Floor Statements

Mr. President, our Nation has a proud history as the leading advocate of human rights around the world. Throughout this history, we have committed ourselves to numerous international human rights treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The bill that I introduce today will reaffirm our obligations under this Convention and reassure the world that we are a nation committed to the rule of law. I want to thank my cosponsors, Senators Durbin, Kennedy, and Dodd, for working with me on this legislation, and for their leadership on these issues.

It has been nearly a year since the first horrific images from Abu Ghraib prison appeared in the media, shocking the world and shattering the image of the United States. As the Administration circled the wagons and claimed the abuses were committed by a ``few bad apples,'' new details about the widespread abuse of detainees continued to emerge. I have spoken many times about the need for a comprehensive, independent investigation into the abuse of detainees. I have no doubt that such an investigation would be painful, but it is also a necessary step to moving forward.

Prisoner abuse by U.S. personnel is deeply troubling, but it is only one aspect of a broader and serious problem. While we must ensure that prisoners are treated humanely by our own personnel, we must also prohibit the use of so-called ``extraordinary renditions'' to send people to other countries where they will be subject to torture. Article 3 of the Convention Against Torture states that ``no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.'' The bill I introduce today, the ``Convention Against Torture Implementation Act,'' will ensure that we honor this commitment.

We have addressed this issue before. Congress implemented Article 3 of the Convention Against Torture in the Foreign Affairs Reform and Restructuring Act of 1998, but this Administration has exploited loopholes in that law to transfer detainees to countries where they are subjected to torture. Attorney General Gonzales recently said that U.S. policy is not to send detainees ``to countries where we believe or we know that they're going to be tortured,'' but he acknowledged that we ``can't fully control'' what other nations do, and added that he does not know whether countries have always complied with their promises. In fact, they have not.

My proposed legislation does not broaden the obligations that we agreed to by ratifying the Convention Against Torture; it simply closes the loopholes in the 1998 law and ensures that we honor our commitment not to outsource torture to other countries.

The case of Maher Arar provides a chilling example of extraordinary rendition, and illustrates why this bill is necessary. Mr. Arar, a Canadian and Syrian citizen, was stopped by immigration officers at John F. Kennedy International Airport in September 2002 as he attempted to change planes on his way home to Canada from Tunisia. He claims that he was interrogated by an FBI agent and a New York City police officer, and that he was denied access to a lawyer. He further claims that he repeatedly told U.S. officials that he feared he would be tortured if deported to Syria. After being detained for nearly two weeks in a Federal detention center in New York, Mr. Arar was transferred by U.S. authorities to Syria and held at the Bush administration's request. Mr. Arar claims that he was physically tortured during the first two weeks of his detention in Syria, and that he was subjected to severe psychological abuse over the following 10 months, including being held in a grave-like cell and being forced to undergo interrogation while hearing the screams of other prisoners.

According to Administration officials, the CIA received diplomatic assurances from Syria that it would not torture Mr. Arar. But those assurances amounted to little more than a wink and a nod. Unnamed intelligence officials were later quoted in the press, saying that Arar confessed under torture in Syria that he had gone to Afghanistan for terrorist training. Syria has a well-documented history of state- sponsored torture. In fact, President Bush stated on November 7, 2003, that Syria has left ``a legacy of torture, oppression, misery, and ruin'' to its people.

Rather than rely on assurances that a country will not torture an individual, we must make our own unbiased determination. We already have the necessary information to do so. Each year, as required by law, the State Department publishes country reports on human rights practices. The most recent report on Syria states that its torture methods include ``administering electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim was suspended from the ceiling; hyperextending the spine; bending the detainees into the frame of a wheel and whipping exposed body parts; and using a backward-bending chair to asphyxiate the victim or fracture the victim's spine.''

Some will argue that the post-9/11 world is different; that we must use any and all means available to extract information from suspected terrorists. Their argument might be more credible if every person who turned up on a terrorist watch list were, in fact, a terrorist. I cannot say whether Mr. Arar had ties to terrorist groups or not, but we do know that he was never charged with a crime. After enduring months of torture at the hands of the Syrians, he was released and sent back to Canada.

Nor was Mr. Arar's experience an isolated incident. A recent article in The New Yorker titled ``Outsourcing Torture'' provides disturbing details about how the administration embraced the use of rendition after the 9/11 attacks. Several press reports detail the CIA's use of its own Gulfstream V and Boeing 737 jets to secretly transfer detainees to countries around the world, where it is likely that they will be tortured.

The Convention Against Torture Implementation Act addresses the extraordinary rendition problem in a straightforward manner. It requires the State Department to produce annually a list of countries where torture is known to occur. The list would be based on information contained in the State Department's country reports on human rights practices. The bill prohibits the transfer of individuals to any country on this list or to any other country if there are substantial grounds for believing that the person would be tortured. It also provides reasonable exceptions to this prohibition to allow for legal extraditions and removals.

Most importantly, the bill closes the diplomatic assurances loophole. We would no longer accept assurances from governments that we know engage in torture. Our past reliance on diplomatic assurances is blatantly hypocritical. How can our State Department denounce countries for engaging in torture while the CIA secretly transfers detainees to the very same countries for interrogation? The President says he does not condone torture, but transferring detainees to other countries where they will be tortured does not absolve our government of responsibility. By outsourcing torture to these countries, we diminish our own values as a nation and lose our credibility as an advocate of human rights around the world.

Last June, in the aftermath of the Abu Ghraib scandal, the President was asked if he had authorized abusive interrogation techniques. He replied,

``The authorization I issued was that anything we did would conform to U.S. law and would be consistent with international treaty obligations.'' The legislation I introduce today will help us fulfill the President's promise.

The Senate gave its advice and consent to the ratification of the Convention Against Torture more than a decade ago. It is time to honor our commitment and show the world that we will hold ourselves to the same standards that we demand of others.

Mr. President, I ask unanimous consent that the text of the bill and a section-by-section analysis be printed in the Record.

Mr. President, I rise today to express my strong support for Senator Cantwell's amendment to the budget resolution protecting the coastal plain of the Arctic National Wildlife Refuge. Senator Cantwell's amendment aims to strike a controversial provision that effectively paves the way to allowing oil and gas exploration in one of our Nation's most pristine and unique wild places. This is a common- sense amendment, which upholds the will of the American people in preserving this remote area. I urge my colleagues to join me in supporting it.

There is a strong consensus among all of us here, on both sides of the aisle that decisive steps need to be taken by this Congress to secure our Nation's future energy needs. We know that energy demand is rising not only in our own country but around the world, especially in nations such as India and China. We also know that there are grave national security implications for remaining reliant on foreign oil. And we know first-hand from our constituents, many of whom are struggling to heat their homes this winter, that the price of oil remains disturbingly high.

Drilling proponents want us to believe that resource exploration in the Arctic Refuge will be a one-stop solution to these critical energy challenges and that by doing so we will be closer to securing our future energy needs. This insinuation is flat wrong.

Even drilling proponents concede that any recoverable oil that the coastal plain would yield would not reach world markets for at least another 7-12 years. This will do absolutely nothing to help my constituents who have sticker shock at the gas pump or are seeing record home heating prices today. Even during peak production, expected around 2025, the amount of oil from the Arctic Refuge would reduce American imports by only around three percent according to the Energy Information Agency.

On numerous occasions I have come to the Senate floor urging my colleagues to adopt real solutions to our Nation's pressing energy challenges. We should be increasing the nation's fuel economy standards, which have remained unchanged for over 10 years. We should also be making a stronger commitment to the development of renewable energy and energy conservation technologies by offering tax incentives to both producers and consumers. It is mind-boggling to me that drilling proponents have provided so little leadership in forwarding these policy solutions. Instead they continue to offer the American people a false choice between environmental protection and energy security.

In another bold move, the administration has tried to sugarcoat oil development in the Arctic Refuge by massively inflating the projected revenues from anticipated lease sales there. The administration claims that lease sales will generate $2.5 billion in revenue in 2007. To get to that amount, leases would have to sell for between $4,000 and $6,000 per acre. In comparison, leases on the North Slope of Alaska have averaged only $50 per acre over the last 20 years. When I questioned Interior Secretary Norton about this discrepancy she could not explain how the administration got to its $2.5 billion estimate. What Secretary Norton and the administration don't want to acknowledge is that these revenues are disturbingly inflated. They also don't want to acknowledge that oil companies have lost interest in drilling in the refuge. Only one company is still a member of the lobbying group pushing for this provision in the budget resolution. The fact is that there are other places the oil companies prefer--places where it is cheaper to drill and where the environmental impacts are far less.

So why are we here today? Opening the refuge will do nothing to help reduce gas prices. It will do nothing to make us less dependent on foreign oil. Most oil companies are not asking for it. I can certainly tell you that Vermonters do not want to see this special place developed. In Vermont, we cherish the natural resources of our state. We cherish the special resources of this country--Yellowstone, Acadia, the Grand Canyon. I would put the Arctic Refuge on the same level as these national treasures.

Let me make clear though. I do not oppose energy development in this country. But not here, not in the Arctic Refuge. It's time to put this issue behind us and devote our time to working together on a sustainable, reliable energy supply for the future.

Mr. President, this week marks the first national ``Sunshine Week.'' The centerpiece of this week is Freedom of Information Day, which falls on March 16, the anniversary of James Madison's birthday. A firm believer in the need for open and accountable government, Madison said, ``A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' Each generation of Americans should heed James Madison's warning, and it is fitting and proper that today's generations of Americans use this week to revisit the potentially damaging limitations placed on access to government information in just the last few years.

The Freedom of Information Act (FOIA) has been the centerpiece of open government for the 38 years since it came into force in 1967. It enables citizens to obtain information on how their government is protecting the Nation, spending their tax dollars, and implementing the laws their officeholders enact. FOIA helps hold our government accountable. It was through FOIA requests that the St. Petersburg Times uncovered information showing that since the 1991 Gulf War, and due in part to lax security at military bases, thousands of pounds of weapons have been lost or stolen from U.S. stockpiles, and some remains unaccounted for. The Bremerton Sun newspaper in Washington State used FOIA to confirm the mishandling of a nuclear missile at a Navy submarine facility. These are examples of the day-to-day importance of FOIA in helping Americans safeguard our security infrastructure. There are countless other examples of FOIA enabling citizens to obtain information relating to health and safety concerns in their cities and neighborhoods.

In 2002, when I voted to support passage of the Homeland Security Act (HSA), I voiced concerns about several flaws in the legislation. I called for the Administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation. One of my chief concerns with the HSA was a subtitle of the act that granted an extraordinarily broad exemption to FOIA in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation's critical infrastructure.

Unfortunately, the law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing. Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and the safety and health of the American people.

Today, with my distinguished colleagues Senators Levin, Feingold, and Lieberman I reintroduce legislation to restore the integrity of FOIA. I thank my colleagues for working with me on this important issue of public oversight. We first offered this bill, which we call the Restoration of Freedom of Information Act, or ``Restore FOIA,'' in the 108th Congress.

``Restore FOIA'' protects Americans' right to know while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the Department of Homeland Security (DHS).

Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. But the appropriate way to meet this goal is a source of great debate a debate that has been all but ignored since the enactment of the HSA.

The HSA created a new FOIA exemption for ``critical infrastructure information.'' That broadly defined term applies to information covering a wide variety of facilities such as privately operated power plants, bridges, dams, ports, or chemical plants that might be targeted for a terrorist attack. In HSA negotiations in 2002, House Republicans and the Administration promoted language that they described as necessary to encourage owners of such facilities to identify vulnerabilities in their operations and share that information with DHS. The stated goal was to ensure that steps could be taken to ensure the facilities' protection and proper functioning.

In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as ``critical infrastructure.'' This is true no matter how tangential the content of that document may be to the actual security of a facility. The law effectively allows companies to hide information about public health and safety from the American people even from neighbors of such a facility in its local community--simply by submitting it to DHS. The enacted provisions were called ``deeply flawed'' by Mark Tapscott of the Heritage Foundation in a November 20, 2002, Washington Post op-ed. He argued that the ``loophole'' created by the law ``could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.''

In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem. For example, in the case of a chemical spill, the law bars the government from disclosing information without the written consent of the company that caused the pollution. As the Washington Post pointed out in an editorial on February 10, 2003, ``A company might preempt environmental regulators by 'voluntarily' divulging incriminating material, thereby making it unavailable to anyone else.''

The law also 1. shields the companies from lawsuits to compel disclosure, 2. criminalizes otherwise legitimate whistleblower activity by DHS employees, and 3. preempts any state or local disclosure laws.

Finally, the HSA requires no reporting whatsoever to the Congress or the public on critical infrastructure submissions to DHS. As a result, it is nearly impossible for the public to learn whether this law is being followed in good faith, whether it is being manipulated by submitters, and whether DHS is conducting due diligence on submissions. It also places hurdles before those of us in Congress who believe in effective oversight.

In an effort to obtain some basic data on the treatment of ``critical infrastructure information'' at DHS, two organizations filed a FOIA request in 2004. OMB Watch and the Electronic Privacy Information Center sought public release of the number of submissions and rejections under the law, and of any communications between DHS and submitters. They also requested the Department's program procedures for handling information. DHS did not provide answers. The groups filed a complaint, and the D.C. District Court ordered DHS to respond. We learned that as of February 2005, the critical infrastructure program received 29 submissions and rejected seven of those. We know nothing of the substance of the accepted submissions, what vulnerabilities they may describe, or what is being done to address them.

Most businesses are good citizens and take seriously their obligations to the government and the public, but this ``disclose-and- immunize'' provision is subject to abuse by those businesses that want to exploit legal technicalities to avoid regulatory guidelines that are designed to protect the public's health and safety. The HSA lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and preempt the government or others harmed by the company's actions from being able to use it against the company. This is not the kind of two-way public- private cooperation that serves the public interest.

The HSA FOIA exemption goes so far in exempting such a large amount of material from FOIA's disclosure requirements that it undermines government openness without making any real gains in safety for families in Vermont and across America. We do not keep America safer by chilling federal officials from warning the public about threats to their health and safety. We do not ensure our nation's security by refusing to tell the American people whether or not their federal agencies are doing their jobs, or whether their government is spending their hard-earned tax dollars wisely. We do not encourage real cooperation by giving companies protection from civil liability when they break the law. We do not respect the spirit of our democracy when we cloak in secrecy the workings of our government from the public we are elected to serve.

The Restore FOIA bill I introduce today with Senators Levin, Feingold and Lieberman is identical to language I negotiated with Senators Levin and Bennett in the summer of 2002 when the HSA charter was debated by the Governmental Affairs Committee. Senator Bennett stated in the Committee's July 25, 2002, markup that the Administration had endorsed the compromise. He also said that industry groups had reported to him that the compromise language would make it possible for them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally reveal it. The Governmental Affairs Committee reported out the compromise language that day. Unfortunately, much more restrictive House language was eventually signed into law.

The Restore FOIA bill would correct the problems in the HSA in several ways. First, it limits the FOIA exemption to relevant ``records'' submitted by the private sector, such that only those that actually pertain to critical infrastructure safety are protected. ``Records'' is the standard category referred to in FOIA. This corrects the effective free pass given to regulated industries by the HSA for any information it labels ``critical infrastructure.''

Second, unlike the HSA, the Restore FOIA bill allows for government oversight, including the ability to use and share the records within and between agencies. It does not limit the use of such information by the government, except to prohibit public disclosure where such information is appropriately exempted under FOIA.

Third, it protects the actions of legitimate whistleblowers rather than criminalizing their acts.

Fourth, it does not provide civil immunity to companies that voluntarily submit information. This corrects a flaw in the current law, which would prohibit such information from being used directly in civil suits by government or private parties.

Fifth, unlike the HSA, the Restore FOIA bill allows local authorities to apply their own sunshine laws. The Restore FOIA bill does not preempt any state or local disclosure laws for information obtained outside the Department of Homeland Security. It also does not restrict the use of such information by state agencies.

Finally, the Restore FOIA bill does not restrict congressional use or disclosure of voluntarily submitted critical infrastructure information.

These changes to the HSA would accomplish the stated goals of the critical infrastructure provisions in the HSA--without tying the hands of the government in its efforts to protect Americans and without cutting the public out of the loop.

Restore FOIA is supported by the American Library Association, Common Cause, the Freedom of Information Center, OMB Watch, Association of Research Libraries, the Project on Government Oversight, and OpenTheGovernment.org, among other leading open government organizations.

The argument over the scope of the FOIA and unilateral Executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing. The Rutland Herald got it right in a November 26, 2002, editorial that explained: ``The battle was not over the right of the government to hold sensitive, classified information secret. The government has that right. Rather, the battle was over whether the government would be required to release anything it sought to withhold.''

We need to fix this troubling restriction on public accountability. James Madison's warning is a clear warning to us, and it is our generation's duty to heed it. I urge my colleagues to support the Restoration of Freedom of Information Act of 2005.

I ask unanimous consent that the text of the bill and a sectional analysis be printed in the Record.

Mr. President, this week marks the first national ``Sunshine Week.'' The centerpiece of this week is Freedom of Information Day, which falls on March 16, the anniversary of James Madison's birthday. A firm believer in the need for open and accountable government, Madison said, ``A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or tragedy or perhaps both.'' Each generation of Americans should heed James Madison's warning, and it is fitting and proper that today's generations of Americans use this week to revisit the potentially damaging limitations placed on access to government information in just the last few years.

The Freedom of Information Act (FOIA) has been the centerpiece of open government for the 38 years since it came into force in 1967. It enables citizens to obtain information on how their government is protecting the Nation, spending their tax dollars, and implementing the laws their officeholders enact. FOIA helps hold our government accountable. It was through FOIA requests that the St. Petersburg Times uncovered information showing that since the 1991 Gulf War, and due in part to lax security at military bases, thousands of pounds of weapons have been lost or stolen from U.S. stockpiles, and some remains unaccounted for. The Bremerton Sun newspaper in Washington State used FOIA to confirm the mishandling of a nuclear missile at a Navy submarine facility. These are examples of the day-to-day importance of FOIA in helping Americans safeguard our security infrastructure. There are countless other examples of FOIA enabling citizens to obtain information relating to health and safety concerns in their cities and neighborhoods.

In 2002, when I voted to support passage of the Homeland Security Act (HSA), I voiced concerns about several flaws in the legislation. I called for the Administration and my colleagues on both sides of the aisle to monitor implementation of the new law and to craft corrective legislation. One of my chief concerns with the HSA was a subtitle of the act that granted an extraordinarily broad exemption to FOIA in exchange for the cooperation of private companies in sharing information with the government regarding vulnerabilities in the nation's critical infrastructure.

Unfortunately, the law that was enacted undermines Federal and State sunshine laws permitting the American people to know what their government is doing. Rather than increasing security by encouraging private sector disclosure to the government, it guts FOIA at the expense of our national security and the safety and health of the American people.

Today, with my distinguished colleagues Senators Levin, Feingold, and Lieberman I reintroduce legislation to restore the integrity of FOIA. I thank my colleagues for working with me on this important issue of public oversight. We first offered this bill, which we call the Restoration of Freedom of Information Act, or ``Restore FOIA,'' in the 108th Congress.

``Restore FOIA'' protects Americans' right to know while simultaneously providing security to those in the private sector who voluntarily submit critical infrastructure records to the Department of Homeland Security (DHS).

Encouraging cooperation between the private sector and the government to keep our critical infrastructure systems safe from terrorist attacks is a goal we all support. But the appropriate way to meet this goal is a source of great debate a debate that has been all but ignored since the enactment of the HSA.

The HSA created a new FOIA exemption for ``critical infrastructure information.'' That broadly defined term applies to information covering a wide variety of facilities such as privately operated power plants, bridges, dams, ports, or chemical plants that might be targeted for a terrorist attack. In HSA negotiations in 2002, House Republicans and the Administration promoted language that they described as necessary to encourage owners of such facilities to identify vulnerabilities in their operations and share that information with DHS. The stated goal was to ensure that steps could be taken to ensure the facilities' protection and proper functioning.

In fact, such descriptions of the legislation were disingenuous. These provisions, which were eventually enacted in the HSA, shield from FOIA almost any voluntarily submitted document stamped by the facility owner as ``critical infrastructure.'' This is true no matter how tangential the content of that document may be to the actual security of a facility. The law effectively allows companies to hide information about public health and safety from the American people even from neighbors of such a facility in its local community--simply by submitting it to DHS. The enacted provisions were called ``deeply flawed'' by Mark Tapscott of the Heritage Foundation in a November 20, 2002, Washington Post op-ed. He argued that the ``loophole'' created by the law ``could be manipulated by clever corporate and government operators to hide endless varieties of potentially embarrassing and/or criminal information from public view.''

In addition, under the HSA, disclosure by private facilities to DHS neither obligates the private company to address the vulnerability, nor requires DHS to fix the problem. For example, in the case of a chemical spill, the law bars the government from disclosing information without the written consent of the company that caused the pollution. As the Washington Post pointed out in an editorial on February 10, 2003, ``A company might preempt environmental regulators by 'voluntarily' divulging incriminating material, thereby making it unavailable to anyone else.''

The law also 1. shields the companies from lawsuits to compel disclosure, 2. criminalizes otherwise legitimate whistleblower activity by DHS employees, and 3. preempts any state or local disclosure laws.

Finally, the HSA requires no reporting whatsoever to the Congress or the public on critical infrastructure submissions to DHS. As a result, it is nearly impossible for the public to learn whether this law is being followed in good faith, whether it is being manipulated by submitters, and whether DHS is conducting due diligence on submissions. It also places hurdles before those of us in Congress who believe in effective oversight.

In an effort to obtain some basic data on the treatment of ``critical infrastructure information'' at DHS, two organizations filed a FOIA request in 2004. OMB Watch and the Electronic Privacy Information Center sought public release of the number of submissions and rejections under the law, and of any communications between DHS and submitters. They also requested the Department's program procedures for handling information. DHS did not provide answers. The groups filed a complaint, and the D.C. District Court ordered DHS to respond. We learned that as of February 2005, the critical infrastructure program received 29 submissions and rejected seven of those. We know nothing of the substance of the accepted submissions, what vulnerabilities they may describe, or what is being done to address them.

Most businesses are good citizens and take seriously their obligations to the government and the public, but this ``disclose-and- immunize'' provision is subject to abuse by those businesses that want to exploit legal technicalities to avoid regulatory guidelines that are designed to protect the public's health and safety. The HSA lays out the perfect blueprint to avoid legal liability: funnel damaging information into this voluntary disclosure system and preempt the government or others harmed by the company's actions from being able to use it against the company. This is not the kind of two-way public- private cooperation that serves the public interest.

The HSA FOIA exemption goes so far in exempting such a large amount of material from FOIA's disclosure requirements that it undermines government openness without making any real gains in safety for families in Vermont and across America. We do not keep America safer by chilling federal officials from warning the public about threats to their health and safety. We do not ensure our nation's security by refusing to tell the American people whether or not their federal agencies are doing their jobs, or whether their government is spending their hard-earned tax dollars wisely. We do not encourage real cooperation by giving companies protection from civil liability when they break the law. We do not respect the spirit of our democracy when we cloak in secrecy the workings of our government from the public we are elected to serve.

The Restore FOIA bill I introduce today with Senators Levin, Feingold and Lieberman is identical to language I negotiated with Senators Levin and Bennett in the summer of 2002 when the HSA charter was debated by the Governmental Affairs Committee. Senator Bennett stated in the Committee's July 25, 2002, markup that the Administration had endorsed the compromise. He also said that industry groups had reported to him that the compromise language would make it possible for them to share information with the government without fear of the information being released to competitors or to other agencies that might accidentally reveal it. The Governmental Affairs Committee reported out the compromise language that day. Unfortunately, much more restrictive House language was eventually signed into law.

The Restore FOIA bill would correct the problems in the HSA in several ways. First, it limits the FOIA exemption to relevant ``records'' submitted by the private sector, such that only those that actually pertain to critical infrastructure safety are protected. ``Records'' is the standard category referred to in FOIA. This corrects the effective free pass given to regulated industries by the HSA for any information it labels ``critical infrastructure.''

Second, unlike the HSA, the Restore FOIA bill allows for government oversight, including the ability to use and share the records within and between agencies. It does not limit the use of such information by the government, except to prohibit public disclosure where such information is appropriately exempted under FOIA.

Third, it protects the actions of legitimate whistleblowers rather than criminalizing their acts.

Fourth, it does not provide civil immunity to companies that voluntarily submit information. This corrects a flaw in the current law, which would prohibit such information from being used directly in civil suits by government or private parties.

Fifth, unlike the HSA, the Restore FOIA bill allows local authorities to apply their own sunshine laws. The Restore FOIA bill does not preempt any state or local disclosure laws for information obtained outside the Department of Homeland Security. It also does not restrict the use of such information by state agencies.

Finally, the Restore FOIA bill does not restrict congressional use or disclosure of voluntarily submitted critical infrastructure information.

These changes to the HSA would accomplish the stated goals of the critical infrastructure provisions in the HSA--without tying the hands of the government in its efforts to protect Americans and without cutting the public out of the loop.

Restore FOIA is supported by the American Library Association, Common Cause, the Freedom of Information Center, OMB Watch, Association of Research Libraries, the Project on Government Oversight, and OpenTheGovernment.org, among other leading open government organizations.

The argument over the scope of the FOIA and unilateral Executive power to shield matters from public scrutiny goes to the heart of our fundamental right to be an educated electorate aware of what our government is doing. The Rutland Herald got it right in a November 26, 2002, editorial that explained: ``The battle was not over the right of the government to hold sensitive, classified information secret. The government has that right. Rather, the battle was over whether the government would be required to release anything it sought to withhold.''

We need to fix this troubling restriction on public accountability. James Madison's warning is a clear warning to us, and it is our generation's duty to heed it. I urge my colleagues to support the Restoration of Freedom of Information Act of 2005.

I ask unanimous consent that the text of the bill and a sectional analysis be printed in the Record.

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

Mr. President, I understand there will be a vote on the Leahy-Sarbanes amendment at 2 o'clock; is that correct?

Mr. President, this amendment Senator Sarbanes and I have pending is going to moderately preserve the current conflict-of- interest standards for investment banks. They might safeguard the integrity of the bankruptcy process. Senators understand that well before I was born we have had in bankruptcy law provisions to cover conflicts of interest of investment bankers. For some reason this was taken out in the pending legislation. The pending legislation would eliminate the now 67-year-old conflict-of-interest standards that prohibit investment banks which served as underwriters of a company's securities from playing a major advisory role in the company's bankruptcy process.

In other words, it means if you had an investment bank that advised or underwrote securities for WorldCom or Enron at a time when, as we now know, they were cooking the books--they were the ones who advised them how to do this before bankruptcy--then they could be hired to represent the interests of the defrauded creditors during the bankruptcy proceeding.

It is kind of the fox guarding the chicken coop. You advise one of these

companies how to cook the books, make a lot of money--it is going to defraud a lot of people--but if the bubble breaks and you go into bankruptcy and the people who have been defrauded try to get a little bit of money back--try to get back some of the money they are owed, even though it is going to be cents on the dollar, people who had their pensions built into this, had their retirement built into this--you could have the very same investment banker saying, ``We will represent you. We are the guys who got you in the problem in the first place, where you lost all your pension and the money you are owed, but we will help you get it back.''

It is ironic that firms that had a part in the company's deception could stay on the payroll in bankruptcy and profit handsomely from their own fraud.

For 67 years we said, wisely: Enough. You can't do that. Nobody seemed to have a problem with it, but for some reason, that prohibition was dropped here. I have to ask what kind of message are we sending to investors and pensioners who are suffering from corporate misdeeds and ensuing bankruptcies if we allow this to happen. They deserve better.

What we have suggested, what a lot of people seem to support, is: All right, we won't put the total blanket prohibition in, but we will at least say that if you were involved within 5 years of this bankruptcy you cannot come back and handle the rights of the creditors. In other words, if you are the one who lost all the money of the creditors, you lost all the money of the pensioners, you lost all the money of the investors, you are not the one who is going to come back in and say now you can pay us to get back what little bit is left.

The National Bankruptcy Review Commission, agreeing with us, strongly recommended that Congress keep the current conflict-of-interest standards in place. They said:

Strict disinterestedness standards are necessary because of

the unique pressures inherent in the bankruptcy process.

Of course there are. Of course there are pressures. The larger the bankruptcy, the greater the pressures. Which assets do you sell? Which assets do you keep? Which assets should go to the creditors? What we want to do is monitor section 414. I would like to go back to the blanket prohibition, but we said at least make it 5 years. In fact, Fifth Circuit Court of Appeals Judge Edith Jones, well respected, very conservative member of the Fifth Circuit and member of the Bankruptcy Commission, urged Congress to remove section 414. She said:

If professionals who have previously been associated with

the debtor continue to work for the debtor during a

bankruptcy case, they will often be subject to conflicting

loyalties that undermine their foremost fiduciary duty to the

creditors. Strict disinterestedness, required by current law,

eliminates such conflicts or potential conflicts. . . .

Section 414, in removing investment bankers from a rigorous

standard of disinterestedness, is out of character with the

rest of this important legislation and should be eliminated.

Then the chairman of the Securities and Exchange Commission wrote to us. He said, speaking for the Commission:

We believe that it would be a mistake to eliminate the

exclusion in a similar one-size-fits-all manner at a time

when investor confidence is fragile.

Think of what he said. A lot of investors, since Enron and WorldCom, have lost confidence. If we perpetuate the things that perpetuate that lack of confidence, loss of confidence, then shame on us. We can easily go in with a very commonsense exclusion of conflicts of interest.

How can any one of us go back and say to our constituents: We were in favor of keeping the people who advised and got the enormous bankruptcy in the first place. Now we are in favor of putting them in to guard what little bit of assets the creditors and the investors might have. Try to explain that to somebody who is trying to recover because they relied on what these same people had said and now they are trying to recover their life savings, or trying to recover their business which itself may go bankrupt because of money owed them. Try to convince them that we are trying to protect you by letting the same people who made this mess now be responsible for getting payment to you.

The amendment Senator Sarbanes and I offer is a modest compromise. We limit it to 5 years before the bankruptcy. It only applies in the 5 years immediately preceding the bankruptcy. It doesn't say you are precluded forever, as current law does. But it says you are precluded if you were involved within 5 years of this collapse. Then you are not going to be involved in getting people back their money.

With Enron and WorldCom and others, this is the last time in the world that the Senate should weaken conflict-of-interest standards. Certainly the investors and the public are not going to like it. What we are trying to do, we are trying to get us back in line with the SEC and others, to restore public confidence in financial transactions with greater accountability and increased investor protection.

As I said earlier, I will yield to the distinguished senior Senator from Maryland.

Mr. President, am I correct that the yeas and nays have been ordered?

Mr. President, I think both Senator Sarbanes and I have made our case. We just want to eliminate this blatant conflict of interest.

We yield back our time.

Mr. President, with this new session of Congress and the President's new term we are presented with new opportunities for change. Congress and the President have embraced these opportunities on many issues--new cabinet officials have been confirmed and a renewed effort is underway by the administration to repair strained international relationships. Unfortunately, on one important front there has been no change: The administration continues to stonewall on the prisoner abuse scandal and Congress continues to abdicate its oversight responsibility on this issue.

Ignoring this problem will not make it go away. Even without a comprehensive, independent investigation into the abuse of detainees, we continue to learn more about this scandal from press reports and the court-ordered release of Government documents in response to Freedom of Information Act (FOIA) litigation.

The latest set of documents made public through the FOIA case reveal not only more incidents of abuse, but also indicate that soldiers in Afghanistan destroyed evidence of detainee mistreatment. One file documents the Army's investigation into the discovery of a compact disk during an office clean-up in Afghanistan in July 2004. The disk contained photos of U.S. soldiers pointing their handguns and rifles at the heads of bound and hooded detainees. Many of the soldiers questioned about these photos said they were ``joking around'' and that they wanted to have some good pictures to show their friends back home. If the roles were reversed and it was American POWs being used as photo props with weapons pointed at their heads, we would be rightly outraged by this conduct.

While the photos on this disk are disturbing in their own right, the circumstances surrounding this investigation are even more troubling. Unlike the photos from Abu Ghraib, these photos were not investigated because of an American soldier, in an act of conscious, gave the photos to a superior officer. These new photos were discovered by accident. The subsequent investigation into the photos revealed that soldiers in the unit were told by their superiors to delete similar photos of abuse to prevent their disclosure.

New details have also emerged about one of the infamous Abu Ghraib photos. Many will remember the photo of Manadel al-Jimadi's corpse packed in ice with Specialist Charles Graner posing over the body and giving the ``thumbs-up'' sign. We have known for months that this was a homicide, but a recent news report provides additional details about al-Jimadi's death. Al-Jimadi, one of the CIA's ghost detainees at Abu Ghraib, was secretly held at the prison. The International Committee of the Red Cross was denied access to him in violation of the Geneva Conventions. Now, press reports indicate that he died in a position known as ``Palestinian hanging.'' This barbaric practice entails cuffing the detainee's hands behind his back and suspending him from the wrists.

President Bush condemned Saddam Hussein for similar practices; the President should be as outraged when these acts are committed by American personnel.

Meanwhile, the media continues to reveal details about the administration's use of extraordinary rendition to transfer terrorism suspects in U.S. custody to the custody of countries where they are likely to be tortured. A recent article in The New Yorker, titled ``Outsourcing Torture,'' provides disturbing details about how the administration embraced the use of renditions after the attacks on September 11. The article cites three instances where the U.S. transferred suspected militants from Afghanistan to Uzbekistan. Although the fate of these men is not known, Uzbekistan is known to use interrogation methods such as partially boiling a detainee's hand or arm.

The State Department recently released its annual human rights report. The report criticized several countries for employing interrogation techniques that the State Department considered to be torture, yet are similar to techniques approved in 2002 by Secretary Rumsfeld. How can we criticize these countries for using techniques that our own Defense Secretary approved? How can our State Department denounce countries for engaging in torture while the CIA secretly transfers detainees to the very same countries? President Bush said that U.S. personnel do not engage in torture, but transferring detainees to other countries where they will be tortured does not absolve our government of responsibility. By outsourcing torture to these countries, we diminish our own values as a nation and lose our credibility as an advocate of human rights around the world.

Even without further government action, this scandal is not going to go away. It is time for us to lead the investigation, rather than wait to read about the latest discovery of abuse in the newspaper. As I have said before, there needs to be a thorough, independent investigation of the actions of those involved, from the people who committed abuses to the officials who set these policies in motion. The investigations completed thus far provide additional insight into how the prison abuses occurred, but their narrow mandates prevented them from addressing critical issues.

For example, an executive summary of the long-expected report on interrogation policy by Admiral Albert T. Church was released today. The full report, which is classified, reportedly criticizes the Pentagon for a failure of oversight, yet finds no direct evidence that high level officials ordered the mistreatment of detainees. The executive summary contains only a brief reference to the role of contractors in interrogations, and affirms that numerous contracts have been awarded in an ad hoc fashion and without central coordination. The role of contractors is an area sorely in need of a comprehensive investigation.

Similarly, the unclassified summary leaves many questions unanswered about Department of Defense (DOD) interaction with the CIA. It confirms that approximately 30 detainees were kept ``off the books'' in Iraq. The summary admits that DOD assisted the intelligence agencies with detainee transfers and supported interrogations by ``other government agencies''--which is government-speak for the CIA--at DOD facilities. What is missing from the Church report, however, is

a full exploration of the role of the CIA in detention, rendition, and interrogation. The Agency apparently cooperated with the Church investigation, but provided information on activities only in Iraq, and not on any of the other nations or facilities where the CIA is holding and interrogating detainees.

A very important piece of information came out of today's hearing on the Church report, however. In his testimony before the Armed Services Committee, Admiral Church was asked by Senator Kennedy about unclassified paragraphs of the full report that discuss early meetings of the DOD working group on interrogations. That working group produced a memo that tracked very closely the infamous August 2002 Justice Department torture memo. The Justice memo claimed that for an action to rise to the level of torture it must result in pain equivalent to the type associated with organ failure or even death.

Apparently, the working group was briefed by Justice Department lawyers who presented the Justice memo's legal analysis as controlling. According to Senator Kennedy's exchange with Admiral Church, members of the working group protested. They believed that interrogation policy should follow the Geneva Conventions. Admiral Church confirmed that the working group was overruled by the Pentagon's Office of General Counsel, which insisted on using the torture memo as the legal foundation for interrogation techniques. Specifically, Admiral Church admitted, the working group was overruled by William J. Haynes, General Counsel of the Department of Defense, whom the President has nominated to a lifetime appointment as a Federal Circuit Court judge. And still, given all of this information, the Pentagon claims that abuses did not stem from policies generated from the highest levels of this administration.

Only a truly independent entity can comprehensively investigate the policy decisions that were made at the top and the abuses that followed in the field. There will always be scandals and tragedies in a nation's history. What makes America unique is that we do not hide from these issues; we investigate them, learn from our mistakes, and make sure they do not happen again. I have no doubt that an independent investigation into the abuse of detainees will be painful, but it is also a necessary step to moving forward.

Mr. President, I am pleased to join my colleague from Texas, Senator John Cornyn, in introducing what is our second cooperative action in this Congress to improve the implementation of the Freedom of Information Act, or FOIA. This bill, called the ``Faster FOIA Act of 2005,'' responds to commonly voiced concerns of FOIA requestors over agency delay in processing requests.

I want to express my appreciation to all of the FOIA officers and other Federal employees who work hard to process FOIA requests quickly and efficiently. I know that many simple requests are filled within a few days, and I understand that complex requests dealing with national security issues can take time for declassification, redaction, or release, as appropriate.

There are, nonetheless, significant delays at many agencies. In 2003, a non-governmental organization, the National Security Archive, looked into just how long some FOIA requests are left unfulfilled. The group found that the oldest requests dated back to the late 1980s, before the collapse of the Soviet Union. The oldest of these was a request to the FBI for information on the Bureau's activities at the University of California. First filed in November 1987, this request was partially fulfilled in 1996 after extensive litigation. According to the National Security Archive, the documents that were released revealed ``unlawful FBI intelligence activities and the efforts to cover up such conduct.'' After a 2002 article in the San Francisco Chronicle, and inquiries from Senator Feinstein, the Bureau acknowledged that there were at least 17,000 pages of records that still had not been produced. Since then, some data has been released, but the requestor recently told me that he believes more than 15,000 pages remain outstanding.

This is an extreme case, but delays are commonplace. Sometimes slowdowns are caused by poorly managed or decentralized data systems that result in an agency not knowing what documents are located where. Other times, components within a single agency do not effectively communicate with one another, so that no one can say whether a request has been filled or not. Finally, we have heard anecdotal evidence of certain agencies engaging in protracted disputes over fee waivers sought by FOIA requestors. I have worked closely with the Government Accountability Office over the past few years to obtain detailed analysis of how fees are collected and how fee waiver requests are processed. The analysts at GAO have looked long and hard at these issues. I am grateful for their efforts and look forward to the results of their study later this year.

One of the problems faced by GAO, and anyone else who has looked into agency delay, is the lack of comprehensive reporting data. We address this problem in our companion bill, S.94, the Open Government Act, by calling for more detailed reporting from agencies on FOIA processing.

These issues deserve a closer look in the short term, however. In this bill, we propose to establish a commission to review agency delay and to make recommendations for reducing impediments to the efficient processing of requests. The Commission would also examine whether the system for charging fees and granting waivers should be modified.

The Commission would be made up of government and non-governmental representatives with a broad range of experience in both submitting and handling FOIA requests, in information science, and in the development of government information policy.

I understand that many requests are complex and that the resources devoted to agency FOIA processing are often lacking. Our companion bill, S. 394, the Open Government Act, addresses this issue by establishing a FOIA ombudsman requiring the Office of Personnel Management to examine how FOIA can be better implemented at the agency level. If the Commission finds that limited resources are a significant factor in slowing down the fulfillment of requests, then Congress should address the issue by increasing funding levels for FOIA processing.

I want to thank the Senator from Texas for his diligent work and flexibility in crafting a Commission structure that is balanced and fair, and that will bring extraordinary expertise to solving these nettlesome problems. I urge all of our colleagues to support the Faster FOIA Act, which has the potential to help agencies and requestors alike in the service of open government.

Mr. President, I am pleased to join my colleague from Texas, Senator John Cornyn, in introducing what is our second cooperative action in this Congress to improve the implementation of the Freedom of Information Act, or FOIA. This bill, called the ``Faster FOIA Act of 2005,'' responds to commonly voiced concerns of FOIA requestors over agency delay in processing requests.

I want to express my appreciation to all of the FOIA officers and other Federal employees who work hard to process FOIA requests quickly and efficiently. I know that many simple requests are filled within a few days, and I understand that complex requests dealing with national security issues can take time for declassification, redaction, or release, as appropriate.

There are, nonetheless, significant delays at many agencies. In 2003, a non-governmental organization, the National Security Archive, looked into just how long some FOIA requests are left unfulfilled. The group found that the oldest requests dated back to the late 1980s, before the collapse of the Soviet Union. The oldest of these was a request to the FBI for information on the Bureau's activities at the University of California. First filed in November 1987, this request was partially fulfilled in 1996 after extensive litigation. According to the National Security Archive, the documents that were released revealed ``unlawful FBI intelligence activities and the efforts to cover up such conduct.'' After a 2002 article in the San Francisco Chronicle, and inquiries from Senator Feinstein, the Bureau acknowledged that there were at least 17,000 pages of records that still had not been produced. Since then, some data has been released, but the requestor recently told me that he believes more than 15,000 pages remain outstanding.

This is an extreme case, but delays are commonplace. Sometimes slowdowns are caused by poorly managed or decentralized data systems that result in an agency not knowing what documents are located where. Other times, components within a single agency do not effectively communicate with one another, so that no one can say whether a request has been filled or not. Finally, we have heard anecdotal evidence of certain agencies engaging in protracted disputes over fee waivers sought by FOIA requestors. I have worked closely with the Government Accountability Office over the past few years to obtain detailed analysis of how fees are collected and how fee waiver requests are processed. The analysts at GAO have looked long and hard at these issues. I am grateful for their efforts and look forward to the results of their study later this year.

One of the problems faced by GAO, and anyone else who has looked into agency delay, is the lack of comprehensive reporting data. We address this problem in our companion bill, S.94, the Open Government Act, by calling for more detailed reporting from agencies on FOIA processing.

These issues deserve a closer look in the short term, however. In this bill, we propose to establish a commission to review agency delay and to make recommendations for reducing impediments to the efficient processing of requests. The Commission would also examine whether the system for charging fees and granting waivers should be modified.

The Commission would be made up of government and non-governmental representatives with a broad range of experience in both submitting and handling FOIA requests, in information science, and in the development of government information policy.

I understand that many requests are complex and that the resources devoted to agency FOIA processing are often lacking. Our companion bill, S. 394, the Open Government Act, addresses this issue by establishing a FOIA ombudsman requiring the Office of Personnel Management to examine how FOIA can be better implemented at the agency level. If the Commission finds that limited resources are a significant factor in slowing down the fulfillment of requests, then Congress should address the issue by increasing funding levels for FOIA processing.

I want to thank the Senator from Texas for his diligent work and flexibility in crafting a Commission structure that is balanced and fair, and that will bring extraordinary expertise to solving these nettlesome problems. I urge all of our colleagues to support the Faster FOIA Act, which has the potential to help agencies and requestors alike in the service of open government.

Mr. President, am I correct that amendment No. 83 is pending?

Mr. President, I ask unanimous consent that Senator Warner, the senior Senator from Virginia, be added as a cosponsor to amendment No. 83.

Mr. President, I am joined by friends and colleagues, the senior Senator from Maryland, Mr. Sarbanes, and the senior Senator from Virginia, Mr. Warner, in offering a bipartisan amendment that will moderately preserve the current conflict-of-interest standards for investment banks. We are doing this to safeguard the integrity of the bankruptcy process.

Section 414 of the underlying bill would severely weaken the disinterested persons rule. That was an important conflict-of-interest standard. It has actually been part of the Bankruptcy Code since 1938. It has been there before I was born. We believe that the standard embodied in current law is critical to protecting the interests of investors and the public.

So our bipartisan amendment is a modest compromise. It limits the conflict-of-interest prohibition, not a total exclusion but just 5 years prior to the filing of the bankruptcy petition. In other words, a prohibition which has been the bankruptcy law forever would now be cut back just to apply in the 5 years immediately preceding the bankruptcy. I think it is a reasonable compromise.

The current disinterested persons standards are intended to ensure that professionals who advise a company in bankruptcy have no conflicts of interest, are neutral, and when we consider how huge some of these bankruptcy have been, Enron and others, we want somebody without a conflict of interest; we want somebody who can be neutral.

Since bankruptcy proceedings involve reexamining prior transactions, an investment bank that underwrote those prior transactions could not be expected to act as a neutral, disinterested party. It is almost like saying, I wrote these transactions when you went into this multimillion or multibillion-dollar bankruptcy but do not worry, I will now be the disinterested party to advise you where we go now.

I think the reason we have the current standard, the reason it has worked well for nearly 7 decades, is because it has helped maintain public confidence in the bankruptcy system.

Section 414 of the bill before us eliminates the current conflict-of- interest standard. It is a standard that prohibits investment banks that have had a close financial relationship with the debtor from playing a major role in the bankruptcy process.

I have talked to a lot of people who are far more knowledgeable on this than I, and they tell me you cannot expect that an investment bank that served as an underwriter of a bankrupt company's securities would then provide an independent assessment of that underwriting as an adviser in the bankruptcy of the company. In other words, you want to find somebody who can give you an independent, neutral assessment in bankruptcy of the underwriting. You don't go to the person who did the underwriting. Of course, they are going to say: Great job. Man, that person did a great job, whoever it was--oh, that was me? Boy, I did a great job.

The investors, especially in these huge bankruptcies, the pensioners who have suffered financial damage through the bankruptcy, deserve neutrality. They don't deserve somebody where it looks as if it is such a cozy deal there is no way they are going to recover.

If the bill is passed in its current form, the investment banks that advised or underwrote securities for companies such as Enron or WorldCom prior to bankruptcy, having advised or underwritten those securities, could then be hired to represent the interests of the defrauded creditors during the bankruptcy proceeding. Just think of this. The people who were involved in putting the creditors and the investors and the people whose pension money was in there, the people who were involved putting all their money at risk, can now be hired to represent their interest.

There is a blatant conflict of interest and that is why it has been forbidden for seven decades. Firms that had a part in those companies could then end up staying on the payroll in bankruptcy and they could make huge profits, sometimes from their own fraud.

What kind of message are we sending to those everyday Americans who invested for their kids' college or their own pensions, who suffered as a result of corporate misdeeds, if we then say that is OK, now we are going to give a whole lot of money to the people who set this mistake up in the first place?

We talked to the National Bankruptcy Review Commission. They strongly recommended that Congress keep the current conflict-of-interest standards in place. Actually, in their report they concluded:

Strict disinterestedness standards are necessary because of

the unique pressures inherent in the bankruptcy process.

These are the people who understand this better than anybody in this Chamber.

Supporters of the underlying bill have voiced their opposition to the inclusion of section 414. I wish they would listen to what a member of the Fifth Circuit Court of Appeals said, Judge Edith Jones. She is a member of the commission. She asked us to remove section 414. She said:

If professionals who have previously been associated with

the debtor continue to work for the debtor during a

bankruptcy case, they will often be subject to conflicting

loyalties that undermine their foremost fiduciary duty to the

creditors. . . .

Section 414, in removing investment bankers from a rigorous

standard of disinterestedness, is out of character with the

rest of this important legislation and . . . it should be

eliminated.

Again, if you have a bankruptcy of a WorldCom, an Enron, something like that, and you have all these people with the pension money in it, the kids' college funds in there, their business in there, their own retirement in there, you cannot then turn around and say we are going to let the same people decide what happens to you in bankruptcy as the people who did the things that put us into bankruptcy in the first place.

William Donaldson is the Chairman of the Securities and Exchange Commission. He wrote to us to express the opposition of the SEC to section 414 of the bill. He said:

[We] believe that it would be a mistake to eliminate the

exclusion in a similar one-size-fits-all manner at a time

when investor confidence is fragile.

Keep that in mind. It does something further. Not only do we end up hurting the people who have to rely on the bankruptcy court being honestly run, but he also wants to keep up investor confidence. He was joined in that position by his predecessor Arthur Levitt, and by a number of nationally renowned experts. National consumer organizations have written to us to warn of the danger of weakening conflict-of- interest controls, as this bill would allow:

If the participants in Enron's earlier financial dealings

had managed the investigation, it is quite legitimate to

wonder how many of these financial misdeeds would have come

to light in the first place. Without existing conflict-of-

interest prohibitions in place, it is possible that some of

the same firms that have come under investigation by the SEC

for illegal activities in the current corporate scandals

might very well have been allowed to serve as ``objective''

advisers in this and other bankruptcy proceedings.

I ask unanimous consent a letter from the Consumer Federation of America, the Consumers Union, Consumer Action, U.S. Public Interest Research Group, and the National Consumer Law Center be printed in the Record.

This is not the time to weaken conflict-of-interest standards. If we are doing anything, we ought to be strengthening conflict-of-interest standards. The provisions Senators Sarbanes and Warner and I seek to modify are fundamentally at odds with the work of the Congress and the SEC, fundamentally at odds with the work to restore public confidence in financial and corporate transactions. I thank them for offering this with me.

All we want to do is to make sure we increase the confidence and accountability in our public markets for millions of Americans whose economic security is threatened by corporate greed and not have the Senate put an imprimatur on the use of people with enormous conflicts of interest, especially when consumers are hurting so badly.

I see the senior Senator from Maryland. He is far more familiar with how these things have worked in these major corporations. He is the author of the Sarbanes-Oxley bill. I yield the floor to the Senator from Maryland.

If the Senator will yield for a question without losing his right to the floor, I ask the Senator from Maryland, if the bill was passed in its current form, could investment banks that advised or underwrote securities for companies such as Enron or WorldCom that filed bankruptcy, which ended up defrauding investors, could they then be hired to represent the interests of the same defrauded creditors during the bankruptcy proceeding?

The way the bill is now written, without our amendment, could they then be hired to represent the interests of the defrauded creditors?

Mr. President, I ask for the yeas and nays on the amendment.

Mr. President, we have had a good debate. I mentioned to the Senator from Iowa, I don't know if other people wish to speak, but I am perfectly willing to go ahead and have a vote. I know the leadership is trying to move things along and get things going. I am willing to have a vote.

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

Mr. President, since we have the list of cosponsors of the pending amendment, I ask unanimous consent that the Senator from Virginia, Mr. Warner, be removed as a cosponsor.

Mr. President, I suggest the absence of a quorum.

Mr. President, my amendment, cosponsored by my friend and colleague, Senator Cantwell, would greatly assist the many victims of domestic violence whose physical well-being or whose children's physical well-being would be threatened by summary eviction as a result of filing or bankruptcy. I ask unanimous consent that the text of our amendment be printed in the Record after my remarks.

The connection between domestic violence, economic abuse, and housing is overwhelming. Women and children who are fleeing domestic violence make up a significant portion of the homeless population. According to the United States Conference of Mayors, 57 percent of cities surveyed identified domestic violence as a primary cause of homelessness.

These women and children are homeless because in their desperate attempt to leave their abusers they find themselves with few, if any, funds with which they can support themselves. Victims of domestic violence have a tough time finding room at emergency homeless or domestic violence shelters, and often fail to find adequate housing because affordable, long-term housing is not available in so many communities. If housing is available there are often long waiting lists. Victims face unique causes of their financial hardships due to the fact that batterers frequently harass their victims at work, and survivors are often fired or cannot maintain steady employment resulting in losing the ability to pay for housing. Faced with the lack of stable housing, finances and services, victims must choose between life with an abusive partner and life on the streets.

Our amendment would provide leniency for women and children who are affected by domestic violence and would, in fact, help victims to move forward and start new lives. Without the threat of losing their housing, women and children who are survivors of domestic violence will not be forced to a situation where they are homeless or returning to their abuser.

This amendment would modify the bankruptcy code to ensure better protection for victims of domestic violence by granting them relief from summary eviction from their rental housing. Relief may be granted only under the condition that the debtors certify under penalty of perjury that they are victims of domestic violence whose physical well- being or whose children's physical well-being would be threatened through eviction. our amendment would not allow families to take advantage of the system, but it will be a life-saver for those who would face danger if they lost their homes.

This amendment is supported by the National Coalition Against Domestic Violence, the National Network To End Domestic Violent and the Family Violence Prevention Fund. I ask unanimous consent to print in the Record letters from those groups voicing that support.

Congress must recognize that victims of domestic violence face dangerous situations and should not be forced from housing due to their financial difficulties. We cannot force women and children who have endured domestic violence from safe spaces that provide the stability needed to make a new life.

Exhibit 1

(Purpose: To protect victims of domestic violence who file for

bankruptcy from summary eviction if their physical well-being is

threatened)

On page 156, line 18, insert ``, unless the debtor

certifies under penalty of perjury that the debtor is a

victim of domestic violence whose physical well-being or

whose children's physical well-being would be threatened if

relief from the stay is granted'' before the semicolon.

regulating credit cards

Mr. President, I, again, join in the introduction of our NOPEC bill. I am sincerely sorry that this bill has not yet become law, and I hope that the situation we face as a nation will lead the Senate to recognize the toll that the OPEC producers are exacting from the American people. As gasoline prices continue to skyrocket, exceeding $2 a gallon in many communities, we must have a real correction. As heating oil prices have soared, the President needs to take notice. Without correction and containment, consumers across the nation will continue to suffer.

The relentless increases in gasoline prices are not the result of natural supply issues. Rather, they are largely due to market manipulation by OPEC, a cartel of those controlling production and supply of oil from the Middle East. When the Antitrust Subcommittee of the Committee on the Judiciary held its hearing on gas prices last year, experts from several fields, both in and out of government, confirmed for us what we already suspected: The higher prices are due to the OPEC cartel that sets production quotas for it members and prevents the free market from setting crude oil prices. The testimony at that hearing revealed that most of the gasoline price increase can be explained by OPEC's unfair production quotas.

The artificial pricing scheme enforced by OPEC affects all of us, not the least of whom are hardworking Vermont farmers. As USDA's Cooperative Extension Office in New Hampshire recently found, the increasing energy costs may add $5,000 or more to the total costs of operating a 100-head dairy operation in the Northeast. In addition, soaring prices have affected a variety of industries across the United States, and will likely force many Americans to make tough choices about family travel.

Over the last year, I have expressed concern that gasoline prices would simply continue to rise. I have hardly been alone in that belief, and I am sorry to say that my prediction has borne fruit. Sadly, that fruit is bitter for those forced to pay ever higher prices to go about their daily lives. This week, the average price for regular gasoline reached $2.00 per gallon. Our economy, our farmers, and our families need relief now. They also need good policy. In the absence of White House leadership, Congress should provide law enforcement the tools needed to fight anticompetitive practices.

If OPEC were simply a foreign business engaged in this type of behavior, it would already be subject to American antitrust law. It is wrong to let OPEC producers off the hook just because their anticompetitive practices come with the seal of approval of the member nations. I urge the Senate to support this bill and to say ``No'' to

Mr. President, I rise today to discuss an issue which, while not one that you would likely read about on the front page of the newspapers, is important nonetheless. It concerns the alarming rate of deterioration of the habitat of the Irrawaddy Dolphin in Southeast Asia. Recent statistics indicate that there are fewer than 100 Irrawaddy left in the world.

The International Union for the Conservation of Nature has placed the Irrawaddy Dolphin on its list of critically endangered species. The primary reasons for this sharp decline include destructive fishing practices, such as the use of dynamite or electric current, and mercury runoff from gold mines. These practices are leading to the extinction of an entire species.

Why should we care? Perhaps a quote from President John Kennedy provides the best answers to this question. In a 1963 address at American University, President Kennedy said ``. . . in the final analysis, our most basic common link, is that we all inhabit this small planet, we all breathe the same air, we all cherish our children's futures, and we are all mortal.''

I know every Member of the Senate wants to make the world a better place for our children and grandchildren. I am almost as certain that ensuring the survival of the Irrawaddy dolphin, an extraordinary species, would be something that we could do to help achieve this goal.

Congress has spoken on this issue. In the Senate report that accompanied last year's Foreign Operations Appropriations Act, Congress directed the U.S. Agency for International Development, USAID, to devise a strategy to help reverse the habitat decline of the Irrawaddy dolphin.

Some important nongovernmental organizations are already working on this issue, including the Wildlife Conservation Society and the Bronx Zoo in their Species Survival Program partnership. I hope USAID's strategy, which is due shortly, will be a first step in forming a public-private partnership that will prevent the Irrawaddy dolphin from going the way of the dodo and the passenger pigeon.

Once a species is gone, it is gone forever. We need to be sure this does not happen.

Mr. President, the recent debacles at ChoicePoint and Bank of America remind us that we must vigilantly protect our personal information at all points of vulnerability. The bankruptcy process, which inherently involves the exchange of highly personal information, should be no different.

This is a bipartisan amendment that balances the need to protect personal

information with the needs of creditors, regulators and law enforcement to access critical information. The amendment is strongly supported by the non-partisan Judicial Conference, and also by the Center for Democracy and Technology.

I am pleased that my colleagues Senator Snowe and Senator Cantwell have agreed to cosponsor this amendment, and that Chairman Specter and Senator Grassley worked so closely with us to improve the amendment even further. They have all been leaders on privacy issues, and I appreciate their support.

Our bipartisan amendment does two things. It enhances court discretion to balance the need to know against the need to protect personal information, and it requires truncation of social security numbers in publicly filed documents. This protection is particularly important in an electronic filing environment, where information once filed is immediately available to the public via the Internet.

The amendment allows the court, for cause, to protect personal information. For example, the court can seal or redact information, such as the home or employment address of a debtor, because of a personal security risk, including fear of injury by a former spouse or stalker. The amendment would also give the court the leeway to protect other information normally considered private, such as personal medical records.

Our bipartisan amendment still protects law enforcement and creditors where necessary. A law enforcement provision ensures that police and regulators can get needed information directly from the bankruptcy court, and a creditor protection provision specifies that creditors, including the IRS, receive the full Social Security number of a debtor in the initial notice of the case. Finally, we also clarify that these protections should not limit the access of the trustees, administrators and auditors to necessary information.

We must be careful that our efforts to require documentation for accuracy and accountability do not inadvertently create problems for privacy and security. As modified, the amendment properly balances these concerns, and protects the needs of those who need to know.

This has been a cooperative, bi-partisan effort, I extend special thanks to Senator Snowe, Chairman Specter, and Senator Grassley for all their hard-work in reaching an agreement, and I am pleased to submit this modification.

I ask for the yeas and nays.

Mr. President, I stand to voice my support for the amendment offered by my friend and colleague, Senator Durbin, which will protect our military servicemembers from attempts to penalize them by making it tougher for them to file for bankruptcy, even when the reason they lost all their income is because they answered the call of duty to serve America. I am proud to join my colleague as a cosponsor of this amendment.

We cannot have a thorough debate on bankruptcy reform without considering the economic hardships faced by servicemembers and their families. Calls to serve their country in Iraq, Afghanistan, or elsewhere can cause loss of family income, the closing of a family business, or unexpected expenses. Unfortunately, it is not uncommon for servicemembers and their families to be forced into filing for bankruptcy relief. We need to protect those who are fighting for us.

I support Senator Durbin's efforts to protect our soldiers, particularly young recruits and junior officers, from sales of inappropriate insurance and investment products on military bases. It is crucial that servicemen and women who sacrifice for their country not be exploited or taken advantage of through dishonest business practices. It is our duty to ensure that America's military personnel are offered first-rate financial products so they can provide for their families and invest in their futures.

I commend Senator Durbin for his leadership on this issue, and I urge my colleagues to accept his amendment so we can remedy the financial hardships faced by servicemembers who serve our nation and their families.

Amendment No. 23

Mr. President, I thank the Senator from Illinois and the Senator from Alabama for their usual courtesies. I ask unanimous consent that it be in order to set aside, under our understanding, the pending amendment so I might introduce an appropriately referred amendment for myself, Senator Snowe, and Senator Cantwell.

Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with.

Mr. President, the reason for this amendment--and I realize we will not vote on it today and we may vote on it tomorrow, although it may well be accepted--is one of the facts we have today.

The bankruptcy process requires the submission of many documents containing highly personal information. But we must be careful that our efforts to require documentation for accuracy and accountability do not inadvertently create problems for privacy and security.

We are in an age where personal information can be easily digitized and shared, and when it falls into the wrong hands, easily abused.

Identity theft is one danger. We have only to look to the recent debacle of Choicepoint selling the personal data of 145,000 individuals to scam artists. Many of these individuals have already become victims of identity theft, and they are not alone. Last year alone, 9.3 million people were victimized by identity theft. Another danger is tracking or harassing a former battered spouse. We need to minimize these possibilities, while still allowing for accountability.

We took an important first step by ensuring privacy protections for databases of personal information that become assets in bankruptcy. I was pleased to work closely with my colleagues in providing this protection.

But our responsibilities didn't end there. We also need to ensure reasonable privacy protection for personal information that is submitted by the debtors. I am submitting an amendment that will do just that by enhancing the court's discretion to protect personal information, and by requiring truncation of social security numbers in publicly filed documents. The Judicial Conference supports this amendment and I will ask unanimous consent that the Judicial Conference letter supporting the amendment be printed in the Record.

I am pleased that my colleagues Senator Snowe and Senator Cantwell have agreed to co-sponsor this amendment. They have been leaders on privacy issues, and I appreciate their support.

First, the amendment addresses court discretion in several ways. It allows the court, for cause, to protect personal identifiers, including the debtor's or other person's name, social security account number, date of birth, driver's license number, passport number, employee or taxpayer identification number, and unique biometric data. The personal identifiers protected under this provision are the same ones defined as ``means of identification'' under the Identity Theft Assumption Deterrence Act of 1998. This definition is codified as Section 1028(d) of Title 18 of the criminal code.

The amendment also allows the court, for cause, to seal or redact ``information that could cause undue annoyance, embarrassment, oppression or risk of injury to person or property.'' This standard is drawn from the current civil procedure discovery rules--Fed. Rule of Civ. Procedure 26--and would replace the existing standard in bankruptcy court, which only protects individuals against ``scandalous or defamatory matter.'' This change would allow the court to protect information, such as the home or employment address of a debtor, because of a personal security risk, including fear of injury by a former spouse or stalker. It would also allow the court to protect other information normally considered private, such as medical information.

The amendment would also provide persons the opportunity to request protection of sensitive information not only after it is filed with the court, but prior to filing as well. This protection is particularly important in an electronic filing environment, where information once filed is immediately available to the public.

In addition to enhancing court discretion, the amendment also protects social security numbers. Currently, the bankruptcy code requires debtors to include their tax payer identification numbers, which for individuals is almost uniformly his or her social security number, on any notice the debtor gives to creditors.

Because these notices are also filed with the court, the court's files routinely include unredacted social security numbers, creating the potential for abuse by those accessing public court records.

The amendment would simply allow debtors to limit disclosure to only a part of his or her social security number in notices that it files with the court. Specifically the notice to the court would include only the last four digits. The amendment still protects creditors where necessary, and specifies that creditors who are on the

schedule of assets and liabilities should receive the full tax payer identification number in the notices sent specifically to the creditor.

The idea of truncation isn't new. Just last year, we passed the Fair and Accurate Credit Transactions Act of 2003, and that Act required truncation of credit card and debit card numbers on receipts given to cardholders. Under that law, only the last 5 digits of credit card and debit card numbers can be printed.

Requiring truncation for social security numbers is similarly reasonable. It provides protection against abuse, but still allows for important information sharing to take place.

The bankruptcy process requires submission of many documents containing highly personal information. I spoke about this on the floor yesterday. We must be careful that our efforts to require documentation for accuracy and accountability do not inadvertently create problems for privacy and security.

We are in an age where personal information can be easily digitized and shared, and when it falls into the wrong hands, easily abused. We know what happens with identity theft. Look at the totally irresponsible, outrageous, unbelievable debacle of Choicepoint, selling the personal data of 145,000 individuals to scam artists. It is hard to think of anything being done more irresponsibly than the executives at Choicepoint, unless it is the executives of Bank of America, who ship the data of their customers by commercial airplane--the same kind of flight we have all taken, and all of us have lost luggage. I said yesterday maybe their executives fly by private planes and they don't know what it is like to fly commercial. The point is their irresponsibility.

Many of the individuals who have had data stolen become victims of identity theft. There were 145,000 individuals whose data was compromised with Choicepoint that we know of now. Some have already become victims of identity theft. Last year alone, 9.3 million people were victimized by identity theft. Another danger is tracking or harassing a former battered spouse. I want to make sure we keep accurate information and that people have to say who they are, but we don't want to allow somebody to go into electronic court files and get Social Security numbers and names and addresses and everything else, and then use that information for identity theft or worse. We need to minimize these possibilities, while still allowing for accountability.

We took an important first step by ensuring privacy protections for databases of personal information that become assets in bankruptcy. I was please to work with my colleagues in providing this protection. But our responsibilities did not end there. We also need to ensure reasonable privacy protection for personal information submitted by the debtors. This amendment will do that by enhancing the court's discretion to protect personal information, and by requiring truncation of social security numbers in publicly filed documents.

I have a letter from the Judicial Conference of the United States, Chief Justice Rehnquist presiding, in which they support this amendment. They strongly support this amendment. These are the courts that are going to have to enforce this.

I ask unanimous consent that the Judicial Conference letter supporting the amendment be printed in the Record.

Mr. President, I am pleased my colleague from Maine, Senator Snowe, and my colleague from Washington State, Senator Cantwell, have agreed to cosponsor this amendment. They both have been leaders of privacy issues. I appreciate their support.

Here is what the amendment does: It addresses court discretion in several ways. It allows the court for cause to protect personal identifiers, including the debtor's or other person's name,

Social Security account number, date of birth, driver's license number, passport number, employee or tax identification number, and unique biometric data. The personal identifiers protected under this provision are the same ones defined as ``means of identification'' under the Identity Theft Deterrence Act of 1998. This definition is codified in Section 1028(d) of Title 18 of the criminal code.

The amendment also allows the court, for cause, to seal or redact ``information that could cause undue annoyance, embarrassment, oppression or risk of injury to person or property.'' This standard is drawn from the current civil procedure discovery rules. This change would allow the court to protect information, such as the home or employment address of a debtor because of a personal security risk. Unfortunately, many times that risk is from a former spouse or a stalker. It would also allow the court to protect other information normally considered private, such as medical information.

The amendment would provide persons the opportunity to request protection of sensitive information not only after it is filed with the court, but prior to filing as well. This protection is particularly important in an electronic filing environment, where information once filed is immediately available to the public.

In addition to enhancing court discretion, the amendment also protects Social Security numbers. Currently, the bankruptcy code requires debtors to include their tax payer identification numbers (which for individuals is almost uniformly his or her social security number) on any notice the debtor gives to creditors. Because these notices are also filed with the court, the court's files routinely include unredacted social security numbers, creating the potential for abuse by those accessing public court records.

This amendment would simply allow debtors to limit disclosure to only a part of his or her social security number in notices filed with the court. Specifically the notice to the court would include only the last four digits.

This amendment still protects creditors where necessary, and specifies that creditors who are on the schedule of assets and liabilities should receive the full tax payer identification number in the notices sent specifically to the creditor. What it means is somebody cannot get on line, get all this information, sell it, or do whatever they want to.

The idea of truncation isn't new. Just last year, we passed the Fair and Accurate Credit Transactions Act of 2003, and the Act required truncation of credit card and debit card numbers on receipts given to cardholders. Under that law, only the last 5 digits of credit card and debit card numbers can be printed. Requiring truncation for social security numbers is similarly reasonable. It provides protection against abuse, but still allows for important information sharing to take place.

I yield the floor.