Floor Statements

Mr. President, I am pleased to note the House passage today of the Law Enforcement Officers Safety Act, H.R. 218, by voice vote. This action has been a long time in coming. Representative Randy ``Duke'' Cunningham has been tirelessly working for over a decade to push this legislation and I commend him for his dedication to making our communities safer and providing better protection for our law enforcement personnel. I ask that the Senate follow suit and quickly take up and pass the House bill.

Law enforcement officers are never ``off duty.'' They are dedicated public servants trained to uphold the law and keep the peace. To enable law enforcement officers nationwide to be prepared to answer a call to duty no matter where, when or in what form it comes, I am proud to join Senator Campbell--my good friend and a knowledgeable Senate leader on law enforcement issues--and 69 other cosponsors, including Judiciary Chairman Hatch, Democratic Leader Daschle, Assistant Democratic Leader Reid, Majority Leader Frist and Assistant Majority Leader McConnell, on the Senate version of the Law Enforcement Officers Safety Act, S. 253,

which was reported out of the Senate Judiciary Committee in March 2003 by a vote of 18 to 1. Both H.R. 218 and S. 253 will permit off-duty and retired law enforcement officers to carry a firearm and be prepared to assist in dangerous situations.

These bills are strongly supported by the Fraternal Order of Police, FOP; the National Association of Police Organizations, NAPO; the Federal Law Enforcement Officers Association, FLEOA; the International Brotherhood of Police Officers, IBPO; the Law Enforcement Alliance of America; and the National Law Enforcement Council.

I was honored to work closely on this measure with the former FOP national president, Lieutenant Steve Young, whose death last year was a sad loss for us all. Steve was dedicated to this legislation because he understood the importance of having law enforcement officers across the Nation armed and prepared whenever and wherever threats to our public safety arise. I have continued my close work with the FOP and current national president, Major Chuck Canterbury, to make this legislation law.

Community policing and the outstanding work of so many law enforcement officers play a vital role in our crime control efforts. Unfortunately, during the past few years the downward trend in violent crime ended and violent crime rates have turned upward. The FBI has reported that crime rose slightly in the first half of 2002, including a 2.3 percent increase in murders. The preliminary numbers for 2002 follow an increase in crime in 2001 by 2.1 percent, compared with the year before.

There are more than 740,000 sworn law enforcement officers currently serving in the United States. Since the first recorded police death in 1792, there have been more than 17,200 law enforcement officers killed in the line of duty. Over 1,700 law enforcement officers died in the line of duty over the last decade, an average of 170 deaths per year. Roughly 5 percent of officers who die are killed while taking law enforcement action in an off-duty capacity. On average, more than 62,000 law enforcement officers are assaulted annually.

The Law Enforcement Officers Safety Act creates a mechanism by which qualified active-duty law enforcement officers would be permitted to travel interstate with a firearm, subject to certain limitations, provided that officers are carrying their official badges and photographic identification. An active-duty officer may carry a concealed firearm under this measure if he or she is authorized to engage in or supervise any violation of law; is authorized to use a firearm by the agency, meets agency standards to regularly use a firearm; and is not prohibited from carrying by Federal, State or local law. This measure would not interfere with any officer's right to carry a concealed firearm on private or government property while on duty or on official business.

Off-duty and retired officers should also be permitted to carry their firearms across State and other jurisdictional lines, at no cost to taxpayers, in order to better serve and protect our communities. H.R. 218 would permit qualified law enforcement officers and qualified retired law enforcement officers across the Nation to carry concealed firearms in most situations. It preserves any State law that restricts concealed firearms on private property and any State law that restricts the possession of a firearm on State or local government property.

To qualify for the measure's exemptions to permit a qualified off- duty law enforcement officer to carry a concealed firearm, notwithstanding the law of the State or political subdivision of the State, he or she must have authority to use a firearm by the law enforcement agency where he or she works; not be subject to any disciplinary action; satisfy every standard of the agency to regularly use a firearm; not be prohibited by Federal law from receiving a firearm; and carry a photo identification issued by the agency. The bill preserves any State law that restricts concealed firearms on private property, and any State law that restricts the possession of a firearm on State or local government property or park.

For a retired law enforcement officer to qualify for exemption from State laws prohibiting the carrying of concealed firearms, he or she must have retired in good standing; have been qualified by the agency to carry or use a firearm; have been employed at least 15 years as a law enforcement officer unless forced to retire due to a service- connected disability; have a non-forfeitable right to retirement plan benefits of the law enforcement agency; meet the same State firearms training and qualifications as an active officer; not be prohibited by Federal law from receiving a firearm; and be carrying a photo identification issued by the agency. Preserved would be any State law that permits restrictions of concealed firearms on private property, as well as any State law that restricts the possession of a firearm on State or local government property or park.

Last week, during the House Judiciary Committee markup of H.R. 218, amendments were accepted to bar officers or retired police from carrying arms in other jurisdictions if they are under the influence of alcohol or other intoxicating or hallucinatory drug or substance, and to require retired police to have proof they received arms training in the previous year before being permitted to carry concealed weapons. The bill was then reported out of committee by a vote of 23 to 9. The bill was passed overwhelmingly by the House earlier today by voice vote.

Convicted criminals often have long and exacting memories. A law enforcement officer is a target in uniform and out, active or retired, on duty or off duty. The bipartisan Law Enforcement Officers Safety Act is designed to establish national measures of uniformity and consistency to permit trained and certified on-duty, off-duty, or retired law enforcement officers to carry concealed firearms in most situations so that they may respond immediately to crimes across State and other jurisdictional lines, as well as to protect themselves and their families from vindictive criminals.

I look forward to the Senate approving this bipartisan, commonsense measure today to make our communities safer and to better protect law enforcement officers and their families.

Mr. President, I will say that I agree with the second- degree amendment the Senator from Massachusetts has temporarily withdrawn. Obviously it will be reoffered. The reason I agree, Congress not only has done a very poor job of oversight; with some

exceptions, the administration has taken advantage of that and made it a practice to deny oversight cooperation to Congress.

The stonewalling in the prison abuse scandal has been building to a crisis point. Today, finally, after huge pressure, the White House has released a small subset of the documents that offer glimpses into the genesis of this scandal. All should have been provided earlier to Congress. We know a lot has been held back, and remains hidden from public view.

While this is a self-serving selection on the part of the administration, it is at least a beginning, a tiny beginning, a tiny baby step. But if we want the Judiciary Committee and the Senate to find the whole truth, we will need much more cooperation and extensive hearings.

The documents released today raise more questions than they answer. I will give some examples, speaking now of the documents released today.

The White House released only 3 of the 23 documents that members of the Senate Judiciary Committee requested and tried to subpoena last week. In having released only 3 of the 23 we asked for, I point out that 2 of the 3 were already available on the Internet. Where are the other 20 documents we asked for? They have given us one that was not already on the Internet. Where are the other 20?

The White House released a Presidential memorandum dated February 7, 2002, directing that al-Qaida and Taliban detainees be treated humanely. Did the President sign any directive regarding the treatment or interrogation of detainees after February 7, 2002, more than 2 years ago? More specifically, did the President sign any directive after the United States invaded Iraq in March of 2003?

The latest document released by the White House is dated April 16th, 2003. Why is that, when many of the worst abuses that we know of occurred months later, in the fall of 2003. Why has the White House stopped with memoranda produced in April 2003?

I live on the side of a mountain in Vermont. I know that water flows downhill, but so does Government policy. Somewhere in the upper reaches of this administration a process was set in motion that seeped forward until it produced a scandal.

All of us want to put the scandal behind us, but to do that we have to know what happened. And we cannot get to the bottom of this until there is a clear picture of what happened at the top. We need to keep the pressure on until we get honesty and answers. So I will support Senator Kennedy's second-degree amendment when it is offered.

Yes.

Mr. President, I would agree with the Senator from Massachusetts, it is time to level with the American people. We tried to subpoena these records last week. We were rebuffed on a party-line vote, with many on the other side saying: But they are going to be forthcoming. We now get 3 out of 23 documents, 2 of which were already on the Internet.

When are they going to be forthcoming? We want to understand what happened. As I said, if you are going to get to the bottom of what happened, you have to start at the top. President Bush has said he wants to get to the bottom of this. I agree with him, but I think we have to start at the top to find out what happened there. And simply prosecuting some corporals and sergeants and privates does not get to the bottom of what happened.

Mr. President, the Senator from Massachusetts is absolutely right. I also had the good fortune to meet with the new interim President of Iraq. I actually asked him a similar question, and what the Senator from Massachusetts says is absolutely so. He said: Get it all out. He spoke of making it as transparent as possible. He said: The United States has always had a reputation of being honest, of being a democratic nation, of admitting our mistakes, and, of course, of being proud of those things we have accomplished that we can be so proud of. If we want to maintain that credibility, get it all out.

The Senator from Massachusetts said that in our system, nobody is above the law. I thank God that is so, that the Founders of this country were wise enough to set in place a system where nobody-- nobody--was above the law. We have demonstrated this over and over again throughout our history as a nation. Anybody who has tried to step above it, the checks and balances stop that.

What the administration can do is so easy: Answer the questions. The Attorney General refused to answer our questions. But he did not do it on the basis of any of the very limited reasons that a question might be refused--either because the information being sought is classified, which requires us to go into closed session, or because the President has asserted executive privilege, which the President did not in this case.

They have sent up 3 of the 23 items we requested. Two of the 3 items were already on the Internet. But at least we are one item forward. Let's get the rest of the information and documents up here, and then let the Senate do what it should do: Let the various committees actually ask questions and seek answers.

Mr. President, I see my good friend from Pennsylvania on the floor seeking recognition, so I yield the floor.

Mr. President, nobody can deny that the digital age has brought many benefits and many challenges to all of us.

In my home state of Vermont, the Internet has revolutionized how we work and how we learn: Distance learning brings the best teaching tools right into rural communities, and new business models let Vermont businesses reach new and far-flung customers. As suppliers who use the Internet, we enjoy access to a range of goods and services unimagined when I was growing up, and the vast panoply of information and entertainment offerings on the World Wide Web are at the fingertips of many Vermonters. Of course, we must work to ensure that everyone can reap the benefits of the digital age, and I am striving both here in Washington and in my state to do what is necessary to bring affordable and reliable Internet access to every household.

I am confident that, with continued focus and perseverance, the day of universal access is coming and we will all take part in the many advantages of the digital age. But there are other problems that require immediate attention, because they threaten the development of the web. We will never be able to make the Internet an entirely trouble-free zone, but we will also never be justified in failing to make efforts to defend and improve it.

One important effort to improve it is the bill that I am proud to introduce today--along with Senators Hatch, Daschle, Frist, Boxer, and Graham of South Carolina--the ``Inducing Infringement of Copyright Act of 2004.''

The ``Inducing Infringement of Copyright Act of 2004'' is a straightforward bill. Our legislation treats those who induce others to violate copyrights as infringers themselves. This is not a novel concept; it is the codification of a long-standing principle of intellectual property law: that infringement liability reaches not only direct infringers but also those who intentionally induce illegal infringement. And while the legal principle is an old one, the problems of inducement for copyright are a relatively new byproducts of the digital age--an age in which it is easy, and often profitable, to induce others to violate copyrights through illegal downloading from the Internet.

The principle at the heart of this bill--secondary copyright liability--has long been in the common law. In fact, such secondary liability is provided for by statute in the patent law. The patent code provides liability for inducing infringement and for the sale of material components of patented machines, when the components are not a staple article of commerce suitable for substantial non-infringing use. This is because it has long been relatively simple and economically worthwhile to induce patent infringement. By contrast, until recently the ability to illegally download music, books, software, and films has not existed. Recent developments, however, now make it necessary for Congress to clarify that this principle also applies to copyrights.

What the inducement bill does not do is just as important as what it does: It does not target technology. Useful legislation on this topic must address the copyright issue and not demonize certain software. As a practical matter, if a law is targeted at certain software, the designers will simply design around the law and render it useless. And as a matter of effectiveness, if the law addresses only well-understood present threats, it will necessarily be too narrow to encompass future technologies that may pose the same threat to copyrights. A law that deals simply with

the copyrights--and their violation--is far less likely to be circumvented or out-dated before it can do any good. It will be both broad enough and sufficiently flexible to accommodate situations we cannot foresee.

This legislation is also carefully crafted to preserve the doctrine of ``fair use.'' Indeed by targeting the illegal conduct of those who have hijacked promising technologies, we can hope that consumers in the future have more outlets to purchase creative works in a convenient, portable digital format. Similarly, the bill will continue to promote the development of new technologies as it will not impose liability on the manufacturers of copying technology merely because the possibility exists for abuse. Finally, the bill will not affect Internet service providers who comply with the safe harbor provisions of the Digital Millennium Copyright Act.

Copyright law protecting intellectual property is one of the taproots of our economy and of our creativity as a nation. For copyright law to work as the Founders intended, it needs effective enforcement. That means adapting enforcement tools to meet new challenges, in the digital age or in any age. And that is the straightforward purpose of this bill.

I would like to take a moment also to emphasize another important, if obvious, point about this bill that some detractors have ignored. The law only penalizes those who intentionally induce others to infringe copyrights. Thus, the makers of electronic equipment, the software vendors who sell email and other programs, the Internet service providers who facilitate access to the Web--all of these entities have nothing to fear from this bill. So long as they do not conduct their businesses with the intention of inducing others to break the law--and I certainly have not heard from anyone who makes that claim--they should rest easy. The only actors who have anything to fear are those that are already breaking the law; this bill simply clarifies and codifies that long-standing doctrine of secondary liability.

The ``Inducing Infringement of Copyright Act of 2004'' is a simple fix to a growing problem. The bill protects the rights inherent in creative works, while helping to ensure that those same works can be easily distributed in digital format.

Mr. President, nobody can deny that the digital age has brought many benefits and many challenges to all of us.

In my home state of Vermont, the Internet has revolutionized how we work and how we learn: Distance learning brings the best teaching tools right into rural communities, and new business models let Vermont businesses reach new and far-flung customers. As suppliers who use the Internet, we enjoy access to a range of goods and services unimagined when I was growing up, and the vast panoply of information and entertainment offerings on the World Wide Web are at the fingertips of many Vermonters. Of course, we must work to ensure that everyone can reap the benefits of the digital age, and I am striving both here in Washington and in my state to do what is necessary to bring affordable and reliable Internet access to every household.

I am confident that, with continued focus and perseverance, the day of universal access is coming and we will all take part in the many advantages of the digital age. But there are other problems that require immediate attention, because they threaten the development of the web. We will never be able to make the Internet an entirely trouble-free zone, but we will also never be justified in failing to make efforts to defend and improve it.

One important effort to improve it is the bill that I am proud to introduce today--along with Senators Hatch, Daschle, Frist, Boxer, and Graham of South Carolina--the ``Inducing Infringement of Copyright Act of 2004.''

The ``Inducing Infringement of Copyright Act of 2004'' is a straightforward bill. Our legislation treats those who induce others to violate copyrights as infringers themselves. This is not a novel concept; it is the codification of a long-standing principle of intellectual property law: that infringement liability reaches not only direct infringers but also those who intentionally induce illegal infringement. And while the legal principle is an old one, the problems of inducement for copyright are a relatively new byproducts of the digital age--an age in which it is easy, and often profitable, to induce others to violate copyrights through illegal downloading from the Internet.

The principle at the heart of this bill--secondary copyright liability--has long been in the common law. In fact, such secondary liability is provided for by statute in the patent law. The patent code provides liability for inducing infringement and for the sale of material components of patented machines, when the components are not a staple article of commerce suitable for substantial non-infringing use. This is because it has long been relatively simple and economically worthwhile to induce patent infringement. By contrast, until recently the ability to illegally download music, books, software, and films has not existed. Recent developments, however, now make it necessary for Congress to clarify that this principle also applies to copyrights.

What the inducement bill does not do is just as important as what it does: It does not target technology. Useful legislation on this topic must address the copyright issue and not demonize certain software. As a practical matter, if a law is targeted at certain software, the designers will simply design around the law and render it useless. And as a matter of effectiveness, if the law addresses only well-understood present threats, it will necessarily be too narrow to encompass future technologies that may pose the same threat to copyrights. A law that deals simply with

the copyrights--and their violation--is far less likely to be circumvented or out-dated before it can do any good. It will be both broad enough and sufficiently flexible to accommodate situations we cannot foresee.

This legislation is also carefully crafted to preserve the doctrine of ``fair use.'' Indeed by targeting the illegal conduct of those who have hijacked promising technologies, we can hope that consumers in the future have more outlets to purchase creative works in a convenient, portable digital format. Similarly, the bill will continue to promote the development of new technologies as it will not impose liability on the manufacturers of copying technology merely because the possibility exists for abuse. Finally, the bill will not affect Internet service providers who comply with the safe harbor provisions of the Digital Millennium Copyright Act.

Copyright law protecting intellectual property is one of the taproots of our economy and of our creativity as a nation. For copyright law to work as the Founders intended, it needs effective enforcement. That means adapting enforcement tools to meet new challenges, in the digital age or in any age. And that is the straightforward purpose of this bill.

I would like to take a moment also to emphasize another important, if obvious, point about this bill that some detractors have ignored. The law only penalizes those who intentionally induce others to infringe copyrights. Thus, the makers of electronic equipment, the software vendors who sell email and other programs, the Internet service providers who facilitate access to the Web--all of these entities have nothing to fear from this bill. So long as they do not conduct their businesses with the intention of inducing others to break the law--and I certainly have not heard from anyone who makes that claim--they should rest easy. The only actors who have anything to fear are those that are already breaking the law; this bill simply clarifies and codifies that long-standing doctrine of secondary liability.

The ``Inducing Infringement of Copyright Act of 2004'' is a simple fix to a growing problem. The bill protects the rights inherent in creative works, while helping to ensure that those same works can be easily distributed in digital format.

Mr. President, today the Senate considers the nomination of James Robart, to be a United States District Judge for the Western District of Washington. He is a graduate of Whitman College and the Georgetown University Law Center. Mr. Robart is currently managing partner at the law firm of Lane Powell Spears Lubersky, LLP, a firm he has worked at for over 30 years. He has handled complex commercial litigation matters including class actions, securities, and employment cases, and has also been involved in counseling clients in the areas of antitrust compliance, employment law, and intellectual property.

Mr. Robart's nomination is the product of a bipartisan judicial nominating commission maintained with the White House by Senators Murray and Cantwell. The State of Washington is well-served by its bipartisan judicial nominating commission which recommends qualified, moderate nominees on whom members of both parties can agree. It is difficult to understand why President Bush has opposed similar bipartisan selections commissions and why this one was so hard to establish. They allow Republicans and Democrats to work together to staff an independent judiciary. I thank Senators Murray and Cantwell for their steadfast efforts in maintaining the commission. The Senate just recently confirmed another well-qualified nominee to the District Court for the Western District of Washington, Judge Martinez, and, with today's vote, the Senate will have confirmed four nominees--all the product of the bipartisan commission--to the district courts in Washington. With this confirmation, there will be no further vacancies in the district courts in Washington.

I would note that, in proceeding to a vote on Mr. Robart, the Republican leadership has again decided to depart from the order of the Executive Calendar and to skip over the nomination of a non- controversial and well-qualified Hispanic nominee to the U.S. District Court for the Eastern District in Pennsylvania, Juan Ramon Sanchez. That is their choice. I do not want to see the Democrats blamed for any delay in confirmation votes for Hispanics when Republicans have controlled the agenda.

With this confirmation we will have confirmed more judges this year than in all of the 1996 session, the last time a President was seeking reelection.

With this confirmation and two more today, the Senate will have confirmed a total of 89 judges this Congress and 189 of this President's judicial nominees overall. With 89 judicial confirmations in just a little more than 17 months, the Senate has confirmed more Federal judges than were confirmed during the two full years of 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. It also exceeds the 2-year total at the end of the Clinton administration, when Republicans held the Senate majority in 1999 and 2000.

With 189 total confirmations for President Bush, the Senate has confirmed more lifetime appointees for this President than were allowed to be confirmed in President Clinton's entire second term, the most recent four-year presidential term and more than were confirmed in President Reagan's term from 1981 through 1984. Of course President Reagan is acknowledged as the all-time champ for having appointed more federal judges than any other President in history.

I congratulate Mr. Robart and his family on his confirmation.

Mr. President, today the Senate considers the nomination of Roger Benitez to the Southern District of California. Judge Benitez is being considered for the last of 5 new seats in the Southern District of California that were created by statute on November 2, 2002, as part of a package of judgeships created for border districts that have a massive caseload and that needed more Federal judges. I worked hard with Senator Feinstein to help create these new positions under Democratic Senate leadership. By doing so, we did what the Republican majority refused to do in the years 1995 through 2000 when there was a Democratic President. We did so under Senate Democratic leadership knowing

that the appointments would be made by a Republican.

Unlike many other nominees who have come before this Committee, Roger Benitez comes before us with judicial qualifications, having had experience serving as a judge both in State and Federal courts. He served for 4 years as a California Superior Court Judge for Imperial County and 3 years as a U.S. Magistrate Judge for the Southern District for California.

However, like many nominees of this President, concerns have been raised about this nominee's fitness to serve. Judge Benitez is one of 28 of President Bush's nominees who have received a partial or majority rating of ``Not Qualified'' from the ABA Committee that conducts a peer evaluation of judicial nominees. Of those, 18 have already been confirmed and another has been recess appointed.

Before President Bush ejected the ABA from the process of providing an informal rating prior to a nomination, temperament or ethics concerns would have been raised at the early stage of a nominee's consideration and in time for the White House to make a decision whether to proceed with that nominee, with knowledge of such determinations and the opportunity to conduct follow-up inquiry. The change in the role of the ABA has led to ABA ratings being less helpful. In Judge Benitez's case, based on interviews with 23 judges and 44 attorneys, more than 10 members of the ABA committee concluded that, based on his temperament, he is not qualified to serve a lifetime appointment on the Federal bench.

Despite these concerns, Judge Benitez is supported by both of his home-State Senators and is the product of the bipartisan commission that Senators Feinstein and Boxer have worked so hard to maintain. I will honor their support of this nominee and support him, as well. With this confirmation, the Senate will have confirmed 14 nominees to the district courts in California.

Judge Benitez is the 17th Latino confirmed to the Federal courts in the past three years. With the exception of Mr. Estrada, who failed to answer many questions and provide the Senate with his writings and views, we have pressed forward to confirm all of the other Latinos whose nominations have been reported to the floor. Democrats will now have supported the swift confirmation of 17 of President Bush's 21 Latino nominees. Unfortunately, Republicans have been delaying Senate consideration of a number of Hispanic nominees and passed over several of the numbers would be even better.

While President Clinton nominated 11 Latino nominees to Circuit Court positions, 3 of those 11 were blocked by the Republican Senate and never given a vote. President Bush has only nominated 4 Latino nominees to Circuit Court positions, three of whom have been confirmed with Democratic support. President Bush's 21 Latino nominees constitute less than 10 percent of his nominees, even though Latinos make up a larger percentage of the U.S. population. It is revealing that this President has nominated more people associated with the Federalist Society than Hispanics, African Americans and Asian Pacific Americans, combined. While President Clinton cared deeply about diversity on the Federal bench, this President is more interested in narrow and slanted judicial ideology.

I congratulate Judge Benitez and his family on his confirmation.

Mr. President, I also support the nomination of Jane J. Boyle.

Mr. President, Ms. Boyle is currently the United States Attorney for this district. She comes to the Senate with extensive litigation and judicial experience. Before serving as the Northern District's U.S. Attorney, Ms. Boyle served for over a decade as a United States Magistrate and she served for years as a Federal and city prosecutor. I support Ms. Boyle's nomination.

With the three judicial confirmation votes today, the Senate will now have confirmed 20 judicial nominees this year alone. Only 17 judges were confirmed under Republican leadership in the entire 1996 session and no circuit court nominees were confirmed that entire time. That was the last year in which a President was seeking reelection. The Senate has now exceeded the number of total judges confirmed and the number of circuit court judges confirmed.

With these three confirmations today, the Senate will have confirmed a total of 89 judges this Congress and 189 of this President's judicial nominees overall. With 89 judicial confirmations in just a little more than 17 months, the Senate has confirmed more Federal judges than were confirmed during the two full years of 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. It also exceeds the two-year total at the end of the Clinton administration, when Republicans held the Senate majority in 1999 and 2000. It is not quite as many as the 100 judges nominated by President Bush that a Democratic-led Senate confirmed in our 17 months in the majority in 2001 and 2002.

With 189 total confirmations for President Bush, the Senate has confirmed more lifetime appointees for this President than were allowed to be confirmed in the most recent four-year presidential term that of President Clinton from 1997 through 2000. It is more than a Republican majority confirmed in President Reagan's entire term from 1981 through 1984. Of course, President Reagan is recognized as the all-time champ in terms of judicial appointments having appointed more than any other President in our history.

I congratulate Ms. Boyle on her confirmation.

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

Mr. President, as I understand it, there is no time agreement on the second-degree amendment; is that correct?

Nor do I think there will be. I realize the second-degree amendment is designed--whether intentionally or otherwise--to protect a number of the major corporations now working in Iraq, some of which have been involved with overcharging our military and profiting on the war. It is unfortunate that we would try to protect those who are gouging the American taxpayers.

After World War II and after the Korean War, we put in a war profiteering amendment similar to what I offered, and I would say to my distinguished friend from Virginia, we passed a similar war profiteering amendment on the Iraq supplemental appropriations bill last year. But when it came up in conference with the other body, even though they are independent Members of the House, several of them were very candid and told me they had been directed by the White House to remove it and had heavy pressure brought by Halliburton and others. So they had to remove the war profiteering amendment.

I actually thought we were elected not by corporations, whether it is Halliburton or anybody else, and not appointed by the White House, but, rather, are here to do the American people's business.

Now, be that as it may, I would hope that at some point we would get to the underlying amendment, and it would actually be the law today except that the White House and Halliburton and others told the Republican majority, the leadership in the other body, that they had to take it out, which they did.

I commend the majority of Senators, both Republicans and Democrats, who supported it originally and have been willing to resist the pressure of the White House.

Over the last few weeks, the news has been dominated by events in Iraq. We are still trying to figure out exactly what went wrong in Abu Ghraib prison as well as other detention centers around the world. There has been some disagreement on this issue, but I think we have already learned a couple of lessons.

We need to improve transparency. We need to improve accountability. We need to put in place strong measures to prevent illegal and immoral acts. The reason for doing this is simple. Bad behavior by a few can lower morale among American soldiers. It can undermine support at home for the mission, and it could damage the work of the vast majority of brave men and women who are trying to do the right thing, trying to make life better, and are putting themselves in harm's way every day. By all means, we ought to take action in this body to make sure that no corporation or group can come in and make obscene profits or engage in war profiteering while our American men and women are putting their lives on the line for their country. We should not have anybody come in and say: Here is a great way to make some huge profit off their suffering and off the suffering of the Iraqi people.

So my amendment does not have anything to do with the recent prison abuses in Iraq, but it does address the serious issues I mentioned. It addresses the serious and sinister problem of war profiteering that can harm our mission there and around the world.

Senator Harry Truman served with distinction in this body and conducted Senate committee investigations into war profiteering during World War II. Then-Senator Truman, later President, said on this issue:

No one objects to a fair profit . . . [I]t is our duty . .

. to protect the patriotic majority of war contractors

against a stigma of profiteering generated by the self

seeking minority. We intend to see that no man or corporate

group of men shall profit inordinately on the blood of the

boys in the fox holes.

Today we have both men and women on the frontlines. And we have a lot of companies over there who are putting their own people in harm's way. They are doing it with the best interests of our country and the best interests of the Iraqi people. They are doing it very bravely. They are not doing it to profit from the war. As Harry Truman said: We have to take care; we have ``to protect the patriotic majority of war contractors against the stigma of profiteering generated by the self seeking minority.''

All my amendment says is that while most of the people over there will be playing by the rules, for those who are not, we are going to hold you accountable.

As a former prosecutor, I know nothing focuses the minds of those who are committing crimes more than knowing somebody can put them in prison for a long time. I will give you an easy example. If you have five warehouses lined up and four of them have heavy locks on the doors and one doesn't, that is the one that usually gets burgled. In this case, most people are going to be very honest. But without the locks on the doors, there are going to be some who try to get away with ripping off the American taxpayers.

I would hope that everybody in this body, Republican and Democrat, would agree with what President Truman said. I am concerned because we have seen one bad headline after another--the Wall Street Journal, the Washington Post, the New York Times, and others--about Government contracts in Iraq.

In addition, Time magazine recently reported on an e-mail sent by a Pentagon official that raises serious questions involving Vice President Cheney's office, the White House, and the Vice President's former employer, Halliburton. This is what the e-mail says: A multibillion-dollar Halliburton contract was approved ``contingent on informing White House tomorrow. We anticipate no issue since action has been coordinated with Vice President's office.''

And right on schedule, 3 days later, the Army Corps of Engineers gave Halliburton a multibillion-dollar contract, and they did it without seeking any other bids. This does not look like a typical heads-up memo, as the Vice President's office is now claiming. To this former prosecutor from Vermont, it looks like a coordinated scheme to enrich Halliburton at taxpayer expense with no-bid contracts.

This latest revelation underscores the need to address this issue. Even if there is a reasonable explanation for this outrageous e-mail-- and I am still waiting to hear what it is--we have to put in place tough measures to address this issue. I think we have to send a clear message that lining one's pockets, especially while our troops are in harm's way, is simply unacceptable.

I hope my amendment, if we are allowed to vote on it, will put a stop to these scandals. This amendment should pass unanimously. I am sorry that the Republican leadership has decided to put what I could only call ``a hold Halliburton harmless'' second-degree amendment in here. I hope that those majority of Senators, Republicans and Democrats alike, who voted for this amendment last year will vote against the second- degree amendment and vote for this amendment. Vote against the ``hold Halliburton harmless'' amendment and vote for the war profiteering prevention amendment.

The war profiteering prevention amendment, if it becomes part of law, will send a very clear signal. I don't care what the corporation is, whether the corporation is from Vermont or anywhere else, it will send a very clear signal: Play by the rules. But if you don't play by the rules, just as Harry Truman said after World War II, we are going to hold you accountable.

Mr. President, I ask unanimous consent, at the request of the distinguished chairman, that we be allowed to go into a quorum call until the hour of 2 p.m.; that then, by consent, the call of the quorum be rescinded and the Senator from Vermont be recognized again.

Mr. President, under the unanimous consent request, I suggest the absence of a quorum.

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

Mr. President, I appreciate the concern of the distinguished senior Senator from Virginia in trying to find a way through this.

I want to make it very clear about what we have. The war profiteering bills President Truman spoke of after World War II were civil bills. This is a criminal statute. Actually, the criminal statute is more protective of the contractors because it requires a higher level of proof. As a former prosecutor, I much prefer the idea that someone thinks they are not just going to pay a fine, they might face prison.

Second, this passed in almost exactly this form in the supplemental appropriations bill. It was debated and passed as a separate measure in the committee. The amendment then became part of the Supplemental which passed the Senate by a wide margin. The amendment we are considering today is different only in two respects. This one applies to all countries; at that time, it applied only to Iraq. Second, the amendment the Senate passed earlier contained a sunset. The amendment here today does not.

When we went to conference, the House did not have a similar piece of legislation. The distinguished chairman of the Appropriations Committee, Senator Stevens, proposed they accept ours. They had a rollcall vote and, by party line, refused it. Senator Stevens had modified it with, I believe, a 7-year sunset. That was not accepted.

Several Republicans were very forthright in saying they were under pressure from the White House not to accept it. Some suggested they were under pressure from corporations that were major contributors. I suggested if there is a bad case of war profiteering, they may come back to regret it.

Senator Stevens very correctly wanted to make it clear that all Republicans and all Democrats on the Appropriations Committee, in the committee of conference, had supported this. It had been part of a bill we passed overwhelmingly, if not unanimously, in this body early. Because the House would not accept it, it was dropped.

Obviously, every Senator has to vote the way he or she wants, but as war profiteering goes on, it is something each Senator has to answer to his or her constituents.

I yield, without losing my right to the floor.

Mr. President, if I might retain my right to the floor, the senior Senator from Illinois is absolutely correct; I did. I offered it. We had a debate within the Appropriations Committee to accept it within the Appropriations Committee and it became part of the bill.

My earlier statement may have left confusion, and I apologize. There was no intention of doing that. It was part of the appropriations bill and thus not voted on by the Senate although there was not a single amendment to strike that provision. There were various amendments, as the Senator may recall, that were proposed during the appropriations bill on the Senate floor, but no one moved to strike this. It passed 93-0. About the only difference in that bill, as I recall, was the amendment spoke only to Iraq. This includes other countries besides Iraq.

Yes, we voted on it, we passed it, and then the Senate offered it as their position. Both Republicans and Democrats offered it as our position to the other body, which rejected it on a party-line vote at the request of the White House.

Mr. President, if I might, the Harry Truman proposal, course, was civil. This is a criminal law.

If the Senator would let me finish.

The Harry Truman amendment was civil. This is criminal. Thus, this is more protective of a defendant because, as the distinguished Senators know, and certainly those who have been prosecutors know all too well, in a criminal case you have to prove beyond a reasonable doubt. A civil case can often be the preponderance of the evidence. This is more protective of both sides. But it holds the hammer of a criminal proposal. This has tough criminal penalties for individuals who defraud the American taxpayer. It provides a maximum criminal penalty of 20 years in prison and fines of up to $1 million.

The reason we did criminal rather than civil, there was a time when if you proposed a $10 million fine back at the time of Harry Truman, that was a lot of money. We have had at least one company that has already had to pay back money on overcharging and profiteering. They spend more than that $10 million on a weekend running ads saying how good they are at feeding the troops. But if you are facing a criminal penalty and might go to the slammer, then you think about it.

I will state why this is necessary. For example, if we wanted to use current law, which is basically what the second-degree amendment is, current law does not specifically outlaw war profiteering. My amendment, which the Senator from Illinois has spoken about, does specifically outlaw war profiteering. We wanted to go as a second- degree amendment. Current statute does not say that U.S. courts have explicit and uncategorical jurisdiction over fraud and profiteering in Iraq. My amendment does. If we tried to just take current law, where are we? My amendment eliminates unnecessary thresholds, for example, to prove mail and wire fraud, and the current statutes do not. And, of course, a 20-year felony.

There really are no laws on the books that address war profiteering. There are laws on the books for murder, laws on the books for rape, laws on the books for armed robbery, but there is nothing that goes specifically into war profiteering. Frankly, what I want to do is not just to throw people in the slammer; I want to stop them from doing it in the first place.

This is a real deterrent. If you have a prosecution that says you can go to jail, not just pay a fine, which is small change for some of these companies, but you might actually go to jail, somebody is going to say: Wait a minute. We can't triple charge for this. We can't triple charge for these hotels. We can't triple charge for these cars--and so on.

Yes, without losing my right to the floor.

Mr. President, the Senator from Illinois raises the exact right point. You read these accounts in the press. I referred to the e- mail traffic which has just come out about a multibillion-dollar noncompetitive contract given to Halliburton after they had sent e- mails saying it was being cleared by the Vice President's office or it was OK with the Vice President's office, and there are the things you have talked about, the obvious things about war profiteering.

Now, had the other body left the amendment in, the amendment that was part of the appropriations bill that we passed overwhelmingly--I think 87 to 12 here in the Senate--had they left that in the final bill, had they stood up to the White House and not allowed them to convince them to strip it out, then the kinds of actions the Senator from Illinois is talking about would be prosecutable.

I would suggest they probably never would have happened. The taxpayers would have saved those millions upon millions of dollars because somebody would have told them back at corporate headquarters: Hey, guys, you can go to jail if you do this. It is not just the case that if you get caught, you might have to pay the money back, but you can go to jail if you do this. And that would stop it.

Now, if we pass this today, it still has to be signed into law, and it would be prospective. Unfortunately, because the other body basically gave in to the importunings of the White House and took out the amendment, the war profiteering amendment which had been part of the bill that every one of us on this floor voted for, we cannot do anything about that. Had that been put into law, as it should have been, I suspect the activities that the Senator from Illinois has talked about would not have occurred because whoever is on the ground is going to call back and say: Hey, guys, it might sound good to you back home there, but I am not going to go to jail. I am not going to go to jail just to raise a little more money. I am not going to go to jail just because you say if you get caught you may have to pay it back, and it wouldn't happen.

What I am saying is this: When companies, especially some companies that have been accused of this, will spend more money in a few days here in Washington running ads to convince 535 Members of Congress how wonderful they are than they could possibly pay in fines, they do not care. You could leave whatever laws are on the books now. You could leave the possibility of paying it back. Because what happens? If you are a company and you go ahead and profiteer, you do war profiteering, you overcharge, you do whatever these other things are, and you do it 10 times, and you get caught 3 times, and they say: You are going to pay back those millions you overcharged--you say: Gosh, almighty, you got me. Gee, I'm sorry. Gee whiz. Here it is. And you tell your bookkeepers: They didn't find the other 7. We are ahead of the game.

On the other hand, if you do it 10 times, and you get caught on 3 of them, and suddenly people start going to jail, these other companies are going to say: Wait a minute, no-bid contracts or not, I am not going to take the chance.

If we want to stand up for the American taxpayers, if we want to say we are tough on crime, let's say criminals go to jail. That is all there is. Let's try this law. Let's see. Maybe if this is on the books people will stop profiteering.

What drives me up the wall is we have 140,000 very brave men and women--American men and women--over there under arms who are trying to do their best and getting shot at every day. I was at a funeral in Vermont this week for one of them, as I have been on several other occasions. They are putting their lives on the line. They are getting paid what a corporal or a sergeant gets paid, and they should not have to be putting up with companies back here making obscene profits on what they do. They put their lives on the line.

What I am saying is, some of the people who are making these obscene profits, they ought to at least go to jail. They ought to at least go to jail. I was thinking of that this week when I was at that funeral in Vermont. These are brave American men and women. I know every one of us here applauds their bravery. But I do not want to see companies, whether they are American companies or any other companies, making money on our sons and daughters who are over there putting their lives on the line.

That is why I want this amendment. That is why we should have kept it in the bill before. Frankly, we ought to keep it in now. Now, I fully understand that the White House comes out here and says: We don't want to tamper with these people. We don't want to put the brakes on them. They can get the votes to knock down this amendment, but it is wrong. It is wrong. And I suggest that some of those who lobby against this kind of amendment go to some of these funerals--go to some of these funerals--and tell them we will protect the people who are profiteering. It is wrong. It is wrong. We ought to be protecting them.

Mr. President, I yield without losing my right to the floor, of course.

Mr. President, regaining my right to the floor, of course I am willing to offer the appropriate courtesy, very soon, to the Senator from Virginia. He is one of the most distinguished Members of this body, and, more importantly, he and I have been close friends for over a quarter of a century.

I say to the Senator, I wonder if you might consider this: have a vote on your amendment, and have a vote on my amendment separately, and let the Senate work its will. The distinguished senior Senator from Virginia is going to be the Senate chairman in the committee of conference. It gives him that much more control. But why not let the U.S. Senate vote on each amendment separately and then see where it goes from there?

I will say this very frankly. I think the reason nobody moved to strike my amendment out of the appropriations bill was that--I heard this from both sides--they said: OK, we understand this is not a bad amendment, and we don't want to be on record as saying we are against it.

I think the reason both Republicans and Democrats in the Senate urged it upon the other body was for them. I think the obvious embarrassment by some, not all, but the obvious embarrassment by some who had to vote against it on the other side was they wished they had not. They wished they could have kept it in. So I would ask my dear friend from Virginia--and he is truly my dear friend--what do you think of that idea? Let's vote on both of them?

Mr. President, certainly, if the distinguished Senator from Virginia wishes to speak, I am not going to withhold the floor from him. He has accommodated me when I have wanted to speak. I yield the floor.

If I might respond to that, they have. The Senator from Virginia asked whether they have done it in a criminal prosecution. No, this is not a criminal statute. They have done it in a civil case, and there is a huge amount of case law on this in civil cases. The only difference is, if the Senator is worried about the rights of contractors and others, in a criminal case, of course, you have to prove specific intent. In civil cases, you have to prove it with a preponderance of the evidence. Here you have to prove it beyond a reasonable doubt. But these are words of art: ``overvalues a good or service with specific intent to excessively profit from the war, military action. . . .'' Those are words of art. They have been interpreted by the courts.

The difference, again, as I said, if you are doing it in a criminal case, as the Senator from Virginia well knows, you have to prove it beyond a reasonable doubt.

``Excessively profit'' is taken from the renegotiation act, which is, as I said, a civil act. The constitutionality of that was upheld; I believe it was in the Lichter case.

It has to be beyond a reasonable doubt. And I have prosecuted thousands of cases, tried hundreds of them as a prosecutor. I know that is one high hurdle.

Will the Senator yield for a question?

My question to the distinguished senior Senator from Virginia probably reflects my confusion. He was concerned about the 20- year penalty to which this might subject some of these contractors. Obviously, thousands of contractors are not going to be subjected to that. It is only going to be the most grievous ones.

He is proposing, if I am correct, a statute that would subject overseas contractors to a 30-year penalty. I thought I was a tough prosecutor. The Senator from Virginia complains about my 20-year penalty; he is proposing 30 years. I don't mean to get into a bidding war on penalties, but if my 20 years is too Draconian, 30 years sounds even more so.

Mr. President, if I may respond without the Senator losing his right to the floor, he is relying on a statute--if I recall, without hearings; there was an amendment to the Sarbanes-Oxley bill a couple years ago on the floor. If we are talking about criminal statutes and changing them by whim, that is one that said no more debate on this. I am bringing up something that was debated rather thoroughly in the Appropriations Committee, including a bill the Senator from Virginia and I voted for last year.

It was debated, of course, in committee. It was well noted here before all Senators. Nobody, either Republican or Democrat, made the normal motion to strike that was done when you have a part to which you object. The Senator from Virginia is right that this is slightly different. That one was just for Iraq. This includes Afghanistan and elsewhere and does not contain a sunset provision.

I must admit that we are somewhat inclined to do that, especially after hearing of these e-mails that have just been made public. We are not talking about somebody who shows up and provides five dozen baseball caps to one of our military groups somewhere around the world. We are talking about people getting a billion dollars, with no-bid, no- competition contracts. I think we ought to at least be able to look at them and make sure they are spending our money correctly.

Mr. President, I am confused by the response. Is the Senator saying that section 1001 of title 18 was not amended by the Sarbanes-Oxley Act about a year and a half ago?

Whatever it was----

It was not increased back in--if the Senator tells me the Sarbanes-Oxley Act was not amended on section 1001 at all, I will accept that.

Mr. President, is it the position of my friend from Virginia that the kinds of things we have heard about--and he sees it more than I do as chairman of the Armed Services Committee--about the hundreds of millions of dollars being overcharged in meals, and hundreds of millions of dollars being overcharged on vehicles, housing, and construction. Any of those would be covered by his statute.

Mr. President, if I might, obviously the statutes on the books have not stopped them from overcharging, have not stopped them from the kinds of things we have seen.

Nobody wants to use the word ``Halliburton'' around here, but we constantly pick up the paper and read about a number of these companies. They are obviously overcharging, and nothing is happening to them. I am just one frustrated American who wants them to stop.

Mr. President, will the Senator yield for another question?

Let me ask the Senator from Virginia this: Suppose we have an item, and one of these contractors about which we are talking charges $2,000 for an item. It cost him $5. We remember back to the days of the $500 hammer. He charges the Government $2,000 for an item that costs $5, but he does not lie about this. He does not conceal the cost. He simply says: Here is my bill.

He says: OK, it is $2,000. He paid $5. He does not conceal that cost. He does not lie. He just says: Here is the bill for $2,000. He has not lied. He did not conceal--the bill is not hidden somewhere else. It is a straight-out bill, but he is obviously gouging the Government, charging $2,000 for a $5 item. Does the Senator's statute cover that situation?

That is not a scheme. He said: I just delivered this widget. Here is your bill for $2,000. And there are so many other things going on, the Government says: Here is your 2,000 bucks. It is not a scheme. It is not an artifice. He is not hiding the fact at all. He said: Here is your bill for $2,000 and somewhere gets paid in the bureaucracy. He has obviously gouged. He has not lied about it. He is up front about it. Does the Senator's statute cover that because that happens a lot?

Mr. President, is the Senator from Virginia saying, then, it would require fraud?

We are getting a lot of no-bid contracts with basically the company, as we found in these e-mails, saying: Here is what it is going to be.

There are no bids. There is nothing else. The Government says: OK, go forward. But there is no question there has been war profiteering there. There has been no fraud, no artifice, nothing else. He just sent the bill, and the bill gets paid. It is profiteering, but I do not see where your statute covers that situation.

Mr. President, if I may respond, they realize there are not going to be bids on this contract. They realize it is going to be OK'd as soon as they send it in. They have not done any tricks at all. They just say: Here is our bill. There is nobody else bidding, and it gets passed.

Some may say that may be fraud; that may not be. Mine does not say maybe. It just says to do it is a crime.

Mr. President, if I might respond to that, it is not a brandnew dimension. It is basically what we had in the Appropriations bill last year.

Secondly, it is completely appropriate to apply this new law to Iraq when we see these huge cost overruns on no-bid contracts, and nobody seems to be held accountable. Defense offered by lawyers for the contractor might be that there are no false statements and, therefore, no crime, even though one is ripping off the taxpayers.

It is similar to the guy who comes in and says: I will sell you this hammer for $2,000. He is not claiming it is a $2,000 hammer. He is not claiming he paid more than $5 for it. He says: I will sell it for $2,000. Has he made excess profit? Of course, he has. But when it comes to the point when our men and women are putting their lives on the line while others sit back in the boardrooms in America, I think every single lawyer in these boardrooms is going to know exactly what this amendment does, and it will be a strong deterrent.

Mr. President, as the White House proved last year when this amendment was debated during the Iraq supplemental conference, I am sure the Senator can pull up the votes to defeat me. I think it is a mistake. Frankly, I will keep on trying to bring up commonsense amendments to prevent war profiteering. Maybe sooner or later some of these people in the same boardrooms who are involved, who are getting no-bid contracts, may think: Maybe we better slow up because maybe one day the Senate will actually say we are going to hold you accountable if you engage in this sort of activity.

I asked unanimous consent--I have discussed this with the senior Senator from Virginia--that we have 2 minutes equally divided on the next amendment.

Two minutes is fine with me.

Madam President, I do not want to start until the Senate is in order.

Madam President, I voted, as did others, for the Warner amendment even though I see it as only the tiniest step toward addressing what we read about in the paper every single day, and that is war profiteering in Iraq. His amendment does not cover war profiteering; mine does. In fact, his, I believe, removes my prohibition against war profiteering. What I have in here is an amendment, very similar to what we passed in the appropriations bill earlier, about real war profiteering.

This Monday I was at the funeral in Vermont of a young sergeant who was killed in Iraq, just as my wife and I have been at other funerals of Vermonters killed over there, and I suspect most Members of the Senate have. They are over there defending their country. They are over there doing what their country asked them to, being paid as corporals and sergeants, and dying.

We have a lot of other people sitting in boardrooms back here in America, watching enormous profits, watching the American taxpayers pay for things that are never delivered, for trucks that are never there, for meals that are never there, and we can't stop them. My amendment would stop them. My amendment would put, if not patriotism in them, it will put the fear of going to jail in them.

Let us stand up for our American men and women over there. Let us stop the war profiteers. Let us say no to them, and let us say, if you continue, you are going to go to jail because that is where you belong.

Madam President, my amendment very simply says to the Halliburtons all over the country that you can't profit on the backs of our men and women in Iraq or Afghanistan. We all know that is what it is.

Madam President, I ask for the yeas and nays.

Mr. President, this afternoon, while debating my amendment on war profiteering, we became mired in a debate about what is or what is not in the criminal code.

I will not revisit that issue now. However, I will say to the senior Senator from Virginia, who asked from where the language in my amendment originated in the criminal code, that I have more information on that issue that should be to his satisfaction.

First, the term ``material'' appears in terrorism laws prohibiting ``material'' support. In fact, all falsity in the criminal code must ``material''. Pursuant to a Supreme Court ruling, part of proving a false statement must be ``material.''

Second, the term ``overvaluation'' is in Title 15 prohibiting ``criminally overvaluation'' of securities.

Third, with respect to ``intent to excessively profit,'' this is taken, in part, from ``significantly profit'' in 12 U.S.C. 1297 which criminalizes bank crimes. ``Significantly profit'' is, in fact, a lower standard that ``excessively profit.'' We erred on the side of caution and raised the standard.

Although I made this point clear during the debate, this should leave no doubt that my amendment is carefully constructed legislation.

Madam President, it is interesting, I think I heard one of the

Republican campaign committees talking about Democrats treating the South unfairly on judges. Southern States comprise about 25 percent of the States, but 60 of the nominees, about one-third of the nominees, have come from the South. With my colleagues, I have moved to get virtually all of them through.

Today we are asked to consider the nomination of William S. Duffey, Jr., to the Northern District of Georgia. The ABA found Mr. Duffey to be well-qualified to be a district court judge. He also has the support of both of his home State Senators.

Mr. Duffey is currently serving as the United States Attorney for the Northern District of Georgia. Prior to this Presidential appointment, he was in private practice and served for a number of years under the Office of the Independent Counsel during the 1990s. In this capacity, Mr. Duffey had administrative and general oversight responsibility for investigative activities and staffing in Arkansas. I questioned Mr. Duffey about two speeches he gave about his involvement in the Whitewater investigation. For example, while serving as the United States Attorney in northern Georgia and using the seal of that office, Mr. Duffey recently gave a speech entitled ``Whitewater, White Powder and White Paper'' at a local university. Despite his use of pejorative editorial cartoons, Mr. Duffey claimed that this speech was really about the value of public service. I am somewhat reassured by Mr. Duffey's answers to my questions and hope that if he is confirmed, he will avoid appearances of impropriety and conduct himself in a manner beyond reproach.

I would also note that some have falsely alleged that Democratic Senators have treated Southern nominees unfairly. That is simply untrue. The truth is that Democrats have treated judicial nominees from the South very fairly: Southern States comprise about 25 percent of the States in the Nation, yet out of the 184 judicial nominees of President Bush that we have confirmed as of this vote, 60 nominees, or about one- third, have been appointed to judicial seats in the South. With this vote there will be no vacancies in the entire State of Georgia. Senators on this side of the aisle worked to fill the last vacancy in Georgia. Judge C. Ashley Royal was confirmed December 20, 2001, under Democratic leadership to be United States District Judge for the Middle District of Georgia.

It is very unfortunate that some extreme partisans have tried to divide the American people for political gain with their false accusations that Democratic Senators are anti this group or that group. Democrats have been fair to judicial nominees from all parts of the Nation. We have been far more fair to this President's judicial nominees than Republicans were to the last Democratic President's. Republican Senators blocked more than 60 of President Clinton's judicial nominees, including several southerners.

I congratulate Mr. Duffey and his family on his confirmation today.

Madam President, I ask for the yeas and nays.

Madam President, today, I vote to support Lawrence Stengel to be a United States District Court Judge for the Eastern District of Pennsylvania. Judge Stengel has served for more than 13 years as a Judge on the Lancaster County Court of Common Pleas, where he has presided over hundreds of civil and criminal cases. In light of his significant judicial experience, it is not surprising that a substantial majority of the American Bar Association found him ``Well- Qualified'' for a lifetime position on the Federal court.

A look at the Federal judiciary in Pennsylvania demonstrates yet again that President Bush's nominees have been treated far better than President Clinton's and shows dramatically how Democrats have worked in a bipartisan way to fill vacancies, despite the fact that Republicans blocked more than 60 of President Clinton's judicial nominees. With today's confirmation, 18 of President Bush's nominees to the Federal courts in Pennsylvania will have been confirmed, more than for any other State.

With this confirmation, President Bush's nominees will make up 18 of the 43 active Federal circuit and district court judges for Pennsylvania--that is more than 40 percent of the Pennsylvania Federal bench. On the Pennsylvania district courts alone, President Bush's influence is even stronger, as his nominees will hold 15 of the 34 active seats--or more than 44 percent of the current active seats. With the additional Pennsylvania district court nominees pending on the floor and likely to be confirmed soon, nearly half of the district court seats in Pennsylvania will be held by President Bush's appointees. Republican appointees will outnumber Democratic appointees by nearly two to one.

This is in sharp contrast to the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate when President Clinton was in the White House. Although Republicans now decry Democratic filibusters of a mere handful of the most extreme nominees, Republicans denied votes to 10 judicial nominees, 9 district and 1 circuit court nominees of President Clinton in Pennsylvania alone. Despite the efforts and diligence of the senior Senator from Pennsylvania, Senator Specter, to secure the confirmation of all of the judicial nominees from every part of his home State, there were 10 nominees by President Clinton to Pennsylvania vacancies who never got a vote. Despite how well-qualified these nominees were, many of their nominations sat pending before the Senate for more than a year without being considered. Such obstruction provided President Bush with a significant opportunity to reshape the Federal bench and the law.

News articles in Pennsylvania have highlighted the way that President Bush has been able to reshape the Federal bench in Pennsylvania. For example, The Philadelphia Inquirer noted that the significant number of vacancies on the Pennsylvania courts ``present Republicans with an opportunity to shape the judicial makeup of the court for years to come.'' Despite this, I do hope Judge Stengel will be fair to all who come before him.

Madam President, I yield back my time and ask for the yeas and nays.

Mr. President, today the Senate considers the nomination of Paul Diamond to be a United States District Judge for the Eastern District of Pennsylvania. Mr. Diamond has a unanimous rating of ``well- qualified'' from the American Bar Association and significant experience serving as an assistant district attorney in Philadelphia for 6 years and serving as a litigator in private practice for over 20 years. He is supported by the senior Senator from Pennsylvania, for whom I have great respect.

With the three confirmation votes today, the Senate will now have confirmed 17 judicial nominees this year alone. Seventeen is the total number of judges who were confirmed under Republican leadership in all of 1996. However, in 1996, the first confirmation did not even occur until July.

With these three confirmations today, the Senate will have confirmed a total of 86 judges this Congress and 186 of this President's judicial nominees overall. With 86 judicial confirmations in just a little more than 17 months, the Senate has confirmed more Federal judges than were confirmed during the 2 full years of 1995 and 1996, when Republicans first controlled the Senate and President Clinton was in the White House. It also exceeds the 2-year total at the end of the Clinton administration, when Republicans held the Senate. With 186 total confirmations for President Bush, the Senate has confirmed more lifetime appointees for this President than were allowed to be confirmed in President Clinton's entire second term, the most recent 4- year presidential term. We have already surpassed the number of judicial appointments won by President Reagan in his entire first term in office.

A look at the Federal judiciary in Pennsylvania demonstrates yet again that President Bush's nominees have been treated far better than President Clinton's and shows dramatically how Democrats have worked in a bipartisan way to fill vacancies, despite the fact that Republicans blocked more than 60 of President Clinton's judicial nominees. With this confirmation, 19 of President Bush's nominees to the Federal courts in Pennsylvania will have been confirmed, more than for any other State.

With this confirmation, President Bush's nominees will make up 19 of the 43 active Federal circuit and district court judges for Pennsylvania. That is more than 40 percent of the Pennsylvania Federal bench. On the Pennsylvania district courts alone, President Bush's influence is even stronger, as his nominees will now hold 16 of the 35 active seats. In other words, nearly half of the district court seats in Pennsylvania will be held by President Bush's appointees. Republican appointees will outnumber Democratic appointees by nearly two to one.

This is in sharp contrast to the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate when President Clinton was in the White House.

Republicans denied votes to ten judicial nominees, nine district and one circuit court nominees of President Clinton in Pennsylvania alone. Despite the efforts and diligence of the senior Senator from Pennsylvania, Mr. Specter, to secure the confirmation of all of the judicial nominees from every part of his home State there were 10 nominees by President Clinton to Pennsylvania vacancies who never got a vote. Despite records that showed these to be well-qualified nominees, many of their nominations sat pending before the Senate for more than a year without being considered. Such obstruction provided President Bush with a significant opportunity to shape the bench according to his partisan and ideological goals.

New articles in Pennsylvania have highlighted the way that President Bush has been able to reshape the Federal bench in Pennsylvania. For example, The Philadelphia Inquirer, observed that the significant number of vacancies on the Pennsylvania courts ``present Republicans with an opportunity to shape the judicial makeup of the court for years to come.''

I would note that the Republican leadership has decided to depart from the order of the executive calendar to confirm Mr. Diamond today rather than Juan Ramon Sanchez, a well-qualified Hispanic nominee to the U.S. District Court for the Eastern District in Pennsylvania. That is their choice. I do not want to see the Democrats blamed for any delay in confirmation of Mr. Sanchez. I support that nomination and believe it will be supported by all Democratic Senators.

I congratulate Mr. Diamond and his family today on his confirmation.

I yield back my time.

I ask for the yeas and nays.

Mr. President, 4 years ago, I worked with Senators Sessions and DeWine to pass the Military Extraterritorial Jurisdiction Act, MEJA, which established Federal jurisdiction over crimes committed by civilians employed by, or accompanying, our military overseas. The Sessions-Schumer amendment further extends the jurisdictional authority we created in MEJA by closing a possible jurisdictional gap that could allow persons who commit crimes while accompanying our military overseas to escape justice. I support this amendment, and am pleased that the Senate has adopted it today. In addition, I thank the sponsors for accepting my addition to their amendment, which closes a similar jurisdictional loophole in Federal law.

Attorney General Ashcroft referred to this loophole last week, during his annual appearance before the Senate Judiciary Committee, while attempting to defend the Administration's position on torture. Interestingly, this loophole was created by legislative language that was proposed by the Department of Justice as a means of broadening, not shrinking, Federal criminal jurisdiction. This language, enacted as part of the USA PATRIOT Act, redefined the ``special maritime and territorial jurisdiction of the United States'' to include U.S. military bases and other U.S. Government properties in foreign States. The administration's summary of its proposal explained that it would ``extend'' Federal jurisdiction to ensure that crimes committed by or against U.S. nationals abroad on U.S. Government property did not go unpunished.

Unfortunately, the administration drafters of this proposal neglected to mention to Congress how it would impact on the Federal anti-torture statute. That statute prohibits torture committed ``outside the United States'' by persons acting under color of law, and defines the term ``United States'' to include the ``special maritime and territorial jurisdiction of the United States.'' By extending the special maritime and territorial jurisdiction of the United States, the PATRIOT Act effectively narrowed the reach of the anti-torture statute. Post- PATRIOT Act, the anti-torture statute may not allow for the prosecution of an individual who commits torture on a U.S. military base outside the United States.

My addition to the Sessions-Schumer amendment corrects this problem in a simple and straightforward way. It extends the anti-torture statute to apply, without exception, to acts committed outside the 50 States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

It may be that we should go further. Arguably, the anti-torture statute should be extended to apply anywhere in the world--both inside and outside the United States. I would welcome the views of the Department of Justice on this question. In the meantime, there are other Federal statutes that prohibit violence or excessive force by those acting under color of law within our borders.

Torture is one of the most serious crimes imaginable. I can think of no reason why the Federal Government should create safe havens for torturers anywhere in the world. To the contrary, we should use every means available to track them down and bring them to justice. The language that I have proposed, and that the Senate has accepted, will assist the Justice Department in doing just that.

Mr. President, today we vote on the nomination of Virginia Hopkins to the Northern District of Alabama. Ms. Hopkins has been an attorney at the firm Campbell & Hopkins in Alabama, and has the support of both of her home State Senators. In particular, Senator Shelby deserves praise for diligently pressing forward, and this confirmation rewards his constant attention to this nomination. Senator Shelby has always been a pleasure with whom to work, whether I was serving as chairman or ranking member. Senator Shelby has always been someone who plays it straight and shows good judgment. He is fair and forthright.

I must note that since May 18, the date of the agreement on judicial confirmations this year involving Senator Daschle, Senator Frist and the White House, the Senate has confirmed seven judges, including two circuit court nominees. We confirmed Marcia Cooke to the district court in Florida, Judge Van Antwerpen to the Third Circuit in Pennsylvania, and Ray Gruender to the Eighth Circuit the first week of that agreement. The following week, the Senate confirmed the nominations of Dennis Saylor, Sandra Townes, Ken Karas, and Judith Herrera to the Federal district courts.

Last week, the Republican leadership did not schedule any judicial nominations for a vote and considered other business during that shortened work week. In the month since the agreement to have a floor vote on 25 judicial nominees, the Republicans have asked for votes on only seven judicial nominees and have scheduled debate on a variety of matters other than judicial nominees. That is their choice. The Republican leadership knows that some of the remaining nominees in the agreement for votes this year require significant time for debate.

I do not want to see the Democrats blamed for any delay in confirmation votes when Republicans have been advised for weeks now that it is going to

take time for the Senate to process all of the nominees in the agreement. Members of the Senate deserve time to consider the merits of the nominees for lifetime positions. Democrats have been working cooperatively on judges but the Republican leadership has not worked with us to schedule the debate and votes on the many remaining judicial nominees that we had hoped could be considered before June 25. After today's three votes, 15 judicial nominees remain to be scheduled for debates and votes. I hope that we can make progress on more nominees this week and next. At the pace the Republican leadership has chosen to proceed, there is now a strong likelihood that debate and votes on some of these judicial nominees will extend past June 25.

On the occasion of the confirmation of this Alabama nominee, I would note that some in the Senate have falsely alleged that Democratic Senators have treated southern nominees unfairly. Some extreme partisans tried to divide the American people for partisan political gain with their false accusations against Democratic Senators. The truth is that Democrats have treated judicial nominees from the South very fairly: Southern States comprise about 25 percent of the States in the Nation, yet out of the 181 judicial nominees of President Bush that we have confirmed as of this vote, 59 nominees, or one-third of the confirmed nominees, have been to judicial seats in the South. In particular, I would note that six of President Bush's judicial nominees have already been confirmed to United States district courts in Alabama since he took office: Judge Karon Bowdre, Northern District; Judge Callie Granade, Southern District; Judge Mark Everett Fuller, Middle District; Judge L. Scott Coogler, Northern District; Judge R. David Proctor, Northern District; and Judge William Steele, Southern District. Judge Steele, as you may recall, was initially nominated by President Bush to the Eleventh Circuit, but President Bush pulled down the elevation of this then-U.S. magistrate judge in order to put forward the even more controversial William Pryor, who was recess appointed earlier this year despite the serious objections of numerous Senators. Recent news articles about Judge Pryor's actions on the bench have only underscored the concerns of many that he lacks the political independence and fairness to serve as a judge.

Ms. Hopkins received a partial ``Not Qualified'' rating from the American Bar Association. Following the White House's exclusion of the ABA from reviewing judicial candidates before they have the President's stamp of approval, a dismaying number of this President's nominees have received ``Not Qualified'' ratings. Indeed, four of his nominees were rated ``Not Qualified'' by a majority of the ABA rating committee, and 24--more than 10 percent--were rated ``Not Qualified'' by some members of the ABA's standing committee.

The weight that should be accorded an ABA rating was called into question after the debacle in which Republican partisan Fred Fielding prepared Miguel Estrada's ABA rating recommendation. Mr. Fielding not only served on the White House transition team advising the President about Cabinet appointments, he subsequently cofounded the Committee for Justice, which attacks anyone opposed to the President's judicial nominees. Similarly, the ABA's rating to Judge Pickering after his judicial ethics were called into question by national ethics experts undermined the confidence that some in the Senate had in the evaluations of the ABA's rating committee. Also, the ABA's ratings do not take into account the President's effort to put so many ideologues and extremists into these lifetime positions on the bench.

In Ms. Hopkins' case, the ABA rating may reflect her modest trial experience: She has been the sole or chief counsel in only two of the cases she has tried to verdict. Ms. Hopkins has been active in Republican fundraising like many of the President's nominees, but I am hopeful, given the confidence Senator Shelby has reposed in her, that she will leave her partisan roots behind upon confirmation. Out of deference to Senator Shelby, I will vote in favor of her confirmation.

I congratulate Ms. Hopkins on her confirmation.

Nomination of Ricardo Martinez

Mr. President, today the Senate considers the nomination of Ricardo Martinez, to be a United States District Judge for the Western District of Washington. For the past 6 years, he has been a widely respected United States Magistrate Judge for the Western District of Washington. Previously, Judge Martinez served as a Superior Court Judge and as an assistant prosecutor in King County, WA. He is a graduate of the University of Washington and of the University of Washington Law School, and has substantial trial experience. In light of his significant judicial experience it is not surprising that he received a unanimous rating of ``Well-Qualified'' from the American Bar Association.

Judge Martinez's nomination is the product of a bipartisan judicial nominating commission that Senators Murray and Cantwell insisted upon in spite of Bush administration opposition. The State of Washington is well-served by its bipartisan judicial nominating commission which recommends qualified, consensus nominees on whom members of both parties can agree. It is difficult to understand why President Bush has opposed similar bipartisan selections commissions since they help Democrats and Republicans work together and help maintain an independent judiciary. I thank Senators Murray and Cantwell for their steadfast efforts in maintaining the commission.

While some people have accused Democrats of being anti-Hispanic, our record of confirming Hispanic nominees is excellent. Democrats have supported the swift confirmation of President Bush's Latino nominees already, with four more waiting only for a vote on the Senate floor. While President Clinton nominated 11 Latino nominees to circuit court positions, five of those 11 were blocked by the Republican Senate, and four of those five were not even granted hearings. President Bush has only nominated four Latino jurists to circuit court positions, three of whom have already been confirmed with unanimous Democratic support. President Bush's 21 Latino nominees constitute less than 10 percent of his 225 judicial nominees.

Regrettably the President has been more concerned with nominating those affiliated with the Federalist Society. He has nominated 45 such nominees. Twice as many nominees have been affiliated with the Federalist Society as have been Hispanic. In fact, all of his Hispanic, Asian and African American judicial nominees combined do not

equal the number of those affiliated with the Federalist Society.

This confirmation marks the 182nd lifetime judicial appointment approved by the Senate during this Presidential term. That is more than is all of President Reagan's term from 1981 through 1984 and more than in all of President Clinton's more recent term from 1997 through 2000. We have also approved more judicial nominees this Congress than in either of the last two Congresses preceding the Presidential elections in 1996 or 2000.

I strongly support his nomination and I congratulate Judge Martinez and his family on his confirmation.

Mr. President, today we vote to confirm another district court nominee, Gene Pratter to the U.S. District Court for the Eastern District of Pennsylvania. Ms. Pratter is currently a partner at the firm Duane Morris LLP, where she has worked her entire career.

A look at the Federal judiciary in Pennsylvania demonstrates yet again that President Bush's nominees have been treated far better than President Clinton's and shows dramatically how Democrats have worked in a bipartisan way to fill vacancies despite the fact that Republicans blocked more than 60 of President Clinton's judicial nominees. With this confirmation, 17 of President Bush's nominees to the Federal courts in Pennsylvania will have been confirmed--a rate not matched in any other State but California.

With this confirmation, President Bush's nominees will make up 17 of the 42 active Federal circuit and district court judges for Pennsylvania--that is more than one-third of the Pennsylvania Federal bench. On the Pennsylvania district courts alone, President Bush's influence is even stronger as his nominees will hold 14 of the 33 active seats--or more than 42 percent of the current active seats. With the additional Pennsylvania district court nominees pending on the floor and likely to be confirmed soon, nearly half of the district court seats in Pennsylvania will be held by President Bush's appointees. Republican appointees will outnumber Democratic appointees by nearly two to one.

This is in sharp contrast to the way vacancies in Pennsylvania were left unfilled during Republican control of the Senate when President Clinton was in the White House. Republicans denied votes to nine district and one circuit court nominees of President Clinton in Pennsylvania alone. Despite the efforts and diligence of the senior Senator from Pennsylvania, Senator Specter, to secure the confirmation of all of the judicial nominees from every part of his home State, there were 10 nominees by President Clinton to Pennsylvania vacancies who never got a vote. Despite records showing them to be well-qualified nominees, many of their nominations sat idle before the Senate for more than a year without being considered. Such obstruction provided President Bush with a significant opportunity to shape the bench according to his partisan and ideological goals.

Recent news articles in Pennsylvania have highlighted the way that President Bush has been able to reshape the Federal bench in Pennsylvania. For example, The Philadelphia Inquirer, on November 27, 2003, said that the significant number of vacancies on the Pennsylvania courts ``present Republicans with an opportunity to shape the judicial makeup of the court for years to come.''

Democratic support for the confirmation of Gene Pratter is yet another example of our extraordinary cooperation despite an uncompromising White House and a record that shows Republicans' refusal to cooperate on President Clinton's Pennsylvania nominees when they controlled the Senate and a Democrat resided at 1600 Pennsylvania Avenue.

Like so many of President Bush's nominees, Ms. Pratter is a member of the Federalist Society and has been involved in numerous Republican Party campaigns. She has no judicial experience although she comes from a well-

respected law firm. Her record of defending businesses raises concerns about her ability to balance business and individual interests. In her answers to my written questions, however, she assured me that she would be fair to all parties that come before her. I hope that she will be a person of her word. I hope that she will follow the law. I hope that she will treat all who appear before her with respect. I hope she will not abuse the power and trust of her position. Sometimes we have to take a risk to allow a nominee to be confirmed.

I congratulate Ms. Pratter on her confirmation today.

Mr. President, if I might ask the distinguished senior Senator from Virginia, as I understand it, my amendment is actually pending. There are a number pending, but my understanding is the distinguished Senator from Virginia will protect me for a block of time.

So we can debate and vote.

Good enough for me.

Mr. President, we have come to the close of several days of tribute to our late President, Ronald Reagan. So much has been said about President Reagan's buoyant spirit and about the contributions he made to our Nation, and these tributes have helped millions of Americans with the healing process that comes with the death of so popular and beloved a leader.

Though much has already been said about President Reagan, I do want to pay special tribute today to our former First Lady, Nancy Reagan.

For me--and, I suspect, for millions of other Americans--some of the most stirring images of this memorable week have been of Nancy Reagan and her family. We saw again, and so clearly, her strength, her compassion and her deep love for her husband.

Ever since President Reagan's deeply moving announcement to his fellow citizens and to the world that he was suffering from Alzheimer's disease, I have watched Mrs. Reagan conduct herself with compassion, loyalty, competence and caring that have been an inspiration to the thousands of family members who every day struggle to cope with loved ones suffering from this disease or from any of the long variety of other disorders that can come upon us in our older ages--and sometimes far earlier than that.

The Alzheimer's Association estimates that 4.5 million Americans today suffer from this debilitating disease. Often, family members and especially, spouses--end up as primary caregivers to their partners or other family members. Along with the emotional pain and heartbreak of watching the mind of a loved one slowly fade away, many caregivers are ill-equipped to handle the many facets of the illness that present themselves over the duration of this mental and physical struggle. Their own physical health suffers. Managing a job or any other activity outside the home becomes almost impossible.

I believe Nancy Reagan is an inspiration to so many Americans. The love that she and her husband so clearly showed to each other comforted and sustained their marriage in sickness, as it did in health.

Marcelle and I extend our best wishes to Mrs. Reagan and to the entire Reagan family.