Fair Wages for Hurricane Katrina Recovery Workers Act

Mr. President, under the Federal material witness statute our government is authorized to arrest a witness in order to secure his testimony in a criminal proceeding. In order to obtain a material witness warrant, the government must establish that the witness has information that is material to a criminal proceeding, and that it may become impracticable to secure the witness's presence at the proceeding by a subpoena. Once arrested, a material witness may be detained for a reasonable period, until his testimony can be secured by deposition or appearance in court.

The material witness law was intended to ensure the appearance of witnesses in those rare cases where they might otherwise flee to avoid testifying in a criminal proceeding. This authority is an important tool for our government's law enforcement duties, but it must be exercised responsibly. As the Court of Appeals for the Second Circuit noted in 2003, in the case of United States v. Awadallah, ``It would be improper for the government to use [the material witness statute] for other ends, such as the detention of persons suspected of criminal activity for which probable cause has not yet been established.'' Since September 11, 2001, however, that is exactly what the government has been doing. Indeed, senior Administration officials, including our current Attorney General, have admitted that the government routinely uses material witness warrants to detain suspects in the so-called war on terror.

A report released this summer by Human Rights Watch and the American Civil Liberties Union identifies 70 men, including more than a dozen citizens, whom the Department of Justice

arrested as material witnesses in connection with its terrorism investigations. Many were never brought before a court or grand jury to testify for the simple reason that they were viewed not as witnesses, but as suspects. The evidence against these suspects was often flimsy at best, and would never have sufficed for criminal arrest and pre- trial detention. This twisting of a narrow law designed to secure testimony into a broad preventive detention authority has resulted in some notorious abuses.

Just days after 9/11, the FBI arrested eight Egyptian-born men in Evansville, IN--one a naturalized American citizen--as material witnesses, based on a bogus tip that they planned to fly a plane into the Sears Tower in Chicago. The men were held for more than a week in solitary confinement before being released. Many months later, the FBI issued a rare public apology to these men. That apology, while necessary, could not repair the damage that had been done to them and their families in the form of lost business, tainted reputations, and the accusing stares of their friends and neighbors.

The case of Abdallah Higazy further highlights the danger that can occur when this authority is abused. Shortly after 9/11, the 30-year- old Egyptian graduate student with a valid visa, was picked up after a security guard at a hotel located across the street from Ground Zero claimed to have found an aviation radio in the room where Higazy had stayed on 9/11. Higazy was held for more than a month in solitary confinement until he ultimately confessed that the radio was his. Higazy was then charged with lying to the FBI for initially denying possession of the radio. These charges were dropped after the true owner of the radio, an American pilot, went to the hotel to claim it.

In another, higher profile case in May 2004, Portland attorney Brandon Mayfield was arrested as a material witness in connection with the Madrid train bombing. An email sent from the Portland FBI office to the Los Angeles FBI office the day before Mayfield's arrest refers to him as a ``Moslem convert'' and notes as a ``problem'' that there was not enough evidence to arrest him for a crime. After spending two weeks in prison, Mayfield was released and the FBI was expressing regret about the erroneous fingerprint match that led to his arrest.

These and other examples of post-9/11 misuse of the material witness statute are documented in the HRW/ACLU report. As the report shows, such misuse does more than just circumvent the requirement of probable cause for a criminal arrest. Suspects arrested as material witnesses are denied the basic protections guaranteed to criminal defendants, including the right to view any exculpatory evidence and to be able to challenge the basis for their arrest and incarceration. The report concludes that the misuse of the material witness law ``threatens U.S. citizens and non-citizens alike because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention.''

The bill I introduce today will ensure that the material witness law is used only for the narrow purpose that Congress originally intended, to obtain testimony, and not to hold criminal suspects without charge when probable cause is lacking.

First, the bill raises the standard that the government must meet to obtain a material witness warrant. Under current law, a judge may order the arrest of a material witness if there is probable cause to believe that securing his presence by subpoena may become ``impracticable.'' Under the bill, there must be probable cause to believe that the witness has been served with a subpoena and failed or refused to appear as required, or clear and convincing evidence that the service of a subpoena is likely to result in the person fleeing or cannot adequately secure the appearance of the person as required.

Second, the bill imports several due process safeguards from the Federal Rules of Criminal Procedure relating to the arrest and arraignment of criminal defendants. Among other things, the bill requires that a material witness warrant specify that the testimony of the witness is sought in a criminal case or grand jury proceeding, and command that the witness be arrested and brought to court without unnecessary delay. The warrant must also inform the witness of his right to retain counselor or request that one be appointed. The right to counsel is already guaranteed to material witnesses under the Criminal Justice Act, 18 U.S.C. 3006A(a)(1)(g), and protects the witness from erroneous, unnecessary, and prolonged incarceration.

The bill further provides that, upon arresting a material witness, the government must provide him with a copy of the warrant or inform him of the warrant's existence and purpose. A material witness must be brought before a judge ``without unnecessary delay''--a term that has been strictly interpreted when applied to the criminally accused. The initial appearance must be in the district of arrest or an adjacent district. At the initial appearance, the judge must inform the witness of the basis for his arrest and of his right to counsel. The judge must also allow the witness a reasonable opportunity to consult with counsel. The judge must then determine whether the witness should be released or detained pending the taking of his testimony.

Third, the bill establishes clear procedures for material witness detention hearings. Current law provides that material witnesses shall be treated in accordance with 18 U.S.C. 3142, which governs the release or detention of defendants pending trial. Section 3142, however, contains many factors that are not applicable to material witnesses. For example, courts have held that a material witness may not be detained on the basis of dangerousness. (See Awadallah, 349 F.3d at 63 n.15.) The bill clarifies that in detention hearings for material witnesses, flight risk is the only relevant factor. A court shall order a material witness detained only if no condition or combination of conditions will reasonably assure the appearance of the witness as required. As under current law, no witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition. In determining whether a material witness should be released or detained, the court shall take into account the available information concerning the history and characteristics of the witness, and may also consider challenges to the basis of the warrant.

Fourth, the bill establishes the ``clear and convincing evidence'' standard used in other civil detention contexts for material witness detentions. Few courts have directly examined what standard of proof should be required of the government to demonstrate that no conditions of release can reasonably assure a witness's appearance. While the lower ``preponderance of the evidence'' standard may suffice for pre- trial detention of defendants who pose a risk of flight, in the case of defendants there has also been a finding of probable cause to believe the person committed a crime. In the case of a witness, where there is no probable cause to believe the person committed a crime, the usual grounds for fearing flight--the defendant's aversion to risking a guilty verdict and attendant sentencing--are not present.

Fifth, the bill imposes reasonable but firm time limits on the detention of material witnesses. Current law sets no firm limit on how long a witness may be incarcerated before being presented in a criminal proceeding or released. This has resulted, according to the recent report, in many witnesses enduring imprisonment for two or more months, and in one case for more than a year. Under my bill, a material witness may initially be held for not more than five days, or until his testimony can adequately be secured, whichever is earlier. That period may be extended for additional periods of up to five days, upon a showing of good cause for why the testimony could not adequately be secured during the previous five-day period. The total period of detention may not exceed 10 days for a grand jury witness, or 30 days for a trial witness, and in no case may a witness be held any longer than necessary to secure his testimony.

Sixth, in recognition of the fact that material witnesses are not charged with any offense, the bill requires that they be held in a corrections facility that is separate, to the extent practicable, from persons charged with or convicted of a criminal offense, and under the least restrictive conditions possible.

Finally, to facilitate congressional oversight, the bill requires the Justice Department to report annually on the use of the material witness law. Since 9/11, the Department has withheld information relating to material witnesses on the theory--in my view, a flawed theory--that such information is covered by the grand jury secrecy rule. It is hard to imagine how the release of generalized data, such as the aggregate number of people detained as material witnesses, could damage any reputational interest or any of the other interests protected by Rule 6(e).

The recent, detailed report on post-9/11 uses of the material witness statute leaves no doubt that the law has been bent out of shape, with real consequences for citizens and non-citizens alike. My bill will restore the law to its original purpose and prevent future abuses. I urge its speedy passage.

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

Mr. President, I rise today to introduce new legislation, titled the Good Samaritan Liability Improvement and Volunteer Encouragement, or ``GIVE'' Act of 2005. I introduce this legislation to ensure that, as we continue to cope with the aftermath of Hurricane Katrina, that one of our country's greatest assets--the willingness of the American people to give to their neighbors in need--is not inhibited by one of its greatest liabilities--a broken civil justice system.

In addition, I will take a few moments to remind my colleagues of legislation that I introduced just before the August recess: the Respirator Access Assurance Act of 2005. This legislation is of even greater importance in the wake of Hurricane Katrina--its passage would help to ensure that the thousands of workers, volunteers, and citizens of New Orleans working to restore that great city have the necessary protection to sift through the clean-up.

From its beginning, the United States has been a generous nation. Indeed, in commenting on his observations of America in 1831, French historian Alexis de Tocqueville praised Americans for voluntarily assisting their neighbors during times of need. He noted, ``When an American asks for the cooperation of his fellow citizens, it is seldom refused; and I have often seen it afforded spontaneously, and with great good will.''

Since that time, America has continued to grow into an ever-more generous nation. As measured by financial contributions, giving by Americans is at an all-time high. According to the Giving USA Foundation, philanthropic donations totaled almost $250 billion in 2004 and represented a 5 percent increase over the previous year. The chair of Giving USA notes that ``about 70 to 80 percent of Americans contribute annually to at least one charity.''

Financial contributions are infinitely valuable. But, as we all know, the value of the gift of time cannot be underestimated. Each and every year, millions of Americans volunteer their time and their personal services to charity. Americans volunteer in soup kitchens, schools, and health clinics, devoting countless hours to assist others.

And in the wake of Hurricane Katrina, we have seen this charitable spirit shine brighter than ever. In the short time since Katrina hit the Gulf Coast, Americans have given more than $600 million to disaster relief efforts. Millions of Americans have sent money, donated food, sent needed tools and equipment, given clothing, volunteered medical or other services, and otherwise helped in whatever manner they could.

Perhaps most heartwarming of all, thousands of Americans have opened their homes to those who lost everything. I am particularly proud of my home State of Texas--where more than

250,000 of our neighbors sought shelter--and where virtually all of them have been able to find it.

But just as America enjoys a culture of giving and volunteering, she also faces a culture of litigation. And this ``sue first, ask questions later'' culture has produced an environment of fear that often gives pause to some people who would otherwise wish to extend a helping hand.

As Common Good co-founder and chair, Philip Howard pointed out in hearings before the House Judiciary Committee in June of 2004, ``[w]hat we have found is that, in dealings throughout society, Americans no longer feel free to act on their reasonable judgment. The reason is that they no longer trust our system of justice. . . No part of society is immune. Playgrounds have been stripped of anything athletic. Even seesaws are disappearing because town councils can't afford to be sued if someone breaks an ankle. . . There is a missing link in American justice--rulings on who can sue for what.''

Unfortunately, volunteers and non-profits face this question every day. To what degree should people volunteering services or providing needed equipment and supplies be forced to choose between lending a helping hand or facing the specter of litigation? And, should non- profit organizations such as the Red Cross and the Salvation Army struggle to find appropriate housing for evacuees due to liability concerns?

In an attempt to respond to these concerns, 8 years ago the late Senator Paul Coverdell sponsored and successfully worked to enact the Volunteer Protection Act of 1997--legislation that protects volunteers from many frivolous lawsuits. However, as helpful and well-intentioned as this legislation was, more needs to be done to sufficiently protect all those lending a hand to those in need.

Consider, for example: Early this year, a jury in Milwaukee found the Catholic Archdiocese liable because a volunteer for a Catholic lay organization, driving her own car, ran a red light and caused an accident while delivering a statue of the Virgin Mary to an invalid person. Although the church does not direct the activities of this group, called the Legion of Mary, its meetings are held on church property. The jury decided the Archdiocese should pay $17 million to the paralyzed victim, an 82-year-old semi-retired barber.

In response to Hurricane Katrina, the Red Cross and the Salvation Army are unable to coordinate efforts to set up emergency housing in private homes for evacuees because of liability issues.

In the midst of administering chest compressions to a dying woman several days after Hurricane Katrina struck, Dr. Mark N. Perlmutter was ordered to stop by a federal official because he wasn't registered with the Federal Emergency Management Agency. ``I begged him to let me continue,'' said Perlmutter, who left his home and practice as an orthopedic surgeon in Pennsylvania to come to Louisiana and volunteer to care for hurricane victims. ``People were dying, and I was the only doctor on the tarmac where scores of non-responsive patients lay on stretchers. Two patients died in front of me . . . I asked him to let me stay until I was replaced by another doctor, but he refused. He said he was afraid of being sued.''

So, today, even as volunteers, businesses, and non-profit organizations across the Nation are working to return New Orleans and the gulf coast region to something close to normal--I feel it is crucial to ensure that those volunteers are protected from needless and frivolous litigation.

That's why I am introducing today--and am proud to be joined by Senators Hutchison, Vitter, Lott, Grassley and Thune--the Good Samaritan Liability Improvement and Volunteer Encouragement, or GIVE Act of 2005.

The legislation offers a comprehensive solution to the fear of litigation that unnecessarily burdens volunteers and often prevents the provision of necessary goods and services to those in need. It will provide protection for volunteers across the Nation, particularly those working in response to national disasters such as 9/11 or Hurricane Katrina. More specifically, the GIVE Act will provide that: Disaster relief volunteers, generally, are not liable for harm caused in carrying out their volunteer activities in connection with disaster relief, unless their act or omission constitutes willful, knowing or reckless misconduct; medical and other professionals can volunteer their services for disaster relief services based on being licensed in their home State regardless of where the declared disaster occurred; a disaster relief volunteer is protected from liability under the act even if the volunteer is not working for a specific non-profit organization; disaster relief volunteers can offer their services without subjecting their business partners or employers to liability; disaster relief volunteers are protected from punitive damages and non- economic damages are apportioned according to percentage of fault; non- profit organizations are not liable for the acts or omissions of their volunteers unless the organization has willfully disregarded or is recklessly indifferent to the safety of the individual harmed; all donors of goods or equipment--whether businesses, non-profits, or individuals--are not liable for harm caused by donating those items unless they acted with willful, knowing or reckless misconduct; and all litigation that proceeds despite any protections under this act or under the Volunteer Protection Act requires a high level of specificity and documentation in the claim and a review by a judge that the claim raises--as a matter of law--a genuine issue of material fact.

I urge my colleagues to support these two pieces of legislation-- legislation designed to ensure that the fear of litigation that pervades our culture won't stand in the way of well-intentioned Americans trying to help their neighbors in need.

Mr. President, it is an honor to join Senator Enzi in introducing the Community Services Disaster Assistance Act.

The bill contains additional support for State Community Service Block Grant offices, and community action agencies. Community Service Block Grant agencies provide low-income communities with the support they need to achieve self-sufficiency on a daily basis. Their programs and services include literacy, child health care, afterschool activities, low-income housing development, food stamps, and emergency shelter assistance.

In the days after Hurricane Katrina, these agencies have been on the front lines. According to the National Association of State Community Service Programs, 32 States and their community action agencies have assisted over 65,000 evacuees. In this time of massive crisis, these agencies have been indispensable.

This bill will help the State offices and agencies continue their amazing work. Community action agencies are already able to receive emergency funds from FEMA, and this bill expresses the sense of the Senate that emergency assistance should be made available immediately.

The bill also authorizes State offices to transfer a portion of their funds for Community Service Block Grant administration or discretionary programs to the Gulf Coast States. Offices that wish to provide monetary support will be able to do so.

The bill establishes a temporary income eligibility waiver for services funded by Community Services Block Grants in places designated as disaster areas. Evacuees will not have to worry about having the right paperwork ready, they will receive the services they need exactly when they need it.

The bill also permits agencies and State offices to send their staff to federally designated disaster areas in other parts of the same State or in other states to provide disaster assistance.

Support for this emergency work is more important today than ever. The States hit hardest by the Hurricane and flood were also some of the poorest. We in Congress have a responsibility to do all we can to help these States rebuild and thrive again. Passing this bill is a needed early step because it provides urgently needed assistance to invaluable community service organizations, and I urge my colleagues to approve it.

As we send hundreds of billions of dollars in Federal aid to the areas devastated by Hurrican Katrina, we must remember that we are just rebuilding highway and schools--we are rebuilding communities and neighborhoods. And the foundation of such communities is good jobs with fair wages.

The winds of Katrina exposed to all of America just how much more work remains to be done to achieve equality and fairness in this country. We are a stronger country when we are a fairer country. Yet, as the Administration awards billions of dollars in contracts to many of their corporate friends, they decide that the men and women of the gulf coast don't deserve to be paid a fair wage. The victims of Katrina have lost everything, and now President Bush says it is okay for them to lose their fair wages too. That is why I am introducing this legislation to ensure that that the workers involved in the recovery and reconstruction effort after Hurricane Katrina will earn a prevailing wage.

Many people harmed by Hurricane Katrina were already struggling to make ends meet. Mississippi and Louisiana rank 1st and 2nd among States by the percentage of people below the poverty line. Moreover, Mississippi and Louisiana rank 2nd and 3rd by the percentage of children below the poverty line. Now the devastation of hurricane has caused the jobs and businesses they relied on to disappear. Experts have said that from 400,000 to 1 million workers may become unemployed as a result of the hurricane, with the unemployment rate reaching 25 percent or higher in the gulf region. Many affected workers will be unemployed for 9 months or longer.

The new jobs in the clean up, recovery, and rebuilding of the area will be a major source of new employment, and we need to be sure that they pay decent wages. This is all that Davis-Bacon does: it simply ensures that workers on Federal Government

projects earn a typical wage. Otherwise the large size of Federal contracts can overwhelm a local labor market lead to bidding wars that drive wages down. Indeed, Representative Davis and Senator Bacon were Republicans who wanted to protect local contractors, who would not be able to compete in such a price war.

Workers who take these jobs will already face special hazards. Each day the administration reveals more details about workers' exposure to elevated levels of e.coli, toxic chemicals from flooded Superfund sites, and contaminants from massive oil spills. These workers should not have to suffer below-market wages, too.

But the President apparently believes that workers in Louisiana, Mississippi, Alabama, and parts of Florida don't even deserve to earn a decent wage for a day's work. He would have you believe that Davis- Bacon wages are exorbitant--nothing could be further from the truth. Indeed, in areas affected by Katrina, some typical wages include: $9.16 per hour sheet metal workers, in Pearl River County, MS, $10.00 per hour for laborers in Livingston Parish, LA, $8.54 hour for truckdrivers in Mobile County, AL. And Federal spending post-Hurricane Katrina should be lifting workers up, not forcing them into a race to the bottom.

I urge the Congress to reverse the President's decision and to stand with the hardworking men and women of the gulf coast as they rebuild their towns and their lives.

Mr. President, I rise today to introduce, along with my colleagues Tim Johnson of South Dakota and Jim Bunning of Kentucky, an important bill that will allow Americans to save more for the long term and will better prepare them for a secure retirement. The Generating Retirement Ownership Through Long-Term Holding GROWTH, Act has substantial and growing bipartisan support in the House, and Senator Johnson and I are proud to introduce this bipartisan legislation that provides Americans a better tool to grow their long-term retirement savings.

The GROWTH Act would allow investors in mutual funds to keep more retirement savings invested longer and growing longer by deferring taxation of automatically reinvested capital gains until fund shares are sold, rather than allowing those long-term gains--which generate no current income or cash in hand--to be taxed every year.

To understand how beneficial this bill would be, it is important to understand the role of mutual funds in long-term retirement savings. Among households owning mutual funds, 92 percent are investing for retirement, with more than 70 percent saying their primary purpose in investing in funds is to prepare for retirement. Many of today's workers do not yet have in place the retirement savings supplement to Social Security that will prepare them for the future. In fact, almost half of American workers--nearly 71 million of 151 million workers--are not offered any form of pension or retirement savings plan at work.

Meanwhile, the number of years spent in retirement is growing and the costs individuals can expect to bear in retirement are growing, too. The Employee Benefit Research Institute estimates that an individual retiring at age 65 in 2014 will need $285,000 just to cover health coverage premiums and expenses. Individual savings efforts also face significant obstacles. Those not covered by an employer's retirement plan, for example, can set aside a deductible IRA contribution of only $4,000 this year--$4,500 if they are age 50 or older.

Mutual funds are a hugely important part of American workers' preparation for retirement, both through their employers' retirement plans and on their own. Mutual funds now make up half of the $3.2 trillion held by American workers through 401(k) plans and other similar job-based savings programs. About 34 million American households hold mutual funds through their defined contribution plans. More than 30 million American households are saving through taxable mutual fund accounts, either as supplements to their employers' plans or because they do not have such plans.

The GROWTH Act is also a good idea because it remedies an unfairness in the tax code that can make saving difficult for many Americans. Mutual fund investors who are struggling to save for retirement should not have to pay taxes on ``profits'' they have not realized. If they don't have money in hand, it makes no sense for them to have to pay taxes. The GROWTH Act would defer taxes until the mutual fund shares are sold and the investor has actual funds to pay the taxes.

The GROWTH Act would be a valuable contributor to retirement savings efforts. Mutual fund savers who automatically reinvest are doing what policymakers want to see. They are holding for the long term, contributing to national savings, and building up their own retirement nest egg. These Americans should be encouraged to save--not discouraged through a tax on automatic reinvestments. The GROWTH Act is a step that will show immediate results, a step that will help tens of millions of American savers and ``should-be savers'' over the course of their working lives, and a step that with time can make a real difference in the retirement readiness of American families.

I urge my colleagues to join Senator Johnson and me in supporting the GROWTH Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

There being no objection the bill was ordered to be printed in the Record, as follows:

As we send hundreds of billions of dollars in Federal aid to the areas devastated by Hurrican Katrina, we must remember that we are just rebuilding highway and schools--we are rebuilding communities and neighborhoods. And the foundation of such communities is good jobs with fair wages.

The winds of Katrina exposed to all of America just how much more work remains to be done to achieve equality and fairness in this country. We are a stronger country when we are a fairer country. Yet, as the Administration awards billions of dollars in contracts to many of their corporate friends, they decide that the men and women of the gulf coast don't deserve to be paid a fair wage. The victims of Katrina have lost everything, and now President Bush says it is okay for them to lose their fair wages too. That is why I am introducing this legislation to ensure that that the workers involved in the recovery and reconstruction effort after Hurricane Katrina will earn a prevailing wage.

Many people harmed by Hurricane Katrina were already struggling to make ends meet. Mississippi and Louisiana rank 1st and 2nd among States by the percentage of people below the poverty line. Moreover, Mississippi and Louisiana rank 2nd and 3rd by the percentage of children below the poverty line. Now the devastation of hurricane has caused the jobs and businesses they relied on to disappear. Experts have said that from 400,000 to 1 million workers may become unemployed as a result of the hurricane, with the unemployment rate reaching 25 percent or higher in the gulf region. Many affected workers will be unemployed for 9 months or longer.

The new jobs in the clean up, recovery, and rebuilding of the area will be a major source of new employment, and we need to be sure that they pay decent wages. This is all that Davis-Bacon does: it simply ensures that workers on Federal Government

projects earn a typical wage. Otherwise the large size of Federal contracts can overwhelm a local labor market lead to bidding wars that drive wages down. Indeed, Representative Davis and Senator Bacon were Republicans who wanted to protect local contractors, who would not be able to compete in such a price war.

Workers who take these jobs will already face special hazards. Each day the administration reveals more details about workers' exposure to elevated levels of e.coli, toxic chemicals from flooded Superfund sites, and contaminants from massive oil spills. These workers should not have to suffer below-market wages, too.

But the President apparently believes that workers in Louisiana, Mississippi, Alabama, and parts of Florida don't even deserve to earn a decent wage for a day's work. He would have you believe that Davis- Bacon wages are exorbitant--nothing could be further from the truth. Indeed, in areas affected by Katrina, some typical wages include: $9.16 per hour sheet metal workers, in Pearl River County, MS, $10.00 per hour for laborers in Livingston Parish, LA, $8.54 hour for truckdrivers in Mobile County, AL. And Federal spending post-Hurricane Katrina should be lifting workers up, not forcing them into a race to the bottom.

I urge the Congress to reverse the President's decision and to stand with the hardworking men and women of the gulf coast as they rebuild their towns and their lives.