Floor Statements

Mr. President, today I join with Senator Paul to introduce the Justice Safety Valve Act of 2013, which will start to take on the problem of the ever-increasing Federal prison population and spiraling costs that spend more and more of our justice budget on keeping people in prison, thereby reducing opportunities to do more to keep our communities safe. This bill will combat injustice in Federal sentencing and the waste of taxpayer dollars by allowing judges appropriate discretion in sentencing.

As a former prosecutor, I understand that criminals must be held accountable and that long sentences are sometimes necessary to keep violent criminals off the street and deter those who would commit violent crime. I have come to believe, however, that mandatory minimum sentences do more harm than good. As Justice Kennedy said, ``In too many cases, mandatory minimum sentences are unwise and unjust.''

Currently a ``safety valve'' provision allows low-level drug offenders to avoid mandatory minimum penalties if certain conditions are met. The bill we introduce today would extend that safety valve to all Federal crimes subject to mandatory minimum penalties, allowing a judge to impose a sentence other than a statutorily designated mandatory sentence in cases in which key factors are present. The judge would be required to provide notice to the parties and to state in writing the reasons justifying the alternative sentence.

The United States has a mass incarceration problem. Between 1970 and 2010, the number of people incarcerated grew by 700 percent. Although the United States has only 5 percent of the world's population, we incarcerate almost a quarter of its prisoners. At the end of 2011, 2.2 million people were in jail or prison in the United States. That means we incarcerate roughly 1 in every 100 adults.

As of last week, the Federal prison population was over 217,000. Almost half of those men and women are imprisoned on drug charges. Compare this with 1980, when the Federal prison population was just 25,000. Since 2000 alone, the Federal prison population has increased by 55 percent.

As more and more people are incarcerated for longer and longer, the resulting costs have placed an enormous strain on the Justice Department's budget and have at the same time severely limited the ability to enact policies that prevent crimes effectively and efficiently. At a time when our economy has been struggling to recover from the worst recession in the last 75 years and our budget is limited, we must look at the wasteful spending that occurs with overincarceration.

At the federal level, over the last 5 years, our prison budget has grown by nearly $2 billion. In 2007, we spent approximately $5.1 billion on Federal prisons. Last year, the Federal Bureau of Prisons requested more than $6.8 billion. That means less money for Federal law enforcement, less aid to State and local law enforcement, and less funding for crime prevention programs and prisoner reentry programs. In short, we have less to spend on the kinds of programs that evidence has shown work best to keep crime rates down. Building more prisons and locking people up for longer and longer--especially nonviolent offenders--is not the best use of taxpayer money and is, in fact, an ineffective means of keeping our communities safe.

The proliferation of Federal mandatory minimum sentences is not the only factor driving the increase in incarceration rates, but it is an important factor. The number of mandatory minimum penalties in the Federal code nearly doubled from 1991 to 2011. Even those defendants not subject to mandatory minimums have seen their penalties increase as a result of mandatory penalties being incorporated into the U.S. sentencing guidelines.

In addition to driving up our prison population, mandatory minimum penalties can lead to terribly unjust results in individual cases. This is why a large majority of judges oppose mandatory minimum sentences. In a 2010 survey by the U.S. Sentencing Commission of more than 600 Federal district court judges, nearly 70 percent agreed that the existing safety valve provision should be extended to all Federal offenses. That is what our bill does.

Judges, who hand down sentences and can see close up when they are appropriate and just, overwhelmingly oppose mandatory minimum sentences.

Congress has too often moved in the wrong direction by imposing new mandatory minimum sentences unsupported by evidence while failing to reauthorize crucial programs like the Second Chance Act to rehabilitate prisoners who will be released to rejoin our communities. Our reliance on mandatory minimums has been a great mistake. I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly nonviolent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them. A one- size-fits-all approach to sentencing does not make us safer.

This is a bipartisan issue. Sentencing reform works. States, including very conservative States such as Texas, that have implemented sentencing reform have saved money and seen their crime rates drop.

I thank Senator Paul for his dedication to this cause and for working with me on this legislation. I hope other Senators will join us in advancing this legislation and ensuring that taxpayer dollars are used more efficiently to better prevent crime rather than simply building more prisons.

Mr. President, today I join with Senator Paul to introduce the Justice Safety Valve Act of 2013, which will start to take on the problem of the ever-increasing Federal prison population and spiraling costs that spend more and more of our justice budget on keeping people in prison, thereby reducing opportunities to do more to keep our communities safe. This bill will combat injustice in Federal sentencing and the waste of taxpayer dollars by allowing judges appropriate discretion in sentencing.

As a former prosecutor, I understand that criminals must be held accountable and that long sentences are sometimes necessary to keep violent criminals off the street and deter those who would commit violent crime. I have come to believe, however, that mandatory minimum sentences do more harm than good. As Justice Kennedy said, ``In too many cases, mandatory minimum sentences are unwise and unjust.''

Currently a ``safety valve'' provision allows low-level drug offenders to avoid mandatory minimum penalties if certain conditions are met. The bill we introduce today would extend that safety valve to all Federal crimes subject to mandatory minimum penalties, allowing a judge to impose a sentence other than a statutorily designated mandatory sentence in cases in which key factors are present. The judge would be required to provide notice to the parties and to state in writing the reasons justifying the alternative sentence.

The United States has a mass incarceration problem. Between 1970 and 2010, the number of people incarcerated grew by 700 percent. Although the United States has only 5 percent of the world's population, we incarcerate almost a quarter of its prisoners. At the end of 2011, 2.2 million people were in jail or prison in the United States. That means we incarcerate roughly 1 in every 100 adults.

As of last week, the Federal prison population was over 217,000. Almost half of those men and women are imprisoned on drug charges. Compare this with 1980, when the Federal prison population was just 25,000. Since 2000 alone, the Federal prison population has increased by 55 percent.

As more and more people are incarcerated for longer and longer, the resulting costs have placed an enormous strain on the Justice Department's budget and have at the same time severely limited the ability to enact policies that prevent crimes effectively and efficiently. At a time when our economy has been struggling to recover from the worst recession in the last 75 years and our budget is limited, we must look at the wasteful spending that occurs with overincarceration.

At the federal level, over the last 5 years, our prison budget has grown by nearly $2 billion. In 2007, we spent approximately $5.1 billion on Federal prisons. Last year, the Federal Bureau of Prisons requested more than $6.8 billion. That means less money for Federal law enforcement, less aid to State and local law enforcement, and less funding for crime prevention programs and prisoner reentry programs. In short, we have less to spend on the kinds of programs that evidence has shown work best to keep crime rates down. Building more prisons and locking people up for longer and longer--especially nonviolent offenders--is not the best use of taxpayer money and is, in fact, an ineffective means of keeping our communities safe.

The proliferation of Federal mandatory minimum sentences is not the only factor driving the increase in incarceration rates, but it is an important factor. The number of mandatory minimum penalties in the Federal code nearly doubled from 1991 to 2011. Even those defendants not subject to mandatory minimums have seen their penalties increase as a result of mandatory penalties being incorporated into the U.S. sentencing guidelines.

In addition to driving up our prison population, mandatory minimum penalties can lead to terribly unjust results in individual cases. This is why a large majority of judges oppose mandatory minimum sentences. In a 2010 survey by the U.S. Sentencing Commission of more than 600 Federal district court judges, nearly 70 percent agreed that the existing safety valve provision should be extended to all Federal offenses. That is what our bill does.

Judges, who hand down sentences and can see close up when they are appropriate and just, overwhelmingly oppose mandatory minimum sentences.

Congress has too often moved in the wrong direction by imposing new mandatory minimum sentences unsupported by evidence while failing to reauthorize crucial programs like the Second Chance Act to rehabilitate prisoners who will be released to rejoin our communities. Our reliance on mandatory minimums has been a great mistake. I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly nonviolent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them. A one- size-fits-all approach to sentencing does not make us safer.

This is a bipartisan issue. Sentencing reform works. States, including very conservative States such as Texas, that have implemented sentencing reform have saved money and seen their crime rates drop.

I thank Senator Paul for his dedication to this cause and for working with me on this legislation. I hope other Senators will join us in advancing this legislation and ensuring that taxpayer dollars are used more efficiently to better prevent crime rather than simply building more prisons.

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

Mr. President, what is the parliamentary situation?

Thank you.

Mr. President, I couldn't help but think, watching the debate, that it has been more than 2 weeks since we had an all-too-familiar stalemate in Congress that prevented the passage of commonsense legislation. As a result, it triggered the across-the-board budget cuts better known as sequestration.

When these automatic budget cuts first became a possibility, everybody said that no Congress would be irresponsible enough to allow them to go into place. Well, in the weeks leading up to sequestration, we heard almost daily from Federal agencies, defense contractors, and Members from both sides of the aisle about how harmful these cuts would be.

Notwithstanding the talk about how ridiculous it is to let them go forward, the deadline for sequestration has come and gone. Now the focus appears not to be upon the wide swath of harm that is beginning to descend on communities across the Nation but instead on the closure of White House tours and whether we are going to have the Easter egg roll. Come on.

I hope the American public and I hope the press and everybody else will focus on how serious these cuts are. In fact, to simply accept and avoid fixing these indiscriminate and harmful cuts is irresponsible. They are slowly being implemented, and they have already begun to affect our States and communities.

I was up in Vermont this weekend for 3 days, and I was all over the State. Everywhere I went--just as I do every day--I heard from Vermonters about the consequences for their jobs, for their children, for their communities.

I have heard from Vermont families who have begun to plan for the furloughs that will hit their family budgets; through no fault of theirs--these are hard-working, honest Vermonters--but because Congress has failed to act.

I have heard from community organizations about the difficult decisions they will have to make in the weeks ahead. It should alarm everyone that reductions are expected, for example, in the number of children being served by Head Start.

I have heard from young scientists at the University of Vermont who have already been denied research grants because of sequestration.

Vermonters facing already high rents are facing a 7-year wait for section 8 housing assistance. Until the sequester is resolved, housing authorities in Vermont will not be granting any new rental vouchers, and hundreds of Vermonters are going to lose this vital lifeline.

To put it in reality, at my home in Vermont, overnight we had 8 or 9 inches of snow. During the next 24 hours, we had another 8 or 9 inches. Once it got past 15 inches, we actually had schools close. This is very unusual. But think of the people who do not have housing, what that is doing to them. It is an unfortunate, needless reality.

I have heard about the impact sequestration is having on our military families in Vermont, as some members

of the National Guard prepare for furloughs. These are Guard members who have been called up and are willing to serve in Iraq and Afghanistan, putting their lives on the line for America, but now they prepare for furloughs and reductions in staff who provide services to their families. Then we have the elimination of the Army tuition assistance program that serves veterans--a promise we made to our men and women in uniform when they were willing to stand up and go into combat for America.

These are the impacts felt in the small State of Vermont so far. We haven't yet seen the consequences for Vermont schools and how sequestration will affect students and teachers. We haven't yet felt the true impact on funding for the grants that support our law enforcement people, our job search assistance, the Meals on Wheels programs, or those programs that provide lifesaving vaccines.

Members have filed amendments to the spending bill we are currently debating to attempt to insulate and protect programs that impact their States most, but they want to do it at the cost of other States. We need to stop looking at how we can save just a single program and get back to the table and negotiate a sensible, balanced approach that addresses deficit reduction in a responsible way and not on the backs of the most vulnerable Americans. We cannot simply cut our way out of this deficit.

We created the situation partly by putting two wars on the Nation's credit card. This morning it was estimated that the war in Iraq is going to cost $2 trillion. It is the first war in our Nation's history where we went to war and said: We don't have to pay for it. We will just borrow the money.

Vietnam and Korea were very unpopular wars. Yet we still passed the taxes to pay for them. In Iraq--although it is going to be over in a matter of weeks and we don't have to pay for it 10 years later-- thousands of Americans were killed and wounded, to say nothing about our allies and tens of thousands--hundreds of thousands of Iraqis, and we are stuck with a $2 trillion bill and growing, all on borrowed money.

The only people who pay the price in that war for America are the brave men and women who serve there and their families. They pay a huge price. We don't have a draft, so most families didn't get touched by it. Certainly a lot of people have made a lot of money on that war. They didn't pay a price. And the people, including people who were in the administration at the time who lied to the Congress about what was there--weapons of mass destruction, a connection with 9/11, things they knew were untrue--they simply lied about it, and we ended up having that war. There is $2 trillion.

Do not tell me now--the same people who voted for that war--do not stand here and tell me how we have to take the money out of medical research in America to pay for it, how we have to take the money out of educating our children to pay for it, how we have to take the money out of seniors who need help to pay for it, how we have to take the money out of repairing our bridges and roads in America to pay for it.

My answer to them is you voted for that; you should be willing to pay for it.

We have already reduced the debt by $2.5 trillion, with the vast majority of those savings coming from spending cuts. The American people want and expect us to take a balanced approach. They know it is not wise to protect endless corporate loopholes and tax breaks for the wealthiest Americans instead of investing in our schools, our factories, our roads, and our workers.

I think of the billions of dollars we spend on roads and bridges, for example, in Iraq and Afghanistan. As one Vermonter said: Yes, we spend billions to build roads and bridges in Iraq and Afghanistan, and then they blow them up. Build them here in the United States--in Vermont or West Virginia or Oklahoma. We Americans will take good care of them.

There is a simple bottom line: Putting our fiscal house in order, which we should do, has to go hand in hand with targeted, commonsense steps to promote economic growth, create jobs, and strengthen the middle class--all things President Obama and Democrats in both Houses of Congress are eager to do. But we need some cooperation from the other side of the aisle. We need cooperation. Putting on mindless autopilot the crucial decisions about what should be our budget and growth priorities is a terrible and dishonest way to treat the American people. It is a recipe for economic dysfunction. It threatens tangible harm to millions of families and for communities across the Nation.

Difficult decisions are in front of us. Every single Member of the Senate should go back and read their campaign promise of: Oh, of course, I will face up to difficult questions. Really? We are stalled here. People want to filibuster rather than face difficult questions, but we have to face them. We cannot punt them. We in Congress need to put aside talking points and turn to the task of replacing these harmful autopilot cuts with sensible and balanced budget decisions. Instead of slogans, let's have some substance. The American people expect more from Congress, and they certainly deserve a lot more from Congress.

I suggest the absence of a quorum.

Mr. President, today I am pleased to introduce the Electronic Communications Privacy Act Amendments Act of 2013--a bill to strengthen the privacy protections for email and other electronic communications. Last year, the Judiciary Committee favorably reported substantially similar legislation with strong bipartisan support. I thank Republican Senator Mike Lee for cosponsoring this important privacy bill. Senator Lee and I understand that protecting Americans' privacy rights is something that is important to all Americans, regardless of political party or ideology. I hope that all Senators will support this bill and that

the Senate will pass this privacy legislation this year.

Like many Americans, I am concerned about growing and unwelcome intrusions into our private lives in cyberspace. I also understand that we must update our digital privacy laws to keep pace with these threats and the rapid advances in technology.

When I led the effort to write ECPA 27 years ago, email was a novelty. No one could have imagined the way the Internet and mobile technologies would transform how we communicate and exchange information today. Three decades later, we must update this law to reflect the realities of our time, so that our Federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies.

My bill takes several important steps to improve Americans' digital privacy rights, while also promoting new technologies, like cloud computing, and accommodating the legitimate needs of law enforcement. First, the bill requires that the government obtain a search warrant based on probable cause to obtain the content of Americans' email and other electronic communications, when those communications are requested from a third-party service provider. There are balanced exceptions to the warrant requirement to address emergency circumstances and to protect national security under current law.

Second, the bill requires that the government promptly notify any individual whose email content has been accessed via a third-party service provider, and provide that individual with a copy of the search warrant and other details about the information obtained. The bill permits the government to seek a court order temporarily delaying such notice in order to protect the integrity of ongoing government investigations. In addition, the bill permits the government to ask a court to temporarily preclude a service provider from notifying a customer about the disclosure.

The bill contains several important provisions to ensure that the reforms to ECPA do not hinder law enforcement. The bill adds a new notice requirement to the law that requires service providers to notify the government of their intent to inform a customer about a disclosure of electronic communications information at least three business days before giving such notice. Furthermore, to help law enforcement investigate and prosecute corporate wrongdoing, the bill adds civil discovery subpoenas to the existing tools that the government may use to obtain non-content information under ECPA.

In addition, the bill makes clear that the government may also continue to use administrative, civil discovery and grand jury subpoena to obtain corporate email and other electronic communications directly from a corporate entity, when those communications are contained on an internal email system. Lastly, the bill also provides that the search warrant requirement in the bill does not apply to other Federal criminal or national security laws, including Title III of the Omnibus Crime Control and Safe Streets Act of 1986, commonly known as the Wiretap Act, and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. Sec. 1801, et seq., commonly known as FISA.

Since I first put forward proposals to update ECPA in early 2011, I have worked to make sure that these updates carefully balance privacy interests, the needs of law enforcement and the interests of our thriving American tech sector. During the past 2 years, I have consulted with many stakeholders from the Federal, state and local law enforcement communities, including--the Department of Justice, the Federal Trade Commission, the Securities and Exchange Commission, the International Association of Chiefs of Police, the Federal Law Enforcement Officers Association, the Association of State Criminal Investigative Agencies, and the National Sheriffs Association. I have also consulted closely with many leaders in the privacy, civil liberties, civil rights and technology communities who support these reforms.

The 113th Congress has an important opportunity to address the digital privacy challenges that Americans face today. We should do so by enacting the commonsense privacy reforms contained in this bill.

When the Senate Judiciary Committee favorably reported the Electronic Communications Privacy Act on September 19, 1986, it did so with the unanimous support of all Democratic and Republican Senators. At the time, the Committee recognized that protecting Americans' privacy rights should not be a partisan issue.

In that bipartisan spirit, I am pleased to join with Senator Lee in urging the Congress to enact these important privacy reforms without delay. Senator Lee and I are joined in this effort by a broad coalition of more than 50 privacy, civil liberties, civil rights and tech industry leaders from across the political spectrum that have also endorsed the ECPA reform effort. I thank the Digital Due Process Coalition, the Digital 4th Coalition and the many other individuals and organizations that have advocated for ECPA reform for their support. I hope that all Members of the Senate will follow their example, so that we can enact this digital privacy bill with strong, bipartisan support.

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

Mr. President, today I am pleased to introduce the Electronic Communications Privacy Act Amendments Act of 2013--a bill to strengthen the privacy protections for email and other electronic communications. Last year, the Judiciary Committee favorably reported substantially similar legislation with strong bipartisan support. I thank Republican Senator Mike Lee for cosponsoring this important privacy bill. Senator Lee and I understand that protecting Americans' privacy rights is something that is important to all Americans, regardless of political party or ideology. I hope that all Senators will support this bill and that

the Senate will pass this privacy legislation this year.

Like many Americans, I am concerned about growing and unwelcome intrusions into our private lives in cyberspace. I also understand that we must update our digital privacy laws to keep pace with these threats and the rapid advances in technology.

When I led the effort to write ECPA 27 years ago, email was a novelty. No one could have imagined the way the Internet and mobile technologies would transform how we communicate and exchange information today. Three decades later, we must update this law to reflect the realities of our time, so that our Federal privacy laws keep pace with American innovation and the changing mission of our law enforcement agencies.

My bill takes several important steps to improve Americans' digital privacy rights, while also promoting new technologies, like cloud computing, and accommodating the legitimate needs of law enforcement. First, the bill requires that the government obtain a search warrant based on probable cause to obtain the content of Americans' email and other electronic communications, when those communications are requested from a third-party service provider. There are balanced exceptions to the warrant requirement to address emergency circumstances and to protect national security under current law.

Second, the bill requires that the government promptly notify any individual whose email content has been accessed via a third-party service provider, and provide that individual with a copy of the search warrant and other details about the information obtained. The bill permits the government to seek a court order temporarily delaying such notice in order to protect the integrity of ongoing government investigations. In addition, the bill permits the government to ask a court to temporarily preclude a service provider from notifying a customer about the disclosure.

The bill contains several important provisions to ensure that the reforms to ECPA do not hinder law enforcement. The bill adds a new notice requirement to the law that requires service providers to notify the government of their intent to inform a customer about a disclosure of electronic communications information at least three business days before giving such notice. Furthermore, to help law enforcement investigate and prosecute corporate wrongdoing, the bill adds civil discovery subpoenas to the existing tools that the government may use to obtain non-content information under ECPA.

In addition, the bill makes clear that the government may also continue to use administrative, civil discovery and grand jury subpoena to obtain corporate email and other electronic communications directly from a corporate entity, when those communications are contained on an internal email system. Lastly, the bill also provides that the search warrant requirement in the bill does not apply to other Federal criminal or national security laws, including Title III of the Omnibus Crime Control and Safe Streets Act of 1986, commonly known as the Wiretap Act, and the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. Sec. 1801, et seq., commonly known as FISA.

Since I first put forward proposals to update ECPA in early 2011, I have worked to make sure that these updates carefully balance privacy interests, the needs of law enforcement and the interests of our thriving American tech sector. During the past 2 years, I have consulted with many stakeholders from the Federal, state and local law enforcement communities, including--the Department of Justice, the Federal Trade Commission, the Securities and Exchange Commission, the International Association of Chiefs of Police, the Federal Law Enforcement Officers Association, the Association of State Criminal Investigative Agencies, and the National Sheriffs Association. I have also consulted closely with many leaders in the privacy, civil liberties, civil rights and technology communities who support these reforms.

The 113th Congress has an important opportunity to address the digital privacy challenges that Americans face today. We should do so by enacting the commonsense privacy reforms contained in this bill.

When the Senate Judiciary Committee favorably reported the Electronic Communications Privacy Act on September 19, 1986, it did so with the unanimous support of all Democratic and Republican Senators. At the time, the Committee recognized that protecting Americans' privacy rights should not be a partisan issue.

In that bipartisan spirit, I am pleased to join with Senator Lee in urging the Congress to enact these important privacy reforms without delay. Senator Lee and I are joined in this effort by a broad coalition of more than 50 privacy, civil liberties, civil rights and tech industry leaders from across the political spectrum that have also endorsed the ECPA reform effort. I thank the Digital Due Process Coalition, the Digital 4th Coalition and the many other individuals and organizations that have advocated for ECPA reform for their support. I hope that all Members of the Senate will follow their example, so that we can enact this digital privacy bill with strong, bipartisan support.

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

Mr. President, 50 years ago today, the Supreme Court issued its landmark decision in Gideon v. Wainwright. That case affirmed a fundamental principle of our democratic society, that no person, regardless of economic status, should face prosecution without the assistance of a lawyer. It is worth pausing today to celebrate Gideon and the extraordinary idea that in a free society the government which seeks to convict someone must also assume the cost of providing an effective defense.

In the last 50 years, we have come a long way in ensuring equal justice for all Americans and there is much about our criminal justice system in which to take pride. But we must also be honest and recognize that in too many courtrooms it is better to be rich and guilty than poor and innocent. The rich will have competent counsel, but those who have little often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, overworked, inept, uninterested, or worse.

The bottom line is that the promise made in Gideon remains unfulfilled. At

the core of this problem is the fact that too many States still lack adequate programs for providing effective representation. That failure results in miscarriages of justice, including wrongful convictions, in violation of our constitutional obligation to provide effective assistance of counsel. In his column yesterday in The New York Times, Lincoln Caplan noted, ``by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.'' A recent article on the front page of USA Today correctly calls the problem a ``national crisis,'' highlighting one public defender's office in Pennsylvania that has four investigators to handle its 4,000 cases a year and where some lawyers have no desk or phone. A similar AP article which ran in the Washington Post cites additional examples of this ongoing failure of our criminal justice system, including one public defender in Indianapolis who was asked to represent 300 clients at a time. I know what it takes to work a case effectively from my time as a prosecutor, and no lawyer can provide effective counsel to 300 defendants at once.

We can no longer ignore the disturbing examples discussed in these articles. We are on notice that a constitutional right is consistently being violated and, if we are to call ourselves a country of laws, it is our obligation as a nation, and particularly as the Congress, to take action and make a change. That is why today, I am introducing the Gideon's Promise Act of 2013. This legislation takes important new steps to breathe life into Gideon and ensure the fairness of our criminal justice system for all participants.

I first introduced this legislation last Congress, as part of the reauthorization of the Justice For All Act. That law, passed in 2004, was an unprecedented bipartisan piece of criminal justice legislation. It was the most significant step Congress had taken in many years to improve the quality of justice in this country and to improve public confidence in the integrity of the American justice system. I plan to reintroduce the reauthorization of the Justice for All Act, again, later this spring and it will include this critical provision to ensure that our criminal justice system operates effectively and consistent with our constitutional obligations.

The Gideon's Promise Act takes several important new steps to improve the quality of the criminal justice system. First, it seeks to encourage States to adopt a comprehensive approach in using the Federal funds received through the Edward Byrne Memorial Justice Assistance Grant, JAG, Program. This will help to ensure that their criminal justice systems operate effectively as a whole and that all parts of the system work together and receive the resources they need. Specifically, the bill reinstates a previous requirement of the Byrne JAG Program that States develop, and update annually, a strategic plan detailing how grants received under the program will be used to improve the administration of the criminal justice system. The requirement was removed from the Byrne JAG grant application several years ago, but groups representing States and victims have requested that it be reinstated in order to improve the efficient and effective use of criminal justice resources. The plan must be formulated in consultation with local governments and all segments of the criminal justice system. The Attorney General will also be required to provide technical assistance to help States formulate their strategic plans.

This legislation also takes important new steps to ensure that all criminal defendants, including those who cannot afford a lawyer, receive constitutionally adequate representation. It requires the Department of Justice to assist States that want help developing an effective and efficient system of indigent defense, and it establishes a cause of action for the Federal Government to step in when States are systematically failing to provide the representation called for in the Constitution.

This is a reasonable measure that gives the States assistance and time needed to make necessary changes and seeks to provide an incentive for States to do so. As a former prosecutor, I have great faith in the men and women of law enforcement, and I know that the vast majority of the time our criminal justice system does work fairly and effectively. I also know that the system only works as it should when each side is well represented by competent and well-trained counsel. That realization was reflected in the testimony of District Attorney Patricia Lykos of Houston that competent defense attorneys are critical to a prosecutor's job. Our system requires good lawyers on both sides. Incompetent counsel can result not only in needless and time-consuming appeals but, far more importantly, can lead to wrongful convictions and overall distrust in the criminal process.

In working on this legislation, I have also learned that the most effective systems of indigent defense are not always the most expensive. In some cases, making the necessary changes may also save States money.

I remain committed to ensuring that our criminal justice system operates as effectively and fairly as possible. Unfortunately, we are not there yet. Too often the quality of justice a defendant receives in our system depends on how much he or she can pay for an attorney. The Constitution requires that we do better. Americans need and deserve a criminal justice system that keeps us safe, ensures fairness and accuracy, and fulfills the promise of our Constitution for all people.

This bill will take important steps to bring us closer to that goal and I urge all Senators to support this legislation.

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

Mr. President, 50 years ago today, the Supreme Court issued its landmark decision in Gideon v. Wainwright. That case affirmed a fundamental principle of our democratic society, that no person, regardless of economic status, should face prosecution without the assistance of a lawyer. It is worth pausing today to celebrate Gideon and the extraordinary idea that in a free society the government which seeks to convict someone must also assume the cost of providing an effective defense.

In the last 50 years, we have come a long way in ensuring equal justice for all Americans and there is much about our criminal justice system in which to take pride. But we must also be honest and recognize that in too many courtrooms it is better to be rich and guilty than poor and innocent. The rich will have competent counsel, but those who have little often find their lives placed in the hands of underpaid court-appointed lawyers who are inexperienced, overworked, inept, uninterested, or worse.

The bottom line is that the promise made in Gideon remains unfulfilled. At

the core of this problem is the fact that too many States still lack adequate programs for providing effective representation. That failure results in miscarriages of justice, including wrongful convictions, in violation of our constitutional obligation to provide effective assistance of counsel. In his column yesterday in The New York Times, Lincoln Caplan noted, ``by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.'' A recent article on the front page of USA Today correctly calls the problem a ``national crisis,'' highlighting one public defender's office in Pennsylvania that has four investigators to handle its 4,000 cases a year and where some lawyers have no desk or phone. A similar AP article which ran in the Washington Post cites additional examples of this ongoing failure of our criminal justice system, including one public defender in Indianapolis who was asked to represent 300 clients at a time. I know what it takes to work a case effectively from my time as a prosecutor, and no lawyer can provide effective counsel to 300 defendants at once.

We can no longer ignore the disturbing examples discussed in these articles. We are on notice that a constitutional right is consistently being violated and, if we are to call ourselves a country of laws, it is our obligation as a nation, and particularly as the Congress, to take action and make a change. That is why today, I am introducing the Gideon's Promise Act of 2013. This legislation takes important new steps to breathe life into Gideon and ensure the fairness of our criminal justice system for all participants.

I first introduced this legislation last Congress, as part of the reauthorization of the Justice For All Act. That law, passed in 2004, was an unprecedented bipartisan piece of criminal justice legislation. It was the most significant step Congress had taken in many years to improve the quality of justice in this country and to improve public confidence in the integrity of the American justice system. I plan to reintroduce the reauthorization of the Justice for All Act, again, later this spring and it will include this critical provision to ensure that our criminal justice system operates effectively and consistent with our constitutional obligations.

The Gideon's Promise Act takes several important new steps to improve the quality of the criminal justice system. First, it seeks to encourage States to adopt a comprehensive approach in using the Federal funds received through the Edward Byrne Memorial Justice Assistance Grant, JAG, Program. This will help to ensure that their criminal justice systems operate effectively as a whole and that all parts of the system work together and receive the resources they need. Specifically, the bill reinstates a previous requirement of the Byrne JAG Program that States develop, and update annually, a strategic plan detailing how grants received under the program will be used to improve the administration of the criminal justice system. The requirement was removed from the Byrne JAG grant application several years ago, but groups representing States and victims have requested that it be reinstated in order to improve the efficient and effective use of criminal justice resources. The plan must be formulated in consultation with local governments and all segments of the criminal justice system. The Attorney General will also be required to provide technical assistance to help States formulate their strategic plans.

This legislation also takes important new steps to ensure that all criminal defendants, including those who cannot afford a lawyer, receive constitutionally adequate representation. It requires the Department of Justice to assist States that want help developing an effective and efficient system of indigent defense, and it establishes a cause of action for the Federal Government to step in when States are systematically failing to provide the representation called for in the Constitution.

This is a reasonable measure that gives the States assistance and time needed to make necessary changes and seeks to provide an incentive for States to do so. As a former prosecutor, I have great faith in the men and women of law enforcement, and I know that the vast majority of the time our criminal justice system does work fairly and effectively. I also know that the system only works as it should when each side is well represented by competent and well-trained counsel. That realization was reflected in the testimony of District Attorney Patricia Lykos of Houston that competent defense attorneys are critical to a prosecutor's job. Our system requires good lawyers on both sides. Incompetent counsel can result not only in needless and time-consuming appeals but, far more importantly, can lead to wrongful convictions and overall distrust in the criminal process.

In working on this legislation, I have also learned that the most effective systems of indigent defense are not always the most expensive. In some cases, making the necessary changes may also save States money.

I remain committed to ensuring that our criminal justice system operates as effectively and fairly as possible. Unfortunately, we are not there yet. Too often the quality of justice a defendant receives in our system depends on how much he or she can pay for an attorney. The Constitution requires that we do better. Americans need and deserve a criminal justice system that keeps us safe, ensures fairness and accuracy, and fulfills the promise of our Constitution for all people.

This bill will take important steps to bring us closer to that goal and I urge all Senators to support this legislation.

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

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I have spoken many times on the floor of the Senate about Antonio Pomerleau of Burlington, VT. As my wife, Marcelle, has often said, he is her ``favorite Uncle Tony.'' Given his extraordinary service and dedication to the people of our state, it is safe to say that he is every Vermonter's ``favorite Uncle Tony.''

Tony has done so much for so many, from his enormously generous contribution to help the survivors of Hurricane Irene, through his constant and generous support of our Vermont National Guard and their families, to most recently his large donation to the Community Health Centers of Burlington, in memory of his daughter, Anne Marie.

Marcelle and I of course knew her cousin Anne Marie, and we warmly remember her spirit and her life. Even though health problems nearly immobilized her toward the end, the cheer, love and friendship she gave--not only to members of the family but to everyone else--was a treasure in all of our lives. Tony continues to lift Vermonters' spirits and make lives better in so many ways. I have an article from The Burlington Free Press that highlights yet another token of Uncle Tony's generosity.

I ask unanimous consent that this article be printed in the Record.

Mr. President, I will not engage the Senator from Arizona with questions. I don't want to delay his reading time.

I appreciate the work the distinguished chair of the Appropriations Committee has done, and the distinguished ranking member, the senior Senator from Alabama. I worked with both of them for decades on the Appropriations Committee. I know they are diligent. They are hard working. In fact, I recall a discussion with the distinguished senior Senator from Maryland when she agreed to take this assignment. I told her I couldn't think of anybody better on our side of the aisle to be the chair of this committee because I know how hard she works and how well she works with the ranking member.

I spoke also with the distinguished Senator from Alabama at the time--again, somebody who knows how to get things done on appropriations. He and I have negotiated things over the years. We have always kept our word to each other, just as the Senator from Maryland has. Now it is time to debate the bill on the floor and it pains me that having got this far, two senators are preventing anyone else from offering amendments.

It is unfortunate we are discussing a continuing resolution because if left to the three Senators who are currently on the floor--the Senator from Alabama, the Senator from Maryland, and myself--we know we would be fully capable of completing action on individual appropriations bills. In fact, they were painstakingly negotiated by the Senate and the House as part of an omnibus legislative package last December. But then, for reasons we don't have to go into here, a year's work of seven appropriations subcommittees was dumped in the wastebasket, not because of the two leaders but because of others.

Unfortunately, that means we have been funding the government on autopilot. None of us who have spent time on the Appropriations Committee wants this because we know it wastes money and sequestration will make a bad situation even worse.

Having said that, I think what Chairwoman Mikulski and Ranking Member Shelby have done in negotiating this continuing resolution is far better than putting the government on autopilot as we did last December.

I wish to talk about title 7 of this resolution, which concerns the Department of State and Foreign Operations. The House continuing resolution included several changes in the fiscal year 2012 appropriations act. The Senate incorporated those changes with minor modifications. Senator Lindsey Graham and I included other changes we believe are critical to our national security. Top officials at the State Department and the Pentagon agree with us.

We did our best to avoid spending money on things that may have made sense in fiscal year 2012 but are a waste today. I will give an example. The House continuing resolution includes another $250 million for the Iraq police training program, the same amount as in fiscal year 2012. Yet the State Department plans to spend zero in fiscal year 2013. That is just an example of why we should go, if we could, by the regular order, because nobody wants this money.

There have been a lot of changes in the world since December 2011 when the 2012 bill was signed by the President. There is the catastrophe in Syria, with millions of people fleeing their homes, which threatens to engulf the entire region. Benghazi and Mali are other examples. Conditions are changing in Egypt, Afghanistan, and in our own hemisphere. We face growing challenges in East Asia and the Pacific.

Now, we should not say, as these challenges come up--sometimes overnight--that well, two or three years ago we passed a bill, so there is no need to do one this year. The world does not stand still.

I think the chairwoman is doing a superb job, and Ranking Member Shelby is showing, as usual, his many years of experience and hard work. I thank Senator Lindsey Graham and his staff, who have provided very constructive input.

In the past, appropriations bills were always a bipartisan effort. We worked together. I think of Senator Byrd and Senator Stevens on this floor working things out; my predecessor as President pro tempore, Senator Inouye, and Senator Cochran working things out.

Title VII of this resolution is a grand total of 11\1/2\ pages. Out of over 500 pages, it is 11\1/2\ pages. It should not take long to read. We do not expect amendments, but if we get them, I hope we can act on them quickly.

Mr. President, if nobody is seeking the floor, I ask unanimous consent that I be allowed to continue for 5 minutes as though in morning business.

Mr. President, last week the Obama administration announced that Osama bin Laden's son-in-law, Sulaiman Abu Ghaith, had been brought to the United States to be prosecuted. Several of us who have oversight in particular committees were notified a week before this became public. We were briefed on what was happening as he was being flown here to this country to be prosecuted.

I commend the work of our Nation's dedicated law enforcement and intelligence officials who are helping bring him to justice. I was briefed on exactly what they did and how they did it, and there was a superb combination of work by the Justice Department and intelligence communities, at the CIA, FBI, and other agencies. And I applaud the Obama administration for their unanimous decision within the National Security Council to prosecute him in a Federal court.

We have reason to be proud of our courts. Our Federal courts are an example of impartiality, competence, and integrity seen the world over. We, as Americans, are not afraid to take somebody who has acted against us and prosecute them in our courts. We should not act as though we are afraid and simply say that we can't have them in our Federal court, and that we should just lock them up in Guantanamo.

As a practical matter, our Federal prosecutors have established a tremendous record of convictions of terrorism defendants. They have convicted over 450 terrorism-related defendants since September 11, 2001.

The military commissions at Guantanamo Bay--where some said they wanted to send Abu Ghaith--are largely untested. There have only been 8 convictions there--not the 450 we have seen in Federal courts but 8-- and on average the sentences handed down in military commissions are shorter than those given in the Federal court. In fact, two of these military commission convictions were overturned just last year. Indeed, based on the recent decisions of the U.S. Court of Appeals for the D.C. Circuit, it is unclear whether a conspiracy case against this defendant could even be legally sustained in a military commission at Guantanamo Bay.

Why do we act as though we are afraid to bring this terrorist before our Federal courts where we bring mass murderers and everybody else, and instead argue that we should send him off somewhere where he may never be convicted? In fact, regardless of the outcome of a military commission proceeding against Abu Ghaith, it is possible that he could have been stuck there without the possibility of a Federal prosecution, given the shortsighted limitations on detainee transfers imposed by Congress. When you look at how well the Federal courts have done, I am surprised to hear people criticize the decision to bring him before an Article III Federal court.

I would say that using our justice system is not mutually exclusive from gathering intelligence. In fact, from public accounts--and I refer to what has been in the press--it appears the FBI gathered information and intelligence from him for about a week before he was formally even arraigned in court last week. In fact, according to one of the prosecutors, law enforcement officials were able to obtain detailed, extensive audio recordings and roughly 22 pages of post-arrest statements from Abu Ghaith. And the fact is, also, as we have seen in some of these other cases, once you present the defendant in court, oftentimes they continue to cooperate and talk.

It is clear to me that President Obama's national security team did the right thing. But we also show the rest of the world that we are not afraid, that as Americans we are not cowering and afraid to use our courts, and that we are not afraid to use the law and procedures that have made us free and strong.

We have had several hearings in the Judiciary Committee on how best to handle terrorism suspects. I am convinced that the Attorney General and the administration must have all options available. For example, the case of the Fort Hood shooter went to a military trial, as it should have. That case involved a military officer committing a crime on a military base against other military personnel, even though influenced by somebody from al-Qaida overseas. But in the Abu Ghaith case we have somebody that we can and should prosecute on conspiracy charges in Federal court. As a former prosecutor, I have looked at that, and I have absolute faith in the abilities of our Federal courts and our prosecutors and law enforcement officials to bring terrorists to justice. They have a tremendous record.

Let's not be afraid of these people. Let's not say: Oh, we have to hide them down there in Cuba at Guantanamo Bay. No, we are Americans. We are America. We are not afraid of terrorists. Bring them before our courts, and let them face American justice. Let them face our prosecutors and our courts. Let's do it in a way that we can show the rest of the world how justice truly works. When we tell them, why aren't you running your courts in an open way, or when we criticize other countries, as we often do, let us not give them an opportunity to come back and say, well, you don't do it that way yourselves. No--we can and must say that we do. We have captured the son-in-law of Osama bin Laden, who conspired with him to commit a horrible crime against our Nation. It took us years to find him, but we got him. We brought him back here. And now we are taking him to court, and we are going to let a jury decide his guilt or innocence. That is the way it should be done. That is the American way. And that shows that we do not have to hide. We Americans are willing to stand up and face those who would attack us.

Mr. President, I yield the floor.

Mr. President, I thank the senior Senator from Maryland for her kind comments. We do a lot. It is interesting. In the foreign aid part, it is less than 1 percent of our budget. But what we do is show the face of America--the best of the face of America throughout the world. The distinguished Senator has been, throughout her career, both in the other body and here, a strong supporter of those programs and made life better for an awful lot of people who never know who Senator Mikulski is or Senator Leahy or anybody else. All they know is that life is better because of the things we have done.

I was in Haiti just a couple of weeks ago. I have been there several times since the earthquake. I have seen how our programs have helped, including the Leahy War Victims Fund, which helps land mine victims around the world. The Senator from Alabama knows, as he was there with me a year ago.

I saw youngsters with prosthetics learning to walk again. I saw people from other parts of the world who were inspired by what the United States was doing.

I remember a physician from Brussels who had gone to Haiti. When I asked him why he spent so much time volunteering there, We were speaking French with each other, but I remember the emotion in his voice as he grabbed my arm and said, ``pour les enfants,'' for the children. Those children are not rich. They are not powerful. They will never vote for us. But we are human beings, and we have a responsibility.

The Senator from Maryland has spoken about security at our embassies. We tell people to go to some of the most dangerous parts of the world and show the best face of America. We have a responsibility to protect them. We have tried to get that money passed only to have had it held up in the other body. Let's continue our work.

I yield the floor.

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

Madam President, last week I introduced bipartisan legislation with Senator Collins to combat the straw purchasing and trafficking of firearms. We were joined by other Senators from both sides of the aisle. We have made good progress since then. Last Thursday, the Senate Judiciary Committee voted for our bill as an amendment to the Stop Illegal Trafficking in Firearms Act, S. 54. This is the first legislative vote on measures related to gun violence in either the Senate or the House since the Newtown tragedy. Every Democratic Senator on the Committee voted in favor of our bill and we were joined in that support by the Committee's ranking Republican, Senator Grassley. I appreciate Senator Grassley's cooperation in getting our bill reported after weeks of consultation and I look forward to working closely with him as we move forward.

The White House called the Judiciary Committee action ``an important bipartisan step'' that takes on ``the very serious problem of gun trafficking.'' At the signing of the Violence Against Women Reauthorization Act and Trafficking Victims Protection Reauthorization Act last Thursday, the President called the Judiciary Committee's action on our bill a ``big step'' and ``real progress.'' He noted that our bill ``would crack down on folks who buy guns only to turn around and funnel them to dangerous criminals.''

I want to continue to make progress on this legislation and other bills that can be effective in reducing illegal gun violence in our country. We have the strong support of several leading law enforcement organizations including the Fraternal Order of Police, the FBI Agents Association, the Major Cities Chiefs Association, the Federal Law Enforcement Officers Association, and

the National Organization of Black Law Enforcement Executives. Last week I received a letter from the NAACP lending their strong support to our efforts. I thank all of these organizations for their assistance and support.

Tomorrow, the Judiciary Committee will continue its work on three remaining gun violence measures that have been on our agenda for the past weeks: Senator Schumer's proposal to expand requirements for background checks, Senator Boxer's proposal to enhance the safety of our schools, and Senator Feinstein's bill to reinstitute an assault weapons ban. I aim by the end of the week to have completed Judiciary Committee action on these legislative proposals.

At the bill signing last Thursday, the President observed that we were able finally to pass the Violence Against Women and Trafficking Victims Protection legislation on a bipartisan basis because the American people spoke up. That is what happened on VAWA when a group of House Republicans switched their position to support passing the VAWA bill that they had not supported last year.

That is what is also needed in the context of gun violence legislation. Seven of the eight Republican Senators on the Judiciary Committee voted against closing the loophole in the law to combat straw purchasing and gun trafficking. If we are going to be able to close loopholes in our background check system, improve school safety with more resources for resource officers that include counselors and officers, and if we are going to outlaw straw purchasing and gun trafficking, the American people need to speak up and be heard. If Congress is going to place limits on high capacity clips, it will be because the American people demand such action.

(The remarks of Mr. Leahy pertaining to the introduction of S. 517 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. President, today I am introducing bipartisan legislation that will help promote competition in the wireless industry and restore consumer choice. From 2006 until last year, an exemption to the Digital Millennium Copyright Act, DMCA, permitted cell phone users to ``unlock'' their cell phones when their contract expired, allowing them to change wireless providers and thereby promoting consumer choice. This exemption has enhanced competition in the cell phone market, but it was allowed to expire last year.

Over the past few weeks and months, consumers have spoken clearly-- they want to retain the right to transfer their cell phones between wireless providers, if they so choose, when their contracts expire. I agree, which is why today I am pleased to introduce the Unlocking Consumer Choice and Wireless Competition Act, along with Senator Grassley, Senator Hatch, Senator Lee and Senator Franken, who chairs the Judiciary Committee's Subcommittee on Privacy, Technology and the Law. We are working closely with Chairman Goodlatte and members of the House Judiciary Committee to pass commonsense legislation and provide consumers with better choice.

The Unlocking Consumer Choice and Wireless Competition Act reestablishes the Library of Congress's rule permitting cell phone unlocking. It also directs the Library to undertake a new proceeding to consider whether to broaden this exemption to allow unlocking of other wireless devices such as tablets. At a time when the line between phone and tablet is beginning to blur, it makes sense for the Library to consider extending this exemption to those devices as well.

The DMCA maintains an important balance between protecting copyright owners and users. It was designed to be sufficiently flexible to meet the challenges of an ever-evolving digital copyright world. Every 3 years, the Library of Congress conducts its public review of the exemptions permitted under the DMCA to help promote that flexibility. Unfortunately, in its most recent proceeding, there was not a sufficient record for the Library to continue the cell phone exemption, despite the strong merits of the rule. Our legislation restores the important exemption that had been in effect in previous years. Although Congress has stepped in in this instance to restore an important policy objective, I urge parties in future rulemakings to provide a more full record so that the rulemaking process can proceed as it was designed.

When I wrote the DMCA, the law was intended to allow choice and protect consumers. This straightforward restoring bill furthers that objective. When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use. They should not be forced to stay with their original provider due to software that restricts a phone to only one network. I am pleased that many wireless providers already sell unlocked phones, or will unlock phones for consumers once contracts expire, but that does not mean that consumers should face penalties under the DMCA for taking those same steps on their own. This bill will protect and promote competition in the wireless market by allowing consumers to bring their phones with them to the provider that best suits their needs.

I urge all Senators to support this narrow, commonsense legislation to protect consumers and promote competition.

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

Mr. President, today I am introducing bipartisan legislation that will help promote competition in the wireless industry and restore consumer choice. From 2006 until last year, an exemption to the Digital Millennium Copyright Act, DMCA, permitted cell phone users to ``unlock'' their cell phones when their contract expired, allowing them to change wireless providers and thereby promoting consumer choice. This exemption has enhanced competition in the cell phone market, but it was allowed to expire last year.

Over the past few weeks and months, consumers have spoken clearly-- they want to retain the right to transfer their cell phones between wireless providers, if they so choose, when their contracts expire. I agree, which is why today I am pleased to introduce the Unlocking Consumer Choice and Wireless Competition Act, along with Senator Grassley, Senator Hatch, Senator Lee and Senator Franken, who chairs the Judiciary Committee's Subcommittee on Privacy, Technology and the Law. We are working closely with Chairman Goodlatte and members of the House Judiciary Committee to pass commonsense legislation and provide consumers with better choice.

The Unlocking Consumer Choice and Wireless Competition Act reestablishes the Library of Congress's rule permitting cell phone unlocking. It also directs the Library to undertake a new proceeding to consider whether to broaden this exemption to allow unlocking of other wireless devices such as tablets. At a time when the line between phone and tablet is beginning to blur, it makes sense for the Library to consider extending this exemption to those devices as well.

The DMCA maintains an important balance between protecting copyright owners and users. It was designed to be sufficiently flexible to meet the challenges of an ever-evolving digital copyright world. Every 3 years, the Library of Congress conducts its public review of the exemptions permitted under the DMCA to help promote that flexibility. Unfortunately, in its most recent proceeding, there was not a sufficient record for the Library to continue the cell phone exemption, despite the strong merits of the rule. Our legislation restores the important exemption that had been in effect in previous years. Although Congress has stepped in in this instance to restore an important policy objective, I urge parties in future rulemakings to provide a more full record so that the rulemaking process can proceed as it was designed.

When I wrote the DMCA, the law was intended to allow choice and protect consumers. This straightforward restoring bill furthers that objective. When consumers finish the terms of their contract, they should be able to keep their phones and make their own decision about which wireless provider to use. They should not be forced to stay with their original provider due to software that restricts a phone to only one network. I am pleased that many wireless providers already sell unlocked phones, or will unlock phones for consumers once contracts expire, but that does not mean that consumers should face penalties under the DMCA for taking those same steps on their own. This bill will protect and promote competition in the wireless market by allowing consumers to bring their phones with them to the provider that best suits their needs.

I urge all Senators to support this narrow, commonsense legislation to protect consumers and promote competition.

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

Mr. President, will the Senator yield?

Mr. President, I realize we have not gone in the regular order with the manager of the nomination speaking first. We are having a hearing right now with the Attorney General. So I ask unanimous consent, when the distinguished Senator finishes his

speech, whatever length it is, and all time will have then been used up so there would not be any time reserved for the manager of this nomination, to speak for 2 minutes at the conclusion of Senator Grassley's remarks.

Madam President, I understand the Senator from New York will speak following my comments.

Mr. President, today the Senate has an opportunity to act in a bipartisan manner to end a filibuster against an outstanding nominee to the D.C. Circuit. Caitlin Halligan is an exceptional attorney with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit. No one can seriously question her legal ability, her judgment, her character, her integrity, her ethics or her temperament. Those who seek to misrepresent her as a partisan or ideological crusader are wrong and unfair.

Some have mischaracterized her record and distorted her views on executive authority and terrorism. Here is what she said about the 2004 New York

City Bar report that some are using to inflame the debate:

I was, frankly, taken aback by [this Report], for a couple

of reasons. First of all, the Supreme Court has clearly said

that indefinite detention is authorized by the AUMF statute.

And so the notion that the President lacks that authority, I

think, is clearly incorrect. I was also a little bit taken

aback by the tone of the report. I think that the issues of

indefinite detention and any issues in the national security

realm are very serious ones, and I think that approaching

those issues as respectfully as possible is the most

productive way to proceed. But the bottom line is that the

report does not represent my work. It does not reflect my

views.

I hope Senators who intend to make this a basis for filibustering this outstanding nominee are listening and understand. Again, she testified: ``[T]he bottom line is that the report does not represent my work. It does not reflect my views.'' This is no basis for opposing the nominee, let alone filibustering her consideration. The report does not represent her views; she flat out rejected them as a statement of law.

During her hearing she testified that she only became aware of the 2004 New York Bar report in 2010 while preparing for her confirmation hearing. She even provided minutes from the City Bar Committee's meetings to show that she was not present and not part of the subcommittee that drafted the report. She rejected the views in the report, saying that it was ``clearly incorrect.'' So while she was one of 37 members of a larger Committee, she was not a member of the subcommittee that drafted the report. She did not participate in the drafting. To filibuster her nomination because of a report she did not write, has not endorsed and has, in fact, rejected, would be a great injustice to this outstanding woman.

New York City's Police Commissioner Ray Kelly wrote in strong support of Caitlin Halligan again this week, saying:

I want to reiterate [my] support, and to stress my

confidence in her commitment to the vigorous prosecution of

our ongoing fight against the threat of terrorism here in New

York City.

Any suggestion that Ms. Halligan would thwart efforts to

protect our nation, and our city, against terrorist threats

is absurd. For over three years, Ms. Halligan has served as

Counsel to the New York County District Attorney. During that

time, she has worked extensively on key anti-terrorism cases,

including most recently the successful prosecution of Ahmed

Ferhani, who pled guilty to very serious charges under New

York State's anti-terrorism statute for a 2011 plot to blow

up Manhattan synagogues and churches.

I ask unanimous consent that the full letter be printed in the Record at the conclusion of my statement. This is not someone soft on terrorism. She has helped bring terrorists to justice. Police Commissioner Kelly is not endorsing someone soft on terrorism. Cyrus Vance, Jr., the New York County District Attorney, is not endorsing someone soft on terrorism.

This is a woman and mother who lives in downtown New York. She was literally blocks away from the twin towers on September 11, 2001. She saw and experienced the devastation of the 9/11 terrorist attack on New York.

By any traditional standard, Caitlin Halligan is the kind of superbly qualified nominee who should be considered and confirmed by the Senate. The Republican leadership's filibuster of this nomination threatens to set a new standard that could not be met by anyone. That is wrong, it is unjustified, and it is dangerous.

It takes only a handful of sensible Senate Republicans to do the right thing. This is not a time to victimize Caitlin Halligan for some sort of political payback or to appeal to narrow special interests. I ask those Republican Senators who care about the judiciary and fairness to come forward, end this filibuster, and ratchet down the partisanship that threatens this institution, our courts and the country.

A Republican Senator, who was a member of the ``Gang of 14'' in 2005, described his view of what comprises the ``extraordinary circumstances'' justifying a filibuster. He said: ``Ideological attacks are not an extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.'' Caitlin Halligan has no ``character problem,'' no ``ethics problem,'' and there is no justification for this filibuster. I trust that Senator will apply the standard he articulated and vote to end this filibuster.

Another Republican Senator said just last year in voting to end a filibuster against another circuit court nominee:

[W]hen I became a Senator, Democrats were blocking an up-

or-down vote on President Bush's judicial nominees. I said

then that I would not do that and did not like doing that. I

have held to that in almost every case since then. I believe

nominees for circuit judges, in all but extraordinary cases,

and district judges in every case ought to have an up-or-down

vote by the Senate.

If that Senator remains true to his principles, he will

vote to end this filibuster.

Republican Senators who signed that 2005 memorandum of understanding continue to serve here in the Senate. If they follow the standard set in that agreement, they will vote to end this filibuster. They demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations of President Bush to the D.C. Circuit. If that agreement and standard had any meaning, they should all be voting to end this filibuster.

I urge all those who have said that filibusters of judicial nominations are unconstitutional to end this filibuster. I urge those who said they would never support a filibuster of a judicial nomination to end this filibuster. I urge those who said that they would only filibuster in ``extraordinary circumstances'' to end this filibuster. I urge all those who care about the judiciary, the administration of justice, the Senate and the American people to come forward and end this filibuster.

I yield the floor.