose certain crimes they want to prosecute again to get the kind of justice they think might be likely. That is a broad power that we give to the Attorney General and a broad statute I don't believe is compelled by the facts that are happening in America today. When my staff followed up with the Office of the Attorney General to see why they listed just these cases, the response wasn't that State and local law enforcement were not doing their jobs but that the Attorney General believed the cases were under prosecuted. Citing four cases over 5 years as being underprosecuted is not the kind of evidence needed to justify the passage of such an expansive new piece of legislation that injects Federal prosecutors in areas of crime not heretofore occurring. After the Judiciary hearing, both Senator Coburn and I sent followup questions to the Attorney General to provide him an additional opportunity to demonstrate that the bill was necessary because of under prosecution, as he had testified. Senator Coburn asked this question: Precisely how many hate crimes is the Justice Department aware of that have gone unprosecuted at the State and local level? This is the answer we got from the U.S. Attorney General: The Department believes that our partners at all levels of law enforcement share our commitment to effective hate crimes enforcement. The Department does not have access to precise statistics of hate crimes that have gone unprosecuted at the State and local level, and we are unaware of any source for such comprehensive information of unprosecuted offenses generally. Federal jurisdiction over the violent bias- motivated offenses covered under S. 909 is needed as a backstop for State and local law enforcement, to ensure that justice is done in every case. So he is suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation--S. 909, which has now been attached to the Defense bill--as a backstop for State and local law enforcement to ensure that justice is done in every case. Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case. I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, ``To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion.'' But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities. I submitted, after Senator Coburn--or at the same time, really--a similar question because I believed he had not been responsive to my question, and I asked this about our colleague, referring to Senator Hatch--of course a former chairman of the Judiciary Committee and who has worked on this issue for a number of years--and my question is this: Senator Hatch in the past has offered a complete substitute to similar legislation, which would require that a study be conducted to prove that there is an actual problem with hate crimes not being prosecuted. Do not give me a general response that there are some problems out there. I would like you to provide the Committee with an exact and precise number of hate crimes the Justice Department is aware of which have gone unprosecuted at the State and local level. Please detail every example you or anyone in the Department of Justice is aware of where no prosecutorial effort took place. This was the answer we got: The Department is unable to provide an exact number of cases in which State, local or tribal jurisdictions have failed to prosecute hate crimes because we are not aware of any such compilation of data. Senator Hatch has been offering this amendment for a study for a decade. The Attorney General goes on to say: When the Department receives complaints it clearly lacks jurisdiction to prosecute, these matters generally are never opened as investigations. . . . Let me just say, if this legislation is passed it will have one dramatic, undiscussed impact. Federal law enforcement agents--and there are not many. You may have a city with 300 police officers in it and 10 FBI agents, another hundred sheriffs' deputies, another number of State officers. Now huge numbers of crimes will be coming across the desk of the FBI, which has terrorism, white-collar crime, bank fraud which they need to be working on today, violent crimes and drug smuggling. Now they are going to have to review hundreds of complaints about cases they had not heretofore had jurisdiction of and did not have to review. I just raise that point as an aside. Based on the Attorney General's response, I conclude that the bottom line is there is nowhere near the real evidence needed to justify this legislation. No one in this body has produced the evidence, and the Attorney General of the United States, who is promoting the bill, has not produced any. Attorney General Holder's response, instead of demonstrating the need for hate crimes legislation as written, provides verification that it is not necessary, and it raises a question of whether this is driven by political interests at this time. It is easy to complain that anybody who opposes a hate crimes bill favors hate. That is not a fair charge. I think most of our colleagues fully understand that. But politically that is the suggestion some have made when this legislation has been objected to by people with very valid concerns. As a matter of fact, one of the studies heavily relied on by the Attorney General in support of this bill is a 2008 report published by the National Coalition of Anti-Violence Programs, which is composed primarily of lesbian, gay, bisexual, and transgender groups. They have every right to do those studies and present them, but it is a coalition clearly with a vested interest in the legislation, and it should be examined carefully. The Attorney General had to rely on these types of reports because crime statistics do not support the notion that the incidence of hate crimes has increased. Even though we are doing a better job of reporting those today, still over the past 10 years the number is down, down slightly, even though population is up in our country. Furthermore, in a rushed attempt to provide answers to the committee prior to this amendment being filed, the Department seemed to put little thought into their responses to our questions. As a matter of fact, it appears the Attorney General didn't think the issue important enough to answer them himself. He let his staff people answer, when he was the one who appeared before the committee and we were following up on his personal testimony. A number of arguments and statements have been made, including those by the Attorney General, that there are quite a few of these incidents, tens of thousands of these incidents over the last number of years. But overwhelmingly these despicable incidents are of vandalism, many by juveniles. Let me make clear that even those incidents are significant and deserve prosecution and investigation and, where appropriate, stiff punishment. But let's look at the views of the members of the U.S. Commission on Civil Rights, our own U.S. Civil Rights Commission, who have examined this legislation carefully. Six of its eight members signed a strong letter to the President and to the Judiciary Committee to oppose hate crimes legislation. Did I mean to say the Civil Rights Commission wrote in favor it? No. But to oppose it. Their letter, dated June 16--just last month--addressed to the Members of the Senate and the President, said this: We believe that the MSHCPA [Matthew Shepard Hate Crimes Prevention Act] will do little good and a great deal of harm. Its most important effect will be to allow Federal authorities to reprosecute a broad category of defendants who have already been acquitted by State juries, as in the Rodney King and Crown Heights cases more than a decade ago. Due to the exception for prosecution by ``dual sovereigns,'' [that is the two sovereign entities] such double prosecutions technically are not violations of the double jeopardy clause of the U.S. Constitution. But they are very much a violation of the spirit that drove the Framers of the Bill of Rights, who never dreamed that Federal criminal jurisdiction would be expanded to the point where an astonishing portion of crimes are now both State and Federal offenses. We regard the broad federalization of crime as a menace to civil liberties. There is no better place to draw the line on that process than with a bill that purports to protect civil rights. They go on to say: While the title of MSHCPA suggests that it will apply only to ``hate crimes,'' the actual criminal prohibitions contained in it do not require that the defendant be inspired by hatred or ill will in order to convict. It is sufficient if he acts ``because of'' someone's actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability. I am quoting from the Civil Rights Commission letter. Rapists are seldom indifferent to the gender of their victims. They are virtually always chosen ``because of'' their gender. A robber might well steal only from women or the disabled because, in general, they are less able to defend themselves. Literally they [these victims] are chosen because of their gender or disability. The letter goes on to state their belief that every rape in America would now be declared a crime under this bill because it is an action taken against someone because of their gender. Professor Gail Heriot, a member of the U.S. Commission on Civil Rights, testified at our June 25 hearing. She made clear that all rapes would be covered under the bill and that, indeed, this was intentional. She said: This wasn't just sloppy draftsmanship. The language was chosen deliberately. Officials understandably wanted something susceptible to broad construction, in part because it makes prosecutions easier. As a staff member of the Senate Judiciary Committee back in 1998, I had conversations with the Department of Justice representatives. They repeatedly refused to disclaim the view that all rape would be covered, and resisted efforts to correct any ambiguity by redrafting the language. They wanted a bill with broad sweep. The last thing they wanted was to limit the scope of the statute's reach by requiring that the defendant be motivated by ill will toward the victim's group. I think that is a serious charge made by a member of the Civil Rights Commission about the purpose of the Department of Justice in supporting this act. I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget. The truth is, during the recent hate crimes hearing, no one who testified in favor of the bill could point to a single incident where, I think, a valid hate crime was not pursued or prosecuted by State and local law enforcement officers. In the latest statistics that are available, of the 2006 hate crimes reported in 2007, only nine were classified as murder or nonnegligent manslaughter. That is certainly nine too many. I think every one should be prosecuted. But no complaints have been raised that any of these were not vigorously or fairly prosecuted. Indeed, two-thirds of the offenses involved property defacement, such as graffiti and name- calling. Missing from the analysis is any evidence that the crimes are not being prosecuted at the State and local level. Indeed, 45 of the 50 States and the District of Columbia already have and enforce hate crimes laws. Although the language is broad and some could criticize it, these States have passed these bills, and they are able to enforce them. Statistics show that these hate crimes, even with better reporting, have decreased slightly over the years. Forty-four States have stiffer penalties for violence related to race, religion, or ethnicity, and 31 States have tougher penalties on violence related to sexual orientation. The question arises, do we have a basis for this massive and historic change in Federal enforcement of what have been State crimes? Perhaps Mr. Andrew Sullivan--an openly gay man who has pioneered the effort to have gays in the military and is a well known and an able writer, provides the answer. Mr. Sullivan had this to say about the legislation. The real reason for hate crime laws is not the defense of human beings from crimes. There are already laws against that--and Matthew Shepard's murderers were successfully prosecuted to the fullest extent of the law in a State that had no hate crime law at the time. The real reason for the invention of hate crimes was a hard left critique of conventional liberal justice and the emergence of special interest groups which need boutique legislation to raise funds for their large staffs and luxurious buildings. Just imagine how many direct mail pieces have gone out explaining that without more money, more gay human beings will be crucified on fences. It is very, very powerful as a money-making tool, which may explain why the largely symbolic Federal bill still has not passed (if it passes, however, I'll keep a close eye on whether it is ever used.) This is a gay man expressing his opinion. No doubt he takes these issues very seriously, and symbolism is important in our political world, but we need to be careful that statutes that become a permanent part of our criminal code are supported by evidence and principle. I do not think our focus here is to deal with symbolic legislation that is broad and can expand Federal criminal jurisdiction beyond its historic role and where the facts do not support the need. In other words, more narrowly tailored legislation consistent with a constitutional right could very well be something this Congress would want to pass. To pass legislation so extremely broad again could give Federal jurisdiction for the first time in history to every rape that occurs in America. It ought to be looked at with great care and ought not to be stuck onto a defense bill and moved forward, in my opinion. The Constitution endows Congress with limited and enumerated powers. There is no general police power in the Federal Government. So at this point, I wish to raise issues with the constitutionality of the hate crimes provision. Congress's power is limited to what it can regulate under the Commerce Clause. The proposed legislation is based upon the idea that a discrete crime in a local community may have an impact on interstate commerce. This is the same theory that was rejected in both U.S. vs. Lopez and U.S. vs. Morrison, where the Supreme Court essentially ruled that intrastate violent conduct does not impact commerce normally. Nat Hentoff, a well-respected noted civil rights and civil libertarian attorney and writer recently wrote about some constitutional concerns he has with the legislation. This is what he said: In the definitive constitutional analysis of James B. Jacobs and researcher Kimberly Potter, it is documented in ``Hate Crimes: Criminal Law and Identity Politics'' that in ``Grimm v. Churchill the arresting officer was permitted to testify that the defendant had a history of making racial remarks. Similarly, in People v. Lampkin, the prosecution presented as evidence racist statements the defendant had uttered six years before the crime for which he was on trial,'' as specifically relating to the offense. As for the 14th Amendment's essential requirement that no person be denied ``the equal protection of the laws,'' there is carved above the entrance to the Supreme Court the words ``Equal Justice Under Law.'' This legislation, certain to be passed by the Senate, now it seems will come to the Supreme Court. And I am quoting Mr. Nat Hentoff, the well-known and respected civil libertarian civil rights attorney. He says this: When it comes before the Supreme Court, I hope the Justices will look up at the carving as they go into the building. They should also remember that the Fifth Amendment makes clear: ``nor shall any person be subject for the same offence to be twice put in jeopardy.'' But the House hate crime bill allows defendants found innocent of that offense in a state court to be tried again in federal court because of insufficiently diligent prosecutors; or, as Attorney General Holder says, when state prosecutors claim lack of evidence. It must be tried again in federal court. Imagine Holder as the state prosecutor in the long early stages of a Duke University lacrosse rape case. What also appalls me, as the new federal bill races toward a presidential signature, is that for many years, and now, the American Civil Liberties Union approves ``hate crimes'' prosecutions. I have long depended on the ACLU's staff of constitutional warriors to act persistently against government abuses of our founding documents. And these attorneys and analysts have been especially valuable in opposing the results of executive branch lunges against the separation of powers in the Bush-Cheney years, and still under Obama. Then he says this: Is there no non-politically correct ACLU lawyer or other staff worker or anyone in the ACLU affiliates around the country or any dues-paying member outraged enough to demand of the ACLU's ruling circle to at last disavow this corruption of the Constitution? That is Mr. Hentoff's view of it. So this hate crimes amendment is a substantial overreach by Congress, I do believe. It is not carefully crafted or narrowly tailored. Unlike the historic civil rights statute, it seeks to federalize the violent, noneconomic conduct that is local in nature and has little or no Federal nexus. The Supreme Court has held that violent conduct that does not target economic activity is among the types of crimes that have the least connection to Congress's commerce power. However, this is precisely the sort of violent, noneconomic conduct that this amendment would federalize. If this approach were permissible, it would put Congress on a path to rely on the Commerce Clause and legislate any criminal law it wants. When it comes to criminal law, Congress would no longer be a body of limited and enumerated powers but would have plenary power to criminalize any and all conduct that is already criminalized by the States, a clear violation of our historical policy of not taking over State and local law enforcement. There are still a lot of complaints over the drug laws aggressively prosecuted when I was a Federal prosecutor, and many think that was an overreach. When drugs come in, the vast majority from outside the country, they move as interstate commerce, and the courts have held that up. But there is still intellectual criticism and concern about it. But in this case, you do not have the kind of dramatic nexus, and you also lack the evidence to suggest those cases are not being effectively prosecuted. So the sponsors have also tried to ease constitutional concerns by citing the 13th, 14th and 15th amendments. The 13th amendment provides Congress with the limited authority to abolish ``all badges and incidents of slavery in the United States.'' I hope my colleagues are not seriously attempting to argue that assaulting someone because of their religious views or gender is tantamount to slavery. The 14th and 15th amendments apply only to State actions, and since we have already established that States are vigorously prosecuting these actions and not ignoring them, I do not think this is a valid approach. Finally, I would note that the legislation raises questions concerning the constitutional imperative that there be ``equal justice under law.'' Is there a legitimate, justifiable reason to punish one rape differently than another rape simply because someone decides the first rape was committed out of hate or actually because of the gender of the victim? I think the victims would say the same thing, the criminal should be punished to the fullest extent of the law. This legislation would add a different element to certain crimes, and I know, as a former prosecutor, make it more difficult and more expensive to obtain a conviction, especially when you have to prove an individual's thought process as an underlying element to the offense. This bill at bottom tries to distinguish between assaults by declaring if someone assaults and kills his girlfriend because she broke up with him it is not a Federal offense, but if he kills her because she claims she wanted to explore her sexual orientation and he became upset and killed her, that would be a Federal offense. Senator Hatch offered a complete substitute on Thursday night. It was rejected. His proposal would require that a study be conducted so actual evidence can be obtained to see if there is a real serious problem with States not prosecuting these matters. For some reason, even though Senator Hatch has been trying to get it passed for quite a number of years, the study has never been conducted, and all proposals for such a study have been rejected. I fear it is because perhaps Mr. Sullivan got it right. It is not so much about the failure of States to prosecute these crimes but about an underlying idea to pass a symbolic piece of legislation. There is no good reason to pass such a broad piece of legislation. To pass it would be unwise. No one believes that individuals should be assaulted because of their beliefs, their gender or their sexual orientation. That type of behavior is unacceptable and should be prosecuted. It has been prosecuted. I am sure State and local law enforcement officers will continue to do so. I believe that if my colleagues would study the legislation and think about what they are doing, they would see that this is more unwise and the objections they have heard have far more weight than they had thought initially. It seems like a good idea. Who would want to be against a crime that says it wants to punish hate? But there are serious matters and constitutional issues, as I noted from the Civil Rights Commission, from the civil rights attorneys such as Mr. Nat Hentoff. I think, in truth, the Attorney General should have been more balanced in his testimony before the Judiciary Committee. He came pushing this legislation without listening or expressing any concern. But I do think he should have pointed out that it represents one of the largest expansions of Federal law enforcement in history. He should be the first to point out and express that concern. He should not allow politics to drive law in America. I know most of my colleagues think this is the right thing to do. I wish I had been able to participate more in the debate before it was a done deal the other night. I was involved at the same time, of course, with the confirmation process. Hopefully, we can watch this legislation come with some ideas that curtail its potential for abuse and make it better. But, in reality, I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I ask unanimous consent that my legislative fellow, Navy LCDR Tim Long, be granted the privilege of the floor during consideration of S. 1390, the National Defense Authorization Act of 2010.

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, we just approved a 3-year extension of the Religious Workers Act, which has a good goal and a worthy motive. We need to do better with this program. We did have, in this legislation that passed, a study of the program to see how well it is working. But in July of 2006, the Homeland Security Department conducted an evaluation of the program, and it was not a good report. Essentially, the situation is that a religious group would be entitled to ask for and petition for someone to be brought into the country to work in their religious entity. It is called a ``religious worker program.'' It is usually not a minister, but some sort of lay worker. The assessment was done by the Homeland Security group. It was an assessment of 200-plus cases, without any indication that any of those were fraudulent. They just took them at random and checked the 220 cases. Field inquiries were conducted where necessary, and fraud was determined to be the willful misrepresentation or falsification of a material fact--that means something that would probably have meant they were not entitled to the benefit of the program. Under this evaluation, it was found that out of 220 cases evaluated, 72 were fraudulent; that is, 33 percent--or 1 out of 3--of the religious workers entering the country under this program entered fraudulently. That is not a good record. In fact, it appears to be the highest fraudulent record of any immigrant program we have in the country. They cited some of the examples of abuses. For example, a beneficiary was invited into the country by a petitioner to work at a religious institution, and when they checked, the institution didn't exist. And the petitioner had filed a number of other petitions bringing in other people. Another one dealt with a paper church--a church that didn't exist-- and the addresses and all that were given were not legitimate. Another one: Age 33, the beneficiary. The person who filed the petition to bring this foreign worker in couldn't be located, and there could be no connection between the person who petitioned and the group for which they claimed to be petitioning. So it appears that this individual petitioned for another individual to come and work at a school or a church, and the school or church they said they were going to work at didn't even know this was happening. Of course, when the person came in, they were therefore just able to enter the country illegally and never worked at a church. There are several more like that. Here is another one. The signer of the petition was no longer at the school, and the school board members interviewed said they didn't know who was invited to come through the petition and were not even aware a petition had been filed. In another case, the petitioner had filed at least 82 petitions, with many fraudulent indicators, including the misrepresentation of the qualifications and duties of the beneficiary. Another one dealt with a situation where the beneficiary couldn't be located, and the petitioner whose name was on the petition when found and interviewed said he didn't know anything about the filing. He didn't file it. So somebody just filed it and used his name and brought in somebody, supposedly to work at a religious institution, and it was all bogus. So this is a program which has some real difficulties. I hope the study will help us figure out how to make it a more honest system that can meet the goals of our program without allowing for so much fraud and abuse. Mr. President, I yield floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I have no objection to the second-degree amendment offered by the chairman of the Judiciary Committee.

Mr. SESSIONS. Reserving the right to object, I am not familiar with the amendment.

Mr. SESSIONS. I move to lay that motion on the table. The motion to lay on the table was agreed to.