Rocky Mountain National Park Wilderness Act

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that I be allowed to speak until 12:30, with the time to be charged to the Republican side.

Mr. President, the hour has almost arrived. I understand that in a little less than 3 hours, we will finally be voting for the final time on the reauthorization of the PATRIOT Act. This is critical for the defense of our country, the security of our Nation.

I am pleased we have the opportunity now to approve it, and I predict it will be approved overwhelmingly. The question is, What took us so long? We could have done this at least 2 weeks ago. Indeed, we could have done it 2 months ago. Such is the process in the Senate that sometimes the wheels grind slowly.

The problem is the war on terror. Our enemy does not treat the war necessarily the same way some people in this country do. They are very flexible. They are very agile. They do not tell us what they are going to do in advance. Sometimes they are very patient and wait a long time to strike, and when they do strike, it can be with great speed and lethalness, which means that our ability to fight the terrorists has to be equally agile.

Good intelligence has a short shelf life. Yet that is basically our main weapon in the war on terror. This is not a war we fight with planes, tanks, and ships, but with good intelligence to find out where the terrorists are, who they are, what they are up to, and, if we can, find out whether we are able to stop their terrorist attacks before they occur. That takes good intelligence. It takes agility to be able to get that intelligence, cooperate among the various law enforcement and intelligence agencies.

Before September 11, several of us had provisions of law we believed were important to amend in our statutes to provide tools to fight terrorists. Little did we know how important those would soon become. Senator Feinstein and I have been ranking member and chairman of the Subcommittee on Terrorism, Technology and Homeland Security for many years, since I came to the Senate. We held a lot of hearings on the subject. We had a lot of ideas about what we wanted to propose.

Shortly after September 11, a lot of these things made their way into the PATRIOT Act which we were able to approve. Some Members said the PATRIOT Act was approved hastily. Actually, a lot of the ideas of the PATRIOT Act had been around for some time, had a lot of debate and hearings, but there did not seem to be a reason to get them passed; that is, until September 11, and then, indeed, we did act quickly. But I submit there is a difference between acting hastily and acting quickly.

Nevertheless, some of the provisions were sunsetted. Regarding things we did then and some subsequent amendments to statute, we wanted to take another look down the road to make sure we did not act too hastily. Our action today will make it clear that by reauthorizing these provisions, we intended them to be in effect. We know the terrorists have not stopped their war on terror, and therefore we dare not stop the tools to fight terrorism, many of which are embodied in the PATRIOT Act. So it is important to reauthorize these provisions and not have them expire or sunset.

There is a certain amount of pride of authorship I confess to since a lot of the provisions we are reauthorizing today are provisions which I wrote or helped to write in coauthorship with some of my colleagues. Let me mention some of these because these are important, one of which has been known as or has come to be known as the Moussaoui fix, which is named after Zacarias Moussaoui, sometimes referred to as the 20th hijacker. In the 108th Congress, Senator Schumer and I introduced the Moussaoui fix, which allows the FBI to obtain FISA warrants to monitor and search suspected lone wolf terrorists such as Zacarias Moussaoui.

Now, lone wolf terrorists exist because in today's world, you do not get a little card that says: I am a proud member of al-Qaida. It is a very loose-knit organization. Some have likened it to a franchise where all over the world there are little bands of people--cells--who would do harm to the West generally and the United States in particular and who share the same goals and ideals of al-Qaida, frequently have communication with members of al-Qaida, train in the same way, and conduct the same kinds of terrorist activities, sometimes in consultation or concert with al-Qaida. But it is not like a club, it is not like you are a member of the KGB of the Soviet Union, which is what the threat was when we wrote the FISA act.

Because the FISA act refers to foreign intelligence organizations or terrorist organizations, we found that with people such as Zacarias Moussaoui, who we could not prove was a card-carrying member of any particular terrorist group but we figured he was a terrorist and up to no good, we did not have an ability under FISA to seize and search his computers even though we had the ability to arrest him. This was 2 weeks before September 11. Had we been able to get into the computer, we might well have discovered the information we later found that could have pointed us in the direction of an attack on September 11.

Well, that is what the object of the Zacarias Moussaoui fix was: to enable us to add the lone wolf terrorist to the other situations in which a FISA warrant could be obtained. And it filled a gap in our laws that, as I said, might well have uncovered the September 11 conspiracy had it been in place at the time.

It was reported out of a unanimous Judiciary Committee and passed out of the Senate 90 to 4 in 2003. In 2004, it was added to the Intelligence Reform and Terrorism Prevention Act, with the general PATRIOT Act sunset applied to it. Like the other PATRIOT provisions, the Moussaoui fix was set to expire at the end of last year. Today, we will extend the sunset on that critical provision of law for another 4 years.

Another was the material support enhancements. In 2004, I introduced a bill that, among other things, clarified and expanded the statute prohibiting the giving of material support to a designated foreign terrorist organization. These changes helped address perceived ambiguities in the law that had led the Ninth Circuit Court of Appeals to strike down parts of it as unconstitutionally vague. The changes also expanded the law to bar giving any type of material aid whatsoever--including providing one's self--to a terrorist group.

This legislative proposal also was enacted into law later that year as part of the intelligence reform bill, and also was subjected to a sunset. Again, today, with the PATRIOT Act reauthorization conference report, we repeal that sunset. We make the 2004 material support enhancements permanent features of our law, as they should be.

Another part of the original PATRIOT Act I helped author was the so- called pen registers and trap-and-trace authority. Now, the authority for pen registers and trap and trace is critical for antiterror investigations. It has been around for years in connection with other kinds of investigations, and it obviously was an important tool to fight terrorism.

What these authorities do is allow investigators to discover what telephone numbers are being dialed into and out of a suspect's telephone. As I said, they already had this authority in connection with other kinds of crimes. It certainly made sense to have it track terrorists. An important feature here was to get one court order from a judge in one place and not have to hop all around the country wherever the telephone was used and get a separate court order in that State. That requirement made it totally useless.

So this one court warrant for trap and trace and pen registers was enacted. I am very glad to see the conference report repeals the sunset on this authority--in other words, the automatic ending of the authority--and makes permanent for antiterror investigations this pen register and trap-and-trace authority, another critical tool to fight terrorism.

For the past 2 years, I have also been a cosponsor of legislation that my colleague, Senator Feinstein, helped to coauthor on seaport security and mass transportation security. This is especially interesting in view of the debate and concern right now about seaport security with which we are all familiar.

This particular legislation increases the penalties for and, by the way, also the scope of the criminal offenses for attacks on seaports and shipping. It also consolidates and updates the laws with regard to attacks on railroads and other mass transportation facilities.

Now, these proposals also had been amended into the intelligence reform bill in 2004 by the House of Representatives but have been dropped in conference. Today these important provisions, which I helped to coauthor, are enacted into law through the conference report of the PATRIOT Act.

There is another rather interesting, rather esoteric--one of the things lawyers debate about--but an interesting and important provision of the PATRIOT Act we are going to be dealing with today. When the final draft of the PATRIOT Act reauthorization was introduced in the Judiciary Committee the night before the committee acted on it, for the first time a proposed three-part test was inserted into the bill--a test for determining whether a section 215 order is relevant to a terrorism investigation. There has been a lot of debate about these section 215 orders, but these are critical to obtain records that might help in the investigation of a potential terrorist.

Several of us expressed reservations about this three-part test and whether it would impede the use of these section 215 warrants and impede important investigations and thought it required further study.

Well, during the next weeks and months, we became persuaded essentially that this three-part test would simply either make impossible or certainly delay needed investigations and, therefore, should not be enacted. It raised more questions than it answered, complicated this investigative tool that was being used, after all, at the very preliminary stages of an investigation--not the stage at which you ought to be proving probable cause to introduce evidence into the trial.

Well, the test remains in the conference report, but with changed language. I think it is much better in its current form. The form of the test remains in the conference report, but investigators are no longer required to use that test. Instead, they are simply permitted to use that test to obtain a presumption that a 215 order is relevant to a terror investigation, which is fine.

Usually, when we create a legal presumption that a standard has been met, it is easier to satisfy the presumption than it is to satisfy the underlying legal test. I do not believe that is the case here. Relevance is a simple and well established standard of law. Indeed, it is the standard for obtaining every other kind of subpoena, including administrative subpoenas, grand jury subpoenas, and civil discovery orders.

So I cannot imagine that investigators will ever bother using the complicated three-part test in order to get a presumption when they can simply plead relevance and that will suffice for their investigation. I might be wrong, and they might find this test useful. It is there should they decide they can use it. But I am pleased to see the conference report is not impeding investigations by mandating the use of that test.

We are not betting important antiterror investigations on the issue, I guess, is another way to say it. I think it would have been clearer just to eliminate the test, but it does not--other than, in my view, cluttering up section 215 of the PATRIOT Act because it is not mandatory, I do not think it is going to cause any harm. Investigators are not going to be impeded in their investigations because of it. I think that is an important change we made.

The conference report also does something that is important for States, like my own State of Arizona, that have attempted to improve the ability to prosecute and defend against certain kinds of serious crimes. In the 1996 Antiterrorism and Effective Death Penalty Act, Congress made an offer to the States in effect saying: If you will provide qualified counsel, lawyers, in capital cases to the defendants in those cases during the stage of the case after conviction but during appeal--it is the so-called postconviction review stage of litigation-- then the Federal Government would apply a streamlined and expedited procedure to review the habeas corpus petitions that are normally filed during that period of time from the conviction in the State court.

The Federal courts would be required to abide by timelines in ruling on these cases, and they would be barred from staying Federal petitions to allow further exhaustion or broadly exempting claims from procedural default requirements on the grounds of the perceived inadequacy or lack of independence of the State's procedural rules. The bottom line is that if the defendants are represented by good counsel, by good lawyers, then they should be able to comply with the provisions of the law and not plead, in effect, they have to delay the law as they are having their appeals reviewed.

Arizona did its part to comply with this statute. It enacted a system to provide qualified counsel to capital defendants on State postconviction review. It spent a lot of money doing it. But to date, it has not received the benefits of the system. It is because the decision about whether a State is entitled to the benefits of this chapter 154 relief--including the time deadlines--is made by the same Ninth Circuit Court of Appeals that would be bound by those deadlines. And it has repeatedly refused to extend to Arizona the benefits of the 1996 law's special habeas chapter. By the way, it has also been very slow in many of these cases, and that has been a real problem.

The good thing about today's conference report is that it includes a provision that would shift the decision of whether a State is eligible for this expedited review of capital cases away from the regional courts of appeals to the U.S. Attorney General, with a review of his decision in the U.S. Circuit Court for the District of Columbia. That court hears no habeas cases; therefore, it has no conflict of interest as the other circuit courts would. This will allow the Federal Government to keep its end of the bargain that it made with the States back in 1996 and will allow States like Arizona to finally take advantage of the streamlined and expedited procedures to which it is entitled.

I will conclude in this fashion. I think that by what I have just said it is clear there are a variety of important provisions in this conference report, this PATRIOT law we are reauthorizing. In some cases we are saying this is now going to be permanent law. We do not need to come back and reauthorize it every 4 years. In other cases, we are saying there are important provisions of other laws that need to be put in the PATRIOT Act and made permanent law. And we have done that. In other cases, as I mentioned, we wrote particular provisions into the PATRIOT Act, and it is important that we reauthorize those provisions. And there were other provisions, in addition to pen registers and trap and trace that I mentioned before, as well as the material support, which were parts of the original act.

We established several crimes as part of the PATRIOT Act that would serve as predicate crimes for further investigation, and these were very important because in the early stages of an investigation into a terrorist you may not have all of the scope of the activity of this individual well in mind. You may know he has been guilty of what you think of one particular crime, but you need to be able to use that as a predicate to expand your investigation into other things he may have done.

So, for example, we establish that violations of the Federal terrorism statutes could serve as a predicate offense allowing the Department of Justice to apply to courts for authorization to intercept wire or oral communications pursuant to title III when investigating such offenses. We establish that the felony violations of the Federal computer crimes statutes, the so-called hacking statutes, might serve as a predicate offense, allowing the Department of Justice to apply to courts for authorization to intercept wire or oral communications pursuant to title III when investigating such offenses.

We provide for the detention, for up to 7 days, of aliens the Attorney General has reasonable grounds to believe were engaged in conduct that threatened the security of the United States or aliens who are inadmissible; that is to say, they are not supposed to be coming into the United States or are deportable from the United States on the grounds of terrorism, espionage, sabotage, or sedition.

There are a variety of other provisions that are included in the PATRIOT Act. The key thing to remember here is, as I said before, our law enforcement and intelligence officials need to have adequate tools to fight terrorism because we provide those tools when we send the military into harm's way. We have an obligation to do that. And they fight important fronts in the war on terror. But so much of this war on terror relates to intelligence gathering and law enforcement activity, investigating potential crimes of these individuals. We have to give them the tools they need to fight these terrorists.

The PATRIOT Act does that. It is one of our tools. The FISA law is another one of those tools, the Surveillance Act. The Foreign Intelligence Surveillance Act is what FISA stands for. We have activities such as the NSA surveillance that is another important tool that deals with al-Qaida terrorists who are calling into or out of a foreign country. There are other mechanisms we are using to fight the terrorists.

But one of the bedrock laws now that we use is the PATRIOT Act. That law passed not long after 9/11 because we understood this world had changed and that it was time to apply to terrorism many of the same kinds of techniques in law enforcement authorities that we already deemed very useful in investigating other kinds of crimes. Our idea was, if it is good enough to investigate money laundering or drug dealing, for example, we sure ought to use those same kinds of techniques to fight terrorists. We have done that.

Today, actually, is a very important day because many of the provisions of the PATRIOT Act go into permanent law. Others are reauthorized for 4 more years. They provide critical support to the people we want to protect us in this war on terror. I am delighted we will be adopting the PATRIOT Act conference report today. My only regret, as I said, is we could not have done it before now. But we can at least celebrate the fact that the Senate has done its duty for the American people to help make them secure in the future.

Mr. President, I rise today to comment on the USA PATRIOT Improvement and Reauthorization Act conference report. I support the conference report and, in particular, the conference report's amendments to section 215, the FISA business records provision, because those amendments confirm that investigators may use section 215 to obtain records and other tangible items that are relevant to any authorized national security investigation other than a threat assessment. The conference report appropriately balances privacy concerns and national security needs by amending the method by which investigators can obtain relevant records but not changing or otherwise limiting the scope of records that can be obtained through a section 215 order. For example, where appropriate, investigators may still obtain sensitive records such as library or bookstore, medical, or tax return records, but they must obtain very high-level sign-off internally before asking the court to order those records' production. Similarly, the conference report imposes an obligation on the Attorney General to develop minimization guidelines for the retention and dissemination of U.S. person information obtained through a section 215 order, but leaves the Department with flexibility in obtaining the information in the first instance and in structuring those minimization procedures.

My support for the conference report turns on my understanding that it codifies our intent not to limit the scope of items and records that can be obtained through section 215. This stands in contrast to the so- called ``three-part test'' that passed the Senate last year, which really did run the risk of limiting our investigators' ability to obtain records relevant to authorized national security investigations. The conference report is clear: we are continuing to provide our investigators with the tools they need. Along with two of my fellow conferees, Senators Roberts and Sessions, I sent a letter to Chairman Specter on the eve of the conference vigorously objecting to the Senate's proposed three-

part test. As the three of us expressed in that letter, we believed that requiring use of the three-part test to show relevance would have been a serious mistake. I am pleased to see that the final conference report does not mandate the use of that test. I will have that letter added to the Record following my remarks.

I support the conference report, including its amendments to section 206 of the USA PATRIOT Act, which authorizes ``roving'' wiretap orders under FISA because I believe that the amendments to section 206 do not hamper investigators' ability to use this critical tool. In this day and age of sophisticated terrorists and spies who are trained to thwart surveillance, allowing investigators to seek a wiretap that follows a specified target--rather than a particular cell phone--is critical. The conference report explicitly preserves this ability, while clarifying the level of detail necessary for investigators to obtain this type of wiretap. Similarly, I support the conference report's amendments to section 206 because they recognize that there may be some situations where it will not be practicable for investigators to return to court within 10 days of directing surveillance at a new phone or place. The conference report wisely affords the FISA Court judges discretion to extend the period of time investigators will have to keep the court apprised of how roving wiretaps are being used.

I support the conference report, and I support the amendments set out in S. 2271, because I think they set out the proper standard for judicial review of nondisclosure orders accompanying section 215 FISA business records orders and national security letters. We all recognize the need for secrecy in national security investigations--both to avoid tipping off targets in a particular case, and to avoid giving our enemies a better picture of how we conduct our investigations. Our enemies are sophisticated and devote enormous time and energy to understanding how we operate, all in service of allowing their agents to evade our investigations. The conference report recognizes the need for secrecy when the Government obtains a section 215 order from a court or serves an NSL on a business. But it also responds to concerns raised that recipients should have an explicit right to judicial review of nondisclosure orders.

The standard in the conference report is the appropriate one, both constitutionally and practically, as it recognizes that sensitive national security and diplomatic relations judgments are particularly within the Executive's expertise. The Constitution has vested these determinations with the Executive, and courts have long recognized that judges are ill-suited to be second-guessing the Executive's national security and diplomatic affairs judgments. Disclosures that seem innocuous to a judge who quite naturally must view those disclosures without being fully aware of the many other data points known to our enemies--may nonetheless be quite damaging. The conference report's standard is therefore the correct one. It will be the exceedingly rare case in which a judge will find, contrary to a certification by an executive branch official, that there is no reason to believe that the nondisclosure order should remain in place. It will be even rarer for a judge to find that one of the Senate-confirmed officials designated in the conference report has acted in bad faith.

I could not have supported the conference report or the explicit judicial review of nondisclosure orders if I thought that they would give judges the power to second-guess the informed national security and diplomatic relations judgments of our high-level executive branch officials. The conference report makes clear that judges will not have such discretion, which is why I am voting for this report.

Another provision in particular that I support is the new public reporting obligations for the FBI's use of national security letters. That reporting will allow Congress to better perform our oversight obligations without endangering national security. The reporting requirement is focused on what is the most relevant number to Congress and the public--the aggregate number of different U.S., persons about whom information is requested. The reporting requirement does not require the FBI to break down the aggregate numbers in its report by the different authorities that allowed the national security letters, which is critical to preventing our enemies from gaining too much information about the way we investigate threats to the national security. And the reporting obligation is limited to information about U.S. persons. I support this limited public reporting because I think it will provide valuable information for our public debate--but without revealing too much information about the FBI's use of this valuable tool and thus compromising its use.

I ask unanimous consent that the November 3 letter to Chairman Specter be printed in the Record.

Mr. President, I rise today to comment on section 507 of the USA PATRIOT Improvement and Reauthorization Act conference report. This section originates in a bill that I introduced earlier in this year, S. 1088, the Streamlined Procedures Act. Section 507 is based on subsections (b) through (e) of section 9 of S. 1088. My Arizona colleague, Representative Flake, took an interest in this matter and sought to offer this provision as an amendment to a court security and police-officer protection bill last November. Mr. Flake's version of the provision is printed in House Report 109-279; it made a number of improvements to the original version in section 9 of my bill. Section 507 of the present conference report reflects most of Mr. Flake's improvements, such as the simplification of the chapter 154 qualification standard, which obviates the need for separate standards for those States that make direct and collateral review into separate vehicles and those States with unitary procedures, and Mr. Flake's enhanced retroactivity provisions.

Mr. Flake already has commented on section 507 in an extension of remarks, at 151 Cong. Rec. E2639-40, December 22, 2005. I will not repeat what he said there and will simply associate myself with his remarks. Instead, I would like to focus today on why section 507 is necessary.

Section 507 expands and improves the special expedited habeas-corpus procedures authorized in chapter 154 of the U.S. Code. These procedures are available to States that establish a system for providing legal representation to capital defendants on State habeas review. Chapter 154 sets strict time limits on Federal court action, bars consideration of claims that were not adjudicated in State court, and sharply curtails amendments to petitions. The benefits that chapter 154 offers to States that opt in to its standards are substantial. Currently, however, the court that decides whether a State is eligible for chapter 154 is the same court that would be subject to its time limits. Unsurprisingly, these courts have proven resistant to chapter 154. Section 507 places the eligibility decision in the hands of a neutral party--the U.S. Attorney General, with review of his decision in the U.S. Court of Appeals for the District of Columbia Circuit, which does not hear habeas petitions. Section 507 also makes chapter 154's deadlines more practical by extending the time for a district court to review and rule on a chapter 154 petition from 6 months to 15 months.

As I mentioned earlier, section 507 of the present conference report is based on section 9 of the Streamlined Procedures Act. The SPA and habeas reform have been the subject of multiple hearings in both the House and Senate during this Congress. In answers to written questions following their testimony at a July 13 hearing before the Senate Judiciary Committee, Arizona prosecutors John Todd and Kent Cattani provided detailed evidence of systematic delays in Federal habeas corpus review of State capital cases. Among the information that they provided was a comprehensive study undertaken by the Arizona Attorney General's Office of all capital cases in the State. This study examined the appeals of all prisoners currently on Arizona's death row--over 100 prisoners. Mr. Todd summarized the findings in his answers to written questions:

[S]tatistical information based on Arizona's current

capital cases in Federal court, and anecdotal information

derived from Arizona's current and former capital cases

substantiate the significant problem of delay and lack of

finality for victims. The AEDPA has not solved this

problem.

There are 76 Arizona capital cases pending in Federal

court. This represents over two thirds of Arizona's pending

capital cases. Although some cases were filed within the last

few months, over half of the cases have been pending in

Federal court five years or more. Of those, thirteen cases

have been pending for seven years. Ten cases have been

pending for eight years. Five cases have been pending for

more than fifteen years.

The AEDPA was a major step in making Federal habeas review

more reliable and speedy. However, the Supreme Court's

reversals of the Ninth Circuit exemplify the unwillingness of

some court cultures to obey this Congress' directives if

there is any ambiguity in the law.

Mr. Todd also gave a summary of the extreme delays experienced by the State of Arizona on Federal habeas review:

Only one of the 63 [Arizona death-penalty] cases filed

under the AEDPA has moved from the Federal District Court to

the Ninth Circuit. That case has been in the Ninth Circuit

for over 5 years. Twenty-eight of Arizona's capital cases

have been pending in District Court for between six and eight

years.

[One Arizona death penalty case] has been on Federal habeas

review for over 19 years. Two of those cases have been on

Federal habeas review for over 18 years, one for over 16

years, another for over 14 years, still another for over 12

years. These cases alone establish a pattern of unreasonable

delay. The [Arizona Attorney General's] report shows that

these cases are not simply strange aberrations in an

otherwise smooth functioning system of habeas review.

Mr. Todd concluded: ``there is a serious problem of delay and lack of finality currently in Federal habeas review of state-court judgments, even after Congress' enactment of the AEDPA almost a decade ago. . . . Based on the attached review of the Arizona capital cases since enactment of the AEDPA, delay has not been eliminated or even reduced, rather it has been prolonged.''

Similarly, in his answers to written questions, Kent Cattani, the Chief Counsel of the Capital Litigation Section of the Arizona Attorney General's Office, reviewed the Arizona Attorney General's study of Arizona capital cases and concluded as follows: ``Federal habeas reform is necessary. After 9 years under the Anti-Terrorism and Effective Death Penalty Act of 1996 (``AEDPA''), it is clear that the Act did not eliminate or even reduce the problem of delay in the Federal habeas process.''

Interestingly, although the Judicial Conference of the United States has uniformly opposed all Federal habeas reform--it even objected in writing to SPA Section 8(a)'s requirement that circuit courts decide habeas cases within 300 days after briefing is completed--in its September 26, 2005 letter to Chairman Specter regarding the SPA, the Conference itself provides substantial evidence of a growing backlog and delays in resolution of capital habeas petitions. The September 26 letter notes the following facts: From 1998 to 2002, the number of State capital habeas cases pending in the Federal district courts increased from 446 to 721. During the same period, the percentage of State capital habeas cases pending in the Federal district courts for more than 3 years rose from 20.2 percent to 46.2 percent; in the Federal courts of appeals, the number of pending State capital habeas cases rose from 185 to 284; and the median time from filing of a notice of appeal to disposition for State capital habeas cases increased from 10 months to 15 months.

It is noteworthy that all of these increases in backlog and delay have taken place after the enactment of the AEDPA in 1996--a law that some critics of habeas reform assert has solved all of the problems with Federal habeas.

At the most recent hearing on the Streamlined Procedures Act, before the Senate Judiciary Committee on November 16, Ron Eisenberg, Deputy District Attorney for Philadelphia, summarized the problems and delays with Federal habeas review that he encounters in the course of his work. He stated:

I have served as a prosecutor for 24 years. I am the

supervisor of the Law Division of the Philadelphia District

Attorney's Office, a group of 60 lawyers. Many of those

lawyers handle regular appeals in the Pennsylvania appellate

courts. But more and more of our attorneys must devote

themselves full time to Federal habeas corpus litigation. In

the last decade, the number of lawyers employed exclusively

on habeas work has increased 400%. Despite the limits

supposedly imposed by law, the only certain limit on the

Federal habeas process as it is currently administered is the

expiration of the defendant's sentence.

But that leaves ample opportunity and motivation for

litigation, because the cases that reach Federal habeas

review involve the most dangerous criminals, who receive the

most serious sentences--not just death penalties, but non-

capital murders, rape, violent robberies and burglaries,

brutal beatings, and shootings.

Too often, discussion of the proper scope of Federal habeas

corpus review is really just a debate about the value of the

death penalty, and the justness of imprisonment and

punishment generally. To be sure, many Federal courts seem

flatly unwilling to affirm capital sentences. In

Pennsylvania, for example, almost every single contested

death sentence litigated on habeas--over 20 cases in the last

decade--has been thrown out by Federal judges; only one has

been upheld.

But the primary problem is one of process, not results. The

truth is that, whether or not they end up reversing a

conviction, Federal habeas courts drag out litigation for

years of utterly unjustifiable delay, creating exorbitant

costs for the state and endless pain for the victims.

This data and testimony confirm what many capital litigators and judges have told me is, in their view, an obvious and uncontestable fact: the problems with Federal habeas corpus are systematic, they are severe, and they and are growing worse. Yet even this information does not really tell us why this problem matters--why ordinary people, rather than just civil servants and judges, should be concerned about the functioning of the Federal habeas system. For that information, it is necessary to look at the impact of the current habeas system on the surviving victims of violent crimes. The current system and the delays that it engenders, particularly in capital cases, often are grossly cruel to these individuals. The perpetual litigation of Federal habeas cases denies the surviving family of a murder victim closure--it forces them to continually relive the crime, rather than be able to put the terrible events behind them.

Two parents of murder victims testified at hearings in this Congress about how they have been treated by the Federal habeas system. Their testimony makes a compelling case that this system is broken and in need of reform. And it highlights why we should all be concerned. What these individuals and their families--people who had already suffered so much--have experienced at the hands of the Federal courts should offend every American.

The first witness to testify was Carol Fornoff, who addressed the House Judiciary Committee's Crime Subcommittee on June 7 of last year. Mrs. Fornoff's 13-year-old daughter, Christy Ann, was murdered in 1984. Almost every Arizonan who lived in the State at the time knows the name Christy Ann Fornoff. Christy's murder was an event that shattered people's sense of security, that made them afraid to let their children play outside or go out of their sight. I remember the case vividly. And I was stunned when I learned last year that the man who killed Christy, although sentenced to death by the State of Arizona, still is litigating his conviction and sentence in Federal court. His Federal proceedings began in 1992--14 years ago. Just think about how long ago 1992 is. President Bush's father was the President at the time. Bill Clinton was the Governor of Arkansas. Saddam Hussein's invasion of Kuwait is closer in time to that date than the U.S. invasion of Iraq is to today. And yet the case of Christy's killer remains in Federal court.

Mrs. Fornoff made a powerful case for why we should find this unacceptable. She described the suffering of her family, how this decades-long litigation has denied them closure. I do not think that anyone who heard Mrs. Fornoff's testimony would assert that there are no problems with the present system. Allow me to quote the main portion of Mrs. Fornoff's statement to the House Crime Subcommittee:

My husband Roger and I are here today to tell you about our

daughter, Christy Ann Fornoff. Christy was our youngest

daughter. She was a loving child, very gentle. She often

seemed to make friends with the kids at school who weren't

so popular. She was very dear to us.

In 1984, our family was living in Tempe, Arizona, and

Christy was 13 years old. Christy and her brother Jason both

held jobs as newscarriers for the Phoenix Gazette, a local

newspaper. Roger and I believed that jobs like this would

teach our children responsibility, while also helping them

earn a little money.

After dinner on Wednesday evening, May 9, 1984, both

Christy and Jason had been invited to go jumping on

trampolines. Jason went, but Christy had just had a cast

removed from her ankle. Instead, she went to collect on

newspaper subscriptions at an apartment complex near our

house.

Christy delivered papers at this complex every day, it was

just two short blocks from our house. Nevertheless, it was

getting dusk, so I went with Christy; she rode her brother's

bike while I walked alongside with our little dog.

At the first apartment that Christy visited, I was stopped

by a neighbor who wanted to talk about our cute dog. Christy

went on to the next apartment alone, and I followed a few

minutes later. When I got there, the bike was outside, but

there was no Christy. I started calling her name, but there

was no answer. Our dog started to get nervous. After a few

minutes, I ran home, and came back with my daughter's

boyfriend. I asked the people at the apartment that Christy

had gone to if they had seen her, and they said yes, ten

minutes ago, and that she had left. I knew that Christy

wouldn't just leave her brother's bike there.

I ran home again. My husband had just arrived at home and I

told him that Christy was missing. He immediately called the

police, and then he went to the apartment complex and began

knocking on doors. Outside of one apartment, people standing

nearby told us don't bother knocking on that door, that is

the maintenance man, and he is looking for Christy. Shortly

after, the maintenance man joined Roger in the search for

Christy.

That night, police helicopters with searchlights examined

every corner of our neighborhood. Our son drove up and down

every alley in the area on his motorcycle. Christy's

newspaper-collections book was found over a fence near the

apartment complex. But no one found Christy.

Two days later, a policeman knocked at our door. Christy's

body had been discovered wrapped in a sheet, lying behind a

trash dumpster in the apartment complex. We were absolutely

devasted. We had been hoping against hope, and couldn't

believe that our beautiful daughter was dead.

Christy's body was taken to a morgue so that an autopsy

could be performed. On Sunday, which was Mother's day, we

were finally able to view Christy's body at the funeral home.

Mother's Day has never been the same for me since.

Ten days after Christy's body was found, the maintenance

man at the apartment complex--the same man who supposedly had

been looking for her the night that she disappeared--was

arrested for her murder. Christy had been sexually assaulted

and suffocated. There was blood, semen, and hair on Christy's

body that was consistent with that of the maintenance man.

Vomit on Christy's face matched vomit in the maintenance

man's closet. Fibers on Christy's body matched the carpet and

a blanket in the maintenance man's apartment. And police

found Christy's hair inside of the apartment. We knew who had

killed our daughter.

In 1985, the maintenance man was convicted of Christy's

murder and sentenced to death. The conviction was upheld in a

lengthy opinion by the Arizona Supreme Court. The killer

raised many more challenges, but his last state appeals were

finally rejected in 1992. By that time, we already felt like

the case had been going on a long time--it had been seven

years. We couldn't imagine that the killer would have any

more challenges to argue.

But in 1992, the killer filed another challenge to his

conviction in the United States District Court. That

challenge then remained in that one court for another 7

years! Finally, in November of 1999, the district court

dismissed the case. But then a few years later, the Federal

Court of Appeals for the Ninth Circuit sent the case back to

the district court for more hearings. Today, the case remains

before that same Federal district court.

It has now been over 21 years since Christy was murdered.

By this fall, the case will have been in the Federal courts

for longer than Christy was ever alive.

I cannot describe to you how painful our experience with

the court system has been. I cannot believe that just one

court took over 7 years to decide our case.

Some might ask why we can't just move on, and forget about

the killer's appeals. But it doesn't work that way. She was

our daughter, our beautiful little girl, and he took her

away. We want to know if he was properly convicted. We want

to know, will his conviction be thrown out? Will there be

another trial? I cannot imagine testifying at a trial again.

And would they even be able to convict this man again? It has

been 21 years. How many witnesses are still here, is all of

the evidence even still available? Could this man one day be

released? Could I run into him on the street, a free man--the

man who assaulted and killed our little daughter? The courts

have turned this case into an open wound for our family--a

wound that has not been allowed to heal for 21 years.

I understand that the Federal government has the right to

create such a system. It can let the Federal courts hear any

challenge to a state conviction, at any time, with no limits.

My question to you, Mr. Chairman, is why would we want such a

system? Why would we want a system that forces someone like

me to relive my daughter's murder, again and again and again?

My daughter's killer already litigated all of the challenges

to his case in the state courts. Why should we let him bring

all of the same legal claims again, for another round of

lawsuits, in the Federal courts? Why should this killer get a

second chance? My daughter never had a second chance.

I understand that people are concerned about innocent

people being behind bars, but that is not what my daughter's

killer is suing about. Right now, the issue that is being

litigated in the Federal courts is whether the trial court

made a mistake by allowing the jury to hear that he told a

prison counselor that he ``didn't mean to kill the little

Fornoff girl.'' He claims that the counselor was like his

doctor, and that the statement is private, even though he

said it in front of other prisoners. Earlier this year, a

Federal court held a hearing on whether the killer had a

right to prevent the jury from hearing about this statement.

But the statement is irrelevant. Whether or not he said it,

the evidence of his guilt--the hairs, the fibers, the bodily

fluids--is overwhelming. The

issue that the killer is suing about was already resolved

before by the Arizona Supreme Court--over 17 years ago. Yet

here we are, 21 years after my daughter died, arguing about

the same legal technicalities.

People might say that it is worth the cost to let the

killer sue over every issue like this again and again. I

don't think that it is worth the cost. When you and your

colleagues are writing laws, Mr. Chairman, please think about

people like me. Please think about the fact that every time

that there is another appeal, another ruling, another

hearing, I am forced to think about my daughter's death.

Every time, I am forced to wonder, if only Christy hadn't had

the cast on her ankle--if only she could have gone on the

trampoline that evening, she would still be alive today.

Every time that I hear a helicopter, I am terrified--I think

of the police helicopters searching for Christy on the night

that she disappeared. Every time that I hear a motorcycle, I

think of my son, searching for Christy. Every time that the

courts reopen this case, I am forced to wonder, why didn't I

follow Christy to that second apartment--why did I let that

neighbor stop me to talk? Every time, I am forced to think

about how scared my little girl must have been when she died.

I urge you, Mr. Chairman, to do what you can to fix this

system. My family and I have forgiven our daughter's

murderer. But we cannot forgive a justice system that would

treat us this way.

Another witness who testified before Congress last year on the need for Federal habeas reform is Mary Ann Hughes of Chino Hills, CA. Mrs. Hughes's son Christopher, then 11 years old, was murdered in 1983. As in the Fornoff case, the killer was captured, convicted, and sentenced to death--and is still litigating his case in Federal court today. Mrs. Hughes testified before the House Judiciary Committee's Crime Subcommittee on November 10, 2005. This is what she said:

Christopher was a beautiful little boy. He had just

completed the fifth grade at a local Catholic school. His

classmates later planted a tree in his memory at the school.

Chris swam on the swim team and dreamed of swimming for the

University of Southern California and being in the Olympics.

He loved his younger brother, and in typical brotherly

fashion would tease him one minute and be his best friend the

next. Chris' younger brother is now 28-years-old. He has

missed Chris every day since he was murdered. Our younger son

was not yet born when Chris was murdered. I was pregnant

during part of Cooper's trial with our third son. When he was

born we gave him the middle name Christopher after the

brother he never knew. Both boys have only in the last few

years been able to face what happened to their brother. As

the years have passed, we are reminded that Chris never got

to finish grammar school, go to a prom, marry, have children

of his own, or pursue his dreams.

On Saturday, June 4, 1983, Chris asked me for permission to

spend the night at the home of his friend, Josh Ryen. We

lived in what was then a very rural neighborhood. Josh was

the only boy nearby who was really close to Chris' age and so

they formed a bond. We were good friends with Josh's parents,

Doug and Peggy Ryen. The Ryens lived just up the road from

our home with their 10-year-old daughter Jessica and eight-

year-old Josh. The last time I saw Chris alive he and Josh

were riding off on their bicycles toward Josh's house. They

were excitedly waving because they were so happy I had given

Chris permission to spend that night with Josh. The only

thing Chris had to remember was to be home Sunday in time for

church. The next time I saw Chris was in a photograph on an

autopsy table during Cooper's preliminary hearing.

Unbeknownst to anyone, Cooper had been hiding in a house in

Chino Hills just 126 yards from the Ryen's home. He had

escaped two days earlier from a minimum security facility at

a nearby prison. When Cooper was arrested for burglary in Los

Angeles he used a false identity. His identity and criminal

past should have caught up with him before he was wrongly

assigned to the minimum security portion of the prison. The

prison, however, mishandled the processing of an outstanding

warrant for Cooper for escape from custody in

Pennsylvania. He was being held pending trial for the

kidnap and rape of a teenage girl who interrupted him

while he was burglarizing a home. While staying at the

hide-out house near the Ryens, Cooper had been calling

former girlfriends, trying to get them to help him get out

of the area. A manhunt was under way for Cooper, but the

rural community surrounding the prison was never notified

of the escape.

The failure of the California prison-system to protect the

surrounding community from a dangerous felon marked the

beginning of our family and community's being let down by our

government. Within a few hours of Cooper's escape, prison

officials realized who Cooper was and how dangerous he was.

Nevertheless, they still failed to alert the community that

he was at large. Our frustration and disappointment with our

government's failings has only grown since that time as

Cooper's case continues to wind its way down a seemingly

endless path through our judicial system.

The morning following the murders, I remember being mad at

Chris because he had not arrived home on time as promised so

we could attend church. Then my anger turned to worry. I sent

my husband Bill up to the Ryen home. He saw that the horses

had not been fed, and that the Ryen station wagon was gone.

Uncharacteristically, the kitchen door was locked, so my

husband walked around the house. He looked inside the sliding

glass door of the Ryen's master bedroom. He saw blood

everywhere. Peggy and Chris were lying on the ground and Josh

was lying next to them, showing signs of life but unable to

move. My husband could not open the sliding glass door, so he

ran and kicked open the kitchen door. As he went into the

master bedroom, he found 10-year-old Jessica lying on the

floor in fetal position in the doorway, dead. He saw Doug and

Peggy nude, bloodied, and lifeless. When he went to our son

Chris, he was cold to the touch. Bill then knew that

Christopher was dead.

My husband then forced himself to have enough presence of

mind to get help for Josh, who miraculously survived despite

having his throat slit from ear to ear. Josh, only eight

years old, lay next to his dead, naked mother throughout the

night, knowing from the silence and from the smell of blood

that everyone else was dead. He placed his fingers into his

throat, which kept him from bleeding to death during the 12

hours before my husband rescued him.

Everyone inside the home had been repeatedly struck by a

hatchet and attacked with a knife. Christopher had 25

identifiable wounds made by a hatchet and a knife. Many of

them were on his hands, which he must have put against his

head to protect himself from Kevin Cooper's blows. Some were

made after he was already dead. No one should know this kind

of horror. That it happened to a child makes it even worse.

The killer had lifted Jessica's nightgown and carved on her

chest after she died. The killer also helped himself to a

beer from the Ryen's refrigerator. We wondered what kind of

monster would attack a father, mother, and three children

with a hatchet, and then go have a beer. That question has

long since been answered, but 22 years later we are still

waiting for justice.

The escaped prisoner who committed this crime was caught 2 months later. He admitted that he had stayed in the house next door but denied any involvement in the murders. According to the California Supreme Court, however, the evidence of defendant's guilt was ``overwhelming.'' Not only had the defendant stayed at the vacant house right next door at the time of the murders; the hatchet used in the murders was taken from the vacant house; shoe prints in the Ryen house matched those in the vacant house and were from a type of shoe issued to prisoners; bloody items, including a prison-issue button, were found in the vacant house; prison-issue tobacco was found in the Ryen station wagon, which was recovered in Long Beach; and the defendant's blood type and hair matched that found in the Ryen house. The defendant was convicted of the murders and sentenced to death in 1985, and the California Supreme Court upheld the defendant's conviction and sentence in 1991.

The defendant's Federal habeas proceedings began shortly thereafter, and they continue to this day--23 years after the murders. In 2000, the defendant asked the courts for DNA testing of a blood spot in the Ryen house, a t-shirt near the crime scene, and the tobacco found in the car. Despite the overwhelming evidence of his guilt, the courts allowed more testing. All three tests found that the blood and saliva matched the defendant, to a degree of certainty of 1 in 310 billion. Blood on the t-shirt matched both the defendant and one of the victims.

Mrs. Hughes went on to describe, in her November 10 testimony, the impact of this crime and the attenuated legal proceedings on her family:

``While I know that Cooper is the one who murdered my son,

I will always bear the guilt of having given Chris permission

to spend the night at the Ryen's house. I will always feel

responsible for sending my husband to find the bodies of our

son and the Ryen family. It is a guilt similar to the guilt

that Josh feels to this day because he had begged me to let

Chris spend the night. He thinks that Chris would still be

alive if he had not spent the night. Of course, Cooper is

responsible for all the pain and suffering that he inflicted

that night and the continued pain that has followed, but it

does not help stop the pain and guilt. Kevin Cooper is still

here over 22 years later--still proclaiming his innocence and

complaining about our judicial system.

As Josh explained when he finally got a chance to speak to

the Judge about how he has been affected by Cooper's crimes:

Cooper never shuts up. We continually get to hear more bogus

claims and more comments from Cooper and his attorneys. Over

the years I have learned to know when something has happened

in Cooper's never-ending legal case: the calls from the media

start up again, or, at times, the media trucks just park

in

front of our house. We have no opportunity to put this

behind us--to heal or to try to find peace--because

everything is about Cooper. Our system is so grotesquely

skewed to Cooper's benefit and seemingly incapable of

letting California carry out its judgment against him.

[The] judicial system so out of balance in favor of the

convicted that it literally enables them to victimize their

victims and their families all over again through the Federal

judicial system. We understood the rights of an accused and

that Cooper's rights took precedence over ours as he stood

trial. His trial was moved to another County because of the

publicity surrounding the horrendous crimes. I had to drive a

long distance to another County to watch the trial as it

could not take place in our County. Cooper's defense attorney

spent an entire year preparing to defend Cooper at trial.

Everything was about Cooper's rights and none of our

sensibilities or concerns could be dignified because Cooper

had to have a fair trial. We understood and we waited for

justice. In California, Cooper's appeal was automatic because

he had received the death penalty for his crimes. The appeal

took six years to conclude. We understood the need for a

thorough appeal and we waited for justice.

By 1991, Cooper had received a fair trial and his appeal

had been concluded. The California Supreme Court aptly

observed that the evidence against Cooper, both in volume and

consistency, was ``overwhelming''. Since then, we have waited

and watched as the United States Supreme Court has denied

Cooper's eight petitions for writ of certiorari and two

petitions for writ of habeas corpus, and the California

Supreme Court has denied Cooper's seven habeas corpus

petitions and three motions to reopen Cooper's appeal. The

Ninth Circuit affirmed the denial of Cooper's first Federal

habeas petition, and denied him permission to file a

successive petition in 2001, and again in 2003. But then, on

Friday night, February 6, 2004, Cooper's attorneys filed an

application with the Ninth Circuit requesting permission to

file a successive habeas petition.

A three-judge panel of the Ninth Circuit denied Cooper's

application to file a successive petition on Sunday, February

8, 2004. Cooper was scheduled to be executed at one minute

after midnight on Tuesday, February 10, 2004. On Monday,

February 9, 2004, my husband and I made the trip to Northern

California from our home in Southern California. Relatives of

the extended Ryen family flew in from all over the Country.

Josh Ryen, now 30, left for dead at the age of eight, his

entire immediate family murdered, drove hundreds of miles to

reach the prison to witness the execution of Cooper. We all

expected that finally, this case would be brought to a close.

Mrs. Hughes went on to describe, however, how on the eve of the execution, the en banc Ninth Circuit Court of Appeals sua sponte reviewed the denial of the petitioner's successive petition application and reversed the three-judge panel. The en banc decision stayed the killer's execution and permitted him to pursue a second round of Federal habeas-corpus litigation. This second round still is going on today--15 years after the California Supreme Court affirmed the conviction and sentence, and 23 years after the murders.

Section 2244(b)(3)(E) of title 28 states that ``[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.'' To us lesser lawyers, this provision might seem like it means that there shall be no en banc review of the three-judge panel's denial of the application. But the enlightened jurists of the Ninth Circuit have discovered that although subparagraph (E) bars the habeas petitioner from appealing the denial, the en banc court remains free to sua sponte grant review. Some might find it strange that Congress would have intended to bar the en banc courts of appeals from considering a case on the basis of a party's appeal and adversarial briefing, but intended to allow the same courts to hear the same case without a request for review and with no briefing. Typically, briefing is regarded as aiding a court's consideration of a case. Of course, the losing habeas petitioner typically does seek en banc review of the denial of the successive-petition application and file a brief in support of his request. I suppose that we are to trust that the en banc court of appeals does not read that brief, or that if it does so, it puts the brief out of its collective mind so that it might act ``sua sponte'' when it votes on whether to go en banc, lest its actions otherwise appear to violate subparagraph (E)'s clear command that the denial of the application is not ``appealable.''

In this case, I am prepared to believe that the judges did not read the briefs. Despite DNA evidence that linked the habeas petitioner to the murder scene to a degree of certainty of 1 in 310 billion, the en banc Ninth Circuit determined that the petitioner met section 2244's requirement that he present ``clear and convincing evidence that . . . no reasonable factfinder would have found [him] guilty of the underlying offense.'' The Ninth Circuit's theory was that the police might have planted the blood evidence. As Mrs. Hughes noted in her November 10 testimony, however:

Of course, Cooper could not explain how or why police would

plant a minute amount of blood on the t-shirt only to never

use it as evidence against him at trial. Moreover, this

evidence had been in police custody since 1984. Apparently,

these supposed rogue police officers also anticipated the

development of the Nobel Prize-winning science that would

enable Cooper to have the blood tested for DNA. Cooper also

could not explain how the police could have planted his blood

at the crime scene within a few hours of discovering the

bodies, while he was still at large.

The Ninth Circuit first granted sua sponte en banc review of the denial of a successive-petition application in the case of Thompson v. Calderon, 120 F.3d 1045, 9th Cir. 1997, a decision with other procedural irregularities so glaring that the Supreme Court did not even notice this aspect of the decision when it took it up and reversed, Calderon v. Thompson, 523 U.S. 538, 1998. The Sixth Circuit subsequently copied Thompson, thus allowing the Ninth Circuit to attribute this practice to other circuits when it again applied it in the case of the killer of Mary Ann Hughes's son. Section 8(b) of the Streamlined Procedures Act would prevent the Ninth Circuit from doing this in the future. Unfortunately, I was unable to have that provision included in this conference report. I will try again in the future.

This year, it will have been 23 years since Christopher Hughes and Doug, Peggy, and Jessica Ryen were murdered. In 2004, after the Ninth Circuit authorized another round of litigation, a local newspaper described the impact of this crime and the ensuing years of appeals on the surviving family of the victims:

For nearly 20 years, since convicted murderer Kevin Cooper

was sentenced to death for the 1983 slayings of a Chino Hills

family and their young houseguest, families of the victims

have waited silently for the day the hand of justice would

grant them peace.

For those families, the last two decades have seemed like

an eternity.

I lived through a nightmare,'' said Herbert Ryen, whose

brother Douglas Ryen was among those killed, along with

Douglas' wife Peggy, their 11-year-old daughter Jessica, and

her 10-year-old friend Christopher Hughes.

[O]n the morning of Feb. 9, [2004,] the day of Cooper's

scheduled death by lethal injection, word came down that the

9th U.S. Circuit Court of Appeals had decided to block the

execution.

[T]o the Ryen and Hughes families, the stay just hours

before Cooper's scheduled execution at San Quentin State

Prison was nearly incomprehensible. The indefinite delay has

left them in a sort of emotional limbo, questioning whether

the legal system had abandoned them.

The bottom line is that this whole issue is not about Kevin

Cooper . . . it is about the death penalty,'' said Mary Ann

Hughes, the mother of Christoper Hughes. ``We're so mad--mad

because we feel as though the courts turned their back on my

son.''

They (Court of Appeals) are holding us hostage,'' Hughes

said.

For Herbert Ryen and his wife Sue, waiting for justice has

taken an equally destructive toll on their lives. The torment

their family experienced following the murders, and the

subsequent years lost to depression, could never be replaced,

he said from his home in Arizona.

Mary Ann Hughes said the pain her family suffers is only

amplified by the seemingly continuous bombardment of

celebrities campaigning against Cooper's execution. She

wonders who will cry out in anger for the victims.

One former television star and anti-death penalty activist,

Mike Farrell of the popular series MASH, spoke of the case on

a recent news program.

``He claimed that we must feel relieved since the stay of

execution was granted,'' Hughes said. ``How can (Farrell)

have the audacity to say he knows what we are feeling?''

Farrell could not be reached for comment.

Since Christopher's death, the Hughes family has chosen to

remain out of the media spotlight. And until recently, their

efforts were successful, due largely to the support of their

surviving children, family members and a strong network of

close friends, Hughes said.

The court's decision Feb. 9 has re-opened the case, forcing

the families to re-live the nightmare they have fought so

hard to leave behind, they say.

Mary Ann Hughes is left wondering about other families who

have had loved ones taken from them, about the legal battles

they have had to endure in their own quests for justice.

She thinks of the parents of Samantha Runion, the 5-year-

old Orange County girl who was murdered in 2003, and of what

her family could face in the next 20 years.

For Bill Hughes, the anguish is intensified--he will

forever know the pain of walking into the Ryens' home the

morning after the murders, and finding his son, dead and

covered in blood near the Ryens' bedroom door. He was also

the first to discover Joshua Ryen, also drenched in blood,

clinging to life.

``It is a memory he will always have to live with,'' Mary

Ann Hughes said.

Indeed, time has been no friend to the victims' families,

as California's recent appellate court ruling has further

denied them closure, she added.

``What this decision has done to our legal system in

California is unthinkable,'' she said. ``Somewhere along the

line, the courts have got to uphold the law, and we will wait

it out until they do.'' (Sara Carter, ``Families of Murder

Victims Wait for Justice in Cooper Case,'' Inland Valley

Daily Bulletin, February 24, 2004.)

The impact of this litigation on Mary and Bill Hughes and Herbert and Sue Ryen alone makes the handling of this case indefensible. No one, however, has borne the weight of our system of Federal collateral review more heavily in this case than has the one surviving victim of the June 4, 1983 attack. Josh Ryen was 8 years old when he was stabbed in his parents' bedroom and his parents and sister were murdered. He had been Christopher Hughes's neighbor and best friend. As of last year, however, Mary and Bill Hughes had not seen Josh since he was airlifted by helicopter from the scene of the murders to Loma Linda University hospital. Then on April 22, 2005, Josh Ryen appeared at the latest Federal habeas corpus hearing for the man who killed his family. He is now 30 years old. Pursuant to the recently enacted Crime Victims' Rights Act, he gave a brief statement before the court. I will quote Josh Ryen's statement in its entirety:

The first time I met Kevin Cooper I was 8 years old and he

slit my throat. He hit me with a hatchet and put a hole in my

skull. He stabbed me twice, which broke my ribs and collapsed

one lung. I lived only because I stuck four fingers in my

neck to slow the bleeding, but I was too weak to move. I laid

there 11 hours looking at my mother who was right beside me.

I know now he came through the sliding glass door and

attacked my dad first. He was lying on the bed and was struck

in the dark without warning with the hatchet and knife. He

was hit many times because there is a lot of blood on the

wall on his side of the bed.

My mother screamed and Cooper came around the bed and

started hitting her. Somehow my dad was able to struggle

between the bed and the closet but Cooper bludgeoned my

father to death with the knife and hatchet, stabbing him 26

times and axing him 11. One of the blows severed his finger

and it landed in the closet.

My mother tried to get away but he caught her at the bottom

of the bed and he stabbed her 25 times and axed her 7.

All of us kids were drawn to the room by mom's screams.

Jessica was killed in the doorway with 5 ax blows and 46

stabs. I won't say how many times my best friend Chris was

stabbed and axed, not because it isn't important, but because

I don't want to hurt his family in any way, and they are

here.

After Cooper killed everyone, and thought he had killed me,

he went over to my sister and lifted her shirt and drew

things on her stomach with the knife. Then he walked down the

hallway, opened the refrigerator, and had a beer. I guess

killing so many people can make a man thirsty.

I don't want to be here. I came because I owe it to my

family, who can't speak for themselves. But by coming I am

acknowledging and validating the existence of Kevin Cooper,

who should have been blotted from the face of the earth a

long time ago. By coming here it shows that he still controls

me. I will be free, my life will start, the day Kevin Cooper

dies. I want to be rid of him, but he won't go away.

I've been trying to get away from him since I was 8 years

and I can't escape. He haunts me and follows me. For over 20

years all I've heard is Kevin Cooper this and Kevin Cooper

that. Kevin Cooper says he is innocent, Kevin Cooper says he

was framed, Kevin Cooper says DNA will clear him, Kevin

Cooper says blood was planted, Kevin Cooper says the tennis

shoes aren't his, Kevin Cooper says three guys did it, Kevin

Cooper says police planted evidence, Kevin Cooper gets

another stay from another court and sends everyone off on

another wild goose chase.

The courts say there isn't any harm when Kevin Cooper gets

another stay and another hearing. This just shows they don't

care about me, because every time he gets another delay I am

harmed and have to relive the murders all over again. Every

time Kevin Cooper opens his mouth everyone wants to know what

I think, what I have to say, how I'm feeling, and the whole

nightmare floods all over me again: the barbecue, me begging

to let Chris spend the night, me in my bed and him on the

floor beside me, my mother's screams, Chris gone, dark house,

hallway, bushy hair, everything black, mom cut to pieces

saturated in blood, the nauseating smell of blood, eleven

hours unable to move, light filtering in, Chris' father at

the window, the horror of his face, sound of the front door

splintering, my pajamas being cut off, people trying to save

me, the whap whap of the helicopter blades, shouted

questions, everything fading to black.

Every time Cooper claims he's innocent and sends people

scurrying off on another wild goose chase, I have to relive

the murders all over again. It runs like a horror movie, over

and over again and never stops because he never shuts up. He

puts PR people on national television who say outrageous

things and then the press wants to know what I think. What I

think is that I would like to be rid of Kevin Cooper. I would

like for him to go away. I would like to never hear from

Kevin Cooper again. I would like Kevin Cooper to pay for what

he did.

I dread happy times like Christmas and Thanksgiving. If I

go to a friend's house on holidays I look at all the mothers

and fathers and children and grandchildren and get sad

because I have no one. Kevin Cooper took them from me.

I get terrified when I go into any place dark, like a house

before the lights are on. I hear screams and see flashbacks

and shadows. Even with lights on I see terrible things. After

I was stabbed and axed I was too weak to move and stared at

my mother all night. I smelled this overpowering smell of

fresh blood and knew everyone had been slaughtered.

Every day when I comb my hair I feel the hole where he

buried the hatchet in my head, and when I look in the mirror

I see the scar where he cut my throat from ear to ear and I

put four fingers in it to stop the bleeding which, they say,

saved my life. Every year I lose hearing in my left ear where

he buried the knife.

Helicopters give me flashbacks of life flight and my

Incredible Hulks being cut off by paramedics. Bushy hair

reminds me of the killer. Silence reminds me of the quiet

before the screams. Cooper is everywhere. There is no escape

from him.

I feel very guilty and responsible to the Hughes family

because I begged them to let Chris spend the night. If I

hadn't done that he wouldn't have died. I apologize to them

and especially to Mr. Hughes for having to find us and see

his son cut and stabbed to death.

I thank the judge who gave my grandma custody of me because

she took good care of me and loves me very much.

I'm grateful to the ocean for giving me peace because when

I go there I know my mother and father and sister's ashes are

sprinkled there.

Kevin Cooper has movie stars and Jesse Jackson holding

rallies for him, people carrying signs, lighting candles,

saying prayers. To them and you I say:

I was 8 when he slit my throat,

It was dark and I couldn't see.

Through the night and day I laid there, trying to get up and

flee.

He killed my mother, father, sister, friend,

And started stalking me.

I try to run and flee from him but cannot get away,

While he demands petitions and claims, some fresh absurdity.

Justice has no ear for me nor cares about my plight, while

crowds pray for the killer and light candles in the

night.

To those who long for justice and love truth which sets men

free, When you pray your prayers tonight, please

remember me.

Even those who oppose capital punishment--who would like to see it abolished--should not support a system that treats the victims of violent crimes in this way. Creating a fair, efficient, and expeditious system of Federal habeas review should be a bipartisan cause. Indeed, it was President Clinton who noted after the enactment of the 1996 AEDPA reforms that ``it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not.''

I believe that section 507 of the PATRIOT Reauthorization Act, by extending the benefits of chapter 154 to States that provide counsel to capital defendants on postconviction review, will help to achieve that goal. In Murray v. Giarratano, 492 U.S. 1, 1989, the Supreme Court held that States are not constitutionally required to provide counsel in State postconviction proceedings, even in capital cases. In AEDPA, Congress added chapter 154 to title 28 of the United States Code, offering the States an incentive to provide qualified counsel in such proceedings. Among the incentives was an expedited process, with time limits on both the district courts and the courts of appeals.

AEDPA left the decision of whether a State qualified for the incentive to the same courts that were impacted by the time limits. This has proved to be a mistake. Chapter 154 has received an extremely cramped interpretation, denying the benefits of qualification to States that do provide qualified counsel and eliminating the incentive for other States to provide counsel. In

Ashmus v. Woodford, 202 F.3d 1160, 2000, the Ninth Circuit held that California did not qualify because its competency standards were in the State's Standards of Judicial Administration rather than its Rules of Court, a hypertechnical reading of the statute. In Spears v. Stewart, 283 F.3d 992, 1018, 2001, the Ninth Circuit held that even though Arizona had established a qualifying system and even though the State court had appointed counsel under that system, the Federal court could still deny the State the benefit of qualification because of a delay in appointing counsel.

Section 507 of this bill abrogates both of these holdings and removes the qualification decision to a neutral forum. Under new section 2265, the Attorney General of the United States will decide if a State has established a qualifying mechanism, and that decision will be reviewed by the D.C. Circuit, the only Federal circuit that does not handle State-prisoner habeas cases and therefore is not impacted by the qualification decision. The requirements for certification are removed from section 2261(b) and placed in the new section 2265(a). The ``statute or rule of court'' language construed so severely by Ashmus is removed, allowing the States flexibility on how to establish the mechanism within the State's judicial structure. There is no longer any requirement, express or implied, that any particular organ of government establish the mechanism for appointing and paying counsel or providing standards of competency--States may act through their legislatures, their courts, through agencies such as judicial councils, or even through local governments.

Once a State is certified as having a qualifying mechanism, chapter 154 applies to all cases in which counsel was appointed pursuant to that mechanism, and to cases where counsel was not appointed because the defendant waived counsel, retained his own, or had the means to retain his own. ``Pursuant'' is intended to mean only that the State's qualifying mechanism was invoked to appoint counsel, not to empower the Federal courts to supervise the State courts' administration of their appointment systems. Paragraph (a)(3) of new section 2265 forbids creation of additional requirements not expressly stated in the chapter, as was done in the Spears case.

When section 507 was being finalized, I and others were presented with arguments that some mechanism should be created for ``decertifying'' a State that has opted in to chapter 154 but that allegedly has fallen out of compliance with its standards. I ultimately concluded that such a mechanism was unnecessary, and that it would likely impose substantial litigation burdens on the opt-in States that would outweigh any justification for the further review. The States are entitled to a presumption that once they have been certified as chapter-154 compliant, they will substantially maintain their counsel mechanisms. After all, to this day, both California and Arizona have kept up their postconviction counsel mechanisms and standards since the late 1980s and the mid-1990s, respectively, even though neither State has ever received any benefits under chapter 154. This history alone suggests that it is unnecessary to provide a mechanism for ``decertification'' of States that have opted in. Moreover, if such a means of post-opt-in review were created, it inevitably would be overused and abused. In my home State of Arizona, defense attorneys in the past have boycotted the 154 system. The Ninth Circuit later used the delays in appointing chapter 154 counsel stemming from this boycott as grounds for denying Arizona the benefits of chapter 154 in the Spears case. In light of this history, I thought it best to create a system of one-time certification, with no avenues to challenge or attempt to repeal the State's continuing chapter-154 eligibility. The consequences of opting in to chapter 154 should not be perpetual litigation over the State's continuing eligibility. Even if defense lawyers in Arizona do boycott the State's system again, the resultant delays in appointing counsel are unlikely to prejudice their clients, who typically want delay in the resolution of their cases. And the occasional case where such delay might prejudice a petitioner simply is not worth the cost of creating opportunities to force the State to continually litigate its chapter 154 eligibility. Therefore, under section 507, once a State is certified for chapter 154, that certification is final. There is no provision for ``decertification'' or ``compliance review'' after the State has been made subject to chapter 154.

The incentive for a State to try to satisfy chapter 154's counsel requirement is the array of procedural benefits that 154 provides to States defending capital convictions and sentences on Federal habeas. Section 2266 applies a series of deadlines for court action on chapter 154 applications: district courts will be required to rule on such applications 15 months after they are filed.

Allow me as an aside to describe some of the back history of this particular deadline. Current pre-conference-report law gives district courts only 180 days to rule on a 154 petition. This probably is not enough time for district courts to rule on these cases, even with the streamlining provided by the rest of chapter 154. Nor was this reality obscure to Congress in 1996. I worked on developing this provision in my first year in the Senate, in cooperation with the Arizona Attorney General's Office and then-California Attorney General Dan Lungren, among others. The bill's managers initially adopted a 180-day deadline as a bargaining position, but had always intended to extend this limit to 1 year. Unfortunately, at a certain point in the legislative process, other participants decided that they would object to making any change whatsoever to the AEDPA, even to correct scrivener's or grammatical errors--or to liberalize this deadline. Thus we ended up with 180 days. In order to avoid imposing impossible burdens on the district courts, I proposed extending this deadline to 15 months in the SPA, and this extension has been included in section 507. I likely would receive a cool reception from Chief Judge McNamee upon my next visit to the Phoenix Federal courthouse had section 507 given Arizona access to chapter 154 without at least somewhat liberalizing this particular deadline.

Other relevant deadlines imposed by section 2263 are that the court of appeals must rule on a case 120 days after briefing has been completed. That court also must rule on a petition for rehearing and suggestion for rehearing en banc within 30 days of the filing of the petition and any reply. And if the court grants rehearing or goes en banc, it must decide the case within 120 days of doing so.

These deadlines are created by chapter 154 for a reason. In too many cases, Federal courts' resolution of capital habeas petitions has been unreasonably slow. In the Fornoff case, for example, the petition remained before the Federal district court from 1992 to 1999, and that court did not even hold an evidentiary hearing in the case during that time. And this is far from the most extreme example of habeas delay. At the end of her written testimony before the House Crime Subcommittee, Mrs. Fornoff included several examples of other cases involving habeas petitioners who had murdered children and whose Federal habeas proceedings have been unconscionably delayed. All of these examples involved delays in the district courts much longer than the 7-year delay in the case of the man who killed Christy Ann Fornoff: the several cases that Mrs. Fornoff described had remained before one Federal district court for periods of 10 years, 12 years, 13 years, and in one case, for 15 years. I quote the portion of Mrs. Fornoff's testimony describing these cases:

Benjamin Brenneman [was] 12 years old [when he was killed

in] 1981. This case is surprisingly similar to my daughter's

case. Benjamin also was a newspaper carrier, and also was

kidnaped, sexually assaulted, and killed while delivering

newspapers at an apartment complex. Benjamin's killer tied

him up in a way that strangled him when he moved. Police

began by questioning a man in the building who was a prior

sex offender. They found Benjamin's special orthopedic

sandals in his apartment. When they interviewed him, he

admitted that he kidnaped Benjamin, but claimed that ``he was

alive when I left him.'' Police found Benjamin's body in a

nearby rural area the next day. (More information about the

case is available in the court opinion for the State appeal,

People v. Thompson, 785 P.2d 857.)

Benjamin's killer was convicted and sentenced to death.

After the State courts finished their review of the case, the

killer filed a habeas corpus petition in the Federal District

Court in 1990. Today, 15 years later, the

case is still before that same court. In 15 years, the

district court still has not ruled on the case! To put the

matter in perspective, so far, and with no end in sight, the

litigation before that one district court has outlived

Benjamin by three years. This is simply unconscionable.

Michelle and Melissa Davis [were] ages 7 and 2 [when they

were murdered in] 1982. An ex-boyfriend of the sister of

Kathy Davis took revenge on the sister for breaking off their

relationship by killing Kathy's husband and her two young

daughters, Michelle and Melissa. The killer confessed to the

crime. The State courts finished their review of the case in

1991. (People v. Deere, 808 P.2d 1181.) The next year, the

defendant went to the Federal District Court. He remained

there for the rest of the decade, until 2001. When he lost

there, he appealed, and in 2003, the Federal Court of Appeals

for the Ninth Circuit sent the case back to the district

court for another hearing. Today, 14 years after State

appeals were completed, and 23 years after Michelle and

Melissa were taken from their mother, the case remains before

the same district court.

Vanessa Iberri [was] 12 years old [when she was killed in]

1981. Vanessa and her friend Kelly, also 12 years old, were

both shot in the head while walking through a campground in

1981. Kelly survived, but Vanessa did not. The killer did not

dispute that he shot the two girls. (The case is described in

People v. Edwards, 819 P.2d 436.) The State courts finished

their review of the case in 1991--already a long time. The

killer then went to Federal court in 1993. The Federal

District Court finally held an evidentiary hearing in

December 2004, and dismissed the case in March of this year.

Just now, 12 years after the case entered the Federal courts,

and 24 years after the murders occurred, the appeal to the

Federal Court of Appeals is just beginning.

Michelle Melander [was] 5 months old [when she was murdered

in] 1981. Michelle, who was just a five-month-old baby, and

her brother Michael, then 5 years old, were kidnaped in

Parker, Arizona, in July 1981. The killer dropped off Michael

along the road. Michelle's body was discovered six days later

at a garbage dump several miles down the same road. She had

been severely beaten and sexually mutilated. The State court

opinion describes the many injuries that this helpless baby

suffered. The man who committed this horrific crime later

attempted to kidnap and rape a 10-year-old girl.

State courts finished their review of his case in 1991.

(People v. Pensinger, 805 P.2d 899.) The case then went to

Federal District Court in 1992. The defendant raised new

claims that he had never argued in state court, so the

Federal court sent the case back to state court. Five years

later, the case returned to Federal court. Today, the case

remains before the same Federal District Court where the

Federal appeals began in 1992. Baby Michelle would be 24

years old now if she had lived, and there is no end in

sight for her killer's appeals.

Other examples of extreme delays on Federal habeas have been provided to me by State prosecutors. Clarence Ray Allen, who was executed by the State of California earlier this year, had begun his Federal habeas proceedings in 1988--they lasted for over 17 years. Lawrence Bittaker was convicted of four murders, four kidnappings, and nine rapes by the State of California in 1981. He filed a habeas petition in the Federal district court in 1991. That petition still is pending before the same Federal district court today. Alejandro Ruiz was convicted and sentenced to death for three murders in 1980. He initiated Federal habeas proceedings in 1989. Those proceedings still are pending before the same Federal district court today.

I do not mean to single out the Federal district courts for criticism. Inexplicable delays in Federal habeas review of State convictions appear throughout the Federal system. Section 2263's deadlines for issuing court-of-appeals decisions and resolving appellate rehearing petitions also are manifestly necessary. In Morales v. Woodford, 336 F.3d 1136, 9th Cir. 2003, for example, the Ninth Circuit took 3 years to decide the case after briefing was completed. And after issuing its decision, the court took another 16 months to reject a petition for rehearing. Similarly, in Williams v. Woodford, 306 F.3d 665, 9th Cir. 2002, the court waited 25 months to decide the case after briefing was finished--and then waited another 27 months to reject a petition for rehearing, for a total delay of almost 4\1/2\ years after appellate briefing had been completed. Section 2263 would have sharply reduced these delays.

Chapter 154 also creates uniform, clear rules for addressing defaulted and unexhausted claims. It bars all review of any claim that has not been addressed on the merits when the Federal petition is filed, unless the claim meets one of three narrow exceptions. Section 2264, by not extending the chapter 153 exhaustion requirement to chapter 154, allows Federal courts to treat defaulted and unexhausted claims the same way, rather than distinguishing between them and only dismissing the former unless they meet an exception, but returning the latter to State court for further exhaustion. Chapter 154 eliminates the need to ever send a claim to State court for further exhaustion.

As those familiar with the history of chapter 154 are aware, the chapter has its origins in the 1989 Powell Committee Report. See Judicial Conference of the United States, Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Committee Report and Proposal, August 23, 1989. Then-Chief Justice Rehnquist had appointed former Justice Lewis Powell to chair this committee, which was charged with studying problems with Federal habeas corpus review of capital cases. The report identified a lack of finality and unnecessary delays in Federal collateral review of State capital cases, and recommended specific reforms. With a few significant changes, such as a more restrictive standard for holding evidentiary hearings and accommodation of the rule of Teague v. Lane, not to mention the changes that are about to be made by section 507, the Powell Committee Report's recommendations are what is now chapter 154. The Powell Report is thus a very useful guide to understanding chapter 154.

The Powell Committee Report explains, for example, why section 2264 eliminates the exhaustion rule and treats unexhausted claims the same way as defaulted claims. As the Report notes:

The Committee identified serious problems with the present

system of collateral review. These may be broadly

characterized under the heading of unnecessary delay and

repetition. The lack of coordination between the Federal and

state legal systems often results in inefficient and

unnecessary steps in the course of litigation. Prisoners, for

example, often spend significant time moving back and forth

between the Federal and state systems in the process of

exhausting state remedies.

The Powell Committee Report then describes its proposed approach to unexhausted claims:

Federal habeas proceedings under the proposal will

encompass only claims that have been exhausted in state

court. With the counsel provided by the statute, there should

be no excuse for failure to raise claims in state court. The

statute departs from current statutory exhaustion practice by

allowing for immediate presentation of new claims in Federal

court in extraordinary circumstances.

The Powell Committee Report further elaborates on this change to the exhaustion requirement in its comment following the presentation of the language that became section 2264:

If a petitioner asserts a claim not previously presented to

the state courts, the district court can consider the claim

only if one of three exceptions to the general rule listed in

[section 2264(a)] is applicable. . . .

As far as new or ``unexhausted'' claims are concerned,

section [2264] represents a change in the exhaustion doctrine

as articulated in Rose v. Lundy, 455 U.S. 509 (1982). Section

[2264] bars such claims from consideration unless one of the

[subsection (a)] exceptions is applicable. The prisoner

cannot return to state court to exhaust even if he would like

to do so. On the other hand, if a [subsection (a)] exception

is applicable, the district court is directed to conduct an

evidentiary hearing [note that this aspect of the Powell

Committee recommendation is superseded by section 2254(e)]

and to rule on the new claim without first exhausting state

remedies as Rose v. Lundy now requires. Because of the

existence of state procedural default rules, exhaustion is

futile in the great majority of cases. It serves the state

interest of comity in theory, but in practice it results in

delay and undermines the state interest in the finality of

its criminal convictions. The Committee believes that the

States would prefer to see post-conviction litigation go

forward in capital cases, even if that entails a

minor subordination of their interest in comity as it is

expressed in the exhaustion doctrine.

Section 2264 implemented the Powell Committee's approach by limiting Federal habeas review under chapter 154 to ``claims that have been raised and decided on merits in the State courts,'' and, in subsection (b), by declining to extend the exhaustion principles of section 2254(b) and (c) to chapter 154. This system shifts the focus away from and eliminates the need to exhaust State remedies for every claim. Section 2264 does not require exhaustion, but, rather, adjudication on the merits in State court or satisfaction of one of subsection (a)'s exceptions. If an unexhausted or otherwise not-adjudicated-on-the- merits claim can meet

one of those subsection (a) exceptions, then it can go forward, because the exhaustion requirement does not apply. And in any event, even if a chapter 154 prisoner, for whatever reason, still wanted to exhaust State remedies for a new claim after he has filed his Federal petition, he would not be able to do so and then return to Federal court: unlike chapter 153, chapter 154 sharply curtails amendments to petitions and thus would make it all but impossible to amend the newly exhausted claim back into the Federal petition. Under chapter 153's stay-and-abey regime, ``a district court may, in its discretion, allow a petitioner to amend a mixed petition by deleting the unexhausted claims, hold the exhausted petition claims in abeyance until the unexhausted claims are exhausted, and then allow the petitioner to amend the stayed petition to add the now-exhausted claims.'' James v. Pliler, 269 F.3d 1124, 9th Cir. 2001. As the courts have explained, chapter-153 habeas petitioners are permitted to ``stay and abey'' and then come back to Federal court because chapter 153 petitions are subject to the relatively liberal amendment standards of Federal Rule of Civil Procedure 15. See Anthony v. Cambra, 263 F.3d 568, 576-578 (9th Cir. 2000). This system would not be possible under chapter 154's section 2266(b)(3)(B), however. That subparagraph would bar the post-exhaustion amendment that restores the newly exhausted claims unless the amendment could meet the exacting standards of the successive-petition bar.

Instead of staying and abeying and further exhausting, the chapter 154 petitioner will go forward: his claims in the Federal petition will have either been raised and adjudicated on the merits in State court, they will satisfy one of the section 2264(a) exceptions, or they will be dismissed, and Federal adjudication of the merits of the claims that remain before the court will commence immediately. This streamlined approach is what makes chapter 154's deadlines for district court adjudication possible. Obviously, if applicants were expected to use the stay-and-abeyance system, and proceedings were put on hold so that another round of State-court review could be completed, district courts would not be able to resolve chapter 154 petitions within 15-month limit, much less the 180 days required prior to 2006, that is imposed by section 2266.

Section 2264's abolition of stay-and-abey would have made a real difference in some of the cases that I have described. For example, in the case of the man who killed Mary Ann Hughes's son, eliminating the need to return to State court to exhaust new claims would have reduced the delay in the Federal proceedings by nearly 3 years. And in the case of Michelle Melander, the baby girl who was killed in 1981 whose case is described in Carol Fornoff's testimony, the section 2264 system would have eliminated 5 years of delay from the ongoing Federal proceedings in that case.

By requiring that chapter 154 courts only consider claims adjudicated on the merits in the State courts, and limiting the exceptions to that rule to those enumerated in section 2264(a), chapter 154 also effectively eliminates use of several other exceptions to the procedural-default doctrine that I believe have proven problematic. The chapter 153 procedural-default doctrine derives from the Supreme Court's own rules for allowing review of a State court judgment when respondent asserts the presence of an adequate and independent State bar to review of the Federal question. These exceptions are numerous, complex, and in some cases they are overly broad and simply do not provide an adequate justification for ignoring State procedural rules. It generally is not a significant burden on the States that the U.S. Supreme Court has granted itself such broad and amorphous authority to override State procedural requirements. The Supreme Court only decides a limited number of cases every year. But on Federal habeas, where every State criminal conviction effectively is subject to ``appeal of right'' in Federal court, application of the full panoply of the U.S. Supreme Court's exceptions to the adequate-and-independent State grounds rule has become burdensome and unwieldy.

One exception to the adequate-and-independent State grounds doctrine that has proved particularly problematic in the habeas context is the rule that a State procedural bar is not adequate to preclude further Federal review if the procedural requirement is ``inconsistently applied'' by the State courts. Viewed literally and without regard to the policies underlying the procedural default doctrine, the ``inconsistently applied'' standard can have a disturbingly broad sweep. This standard can be understood to void any State procedural rule that has been altered in any way or that is not strictly enforced in absolutely every case.

Unfortunately, some lower Federal courts have adopted this draconian interpretation. For example, the Ninth Circuit has held that if a State's highest court clarifies a State procedural rule or reconciles competing interpretations of that rule, then that rule was ``inconsistently applied'' prior to such clarification. As a result, the Ninth Circuit deems the State rule ``inadequate'' to be enforced on Federal habeas review prior to that point.

Another problematic area of chapter-153 procedural-default jurisprudence is particular Federal courts' interpretation of the ``independence'' requirement. A State procedural decision cannot serve as a bar to further review on the merits if it is not truly procedural--i.e., if it is in reality a decision on the merits of the Federal claim. Many State courts have incorporated into their procedural rules--particularly their deadlines for filing claims--an ``ends of justice,'' ``plain error,'' or ``manifest injustice'' exception that allows State courts to hear the occasional egregious but untimely or otherwise improper claim. Presumably, in applying such an exception, these State courts perform at least a cursory review of the merits of every petition, even those that clearly are untimely. Technically, because these State courts conduct such review, their deadlines are not purely ``procedural''--they involve some review, however fleeting, of the merits--and therefore these deadlines are not ``adequate'' for habeas purposes. The Ninth Circuit has adopted this rather extreme interpretation of the adequacy requirement.

It is difficult to understate the perverse consequences of the more extreme interpretations of the exceptions to the chapter-153 procedural default doctrine. By punishing State courts for ever departing from or even clarifying their procedural rules, or for exercising discretion to hear egregious cases, these interpretations deter State courts from making the kind of commonsense decisions that are essential to preventing a miscarriage of justice. No system of procedure will ever be perfect; every system will always require some exceptions in order to operate fairly and efficiently. Yet under some Federal courts' interpretations of procedural default, unless the State court adopts a zero-tolerance approach to all untimely claims, no matter how worthy of an exception, the State procedural rule is at risk of being voided for all Federal habeas cases.

In Arizona, litigants have seen the inevitable consequences of the Ninth Circuit's no-good-deed-goes-unpunished rule: when liberality towards criminal defendants is held against the State on Federal habeas, the State will outlaw such liberality. In his August 19, 2005, answers to written questions submitted to him by Senator Leahy, Arizona prosecutor John Todd described the effect of the Ninth Circuit's application of an extreme ``independence'' requirement:

as a result of Federal court rulings, the Arizona Legislature

repealed the requirement that all criminal cases be reviewed

by the state appellate courts for fundamental error. When an

appellate court in Arizona reviewed the entire record for

fundamental error, it did not matter that the defendant

procedurally defaulted the issue. If the error were serious

enough, even if it was only an error of state law, a

defendant would receive relief in state court through this

fundamental error review. Fearing that the Ninth Circuit's

decision in Beam v. Paskett, 3 F.3d 1301, 1305 (9th Cir.

1993), would open Arizona criminal cases to endless

litigation, the Arizona Legislature repealed Ariz. Rev. Stat.

Ann. Sec. 13-4035 in 1995.

This is not a result that anyone should want. States should not be discouraged from affording broad review to a prisoner's claims in State court or exercising flexibility in their application of procedural rules. Yet in the Ninth Circuit, State executives would be ill advised to adopt any procedural rule that affords courts any discretion

or includes any plain-error type exceptions.

The Ninth Circuit has accounted for a disproportionate share of all Federal court of appeals decisions identifying exceptions to the chapter-153 procedural default doctrine, and has issued several particularly extreme interpretations of the doctrine. The States in that circuit effectively are subject to a different habeas regime. The Ninth Circuit has now voided State procedural rules in six of the States under its jurisdiction. It has found State procedures either inadequate or insufficiently independent to limit Federal review in California, Oregon, Arizona, Washington, Idaho, and Nevada.

Section 2264 eliminates these problems. Rather than incorporating the procedural-default doctrine and all of its baggage, it starts fresh; it bars all claims not raised and decided on the merits unless one of three narrow exceptions applies. It does not matter under chapter 154 that a Federal court thinks that the State's rules are not ``adequate'' or are not sufficiently ``independent,'' because the adequacy and independence of the State rule no longer are the basis for barring review of the claim in Federal court. Under chapter 154, that basis will be section 2264, which employs its own standard and exceptions. And under that section, no longer will the labyrinthine body of caselaw governing the Supreme Court's certiorari jurisdiction over cases decided on State-law grounds be applied to every State capital conviction on Federal collateral review.

Section 2264 also eliminates the overused ``ineffective assistance gateway'' that is a frequent feature of chapter 153 litigation. Under chapter 153, litigants often seek to recast claims that they know are defaulted as claims of ineffective assistance of counsel. They argue that the default should be excused because State trial or appellate counsel was ineffective. Chapter 154 does not include this exception. If a claim of ineffective assistance of trial or appellate counsel itself was raised and decided on the merits in State court, that same claim can be raised in Federal court. But otherwise, chapter 154 charges petitioners with the acts of their attorneys. The whole point of chapter 154 is to persuade States to establish mechanisms for providing defendants with qualified postconviction counsel. If a State has opted in to chapter 154, the petitioner presumptively received qualified counsel at all stages of his State proceedings, and opportunities to litigate issues of counsel competency should be scaled back. If the factual predicate of a claim could have been discovered through the exercise of due diligence, then per paragraph (3) of section 2264(a), regardless of what the attorney did or did not do, that claim does not qualify for an exception to the main rule of 2264(a) and it cannot be raised in Federal court.

It also bears mention that section 507 includes a retroactivity provision that my Arizona colleague, Congressman Flake, thought particularly important. New section 2265(a)(2) provides that the date that a State established the mechanism by which it qualifies for chapter 154 ``shall be the effective date of the certification under this subsection.'' This was intended to ensure that if a State established a mechanism for providing qualified counsel to capital defendants on postconviction review prior to the formal designation of a State as chapter-154 eligible--or even prior to the enactment of chapter 154--then all capital defendants who received counsel after the establishment of that mechanism shall be subject to chapter 154, even if they filed a Federal petition before the State is certified as chapter-154 eligible.

I had originally thought this provision sufficient to ensure that a State would receive the full benefits of chapter 154 even for Federal petitions filed before the State is certified as chapter-154 compliant. But questions of retroactivity often prove more complicated than they first appear. Representative Flake raised with me the question of whether even if a Federal petition filed precertification is deemed subject to chapter 154, Federal courts could still find that the procedural benefits of chapter 154 only apply to that case on a going- forward basis. In other words, the effective-date provision guarantees that even a prefiling petition is now governed by chapter 154, but chapter 154's procedural restrictions might be construed to not apply to what is already in that petition. For States such as Arizona, this would mean--assuming, of course, that I am correct in predicting that the U.S. Attorney General will find Arizona 154-eligible--that section 507 does not completely undo the damage done by the Spears case. It is possible, for example, that in Spears itself or in subsequent cases that should have been subject to chapter 154, additional claims have been amended into the petition that would not satisfy 2266(b)(3)(B), or unexhausted claims already may have been returned to State court for further exhaustion and the Federal petition stayed.

Given that stay-and-abey sometimes adds 5 years to the time that it takes to address a Federal petition, Mr. Flake and I decided that it should be made clear that the whole petition would be subject to chapter 154, not just new claims and amendments added after the State is certified as 154 eligible. To that end, subsection (d) was inserted into the middle of section 507 to ensure that the 154 changes-- including the effective-date provision--would operate against pending cases. In effect, this provision guarantees the even for a pending case, the effective date provision applies retroactively and the case is regarded as always having been subject to chapter 154. Thus once a State is certified as 154-eligible and a particular petition falls within that chapter's sweep, the courts should review the whole petition and treat it as if chapter 154 had been applicable since before the petition was filed. Claims added via post-answer amendments should be reviewed for consistency with section 2266(b)(3)(B). If they do not qualify, they should be struck, just as they would have been if the petition had been governed by chapter 154 at the time when the amendment was filed. And most importantly, no unexhausted claim in a chapter-154 petition may be permitted to serve as a basis for ``stay and abey.'' Either that claim will satisfy one of the 2264(a) exceptions, and review of that claim and ``raised and decided'' claims in the petition will go forward immediately, or the claim will not meet the exception, it will be dismissed, and review of the rest of the proper claims in that petition will go forward immediately. In either event, review of all Federal petitions made subject to chapter 154 will go forward immediately, though the petitioner may, of course, continue to simultaneously pursue State review of the unexhausted claim, and the chapter 154 time deadlines will start running. Per paragraph (d)(2), that deadline does not run until section 507 is enacted with regard to a particular State--meaning that it does not run until the State is certified as chapter-154 eligible pursuant to section 507. Under section 507, once a petition is made subject to chapter 154, it can no longer be held in abeyance so that the petitioner can pursue State exhaustion of unexhausted claims.

Finally, I would like to thank those individuals who have been important to the enactment of section 507. This group includes Mike O'Neill and Brett Tolman of Chairman Specter's staff, Mike Volkov of Chairman Sensenbrenner's staff, and Brian Clifford of Congressman Flake's staff. I also thank Kent Scheidegger of the Criminal Justice Legal Foundation, who came up with the idea that became section 507. Finally, I also thank Chairman Specter, who was willing to accommodate me on a matter of importance to prosecutors and crime victims in the State of Arizona by including section 507 in this conference report.

I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent that I be recognized at 2:15 p.m. for up to 15 minutes to make some final remarks on this bill.

Mr. President, yesterday the Senate took further steps to reauthorize the PATRIOT Act without the fundamental checks and balances that so many of us believe are needed. To bring us back to first principles, I read aloud the Constitution and the Bill of Rights. And to remind us of the broad, bipartisan support for amending the PATRIOT Act all over this country, I read the eight statewide resolutions that have passed in the last few years expressing concerns about the PATRIOT Act. I also read some of the nearly 400 local resolutions that have passed--the four resolutions from my own State of Wisconsin. Today I want to continue by reading some additional items to take my colleagues back to how hard we fought in November and December to stop the flawed conference report, and how many Americans wanted us to do better than we have done this week.

Let me start with a few editorials. The resolutions passed by State and city governments that I read here on the floor yesterday are not the only way by which Americans have expressed their concerns about the PATRIOT Act. The Fourth Estate has weighed in too, with many newspapers running editorials or columns criticizing the PATRIOT Act's effect on Americans' freedom. And not just a few newspapers, but dozens and dozens, from all across the United States. From major national newspapers to small, local newspapers. Papers in big cities and small towns. All concerned about the erosion of civil liberties under the PATRIOT Act. I am going to read just a few representative editorials.

From the Orlando Sentinel, August 17, 2005; headline: Fighting the terrorists.

Our position: Patriot Act changes need to be tough but

protect against abuse of power.

The U.S. House and Senate have taken different approaches

to renewing the USA Patriot Act, the sweeping anti-terrorism

law that otherwise would expire at year's end. The Senate's

more thoughtful, bipartisan approach deserves to prevail when

members begin meeting next month to reconcile their competing

proposals.

The House proposal leaves the Patriot Act's expanded

surveillance and law-enforcement powers largely intact. It

does not accommodate legitimate concerns raised by both

liberals and conservatives about inadequate checks on those

powers.

The Senate proposal, passed unanimously, includes what

Judiciary Chairman Arlen Specter called ``responsible changes

to safeguard civil liberties.'' It would continue to let the

government obtain secret court orders to seize medical,

financial, library and other records, but only records tied

to suspected terrorists or spies, or people in contact with

them. It would require the government to notify targets of

secret search warrants after seven days, though a judge could

extend that deadline.

Also under the Senate proposal, two of the most

controversial Patriot Act provisions--to seize records

secretly and conduct roving wiretaps--would expire in 2009

unless renewed. That would encourage Congress to re-evaluate

those provisions in four years.

The Senate proposal would not stop the government from

using the powers in the Patriot Act to go after terrorists.

But its changes would better protect ordinary Americans from

possible abuse of those powers.

Next, The Los Angeles Times; editorial, ``Checks on the Patriot Act,'' from November 21, 2005.

The Patriot Act, a 4-year-old federal law that gave

investigators unprecedented power to search for and chase

terrorists, is a case study in bad lawmaking. Angry and

anxious to respond to the atrocities of 9/11, Congress

hastily approved a measure that exposed an indeterminable

number of Americans to unreasonable searches and intrusive

snooping for the sake of the war on terror. The law provided

few of the legal system's usual checks to protect against

investigators abusing the new capabilities.

The measure eventually generated outrage on both sides of

the political spectrum, as well as from corporations,

libraries and retailers forced to report secretly on the

activities of employees and customers. Nevertheless, in their

haste to wrap up business before the Thanksgiving recess,

lawmakers were poised last week to reauthorize the Patriot

Act, which is due to expire at the end of the year, with only

minor changes.

That was the outcome sought by the White House and its

allies in the House. A bipartisan group of six senators

stopped the bill, however, by threatening a filibuster. They

demanded that House and Senate negotiators produce a

reauthorization bill with more of the safeguards that the

Senate had approved earlier this year.

The senators' demands are modest, recognizing that law

enforcement agencies do need enhanced powers to battle

elusive and technologically sophisticated groups of

terrorists. But the public also needs to be able to review

how those powers have been used. And people need more

assurance that the information vacuumed up by their

government is actually connected to a suspected terrorist or

spy.

In particular, the bill should do away with the automatic,

permanent gag orders that allow investigators to hide forever

their demands for records from banks, libraries, doctors and

other sources. And the most controversial provisions of the

Patriot Act should be extended for a much shorter period than

the seven years suggested by House and Senate conferees.

When Congress approved the Patriot Act, it put its trust in

prosecutors and investigators to use their expanded powers

responsibly. It now appears that trust was misplaced.

Authorities have gone on a snooping frenzy since 2001,

issuing more than 30,000 secret demands for records per year,

according to the Washington Post. And unless the law is

changed, no one will ever know whether those records should

have been gathered, or what has been done with them.

Americans want to trust their government. It is their

government's foundation, its system of checks and balances,

that enables that trust.

Now, from The Pittsburgh Post-Gazette, entitled, ``True patriots: Some in Congress won't let terror limit freedom,'' from November 30, 2005.

Long before the 9/11 terrorist attacks and the so-called

Patriot Act that was passed in reaction and fear, a man with

stellar patriotic credentials who championed the cause of

liberty had words of wisdom for his fellow Americans: ``They

that can give up essential liberty to obtain a little

temporary safety deserve neither liberty nor safety.''

What Benjamin Franklin said in his own day remains a

telling commentary for our time. Indeed, these words could

have been written specifically about the Patriot Act, which

went too far in trying to accomplish a legitimate goal: to

remove some of the bureaucratic and legal barriers that stood

in the way of hunting down terrorists.

But increasing government power while decreasing judicial

oversight was a troubling exercise in a free country, and

Congress realized as much when it passed the Patriot Act,

including sunset provisions that could be considered in

calmer days. That time has come and plenty of true patriots

have stood up and offered suggestions that would make the

Patriot Act more respectful of civil liberties and the

American ideal of freedom.

This is one issue that provides common ground for liberals

and conservatives. When a government has the power to search

a suspect's premises without his knowledge and can retrieve

personal business and library records of people without

showing any connection to terrorism, then the alarms that go

up are for Americans regardless of party. That is why, for

example, former Republican Rep. Bob Barr, the scourge of

President Clinton, finds himself on the same side of the

fight as the American Civil Liberties Union.

Despite the bipartisan qualms about reauthorizing the

Patriot Act without proper amendment, the Bush administration

has not been sympathetic. Trust us, it says implicitly. But

because paranoia animates policy for this White House, the

use of the Patriot Act is bound to go too far and impinge on

basic civil liberties. This is an administration, after all,

that feels threatened when Sen. John McCain and others want

to outlaw torture.

Sadly, ordinary Americans can't naively trust their freedom

to such hands. The Patriot Act needs to have reasonable

checks and balances written into it. Of the two bills to

reauthorize the act, the Senate version accomplishes this

better than the House measure. A tentative agreement has been

reached on reconciling the bills, but principled opposition

remains.

Six senators--three Republicans (Larry Craig of Idaho, John

Sununu of New Hampshire and Lisa Murkowski of Alaska) and

three Democrats (Richard Durbin of Illinois, Russell Feingold

of Wisconsin and Ken Salazar of Colorado)--have emerged to

resist accepting a version of the Patriot Act that doesn't

meet their legitimate concerns.

This isn't about being pro-terror but pro-American. It is

possible to keep essential liberty and obtain safety. For

Americans to deserve both, the true patriots on Capitol Hill

need support.

From the New York Times, just recently, on February 11, 2006, entitled, ``Another Cave-In on the Patriot Act.''

The Patriot Act has been one of the few issues on which

Congress has shown backbone lately. Last year, it refused to

renew expiring parts of the act until greater civil liberties

protections were added. But key members of the Senate have

now caved, agreeing to renew these provisions in exchange for

only minimal improvements. At a time when the public is

growing increasingly concerned about the lawlessness of the

Bush administration's domestic spying, the Senate should

insist that any reauthorization agreement do more to protect

Americans against improper secret searches. When the Patriot

Act was passed after Sept. 11, 2001, Congress made some of

its most far-reaching provisions temporary so it would be

able to reconsider them later on. Those provisions were set

to expire last December, but Congress agreed to a very short

extension so greater civil liberties protections could be

added. This week, four key Republican senators--later backed

by two Democrats--said that they had agreed to a deal with

the White House. It is one that does little to protect

Americans from government invasions of their privacy.

One of the most troubling aspects of the Patriot Act is the

``gag order'' imposed by Section 215, which prohibits anyone

holding financial, medical and other private records of

ordinary Americans from saying anything when the government

issues a subpoena for those records. That means that a person

whose records are being taken, and whose privacy is being

invaded, has no way to know about the subpoena and no way to

challenge it. Rather than removing this gag order, the deal

keeps it in place for a full year--too long for Americans to

wait to learn that the government is spying on them. Even

after a year, someone holding such records would have to meet

an exceedingly high standard to get the gag order lifted. It

is not clear that this change has much value at all.

The compromise also fails to address another problem with

Section 215: it lets the government go on fishing

expeditions, spying on Americans with no connection to

terrorism or foreign powers. The act should require the

government, in order to get a subpoena, to show that there is

a connection between the information it is seeking and a

terrorist or a spy.

But the deal would allow subpoenas in instances when there

are reasonable grounds for simply believing that information

is relevant to a terrorism investigation. That is an

extremely low bar.

One of the most well-publicized objections to the Patriot

Act is the fact that it allows the government to issue

national security letters, an extremely broad investigative

tool, to libraries, forcing them to turn over their patrons'

Internet records. The wording of the compromise is unclear.

If it actually says that national security letters cannot be

used to get Internet records from libraries, that would be an

improvement, but it is not clear that it does.

In late December, it looked as if there was bipartisan

interest in the Senate for changing the worst Patriot Act

provisions and standing up for Americans' privacy rights. Now

the hope of making the needed improvements has faded

considerably.

Clearly the PATRIOT Act touched a nerve, and has continued to do so for 4 years now. While I support a strong fight against terrorism, we cannot sacrifice our citizens' basic liberties in that fight. To do so would weaken this country.

Next I want to turn back to some PATRIOT Act resolutions. It was not just State and city governments that passed resolutions these past several years. Colleges and universities across the United States have become actively involved in the PATRIOT Act debate as well. Across the country, 53 resolutions have been passed on 44 campuses advocating for substantial changes to the PATRIOT to protect the civil liberties of the American people. From Mt. Holyoke, a small private all-women's liberal arts school in South Hadley, MA, to the University of Texas at Austin, one of the largest public universities in the United States, students and faculties alike are coming together to pass these resolutions. Resolutions have been passed on college campuses in states from California to Kentucky. I will now read a few of these campus resolutions.

A resolution concerning the protection of students' civil

rights in the wake of the passage of the USA PATRIOT Act.

University of Texas at Austin Student Government

WHEREAS: The United States Congress passed the Uniting and

Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism Act (USA PATRIOT Act;

Public Law 107-56) on October 25, 2001, championed by U.S.

Attorney General John Ashcroft;

WHEREAS: The 4th amendment of the Bill of Rights

establishes: The right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon probable

cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

2. WHEREAS: According to Mayor Pro Tem Jackie Goodman's

Austin City Council resolution regarding the PATRIOT Act,

``fundamental rights granted by the United States

Constitution are threatened by actions taken at the Federal

level, notably by passage of certain sections of the `U.S.A.

P.A.T.R.I.O.T. Act,' other acts and executive orders which,

among other things:

Grant potential unchecked powers to the Attorney General

and the U.S. Secretary of State to designate legal domestic

groups as ``terrorist organizations'' by overly broad

definitions, and implying restrictions to Constitutionally

protect First Amendment rights of speech and assembly by

reference, such as political advocacy or the practice of a

religion; while lifting administrative regulations on covert,

surveillance counter-intelligence operations;

Violate the First and Fourth Amendments to the Constitution

through the expansion of the government's ability to wiretap

telephones, monitor e-mail communications, survey medical,

financial and student records, and secretly enter homes and

offices without customary administrative oversight or without

showing probable cause;

Give law enforcement expanded authority to obtain library

records, and prohibits librarians from informing patrons of

monitoring or information requests;

Violate the Fifth, Sixth and Fourteenth Amendments to the

Constitution in establishing secret military tribunals, and

in subjecting citizens and non citizens to indefinite

detention without being allowed an attorney, without being

brought to trial, and without even being charged with a

crime;

Authorize eavesdropping on confidential communications

between lawyers and their clients in federal custody;''

WHEREAS: In the October 1997 edition of Global Issues,

available as Vol. 2, No. 4 of the USIA Electronic Journal,

then Senator John Ashcroft (R-MI) wrote in an article

entitled, ``Keep Big Brother's Hands Off the Internet,''

The FBI wants access to decode, digest and discuss

financial transactions, personal e-mail, and proprietary

information sent abroad--all in the name of national

security. . . This proposed policy raises obvious concerns

about American's privacy. . . The protections of the Fourth

Amendment are clear. The right to protection from unlawful

searches is an indivisible American value. Two hundred years

of court decisions have stood in defense of this fundamental

right. The state's interest in crime-fighting should never

vitiate the citizens' Bill of Rights. . .

The administration's interest in all e-mail is a wholly

unhealthy precedent, especially given this administration's

track record on FBI files and IRS snooping. Every medium by

which people communicate can be subject to exploitation by

those with illegal intentions. Nevertheless, this is no

reason to hand Big Brother the keys to unlock our e-mail

diaries, open our ATM records, read our medical records, or

translate our international communications. . .

WHEREAS: Eva Poole, President of the Texas Library

Association, the oldest and largest organization representing

Texas libraries, including university and academic libraries,

stated in a personal e-mail by request:

The USA PATRIOT Act is just one of several troubling

policies that compromise the public's privacy rights.

Enhanced surveillance powers permitted under the provisions

of the Act license law enforcement officials to peer into

Americans' most private reading, research, and

communications. Several of the Act's provisions not only

violate the privacy and confidentiality rights of those using

public libraries, but take no consideration of constitutional

checks and balances as it authorizes intelligence agencies to

gather information in situations that may be completely

unconnected to a potential criminal proceeding.

Librarians do not know how the USA PATRIOT Act and related

measures have been applied in libraries because the gag order

bars individuals from making that information public. Equally

troubling is the fact that librarians are not allowed to

comment on FBI visits to examine library users' Internet

surfing and book-borrowing habits. I oppose any use of

governmental power to suppress the free and open exchange of

knowledge and information.

WHEREAS: The Student Governments of the University of

California at Berkeley and Santa Barbara, University of

Alaska Fairbanks, University of Washington, Washington State

University, University of Wisconsin and Southern Oregon

University have passed resolutions denouncing the USA PATRIOT

Act;

THEREFORE BE IT RESOLVED that the Student Government of the

University of Texas at Austin has been, and remains,

absolutely committed to the protection of civil rights and

civil liberties for all of its students and affirms its

commitment to embody democracy and to embrace, defend, and

uphold the inalienable rights and fundamental liberties

granted to students under the United States and Texas

Constitutions;

BE IT FURTHER RESOLVED that the Student Government of the

University of Texas at Austin firmly calls upon the Austin

Police Department, University of Texas Police Department,

Federal Bureau of Investigation and Joint Terrorism Task

Force to refrain from and, in certain cases, discontinue the

surveillance of individuals, groups of individuals, and

organizations based solely on their participation in

activities protected by the First Amendment to the United

States Constitution, such as political advocacy or the

practice of a religion without reasonable and particularized

suspicion of criminal conduct unrelated to the activity

protected by the First Amendment of the United States

Constitution;

BE IT FURTHER RESOLVED that Student Government respectfully

requests that Dr. Fred Heath, Vice Provost of General

Libraries, direct all UT libraries to post in a prominent

place within the library a notice as follows:

``WARNING: Under Section 215 of the federal USA PATRIOT Act

(Public Law 107-56), records of books and other materials you

borrow from this library may be obtained by federal

agents. This law also prohibits librarians from informing

you if records about you have been obtained by federal

agents. Questions about this policy should be directed to

Attorney General John Ashcroft, Department of Justice,

Washington, DC 20530.'';

BE IT FURTHER RESOLVED that the Student Government of the

University of Texas at Austin commits to organizing a forum

addressing student privacy concerns consisting of a panel of

relevant administrators and community members;

BE IT FURTHER RESOLVED that the Student Government of the

University of Texas at Austin firmly calls upon UTPD to

preserve and uphold students' freedom of speech, assembly,

association, and privacy, the right to counsel and due

process in judicial proceedings, and protection from

unreasonable searches and seizures, even if requested to do

otherwise in accordance with new federal law, which infringes

upon such rights granted to federal or state law enforcement

agencies under powers assumed by the USA PATRIOT Act by

Executive Order;

BE IT FURTHER RESOLVED that the Student Government of the

University of Texas at Austin calls upon the Austin City

Council to do everything in its power to protect and defend

the rights and liberties of University of Texas at Austin

students who reside within jurisdiction of the City of

Austin.

Next:

Associated Students of Mount Holyoke College

A Resolution Affirming Civil Rights and Liberties in Light of the USA

PATRIOT Act

WHEREAS, Mount Holyoke College has a diverse student and

faculty body, including many students from outside the United

States, and many students with diverse cultural backgrounds

whose contributions to this community are vital to the

culture and civic character of Mount Holyoke College; and

WHEREAS, the preservation of civil rights and civil

liberties is a pillar of American society and is essential to

the well-being of any democracy, particularly during times of

conflict when such rights and liberties, especially those of

immigrants and ethnic minorities, may be threatened,

intentionally or unintentionally; and

WHEREAS the preservation of civil rights and liberties is

essential to the well-being of a democratic society; and

WHEREAS, The community of Mount Holyoke College denounces

terrorism, and acknowledges that federal, state and local

governments have a responsibility to protect the public from

terrorist attacks in a rational, deliberative and lawful

fashion to ensure that any new security measure enhances

public safety without impairing constitutional rights or

infringing upon civil liberties; and

WHEREAS, Mount Holyoke College as a private institution, is

also responsible to protect its community, including all

faculty, staff, and students, whether they be residents or

non-residents; and

WHEREAS, the United States Congress passed the Uniting and

Strengthening America by Providing Appropriate Tools Required

to Intercept and Obstruct Terrorism Act (USA PATRIOT Act;

Public Law 107-56) on October 26, 2001; and

WHEREAS, some provisions of the USA PATRIOT Act and other

related federal orders and measures may pose a threat to the

civil rights and civil liberties of all students, staff and

faculty at Mount Holyoke College, including natural citizens

of the United States, and particularly, but not limited to,

those who are of Middle Eastern, Muslim or South Asian

descent; by:

a. Reducing judicial supervision of telephone and Internet

surveillance.

b. Expanding the government's power to conduct secret

searches without warrant.

c. Granting power to the Secretary of State to designate

domestic groups, including political and religious groups, as

``terrorist organizations''.

d. Granting power to the Attorney General to subject non-

citizens to indefinite detention or deportation even if they

have not committed a crime.

e. Granting the Federal Bureau of Investigation (FBI)

access to sensitive medical, mental health, financial and

educational records about individuals without having to show

evidence of a crime.

f. Granting the FBI the power to compel libraries and

bookstores to produce circulation or book purchase records of

their patrons, and forbidding disclosure that such

records have been requested and produced; and

WHEREAS, law enforcement and security measures that

undermine fundamental constitutional rights do irreparable

damage to the American institutions and values of equal

justice and freedom that the students staff and faculty of

Mount Holyoke College hold dear; and

WHEREAS, the Senate of the Associated Students of Mount

Holyoke College believes that there is not and need not be

conflict between security and the preservation of liberty,

and that students of Mount Holyoke College can maintain their

privacy and be both safe and free;

Mr. President, every day children across this country learn about the role of their Government and how it is intended to function. I have also collected a handful of textbooks used by children from elementary school up through high school to see what they have to say about the role of Government. In looking at these books, I notice that each of them at different reading levels discuss the Government as a whole, the importance of the Constitution as the foundation of our Government, and the importance of checks and balances and separation of powers. Each of these books, at whatever learning level or reading level, teaches that the Government does not have endless, unchecked powers over the people it is intended to protect.

I started my presentation after cloture was invoked by reading the Constitution of the United States. I wish to conclude for now by reading a very brief portion of one of these books. It is entitled ``National Government, a Kids' Guide.'' ``Separation of Powers.''

The people who wrote the U.S. Constitution wanted to make

sure that the leaders of the government did not have too much

power. The writers spread the power among three separate

branches of government that work together to govern the

country. This is called separation of powers.

The executive branch is lead by the president of the United

States. This part of the government is responsible for making

sure the laws are carried out, or executed.

The legislative branch is made up of the people in the

Senate and the House of Representatives. Together, the Senate

and the House of Representatives are called the United States

Congress. The legislative branch makes the laws.

The third branch is the judicial branch, which is led by

the Supreme Court. The judges--called justices--of the

Supreme Court explain the laws and decide if any laws are not

fair.

Each branch of the government has its own job to do, but

the three branches have to work together. The people who

wrote the Constitution were very careful to make sure that

each branch of the government could check up on the others. A

system called checks and balances keeps different parts of

the government from having too much power.

Mr. President, I ask unanimous consent that Senator Byrd be recognized at 12:30 p.m. today.

Mr. President, I reserve the remainder of my time.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, in a few minutes, the Senate will conclude a process that began over a year ago by reauthorizing the PATRIOT Act. I will have a few closing remarks, but first I want to take this opportunity to thank the extraordinary staff who have worked on this bill for so long. These men and women, on both sides of the aisle, have worked extremely hard, and

they deserve to be recognized. Before I yield the floor, I will recognize the staff by name.

Mr. President, beginning in November, when we first saw a draft of the conference report, I have spoken at length about the substance of this bill. I hoped that when we started the task of reauthorizing the PATRIOT Act at the beginning of last year, the end product would be something the whole Senate could support. We had a real chance to pass a bill that would both reauthorize the tools to prevent terrorism and fix the provisions that threaten the rights and freedoms of innocent Americans.

This conference report, even as amended by the bill incorporating the White House deal that we passed yesterday, falls well short of that goal. And so, of course, I will vote no.

Protecting the country from terrorism while also protecting our rights is a challenge for every one of us, particularly in the current political climate, and it is a challenge we all take seriously. I know many Senators who will vote for this reauthorization bill in a few minutes would have preferred to enact the bill we actually passed, without a single objection, in the Senate in July of last year.

I appreciate that so many of my colleagues came to recognize the need to take the opportunity presented by the sunset provisions included in the original PATRIOT Act to make changes that would better protect civil liberties than did the law we enacted in haste in October 2001. Nevertheless, I am deeply disappointed we have largely wasted this opportunity to fix the obvious problems with the PATRIOT Act.

The reason I spent so much time in the past few days talking about how the public views the PATRIOT Act was to make it clear that this fight was not about one Senator arguing about the details of the law. This fight was about trying to restore the public's trust in our Government. That trust has been severely shaken as the public learned more and more about the PATRIOT Act which we passed with so little debate in 2001 and as the administration resisted congressional oversight efforts and repeatedly politicized the reauthorization process. The revelations about secret, warrantless surveillance last year only confirmed the suspicions of many in our country that the Government is, unfortunately, willing to trample the rule of law and constitutional guarantees in the fight against terrorism.

The truth is, the negative reaction to the PATRIOT Act has been overwhelming. Over 400 State and local government bodies passed resolutions pleading with Congress to change the law. Citizens have signed petitions, library associations and campus groups have organized to petition the Congress to act. Numerous editorials have been written urging Congress not to reauthorize the law without adequate protections for civil liberties.

These things occurred because Americans across the country recognize that the PATRIOT Act includes provisions that pose a threat to their privacy and to their liberty. These are values--values--that are at the very core of what this country represents and of who we are as a people.

In 2001, we were viciously attacked by terrorists who care nothing for American freedoms and American values. We, as a people, came together to fight back, and we are prepared to make great sacrifices to defeat those who would destroy us. But what we will not do, and what we cannot do, is destroy our own freedoms in the process.

Without freedom, we are not America. If we do not preserve our liberties, we cannot win this war, no matter how many terrorists we capture or kill. That is why the several Senators who have said, at one time or another during this debate, things such as, ``Civil liberties do not mean much when you are dead,'' are wrong about America at the most basic level. It seems they do not understand what America is all about. Theirs is a vision that the Founders of this Nation, who risked everything for freedom, would categorically reject, and so do the American people.

Americans want to defeat terrorism, and they want the basic character of this country to survive and prosper. They want to empower the Government to protect the Nation from terrorists, and they want protections against Government overreaching and Government overreacting. They know it might not be easy, but they expect the Congress to figure out how to do it. They do not want defeatism-- defeatism--on either score. They want both security and liberty. And unless we give them both--and we can, if we try--then we have failed.

This fight is not over. The vote today will not assuage the deep and legitimate concerns the public has about the PATRIOT Act. I am convinced that in the end the Government will respond to the people, as it should. We will defeat the terrorists, and we will preserve the freedom and liberty that make this the greatest country on the face of the Earth.

It has been a particular privilege to work for so long and so closely with the bipartisan group that developed the SAFE Act. Each Senator is supported by dedicated and talented staff, and let me mention a few of them now. For Senator Sununu, Dave Cuzzi. Joe Zogby for Senator Durbin; Brooke Roberts and Lisa McGrath for Senator Craig; Sam Mitchell with Senator Salazar; and Isaac Edwards with Senator Murkowski. Let me also recognize Bruce Cohen, Julie Katzman, and Tara Magner with Senator Leahy; and Chairman Specter's hardworking team--Mike O'Neill, Brett Tolman, and Nick Rossi. Other key staff on the Judiciary Committee include Joe Matal with Senator Kyl; Christine Leonard with Senator Kennedy; Steve Cash for Senator Feinstein; Paul Thompson with Senator DeWine; Reed O'Connor with Senator Cornyn; and Bruce Artim with Senator Hatch; Cindy Hayden with Senator Sessions; Preet Bharara with Senator Schumer; Chad Groover with Senator Grassley; Eric Rosen with Senator Biden; Ajit Pai with Senator Brownback; Mary Chesser with Senator Coburn; Nate Jones with Senator Kohl; and James Galyean with Senator Graham.

Staff for a number of Senators not on the committee worked very hard on this bill as well. Let me recognize Brandon Milhorn and Jack Livingston for Senator Roberts; Mike Davidson, who works for Senator Rockefeller; Joe Bryan with Senator Levin; Alex Perkins and John Dickas with Senator Wyden; Steve Taylor with Senator Hagel; Ruchi Bhowmik with Senator Obama; Mirah Horowitz with Senator Kerry; Caryn Compton with Senator Byrd; Eric Buehlmann with Senator Jeffords; and Alan Hicks with Senator Frist. And thanks also to Senator Reid's staffers, Ron Weich and Serena Hoy, and to our Democratic floor staff--Marty Paone, Lula Davis, Gary Myrick, Chris Kang, and Mike Spahn for their help over the past several weeks of this debate.

Finally, let me sincerely thank my own tireless and dedicated staff: Mary Irvine, Paul Weinberger, Sumner Slichter, Chuck Stertz, Bob Schiff, Lara Flint, Farhana Khera, Alex Busansky, Sarah Preis, Margaret Whiting, Molly Askin, John Haffner, Bharat Ramamurti, Avery Wentzel, Tracy Jacobson, and Molly McNab.

Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. President, I yield back my remaining time.

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

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

Mr. President, yesterday, the Senate passed a bill negotiated by the junior Senator from New Hampshire, Mr. Sununu, to strengthen civil liberties protections in the PATRIOT Act. In light of the improvements contained in the Sununu bill, I will now vote in favor of the pending conference report.

As I have emphasized many times, Democrats support the basic authorities contained in the PATRIOT Act. We voted for the original act in 2001. We unanimously supported the reauthorization bill that passed the Senate last summer. In recent months, we have been vigilant to ensure that no provision of the act would expire during ongoing negotiations over a long-term extension of the law. But our support for the PATRIOT Act doesn't mean a blank check for the President.

Last December, a bipartisan group of Senators joined together to insist that the reauthorization bill which had been returned from the House-Senate conference be improved. We defeated that conference report, we did it purposefully, and it was done on a bipartisan basis.

I note that some of my ``admirers''--I use that caustically--have run ads in the State of Nevada trying to embarrass me, saying that I and the Democrats are not for the PATRIOT Act. That was raw politics at its worst. What we tried to do, on a bipartisan basis, was to have a better conference report. That is what is happening. Some would say it has not been improved enough. I could argue that, but it has been improved.

Republicans and Democrats declared back then that Congress can provide the Government with the powers it needs to protect Americans and, at the same time, ensure sufficient checks and oversight to prevent abuses of these powers. Security and liberty are neither contradictory nor mutually exclusive.

Our insistence that the PATRIOT Act be improved has borne fruit. We stood up to the White House to demand a more balanced approach to antiterror tactics, and we have succeeded. Some say we didn't improve it enough, but there is no question that we improved it. Thanks to the courageous stand of Senator Sununu and a handful of other Republicans, along with the longstanding efforts of Chairman Specter, Senator Leahy, and other Democrats on the Judiciary Committee, the Senate will soon pass a stronger, better PATRIOT Act.

The current bill is far from perfect. It falls short of the unanimously supported Senate bill we passed last summer. I would have preferred additional improvements in the conference report, but the version of the PATRIOT Act we will soon reauthorize is a vast improvement over the law we passed hastily in 2001.

For example, under the original PATRIOT Act, people who received a Government request for business records under section 215 were barred from discussing the request with anyone--their wives, sons, daughters, business partners--no one. But now, for the first time, recipients of such a gag order will be able to challenge it before a judge.

In addition, the new bill will restrict Government access to library records. The bill makes it clear that libraries operating in the traditional role, including providing Internet access, are not subject to national security letters.

Finally, under the Sununu bill we passed yesterday, individuals or businesses that receive a national security letter will not be required to tell the FBI the identity of a lawyer they may consult to obtain advice or assistance. It seems so obvious that it is the right thing to do, but we had to fight for that.

Even before the Sununu improvements, the conference report included a number of crucial provisions to ensure congressional and public oversight of the Government's expansive powers under the PATRIOT Act. We insisted that the House accept 4-year sunsets instead of 7-year sunsets on the most controversial provisions of the act. In the original bill, we set sunsets. It is so important, as we look back and recognize why we did that. It is so important that we did that. Because of that, we were forced to improve this legislation. I again say that maybe it is not to the satisfaction of some, but it is certainly improved.

The conference report also requires extensive congressional public reporting and mandates audits by an independent inspector general. That wasn't there before.

I will continue to work for additional improvements in the act.

I wish to say at this time that Senator Russ Feingold is a person for whom I have great admiration. We are so fortunate that he is a Senator. Academically, no one in the Senate has a record that is superior to his. He is a Rhodes scholar, someone who stands for principle. I disagree with him on this legislation. I can support this legislation not going with all of the improvements that he, as a matter of principle, has caused the Senate to review.

I believe it is unfortunate that this good man, the Senator from Wisconsin, was not able to offer even two amendments. We asked the majority leader: How about two amendments? Don't fill the tree. He will take 15 minutes on each amendment. We were turned down. That is why I voted against cloture yesterday. That is a bad way, in my opinion, to run this Senate.

So I want the record to be spread with my words that Russ Feingold is a fine lawyer. I congratulate and applaud him for his work on this issue and other issues.

I will continue to work with him to seek additional improvements to the act. For example, I know he worked hard on an issue that is so important. Let's go back to the Senate-passed version of section 215, under which a Government request for medical records and other sensitive personal information must have a more direct connection to a suspected terrorist or spy.

Second, I remain extremely concerned about the lack of meaningful checks on Government overuse or abuse of national security letters. The Washington Post reported last November that the FBI issues more than 30,000 such letters in a year, with no judicial supervision. So we need more oversight of the Government's power to issue these secret subpoenas--30,000 of them. How many is that a day? How many is that a week? How many is that a month? It is unfortunate that we were unable to get ahold of this and change this.

Third, I still don't believe it was appropriate to include in the conference report sections not included in either the House or Senate bills limiting the right of habeas corpus in cases having nothing to do with terrorism. I will oppose any further weakening of the great writ.

There is a hue and cry out there that we have to do something about earmarks. What they always talk about are appropriations earmarks, which include a fraction of a percentage of the spending of this Government.

I do not back away or apologize for the earmarks I have placed in appropriations bills. I have a responsibility. I know better than some bureaucrat in Washington, DC, how the Forest Service should spend its money on the forests in Nevada. I know better than some bureaucrat from the Bureau of Land Management how money should be spent in Nevada. And 80 percent of the Federal lands controlled by the Bureau of Land Management are in Nevada. I know better than some bureaucrat in Washington, DC, how the money should be spent on roads and highways and bridges and dams in my State.

I believe in the Constitution. I believe the Constitution sets forth three separate but equal branches of Government, and by our folding on this earmark procedure and not doing our jobs, we are caving in and not following the Constitution. There are ways we can improve the way earmarks are placed on bills, and I am happy to work on that. I have worked with the distinguished ranking member of the Appropriations Committee and his staff to make sure this earmarking legislation that will be on the floor is not going to hurt what this body does. But my point is that earmarking is more than the Appropriations Committee. Is this an earmark that they stick in a conference report, where it is not in the House or Senate bill, that changes one of the basic rights Americans have guaranteed by our Constitution--a writ of habeas corpus? Yes. It is wrong. So if you want something about earmarks, let's not just focus on the Appropriations Committee.

I have talked about the flaws, and I am satisfied, in spite of them, that the conference report, as improved by Senator Sununu, is a step in the right direction and certainly better than the original PATRIOT Act.

Let me say a word about the relationship between the current debate on the PATRIOT Act and the continuing controversy over unlawful eavesdropping by the National Security Agency. On the same day we voted on the PATRIOT Act conference report last December, when the conference report wasn't allowed to go forward, the New York Times reported that the President had authorized a secret program to eavesdrop on American citizens without warrants required by the Foreign Intelligence Surveillance Act. That story had a clear impact on the vote that day, as it well should have. There was some question why we were even having this protracted debate over the PATRIOT Act, since the President seemed to believe he was free to ignore the laws we enact anyway. But, in fact, no one is above the law--not even the President of the United States. One lesson of the NSA spying scandal is that Congress must stand up to the President and must insist on additional checks on the powers exercised by the executive branch. That is what we are doing today with this PATRIOT Act.

In addition to what we have here with the PATRIOT Act and NSA spying, now we have this Dubai port security, I think, scandal, on which the final decision was made by the Secretary of the Treasury, not the Secretary of Homeland Security. Whenever this administration is faced with a decision that affects the business community or the national security, the homeland security of this country, they always go with business.

Why wasn't the Secretary of Homeland Security the one who signed off on that? These companies control the perimeters of these facilities; they decide who does the background checks. The debate over the PATRIOT Act and over NSA wiretapping and the Dubai port situation is all about checks and balances. That is what this is about. They go to the heart of our system of separation of powers.

Today, we give the Government the tools it needs to help protect our national security, while placing sensible checks on the arbitrary exercise of Executive power.

So today, when this bill passes, I hope everybody will understand that I am saying that I am voting for this conference report because I think it improves the original PATRIOT Act, not because it is perfect. It is far from perfect.

I hope this administration--even though the President is in faraway India--gets the word that what is going on in this country with what I believe are constitutional violations is inappropriate. We need to get back to doing what is right for this country, following the Constitution and reestablishing the legislative branch of Government as a separate and equal branch of Government.

Mr. President, I ask unanimous consent that I be permitted to speak as in morning business for up to 15 minutes and that the time be charged to the Republican side. I further ask that Senator Stevens be recognized at 12:15 for up to 5 minutes and Senator Byrd then be recognized for up to 35 minutes.

Mr. President, I rise to speak on the very important subject of lobbying reform. When you think of our role in our constitutional system and how important it is that that role

be held in high regard and confidence by the American public, this issue certainly takes center stage as a very important one that we need to address. Again, it goes to the heart of who we are and what we are about and the heart of the crucial task of having the confidence of the American people in our system.

Obviously, in the last year, in particular, that has been shaken-- shaken by some very real and serious scandals that have touched the Congress. Because of that, we need to address these issues of lobby reform, campaign finance reform, and other related issues very boldly and very directly.

Again, why do we need to do this? For a very simple reason. This goes to the heart of our credibility, the heart of the central issue: Do the American people have confidence in our integrity, in our ability to put their interests ahead of the interests of narrow or special interests?

I come to this set of issues with quite a bit of experience from Louisiana. These sorts of issues have been at the center of our political debate for quite some time because, quite frankly, we have fought our own challenges in terms of integrity and credibility. We have had a political culture and a political history riddled with corruption and cronyism. Many of us are working very hard to get beyond that. Before I came to the House of Representatives in 1999, I served in the Louisiana legislature. While I was there for about 7 years, these sorts of issues--reform issues, lobby reform, campaign finance reform--were at the very top of my agenda because, again, what could be more important than building the confidence of citizens in the integrity of their Government? Certainly, when I stepped into the Louisiana legislature in January 1992, that credibility and that integrity absolutely needed bolstering.

When I first went to the legislature in 1992, we had a Governor named Edwin Edwards. We had an explosion of legalized gambling issues and legalized gambling concerns. That only fueled the need to address these central, ethical lobby and related issues. Issues such as the influence of gambling and gambling contributions came to the floor, and the influence of gambling entities on elected officials. Because of all this, I filed several formal ethics complaints against our then- Governor, Edwin Edwards. Many of those were successful to help draw attention to the very real problems that were persistent. And then several years later, that was actually followed by Federal prosecution of then-former Governor Edwards on gambling-related charges, and he now still serves a significant sentence in Federal prison.

Other issues came before us, such as gambling contributions. We had an infamous incident of the president of the State Senate handing out gambling contribution checks on the floor of the Senate. This caught everybody's attention, and the good part of the incident--the only good part--is that it ushered in more reform, more cleaning house, if you will.

So I was very involved in those issues for exactly the same reason. They went to the heart of what we are about. They went to the heart of voters' and citizens' confidence. They went to the heart of the question of our integrity.

In part, because of that background and that experience, I was very interested in being involved in these ethics reform and lobby reform efforts on Capitol Hill. Very early on, I joined the working group in the Senate that was focused on these important issues. The group consisted of Senators Santorum, McCain, Lott, Kyl, Lieberman, Obama, Isakson, Dodd, Feingold, and Collins. It was a very strong, very sincere bipartisan working group to look hard at these crucial questions and to come up with a strong package that could gain bipartisan consensus support, and that we could pass through the Senate.

In working with this group, we discussed a lot of issues and tried to hone in on the key abuses and, therefore, the key reforms we thought we needed to address. That led to our releasing a statement in favor of meaningful lobby reform, particularly with regard to the following areas: The revolving door between private lobbying and public service; privately funded travel, which has clearly been abused in the past; gifts from lobbyists; improved lobbying disclosure; earmarks and the abuse of earmarks and the need for transparency and some limit in terms of those earmarks; strengthened ethics guidelines, training, and enforcement.

Again, I compliment all of my fellow Senators who worked on that important group--Senators Santorum, McCain, Lott, Kyl, Lieberman, Obama, Isakson, Dodd, Feingold, and Collins. We all worked together in a very aggressive and sincere way. I think we have made a lot of headway. That headway is being exhibited this week and even more next week.

This past Tuesday, the Senate Rules Committee, chaired by Senator Lott, voted out a consensus package of important reforms. Now, today, the other committee of jurisdiction, the Committee on Homeland Security and Governmental Affairs, chaired by Senator Collins, will take a look at their side of these matters--those matters in this general category that fall under their jurisdiction. I think they are going to come out today with a strong and significant package in terms of matters that come from their jurisdiction. Of course, as I said, Senators Lott and Collins were very active, very forceful, and contributing members to the working group.

I look forward to supporting these two packages that will come together next week on the Senate floor. But as I do, I also look forward to strengthening the package, perhaps here on the Senate floor, perhaps through separate legislation, on other crucial questions, which I truly believe we also need to address in a bold and direct and forceful way to gain the confidence of the American people.

I want to highlight three of those additional issues today. The first has to do with a very important matter of Indian tribe campaign contributions. Now, this, as everyone knows, is not some theoretical concern. This issue has been at the heart of the recent scandals that have plagued the Congress and the country with regard to lobby reform and campaign contributions. So this is not a theoretical or abstract concern.

What is the problem? The fundamental problem, as I see it, is that the rules are very different and very tilted for Indian tribes, as opposed to other entities such as corporations. How is that true? Let me give you a few examples. The first is that Indian tribes are treated as ``persons'' under Federal campaign finance law, and because of that they are allowed to contribute up to $2,100 per election to a candidate. But they are not considered what are called ``individuals'' under the law. For that reason, there is no aggregate limit in terms of how much money they can give to Federal political campaigns overall in an election cycle.

For other entities, such as corporations, there is absolutely an overall limit of $101,400. That is a lot of money but understand that tribes have no such limit, so they can go beyond that and give absolutely as much as they want, without limit, to Federal campaigns.

The second area of difference I think is even more significant, and that is because most Indian tribes are unincorporated, they are not subject to any rules or ban on using corporate treasury funds to fund all of this or to any rules with regard to mandatory disclosure of the source of the funds they use and where they go. That is a huge difference.

Corporate PACs, of course, have to collect money in very certain ways. They cannot write a check out of the corporate treasury. An Indian tribe can and, in doing so, doesn't have to disclose in any meaningful way where the money came from or where it is going.

The second issue I want to highlight is the ability of some incumbents, some Members of Congress, in the House and Senate, to pay their spouses or dependent children for work on their own political campaign. Why is that a problem? It is a fundamental problem, in my opinion, because it gives Members of Congress the ability to increase their salary if they want to abuse that right to write checks to their own personal bank account from their campaign account by ``hiring'' a spouse or even a dependent child or both.

Again, this is not a theoretical concern; this has been a practice in the past and is, to at least a limited extent, a practice now. There may be some spouses or some kids who do a lot

of work for that paycheck, who do a full day's work for a full day's paycheck. But, clearly, this is an area that is wide open to abuse and, in fact, in my opinion, has been abused in the past.

So how do we fix it? I think it is pretty simple. I think to gain the confidence of the American people and to do ourselves a favor, we fix it in a very simple and direct way, which is by completely banning spouses or dependent children from being on the payroll of a Member's campaign or on the payroll of a Member's leadership PAC.

The final issue that I quickly want to highlight is the issue of Members' spouses being able to lobby Congress. Again, I think in the real world, in the heartland of America, this causes average citizens and average voters a lot of concern. The concern, again, is obvious. A Member's spouse has a unique ability to lobby, No. 1. No. 2, that relationship, if a Member's spouse is on the payroll of a lobbying firm, means that the lobbying firm is writing a check, which basically goes directly into the family banking account of that Member.

How do we address this? We need to be very careful to address it responsibly and carefully and also to take into account the fact that some spouses may have been a true lobbyist with true expertise, earning an honest day's work, before they were ever spouses of a Member of Congress. So I believe the way to address it is to ban that activity if the spouse was not a registered lobbyist a year or more before the Member was elected to Congress or the marriage between the spouse and the Member occurred.

I think that is a responsible, fair way to address a very real concern, a very real issue in the hearts and minds of the American people.

I close by again saying I appreciate all of the work of my fellow members of the working group on which I serve. I look forward to that legislation coming to the floor next week, and I also look forward to us addressing other crucial issues that may not be in that underlying package, such as campaign contributions of Indian tribes, such as spouses and dependent children being on the payrolls of campaigns, and such as lobbying by Member spouses.

Mr. President, I yield the floor.

Mr President, when the PATRIOT Act reauthorization bill left the Senate last July, we had a bill with provisions that protected both our security and our liberty. What came back to the Senate from the House-Senate conference committee was a bill that raised significant concerns for Senators from both sides of the aisle. As a result, the Senate did not vote to end debate in December, as Senators wanted more time to address those concerns.

The PATRIOT Act conference report which is before us leaves major problems unaddressed. Among the conference report's flaws: Section 215 of the PATRIOT Act permits the Government to seek court orders, to compel the production of any tangible thing, including library, medical and business records, in foreign intelligence investigations, including records of people who are totally innocent even of any allegation of impropriety. The conference report omits language in the Senate-passed bill establishing a reasonable standard for the FBI to obtain these sensitive records with Section 215 orders. And to make matters worse, the conference report permits the FBI to include gag orders that preclude the recipient from telling anyone they even received the order. The conference report does not even permit recipients to challenge those gag orders in court. Also, the conference report requires recipients section 215 orders to tell the FBI, if asked, from whom they have sought legal advice.

Since December, there have been a number of efforts to improve the conference report. Unfortunately, those have met with limited success. The Sununu bill, if it passes the House of Representatives, would make only minimal improvements to the conference report that the Senate considered last December.

The Sununu bill, if it passes the House, would eliminate the requirement that recipients of 215 court orders tell the FBI, if asked, whom they consulted for legal advice. This would be a worthwhile, if minor, improvement. The Sununu bill also provides people the right to challenge gag orders attached to so-called section 215 court orders. But the benefit of that is offset by the fact that the bill severely constrains the court's discretion to modify or set aside those gag orders.

Some argue the conference report is an improvement over the original PATRIOT Act. The bill before us does indeed correct some of the flaws in the original PATRIOT Act. For example, the PATRIOT Act did not require that a roving wiretap order identify a specific target--raising concerns that it could authorize so-called John Doe roving wiretaps. I am pleased that the conference accepted language that I proposed to correct that flaw.

However, too many flaws remain, the most serious of which is the standard of review section 215 court orders.

As I said earlier, section 215 of the PATRIOT Act permits the Government to seek court orders, to compel the production of any tangible thing, including library, medical and business records, in foreign intelligence investigations. No problem there. However, under section 215, the Government need not describe, much less identify, a particular person to whom the records relate, even in general terms, as linked to a terrorist groups or organization. I believe that we ought to apply the same logic to section 215 orders that the conference report applies to roving wiretaps. We ought to require that records sought with section 215 orders have some connection to an alleged terrorist or terrorist organization. Unfortunately, the standard in the conference report does not include that. It fails to narrow the scope of records that the Government can subpoena under section 215 to less than the entire universe of records of people who, for instance, patronize a library or visit a doctor's office. Instead, fishing expeditions are authorized, which could result in invasions of the privacy of large numbers of innocent Americans.

Let's assume the FBI has information that a person, whose identity is not known to the FBI, is using computers at New York public libraries to view certain Web sites.

The FBI only knows that the person has knowledge of the particular Web sites. The person is not suspected of wrongdoing himself. The FBI wants to find out the person's identity as part of a foreign intelligence investigation into those Web sites. The agency believes that they might be able to identify the person if they could review all the computer user records held by public libraries in New York.

The conference report would presumably permit the FBI to obtain a court order compelling the New York Public library to provide the records of all their patrons. That is truly a fishing expedition. The conference report would also allow the FBI to prohibit the library from telling patrons that their names had been handed over to the FBI. While the Sununu bill permits the library to challenge that prohibition in court, it does not permit meaningful court review because, under its terms, if the Attorney General or another specified senior official certifies that disclosure may endanger national security or harm diplomatic relations, the court must find bad faith on the part of the Government in making such certification for the court to modify or set aside the nondisclosure requirement. This virtually eliminates the court's discretion.

Another example. Assume the FBI has information that a person, whose identity is not known to the agency, is sending money to charitable organizations overseas. They know from a credible source that the person is being treated for HIV at a particular AIDS clinic in New York that has 10,000 patients. The FBI wants to find out the person's identity as part of a foreign intelligence investigation into links between unspecified overseas charities and terrorist organizations. The agency believes that they might be able to identify the person if they could review the AIDS clinic's 10,000 patient files.

The conference report would permit the FBI to obtain a court order compelling the AIDS clinic to provide the files of all of its patients. The conference report would allow the FBI to prohibit the AIDS clinic from telling its patients that their names had been handed over to the FBI. While the Sununu bill permits the clinic to challenge that prohibition in court, as I discussed earlier, it does not permit meaningful court review because the Attorney General's unilateral certification would have to be found by the court to have been made in bad faith for the gag order to be lifted.

It is argued in response to the fishing expedition argument that the Government must set forth ``facts'' supporting a section 215 application. But that requirement doesn't fix the fishing expedition flaw. I just set forth facts, in two hypotheticals. If those hypothetical facts would not support a broad search of the library or clinic's records, the supporters should say what language in the conference report would preclude a search.

When this bill left the Senate, it contained protections against fishing expeditions. The Senate bill required a showing that the records sought were not only relevant to an investigation but also either pertained to a foreign power or an agent of a foreign power, which term includes terrorist organizations, or were relevant to the activities of a suspected agent of a foreign power who is the subject of an authorized investigation or pertained to an individual in contact with or known to be a suspected agent. In other words, the order had to be linked to some suspected individual or foreign power. Those important protections are omitted in the bill before us.

Some kind of narrowing language needs to be included in the PATRIOT Act for section 215 orders, just as it was when this bill left the Senate. Without that language and that linkage, the PATRIOT Act authorizes the rankest kind of fishing expedition.

The conference report is also flawed in its treatment of national security letters, or NSLs. NSLs compel phone companies and banks, for example, to turn over certain customer records. The Government can issue an NSL without going to court. And, like section 215 court orders, the Government does not have to show any connection between the records sought and an individual who the Government thinks is a terrorist. And like section 215 orders, the Government can impose a gag order on the recipient of an NSL. Also, in the case of NSLs, the conference report does not permit meaningful judicial review of those gag orders.

Also troubling about the NSL authority is that there is no requirement that the Government destroy records acquired with an NSL that turn out to be irrelevant to the investigation under which they have been gathered. These are records that relate to innocent Americans, and the Government should be required to destroy them if they contain no relevant material.

It is argued that while these protections were in the bill that left the Senate, they are not in current law. That is true. But the reason we put sunset provisions in the law is so we could more reliably make changes if experience indicated the need for change. We understandably acted quickly after 9/11 to fill some holes in our laws that needed to be filled. We added sunset provisions so we could review the law we wrote with the benefit of greater thought, in an atmosphere more conducive to protecting our liberties than understandably was the situation immediately after a horrific, wrenching, deadly attack.

Finally, I must comment on a tactic used in this debate which runs against the very grain of the Senate. The majority leader used a procedural tactic to prevent any Senator from offering any amendment during consideration of the Sununu bill, amendments which could have addressed some of the flaws I just described. That tactic of stifling consideration of any amendment is contrary to the normal procedures of the Senate and reflects poorly on what is sometimes billed as the greatest deliberative body in the world. The rules of the Senate were written with the intent of allowing the consideration of amendments. In this instance, the rules were misused to block any effort to offer amendments. I voted against ending debate on the Sununu bill and against proceeding to debate on the PATRIOT Act conference report because no amendments were allowed to be considered.

This conference report still falls short of what the American people expect Congress to achieve in defending their rights while we are advancing their security. As a result, although I support many of its provisions, I must oppose it.