Floor Statements

Mr. President, I rise today to speak of the historic Iraqi elections and the President's message last night.

This past Sunday, the world watched as millions of Iraqi people headed to the polls to participate in their first free election in more than 50 years.

In doing so, the Iraqis defied the terrorists and they risked their lives for what was, for most, the first exercise of democracy in their lifetimes.

Not only did the Iraqi people defy the terrorists, but they defied the skeptics--some of whom could be found in Iraq itself, many others throughout the international community, and, disappointingly, even here at home. Many said that the elections were too soon, that the Iraqi people wouldn't dare come out of their homes to vote, and worse, that the Iraqi people weren't ready and didn't desire freedom.

Though the votes have yet to be tallied, the millions of Iraqi voters that turned out on Sunday underscore the truism that people desire to be free.

And one of the most fundamental political freedoms is the freedom to choose your government. What we saw on Sunday should not surprise Americans: When given the opportunity to be in charge of their own destiny, citizens of all nations will not only turn out in great numbers, but they are willing to sacrifice their own lives for the opportunity to live in a free society.

I agree with one of America's most perceptive analysts on the region, Fouad Ajami, who said that on Sunday we bonded with the Iraqi people, because they were doing the most American act: voting.

As a strong supporter of our President and his policy in Iraq, I am always encouraged by my fellow Utahns who believe America should stay the course, fight on, and finish what we started. Utahns appreciate the sacrifice and courage of our troops, and those of the Iraqis who deeply appreciate our commitment.

Earlier this week, I read that the mayor of Baghdad even wants to erect a statue to President Bush, calling him the ``symbol of freedom.'' When asked if he was concerned about the many threats on his life, Mayor Ali Fadel said, ``My life is cheap, everything is cheap for my country.''

He also said, ``We have a lot of work and we are especially grateful to the soldiers of the USA for freeing our country of tyranny.''

We saw this gratitude again last night when the daughter of a man killed by Saddam Hussein's thugs was hugged by the mother of a Marine who gave his life in Fallujah.

Some may erroneously dismiss that as crafted drama. For me, that moment in the State of the Union will forever capture America's mission of spreading freedom in this world.

I have tears in my eyes because I remember many years ago receiving notice that my brother had been killed in the Second World War fighting for the freedom that Sergeant Norwood fought for over in Iraq--fighting for the freedoms for Europe and the world.

Many of our soldiers risking their lives in Iraq are my fellow Utahans. I am both proud and impressed with their willingness to serve their country and help the Iraqi people establish a free and democratic government.

Just yesterday, a group of 100 Utah National Guard men and women, in addition to the 500 that left just a week before, were deployed to bases in the U.S. for training, after which they will move to Iraq, where they will continue to serve for 1 year.

We have had Utahans over there serving beyond the term they were supposed to serve.

We have had Utahans over there serving beyond the term they were supposed to serve. I know they will serve well and, I pray for their safe return home to their loved ones and families.

We all understand that this election was just one more step on the path to a free and democratic Iraq. But, it was an enormously important step.

I commend our President, our brave men and women in uniform, and especially, the freedom-loving people of Iraq.

President Bush began his speech last night recognizing that he serves at the privilege of the voters, and that, today,

an Iraqi government is forming based on the voters' selections, as a new government is in place in the Palestinian Authority, and in Afghanistan.

One of the President's greatest virtues, in my opinion, is his humility, and the recognition that we serve at the voters' behest is the fundamental virtue of leadership in a democracy.

To recognize that humility is to accept the responsibility that democratic leadership must always be open and transparent and compelling to the electorate.

Over the past 4 years, President Bush has often spoken directly and honestly to the American people, about the uncertain threats before us, and about the responsibilities we need to shoulder to defend our freedoms.

At the beginning of my remarks I said that one of the most fundamental political freedoms is the freedom to choose your government.

An even more basic political freedom is the freedom from tyranny or terror.

To be secure from the carbombers, from the dreaded knock on the door in the middle of the night, from the capricious order of the dictator, are necessary for freedom to be sustained.

Last night the President again stated his vision of how our security is dependent on expanding the zone of freedom to regions of the world where for too long threats to our security incubated.

Iraq will never be fully free until the Iraqi people can provide for their own security, and the President made it plainly clear again last night that our mission will not be finished until we have trained an effective Iraqi force to assume their security. To leave before then, or to announce a departure before we know we have achieved this goal, is to undermine our mission and devalue our sacrifices.

Those who call for an exit date before knowing we have succeeded care not for our success nor our security.

We know there remains much work to be done. No one called for an exit date before we had victory in World War II, a war where America made enormous sacrifices, including my only brother.

No one called for an exit strategy during the twilight years of the Cold War.

No one, after the collapse of the Soviet Empire, set an exit date for our efforts to support democratic transition in central and eastern Europe. We build our policies on victory, magnanimity, democracy and freedom

While we will not set an exit date, we do have an exit strategy; that is, once we have trained enough security people and police people to take over and to protect and care for their own country, once we have helped to bring up their structure, witnessing that there is a degree of security, peace, and freedom in Iraq beyond where it is now, we are going to pull our young men and women out of there. Let us hope that happens sooner rather than later.

Listening to President Bush's speech last night, I know he understands how to protect America's security. Even more, he understands America's role in a challenging world. President Bush has charted a course as bold as he is, and it is incumbent upon the Congress and the American people to support him in this most important effort.

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

Mr. President, I have been listening closely to my colleagues, and I fear that sometimes in this debate we may just be missing the forest for the trees. By focusing almost exclusively on allegations regarding the Convention Against Torture, which is an important issue, to be sure, Judge Gonzales's critics seem to have forgotten that we are debating a nomination for the position of Attorney General of the United States of America.

One would think, for example, that all of my colleagues would join me in being supportive of the prospect of our Nation's civil rights laws being enforced by a citizen who grew up on the wrong side of the tracks and has worked his way up the hard way. I am one of many who is pleased at the prospect of Judge Gonzales enforcing our civil rights laws.

It was not that long ago that we did not even have a Civil Rights Division at Justice. Today, the public servants there do very important work. Whether they are working to guarantee the right to vote, protecting the freedom of worship, or preventing human trafficking, the 21st century version of slavery, these career lawyers are determined to extend the principle of equality under the law to all Americans regardless of race, creed, or color.

Alberto Gonzales shares that commitment to the principle of equal justice under the law. Instead of launching unfounded accusations that Judge

Gonzales in some attenuated fashion somehow supports the inhumane treatment of prisoners, one would think we would join together to support Judge Gonzales as the enforcer of our Nation's civil rights laws.

As a child of immigrants, the diversity of experience that he would bring to this position is remarkable. His personal story is a testament to the opportunity afforded in this great country by the guarantees of freedom and equality.

Through his role in the judicial nominations process as White House Counsel, Judge Gonzales has made it clear that diversity in Government is a desirable goal. I worked with him for 4 years on judicial nominations, so I know firsthand of his thoughts and actions on bringing diversity to our Federal bench. When working on behalf of the American people, a personal appreciation of their everyday trials and dreams can only make one a better public servant. For that reason, I suppose, he explained at the National Hispanic Leadership Summit, that we must ``go the extra mile'' when seeking diversity in public service. Certainly this administration has been doing that, and he has been a pivotal part of that.

There is no doubt that Judge Gonzales will bring these experiences to bear at his new job. Lynne Liberato, a partner in the Houston office of Haynes & Boone, and a former president of the State bar of Texas and the Houston Bar Association has said that Judge Gonzales:

. . . has always been a person of good judgment, kindness,

and moderation. He has experienced the prejudice endured by

Mexican Americans. These experiences enhanced his judgment

and fueled his compassion.

Now this is not lost on groups representing Hispanic Americans. It is certainly not lost on LULAC, the League of United Latin American Citizens, which has strongly supported Judge Gonzales and believes that he will uphold the 1965 Voting Rights Act making certain that all Americans can fully participate in the Democratic process. To me, that is the most important civil rights act in history.

Listening to Judge Gonzales's personal story, one discovers a person committed to the idea that if people are only treated equally, the opportunities afforded by America are boundless. His father built their house with his own hands. My dad did ours. His dad worked any job that was available to him in order to support his family. So did my dad. He picked crops as a migrant worker, worked in construction, as my dad did, and was part of a maintenance crew at a rice mill.

One gets the sense from listening to Judge Gonzales that his father did these things knowing that if only he and his family were given a fair shake they would find success in America. Let me just say that my father never met Judge Gonzales's father but it sounds to me that they would have had a lot in common given their belief and faith in the American dream. So it was hardly a surprise when Judge Gonzales defended the rights of labor even in the face of the Supreme Court's 2002 decision in Hoffman Plastics Compounds, Inc., v. NLRB.

The Court held that employees who present false documents to their employers in order to establish employment eligibility are not entitled to the remedy of backpay when their employers violate Federal labor law. Yet Judge Gonzales insisted that the decision:

. . . will not prevent the administration from fully

enforcing core labor protections against employers,

regardless of the status of their employees.

When he made this statement at a meeting of MALDEF, the Mexican American Legal Defense and Education Fund, I am told that one could sense the passion of a person with a genuine appreciation of the noble sacrifice and the hard labor of the working poor.

Judge Gonzales is going to lead the Justice Department.

His personal commitment to justice is deeply rooted. I know the time pressures that attorneys face and yet Judge Gonzales has never let the demands of his profession or his career stand in the way of his voluntary service to his community.

Somehow, in the midst of building a successful law practice and second career as a public servant, he found time to serve as director of Catholic Charities and of Big Brothers Big Sisters. As Lynne Liberato explained in the Houston Chronicle:

As a young lawyer, Al was committed to the education of

minority kids. While a young associate at Vinson & Elkins he

was instrumental in establishing the Vinson & Elkins Minority

Scholarship. When asked by local Hispanic leaders to work on

a committee to address the issue of the large number of

Hispanic dropouts, Al devoted his time to the establishment

of the Hispanic Career and Education Day. Both of these

programs are still helping kids.

Judge Gonzales is committed to civil rights and the establishment of justice for all of our citizens, and so it is unfortunate that some of my colleagues have allowed their opposition to the President's prosecution of the war on terror to cloud their judgment in this case. Judge Gonzales will be our Nation's chief law enforcement officer. As such, he will be called upon to enforce our civil rights statutes and his long track record leaves no doubt that he will do so vigorously. His nomination is a milestone in American history and his confirmation will be remembered in our Hispanic communities for generations.

As a proud member of the party of Abraham Lincoln, I remain committed to a serious civil rights agenda. I wish my friends across the aisle would put partisanship aside and recognize that Judge Gonzalez would make a historic contribution to our Nation's continuing struggle to be a more just political community.

Some Senators on the other side of the aisle are desperately searching, fishing, and hunting to find something, anything, with which to attack Judge Alberto Gonzales. I reviewed some of the issues yesterday, including their attempt to hold Judge Gonzales responsible for a memo that he did not write, prepared by an office he did not run, in a Department in which he did not work, that provided legal advice that President Bush did not follow. That argument is a very thin brew. But some of my friends across the aisle are still throwing political spaghetti at the wall hoping something will stick.

The senior Senator from New York, for example, wants to drag Judge Gonzales into our internal Senate debate over filibusters of majority- supported judicial nominations. In the Judiciary Committee hearing on January 6 and the markup on January 26 and again on this floor yesterday, the distinguished Senator from New York has demanded to know Judge Gonzales's opinion on whether these filibusters are constitutional.

Senator Schumer says the answer will ``weigh heavily in my decision whether to support his confirmation.'' Judge Gonzales's answer has been clear and consistent, and it is both clearly and consistently correct. He said in the hearing that this issue is ``an internal Senate matter.''

Now, that is the right answer, because it is what the Constitution says. In article 1, section 5, the Constitution gives each House of the Congress the power to ``determine the rules of its proceedings.''

Judge Gonzales did not remind us of the at least four instances where the constitutional option was utilized in the Senate to stop an unjust, unconstitutional filibuster. No, he did not do that. He just said it is up to the Senate; the Senate should set its rules. That is what the Constitution says.

As the Supreme Court unanimously held more than a century ago, in exercising this authority we may not ignore constitutional restraints. That is a given. But both the authority to determine our rules and our responsibilities to meet constitutional standards are entirely ours so long as our rules do not contravene another constitutional requirement.

The House of Representatives has nothing to say about our rules in the Senate, and the executive branch does not either, and Alberto Gonzales recognized these principles.

Judge Gonzales is not like the professors who opined in hearings on this issue. Nor does he work for the Senate legal counsel or for the Parliamentarian waiting in the wings to give his opinion on any issue any Senator might raise. He is Counsel to the President of the United States of America. He comes before us wearing that hat. He has been nominated to be the next Attorney General of the United States of America. Both positions are in the executive branch, which has no role

whatsoever in determining how the Senate sets its internal procedural rules.

So Judge Gonzales's answer was not only correct on its face, but it demonstrated his respect for the fundamental principle of the separation of powers. In my view, he correctly believes it is not appropriate to accept any invitation that comes along to speculate and postulate about issues that the Constitution expressly removes from his jurisdiction.

In his January 6 hearing, Senator Schumer asked Judge Gonzales about the filibusters, after insisting that the words of the Constitution should be our standard on such issues. Keep in mind these are the first filibusters of judges, of Federal judges, in the history of this country in over 200 years.

If the words of the Constitution matter, then nothing could be more compelling than the Constitution's assignment of rulemaking authority right here in the Senate. Judge Gonzales's answer was grounded correctly in the text of the Constitution. For this reason, I was more than a little surprised yesterday to hear the distinguished Senator from New York, Mr. Schumer, say on this floor that Judge Gonzales's principled answer to this politically motivated question suggests that he would not be independent as Attorney General.

Give me a break. Frankly, as one who believes that my colleagues across the aisle are using the current rules of the Senate to filibuster judicial nominations in an unwise, unfair, unprecedented, and unconstitutional manner, there may have been some short-term political benefits to have the next Attorney General publicly side with me on this important issue. But Judge Gonzales wisely did not join in this fray, even though it could have been politically advantageous to the President and Republican Senators if he just came out on our side.

I asked those who questioned his independence and his ability to separate himself from the political interests of the President, what could be more independent than insisting that the constitutional separation of powers takes precedence over the politics of the moment?

This is an odd way to look at independence. On the one hand, Senator Schumer wants Judge Gonzales as Attorney General to be independent from the President at whose pleasure any Cabinet member serves. Then on the other side, Senator Schumer objects when Judge Gonzales, as Counsel to the President, shows a little independence from Senator Schumer by refusing to be pulled into a political dispute entirely outside the jurisdiction of the executive branch.

What is even more disheartening to me is that even though the distinguished Senator from New York has worked closely and cooperatively with Judge Gonzales in resolving their differences with respect to filling judicial vacancies in New York, he somehow finds Judge Gonzales to be unfit for the office of Attorney General. Selecting judges has been one of the most vexatious issues that any President and any Senate face. Judge Gonzales has a proven track record of working effectively with Senator Schumer on New York judicial vacancies.

I think it is fair to call Senator Schumer one of the most energetic Members of the Senate with respect to judicial nominations, whether you agree with him or not. It seems to me that Judge Gonzales's ability to work with my friend from New York so successfully on these contentious issues bodes well for his abilities to continue to work closely with the Senate once he is confirmed.

Several of my colleagues have stood on this floor and suggested-- sometimes even flatly asserted--that Judge Gonzales lacks or will lack the necessary independence from the White House if he were to become Attorney General of the United States of America.

I cannot reach into the hearts and minds of those making these statements, but to me this suggestion is unadulterated bunk, sheer hokum. It is asking us to disprove a negative. It is the type of argument that is made when meritorious arguments are unavailable.

The charge that Judge Gonzales will not exercise his best judgment on behalf of the American public is groundless. Judge Gonzales is an accomplished lawyer, one recognized by the alumni association at his alma mater, the Harvard Law School, one of the greatest law schools in the country. He practiced at one of the most prestigious and respected law firms in the United States of America, Vinson and Elkins. He was a partner there.

As many speakers before me have noted, including Senator Specter and Senator Sessions, a good lawyer is one who knows who his client is and represents him well. What is it about Judge Gonzales that makes some people believe that he is somehow incapable of making the simple distinctions, distinctions made by lawyers every day? Is it prejudice? Is it a belief that a Hispanic American should never be in a position like this--because he will be the first one ever in a position like this? Is it a belief that only liberal Hispanics should be confirmed? Or is it because he has been an effective Counsel to the President of the United States, who many on the other side do not like? Or is it because he is constantly mentioned for the Supreme Court of the United States of America? Or is it that they just don't like Judge Gonzales? I find that that is not possible because you can't help but like him. He is a fine, enjoyable, friendly man.

I do not agree with those who insinuate that he cannot handle this job or that he will not do it in the best possible manner. I believe every Hispanic in America who is interested in this country and who understands what is going on here is watching this with a great deal of interest. It is amazing how some can be so in favor of minorities and yet whenever the minority might be--in this case moderate, but representing a conservative President--that for some reason or other, they are just not worthy to hold these positions?

It was explained in the Judiciary Committee, Judge Gonzales understands the differences between the role of the White House Counsel and the role of Attorney General. Over the course of our history there have been several individuals who have been close advisers and friends of the President and have gone on to serve successfully as Attorney General. In President Reagan's administration, Attorney General Meese wore both hats with great distinction. Earlier than that, Robert Kennedy, brother of the President of the United States, proved capable of separating his role of serving the American people from his unique relationship with his brother, President John F. Kennedy.

Frankly, I doubt that any Attorney General was closer to the President than Attorney General Robert Kennedy was to President John F. Kennedy. The historical record reveals that this issue was a matter of debate and concern by some prior to the confirmation of Attorney General Kennedy. In the same way that Robert Kennedy did not allow his closeness to the President to interfere with his legal judgment, I am fully confident, and I think everybody who knows Alberto Gonzales is confident, that Alberto Gonzales's relationship with President Bush will not impede his ability to serve as a fair and effective Attorney General of the United States of America.

In fact, that Judge Gonzales has the President's ear and full confidence can only help achieve the Department of Justice's priorities in the same way that the Department of Justice played a prominent role in the Kennedy administration.

I am quite confident that Judge Gonzales will serve the American public and enforce the law in a fair manner for all of our citizens. I am not certain why anybody would suggest that Judge Gonzales is somehow incapable of distinguishing his role as Attorney General of the United States from his role as Counsel to the President. He made it quite clear in his confirmation hearing that he understood the obligations of his new office. Here is what he said:

I do very much understand that there is a difference in the

position of counsel to the President and that of Attorney

General of the United States. . . . As counsel to the

President, my primary focus is on providing counsel to the

White House and to the White House staff and the President. I

do have a client who has an agenda and part of my role as

counsel is to provide advice that the President can achieve

that agenda lawfully. It is a much different situation as

Attorney General, and I know that. My first allegiance

is going to be to the Constitution and to the laws of the

United States.

You know, I think he ought to be taken at his word. We have done it for countless others whom we have confirmed here in this body. But for some reason some on the other side actually believe that he might not be capable of doing this job. Or if he is, then he might not do it properly. Or, if he doesn't do that, then he might be so much in his President's pocket that he won't uphold the law, which he has always done.

It is ridiculous. What is the reason for this opposition? I don't know what it is. But I have listed a few things it could be. Judge Gonzales's service on the Texas Supreme Court should prove to anyone interested his ability to be independent from then-Governor and now- President Bush.

In response to questions for the record from Senator Kennedy, the distinguished Senator from Massachusetts, Judge Gonzales stated that he ``would enforce the law fairly and equally on behalf of all Americans.''

Senator Kennedy raised all of these torture memoranda as though Judge Gonzales wrote them.

He wasn't in the Justice Department. He wasn't in the office of legal counsel. He wasn't the person who wrote them. He didn't represent the Justice Department. But he did have a relationship to the February 7, 2002, memorandum where the President said that all prisoners, whether or not they were subject to the Geneva Conventions, had been treated ``humanely.''

People can have different views on the Bybee memoranda, and other memoranda that have been quoted here as though Judge Gonzales had anything to do at all with them, but Judge Gonzales's opinion, which he gave the President, was that they should be treated humanely.

Why do they insist on these points? Why has torture become the big point of debate on the floor of the Senate? There is only one reason: to undermine the President of the United States.

Just think about it. Why would we do that publicly as Senators? Why would we do that, especially since we all know that these were rogue elements who have done these awful things? We all condemn them. But why would we do this? Some people think that these statements are so bad, that they give comfort to the enemy. I do not go that far. But why have they used distortions to try to stop Judge Gonzales? Why would they do that?

He is a moderate man. He is an accomplished man. He is a decent man. We have had 4 years of experience with him. He has done a great job down there as White House Counsel. He has been up here before every Senator on the Judiciary Committee, eight of whom voted against him, and he accommodated them in every way he possibly could. Sometimes he couldn't do what they wanted him to do, but the fact is he was always accommodating. He was always reasonable, he was always moderate in his approach, and he always listened--exactly what we would hope the Attorney General of the United States would be like.

Further, during his opening statement at his confirmation hearing, Judge Gonzales indicated that ``[with] the consent of the Senate, [he] w[ould] no longer represent only the White House; [he] w[ould] represent the United States of America and its people.''

Knowing Judge Gonzales, he meant that.

Finally, Judge Gonzales explained at his hearing that his responsibility as Attorney General would be to ``pursue justice for the all the people of our great Nation, to see the laws are enforced in a fair and impartial manner for all Americans.'' I believe it is clear that Judge Gonzales understands the obligations associated with the position of Attorney General of the United States, and he is uniquely qualified to follow in the footsteps of the able and distinguished men and women who have preceded him.

I know the other side does not want any Republican on the Supreme Court of the United States of America. I cannot blame them for that. We do not share the same philosophy, by and large, as the liberal philosophy they espouse. On the other hand, in times past Republicans have confirmed liberals to the U.S. Supreme Court without putting them through these types of machinations that have despoiled their character. We have supported the President of the United States. We have not filibustered judges. We did not smear great legal intellectuals like Robert Bork. I can name many others, including the current Chief Justice of the United States, one of the finest men who ever served in the judiciary of this country, who had a distinguished public service record before his nomination but was smeared during the Judiciary Committee hearings and on the floor of the Senate. My party did not resort to these tactics. I would be disappointed if we did.

Here we have a chance to confirm a man who is a decent man, who is of Hispanic origin, the first Hispanic ever to be nominated to one of the big four Cabinet positions. Why can't my friends who oppose him recognize that and recognize the historic nature of this nomination, recognize his great ability, recognize his decency, recognize his fairness in working with them, and recognize that this man will make a difference for all Americans, as he has as White House Counsel?

Is the hatred for the President so bad they transfer it to somebody as decent as Judge Gonzales after years of complaints about John Ashcroft? He has been a wonderful Attorney General, in my eyes. After years of complaining about him because he is too conservative, all of a sudden you have a moderate Hispanic man who has a distinguished public service record, who has a distinguished career as a lawyer, who came from poverty to the heights of strength and success in this greatest of all nations, and he too gets treated like dirt. And I personally resent it.

Let me conclude these remarks by restating my support for Alberto Gonzales. He has the education, he has the experience, and he has the character to be the next Attorney General of the United States, and he deserves the support of the Senate.

I believe that those who vote against him--I hope nobody does, I would be so pleased if nobody did, but those who vote against him, I believe people throughout this country have to look at what they have done with disdain, with concern, and with intelligent eyes and determine why they voted against somebody of this quality. Why would they make some of these arguments that are clearly fallacious with regard to Judge Gonzales?

I suggest the absence of a quorum.

Mr. President, reserving the right to object, and I will not object.

I understand. I ask unanimous consent that I immediately follow the Senator from California.

Mr. President, I have heard the remarks of my distinguished colleagues, and I want to say I have some grave disagreements with some of the things that have been said.

I rise in support of the President's nomination of Alberto Gonzales to be the next Attorney General of the United States.

We all know who Judge Gonzales is. Today is a remarkable day in our country's history and a momentous day for the American Hispanic community.

Today, we are considering the nomination of Judge Alberto Gonzales who, when confirmed, will become the first Hispanic-American Attorney General of the United States. That is very significant. He will be eighth in line of succession to the Presidency.

In 1988, President Ronald Reagan appointed the first Hispanic Cabinet member, Secretary of Education Lauro F. Cavazos. Two years later, President George Herbert Walker Bush continued to make history by appointing the first woman and first Hispanic Surgeon General of the United States, Antonia C. Novello. Dr. Novello used to work with me as a fellow before she succeeded Dr. Koop as Surgeon General of the United States.

Just last week, the Senate confirmed President Bush's nomination of Carlos Gutierrez as Secretary of Commerce. And today, President George W. Bush sets yet another first. As Chairman of the Republican Senatorial Hispanic Task Force, I am well aware of the significance of this appointment and this moment in our Nation's history. Every Hispanic American in this country is watching how this man is being treated today and throughout this debate as we discuss the nomination. This nomination is just that important.

I know Judge Gonzales's life story. It has been laid out many times in the media and was described during the confirmation hearing. This is a story that bears repeating in the Senate. He is an American success story. He shows that no matter where anyone comes from, in America, there is no limit on how far they can go.

As many Americans know, Judge Gonzales was the second of eight children. His father and two uncles built a small two-bedroom home with no running hot water in Humble, TX, where all 10 members of this family lived, a truly humble family. His parents had no more than a few years of elementary school education, and his father was a migrant worker. Growing up in a working poor household, his family never even had a telephone.

In a story familiar to many whose parents and grandparents were immigrants, his parents knew the importance of an education for their son. After serving honorably in the U.S. Air Force, Judge Gonzales became the first person in his family to go to college. He attended the Air Force Academy and graduated from Rice University and Harvard Law School. Since then, Judge Gonzales has worked at one of the finest law firms in Texas and this country, Vincent & Elkins, he served for 3 years as the general counsel for the Governor of Texas, served as secretary of state for the State of Texas, served as a justice on the Texas Supreme Court, and became as we all know, White House Counsel for President Bush.

Yet his resume tells only part of the story. His accomplishments include many professional and civic honors. He was voted the Latino Lawyer of the Year by the Hispanic National Bar Association. He was inducted into the Hispanic Scholarship Fund Alumni Hall of Fame. He has received various awards from Harvard and Rice Universities, the United Way, the United States-Mexico Chamber of Commerce, the League of United Latin American citizens, just to name a few. He has been a pillar of every community in which he has lived.

Despite these incredible personal achievements, Judge Gonzales remains one of the most unassuming, humble, and decent individuals I have ever had the privilege of meeting, let alone work with in government. I know firsthand that he is well qualified to be Attorney General of the United States, and I commend the President of the United States on his choice of such an outstanding individual.

I am not the only person to think this. Judge Gonzales has the support of the National Council of La Raza, one of the largest Hispanic organizations in the country. He has the support of the Hispanic National Bar Association, the Latino Coalition, the League of United Latin American Citizens, the National Association of Latino Leaders, Congressional Hispanic Conference, the United States Hispanic Chamber of Commerce, the Hispanic Alliance for Progress Institute, the National Association of Latino Elected and Appointed Officials, the National Association of Hispanic Publishers, Minority Business Roundtable, the Texas Association of Mexican American Chamber of Commerce, the Congress of Racial Equality, the Jewish Institute for National Security Affairs, the Fraternal Order of Police, the National District Attorneys Association, the FBI Agents Association, the Recording Industry Association of America--just to mention a few. Anyone who says he does not have the vast majority support of all Hispanics in this country and most all other people who understand decency and honor just do not know what they are talking about.

He has garnered support from both Democrats and Republicans. The former Secretary of Housing and Urban Development, under President Clinton, Henry Cisneros, wrote an article in the Wall Street Journal in January praising Judge Gonzales, and Senator Ken Salazar, the newly elected Democrat from Colorado, testified in favor of Judge Gonzales in our Judiciary Committee. I commend Senator Salazar for sharing his opinion of the nominee.

Judge Gonzales is also supported by the former Solicitor General of the United States of America, Ted Olson, as well as members of the Heritage Foundation, the conservative institution in Washington. The philosophical, religious, and ethnic diversity of this support speaks volumes of his qualifications.

Let me take a few minutes to read from some of these letters. Janet Murguia, president and CEO of the National Council of La Raza, the largest constituency-based Hispanic organization, has given a strong recommendation of Judge Gonzales.

Not only is Judge Gonzales a compelling American success

story, it is also clear that

few candidates for this post have been as well qualified. He

has served as Texas' secretary of state, as a member of the

Texas Supreme Court, and as White House counsel, and has been

deeply involved in his community throughout his life.

We are encouraged that in response to questioning, Judge

Gonzales agreed to review the Administration's positions on

sentencing reform and articulated some reservations about the

practice of ``deputizing'' local police to enforce

immigration laws.

If confirmed, Gonzales would be the first Hispanic attorney

general and the first Latino to serve in one of the four

major cabinet posts--Secretary of State, Treasury, Defense,

and Attorney General.

While we have had our policy differences with the Bush

Administration, we are confident that Judge Gonzales is

someone who will serve his country with distinction and who

will also be accessible and responsive to the concerns of the

Hispanic community. We urge the Senate Judiciary Committee

and the U.S. Senate to confirm him as soon as possible.

She speaks for the vast majority of Hispanics in America.

Similarly, the Latino Coalition strongly supports Judge Gonzales. In a press release dated November 11, 2004, it states:

Judge Gonzales is the perfect choice for the next U.S.

Attorney General. The Judge has been an instrumental part of

the legal efforts to boost the war on terrorism and keep

America safe and secure, while upholding the highest

standards in government ethics. Judge Gonzales brings to the

Office of the U.S. Attorney General a distinguished legal

record based on his many years of work in the public and

private sector. He also brings a unique perspective and human

experience understood only by those whose families have

migrated to a foreign land with little resources and not

knowing the language. It is for this cultural depth and his

unique legal qualifications that we urge the Senate Judiciary

Committee and all members of the U.S. Senate to put partisan

politics aside so that Hispanics are no longer denied

representation in this important post. . . . We have been

honored to work with the Judge for many years now, and have

personally witnessed his ability to unite people of all

different backgrounds to get things done. He is an extremely

qualified and intelligent attorney who will serve with

distinction and make every Latino proud. We endorse his

nomination without any reservations.

He will make every Latino proud. He has up to this time everywhere he has been. He has set a good example and has done what is right in his government work.

The FBI Agents Association wrote to the committee last December:

We write to express the support of the FBI Agents

Association for the nomination of Judge Alberto Gonzales for

Attorney General of the United States. . . . We believe

Judge Gonzales' practical life experiences, his legal

training and education, his judicial expertise and his

close proximity to and involvement with many of the most

difficult jurisprudence issues associated with the ongoing

war against terror make him a nominee fully worthy of

confirmation by the U.S. Senate. We are also confident

that Judge Gonzales' experience in and firm appreciation

of the issues in today's national criminal justice system

will serve him and the nation well as the next Attorney

General.

I can guarantee the FBI Agents Association does not send recommendations like that in the case of people who are not worthy.

The National District Attorneys Association also expressed strong support for Judge Gonzales in a letter dated December 17, 2004. This is a bipartisan association of all the national district attorneys of the country:

During Judge Gonzales' tenure as Counsel to the President

our leaders have had frequent opportunities to meet with him

and to discuss with him issues challenging our public safety.

Through these meetings we have come to recognize both his

commitment to protecting the American public and to ensuring

closer working relationship between federal, state and local

law enforcement organizations.

With the increasingly complex challenges facing us in our

fights against both organized gangs and terrorists he brings

the skills and legal acumen necessary for this position of

responsibility. We are confident that his confirmation will

enhance the safety of our citizens from threats, domestic and

international, while safeguarding those liberties that we all

treasure.

As leaders for the only national organization representing

the local prosecutors of this nation we have the utmost

confidence in his ability to master this most challenging

position and pledge to do everything within our ability to

ensure that the working relationship between the Department

of Justice and America's prosecutors grows even stronger.

Finally, let me read excerpts from a Wall Street Journal article written by Henry Cisneros, who was the Secretary of Housing and Urban Development in the Clinton administration and was the mayor of San Antonio for 8 years. This is what Mr. Cisneros had to say:

The last four years have posed harrowingly difficult

dilemmas, especially those related to the 9/11 terrorist

attack on our nation and the military and security actions

that resulted from it. There have been successes and

failures, there have been good judgments and misjudgments--

all in the context of war, that is, a context of military

organizations under stress, of imperfect information, of

life-and-death concerns. The American people decided in

November, for better or for worse, to see this conflict

through. It would be unseemly at this juncture to use the

forum of a Senate confirmation process to try to find a

scapegoat for a war that is at a very difficult stage. In any

event, Alberto Gonzales has done nothing to alter the basic

facts that he is a seasoned legal professional, is needed by

the president, and is a person of sterling character.

Mr. Cisneros goes on to say:

As an American of Latino heritage, I also want to convey

the immense sense of pride that Latinos across the nation

feel because of Judge Gonzales's nomination. I had the high

honor of serving in a president's cabinet, as have five other

American Hispanics, but we all served in what might be called

``outer circle departments.'' The historic character of this

nomination is that Judge Gonzales has been nominated to one

of the big four--State, Defense, Treasury, and Justice. This

is a major breakthrough for Latinos, especially since it is

so important to have a person who understands the framework

of legal rights for all Americans as attorney general.

Judge Gonzales has demonstrated a nuanced understanding of

the struggles people face as they try to build a life for

their families in our country. Perhaps that appreciation

comes from remembrances of his own family's struggle. In the

Commencement Address at his alma mater, Rice University,

earlier this year, he recalled: ``During my years in high

school, I never once asked my friends over to our home. You

see, even though my father poured his heart into that house,

I was embarrassed that 10 of us lived in a cramped space with

no hot running water or telephone.''

As an aside, I understand that. We had a humble home like that. We did not have indoor facilities at first. I knew what it was like to not be ashamed of my home but not wanting to bring people there. I understand Judge Gonzales. I was there, too.

I will continue on with Henry Cisneros's comment. Remember, he was a Cabinet member in the Clinton administration, and he strongly supports Judge Gonzales. This is what Mr. Cisneros said:

On another occasion, [Judge Gonzales] said: `` . . . my

father did not have many opportunities because he had only

two years of formal schooling, and so my memories are of a

man who had to work six days a week to support his family. .

. .He worked harder than any person I have ever known.''

That is what Judge Gonzales said.

Mr. President, this is the person who my Democratic colleagues are trying to defeat--a man who has bipartisan support throughout the country, and big-time support; a man who represents the American dream to so many of us; the man who deserves to be the next Attorney General. But to listen to these comments by our colleagues--and I think over the next couple days to listen to them--they act as if somebody has to be perfect to be a Cabinet member in any administration. But certainly in the Bush administration, they must be perfect. Not only do they say that, but you will find there are many distortions of his record. They take things out of context and blow them out of proportion.

I worked closely with Judge Gonzales during President Bush's first term, and I have found him to be a man of his word. Unfortunately, in a misguided attempt to bring this fine individual down, some people, somehow, blame Judge Gonzales for the abuses that have occurred at Abu Ghraib. As many Americans, I, too, am concerned about the alleged abuses of detainees apprehended in the war on terror. When I saw the pictures in the media of detainees at Abu Ghraib, I was simply disgusted. I think all decent Americans were disgusted. They understand the abuses that occurred there were repugnant and inconsistent with our renewed commitment to promoting liberty and democracy. There is absolutely no debate about that.

In addition, there are more allegations in the media recently about individuals being subjected to water-boarding, or suffering from cigarette burns, and other acts of physical intimidation that must be taken seriously as well. I take these allegations very seriously--very seriously. Regardless of what the precise legal definition of ``torture'' is,

when you see or hear about acts of physical abuse of prisoners, even in a time of war, it is very disturbing.

It should be obvious enough that it does not need to be said, but I condemn the torturous acts that occurred at Abu Ghraib. The President condemns torture. My colleagues on both sides of the aisle condemn torture. Make no mistake about it, Judge Gonzales condemns torture. Judge Gonzales must have said that dozens of times before and after his hearing, both orally and in writing. He opposes torture, period. He could not have been clearer on this issue. To have his record distorted is hitting below the belt.

There are many Americans who believe someone in the Government should be held responsible for these abuses. I agree. All of the individuals responsible for those atrocious acts should be punished. And they are being punished. The military immediately investigated. They have immediately prosecuted. Some of them have been sentenced, and the others will be. There is no question about it; they should be punished. However, these convictions do not get as much attention from the press as the photos themselves.

The fact is, the convictions do not provide the political ammunition for those who oppose the President and this administration.

Nonetheless, just earlier this month, Charles Graner was convicted for his role in detainee abuse. He was sentenced to 10 years of imprisonment. He also received a military demotion and was dishonorably discharged, as he should have been.

He is not the only person who has been convicted. The military has disciplined four members of a special operations unit for abusing detainees in Iraq, including at least one case of the use of a Taser stun gun. It has also subjected two individuals to administrative punishments and four others to nonjudicial punishments. The Department of Defense has completed eight investigations and has three additional ongoing investigations.

Lest we forget, the scandal of Abu Ghraib was the subject of an internal Government investigation well before the media broke the story. I am sure that as time goes on, there will be more investigations and more prosecutions of these people who acted as non- Americans, as far as I am concerned. In the global war against terrorism, American soldiers and employees must conduct themselves honorably, and we will insist they do so--and so has Judge Gonzales insisted that they do so.

Congress takes this oversight role very seriously. I was a cosponsor to S. Res. 356, which we passed last May, condemning the abuse of Iraqi prisoners at Abu Ghraib prison, urging a full and complete investigation to ensure justice is served, and expressing support for all Americans serving nobly in Iraq.

In August, the Defense Department Appropriations Act became law. It reaffirmed Congress's view that torture of prisoners of war and detainees is illegal and does not reflect the policies of the U.S. Government or the values of the people of the United States.

In December, the Consolidated Appropriations Act for Fiscal Year 2005 became law. This law includes a prohibition on the use of funds by the Justice Department to ``be used in any way to support or justify the use of torture by any official or contract employee of the United States Government.''

In addition, at least five committees have held hearings on Abu Ghraib in the 108th Congress. Since May, the Armed Services Committees of both Houses took testimony from numerous Defense Department officials. Secretary Rumsfeld himself testified four times. Other witnesses include GEN Richard Myers, Chairman of the Joint Chiefs of Staff; Acting Secretary of the Army, Les Brownlee; U.S. Army Chief of Staff, GEN Peter Schoomaker; and Central Command Deputy Commander, LTG Lance Smith.

The committees Interviewed General Taguba, the author of the Taguba Report, which investigated the photos of abuse at Abu Ghraib. They held hearings and heard testimony from general officers who conducted a formal investigation into the allegations of abuse, known as the Fay investigation and from James Schlesinger and Harold Brown, who were appointed by the Secretary of Defense to head the Independent Panel to Review DOD Detention Operations--otherwise known as the Schlesinger Report. The Senate also interviewed the Army Inspector General about his investigation, and interviewed Stephen Cambone, Undersecretary of Defense for Intelligence. The Senate Armed Services Committee took testimony from Central Command Commander General John Abizaid, Lieutenant General Ricardo Sanchez, who commanded the Multi-national Force-Iraq; Major General Geoffrey Miller, Deputy Commander for Detainee Operations in Iraq, and Colonel Marc Warren, Army Judge Advocate General.

Despite all this, there are some people who believe that not enough has been done. And I respect their views. But it seems that now, a small but vocal group of those individuals have attempted to create an almost mob mentality--looking for any high level official in the Bush administration to take the blame. And Judge Gonzales has become the favorite scapegoat for some. People who cannot even bring themselves to speak optimistically about our prospects in Iraq in the days before and now after the day of the historic election itself, surely have no qualms about creating a scapegoat out of Judge Gonzales. This man--a committed public servant, a veteran of our Armed Forces--deserves better.

Let us not lose focus here. Judge Gonzales has been nominated to be the Attorney General--not the Secretary of Defense.

And when these abuses occurred, Judge Gonzales was not the Secretary of Defense. It was not his responsibility to tell soldiers which specific interrogation tactics to use.

In fact, it was not even his responsibility to provide legal advice to the Secretary of Defense on torture or any other subject. Providing legal advice to executive branch departments and agencies is the role of the Department of Justice. His primary role was to provide legal advice to the President of the United States and other White House officials.

Now if Judge Gonzales is confirmed, it will become his responsibility to become the Nation's principal law enforcement official and help see that each American receives equal justice under the law.

But it is inappropriate and unfair to blame Judge Gonzales for legal advice given by somebody else in the Department of Justice years before he was even nominated to work in the White House.

For example, some opponents of Judge Gonzales have gone on at length about the so-called Bybee memo. Before I get into the specifics of this memo, let me bring you back to the months following September 11, 2001. All of us here remember exactly where we were when the planes crashed into the World Trade Center towers and the Pentagon and in Pennsylvania that morning. None of us will forget the feelings of vulnerability we all felt in the days, weeks and months following the attack.

President Bush has rightly made preventing another terrorist attack on U.S. soil his No. 1 priority. I know that my fellow citizens in Utah share the President's priorities when it comes to fighting terrorism. In fact, the first major international event that took place after 9/11 was held in Salt Lake City when my community hosted the winter Olympic games.

Here in the Senate, a mere month after the attack, we were terrorized by a letter sent to Senator Daschle's office containing anthrax. The distinguished ranking member of the Judiciary Committee was mistreated and threatened. Staffers, workmen, and visitors stood in line all day to be screened for anthrax, and hundreds of individuals took strong antibiotics as a preventative measure. I recall that time period where every day you would wake up wondering whether something terrible was going to happen that day.

The Bush administration, too, was facing difficult questions. We all thought that another terrorist attack could come at any moment, and it would be incredibly difficult to predict when or where such an attack would occur because our enemy acted in a clandestine manner. They dressed as civilians, not as soldiers. They did not attack our military but tens of thousands of innocent civilians, urban centers, and government buildings. These

individuals did not come from one specific country. They were a fanatic, ideological enemy with international reach. They could be anywhere. And they had the money to finance their terrorist activities.

It was during these early months that the administration explored what its options were and how they should act in confronting this unique enemy, one that fought not in uniforms on battlefields, not for a particular nation but in blue jeans and American civies.

Some are claiming that the President relied on the Bybee memo in formulating his policy with respect to interrogation techniques at Abu Ghraib. Let's take a look at these documents. First, the so-called Bybee memorandum was not written by Judge Gonzales, in spite of the implications by some. It was written by Jay Bybee who, at that time, was the Assistant Attorney General of the Office of Legal Counsel at the Department of Justice, and is now a distinguished judge on the Circuit Court of Appeals for the Ninth Circuit. That is why some people call it the Bybee memo. They could not call it the Gonzales memo. It is not the Gonzales memo, has never been the Gonzales memo.

The memo is dated August 1, 2002. Remember that date. The memo addresses the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. It does not analyze the Geneva Convention. Let me just mention that this is a scholarly piece of analysis. Regardless of whether you agree or disagree with its legal conclusion, there can be little doubt that this 50-page, single-spaced document with 26 footnotes is a thoughtful and thorough analysis.

Let me also say that this memo does not tell the President to use torture in Iraq. Rather it tries to define what torture is from a purely legal perspective.

Let's compare the Bybee memo with the President's actual memorandum on the treatment of detainees. The subject of this memo is the humane treatment of al-Qaida and Taliban detainees. The President's memo was written on February 7, 2002. This is 6 months before the Bybee memorandum. So there is absolutely no way the President could have relied on the August 1, 2002, Bybee memo because it did not exist at the time he issued his definitive February 7 directive, the one that he and others followed.

Let me be clear: I am not saying the Justice Department never considered the Convention Against Torture prior to August 1, 2002. In fact, given the voluminous length of the analysis, it probably took some time to write. But to suggest this Bybee memo, which addresses a different statute, a statute that is nowhere mentioned in the President's memorandum, was indispensable in crafting the President's decision is simply false for the simple reason it did not exist at the time.

What some of my Democratic colleagues are trying to do is hold Judge Gonzales responsible for a memorandum he did not write and that came from the Justice Department which he did not direct.

The Bybee memo asks an important question: What is torture? This is a critical question to ask in the middle of a war on terror in which our enemies have made it clear that they will not observe the Geneva Conventions or any other rule of civilized conduct. Judge Gonzales received the Bybee memo, but some of my friends across the aisle are almost suggesting that he actually wrote it. He did not. He had nothing to do with it. In fact, they criticize him because they believe he did not object to the memo at the time he received it. But the fact is, we do not know what his private legal advice was to the President on the Bybee memo because that advice is privileged advice. And Presidents do not want their counsel divulging privileged advice.

In fact, we should think twice before we ever proceed down the path of attempting to require the White House Counsel to divulge to the Congress in an open hearing precisely what legal advice he gave to the President on an inherently sensitive matter such as those that directly relate to national security.

When all is said and done, Judge Gonzales did not supervise Jay Bybee. He did not supervise Attorney General Ashcroft. It was not his job as White House Counsel to approve of memos written by the Justice Department. And that memo of February 7 said the detainees should be treated humanely. That was the President's position.

I have a lot more I want to say about this, but I notice the distinguished Senator from New York is here and wanted to say a few words before we break for lunch. I will interrupt my remarks. I couldn't interrupt a few minutes earlier. I will come back to this subject.

I hope the Chair will allow the senior Senator from New York to have a few extra minutes. I would be happy to sit in the chair, if needed. But I will relinquish the floor and ask unanimous consent if I can finish my remarks after the luncheon; is that possible?

Immediately after the consent order.

Especially being interrupted and accommodating colleagues on the other side. I would like to finish.

Following Senator Mikulski?

I have a little bit more. It could be as long as a half hour.

Mr. President, I rise today to express my support for the Senate's confirmation of Dr. Samuel Bodman as our new Secretary of Energy.

I believe Dr. Bodman will bring considerable skill to the position of Secretary of Energy. Dr. Bodman's distinguished career speaks for itself. In the private sector, he excelled as a professor at MIT, president of an investment company, and chairman and CEO of a worldwide industrial company. In these positions, he gained a great deal of knowledge in financial markets and the impact energy and technology has on those markets. He further proved his capabilities in his service as Deputy Secretary of Commerce and Deputy Secretary of the Treasury. There is no question that Dr. Bodman is qualified to assume this important position.

As a Nation, we are far too dependent on foreign sources of energy and must work to increase our energy independence. While I support domestic oil production, I also believe that we must continue to develop alternative sources of energy in the United States. In my home State, Utah State University is working with the Department of Energy to that end. I was pleased that the Department of Energy recently awarded Utah State University a grant to further the university's studies into alternative energy research and development programs. Such programs are essential to ensure we can meet our Nation's future energy needs, and I admire the university for being at the forefront on this issue.

I have a great deal of respect for Dr. Bodman, and I look forward to working with him on the compelling energy issues facing our Nation. While there will certainly be challenges to overcome as we work to shape our energy policy and increase our energy independence, I am confident that Dr. Bodman will serve admirably in the position.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on February 1, 2005, at 9:30 a.m., in open session to receive testimony on death benefits and services available to survivors of military personnel and legislative proposals to enhance these benefits.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet on Tuesday, February 1, 2005, at 10 a.m., on pending Committee business.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, February 1, 2005 at 9 a.m., to hold a hearing on Iraq.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, February 1, 2005 at 2:30 p.m., to hold a Business Meeting.

Mr. President, today I rise in strong support of the nomination of R. James Nicholson to be Secretary of Veterans Affairs.

At the outset, I would like to thank Mr. Nicholson's predecessor, Anthony Principi, for his service to our Nation's veterans. John Furgess, the National Commander for the Veterans of Foreign Wars, said it best when he described Mr. Principi's service to our country. He said that Secretary Principi:

is a true veterans' advocate . . . [who] constantly

challenged his staff to improve their services to America's

25 million veterans, and his work to address the needs and

concerns of today's newest generation of veterans who are

fighting the War on Terrorism typifies his vision and

leadership. Secretary Principi wore his compassion and

commitment to veterans on his sleeve . . . We applaud him for

his service to our country and wish him and his family the

best of futures. He will be missed but not forgotten.

Let me turn now to express my admiration and appreciation for the President's choice in nominating Ambassador Nicholson to lead our Nation as it strives to support the veterans who have served so tirelessly on behalf of our country. I know Jim Nicholson to be an intelligent, articulate, and decent man. As a veteran of some distinction himself, he has an excellent appreciation for the issues the Department faces. And, as an accomplished executive, he is incredibly well-suited to lead this large and important agency. These are trying times for our Nation's veterans. As the Vietnam war era veterans begin to retire in greater numbers and our veterans from the war on terrorism return, our Nation must reaffirm its commitment to those who have placed everything on the line for the cause of freedom. I believe that Ambassador Nicholson is an excellent choice to lead our Nation's effort to maintain the sacred covenants between the Nation and its veterans.

A man from humble beginnings, Ambassador Nicholson rose to graduate from West Point and become an Army Ranger who served his country during the Vietnam war. During that conflict, he proved his courage in battle and earned the Bronze Star, the Meritorious Service Medal with Oak Leaf Cluster, the Vietnamese Cross for Gallantry, two air medals, and, of course, the Combat Infantry Badge. His service to his country did not end there. He went on to serve for 22 years as an Army Reservist, retiring with the rank

of colonel. Along the way he received a master's degree in public policy from Columbia University and a law degree from the University of Denver. In Denver, he established a reputation as a highly qualified attorney specializing in real estate, municipal finance and zoning law before becoming a highly successful residential real estate developer.

However, his call to service did not end with his years of military service, Ambassador Nicholson entered politics and was elected chairman of the Republican National Committee. His tenure secured him a reputation as a person of the highest ethics and his current position as Ambassador to the Holy See has been a success.

I feel quite confident that those same skills that made Ambassador Nicholson a successful businessman and ambassador will ensure that our veterans receive the support and care they deserve while maximizing the efficiency of this Department.

Therefore, Mr. President, I hope that I will be joined by my colleagues on both sides of the aisle and quickly confirm Ambassador Nicholson to this vital post.

Mr. President, as everybody around here knows, I strongly support the nomination of Governor Mike Leavitt for Secretary of Health and Human Services. I urge my colleagues to confirm Governor Leavitt so that he may start his work as quickly as possible.

I have known Governor Mike Leavitt for a long time, almost 30 years, and have worked very closely with him on many health issues, not just local and State health issues but national health issues as well. Governor Leavitt has a distinguished record. He is highly qualified for this job. He is bright, energetic, dedicated, and fair--all of the qualities necessary for this important position.

I say with all respect to those who have gone before him, I can think of no better candidate for Secretary of Health and Human Services or no better nominee than Mike Leavitt.

Having said that, I compliment his predecessor, Governor Tommy Thompson. To have two great Governors in a row running HHS is a credit to this administration and to the country at large. Governor Thompson has done a terrific job at HHS under very difficult circumstances. It is almost an unmanageable entity because it is so large and so important and covers so much of the wealth and costs of this Nation. Governor Thompson deserves a great deal of credit. He was a great Governor, but so was Mike Leavitt. Between the two of them, we will have a continuity that will be very beneficial to all of us.

Governor Leavitt has devoted much of his life to public service, first in Utah and more recently in Washington. He is a smart decisionmaker, a tireless worker, and a successful manager and executive. He is fair. He is knowledgeable about health care. He is a decent family man. The bottom line: He will get the job done.

As Governor of Utah, Governor Leavitt was a strong leader on issues familiar to this body: welfare reform, health care delivery, and, of course, Medicaid. During a difficult financial time for our State of Utah, Governor Leavitt was able to create a fiscally responsible budget and at the same time provide important services to lower income Utah citizens of all ages.

While Congress was working on the 1997 Child Health Insurance Program legislation, a bill that I was the prime sponsor of, I talked to Governor Leavitt frequently to get his perspective as a leader in the National Governors Association. At first he was not very enamored with the Hatch-Kennedy bill. On the other hand, I told him the final bill was not going to be exactly that bill, which was written a little more moderately than I thought it should be. I also wanted the States to have more authority and power with the CHIP program, which was more in sync with Governor Leavitt's thinking. During that time he provided me with valuable insight and has continued to do so as the program has grown.

I would be remiss if I did not also cite Governor Leavitt's great work in providing health care coverage to not only CHIP-eligible children but to lower income adults of our State as well through innovative new State health care insurance programs like the Primary Care Network.

In addition, Governor Leavitt implemented several new and innovative approaches to serving the poor. Governor Leavitt's administration was one of the first to implement a philosophy of universal engagement wherein every candidate to receive State assistance was assessed and a plan to help these individuals become self-sufficient was created. This proved to be an enormously valuable tool to helping the disadvantaged get the assistance they needed to return to the job market as soon as possible.

As in many aspects of his life as a public servant, Mike Leavitt is a visionary who cares deeply about people, exactly the type of a person we want in this position.

Finally, Governor Leavitt has been a strong supporter of the Utah Head Start Program. For many children, the Head Start Program is their first and only exposure to education and health services. There are many examples of how the Utah Head Start Program has made a dramatic difference. Let me cite a couple for my colleagues. One little girl from Utah was handed a book on her first day in the program and literally did not know how to open the book. Another child was diagnosed with a brain tumor through the Utah Head Start screening process. Surgery was successfully performed, and he returned to the program and did extremely well. Governor Leavitt has had firsthand experience at overseeing this program and therefore brings an important perspective to HHS on why Head Start needs to be continued and even strengthened.

On a personal note, I emphasize to my colleagues that Mike Leavitt is a fair man. I know him very well. He will look at all sides of an issue before making a policy decision, and my colleagues can count on the result to be the right decision. His record as both the Governor of Utah and as Administrator of EPA proves this, and he will continue to be a great leader when he becomes Secretary of HHS. I can promise my colleagues he will be an excellent leader for the programs we all support--Medicare, Medicaid, CHIP, welfare and community health centers, just to make a few.

Importantly, we can count on Mike Leavitt, along with the Administrator for Medicare and Medicaid Services, Mark McClellan, to work closely with our committee on the difficult task of fully implementing the Medicare prescription drug program next January. I might add that the jurisdiction of a Secretary of Health and Human Services is quite broad, it not only includes CMS, which handles Medicaid and Medicare among other programs, but it also includes the Food and Drug Administration and many other different programs within that department.

In my opinion, the FDA is the single most important consumer agency in the world. The FDA handles upwards of 25 percent of all consumer products in America, and the agency does an extraordinary job. However, there is more and more pressure on FDA every year to try to have a fail-safe system where no deleterious results can occur from pharmaceutical innovations. There is no way that can ever be, but I believe that FDA does as good of a job as possible. In fact, my FDA Revitalization Act, authorized the creation of a central campus in the Washington, DC, area to house all FDA employees in this greater area who are now scattered over more than 30 different facilities, which can be very inconvenient and nonproductive. In December 2003, we dedicated the first building on the White Oak campus, which is where the full FDA campus will be built with state-of-the-art equipment and state-of-the- art facilities. Individuals who want to work in this area will be given an opportunity to work under the best of circumstances.

One of Governor Leavitt's responsibilities as Secretary will be to continue with this centralization, complete with a totally computerized and digital FDA campus, created so that we can be even more efficient at FDA. It is my hope that this centralized campus will shorten the length of time it takes to ensure the safety and efficacy of pharmaceutical drugs.

I will close with one anecdote related to me the other day. After attending several briefings with the Secretary designate, an FDA official stated: At our first briefing, Governor Leavitt was good. At the second meeting, he was excellent. At the last briefing, he was teaching us.

Now, that is the kind of a man Mike Leavitt is. He will be a great Secretary. With pride and admiration, I strongly support my fellow Utahan Governor Mike Leavitt's nomination for Secretary of Health and Human Services. Let us get him confirmed and on the job as soon as possible. I have no doubt that will occur. I am very grateful to those who are willing to support Governor Leavitt, and I suspect that everybody in this body will do so.

I yield the floor and I suggest the absence of a quorum.

Mr. President, I stand today to give my strong support for President Bush's choice to be our next Secretary of State, Dr. Condoleeza

Rice. I believe that Dr. Rice will be a superb diplomat to lead the State Department, while remaining one of the President's principal confidantes and advisers on the challenges to our national security that we will face in the difficult years before us. Indeed, not since President Nixon nominated his National Security Advisor, Dr. Henry Kissinger, to the same post, has an administration seen the same continuity in assigning a key foreign policy advisor to the more public role of principal diplomat.

I was pleased that Chairman Lugar and Ranking Minority Member Biden expeditiously moved Dr. Rice's nomination out of their committee last week. I am disappointed that we could not hold this vote last week. At a time when this Nation is at war, procedural delays on a position as important as the Secretary of State would appear to inhibit the conduct of our foreign policy and would have been of great concern to me and my constituents in Utah, where the sense of fair play is strong, but the duty to a Nation at war is even stronger.

Yes, I certainly recognize the prerogatives of the Senate for thorough and critical debate. I will listen carefully to the debate today and tomorrow and see if I hear anything that is worthy of delaying this important nomination so critical to the national security efforts of the administration. I will listen for arguments I have not heard before, on the Senate floor or the campaign trail, and I will be open to all the insights that come from arguments never made before, and relevant to this nomination. But I know that I represent the vast majority of all Utahns when I say that confirming a President's Secretary of State while we are at war, while the President is preparing an aggressive diplomacy that will begin with a trip to Europe to meet with key allies next month, is a matter the Senate should take expeditiously.

We are at war, in Iraq and around the world. Utah's sons and daughters are paying the price, nobly and selflessly sacrificing for their duty, and in too many cases, with their lives.

For those who wish to debate Iraq policy--and I am the first to recognize that spirited and substantive debate is essential for these grave matters--we have all the opportunities to do so before us, and we should avail ourselves of these opportunities. Many today may use the confirmation process of Dr. Rice to criticize or review Iraq policy. We should confirm Dr. Rice and then continue to debate this subject, as we have done so over the past years.

Because I wish a speedy confirmation for Dr. Rice, I will keep my comments about Iraq to a minimum. My statements of support for the President's policies and my arguments for that support are a matter of record. I will add to that record in the coming weeks, months and years.

For now, I will leave it to this observation. This Sunday the Iraqi people, amidst great insecurity but with even greater resolve, will go to vote to choose their National Assembly, one that will write a constitution and set the next elections. Depending on which polls you see, between 67 percent and 84 percent of the Iraqi people want this opportunity to vote this coming Sunday, despite the perils many face every day. To see the ideology they are so resoundingly rejecting, I direct my colleagues to the long statement by Abu al-Zarqawi released 4 days ago. It is a statement of extremist, Islamic fascism: In the most explicit manner possible, for 9 pages, it lists all the reasons why the Islamic fascists reject democracy, declaring ``fierce war on this malicious ideology'' democracy. That is what we are against. And that is what the majority of the Iraqi people utterly reject. And I believe that America's interest--once again--is to stand against the fascists who have declared war on democracy.

We are well aware of Dr. Rice's resume and experience. Her academic credentials are remarkable, and her professional experience extensive. She was a senior professional at the National Security Council under the first President Bush, where she worked on Soviet affairs and was directly involved in our policy of supporting a peaceful reunification of Germany at the end of the Cold War. I believe that the successful reunification of Germany was the most successful aspect of the first President Bush's foreign policy, often overlooked because of all of the tumult during those crucial years when Soviet communism collapsed. Dr. Rice's involvement in that policy at that crucial time in Europe's history demonstrates her experience at shepherding a critical transition between an authoritarian model and a democratic one. While one should not analogize between German reunification and Iraq's transition today, one can look at Dr. Rice's experience and understand why the current President Bush chose her first to be his National Security Adviser during her first term and now has the confidence to make her America's top diplomat.

In the last 4 years Dr. Rice has been at the center of this administration's foreign policy. That that policy was a target of legitimate criticism during the past presidential campaign, as well as during the last 2 days of hearings before the Senate Foreign Relations Committee, is to be expected. The candidates presented their distinctively different worldviews throughout last year's campaign, during a difficult war that rages still, and the public made its choice.

In the United States Senate, it is our responsibility to debate, honestly, candidly and critically, all aspects of our Nation's foreign policy. My only admonition to my colleagues is that this debate be constructive, that it illuminate rather calumniate, and that, when in disagreement, it provide alternatives. Yes, it is legitimate to review the rationales for war, the flaws in intelligence and the faults in rhetoric. I believe Republicans have been quite candid and forthright about doing so. The chairmen and chairwoman of the Senate Armed Services, Foreign Relations, Intelligence and Government Affairs and Homeland Security Committees have all had hearings, conducted investigations and released reports critical in various degrees of the conduct and implementation of various administration policies. That is as it should be, and, for most of us, and certainly for me, it does not detract from our support for the administration's foreign policy at a critical time in this Nation's history.

Partisan critics of this administration have perpetuated about its foreign policy a myth that has morphed into a meme: And that is that this administration has failed at diplomacy. This specious belief that diplomacy can neutralize the dangers and the threats to the international community is puzzling to me. It is a variant of a theme in American foreign policy, deriving from the Wilsonian belief that a League of Nations to which we submit our sovereign responsibilities can prevent conflict. I, and Dr. Rice, do not subscribe to this view, so overwhelmingly proved wanting into the historical laboratory that was the 20th century.

And yet this meme parroted so often by many in the Democratic party-- that this administration has not conducted a robust diplomacy--is false, simply false. No President more regularly addressed the General Assembly in the history of the United Nations than did the current President Bush. He spoke honestly and, to me, compellingly about that body's many trounced-upon resolutions. He cajoled and he listened and he waited, but at no time did this President suggest that the United Nations or any ally would be in a position to veto the actions we deemed necessary to protect our national security. No President would ever do so.

And while we failed to get Security Council support for our invasion of Iraq as President Clinton failed before he belatedly led the attack on Serbia over Kosovo--this President leads a global war on terrorism where most of the nations of the world are cooperating with us, in one form or another, through intelligence sharing, law enforcement cooperation, or any of a number of multilateral initiatives. Disagree with the President's foreign policy if you wish, criticize, if you must, but do not suggest that such a global effort can occur without sustained and successful diplomacy.

Credit for the diplomacy for the first term of this administration must go to those who formulated the policy, the President and Dr. Rice and the rest of the national security team, and to the man who led the State Department, Secretary Colin Powell. To this day, the standard for dignity and graciousness has been set by Secretary Powell,

who once again took the call from his country and served it with honor, diligence and character. Secretary Powell assembled a strong team at the Department, and he represented this Nation in a way that made every one of us proud. Dr. Rice knows that, as she assumes this important position, she follows a decent and serious diplomat and a dedicated servant. I have no doubt that she will meet the standard.

Dr. Rice will assume the responsibility of Secretary of State while we are at war, with global terrorism and with an insurgency in Iraq that every day puts in stark contrast the darkness of the past dictatorship against the light of a hopeful democracy. These next 2 years, I expect, will be some of the most difficult years in this Nation's foreign policy. We will continue to need the experience and wisdom of Dr. Rice as she serves this administration in a new role.

That role, as the Secretary of State, will have outstanding challenges. Dr. Rice will need to advance further cooperation of a multinational coalition in the war on terrorism; she will have to renew a push for more international support for a more effective political and economic reconstruction of Iraq; she will need to strengthen U.S. support for counterproliferation initiatives in Europe and Asia; and she will need to maintain U.S. leadership in the fight against poverty and disease. She can count on me for support as she assumes these huge and historic responsibilities.

In her testimony, Dr. Rice has conceded that our public diplomacy needs serious reconsideration. Many cite ongoing and growing dissatisfaction among international audiences regarding the United States. I would caution Dr. Rice against overemphasizing this reality as she redesigns our public diplomacy. The U.S. is a source of resentment and disparagement among many audiences throughout the world, but many of those audiences are contaminated by the propaganda of their own autocratic regimes. Today, more people still want to immigrate to this country than any other nation in the world, and more people take inspiration in the institutions that protect and promote our freedoms, be it our Constitution or our free press or our culture of openness. I have long been a strong supporter of public diplomacy. Today's challenges are not only to rebut the ever-growing sophistication of the biases and distortions that compete in global media, but to continue to find new ways to promote the American message and the American story. The days of United States Information Service libraries are over, but cultural exchange programs, in particular visitor programs to this country, must continue and, in my opinion, should grow. I will help Dr. Rice in any way that I can to reinvigorate our public diplomacy.

In the last few years, I believe the State Department has failed to grasp the value of culture of lawfulness programs. These programs use education ministries to advance core primary and secondary curricula on anticorruption lessons. It is impossible to advance the rule of law, which is a fundamental goal of bringing stability in regions we cannot afford to lose to anarchy or criminality, without the local population learning the value of clean government. We have seen success with such programs in Italy, Mexico, Colombia and other countries, and yet I have seen no enthusiasm from the State Department in making these programs an essential aspect of all our foreign assistance planning. Perhaps that is because these programs are so inexpensive, and there is still the bias against programs that don't require billions of taxpayer funds; perhaps the Department does not yet understand the potential for these programs, despite the clear affirmation of the Undersecretary of State for Global Affairs, who has spoken eloquently in favor of such programs. I am heartened by Dr. Rice's testimony before the Senate Foreign Relations Committee last week, she asserted that ``we are joining with developing nations to fight corruption, instill the rule of law, and create a culture of transparency.'' She has my support, and I am going to ask Dr. Rice to study the experience and potential of these culture of lawfulness programs and work with me and other Members of Congress to integrate them into our foreign assistance plans.

I will work with Dr. Rice in every way that I can to make her mission a success. Because the mission of the Department of State is to work to manage conflicts so that they do not erupt into violence and war. In a world where we can not control so many factors beyond our shores, we need the very best diplomacy to be constantly working our alliances, presenting our policies and engaging those who would challenge our security. Dr. Condoleeza Rice has 25 years of experience in advancing the national security of this nation. She has 4 years as the principal advisor to President Bush, as he has charted a foreign policy that has responded to global terror and taken on the most destabilizing regime in the Middle East. She has the knowledge and character and experience of one who can lead this country in our diplomacy around the world. Dr. Rice has my strong support.

Mr. President, I rise today to introduce with my colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a comprehensive bipartisan bill to increase gang prosecution and prevention efforts. The bill I introduce today is identical to S. 1735 that was favorably reported by the Senate Judiciary Committee in the 108th Congress.

This legislation, ``The Gang Prevention and Effective Deterrence Act of 2005,'' authorizes approximately $650 million over the next five years to support law enforcement and efforts to prevent youngsters from joining gangs. Of that, $450 million would be used to support Federal, State and local law enforcement efforts against violent gangs, and $200 million would be used for intervention and prevention programs for at- risk youth. The bill increases funding for the Federal prosecutors and Federal Bureau of Investigation (FBI) agents needed to conduct coordinated enforcement efforts against violent gangs.

This bill also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, enacts violent crime reforms needed to prosecute effectively gang members, and implements a limited reform of the juvenile justice system to facilitate Federal prosecution of 16- and 17-year-old gang members who commit serious violent felonies.

The problem of gang violence in America is not a new one, nor is it a problem that is limited to major urban areas. Once thought to be only a problem in our Nation's largest cities, gangs have invaded smaller communities. Gangs in Salt Lake County result in significant measure from the influence of gangs existing in Los Angeles and Chicago, but with local mutations.

Constituents frequently mention to me their extreme concern about gang violence in Utah. According to the Salt Lake Area Gang Project, a multi-jurisdictional task force created in 1989 to fight gang crime in the Salt Lake area, there are at least 250 identified gangs in Utah with over 3,500 members. In Utah, there are street gangs that are ethnically oriented, such as Hispanic gangs, as well as those affiliated with gangs from other cities, such as the Crips and Bloods, Folks and People, motorcycle gangs, Straight Edge gangs, Animal Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys, Salt Lake Posse, and the list goes on. Some of these gangs are racist; some are extremist.

And what I find particularly troubling is that over one-third of the total gang membership is made up of juveniles. Thus, these crimes have a particular impact on youths.

Gangs now resemble organized crime syndicates which readily engage in gun violence, illegal gun trafficking, illegal drug trafficking and other serious crimes. All too often we read in the headlines about gruesome and tragic stories of rival gang members gunned down, innocent bystanders--adults, teenagers and children--caught in the cross fire of gangland shootings, and family members crying out in grief as they lose loved ones to the gang wars plaguing our communities.

Recent studies confirm that gang violence is an increasing problem in all of our communities. Based on the latest available National Youth Gang Survey, it is now estimated that there are more than 25,000 gangs, and over 750,000 gang members who are active in more than 3,000 jurisdictions across the United States. The most current reports indicate that in 2002 alone, after five years of decline, gang membership has spiked nationwide.

I have been--and remain--committed to supporting Federal, State and local task forces as a model for effective gang enforcement strategies. Working together, these task forces have demonstrated that they can make a difference in the community. In Salt Lake City, the Metro Gang Multi-Jurisdiction Task Force stands out as a critical player in fighting gang violence in Salt Lake City. We need to reassure outstanding organizations like this that there will be adequate resources available to expand and fund these critical task force operations to fight gang violence.

In my study of this problem, it has become clear that the government needs to work with communities to meet this problem head-on and defeat it. If we really want to reduce gang violence, we must ensure that law enforcement has adequate resources and legal tools, and that our communities have the ability to implement proven intervention and prevention strategies, so that gang members who are removed from the community are not simply replaced by the next generation of new gang members.

In closing, I want to commend my colleagues--Senators Feinstein, Grassley, Kyl and Cornyn. They have worked very closely with me as we considered these issues last Congress and I look forward to working with them and others as we proceed this year. I urge my colleagues to join with us in promptly passing this important legislation.

Mr. President, I rise today to introduce the Family Entertainment and Copyright Act of 2005. This important legislation consists of a package of smaller intellectual property bills that the House and Senate have been working to enact since last Congress. This legislation passed the Senate not once, but twice, during the waning days of the last Congress. Unfortunately, though, it was doomed by a non-germane amendment unrelated to intellectual property law. My hope is that we can work together this Congress to avoid this type of pitfall, and I commit to work with other members to do so.

Before beginning my substantive discussion of the bill, I would like to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their ongoing efforts on this legislation. Just as it was last year, this legislation is a group effort, and I want to take care to recognize the contributions and their excellent work along with that of Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman Lamar Smith and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

Title I of this Act, the Artists' Rights and Theft Prevention Act of 2005, (the ART Act), contains a slightly modified version of S. 1932, authored by Senators Cornyn and Feinstein in the 108th Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet.

First, it criminalizes attempts to record movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several States have already taken steps to criminalize this activity, but providing a uniform Federal law--instead of a patchwork of State criminal statutes--will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures.

Second, the bill will create a pre-registration system that will permit criminal penalties and statutory-damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works

being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works.

Title II of this Act, the Family Movie Act of 2005 (the FMA), resolves some ongoing disputes about the legality of so-called ``jump- and-skip'' technologies that companies like Clearplay in my home State of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The FMA creates a narrowly defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. I have been working with my colleagues in the Senate and several leaders in the House-- including, most importantly Chairmen Smith and Sensenbrenner--for the past couple of years to resolve this issue. The FMA will help to end aggressive litigation threatening the viability of small companies like Clearplay which are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences.

The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called ``ad-skipping'' technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to ``ad- skipping''' cases, such as in the recent litigation involving ReplayTV.

In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent ``ad- skipping'' litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill.

That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture. . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption.

This bill also differs from the version passed by the House last year in that it adds two ``savings clauses.'' The copyright savings clause makes clear that there should be no spillover effect from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The trademark savings clause clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement.

Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films--often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations.

As a conservative Senator from a socially conservative state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically significant films are preserved for future generations. I commend my friend from Vermont for his perseverance in reauthorizing Federal funds to continue this important effort.

Title IV of this act, the ``Preservation of Orphan Works Act,'' also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House--Representative Howard Berman of California--for his efforts on this bill and am pleased to see it included in this Senate package.

Just to conclude, I will again thank Ranking Democratic Member Leahy, Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr. Conyers and Mr. Berman for their bicameral, bipartisan approach to these bills and to intellectual property issues generally.

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

I would be happy to yield for a question from the distinguished Senator from Texas.

I thank my friend, the Senator from Texas, for that reminder. I would certainly have no objection to entering our previous colloquy into the Record again and ask unanimous consent that it appear after our remarks.

Mr. President, Section 102 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Does the Senator from California agree with your colleague from Texas?

I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

It appears that there is no fair use exception to this provision. Is that correct?

Does the Senator from Texas agree?

I would be happy to yield for a question from the distinguished Senator from Texas.

My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply.

The limited scope of this exemption does not, however, imply or show that

such a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Certainly.

Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today.

The analysis follows.

Section-by-Section Analysis of the Family Movie Act of 2004, Amended

and Passed by the Senate

overview

Title II of the Family Entertainment and Copyright Act of

2004 incorporates the House-passed provision of the Family

Movie Act of 2004, with limited changes as reflected in this

section-by-section analysis. As discussed herein, these

changes are not intended to and do not affect the scope,

effect or application of the bill.

The purpose of the Family Movie Act is to empower private

individuals to use technology to skip and mute material that

they find objectionable in movies, without impacting

established doctrines of copyright or trademark law or those

whose business models depend upon advertising. This amendment

to the law should be narrowly construed to effect its

intended purpose only. The sponsors of the legislation have

been careful to tailor narrowly the legislation to clearly

allow specific, consumer-directed activity and not to open or

decide collateral issues or to affect any other potential

or actual disputes in the law.

The bill as proposed in the Senate makes clear that, under

certain conditions, ``making imperceptible'' of limited

portions of audio or video content of a motion picture--that

is, skipping and muting limited portions of movies without

adding any content--as well as the creation or provision of a

computer program or other technology that enables such making

imperceptible, does not violate existing copyright or

trademark laws. That is true whether the movie is on

prerecorded media, like a DVD, or is transmitted to the home,

as through pay-per-view and ``video-on-demand'' services.

Subsection (a): Short Title

Subsection (a) sets forth the short title of the bill as

the Family Movie Act of 2004.

Subsection (b): Exemption from Copyright and Trademark

Infringement for Skipping of Audio or Video Content of

Motion Pictures

Subsection (b) is the Family Movie Act core provision and

creates a new exemption at section 110(11) of the Copyright

Act for the ``making imperceptible'' of limited portions of

audio or video content of a motion picture during a

performance in a private household. This new exemption sets

forth a number of conditions to ensure that it achieves its

intended effect while remaining carefully circumscribed and

avoiding any unintended consequences. The conditions that

allow an exemption, which are discussed in more detail below,

consist of the following:

The making imperceptible must be ``by or at the direction

of a member of a private household.'' This legislation

contemplates that any altered performances of the motion

picture would be made either directly by the viewer or at the

direction of a viewer where the viewer is exercising

substantial choice over the types of content they choose to

skip or mute.

The making imperceptible must occur ``during a performance

in or transmitted to the household for private home

viewing.'' Thus, this provision does not exempt an

unauthorized ``public performance'' of an altered version.

The making imperceptible must be ``from an authorized copy

of a motion picture.'' Thus, skipping and muting from an

unauthorized or ``bootleg'' copy of a motion picture would

not be exempt.

No ``fixed copy'' of the altered version of the motion

picture may be created by the computer program or other

technology that makes imperceptible portions of the audio or

video content of the motion picture. This provision makes

clear that services or technologies that make a fixed copy of

the altered version are not afforded the benefit of this

exemption.

The ``making imperceptible'' of limited portions of a

motion picture does not include the addition of audio or

video content over or in place of other content, such as

placing a modified image of a person, a product, or an

advertisement in place of another, or adding content of any

kind.

These limitations, and other operative provisions of this

new section 110(11) exemption, merit further elaboration as

to their purposes and effects.

The bill makes clear that the ``making imperceptible'' of

limited portions of audio or video content of a motion

picture must be done by or at the direction of a member of a

private household. While this limitation does not require

that the individual member of the private household exercise

ultimate decision-making over each and every scene or element

of dialog in the motion picture that is to be made

imperceptible, it does require that the making imperceptible

be made at the direction of that individual in response to

the individualized preferences expressed by that individual.

The test of ``at the direction of an individual'' would be

satisfied when an individual selects preferences from among

options that are offered by the technology.

An example is the C1earPlay model. C1earPlay provides so-

called `` filter files'' that allow a viewer to express his

or her preferences in a number of different categories,

including language, violence, drug content, sexual content,

and several others. The version of the movie that the viewer

sees depends upon the preferences expressed by that viewer.

Such a model would fall under the liability limitation of the

Family Movie Act.

This limitation, however, would not allow a program

distributor, such as a provider of video-on-demand services,

a cable or satellite channel, or a broadcaster, to make

imperceptible limited portions of a movie in order to provide

an altered version of that movie to all of its customers,

which could violate a number of the copyright owner's

exclusive rights, or to make a determination of scenes to be

skipped or dialog to be muted and to offer to its viewers no

more of a choice than to view an original or an altered

version of that film. Some element of individualized

preferences and control must be present such that the viewer

exercises substantial choice over the types of content they

choose to skip or mute.

It is also important to emphasize that the new section

110(11) exemption is targeted narrowly and specifically at

the act of ``making imperceptible'' limited portions of audio

or video content of a motion picture during a performance

that occurs in, or that is transmitted to, a private

household for private home viewing. This section would not

exempt from liability an otherwise infringing performance, or

a transmission of a performance, during which limited

portions of audio or video content of the motion picture are

made imperceptible. In other words, where a performance in a

household or a transmission of a performance to a household

is done lawfully, the making imperceptible limited portions

of audio or video content of the motion picture during that

performance, consistent with the requirements of this new

section, will not result in infringement liability.

Similarly, an infringing performance in a household, or an

infringing transmission of a performance to a household, are

not rendered non-infringing by section 110(11) by virtue of

the fact that limited portions of audio or video content of

the motion picture being performed are made imperceptible

during such performance or transmission in a manner

consistent with that section.

The bill also provides additional guidance, if not an exact

definition, of what the term ``making imperceptible'' means.

The bill provides specifically that the term ``making

imperceptible'' does not include the addition of audio or

video content that is performed or displayed over or in place

of existing content in a motion picture. This is intended to

make clear in the text of the statute what has been expressed

throughout the consideration of this legislation, which is

that the Family Movie Act does not enable the addition of

content of any kind, including the making imperceptible of

audio or video content by replacing it or by superimposing

other content over it. In other words, for purposes of

section 110(11), ``making imperceptible'' refers solely to

skipping scenes and portions of scenes or muting audio

content from the original, commercially available version of

the motion picture. No other modifications of the content are

addressed or immunized by this legislation.

The House sponsor of this legislation noted in his

explanation of his bill, and the Senate is also aware, that

some copy protection technologies rely on matter placed into

the audio or video signal. The phrase ``limited portions of

audio or video content of a motion picture'' means what it

would naturally seem to mean (i.e., the actual content of

the motion picture) and does not refer to any component of

a copy protection scheme or technology. This provision

does not allow the skipping of technologies or other copy-

protection-related matter for the purpose of defeating

copy protection. Rather, it is expected that skipping and

muting of content

in the actual motion picture will be skipped or muted at

the direction of the viewer based on that viewer's desire

to avoid seeing or hearing the action or sound in the

motion picture. Skipping or muting done for the purpose of

or having the effect of avoiding copy protection

technologies would be an abuse of the safe harbor outlined

in this legislation and may violate section 1201 of title

17.

Violating the Digital Millennium Copyright Act, and

particularly its anti-circumvention provisions, is not

necessary to enable technology of the kind contemplated under

the Family Movie Act. Although the amendment to section 110

provides that it is not an infringement of copyright to

engage in the conduct that is the subject of the Family Movie

Act, the Act does not provide any exemption from the anti-

circumvention provisions of section 1201 of title 17, or from

any other provision of chapter 12 of title 17. It would not

be a defense to a claim of violation of section 1201 that the

circumvention is for the purpose of engaging in the conduct

covered by this new exemption in section 110(11), just as it

is not a defense under section 1201 that the circumvention is

for the purpose of engaging in any other non-infringing

conduct.

There are a number of companies currently providing the

type of products and services covered by this Act. The Family

Movie Act is intended to facilitate the offering of such

products and services, and it certainly creates no impediment

to the technology employed by those companies. Indeed, it is

important to underscore the fact that the support for such

technology and consumer offerings that is reflected in this

legislation is driven in some measure by the desire for

copyright law to be respected and to ensure that technology

is deployed in a way that supports the continued creation and

protection of entertainment and information products that

rely on copyright protection. This legislation reflects the

firm expectation that those rights and the interests of

viewers in their homes can work together in the context

defined in this bill. Any suggestion that support for the

exercise of viewer choice in modifying their viewing

experience of copyrighted works requires violation of either

the copyright in the work or of the copy protection schemes

that provide protection for such work should be rejected as

counter to legislative intent or technological necessity.

The House-passed bill included an explicit exclusion to the

new section 110(11) exemption in cases involving the making

imperceptible of commercial advertisements or network or

station promotional announcements. This provision was added

on the House floor to respond to concerns expressed by

Members during the House Judiciary Committee markup that the

bill might be read somehow to exempt from copyright

infringement liability devices that allow for skipping of

advertisements in the playback of recorded television (so

called ``ad-skipping'' devices). Such a reading is not

consistent with the language of the bill or its intent.

The phrase ``limited portions of audio or video content of

a motion picture'' applies only to the skipping and muting of

scenes or dialog that are part of the motion picture itself,

and not to the skipping of commercial advertisements, which

are themselves considered motions pictures under the

Copyright Act. It also should be noted that the phrase

``limited portions'' is intended to refer to portions that

are both quantitatively and qualitatively insubstantial in

relation to the work as a whole. Where any substantial part

of a complete work (including a commercial advertisement) is

made imperceptible, the section 110(11) exemption would not

apply.

The House-passed bill adopted a ``belt and suspenders''

approach to this question by adding exclusionary language in

the statute itself. Ultimately that provision raised concerns

in the Senate that such exclusionary language would result in

an inference that the bill somehow expresses an opinion, or

even decides, the unresolved legal questions underlying

recent litigation related to these so-called ``ad-skipping''

devices. In the meantime, the Copyright Office also made

clear that such exclusionary language is not necessary. In

other words, the exclusionary language created unnecessary

controversy without adding any needed clarity to the statute.

Thus, the Senate amendment omits the exclusionary language

while leaving the scope and application of the bill exactly

as it was when it passed the House. The legislation does not

provide a defense in cases involving so-called ``ad-

skipping'' devices, and it also does not affect the legal

issues underlying such litigation, one way or another.

Consistent with the intent of the legislation to fix a narrow

and specific copyright issue, this bill seeks very clearly to

avoid unnecessarily interfering with current business models,

especially with respect to advertising, promotional

announcements, and the like. Simply put, the bill as amended

in the Senate is narrowly targeted to the use of technologies

and services that filter out content in movies that a viewer

finds objectionable, and it in no way relates to or affects

the legality of so-called ``ad-skipping'' technologies.

There are a variety of services currently in litigation

that distribute actual copies of altered movies. This type of

activity is not covered by the section 110(11) exemption

created by the Family Movie Act. There is a basic distinction

between a viewer choosing to alter what is visible or audible

when viewing a film, the focus of this legislation, and a

separate entity choosing to create and distribute a single,

altered version to members of the public. The section 110(11)

exemption only applies to viewer directed changes to the

viewing experience, and not the making or distribution of

actual altered copies of the motion picture.

Related to this point, during consideration of this

legislation in the House there were conflicting expert

opinions on whether fixation is required to infringe the

derivative work right under the Copyright Act, as well as

whether evidence of Congressional intent in enacting the 1976

Copyright Act supports the notion that fixation should not be

a prerequisite for the preparation of an infringing

derivative work. This legislation should not be construed to

be predicated on or to take a position on whether fixation is

necessary to violate the derivative work right, or whether

the conduct that is immunized by this legislation would be

infringing in the absence of this legislation. Subsection (b)

also provides a savings clause to make clear that the newly-

created copyright exemption is not to be construed to have

any effect on rights, defenses, or limitations on rights

granted under title 17, other than those explicitly provided

for in the new section 110(11) exemption.

Subsection (c): Exemption from Trademark Infringement

Subsection (c) provides for a limited exemption from

trademark infringement for those engaged in the conduct

described in the new section 110(11) of the Copyright Act. In

short, this subsection makes clear that a person engaging in

the conduct described in section 110(11)--the ``making

imperceptible'' of portions of audio or video content of a

motion picture or the creation or provision of technology to

enable such making available--is not subject to trademark

infringement liability based on that conduct, provided that

person's conduct complies with the requirements of section

110(11). This section provides a similar exemption for a

manufacturer, licensee or licensor of technology that enables

such making imperceptible, but such manufacturer, licensee or

licensor is subject to the additional requirement that it

ensure that the technology provides a clear and conspicuous

notice at the beginning of each performance that the

performance of the motion picture is altered from the

performance intended by the director or the copyright holder.

Of course, nothing in this section would immunize someone

whose conduct, apart from the narrow conduct described by

110(11), rises to the level of a Lanham Act violation. For

example, someone who provides technology to enable the making

imperceptible limited portions of a motion picture consistent

with section 110(11) could not be held liable on account of

such conduct under the Trademark Act, but if in providing

such . . .

Mr. President, I rise today to introduce with my colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a comprehensive bipartisan bill to increase gang prosecution and prevention efforts. The bill I introduce today is identical to S. 1735 that was favorably reported by the Senate Judiciary Committee in the 108th Congress.

This legislation, ``The Gang Prevention and Effective Deterrence Act of 2005,'' authorizes approximately $650 million over the next five years to support law enforcement and efforts to prevent youngsters from joining gangs. Of that, $450 million would be used to support Federal, State and local law enforcement efforts against violent gangs, and $200 million would be used for intervention and prevention programs for at- risk youth. The bill increases funding for the Federal prosecutors and Federal Bureau of Investigation (FBI) agents needed to conduct coordinated enforcement efforts against violent gangs.

This bill also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, enacts violent crime reforms needed to prosecute effectively gang members, and implements a limited reform of the juvenile justice system to facilitate Federal prosecution of 16- and 17-year-old gang members who commit serious violent felonies.

The problem of gang violence in America is not a new one, nor is it a problem that is limited to major urban areas. Once thought to be only a problem in our Nation's largest cities, gangs have invaded smaller communities. Gangs in Salt Lake County result in significant measure from the influence of gangs existing in Los Angeles and Chicago, but with local mutations.

Constituents frequently mention to me their extreme concern about gang violence in Utah. According to the Salt Lake Area Gang Project, a multi-jurisdictional task force created in 1989 to fight gang crime in the Salt Lake area, there are at least 250 identified gangs in Utah with over 3,500 members. In Utah, there are street gangs that are ethnically oriented, such as Hispanic gangs, as well as those affiliated with gangs from other cities, such as the Crips and Bloods, Folks and People, motorcycle gangs, Straight Edge gangs, Animal Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys, Salt Lake Posse, and the list goes on. Some of these gangs are racist; some are extremist.

And what I find particularly troubling is that over one-third of the total gang membership is made up of juveniles. Thus, these crimes have a particular impact on youths.

Gangs now resemble organized crime syndicates which readily engage in gun violence, illegal gun trafficking, illegal drug trafficking and other serious crimes. All too often we read in the headlines about gruesome and tragic stories of rival gang members gunned down, innocent bystanders--adults, teenagers and children--caught in the cross fire of gangland shootings, and family members crying out in grief as they lose loved ones to the gang wars plaguing our communities.

Recent studies confirm that gang violence is an increasing problem in all of our communities. Based on the latest available National Youth Gang Survey, it is now estimated that there are more than 25,000 gangs, and over 750,000 gang members who are active in more than 3,000 jurisdictions across the United States. The most current reports indicate that in 2002 alone, after five years of decline, gang membership has spiked nationwide.

I have been--and remain--committed to supporting Federal, State and local task forces as a model for effective gang enforcement strategies. Working together, these task forces have demonstrated that they can make a difference in the community. In Salt Lake City, the Metro Gang Multi-Jurisdiction Task Force stands out as a critical player in fighting gang violence in Salt Lake City. We need to reassure outstanding organizations like this that there will be adequate resources available to expand and fund these critical task force operations to fight gang violence.

In my study of this problem, it has become clear that the government needs to work with communities to meet this problem head-on and defeat it. If we really want to reduce gang violence, we must ensure that law enforcement has adequate resources and legal tools, and that our communities have the ability to implement proven intervention and prevention strategies, so that gang members who are removed from the community are not simply replaced by the next generation of new gang members.

In closing, I want to commend my colleagues--Senators Feinstein, Grassley, Kyl and Cornyn. They have worked very closely with me as we considered these issues last Congress and I look forward to working with them and others as we proceed this year. I urge my colleagues to join with us in promptly passing this important legislation.

Mr. President, I rise today to introduce the Family Entertainment and Copyright Act of 2005. This important legislation consists of a package of smaller intellectual property bills that the House and Senate have been working to enact since last Congress. This legislation passed the Senate not once, but twice, during the waning days of the last Congress. Unfortunately, though, it was doomed by a non-germane amendment unrelated to intellectual property law. My hope is that we can work together this Congress to avoid this type of pitfall, and I commit to work with other members to do so.

Before beginning my substantive discussion of the bill, I would like to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their ongoing efforts on this legislation. Just as it was last year, this legislation is a group effort, and I want to take care to recognize the contributions and their excellent work along with that of Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman Lamar Smith and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

Title I of this Act, the Artists' Rights and Theft Prevention Act of 2005, (the ART Act), contains a slightly modified version of S. 1932, authored by Senators Cornyn and Feinstein in the 108th Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet.

First, it criminalizes attempts to record movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several States have already taken steps to criminalize this activity, but providing a uniform Federal law--instead of a patchwork of State criminal statutes--will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures.

Second, the bill will create a pre-registration system that will permit criminal penalties and statutory-damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works

being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works.

Title II of this Act, the Family Movie Act of 2005 (the FMA), resolves some ongoing disputes about the legality of so-called ``jump- and-skip'' technologies that companies like Clearplay in my home State of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The FMA creates a narrowly defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. I have been working with my colleagues in the Senate and several leaders in the House-- including, most importantly Chairmen Smith and Sensenbrenner--for the past couple of years to resolve this issue. The FMA will help to end aggressive litigation threatening the viability of small companies like Clearplay which are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences.

The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called ``ad-skipping'' technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to ``ad- skipping''' cases, such as in the recent litigation involving ReplayTV.

In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent ``ad- skipping'' litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill.

That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture. . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption.

This bill also differs from the version passed by the House last year in that it adds two ``savings clauses.'' The copyright savings clause makes clear that there should be no spillover effect from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The trademark savings clause clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement.

Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films--often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations.

As a conservative Senator from a socially conservative state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically significant films are preserved for future generations. I commend my friend from Vermont for his perseverance in reauthorizing Federal funds to continue this important effort.

Title IV of this act, the ``Preservation of Orphan Works Act,'' also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House--Representative Howard Berman of California--for his efforts on this bill and am pleased to see it included in this Senate package.

Just to conclude, I will again thank Ranking Democratic Member Leahy, Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr. Conyers and Mr. Berman for their bicameral, bipartisan approach to these bills and to intellectual property issues generally.

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

I would be happy to yield for a question from the distinguished Senator from Texas.

I thank my friend, the Senator from Texas, for that reminder. I would certainly have no objection to entering our previous colloquy into the Record again and ask unanimous consent that it appear after our remarks.

Mr. President, Section 102 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Does the Senator from California agree with your colleague from Texas?

I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

It appears that there is no fair use exception to this provision. Is that correct?

Does the Senator from Texas agree?

I would be happy to yield for a question from the distinguished Senator from Texas.

My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply.

The limited scope of this exemption does not, however, imply or show that

such a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Certainly.

Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today.

The analysis follows.

Section-by-Section Analysis of the Family Movie Act of 2004, Amended

and Passed by the Senate

overview

Title II of the Family Entertainment and Copyright Act of

2004 incorporates the House-passed provision of the Family

Movie Act of 2004, with limited changes as reflected in this

section-by-section analysis. As discussed herein, these

changes are not intended to and do not affect the scope,

effect or application of the bill.

The purpose of the Family Movie Act is to empower private

individuals to use technology to skip and mute material that

they find objectionable in movies, without impacting

established doctrines of copyright or trademark law or those

whose business models depend upon advertising. This amendment

to the law should be narrowly construed to effect its

intended purpose only. The sponsors of the legislation have

been careful to tailor narrowly the legislation to clearly

allow specific, consumer-directed activity and not to open or

decide collateral issues or to affect any other potential

or actual disputes in the law.

The bill as proposed in the Senate makes clear that, under

certain conditions, ``making imperceptible'' of limited

portions of audio or video content of a motion picture--that

is, skipping and muting limited portions of movies without

adding any content--as well as the creation or provision of a

computer program or other technology that enables such making

imperceptible, does not violate existing copyright or

trademark laws. That is true whether the movie is on

prerecorded media, like a DVD, or is transmitted to the home,

as through pay-per-view and ``video-on-demand'' services.

Subsection (a): Short Title

Subsection (a) sets forth the short title of the bill as

the Family Movie Act of 2004.

Subsection (b): Exemption from Copyright and Trademark

Infringement for Skipping of Audio or Video Content of

Motion Pictures

Subsection (b) is the Family Movie Act core provision and

creates a new exemption at section 110(11) of the Copyright

Act for the ``making imperceptible'' of limited portions of

audio or video content of a motion picture during a

performance in a private household. This new exemption sets

forth a number of conditions to ensure that it achieves its

intended effect while remaining carefully circumscribed and

avoiding any unintended consequences. The conditions that

allow an exemption, which are discussed in more detail below,

consist of the following:

The making imperceptible must be ``by or at the direction

of a member of a private household.'' This legislation

contemplates that any altered performances of the motion

picture would be made either directly by the viewer or at the

direction of a viewer where the viewer is exercising

substantial choice over the types of content they choose to

skip or mute.

The making imperceptible must occur ``during a performance

in or transmitted to the household for private home

viewing.'' Thus, this provision does not exempt an

unauthorized ``public performance'' of an altered version.

The making imperceptible must be ``from an authorized copy

of a motion picture.'' Thus, skipping and muting from an

unauthorized or ``bootleg'' copy of a motion picture would

not be exempt.

No ``fixed copy'' of the altered version of the motion

picture may be created by the computer program or other

technology that makes imperceptible portions of the audio or

video content of the motion picture. This provision makes

clear that services or technologies that make a fixed copy of

the altered version are not afforded the benefit of this

exemption.

The ``making imperceptible'' of limited portions of a

motion picture does not include the addition of audio or

video content over or in place of other content, such as

placing a modified image of a person, a product, or an

advertisement in place of another, or adding content of any

kind.

These limitations, and other operative provisions of this

new section 110(11) exemption, merit further elaboration as

to their purposes and effects.

The bill makes clear that the ``making imperceptible'' of

limited portions of audio or video content of a motion

picture must be done by or at the direction of a member of a

private household. While this limitation does not require

that the individual member of the private household exercise

ultimate decision-making over each and every scene or element

of dialog in the motion picture that is to be made

imperceptible, it does require that the making imperceptible

be made at the direction of that individual in response to

the individualized preferences expressed by that individual.

The test of ``at the direction of an individual'' would be

satisfied when an individual selects preferences from among

options that are offered by the technology.

An example is the C1earPlay model. C1earPlay provides so-

called `` filter files'' that allow a viewer to express his

or her preferences in a number of different categories,

including language, violence, drug content, sexual content,

and several others. The version of the movie that the viewer

sees depends upon the preferences expressed by that viewer.

Such a model would fall under the liability limitation of the

Family Movie Act.

This limitation, however, would not allow a program

distributor, such as a provider of video-on-demand services,

a cable or satellite channel, or a broadcaster, to make

imperceptible limited portions of a movie in order to provide

an altered version of that movie to all of its customers,

which could violate a number of the copyright owner's

exclusive rights, or to make a determination of scenes to be

skipped or dialog to be muted and to offer to its viewers no

more of a choice than to view an original or an altered

version of that film. Some element of individualized

preferences and control must be present such that the viewer

exercises substantial choice over the types of content they

choose to skip or mute.

It is also important to emphasize that the new section

110(11) exemption is targeted narrowly and specifically at

the act of ``making imperceptible'' limited portions of audio

or video content of a motion picture during a performance

that occurs in, or that is transmitted to, a private

household for private home viewing. This section would not

exempt from liability an otherwise infringing performance, or

a transmission of a performance, during which limited

portions of audio or video content of the motion picture are

made imperceptible. In other words, where a performance in a

household or a transmission of a performance to a household

is done lawfully, the making imperceptible limited portions

of audio or video content of the motion picture during that

performance, consistent with the requirements of this new

section, will not result in infringement liability.

Similarly, an infringing performance in a household, or an

infringing transmission of a performance to a household, are

not rendered non-infringing by section 110(11) by virtue of

the fact that limited portions of audio or video content of

the motion picture being performed are made imperceptible

during such performance or transmission in a manner

consistent with that section.

The bill also provides additional guidance, if not an exact

definition, of what the term ``making imperceptible'' means.

The bill provides specifically that the term ``making

imperceptible'' does not include the addition of audio or

video content that is performed or displayed over or in place

of existing content in a motion picture. This is intended to

make clear in the text of the statute what has been expressed

throughout the consideration of this legislation, which is

that the Family Movie Act does not enable the addition of

content of any kind, including the making imperceptible of

audio or video content by replacing it or by superimposing

other content over it. In other words, for purposes of

section 110(11), ``making imperceptible'' refers solely to

skipping scenes and portions of scenes or muting audio

content from the original, commercially available version of

the motion picture. No other modifications of the content are

addressed or immunized by this legislation.

The House sponsor of this legislation noted in his

explanation of his bill, and the Senate is also aware, that

some copy protection technologies rely on matter placed into

the audio or video signal. The phrase ``limited portions of

audio or video content of a motion picture'' means what it

would naturally seem to mean (i.e., the actual content of

the motion picture) and does not refer to any component of

a copy protection scheme or technology. This provision

does not allow the skipping of technologies or other copy-

protection-related matter for the purpose of defeating

copy protection. Rather, it is expected that skipping and

muting of content

in the actual motion picture will be skipped or muted at

the direction of the viewer based on that viewer's desire

to avoid seeing or hearing the action or sound in the

motion picture. Skipping or muting done for the purpose of

or having the effect of avoiding copy protection

technologies would be an abuse of the safe harbor outlined

in this legislation and may violate section 1201 of title

17.

Violating the Digital Millennium Copyright Act, and

particularly its anti-circumvention provisions, is not

necessary to enable technology of the kind contemplated under

the Family Movie Act. Although the amendment to section 110

provides that it is not an infringement of copyright to

engage in the conduct that is the subject of the Family Movie

Act, the Act does not provide any exemption from the anti-

circumvention provisions of section 1201 of title 17, or from

any other provision of chapter 12 of title 17. It would not

be a defense to a claim of violation of section 1201 that the

circumvention is for the purpose of engaging in the conduct

covered by this new exemption in section 110(11), just as it

is not a defense under section 1201 that the circumvention is

for the purpose of engaging in any other non-infringing

conduct.

There are a number of companies currently providing the

type of products and services covered by this Act. The Family

Movie Act is intended to facilitate the offering of such

products and services, and it certainly creates no impediment

to the technology employed by those companies. Indeed, it is

important to underscore the fact that the support for such

technology and consumer offerings that is reflected in this

legislation is driven in some measure by the desire for

copyright law to be respected and to ensure that technology

is deployed in a way that supports the continued creation and

protection of entertainment and information products that

rely on copyright protection. This legislation reflects the

firm expectation that those rights and the interests of

viewers in their homes can work together in the context

defined in this bill. Any suggestion that support for the

exercise of viewer choice in modifying their viewing

experience of copyrighted works requires violation of either

the copyright in the work or of the copy protection schemes

that provide protection for such work should be rejected as

counter to legislative intent or technological necessity.

The House-passed bill included an explicit exclusion to the

new section 110(11) exemption in cases involving the making

imperceptible of commercial advertisements or network or

station promotional announcements. This provision was added

on the House floor to respond to concerns expressed by

Members during the House Judiciary Committee markup that the

bill might be read somehow to exempt from copyright

infringement liability devices that allow for skipping of

advertisements in the playback of recorded television (so

called ``ad-skipping'' devices). Such a reading is not

consistent with the language of the bill or its intent.

The phrase ``limited portions of audio or video content of

a motion picture'' applies only to the skipping and muting of

scenes or dialog that are part of the motion picture itself,

and not to the skipping of commercial advertisements, which

are themselves considered motions pictures under the

Copyright Act. It also should be noted that the phrase

``limited portions'' is intended to refer to portions that

are both quantitatively and qualitatively insubstantial in

relation to the work as a whole. Where any substantial part

of a complete work (including a commercial advertisement) is

made imperceptible, the section 110(11) exemption would not

apply.

The House-passed bill adopted a ``belt and suspenders''

approach to this question by adding exclusionary language in

the statute itself. Ultimately that provision raised concerns

in the Senate that such exclusionary language would result in

an inference that the bill somehow expresses an opinion, or

even decides, the unresolved legal questions underlying

recent litigation related to these so-called ``ad-skipping''

devices. In the meantime, the Copyright Office also made

clear that such exclusionary language is not necessary. In

other words, the exclusionary language created unnecessary

controversy without adding any needed clarity to the statute.

Thus, the Senate amendment omits the exclusionary language

while leaving the scope and application of the bill exactly

as it was when it passed the House. The legislation does not

provide a defense in cases involving so-called ``ad-

skipping'' devices, and it also does not affect the legal

issues underlying such litigation, one way or another.

Consistent with the intent of the legislation to fix a narrow

and specific copyright issue, this bill seeks very clearly to

avoid unnecessarily interfering with current business models,

especially with respect to advertising, promotional

announcements, and the like. Simply put, the bill as amended

in the Senate is narrowly targeted to the use of technologies

and services that filter out content in movies that a viewer

finds objectionable, and it in no way relates to or affects

the legality of so-called ``ad-skipping'' technologies.

There are a variety of services currently in litigation

that distribute actual copies of altered movies. This type of

activity is not covered by the section 110(11) exemption

created by the Family Movie Act. There is a basic distinction

between a viewer choosing to alter what is visible or audible

when viewing a film, the focus of this legislation, and a

separate entity choosing to create and distribute a single,

altered version to members of the public. The section 110(11)

exemption only applies to viewer directed changes to the

viewing experience, and not the making or distribution of

actual altered copies of the motion picture.

Related to this point, during consideration of this

legislation in the House there were conflicting expert

opinions on whether fixation is required to infringe the

derivative work right under the Copyright Act, as well as

whether evidence of Congressional intent in enacting the 1976

Copyright Act supports the notion that fixation should not be

a prerequisite for the preparation of an infringing

derivative work. This legislation should not be construed to

be predicated on or to take a position on whether fixation is

necessary to violate the derivative work right, or whether

the conduct that is immunized by this legislation would be

infringing in the absence of this legislation. Subsection (b)

also provides a savings clause to make clear that the newly-

created copyright exemption is not to be construed to have

any effect on rights, defenses, or limitations on rights

granted under title 17, other than those explicitly provided

for in the new section 110(11) exemption.

Subsection (c): Exemption from Trademark Infringement

Subsection (c) provides for a limited exemption from

trademark infringement for those engaged in the conduct

described in the new section 110(11) of the Copyright Act. In

short, this subsection makes clear that a person engaging in

the conduct described in section 110(11)--the ``making

imperceptible'' of portions of audio or video content of a

motion picture or the creation or provision of technology to

enable such making available--is not subject to trademark

infringement liability based on that conduct, provided that

person's conduct complies with the requirements of section

110(11). This section provides a similar exemption for a

manufacturer, licensee or licensor of technology that enables

such making imperceptible, but such manufacturer, licensee or

licensor is subject to the additional requirement that it

ensure that the technology provides a clear and conspicuous

notice at the beginning of each performance that the

performance of the motion picture is altered from the

performance intended by the director or the copyright holder.

Of course, nothing in this section would immunize someone

whose conduct, apart from the narrow conduct described by

110(11), rises to the level of a Lanham Act violation. For

example, someone who provides technology to enable the making

imperceptible limited portions of a motion picture consistent

with section 110(11) could not be held liable on account of

such conduct under the Trademark Act, but if in providing

such . . .

Mr. President, I think I can do mine in 5 minutes, maybe less.

Mr. President, I have to say that Howard Liebengood was one of my dear friends and I think he was a dear friend to virtually everybody in the Senate on both sides of the aisle. What a good man.

What can I say about Howard Liebengood? That he was a loving, caring family man who placed his lovely wife, Deanna, and their wonderful children, Howie, John, and Ann, above all else? That he was the consummate Capitol insider, who managed to retain humility and kindness while rising to the pinnacle of Washington's power structure? That he was an accomplished lawyer, businessman, and military hero who never forgot his small-town roots in this often heartless big town? That he was a man of faith, whose church was a source of strength in the hardest of times?

I can say all of these things--and more.

I have been proud and humbled to call Howard Liebengood a friend. He was a trusted adviser to me and so many other Senators. He was my neighbor in Virginia, and we often drove to work together. When I had my Achilles' tendon rupture--completely severed my tendon--Howard and I rode together every day. Those were some of the most wonderful times I've had.

We shared some wonderful times; I always looked forward to his keen observations and his wry good wit and very strong intelligence.

I knew what many in this body knew about Howard, that we could always count on him to listen, and care, and act--not in his own self- interest, but for the greater good.

Howard was so successful in our world, yet he was never driven by money, fame or desire.

His many accomplishments--the Bronze Star, his work in the Senate on the Watergate Committee, as our Sergeant at Arms, as Chief of Staff to two of our greatest Senators--tell volumes about Howard, but they do not reveal the inner peace and calm that made him such a wonderful, wonderful part of this institution, a tribute to all that is good in public service.

What more can you ask in a man?

Nothing.

Howard did it all.

Howard had it all.

His loss is so great. Our loss is so great. This body will mourn his loss for so many years to come.

I know all here today join in sending both our deepest sympathies to the Liebengood family, and our profound admiration for Howard S. Liebengood--husband, father and trusted public servant. I knew him personally very well. He was kind. He was considerate. He was helpful. He was always down the middle. He was someone to rely on.

Let us celebrate his life today and all that was so good in this man, even as we mourn Howard S. Liebengood's tragic passing at too early a time.

Mr. President, I rise to express my support for Mr. Carlos Gutierrez as our new Secretary of Commerce.

Considering the global nature of the marketplace, Carlos Gutierrez is an outstanding choice for Secretary of Commerce. Without a doubt, Mr. Gutierrez possesses the necessary skills to assume this important position. His skillful leadership has brought strong growth and success to one of the world's most notable companies. Because of his many years with the Kellogg Company, Mr. Gutierrez understands how to create jobs and foster greater opportunity for all Americans. I believe that Mr. Gutierrez will do an excellent job in creating conditions for economic growth and opportunity by promoting innovation, entrepreneurship, competitiveness, and stewardship.

Consumer demand, rising sales, and increased profits are creating confidence in the growing economy. For example, in my home State, the Utah Department of Workforce Services confirms that Utah added 32,200 new jobs in 12 months ending on October 31, 2004, and the Salt Lake City-Ogden metro area topped the list of U.S. cities in the growth rate of women-owned businesses. According to the Department of Labor, Utah ranks third in terms of the largest one-year percentage gains in non- farm employment. And, just recently, Forbes magazine named Headwaters, Inc., a Utah-based alternative energy technology company, as second of the top 200 best small companies in the United States. These are just a few of many indicators proving that President Bush's policies are succeeding in creating jobs and expanding the economy.

I look forward to working with Mr. Gutierrez, as he is undoubtedly qualified and prepared to take the helm of the Commerce Department. Of course, Mr. Gutierrez has many challenges ahead of him, but I am confident that he will serve our country with dedication and distinction.

Mr. President, I rise today to express my support for Ms. Margaret Spellings as our new Secretary of Education.

This is a key position at a key time. As I travel around the great State of

Utah, there is no single issue area of greater concern than education. I am proud of the way Utah has been educating the children of my State. Our schools and teachers are among some of the best anywhere. Although we spend less per student than many other States, we are getting a great bang for our buck.

As a strong supporter of education, I have been pleased to play an active role in every piece of education reform legislation that has come before the Congress in the past 28 years. I attended public schools, as did my children and now my grandchildren, and I have faith in our Nation's schools. I look forward to working closely with Ms. Spellings and the Department of Education, particularly as I return to the Senate Committee on Health, Education, Labor, and Pensions.

I have been impressed by the President's complete confidence in Ms. Spellings and her ability to serve our Nation and its most valuable asset, our children, as our top educator.

While Ms. Spellings' credentials and experience are very impressive, none is greater than her role as a mother and primary educator of her two daughters, Mary and Grace. Without a doubt, the home is the greatest classroom.

We are all aware of Ms. Spellings' background of service in Texas as chief education advisor to then-Governor George W. Bush. I have been pleased to work with Ms. Spellings during the past four years in her capacity as the Assistant to the President for Domestic Policy. Since the announcement of her nomination by President Bush, I have received numerous letters in support of Ms. Spellings by various groups and individuals concerned about education issues.

Education is the hallmark of domestic issues. While I believe our Nation's education system ranks among the finest in the world, we can still make improvements. Funding for schools is vital, and I have consistently supported federal funding to assist our Nation's teachers, schools, and students. I will continue to support programs to enrich and improve our school system.

Ms. Spellings has indicated her strong commitment to the No Child Left Behind Act, NCLB, signed into law by President Bush on January 8, 2002. I have been supportive of NCLB. Even those who don't agree with everything in NCLB agree that they are now focused on making sure every child is progressing, and they are using innovative approaches to tracking student achievement and motivating them to meet the new standards.

For example, an inner-city school in Utah with a large number of students in low-income, non-English-speaking families is using funds from NCLB to purchase a student tracking database that shows how each child is doing in each subject with every teacher. They know who needs the extra help and in what areas. They are enlisting the support of parents, teachers, and the community to make sure that these kids get the help they need. And they are having great results. Test scores are up. Honor roll is up. Parents are more satisfied. Students are taking pride in their education. And, that's what NCLB is all about.

Of course, this does not mean the law is perfect. We need to fund it better, and too many schools do not make Annual Yearly Progress or AYP because they just do not understand what is required, or misinterpreted the law. I think it is going to take some time to adjust. We need to continue to do what is working in NCLB and look at what is not.

Utah has been in the forefront of the debate and was one of the first States to make moves toward possibly opting out of No Child Left Behind, due in part to concerns about retaining State control and objections to federal mandates without sufficient funding.

Make no mistake, I am a strong advocate for local control of education and want to make sure that there is sufficient flexibility for our States. I trust that the Department of Education will keep open lines of communication with the States and localities as we work together to ensure that truly no child is left behind.

I was particularly pleased that during her hearing before the Senate HELP Committee, Ms. Spellings accepted my invitation to personally visit Utah to meet with legislators and educators there. We look forward to her visit.

With her confirmation, Ms. Spellings will replace Secretary Roderick Paige. I would like to take a moment to note outgoing Secretary Roderick Paige's service. During his tenure, he led the implementation of major education reforms. He showed great commitment to providing our children a quality education, notwithstanding their circumstances, thereby honoring the pledge to leave no child behind. While so doing, Secretary Paige demonstrated willingness to consider certain adjustments in an effort to align the implementation of the No Child Left Behind Act with the intent of the law. We thank him for his service.

Without a doubt, Ms. Spellings has many challenges ahead, but I am confident that she will serve our country with dedication and distinction.

I yield the floor.