Clean Water Infrastructure Financing Act of 2003

Mr. President, I rise to introduce legislation to authorize the distribution of judgment funds to eligible tribal members of the Gila River Indian Community in Arizona. Identical legislation unanimously passed the Senate last year, but was not able to be considered by the House of Representatives prior to the adjournment of the 107th Congress.

The Gila River Indian Community Judgment Fund Distribution Act resolves two half-century old claims by the Gila River tribe against the United States for failure to meet Federal obligations to protect the community's use of water from the Gila River and Salt River in Arizona. The original complaint was filed before the Indian Claims Commission on August 8, 1951. In 1982, the United States Court of Claims confirmed liability of the United States to the community, and recently the settlement of these two claims was determined to be 7 million.

So much time has passed that the Indian Claims Commission formerly in charge of fund distributions no longer exists. However, a debt does not disappear. The judgment award has since been transferred from the Indian Claims Commission to a trust account on behalf of the community, managed by the Office of Trust Management at the Department of the Interior.

This judgment award was certified by the Treasury Department on October 6, 1999 for the final portion of the litigation to the two remaining dockets of the Gila River Indian Community. Since that time, the community has been working with the BIA in an attempt to finalize a use and distribution plan to submit to Congress for approval. As outlined in its plan, the community has decided to distribute the judgment award equally to eligible tribal members.

The purpose of this legislation is to comply with Federal regulations which requires congressional approval for distribution of judgment funds to tribal members. The terms of the legislation reflect an agreement by all parties for a distribution plan for final approval by the Congress. As part of this legislation, the BIA is also seeking to resolve remaining expert assistance loans by the Gila River Indian Community, the Oglala Sioux Tribe, and the Seminole Tribe of Florida, as originally authorized by the Indian Claims Commission.

Members of the Gila River Indian Community have waited half a century for final resolution of all their legal claims regarding this matter. After considerable delay, it is only fair to resolve this matter and provide compensation as soon as possible. I hope that my colleagues will act quickly to move this legislation through the process.

Mr. President, I am pleased to introduce legislation to continue Federal support for the U.S. Institute for Environmental Conflict Resolution. This legislation is identical to legislation which passed the Senate unanimously in September of last year.

The Congress enacted legislation to establish the U.S. Institute for Environmental Conflict Resolution in 1998, with the purpose of offering an alternative to litigation for parties in dispute over environmental conflicts. As we know, many environmental conflicts often result in lengthy and costly court proceedings and may take years to resolve. In cases involving Federal Government agencies, the costs for court proceeding are usually paid for by taxpayers. While litigation is still a recourse to resolve disputes, the Congress recognized the need for alternatives, such as mediation and facilitated collaboration, to address the rising number of environmental conflicts that have clogged Federal courts, executive agencies, and the Congress.

The Institute was placed at the Morris K. Udall Foundation in recognition of former Representative Morris K. Udall from Arizona and his exceptional environmental record, as well as his unusual ability to build a consensus amoung fractious and even hostile interests. The Institute was established as an experiment with the idea that hidden within fractured environmental debates lay the seeds for many agreements, an approach applied by Mo Udall with unsurpassed ability.

The success of the Institute is far greater than we could have imagined. The Institute began operations in 1999 and has already provided assistance to parties in more than 100 environmental conflicts across 30 states.

Agencies from the Environmental Protection Agency, the Departments of Interior and Agriculture, the U.S. Navy, the Army Corps of Engineers, the Federal Highway Administration, the Federal Energy Regulatory Commission, and others have all called upon the Institute for assistance. Even the Federal courts are referring cases to the Institute for mediation, including such high profile cases as the management of endangered salmon throughout the Columbia River Basin in the Northwest.

The Institution also assisted in facilitating interagency temawork for the Everglades Task Force which oversees the South Everglades Restoration Project. The U.S. Forest Service requested assistance to bring ranchers and environmental advocates in the southwest to work on grazing and environmental compliance issues. Even members of Congress have sought the Institute's assistance to review implementation of the Nation's fundamental environmental law, the National Environmental Policy Act, to assess how it can be improved using collaborative processes.

The Institute accomplishes its work by maintaining a national roster of 180 environmental mediators and facilitators located in 39 states. We believe that mediators should be involved in the geographic area of the dispute whenever possible and that system is working.

The demand on the Institute's assistance had been much greater than anticipated. At the time the Institute was created, we did not anticipate the magnitude of the role it would serve to the Federal Government. The Institute has served as a mediator between agencies and as an advisor to agency dispute resolution efforts involving overlapping or competing jurisdictions and mandates, developing long- term solutions, training personnel in consensus-building efforts, and designing international systems for preventing or resolving disputes.

Unfortunately, experience has also taught us that most Federal agencies are limited from participating because of inadequate funds to pay for mediation services. This legislation will authorize a participation fund to be used to support meaningful participation of parties to Federal environmental disputes. The participation fund will provide matching funds to stakeholders who cannot otherwise afford mediation fees or costs of providing technical assistance.

In addition to creating this new participation fund, this legislation simply extends the authorization for the Institute for an additional five years with a modest increase in its operation budget. The proposed increase is in response to the overwhelming demand on the Institute's services, an investment that will ultimately benefit taxpayers by preventing costly litigation.

I hope that we can consider this legislation expeditiously to ensure continuing support for the valuable services of the U.S. Institute for Environmental Conflict Resolution to our Nation.

Mr. President, I am reintroducing legislation today to authorize the Secretary of the Interior to conduct a special resource study of sites associated with the life of Cesar Estrada Chavez. Chavez is one of the most revered public servants in our history for his leadership in helping organize migrant farm workers, and for providing inspiration to those most oppressed in our society. He is an exemplary American hero. It is important that we honor his struggle and do what we can to preserve certain sites located in Arizona, California and other States that are significant to his life.

Cesar Chavez, a fellow Arizonan born in Yuma, was the son of migrant farm workers. He no doubt loved qualities of life associated with his family's Hispanic heritage, but he will be remembered for the sincerity of his American patriotism. He fought to help Americans transcend distinctions of experience, and share equally in the rights and responsibilities of freedom. He made America a bigger and better nation.

While Chavez and his family migrated across the southwest looking for farm work, he evolved into a defender to worker's rights. He founded the National Farm Workers Association in 1962, which latter became the United Farm Workers of America. Essentially, he gave a voice to those that had no voice. In his words: ``We cannot seek achievement for ourselves and forget about progress and prosperity for our community. . .our ambitions must be broad enough to include the aspirations and needs of others, for their sakes and for our own.''

I introduced this legislation last October and received an overwhelming positive response, not only from my constituents in Arizona, but from Americans all across the nation. Similar legislation was introduced by Congresswoman Hilda Solis, D-CA, in September 2001. The bill specifically authorizes the Secretary of the Interior to determine whether any of the sites meet the criteria for being listed on the National Register of Historic Landmarks. The study would be conducted within three years. The goal of this legislation is to establish a foundation for a future bill that will designate land for these sites to become historic landmarks.

Cesar Chavez was a humble man of deep conviction who understood what it meant to serve and sacrifice for others. He was a true American hero who

embodied the values of justice and freedom this nation holds dear. Honoring the places of his life will enable his legacy to inspire and serve as an example for our future leaders.

I ask unanimous consent that the text of the bill and a letter of support from the Cesar E. Chavez Foundation be printed in the Record.

Mr. President, today I am proposing bipartisan legislation to provide the basis for reform of the administration and management of the assets and funds held by the United States in trust for federally recognized Indian tribes and individual Indians. I am pleased that my two colleagues from South Dakota, Senators Daschle and Johnson, are once again joining me in this effort.

Last year, we introduced a similar bill to serve as a legislative vehicle in the event a consensus agreement could be reached during an extensive dialogue between a designated tribal task force and the U.S. Department of Interior on administrative and legislative reforms to federal management of trust funds and assets. Unfortunately, the dialogue resulted in a stalemate. While we received many favorable comments to move forward with this legislation, and conducted a full committee hearing to consider it, a sufficient consensus did not exist to approve the legislation prior to the adjournment of the 107th session.

We are reintroducing this legislation again because we believe it is important to continue to offer a legislative remedy to the management problems plaguing the Interior Department and instill a meaningful role for Indian tribes in the process. Indian trust funds management continues to be mired in controversy and systemic mismanagement. Native American beneficiaries

continue to be denied a full reconciliation of money rightfully belonging to them.

The history of Indian trust funds management is long, exhaustive and fraught with controversy. It is a problem inherited by successive Administrations yet only limited progress has been made. The major structural changes called for in the 1994 American Indian Trust Fund Management Reform Act have not been accomplished. Two Special Trustees have resigned in frustration and high-level government officials have twice been held in civil contempt by the U.S. District Court in Washington, D.C. for breach of fiduciary duties.

No one is more frustrated about the lack of resolution to these long- standing problems than the Native American beneficiaries. However, recent reorganization plans submitted to the Court by the Interior Department earlier this month have only raised more controversy and concern among Indian tribes and beneficiaries as to the extent the Department will fully account for lost and mismanaged trust accounts. Significant questions have also been raised as to the impact of these proposed plans on long-standing Federal policies of self-determination and the function of the Bureau of Indian Affairs.

I cannot speak as to the merits of the Department's recent plans. The fact is, many in the Congress were not notified of the Department's intended actions nor has there been an opportunity to evaluate these plans through the respective legislative committees of jurisdiction. I have sought a commitment from the incoming Chairman of the Senate Committee on Indian Affairs, Senator Ben Nighthorse Campbell, to hold hearings as soon as possible on recent Department proposals that will restructure trust funds management as well as to consider legislative proposals such as the one we're proposing today.

The purpose of this legislation we are introducing is simple. It focuses on two primary changes to the 1994 American Indian Trust Fund Management Reform Act, the underlying law governing Indian trust funds management. First, it creates a single line-of-authority in the Interior Department by establishing a Deputy Secretary for Trust Management and Reform; and second, the bill strengthens provisions for Indian tribes and beneficiaries to directly manage or co-manage with the Interior secretary trust funds and assets, based on successful self-determination policies.

A fundamental objective of this legislation is to raise the profile of Indian trust funds management within the Interior Department and provide a statutory basis for Indian tribes to assume a greater management role in future management of their trust funds and trust assets. The structure of this legislation is similar to the bill introduced last year, but it is modified to reflect comments received from Indian tribes.

The legislation affirms the fiduciary standards to be applied to the management of Indian trust funds and assets. The Office of Special Trustee is abolished and replaced with the Office of Trust Reform under the direction of a new Deputy Secretary. The existing Advisory Committee to the Special Trustee is replaced with a Task Force composed of representatives of the tribes and the Department who will work with the new Deputy Secretary to develop appropriate standards and further necessary changes.

Senator Daschle, Senator Johnson and I introduce this legislation as a demonstration of our continuing commitment to seek a real and meaningful trust reform solution that provides an active role for tribal participation and consultation. We hope this legislation will prompt the necessary dialogue to ensure reform to Indian trust funds and trust assets management in a way that increases accountability of the Interior Department and respects the fact that the tribes must be involved as active participants without the threat of termination of the trust responsibility.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I join Senators Boxer, Chafee, and others to introduce The Toxic Clean Up and Polluter Pays Renewal Act for. For more than 20 years, the polluter pays principle has been a cornerstone of environmental policy. The Superfund toxic waste cleanup program, based on that principle, has made it possible to clean up hundreds of toxic waste dumps across the country, and has led to better management of industrial pollution and waste.

The polluter pays principle is now under attack. Last year, the Bush administration announced that it would not seek reauthorization of the taxes levied on oil and chemical companies that go into the Superfund trust fund, which is used to pay for cleanup of toxic waste sites.

The Superfund program established three ways to pay for the cost of cleanups: 1) the company or individual responsible for creating the site pays for its cleanup; 2) the Environmental Protection Agency performs the cleanups and recoups the costs from the responsible party or parties; and 3) for those ``orphan'' sites where no responsible party can be found, or the party is insolvent or no longer in business, the cleanup is paid for out of the trust fund.

The Superfund trust fund was created primarily with revenue from a corporate environmental income tax and excise taxes on petroleum and certain chemicals. The trust fund received about $1.5 billion per year before the legislative authority to collect the taxes expired at the end of 1995. The trust fund is expected to run out of money in 2004, having dwindled from a high of $3.8 billion in 1996 to $28 million this year.

There are 1,234 sites on the EPA national priority list of toxic waste sites that need to be cleaned up. One in four Americans live within 4 miles of a Superfund site. These sites contain hazardous pollutants like arsenic, cyanide, and agent orange. Last year, EPA Administrator Christine Whitman told Congress that 75 sites on the national priority list would be cleaned up in 2001 and 65 sites would be cleaned up in 2002. The Bush administration then revised its plan, requiring that only 47 site cleanups be completed in 2001 and 42 in 2002. For 2003, the Bush administration has proposed to further decrease cleanups. On October 25, 2002, the EPA Inspector General found that the Bush administration has cut funding at 55 Superfund sites in 25 states for which regional officials had requested cleanup. For Fiscal Year 2002, EPA regional officials requested $510 million to clean up waste sites. In response, EPA headquarters obligated only $280 million, resulting in a shortfall of $229 million, or 45 percent.

The program is insufficiently funded to allow sites that are already scheduled to be cleaned up to move forward. This results in increased risks to human health and the environment and increased cleanup costs in the long term. Reinstating the Superfund fee would restore a source of funding to the program at a time when the backlog of sites requires more resources if the program is to be successful. The Bush administration is the first administration since Superfund was enacted in 1980 to oppose reinstating this tax on polluters--a policy that either halts cleanup efforts or shifts the cost to rank-and-file taxpayers. Either result is unacceptable.

The administration's plan to cut the Superfund program would seriously compromise the health of our communities and amount to an enormous windfall for the oil and chemical industries. Funding is the key to cleaning up these sites and protecting communities from harm. The ``polluter pays'' principle has worked well over the last two decades, and the financial burden should not be shifted from polluters to average taxpayers. The administration should change course and find ways to restore the ``polluter pays'' principle to the program and aggressively fund cleanups at contaminated sites.

Mr. President, today I am joining with Senators John McCain and Tim Johnson in reintroducing legislation that will focus attention on the need to address and correct the longstanding problem of mismanagement of the assets and funds held by the United States in trust for federally-recognized Indian tribes and individual American Indians.

This is a problem that has festered for far too long outside the spotlight of public recognition. And it is a problem that is undermining urgently needed efforts to improve the quality of life in Indian Country.

Indian Country has faced many challenges over the years. Few, however, have been more important, or more vexing, than that of restoring integrity to trust fund management.

For over a hundred years, the Department of Interior has managed a trust fund funded with the proceeds of leasing of oil, gas, land and mineral rights for the benefit of Indian people. Today, the trust fund may owe as much as $10 billion to as many as 500,000 Indians.

To provide some perspective, the 16 tribes of the Great Plains in South Dakota, North Dakota and Nebraska comprise 10 million acres of trust lands representing over one-third of the tribal trust assets. Many enrolled members of the nine South Dakota tribes have individual trust accounts.

How these trust funds have been and will be managed is being litigated in Cobell v. Norton, and the resolution of this lawsuit will have far-reaching implications throughout Indian Country. It is foolhardly not to evaluate potential solutions in the context of this lawsuit.

There is clear consensus in Indian Country that the current administration of the trust fund is a failure. The daunting question has always been how to reform it.

In November 2001, the Secretary of the Interior unveiled her controversial plan to reorganize the Bureau of Indian Affairs, BIA, and segregate the oversight and accounting of trust-related assets in a new Bureau of Indian Trust Asset Management, BITAM. In testimony before the U.S. District Court, the Secretary acknowledged that, ``We undoubtedly do have some missing data, and we are all going to have to find a way to deal with the fact that some information no longer exists.''

The Secretary's controversial reorganization proposal, a hasty effort to avoid being held in contempt of court, was presented with minimal consultation with the tribes or individual Indian account holders, not to mention Congress.

In South Dakota, tribal leaders communicated to Tim Johnson and me their concern that the Secretary's solution appeared to be a fait accompli, conceived without meaningful participation of the stakeholders most directly affected by it. They felt strongly that this proposal should not be implemented without further consultation with the tribes. Meanwhile, the Secretary of the Interior and the Assistant Secretary on Indian Affairs, despite their reorganization plan, were both subsequently found in contempt of court.

In the early months of 2002, in the face of Administration assurances that its reorganization plan was not set in stone, the Interior Department requested that $200 million from the BIA and $100 million from the Office of the Special Trustee, be reprogrammed to ``a single organization that will report to the Secretary through an Assistant Secretary, Indian Trust.'' This contradiction set off red flags in Congress, and a clear and direct message was sent to Secretary Norton by Senators Inouye, Campbell, Byrd, Johnson and others that no action should be taken to implement her proposed reorganization plan administratively. Notwithstanding this clear signal, just this last December, while most members of Congress were out of town and with very little fanfare, the Secretary submitted yet another smaller request to reprogram BIA funds for trust fund reform activities.

Given these developments, Senators McCain, Johnson and I feel that Congress should be more assertive in forcing discussion of what role Congress might play in ensuring that tribes and individual Indian account holders have a voice on shaping trust reform policy. It is our hope that this bill will promote more constructive dialogue among the Congress, the Interior Department and Indian Country on this problem and lead to a true consensus solution.

With that goal in mind, the bill was received by representatives of the Great Plains tribes last Congress at a recent meeting in Rapid City. And earlier today, the Great Plains Tribal Chairman's Association urged me to re-introduce this legislation in the new Congress.

Mike Jandreau, Chairman of the Lower Brule Sioux Tribe and member of the Secretary's Trust Reform Task Force, has been an effective advocate and champion of trust reform, not only for his tribe, but also for all Indian people. He and Flandreau-Santee Sioux Tribal Chairman and Great Plains Tribal Chairman's Association President Tom Ranfranz led a very impressive and productive working sessions with tribal leaders from South Dakota, North Dakota and Nebraska. Mike and Tom have also worked with tribal leaders from Montana and Wyoming to raise awareness of the stakes of this issue and build support for the bill that regrettably died at the end of the 107th Congress due to Administration opposition.

I commend the willingness of these participating Great Plains and Rocky Mountain regional tribal leaders to be part of a public process that will hopefully will not stop until Indian Country feels comfortable with a final product they create. The McCain-Johnson- Daschle bill is intended to contribute to this result.

At this point, I would like to remind my colleagues some initial observations on this proposal that were raised in the last Congress by participating South Dakota treaty tribes and tribes of the Great Plains and Rocky Mountain regions that are still relevant in the 108th Congress. These comments demonstrate how thoughtfully Indian leaders are approaching the trust problem, and I fully expect that their suggestions will be considered and incorporated as the bill moves through the committee process.

The following issues are of great importance to the Great Plains Tribal Chairman's Association:

1. Providing the Deputy Secretary with sufficient authority to ensure that reform of the administration of trust assets is permanent. They do not believe the bill at present gives the Deputy Secretary the full and unified authority needed;

2. Including cultural resources as a trust asset for management purposes;

3. Incorporating the Office of Surface Mining and Bureau of Reclamation and other related agencies within the Department of the Interior and the Federal government under the purview of the Deputy Secretary;

4. Assuring that the legislation not infringe on tribal sovereignty by interfering with tribal involvement in the management of individual trust assets or tribal assets, or both;

5. Maintaining the Bureau of Indian Affairs' role as an advocate for tribe;

6. Maintaining current levels of Bureau of Indian Affairs employment;

7. Applying Indian employment preference to all positions created by the legislation;

8. Providing in law that Bureau of Indian Affairs funds not be used to fund the Deputy Secretary appointed by the legislation;

9. Stressing the importance of appropriating adequate funding to allow reform to succeed;

10. Reflecting in the legislative history that much of the funding needed for real trust reform be allocated at the local agency and regional levels of the Bureau of Indian Affairs; and

11. Placing more tribal representatives, including tribal resource managers, from various Bureau of Indian Affairs regions on the advisory board to the Office of Trust Reform.

The issues of trust reform and reorganization within the Bureau of Indian Affairs are nothing new to us here on Capitol Hill, or in Indian Country. Collectively, we have endured many efforts, some will intentioned and some

clearly not, to fix, reform, adjust, improve, streamline, downsize, and even terminate the Bureau of Indian Affairs and its trust activities.

These efforts have been pursued under both Republican and Democratic administrations. Unfortunately, they have rarely included meaningful involvement from tribal leadership, or recognized the Federal Government's treaty obligation to tribes.

I would be remiss if I did not commend this Administration for taking the time to travel to Indian Country to discuss this problem. Their interest in promoting dialogue with tribal leaders was welcome and appreciated. At the same time, however, talk must be supported by action if the trust management problem is to be successfully resolved.

The recent unveiling last month of the Department of the Interior's attempt to implement a trust reorganization plan without full tribal or congressional consultation in response to the Cobell v. Norton case was appalling and an egregious act by the federal government to Indian stakeholders. One tribal task force member described Interior's latest deceptive actions as ``a sham.'' That sentiment is widespread in Indian Country and exacerbates an underlying frustration and disappointment that is both understandable and disconcerting.

I share this frustration and disappointment. And I am concerned that the progress made jointly last year could be wasted away by a rising tide of disillusionment and mounting sense of betrayal.

The message I have heard from tribal leaders is clear. What is needed to achieve true reform are clear trust standards, one clear line of authority for trust management and the resources necessary to achieve meaningful reform, respect for self-determination, and meaningful consultation.

Meaningful consultation and acceptance of tribal status is the critical starting point if we hope to find a workable solution to the very real problem of trust management. The bill Senators McCain, Johnson and I are introducing today reflects this conviction.

There is no more important challenge facing the tribes and their representatives in Congress than that of restoring accountability and efficiency to trust management. And nowhere do the principles of self- determination and tribal sovereignty come more into play than in the management and distribution of trust funds and assets.

I am disappointed that this problem was not solved to the satisfaction of tribal leaders in the last Congress. Yet, that fight is not over, and my commitment to my South Dakota tribal constituents and Indian Country on this important issue has not diminished.

Last week, the Senate Democratic leadership introduced its priority bills for the 108th Congress. I am proud that trust reform is included as part of our civil rights legislation.

An effective long-term solution to the trust problem must be based on government-to-government dialogue. The McCain/Johnson/Daschle bill will not only provide the catalyst for meaningful tribal involvement in the search for solutions, it can also form the basis for true trust reform. I look forward to participating with tribal leaders, Administration officials and my congressional colleagues in pursuit of this essential objective.

Mr. President, today I introduce the Federal Death Penalty Abolition Act of 2003. This bill would abolish the death penalty at the Federal level. It would put an immediate

halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law.

Since 1976, when the death penalty was reinstated by the Supreme Court, there have been 830 executions across the country, including two at the Federal level. At the same time, 103 people on death row were later found innocent and released from death row. Exonerated inmates are not only removed from death row, but they are usually released from prison altogether. Apparently, these people never should have been convicted in the first place. While death penalty proponents claim that the death penalty is fair, efficient, and a deterrent, the fact remains that our criminal justice system has failed and has resulted in at least 103 very grave mistakes.

Eight hundred and thirty executions, and 103 exonerations. Those are not good odds. It is an embarrassing statistic, one that should have us all questioning the use of capital punishment in this country.

Since January 25, 2001, when I last introduced this bill, the Federal Government resumed executions for the first time in almost 40 years, and 138 people have been executed nationwide. In this new year, we have begun our use of capital punishment at an alarming pace. We are only in the second week of February, and there have already been 10 executions this year. And yet this one-to-eight error rate looms. Is it possible that those 10 people are representative of the one-to-eight error rate that has plagued the death penalty since it was reinstated in 1976? Is it possible that in the last six weeks, as we have debated a war in Iraq, funding levels for Federal programs, and judicial nominations, our nation has killed an innocent person?

It is a difficult question to ask, but an even more difficult one to ignore.

While executions continue and the death row population grows, the national debate on the death penalty continues and has become even more vigorous. The number of voices joining in to express doubt about the use of capital punishment in America is growing. As evidence of the flaws in our system mounts, it has created an awareness that has not escaped the attention of the American people. Layer after layer of confidence in the death penalty system has been gradually peeling away, and the voices of those questioning its fairness are growing louder and louder. Now they can be heard from college campuses and court rooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the Supreme Court. We must not ignore them.

That our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is that the States' and Federal Government's use of the death penalty is often not consistent with principles of due process, fairness, and justice. These principles are the foundation of our criminal justice system. It is more clear than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims.

After the death penalty was reinstated in 1976, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill allowed its use to apply to a total of some 60 Federal offenses. Since 1994, Federal prosecutions seeking the death penalty have now accelerated.

A survey on the Federal death penalty system from 1988 to early 2000 was released by the U.S. Department of Justice in September 2000. That report showed troubling racial and geographic disparities in the federal government's administration of the death penalty. In other words, who lives and who dies in the Federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Janet Reno was so disturbed by the results of that report that she ordered a further, in- depth study of the results. Attorney General John Ashcroft pledged to continue that study, but we still await the results of that further study. The Federal Government should do all that it can to ensure that no person is ever subject to harsher penalties, most importantly that of capital punishment, because of the color of the defendant's skin.

I am certain that not one of my colleagues here in the Senate, not a single one, would defend racial discrimination in this ultimate punishment. The most fundamental guarantee of our Constitution is equal justice under law, and equal protection of the laws.

While the Federal death penalty system is clearly plagued by flaws, there are 38 States across our Nation that also authorize the use of capital punishment. And like the Federal system, those systems are not free from error.

Over three years ago, Governor George Ryan took the historic step of placing a moratorium on executions in Illinois and creating an independent, blue ribbon commission to review the State's death penalty system. The Commission conducted an extensive study of the death penalty in Illinois and released a report with 85 recommendations for reform of the death penalty system. The Commission concluded that the death penalty system is not fair, and that the risk of executing the innocent is alarming real. Governor Ryan recently pardoned four death row inmates and commuted the sentences of all remaining Illinois death row inmates, after the State legislature failed to enact even one of the Commission's recommendations.

Illinois is not alone. Two years ago, then Governor Parris Glendening learned of suspected racial disparities in the administration of the death penalty in Maryland. Governor Glendening did not look the other way. He commissioned the University of Maryland to conduct the most exhaustive study of Maryland's application of the death penalty in history. Then last year, faced with the rapid approach of a scheduled execution, Governor Glendening acknowledged that it was unacceptable to allow executions to take place while the study he had ordered was not yet complete. So, in May 2002, he placed a moratorium on executions.

That study was released in January and the findings should startle us all. The study found that blacks accused of killing whites are simply more likely to receive a death sentence than blacks who kill blacks, or than white killers. According to the report, black offenders who kill whites are four times as likely to be sentenced to death as blacks who kill blacks, and twice as likely to get a death sentence as whites who kill whites.

Maryland and Illinois are not exceptions to a rule, nor anomalies in an otherwise perfect system. In fact, since reinstatement of the modern death penalty, 81 percent of capital cases across the country have involved white victims, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans.

There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country. While the research done in Maryland and Illinois has yielded shocking results, there are 36 other States that authorize the use of the death penalty, most of them far more frequently. Twenty-one of the 38 States that authorize capital punishment have executed more inmates than Maryland, and 13 of those States have carried out more executions than Illinois. So while we are closer to uncovering the unthinkable truth about the flaws in the Maryland and Illinois death penalty systems, there are 36 other states with systems that are most likely plagued with the same flaws. And yet, the killing continues.

At the beginning of 2003, at the beginning of a new century and millennium with hopes for great progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard.

Over the last two years, some prominent voices in our country have done

just that. And they are not just voices of liberals, or of the faith community. They are the voices of Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former FBI Director William Sessions, Republican Governor George Ryan, and Democratic Governor Parris Glending. The voices of those questioning our application of the death penalty are growing in number, and they are growing louder.

And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 111 countries that have abolished the death penalty in law or in practice. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys the closest of relationships.

On February 5, 2003, the International Court of Justice, ICJ, ruled unanimously that the United States must temporarily stay the execution of three Mexican citizens on death row in Texas and Oklahoma. There are currently 112 foreign nationals on death row in this country. Under Article 36 of the 1963 Vienna Convention on Consular Relations, local authorities are required to notify all detained foreigners ``without delay'' of their right to have their consulate informed of their detention. In most cases, this international law is not being followed. In fact, only seven cases of 152 reported death sentences have been identified as meeting complete compliance with Article 36 requirements. The purpose of this law is to ensure that foreign nationals are allowed time to secure adequate counsel during the critical stages of their cases. The February ruling of the ICJ was based on the need for an investigation into whether the foreign nationals on death row were ever given their right to legal assistance from their home governments.

What is even more troubling in the international context is that the United States is now one of only seven countries that imposes the death penalty for crimes committed by juveniles. So, while a May 2002 Gallup poll found that 69 percent of Americans oppose the death penalty for those under the age of 18, we are one of only seven nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The other are Iran, the Democratic Republican of the Congo, Pakistan, Nigeria, Saudi Arabia and Yemen. In the last decade, the United States has executed more juvenile offenders than all other nations combined, and in the last three years, only four nations have executed juvenile offenders: Iran, the Congo, Pakistan, and the United States.

Iran, the Congo, and Pakistan are countries that are often criticized for human rights abuses. We should remove any grounds for charges that human rights violations are taking place on our own soil by halting the execution of people who were not even adults when they committed the crimes for which they were sentenced to die. No one can reasonably argue that executing child offenders is a normal or acceptable practice in the world community. And I do not think that we should be proud that the United States is the world leader in the execution of child offenders.

As we begin a new year and another Congress, our society is still far from fully just. The continued use of the death penalty shames us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' applies here. Our nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek justice in this new century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And our Nation's striving to remain the leader and defender of freedom, liberty and equality demands that we do so.

Abolishing the death penalty will not be an easy task. It will take patience, persistence, and courage. As we work to move forward in a rapidly changing world, let us leave this archaic practice behind.

I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great Nation. I also call on each State that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system.

I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I have previously given a statement and a speech on the floor of the Senate with regard to Mr. Estrada's nomination. I voted against him in the Judiciary Committee. The concerns I had included his not answering questions that were put to him, serious questions, in my judgment--issues about his record and his temperament.

Today, I wish to talk about homeland security. First, I will talk about the serious shortcomings in the administration's response, and then I will talk about six bills I have introduced in this Congress to improve our homeland security, including a bill today to overhaul the way we do intelligence work here at home.

The first responsibility of any government is to protect its people. Yet we live in a time when Americans feel extraordinary insecurity. We are at an elevated level of threat warning. The CIA Director says al- Qaida is ``resuming the offensive.'' The FBI Director says there are ``al-Qaida cells in the United States that we have not yet been able to identify.''

In other words, al-Qaida cells are operating here, but we do not know who they are, where they are, or what they are doing.

Americans are buying plastic sheeting and duct tape in record amounts. While they are doing everything they can to protect themselves, they have a right to know that those of us in Government are doing everything we can to protect them, their homes, their families, and their children. This is a dangerous time.

But a dangerous time calls for an honest response: This President is failing the test on homeland security. Homeland security has yielded to chemical companies that are holding back commonsense steps to secure chemical plants against horrific explosions. Homeland security is yielding to bureaucratic inertia that is defending old and outworn ways of fighting terror.

Today there are huge holes in our borders--one guard for every 5 miles on the Canadian border. There are huge holes at our ports--we are still inspecting only a fraction of all shipments into the United States, shipments that could carry nuclear or biological weapons. There are huge holes in our hometowns--where cops and firefighters do not have the equipment or the training that they need.

For all these holes, this President has vetoed billions for homeland security, he is withholding funds that first responders need today, and he has proposed funding homeland security this year at a level that even Republican experts like Warren Rudman say is totally inadequate.

We cannot cover the holes in our borders with plastic sheeting. Our cops and firefighters need reinforcements and new gear, not canned goods.

In 2000, the President's team talked about the dangers of a hollow military. At a time when the greatest dangers we face are here at home, this administration risks creating a hollow homeland defense.

This is happening for a very simple reason. The bare minimum of homeland security improvements we need--$10 billion more this year-- costs less than half of President Bush's tax cut just for 226,000 millionaires.

I believe it is time to say to this President: Mr. President, please put our security first. Please set aside $20 billion in tax breaks for 226,000 millionaires, and put homeland security for 290 million Americans first.

Let me talk a little bit about my work on homeland security since Congress came back into session. Back in December, I laid out a comprehensive plan for strengthening our domestic security, from stopping ID fraud to sharing more information with local police to improving our cybersecurity. And in the 6 weeks Congress has been in session so far, I have introduced six bills to strengthen our homeland security. Each of these bills would make a concrete, tangible difference in people's lives.

Two bills are focused on empowering people to play a greater role in homeland security.

First, until this week, most Americans have no better idea how to respond to a terrorist attack than on September 11. Now the administration has begun giving out useful information, but we still don't have enough. We are not being told, for example, how to respond to chemical or biological attacks. In addition, there is still a serious question whether people will get the information they need when they need it, particularly when they are sleeping. Obviously TV and radio won't help if you are asleep. So I have a bill, which I wrote with Senator Fritz Hollings, that will create an emergency warning system to reach everyone--for example, using special phone rings that could wake people up in the middle of the night.

Second, we want to encourage more people to contribute. People want to serve, but they feel like they haven't been asked. We should ask. One way is through the Neighborhood Watch program. Neighborhood Watches help prevent both terrorism and ordinary crime. We are going to increase support for these, encourage folks to get involved, with the goal--the realistic goal--of tripling the number of neighborhood watches.

Next, I have introduced two bills focused on hardening vulnerable targets--in other words, taking those targets we know terrorists want to attack, and transforming them so they will be less vulnerable.

One bill is to do research to enhance building security, to improve the quality of private security guards and make buildings more resistant to attack. We know that at the Oklahoma City bombing, 85 percent of the lives might have been saved if the building had been built with better materials, in a better way. We are still learning about the World Trade Center collapse. We know we need better construction and better security around buildings across America.

A fourth bill would require the Government to improve its cybersecurity. A few weeks ago, we had an attack that crippled a lot of Government computer systems. There are simple tests we could be doing to block computer attacks that we are not doing: to ``patch'' holes in the systems. We need to make that happen.

Fifth, I have introduced a bill to help local law enforcement by requiring the Government to give security clearances to more police officers, firefighters, and health officials. They need information to keep us safe, but too often they are not getting it. This bill would help make sure they do.

Finally, there is the bill I have introduced today, and that I want to talk about in some detail. This bill will make fundamental changes in the way

we protect Americans against international terrorists operating within our borders. This bill takes away from the FBI the responsibility to collect intelligence on foreign terrorist groups operating in America. And this bill gives that responsibility to a new Homeland Intelligence Agency. I believe this agency will do a better job protecting our safety and our basic freedoms. Let me briefly explain why.

There is no question that the FBI is full of dedicated professionals who are patriots, who serve their country with courage and conviction, who do all of us proud.

But there is also no question that the FBI made many serious mistakes before September 11. There was the Phoenix memorandum, a memorandum about suspicious behavior at flight schools that the FBI did not follow up on. There was the Moussaoui case, where the FBI had in its possession a computer full of critical information, yet did not access the information there. There were even two hijackers who the FBI knew were threats but did not track and stop.

It is true all this was before September 11. The other day, Director Mueller told me that my criticisms understated the extent of the FBI's reforms. Well, I respect Director Mueller, and I look forward to continuing to talk with him about FBI reform. I have only the best wishes for his reform efforts.

At the same time, it would be hard to understate the seriousness of the problems we have seen.

This is not just my view; it is the view of every objective panel to look at this issue. These panels have raised serious questions about the FBI's response to terrorism, and in some instances, about the FBI's capacity to respond to terrorism.

The Markle Task Force commented: ``. . . there is a resistance ingrained in the FBI ranks to sharing counter-terrorism information . . . the FBI has not prioritized intelligence analysis in the areas of counter-terrorism.''

The Joint Congressional Inquiry noted: The FBI has a ``history of repeated shortcomings within its current responsibility for domestic intelligence. . . .''

The Brookings Institution went further, stating that ``there are strong reasons to question whether the FBI is the right agency to conduct domestic intelligence collection and analysis.''

And finally, the Gilmore Commission recently said: ``the Bureau's long standing tradition and organizational culture persuade us that, even with the best of intentions, the FBI cannot soon be made over into an organization dedicated to detecting and preventing attacks rather than one dedicated to punishing them.''

I believe the Gilmore Commission reached the right conclusion.

Part of the problem is bureaucratic resistance at the FBI. The FBI is full of superb public servants. But the reality is that the FBI is also a bureaucracy, and it is the nature of a bureaucracy to resist change. That is just the reality. It was only in November that the New York Times reported the FBI's No. 2 official was ``amazed and astounded'' by the FBI's sluggish response to the terrorist threat.

Beyond the problem of bureaucratic resistance, there is a more fundamental problem with the FBI. That problem is the conflict at the base of the FBI's mission, which is a conflict between law enforcement and intelligence. These are fundamentally different functions.

Law enforcement is about building criminal cases and putting people in jail. Intelligence isn't about building a case; it is about gathering information and putting it together into a bigger picture.

The FBI has never been built for intelligence. It has always been an agency that hires people who want to be law enforcement officers, trains them to be law enforcement officers, and promotes them for succeeding as law enforcement officers.

Cases have been run by field offices with little of the central coordination that is essential to combat national networks of terrorists. The FBI has regularly kept intelligence within the agency's walls rather than sharing it with other key players.

Now, the FBI says all this is changing. But with all due respect, the FBI's reforms are too little and too late. They are not enough, and because of the nature of the FBI, they cannot ever be enough.

That is why I propose today to create a Homeland Intelligence Agency, one that would be responsible for collecting foreign intelligence inside the United States, analyzing that intelligence, and getting it to the policymakers or first responders who need it. This entity isn't in the new Department of Homeland Security. It isn't in the newly announced ``Terrorist Threat Integration Center.'' That's just about analysis. This is about collection, gathering the intelligence information to begin with.

I believe this agency will do a better job fighting terrorism because its sole focus will be intelligence gathering. The inherent conflict between law enforcement and intelligence will not get in the way of its work.

I also believe it will do a better job protecting our civil liberties. While we will not give the new agency any new authorities, we will place new checks on its ability to collect information about innocent people. Time and again, we have seen this administration overreach when it comes to civil liberties. That should stop, and this proposal will help stop it.

We will require judicial approval before the most secretive and invasive investigations of religious and political groups. We will require greater public reporting and more internal auditing. We will establish a new and independent office of civil liberties within the new agency that is dedicated to protecting the constitutional rights of innocent Americans. So at the end of the day, we will help to fulfill America's promise--that we are safe and free at the same time.

I believe this bill is an important step to making America safer, and I look forward to working on it with colleagues on both sides of the aisle in getting this legislation passed.

Madam President, I rise to introduce legislation that I believe will go a long way in helping to improve the safety and durability of the Nation's highway bridges. Today, with great pleasure I am introducing the Southwest Bridge Research Center Establishment Act of 2003.

The purpose of this bill is to authorize the Secretary of Transportation to establish a new University Transportation Center focused on the safety of highway bridges. The new Southwest Bridge Research Center is a cooperative effort between New Mexico State University and the Oklahoma Transportation Center, comprising the University of Oklahoma and Oklahoma State University. The new center will lead the Nation in the research and development of technologies for bridge testing and monitoring, procedures for ensuring bridge safety and security, and training in methods of bridge inspection.

Our highway network is a central component of our economy and fundamental to our freedom and quality of life. America's mobility is the engine of our free market system. Transportation via cars, buses, and trucks plays a central role in our basic quality of life. Much of the food we eat, the clothes we wear, the materials for our homes and offices, comes to us over the 4 million miles of our road network.

One critical element of our highway network is the highway bridges that span streams, rivers, and canyons of our cities and rural areas. Bridges also help traffic flow smoothly by carrying one road over another.

Most highway bridges are easy to overlook. Notable exceptions are New England's covered bridges, the well-known Golden Gate Bridge, and the spectacular Rio Grande Gorge Bridge near Taos, New Mexico. The fact is, according to the Federal Highway Administration, we have about 590,000 highway bridges in this country that are more than 20-feet long. The total bridge-deck area of these 590,000 bridges is an amazing 120 square miles, or slightly smaller in area than the entire city limits of Albuquerque, New Mexico, roughly twice the size of the entire District of Columbia, or five times the area of New York's Manhattan Island. The State of Texas leads

the Nation with over 48,000 bridges, about ten percent of the total. Ohio is second with about 28,000 highway bridges.

A little known, and disturbing fact about these 590,000 highway bridges is that nearly 84,000, or 14 percent, are considered to be structurally deficient according to the most recent statistics from the FHWA. The percent of structurally deficient bridges varies widely among the 50 States. For example, this chart shows some of the States with some of the highest percentage of deficient bridges.

------------------------------------------------------------------------

Percent of

Number of structurally

State Number of structurally deficient

bridges deficient bridges (in

bridges percent) ------------------------------------------------------------------------ Oklahoma 22,708 7,605 33.5 Missouri 23,604 6,083 25.8 Rhode Island 749 187 25.0 Pennsylvania 22,092 5,418 24.5 South Dakota 6,001 1,398 23.3 Mississippi 16,825 3,694 22.0 Iowa 25,030 5,036 20.1 North Dakota 4,517 871 19.3 Michigan 10,631 2,012 18.9 Louisiana 13,426 2,425 18.1 Alabama 15,641 2,677 17.1 North Carolina 16,991 2,513 14.8 Kansas 25,638 3,465 13.5 Ohio 27,952 3,304 11.8 ------------------------------------------------------------------------ Source: FHWA National Bridge Inventory (NBI) System, December 2001.

Structurally deficient bridges are a particular concern in rural areas of our country. According to FHWA's 2002 edition of its Conditions and Performance Report to Congress, 16 percent of rural bridges are structurally deficient compared to only 10 percent of urban bridges. The report estimates the average cost required to maintain the existing 590,000 highway bridges is $7.3 billion per year.

Another surprising fact about our Nation's highway bridges is their age. About one-third of all highway bridges are more than 50 years old, and an amazing 10,000 bridges are at least 100 years old. About 4,000 of these century-old bridges are currently rated as structurally deficient.

I do believe the number of deficient bridges in this country should be a concern to all Senators. Ensuring that States and local communities have the funds they need to help correct these deficient bridges will be one of my priorities when Congress reauthorizes TEA-21. However, because there may not be sufficient Federal and State funding to address all of the deficient bridges, it will be important to identify the bridges that are most in need of replacement or rehabilitation.

To ensure the most efficient use of limited resources, Congress should also address the need for new technologies to help States monitor the condition of the Nation's 590,000 highway bridges and determine priorities for repair or replacement. Such monitoring technologies, or ``smart bridges,'' should be quick, efficient, and not damage the bridge in any way. I am very pleased that New Mexico State University is one of the Nation's pioneers in the development of non- destructive methods of determining the physical condition of highway bridges. Such smart bridges can record and transmit information on their current structural condition as well as on the traffic crossing them.

In 1998, NMSU installed 67 fiber-optic sensors on an existing steel bridge on Interstate 10 in Las Cruces. This award-winning project was the first application of fiber-optic sensors to highway bridges. More recently, in 2000, sensors were incorporated directly in a concrete bridge during construction to monitor the curing of the concrete; the bridge crosses the Rio Puerco on Interstate 40, west of Albuquerque. NMSU has an actual 40-foot ``bridge'' in a laboratory on campus to allow studies of instrumentation and data collection.

I ask unanimous consent that two articles describing NMSU's accomplishments on smart bridge technology be printed in the Record, exhibits one and two.

NMSU is also a leader in other areas of bridge inspection. It has provided training for bridge inspectors for over 30 years. It has also developed expertise in using a virtual reality approach to document a bridge's physical condition.

At the same time, Oklahoma State University leads the Nation in the development of the Geothermal Smart Bridge System, which uses energy stored in the earth itself to help keep bridges free of ice and snow. OSU is also performing cutting edge research on high-performance structural materials frequently used in bridges including concrete, steel, and timber.

At the University of Oklahoma, a multidisciplinary team of researchers is working to develop a ``smart'' vehicle-bridge system that is expected to reduce the impact of moving trucks on bridge structures, thereby increasing the lifespan of highway bridges. The UO team is also expert in the development of high-performance concrete and of sensors for non-destructive testing.

Of course, the Oklahoma Transportation Center was also heavily involved last year in the rebuilding of the Interstate 40 bridge over the Arkansas River near Webbers Falls, OK, after it collapsed when struck by a barge. The bridge was reopened to traffic only 64 days after the accident.

This is just a glimpse at the high quality bridge research at these three universities. All three institutions are widely recognized as national leaders in all aspects of bridge research and technology. I believe it is fully appropriate for these three nationally recognized universities to collaborate in operating the Southwest Bridge Research Center.

The bill I am introducing today authorizes the Secretary of Transportation to establish and operate the Southwest Bridge Research Center at New Mexico State University in collaboration with the Oklahoma Transportation Center. I do believe the three universities have earned this honor. In fact, in some ways, Congress has already recognized their fine work of the three centers. For example, the University of Oklahoma was allotted $3.5 million in TEA-21 for research work on intelligent stiffeners for bridge stress reduction and Oklahoma State received $3.5 million for work on the geothermal heat pump smart bridge program.

I am pleased to have also played a part. At my request, Congress provided $600,000 in 2001 for bridge research at New Mexico State University and an additional $250,000 in the current fiscal year.

The specific purpose of the Southwest Bridge Research Center will be to contribute to improving the performance of the nation's highway bridges. The center will emphasize five goals: 1. Increasing the number of skilled individuals entering the field of transportation; 2. improving the monitoring of the structural health of highway bridges; 3. developing innovative technologies for testing and assessment of bridges; 4. developing technologies and procedures for ensuring bridge safety, reliability, and security; and 5. providing training in the methods of bridge inspection and evaluation.

Building on the three universities' research work, the Southwest Bridge Research Center will develop a strong educational component, including degree opportunities in bridge engineering at both the undergraduate and graduate levels. In addition, the center will have a cooperative certificate program for training and professional development. Distance education technology and computer-based learning will allow programs to be offered at any of the universities.

The bill provides $3 million in funding from the Highway Trust Fund to operate the center.

New Mexico State University and the Oklahoma Transportation Center have applied their vast talents, tools, and techniques to solving technological problems with highway bridges for over 30 years. The team is well established and maintains cutting-edge expertise. The members of the team are recognized and respected at the national and international levels through accomplishments in bridge testing, monitoring, and evaluation.

I ask all senators to support the designation of a new Southwest Bridge Research Center. I look forward to working this year with the Chairman of the Environment and Public Works Committee, Senator Inhofe, and Senator Jeffords, the ranking member, to incorporate this bill into the full 6-year reauthorization of the transportation bill.

I ask unanimous consent that a letter of support from the three universities and a letter from Rhonda Faught, the Secretary of New Mexico's State Highway and Transportation Department be printed in the Record. I also ask unanimous consent that the text of the bill be printed in the Record.