Floor Statements

Mr. President, I will not at this point speak quite as long. Because I will not use the same amount of time now, I ask unanimous consent that the Senator from California, Mrs. Feinstein, be allowed to follow my remarks.

Mr. President, I ask unanimous consent to have printed in the Record a number of recent editorials regarding the nomination of Alberto Gonzales.

Mr. President, today we are beginning the debate on the nomination of Alberto Gonzales to be Attorney General of the United States.

When I first heard of this nomination last November, I was hopeful. I saw this nomination as a chance for some long missing accountability on some of the most pressing issues facing our Nation. I noted at the time that I like and respect Judge Gonzales. I met with him soon after his designation and wrote to him, following up on that meeting, to inform him in advance of his confirmation hearing about issues that would be raised about several key issues. I listened carefully to him during our confirmation hearing.

The road he has traveled from being a 12-year-old boy selling soft drinks at football games, all the way to the State House in Texas and to the White House, is a tribute to him and to his family. In spite of our disagreements on issues, I have sought to maintain a cordial personal working relationship with Judge Gonzales during his years as President Bush's counsel. As Senator Kennedy has said, I dearly wish that we could vote for that compelling story, and not for the nominee whose record is before us. In my case, I will vote based on the record.

It saddened me to call Judge Gonzales last week and tell him that I could not in good conscience vote to confirm his nomination to be Attorney General, the chief law enforcement officer of the Nation. He is not the person for this job.

My reasons for voting against Judge Gonzales arise from the need for accountability and derive from the nominee's involvement in the formulation of a number of policies that have tarnished our country's moral leadership in the world and put American soldiers and American citizens at greater risk.

When President Bush announced this nomination he said that he chose Judge Gonzales because of his ``sound judgment'' and role in shaping the Administration's policies in the war on terrorism. Based on the glimpses of secret policy formulations and legal rationales that have come to light, I believe his judgments not to have been sound. On the contrary, several of this Administration's legal policies have been exceedingly harmful to our national interests.

As Attorney General, the nominee's judgment about our laws would be of enormous consequence.

This is a different type of Cabinet position than many others. In many Cabinet positions, such as the Secretary of State, the Secretary of Treasury, and others, the Cabinet member states the President's position. They state the President's position and carry out the President's policies. The Attorney General is different. The Attorney General is not the Attorney General of the President; he is the Attorney General of the United States. This is a position where the cabinet member has enormous flexibility to carry out decisions--to bring prosecution or withhold it, to begin an investigation or to withhold an investigation, to determine to go into a place where he believes there may have been a voting rights violation or to say there is none. This individual must be independent of the President.

Judge Gonzales has championed policies that are in fundamental conflict with decades of laws, sound military practice, international law, and human rights. He remained silent for almost 2 years about a deeply flawed and legalistic interpretation of our Nation's torture statute. He also accepted a patently erroneous interpretation of the torture convention and apparently believes that the President, when acting as Commander in Chief, is above the law.

When I asked Judge Gonzales if he agreed with the Bybee memo's very narrow reading of the law, he replied: ``I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement

with the conclusions then reached by the Department.'' This is the memo which concludes that ``physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.'' Even the Justice Department repudiated this legal memorandum, once it became public.

Under his restrictive redefinition such practices as threatening a prisoner with a firearm in a mock execution, ``waterboarding'' a person to make him experience the suffocating effects of drowning, and, as Senator Kennedy noted, perhaps even cutting off a person's fingers one joint at a time would not amount to ``torture.'' But surely we consider these practices torture when done to a member of the U.S. military or to an American citizen.

How can we, the greatest Nation on Earth, stand up and say such acts are not torture if committed against foreign detainees?

Perhaps most disturbing of all as a legal matter is the nominee's positing of the President as above the law. Nothing is more fundamental about our constitutional democracy than our basic notion that no one is above the law. Yet at his June 2004 news conference and again in his testimony before the Judiciary Committee he indicated that he views the President to have the power to override our law and, apparently, to immunize others to perform what would otherwise be unlawful acts. This is about as extreme a view of executive power as I have ever heard. I believe it is not only dead wrong as a constitutional matter but extremely dangerous. The rule of law applies to the President, even this President.

From the time of George Washington to George W. Bush, we have always maintained that in our Nation no one is above the law--not the President, not a Senator, not a judge, not anyone in our country.

Ironically, it was the administration of this President's father that urged the Senate to ratify the torture convention. It did so to make clear that the United States condemns torture and to protect Americans from this barbaric practice. But if the U.S. President does not feel bound by the torture convention, then neither will other foreign leaders.

Ultimately, the Attorney General's duty is to uphold the Constitution and the rule of law--not to work to circumvent it. Both the President and the nation are best served by an Attorney General who gives sound legal advice and takes responsible action, without regard to political considerations--not one who develops legalistic loopholes to serve the ends of a particular administration.

The Attorney General appointed by the President's father remarked: ``Nothing would be so destructive to the rule of law as to permit purely political considerations to overrun sound legal judgment.'' Judge Gonzales demonstrates a lack of independence from the President, something that we cannot have in the chief law enforcement officer in the nation. He cannot interpret our laws to mean whatever the President wants them to mean. To do so would deny us the constitutional protections upon which this nation was founded. The Attorney General is supposed to represent all of the American people, not just one of them.

We have seen what happens when the rule of law plays second fiddle to the President's political agenda. This Administration has taken one untenable legal position after another regarding the rule of law in the war against terror. It will not admit to making mistakes. It takes action only after mistakes are made public and become politically indefensible.

Given the Republican Party's leadership in Congress, the Federal courts have provided what little check there has been on this President's claim of unfettered Executive power. The Congress has failed to do any real oversight of that use of power.

Judge Gonzales's nomination initially seemed like a breath of fresh air. I have noted how much I personally like him. I think most people do. But as I told the nominee when we met within days of the announcement of his nomination, these confirmation proceedings matter. The proceedings matter because it is the responsibility of this Senate to explore Judge Gonzales's judgment and actions in connection with the tragic legal and policy changes formulated in secret by this administration and still cloaked from congressional oversight and public scrutiny. Part of it is the fault of the Congress which has not conducted vigorous oversight, but a large part of this problem is due to an administration that has not answered the questions asked by both Republicans and Democrats.

America's troops and citizens are at greater risk because of those actions and their terrible repercussions throughout so much of the world. America's moral standing and leadership have been undercut. The searing photographs of Abu Ghraib have made it harder to create and maintain the alliances we need to prevail against the vicious terrorists who threaten us, including those who struck America 9 months into this President's first term.

Those abuses at Abu Ghraib have served as recruiting posters for the terrorists. That is why this process matters. The confirmation process shows that on the question of judgment, Judge Gonzales is the wrong man for this job.

After his recent inaugural address, I praised President Bush for the eloquent words he said about the United States' historic support for freedom. But to be true to that vision, we need a government that leads the way in upholding human rights, not one that secretly develops legalistic rationalizations for circumventing human rights.

To reclaim our moral leadership in the world, and to become a true messenger of hope instead of a source of resentment, we need to acknowledge wrongdoing and show accountability for mistakes that have been made.

We have seen departures from our country's honorable traditions, practices, and established law in the use of torture, originating at the top ranks of authority and emerging at the bottom. At the bottom of the chain of command, we have seen a few courts martial. But at the top, we have seen medal ceremonies, pats on the backs, and promotions.

Between these two dissonant images, there is a growing accountability gap. The administration's handling of this confirmation process, which could have helped to narrow the gap, has served to widen it.

I believe in redemption in public life, as in spiritual life, but to get to redemption, first there has to be accountability. This administration has a large and growing accountability deficit. Judge Gonzales, who could have become a part of the solution, remains a part of the problem.

Now more than ever we need an Attorney General to serve all Americans. There is much that has gone wrong that this administration has stubbornly refused to admit or correct. For this democratic Republic to work, we need greater openness and accountability. It is with those critical considerations in mind that I must vote against this nomination.

I believe under the earlier order, the Senator from California is now going to be recognized.

Then, Mr. President, I ask unanimous consent that following Senator Hatch, Senator Schumer be recognized.

Mr. President, I understand we are coming back at 2:15 p.m. after the caucuses?

I ask unanimous consent that we lock in 10 minutes at 2:15 p.m. for the Senator from Maryland, Ms. Mikulski.

I thank the distinguished senior Senator from Pennsylvania, and I yield the floor.

Yes, at 2:15. We don't have to break at 12:30. We could continue on. I was off the floor. What was the request?

I don't have the floor.

If the Senator will withhold, how much longer does the Senator from Utah have?

Reserving the right to object, it would be Senators Schumer, Hatch, Cornyn, and Kennedy?

I have no objection.

Mr. President, last week I listened to the comments of my friend, the senior Senator from Missouri, regarding the devastating impact of the tsunami in Aceh, Indonesia, which caused so much loss of life and destruction of property. Senator Bond paid tribute to the contributions of American relief agencies that have done so much to alleviate the suffering there, and I want to echo those comments.

He also expressed concern about what he called ``unintended consequences'' of restrictions on our assistance to the Indonesian military, otherwise known as the TNI. Specifically, he referred to the International Military Education and Training Program, and spare parts for C-130 aircraft.

I want to respond to that portion of Senator Bond's remarks, to be sure there is no misunderstanding about what our law says.

To begin with, I want to disabuse those who might be misled by some Indonesian officials who often mistakenly refer to a U.S. military ``embargo'' against Indonesia. I ask unanimous consent that a Defense Department document from our Embassy in Jakarta, which describes the many programs and other contacts we currently have with the TNI, be printed in the Record at the end of my remarks.

The fact is that the TNI participates in training programs under both the expanded International Military Education and Training, E-IMET, program and the Counterterrorism Fellowship Program, CTFP. This is the largest CTFP program currently underway anywhere in the world. Millions of dollars have been appropriated for these programs in recent years, including for the types of defense management, military justice, civil military relations, and other courses that

the Senator from Missouri and I support. The TNI is participating in the E-IMET program which Congress has funded at the level requested by the Bush administration.

Our law also does not prevent military exercises and other contacts with the U.S. military through officer visits, educational exchanges, and port visits. Perhaps the most visible evidence of this is the U.S. military working side by side with the TNI during the ongoing humanitarian relief operations in Aceh.

With respect to training, U.S. law restricts only the full restoration of regular IMET assistance until the Indonesian Government and the TNI ``are cooperating'' with the FBI's investigation into the August 31, 2002, murders of two American citizens and one Indonesian citizen. By ``cooperating,'' we obviously mean not simply cooperating in limited ways, but fully cooperating. I am concerned with reports that the TNI may have conspired with the shooters in that case, and that the one Papuan individual who has been indicted, who is not a member of the TNI, remains at large even though his whereabouts are reportedly known to the TNI.

With respect to equipment, our law does not restrict the sale of non- lethal equipment to the TNI. Specifically, with regard to spare parts for the C-130's, there has been no change in U.S. law, although I am told that there may have been a relaxation of this administration's policy. Our law does not and never has prevented the sale of spare parts for these aircraft for humanitarian purposes. Over 4 years ago, when the TNI first requested to purchase C-130 spare parts for ``search and rescue'' missions, the U.S. Ambassador and I, as well as, I am told, the Secretary of Defense, informed the Indonesians that this was not prohibited by either U.S. law or policy and that they could purchase these parts from us. For reasons the Pentagon is aware of, the TNI decided to obtain them elsewhere.

The only conditions on the sale of lethal equipment are that the Indonesian Government is prosecuting and punishing members of the TNI for gross violations of human rights, and that the TNI is (1) taking steps to counter international terrorism consistent with democratic principles and the rule of law; (2) cooperating with civilian judicial authorities and with international efforts to resolve cases of gross violations of human rights; and (3) implementing financial reforms to deter corruption.

There are good reasons for these limited conditions. The United States has provided hundreds of millions of dollars in training and equipment to the Indonesian military since the 1950s. Despite the close relationship that developed between the U.S. military and the TNI over four decades, the TNI acquired a reputation for being notoriously abusive and corrupt. After the TNI murdered some 200 civilians in a cemetery in Dili, East Timor in 1992, our IMET assistance was cut off. Our relations with the TNI were further curtailed in 1999, after the independence referendum in East Timor when the TNI orchestrated widespread killings and the destruction of property. Although senior TNI officers have repeatedly vowed to support reform, they have done next to nothing to hold their members accountable for these heinous crimes. Instead, the TNI has consistently obstructed justice.

I should note that these conditions do not apply to the Indonesian navy. Congress specifically exempted the navy because enhancing maritime security is a critical priority.

There are also credible reports that after 9/11, the TNI provided support to radical Indonesian groups that have been involved in terrorism.

Since 1999, restrictions on our relations with the TNI have been narrowed, and today, as I mentioned, we have a wide range of military- to-military activities.

I am disappointed that some Pentagon officials and my friend from Missouri, rather than acknowledging the extent of the United States- Indonesia military relationship and urging the TNI to demonstrate that it is serious about reform by meeting these reasonable conditions, have expressed support for weakening our law.

Indonesia's new President Yudhoyono is a career military officer. He has a reputation as a reformer, and I wish him well. I have always supported substantial economic assistance to Indonesia. In fact, Senator McConnell, the Chairman of the Foreign Operations Subcommittee, and I have worked to increase this assistance.

Prior to President Yudhoyono's election, there were some important reforms which reduced the TNI's influence in politics. But a key gap remains regarding justice for the victims of atrocities, including crimes against humanity. This is the focus of our law, and it is as important to Indonesia and the TNI as it is for the United States. I believe that President Yudhoyono should agree and want the TNI to make these necessary reforms.

I applaud the U.S. military and the TNI for working together to bring aid to tsunami victims in Aceh. But just as our policy should promote cooperation in humanitarian operations and in counterterrorism, so should it promote respect for human rights, accountability, and the rule of law. These are fundamental to the freedom and democracy that President Bush spoke of in his inaugural address. Our law, which was narrowly written to provide an incentive for reform while allowing military contacts to continue, strikes the right balance.

Exhibit 1

Mr. President, reserving the right to object, and I will not object, I also ask, for purposes of debate on the Gonzales nomination, unanimous consent that floor privileges be granted to Matthew Nelson.

Mr. President, I am pleased that today the Senate will pass the Family Entertainment and Copyright Act of 2005. This bill completes the ambitious package of intellectual property legislation that we undertook, along with our counterparts in the House of Representatives, to enact at the end of the 108th Congress. This is a bipartisan bill that makes important changes to our copyright laws and that will help ensure the preservation of America's cultural heritage. Today's passage of this bill is testimony to the efforts of several in this Chamber to ensure we make good law, capable of swift enactment, and for that I thank in particular the bill's cosponsors, Senators Hatch, Feinstein, Alexander, and Cornyn.

The FECA bill is made up of four important provisions. Title I of the bill contains the ART Act, which will criminalize the use of camcorders to steal movies surreptitiously from the big screen. The second title of the bill is the Family Movie Act, which was designed to allow consumers to view only those portions of movies, in their own homes, that they want to. Title III of the bill contains the Film Preservation Act, legislation that I sponsored in the last Congress. The Film Preservation Act will allow the Library of Congress to continue its important work in preserving America's fading film treasures. What is more, the bill will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public. Finally, the bill contains the Preservation of Orphan Works Act, which will correct a drafting error in the Sonny Bono Copyright Term Extension Act and will allow libraries to create copies of orphan works--copyrighted materials that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price.

I thank the cosponsors of the Family Entertainment and Copyright Act, and I hope the House of Representatives will move with dispatch to pass and send to the President this consensus legislation.

Mr. President, I am glad that we have had a few more days to consider and hours to discuss this nomination. Some have suggested that we should have simply ``voice voted'' Dr. Rice's nomination so she could be confirmed in time for the inauguration. Senators are here to advise and consent, not rubber stamp for the White House's convenience.

We needed this extra time for debate. The Secretary of State is the chief foreign policy adviser to the President and fourth in the line of Presidential succession. And, like some other Senators, I was disappointed by Dr. Rice's testimony before the Foreign Relations Committee last week.

I had hoped that her testimony would demonstrate the kind of forthright, objective analysis that I believe we need in a Secretary of State. Unfortunately, it did not. I share the serious concerns expressed by Senator Boxer and Senator Kerry, and I commend them and other Senators for voicing them.

I have not been impressed with Dr. Rice's performance as National Security Adviser. Strong leadership, openness, and sound judgment have been far less evident at the National Security Council during her tenure than I would have liked.

I also believe that she has not always been forthright with Congress or the American people. She contributed to the exaggerated public statements, false information in the President's State of the Union speech about Iraq's supposed attempts to acquire nuclear material, and the selective declassification of intelligence, which helped to create an atmosphere of hysteria that led us into war in Iraq. She and others created the false--the false--impression that Iraq posed an imminent threat to the United States.

These were serious failures, made worse by Dr. Rice's unwavering advocacy and support for the administration's policies that have cost the lives of over 1,300 American soldiers and an estimated 100,000 Iraqis, many of them noncombatants.

It has alienated our friends and allies and convinced many of the world's Muslims that we are at war with Islam itself. It led to the atrocities at Abu Ghraib. It has added $200 billion to the Federal deficit and at the rate we are going that is only a down payment.

There are now 150,000 American troops, many of them National Guard and Reserve, bogged down in an unwinnable war in Iraq that has become a haven for terrorists.

Yet Dr. Rice refuses to own up to the Administration's failures. When confronted with her own glaringly inconsistent statements regarding weapons of mass destruction which were the primary justification for the war, she responded that the question unfairly impugned her integrity.

She had an opportunity to reassure her detractors, and believe me there are many in my State of Vermont, when she testified last week. She declined to do so, and that was disappointing and frustrating to those of us who want her to succeed in her new position.

My vote in favor of Dr. Rice is difficult to explain. It is more the product of a belief than a cold analysis of her record. I believe that Dr. Rice is capable of learning from her mistakes and changing her ways. That she will rise to this new challenge. That she can be a good Secretary of State.

The other major reason I am voting in favor of Dr. Rice's nomination is that I am the ranking member of the Foreign Operations Subcommittee. In this capacity, I have a responsibility to work with the Secretary of State, on a daily basis, to tackle a full range of international issues critical to the United States and the rest of the world: AIDS and other global health issues, human rights, the United Nations, terrorism, the environment, women's rights, poverty, corruption, to name just a few.

By voting for Dr. Rice's nomination, I am sending a clear message: I want to get this important working relationship started on the right track. I hope that my vote will be a step towards a more constructive U.S. foreign policy. After all, it is these policies that ultimately impact the lives of billions of people around the world.

During the first term, the Bush administration dug a deep hole: relationships with our oldest allies are badly strained, Iraq is a mess, and our own country is badly divided.

We need to come together as a Nation to deal with these and many other problems. But coming together does not mean ignoring valid criticism, embarking on a policy that pleases only one side of the aisle, and accusing those opposed of being un-American or unpatriotic. Criticism and dissent are the essence of democracy, the essence of patriotism.

Coming together means genuine consultations with members of both political parties, and policies which reflect a range of views even if they do not fit into preconceived ideologies.

As I said, I hope that my vote here today will, in some small way, help begin this process. I hope it will allow us to get back to the real practice of the Vandenberg rule--that politics end at the water's edge--and away from the slash and burn politics practiced during the first term of the Bush administration.

I hope that Dr. Rice will meet me half way. I want to work with her on the many pressing issues that concern both Democrats and Republicans, including the issues of freedom and human rights that the President spoke of in his inaugural address that are so important not only to Americans, but to people everywhere.

Mr. President, I normally do not do movie reviews, but for this Thursday's premiere of ``The Exonerated'' on CourtTV, I feel compelled to make an exception. ``The Exonerated'' tells the harrowing true stories of six innocent people who were convicted and sentenced to death.

Since February 2000, I have worked to prevent more innocents from meeting the same fate, and last year the Innocence Protection Act was finally passed and signed into law. The reforms it enacts will create a fairer system of justice, where the problems that have sent innocent people to death row are less likely to occur, where the American people can be more certain that violent criminals are caught and convicted instead of the innocent people who have been wrongly put behind bars for their crimes, and where victims and their families can be more certain of the accuracy, and finality, of the results.

The film of ``The Exonerated'' was adapted from a play of the same title by Jessica Blank and Erik Jensen, which was performed last year at the Kennedy Center. Those who were unable to see the play will have the chance to watch the movie on CourtTV this Thursday, January 27, at 9 p.m.

Since 1973, some 117 innocent people have been released from death row with evidence of their innocence. Six of these stories are told in ``The Exonerated.'' While the Innocence Protection Act passed with overwhelming bipartisan support in both the House and Senate, the task before us remains getting the new law funded. Watching these true-life accounts will help explain why funding the Innocence Protection Act should be a high priority that Congress and the administration must not ignore.

Mr. President, today I join my colleagues, Senators Hatch, Feinstein, and Cornyn, introducing an important piece of bipartisan intellectual property legislation. The provisions of the ``Family Entertainment and Copyright Act of 2005'' are virtually identical to those in the bill we passed in the waning days of the 108th Congress. Unfortunately, that package of intellectual property bills was hijacked in an effort to use it as a vehicle to pass unrelated legislation. The effort failed, and in the end so did Congress: we were not able to send to the President the most important package of intellectual property legislation on last year's agenda. The legislation passed in the Senate--several times in fact--but there was simply not enough time for the House of Representatives to act.

I am pleased that we were able to salvage two components of last year's bill. As Congress came to a close, the House passed the Senate version of the CREATE Act, legislation I cosponsored with Senator Hatch. The new law will continue to encourage collaborative research partnerships between private industry and not-for-profits, such as universities. We were also able to send to the President the Anti- counterfeiting Amendments Act, a version of Senator Biden's legislation that my friend from Delaware has championed for several years. Both laws are important, but our task remains incomplete.

It is time to enact the remaining components of the Family Entertainment and Copyright Act, to finish off the work of the 108th Congress as we begin the 109th.

Title I of the bill contains the ``Artists'' Rights and Theft Prevention Act,'' better known as the ART Act. This provision passed the Senate as a standalone bill in June of 2004, and again as part of the FECA bill at the end of the last Congress. The bill will make important inroads in the fight against movie piracy by criminalizing the use of camcorders to pilfer movies from the big screen. It will also direct the Register of Copyrights to create a registry of pre- release works in order to better address the problem of movie-theft before these works are offered for legal distribution.

The next title of the bill is the Family Movie Act, which will preserve the rights of families to watch motion pictures in the manner they see fit. At the same time, the Act protects the rights of directors and copyright holders to maintain the artistic vision and integrity of their works. A version of this legislation passed the other chamber in September of 2004, and it passed the Senate as part of the FECA bill at the end of the 108th Congress.

Title III of the bill is the Film Preservation Act, legislation that I sponsored in the last Congress. A version of this bill, too, was part of the FECA bill that passed the Senate last Congress. The Film Preservation Act will allow the Library of Congress to continue its important work in preserving America's fading film treasures. The works preserved by this important program include silent-era films, avant- garde works, ethnic films, newsreels, and home movies that are in many ways more illuminating on the question of who we are as a society than the Hollywood sound features kept and preserved by major studios. What's more, the bill will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public.

Finally, the bill contains the Preservation of Orphan Works Act. This provision corrects for a drafting error in the Sonny Bono Copyright Term Extension Act. Correction of this error will allow libraries to create copies of certain copyrighted works, such as films and musical compositions that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price. Again, this provision ensures that copies of culturally- illuminating works are not lost to history.

Anytime we enact a package of legislation as large as the ``Family Entertainment and Copyright Act,'' building consensus is difficult. However, this is a chamber built on collegiality and compromise, and while I may have crafted specific components of this package differently, I believe that the final result we have achieved is one worthy of enactment. The components of this package have already passed the Senate at least once, and I have received assurances from the other chamber that the bill will receive swift consideration once it is approved in this body.

The legislative process is functioning well when we work with our colleagues across the aisle, and it is at its best when we work on a bipartisan basis with our friends in the other chamber. This bill has benefited from both. The agenda of the 109th Congress promises many issues that divide us, but this is not such a bill: It has garnered broad consensus, and I hope that we can finally move to swiftly enact it.

Mr. President, today I join my colleagues, Senators Hatch, Feinstein, and Cornyn, introducing an important piece of bipartisan intellectual property legislation. The provisions of the ``Family Entertainment and Copyright Act of 2005'' are virtually identical to those in the bill we passed in the waning days of the 108th Congress. Unfortunately, that package of intellectual property bills was hijacked in an effort to use it as a vehicle to pass unrelated legislation. The effort failed, and in the end so did Congress: we were not able to send to the President the most important package of intellectual property legislation on last year's agenda. The legislation passed in the Senate--several times in fact--but there was simply not enough time for the House of Representatives to act.

I am pleased that we were able to salvage two components of last year's bill. As Congress came to a close, the House passed the Senate version of the CREATE Act, legislation I cosponsored with Senator Hatch. The new law will continue to encourage collaborative research partnerships between private industry and not-for-profits, such as universities. We were also able to send to the President the Anti- counterfeiting Amendments Act, a version of Senator Biden's legislation that my friend from Delaware has championed for several years. Both laws are important, but our task remains incomplete.

It is time to enact the remaining components of the Family Entertainment and Copyright Act, to finish off the work of the 108th Congress as we begin the 109th.

Title I of the bill contains the ``Artists'' Rights and Theft Prevention Act,'' better known as the ART Act. This provision passed the Senate as a standalone bill in June of 2004, and again as part of the FECA bill at the end of the last Congress. The bill will make important inroads in the fight against movie piracy by criminalizing the use of camcorders to pilfer movies from the big screen. It will also direct the Register of Copyrights to create a registry of pre- release works in order to better address the problem of movie-theft before these works are offered for legal distribution.

The next title of the bill is the Family Movie Act, which will preserve the rights of families to watch motion pictures in the manner they see fit. At the same time, the Act protects the rights of directors and copyright holders to maintain the artistic vision and integrity of their works. A version of this legislation passed the other chamber in September of 2004, and it passed the Senate as part of the FECA bill at the end of the 108th Congress.

Title III of the bill is the Film Preservation Act, legislation that I sponsored in the last Congress. A version of this bill, too, was part of the FECA bill that passed the Senate last Congress. The Film Preservation Act will allow the Library of Congress to continue its important work in preserving America's fading film treasures. The works preserved by this important program include silent-era films, avant- garde works, ethnic films, newsreels, and home movies that are in many ways more illuminating on the question of who we are as a society than the Hollywood sound features kept and preserved by major studios. What's more, the bill will assist libraries, museums, and archives in preserving films, and in making those works available to researchers and the public.

Finally, the bill contains the Preservation of Orphan Works Act. This provision corrects for a drafting error in the Sonny Bono Copyright Term Extension Act. Correction of this error will allow libraries to create copies of certain copyrighted works, such as films and musical compositions that are in the last 20 years of their copyright term, are no longer commercially exploited, and are not available at a reasonable price. Again, this provision ensures that copies of culturally- illuminating works are not lost to history.

Anytime we enact a package of legislation as large as the ``Family Entertainment and Copyright Act,'' building consensus is difficult. However, this is a chamber built on collegiality and compromise, and while I may have crafted specific components of this package differently, I believe that the final result we have achieved is one worthy of enactment. The components of this package have already passed the Senate at least once, and I have received assurances from the other chamber that the bill will receive swift consideration once it is approved in this body.

The legislative process is functioning well when we work with our colleagues across the aisle, and it is at its best when we work on a bipartisan basis with our friends in the other chamber. This bill has benefited from both. The agenda of the 109th Congress promises many issues that divide us, but this is not such a bill: It has garnered broad consensus, and I hope that we can finally move to swiftly enact it.

Mr. President, I am pleased today to express my support for the nomination of Carlos Gutierrez to be the next Secretary of Commerce. Mr. Gutierrez's personal history is remarkable. Born in Havana, Cuba, Mr. Gutierrez came to the United States at the age of six. He learned to speak English from a hotel bellhop and at the age of 20, he began working for the Kellogg Company as a truck driver in Mexico City. A little less than 25 years later, Mr. Gutierrez was in charge of the entire company as the chief executive officer and chairman of the board. As CEO, he quickly turned the battered and declining Kellogg into a strong, stable and increasingly profitable company.

While the next Secretary of Commerce will face serious challenges in coming years from a surging trade deficit to a depleted domestic manufacturing base to a weakened dollar--I am confident that Mr. Gutierrez is more than capable to do his agency's part in taking on these challenges. I believe that Mr. Gutierrez will bring the same type of leadership and determination to the Department of Commerce that he has shown throughout his career in the private sector.

I commend the President for making this nomination. Although Mr. Gutierrez and I may not agree on all economic issues, there is every indication that he will serve our country effectively and fairly as the Secretary of Commerce. I am proud to support his nomination.

Mr. President, while I was pleased at the large number of Americans who turned out to vote in last year's Presidential election, I am deeply concerned about the many credible allegations of voting irregularities that surfaced in the weeks following the election.

I cannot, however, support an objection to the certification of Ohio's electoral votes. Although I believe this debate is worthwhile, I am not persuaded that the alleged fraud was sufficient to change the outcome of either the Electoral College or the popular vote. Senator Kerry conceded the election more than 2 months ago, and he does not support a challenge. Moreover, the practical effect of discounting Ohio's electoral votes would simply be to allow the election to be decided by the House of Representatives.

In the months leading up to Election Day, I joined with Senator Kennedy in

writing with great frequency to Attorney General Ashcroft about our concerns about voter suppression and possible partisan activity by the Department of Justice. It is with dismay, then, that I have learned about the secret counting of votes in Warren County, OH, allegedly prompted by an FBI terrorism warning that the FBI denied making. I have read also of the nearly 4,000 votes President Bush was mistakenly awarded in a Franklin County precinct with only 800 voters. Although this mistake was corrected, such a malfunction suggests the possibility that other problems with the vote count may have been missed.

Finally, I would point to the shocking misdistribution of voting machines in Ohio. Voters from minority and urban communities frequently waited in line for four to five hours to cast their votes, while suburban voters faced far more manageable waiting times.

We cannot know the effect this may have had on vote totals, but we can and should work with State and local officials to prevent this from happening in future Presidential and other Federal elections.

I commend Representative Conyers and many of his Democratic colleagues on the House Judiciary Committee for their tireless pursuit of a goal that all of us--Republicans and Democrats alike--should desire: a free and fair election in which every vote counts.

I look forward to the results of the Government Accountability Office's investigation of election irregularities called for by Representative Conyers.

Mr. President, in the waning days, weeks and months of the 108th Congress, my colleagues on both sides of the aisle were working hard to pass important bipartisan legislation that would have protected America's innovators and artists, made more spectrum available for broadband services, enhanced 911 services, and fixed a technical glitch that was threatening the Universal Service Fund. Unfortunately, others were apparently working just as hard to obstruct these measures. This obstruction was intended only to force the Senate into passing legislation that everyone knew was doomed in the House. It was a flawed plan that was destined to fail. And fail it did, but not before it also prevented enactment of critically important and bipartisan intellectual property legislation.

The Family Entertainment and Copyright Act will go down as a victim of this obstructionism. This was an uncontroversial intellectual property bill that would have protected the rights of those who lead the United States' intellectual property industry. That industry makes the United States the global leader in innovation, and it deserves our support. Protecting these individuals from the theft of their work appeared to mean little to some of my colleagues. A Republican plan to hijack this important legislation, which lasted until the very last moment of the 108th Congress, ensured that it would not pass in time for the House to take it up and pass it. They succeeded in preventing the bicameral passage of the most important intellectual property legislation before the Congress this year. This was wrong.

The Family Entertainment and Copyright Act of 2004 contained important and uncontroversial measures. The ART Act, a bill that passed the Judiciary Committee and then the full Senate by unanimous consent, would have provided new tools in the fight against bootleg copies of movies snatched from the big screen by camcorders smuggled into theaters. And it would have adopted a creative solution developed by the Copyright Office to address the growing problem of piracy of pre- release works. The Film Preservation Act would have helped ensure that the Library of Congress is able to continue its important work in archiving our nation's fading film heritage. Some of America's oldest films--works that document who we were as a people in the beginning of the 20th Century--are literally disintegrating faster than they can be saved. The Preservation of Orphan Works bill would have allowed greater access to certain works in the last years of their copyright term. The Fraudulent Online Identity Sanctions Act would have protected against online trademark infringement by prohibiting the use of fraudulent Internet addresses to commit such infringement. Finally, FECA would have clarified that services allowing home viewers of prerecorded movies to skip objectionable content does not violate the copyright laws. Obstructionism from certain Republicans has ensured that all of these problems are left unresolved by the 108th Congress.

Thankfully, two provisions of this bill were able to pass as stand alone bills. Thanks to the hard work of Senator Biden, the House version of critical anti-counterfeiting legislation passed. Unfortunately, additional language on which Senator Biden worked tirelessly was passed too late for House action. Again, the Republican obstruction was at work and to blame. The Cooperative Research and Technology Enhancement Act also passed both houses, largely because a Senate version had passed earlier in the year, and the Republican obstructionists in the Senate could not subvert that bill.

There is other legislation that has fallen to this ill-conceived plan to hijack popular legislation. The bipartisan Junk Fax bill would have protected both consumers and many industries, by placing reasonable limits on senders of unsolicited faxes. That bill, too, was passed too late for House action on account of the Republican roadblock.

Thankfully, at the last minute, another important and bipartisan piece of legislation was allowed through the roadblock. The telecommunications package contained critically important provisions that will enhance 911 service, allow spectrum reallocation, and preserve the ability of the Universal Service Fund to do its important work. These are not controversial or partisan provisions. E911 will ensure that first responders can provide an essential public service. The spectrum reallocation trust fund will free more space for

wireless broadband services. This will help the American economy by promoting jobs and education. The Universal Service Fund provision will fix an accounting glitch that if left unattended will seriously impede the USF as it goes about its critical work. Again, these uncontroversial provisions were held up and almost failed because of this obstructionism.

All of these bills were hijacked and sidetracked, in order to coerce the passage of a bill that everyone knew would not pass the House. I am thankful that the telecommunications legislation was eventually able to pass, but what does it mean that the telecommunications bill became law, while the intellectual property bill is left unfinished? It seems those responsible for this obstruction do not take the needs of America's innovative leaders very seriously. That attitude will undermine the American economy, and threaten America's leadership in the creative industries. So, because of this Republican roadblock, America's innovators and artists will have to struggle through more uncertainty, without the tools they need to defend their rights. That is a shame.

Mr. President, during the final days of this session, which have stretched over weeks and months, we have been struggling to pass a number of important and uncontroversial bills, but we have met with what some would call obstructionism from the Republican side of the aisle. Enactment of legislation needed for e-911 provisions to provide critical resources to our first responders, the Universal Service Administrative Corporation, a spectrum relocation trust fund, junk fax legislation, as well as the Family Entertainment and Copyright Act, anticounterfeiting legislation, film preservation legislation and many other measures have been sidetracked and hijacked.

The Federal Communications Commission Chairman Michael Powell has spoken out urging enactment of these needed telecommunications bills. The telecommunications package contains critically important provisions that will enhance 911 service, allow spectrum relocation, and preserve the ability of the universal service fund to do its important work. These are not controversial or partisan provisions. We should do all we can to ensure that first responders can provide their essential public services and that includes e-911. The spectrum relocation trust fund will free more space for wireless broadband services. This will help the American economy by promoting jobs and education. The Universal Service Fund provision will fix an accounting glitch that if left unattended will seriously impede the USF as it goes about its critical work. If we do not make this fix, rural communities and schools will suffer, and in the end everyone will pay, with higher fees. I echo the FCC's concern and add my own with respect to the intellectual property legislation.

Thanks to the ingenuity, the inspiration and the hard work of America's creators, the United States is the world leader in the creation of intellectual property. Protecting intellectual property matters. It matters to our creators, to our economy and to our future. Affording intellectual property straightforward and reasonable protections, and giving law enforcement officials the resources to give those protections genuine power should be bipartisan, noncontroversial goals. In the United States, copyright industries account for at least 12 percent of our gross domestic product and employ more than 11 million people. Copyright industries have been adding workers at an annual rate that exceeds that of the economy as a whole by 27 percent, and those industries have achieved annual foreign sales and exports of almost $90 billion. Republican objection has prevented the Senate from passing important intellectual property legislation, in an apparent effort to pressure the House to accept unrelated legislation.

Along with Senator Hatch, Senator Cornyn, Senator Biden, Senator Feinstein, and many others, I have been working on a package of key intellectual property legislation for some time. Our staffs have worked late into the night and through weekends to accomplish all that we can this year. We have a package of strong and significant measures that would bolster protection of the intellectual property that helps drive our Nation's economy and that would ensure that law enforcement has the tools it needs to do its job in this regard. There was no good reason not to have sent this package to the House so that it could be enacted without delay. Instead, it has been blocked and the reason has nothing to do with the merits of the bill. It is merely being misused as leverage in an attempt to pass unrelated legislation that the Senate has already sent to the House and that the House finds objectionable. Apparently some are willing to sacrifice important intellectual property legislation for their own narrow purposes. That is unfortunate.

Our economy loses billions of dollars every year to various forms of piracy. Instead of making inroads in this fight, we face a Republican roadblock. It is a barrier that stands in the way of the ART Act, a bill that passed the Judiciary Committee and then the full Senate by unanimous consent. Senators Cornyn and Feinstein introduced the bill, and I was pleased to work with them on it and to include it in our intellectual property legislation. These provisions would provide new tools in the fight against bootleg copies of movies snatched from the big screen by camcorders smuggled into theaters. Our bill would adopt a creative solution developed by the Copyright Office to address the growing problem of piracy of pre-release works. Republican obstruction is ensuring that these problems will be left unaddressed by this Senate and this Congress.

Our anticounterfeiting legislation would mark a step forward in the fight against software piracy. I was glad to work with Senator Biden on this provision, which we included in the intellectual property package. The Republican-led Congress can tell our software companies that they will have to wait at least another year for the remedies promised by this legislation. The Business Software Alliance tells us that $29 billion in software was stolen in 2003 alone. We are risking a higher number and more harm as we proceed into 2005.

There are other noncontroversial provisions in this legislation, as well, such as language that would help ensure that the Library of Congress is able to continue its important work in archiving our Nation's fading film heritage. Some of America's oldest films--works that document who we were as a people in the beginning of the 20th Century--are literally disintegrating faster than they can be saved.

It now appears an expanse of important, bipartisan legislation may fall victim to yet another Republican roadblock. Our copyright holders will suffer, our patent holders will suffer, our economy will suffer, emergency services and broadband deployment will suffer, our rural communities and rural schools will suffer. The Senate will have failed to respond to the needs of the American people. That is a shame.

Mr. President, I rise today to pay tribute to Ralph Jackman of Vergennes, VT. Mr. Jackman has been reporting for duty as chief of the Vergennes Fire Department for 50 years--since December 1, 1954.

Chief Jackman started with the fire department 8 years before he took over as chief. During his tenure a new station was built, the number of firefighters doubled, the number of vehicles tripled, and the budget more than quadrupled.

Though at 80 years of age Chief Jackman has given up fighting the fires himself, he continues to respond to calls and manage the volunteer department's paperwork and affairs.

I congratulate Chief Jackman and his family for over 50 years of service to the City of Vergennes and the State of Vermont. He has selflessly given so much to his community.

I ask unanimous consent that an editorial that appeared in today's Burlington Free Press be printed in the Record.

Mr. President, we are in morning business, are we not?

Of course I yield for that purpose.

Mr. President, soon after we return in January, the Senate Judiciary Committee will begin consideration of the nomination of Alberto Gonzales for the position of Attorney General of the United States. I met with Judge Gonzales on November 17, soon after his designation as the President's nominee. I had that meeting in preparation for our hearings. I look forward to working with Senator Specter and the other members of the Judiciary Committee to assure a prompt and fair and thorough hearing on this important nomination in early January.

There is no secret that Judge Gonzales will be called upon to explain not only his vision of what the role of the Attorney General should be, but also how he would distinguish it from that of the White House Counsel. And he is also going to be asked about the role he has played in formulating the administration's policy on the treatment and interrogation of prisoners in U.S. custody overseas.

The scandal of Abu Ghraib, allegations of mistreatment in Guantanamo, investigations and charges from cases in Iraq and Afghanistan are serious matters. There are lingering questions. There is unresolved accountability left in their wake.

The Bush administration circled the wagons long ago. It has continually maintained that the abuses were simply the work of a few bad apples. But we know that the photos from Abu Ghraib do not depict an isolated incident. Abuses have occurred in many locations, including Afghanistan, Guantanamo Bay, and in a number of other facilities within Iraq.

I have long said that somewhere in the upper reaches of the executive branch, a process was set in motion that rolled forward until it produced this scandal. Even without a truly independent investigation, we now know the responsibility for abuse runs very high into the chain of command. Senior officials in the White House, the Justice Department, and the Pentagon set in motion a systematic effort to minimize, distort, and even ignore laws, policies, and agreements on torture and the treatment of prisoners. Defense Secretary Rumsfeld and later LTG Ricardo Sanchez authorized the use of techniques that were contrary to both U.S. military manuals and international law.

Former CIA Director Tenet requested, and Secretary Rumsfeld approved, the secret detention of a ghost detainee in Iraq so he could be hidden from the International Committee of the Red Cross.

These issues, especially when they involve the greatest democracy history has known, are a significant concern. But there are also issues in which the administration has been far less than forthcoming. In letters dated May 17 and June 15 of this year, long before the fall elections, long before the resignation of John Ashcroft, and long before he was designated by the President as nominee, I asked Judge Gonzales to describe his role in both the interpretation of the law and the development of policies that led to what I and many others considered to have been a disregard for the rule of law. Those letters of May 17 and June 15 remain unanswered as of today.

I have repeatedly emphasized to Judge Gonzales the need for responsiveness and accountability in these matters. Last Friday, I sent Judge Gonzales a letter reiterating my concerns. I emphasized the importance of full disclosure during this confirmation process.

I urge him to cooperate, to cooperate now with all members of the Judiciary Committee on both sides of the aisle on the full range of issues of oversight and accountability that come before us. That is something his predecessor did not do. That lack of oversight on the part of the Senate, the lack of accountability and lack of responsiveness on the part of the administration, should not continue.

I ask unanimous consent to have my December 3, 2004, letter to Judge Gonzales printed in the Record.

There being no objection the material was ordered to be printed in

Mr. President, I yield the floor. I see the distinguished Senator from North Dakota now seeking the floor.