Health Insurance Industry Antitrust Enforcement Act of 2009

Mr. President, I am pleased today to introduce the Judicious Use of Surveillance Tools In Counterterrorism Efforts, or JUSTICE, Act of 2009. I have had the privilege of working closely on this bill with Senator Durbin, as I have on so many of these issues over the years, and I welcome the support of Senators Tester, Tom Udall, Bingaman, Sanders, Akaka and Wyden. I am also pleased that the bill has the support of organizations and activists across the political spectrum, from former Republican Congressman Bob Barr to the American Civil Liberties Union to the American Library Association.

At the end of this year, three provisions of the USA PATRIOT Act will sunset unless Congress acts to reauthorize them. In my view, Congress should take this opportunity to revisit not just those three provisions, but rather a broad range of surveillance laws enacted in recent years to assess what additional safeguards are needed.

The JUSTICE Act does just that: It takes a comprehensive approach to fixing the Patriot Act and the FISA Amendments Act, once and for all. It permits the government to conduct necessary surveillance, but within a framework of accountability and oversight. It ensures both that our government has the tools to keep us safe, and that the privacy and civil liberties of innocent Americans will be protected. Because we can and must do both. These are not mutually exclusive goals.

Indeed, the Department of Justice just this week acknowledged as much in a letter setting forth its views on Patriot Act reauthorization. The Department said: ``We also are aware that Members of Congress may propose modifications to provide additional protection for the privacy of law abiding Americans. As President Obama said in his speech at the National Archives on May 21, 2009, `We are indeed at war with al Qaeda and its affiliates. We do need to update our institutions to deal with this threat. But we must do so with an abiding confidence in the rule of law and due process; in checks and balances and accountability.' Therefore, the Administration is willing to consider such ideas, provided

that they do not undermine the effectiveness of these important authorities.''

I welcome the administration's openness to potential reforms of the Patriot Act and look forward to working together as the reauthorization process moves forward this fall.

But I remain concerned that critical information about the implementation of the Patriot Act has not been made public--information that I believe would have a significant impact on the debate. During the debate on the Protect America Act and the FISA Amendments Acts in 2007 and 2008, critical legal and factual information remained unknown to the public and to most members of Congress--information that was certainly relevant to the debate and might even have made a difference in votes. And during the last Patriot Act reauthorization debate in 2005, a great deal of implementation information remained classified. This time around, we must find a way to have an open and honest debate about the nature of these government powers, while protecting national security secrets.

As a first step, the Justice Department's letter made public for the first time that the so-called ``lone wolf'' authority--one of the three expiring provisions--has never been used. That was a good start, since this is a key fact as we consider whether to extend that power. But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

There can be no question that statutory changes to our surveillance laws are necessary. Since the Patriot Act was first passed in 2001, we have learned important lessons, and perhaps the most important of all is that Congress cannot grant the government overly broad authorities and just keep its fingers crossed that they won't be misused. Congress has the responsibility to put appropriate limits on government authorities--limits that allow agents to actively pursue criminals, terrorists and spies, but that also protect the privacy of innocent Americans.

This lesson was most clear in the context of National Security Letters. In reports issued in 2007 and 2008, the Department of Justice Inspector General carefully documented rampant misuse and abuse of the National Security Letter, NSL, authority by the FBI. The Inspector General found--as he put it--``widespread and serious misuse of the FBI's national security letter authorities. In many instances, the FBI's misuse of national security letters violated NSL statutes, Attorney General Guidelines, or the FBI's own internal policies.'' After those Inspector General reports, there can no longer be any doubt that granting overbroad authority leads to abuses. The FBI's apparently lax attitude and in some cases grave misuse of these potentially very intrusive authorities is attributable in no small part to the USA PATRIOT Act. That flawed legislation greatly expanded the NSL authorities, essentially granting the FBI a blank check to obtain some very sensitive records about Americans, including people not under any suspicion of wrong-doing, without judicial approval. Congress gave the FBI very few rules to follow, and failed to adequately remedy those shortcomings when it considered the NSL statutes as part of the Patriot Act reauthorization process in 2005.

The JUSTICE Act, like the bipartisan National Security Letter Reform Act that I introduced in the 110th Congress, would finally provide the statutory safeguards needed to protect against abuse of NSLs. And it would remedy First Amendment violations in the NSL statutes that were identified last year by the U.S. Court of Appeals for the Second Circuit, in a decision where Justice Sotomayor participated on the panel.

Specifically, the JUSTICE Act restricts the types of records that can be obtained without a court order to those that are the least sensitive and private, and it ensures that the FBI can only use NSLs to obtain information about individuals with some nexus to a suspected terrorist or spy. It makes sure that the FBI can no longer obtain the sensitive records of individuals three or four times removed from a suspect, most of whom would be entirely innocent. It follows the road map laid out by the Second Circuit to make sure the gag orders that accompany NSLs do not violate the First Amendment.

It prevents the use of so-called ``exigent letters,'' which the IG found the FBI was using in violation of the NSL statutes. It requires additional congressional reporting on NSLs, and it requires the FBI to establish a compliance program and tracking database for NSLs. And it requires the Attorney General to issue minimization procedures for information obtained through NSLs, so that information obtained about Americans is subject to enhanced protections and the FBI does not retain information obtained in error.

The JUSTICE Act also fixes Section 215, one of the most controversial provisions of the Patriot Act and one of the three that is subject to the 2009 sunset. This provision permits the government to obtain court orders for Americans' business records under the Foreign Intelligence Surveillance Act; it is often referred to as the ``library'' provision, although it covers all types of business records.

On Section 215, the legislation establishes a standard of individualized suspicion for obtaining a FISA business records order, requiring that the government be able to demonstrate the records have some nexus to terrorism or espionage, and it creates procedural protections to prevent abuses. The bill also ensures robust, meaningful and constitutionally sound judicial review of both National Security Letters and Section 215 business records orders, and the gag orders that accompany them.

The bill also ensures that Americans can feel safe in their homes by placing reasonable checks on the so-called ``sneak and peek'' search warrant provision of the Patriot Act. It would eliminate the overbroad catch-all provision that allows these searches to be used in virtually any criminal case, and it would shorten the presumptive time limits for notification that the search occurred. It also would create a statutory exclusionary rule, in recognition of the strong Fourth Amendment interests at stake with regard to this extraordinary exception to the usual requirement that law enforcement knock and announce themselves before executing a search warrant.

The JUSTICE Act also includes a number of reasonable safeguards to protect Americans' private communications. It permits the FBI to use roving wiretaps under FISA, but provides safeguards to protect innocent Americans from unnecessary surveillance. It ensures that the FBI does not obtain sensitive information about Americans' Internet usage without satisfying an appropriate standard, and subjects those authorities, called ``pen registers and trap and trace devices'', to new procedural checks. It provides new safeguards for the Patriot Act provision on computer trespass, which allows computer owners who are subject to hacking to give the government permission to monitor individuals on their systems without a warrant.

The bill also addresses the FISA Amendments Act, FAA, which granted the government new, over-expansive surveillance authorities and provided immunity to any companies that cooperated with the blatantly illegal warrantless wiretapping program that went on for more than five years--and that the prior administration repeatedly misled Congress about. That legislation became law last year over my strong objection, but it is not too late for Congress to fix it.

I offered several amendments to the FISA Amendments Act on the Senate floor--amendments that would have helped to make sure that the privacy of Americans' communications are properly protected. And now those amendments are part of the JUSTICE Act.

First, the bill would ensure that the FISA Amendments Act cannot be used to authorize the government to collect the content of all communications between the U.S. and the rest of the world. Under the FAA, millions upon millions of communications between

innocent Americans and their friends, families, or business associates overseas could legally be collected, with absolutely no suspicion of any wrongdoing. The JUSTICE Act would ensure such bulk collection will never occur.

Second, the JUSTICE Act would include a meaningful prohibition on the practice of reverse targeting--namely, wiretapping a person overseas when what the government is really interested in is listening to an American here at home with whom the foreigner is communicating. It would do so by requiring the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American in the U.S.

Third, the bill would create potential consequences if the government initiates surveillance under the FAA using procedures that have not been approved by the FISA Court, and the FISA Court later finds that those procedures were unlawful. Say, for example, the FISA Court determines that the procedures were not even reasonably designed to wiretap foreigners outside the U.S., rather than Americans here at home. Under the bill, the FISA Court would have the discretion to place limits on how the illegally obtained information on Americans can be retained and used.

Fourth, this bill includes a provision that will help protect the privacy of Americans whose international communications will be collected in vast new quantities. On the Senate floor last year, I joined with Senator Webb and Senator Tester to offer an amendment to provide real protections for the privacy of Americans, while also giving the government the flexibility it needs to wiretap terrorists overseas. And that amendment is in this bill.

And finally with respect to the FAA, the bill would repeal the grant of immunity to any companies that participated in the illegal NSA wiretapping program. Senator Dodd was a leader on this during debate on the FAA and deserves a great deal of credit for drawing attention to this issue. Granting immunity seriously undercut our statutory scheme, which relies on both the government and the private sector to follow the law in implementing surveillance techniques. That is exactly why the surveillance laws have long provided liability protection for companies that cooperate with a government request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, companies are supposed to refuse the government's request, and they are subject to liability if they instead decide to cooperate.

This framework, which has been in place for 30 years, protects companies that comply with legitimate government requests while also protecting the privacy of Americans' communications from illegitimate snooping. Granting companies that allegedly cooperated with an illegal program the retroactive immunity that was in the FAA undermines the law that has been on the books for decades--a law that was designed to prevent exactly the type of abuses that occurred. Repealing that provision helps bolster the statutory framework that has for so long helped to protect the privacy of Americans' communications.

The JUSTICE Act also provides additional congressional and judicial oversight of the Foreign Intelligence Surveillance Act. It ensures that the FBI provides some limited public reporting regarding its secret intelligence surveillance authority under FISA. It would give courts more authority to oversee the process for determining whether and how criminal defendants against whom FISA-derived evidence is being used should get access to the underlying applications and orders so they can mount a challenge.

The last title of the bill simply ensures that the law labels as terrorists only those people who truly wish to do this country harm-- not domestic protesters who engage in civil disobedience or people who provide humanitarian assistance.

These concerns are not new. ``Sneak and peek'' searches, the need for reasonable limits on the FBI's use of roving wiretaps, access to business records, and the overly expansive computer trespass authority were all issues I first raised in the fall of 2001 as some of the reasons why I believed the PATRIOT Act was flawed and threatened fundamental constitutional rights and protections. Eight years later, it is time to finally get this right. Again and again, the previous administration requested and the Congress provided vast new surveillance authorities with minimal checks and balances. Many of these new tools were appropriate, and passage of this bill would leave in place surveillance authorities that are dramatically broader than what existed prior to 9/11. But what has been missing--what this bill finally provides--is the assurances that these new authorities are tailored to our national security needs and subject to proper oversight. Every single one of the changes in this bill is reasonable, measured and justifiable. I urge my colleagues to support it.

Mr. President, I rise today to introduce the Commodities Market Manipulation Prevention Act of 2009.

When bad-actors like Enron and Amaranth Advisors, LLC, manipulate commodities prices, it means that Americans pay more for commodities like oil, gasoline, heating oil, food, and natural gas. Unfortunately, current law does not protect our economy with a tough enough standard to prevent, deter, and enforce illegal market manipulation in critical commodity futures markets.

Current law makes it very difficult for the Commodities Futures Trading Commission to prosecute market manipulation cases. This is because current law requires the CFTC to meet a more rigorous standard to prove market manipulation than other financial market regulatory agencies such as the Securities and Exchange Commission, the Federal Energy Regulatory Commission, and the Federal Trade Commission.

Specifically, the Commodities Exchange Act requires the CFTC to prove ``specific intent'' to manipulate. That is a very difficult standard to reach. You would have to have a pretty dumb individual to, for example, write in an e-mail that you specifically intend to manipulate prices. But that's what current law currently requires the CFTC to prove.

In addition, CFTC case law also requires that it prove an artificial price exists, that the defendant had market power to move the price, and that he or she actually did cause the artificial price. Particularly in today's complex markets, proving ``artificial price'' can be a daunting task, which more often than not comes down to a ``battle of the experts'' in court. Because these requirements are so onerous, the CFTC often ends up moving to a lesser charge of ``attempted manipulation,'' which requires only proving intent and some act showing that intent. This is still a high standard, but is much easier than proving a full manipulation case.

As a result, Federal courts have recognized that, with the CFTC's weaker anti-manipulation standard, market ``manipulation cases generally have not fared well.'' In fact, the standard is so weak that in the CFTC's 35-year history, it has only successfully prosecuted and won one single case of manipulation. That case is currently on appeal in Federal court.

The Securities and Exchange Commission, on the other hand, under section 10(b) of the Securities and Exchange of 1934, has a different, easier-to-prove manipulation standard that it has employed successfully for over 75 years. Basically, the SEC does not need to prove specific intent, as the CFTC does. The SEC just has to prove that the defendant acted ``recklessly.''

This legislation would give the CFTC the same anti-manipulation standard currently employed by the SEC. This means that the CFTC would be empowered to prove a manipulation case under the same ``reckless conduct'' standard that the SEC, FERC, and FTC employ, in contrast to its current difficult-to-prove ``specific intent'' standard. That is, this legislation will repeal the affirmative rule that says you are allowed to act recklessly in the commodity futures markets as long as you have no specific intent to do harm.

Congress also recently granted this same authority to the FERC in 2005 and the FTC in 2007 in legislation I wrote that carefully tracked section 10(b) of the Securities and Exchange Act of 1934 to ensure the FERC and FTC would interpret and enforce their new market manipulation authorities consistent with the SEC. This legislation also carefully tracks section 10(b) of the Securities Exchange Act of 1934 in part because Federal case law is clear that when the Congress uses language identical to that used in another statute, Congress intended for the courts and the Commission to interpret the new authority in a similar manner.

In the words of the Supreme Court from the 1904 case of Kepner v. United States, ``when a statute uses words whose meaning under the judicial decisions has become well-known and well-settled, it will be presumed that the Legislature used such words in the sense justified by long judicial sanction.'' In the 75 years since the enactment of the Securities and Exchange Act 1934, a substantial body of case law has developed over the last half century around section 10(b). This will provide certainty in how this legislation will be interpreted and applied by the Courts and the CFTC.

In fact, the Supreme Court has compared this body of law to ``a judicial oak which has grown from little more than a legislative acorn.'' So it's worth noting that courts have held that the SEC's manipulation authority is not intended to catch sellers who take advantage of the natural market forces of supply and demand; only those who attempt to affect the market or prices by artificial means unrelated to the natural forces of supply and demand.

In this country, our current standard in the futures arena just isn't working. It is not sufficient to fully prosecute and deter abuses in the markets. We need to get the right standard to prevent, deter, and enforce market manipulation in these markets.

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

Mr. President, I am pleased to rise today with my colleague

Senator Tom Udall to introduce the Organ Mountains-Desert Peaks Wilderness Act. This legislation will designate approximately 259,000 acres of wilderness in Dona Ana County, including the iconic Organ Mountains that overlook the City of Las Cruces. The legislation will also establish two Conservation Areas in Dona Ana County--the 86,600- acre Organ Mountains National Conservation Area on the east side of Las Cruces, and the 75,600-acre Desert Peaks National Conservation Area to the west, which adjoins the Prehistoric Trackways National Monument to its south.

The Organ Mountains are among the many scenic landscapes in Dona Ana County that define Southern New Mexico and the rich culture of its people. In addition to protecting the viewshed of the Organ Mountains from future development, this proposal seeks to preserve other important landscapes such as the Dana Ana Mountains, Robledo Mountains, and the ancient volcanic cinder cones and grasslands of the Potrillo Mountains. Many visitors also come to explore the caves, limestone cliffs, and winding canyons of the proposed Desert Peaks National Conservation Area.

While the public lands protected by this bill are important for their scenic and recreational values, they also represent a valuable economic resource for county residents, through ranching, hunting, and tourism that takes place here. This proposal will preserve healthy habitat for game and sensitive species; quality grazing land; and cultural resources like petroglyphs and historical features. Even those who may never visit these areas will benefit from their protection by consuming the clean water that these major watersheds provide to the people living in the valleys below.

This proposal is the culmination of over 2 years of consensus building accomplished by listening to input from a broad spectrum of the community. As a result, the proposal that has been developed meets the goals of conserving our treasured landscapes in Dona Ana County while addressing the valid concerns raised by frequent users of our public lands. I would like to take a moment to mention a couple of important changes we have made to the bill based on the input we received from the community to address both border security concerns as well as access issues for the ranchers who graze cattle in the region.

Dona Ana County shares its southern border with Mexico, and national security issues are always an important factor to consider in any legislation that involves border counties. For example, currently the West Potrillo Mountains Wilderness Study Area comes as close as a half mile in some places from the U.S.-Mexico border, which has created challenges for both the Department of Interior and the Department of Homeland Security to meet the goals of their distinct, yet equally important missions. This legislation seeks to provide additional flexibility for Customs and Border Patrol to accomplish its mission of border enforcement by releasing from Wilderness Study Area status more than 16,000 acres along the southern border. By assisting Border Patrol with its mission, the Bureau of Land Management will be better suited to meet its goals of natural resource protection as well.

With regard to ranching, access to water infrastructure is critical in the hot climate of southern New Mexico. To this end, we worked closely with all grazing permittees in the area to ensure all roads that lead to water improvements, like windmills, solar wells, water troughs and pipelines, were excluded from new wilderness areas. Other major infrastructure, like corrals, have also been excluded, and the congressional grazing guidelines that are referred to in this legislation will provide ranchers with the ability to use motorized vehicles to maintain stock ponds, fences, and other improvements in wilderness areas and to respond to emergencies. It is my belief that this approach will allow for the protection of these public lands while ensuring that ranching will continue.

My constituents in Dona Ana County have long expressed their desire to strike a balance between development and the preservation of the public lands that they grew up enjoying or that attracted them to the area in the first place. As such, this proposal is supported by a wide array of constituencies ranging from conservation and sportsmen's groups, city and county officials, to the Hispano Chamber of Commerce. With enactment of this bill, it is my hope that while Dona Ana County continues to prosper and grow, our unique places will be protected for generations to come. I am pleased that Senator Udall has cosponsored this bill, and I urge all my colleagues to support the passage of this legislation.

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

Mr. President, today I am pleased to join with Senator Boxer in introducing the Managing Arson Through Criminal History, MATCH, Act of 2009. This bill is a companion to a bill introduced in the House of Representatives by Representatives Bono Mack and Schiff.

The bill would establish Federal and State arson registries; require convicted arsonists and bombers to register and update certain specified information for 5 years after a first conviction, 10 years after a second conviction, and for life after a third conviction; and authorize grants and incentives through the Department of Justice so that these registries will be operational within 3 years.

Southern California just went through one of the worst fire disasters in its history. The Station Fire destroyed 160,500 acres, destroyed more than 80 homes and threatened more than 12,000 homes. Right now, the fire is still burning in wilderness areas on its eastern flank in the Angeles National Forest.

Two firefighters, Fire Captain Tedmund ``Ted'' Hall, 47, of San Bernardino County, and Firefighter Specialist Arnaldo ``Arnie'' Quinones, 34, of Palmdale, served with dedication and courage. They were killed August 30th when their truck slipped off a winding dirt road high in the Angeles National Forest. Officials believe the truck might have been overrun by flames from the wildfire.

Though the incident is still under investigation, officials believe that Hall and Quinones may have ordered dozens of people to seek shelter while they fought through active flames to search for an escape route.

There is no doubt that the Station Fire, the largest wildfire in the history of Los Angeles County, was the result of arson after investigators examined forensic evidence from scorched landscape off Angeles Crest Highway. The spot is believed to be the source of origin of the Station fire and investigators have found incendiary material near the site.

This was a disaster of massive proportions--preliminary estimates indicate that these fires will cost $100 million. In these tough economic times, this cost and its effect on the economy of California is enormous and will have an impact for years to come.

Although the Federal Government may foot 80 to 90 percent of the bill for fighting the fire, which broke out in national parkland, the state's share will hit at a time when California is in the grip of a fiscal crisis.

Unfortunately, this is not the first or last time that a wildfire in California is started by an arsonist. It doesn't need to be that way. The bill that I introduce today--the MATCH Act would assist fire investigators and law enforcement officials by giving them up-to-date information on potential arsonists and bombers.

The bill would require convicted arsonists and bombers to register and regularly update their personal information in a new arsonist registry. In the future this will allow law enforcement and fire investigators to have an accessible database they can use to either find or rule out people of interest.

This will allow them to more easily complete their investigations, find the person responsible, and ensure that more wildfires won't get started intentionally.

This bill represents common-sense legislation that will help law enforcement officers do their jobs. Hundreds of firefighters worked on controlling the Station Fire. We owe it to these brave men and women who put their lives on the line--and others like them who will do so in the future--to give fire investigators this important new tool, so they can help bring arsonists and bombers to justice.

I urge my colleagues to support this important legislation.

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

Mr. President, today I join Senator Bingaman in introducing Organ Mountains-Desert Peaks Wilderness Act. The bill celebrates and preserves a portion of the unique and delicate landscape of southern New Mexico. Wilderness and conservation areas in Dona Ana and Luna Counties will protect a vast number of archeological sites and riparian areas, maintain habitat and migration corridors for wildlife, and preserve some of the only Chihuahuan Desert in the United States.

Set in the heart of Dona Ana County, Las Cruces is New Mexico's second largest city, and growing. The citizens of Las Cruces and the surrounding communities want to ensure that the area will continue to develop in a way that preserves the surrounding pristine landscapes including the iconic Organ Mountains. The Organ Mountains-Desert Peaks Wilderness Act is consistent with the city and County's long-term growth plan, and will act to maintain growth patterns in a way that will allow all citizens to enjoy the impressive views and landscapes surrounding Las Cruces.

The Organ Mountains Wilderness and NCA, just one portion of this comprehensive legislation, will keep these impressive peaks available for the enjoyment of southern New Mexicans, and all who visit the area. This mountain range is strikingly unique and gives great character and identity to other surrounding landscape and to the city of Las Cruces itself. A vast range of individual and public and private organizations came together to work on the protection of the Organ Mountains and the seven other wilderness areas included in the bill. Hunters, anglers and conservationists worked with ranchers and city and county officials to determine what areas were in greatest need of protection. Nearby military facilities worked with the Bureau of Land Management on land exchanges that are reflected in the bill and will benefit the public and military entities. Recommendations from the Border Patrol on how to ensure that the new wilderness fit into their homeland security efforts were incorporated into the bill. Years of negotiation and cooperation have resulted in the legislation being introduced today.

In total, the Organ Mountains-Desert Peaks Wilderness Act will protect 421,344 acres of desert landscape including 162,270 acres of National Conservation Area, and 259,071 acres of Wilderness Area. This area of rare and beautiful landscapes will be valued for generations. From the jagged basalt lava flows of the Cinder Cone Wilderness to the roaming hawks and scrambling javelinas of the Robledo Mountains, this unique piece of southern New Mexico has abundant natural value for its citizens.

With this legislation, we build upon the work of conservation greats like Aldo Leopold, a man who saw the beauty of New Mexico's untamed wilderness lands and sought to preserve them for future generations. It was Mr. Leopold who said, ``Conservation is a state of harmony between men and land.'' With the Organ Mountains-Desert Peaks Wilderness Act, we move a step closer to achieving that state of perfect harmony. I thank Senator Bingaman for his work to preserve this landscape and urge my colleagues to support this important bill.