Floor Statements

Mr. President, I am pleased to introduce the Fair and Independent Judiciary Act of 2006 because ensuring a fair and independent judiciary is critical to the system of checks and balances established in our Constitution. This legislation seeks to preserve the public confidence that our Federal courts enjoy, and that our courts need to adequately fulfill their constitutional role in our system. Revelations that judges and justices are receiving gifts from parties that may appear before them or have a financial interest in a litigating party undermine the public's trust.

For the past 4 years, editorial boards across the country have called our attention to the appearance of impropriety that occurs when Federal judges accept gifts and attend lavish private seminars sponsored by well-heeled corporations. I have proposed similar legislation in previous Congresses to address the problem of private judicial seminars. Last year, despite my ongoing concerns about reports of judicial activities that undermine public confidence, I withheld these provisions from a judicial pay raise bill. I had hoped that the Federal judiciary would engage in self-regulation on these timely and substantive ethical issues. Unfortunately, recent press reports show continued appearances of impropriety, even by a member of the Supreme Court. This legislation does not prohibit judges and justices from attending educational seminars. Instead, it simply requires them to learn and disclose the private sponsors of the seminars and make that information public. Then, they would be allowed to attend the seminars, but at the court's expense, instead of having special interests pick up their tabs.

Another issue that threatens to undermine confidence in our judicial impartiality was highlighted at the recent hearings for Judge Alito. Some judges fail to monitor their financial holdings so that they can properly recuse themselves from cases where there may be a conflict of interest. One way to be sure that the recusal laws Congress enacted are being followed by all Federal judges is to allow more transparency of a judge's financial conflicts. This legislation contains a provision to improve the public's access to the recusal lists that all judges keep within their chambers or clerks' offices.

Because the public's trust is at stake, it is important to require that private seminar providers fully disclose the litigation interests of their sponsors and to improve access to judicial conflicts. The American people deserve a Federal judiciary that is beyond reproach--in appearance, and otherwise. The Fair and Independent Judiciary Act seeks to ensure continued public confidence in our Federal courts. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, I am pleased to introduce the Fair and Independent Judiciary Act of 2006 because ensuring a fair and independent judiciary is critical to the system of checks and balances established in our Constitution. This legislation seeks to preserve the public confidence that our Federal courts enjoy, and that our courts need to adequately fulfill their constitutional role in our system. Revelations that judges and justices are receiving gifts from parties that may appear before them or have a financial interest in a litigating party undermine the public's trust.

For the past 4 years, editorial boards across the country have called our attention to the appearance of impropriety that occurs when Federal judges accept gifts and attend lavish private seminars sponsored by well-heeled corporations. I have proposed similar legislation in previous Congresses to address the problem of private judicial seminars. Last year, despite my ongoing concerns about reports of judicial activities that undermine public confidence, I withheld these provisions from a judicial pay raise bill. I had hoped that the Federal judiciary would engage in self-regulation on these timely and substantive ethical issues. Unfortunately, recent press reports show continued appearances of impropriety, even by a member of the Supreme Court. This legislation does not prohibit judges and justices from attending educational seminars. Instead, it simply requires them to learn and disclose the private sponsors of the seminars and make that information public. Then, they would be allowed to attend the seminars, but at the court's expense, instead of having special interests pick up their tabs.

Another issue that threatens to undermine confidence in our judicial impartiality was highlighted at the recent hearings for Judge Alito. Some judges fail to monitor their financial holdings so that they can properly recuse themselves from cases where there may be a conflict of interest. One way to be sure that the recusal laws Congress enacted are being followed by all Federal judges is to allow more transparency of a judge's financial conflicts. This legislation contains a provision to improve the public's access to the recusal lists that all judges keep within their chambers or clerks' offices.

Because the public's trust is at stake, it is important to require that private seminar providers fully disclose the litigation interests of their sponsors and to improve access to judicial conflicts. The American people deserve a Federal judiciary that is beyond reproach--in appearance, and otherwise. The Fair and Independent Judiciary Act seeks to ensure continued public confidence in our Federal courts. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, like most Americans, I start off the year with my new year's resolution to work harder at getting in shape. As always, my first stop is the Concept2 rowing machine in the Senate gym. I have used it for years, and always think of Vermont when I do.

The rowing machines are made in Vermont, and last fall the Burlington Free Press had an excellent article about the company and its founders. I ask that a copy of the article be printed in the Record.

Mr. President, today I am submitting this resolution expressing the sense of the Senate that the Authorization for Use of Military Force, which Congress passed to authorize military action against those responsible for the attacks on September 11, 2001, did not authorize warrantless eavesdropping on American citizens.

As Justice O'Connor underscored recently, even war ``is not a blank check for the President when it comes to the rights of the Nation's citizens.''

Now that the illegal spying of Americans has become public and the President has acknowledged the 4-year-old program, the Bush administration's lawyers are contending that Congress authorized it. The September 2001 Authorization to Use Military Force did no such thing. Republican Senators also know it and a few have said so publicly. We all know it. The liberties and rights that define us as Americans and the system of checks and balances that serve to preserve them should not be sacrificed to threats of terrorism or to the expanding power of the government. In the days immediately following those attacks, I said, and I continue to believe, that the terrorists win if they frighten us into sacrificing our freedoms and what defines us as Americans.

I well remember the days immediately after the 9/11 attacks. I helped open the Senate to business the next day. I said then, on September 12, 2001:

``If we abandon our democracy to battle them, they win. . .

. We will maintain our democracy, and with justice, we will

use our strength. We will not lose our commitment to the rule

of law, no matter how much the provocation, because that rule

of law has protected us throughout the centuries. It has

created our democracy. It has made us what we are in history.

We are a just and good Nation.''

I joined with others, Republican and Democrats, and we engaged in round-the-clock efforts over the next months in connection with what came to be the USA PATRIOT Act. During those days the Bush administration never asked us for this surveillance authority or to amend the Foreign Intelligence Surveillance Act to accommodate such a program.

Just as we cannot allow ourselves to be lulled into a sense of false comfort when it comes to our national security, we cannot allow ourselves to be lulled into a blind trust regarding our freedoms and rights. The Framers built checks and balances into our system specifically to counter such abuses and undue assertions of power. We must remain vigilant on all fronts or we stand to lose these rights forever. Once lost or eroded, liberty is difficult if not impossible to restore. The Bush administration's after-the-fact claims about the breadth of the Authorization to Use Military Force--as recently as this week, in a document prepared at the White House's behest by the Department of Justice--are the latest in a long line of manipulations of the law. We have also seen this type of overreaching in that same Justice Department office's twisted interpretation of the torture statute, an analysis that had to be withdrawn; with the detention of suspects without charges and denial of access to counsel; and with the misapplication of the material witness statute as a sort of general preventive detention law. Such abuses serve to harm our national security as well as our civil liberties.

In addition, the press reports that the Pentagon maintains secret databases containing information on a wide cross-section of ordinary Americans, and that the FBI is monitoring law-abiding citizens in the exercise of their First Amendment freedoms. When I worked with Senator Wyden and others in 2003 to stop Admiral Poindexter's Total Information Awareness program, an effort designed to datamine information on Americans--and we meant it. And when I added a reporting requirement on Carnivore, the FBI's e-mail monitoring program, to the Department of Justice Authorizations law in 2002, we meant it. We demanded that Congress be kept informed and that any such program not proceed without congressional authorization.

The New York Times reported that after September 11, 2001, when former Attorney General John Ashcroft loosened restrictions on the FBI to permit it to monitor Web sites, mosques, and other public entities, ``the FBI has used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities.'' When I learned of such efforts and that they reportedly included monitoring Quakers in Florida and possibly Vermont, I wrote to the Secretary of Defense demanding an answer. That was a month ago. So far he has refused to provide that answer.

Now we have learned that President Bush has, for more than four years, secretly allowed the warrantless wiretapping of Americans inside the United States. And we read in the press that sources at the FBI say that much of what was forwarded to them to investigate was worthless and led to dead ends. That is a dangerous diversion of our investigative resources away from those who pose real threats, while precious time and effort is devoted to looking into the lives of law- abiding Americans.

The United States Supreme Court has consistently held for nearly 40 years, since its landmark decision in Katz v. United States, that the monitoring and recording of private conversations constitutes a ``search and seizure'' within the meaning of the Fourth Amendment. Congress enacted the Foreign Intelligence Surveillance Act of 1978, FISA, to provide a legal mechanism for the government to engage in electronic surveillance of Americans in connection with intelligence gathering. The Foreign Intelligence Surveillance Act, along with

the criminal wiretap authority in title 18 of the United States Code, together provide the exclusive means by which the Government may intercept domestic electronic communications pursuant to the rule of law.

The Foreign Intelligence Surveillance Act has been amended over time, and it has been adjusted several times since the 9/11 attacks. Indeed, much of the PATRIOT Act was devoted to modifying FISA to make it easier to obtain FISA warrants. But the PATRIOT Act did not amend FISA to give the Government the authority to conduct warrantless surveillance of American citizens.

If the Bush administration believed that the law was inadequate to deal with the threat of terrorism within our boundaries, it should have come to Congress and sought to change the law. It did not. Indeed, Attorney General Gonzales admitted at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that ``it was not something we could likely get.''

I chaired the Senate Judiciary Committee in 2001 and 2002, when the President's secret eavesdropping program apparently began. I was not informed of the program. I learned about it for the first time in the press last month. I thank heaven and the Constitution that we still have a free press.

The Bush administration is now arguing that when Congress authorized the use of force in September 2001 to attack al Qaeda in Afghanistan, it authorized warrantless searches and eavesdropping on American citizens. I voted for that authorization, and I know that Congress did not sign a blank check. The notion that Congress authorized warrantless surveillance in the AUMF is utterly inconsistent with the Attorney General's admission that Congress was not asked for such authorization because it was assumed that Congress would say no.

Former Senate Majority Leader Tom Daschle, who helped negotiate the use of force resolution with the White House, has confirmed that the subject of warrantless wiretaps of American citizens never came up, that he did not and never would have supported giving authority to the President for such wiretaps, and that he is ``confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.''

Senator Daschle also noted that the Bush administration sought to add language to the resolution that would have explicitly authorized the use of force ``in the United States,'' but Congress refused to grant the President such sweeping power. Maybe that was this Administration's covert way to seek the authority to spy on Americans, but Congress did not grant any such authority.

Spying on Americans without first obtaining the requisite warrants is illegal, unnecessary and wrong. No President can simply declare when he wishes to follow the law and when he chooses not to, especially when it comes to the hard-won rights of the American people.

The resolution I submit today is intended to help set the record straight. It is an important first step toward restoring checks and balances between the co-equal branches of government. I urge all Senators to support it.

Mr. President, will the Senator yield on that point for a moment?

Mr. President, the distinguished senior Senator from Pennsylvania has worked as hard on this issue as anybody here. As the distinguished Presiding Officer knows, the original PATRIOT Act was written by myself, the distinguished Senator from Pennsylvania, and others. It was the distinguished Republican leader from Texas, Dick Armey, and I who put in the sunset provisions so we would be forced to come back and look at different parts of it. Much of the PATRIOT Act is permanent law, but we should look at certain parts. Those are the parts that are now most in contention because they will expire.

The distinguished Senator from Pennsylvania and I were at the White House on another matter recently and talked briefly about this with the President. I know the distinguished Senator from New Hampshire, Mr. Sununu, has been working very hard with us. I think the changes that still need to be made are relatively minor. I urge parties, especially all of us who helped write the original PATRIOT

Act, to make that one last effort. That would include, of course, the White House and the other body to do it.

The chairman of the Judiciary Committee has worked extraordinarily hard on this legislation. I, like so many others, am willing to continue to work with him. I think with a little nudge from the White House--that nudge may have to be a quiet one among the principals in both bodies--that can be done. I commend the Senator from New Hampshire for the work he is doing on this issue.

I thank the chairman of the Judiciary Committee for yielding, even though it is on his time.

Mr. President, again I agree with what the distinguished Senator from Pennsylvania has said. This is a bipartisan bill. In fact, to emphasize it, he and I have sent a letter to all of our colleagues, signed jointly, asking them, if they have amendments which they plan to offer, to let us know.

It should be emphasized that not only did we have hours upon hours of hearings, but we had many open meetings in the office of the Senator from Pennsylvania, in my office, and the offices of others. We made sure that the stakeholders, all the stakeholders were able to come to those meetings. We also made sure that the office of every Senator-- everybody who expressed any interest, Republican or Democrat--was invited to those meetings. They were wide open. In fact, almost all of the Senators on both sides of the aisle either attended those meetings or had staff attend those meetings.

At these meetings that we had, again, every single stakeholder was involved. It was open. It was bipartisan. That was made clear by the Senator from Pennsylvania from the beginning, that they would have to be open and bipartisan. He, as would be expected, kept his commitment all the way through.

I would highlight two things the Senator from Pennsylvania just said that were of concern to me. One, if we do not do it now, we lose the opportunity. I believe it will be decades before anybody would put together the kind of coalition that it has been possible to put together. The other thing he said was that it is not just some of the powerful financial stakes involved, but it is a powerful amount of suffering that is going on by the people who are suffering from asbestos poisoning in all the different forms. They are the ones who are held in limbo throughout all this time. We can bring some relief to them now; not the possibility of relief 10 years from now after a series of lawsuits go through, but now.

We have had members of the Supreme Court, ranging from the late Chief Justice William Rehnquist to Justice Ruth Bader Ginsburg--certainly two differing philosophies--who have called upon the Congress to bring about a legislative solution because our courts are unable to handle all the cases that might come up. Let's be clear about that. There are some who say we are litigating forever on this, but the fact is our courts are unable to handle it. It cries out for a legislative solution.

I urge people to come to this with an open mind, vote it up or down, vote the amendments up or down. I have heard some opponents quoted as being prepared to demagog this bipartisan bill. This bill did not just suddenly spring

out of nowhere; it was worked on in such a way that it is a bipartisan bill. And I might say there is pain in it for everybody. Everybody has had to give something in this. The Senator from Pennsylvania did not get everything he wanted. I did not get everything I wanted. The stakeholders who came to the table, virtually all of them openly and honestly, they gave up a lot on it. But the people who are suffering from asbestos poisoning in whatever form are the ones waiting for us to act.

The time is right to act. We can pass a bipartisan bill. I believe the other body would be glad to see such a bill. The President has stated publicly and he certainly stated privately to both Senator Specter and myself that he is behind taking action. Everybody cries out for some bipartisan action around here. This is one of those cases where Republicans and Democrats could come together, where the Congress and the White House could work together, and actually those who benefit will be the people suffering. We ought to get on with it.

Exhibit 1

U.S. Senate,

Washington, DC, January 25, 2006.

Dear Colleague: The Patriot Act is due to expire on

February 3, 2006 after being extended from its prior

expiration date of December 31, 2005.

The Senate is faced with three options:

1. Invoke cloture on the Conference Report and pass the

Conference Report as the House of Representatives has already

done;

2. Extend the present Act for a period of time. The current

discussion with the House is to extend it for four years; or

3. Let the Act expire.

To my knowledge, no one wants to let the Act expire.

Technically, the House/Senate Conference has been

discharged with the filing of the Conference Report. While it

is always possible to take another course of action such as

changing the Conference Report if there is unanimous

agreement, the House has taken the emphatic position that

there will be no more concessions from the Conference Report

and the House is very firm in this position.

Everyone, including those who are urging further House

concessions, agrees that the Conference Report is much more

protective of civil rights than the current Patriot Act. I am

enclosing a side-by-side comparison. While I would have

preferred the Senate bill, we do have a Bicameral System and

the Conference Report was hammered out after extensive

negotiations with significant concessions by the House.

Senate proponents for further House concessions had, at one

point, stated their willingness to sign the Conference Report

if three conditions were met including a change in the sunset

date from seven to four years. Those conditions were met and

then there was insistence on further concessions.

I urge the Senate to invoke cloture and pass the Conference

Report as the best of the available alternatives.

Sincerely,

Arlen Specter.

I understand our side will also get an additional 30 seconds.

Mr. President, I ask unanimous consent that we may go a couple of minutes beyond 12 o'clock.

Mr. President, I appreciate the compliment of the Senator from Alabama. I have spent 31 years in the Senate. I take my role in the Senate very seriously. I believe we should be the conscience of the Nation. As I have said many times, only 18 people get to publicly ask questions of the Supreme Court nominees. They are the 18 Members of the Senate Judiciary Committee. We are asking those questions on behalf of almost 300 million Americans, and then 100 of us get a chance to vote on it.

While the Senator from Alabama is still on the floor, I note that there seem to be talking points going around that the Democratic leader, Senator Reid, has been lobbying to make this a party-line vote. I don't know where those talking points came from. I have heard them in different places. The Democratic leader was asked about that yesterday by the press in open session. He said it is absolutely not so. I am the ranking member of the Senate Judiciary Committee. Just as nobody from leadership has lobbied me on now-Chief Justice Roberts when I voted for him, nobody has lobbied me on Judge Alito; nor have I lobbied anybody else, and nor have I heard of anybody who has been lobbied.

What the distinguished senior Senator from Nevada, the Democratic leader, has said over and over again is that this is a vote of conscience. Every Senator has to search his or her own conscience. In fact, I was also concerned when the distinguished Republican leader opened the debate on this nomination by complaining that those opposing Judge Alito are smearing a decent and honorable man. Mr. President, again, out of almost 300 million Americans, only 100 of us get a chance to say whether this man will go on the Supreme Court, where he can sit there for years, decades even, and where he is supposed to be the ultimate check and balance and guardian of our rights. To say that by opposing him is smearing him, that is not so.

Senator Specter and I held a fair and open hearing on him. Democrats had substantive and probing questions to try to learn more about Judge Alito, and some Republicans did the same. These complaints about the treatment of Judge Alito ring hollow after President Bush was forced by an extreme faction of his own Republican Party to withdraw his first choice for the vacancy, Harriet Miers. It was a humiliation of the President by an extreme faction in his party. Within hours of the time he nominated her, many groups on the far right criticized the nomination, and a number of Republican Senators raised serious concerns calling for a thorough hearing and a probing inquiry in light of their concerns about her record.

The same groups on the right immediately embraced Samuel Alito after they had forced Harriet Miers to be withdrawn. The same Republican Senators who said they needed to learn more about Harriet Miers' judicial philosophy before they could vote to confirm her are now doing an about face and criticizing Democrats for saying they want to do the same type of inquiry for Judge Alito. President Bush buckled to pressure and withdrew the nomination for Harriet Miers because she didn't pass the litmus test and because there were those who said they were not sure how they would vote.

The third nomination--Judge Alito's--people applauded, implying that here we have somebody who we know how he will vote, so he is fine.

Democratic Senators are taking their constitutional duties seriously. We have a single fundamental question: Will the Senate serve its constitutional role and preserve the Supreme Court as a constitutional check on the expansion of presidential power?

A nominee's views on Executive power and the checks and balances built by the Founders into our constitutional framework should always weigh heavily in hearings for those nominated to the Supreme Court. Executive power issues were the first issues I raised with Chief Justice Roberts at his confirmation hearing, and they were the first issues I raised with Judge Alito.

The reason presidential power issues have come to dominate this confirmation process is that we have clearly arrived now at a crucial juncture in our Nation, and on our highest court, over the question of whether a President of the United States is above the law. The Framers knew that unchecked power leads to abuses and corruption, and the Supreme Court is the ultimate check and balance in our system. Vibrant checks and balances are instruments in protecting both the security and the liberty of the American people.

This is a nomination that I fear threatens the fundamental rights and liberties of all Americans, now and for generations to come. One need only look to the White House to see the practical effects of such an erosion of those rights and liberties. This President is prone to unilateralism and assertions of Executive power that extend all the way to illegal spying on Americans.

This President is in the midst of a radical realignment of the powers of the Government and its intrusiveness into the private lives of all Americans, Republicans and Democrats. Frankly, this nomination is part of that plan for the intrusion into our private lives. I am concerned that if we confirm this nominee, it will further erode checks and balances that have protected our constitutional rights for more than 200 years. It is not overstating the case to say this is a critical nomination. It is one that can tip the balance on the Supreme Court radically away from the constitutional checks and balances and the protection of Americans' fundamental rights.

This past week, I introduced a resolution to clarify what we all know, that the congressional authorization for the use of military force against Osama bin Laden did not authorize warrantless spying on Americans, as the administration has now claimed. I thought--we all thought--that when we as Democrats joined in the bipartisan authorization of military action against Osama bin Laden more than 4 years ago, our action would have been more effective and that we would have by now succeeded in ridding the world of that terrorist leader. We gave the President all the authority he needed to go after Osama bin Laden, and we thought with the great power of this country he would have gone out and caught him. He didn't. They averted our special forces out of Afghanistan and into Iraq before we even announced we were going to go to war against Iraq. We lost the opportunity to catch Osama bin Laden, the man who did order the attacks on America.

Now we find the administration, instead of saying sorry we didn't catch Osama bin Laden, even though you gave us the authority, we now want to use that authority as legal justification for a covert, illegal spying program on Americans.

As Justice O'Connor underscored very recently, even war ``is not a blank check for the President when it comes to the rights of the Nation's citizens.''

Now that the illegal spying on Americans has become public, the Bush administration's lawyers are contending that Congress authorized it. The September 2001 authorization to use military force did no such thing. It did not authorize illegal spying on Americans. Republican Senators know it, and some have been courageous to say so publicly. The fact is, we all know it. The liberties and rights that define us as Americans and the system of checks and balances that serve to preserve them should not be sacrificed to threats of terrorism or to the expanding power of the Government. Security and liberty are not mutually exclusive values in America. We should have both, and we can have both, so long as we have adequate checks and balances and with the extra effort it takes to chart the right course to preserve our liberties as we preserve our security.

We are constantly reminded of what Benjamin Franklin said: People who give up their liberties for security deserve neither. The terrorists win if they frighten us into sacrificing our

freedoms--something I said in the days following 9/11, and I believe it just as strongly today.

Just after 9/11, I joined with Republicans and Democrats--I was at that time chairman of the Judiciary Committee, in round-the-clock efforts to update and adapt our law enforcement powers, and we did. The law became known as the USA PATRIOT Act. It is obvious they missed a lot of the signals that were out there. It is obvious they had ignored the evidence that was before them that might have stopped the terrorists from striking us, but we didn't make those accusations, we didn't say then--let's find out all the things you did wrong that allowed us to be hit on your watch. Instead, during those days, we asked the Bush administration, what do you need, tell us what you need so it doesn't happen again, whether it is on your watch or anybody else's.

In answering that question, they never asked us to amend the Foreign Intelligence Surveillance Act to accommodate spying on Americans they now say they will undertake, even though the law doesn't allow it. The law does contain an expressed reservation for the 15 days following a declaration of war. But neither Attorney General Ashcroft nor anyone else in the Bush administration at that time or any time afterward sought congressional authorization for this illegal NSA spying program.

Actually, Attorney General Gonzales admitted in a recent press conference that the Bush administration did not seek legal authorization for this kind of spying on Americans because ``it was not something we could likely get.'' We don't know; he never asked. But consider that damning admission. It is utterly inconsistent with the Bush administration's current argument that Congress authorized warrantless spying on Americans, when they now are saying they didn't ask for it because they couldn't get it. They can't have it both ways, although Lord knows they are trying as hard as they can to have it both ways.

The Bush administration's after-the-fact claims about the breadth of that 2001 resolution are the latest in a long line of manipulations and another affront to the rule of law, American values, and traditions. We have also seen such overreaching in the Justice Department's twisted interpretation of the torture statute, in the detention of suspects without charges, the denial of access to counsel, and in the misapplication of the material witness statute as a sort of general preventive detention law. Such abuses serve to harm our national security as well as our civil liberties. In fact, sources at the FBI reportedly say that much of what was forwarded to them to investigate from the NSA spying program was worthless and led to dead ends. That is a dangerous diversion of our investigative resources.

When they talk about thousands of al-Qaida conversations they have to monitor going to Americans--thousands? Interesting. So how many people have been arrested because of those thousands? Two thousand people? Fifteen hundred people? One thousand? Five hundred? Four hundred? Three hundred? Thirteen? Seven? Five, three, four, two, one? Or none?

A central question, therefore, during the hearings of this nomination was whether Judge Alito would serve as an effective constitutional check on the Presidency. Preventing Government intrusions into the personal privacy and freedoms of Americans is one of the hallmarks of the Supreme Court. They are not supposed to be in the pocket of any administration. After all, this Senate, when it was overwhelmingly Democrat, under Democratic control--one of the most popular Democrats in my lifetime was President Franklin Roosevelt. When he wanted to pack the Supreme Court, when he wanted to manipulate the Court, it was the Democrats who stood up and said no because they felt the Court should be a check and balance. Here there is no assurance that Judge Alito will serve as an effective check and balance on Government intrusions into the lives of Americans. In fact, his record suggests otherwise.

We know that Samuel Alito sought to justify absolute immunity for President Nixon's Attorney General John Mitchell from lawsuits for wiretapping Americans, among other violations of their privacy. He was asking for immunity even if the Attorney General acted willfully to violate people's rights. This is the man who is going to be a check and balance on our rights?

We know that as a judge, Samuel Alito was willing to go further than even Michael Chertoff, the former head of the Ashcroft Justice Department's Criminal Division and the current Secretary of the Department of Homeland Security, in excusing Government agents for searches not authorized by judicial warrants. This is the man who is going to be a check and balance?

We know Judge Alito would have excused a strip search of a 10-year- old girl, even though the search warrant did not authorize this. This is a man who is going to be a check and balance?

In both Doe v. Groody and Baker v. Monroe Township, Judge Alito dissented and would have allowed invasive searches beyond the scope of warrants. This is a man who is going to be there as a check and balance?

I was a prosecutor for eight years, and I am keenly aware of the difficulties faced by police officers in the course of their duties. I support vigorous law enforcement tools. But I am also mindful of the careful balance that must be struck in order to preserve our individual liberties. One of the most important Fourth Amendment protections we have for our privacy is the requirement that a judicial officer ensure that the Government's intrusion on citizens' privacy is based on probable cause and that it is reasonable. It is the judge who determines whether to authorize the search and the extent of the search to be permitted. The officer's affidavit and the warrant are not mirror images of each other. The magistrate is not a rubber stamp. The role of the magistrate in issuing warrants, a role Judge Alito has too easily cast aside on the bench, is a crucial check in maintaining the right balance so that all Americans can have both security and liberty.

It is worth taking a few moments to recount the facts of these cases, because I am concerned that Judge Alito has too little regard for the consequences arising from allowing these kinds of invasive searches beyond those authorized by warrants.

In the Doe case, the 10-year-old girl and her mother were subjected to what the Third Circuit termed an ``intrusive'' strip search, even though they were not suspected of nor charged with any wrongdoing. The warrant that the Government agents had obtained from a judicial officer authorized a search for a man living at a certain address. Yet when they arrived at the address they encountered only the 10-year-old and her mother and proceeded to strip search them. There was no contention that they posed a risk to the agents.

Similarly, in Baker v. Monroe Township, a mother and her three teen- aged children were detained and searched as they arrived at the home of the mother's adult son. The woman and her teen-aged children did not live at the house, were not suspected of any wrongdoing, were not named in the warrant, and were not even inside the premises when the officers arrived on the scene. They were nevertheless all ordered at gunpoint to lie on the ground. They were subsequently handcuffed, taken into the house, further detained, and their property and persons were searched.

In both cases, the Third Circuit held that the Government agents had acted inappropriately and had violated the Fourth Amendment when they conducted these invasive searches of innocent persons who were not named in the search warrants. When I asked him why he, in contrast, looked beyond the ``four corners'' of the warrant that was actually signed by the magistrate in Doe, Judge Alito replied that the issue was a ``technical'' one. Repeatedly when pressed about this case, Judge Alito insisted that the issue was merely ``technical.''

The illegal strip search was not ``technical'' for the 10-year-old girl. Then-Judge Chertoff understood that this issue is far from technical, but, rather, embedded in the core protections of our individual privacy and dignity from governmental intrusion. In the court's opinion, rejecting the rationale of Judge Alito's dissent, Judge Chertoff wrote: ``This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants.''

Judge Alito tried to find ``technical'' ways to excuse the illegality. Judge Alito's dissent relied on the affidavit accompanying the warrant. To the extent the affidavit had requested a search of ``all occupants'' of the home, it did so based on a concern about concealment of drugs by ``frequent visitors that purchase [drugs]'' or by ``persons who do not actually reside or own/rent the premises''--not by a 10-year-old girl living in the home. Judge Alito ignored this language in the affidavit, in order to misconstrue the affidavit more broadly and to then substitute it for the magistrate's warrant.

Judge Alito's rationale was that because the officers' initial request was broad, it could be assumed that the magistrate intended to grant broader search authority than that set forth in the warrant. The Supreme Court had specifically rejected this type of reasoning in the case of Ramirez v. Groh, which was decided a month before Judge Alito dissented in Doe. In Groh, the Supreme Court held a search warrant invalid, citing the sharp distinction the law draws between what is authorized in a warrant, and what was requested. Judge Alito went to great lengths in a futile and hyper-technical attempt to distinguish the Supreme Court's decision in Groh.

Similarly, in Baker v. Monroe Township, Judge Alito saw the facts in the light most favorable to the Government, rather than to the mother and her children. That is directly contrary to the standard that should be used when reviewing an order granting summary judgment against a party. In his dissent, Judge Alito found that although the warrant in question did not describe any persons to be searched, it nevertheless was appropriate for officers to search and handcuff a mother and her three teen-aged children as they approached a relative's home. Judge Alito stated in his dissent that even though the mother and her three children were not named in the warrant and there was no reason to suspect them of any wrongdoing, ``to [his] mind'' the warrant had been intended to authorize a search of ``any persons found on the premises.'' Judge Alito went so far as to excuse the officers' failure to request or obtain a warrant permitting the search of persons on the premises as sloppiness.

The Third Circuit disagreed with Judge Alito, holding that because the search warrant did not authorize the search, it was unlawful and in violation of the Fourth Amendment. The other judges hearing the case found fault with Judge Alito's willingness to look beyond the warrant to excuse the unauthorized and unlawful searches. In Baker, Judge Alito inserted himself into the case in an active attempt to excuse misconduct when the warrant did not authorize the Government intrusion.

Unfortunately, Doe and Baker are not outliers in Judge Alito's record. As troubling as his dissents are in those two cases, they are only part of a broader pattern of deference to the Government that shows far too little concern for individual liberties and rights, which find their ultimate protection in the Supreme Court.

Judge Alito's record on the use of excessive force is also troubling. It goes back at least as far as his time in the Meese Justice Department. I find particularly troubling a 1984 memorandum he wrote to the Solicitor General regarding a case called Tennessee & Memphis Police Department v. Garner. In a long memo in which he repeatedly wrote in the first person proclaiming his own beliefs, Samuel Alito argued that there were no constitutional problems with a police officer shooting and killing an unarmed teenager who was fleeing after apparently stealing $10 from a home. A year later, the Supreme Court ruled 6-3 against Judge Alito's position in that case and reiterated the law against use of ``deadly force'' if a suspect presents no danger. In contrast to Justice O'Connor's dissent on federalism grounds, Samuel Alito's memo makes no mention of the human tragedy of the events nor did he think the Constitution even applied since he argued that the unjustified shooting was not technically a ``seizure.'' Most troubling is Judge Alito's statement in his legal memo endorsing ``the general principle that the state is justified in using whatever force is necessary to enforce its laws.'' I fear that this deference to the Government, which he has continued on the bench, makes him ill- suited to be an effective check on the Government or protector of individual liberties and rights.

The Supreme Court is the ultimate check and balance in our system. The independence of the Court and its members is crucial to our democracy and way of life. The Senate should never be allowed to become a rubberstamp, and neither should the Supreme Court.

And so we owe it to the American people of today, and the Americans of generations to come, to ask and answer several essential questions: Can this President, or any President, order illegal spying on Americans? Can this President, or any President, authorize torture, in defiance of our criminal statutes and our international agreements? Can this President, or any President, defy our laws and Constitution to hold American citizens in custody indefinitely without any court review? Can this President, or any President, choose which laws he will follow and which he will not, by quietly writing a side statement when he signs a bill into law? These are some of the most vital questions of our era, and these are among the most vital questions that confront the Senate in considering this nomination to our highest court. Judge Alito's record, and his responses--and his failure to adequately answer questions about these issues--are deeply troubling.

No President should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine presidential claims of government power. Our system was designed to ensure a balance and to protect against overreaching by any branch.

A Democratic Senate stood up to one of the most popular and powerful Democratic Presidents of all time when it rejected President Franklin Roosevelt's court packing scheme. The Senate should not be a rubber stamp to this President's effort to pack the court with those who would give him unfettered leeway. I will not lend my support to an effort by this President to move the Supreme Court and the law radically to the right and to remove the final check within our democracy.

I voted for President Reagan's nomination of Justice Sandra Day O'Connor, for President Reagan's nomination of Justice Anthony Kennedy, for President Bush's nomination of Justice Souter, and for this President's recent nomination of Chief Justice Roberts. I cannot vote for this nomination.

At a time when the President is seizing unprecedented power, the Supreme Court needs to act as a check and to provide balance. Based on the hearing and his record, I have no confidence that Judge Alito would provide that crucial check and balance.

I see the distinguished senior Senator from Massachusetts in the Chamber. I am prepared at this point to yield to the distinguished Senator and former chairman of the Judiciary Committee and one whose protection of the civil liberties of all of us is unparalleled in the history of this body.

Mr. President, we have Senators who wish to speak.

On several occasions, but publicly and privately, I have asked the distinguished senior Senator from Utah if he purports to quote me, to try to at least get within the ballpark of accuracy. I realize that is probably a failing and useless request after hearing him misquote me again the last few minutes, but I renew the request, and I hope that he would do that.

To suggest that I have said--I would like to find the quote where I said that Judge Alito, all by himself, would do away with all the liberties of Americans.

I see the distinguished senior Senator from Florida, and I yield to the Senator.

Mr. President, today I am submitting this resolution expressing the sense of the Senate that the Authorization for Use of Military Force, which Congress passed to authorize military action against those responsible for the attacks on September 11, 2001, did not authorize warrantless eavesdropping on American citizens.

As Justice O'Connor underscored recently, even war ``is not a blank check for the President when it comes to the rights of the Nation's citizens.''

Now that the illegal spying of Americans has become public and the President has acknowledged the 4-year-old program, the Bush administration's lawyers are contending that Congress authorized it. The September 2001 Authorization to Use Military Force did no such thing. Republican Senators also know it and a few have said so publicly. We all know it. The liberties and rights that define us as Americans and the system of checks and balances that serve to preserve them should not be sacrificed to threats of terrorism or to the expanding power of the government. In the days immediately following those attacks, I said, and I continue to believe, that the terrorists win if they frighten us into sacrificing our freedoms and what defines us as Americans.

I well remember the days immediately after the 9/11 attacks. I helped open the Senate to business the next day. I said then, on September 12, 2001:

``If we abandon our democracy to battle them, they win. . .

. We will maintain our democracy, and with justice, we will

use our strength. We will not lose our commitment to the rule

of law, no matter how much the provocation, because that rule

of law has protected us throughout the centuries. It has

created our democracy. It has made us what we are in history.

We are a just and good Nation.''

I joined with others, Republican and Democrats, and we engaged in round-the-clock efforts over the next months in connection with what came to be the USA PATRIOT Act. During those days the Bush administration never asked us for this surveillance authority or to amend the Foreign Intelligence Surveillance Act to accommodate such a program.

Just as we cannot allow ourselves to be lulled into a sense of false comfort when it comes to our national security, we cannot allow ourselves to be lulled into a blind trust regarding our freedoms and rights. The Framers built checks and balances into our system specifically to counter such abuses and undue assertions of power. We must remain vigilant on all fronts or we stand to lose these rights forever. Once lost or eroded, liberty is difficult if not impossible to restore. The Bush administration's after-the-fact claims about the breadth of the Authorization to Use Military Force--as recently as this week, in a document prepared at the White House's behest by the Department of Justice--are the latest in a long line of manipulations of the law.

We have also seen this type of overreaching in that same Justice Department office's twisted interpretation of the torture statute, an analysis that had to be withdrawn; with the detention of suspects without charges and denial of access to counsel; and with the misapplication of the material witness statute as a sort of general preventive detention law. Such abuses serve to harm our national security as well as our civil liberties.

In addition, the press reports that the Pentagon maintains secret databases containing information on a wide cross-section of ordinary Americans, and that the FBI is monitoring law-abiding citizens in the exercise of their First Amendment freedoms. When I worked with Senator Wyden and others in 2003 to stop Admiral Poindexter's Total Information Awareness program, an effort designed to datamine information on Americans--and we meant it. And when I added a reporting requirement on Carnivore, the FBI's e-mail monitoring program, to the Department of Justice Authorizations law in 2002, we meant it. We demanded that Congress be kept informed and that any such program not proceed without congressional authorization.

The New York Times reported that after September 11, 2001, when former Attorney General John Ashcroft loosened restrictions on the FBI to permit it to monitor Web sites, mosques, and other public entities, ``the FBI has used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities.'' When I learned of such efforts and that they reportedly included monitoring Quakers in Florida and possibly Vermont, I wrote to the Secretary of Defense demanding an answer. That was a month ago. So far he has refused to provide that answer.

Now we have learned that President Bush has, for more than four years, secretly allowed the warrantless wiretapping of Americans inside the United States. And we read in the press that sources at the FBI say that much of what was forwarded to them to investigate was worthless and led to dead ends. That is a dangerous diversion of our investigative resources away from those who pose real threats, while precious time and effort is devoted to looking into the lives of law- abiding Americans.

The United States Supreme Court has consistently held for nearly 40 years, since its landmark decision in Katz v. United States, that the monitoring and recording of private conversations constitutes a ``search and seizure'' within the meaning of the Fourth Amendment. Congress enacted the Foreign Intelligence Surveillance Act of 1978, FISA, to provide a legal mechanism for the government to engage in electronic surveillance of Americans in connection with intelligence gathering. The Foreign Intelligence Surveillance Act, along with the criminal wiretap authority in title 18 of the United States Code, together provide the exclusive means by which the Government may intercept domestic electronic communications pursuant to the rule of law.

The Foreign Intelligence Surveillance Act has been amended over time, and it has been adjusted several times since the 9/11 attacks. Indeed, much of the PATRIOT Act was devoted to modifying FISA to make it easier to obtain FISA warrants. But the PATRIOT Act did not amend FISA to give the Government the authority to conduct warrantless surveillance of American citizens.

If the Bush administration believed that the law was inadequate to deal with the threat of terrorism within our boundaries, it should have come to Congress and sought to change the law. It did not. Indeed, Attorney General Gonzales admitted at a press conference on December 19, 2005, that the Administration did not seek to amend FISA to authorize the NSA spying program because it was advised that ``it was not something we could likely get.''

I chaired the Senate Judiciary Committee in 2001 and 2002, when the President's secret eavesdropping program apparently began. I was not informed of the program. I learned about it for the first time in the press last month. I thank heaven and the Constitution that we still have a free press.

The Bush administration is now arguing that when Congress authorized the use of force in September 2001 to attack al Qaeda in Afghanistan, it authorized warrantless searches and eavesdropping on American citizens. I voted for that authorization, and I know that Congress did not sign a blank check. The notion that Congress authorized warrantless surveillance in the AUMF is utterly inconsistent with the Attorney General's admission that Congress was not asked for such authorization because it was assumed that Congress would say no.

Former Senate Majority Leader Tom Daschle, who helped negotiate the use of force resolution with the White House, has confirmed that the subject of warrantless wiretaps of American citizens never came up, that he did not and never would have supported giving authority to the President for such wiretaps, and that he is ``confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.''

Senator Daschle also noted that the Bush administration sought to add language to the resolution that would have explicitly authorized the use of force ``in the United States,'' but Congress refused to grant the President such sweeping power. Maybe that was this Administration's covert way to seek the authority to spy on Americans, but Congress did not grant any such authority.

Spying on Americans without first obtaining the requisite warrants is illegal, unnecessary and wrong. No President can simply declare when he wishes to follow the law and when he chooses not to, especially when it comes to the hard-won rights of the American people.

The resolution I submit today is intended to help set the record straight. It is an important first step toward restoring checks and balances between the co-equal branches of government. I urge all Senators to support it.

Mr. President, I wish today to acknowledge the good work of Bill O'Neill, a document checker at the Burlington International Airport in Vermont.

I routinely fly between Burlington and Washington, and it is always a pleasure to see Bill at the ID checking stand. He and I have been friends for decades.

I was pleased to see an article about Bill in the December 27, 2005, Burlington Free Press. I ask that a copy of the article be printed in the Record. I know that once they read it, my colleagues will look forward to traveling through the Burlington airport as much as I do.

The article follows.

[From the Burlington Free Press, Dec. 27, 2005]

Security With a Smile, Airport Screener Bill O'Neill Helps Take Stress

Out of Flying

(By Emily Guziak)

South Burlington.--Bill O'Neill's job does not require that

he fawn over babies.

Nor does it require that he greet everyone he meets by name

with a heartfelt good morning, put their various airline

receipts in order, hold cups of coffee, or provide tips on

how to switch planes at the next destination.

O'Neill, a document checker for PrimeFlight Aviation

Services at Burlington International Airport, is simply

required to check departing passengers' identification,

boarding passes and number and size of carry-on items.

For frequent travelers, the document checker is often the

nameless, faceless, overly efficient person hurrying

passengers into inevitable security lines. For bleary-eyed,

often-harried early morning travelers in Burlington,

O'Neill's station at Gate One is an oasis in the rush of

processing passengers through ticket check-in and

Transportation Security Administration security clearance.

``He's brilliant; he's great,'' said business traveler J.P.

Tardy, of Charlotte, N.C., queuing up in the security line

for United Airline's 7:48 a.m. flight to Chicago on a recent

weekday morning. ``He absolutely makes this airport.''

O'Neill, 72, is the document checker for United Airlines

and US Airways passengers, from 4:30 a.m. to 12:30 p.m.

Thursdays, Fridays and Saturdays. His upbeat, helpful manner

never wavers, those working around him say.

``He's very people-oriented; people like him,'' said Mark

Salisbury, supervisor, transportation security officer, for

TSA at Burlington International Airport. Salisbury supervises

the security checkpoint near

O'Neill's station. ``He's worked in the business for a long

time, so I'm sure he's seen it all. He's just a very nice

guy. And he's very helpful, especially for older folks.''

``You feel like you're being greeted, rather than just

being moved into the line by a security person,'' said Deedee

O'Brien of Shelburne, en route to Los Angeles on the Chicago

flight. ``I think he was here when we traveled six months

ago. He's such a nice person.''

O'Neill's performance should be catching the attention of

all those marketing gurus out there trying to sell the

quintessential New England hometown atmosphere. At 6:30 a.m.,

as passengers went through O'Neill's station, the mood of

some travelers changed from tense to relaxed.

``He provides the best service I've ever had,'' said Dan

Grant, of Seattle, a weekly business traveler. ``If you fly a

lot and go through the larger airports, you can get kind of

beaten down. You're lucky if you can get a word out of people

in his job.''

He is in command at his post. ``You can put that ID away;

you won't need it anymore today and your boarding pass to

Philly is right here,'' O'Neill quietly and calmly told one

of the people in the steady stream of departing passengers.

``I thank you, and you have a good day.''

``He takes the hassle out of what travel has become,'' said

Andy Tomlinson of South Burlington, on her way ``to go home

and do the Santa thing'' with family in California. ``He's

great.''

A United Airlines employee for 32 years, O'Neill retired in

1998 and returned to work in March for extra income. He is

employed by PrimeFlight Aviation of Nashville, Tenn. The

company has 4,000 employees in 50 airports in the United

States providing a variety of services. In Burlington, United

Airlines and US Airways contract with PrimeFlight to provide

five document checkers.

O'Neill also has the task of informing passengers when they

have been randomly selected by the airlines for an additional

search, and must proceed to the line to their right, rather

than left. ``People can resent it, especially if they're in a

hurry,'' O'Neill said.

``I tell them, I `fly free because I have a golden pass,

and every time I fly the computer randomly selects me because

it reads my ticket as cash, one-way and automatically makes

me a selectee. I tell them their special search is no

different than mine and it often makes them feel better.;''

``He is just fantastic,'' said Thane Butt, of Shelburne,

flying to Chicago with her husband, Peter. Butt jokingly

asked the bushy-eyebrowed O'Neill if he was Andy Rooney.

``I've been asked that a few times,'' said the unflappable

O'Neill.

``He makes you feel like you're not just another person,''

said Dr. Alan Segal of South Burlington. ``And he's got one

of those faces; he looks like everyone's

grandfather.''

Mr. President, it has been said that a great test of morality is what people do when they have power. The fast-track budget reconciliation rules mean that the majority party can essentially do whatever it wants in a reconciliation bill if they act in lockstep. The reason is simple. Reconciliation debates in the Senate can only last 20 hours and the final version of the bill--a reconciliation conference report--only can be debated for 10 hours.

The majority party can even orchestrate a single meeting with conferees and immediately gavel it over almost when it starts, doing everything behind-the-scenes with no consultation and without sharing drafts of even sweeping policy changes in proposed major laws.

They not only can do such things, they just did them.

But let me start at the beginning. The President's budget proposal for programs under the oversight of the Judiciary Committee, issued in February of this year, called for a user fee on the manufacture and importation of gunpowder and other explosives of two cents per pound. The President requested that Congress enact these user fees--some called it a tax--to raise $600 million over the next five years. Because of that White House proposal on gunpowder and other explosives, the budget resolution of the other body called for the Judiciary Committee to meet a target of $600 million.

The Senate-passed budget resolution did not require any cuts to be made by the Judiciary Committee. This is the usual approach for the Judiciary Committee since the Committee controls few, yet very important, mandatory spending programs. For example, it is difficult to make significant reductions to mandatory programs, including: pensions for U.S. Judges; the Crime Victim's Trust Fund; salaries of U.S. Marshals; the Radiation Exposure Compensation Trust Fund; the Copyright Owners' Fund; the diversion control fee account of the Drug Enforcement Agency; border patrol salaries and expenses; the assets forfeiture fund for U.S. Marshals, and other sources. It is also difficult to increase Patent and Trademark Office fees or Copyright Office fees since there is not a compelling reason to do so.

In the end, in order to comply with the budget resolution, the Judiciary Committee of the Senate and the Judiciary Committee of the other body were required to come up with $300 million in revenue or to make $300 million in cuts.

The first casualty in this process was the White House proposal to tax gunpowder and other explosives. There was little support by the majority party for even making half the President's proposed increases in the gunpowder tax. Many other alternatives were considered by the majority party.

Finally, a proposal was worked out in the Judiciary Committee that had my support, and the strong support of universities and many business leaders. For example, the National Association of State Universities and Land-Grant Colleges, Motorola, Oracle, Sun Microsystems, Texas Instruments, Intel, Microsoft, Hewlett-Packard, Qualcomm, for high-tech workers. The House also included immigration fees in their proposal.

However, after an aborted conference meeting which started at 9 p.m. last Friday night, and ended a few minutes later, what has the Majority party proposed as a compromise on the immigration fees? They came up with increasing fees on all citizens to get into federal courts and into bankruptcy court. The bankruptcy fee increase raises some ironies. The increase in fees for citizens trying to seek judicial relief narrows access to courts.

So we have gone from the President's proposal to tax gunpowder and other explosives and mysteriously ended up with a tax on citizens to get into federal court and bankruptcy court. Nevertheless, the majority party--as long as they are in lockstep together--has nearly absolute power in a reconciliation bill that enjoys only limited debate. History will record what they have done with that power.

What is especially unfortunate is that the version of the reconciliation bill reported out by the Senate Judiciary Committee, and approved by the full Senate by unanimous consent to the Budget Reconciliation Act, was a bipartisan amendment offered by Senator Specter and myself to allocate the extra $278,000,000 in revenue provided from the Judiciary Committee markup on reconciliation to supplement funding that is demonstrably needed for the Bulletproof Vest Partnership Fund, programs authorized by the Justice For All Act, and a Copyright Royalty Judges Program.

The Judiciary Committee markup on its reconciliation title provided $278,000,000 more in revenue than was mandated by the Budget Resolution instructions.

The Specter-Leahy Senate proposal approved by the full Senate--would have provided $60,000,000 over the next five years for such initiatives as the Bulletproof Vest Partnership Program, to help law enforcement agencies purchase or replace body armor for their rank-and-file officers.

Recently, concerns over body armor safety surfaced when a Pennsylvania police officer was shot and critically wounded through his new vest outfitted with a material called Zylon, which is a registered trademark. The Justice Department has since announced that Zylon fails to provide the intended level of ballistic resistance.

Unfortunately, an estimated 200,000 vests outfitted with that material have been purchased--many with Bulletproof Vest Partnership funds--and now must be replaced. Law enforcement agencies nationwide are struggling to find the funds necessary to replace defective vests with ones that will actually stop bullets and save lives. Our Senate Judiciary provisions would have funded those efforts. Unfortunately, the majority party dropped this language.

Our Senate Judiciary language--approved by the full Senate--also provided more than $216,000,000 for programs authorized by the Justice For All Act of 2004, a landmark law that enhances protections for victims of Federal crimes, increases Federal resources available to State and local governments to combat crimes with DNA technology, and provides safeguards to prevent wrongful convictions and executions.

The Senate Judiciary Committee language also would have funded training of criminal justice and medical personnel in the use of DNA evidence, including evidence for post-conviction DNA testing. It would have promoted the use of DNA technology to identify missing persons. With these funds, State and local authorities would have been better able to implement and enforce crime victims' rights laws, including Federal victim and witness assistance programs.

State and local governments would have been able to apply for grants to develop and implement victim notification systems to share information on criminal proceedings in a timely and efficient manner. That language would have helped improve the quality of legal representation provided to both indigent defendants and the public in State capital cases.

Last, but certainly not least, our amendment provided $6,500,000 over five years for the Copyright Royalty Judges Program at the Library of Congress. The Copyright Royalty Distribution Reform Act of 2004 created a new program in the Library to replace most of the current statutory responsibilities of the Copyright Arbitration Royalty Panels program. The Copyright Royalty Judges Program was supposed to determine distributions of royalties that are disputed and set or adjust royalty rates, terms and conditions, with the exception of satellite carriers' compulsory licenses. The Senate-passed language would have helped pay the salaries and related expenses of the three royalty judges and three administrative staff required by law to support this program.

Unfortunately, instead of raising more funds than we needed through widely supported increases in immigration fees and using them for these law-enforcement and other programs we are instead going to increase the cost of access to federal courts and not fund any of these other priorities.

What may be the most troubling aspect of this abuse of power is that by substantially increasing fees to get

into federal courts the majority party raised $253 million more in revenue than it needed to meet the reconciliation target. That means that all the above priorities in the Senate-passed bill including bulletproof vests for law enforcement, use of DNA technology to identify missing persons, and better enforcement of crime victims' rights laws could have been included at only slightly reduced levels of support.

The Republican Congress has missed a great opportunity in this abuse of power.

Mr. President, I also must express my opposition to the irresponsible domestic budget policy that has been forwarded by the majority party. The Senate is being asked to approve spending and budget bills that make deep cuts to programs that serve some of our country's neediest citizens. A time of year typically signified by wishes of goodwill towards all, it is difficult to be anything but outraged by this attack on critical components of our social safety net.

While many in the majority party have claimed that these bills are needed in order to reduce the deficit, with the knowledge that the leadership will make passing massive tax cuts benefiting some of the wealthiest among us a priority during the next session, this argument is simply disingenuous.

Instead of putting the country on the road to fiscal security, these bills expose the agenda of the majority that blatantly undermines American families and make clear where the priorities of the majority party lie. It is not with the family that relies on Medicaid for their health insurance, the student who, without student aid, cannot afford to attend college, or the mother who needs childcare so that she can go to work and put food on the table for her family. Nor is it with the single mother who has been abandoned without child support, the grandparent raising their grandchild on a fixed income, or the worker who has lost his or her job and is trying to be retrained.

No, the priorities of this majority party consistently lie with the powerful special interests and big drug companies. At every opportunity the Republican leadership has had to choose between supporting the American people or wealthy corporate interests, and they have sided with the corporate interests. Even by the standards of this first session of the 109th Congress, with the consistent erosion of consumer protections and support for American working families, these bills sink to new lows. As a result, dozens of health, education, labor, and human services programs will be cut and millions of people who rely on these programs will suffer.

Some of the most egregious policies in these bills expose the disparity between the treatment of big drug companies and those individuals who must rely on Medicaid as their primary form of health care. With numerous options on the table, the Republican leadership chose to use the budget reconciliation bill to increase Medicaid co- payments and premiums, potentially eliminated federal standards for comprehensive Medicaid care, and created highly restrictive rules governing the transfer of assets for those who require care in a nursing home. Rather than do away with an unnecessary multi-billion dollar slush fund for insurers and drug companies, a small group of Congressional budget writers has chosen to freeze home health payments that ensure seniors are able to receive care in the comfort of their own homes.

In addition, this year's Labor, Health and Human Services, Labor-HHS, appropriations bill shortchanges our country's rural health programs. For instance, the bill eliminates five programs, including funding for Rural EMS and Health Education Training Centers, which are critical to the fragile network of the rural health care infrastructure.

One of the most disappointing aspects of the Labor-HHS Bill was the treatment of the National Institutes of Health, NIH. Not since 1970 has the NIH been provided an increase as small as the one contained in this bill. As a result, the vital medical research being done around the country, including in my home state at the University of Vermont, will suffer. The search for cures to innumerable diseases will be slowed and foreign competitors will be given a chance to exploit our short- sightedness.

Not only will this Congress take the step of cutting education for the first time in ten years, these will be the biggest cuts in history to student loan programs. A remarkable $12.7 billion will be cut from student aid programs so that there will be no increase to the Pell Grant for an astonishing fourth year in a row. While making changes to eliminate loopholes in student loan lending laws, it appears that small lenders that specialize in providing comprehensive loan counseling to students have been given short-shrift. It appears that from almost every angle, students are assaulted by these policies.

For those education programs that are lucky enough to escape the knife, they will either be frozen or given minimal increases. I am curious to know how our Nation's schools can be expected to meet and exceed the standards set forth in the No Child Left Behind Act, when Congress is content to slash funding by three percent, leaving these programs to sink more than $13 billion below their authorized levels. It has been almost 5 years since Congress passed this legislation, and we have consistently failed to meet our commitment to students, parents and teachers.

In what is becoming a hallmark of this Republican leadership, these conference reports are loaded down with controversial legislation approved by neither body. Despite bipartisan support for legislation approved by the Senate Finance Committee earlier this year, Senators are being asked to approve a five-year reauthorization of the Temporary Assistance to Needy Families Program that would impose strict new working requirements with only nominal new funding for child care support. At the same time Congress asks single mothers to work longer hours, it cuts money for child support enforcement, dollars that are used to track down deadbeat dads.

Though it is a sad commentary on the current state of affairs when one of the lone bright spots for health and human service programs is that this bill includes no cuts to the Food Stamp program, I would be remiss if I did not mention my appreciation that this program remained unscathed. While protecting Food Stamps should be hailed as a victory, the Community Food and Nutrition Program, a modestly sized program that helps support anti-hunger advocacy groups, was not so fortunate. The work being done on the local levels by these groups is extremely important, and it is my hope that these funds will be restored next year.

The programs and services I have mentioned are but a few of the dozens of cuts that will negatively impact families across the country. As we usher out the final days of 2005 and the 1st Session of the 109th Congress, I am saddened that the last actions of this body will be to pass such harmful bills. After more than 30 years in the Senate, I know that we can do better and it is my sincere hope that when we return next year, we will reverse the wayward direction set by such policies and implemented by such legislation.

Mr. President, might I direct a question to the distinguished majority leader through the Chair?

Mr. President, if I could have the attention of the majority leader, am I correct in my understanding that the Sununu-Leahy et al 6-month extension of the PATRIOT Act has been included? And that is where we are with the conference report still on the calendar, but the 6 months will be passed?

Sununu-Leahy et al. Thank you. I thank the Chair. I thank the two distinguished leaders.

If I might note for a moment, both the distinguished Republican leader and the Democratic leader have worked

extremely hard on this, as has the Senator from New Hampshire, Mr. Sununu, and Mr. Gregg and others, and, of course, the distinguished chairman of the committee, Senator Specter.

I think this is a reasonable conclusion that will allow the Judiciary Committee to look at some of the questions which have legitimately been raised and would not have been heard had this gone through otherwise.

When the Department of Defense authorization bill passed the Senate on November 15, I spoke of my concerns about an amendment that limits the rights of detainees in U.S. custody at Guantanamo Bay, Cuba, to file habeas corpus petitions in federal court. That amendment was modified in conference to further erode these rights, and then identical text was added to the conference report on Defense appropriations to ensure that the language was enacted into law in one bill or the other.

Debates over the treatment of detainees have dominated our discussions of both the Defense authorization and appropriations bills. Senator McCain waged a battle with the White House and his own party to ensure that his amendment requiring the humane treatment of detainees was retained in the conference reports. I commend Senator McCain and the members of the Congress who have fought to address these issues. Despite calls from many of us over recent years, the legislative branch has not met its obligation of oversight and policymaking in this area. I am encouraged that more than 18 months after the revelation of atrocities at Abu Ghraib, we are finally willing to confront this issue.

The administration fought this provision for months, with the President vowing to veto any bill that contained it. But after months of threats and backdoor lobbying, the White House finally recognized that it could not win with a policy that granted itself the authority to use torture or cruel and inhumane treatment in interrogations.

Unfortunately, the positive steps we take today in adopting the McCain amendment are undercut by the modified Graham-Levin amendment in the conference report. As I just noted, I expressed concerns about the Graham-Levin text, and voted against it, when it passed the Senate. At that time, it reflected a modest improvement over an earlier version offered by Senator Graham. Now, it has come almost full circle, and is deeply troubling.

The Graham-Levin amendment as it passed the Senate would deny prisoners that the administration claims are unlawful combatants the right to challenge their detention in a petition for a writ of habeas corpus. At no time in the history of this Nation have habeas rights been permanently cut off from a group of prisoners. Even President Lincoln's suspension of habeas was temporary. The Supreme Court has held numerous times that enemy combatants can challenge their detention. The new version of this text, the text that was added to the conference report, goes even further. It prohibits any lawsuit against the United States brought by a Guantanamo detainee for any reason. This means that while the McCain Amendment requires humane treatment of detainees, the substituted text of the Graham-Levin Amendment provides no remedy whatsoever when detainees are mistreated. The result is that Guantanamo could become the legal black hole that the administration has long argued it should be. The Supreme Court rejected that argument in Rasul v. Bush in 2004.

I am also deeply troubled by other provisions added in conference. The conference report allows a combatant status review tribunal, an administrative review board, or a similar tribunal to consider statements obtained as a result of coercive interrogation, so long as the tribunal assesses the ``probative value'' of the statement. With the passage of the McCain amendment, I had hoped that the Congress was finally prepared to acknowledge that statements obtained by coercion have no value.

A prime example of how abusive interrogation techniques elicit bad intelligence was reported on December 9, 2005, in The New York Times. The article states that the ``administration based a crucial prewar assertion about ties between Iraq and al Qaida on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment.'' Just last week, at a speech in Philadelphia, a member of the audience asked the President why the administration continually seeks to link the 9/11 attacks with the invasion of Iraq in spite of the fact that Iraq was not involved in the events of 9/11.

It is beneath the values of this Nation to allow the use of coerced statements in the trials or review panels conducted on the status of detainees. It is also beneath us to strip detainees of habeas rights. Filing a petition for a writ of habeas corpus is often the detainee's only opportunity to openly challenge the basis for his detention. Providing detainees this right is not about coddling terrorists. It is about showing the world that we are a nation of laws and that that we uphold the principles that we urge other nations to follow. It is about honoring and respecting the values that are part of our heritage as Americans and that have shone as a beacon to the rest of the world. Allowing a detainee to file a habeas petition provides legitimacy to our detention system and quells speculation that we are holding innocent people in secret prisons without any right to due process.

Some members of the Senate have argued that these prisoners should be tried in the military justice system. I think that we could all agree on such a course if the administration had worked with Congress from the start and established with our approval procedures that are fair and consistent with our tradition of military justice. The Graham-Levin amendment does allow the Court of Appeals for the District of Columbia to review some of the military commission's final decisions. I am in favor of Federal court review, but Congress seems to have missed the critical step of authorizing the administration to use military commissions. I introduced a bill in the 107th Congress to do just that. So did Chairman Specter. If the administration wanted to use military commissions to try detainees, it should have sought and obtained the explicit authorization of Congress. It did not do so. The system that has been established by the administration to try individuals held at Guantanamo does not provide due process or independent review. It is not a system that reflects our tradition of justice.

Since the Graham-Levin amendment would not retroactively apply to pending cases, the Supreme Court will still have the opportunity to determine the legitimacy of the military commissions, as being litigated in case of Hamdan v. Rumsfeld. If the military commission process is rejected by the Court, I hope that the administration will work with Congress to establish a fair system for trying suspects who are captured in the war on terror. Working in this way, we can restore the reputation of our Nation for upholding the rule of law.

Everyone in Congress agrees that we must capture and detain terrorist suspects, but it can and should be done in accord with the laws of war and in a manner that upholds our commitment to the rule of law. The Judiciary Committee held a hearing on detainee issues in June. At that hearing, Senator Graham said that once enemy combatant status has been conferred upon someone, ``it is almost impossible not to envision that some form of prosecution would follow.'' He continued, ``We can do this and be a rule of law nation. We can prove to the world that even among the worst people in the world, the rule of law is not an inconsistent concept.'' I agree with Senator Graham, but I strongly believe that in order to uphold our commitment to the rule of law, we must allow detainees the right to challenge their detention in Federal court.

As Chairman Specter noted on the floor last month, there are existing procedures under habeas corpus that have been upheld by the Supreme Court that do not invite frivolous claims and that are appropriate. The Graham-Levin amendment would not only restrict habeas in a manner never done before in our Nation, but, as the chairman of the Judiciary Committee said last week, it would open a Pandora's box.

The chairman is right. We must not rush to change a legal right that predates our Constitution. Creating one exemption to the Great Writ only invites more. The Judiciary Committee has jurisdiction over habeas corpus, and it should have the first opportunity to review any proposed changes carefully and thoroughly. Although congressional action on the issue of foreign detainees is long overdue, we must not act hastily when the Great Writ--something that protects us all--is at stake.

I ask unanimous consent to place in the Record an article entitled, ``Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim,'' from the December 9, 2005, New York Times.

Late Sunday night, Republican leadership slipped language into a lengthy appropriations conference report that will immunize drug companies against reckless misconduct and will impede our ability to protect our citizens from the threatened avian flu pandemic. This provision is a gift to the drug manufacturers and will likely have a devastating effect on our ability to protect our constituents.

Under the guise of a threatened pandemic, this legislation goes far beyond the scope of vaccine preparedness and includes language that is far more sweeping than any language previously passed by the House or the Senate. Instead of focusing on protecting American families from avian flu or ensuring that victims of any untested vaccine will be compensated for their injuries, the provision simply shields drug companies from any culpability for injuries caused by its actions. The scope of this immunity is so expansive that once the Secretary of Health and Human Services has declared a public health emergency even for a future threat, drug companies would not be held accountable for any injuries or deaths caused by the drugs they manufacture, including drugs that are not specifically used in a pandemic context. This is disgraceful and will deter Americans from taking vaccines and drugs if we ever experience a health crisis.

The only exception to the broad immunity given to drug companies in this proposal is the possibility that a victim could prove that the company

acted with ``willful misconduct.'' Knowingly committing health violations would not even suffice to state a claim. Knowing violations as well as gross negligence would be immunized from accountability. Even if the drug company acted with the intent to harm people, it would nevertheless be immune from criminal conduct unless the Attorney General or Secretary of Health and Human Services initiates an enforcement action against a drug company that is still pending at the time a personal claim is filed. That is unbelievable. I question whether such a role for the Secretary of HHS is even constitutional. Since when do we in Congress allow a political appointee of the administration to determine when, and if, someone injured by willful misconduct can be compensated for their injuries? Professor Erwin Chemerinsky sent a letter yesterday that outlines his concerns regarding the constitutionality of the provision and I ask that his letter be made part of the Record.

Passage of the Defense appropriations bill is of vital importance to all of us, but the inclusion of provisions that excuse even gross and deadly negligence on the part of drug companies makes it impossible for many of us to vote for this bill in good conscience. I urge my colleagues to strike the unjustified and extraneous provisions from the Defense appropriations bill in order to act quickly on this important bill.

Mr. President, those of us working constructively to extend the USA PATRIOT Act have repeatedly offered to enter into a short-term extension while we work out the differences and improve this reauthorization legislation. The extension we are passing for 6 months is a commonsense solution that allows us to take a few more weeks to get this right for all Americans.

A majority of Senators--Republicans, Democrats, those Senators who voted for cloture, those who voted against cloture on the conference report that failed to pass the Senate--have joined on a letter urging the Republican leader to act on this commonsense offer by calling up a short-term extension bill.

As soon as it became apparent that the conference report filed by the Republican leadership would be unacceptable to the Senate, I joined on Thursday, December 8, in urging a 3-month extension to work out a better bill. On the first day the Senate was in session, Monday, December 12, Senator Sununu and I introduced such a bill, S. 2082. We

sent out a Dear Colleague letter to other Senators on December 13 and that bipartisan bill now has 47 cosponsors.

We offered this solution before the vote on the Senate floor last Friday. Contrary to the false claims and misrepresentations by some, there is no effort to do away with the PATRIOT Act. That is just not true. Along with others here in the Senate, I am seeking to mend and extend the PATRIOT Act, not to end it. There is no reason why the American people cannot have a PATRIOT Act that is both effective and that adequately protects their rights and their privacy.

Republican and Democratic Senators joined together last week to say we can do better to protect Americans' liberties while ensuring our national security is as strong as it can be.

Every single Senator--Republican and Democratic--voted in July to mend and extend the PATRIOT Act. I have joined with Senators of both parties in an effort to enact a short-term extension so that we can keep working to improve the bill. This is standard operating procedure in the Congress where we pass extensions in the nature of continuing resolutions regularly. The Sununu-Leahy bill to provide a 6-month extension, S. 2167, accomplishes this purpose. I thank the majority leader and Democratic leader for their leadership in passing this measure.

A clear majority of the Senate, Republican and Democrats, have come together and requested a short-term extension. These are Senators who voted for cloture and Senators who voted against cloture in an effort to improve the long-term extension of the PATRIOT Act. These are Republicans and Democrats.

No Democratic Senator opposes extending the PATRIOT Act. All of the 52 Senators who signed the letter to the majority leader urged its extension.

Our Nation is a democracy, founded on the principles of balanced government. We need to restore checks and balances in this country to protect us all and all that we hold dear. Our Congress and our courts provide checks on the abuse of executive authority and should protect our liberties.

We need to write the law so that Congress has provided its check in the law and so that courts can play their role, as well. All Americans need to take notice and need to demand that their liberties be maintained. We can do better and must do better for the American people.

Just this week, we celebrated the 214th anniversary of the passage of the Bill of Rights, the first 10 amendments to the Constitution of the United States. These amendments ensure some of our most vital freedoms, including the freedom of speech, religion and press in the first amendment. Within these amendments is also the right ``to be secure in our persons, houses, papers, and effects, against unreasonable searches and seizures.'' The Bill of Rights made clear not only the rights of the American people, but also the limitations on the power of government.

Just as we cannot allow ourselves to be lulled into a sense of false security when it comes to our national security, we cannot allow ourselves to be lulled into a blind trust regarding our freedoms and rights. We must remain vigilant on both counts or we stand to lose much that we hold dear.

In arguing for reauthorization of the USA PATRIOT Act, Attorney General Alberto Gonzales sought to assure us that ``concerns raised about the act's impact on civil liberties, while sincere, were unfounded.'' I am not reassured, however.

We need only pick up a morning newspaper to see how the overreaching of the Bush administration plagues our efforts to uphold democracy at home and throughout the world. We have seen secret arrests and secret hearings of hundreds of people for the first time in U.S. history; the abuse of detainees in U.S. custody; detentions without charges and denial of access to counsel; and the misapplication of the material witness statute as a sort of general preventive detention law. Such abuses harm our national security as well as our civil liberties because they serve as recruiting tools for terrorists, intimidate American communities from cooperating with law enforcement, and, by misusing limited antiterrorism resources, make it more likely that real terrorists will escape detection.

We have learned that the Pentagon maintains a secret database containing information on a wide cross-section of ordinary Americans. It keeps track of people like those in Vermont who planned peaceful protests of military recruiters, including one organized by Veterans for Peace. It monitored the activities of an antiwar group that met at the Quaker Meeting House in Lake Worth, FL, a year ago to plan a protest against military recruiting at local high schools.

Similarly, the FBI also engages in monitoring other ordinary, law- abiding citizens. Records show that the FBI kept information on Greenpeace, the American-Arab Anti-Discrimination Committee, and on students and peace activists who attended a conference at Stanford University in 2002. In a similar story, a student at the University of Massachusetts/Dartmouth reportedly was visited by Federal agents in October, after he requested a copy of Mao Tse-Tung's tome on Communism called, ``The Little Red Book'' through the University's interlibrary loan program. If the FBI is investigating what book a college senior is borrowing, what is it that they are not investigating that they should be?

The New York Times reports that after September 11, 2001, when former Attorney General John Ashcroft loosened restrictions on the FBI to permit it to monitor Web sites, mosques, and other public entities, ``the FBI has used that authority to investigate not only groups with suspected ties to foreign terrorists, but also protest groups suspected of having links to violent or disruptive activities.'' For example, recently disclosed agency records show that FBI counterterrorism agents have conducted surveillance and intelligence-gathering operations on groups concerning the environment, animal cruelty, and poverty relief.

Now we are learning that President Bush has, for more than 4 years, been secretly authorizing warrantless surveillance of Americans inside the United States. In fact, he acknowledges issuing secret Presidential orders to authorize such warrantless surveillance more than 30 times since September 11, 2001.

The U.S. Supreme Court has consistently held for nearly 40 years that the monitoring and recording of private conversations constitutes a ``search and seizure'' within the meaning of the fourth amendment, extending as far back as the 1967 case, Katz v. United States. It was because of concerns over unconstitutional surveillance of Americans in the 1960s and 1970s that Congress enacted the Foreign Intelligence Surveillance Act in 1978 to provide a legal mechanism for the Government to engage in searches of Americans in connection with intelligence gathering. Unless pursuant to a criminal search warrant issued by a judge on a showing of probable cause, FISA warrants are the exclusive means by which electronic surveillance and the interception of electronic communications may be undertaken pursuant to the rule of law.

The Foreign Intelligence Surveillance Act has been amended over time, and it has been adjusted several times since 9/11. Indeed, much of the PATRIOT Act includes FISA amendments. The law has been further amended since the PATRIOT Act, as well.

Congress allows the FISA Court to operate in secret and authorizes the Government to begin immediate surveillance in an emergency situation, so long as it seeks a warrant from the FISA Court within 72 hours. In addition, Congress has provided that following a declaration of war, the President may authorize electronic surveillance without a court order for a period not to exceed 15 days.

There has never been a leak reported out of the FISA Court. Furthermore, it has never been alleged that FISA's emergency procedures are inadequate or that FISA ties the hands of law enforcement. If the Bush administration believed that FISA was inadequate, it should have alerted Congress to these flaws. It did not. Instead, it worked with me and with others in the days following 9/11 to amend FISA. I chaired the Senate Judiciary Committee at that time, apparently the same time that the Bush administration began surveillance outside FISA. I was not informed of the President's secret

eavesdropping program while I chaired the Judiciary Committee in 2001 and 2002. I read about it for the first time in the press last week. Spying on Americans without safeguards to protect against the abuse of government power is unnecessary, and it is wrong.

Over the last week, we have learned of long-term, widespread eavesdropping on Americans by the Bush administration without compliance to the law, without court oversight, and without congressional authorization. Compounding that already troubling discovery were new, disturbing reports that the FBI has been monitoring U.S. advocacy groups working on behalf of the environment and civil rights issues, Quaker meetings and students checking out books to write school papers. This is all too reminiscent of the dark days when a Republican President compiled ``enemies lists'' and eavesdropped on political opponents and broke into doctors' offices and used the vast power of the executive branch to violate the constitutional rights of Americans.

I was elected to the Senate in the aftermath of Watergate and the White House plumbers and the secret wars that led to the impeachment articles being considered against President Nixon. The Foreign Intelligence Surveillance Act was passed in 1978 as part of the reform and reaction to those abuses. As I have noted, this law has been extensively updated in accordance with the Bush administration's requests in the aftermath of 9/11 and has been modified further in the last 4 years with respect to so-called lone wolf terrorists. Neither in the first year of his Presidency or in the aftermath of 9/11 or in the 4 years since enactment of the PATRIOT Act has President Bush come to Congress and asked us for authority to engage in the kind of extensive surveillance on Americans by the National Security Agency that The New York Times reported and the President has now confirmed that he secretly ordered and has reaffirmed more than 30 times.

We are a nation of laws, and the fact that no person is above the law is a bedrock principle upon which this Nation was founded and one we are defending and fighting for abroad. This type of covert spying on American citizens and targeted groups on American soil betrays that principle.

The chairman of the Judiciary Committee has the right instinct and was right to announce that we need hearings and an explanation, and the American people deserve an accounting for this troubling revelation. Earlier this week, I joined with Senators Reid and Rockefeller in requesting specific information from the Bush administration on its covert spying operations domestically. I cannot emphasize strongly enough how important it is for the Bush administration to cooperate with Congress on this matter. No one should be able to conduct secret, illegal spying programs on our soil with no accountability to Congress or the American people.

Congress has passed laws that established a legal way to eavesdrop on al-Qaida and other potential terrorist organizations. Internationally that monitoring should have been done more effectively before 9/11 by this administration. We have established legal authority in emergency circumstances for the Attorney General to proceed first so long as he promptly seeks court approval thereafter. We even provided a 15-day window after a declaration of war. This program has apparently been going on for not 4 days or 14 days but for more than 4 years. That is not pursuant to or consistent with FISA. In the PATRIOT Act and other actions since 9/11, Congress has created additional authorities. But it is Congress that passes laws. The President cannot simply declare when he wishes to follow the law and when he chooses not to.

What happens to the rule of law if those in power abuse it and only adhere to it selectively? What happens to our liberties when the Government decides it would rather not follow the rules designed to protect them?

The Bush administration, in secret legal justifications for a secret eavesdropping program, apparently argues that when the Congress authorized the use of force in September 2001 to attack al-Qaida in Afghanistan, it authorized warrantless searches and eavesdropping on Americans. I voted for that authorization. This program is not what I voted for. Congress did not sign a blank check. The power to eavesdrop on Americans is not even authority that the Bush administration asked for from Congress.

I was chairman of the Judiciary Committee when the President's program was undertaken, and I was never informed of the program or its purported legal justification. In this, as with its detention and interrogation practices, this administration has chosen to go it alone. That is wrong, and it is corrosive to our system of checks and balances.

This is a Government with three co-equal branches. As Justice O'Connor reminded the Bush administration, even wartime does not give the President a blank check with regard to power. As I said last week, the same lawyers who advised the President that he was above the law when it came to torture, in a memorandum the Bush administration has had to disavow and withdraw when it was brought to light, have apparently advised the Bush administration that this President has authority to conduct warrantless surveillance of Americans. That is wrong. Accountability is sacrificed when there is rampant unilateralism.

No one can just ignore the law or the constitutional limits on Executive authority that protect Americans' liberties. Accordingly, I urge the Bush administration to make public its purported legal justification for what I view as an illegal program of spying on Americans without court approval. I urge them not just to recite bumper sticker slogans or conclusory statements that they view their actions as consistent with the self-serving rewriting of the law they have secretly made amongst themselves, but to provide that legal justification in the light of day so that Congress and Americans can consider it. Provide and post the legal memoranda.

Al-Qaida knows that we eavesdrop and wiretap. Whether we do so legally, whether we protect the liberties of Americans by respecting the constitutional requirements for court-issued warrants, these aspects are of little concern to terrorists but matter greatly to Americans. I expect that when the supposed legal underpinnings for the President's eavesdropping program are examined, they, too, will be withdrawn and disavowed by this administration. I also expect that they will be rejected by an honest review in Congress, in the courts, and certainly by the American people. I ask that a copy of a letter to the President of which I referred be printed in the Record.

Last week marked the 214th anniversary of the adoption of the Bill of Rights to the Constitution. Over the last week, this Nation and this Senate have been engaged in a debate about the importance of protecting and preserving those rights as we consider how best to revise and reauthorize the PATRIOT Act. We have also learned about the White House's domestic surveillance program that short-circuited the judicial safeguards established by Congress.

Today we engage in an action unique to the Senate. We consider for confirmation to lifetime appointments to the judiciary a number of nominees. This is an instance in which all three branches of the government are involved. The President nominates, the Senate considers the nominations and, if confirmed, the nominee is appointed to become a member of the judiciary. The judiciary has a particularly important role in the protection of the rights and liberties of all Americans. It was Justice O'Connor who, writing for the Supreme Court, noted that even wartime does not give the President a ``blank check'' when it comes to actions that impact Americans' rights. Every day in courtrooms across the country federal judges are the last line of defense for Americans' rights.

If anyone doubts the importance of the position of Federal district court judges, they need look no further than the district court judges assigned to sit on Federal Intelligence Surveillance Act, or FISA Court. This court was designed specifically to act as a check on the Executive Branch, and when it is consulted as the law requires, it performs a crucial role in our Government's system of checks and balances. In an extraordinary development, we read today that a federal judge assigned by the Chief Justice of the United States to serve on that court has resigned in the face of the disclosure of this President's secret surveillance program outside of the legal FISA process.

With the votes today, the Senate will be called upon to grant or withhold its consent to another seven judicial nominees. If they are confirmed, the Senate will have confirmed 225 of this President's judicial nominees to lifetime appointments. If they are confirmed, the Senate will increase the number of confirmations this year by 50 percent in just one day, from 14 to 21.

I chaired the Judiciary Committee for the second half of 2001. No judges had been confirmed that year before I became chair. In the last 5 months of the year we were able to have hearings, Committee consideration, and Senate votes on 28 new judges. We worked hard in spite of the 9/11 attacks and the anthrax attacks and succeeded in reducing vacancies and filling longstanding vacancies. Indeed in the 17 months I chaired the Judiciary Committee, the Senate proceeded to confirm 100 of this President's nominees. It took Republicans more than twice as long to match our record. Democrats proceeded in spite of the recent history of Republicans pocket filibustering more than 60 of President Clinton's qualified, moderate nominees.

As is clear from our record since that time, we have been willing to continue working with the Republican majority to fill vacancies on the federal bench--if only the President would send nominees. Unfortunately, along with home heating prices, gasoline prices, interest rates, the budget deficit and the trade deficit, judicial vacancies have also increased dramatically this year. It almost seems that unless the White House can pick a partisan political fight, it really does not care very much about the Federal judiciary. I noted in the spring that we had not received new nominations this year from the President. Only recently has that begun to change but there are still more than 25 vacancies without a nominee. I urge the President, as the Democratic leader and I have urged him for some time, to work with Senators on both sides of the aisle to identify qualified, consensus candidates to fill these vacancies.

I am disappointed that the House of Representatives has failed to act on S. 1558, which passed the Senate on November 10. This bill was introduced by Senators Collins and Lieberman. I worked with them to amend it to extend for 4 years the ``sunset'' of a provision first enacted in the Identity Theft and Assumption Deterrence Act of 1998 that grants the Judicial Conference of the United States the authority to redact information from a judge's mandatory financial disclosure in circumstances in which it is determined that the release of the information could endanger the filer or the filer's family. The bill, as amended, also extends the protections of this provision to the family members of filers.

Like the more comprehensive court security measure Senator Specter and I have introduced, S, 1968, the Court Security Improvement Act of 2005, CSIA, from which it is drawn, S. 1558 provides judges and their families with needed security by extending the judges' redaction authority without interruption and expanding it to their families. It also strikes the right balance with the need for continuing congressional oversight to prevent the misuse of this redaction authority, which has been a matter of some concern to me. I appreciate that the Judicial Conference is seeking to improve its practices and the Senate passed S. 1558 because none of us wants to see judges or their families endangered. Now, because of the failure of the House to pass S. 1558 and enact the reauthorization of redaction authority for another 4-year period, these protections will lapse at the end of the year.

Mr. President, this is the third time in the past 6 months that I have spoken in this chamber about Nepal. I do so because this land of mostly impoverished tea and rice farmers who toil between India and China on precipitous hillsides in the shadows of the Himalayas, is experiencing a political crisis that may plunge the country into chaos.

As many predicted, King Gyanendra's seizure of absolute power on February 1 and suppression of civil liberties has damaged Nepal's foreign relations, triggered clashes between prodemocracy demonstrators and the police, and strengthened the Maoist insurgency.

The Maoists, whose use of extortion and brutality against poor villagers has spread throughout the country, announced a unilateral ceasefire on September 3 which they recently extended for an additional month. Although flawed, the ceasefire was the impetus for a loose alliance with Nepal's weak political parties after the King refused to negotiate with them and sought instead to consolidate his own grip on power.

Last month, the Maoists and the parties endorsed a vaguely worded but important 12 point understanding that could be the basis for a national dialogue to restore democracy and end the conflict. That, however, would require some reciprocal confidence building measures by the army, which has so far rejected the Maoist ceasefire as a ploy and continues to see itself as the defender of an anachronistic, corrupt and autocratic monarchy.

Although the army has won praise for its role in international peacekeeping missions, its reputation has been badly tarnished because of its abusive and ineffective campaign against the Maoists. It has engaged in arbitrary arrests, torture and extrajudicial killings of ordinary citizens, which has alienated many of the same people who have been victims of the Maoists.

On December 10, when hundreds of Nepali citizens took to the streets to protest the King's repressive actions, the police used force to break up the rally and arrested several dozen people. The press reported another 120 arrests and dozens injured in demonstrations on December 17. More protests are likely, and it may be only a matter of time before Katmandu is in the full throes of a pitched battle between prodemocracy demonstrators and the King's security forces.

This is the disheartening situation in which Nepal finds itself today. The immediate challenge for the United States is how to help promote a political dialogue which includes the broadest possible participation from Nepali society to restore and strengthen democracy and end the conflict.

The Maoist cease-fire, while welcome, was a tactical move to lure the political parties into an alliance and further isolate the palace. There is no way to predict with confidence if the Maoists would participate in a political process in good faith, or simply use it as a ruse to gain new recruits and weapons. A resumption of attacks against civilians would be condemned and resisted by the international community. The Maoists should know that they cannot defeat the government by force, and as long as they extort money and property and abduct children they will be seen as enemies of the Nepali people.

Similarly, military experts have concluded that Nepal's undisciplined army cannot defeat a determined insurgency that attacks civilians and army posts and then disappears into the mountains.

There are also concerns about Nepal's political parties, who do not have a record of putting the interests of the nation above their own self interest. But the political parties, for all their flaws, are the real representatives of the Nepali people. They urgently need to reform, but there is no substitute for them.

Despite these difficulties and uncertainties, it is clear that the King has failed to provide the leadership to build bridges with the country's democratic forces and develop a workable plan. It is also clear that efforts by the international community, including the United States, to appeal to the King to start such a process, have failed. The Bush administration should apply whatever pressure it can, including denying U.S. visas to Nepali officials and their families.

With few options and no guarantees, Nepal's hour of reckoning is approaching. There is a growing possibility that the King's obstinacy and unpopularity will trigger massive civil unrest, shootings and arrests of many more civilians by soldiers and police, Nepal's further isolation, and perhaps the end of the monarchy itself.

Only the army has the ability to convince the King to abandon his imperial ambitions, but time is running out. The army's chief of staff, General Pyar Jung Thapa, was privileged to receive training at the Army War College and he has participated in other U.S. military training programs. He has led Nepali troops in UN peacekeeping missions. He knows, or he should have learned, that the function of a modern, professional military is to protect the rights and security of the people, not the privileges of a dictator who has squandered the moral authority of his office. It is not only in the interests of Nepal, but in the army's long-term self-interest, to show real leadership at this critical time.

The United States should do everything possible to encourage the army to announce its own cease-fire, to accept international observers as the Maoists have said they would do, and to support a broadly inclusive political dialogue with or without the participation of the palace.

Such a process, to be meaningful, must lead to free and fair elections. The municipal elections announced by King Gyanendra for early next year, without any consultation with the political parties, are no solution. An attempt to apply a veneer of legitimacy to an otherwise undemocratic process will only prolong and exacerbate this crisis.

Many of the Maoist's grievances mirror those of the majority of Nepal's people who for centuries have suffered from discrimination, poverty, and abuse by one corrupt government after another. But Nepal's problems, which

are at the root of the conflict, can only be solved through a transparent, democratic process. The Maoists have opened the door a crack for that to begin. The army should reciprocate. The international community should lend its support.