Floor Statements

Mr. President, I thank the Senator from Utah.

Mr. President, I oppose the Class Action Fairness Act, S. 5. Notwithstanding its title, I do not think this bill is fair. I do not think it is fair to citizens who are injured by corporate wrongdoers and are entitled to prompt and fair resolution of their claims in a court of law. I do not think it is fair to our State courts, which are treated by this bill as if they cannot be trusted to issue fair judgments in cases brought before them. And I do not think it is fair to State legislatures, which are entitled to have the laws that they pass to protect their citizens interpreted and applied by their own courts. This bill is not only misnamed, it is bad policy, and I do think it should be defeated.

Make no mistake, by loosening the requirements for Federal diversity jurisdiction over class actions, S. 5 will result in nearly all class actions being removed to Federal court. This is a radical change in our Federal system of justice. We have 50 States in this country, each with its own laws and courts. State courts are an integral part of our system of justice. They have worked well for our entire history. It is hard to imagine why this Senate, which includes many professed defenders of federalism and the prerogatives of State courts and State lawmakers, would support such a wholesale stripping of jurisdiction from the States over class actions. By removing these actions from State court, Congress would shift adjudication away from State lawmakers and State judges towards Federal judges, who are often not as familiar with the nuances of State law. In my opinion, the need for such a radical step has not been demonstrated.

Actually, the leaders of the Federal and State judiciary agree. I don't know if it has taken a position on this particular bill, but the Judicial Conference of the United States has opposed legislation like S. 5 that would remove most class actions from State to Federal court. Federal judges don't particularly like diversity jurisdiction cases. They certainly are not in favor of legislation that would bring many more large, complicated civil cases brought under State law to their courts. And the Board of Directors of the Conference of State Chief Court Justices expresses quite well the concerns of State judges about this bill. Its letter states:

Absent hard evidence of the inability of the state judicial

systems to hear and fairly decide class actions brought in

state courts, we do not believe such a procedure [transfer of

class actions to federal court] is warranted. . . . Our

position is not new and it is consistent with the position of

our counterparts in the federal judicial system.

Class actions are an extremely important tool in our system of justice. They allow plaintiffs with very small claims to band together to seek redress. Lawsuits are expensive. Without the opportunity to pursue a class action, an individual plaintiff often simply cannot afford his or her day in court. But through a class action, justice can be done and compensation for real injuries can be obtained.

Yes, I do agree, there are abuses in some class action suits. Some of the most disturbing have to do with class action settlements that offer only discount coupons to the members of the class and a big payoff to the plaintiffs' lawyers. I am pleased that the issue of discount coupons is addressed in the bill, because the bill we considered in October 2003 did nothing about that problem. The bill now requires that contingency fees in coupon settlements will be based on coupons redeemed, not coupons issued. Attorney's fees will also be determined by reasonable time spent on a case and will be subject to court approval. The bill also allows a court to require that a portion of unclaimed coupons be given to one or more charitable organizations agreed to by the parties. I do agree, these are all good changes, but they do not change my view that the bill, as a whole, unfairly interferes with the States' administration of justice.

I appreciate that the supporters of S. 5 modified the new diversity jurisdiction rules for class actions in an effort to allow plaintiffs in State class actions more opportunities to remain in State court. Under the new bill, a district court must decline jurisdiction if two- thirds of the plaintiffs and the primary defendants are from the State where the action was filed, and there is at least one defendant who is a citizen of that State from whom significant relief is sought and whose alleged conduct forms a significant basis for the claims asserted by the proposed class. In addition, the principal injuries resulting from the alleged conduct of each defendant must have occurred in the State in which the action was originally filed.

These criteria are an improvement on the underlying bill. But the jurisdictional requirements for class actions to remain in State courts are still too burdensome. Under the new language, for example, a class action brought by Wisconsin citizens against a Delaware-based company for selling a bad insurance policy would probably be removed to Federal court even if Wisconsin-based agents were involved in selling the policies.

In addition, the new bill provides that district courts can only decline jurisdiction if during the 3-year period preceding the filing of the action no other similar class action has been filed against any of the defendants even if the case is filed on behalf of other plaintiffs. Thus, the filing of a class action in one State court may lead to the successful removal of a similar case filed in another State on behalf of plaintiffs in that State. If a defendant is engaging in conduct in number of different States that violates the separate laws of those States, why shouldn't that defendant be held accountable in different State courts under different state laws? Do we really need the Federal courts to get involved in these State law cases?

The bottom line is that this bill still sends the majority of class actions to Federal court. The proponents of this bill have chosen a remedy that goes far beyond the alleged problem.

Furthermore, under S. 5, many cases that are not class actions at all are included in the definition of ``mass action,'' a new term coined by this bill. S. 5 simply requires that the plaintiffs be seeking damages of more than $75,000 for the case to be considered a mass action and, therefore, removable to Federal court. This provision unfairly limits State court authority to manage its docket and to consolidate claims in order to more efficiently dispense justice.

A particularly troubling result of this bill will be an increase in the workload of the Federal courts. We all know these courts are already overloaded. In the 2004 Year End Report on the Federal Judiciary, for example, Chief Justice Rehnquist reported that the current budget crisis in the Federal judiciary has forced courts to impose hiring freezes, furloughs, and reductions in force. He noted that there is a dire need for additional federal judgeships to deal with the Federal courts' ever-increasing caseload. The Congress has led the way in bringing more and more litigation to the Federal courts, particularly criminal cases. Criminal cases, of course, take precedence in the Federal courts because of the Speedy Trial Act. So if you look at this bill in the context, the net result of removing virtually all class actions, civil cases, of course, to Federal court will be to delay those cases.

There is an old saying with which everyone is familiar: ``justice delayed is justice denied.'' I hope my colleagues will think about that aphorism before voting for this bill. Let's think about the real world of Federal court litigation and the very real possibility that long procedural delays in overloaded Federal courts will mean that legitimate claims may never be heard. My colleagues who support this bill tend to dismiss these arguments. They say that the Federal courts will offer adequate redress for legitimate claims, that they will faithfully apply State laws. I certainly hope they are right because this bill seems to be headed for enactment. But if they are wrong, citizens and consumers will be the ones who suffer.

One little-noticed aspect of this bill illustrates the possibilities for delay

that the bill provides, even to defendants who are not entitled to have a case removed to Federal court under the bill's relaxed diversity jurisdiction standards.

Under current law, if a Federal court decides that a removed case should be remanded, or returned, to State court, that decision is generally not appealable. It would be different under this bill, if it becomes law. This bill allows defendants to immediately appeal a decision by a Federal district court that a case does not qualify for removal to Federal court and should be remanded to State court.

Fortunately, the revised bill now requires such appeals to be decided promptly. It does not, however, do anything about the fact that the lower court may take months or even years to make a decision on the motion to remand. That means that a plaintiff class that is entitled, even under this bill, to have a case heard by a State court may still have to endure years of delay while its remand motion is pending in the Federal district court. Where is the ``fairness'' in that? I plan to offer an amendment to address that problem, and I certainly hope the bill's sponsors and supporters will give it serious consideration.

When I offered this amendment in the Judiciary Committee, I learned that a number of the supporters of the bill recognize the importance of the issue that my amendment raises. The chairman of the Judiciary Committee indicated that he would take a serious look at it and see if there is an accommodation that can be reached. So I did not seek a vote in committee on the amendment. I stand ready to negotiate on this issue and I hope there will be a serious effort here to reach agreement.

We have heard a lot of talk on this floor about the need to pass this bill without amendment--without any amendment at all--to protect some kind of ``delicate balance'' with the House and with the corporate supporters of the bill like the Chamber of Commerce. I ask my colleagues who support this bill, why would you not support a reasonable amendment that will make this bill fairer to plaintiffs who bring cases that under the bill's own terms should remain in State court? Please don't let this so-called delicate balance override your duty as legislators to do what is right.

It is important to remember that this debate is not about resolving questions of Federal law in the Federal courts. Federal question of jurisdiction already exists for that. Any case involving a Federal statute can be removed to Federal court under current law. This bill takes cases that are brought in State court solely under State laws passed by State legislatures and throws them into Federal court. This bill is about making it more time-consuming and more costly for citizens of a State to get the redress that their elected representatives have decided they are entitled to if the laws of their State are violated.

Diversity jurisdiction in cases between citizens of different States has been with us for our entire history as a nation. Article III, section 2 of the Constitution provides: ``The judicial Power shall extend . . . to Controversies between Citizens of different States.'' This is the constitutional basis for giving the Federal courts diversity jurisdiction over cases that involved only questions of State law.

The very first Judiciary Act, passed in 1789, gave the Federal courts jurisdiction over civil suits between citizens of different States where over $500 was at issue. In 1806, in the case of Strawbridge v. Curtiss, the Supreme Court held that this act required complete diversity between the parties. In all other instances, the Court said, a case based on State law should be heard by the State courts. So this bill before us changes a nearly 200-year-old practice in this country of preserving the Federal courts for cases involving Federal law or where no defendant is from the State of any plaintiff in a case involving only State law.

Why is such a drastic step necessary? Why do we need to prevent State courts from interpreting and applying their own State laws in cases of any size or significance? One frequent argument is that businesses cannot get a fair day in court because of renegade State court judges. Yet, there really is no evidence to back up these claims. Of the 3,141 counties, parishes, and boroughs in the State court systems of the United States, the so-called American Tort Reform Association could only identify nine jurisdictions that they consider ``unfair'' to defendants. Four other jurisdictions were declared as ``dishonorable mentions.'' But, the association only provided data on two of these jurisdictions--Madison County, IL, which the Senator from Utah was talking about, and St. Clair County, IL. The Senator from Utah cited statistics of increases in class action filings up through 2003. Yet in Madison County, the villain in the story told by the Senator from Utah, the number of class action filings has decreased by 30 percent between 2003 and 2004. So defendants have decided that State judges are unfair in two jurisdictions out of 3,000, but how does this constitute a crisis? The answer is simple there isn't one.

Another argument we hear is that the trial lawyers are extracting huge and unjustified settlements in State courts, which has become a drag on the economy. We also hear that plaintiffs' lawyers are taking the lion's share of judgments or settlements to the detriment of consumers. But a recent empirical study contradicts these arguments. Theodore Eisenberg of Cornell Law School and Geoffrey Miller of NYU Law School recently published the first empirical study of class action settlements. Their conclusions, which are based on data from 1993-2002, may surprise some of the supporters of this bill.

First, the study found that attorneys' fees in class action settlements are significantly below the standard 33 percent contingency fee charged in personal injury cases. The average class action attorney's fee is actually 21.9 percent. In addition, the attorneys' fees awarded in class action settlements in Federal court are actually higher than in State court settlements. Attorney fees as a percent of class recovery were found to be between 1 and 6 percentage points higher in Federal court class actions than in State court class actions.

A final finding of the study is that there has been no appreciable increase in either the amount of settlements or the amount of attorneys' fees awarded in class actions over the past 10 years. The study, therefore, indicates that there is no crisis here, no explosion of huge judgments, no huge fleecing of consumers by their lawyers. This bill is a solution in search of a problem. It is a great piece of legislation for wrongdoers who would like to put off their day of reckoning by moving cases to courts that are less convenient, slower, and more expensive for those who have been wronged. It is a bad bill for consumers, for State legislatures, and for State courts.

This bill seems not to be about class action abuses, but about getting cases into Federal court where it takes longer and is more expensive for plaintiffs to get a judgment. The cumulative effect of this bill is to severely limit State court authority and ultimately limit victims' access to prompt justice. Despite improvements made since the last time the Senate considered this bill, the bill will still place significant barriers for consumers who want to have their cases heard in State court. Remand orders are still appealable, and the mass tort definition does not protect State courts' authority to consolidate cases and manage their dockets more efficiently. All the elements outlined in the bill before us will result in the erosion of State court authority and the delay of justice for our citizens. Therefore, I cannot support this unfair ``Class Action Fairness Act'' bill.

I yield the floor.

Mr. President, I am pleased to reintroduce legislation today that would increase the mileage reimbursement rate for volunteers.

Under current law, when volunteers use their cars for charitable purposes, the volunteers may be reimbursed up to 14 cents per mile for their donated services without triggering a tax consequence for either the organization or the volunteers. If the charitable organization reimburses any more than that, they are required to file an information return indicating the amount, and the volunteers must include the amount over 14 cents per mile in their taxable income. By contrast, the mileage reimbursement level currently permitted for businesses is 40.5 cents per mile.

We are asking volunteers and volunteer organizations to bear a greater burden of delivering essential services. But the 14 cents per mile limit is posing a very real hardship for charitable organizations and other nonprofit groups. I have heard from a number of people in Wisconsin on the need to increase this reimbursement limit.

A representative of one organization, the Portage County Department on Aging, explained just how important volunteer drivers are to their ability to provide services to seniors in that county. The Department on Aging reported that dozens of volunteer drivers delivered meals to homes and transported people to medical appointments, meal sites, and other essential services.

As many of my colleagues know, the senior meals program is one of the most vital services provided under the Older Americans Act, and ensuring that meals can be delivered to seniors or that seniors can be taken to meal sites is an essential part of that program. Unfortunately, Federal support for the senior nutrition programs has stagnated in recent years. This has increased pressure on local programs to leverage more volunteer services to make up for lagging Federal support. The 14 cents per mile reimbursement limit, though, increasingly poses a barrier to obtaining those contributions. Portage County reports that many of their volunteers cannot afford to offer their services under such a restriction. And if volunteers cannot be found, their services will have to be replaced by contracting with a provider, greatly increasing costs to the Department, costs that come directly out of the pot of funds available to pay for meals and other services.

And the same is true for thousands of other non-profit and charitable organizations that provide essential services to communities across our Nation.

By contrast, businesses do not face this restrictive mileage reimbursement limit. The comparable mileage rate for someone who works for a business is currently 40.5 cents per mile. This disparity means that a business hired to deliver the same meals delivered by

volunteers for Portage County may reimburse their employees over double the amount permitted the volunteer without a tax consequence.

This doesn't make sense. The 14 cents per mile volunteer reimbursement limit is badly outdated. According to the Congressional Research Service, Congress first set a reimbursement rate of 12 cents per mile as part of the Deficit Reduction Act of 1984, and did not increase it until 1997, when the level was raised slightly, to 14 cents per mile, as part of the Taxpayer Relief Act of 1997.

The bill I am introducing today is identical to a measure I introduced in the 107th Congress and the 108th Congress in nearly every respect. It raises the limit on volunteer mileage reimbursement to the level permitted to businesses. It is essentially the same provision passed by the Senate as part of a tax bill in 1999, and it is essentially the same provision that passed the Senate as part of the CARE Act.

At the time of the 1999 tax bill, the Joint Committee on Taxation (JCT) estimated that the mileage reimbursement provision would result in the loss of $1 million over the five-year fiscal period from 1999 to 2004. The revenue loss was so small that the JCT did not make the estimate on a year by year basis.

Though the revenue loss is small, it is vital that we do everything we can to move toward a balanced budget, and to that end I have included a provision to fully offset the cost of the measure and make it deficit neutral. That provision increases the criminal monetary penalties for individuals and corporations convicted of tax fraud. The provision passed the Senate in the 108th Congress as part of the JOBS bill, but was later dropped in conference and was not included in the final version of that bill.

I urge my colleagues to support this measure. It will help ensure charitable organizations can continue to attract the volunteers that play such a critical role in helping to deliver services and it will simplify the tax code both for nonprofit groups and the volunteers themselves.

I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, today I will reintroduce in the Senate the Reasonable Notice and Search Act. This bill is nearly identical to a bill I introduced in the 108th Congress, S. 1701. It addresses Section 213 of the USA-PATRIOT Act, the provision of that important statute passed in the wake of the 9/11 attacks that has caused perhaps the most concern among Members of Congress and the public. Section 213, sometimes referred to as the ``delayed notice search provision'' or the ``sneak and peek provision,'' authorizes the government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched.

Prior to the PATRIOT Act, secret searches for physical evidence were performed in some jurisdictions under the authority of Court of Appeals decisions, but the Supreme Court never definitively ruled whether they were constitutional. Section 213 of the PATRIOT Act authorized delayed notice warrants in any case in which an ``adverse result'' would occur if the warrant were served before the search was executed. Adverse result was defined as including: 1. endangering the life or physical safety of an individual; 2. flight from prosecution; 3. destruction of or tampering with evidence; 4. intimidation of potential witnesses; or 5. otherwise seriously jeopardizing an investigation or unduly delaying a trial. This last catch-all category could apply in virtually any criminal case. In addition, while some courts had required the service of the warrant within a specified period of time, the PATRIOT Act simply required that the warrant specify that it would be served within a ``reasonable'' period of time after the search.

It is interesting to note that this provision of the PATRIOT Act was not limited to terrorism cases. In fact, before the PATRIOT Act passed, the FBI already had the authority to conduct secret searches of foreign terrorists and spies with no notice at all under the Foreign Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and peek'' authority was not made subject to the sunset provision that will cause many of the new surveillance provisions of the act to expire at the end of this year unless Congress reenacts them. So Section 213 was pretty clearly a provision that the Department of Justice wanted regardless of the terrorism threat after 9/11.

Perhaps that is why this provision has caused such controversy since it was passed. In 2003, by a wide bipartisan margin, the House passed an amendment to the Commerce-Justice-

State appropriations bill offered by Representative Otter from Idaho, a Republican, to stop funding for delayed notice searches authorized under section 213. The size of the vote took the Department by surprise, and it immediately set out to defend the provision aggressively. Clearly, this is a power that the Department does not want to lose.

I raised concerns about the sneak and peek provision when it was included in the PATRIOT Act. I did not, and still do not, believe there had been adequate study and analysis of the justifications for these searches and the potential safeguards that might be included. I did not argue then, however, and I am not arguing now that there should be no delayed notice searches at all and that the provision should be repealed. I simply believe that this provision should be modified to protect against abuse. My bill will do four things to accomplish this.

First, my bill would narrow the circumstances in which a delayed notice warrant can be granted to the following: potential loss of life, flight from prosecution, destruction or tampering with evidence, or intimidation of potential witnesses. The ``catch-all provision'' in section 213, allowing a secret search when serving the warrant would ``seriously jeopardize an investigation or unduly delay a trial'' can too easily be turned into permission to do these searches whenever the government wants.

Second, I believe that any delayed notice warrant should provide for a specific and limited time period within which notice must be given--7 days. This is consistent with some of the pre-PATRIOT Act court decisions and will help to bring this provision in closer accord with the Fourth Amendment to the Constitution. Under my bill, prosecutors will be permitted to seek 7-day extensions if circumstances continue to warrant that the subject not be made aware of the search. But the default should be a week, unless a court is convinced that more time should be permitted.

Third, Section 213 should include a sunset provision so that it expires along with the other expanded surveillance provisions in Title II of the PATRIOT Act, at the end of 2005. This will allow Congress to determine if the balance between civil liberties and law enforcement has been correctly struck.

Finally, the bill requires a public report on the number of times that section 213 is used, the number of times that extensions are sought beyond the 7-day notice period, and the type of crimes being investigated with this power. This information will help the public and Congress evaluate the need for this authority and determine whether it should be retained or modified after the sunset.

These are reasonable and moderate changes to the law. They do not gut the provision. Rather, they recognize the growing and legitimate concern from across the political spectrum that this provision was passed in haste and presents the potential for abuse. They also send a message that Fourth Amendment rights have meaning and potential violations of those rights should be minimized if at all possible. I urge my colleagues to support this bill.

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

Mr. President, today I will reintroduce the Library, Bookseller, and Personal Records Privacy Act. The bill is identical to the bill I introduced in the 108th Congress, S. 1507.

This bill would amend Sections 215 and 505 of the USA-PATRIOT Act to protect the privacy of law-abiding Americans. It would set reasonable limits on the Federal Government's access to library, bookseller, medical, and other sensitive, personal information under the Foreign Intelligence Surveillance Act (``FISA'') and related foreign intelligence authority.

I am pleased that several of my distinguished colleagues have joined me as original cosponsors of this important legislation.

Millions of Patriotic Americans love our country and support our military men and women in their difficult missions abroad, but worry about the fate of our Constitution here at home.

Much of our Nation's strength comes from our constitutional liberties and respect for the rule of law. That is what has kept us free for our two and a quarter century history. Our constitutional freedoms, our American values, are what make our country worth fighting for as we strive to win the war on terror.

Here at home, there is no question that the FBI needs ample resources and legal authority to prevent future acts of terrorism. But the PATRIOT Act went too far when it comes to the government's access to personal information about law abiding Americans.

Even though in the end I opposed the PATRIOT Act, there were many provisions that I did support. And even in those provisions I sought to amend when the bill was debated, there was often some change that I supported. For example, Congress was right to expand the category of business records that the FBI could obtain pursuant to the Foreign Intelligence Surveillance Act. Prior to the PATRIOT Act, the FBI could seek a court order to obtain only travel records--such as airline, hotel, and car rental records--and records maintained by storage facilities. The PATRIOT Act allows any business records to be subpoenaed. I don't quibble with that change.

But what my colleagues and I do find problematic--and an increasing number of Americans who value their privacy and First Amendment rights agree with us--is that the current law allows the FBI broad, almost unfettered access to personal information

about law-abiding Americans who have no connection to terrorism or spying.

Section 215 of the PATRIOT Act requires the FBI to show in an application to the court that the documents are ``sought for'' an international terrorism or foreign intelligence investigation. There is no requirement that the FBI make a showing of individualized suspicion that the documents relate to a suspected terrorist or spy.

In other words, under current law, the FBI could serve a subpoena on a library for all the borrowing records of its patrons or on a bookseller for the purchasing records of its customers simply by asserting that they want the records for a terrorism investigation.

Since the passage of the PATRIOT Act, librarians and booksellers have become increasingly concerned by the potential for abuse of this law. I was pleased to stand with the American Booksellers Association and the Free Expression Network over 2 years ago when we first started to raise these concerns.

Librarians and booksellers are concerned that under the PATRIOT Act, the FBI could seize records from libraries and booksellers in order to monitor what books Americans have purchased or borrowed, or who has used a library's or bookstore's internet computer stations, even if there is no evidence that the person is a terrorist or spy, or has any connection to a terrorist or spy.

These concerns are so strong that some librarians across the country have taken the unusual step of destroying records of patrons' book and computer use, as well as posting signs on computer stations warning patrons that whatever they read or access on the internet could be monitored by the federal government.

As a librarian in California said, ``We felt strongly that this had to be done. . . . The government has never had this kind of power before. It feels like Big Brother.''

And as the executive director of the American Library Association said, ``This law is dangerous. . . . I read murder mysteries--does that make me a murderer? I read spy stories--does that mean I'm a spy? There's no clear link between a person's intellectual pursuits and their actions.''

The American people do not know how many or what kind of requests Federal agents have made for library records under the PATRIOT Act. The Justice Department refuses to release that information to the public.

But in a survey released by the University of Illinois at Urbana- Champaign, about 550 libraries around the Nation reported having received requests from Federal or local law enforcement during the past year. About half of the libraries said they complied with the law enforcement request, and another half indicated that they had not.

Americans don't know much about these incidents, because the law also contains a provision that prohibits anyone who receives a subpoena from disclosing that fact to anyone.

In testimony before the Judiciary Committee, Attorney General Ashcroft stated that as of September 18, 2003, the Department of Justice had never used Section 215. The Department has not made that claim in public testimony since then, leading many to speculate that the provision has now been used. Whether it has been used once, or dozens of times, the problem with the section remains--it is too broad and does not permit adequate judicial supervision. There is a potential for overreaching that Congress must address.

David Schwartz, president of Harry W. Schwartz Bookshops, the oldest and largest independent bookseller in Milwaukee, summed up well the American values at stake when he said: ``The FBI already has significant subpoena powers to obtain records. There is no need for the government to invade a person's privacy in this way. This is a uniquely un-American tool, and it should be rejected. The books we read are a very private part of our lives. People could stop buying books, and they could be terrified into silence.''

I would not claim that we have reached the point where people in this country are afraid to buy books, but section 215 is a tool that is unnecessarily broad. And it raises the specter of indiscriminate government snooping into the private lives of innocent citizens, which is an unnecessary distraction from the serious law enforcement work that is needed to fight terrorism.

It is time to reconsider those provisions of the PATRIOT Act that are un-American and, frankly, unpatriotic.

But my concerns with the PATRIOT Act go beyond library and bookseller records. Under section 215 of the PATRIOT Act, the FBI could seek any records maintained by a business. These business records could contain sensitive, personal information--for example, medical records maintained by a doctor or hospital or credit records maintained by a credit agency. All the FBI would have to do is simply assert that the records are ``sought for'' its terrorism or foreign intelligence investigation.

Section 215 of the PATRIOT Act goes too far. Americans rightfully have a reasonable expectation of privacy in their library, bookstore, medical, financial, or other records containing personal information. Prudent safeguards are needed to protect these legitimate privacy interests.

The Library, Bookseller, and Personal Records Privacy Act is a reasonable solution. It would restore a pre-PATRIOT Act requirement that the FBI make a factual, individualized showing that the records sought pertain to a suspected terrorist or spy while leaving in place other PATRIOT Act expansions of this business records power.

My bill will not prevent the FBI from doing its job. It recognizes that the post-September 11 world is a different world. There are circumstances when the FBI should legitimately have access to library, bookseller, or other personal information.

I'd like to take a moment to explain how the safeguard in my bill would be applied. Suppose the FBI is conducting an investigation of an international terrorist organization. It has information that suspected members of the group live in a particular neighborhood. The FBI would like to obtain records from the library in the suspects' neighborhood. Under current law, the FBI could decide to ask the library for all records concerning anyone who has ever borrowed a book or used a computer, and what books were borrowed, simply by asserting that the documents are sought for a terrorism investigation. But under my bill, the FBI could not do so. The FBI would have to set forth specific and articulable facts giving reason to believe that the person to whom the records pertain is a suspected terrorist. The FBI could obtain only those library records--such as borrowing records or computer sign-in logs--that pertain to the suspected terrorists. The FBI could not obtain library records concerning individuals who are not suspected terrorists.

So, under my bill, the FBI can still obtain documents that it legitimately needs, but my bill would also protect the privacy of law- abiding Americans. I might add that if, as the Justice Department says, the FBI is using its PATRIOT Act powers in a responsible manner, does not seek the records of law-abiding Americans, and only seeks the records of suspected terrorists or suspected spies, then there is no reason for the Department to object to my bill.

The second part of my bill would address privacy concerns with another Federal law enforcement power expanded by the PATRIOT Act--the FBI's national security letter authority. The FBI does not need court approval to use this power.

My bill would amend section 505 of the PATRIOT Act. Part of this section relates to the production of records maintained by electronic communications providers. Libraries or bookstores with internet access for customers could be deemed ``electronic communication providers'' and therefore be subject to a request by the FBI under its NSL authority.

As I mentioned earlier, some librarians are so concerned about the potential for abuse by the FBI that they have taken matters into their own hands before the FBI knocks on their door. Some librarians have begun shredding on a daily basis sign-in logs and other documents relating to the public's use of library computer terminals to access the internet.

Again, safeguards are needed to ensure that any individual who accesses the internet at a library or bookstore does not automatically give up all expectations of privacy. Like the section

215 fix I've discussed, my bill would require an individualized showing by the FBI of how the records of internet usage maintained by a library or bookseller pertain to a suspected terrorist or spy.

Yes, the American people want the FBI to be focused on preventing terrorism. And, yes, it may make sense to make some changes to the law to allow the FBI access to the information that it needs to prevent terrorism. But we do not need to change the values that constitute who we are as a Nation in order to protect ourselves from terrorism. We can protect both our Nation and our privacy and civil liberties.

An increasing number of Americans are beginning to understand that the PATRIOT Act went too far. Four States and over 350 cities and counties across the country have now passed resolutions expressing opposition to the PATRIOT Act. And it's not just the Berkeleys and Madisons of this Nation, but other States and communities with strong conservative and libertarian values, such as Alaska and cities in Montana, that have passed such resolutions.

I have many concerns with the PATRIOT Act. I am not seeking to repeal it, in whole or in part. In this bill, my colleagues and I are only seeking to modify two provisions that pose serious potential for abuse.

The privacy of law-abiding Americans is at stake, along with their confidence in their government. Congress should act to protect our privacy and reassure our citizens. The Library, Bookseller, and Personal Records Privacy Act bill is a reasonable approach to do just that. I urge my colleagues to support this legislation.

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

Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2005, which would amend and clarify section 217 of the USA-PATRIOT Act. This bill is virtually identical to a bill I introduced in the 108th Congress, S. 2783.

Section 217 of the PATRIOT Act addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy.

Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section by section analysis provided by the Department on September 19, 2001, stated the following: ``Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because service providers often lack the expertise, equipment, or financial resources required to monitor attacks themselves as permitted under current law, they often have no way to exercise their rights to protect themselves from unauthorized attackers. Moreover, such attackers can target critical infrastructures and engage in cyberterrorism. To correct this problem, and help to protect national security, the proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons `acting under color of law' to monitor trespassers on their computer systems in a narrow class of cases.''

I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored--all without judicial approval.

Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement.

My bill would clarify that a computer trespasser is not someone who has permission to use a computer by the owner or operator of that computer. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: Unauthorized

cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant.

I should note that there is no specific evidence that the provision is being abused. But, of course, unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the owner that some unauthorized use of the computer has occurred.

My bill would modify the computer trespass provision in the following ways to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking.

First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``an ongoing pattern of communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking.

Second, the bill limits the length of warrantless surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary.

Finally, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of PATRIOT Act in order to evaluate their effectiveness.

The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of government abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism against the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance, and I urge my colleagues to support it.

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

Mr. President, I am pleased to reintroduce legislation today that would increase the mileage reimbursement rate for volunteers.

Under current law, when volunteers use their cars for charitable purposes, the volunteers may be reimbursed up to 14 cents per mile for their donated services without triggering a tax consequence for either the organization or the volunteers. If the charitable organization reimburses any more than that, they are required to file an information return indicating the amount, and the volunteers must include the amount over 14 cents per mile in their taxable income. By contrast, the mileage reimbursement level currently permitted for businesses is 40.5 cents per mile.

We are asking volunteers and volunteer organizations to bear a greater burden of delivering essential services. But the 14 cents per mile limit is posing a very real hardship for charitable organizations and other nonprofit groups. I have heard from a number of people in Wisconsin on the need to increase this reimbursement limit.

A representative of one organization, the Portage County Department on Aging, explained just how important volunteer drivers are to their ability to provide services to seniors in that county. The Department on Aging reported that dozens of volunteer drivers delivered meals to homes and transported people to medical appointments, meal sites, and other essential services.

As many of my colleagues know, the senior meals program is one of the most vital services provided under the Older Americans Act, and ensuring that meals can be delivered to seniors or that seniors can be taken to meal sites is an essential part of that program. Unfortunately, Federal support for the senior nutrition programs has stagnated in recent years. This has increased pressure on local programs to leverage more volunteer services to make up for lagging Federal support. The 14 cents per mile reimbursement limit, though, increasingly poses a barrier to obtaining those contributions. Portage County reports that many of their volunteers cannot afford to offer their services under such a restriction. And if volunteers cannot be found, their services will have to be replaced by contracting with a provider, greatly increasing costs to the Department, costs that come directly out of the pot of funds available to pay for meals and other services.

And the same is true for thousands of other non-profit and charitable organizations that provide essential services to communities across our Nation.

By contrast, businesses do not face this restrictive mileage reimbursement limit. The comparable mileage rate for someone who works for a business is currently 40.5 cents per mile. This disparity means that a business hired to deliver the same meals delivered by

volunteers for Portage County may reimburse their employees over double the amount permitted the volunteer without a tax consequence.

This doesn't make sense. The 14 cents per mile volunteer reimbursement limit is badly outdated. According to the Congressional Research Service, Congress first set a reimbursement rate of 12 cents per mile as part of the Deficit Reduction Act of 1984, and did not increase it until 1997, when the level was raised slightly, to 14 cents per mile, as part of the Taxpayer Relief Act of 1997.

The bill I am introducing today is identical to a measure I introduced in the 107th Congress and the 108th Congress in nearly every respect. It raises the limit on volunteer mileage reimbursement to the level permitted to businesses. It is essentially the same provision passed by the Senate as part of a tax bill in 1999, and it is essentially the same provision that passed the Senate as part of the CARE Act.

At the time of the 1999 tax bill, the Joint Committee on Taxation (JCT) estimated that the mileage reimbursement provision would result in the loss of $1 million over the five-year fiscal period from 1999 to 2004. The revenue loss was so small that the JCT did not make the estimate on a year by year basis.

Though the revenue loss is small, it is vital that we do everything we can to move toward a balanced budget, and to that end I have included a provision to fully offset the cost of the measure and make it deficit neutral. That provision increases the criminal monetary penalties for individuals and corporations convicted of tax fraud. The provision passed the Senate in the 108th Congress as part of the JOBS bill, but was later dropped in conference and was not included in the final version of that bill.

I urge my colleagues to support this measure. It will help ensure charitable organizations can continue to attract the volunteers that play such a critical role in helping to deliver services and it will simplify the tax code both for nonprofit groups and the volunteers themselves.

I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, today I will reintroduce in the Senate the Reasonable Notice and Search Act. This bill is nearly identical to a bill I introduced in the 108th Congress, S. 1701. It addresses Section 213 of the USA-PATRIOT Act, the provision of that important statute passed in the wake of the 9/11 attacks that has caused perhaps the most concern among Members of Congress and the public. Section 213, sometimes referred to as the ``delayed notice search provision'' or the ``sneak and peek provision,'' authorizes the government in limited circumstances to conduct a search without immediately serving a search warrant on the owner or occupant of the premises that have been searched.

Prior to the PATRIOT Act, secret searches for physical evidence were performed in some jurisdictions under the authority of Court of Appeals decisions, but the Supreme Court never definitively ruled whether they were constitutional. Section 213 of the PATRIOT Act authorized delayed notice warrants in any case in which an ``adverse result'' would occur if the warrant were served before the search was executed. Adverse result was defined as including: 1. endangering the life or physical safety of an individual; 2. flight from prosecution; 3. destruction of or tampering with evidence; 4. intimidation of potential witnesses; or 5. otherwise seriously jeopardizing an investigation or unduly delaying a trial. This last catch-all category could apply in virtually any criminal case. In addition, while some courts had required the service of the warrant within a specified period of time, the PATRIOT Act simply required that the warrant specify that it would be served within a ``reasonable'' period of time after the search.

It is interesting to note that this provision of the PATRIOT Act was not limited to terrorism cases. In fact, before the PATRIOT Act passed, the FBI already had the authority to conduct secret searches of foreign terrorists and spies with no notice at all under the Foreign Intelligence Surveillance Act. Furthermore, the PATRIOT Act ``sneak and peek'' authority was not made subject to the sunset provision that will cause many of the new surveillance provisions of the act to expire at the end of this year unless Congress reenacts them. So Section 213 was pretty clearly a provision that the Department of Justice wanted regardless of the terrorism threat after 9/11.

Perhaps that is why this provision has caused such controversy since it was passed. In 2003, by a wide bipartisan margin, the House passed an amendment to the Commerce-Justice-

State appropriations bill offered by Representative Otter from Idaho, a Republican, to stop funding for delayed notice searches authorized under section 213. The size of the vote took the Department by surprise, and it immediately set out to defend the provision aggressively. Clearly, this is a power that the Department does not want to lose.

I raised concerns about the sneak and peek provision when it was included in the PATRIOT Act. I did not, and still do not, believe there had been adequate study and analysis of the justifications for these searches and the potential safeguards that might be included. I did not argue then, however, and I am not arguing now that there should be no delayed notice searches at all and that the provision should be repealed. I simply believe that this provision should be modified to protect against abuse. My bill will do four things to accomplish this.

First, my bill would narrow the circumstances in which a delayed notice warrant can be granted to the following: potential loss of life, flight from prosecution, destruction or tampering with evidence, or intimidation of potential witnesses. The ``catch-all provision'' in section 213, allowing a secret search when serving the warrant would ``seriously jeopardize an investigation or unduly delay a trial'' can too easily be turned into permission to do these searches whenever the government wants.

Second, I believe that any delayed notice warrant should provide for a specific and limited time period within which notice must be given--7 days. This is consistent with some of the pre-PATRIOT Act court decisions and will help to bring this provision in closer accord with the Fourth Amendment to the Constitution. Under my bill, prosecutors will be permitted to seek 7-day extensions if circumstances continue to warrant that the subject not be made aware of the search. But the default should be a week, unless a court is convinced that more time should be permitted.

Third, Section 213 should include a sunset provision so that it expires along with the other expanded surveillance provisions in Title II of the PATRIOT Act, at the end of 2005. This will allow Congress to determine if the balance between civil liberties and law enforcement has been correctly struck.

Finally, the bill requires a public report on the number of times that section 213 is used, the number of times that extensions are sought beyond the 7-day notice period, and the type of crimes being investigated with this power. This information will help the public and Congress evaluate the need for this authority and determine whether it should be retained or modified after the sunset.

These are reasonable and moderate changes to the law. They do not gut the provision. Rather, they recognize the growing and legitimate concern from across the political spectrum that this provision was passed in haste and presents the potential for abuse. They also send a message that Fourth Amendment rights have meaning and potential violations of those rights should be minimized if at all possible. I urge my colleagues to support this bill.

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

Mr. President, today I will reintroduce the Library, Bookseller, and Personal Records Privacy Act. The bill is identical to the bill I introduced in the 108th Congress, S. 1507.

This bill would amend Sections 215 and 505 of the USA-PATRIOT Act to protect the privacy of law-abiding Americans. It would set reasonable limits on the Federal Government's access to library, bookseller, medical, and other sensitive, personal information under the Foreign Intelligence Surveillance Act (``FISA'') and related foreign intelligence authority.

I am pleased that several of my distinguished colleagues have joined me as original cosponsors of this important legislation.

Millions of Patriotic Americans love our country and support our military men and women in their difficult missions abroad, but worry about the fate of our Constitution here at home.

Much of our Nation's strength comes from our constitutional liberties and respect for the rule of law. That is what has kept us free for our two and a quarter century history. Our constitutional freedoms, our American values, are what make our country worth fighting for as we strive to win the war on terror.

Here at home, there is no question that the FBI needs ample resources and legal authority to prevent future acts of terrorism. But the PATRIOT Act went too far when it comes to the government's access to personal information about law abiding Americans.

Even though in the end I opposed the PATRIOT Act, there were many provisions that I did support. And even in those provisions I sought to amend when the bill was debated, there was often some change that I supported. For example, Congress was right to expand the category of business records that the FBI could obtain pursuant to the Foreign Intelligence Surveillance Act. Prior to the PATRIOT Act, the FBI could seek a court order to obtain only travel records--such as airline, hotel, and car rental records--and records maintained by storage facilities. The PATRIOT Act allows any business records to be subpoenaed. I don't quibble with that change.

But what my colleagues and I do find problematic--and an increasing number of Americans who value their privacy and First Amendment rights agree with us--is that the current law allows the FBI broad, almost unfettered access to personal information

about law-abiding Americans who have no connection to terrorism or spying.

Section 215 of the PATRIOT Act requires the FBI to show in an application to the court that the documents are ``sought for'' an international terrorism or foreign intelligence investigation. There is no requirement that the FBI make a showing of individualized suspicion that the documents relate to a suspected terrorist or spy.

In other words, under current law, the FBI could serve a subpoena on a library for all the borrowing records of its patrons or on a bookseller for the purchasing records of its customers simply by asserting that they want the records for a terrorism investigation.

Since the passage of the PATRIOT Act, librarians and booksellers have become increasingly concerned by the potential for abuse of this law. I was pleased to stand with the American Booksellers Association and the Free Expression Network over 2 years ago when we first started to raise these concerns.

Librarians and booksellers are concerned that under the PATRIOT Act, the FBI could seize records from libraries and booksellers in order to monitor what books Americans have purchased or borrowed, or who has used a library's or bookstore's internet computer stations, even if there is no evidence that the person is a terrorist or spy, or has any connection to a terrorist or spy.

These concerns are so strong that some librarians across the country have taken the unusual step of destroying records of patrons' book and computer use, as well as posting signs on computer stations warning patrons that whatever they read or access on the internet could be monitored by the federal government.

As a librarian in California said, ``We felt strongly that this had to be done. . . . The government has never had this kind of power before. It feels like Big Brother.''

And as the executive director of the American Library Association said, ``This law is dangerous. . . . I read murder mysteries--does that make me a murderer? I read spy stories--does that mean I'm a spy? There's no clear link between a person's intellectual pursuits and their actions.''

The American people do not know how many or what kind of requests Federal agents have made for library records under the PATRIOT Act. The Justice Department refuses to release that information to the public.

But in a survey released by the University of Illinois at Urbana- Champaign, about 550 libraries around the Nation reported having received requests from Federal or local law enforcement during the past year. About half of the libraries said they complied with the law enforcement request, and another half indicated that they had not.

Americans don't know much about these incidents, because the law also contains a provision that prohibits anyone who receives a subpoena from disclosing that fact to anyone.

In testimony before the Judiciary Committee, Attorney General Ashcroft stated that as of September 18, 2003, the Department of Justice had never used Section 215. The Department has not made that claim in public testimony since then, leading many to speculate that the provision has now been used. Whether it has been used once, or dozens of times, the problem with the section remains--it is too broad and does not permit adequate judicial supervision. There is a potential for overreaching that Congress must address.

David Schwartz, president of Harry W. Schwartz Bookshops, the oldest and largest independent bookseller in Milwaukee, summed up well the American values at stake when he said: ``The FBI already has significant subpoena powers to obtain records. There is no need for the government to invade a person's privacy in this way. This is a uniquely un-American tool, and it should be rejected. The books we read are a very private part of our lives. People could stop buying books, and they could be terrified into silence.''

I would not claim that we have reached the point where people in this country are afraid to buy books, but section 215 is a tool that is unnecessarily broad. And it raises the specter of indiscriminate government snooping into the private lives of innocent citizens, which is an unnecessary distraction from the serious law enforcement work that is needed to fight terrorism.

It is time to reconsider those provisions of the PATRIOT Act that are un-American and, frankly, unpatriotic.

But my concerns with the PATRIOT Act go beyond library and bookseller records. Under section 215 of the PATRIOT Act, the FBI could seek any records maintained by a business. These business records could contain sensitive, personal information--for example, medical records maintained by a doctor or hospital or credit records maintained by a credit agency. All the FBI would have to do is simply assert that the records are ``sought for'' its terrorism or foreign intelligence investigation.

Section 215 of the PATRIOT Act goes too far. Americans rightfully have a reasonable expectation of privacy in their library, bookstore, medical, financial, or other records containing personal information. Prudent safeguards are needed to protect these legitimate privacy interests.

The Library, Bookseller, and Personal Records Privacy Act is a reasonable solution. It would restore a pre-PATRIOT Act requirement that the FBI make a factual, individualized showing that the records sought pertain to a suspected terrorist or spy while leaving in place other PATRIOT Act expansions of this business records power.

My bill will not prevent the FBI from doing its job. It recognizes that the post-September 11 world is a different world. There are circumstances when the FBI should legitimately have access to library, bookseller, or other personal information.

I'd like to take a moment to explain how the safeguard in my bill would be applied. Suppose the FBI is conducting an investigation of an international terrorist organization. It has information that suspected members of the group live in a particular neighborhood. The FBI would like to obtain records from the library in the suspects' neighborhood. Under current law, the FBI could decide to ask the library for all records concerning anyone who has ever borrowed a book or used a computer, and what books were borrowed, simply by asserting that the documents are sought for a terrorism investigation. But under my bill, the FBI could not do so. The FBI would have to set forth specific and articulable facts giving reason to believe that the person to whom the records pertain is a suspected terrorist. The FBI could obtain only those library records--such as borrowing records or computer sign-in logs--that pertain to the suspected terrorists. The FBI could not obtain library records concerning individuals who are not suspected terrorists.

So, under my bill, the FBI can still obtain documents that it legitimately needs, but my bill would also protect the privacy of law- abiding Americans. I might add that if, as the Justice Department says, the FBI is using its PATRIOT Act powers in a responsible manner, does not seek the records of law-abiding Americans, and only seeks the records of suspected terrorists or suspected spies, then there is no reason for the Department to object to my bill.

The second part of my bill would address privacy concerns with another Federal law enforcement power expanded by the PATRIOT Act--the FBI's national security letter authority. The FBI does not need court approval to use this power.

My bill would amend section 505 of the PATRIOT Act. Part of this section relates to the production of records maintained by electronic communications providers. Libraries or bookstores with internet access for customers could be deemed ``electronic communication providers'' and therefore be subject to a request by the FBI under its NSL authority.

As I mentioned earlier, some librarians are so concerned about the potential for abuse by the FBI that they have taken matters into their own hands before the FBI knocks on their door. Some librarians have begun shredding on a daily basis sign-in logs and other documents relating to the public's use of library computer terminals to access the internet.

Again, safeguards are needed to ensure that any individual who accesses the internet at a library or bookstore does not automatically give up all expectations of privacy. Like the section

215 fix I've discussed, my bill would require an individualized showing by the FBI of how the records of internet usage maintained by a library or bookseller pertain to a suspected terrorist or spy.

Yes, the American people want the FBI to be focused on preventing terrorism. And, yes, it may make sense to make some changes to the law to allow the FBI access to the information that it needs to prevent terrorism. But we do not need to change the values that constitute who we are as a Nation in order to protect ourselves from terrorism. We can protect both our Nation and our privacy and civil liberties.

An increasing number of Americans are beginning to understand that the PATRIOT Act went too far. Four States and over 350 cities and counties across the country have now passed resolutions expressing opposition to the PATRIOT Act. And it's not just the Berkeleys and Madisons of this Nation, but other States and communities with strong conservative and libertarian values, such as Alaska and cities in Montana, that have passed such resolutions.

I have many concerns with the PATRIOT Act. I am not seeking to repeal it, in whole or in part. In this bill, my colleagues and I are only seeking to modify two provisions that pose serious potential for abuse.

The privacy of law-abiding Americans is at stake, along with their confidence in their government. Congress should act to protect our privacy and reassure our citizens. The Library, Bookseller, and Personal Records Privacy Act bill is a reasonable approach to do just that. I urge my colleagues to support this legislation.

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

Mr. President, I am pleased to introduce the Computer Trespass Clarification Act of 2005, which would amend and clarify section 217 of the USA-PATRIOT Act. This bill is virtually identical to a bill I introduced in the 108th Congress, S. 2783.

Section 217 of the PATRIOT Act addresses the interception of computer trespass communications. This bill would modify existing law to more accurately reflect the intent of the provision, and also protect against invasions of privacy.

Section 217 was designed to permit law enforcement to assist computer owners who are subject to denial of service attacks or other episodes of hacking. The original Department of Justice draft of the bill that later became the PATRIOT Act included this provision. A section by section analysis provided by the Department on September 19, 2001, stated the following: ``Current law may not allow victims of computer trespassing to request law enforcement assistance in monitoring unauthorized attacks as they occur. Because service providers often lack the expertise, equipment, or financial resources required to monitor attacks themselves as permitted under current law, they often have no way to exercise their rights to protect themselves from unauthorized attackers. Moreover, such attackers can target critical infrastructures and engage in cyberterrorism. To correct this problem, and help to protect national security, the proposed amendments to the wiretap statute would allow victims of computer attacks to authorize persons `acting under color of law' to monitor trespassers on their computer systems in a narrow class of cases.''

I strongly supported the goal of giving computer system owners the ability to call in law enforcement to help defend themselves against hacking. Including such a provision in the PATRIOT Act made a lot of sense. Unfortunately, the drafters of the provision made it much broader than necessary, and refused to amend it at the time we debated the bill in 2001. As a result, the law now gives the government the authority to intercept communications by people using computers owned by others as long as they have engaged in some unauthorized activity on the computer, and the owner gives permission for the computer to be monitored--all without judicial approval.

Only people who have a ``contractual relationship'' with the owner allowing the use of a computer are exempt from the definition of a computer trespasser under section 217 of the PATRIOT Act. Many people-- for example, college students, patrons of libraries, Internet cafes or airport business lounges, and guests at hotels--use computers owned by others with permission, but without a contractual relationship. They could end up being the subject of government snooping if the owner of the computer gives permission to law enforcement.

My bill would clarify that a computer trespasser is not someone who has permission to use a computer by the owner or operator of that computer. It would bring the existing computer trespass provision in line with the purpose of section 217 as expressed in the Department of Justice's initial explanation of the provision. Section 217 was intended to target only a narrow class of people: Unauthorized

cyberhackers. It was not intended to give the government the opportunity to engage in widespread surveillance of computer users without a warrant.

I should note that there is no specific evidence that the provision is being abused. But, of course, unless criminal charges are brought against someone as a result of such surveillance, there would never be any notice at all that the surveillance has taken place. The computer owner authorizes the surveillance, and the FBI carries it out. There is no warrant, no court proceeding, no opportunity even for the subject of the surveillance to challenge the assertion of the owner that some unauthorized use of the computer has occurred.

My bill would modify the computer trespass provision in the following ways to protect against abuse, while still maintaining its usefulness in cases of denial of service attacks and other forms of hacking.

First, it would require that the owner or operator of the protected computer authorizing the interception has been subject to ``an ongoing pattern of communications activity that threatens the integrity or operation of such computer.'' In other words, the owner has to be the target of some kind of hacking.

Second, the bill limits the length of warrantless surveillance to 96 hours. This is twice as long as is allowed for an emergency wiretap. With four days of surveillance, it should not be difficult for the government to gather sufficient evidence of wrongdoing to obtain a warrant if continued surveillance is necessary.

Finally, the bill would require the Attorney General to annually report on the use of Section 217 to the Senate and House Judiciary Committees. Section 217 is one of the provisions that is subject to the sunset provision in the PATRIOT Act and will expire at the end of 2005. We in the Congress need to do more oversight of the use of this and other provisions of PATRIOT Act in order to evaluate their effectiveness.

The computer trespass provision now in the law as a result of section 217 of the PATRIOT Act leaves open the possibility for significant and unnecessary invasions of privacy. The reasonable and modest changes to the provision contained in this bill preserve the usefulness of the provision for investigations of cyberhacking, but reduce the possibility of government abuse. We must continually seek to balance the need for effective tools to fight crime and terrorism against the civil liberties of our citizens. The Computer Trespass Clarification Act strikes the right balance, and I urge my colleagues to support it.

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

Mr. President, over the past several years, we have witnessed a disturbing erosion in Russia's democracy. Checks and balances, essential to the functioning of any democracy, have been undermined in Russia through the elimination of the independent media, the weakening of the judiciary, and the decline of a political opposition and citizen participation.

In his inauguration speech, President Bush spoke about the ``force of human freedom'' and stated that it is the policy of the United States ``to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.''

But, the President has been unable to capitalize on his friendship with President Putin to prevent a backsliding in Russia's democracy. While President Putin speaks about his commitment to move down the path of democracy, his actions demonstrate otherwise.

From 2000 until the present day, President Putin has tightened his grip on Russia, increasing the authoritarian nature of the Russian state. While many Russian experts understand that President Putin inherited a state mired in corruption and political violence, and dominated by powerful, unaccountable oligarchs, they have called Putin's approach to establishing security ``flawed and unfair.'' A Washington Post article in March 2004 described how fear was creeping back into Russia, reminiscent of the Soviet Union. A week before the Russian Presidential election in 2004, the article states:

Scholars, journalists, reformist politicians, human rights

activists and even business moguls describe an atmosphere of

anxiety that has left them wary of crossing the Kremlin.

The imprisonment of Mikhail Khodorkovsky, Russia's richest man and an oil tycoon, the disappearances of critics of Putin, as well as the flawed parliamentary elections in 2003, have been disturbing signs for those who care about democracy in Russia.

The U.S. State Department in its Country Report on Human Rights Practices for 2003 raise concerns over human rights abuses committed by the Government of Russia in Chechnya, as well as by Chechen rebels, the failure of the 2003 parliamentary elections to meet international standards, the impunity of law enforcement officials responsible for abuses, poor prison conditions, and a weakening of freedom of expression and the independence and freedom of some media. In the global survey, ``Freedom in the World,'' published by Freedom House in December 2004, Russia was downgraded to ``Not Free,'' the only country to register a negative category change in 2004.

On all fronts, Russia's democracy appears to be weakening. In January 2002, the last significant independent Moscow TV station was shut down, many believe due to government pressure. Furthermore, radio and print media have increasingly been restricted. It was widely reported that during the parliamentary elections of 2003, television coverage was heavily biased toward the propresidency party, largely ignoring or criticizing Putin's opponents. In May 2004, the nongovernmental organization, the Committee to Protect Journalists, CPJ, named Russia one of the 10 worst places to be a journalist. CPJ states:

A shift from blatant pressures to more subtle and covert

tactics, such as politicized lawsuits and hostile corporate

takeovers by businessmen with close ties to Putin, has

allowed the Kremlin to stifle criticism of the president and

reports on government corruption and human rights abuses

committed by Russian forces in Chechnya.

Furthermore, they note that journalists in Russia's provinces are murdered with impunity.

As President Putin moves from ``managed democracy'' to soft authoritarianism, Freedom House, Human Rights Watch, and others argue that Putin appears to be cracking down on civil society, a vital element of any thriving democracy. In May 2004, Putin used his state- of-the-nation speech to attack nongovernmental organizations, NGOs, accusing them of ``receiving financing from influential foreign foundations and serving dubious groups and commercial interests.'' The very real need to stop terrorist financing through charities or other organizations does not justify targeting legitimate civic groups and NGOs. Following Putin's state-of-the-nation speech, masked intruders ransacked the office of a major human rights organization in Tatarstan that provides legal support for victims of torture. In addition, the state-owned Center TV criticized NGOs, accusing them of being tied to anti-Russian interests. And, in June 2004, Russia's Foreign Minister met with several NGOs and urged them to rebut criticisms of the Council of Europe regarding Russia's human rights policies.

Russia's judicial system is also believed to be far from independent, failing to serve as a counterweight to other branches of government. Human Rights Watch has expressed concern that the government under President Putin has conducted ``selective criminal prosecutions against perceived opponents . . . and scientists working with foreigners on sensitive topics.'' President Putin has proposed establishing executive control over the nomination of members of a key supreme court body that supervises the hiring and dismissal of judges. Furthermore, despite progress in implementing trial by jury, the Putin government appears to have manipulated jury selection in several high-profile cases or otherwise tried to influence jury deliberations.

Chechnya continues to be an area of particular concern. While Russia has the right to combat terrorist threats on its territory, Russian and proxy forces regularly violate basic human rights of Chechen civilians. Disappearances, extrajudicial executions, rape, and torture of detainees all continue with disturbing frequency and with absolute impunity. Russian forces regularly conduct sweeps and cleansing operations, resulting in death, injury and abductions in what many call a . disproportionate use of force. These human rights abuses must end and those responsible should be held accountable.

Since President Putin's reelection in March 2004, he has taken more steps to exert control over the state. In September 2004, following the tragic deaths of 330 people in Beslan, half of whom were children, President Putin undertook a set of political reforms that concentrated power in Moscow and decreased the power of Russia's regions. He proposed that regional governors no longer be popularly elected but instead be appointed by the President and ratified by regional legislatures. Legislation to this effect was introduced in October 2004 and signed into law by President Putin on December 12, 2004. Putin also decided that all Duma deputies be elected on the basis of national party lists, based on the proportion of votes each party gets nationwide. As Human Rights Watch states in its recent World Report 2005:

The proposals would give the president de facto power to

appoint governors, even more sway over the parliament, or

State Duma, and increase the executive's influence over the

judiciary.

While it is clear that President Putin must act to confront a legitimate threat to security, a marginalization of different regions outside of Moscow may create an even greater political backlash.

President Putin faces a challenging political environment in Russia. However, human rights and political freedoms must not be ignored in an attempt to establish security; their neglect will only lead to greater political

turmoil. The United States must stand by its commitment to democracy in its relations with Russia. If Russia wants to be a member of the community of democracies, it must demonstrate a meaningful commitment to democratic principles.

Mr. President, the decision on whether to vote to confirm Alberto Gonzales to be the next Attorney General of the United States has been difficult. As all of my colleagues know, I believe that Presidents are entitled to a great deal of deference in their cabinet nominations. I have voted in favor of a number of this President's nominees, including the current Attorney General, with whom I had serious disagreements on matters of policy and general ideology. My votes may not have always pleased my political supporters or my party's leadership. But in carrying out my part in the constitutional scheme, as one who is asked to advise on and consent to a President's nominations, I am guided by my conscience, and by the history and practices of the U.S. Senate. Rejecting a Cabinet nominee is a very rare event. The decision to do so must never be taken lightly.

After a great deal of thought and careful consideration, I reached the conclusion that I could not support Judge Gonzales's nomination. Let me take a few minutes to explain my decision.

The Attorney General of the United States is the Nation's chief law enforcement officer. The holder of that office must have an abiding respect for the rule of law. A formative experience for me, and for many of my generation, was the Watergate scandal, and particularly the Saturday night massacre

on October 20, 1973. On that night, Attorney General Elliot Richardson and his deputy William Ruckelshaus both resigned from office rather than carry out President Nixon's order to fire special prosecutor Archibald Cox. Those acts of courage remain for me a shining example of the role that the Attorney General plays in our government. They give me the unshakeable conviction that his or her ultimate allegiance must be to the rule of law, not to the President.

As Judge Gonzales himself said as he stood next to the President on the day he was nominated

The American people expect and deserve a Department of

Justice guided by the rule of law.

I am pained to say that Mr. Gonzales's performance as White House Counsel and, particularly, his appearance before the Judiciary Committee and his responses to our questions, have given me grave doubts about whether he meets that test.

Judge Gonzales too often has seen the law as an obstacle to be dodged or cleared away in furtherance of the President's policies.

Judge Gonzales has held the position of White House Counsel since the beginning of this administration and through a very difficult and challenging period in our history. The response of the administration to the September 11 attacks and the fight against terrorism have brought some very difficult legal issues to his desk. Some of these issues touch on the very core of our national identity. What kind of nation are we going to be during times of war? How will we treat those we capture on the battlefield? How will we live up to our international treaty obligations as we fight terrorism?

Time after time, Judge Gonzales has been a key participant in developing secret legal theories to justify policies that, as they have become public, have tarnished our Nation's international reputation and made it harder, not easier, for us to prevail in this struggle. He requested and then disseminated the infamous Office of Legal Counsel memo that for almost 2 years, until it was revealed and discredited, made it the position of the Government of the United States of America that the International Convention Against Torture, and statutes implementing that treaty, prohibit only causing physical pain ``equivalent in intensity to the pain accompanying serious physical injury; such as organ failure, impairment of bodily function, or even death.'' Under that standard, the images from Abu Ghraib that revolted the entire world would not be considered torture, nor, according to some, would the shocking interrogation technique called ``waterboarding.''

Judge Gonzales advised the President that he could declare the entire legal regime of the Geneva Conventions inapplicable to the conflict in Afghanistan. Secretary of State Powell rightly pointed out the danger of this course, but Judge Gonzales persisted. This theory could actually have given greater legal protection to terrorists, by taking away a key part of the legal regime under which war crimes can be prosecuted. The idea that the Geneva Conventions protect terrorists who commit war crimes, which Judge Gonzales repeated in his hearing, is a dramatic misunderstanding of the law, and it was very troubling to hear it from the person who would coordinate our legal strategy in the fight against terrorism.

Judge Gonzales was also an architect of the administration's position on the legal status of those it called ``enemy combatants,'' a position that was soundly rejected by the Supreme Court of the United States last year.

In all of these areas, Judge Gonzales served as the President's lawyer, and facilitated the President's policies. I believe that he failed the President and the Nation badly. But these past mistakes need not have been conclusive in my assessment of his suitability for the office of Attorney General. For example, I also have serious concerns about the role that the national security adviser--and now Secretary of State--Dr. Condoleezza Rice, played in crafting and implementing the administration's badly flawed foreign policy. But I do not think that taking part in a policy I strongly oppose is sufficient grounds for me to oppose a cabinet nomination. As I have indicated, the President--any President--is entitled to be advised by those who share his beliefs and confidence.

Had Judge Gonzales in his testimony before this Committee recognized the serious problems with the judgments he made on these issues and given convincing assurances that he understands that his new role will require a different approach and a new allegiance to the rule of law, I might have been convinced to defer to the President once again. Attorney General Ashcroft, for example, was unequivocal in expressing his commitment, under oath, to enforcing laws with which he disagreed as a Senator--laws and court decisions that he, I think, abhored, but he made it very clear that his role was to uphold the law as it stands.

But Judge Gonzales's appearance before the Judiciary Committee was deeply disappointing. When given the opportunity under oath to show that he would be adequately committed to the rule of law as our Nation's chief law enforcement officer, he failed to do so. He indicated that the infamous OLC torture memo is no longer operative, but that he does not disagree with the conclusions expressed in it. He reiterated erroneous interpretations, of the effect that applying the Geneva Conventions to the war on Afghanistan would have on the treatment of members of al-Qaida captured in combat. Most disturbingly, he refused time after time to repudiate the most far-reaching and significant conclusion of the OLC memo--that the President has the authority as Commander-in-Chief to immunize those acting at his direction from the application of U.S. law.

This failure goes directly to the question of his commitment to the rule of law. Under our system of government, the Attorney General of the United States may be called upon to investigate and even prosecute the President. We cannot have a person heading the United States Department of Justice who believes that the President is above the law. I and other members of the Judiciary Committee questioned Judge Gonzales closely about this issue. He hid behind an aversion to hypothetical questions, he conjured up his own hypothetical scenarios of unconstitutional statutes, but he simply refused to say, without equivocation, that the President is not above the law.

On the torture issue in particular, Judge Gonzales repeatedly told us that he opposes torture and that the President has never authorized torture. Thus, he indicated, the question of whether the President acting as Commander in Chief can authorize torture has never and will never come up. I certainly hope that we can rely on those assurances, but the Founders of this Nation designed a system where even the President is bound by our laws--precisely so that we would not have to rely on trust alone that the President will act in accordance with them. I think the Judiciary Committee, and the American people, deserved to hear whether the next Attorney General agrees that the President has the power to disobey laws as fundamental to our national character as the prohibition on torture. Judge Gonzales refused to address this question unequivocally, and that left me deeply troubled.

Mr. President, Judge Gonzales has a compelling personal story, and many fine qualities as a lawyer. If he is confirmed by the Senate, there are many issues on which I hope we can work together for the good of the country. But I cannot support his nomination. Not because he is too conservative, or because I disagree with a specific policy position he has taken, but because I am not convinced that he possesses the abiding respect for the rule of law that our country needs in these difficult times in its Attorney General. I will vote ``No.''

I yield the floor and suggest the absence of a quorum.

Mr. FEINGOLD: Mr. President, I am pleased once again to be working with my partner in reform, the Senator from Arizona, Mr. McCain, on the 527 Reform Act. And it is an honor to again have Senator Lieberman and Senator Schumer as original cosponsors of our bill. This year, there is a very significant new addition to our effort, the Chairman of the Rules Committee, Senator Lott. Senators Snowe and Collins from the great State of Maine, who were both exceptional partners in the fight for campaign finance reform a few years ago, are original cosponsors as well. It is also gratifying to have a new Member of the Senate, the junior Senator from Colorado, Mr. Salazar, on board. This is a very strong bipartisan group and I look forward to working with all of them.

Our purpose is simple--to pass legislation that will do what the FEC could and should do under current law, but, once again, has failed to do. It sometimes seems like our mission in life is to clean up the mess that the FEC has mad. We had to that with BCRA, the Bipartisan Campaign Reform Act, which passed in 2002, closing the soft money loophole that the FEC created in the late '70s and expanded in the '90s. We are doing it again with the regulations that the FEC put in place after BCRA passed.

I am pleased to announce the introduction of legislation that will make absolutely clear that the Federal election laws apply to 527 organizations. Let me emphasize one thing--current Federal election law requires these groups to register as political committees and stop raising and spending soft money. But the FEC has failed to enforce the law, so we must act in the Congress.

This bill will require all 527s to register as political committees unless they fall into a number of narrow exceptions. The exceptions are basically for groups that Congress exempted from disclosure requirements because they are so small or for groups that are involved exclusively in state election activity.

Once a group registers as a political committee, certain activities such as ads that mention only Federal candidates will have to be paid for solely with hard money. But the FEC permits Federal political committees to maintain a non-federal account to pay a portion of the expenses of activities that affect both Federal and non-federal elections. Our bill sets new allocation rules that will make sure that these allocable activities are paid for with at least 50 percent hard money.

Finally, the bill makes an important change with respect to the non- federal portion of the allocable activities. We put a limit of $25,000 per year on the contributions that can be accepted for that non-federal account. So no more million dollar soft money contributions to pay for get-out-the-vote efforts in the presidential campaign.

Nothing in this bill will affect legitimate 501(c) advocacy groups. The bill only applies to groups that claim a tax exemption under section 527.

In closing, I want to make one final point. The soft money loophole was opened by FEC rulings in the late '70s. By the time we started work on BCRA, the problem had mushroomed and led to the scandals we saw in the 1996 campaign. When we passed BCRA, I said we would have to be vigilant to make sure that the FEC enforced the law and that similar loopholes did not develop. That is what we have been doing for the past three years, and what are again doing today.

I have no doubt that if we don't act on this 527 problem now, we will see the problem explode into scandals over the next few election cycles. In the 2004 cycle, Federal-oriented 527s spend $423 million. Ten donors gave at least $ million each to 527s involved in the 2004 Federal elections and two donors each contributed over $20 million. This time we cannot afford to wait for a problem to grow into a disaster that undermines the scheme of the Federal election laws.

Mr. President, I ask unanimous consent that a summary of the bill's provisions be printed in the Record.

The 527 Reform Act

Under the Internal Revenue Code, a 527 group is defined as

an organization ``organized and operated primarily'' to

influence elections (or the appointment of individuals to

non-elective office). The Federal Election Commission

(``FEC''), however, has failed to apply existing Federal

campaign finance laws to require that 527 groups spending

money to influence federal elections register as federal

political committees and comply with federal campaign finance

laws, including the limits on the contribution they may

receive.

As a result, both Democratic-leaning and Republican-leaning

527 groups spent tens of millions of dollars in soft money to

influence the 2004 federal elections. A number of 527 groups

did not register as federal political committees and spent

soft money on ads attacking and promoting federal candidates.

Other 527 groups did register as federal political committees

but claimed that under FEC rules they could spend as much as

98 percent soft money on partisan voter drive activities for

the purpose of influencing the 2004 federal elections.

The 527 Reform Act is designed to clarify and reaffirm that

such 527 groups are required to comply with federal campaign

finance laws. The bill would:

Require 527s groups to register as political committees

with the FEC and comply with federal campaign finance laws,

unless they raise and spend money exclusively in connection

with non-federal candidate elections, or state or local

ballot initiatives, or the nomination or confirmation of

individuals to non-elected offices, such as judicial

positions.

Under this requirement, 527 groups registered as political

committees and subject to federal campaign finance laws can

use only federal hard money contributions to finance ads that

promote or attack federal candidates, regardless of whether

the ads expressly advocate the election or defeat of the

candidate.

Any 527 group with annual receipts of less than $25,000 is

exempt from the requirement to register as a political

committee and comply with federal campaign finance laws.

Establish that when a 527 group registered as a federal

political committee makes expenditures for voter mobilization

activities or public communications that affect both federal

and non-federal elections, at least 50 percent of the costs

of such activities would have to be paid for with federal

hard money contributions.

Provide that with regard to the non-federal funds that can

be used to finance a portion of voter mobilization activities

and public communications that affect both federal and non-

federal elections, such funds must come from individuals only

and must be in amounts of not more than $25,000 per year per

individual donor.

This is similar to the provision in the Bipartisan Campaign

Reform Act of 2002 that places a limit on the size of a

nonfederal contribution that can be spent by state parties on

activities affecting both federal and non-federal elections.

$25,000 is the same amount that an individual can contribute

to a national political party. An individual can give only

$5,000 per year to a federal political committee to influence

federal elections.

The 527 Reform Act provides that it applies only to 527

groups and that nothing in the Act will have any effect on

determining whether 501(c) groups are subject to federal

campaign finance laws.

Mr. President, the United Nations' Commission of Inquiry on the crisis in Darfur reported to the Security Council on Monday of this week. Like every credible account of what has happened in Darfur, the report makes for grim reading. The Commission pointed to the ``killing of civilians, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence'' in its discussion of the violations of international law that have occurred in the area, and also found that there may have been Sudanese Government officials and others who acted ``with genocidal intent.''

This report stands in stark contrast to the positive news that emerged from Sudan last month, when a comprehensive agreement to end the decades-long, devastating north-south civil war was signed. I welcomed that agreement, and I hope it is successful. But the truth is that I have little confidence in the Government of Sudan, and I see no reason to believe that a north-south peace agreement will awaken that government to its responsibility to protect all of its citizens. Just days after the historic peace agreement was signed, I visited the refugee camps of eastern Chad and spoke to Sudanese citizens who had fled Darfur. They spoke of their desperate need for basic security back at home, and they are right. Consistent reports indicate that the violence in Darfur has continued. The Commission of Inquiry's recent report serves to remind all of us, Mr. President, that tragedy persists in Sudan, and the world has not done enough to stop it.

Much of the attention surrounding this report, Mr. President, has focused on the Commission's recommendation that the International Criminal Court, or ICC, take up the Darfur issue with the intention of trying those responsible for atrocities.

Just as the question of whether or not to use the word ``genocide'' was, for some time, a debate that distracted attention from the need to take meaningful action to bring security to the people of Darfur, I fear that a new issue--the question of whether or not the crimes committed in Darfur should be taken up by the International Criminal Court--may soon dominate the debate.

Mr. President, the administration is implacably opposed to the ICC. Frankly, this is a subject on which the President and I share some common ground. I have not supported joining the ICC as it stands. I want more protection for our troops to ensure that they will not be targets of unjust and politically motivated prosecutions.

But I do believe that it was a mistake to walk off in a huff as the ICC was taking shape. It is hard to protect

our troops from unfair prosecutions if we aren't at the table to win those protections.

I also believe that threatening our allies and trying to bully them into changing their position on the ICC, rather than sitting at the table to work these issues out, was a mistake. There are ways to protect our interests that do not involve infuriating the allies that we need to win the war on terrorism.

Certainly there are better ways to protect our interests than to stand in the way of trying people guilty of what our own administration has called genocide.

The American Servicemembers Protection Act, which Congress passed to give concrete form to the objections that many have to the ICC, contains a provision stating:

Nothing in this title shall prohibit the United States from

rendering assistance to international efforts to bring to

justice Saddam Hussein, Slobodan Milosovic, Osama bin Laden,

other members of Al Queda, leaders of Islamic Jihad, and

other foreign nationals accused of genocide, war crimes or

crimes against humanity.

It seems to me that the crisis in Darfur may be precisely the kind of situation that such a provision was intended to cover. We have an interest--a moral interest and a political interest--in refusing to accept impunity for the grave abuses that have been committed in Darfur and in promoting long-term stability by insisting on accountability. There is no question of American troops or political figures being involved. The legitimate concerns that we have with the ICC simply are relevant to this situation.

The administration's position today, as I understand it, is that we should create an entirely new international tribunal for Sudan. If that is what it takes to bring some justice to the people of Darfur, so be it. But it is not really difficult to understand why other members of the international community would be resistant to creating an entirely new structure, potentially every time that serious crimes against humanity occur, when a structure already exists for the express purposes of dealing with these issues. Particularly when our own administration has been pressing existing ad-hoc tribunals to wrap up their costly but important work, it seems odd to create another ad-hoc mechanism when the ICC exists. Most worryingly, it gives those who would rather continue to wallow in endless reviews and deliberations while people in Darfur die another opportunity to delay reviews and meaningful action.

So I believe that the administration should think about what makes good sense in this case. Efforts to bring an end to the crisis in Darfur have faltered, time and again, due to a lack of multilateral political will. Security Council members were unable to do more than contemplate the possibility of sanctions in the face of a terrible man- made catastrophe. We must continue to build a solid international coalition to pressure the Sudanese regime. I know that many of my colleagues and many in the administration share my frustration with the grace periods, the delays, the empty threats, and the hesitations. It is well past time, then, to do something about that. If we can send a former Secretary of State around the world to encourage others to relieve Iraqi debt, then we can appoint a very senior Presidential envoy to focus on this problem, to drum up support in capitals around the world, to squeeze every drop of potential cooperation from others with intense discussions and negotiations. The Government of Sudan should feel intense pressure every day, not hear mild scoldings and mixed messages every month or so. And the U.S. should not muddle our message by getting tangled up in our contorted position on the ICC.

Now the Commission of Inquiry's report has the potential to prod other states into action. It would be a terrible shame if the United States, once at the forefront of urging action on Sudan, now became a part of the problem.

Mr. President, I am proud to join the Senator from Maine, Olympia Snow, and the Senator from Oregon, Ron Wyden as an original cosponsor of the bipartisan Medicare Enhancement for Needed Drugs (MEND) Act. This bill takes necessary steps to ensure that our seniors, and our taxpayers, receive the best price possible on prescription drugs under the new Medicare prescription drug benefit. One of the primary reasons I voted against the Medicare Modernization Act was because I felt that it did not go far enough in addressing the skyrocketing prices of prescription drugs. Without strong, proactive measures to keep the prices of prescription drugs in check, seniors will continue to struggle to afford their prescription drugs, even with Medicare's help, and the overall cost of the Medicare Program will continue to mushroom.

There is bipartisan agreement that by prohibiting the Medicare Program from negotiating the prices of prescription drugs, the Medicare Modernization Act is actually failing to utilize the purchasing power of the Medicare Program. The MEND Act will repeal this prohibition, and allow--and in some circumstances mandate--the Secretary to negotiate the prices of prescription drugs. This type of negotiation will save taxpayers' dollars while reducing the costs of prescription drugs for Medicare beneficiaries.

The MEND Act also provides Medicare beneficiaries and taxpayers with valuable information on the prices of prescription drugs under the new Medicare benefit. This reporting will ensure that the prices of the drugs most used by seniors do not go up just as the Medicare prescription drug benefit goes into effect. It will also ensure that seniors and others who depend on Medicare have the complete, accurate information they need when deciding upon a prescription drug plan under Medicare.

It is important that we act now, in a bipartisan manner, to fix the flaws included in the Medicare Modernization Act before the prescription drug benefit begins next year. The MEND Act will help both those who depend on the Medicare Program, and those who have to pay for it, by acting to rein in the skyrocketing prices of prescription drugs.

Mr. President, I am pleased to again be an original cosponsor of Senator Collins' Homeland Security Grant Enhancement Act. This important legislation will coordinate and simplify the often complicated and confusing homeland security grant process. This bill will make it much easier for local first responders to get funding by reducing the many, and often redundant, grant applications steps. The amendment also gives local officials far more flexibility in spending homeland security dollars, including paying for overtime costs associated with homeland security tasks and training. Successful programs, such as FIRE Act grants, the COPS program, and the Emergency Management Performance Grant program, are protected in this legislation.

The legislation also tackles the controversial topic of how to allocate funding. I believe it has struck a fair balance by both allocating funding based on threat, as recommended by the 9/11 Commission and others, and maintaining baseline funding so that States and local officials can have a predictable stream of funding to meet the homeland security needs faced by all jurisdictions. As Senator Collins noted, the support this bill has gotten from Senators from both large and small States is indicative of the balanced approach taken by this legislation.

The Senate adopted this measure by voice vote in the last Congress as an amendment to the intelligence reform bill and it is my hope that the Senate will soon take up and pass this important bill. Simplifying and rationalizing the current homeland security grant system should be a top priority. I urge my colleagues to support this legislation and to adequately allocate resources to meet our homeland security needs.

Mr. President, today, as I did in the Foreign Relations Committee, I cast my vote in favor of the confirmation of Dr. Rice to be Secretary of State. I did so not because I endorse Dr. Rice's views but because, barring serious concerns about a nominee's qualifications or serious ethical lapses, the President has the right to appoint Cabinet officers who share his ideology and his perspective. In keeping with Senate practices and precedents, my inclination is to give the President--any President--substantial deference in his Cabinet choices. I do not agree with many of the President's foreign policy choices. But as President, he generally has a right to a Cabinet that shares his perspective and agenda.

However, I want to be clear that I was troubled by some of Dr. Rice's statements in the hearing. Our most senior diplomat, our emissary to the entire world, should be able to represent our core values. Dr. Rice's failure, and the failure of the administration, to categorically reject tactics

that the average American would acknowledge to be torture is more than disappointing. It is dangerous, and it is shameful.

I also want to restate my view that the President's foreign policy over the last 4 years has been, on many fronts, misguided and self- defeating. I have discussed these issues in much greater detail on the Senate floor and in the Foreign Relations Committee. I am troubled by the damage done to our image around the world, I am concerned by our loss of focus in fighting terrorism, I am angry about the use of shifting justifications and faulty information to sell the war in Iraq, I am angry about the failure to plan for the fact that overthrowing a regime leads to disorder and disorder leads to looting, I am angry about the official insistence on grossly underestimating the bill that would be handed to the American taxpayer and then declining to budget for this massive expense once its parameters became more clear, I am angry about the mismanagement of efforts to put a competent Iraqi security force in place, I am angry about the woefully slow pace of reconstruction, and I am angry about this administration's failure to ensure that our troops were adequately equipped for the circumstances in which they found themselves. Many people in this country and in this Congress are troubled not only by the mistakes, but by the fact that there appears to be no real accountability for these failures.

At one point in the course of the hearing, Dr. Rice expressed some indignation regarding questions or remarks that she felt impugned her credibility. Her credibility is a legitimate question. Dr. Rice made sweeping, public characterizations about aluminum tubes sought by Iraq before the war began that were, quite plainly, misleading. She permitted a reference to Iraq seeking uranium from Africa, a reference that she knew the intelligence did not support, to be included in a major presidential address. She has a credibility problem, not just among skeptics in this country, but around the world. Once confirmed, Dr. Rice will be accountable to Congress in a way that she was not as the President's National Security Advisor. I hope that Dr. Rice fully understands her obligations to tell the duly elected representatives of the American people the whole truth.

President Bush, like any President, is entitled to a Cabinet that reflects his views. But I will continue to oppose every bad policy, to question every baseless assertion, and to advocate for a wiser course that will make our country more secure. The stakes for the current and future generations of Americans are far too high to do anything else.

Mr. President, I am pleased to reintroduce legislation that would put an end to automatic cost-of-living adjustments for congressional pay.

As I have noted when I raised this issue in past years, it is an unusual thing to have the power to raise our own pay. Most of our constituents do not have that power. And that this power is so unusual is good reason for the Congress to exercise that power openly, and to exercise it subject to regular procedures that include debate, amendment, and a vote on the record.

I regret to say, that current law permits Congress to avoid that public debate and vote. All that is necessary for Congress to get a pay raise is that

nothing be done to stop it. The annual pay raise takes effect unless Congress acts.

This stealth pay raise mechanism began with a change Congress enacted in the Ethics Reform Act of 1989. In section 704 of that act, Members of Congress voted to make themselves entitled to an annual raise equal to half a percentage point less than the employment cost index, one measure of inflation.

It is true, that on occasion Congress has voted to deny itself the raise, and the traditional vehicle for the pay raise vote is the Treasury appropriations bill. But that vehicle is not always made available to those who want a public debate and vote on the matter. Just last year, for example, the Treasury appropriations bill was slipped into the massive Omnibus Appropriations conference report, and thus it was completely shielded from amendment. Senators were effectively prevented from offering an amendment to force an up or down vote on the annual pay raise. And that situation was not unique.

Getting a vote on the annual congressional pay raise is a haphazard affair at best, and it should not be that way. The burden should not be on those who seek a public debate and recorded vote on the Member pay raise. On the contrary, Congress should have to act if it decides to award itself a hike in pay. This process of pay raises without accountability must end.

This issue is not a new question. It was something that our Founders considered from the beginning of our Nation. In August 1789, as part of the package of 12 amendments advocated by James Madison that included what has become our Bill of Rights, the House of Representatives passed an amendment to the Constitution providing that Congress could not raise its pay without an intervening election. On September 9, 1789, the Senate passed that amendment. In late September 1789, Congress submitted the amendments to the States.

Although the amendment on pay raises languished for two centuries, in the 1980s, a campaign began to ratify it. While I was a member of the Wisconsin State Senate, I was proud to help ratify the amendment. Its approval by the Michigan Legislature on May 7, 1992, gave it the needed approval by three-fourths of the States.

The 27th amendment to the Constitution now states: ``No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened.''

I try to honor that limitation in my own practices. In my own case, throughout my 6-year term, I accept only the rate of pay that Senators receive on the date on which I was sworn in as a Senator. And I return to the Treasury any additional income Senators get, whether from a cost-of-living adjustment or a pay raise we vote for ourselves. I don't take a raise until my bosses, the people of Wisconsin, give me one at the ballot box. That is the spirit of the 27th amendment. The stealth pay raises like the one that Congress allowed last year, at a minimum, certainly violate the spirit of that amendment.

This practice must end. This bill will end it. Senators and Congressmen should have to vote up-or-down to raise congressional pay. My bill would simply require us to vote in the open. We owe our constituents nothing less.

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

Mr. President, today I introduce the Federal Death Penalty Abolition Act of 2005. This bill would abolish the death penalty at the Federal level. It would put an immediate halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law.

Since 1976, when the death penalty was reinstated by the Supreme Court, there have been almost 1,000 executions across the country, including three at the Federal level. At the same time, over 100 people on death row were later found innocent and released from death row. Exonerated inmates are not only removed from death row, but they are usually released from prison altogether. Apparently, these people never should have been convicted in the first place. While death penalty proponents claim that the death penalty is fair, efficient, and a deterrent, the fact remains that our criminal justice system has failed and has resulted in at least 117 very grave mistakes.

Nine hundred and forty-four executions, and 117 exonerations in the modern death penalty era. That is an embarrassing statistic, one that should have us all questioning the use of capital punishment in this country. And we continue to learn about more cases in which our justice system has failed. Since I first introduced this bill in November of 1999, 36 death row inmates have been exonerated throughout the country, 12 since I introduced this bill in the last Congress in February 2003. Since I last introduced this bill, 115 people have been executed nationwide. How many innocents are among them? We may never know.

While executions continue and the death row population grows, the national debate on the death penalty intensifies and has become even more vigorous. The number of voices joining in to express doubt about the use of capital punishment in America is growing. As evidence of the flaws in our system mounts, it has created an awareness that has not escaped the attention of the American people. Layer after layer of confidence in the death penalty system has been gradually peeling away, and the voices of those questioning its fairness are growing louder and louder. Now they can be heard from college campuses and courtrooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the Supreme Court. We must not ignore them.

That our modern society relies on killing as punishment is disturbing enough. Even more disturbing, however, is that our States' and Federal Government's use of the death penalty is often not consistent with principles of due process, fairness, and justice. These principles are the foundation of our criminal justice system. It is clearer than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims.

After the death penalty was reinstated by the Supreme Court in 1976, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill allowed its use to apply to a total of some 60 Federal offenses. Since 1994, Federal prosecutions seeking the death penalty have now accelerated.

A survey on the Federal death penalty system from 1988 to early 2000 was released by the U.S. Department of Justice in September 2000. That report showed troubling racial and geographic disparities in the Federal Government's administration of the death penalty. In other words, who lives and who dies in the Federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Janet Reno was so disturbed by the results of that report that she ordered a further, in- depth study of the results. Attorney General John Ashcroft pledged to continue that study, but we still await the results of that further study. The Federal Government must do all that it can to ensure that no person is ever subject to harsher penalties because of the color of the defendant's skin.

I am certain that not one of my colleagues here in the Senate, not a single one, would defend racial discrimination in this ultimate punishment. The most fundamental guarantee of our Constitution is equal justice under law, and equal protection of the laws. Yet we have a system in place today that raises grave questions about whether that guarantee is being met.

While the Federal death penalty system is clearly plagued by flaws, there are 38 States across our Nation that also authorize the use of capital punishment. And like the Federal system, those systems are not free from error.

Five years ago, Governor George Ryan took the historic step of placing a moratorium on executions in Illinois and creating an independent, blue ribbon commission to review the State's death penalty system. The Commission conducted an extensive study of the death penalty in Illinois and released a report with 85 recommendations for reform of the death penalty system. The Commission concluded that the death penalty system is not fair, and that the risk of executing the innocent is alarmingly real. Governor Ryan later pardoned four death row inmates and commuted the sentences of all remaining Illinois death row inmates to life in prison before he left office in January 2003:

Illinois is not alone. Four years ago, then Governor Parris Glendening learned of suspected racial disparities in the administration of the death penalty in Maryland. Governor Glendening did not look the other way. He commissioned the University of Maryland to conduct the most exhaustive study of Maryland's application of the death penalty in history. Then faced with the rapid approach of a scheduled execution, Governor Glendening acknowledged that it was unacceptable to allow executions to take place while the study he had ordered was not yet complete. So, in May 2002, he placed a moratorium on executions. Unfortunately, Governor Bob Ehrlich later lifted that moratorium and executions have resumed in Maryland.

The Maryland study was released in January 2003, and the findings should startle us all. The study found that blacks accused of killing whites are

simply more likely to receive a death sentence than blacks who kill blacks, or than white killers. According to the report, black offenders who kill whites are four times as likely to be sentenced to death as blacks who kill blacks, and twice as likely to get a death sentence as whites who kill whites.

Maryland and Illinois are not exceptions to a rule, nor anomalies in an otherwise perfect system. In fact, since reinstatement of the modern death penalty, 81 percent of capital cases across the country have involved white victims, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans.

There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country. While the research done in Maryland and Illinois has yielded shocking results, there are 36 other States that authorize the use of the death penalty, most of them far more frequently. Twenty of the 38 States that authorize capital punishment have executed more inmates than Maryland, and 14 of those States have carried out more executions than Illinois. So while we are closer to uncovering the unthinkable truth about the flaws in the Maryland and Illinois death penalty systems, there are 36 other States with systems that are most likely plagued with the same flaws. And yet, the killing continues.

At the beginning of 2005, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. Historically, we are one of the first nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard.

Over the last few years, some prominent voices in our country have done just that. And they are not just voices of liberals, or of the faith community. They are the voices of Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former FBI Director William Sessions, Republican Governor George Ryan, and Democratic Governor Parris Glendening. The voices of those questioning our application of the death penalty are growing in number, and they are growing louder.

And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 117 countries that have abolished the death penalty in law or in practice. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all States within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys the closest of relationships and shares the deepest common values.

What is even more troubling in the international context is that the United States is now one of only five countries that imposes the death penalty for crimes committed by juveniles. So, while a May 2002 Gallup poll found that 69 percent of Americans oppose the death penalty for those under the age of 18, we are one of only five nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The others are Iran, the Democratic Republic of the Congo, Nigeria, and Saudi Arabia. In the last decade, the United States has executed more juvenile offenders than all other nations combined.

These are countries that we often criticize for human rights abuses. We should remove any basis for charges that human rights violations are taking place on our own soil by halting the execution of people who were not even adults when they committed the crimes for which they were sentenced to die. No one can reasonably argue that executing child offenders is a normal or acceptable practice in the world community. And I do not think that we should be proud that the United States is the world leader in the execution of child offenders.

As we begin a new year and another Congress, our society is still far from fully just. The continued use of the death penalty shames us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' applies here in the most fundamental way. Our Nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of criminals. Just as our Nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek justice in this new century. And it is not just a matter of morality. The continued viability of our justice system as a truly just system that deserves the respect of our own people and the world requires that we do so. Our Nation's striving to remain the leading defender of freedom, liberty and equality demands that we do so.

Abolishing the death penalty will not be an easy task. It will take patience, persistence, and courage. As we work to move forward in a rapidly changing world, let us leave this archaic practice behind.

I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great Nation. I also call on each State that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system.

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

Mr. President, today I am introducing a bill that will fix one of the fundamental flaws of the Medicare prescription drug benefit signed into law last Congress. The ``Efficiency in Government Health Care Spending Act'' will remove language included in the Medicare Modernization Act that prohibits the Medicare program from negotiating prescription drug prices with manufacturers. I believe that the Medicare prescription drug benefit does far too little to bring down the prices of prescription drugs, and that there are not enough measures to keep the skyrocketing cost of the program in check. In fact, it actually takes away one of the best tools the Medicare program could use in bringing down prescription drug prices by denying the government the ability to negotiate price discounts on behalf of Medicare beneficiaries.

My bill will allow the Federal Government to take advantage of the purchasing power of the Medicare program, saving taxpayers' dollars while reducing the costs of prescription drugs for Medicare beneficiaries. We need to act now to fix the flaws included in the Medicare prescription drug benefit, before the benefit begins next year.

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

Mr. President, today I am introducing a bill that will remove the multi-billion dollar ``stabilization fund'' from the new Medicare prescription drug benefit. This stabilization fund is in essence a slush fund that gives billions of dollars to private insurance companies. This is not an efficient use of taxpayers' dollars. In fact, it's not clear why it's even necessary. If private managed care plans are successful in bringing costs down, as backers of the new Medicare bill expect, and if seniors supposedly want to choose private plans, as backers of the new Medicare bill believe, then why should American taxpayers pay private companies more money to get more people to enroll in them?

We should not be subsidizing private health insurance companies in the name of Medicare reform. It is fiscally irresponsible, in a time of record deficits, to use taxpayers' dollars as a giveaway to private insurance companies. By removing this multi-billion slush fund, my bill will save the American taxpayers $10 billion. Many analysts, including the Administration's analysts, predict that the new Medicare prescription drug benefit will far surpass the $400 billion budgeted for it. We need to look carefully at how we spend Medicare dollars, so that we can ensure that the program remains solvent for future generations.

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

Mr. President, I appreciate this opportunity to comment briefly on voting irregularities that occurred during our most recent presidential election. While some steps were taken after the 2000 election to help rectify a number of problems with our voting process that were identified across the country, the election in November demonstrates that more needs to be done.

The outcome of the November election will not change because of the current process underway in both the Senate and the House, but I certainly understand the goal of those who have initiated this debate with their written objections to certifying the election results. While I understand that the Senator from Massachusetts (Mr. Kerry) has indicated that his campaign's legal team was unable to find evidence that would change the outcome of the election, enough questions have been raised to justify a thorough examination by Congress and the administration. Of course, the rules governing this debate are highly restrictive, and do not afford any meaningful review of potential voting irregularities, let alone the consideration of possible solutions to any problems. That effort will have to be done outside the confines of the specific work we have today, and to that end, I strongly hope the Senate Rules Committee will make this the very highest priority, and that the Senate's leadership will schedule any legislation that comes from such a review for prompt floor action.

Since the election, I have heard both Democrats and Republicans pledge to work together to tackle some of our most pressing issues. We are 3 days into the 109th Congress and it is time to put that promise to the test. I look forward to working with all of my colleagues to help ensure that in future elections every eligible citizen who wishes to vote is able to do so and all votes are counted.

(At the request of Mr. Reid, the following statement was ordered to be printed in the Record.)