MEJA Expansion and Enforcement Act of 2007

Mr. Speaker, my colleague from Virginia has offered a motion to recommit H.R. 2740 the MEJA Expansion and Enforcement Act, to the Judiciary Committee and to amend the legislation with regard to intelligence activities. I will support this motion, but with two important qualifications.

The motion to recommit would amend H.R. 2740 with a rule of construction, stating, ``nothing in this Act shall be construed to affect intelligence activities that are otherwise permissible prior to the enactment of this Act.'' This amendment does not at all modify the force of my legislation, does not limit the scope of the MEJA jurisdiction, and does not grant immunity to anyone, including contractor employees of the intelligence community. Put simply, I am voting in support of this motion because it in no way alters the underlying bill before us.

With that said, let me attach two qualifications to my support. First, the amendment is

unnecessary in the context of both current law and this legislation. Second, the amendment raises serious questions about the activities its proponents may be seeking to protect.

My legislation would indeed place contractor employees of non-defense related agencies under the extraterritorial jurisdiction of United States federal law, granting the Department of Justice authority to prosecute felony offenses committed by non-defense contractors. Defense contractors are already covered by MEJA, a point that seems lost on the authors of this motion. Given that the majority of the intelligence community falls under the Department of Defense, it stands to reason that many--if not most--contractors engaged in intelligence-related activities are already under the jurisdiction of federal law. Not only that, employees of the Defense Department intelligence agencies, including agents of the Defense Intelligence Agency, the National Security Agency, and intelligence services of the different branches of the Armed Forces, among others, are covered by MEJA, and this coverage has not endangered our national security in the least. So concerns about my legislation, which deals with non-defense contractors, seem ill-founded in the context of current law.

To my knowledge, there have never been significant concerns raised about the coverage of these Defense Department intelligence agents and contractors, for one major reason: prosecutorial discretion. The Department of Justice always has the discretion to refrain from prosecuting a case if it will endanger our national security interests. My legislation does not compel prosecution and it does not interfere with the prosecutor's discretion. If a prosecutor ever has concerns that prosecution of a contractor under MEJA would endanger state secrets, expose clandestine networks, or otherwise undermine our security interests, the prosecutor has the discretion not to prosecute the case. It's as simple as that.

Let me also point out that this bill only affects contractors who commit felony crimes. So long as private contractors, including those who are engaged in intelligence-related activities, are conducting themselves within the bounds of the law, this legislation is irrelevant to them. However, if there are private, for-profit contractors tasked with duties that require them to commit felony offenses, Congress needs to know about it. Such a revelation would point to a need for a serious debate about whether we are using contractors appropriately.

My second qualification is that this amendment raises serious questions about the activities it may be intended to protect. The question here is, given that my bill only targets activities that are unlawful, why do my colleagues feel the need to clarify that it does not affect activities that are permissible? What activities are contractors carrying out that are permissible but not lawful?

I have great apprehension about what might be meant in this context, but first let me state clearly: the law is the highest authority in the land, other than the constitution. The law trumps executive orders, memorandums, and policies in all cases. I am voting for this motion with the understanding that there is no activity a contractor might be performing that could ever be permissible but not lawful. The activities that we assign to private contractors must be in accordance with the law on the books. Therefore, I interpret this motion simply to mean that nothing in my bill will have any effect on contractors working on lawful, permissible, appropriate intelligence activities.

I raise this concern because, as my colleagues well know, Congress-- including members on both sides of the aisle--and this Administration have been at significant odds about the activities appropriate for our military and intelligence community to perform in certain contexts relating to the war in Iraq and the broader war against terrorism, especially with regard to the treatment of suspects in interrogations and detentions. There is rampant evidence that this Administration believes certain activities to be ``permissible'' which are clearly illegal under several statutes in United States Code.

Just today, for example, the New York Times reported that the Department of Justice has issued secret memorandums that, in direct contrast to the policies they have publicly avowed, amounted to ``an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency'' and ``for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures.'' I submit the full article for inclusion in the Record.

The harshest forms of physical and psychological tactics outlined in this article are inappropriate and illegal for our military personnel and intelligence agents, to say nothing of private contractors, and it is abominable that this Administration continues to work to circumvent our time-honored values and laws to authorize behavior that is un- American to its core.

There are clear laws on the books prohibiting torture, including the War Crimes Act (18 U.S. Code 2441) and the federal anti-torture statute (18 U.S. Code 2340). Moreover, torture is prohibited by the Uniform Code of Military Justice (articles 77-134). And the United States is a ratified signatory to international treaties, including the Geneva Conventions (Common Article 3) and the Convention Against Torture, which specifically outlaw torture. Most importantly, the United States Constitution (amendments 5, 8, and 14) explicitly prohibits cruel, unusual, and inhumane treatment or punishment.

The kinds of activities that, to the great shame of our nation, have been carried out at Abu Ghraib prison and Guantanamo Bay detention facilities are not, in any circumstances, permissible. Let us be clear that, in the passage of this motion, we are in no way authorizing or legitimating these behaviors. Let us also be clear that, in this passage of this legislation, we are providing federal prosecutors the tools to arrest and prosecute any contractor working for this government who commits such abominable acts to the full extent of the law.

[From the New York Times, Oct. 4, 2007]

Secret U.S. Endorsement of Severe Interrogations

(By Scott Shane, David Johnston and James Risen)

Washington, Oct. 3.--When the Justice Department publicly

declared torture ``abhorrent'' in a legal opinion in December

2004, the Bush administration appeared to have abandoned its

assertion of nearly unlimited presidential authority to order

brutal interrogations.

But soon after Alberto R. Gonzales's arrival as attorney

general in February 2005, the Justice Department issued

another opinion, this one in secret. It was a very different

document, according to officials briefed on it, an expansive

endorsement of the harshest interrogation techniques ever

used by the Central Intelligence Agency.

The new opinion, the officials said, for the first time

provided explicit authorization to barrage terror suspects

with a combination of painful physical and psychological

tactics, including head-slapping, simulated drowning and

frigid temperatures.

Mr. Gonzales approved the legal memorandum on ``combined

effects'' over the objections of James B. Comey, the deputy

attorney general, who was leaving his job after bruising

clashes with the White House. Disagreeing with what he viewed

as the opinion's overreaching legal reasoning, Mr. Comey told

colleagues at the department that they would all be

``ashamed'' when the world eventually learned of it.

Later that year, as Congress moved toward outlawing

``cruel, inhuman and degrading'' treatment, the Justice

Department issued another secret opinion, one most lawmakers

did not know existed, current and former officials said. The

Justice Department document declared that none of the C.I.A.

interrogation methods violated that standard.

The classified opinions, never previously disclosed, are a

hidden legacy of President Bush's second term and Mr.

Gonzales's tenure at the Justice Department, where he moved

quickly to align it with the White House after a 2004

rebellion by staff lawyers that had thrown policies on

surveillance and detention into turmoil.

Congress and the Supreme Court have intervened repeatedly

in the last two years to impose limits on interrogations, and

the administration has responded as a policy matter by

dropping the most extreme techniques. But the 2005 Justice

Department opinions remain in effect, and their legal

conclusions have been confirmed by several more recent

memorandums, officials said. They show how the White House

has succeeded in preserving the broadest possible legal

latitude for harsh tactics.

A White House spokesman, Tony Fratto, said Wednesday that

he would not comment on any legal opinion related to

interrogations. Mr. Fratto added, ``We have gone to great

lengths, including statutory efforts and the recent executive

order, to make it clear that the intelligence community and

our practices fall within U.S. law'' and international

agreements.

More than two dozen current and former officials involved

in counterterrorism were interviewed over the past three

months about the opinions and the deliberations on

interrogation policy. Most officials would speak only on the

condition of anonymity because of the secrecy of the

documents and the C.I.A. detention operations they govern.

When he stepped down as attorney general in September after

widespread criticism of the firing of federal prosecutors and

withering attacks on his credibility, Mr. Gonzales talked

proudly in a farewell speech of how his department was ``a

place of inspiration'' that had balanced the necessary

flexibility to conduct the war on terrorism with the need to

uphold the law.

Associates at the Justice Department said Mr. Gonzales

seldom resisted pressure from Vice President Dick Cheney and

David S. Addington, Mr. Cheney's counsel, to endorse policies

that they saw as effective in safeguarding Americans, even

though the practices brought the condemnation of other

governments, human rights groups and Democrats in Congress.

Critics say Mr. Gonzales turned his agency into an arm of the

Bush

White House, undermining the department's independence.

The interrogation opinions were signed by Steven G.

Bradbury, who since 2005 has headed the elite Office of Legal

Counsel at the Justice Department. He has become a frequent

public defender of the National Security Agency's domestic

surveillance program and detention policies at Congressional

hearings and press briefings, a role that some legal scholars

say is at odds with the office's tradition of avoiding

political advocacy.

Mr. Bradbury defended the work of his office as the

government's most authoritative interpreter of the law. ``In

my experience, the White House has not told me how an opinion

should come out,'' he said in an interview. ``The White House

has accepted and respected our opinions, even when they

didn't like the advice being given.''

The debate over how terrorism suspects should be held and

questioned began shortly after the Sept. 11, 2001, attacks,

when the Bush administration adopted secret detention and

coercive interrogation, both practices the United States had

previously denounced when used by other countries. It adopted

the new measures without public debate or Congressional vote,

choosing to rely instead on the confidential legal advice of

a handful of appointees.

The policies set off bruising internal battles, pitting

administration moderates against hard-liners, military

lawyers against Pentagon chiefs and, most surprising, a

handful of conservative lawyers at the Justice Department

against the White House in the stunning mutiny of 2004. But

under Mr. Gonzales and Mr. Bradbury, the Justice

Department was wrenched back into line with the White

House.

After the Supreme Court ruled in 2006 that the Geneva

Conventions applied to prisoners who belonged to Al Qaeda,

President Bush for the first time acknowledged the C.I.A.'s

secret jails and ordered their inmates moved to Guantanamo

Bay, Cuba. The C.I.A. halted its use of waterboarding, or

pouring water over a bound prisoner's cloth-covered face to

induce fear of suffocation.

But in July, after a monthlong debate inside the

administration, President Bush signed a new executive order

authorizing the use of what the administration calls

``enhanced'' interrogation techniques--the details remain

secret--and officials say the C.I.A. again is holding

prisoners in ``black sites'' overseas. The executive order

was reviewed and approved by Mr. Bradbury and the Office of

Legal Counsel.

Douglas W. Kmiec, who headed that office under President

Ronald Reagan and the first President George Bush and wrote a

book about it, said he believed the intense pressures of the

campaign against terrorism have warped the office's proper

role.

``The office was designed to insulate against any need to

be an advocate,'' said Mr. Kmiec, now a conservative scholar

at Pepperdine University law school. But at times in recent

years, Mr. Kmiec said, the office, headed by William H.

Rehnquist and Antonin Scalia before they served on the

Supreme Court, ``lost its ability to say no.'' ``The approach

changed dramatically with opinions on the war on terror,''

Mr. Kmiec said. ``The office became an advocate for the

president's policies.''

From the secret sites in Afghanistan, Thailand and Eastern

Europe where C.I.A. teams held Qaeda terrorists, questions

for the lawyers at C.I.A. headquarters arrived daily. Nervous

interrogators wanted to know: Are we breaking the laws

against torture? The Bush administration had entered

uncharted legal territory beginning in 2002, holding

prisoners outside the scrutiny of the International Red Cross

and subjecting them to harrowing pressure tactics. They

included slaps to the head; hours held naked in a frigid

cell; days and nights without sleep while battered by

thundering rock music; long periods manacled in stress

positions; or the ultimate, waterboarding.

Never in history had the United States authorized such

tactics. While President Bush and C.I.A. officials would

later insist that the harsh measures produced crucial

intelligence, many veteran interrogators, psychologists and

other experts say that less coercive methods are equally or

more effective.

With virtually no experience in interrogations, the C.I.A.

had constructed its program in a few harried months by

consulting Egyptian and Saudi intelligence officials and

copying Soviet interrogation methods long used in training

American service men to withstand capture. The agency

officers questioning prisoners constantly sought advice from

lawyers thousands of miles away.

``We were getting asked about combinations--`Can we do this

and this at the same time?' '' recalled Paul C. Kelbaugh, a

veteran intelligence lawyer who was deputy legal counsel at

the C.I.A.'s Counterterrorist Center from 2001 to 2003.

Interrogators were worried that even approved techniques

had such a painful, multiplying effect when combined that

they might cross the legal line, Mr. Kelbaugh said. He

recalled agency officers asking: ``These approved techniques,

say, withholding food, and 50-degree temperature--can they be

combined?'' Or ``Do I have to do the less extreme before the

more extreme?''

The questions came more frequently, Mr. Kelbaugh said, as

word spread about a C.I.A. inspector general inquiry

unrelated to the war on terrorism. Some veteran C.I.A.

officers came under scrutiny because they were advisers to

Peruvian officers who in early 2001 shot down a missionary

flight they had mistaken for a drug-running aircraft. The

Americans were not charged with crimes, but they endured

three years of investigation, saw their careers derailed and

ran up big legal bills.

That experience shook the Qaeda interrogation team, Mr.

Kelbaugh said. ``You think you're making a difference and

maybe saving 3,000 American lives from the next attack. And

someone tells you, `Well, that guidance was a little vague,

and the inspector general wants to talk to you,' '' he

recalled. ``We couldn't tell them, `Do the best you can,'

because the people who did the best they could in Peru were

looking at a grand jury.'' Mr. Kelbaugh said the questions

were sometimes close calls that required consultation with

the Justice Department. But in August 2002, the department

provided a sweeping legal justification for even the harshest

tactics.

That opinion, which would become infamous as ``the torture

memo'' after it was leaked, was written largely by John Yoo,

a young Berkeley law professor serving in the Office of Legal

Counsel. His broad views of presidential power were shared by

Mr. Addington, the vice president's adviser. Their close

alliance provoked John Ashcroft, then the attorney general,

to refer privately to Mr. Yoo as Dr. Yes for his seeming

eagerness to give the White House whatever legal

justifications it desired, a Justice Department official

recalled.

Mr. Yoo's memorandum said no interrogation practices were

illegal unless they produced pain equivalent to organ failure

or ``even death.'' A second memo produced at the same time

spelled out the approved practices and how often or how long

they could be used. Despite that guidance, in March 2003,

when the C.I.A. caught Khalid Sheikh Mohammed, the chief

planner of the Sept. 11 attacks, interrogators were again

haunted by uncertainty. Former intelligence officials, for

the first time, disclosed that a variety of tough

interrogation tactics were used about 100 times over two

weeks on Mr. Mohammed. Agency officials then ordered a halt,

fearing the combined assault might have amounted to illegal

torture. A C.I.A. spokesman, George Little, declined to

discuss the handling of Mr. Mohammed. Mr. Little said the

program ``has been conducted lawfully, with great care and

close review'' and ``has helped our country disrupt terrorist

plots and save innocent lives.''

``The agency has always sought a clear legal framework,

conducting the program in strict accord with U.S. law, and

protecting the officers who go face-to-face with ruthless

terrorists,'' Mr. Little added.

Some intelligence officers say that many of Mr. Mohammed's

statements proved exaggerated or false. One problem, a former

senior agency official said, was that the C.I.A.'s initial

interrogators were not experts on Mr. Mohammed's background

or Al Qaeda, and it took about a month to get such an expert

to the secret prison. The former official said many C.I.A.

professionals now believe patient, repeated questioning by

well-informed experts is more effective than harsh physical

pressure.

Other intelligence officers, including Mr. Kelbaugh, insist

that the harsh treatment produced invaluable insights into Al

Qaeda's structure and plans. ``We leaned in pretty hard on

K.S.M.,'' Mr. Kelbaugh said, referring to Mr. Mohammed. ``We

were getting good information, and then they were told:

``Slow it down. It may not be correct. Wait for some legal

clarification.''

The doubts at the C.I.A. proved prophetic. In late 2003,

after Mr. Yoo left the Justice Department, the new head of

the Office of Legal Counsel, Jack Goldsmith, began reviewing

his work, which he found deeply flawed. Mr. Goldsmith

infuriated White House officials, first by rejecting part of

the National Security Agency's surveillance program,

prompting the threat of mass resignations by top Justice

Department officials, including Mr. Ashcroft and Mr. Comey,

and a showdown at the attorney general's hospital bedside.

Then, in June 2004, Mr. Goldsmith formally withdrew the

August 2002 Yoo memorandum on interrogation, which he found

overreaching and poorly reasoned. Mr. Goldsmith left the

Justice Department soon afterward. He first spoke at length

about his dissenting views to The New York Times last month,

and testified before the Senate Judiciary Committee on

Tuesday.

Six months later, the Justice Department quietly posted on

its Web site a new legal opinion that appeared to end any

flirtation with torture, starting with its clarionlike

opening: ``Torture is abhorrent both to American law and

values and to international norms.''

A single footnote--added to reassure the C.I.A.--suggested

that the Justice Department was not declaring the agency's

previous actions illegal. But the opinion was unmistakably a

retreat. Some White House officials had opposed publicizing

the document, but acquiesced to Justice Department officials

who argued that doing so would help clear the way for Mr.

Gonzales's confirmation as attorney general.

If President Bush wanted to make sure the Justice

Department did not rebel again, Mr. Gonzales was the ideal

choice. As White House counsel, he had been a fierce

protector of the president's prerogatives. Deeply loyal to

Mr. Bush for championing his career from their days in Texas,

Mr. Gonzales would sometimes tell colleagues that he had just

one regret about becoming attorney general: He did not see

nearly as much of the president as he had in his previous

post.

Among his first tasks at the Justice Department was to find

a trusted chief for the Office of Legal Counsel. First he

informed Daniel Levin, the acting head who had backed Mr.

Goldsmith's dissents and signed the new opinion renouncing

torture, that he would not get the job. He encouraged Mr.

Levin to take a position at the National Security Council, in

effect sidelining him.

Mr. Bradbury soon emerged as the presumed favorite. But

White House officials, still smarting from Mr. Goldsmith's

rebuffs, chose to delay his nomination. Harriet E. Miers, the

new White House counsel, ``decided to watch Bradbury for a

month or two. He was sort of on trial,'' one Justice

Department official recalled.

Mr. Bradbury's biography had a Horatio Alger element that

appealed to a succession of bosses, including Justice

Clarence Thomas of the Supreme Court and Mr. Gonzales, the

son of poor immigrants. Mr. Bradbury's father had died when

he was an infant, and his mother took in laundry to support

her children. The first in his family to go to college, he

attended Stanford and the University of Michigan Law School.

He joined the law firm of Kirkland & Ellis, where he came

under the tutelage of Kenneth W. Starr, the Whitewater

independent prosecutor.

Mr. Bradbury belonged to the same circle as his

predecessors: young, conservative lawyers with sterling

credentials, often with clerkships for prominent conservative

judges and ties to the Federalist Society, a powerhouse of

the legal right. Mr. Yoo, in fact, had proposed his old

friend Mr. Goldsmith for the Office of Legal Counsel job; Mr.

Goldsmith had hired Mr. Bradbury as his top deputy.

``We all grew up together,'' said Viet D. Dinh, an

assistant attorney general from 2001 to 2003 and very much a

member of the club. ``You start with a small universe of

Supreme Court clerks, and you narrow it down from there.''

But what might have been subtle differences in quieter

times now cleaved them into warring camps.

Justice Department colleagues say Mr. Gonzales was soon

meeting frequently with Mr. Bradbury on national security

issues, a White House priority. Admirers describe Mr.

Bradbury as low-key but highly skilled, a conciliator who

brought from 10 years of corporate practice a more pragmatic

approach to the job than Mr. Yoo and Mr. Goldsmith, both from

the academic world.

``As a practicing lawyer, you know how to address real

problems,'' said Noel J. Francisco, who worked at the Justice

Department from 2003 to 2005. ``At O.L.C., you're not writing

law review articles and you're not theorizing. You're giving

a client practical advice on a real problem.''

As he had at the White House, Mr. Gonzales usually said

little in meetings with other officials, often deferring to

the hard-driving Mr. Addington. Mr. Bradbury also often

appeared in accord with the vice president's lawyer.

Mr. Bradbury appeared to be ``fundamentally sympathetic to

what the White House and the C.I.A. wanted to do,'' recalled

Philip Zelikow, a former top State Department official. At

interagency meetings on detention and interrogation, Mr.

Addington was at times ``vituperative,'' said Mr. Zelikow,

but Mr. Bradbury, while taking similar positions, was

``professional and collegial.''

While waiting to learn whether he would be nominated to

head the Office of Legal Counsel, Mr. Bradbury was in an

awkward position, knowing that a decision contrary to White

House wishes could kill his chances.

Charles J. Cooper, who headed the Office of Legal Counsel

under President Reagan, said he was ``very troubled'' at the

notion of a probationary period.

``If the purpose of the delay was a tryout, I think they

should have avoided it,'' Mr. Cooper said. ``You're implying

that the acting official is molding his or her legal analysis

to win the job.''

Mr. Bradbury said he made no such concessions. ``No one

ever suggested to me that my nomination depended on how I

ruled on any opinion,'' he said. ``Every opinion I've signed

at the Office of Legal Counsel represents my best judgment of

what the law requires.''

Scott Horton, an attorney affiliated with Human Rights

First who has closely followed the interrogation debate, said

any official offering legal advice on the campaign against

terror was on treacherous ground.

``For government lawyers, the national security issues they

were deciding were like working with nuclear waste--extremely

hazardous to their health,'' Mr. Horton said. ``If you give

the administration what it wants, you'll lose credibility in

the academic community,'' he said. ``But if you hold back,

you'll be vilified by conservatives and the administration.''

In any case, the White House grew comfortable with Mr.

Bradbury's approach. He helped block the appointment of a

liberal Ivy League law professor to a career post in the

Office of Legal Counsel. And he signed the opinion approving

combined interrogation techniques.

Mr. Comey strongly objected and told associates that he

advised Mr. Gonzales not to endorse the opinion. But the

attorney general made clear that the White House was adamant

about it, and that he would do nothing to resist.

Under Mr. Ashcroft, Mr. Comey's opposition might have

killed the opinion. An imposing former prosecutor and self-

described conservative who stands 6-foot-8, he was the rare

administration official who was willing to confront Mr.

Addington. At one testy 2004 White House meeting, when Mr.

Comey stated that ``no lawyer'' would endorse Mr. Yoo's

justification for the N.S.A. program, Mr. Addington demurred,

saying he was a lawyer and found it convincing. Mr. Comey

shot back: ``No good lawyer,'' according to someone present.

But under Mr. Gonzales, and after the departure of Mr.

Goldsmith and other allies, the deputy attorney general found

himself isolated. His troublemaking on N.S.A. and on

interrogation, and in appointing his friend Patrick J.

Fitzgerald as special prosecutor in the C.I.A. leak case,

which would lead to the perjury conviction of I. Lewis Libby,

Mr. Cheney's chief of staff, had irreparably offended the

White House.

``On national security matters generally, there was a sense

that Comey was a wimp and that Comey was disloyal,'' said one

Justice Department official who heard the White House talk,

expressed with particular force by Mr. Addington.

Mr. Comey provided some hints of his thinking about

interrogation and related issues in a speech that spring.

Speaking at the N.S.A.'s Fort Meade campus on Law Day--a

noteworthy setting for the man who had helped lead the

dissent a year earlier that forced some changes in the N.S.A.

program--Mr. Comey spoke of the ``agonizing collisions'' of

the law and the desire to protect Americans.

``We are likely to hear the words: `If we don't do this,

people will die,' '' Mr. Comey said. But he argued that

government lawyers must uphold the principles of their great

institutions.

``It takes far more than a sharp legal mind to say `no'

when it matters most,'' he said. ``It takes moral character.

It takes an understanding that in the long run, intelligence

under law is the only sustainable intelligence in this

country.''

Mr. Gonzales's aides were happy to see Mr. Comey depart in

the summer of 2005. That June, President Bush nominated Mr.

Bradbury to head the Office of Legal Counsel, which some

colleagues viewed as a sign that he had passed a loyalty

test. Soon Mr. Bradbury applied his practical approach to a

new challenge to the C.I.A.'s methods.

The administration had always asserted that the C.I.A.'s

pressure tactics did not amount to torture, which is banned

by federal law and international treaty. But officials had

privately decided the agency did not have to comply with

another provision in the Convention Against Torture--the

prohibition on ``cruel, inhuman, or degrading'' treatment.

Now that loophole was about to be closed. First Senator

Richard J. Durbin, Democrat of Illinois, and then Senator

John McCain, the Arizona Republican who had been tortured as

a prisoner in North Vietnam, proposed legislation to ban such

treatment. At the administration's request, Mr. Bradbury

assessed whether the proposed legislation would outlaw any

C.I.A. methods, a legal question that had never before been

answered by the Justice Department.

At least a few administration officials argued that no

reasonable interpretation of ``cruel, inhuman or degrading''

would permit the most extreme C.I.A. methods, like

waterboarding. Mr. Bradbury was placed in a tough spot, said

Mr. Zelikow, the State Department counselor, who was working

at the time to rein in interrogation policy. ``If Justice

says some practices are in violation of the C.I.D.

standard,'' Mr. Zelikow said, referring to cruel, inhuman or

degrading, ``then they are now saying that officials broke

current law.''

In the end, Mr. Bradbury's opinion delivered what the White

House wanted: a statement that the standard imposed by Mr.

McCain's Detainee Treatment Act would not force any change in

the C.I.A.'s practices, according to officials familiar with

the memo. Relying on a Supreme Court finding that only

conduct that ``shocks the conscience'' was unconstitutional,

the opinion found that in some circumstances not even

waterboarding was necessarily cruel, inhuman or degrading,

if, for example, a suspect was believed to possess crucial

intelligence about a planned terrorist attack, the officials

familiar with the legal finding said.

In a frequent practice, Mr. Bush attached a statement to

the new law when he signed it, declaring his authority to set

aside the restrictions if they interfered with his

constitutional powers. At the same time, though, the

administration responded to pressure from Mr. McCain and

other lawmakers by reviewing interrogation policy and giving

up several C.I.A. techniques.

Since late 2005, Mr. Bradbury has become a linchpin of the

administration's defense of counterterrorism programs,

helping to negotiate the Military Commissions Act last year

and frequently testifying about the N.S.A. surveillance

program. Once, he answered questions about administration

detention policies for an ``Ask the White House'' feature on

a Web site.

Mr. Kmiec, the former Office of Legal Counsel head now at

Pepperdine, called Mr. Bradbury's public activities a

departure for an office that traditionally has shunned any

advocacy role.

A senior administration official called Mr. Bradbury's

active role in shaping legislation and speaking to Congress

and the press ``entirely appropriate'' and consistent with

past practice. The official, who spoke on the condition of

anonymity, said Mr. Bradbury ``has played a critical role in

achieving greater transparency'' on the legal basis for

detention and surveillance programs.

Though President Bush repeatedly nominated Mr. Bradbury as

the Office of Legal Counsel's assistant attorney general,

Democratic senators have blocked the nomination. Senator

Durbin said the Justice Department would not turn over copies

of his opinions or other evidence of Mr. Bradbury's role in

interrogation policy.

``There are fundamental questions about whether Mr.

Bradbury approved interrogation methods that are clearly

unacceptable,'' Mr. Durbin said.

John D. Hutson, who served as the Navy's top lawyer from

1997 to 2000, said he believed that the existence of legal

opinions justifying abusive treatment is pernicious,

potentially blurring the rules for Americans handling

prisoners.

``I know from the military that if you tell someone they

can do a little of this for the country's good, some people

will do a lot of it for the country's better,'' Mr. Hutson

said. Like other military lawyers, he also fears that

official American acceptance of such treatment could endanger

Americans in the future.

``The problem is, once you've got a legal opinion that says

such a technique is O.K., what happens when one of our people

is captured and they do it to him? How do we protest then?''

he asked.

Madam Chairwoman, I yield myself such time as I may consume.

Madam Chairwoman, when I walk into this great body, I understand often why our approval ratings are so low with the American people, because they tune in and they listen to our debates and they listen to us talk about problems, and then they actually read the legislation and they look at the proposed solutions and they scratch their heads and oftentimes say there's a huge disconnect between the two.

The other thing that they see is they see Members on this side of the aisle and certain Members on that side of the aisle who scratch our heads and wonder why we can't come together in a bipartisan manner to create solutions that actually work. And this piece of legislation is exactly why that isn't able to happen. Because when this bill came through the Judiciary Committee, the minority and the majority both agreed, it was voted out by voice vote because the intent that you will hear discussed today was supported by both the majority and the minority. But we were given assurances, and we certainly had the expectations, that the absolutely poor drafting of this legislation would be corrected before it came to the floor. And we had opportunities to do that, Madam Chairwoman, but they didn't happen.

And so today we have a bill that Members are in somewhat of a quandary over how they vote because they can either vote on this bill and vote against the bill to send a message to the Senate that it needs work and it needs to be corrected, even though they support the intent of the bill and hope the Senate will do what we cannot do, and that is, correct the poor draftsmanship, or they can vote for the bill because they support the intent of the bill, and again, hope springs eternal, and hope that the Senate will be able to correct the poor draftsmanship and send us back a better bill in conference.

I am not going to suggest which way they should vote, but let me try to correct the disconnect between the problems that are alleged and the actual legislation, because it's an intent that's important for us to get right, but it's important for us to get right with proper drafting.

First of all, under MEJA, which was passed under the previous majority, let me tell you who was actually covered. Under that bill, which is the reach we have to reach out for individuals who may be Americans who do stuff that's wrong overseas under contracts at that time, every Member of the Armed Forces that was subject to the Uniform Code of Military Justice was covered. Every civilian employee of DOD was already covered. All the employees of every other Federal agency and every provisional authority who was supporting a mission of DOD was covered. Every contractor of DOD, covered. All contractors of any Federal agency or provisional authority supporting missions, and their employees, covered. The dependents of the members of the Armed Forces, covered. The dependents of the civilian employees of DOD, covered. And the dependents of DOD contractors, all covered under current legislation.

Now, what does this legislation purport to do? What it purports to do is to add contractors of other Federal agencies who are not supporting DOD missions but who work in, according to the language of the bill, close proximity to a contingency operation. Well, Madam Chairman, the problem is that we've actually reduced some of the jurisdiction as opposed to increased the jurisdiction under this particular legislation.

First of all, there is no defining of what ``close proximity'' actually means. And there is no carve-out for those who are supporting a DOD mission who might not be in close proximity to a contingency operation.

So, Madam Chairwoman, under the proposed legislation, if we have a contractor who was doing something that would have been covered because they were in support of a DOD mission, but let's say they were on a base in Germany, because they were not in proximity or close proximity to an area of contingent operations, under the previous jurisdiction they've been covered; under this jurisdiction they would no longer be covered. That's something that could have easily been corrected in the draftsmanship if we had been given the opportunity to do that prior to coming to the floor.

The second thing, Madam Chairwoman, is when it comes to intelligence operations, which will now be brought under this particular bill, there is no carve-out under this bill for employees who may be working in operations that are involved in intelligence. If they are accused of doing a particular criminal act and they are then exposed and the linkage is because they're hired to do intelligence activities somewhere else, that entire network could then be exposed and the security of this country jeopardized, which certainly shouldn't be the intent of what we want. Again, that could have easily been corrected if we could have just written that in and corrected it before it came here.

The other thing, Madam Chairman, is there is no carve-out for residents and nationals of other countries. In the current bill there is, but under this particular legislation and the way this bill came to the floor, it may not be. We can actually have an employee of a company from another country, not even a resident of the United States, who could be employed by one of our corporations doing work for the United States, and because of the way this bill is drafted, when they say just because they're in the employ and they didn't put a scope of employment definition in the bill, then even if that person was outside of his employment, even if he was off the job, even if he wasn't working then, if he committed an act that might be a criminal offense in the United States, even if it wasn't a criminal offense in the country in which he did it, under this bill there would be jurisdiction, but there are all kinds of questions as to whether or not we could pick him up, arrest him and detain him.

The final thing, Madam Chairman, that could have easily been corrected and wasn't done is this bill sends the FBI to do these investigations in theater of operations, and there is no definition for what theater of operations actually is. We are now putting our agents in danger to do investigations in areas of military conflict where they primarily do investigations domestically at home, but we don't give them any funding to do it; we just mandate that they do it. And some of the estimates of cost that were given in the committee were as much as $5 million just to do the investigations. That means that we will have FBI agents that will be doing investigations of employees who could be doing illegal activities overseas, but we may be taking them away from activities here domestically that they could be protecting American citizens here against terrorist activity, against gang activity and against things that are going on in the United States, and this bill doesn't give a dime of funding to do that.

So, Madam Chairman, this is a bill, the intent of which is a good intent; unfortunately, the draftsmanship is horrible. It is unfortunate that we couldn't have worked in a bipartisan way to have corrected those issues before they got to the floor.

Madam Chairman, I reserve the balance of my time.

Madam Chairman, I would have responded to the gentleman from North Carolina had he yielded to me when he asked me the question what I would do that we support the intent of this bill, but it doesn't justify writing a poor bill. It doesn't justify taking away existing jurisdiction. When we have contractors that are committing bad actions, whether they are in Iraq or whether they are in Germany, we want to hold them accountable. Why in the world we would draft legislation which could reduce that jurisdiction is beyond me.

I would like, Madam Chairman, to yield at this time 7 minutes to the distinguished gentleman from Connecticut (Mr. Shays).

Madam Chairman, I yield myself such time as I may consume.

Madam Chairman, once again we hear the intent, but why in the world we would want to reduce the current jurisdiction that we have, which is what we see reflected in this piece of legislation that could have been corrected, still is beyond me. If we have a contractor who is having employees doing illegal acts in a base in Germany in a mission for DOD, we would want to prosecute them every bit as much as we would if they were in Iraq. Why we want to reduce that, I just don't understand.

Madam Chairman, I yield 1 minute to the gentleman from Connecticut (Mr. Shays).

Madam Chairman, I yield myself such time as I may consume.

Madam Chairman, once again we hear the reasons and the policy reasons why we would like to have legislation, but it doesn't suggest why we need poorly drafted legislation.

My good friend from Virginia, for whom I have the utmost respect, mentioned that there were 17 pending cases of detainee abuse, including some that occurred at Abu Ghraib prison in Iraq. But we already have jurisdiction for those. This isn't a bill that deals with prosecutorial discretion or whether or not we are going to have prosecutors prosecute those cases. This is a jurisdictional bill.

The second thing, my good friend mentioned the fact that some of the deficiencies in this bill were corrected by the manager's amendment. The only thing the manager's amendment has done is to say with our security concerns for our FBI agents, who normally do not do investigations in war zones, they do them domestically, we have a manager's amendment that says that they can request assistance from the Secretary of Defense.

Madam Chairman, requesting assistance and security and getting it are two different things. We had the ability to request bipartisan cooperation in redrafting this legislation. It didn't happen.

So our concern, Madam Chairman, is not again all that we hear in the debate about getting at bad apples, but it is why we want to reduce the jurisdiction that we currently have for some of those bad apples; and, secondly, why we are going to expose and create vulnerabilities for our intelligence network and also for our FBI when it is so easily corrected, if we could just sit down and do that with the proper amendments.

Madam Chairman, I reserve the balance of my time.

Madam Chairman, once again I scratch my head as I listen. The gentleman has just stated on the one hand that the legislation does not reduce the jurisdiction and then 30 seconds later he says, oh, but there are differences between the bases in Germany and the bases in Iraq and it's okay if we don't prosecute the ones in Germany. We can't have it both ways.

Madam Chairman, this significantly does do it. The bottom line on this is that we have created a new standard which is proximity to contingency operations before we could reach in and get those bad actors in Germany and

many of the bad actors that were in the contingency operation areas.

I want to emphasize again on the FBI, it's not that we mind the FBI doing the work. We want to make sure that they are secure when they do it, and give them the funds to do it because they are stretched so thin defending us here against terrorists and defending us against gang and other criminal activities here, that it makes no sense for us to mandate that they would take those resources and spend them overseas without giving them the funds to do it.

Madam Chairman, I reserve the balance of my time.

Madam Chairman, I yield myself such time as I may consume.

Madam Chairman, once again my good friend from Virginia talks about equal justice; we agree. He talks about not acting with impunity; we agree.

That's why this minority when it was the majority passed the MEJA legislation in the first place. That is why we have covered the DOD contractors, their employees and dependents and the Armed Forces members. All of these individuals are already covered at this point in time if they are supporting a mission of DOD.

And we agree, the American people and most people in this House want us to reach out and get the bad actors. The only thing that they don't want us to do in the process is, one, jeopardize the intelligence operations that we could have, which this bill could easily do.

Number two, they don't want us to divert resources here from the United States in dealing with terrorism and gang activities and criminal activities here, or put our FBI agents in harm.

The third thing they don't want us to do is let bad actors do these things in Germany and Haiti wherever they may be sent just simply because we couldn't get the drafting right.

That is our point that we have been saying from the beginning. It is easy to have equal justice, not let contractors act with impunity, but write it in a good, rational basis that can be enforceable and not the kind of drafting that we have had brought forward in this legislation.

Madam Chairman, I reserve the balance of my time.

Madam Chairman, I yield myself such time as I may consume.

Madam Chairman, once again we hear the words that we can and we must do this, and we agree. The only thing, we must do it with proper legislation. Once again, as we pointed out, I don't see how any Member of this Congress or many of our citizens across the country want us to take individuals who may be employees doing intelligence operations for us in any area, and simply because they have an allegation of a criminal act that may not even have been criminal in that area, that they may be doing it on an undercover basis, that we then have to have them exposed which this act could very easily do, and the linkage would only be because they were hired to do that particular act; and, therefore, expose the entire network in that intelligence operation.

They are the kinds of things that we could easily correct so that we could do this legislation and accomplish the intent of the legislation.

Madam Chairman, I reserve the balance of my time.

I will be happy to, Mr. Chairman.

Madam Chairman, first of all, I am appreciative of all of the people who have worked on this legislation. I am appreciative of the comments we have had here. I think if we try to pick through the apples and the oranges and we look at what we have, we find that the intent of what we are trying to do is an intent that is shared by both sides of the aisle.

We don't want bad contractors. We don't want bad actors. We don't want people working in the name of the United States anywhere in the world that we aren't able to reach out and make sure that they are accountable. That's why this Congress previously on two different occasions has, one, passed the MEJA legislation and also expanded it. That's why we have already reached out and said if you are a member of the Armed Forces, we are going to reach out to you under MEJA and make sure that we hold you accountable.

That is why we have already said if you are an employee of DOD, we are going to reach out and hold you accountable. That is why we have already said if you are a civilian employee of any Federal agency in support of a DOD mission, we are going to hold reach out and hold you accountable. That is why we have already said if you are a contractor of DOD, we are going to reach out and hold you accountable. That's why we have said if you are a contractor of any other Federal agency and you are in support of a DOD mission, we are going to reach out and hold you accountable. That is why we have already said if you are a dependent of a member of the Armed Forces, we are going to hold you accountable. That is why we have already said if you are a dependent of a civilian employee of a DOD contractor, we are going to hold you accountable. Or if you are a dependent of a civilian employee of DOD, we are going to hold you accountable.

We do not have a problem, we encourage the reach-out, to hold accountable other contractors who might be working for other Federal agencies. But we think the wording in this bill, we could do much better. We hope that our friends in the Senate will sit down in a more bipartisan manner and correct those defects before this bill becomes law.

We believe a reading of the law does narrow the existing jurisdiction because we have added a phrase which is a limiter which means that it is within the proximity of the contingency operation. To many people listening to that debate, it is just words. But to the courts, it is litigation over what ``proximity'' means and it is a limiter which we believe could allow bad actors who could currently be brought under MEJA to escape liability.

In addition, we are very, very concerned in a world and in a day when we know that terrorists are out to get the United States that we not limit our intelligence operations. Why in the world we would want to expose some of those intelligence operations and the contractors that we have to hurting those intelligence networks when we could easily correct that is beyond me, especially in a day and age where we know that intelligence is so vitally important to the defense and the protection and the security of American citizens across the country.

Finally, Madam Chairman, it is of grave concern to us in what we are doing to the FBI, to enforce upon them, whereas before we have given them discretion. This is a mandate that they do investigations. It is a mandate that they furnish adequate personnel to do that. And to put them in a situation in a military conflict where they have to do these investigations is a concern for their security.

The second thing that it is a major concern of is diversion of assets that they are currently using in the United States to keep our citizens safe, to protect us from terrorists and gang activity, to protect us from other criminal activity here. If we are going to mandate that for them, at least let's put the funds there and make sure that we do it.

That is why I simply close the way I began by saying this is a bill that individuals will have to determine: Do they just simply want to vote for this bill in the hopes, and realizing that hope springs eternal, that perhaps the Senate can correct these defects before they become law and cast their vote because they agree, as I do, with the intent of this bill? Or do they cast a ``no'' vote even though they agree with the intent of the bill because they want to make sure that they have sent that signal over to our friends in the Senate that they want to protect our intelligence networks, protect the FBI, and make sure we expand, not decrease, the jurisdiction that we have.

With that, Madam Chairman, I yield back the balance of my time.

Madam Chairman, I rise to claim the time in opposition to this amendment.

Madam Chairman, I yield myself such time as I may consume.

Madam Chairman, the manager's amendment purports to correct several flaws with this legislation. Unfortunately, the amendment offered by my good friend, the distinguished chairman of the Judiciary Committee, misses the mark. It is one of those things that had we had the opportunity to work in a bipartisan way we could have corrected it. I don't have any pride of authorship, don't care who writes it. We just need to get it written correctly, and unfortunately, it's not written correctly as it's before us today.

H.R. 2740 imposes an unworkable and unnecessary geographic limitation on Federal jurisdiction to areas in ``close proximity'' to a contingency operation. The manager's amendment fails to correct this flaw. If the majority were serious about passing a good bill, it would have heeded the concerns of the Department of Defense that establishing extraterritorial jurisdiction based upon a tenuous link to geographic locations where a military presence can be found is impractical. Civilian criminal jurisdiction based on a nexus dependent upon a military ``contingency operation'' is ill-advised.

For instance, Madam Chairman, if the majority had consulted the Department of Defense, it would have learned that Secretary-designated contingency operations are rarely, if ever, used and are limited to operations with a view toward an enemy or opposing military force.

By-law designations, however, result from automatic actions during a war or a national emergency declared by the President or Congress, the scope of which may be unannounced, generally unknown, or imprecisely defined.

Thus, it will be next to impossible for Federal prosecutors to establish jurisdiction in a U.S. court based upon an indefinable proximity to a contingency operation at the time the offense occurred.

Moreover, the majority clearly did little to educate itself as to how the government currently investigates fraud or violent crimes committed by U.S. military personnel or contractors overseas. If it had, it would have learned that such investigations are not conducted solely by the

Madam Chairman, I yield myself such time as I may consume.

I have nothing but the utmost respect for my good friend from Virginia and the chairman of the Crime Subcommittee. However, that offer was extended to us when we had the bill come out of the Judiciary Committee, and we thought we were going to be able to make those corrections between then and the time it came to the floor. They weren't.

The manager's amendment that was ultimately filed was filed right before we could even file amendments, and I certainly was never presented with that amendment.

So we hope that the Senate will make these changes, Madam Chairman. We look forward to that. I think it's important for the American people and for the individuals that are defending this country.

Madam Chairman, I yield back the balance of my time.

Madam Chairman, I ask unanimous consent to claim the time in opposition to this amendment, although I'm not opposed to it.

Madam Chairman, I yield myself such time as I may consume.

This amendment, Madam Chairman, expands the reporting requirement of the Department of Justice Inspector General to include a list of charges that have been brought against contractors and contract employees in Iraq and Afghanistan, a list of all criminal investigations and reports made with respect to contractors and contract employees in Iraq and Afghanistan in cases where no criminal charges were ultimately brought, and a description of the legal actions taken by the United States Government against contractors and contract employees in Iraq and Afghanistan as a result of a criminal charge or criminal investigation.

This is important information that Congress should be provided in order to make informed and accurate decisions regarding the investigation and prosecution of offenses by contractors overseas. I urge my colleagues to support the amendment.

Madam Chairman, I yield back the balance of my time.

Madam Chairman, I yield myself such time as I may consume.

This amendment requires the FBI to report annually to Congress the number of reports received of criminal misconduct by contractors, the number of reports received of fatalities caused by contract personnel, the number of cases referred to the Attorney General, and statutory changes necessary for the Director to carry out the duties entailed by this bill.

As I mentioned earlier in this debate, the creation of Theater Investigative Units within the FBI will hinder rather than help the investigation and prosecution of overseas crimes under MEJA. The creation of such units ignores the current framework of interagency cooperation amongst the Departments of Justice, Defense and State.

More importantly, these investigative units are in direct conflict with statutory mandates under other portions of MEJA. For instance, MEJA, under title 10, section 3262, requires the Secretary of Defense to authorize a person within the Department of Defense to arrest persons subject to MEJA.

H.R. 2740 does nothing to address this requirement with the conflicting requirement that the FBI establish Theater Investigative Units. Which agency will take custody, detain and transfer suspects arrested under MEJA?

MEJA allows suspects to be transferred to authorities of a foreign country for trial in certain circumstances. The Secretary of Defense is responsible for determining which officials of a foreign country constitute appropriate authorities. Will the Secretary now be required to make this decision for contractors not associated with military operations or will this decision fall to the FBI and, if so, under what authority?

MEJA allows initial court proceedings to occur while the covered person is outside of the United States. When this occurs, MEJA requires that a suspect be appointed counsel by a Federal magistrate judge. Such a counsel is designated a qualified military counsel, which is designed as a judge advocate made available by the Secretary of Defense. So now will a contractor who isn't associated with military operations be assigned a military judge advocate to be his counsel? Or will the Department of Justice be required to designate qualified civilian counsel for nonmilitary contractors and under what authority?

Clearly, there are numerous flaws with the creation of FBI Theater Investigative Units. This amendment does not alleviate any of these concerns.

I urge my colleagues to oppose the amendment.

Madam Chairman, I yield back the balance of my time.

Mr. Speaker, I submit for the Record a statement from Stuart W. Bowen, Jr., Special Inspector General for Iraq Reconstruction.

Statement of Stuart W. Bowen Jr., Special Inspector General for Iraq

Reconstruction, Before the United States House of Representatives

Committee on the Judiciary Subcommittee on Crime, Terrorism, and

Homeland Security

War Profiteering and Other Contractor Crimes Committed Overseas

(Tuesday, June 19, 2007, Washington, DC)

Chairman Scott, Ranking Member Forbes, and members of the

Subcommittee, thank you for this opportunity to address you

today on the work of the Office of the Special Inspector

General for Iraq Reconstruction.

To ensure accurate context, permit me to outline several

points essential to understanding the challenges of

investigating and prosecuting fraud in Iraq.

First, corruption within the Iraqi government, indeed

within the fabric of Iraqi society, is a serious problem that

inhibits progress on many fronts in Iraq. This is widely

recognized by the Government of Iraq and the international

community. In our quarterly reports, SIGIR has called Iraq's

endemic corruption problem a ``second insurgency.''

I returned last month from my 16th trip to Iraq and, during

my visit, I met with the Commissioner of Public Integrity,

who heads the institution created by the CPA to increase

accountability for public corruption in Iraq--and the

President of the Board of Supreme Audit, the analogue to the

Government Accountability Office, which has existed in Iraq

for many decades. The Iraqi anti-corruption authorities again

emphasized to me the widespread nature of the problem of

corruption, which stretches across the government, afflicting

virtually every ministry. And they outlined for me the

difficulties they face in implementing their respective anti-

corruption mandates.

The CPI Commissioner told me that he currently has 2,000

cases involving $5 billion in alleged corruption. And the

President of the Board of Supreme Audit has hundreds of

audits ongoing. In virtually every case, he is uncovering a

lack of accountability. Let me emphasize that the CPI and the

BSA oversee Iraqi money--not U.S. money--that is missing or

has been stolen from Iraqi programs.

During my visit, I was informed about political

interference with the work of Iraqi investigators and

prosecutors. For example, I learned that Ministers and former

Ministers are exempt from prosecution unless the assent of

the Prime Minister is obtained; and each Minister is

entitled, under an Iraqi criminal code provision, to immunize

selectively ministry employees from being held accountable

for corruption.

Iraq must make progress on rule of law enforcement, in

general, and corruption, in particular; political

interference with fighting corruption remains a problem,

undermining the effectiveness of the developing rule of law

system and consequently eroding the Iraqi people's confidence

in their government.

Iraq is a sovereign state. The role of the United States

thus is to encourage the development of an efficient Iraqi

justice system. We do this for its own sake and for the sake

of maintaining and building upon the efforts made, at great

cost in blood and treasure, by Americans and Iraqis since the

liberation of Iraq.

SIGIR's specific role in this process has been to review

the effectiveness of United States efforts to improve the

rule of law system and to build up the corruption-fighting

capacity of the Iraqi government.

On July 28, 2006, SIGIR released a survey on this subject

and found that American efforts were funded at a very modest

level, given the scope of the problem, receiving about $65

million (about three-tenths of 1 percent of our total

reconstruction spending). My auditors found that American

efforts have not been sufficiently coordinated and focused

and that more adequate leadership and organization was

needed. The U.S. Embassy has responded to some of these

concerns since the review was released. SIGIR will soon

release another review on the issue, updating our previous

report.

SIGIR has a continuing investigative responsibility to

detect and investigate malfeasance in American relief and

reconstruction programs in Iraq. As part of this effort, we

have developed good working-level and leadership-level

relationships with the CPI and the BSA. We coordinate with

these Iraqi agencies whenever we come across evidence of

potential wrongdoing by Iraqis. SIGIR, of course,

concentrates its law enforcement efforts on American targets

and works with the Department of Justice in their effective

prosecution.

My second point is that the incidence of corruption within

the U.S. reconstruction program--judging from those cases

that we have uncovered thus far--appears to constitute a

relatively small component of the overall American

financial contribution to Iraq's reconstruction. Based on

the work of our 18 career investigators on SIGIR staff, I

believe that losses to American taxpayers from fraud

within reconstruction programs will likely amount to a

relatively small component of the overall investment in

Iraq, totaling in the tens of millions (rather than

hundreds of millions or billions, as is sometimes

imagined). However, the fact that the fraud we have

detected is relatively small (to date) does not diminish

the aggressiveness with which SIGIR pursues allegations of

fraud in Iraq. We have found egregious incidents of fraud.

And in partnership with the Department of Justice, SIGIR

has produced clear results in prosecutions and

convictions.

For example, in January, two individuals were sentenced to

prison as a result of SIGIR investigations. In early

February, indictments were announced of five more

individuals, resulting from SIGIR investigations. To date,

SIGIR has opened over 300 cases, and we have over 70 ongoing

investigations. Thirty-two of those cases are under

prosecution at the Department of Justice.

We believe that the publicity our enforcement actions have

received has helped to deter misconduct in the U.S.

reconstruction program. And we also believe that enforcement

will be an increasingly important part of SIGIR's mission

over the next 18 months. Moreover, in the course of this

year, we expect to produce concrete investigative results as

significant current cases come to fruition.

SIGIR remains committed to a robust, deterrent presence in

Iraq as long as our temporary organization exists. Today, I

have five investigators on the ground in Iraq investigating

fraud. Although there are other law enforcement agencies

fighting fraud in Iraq, SIGIR has maintained over the past 3

years the largest contingent of fraud investigators in Iraq.

My investigators travel the country under dangerous

conditions, pursuing leads, interviewing witnesses, and

piecing together evidence on a wide variety of cases. Their

work also takes them to other countries in the region. Of

note, SIGIR is currently reducing its overall personnel

``footprint'' in Baghdad in conjunction with the reduction in

spending of appropriated dollars on Iraq reconstruction.

One of the most important aspects of our investigative

efforts is the development of

task-force relationships with other agencies involved in

oversight in Iraq, including may colleagues from the Office

of Inspector General of the Department of Defense and the

Defense Criminal Investigative Service, as well as the

Federal Bureau of Investigation. SIGIR has 16 investigators

in Arlington, and we are participating in the new Joint

Operations Center located at the FBI to coordinate and

enhance fraud investigations in Iraq.

SIGIR's first task force was the Special Investigative Task

Force for Iraq Reconstruction (SPITFIRE), and it combined the

efforts of the Internal Revenue Service, the Department of

Homeland Security, Immigrations and Customs enforcement

office, the FBI and the Department of State Office of

Inspector General. That task force was able to effectively

pursue the Bloom-Stein conspiracy that my auditors

uncovered in Hillah, Iraq--a very egregious kickback and

bribery scheme involving over $10 million in

reconstruction funds that Philip Bloom, the contractor,

and Robert Stein, the Coalition Provisional Authority

comptroller for that region, engineered for their own

criminal ends. SPITFIRE continues its work today; and we

continue to pursue a number of leads that arose from the

Bloom-Stein case.

The other major task-force initiative that SIGIR has

initiated with the FBI is the International Contract

Corruption Task Force (ICCTF). ICCTF prompted the creation of

the Joint Operations Center mentioned above, which is

producing the effective collection and coordination of

investigative leads and source development. Although I am not

at liberty to discuss details of these cases, I am very

pleased with the very significant progress the JOC

investigators have made, news of which I expect to be

forthcoming later this year.

Along with SIGIR, the ICCTF includes the U.S. Army's

Criminal Investigative Division's Major Procurement Fraud

Unit, the Defense Criminal Investigative Service, the FBI,

and the inspectors general of the Department of State and the

Agency for International Development.

SIGIR is also part of the DOJ National Procurement Fraud

Task Force. We continue to work closely with DOJ in the

investigation and prosecution of our cases.

Finally, to coordinate efforts in oversight in Iraq, I

formed the Iraq Inspector Generals' Council, IIGC, 3 years

ago, which brings together every agency with oversight

authority in Iraq for a meeting every quarter. The IIGC

exists to deconflict and coordinate the member agencies'

oversight efforts in Iraq.

SIGIR is not limiting its efforts just to addressing

contractor misconduct through the criminal justice system. We

also refer cases to the U.S. government's administrative

debarment and suspension processes. To date, the competent

oversight authorities have, through established rules that

preserve due process, suspended 17 companies and individuals,

debarred ten, and have another nine pending debarments.

To date, SIGIR has produced 13 quarterly reports, 86 audit

reports, and 90 inspection reports. Our auditors and

inspectors regularly refer investigative leads to our

investigators some of which have developed into very

significant cases. The Bloom-Stein case is just one example.

SIGIR's three lessons-learned reports produced to date have

provided recommendations on policies designed to improve

economy, efficiency and effectiveness for the Iraq program

and for future reconstruction and stabilization operations.

The reports have prompted the introduction of reform measures

in the Congress that will improve contracting processes.

SIGIR is at work on a lessons-learned capping report, which

will be produced at the end of this year. It is my hope that

our lessons learned reports will prompt reforms that will

improve the capacity of law enforcement to deter crime.

Mr. Chairman, with respect to H.R. 400, Representative

Abercrombie's bill entitled the ``War Profiteering Prevention

Act of 2007,'' our position is essentially what it was when

we were asked to reflect on its counterpart at a Senate

hearing this past March. SIGIR remains a strong proponent of

legislation that would strengthen efforts to punish fraud or

abuse in contracting programs in Iraq or elsewhere. We look

forward to working with the Department of Justice to enforce

H.R. 400, should it become law. We are, however, unaware of

instances where the Justice Department was unable to

prosecute, under existing law, on the facts we developed in

our investigations.

One of our responsibilities in Iraq is to encourage

efficiency in the reconstruction effort. In that role, we

have prompted management to seek the widest possible

participation by business enterprises (especially Iraqi

firms) in reconstruction. The security risks in Iraq are

self-evident, and thus the risks to any business enterprise

operating in such an environment are mammoth. International

companies likely will not get into the business of

reconstruction in Iraq without incentives that render the

risk-taking worthwhile. This reality should figure in the

development of legislation that affects contracting in Iraq

or similarly insecure environments.

Whether H.R. 400 becomes law, SIGIR will continue to

aggressively pursue investigations, provide robust oversight

through audits and inspections, and will press for more

efforts to improve contract administration, quality

assurance, and quality control. It is my hope that our

continuing efforts will help promote an aim we all share--a

reconstruction program that is administered and executed

honestly, and is as well-managed and efficient as possible

under very challenging circumstances.

Mr. Chairman, members of the Committee, thank you for your

time and attention to these important matters, and I look

forward to answering your questions.

I want to pay a special thank you, a big mahalo, to Mr. Scott and to the Judiciary Committee for their hard work. I am very grateful to the ranking members, the Republicans and Democrats. We cannot resolve this without seeing to it that we have a bipartisan approach on this.

I am particularly grateful to Senator Pat Leahy, who is the Judiciary Chairman in the Senate, for entrusting this bill to our care here in the House and allowing me to introduce it as a companion bill to the one that has passed in the Senate. I am very hopeful that we can get a vote in the Senate and move this to the President's desk.

When the wrong computer equipment arrived in Iraq, the contractor ordered it dumped into a mammoth burn pit and placed an order for replacements, rather than sending it back. The government paid for both the wrong computers and the replacements. The contractor collected a fee for each, thanks to a cost-plus contract.

Halliburton had drivers driving empty trucks between bases in Iraq, unnecessarily exposing the drivers to danger, because the company was paid by the trip, not by the amount of materiel hauled or a flat fee; $186 million was spent over 2 years to build 142 health care centers, yet only 15 have been completed and only eight are open. According to testimony, the contractor lacked qualified engineers, hired incompetent subcontractors, failed to supervise construction work, and failed to enforce quality control.

A large U.S. construction company was paid tens of millions of dollars to repair Iraq's schools. Many of the schools were never touched, and several that were repaired, and I say that in quotes, were left in shambles, one filled with unflushed sewage.

At least 10 companies with billions of dollars in contracts have already been forced to pay up to $300 million in penalties to resolve allegations of bid-rigging, fraud, gross overcharging, delivery of faulty military parts and environmental damage, $300 million in penalties. Some of these same companies have faced such allegations during past military operations in other countries, but have had no problem receiving new contracts in Iraq.

Despite millions of dollars in payments to U.S. companies, key pieces of Iraq's infrastructure, power plants, telephone exchanges, sewage and sanitation systems, have either not been repaired or have been fixed so poorly that they still don't function.

How has this been allowed to happen? The United States Government directly and through the late Coalition Provisional Authority have outsourced the war in Iraq like no other in our history, spending more than $50 billion on private contractors to provide food, water, gasoline and other supplies, guard bases, drive trucks, and many other activities in support of our troops.

But consistent with the administration's overall attitude toward spending public money with private companies, little or no thought was given to contract oversight or accountability. As a result, some of these contractors have declared the U.S. occupation of Iraq open season on the taxpayer. Cleaning up this mess has been hampered by the fact that while anti-fraud laws protect against the waste or theft of U.S. taxpayers in the United States, there have been no statutes prohibiting sleazy business practices by American companies overseas.

As we have learned in the investigation of the Blackwater USA contract, the Coalition Provisional Authority issued order number 17, which specifically exempted U.S. contractors from Iraqi law.

In fact, one contractor was found guilty of 37 counts of fraud, including false billing, and was ordered to pay more than $10 million in damages, but the decision was overturned because the contracts were let through the Coalition Provisional Authority, and it was found that U.S. laws against fraud did not apply.

Despite the fact that the Coalition Provisional Authority was created by the Bush administration under the Department of Defense; despite the fact

that L. Paul Bremer, the overseer in Iraq, subsequent to the initial attack on Iraq, had an office literally across the hall from Secretary Rumsfeld, the Coalition Provisional Authority was not considered part of the U.S. Government, and, therefore, U.S. laws were unenforceable.

These practices are a flagrant abuse of the public's trust and the public's money during a time of war and cannot be allowed to continue. H.R. 400, the War Profiteering Prevention Act of 2007, will, one, criminalize war profiteering defined as contract fraud or overcharging for goods and services in connection with the mission of the United States Government overseas; two, violations of law will be a felony and punishable up to 20 years in prison and fines up to $1 million or twice the illegal profits of the crime; three, jurisdiction for such cases, no matter where the alleged crimes are committed, will be in the United States Federal court.

H.R. 400 was heard and considered by the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security and ordered reported to the full Judiciary Committee by a voice vote on August 1. Among the many significant consequences of the decision to invade and occupy Iraq marked by a complete dismissal of the need for intelligent planning and stunning incompetence in the conduct of the war, this problem has received too little attention from the news media, the public, and the Congress.

Most of the cases of fraud, questionable business practices and outright corruption have been uncovered and investigated through the efforts of the Special Inspector General for Iraq Reconstruction, Mr. Stuart Bowen, Jr. Mr. Bowen and his super staff both here in the U.S. and on the ground in Iraq have provided oversight and insight under the most difficult conditions imaginable for billions of American taxpayer dollars intended to rebuild Iraq and support our troops in combat. They deserve our gratitude. They deserve the gratitude of the Congress and the Nation for a tough job well done.

Mr. Speaker, this bill, together with H.R. 2740, legislation passed by this House last week to expand the reach of the Uniform Code of Military Justice to private civilian security operatives in the region are two important steps this Congress is taking to clean up the mess in Iraq.

H.R. 400, in conclusion, Mr. Speaker, the War Profiteering Prevention Act will help end the open season declared on American taxpayers.

Mr. Speaker, will the gentleman yield?

Mr. Speaker, I find it very unfortunate that my good friend from Virginia has taken a position that the bill in any way encourages the whims of prosecutors. As Mr. Scott has pointed out, the standard is very high and applies to any contract, whether it's in the United States or overseas. There is nothing applied to the contracts overseas that is not applied to a contract here in the United States when it comes to the question of fraud or overcharging or deliberate deception with regard to the contract. That standard has to be met in any court and has to come before any judge meeting such a standard. There is no differentiation whatsoever.

The reason the bill is here, and the reason we're bringing the legislation, is the courts have ruled that there is, at best, an ambiguous situation, if not an outright gap between the capacity for prosecution of such a crime, should the standard for the crime be sustained by a prosecutorial investigation, and what is possible in Iraq. It can't be prosecuted in Iraq, and the courts found that it wasn't. We did not have legislation sufficiently clear in the United States in order to prosecute it. Thus, far from arbitrary or capricious prosecution, we have the opportunity for arbitrary defrauding of the United States taxpayer with no consequences. That's why the legislation is here.

Mr. Speaker, by the direction of the Committee on Rules, I call up House Resolution 702 and ask for its immediate consideration.

For the purpose of debate only, I yield the customary 30 minutes to the gentleman from Washington (Mr. Hastings). All time yielded during consideration of the rule is for debate only.

General Leave

I ask unanimous consent that all Members have 5 legislative days within which to revise and extend their remarks and insert extraneous materials into the Record.

Mr. Speaker, I yield myself such time as I may consume.

(Ms. SUTTON asked and was given permission to revise and extend her remarks.)

H. Res. 702 provides for consideration of H.R. 2740, the Military Extraterritorial Jurisdiction Act Expansion and Enforcement Act of 2007, under a structured rule.

The rule provides for 1 hour of debate equally divided and controlled by the chairman and ranking minority member of the Committee on the Judiciary. The rule makes in order and provides appropriate waivers for three amendments.

Mr. Speaker, I rise today in support of this rule and the underlying bill which helps to address one of the most disturbing and pressing issues to come before the Congress this year, the lack of oversight and accountability of contractors abroad and here at home. And it is vital that we are passing the MEJA Expansion and Enforcement Act today to address at least one of these critical issues.

Currently, there are estimated to be at least 180,000 contractors working in Iraq under contracts awarded by the Department of Defense, the State Department, the U.S. Agency for International Development, and other Federal agencies. Yet under current law, only contractors working for the Department of Defense can be held responsible for crimes they commit while working in Iraq, Afghanistan and elsewhere throughout the world.

At present, the Military Extraterritorial Jurisdiction Act, MEJA, leaves felonies committed by contractors working for other Federal Departments unpunished. This is unfair and unacceptable, and this Congress must act to ensure that justice is not a selective American principle.

Our current law has given private mercenary armies like Blackwater USA free rein to do as they please without fearing the repercussions. And as we have seen, that unbridled freedom from any accountability has resulted in sometimes egregious criminal behavior. But under the MEJA Expansion and Enforcement Act, Federal contractors working for every Department and agency will be held responsible for criminal acts. It will also direct the FBI to establish units to investigate crimes committed by contract personnel operating abroad.

Mr. Speaker, it simply makes no sense to hold contractors to a different standard than American citizens living at home or even the brave soldiers who risk their lives every day in Iraq. It is a travesty of justice that we allow private armies to evade punishment for serious crimes, especially considering we have prosecuted our soldiers for the very similar actions.

In a recent incident that has received significant scrutiny, Blackwater guards were involved in a September 16 shootout in Baghdad that left 11 Iraqis dead and a number wounded. This event spurred such a tremendous public outcry that Secretary of State Condoleezza Rice had to apologize to Iraqi Prime Minister Nouri al Maliki.

And we have learned from reports compiled by Blackwater themselves that since 2005, its employees have been involved in at least 195 incidents in Iraq that involved the firing of shots by Blackwater guards. Blackwater's contract with the State Department stipulates that Blackwater may only engage in defensive use of force. However, in the vast majority, over 80 percent, of these shooting incidents, Blackwater's own reports revealed that its guards fired the first shots. In one incident that has recently come to our attention, Blackwater guards shot a civilian bystander in the head. In another, State Department officials report that Blackwater sought to cover up a shooting that killed a seemingly innocent bystander.

Since the wars in Iraq and Afghanistan began, and despite numerous instances where the military has found probable cause that a crime has been committed and has referred the case to the Justice Department, there has been only one successful prosecution of a civilian contractor for wrongdoing.

Without fear of reprisal, these reckless contractors have operated with no regard for the private property of innocent Iraqi citizens. In a November 2005 incident, a Blackwater motorcade collided with 18 different vehicles. Written statements from team members were determined to be invalid, and a Blackwater contractor on the mission stated his tactical commander ``openly admitted giving clear direction to the primary driver to conduct these acts of random negligence for no apparent reason.''

Mr. Speaker, we have seen the number of contractors increase exponentially as the Bush administration has placed an unnecessary strain on our Armed Forces through the war in Iraq. In 2001, Blackwater had less than $1 million in Federal contracts. By 2006, that figure had grown to over half a billion dollars, an increase of more than 80,000 percent. Today, there are approximately 180,000 Federal contractors in Iraq alone, a number greater than the American military presence. Because of the President's policy of escalation in Iraq, we have become more reliant on these contractors to protect American interests there. For every Blackwater mercenary the United States Government hires to protect embassy officials, Blackwater charges $1,222 per day, which is over six times more than the cost of an equivalent American soldier.

Mr. Speaker, the lack of oversight of Federal contractors committing crimes overseas is an example of how the system of Federal contracting is broken. Earlier this year, this Congress got off to a strong start by passing H.R. 1362, the Accountability in Contracting Act which helped restore integrity to the contracting process. I am also proud to be the sponsor of H.R. 2198, the Contractor Accountability Act, which will require the head of every agency and department to ensure that every Federal contract recipient is fulfilling their obligations after they are awarded that contract. It requires that every Federal agency and department awarding contracts submit a report on the status of those contracts to Congress. This is the type of oversight and accountability that is necessary to ensure that the problems that are happening in Iraq with Federal contractors and here at home can finally be put to an end.

Today, with the passage of the MEJA Expansion and Enforcement Act, we are addressing a critical loophole in our contracting crisis by ensuring that those contractors who commit crimes are held accountable for their actions. What we seek to do today is simple but important. The MEJA Expansion and Enforcement Act will hold Federal contractors operating overseas to the same standards we hold ourselves and to which we hold our brave troops. And let's be clear. This bill does not prevent contractors from using force if the situation calls for it. Our bill simply allows contractors to be punished for committing acts of murder and other felonies. Nobody should be immune from the law. This legislation will ensure that no one, even if he is a private contractor in Iraq, is.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, before I yield time to the distinguished gentlewoman from California, I would just like to say that in the process of this bill coming forward, not a single Republican offered an amendment in the committee. Though the committee reported the bill by voice vote, not a single person voted ``no.'' Only one Republican offered an amendment for the floor, and it had nothing to do with the scope of the bill and was nongermane.

I yield to the gentleman from Washington.

I thank the gentleman for his question.

I think that the important thing here to look at is there was an opportunity for the Republican side to offer amendments, and only one was offered yesterday in committee. There was an opportunity, obviously, for those to be presented.

Certainly.

Reclaiming my time, Mr. Speaker, the reality of this is there was an opportunity to offer amendments as explained. Somebody did offer an amendment. Unfortunately, that amendment was nongermane.

At this point I would like to yield 4 minutes to the gentlewoman from California (Ms. Matsui), a distinguished member of the Committee on Rules.

Mr. Speaker, at this time I yield 4 minutes to the author of the bill, the gentleman from North Carolina (Mr. Price).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, again, I just want to reiterate, without beating this to death, that not a single Republican amendment was offered in committee. There was opportunity to provide amendments yesterday in the Rules Committee. This is an important bill that we need to stay focused on the substance of as well.

Mr. Speaker, at this time it is an honor to yield 3 minutes to the gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, I am the last speaker at this time on my side, so I will reserve my time.

Mr. Speaker, I want to congratulate the distinguished gentleman from North Carolina on this strong bipartisan bill. The MEJA Expansion and Enforcement Act is critical, commonsense legislation to hold contractors responsible for criminal behavior, just like we hold our troops responsible for crimes when they are committed, and just like we hold American citizens responsible for following the law.

Those who argue against this measure seem willing to tolerate lawlessness in countries where our military is seeking to restore justice. The truth is, every time we see an incident with an Iraqi civilian being killed and American contractors escaping accountability, our men and women in uniform suffer. They see support from the insurgents rise and they lose the trust of the Iraqi people.

Our troops are not responsible for the strain that the President has placed on our Armed Forces which has led to the need for mercenaries to carry out missions that our troops capably handle, and it is tragic that the troops are targeted for the negligence of private contractors. We owe it to our troops and the Iraqi people to ensure that contractors are held to the same standards of justice as everybody else. Only then will we see a true deterrent to vigilante behavior and reckless actions by private citizens working overseas for our Federal agencies and Departments.

It is simple, Mr. Speaker. The MEJA Expansion and Enforcement Act extends policies that are in place for the

Department of Defense to contractors for other agencies.

And let's be clear: Nobody is accusing every single contractor of committing the criminal acts we have talked about today. But when a contractor does commit a crime, they must be punished and we must have consequences to serve as a deterrent. It should not be controversial to punish people for committing murder and other felonies. This is a giant loophole in our law that is hurting our reputation abroad, hurting our troops in the field and is making a mockery of the American sense of justice.

I urge a ``yes'' vote on the previous question and on the rule.

The material previously referred to by Mr. Hastings of Washington is as follows:

Amendment to H. Res. 702 Offered by Mr. Hastings of Washington

At the end of the resolution, add the following:

Sec. 3. That immediately upon the adoption of this

resolution the House shall, without intervention of any point

of order, consider the resolution (H. Res. 479) to amend the

Rules of the House of Representatives to provide for

enforcement of clause 9 of rule XXI of the Rules of the House

of Representatives. The resolution shall be considered as

read. The previous question shall be considered as ordered on

the resolution to final adoption without intervening motion

or demand for division of the question except: (1) one hour

of debate equally divided and controlled by the chairman and

ranking minority member of the Committee on Rules; and (2)

one motion to recommit.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

Mr. Speaker, I want to thank the gentlewoman from Ohio (Ms. Sutton) for yielding me the customary 30 minutes, and I yield myself as much time as I may consume.

Mr. Speaker, let me begin by saying this rule provides for the consideration of H.R. 2740, the MEJA Expansion and

Enforcement Act. This bill is an attempt to ensure that all Federal civilian contractors can be prosecuted for crimes they commit abroad. The issue before us today is not, Mr. Speaker, a policy decision to determine whether or not contractors should be in Iraq, but, rather, the issue is whether the principle of current law should be applied to civilian contractors.

Yesterday, Mr. Speaker, Mr. Forbes, the ranking member of the Subcommittee on Crime, Terrorism and Homeland Security in the Judiciary Committee testified before the Rules Committee that while the intent of this legislation is right, this bill is very, very poorly drafted. During markup of the bill by the House Judiciary Committee, Mr. Forbes and other Republicans on the Judiciary Committee raised concerns with Members on the other side of the aisle. Republicans agreed that they would work to move this legislation forward because of assurances made by the majority members of the committee that their concerns would be worked out. Mr. Forbes testified before the Rules Committee that his main concerns with the bill were a lack of clear definitions, vague language and Federal mandates on the FBI without additional resources.

Mr. Speaker, a manager's amendment was submitted to the Rules Committee and it wasn't until after the Rules Committee amendment deadline had passed Monday evening that Mr. Forbes found that none of the concerns raised by Republicans were addressed in the manager's amendment. At this point, of course, it was too late for Mr. Forbes and other Members to submit amendments. Had they tried to submit amendments to the Rules Committee past the deadline, they likely would have been turned away at the Rules Committee door, just as many Members, including myself, have been this Congress.

Yesterday, the ranking member, Mr. Dreier, attempted to provide an open rule for consideration of this bill. An open rule would have allowed any Member of the House of Representatives an opportunity to come forward and amend the bill, and especially those members of the Judiciary Committee that felt that they were left out of this process. However, the Democrat-controlled Rules Committee rejected this idea on a party line vote of 8-4.

Mr. Dreier then attempted to allow Mr. Forbes to offer an amendment on the floor today to make changes to the bill in order to restore the commitment that was once made by the Democrat majority. But I am disappointed that this attempt was also rejected on a party line vote of 8-4.

Mr. Speaker, the underlying bill was reported by the Judiciary Committee over 2 months ago and yet the Democrat majority failed to make good on their commitment to address the reasonable and entirely justifiable concerns raised by Republicans.

Mr. Speaker, contractor accountability is an issue that should be discussed and addressed in a bipartisan manner. But there are legitimate concerns with the way this bill was drafted. Unfortunately, this rule denies Members, including all Republicans, an opportunity to improve the underlying bill. Because the Rules Committee has once again chosen to stifle bipartisanship and deliberation by bringing forth this restrictive rule, I must urge my colleagues to oppose this rule, House Resolution 702.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, will the gentlewoman yield?

I appreciate the gentlewoman yielding. She was in the committee yesterday when Mr. Forbes testified. I would hope that the gentlewoman would agree with me that when Mr. Forbes testified under questioning from me asking if he felt that he had assurances that these issues would be worked out from the time that the committee passed the bill out of committee in August until now, and he said that he felt that that commitment was a strong commitment, and therefore, he didn't offer any amendments.

Now, would the gentlewoman agree with me that that was what Mr. Forbes said?

Will the gentlewoman further yield on that point?

I appreciate the gentlewoman for yielding.

Mr. Speaker, I just want to say under questioning when I asked Mr. Forbes, because he stated that the deadline had passed when the manager's amendment which did not address their concerns was introduced, he then, of course, would be prohibited from offering amendments. I asked him if there were an opportunity in the next 24 hours, i.e., from yesterday until today, could they prepare amendments to address these concerns, he said, ``Yes.''

I hope that the gentlewoman will agree with me that that is what he said yesterday in front of the Rules Committee.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I just want to make the point once again, the reason that there were no Republican amendments that were submitted to the Rules Committee is because there was a clear, clear understanding when the bill was passed out of the Judiciary Committee that the issues and concerns that were raised by the Republicans would be addressed in a bipartisan way, and the vehicle by which they would be addressed was a manager's amendment, which is a normal process when you bring bills to the floor. That commitment was apparently not fulfilled.

By the time that the manager's amendment was drafted, with the idea that supposedly in a bipartisan way these issues would be addressed, it was too late for any Republican to offer an amendment because it was past the deadline that was put in place by this new majority on the Rules Committee. Therefore, there was no chance for Republicans to submit any amendments. Therefore, there were no amendments that were submitted.

So I just wanted to set the record straight, Mr. Speaker, that the reason that there were no Republican amendments submitted to the Rules Committee is because a promise and a commitment was broken between August 2 and October 2, yesterday, when we met on this bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2 minutes to the gentleman from North Carolina.

Mr. Speaker will the gentleman yield?

Mr. Speaker, I appreciate the gentleman yielding for this exchange, because I think it is important. This issue is very, very important because we are talking about ultimately a portion of the security of our country, and I think we need to address that in a bipartisan way.

I am simply pointing out, in testimony yesterday in front of the Rules Committee, Mr. Forbes was given the assurance when the bill left the Judiciary Committee, and I don't think that the gentleman is on the Judiciary Committee, but he felt that he had a commitment that those concerns be addressed.

Now, having concerns addressed and being totally satisfied are two different things. If they weren't satisfied, then you could offer an amendment to make the adjustments and you could debate those issues. The point I am making is that Mr. Forbes felt that the commitment that was given to him to make those adjustments and those concerns were not fully addressed; therefore, he didn't submit any amendments to the bill. I am not suggesting that all of his concerns should be in the manager's amendment; I am simply suggesting that he was denied the opportunity, in his mind, to have these concerns addressed.

Mr. Speaker, if the gentleman will yield further, I just want to, Mr. Speaker, tell my colleagues that there was no Forbes amendment in front of the Rules Committee, so I can't even pass judgment whether it addressed the concerns that he had. He did not submit an amendment to the Rules Committee. He did not submit an amendment to the Rules Committee because he was given the assurances that the concerns that were raised when the bill came out of committee would be addressed.

While the gentleman is probably talking about a potential amendment, nobody on the Rules Committee saw the amendment, because the amendment was not submitted to the Rules Committee because he felt his concerns were not addressed.

Mr. Speaker, I thank the gentleman for allowing me to clarify that. When he talks about the Forbes amendment, there is, or was no Forbes amendment in front of the Rules Committee yesterday.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I would agree with the previous speaker, my friend from Oregon, that the sponsor of this bill, the gentleman from North Carolina (Mr. Price), is a very, very thoughtful individual. I have worked with him on some issues, and I would agree with that. I think Members would also agree with me when I say that the gentleman from Virginia (Mr. Forbes) is also a very thoughtful individual and somebody that you can work with on a bipartisan basis.

When somebody like Mr. Forbes comes to the Rules Committee and tells us that he was given a commitment about concerns that he felt needed to be addressed in this legislation and was given the assurances that they would be addressed, not necessarily solved but at least be addressed, I think you would have to say that he was acting in very good faith. I think this sends a very, very strong message for Members that want to work in a bipartisan way and then get treated as Mr. Forbes said he was treated. I think that is not good for the institution.

So I just want to, Mr. Speaker, reiterate once again what happened. The reason that there were no amendments substantive to the issue of the concerns that were submitted by Republicans to the Rules Committee is because the ranking member on the subcommittee dealing with this issue felt that the commitments that were given to him were not carried out. There were no, apparently, discussions of what was going into the manager's amendment.

Again, I am not suggesting Mr. Forbes would have been totally happy, but he could have offered an amendment to address those concerns. He was denied that opportunity simply, simply because he felt the commitment that was given to him when the bill came out of the Judiciary Committee was not carried through.

So it is for that reason, that reason that we probably won't have as robust a debate on this issue, and in all likelihood we won't have the kind of legislation that needs to go forward in a bipartisan manner on something where everybody agrees that the intent of this legislation is what everybody agrees on a bipartisan basis needs to happen. I regret that. It is for that reason that I ask my colleagues to vote ``no'' on the rule.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, for the past several weeks my colleagues on the Rules Committee and I have called for a vote on the previous question and will be doing so again today. Why? Because we are concerned that the House rules are flawed when it comes to the enforceability of earmarks.

Republican Leader Boehner has a proposal that will improve the House rules and allow the House to debate openly and honestly the validity and accuracy of earmarks contained in all bills. I am asking that my colleagues vote ``no'' on the previous question so that I can amend the rule to allow the House to immediately consider House Resolution 479 introduced by Republican Leader Boehner.

By defeating the previous question, the House will still be able to consider the MEJA Expansion and Enforcement Act today, but will also be able to address earmark enforceability in order to restore the credibility of the House. I am hopeful today will be the day my colleagues will defeat the previous question and, in doing so, will send a strong message to American taxpayers that this House is serious when it comes to earmark transparency.

Mr. Speaker, I ask unanimous consent to have the text of the amendment and extraneous material inserted in the Record prior to the vote on the previous question.

Mr. Speaker, I urge my colleagues to oppose the previous question and the restrictive rule.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.