Congressional Record, Volume 144 Issue 98 (Tuesday, July 21, 1998)

[Congressional Record Volume 144, Number 98 (Tuesday, July 21, 1998)]
[Senate]
[Pages S8639-S8648]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 1999

The Senate continued with the consideration of the bill.
Mr. McCAIN. Mr. President, I certainly was entertained by the
exchange. And I know that the Senator from Utah is going to speak right
after me. I hope he will have some biblical stories as well. The
biblical lesson that I am about to propound has to do with the fact
that two well-meaning and well-intentioned Americans can join together
and resolve our problems and differences.
Mr. President, earlier today an amendment of mine was accepted that
unintentionally the Senator from Utah, the distinguished chairman of
the Judiciary Committee, was unaware of. After vigorous discussion, the
Senator from Utah and I have agreed, along with the Senator from
Vermont, the ranking member of the Judiciary Committee, that we would
modify that amendment and that basically what this means is that the
cable rates would be held in moratorium until March 31, 1999.
Mr. President, this is a serious issue. The chairman of the Judiciary
Committee and I also know that it is serious, and we intend to work
together and get this issue resolved so that there is meaningful
competition to the rising cable rates in America which have gone up 9
percent last year and 8 percent again this year.
I think we reached an agreement that makes both of us slightly
unhappy but I think will move this process along. I look forward to
working with him in the weeks ahead, and hopefully by perhaps September
we can get an agreement and move forward on this issue.

Vitiation Of Vote--Amendment No. 3229

Mr. President, before the Senator from Utah speaks, I ask unanimous

[[Page S8640]]

consent that the vote on amendment No. 3229 be vitiated.
The vote on amendment (No. 3229) was vitiated.

Amendment No. 3229, As Modified

Mr. McCAIN further ask unanimous consent that a modification of the
amendment which is at the desk be agreed to.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 3229), as modified, was agreed to as follows:

At the appropriate place, insert the following:

SEC. . MULTICHANNEL VIDEO PROGRAMMING.

(a) Notwithstanding any other provision of law, the
Copyright Office is prohibited from implementing, enforcing,
collecting or awarding copyright royalty fees, and no
obligation or liability for copyright royalty fees shall
accrue pursuant to the decision of the Librarian of Congress
on October 27, 1997, which established a royalty fee of $0.27
per subscriber per month for the retransmission of distant
broadcast signals by satellite carriers, before March 31,
1999. This shall have no effect on the implementing,
enforcing, collecting, or awarding copyright royalty fees
pursuant to the royalty fee structure as it exists prior to
October 27, 1997.

Mr. McCAIN. I thank the Senator from Utah for his continued
cooperation and offer my commitment to work with him and his staff.
I yield the floor.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. I thank my friend and colleague from Arizona for being
willing to work out this difficulty. There was, I think, a
misunderstanding on this matter. We have reached an acceptable
compromise that will encourage us to work together on these issues for
the benefit of all of our constituents and the affected industries with
deliberate speed. I hope that we can work together to fashion a
comprehensive reform of the relevant laws and regulations that will
increase the range of options that television viewers will have.
The rates will be rolled back until early next year; that is, until
March 31, when we would hope and expect Congress to be able to adopt
meaningful comprehensive reform of the issues affecting the satellite
industries and their customers.
So, again, I want to thank my colleague for being willing to vitiate
the prior vote, being willing to work out this compromise, and I
express my desire to work together with him as chairman of the
Judiciary Committee, and I believe my colleagues on the Judiciary
Committee will as well with him, as chairman of the Commerce Committee,
and hopefully we can resolve the matters in the best interests of all
Americans--both individuals and affected industries. And, again, I just
express my appreciation.
Parliamentary inquiry. Is that modification accepted?
The PRESIDING OFFICER. The amendment was agreed to, as modified.
Mr. DURBIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.

Amendment No. 3240

(Purpose: To prohibit foreign nationals admitted to the United States
under a nonimmigrant visa from possessing a firearm)

Mr. DURBIN. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Illinois [Mr. Durbin] proposes an
amendment numbered 3240.

Mr. DURBIN. I ask unanimous consent that reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in title I of the bill, insert the
following:

SEC. ____. FIREARMS.

Section 922 of title 18, United States Code, is amended--
(1) in subsection (d), by striking paragraph (5) and
inserting the following:
``(5) who, being an alien--
``(A) is illegally or unlawfully in the United States; or
``(B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant visa (as
that term is defined in section 101(a)(26) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(26)));'';
(2) in subsection (g), by striking paragraph (5) and
inserting the following:
``(5) who, being an alien--
``(A) is illegally or unlawfully in the United States; or
``(B) except as provided in subsection (y)(2), has been
admitted to the United States under a nonimmigrant visa (as
that term is defined in section 101(a)(26) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(26)));'';
(3) in subsection (s)(3)(B), by striking clause (v) and
inserting the following:
``(v) is not an alien who--

``(I) is illegally or unlawfully in the United States; or
``(II) subject to subsection (y)(2), has been admitted to
the United States under a nonimmigrant visa (as that term is
defined in section 101(a)(26) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(26)));''; and

(4) by inserting after subsection (x) the following:
``(y) Provisions Relating to Aliens Admitted Under
Nonimmigrant Visas.--
``(1) Definitions.--In this subsection--
``(A) the term `alien' has the same meaning as in section
101(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3)); and
``(B) the term `nonimmigrant visa' has the same meaning as
in section 101(a)(26) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(26)).
``(2) Exceptions.--Subsections (d)(5)(B), (g)(5)(B), and
(s)(3)(B)(v)(II) do not apply to any alien who has been
lawfully admitted to the United States under a nonimmigrant
visa, if that alien is--
``(A) admitted to the United States for lawful hunting or
sporting purposes;
``(B) an official representative of a foreign government
who is--
``(i) accredited to the United States Government or the
Government's mission to an international organization having
its headquarters in the United States; or
``(ii) en route to or from another country to which that
alien is accredited;
``(C) an official of a foreign government or a
distinguished foreign visitor who has been so designated by
the Department of State; or
``(D) a foreign law enforcement officer of a friendly
foreign government entering the United States on official law
enforcement business.
``(3) Waiver.--
``(A) Conditions for waiver.--Any individual who has been
admitted to the United States under a nonimmigrant visa may
receive a waiver from the requirements of subsection (g)(5),
if--
``(i) the individual submits to the Attorney General a
petition that meets the requirements of subparagraph (C); and
``(ii) the Attorney General approves the petition.
``(B) Petition.--Each petition under subparagraph (B)
shall--
``(i) demonstrate that the petitioner has resided in the
United States for a continuous period of not less than 180
days before the date on which the petition is submitted under
this paragraph; and
``(ii) include a written statement from the embassy or
consulate of the petitioner, authorizing the petitioner to
acquire a firearm or ammunition and certifying that the alien
would not, absent the application of subsection (g)(5)(B),
otherwise be prohibited from such acquisition under
subsection (g).
``(C) Approval of petition.--The Attorney General shall
approve a petition submitted in accordance with this
paragraph, if the Attorney General determines that waiving
the requirements of subsection (g)(5)(B) with respect to the
petitioner--
``(i) would be in the interests of justice; and
``(ii) would not jeopardize the public safety.''.

Mr. DURBIN. Mr. President, I would like to explain this amendment. It
is rather simple, straightforward. It is, again, on the issue of guns.
I am hoping now, for the first time today, that we can find some
consensus on that issue. And I have spoken to some of my former
adversaries, and there may be a chance. But I would like to explain
what this amendment does.
Earlier today, we have said in our votes on this floor--this body has
said--that when it comes to requiring people who purchase guns in the
United States when they purchase a handgun to buy a trigger lock, we
voted no, they should not be required to buy a trigger lock. Then we
said, if you are going to have a criminal background check when you buy
a gun in this country, you do not have to pay for it; other taxpayers
have to pay for it; it is free. Those are the two votes so far.
I hope that I am going to broach a subject here where we can find
some common ground on the issue of owning guns. Remember with me, for a
moment, last year when there was a terrible killing at the Empire State
Building. Gun violence in America, unfortunately, is not novel. We read
about it every day, and we see it on the news.
But it struck me as odd when I heard about this case because, if you
will remember--and I think I have the sequence correctly--a resident of
the Nation of Lebanon came to the United States on a nonimmigrant visa,
such as a tourist visa. When he arrived in the United States, he
visited the State of

[[Page S8641]]

Florida, which has relatively lax laws in terms of the purchase of
firearms. He bought a firearm in Florida, took it up to the Empire
State Building, and gunned down several innocent people, other tourists
at the Empire State Building.
It struck me as odd that while we enshrine the right of American
citizens to own firearms, we apparently have few, if any, ways to check
when people come into this country to buy a gun as to whether or not
they are citizens of this country.
So in this case, a man from another nation, a tourist, bought a gun
and killed innocent Americans. I think that goes too far. I think,
frankly, we ought to say that if you come into this country as our
guest, not as a citizen of the United States, that we are going to
restrict your right to purchase a firearm. You are not a citizen of our
country; we have a right to impose such restrictions on you.
So here is what we do: We say to the Immigration and Naturalization
Service, send over, through your computers, the names of those who are
in this country legally on these visas; we will put them into our
background check. If this individual had shown up at a gun store and
said, ``I want to purchase a gun,'' they would put his name in the
computer. And if he came up as a nonimmigrant visa holder, not a
citizen of the United States, they would have said, ``No''; and had
they said no to this man, several Americans might be alive today.
I don't think that is an unreasonable requirement. In considering
this amendment, I should think that people might question whether or
not it is our obligation in this Nation, under the Constitution or
otherwise, to arm people who come to visit us. I am not sure it is.
Now, we do make exceptions, and I want to make certain that those who
read this amendment understand the exceptions. We tried to imagine the
exceptions of those coming to the United States on nonimmigrant visas
who might need to own a gun for very real and legal purposes.
Here are the exceptions that we included: We said if you are someone
who has come to the United States for lawful hunting or sporting
hunts--so you have someone who enjoys hunting and can legally do so in
the United States, who comes here for that purpose, goes to the far
west, wherever it might be, that person is exempt. That person may
purchase a gun while here for that purpose.
An official representative of foreign governments--certainly, any
head of state brings a security contingent with him and that person may
possess a gun.
Those who are credited with the U.S. Government's mission to an
international organization; those en route from one country to another;
an official of a foreign government or a distinguished foreign visitor,
a foreign law enforcement officer.
We try to say these are categories of people which might in the
ordinary course of events have a gun, need to purchase a gun, for very
legitimate purposes.
Now, what about those who are there on a nonimmigrant visa for a
longer period of time? I am willing to concede that some are here for
maybe even years legally on nonimmigrant visas and may need a gun at
some point. We even put a provision in for that.
A waiver of this requirement--if a person has resided in the United
States for 180 days and can provide a statement to our Government from
his Embassy or consulate that says he is authorized to acquire a
firearm and he doesn't have a criminal record in his home country.
So I think we have created exceptions which will allow those people
who are here on nonimmigrant visas, who are not here to commit a crime,
an opportunity to purchase or own a firearm. Yet we have said that
tourists from any nation who comes in, buys a firearm, commits an act
of terrorism or murder, is not welcome. We are not going to make it
easy for them.
That is the amendment which I have offered. I hope that those who are
mulling over its provisions will come to the conclusion that it is not
an unreasonable suggestion. I hope those who visit our country
understand they are welcome. When it comes to purchasing a gun, which
may lead to a violent crime, we are at least going to ask some
questions. I think the people of America expect us to ask those
questions.
I yield back the remainder of my time.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mr. DURBIN. Has there been a unanimous consent agreement in terms of
this pending amendment or any others considered this evening?
Mr. GREGG. No.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Allard). Without objection, it is so
ordered.

Amendment No. 3240, As Modified

Mr. DURBIN. Mr. President, I have sent a modification of my amendment
to the desk.
The PRESIDING OFFICER. The Senator has a right to modify his
amendment.
The amendment is so modified.
The amendment (No. 3240), as modified, is as follows:

At the appropriate place in title I of the bill, insert the
following:

SEC. ____. FIREARMS.

(4) by inserting after subsection (x) the following:
``(y) Provisions Relating to Aliens Admitted Under
Nonimmigrant Visas.--
``(1) Definitions.--In this subsection--
``(A) the term `alien' has the same meaning as in section
101(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3)); and
``(B) the term `nonimmigrant visa' has the same meaning as
in section 101(a)(26) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(26)).
``(2) Exceptions.--Subsections (d)(5)(B), (g)(5)(B), and
(s)(3)(B)(v)(II) do not apply to any alien who has been
lawfully admitted to the United States under a nonimmigrant
visa, if that alien is--
``(A) admitted to the United States for lawful hunting or
sporting purposes or is in possession of a hunting license or
permit lawfully issued in the United States;
``(B) an official representative of a foreign government
who is--
``(i) accredited to the United States Government or the
Government's mission to an international organization having
its headquarters in the United States; or
``(ii) en route to or from another country to which that
alien is accredited;
``(C) an official of a foreign government or a
distinguished foreign visitor who has been so designated by
the Department of State; or
``(D) a foreign law enforcement officer of a friendly
foreign government entering the United States on official law
enforcement business.
``(3) Waiver.--
``(A) Conditions for waiver.--Any individual who has been
admitted to the United States under a nonimmigrant visa may
receive a waiver from the requirements of subsection (g)(5),
if--
``(i) the individual submits to the Attorney General a
petition that meets the requirements of subparagraph (C); and
``(ii) the Attorney General approves the petition.
``(B) Petition.--Each petition under subparagraph (B)
shall--
``(i) demonstrate that the petitioner has resided in the
United States for a continuous period of not less than 180
days before the date on which the petition is submitted under
this paragraph; and

[[Page S8642]]

``(ii) include a written statement from the embassy or
consulate of the petitioner, authorizing the petitioner to
acquire a firearm or ammunition and certifying that the alien
would not, absent the application of subsection (g)(5)(B),
otherwise be prohibited from such acquisition under
subsection (g).
``(C) Approval of petition.--The Attorney General shall
approve a petition submitted in accordance with this
paragraph, if the Attorney General determines that waiving
the requirements of subsection (g)(5)(B) with respect to the
petitioner--
``(i) would be in the interests of justice; and
``(ii) would not jeopardize the public safety.''.

Mr. DURBIN. Mr. President, I have been working with the Senator from
Idaho, and I think we have reached an agreement on this, in which we
provide language that says if a person who comes to the United States
on a non-immigrant visa is in possession of a hunting license or permit
lawfully issued within the United States, they then would not be
covered by the provisions of this law. That is consistent with the
original language of the amendment.
At this point, I yield to the Senator from Idaho.
Mr. CRAIG. Mr. President, I appreciate the willingness of the Senator
from Illinois to modify his amendment. I think it is necessary and
appropriate, and certainly the public understands that hunting is a
lawful right and opportunity in this country. Certainly, foreign
citizens who are here that go through the legal and necessary steps
should be allowed that opportunity, and to acquire a gun for that
purpose while here is necessary and fitting.
I agree with the Senator from Illinois that he deals with a very
important area of the law. We have seen it misused by aliens in this
country. Our second amendment is something that we honor, that many of
us feel is a very important right of our citizens under the
Constitution. It should not be abused by those who are guests in our
country, legally or illegally. I think the Senator from Illinois speaks
clearly to that in the amendment. I appreciate his offering it.
Mr. GREGG addressed the Chair.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I think the Senator from Illinois has
proposed a strong amendment here, and it has been strengthened further
by the Senator from Idaho.
I ask unanimous consent that the amendment be agreed to.
The PRESIDING OFFICER. Without objection, the amendment is agreed to.
The amendment (No. 3240), as modified, was agreed to.
Mr. GREGG. Mr. President, I move to reconsider the vote.
Mr. INOUYE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

border patrol aviation

Mr. BIDEN. Mr. President, I would ask to engage the Senator from New
Hampshire, Mr. Gregg, in a brief colloquy regarding a portion of the
report which accompanies the bill, calling on the Border Patrol to
examine the potential cost savings and border surveillance capabilities
of a variety of types of aircraft. I support the committee's effort to
seek more information to improve the cost effectiveness and efficiency
of our border surveillance effort--against both illegal immigration and
drugs. But, I also believe that we must review all types of aircraft,
including both manned and unmanned airships. Is it the Committee's
intent that such airships also be considered in the study and report?
Mr. GREGG. I appreciate the Senator's concerns on this subject. The
committee believes that the full range of aircraft options, including
airships, should be examined by the Border Patrol to assist our efforts
to ensure the most cost-effective and efficient ways to protect our
borders from both illegal immigration and the flow of drugs.
Mr. BIDEN. I thank the Senator for his interest in this matter and
for his clarification of the committee report.

congress-bundestag youth exchange program

Mr. LUGAR. Mr. President, I would like to engage the distinguished
chairman of the subcommittee in a brief colloquy on the Congress-
Bundestag Youth Exchange Program (CBYX). I would like to hear his
thoughts about German-American student exchanges and the reasons why
the bill before us does not include any appropriation for these
important exchanges.
Let me assert first of all that I am a strong and enthusiastic
supporter of the CBYX program that has been in existence now for 15
years. I recall the enthusiasm in the Senate when, in 1983, the late
Senator Heinz introduced the bill authorizing this exchange program.
Many of us rose to endorse it and the legislation received unanimous
support.
The legislation was inspired by the events surrounding the critical
decision by the German Government to deploy United States Pershing-II
missiles in Germany--a decision which, in my judgment accelerated the
end of the Cold War. At the time, it became evident that there were
fundamental misunderstandings within Germany of United States
intentions and equally shallow perceptions about Germany in the United
States.
The German Government felt the need for correcting misperceptions
about the United States most acutely and initiated a process to
establish and fund a youth exchange program with the United States. The
Congress-Bundestag exchange program that emerged from those efforts was
not just another bilateral exchange program. Rather, it has become an
essential component of American foreign policy. With the imminent
expansion of NATO eastward, it takes on an even more important role in
promoting understanding between our two countries.
The Congress-Bundestag Youth Exchange program was launched jointly in
1983 by the U.S. Congress and the German Bundestag and has been funded
by both governments in roughly equal amounts ever since.
Many of us on both sides of the aisle who were in Congress in 1983
spoke passionately in support of these exchanges. Those of us who
follow the program closely and meet with the exchange students believe
it is an essential component of American foreign policy.

Apart from expanding awareness of German and American institutions
and culture, the international experiences and increased proficiency in
language have become valuable assets in the students' continuing
education and community life.
One of the unique features of the Congress Bundestag Youth Exchange
Program is that the German Government virtually matches our
contributions on a dollar-for-dollar basis. They try to match the
number of students they send to the United States to those we send
Germany. They would like to send many more students. When we increase
or decrease our funding, they tend to increase or decrease their
funding. Thus, if we zero out or decrease funding for this program, the
German Government may do the same. In effect, that would be a double
hit and a double calamity for United States-German relations.
Thousands of young people from Germany and from the United States are
able to spend a year in the other country, live with host families and
learn about one another. Thousands have become young Ambassadors for
their country. They have strengthened our mutual interests.
Germany's strategic importance in Europe is self-evident. It enjoys
the strongest economy in Europe and has cooperated in expanding both
the European Union and NATO toward the East. It is poised to play an
even greater role in international peacekeeping, international
commerce, and the global economy. Moreover, there are more than 60
million Americans who trace their heritage to German origins, one of
the largest, if not the largest, ethnic groups in the United States.
Could I ask the distinguished chairman of the subcommittee what has
been the recent funding levels for the Congress-Bundestag Program and
if the bill before us eliminates or reduces funding for the Congress-
Bundestag program for fiscal year 1999?
Mr. GREGG. Funding for this program was at $2.75 million for several
years in the past but it declined to $2.4 million and has been at or
below that level in recent years. The current bill does not include any
funding for the Congress-Bundestag Program but it does not prohibit any
funding either. We suggest in the report language that there are other
competing priorities which make it difficult to fund all requests for
cultural and educational exchanges.

[[Page S8643]]

Mr. LUGAR. It is my understanding that this program is a very high
priority of the administration and that the President has publicly
stated that he wants to increase funding for the Congress-Bundestag
Program in fiscal year 2000 to a level at least $2.8 million--an amount
substantially above recent levels.
Mr. GREGG. Yes. The President has announced his intention to request
an increase for this program in the year following the current fiscal
year. I will look forward to that request.
Mr. LUGAR. I understand the companion House bill includes funding for
this exchange program at about $2 million. Therefore, funding for the
Congress-Bundestag Youth Exchange program for fiscal year 1999 will be
an issue in conference. Is it the chairman's intention to restore funds
for the CBYX program in conference?
Mr. GREGG. I would like very much to restore funding for this
program--and for other exchanges as well. Unfortunately we are
operating under tight budgetary constraints. As the senior Senator from
Indiana knows, the number of international exchange programs have grown
over the years and that is a reflection of their popularity and
importance. Overall appropriations have not kept pace with the growth
in the number of programs. The regrettable result of this shrinkage of
funds and growth in demand for them means that some programs must be
reduced.
But, I very much appreciate the Senator's strong argument in support
of the Congress-Bundestag Youth Exchange program, particularly the
foreign policy role it plays in strengthening our ties with an
important European ally, Germany. I will keep your arguments very much
before me when we negotiate with our House counterparts in conference.
Mr. LUGAR. I thank the chairman and appreciate his explanation. My
original intention was to introduce an amendment to restore funding for
the CBYX program but do not want to burden the managers with a specific
earmark. Could the chairman give assurance that he will do all he can
to restore funding for these exchanges. If he does, I will withdraw my
amendment.
Mr. GREGG. You have made a strong argument on behalf of the program.
And I will do my best to adjust existing programs to provide funding
for the United States-German exchange program.
Mr. LUGAR. I appreciate your assurances. Mr. President, I would like
to made a few additional comments on the Congress-Bundestag Youth
Exchange Program.
For the past 15 years, some 11,000 young students from Germany and
the United States have participated in these exchanges. German and
American families have hosted these students in their homes and
communities and formed enduring friendships and nurturing the ability
to see each other through the other's eyes. The earliest of these
participants are mature adults now and have assumed responsible
positions in their communities. I'm impressed that senior members of
the German Government, including Chancellor Kohl and the President of
the German Bundestag, Rita Sussmuth are personally involved in the
program. Many others have invited American students to work in their
offices, invited them into their homes and arranged for specific events
on their behalf. Our German counterparts value this program very highly
and promote it with enthusiasm.
In the end, we should support this program because it is in our
interests to do so. It is one of our smallest international exchange
programs but it reaps substantial foreign policy benefits. We should be
sending more American students to Germany on this program. The German
Government wants to increase the number of students they send here.
I should add that most of the American students selected for this
exchange program are juniors or sophomores in high school. The
standards are high. To be eligible, a student must have a 3.0 grade
point or better and be a citizen or permanent resident of the United
States.
Once again, I want to thank the distinguished chairman of the
subcommittee. He has a difficult task of balancing growing and
competing demands with increasingly sparse resources. I appreciate his
understanding and courtesy and look forward to working with him and the
committee to restore funding for the Congress-Bundestag Youth Exchange
Program (CBYX).

improving school safety and fighting school crime

Mr. ROBB. Mr. President, as many of my colleagues are aware, support
for education has been at the top of my priorities since I began my
career as a public servant.
I've worked for many years, and on several fronts, to strengthen our
public schools and universities, and I've focused as well on an
essential prerequisite for improving educational opportunities--a safe
learning environment. Unfortunately, not all students share the
privilege of attending a safe school.
Over the past year, tragic murders at schools across the Nation have
chilled parents' hearts. Perhaps even more chilling are figures from a
spring 1998 Department of Justice study, which indicates just how many
schools, and schoolchildren, are at risk. In the past year, nearly 60
percent of all elementary and secondary schools reported at least one
incident of criminal activity to the police. Roughly 20 percent of
schools reported six crimes or more. One out of every ten schools
reported a serious violent crime during the past year.
Mr. President, crime in school is a double threat--a threat not just
to safety and property, but to our entire educational system. Parents
should worry about their children dodging homework, not dodging
bullets. Teachers should be able to devote their energy to promoting
academic achievement, not counseling victims. And students should be
focused on their next exam, not on making it safely to the next class.
While the States have the primary responsibility for both education
and criminal justice, and the Federal Government cannot give every
neighborhood crime-free schools, I believe the Congress should do more.
The Federal Government can help by supporting innovative efforts by
local communities and law enforcement to improve safety, by sharing
insights gained from these efforts with communities across the Nation,
and simply by focusing attention on this problem.
During past Congresses, I supported prevention programs to assist
local communities, including drug resistance education, school security
grants, and the Gun Free School Zones Act. In 1993, I worked to create
a Commission on Violence in Schools to study school safety. I've also
voted for additional deterrence measures, including adult prosecution
of armed juveniles who commit violent crimes, and increased funding for
juvenile prisons.
Last fall, I proposed an amendment to permit funds available under
the Community Oriented Policing Services Program (COPS) to go to school
safety initiatives. COPS funding has been restricted in the past to
hiring new police officers. The amendment I proposed, and the Senate
adopted, expanded the use of COPS funding to reward innovative crime-
reduction efforts by communities and law enforcement, to share
knowledge about successful school-safety programs, and to raise public
awareness about school crime. Thanks to the support of Senators Gregg
and Hollings, $17.5 million in grants were made available in fiscal
year 1998. The grants will be awarded later this fall to communities
across the Nation.

This spring, I spoke with Senators Hollings and Gregg and urged them
to continue and expand this program in fiscal year 1999, and I am
grateful for their generosity and their commitment to the cause. The
chair and ranking member provided more than $210 million for a Schools
Safety Initiative. Under this initiative, $10 million will support
research in technology to improve school safety, such as weapons
detection equipment. Another $25 million will fund community efforts to
promote nonviolent dispute resolution, to train teachers and parents to
recognize troubled children, and to strengthen families.
The bulk of the School Safety Initiative, $175 million, will be
administered under the COPS school safety program that I initiated last
fall. I believe this funding level is a strong statement to students,
parents, teachers, and law enforcement. This program indicates that
school safety is a national priority, and

[[Page S8644]]

I hope schools and communities across the Nation will respond.
A number of schools in Virginia have already taken action. Some have
set up anonymous crime tip lines for their students. Police in Richmond
work with students to promote peaceful conflict resolution and drug
resistance education. Other communities, such as Pulaski County, have
actually placed police officers in schools.
One remaining concern I have is the attention to this issue will
receive from future Congresses. In my view, the matter of school safety
deserves sustained attention, and continuing support from the this
body. There are several juvenile justice reform bills pending before
the Senate, and I'd like to move forward on legislation in this area
this year. Unfortunately, that appears unlikely.
Therefore, I look forward to working with my colleagues next year to
schedule a full debate on juvenile justice issues, as a well as to
provide continued support for school safety through the appropriations
process during conference with the House this year and next.
Mr. GREGG. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BUMPERS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 3243

(Purpose: To amend the Federal Rules of Criminal Procedure, relating to
counsel for witnesses in grand jury proceedings, and for other
purposes)

Mr. BUMPERS. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The bill clerk read as follows:

The Senator from Arkansas [Mr. Bumpers] proposes an
amendment numbered 3243.

Mr. BUMPERS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in title II of the bill, insert
the following:

SEC. 2____. GRAND JURY RIGHT TO COUNSEL.

Mr. BUMPERS. Mr. President, I ask for the yeas and nays on my
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. BUMPERS addressed the Chair.
Mr. GREGG. Will the Senator yield for a question?
Mr. BUMPERS. Yes.
Mr. GREGG. We were working on a unanimous consent agreement that
would allow a second degree to be offered to the Senator's amendment,
which would be reserved to the majority. Does the Senator object to
such an option? It would be a relative second degree.
Mr. BUMPERS. I don't know. I need to meditate on that.
Mr. GREGG. That is why we are meditating on the yeas and nays.
Mr. BUMPERS. I noticed there was no prompt response on that side of
the aisle to a request for the yeas and nays, so I assumed some sort of
cabal was in the works.
Mr. GREGG. We would look forward to a vote on the Senator's
amendment, but we do want to reserve the right to a second degree.
Mr. BUMPERS. I am not sure I look forward to voting on a second-
degree amendment, but then it may be, if we are going to have a
unanimous consent agreement of any kind, it might preclude a second-
degree amendment.
Let me think about it.
Mr. GREGG. I thank the Senator.
Mr. BUMPERS. I want to suggest to each Senator that they meditate on
this proposition.
The doorbell rings and the Senator's wife answers the door. There is
a nicely dressed person, in a suit and tie, standing at the door. He
hands her a paper, and she says, ``What is this?''
He says, ``That's a subpoena.''
She says, ``What does that mean?''
He says, ``That means that the district attorney, the United States
attorney wants to question you.''
``Well, about what?''
``I don't know.''
``What does this paper mean?''
``It means that you don't have any choice. You must go down and
appear before the grand jury.''
``Well, how long will that take?''
``Well, as a matter of fact, sometimes it takes several days. Some
witnesses have been known to have to appear for 5 and 6 and 7 days,
different times.''
``But I don't know anything. What can I testify to?''
``Ma'am, I'm just a functionary. I have been requested, and it is my
official duty to present you with this subpoena. Incidentally, the U.S.
attorney also wants you to bring all of your telephone calls and also
any other documents or letters you may have in your possession that
would relate to anything.''
``Well,'' she says, ``Do I get to bring a lawyer with me?''
``Oh, yes, ma'am, you can bring a lawyer.''
Then she says, ``Well, can my lawyer sit in the grand jury room with
me?''
``No, ma'am, I'm afraid not. Your lawyer can sit outside the grand
jury room but he can't come in the room with you.''
Now, to a lot of people, this is a real story. This is not an
Orwellian bad dream. This is what happens to a lot of innocent people
in this country on a daily basis. She doesn't have any choice but to
show up.
If she had been arrested and charged with a crime, and she was a
possible criminal who was about to go on trial and serve jail time if
convicted, she would have a constitutional right to a lawyer, or to
remain silent. She would not have to tell the U.S. attorney anything.
She could remain silent. She could not only remain silent; she would be
provided a lawyer if she could not afford one.
How many times has every person in the Senate stood on this floor and
said criminals have more rights than ordinary citizens?
In this case, it is true. I just gave you a classic illustration of
why it is true. If this woman were arrested by the police, or charged
with a crime, they couldn't treat her in such a way. But, because she
is an ordinary witness, an innocent citizen, she can be made to go and
testify. She can be made to bring any documents the U.S. attorney
chooses to make her bring. She can be required to walk in the grand
jury room and sit alone on the stand in abject terror because her
lawyer is not permitted in the room with her; he must sit outside.
It is true that she can ask for a recess, leave the witness stand and
say to the court, say to the U.S. attorney:
``Before I answer that question, I would like to talk to my lawyer.''
He says, ``OK.''
So she goes outside and she asks her lawyer, to whom she has just
paid a $5,000 retainer because she is terrified--not because she has
done anything wrong--she has just paid this lawyer $5,000. They are
people of very modest means. He cannot go in the grand jury room, but
she can go out and ask him a question. She is not a lawyer and she is
not sophisticated enough to know on what questions should she defer to
her lawyer. She could answer the most incriminating question in the
world, in all of her legal ignorance, and not know she had just
implicated herself.
What if she says to the man who appeared at her door with a subpoena:
``You say you don't know what they want to talk to me about?''
He says, ``Well, it's about the parking meter scandal.''
``I don't know anything about any parking meter scandal.''
``Well, I'm sorry, ma'am.''
She says, ``If they asked me something and I can't remember it, or if
I try to remember and I give them an answer and it turns out to be
wrong, then what happens?''
``Oh, then in that case, ma'am, they may charge you with perjury.''

[[Page S8645]]

Here is a classic case of a criminal justice system that is not
working. I heard all these lamentations about human rights in China,
but you tell me, how much worse can a situation get, when innocent
people every day in this country are called to testify--and, frankly,
as good citizens they should be willing to testify--but when they get
in the grand jury room with the U.S. attorney, they are subject to his
mercy. He can ask them--he can ask this woman, first crack out of the
bat, in this investigation of a parking meter scandal:
``Have you been faithful to your husband ever since you got
married?'' He can do this because there is no requirement of relevancy
in the grand jury.
``Well, as a matter of fact, I think that's personal.''
``Ma'am, I'm asking you a question. I want an answer. I understand
that one of your children is gay; is that true?''
``Well, what's that got to do with anything?''
``Ma'am, I'm asking you the questions. I'm the U.S. attorney here,
and I can ask anything I want. Is it true one of your children got
picked up one time on a pot charge when he was a senior in high
school?''
``What is that relevant to?''
``Ma'am, as I said, I'm asking the questions here. Now, I'm asking
you, and you are legally required to answer truthfully.''
Senators, I'm going to tell you something. You think this is
farfetched? Believe me, believe me, it is not. It happens all the time.
You ask yourself this question: How would you like to be in the grand
jury room without a lawyer--nobody--and you ask the U.S. attorney:
``Look, I would like to go outside the room. My lawyer is sitting
just outside the door. I would like to talk to him and ask him whether
I should answer this question or not.''
``You have a right to do that, ma'am. Go right ahead.''
She goes out. After awhile, he asks her another one of those silly
questions. And she says, ``You know, I don't know how to answer that. I
need to talk to my lawyer again.''

The third time she does that, these grand jurors start nudging each
other. ``This woman is hiding something. She knows a lot more than she
is willing to talk about. Why is she going outside to talk to that
lawyer so much if she doesn't have something to hide?''
That is the psychological part of trying lawsuits. I am telling you,
I was a trial attorney for 18 years before I became Governor. I have
seen prosecuting attorneys, I have seen local district attorneys, I
have seen U.S. attorneys, eaten up with political ambition. And when
they are eaten up with political ambition, do you know what they want?
All the notches in their belt they can get. They want to be able to
boast, ``I never failed to get an indictment I asked for.''
The chief judge of the State of New York once said, ``You can get a
grand jury to indict a ham sandwich if you ask them to.'' I had a U.S.
attorney tell me one time, ``I have never failed to get an indictment
from a grand jury.'' I can tell you, if he had ever failed to get one,
that would be one of the most abysmal failures I have ever heard of,
because I know all kinds of U.S. attorneys and DA's all over this
country who have been able to get an indictment every time they ask for
one. Do you know why? Because there are 23 grand jurors sitting there
who know nothing except what the U.S. attorney proposes to tell them,
only what the witnesses he decides to call will tell them.
Mr. President, I am not talking as any bleeding-heart liberal. I have
defended a few criminals in my life. A couple of them I felt pretty
sure were guilty, but the first thing I learned in law school is that
this is a nation of laws; everybody is entitled to a lawyer, and to a
fair trial.
The grand jury system has gotten so bad that 27 States in this Nation
have abolished grand juries. You think about that. The States are
always ahead of us in Congress. Mr. President, 27 States have abolished
the grand jury system, and 18 States have laws that allow the attorney
for a witness to sit in the grand jury room with the witness. Now, what
do these states know that we don't know?
My amendment is just about as simple as you can make it. It says one
thing, that a witness who has an attorney and wishes that attorney to
sit in the grand jury room with them may do so. What is wrong with
that? You tell me. Anybody, tell me.
If a U.S. attorney is afraid to ask questions because he doesn't want
her attorney to hear, what is objectionable about it? And why should
he? Why should a U.S. attorney fear asking any question that he is
going to ask later, perhaps, in the courtroom anyway? This is supposed
to be a fair fight. Is he afraid of the truth?
Do you know why we have a grand jury system? Because the Federal
Government was not to be trusted and the Founding Fathers put the
requirement in the Fifth Amendment: We will have a grand jury system.
And the reason we cannot abolish it is because it is in the
Constitution, and I would not change that. The States are not so
fettered, and they are abolishing it right and left because they know
that grand jury system is often not fair. It is just short of a Star
Chamber proceeding because only one side of the case is heard.
In medieval England people were tried by ordeal--they were thrown
into the lake or had their hand dunked in boiling water. If they
survived the ordeal, they were innocent. If they didn't, it didn't make
any difference. That is what was called a Star Chamber proceeding. That
is what people used to go through when they missed church. They were
put in the stocks or they were subjected to boiling water or a whole
host of other things.
So that is the reason that many of the Founding Fathers came here
after being abused and abused and abused in England. Because they were
mostly a poor class, and they didn't trust Government. Because they had
not trusted the King, they knew the King had all the cards, and they
wanted to level the playing field and they wanted it to be a fair
fight. I can tell you, we do not have a fair fight now in the grand
jury.
So, isn't this just simple justice, to allow a witness to have a
lawyer? Is this complicated for anybody listening, that a witness who
is not charged with anything should have a right to a lawyer in the
courtroom, not sitting outside? Do you think a U.S. attorney would
start off asking a Senator's wife if she had been faithful to him all
of her life if her attorney was sitting there? I promise you he
wouldn't. Do you think he would ask if her children were gay or had
ever smoked pot if her lawyer was sitting in the room? Of course, he
wouldn't. This is about simple deterrence of misconduct.

I ask those who will oppose this amendment, What is the prohibition
now under existing law to keep a U.S. attorney from asking those kinds
of abusive questions, and worse? There is none.
I remember one time talking with Senator McGovern when he was a
Senator. One of these questions came up about charging everybody with
everything and vetting everybody who came through. If you get nominated
to an executive position, you have to go through a kind of inquisition.
George McGovern said, ``I want it on the record right now: I stole a
watermelon when I was 12 years old.''
I can tell you, what we have right now in the grand jury system is
not fair, and every Member of this body knows it. I am not defending
criminals. I am not saying give criminals an upper hand. What I am
saying is give witnesses the same choices you give a defendant, the
criminal, which is the right to the assistance of counsel, as
guaranteed in the Sixth Amendment.
Mr. President, I hope everybody understands this issue. I don't want
to belabor it. It is the kind of amendment that doesn't need a lot of
discussion. But you think about this, I say to Senators, your wife or
family member who is as innocent as a newly ordained nun, who never did
anything wrong in her life, is going before the grand jury system
hardly knowing why she has been called and then subjected to day after
day after day of testimony, or even 2 hours of testimony--whatever it
is. At least put her on a par with the criminal defendants who are
arrested and have to be placed on trial, who have a right to an
attorney.
Mr. GREGG. Will the Senator from Arkansas yield for a unanimous
consent request?
Mr. BUMPERS. I will be happy to yield.
The PRESIDING OFFICER. The Senator from New Hampshire.

[[Page S8646]]

Mr. GREGG. Mr. President, I ask unanimous consent that the Senate
proceed to debate the following amendments--one which we are now
debating--with votes in relation to the issues to be postponed to occur
on Wednesday, July 22, at 9:40 a.m.
I further ask unanimous consent that no second-degree amendments be
in order, and that all debate be concluded this evening; that there be
2 minutes for debate for closing remarks prior to each vote in the
stacked sequence, with the exception of the vote in relation to the
Bumpers amendment, on which there will be 10 minutes for closing
remarks. The amendments to be debated are as follows: Moseley-Braun, an
Internet prevention amendment; Graham of Florida, sheriff's auction;
and Bumpers amendment on grand juries, which we are presently debating.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. In light of this agreement, there will be no further votes
this evening, and the next votes will be in a stacked sequence
beginning at 9:40 a.m.
Mr. BUMPERS. Mr. President, that is a perfectly fair, legitimate
undertaking, and I will not be much longer. Senator Levin is here and
wishes to speak on the amendment, and any other cosponsors of the
amendment who are listening should feel free to come over and speak, if
they choose.
The point I was about to make, and I will close on this--is this: The
American people are fairly happy right now because the economy is going
well. But I can tell you, there is one underlying sentiment in this
country that is undeniable, and it is that the vast majority of the
people in this country don't think we, who live in this rarefied
atmosphere, know what their everyday lives are like, and they are
right. They are right.
Here is an opportunity to restore people's confidence in the system.
It doesn't happen often. One of the reasons this amendment may not
prevail is because in the scheme of things, with 268 million people in
this country and probably no more than, what should I say, 10,000,
20,000 at most will appear before grand juries in any given year and
answer questions, who cares about 10,000 people out of 268 million? I
care. If I didn't, I wouldn't be staying here tonight to offer this
amendment.
I first started to object to voting on this in the morning, but the
more I thought about it, the more I thought that it might be good. It
might be good for Senators to reflect on this overnight and to think
about the fact that justice denied to one single soul is an aberration
to a free nation.
I sincerely hope people will think about this and think about it in
terms of their own personal lives--not some obscure thing you read in
the Washington Post every morning or the New York Times--but you think
about some of these things happening to people, and ask yourself: How
would I feel about that? And, if a member of your family were involved,
wouldn't you wish that this amendment was in place as a matter of law?
Mr. President, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. BUMPERS. I yield the floor.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I have been listening to my distinguished
colleague from Arkansas and his very literal discussion of the grand
jury process. It isn't quite as simple as my colleague is explaining.
The reason we have a grand jury process and the reason we don't allow
attorneys in there is because that process is to remain secret. Under
rule 6(e) of the Federal rules, people are not allowed to talk about
what happens within the grand jury--certainly the prosecutors are not
allowed to talk about it. That doesn't mean they have to be totally,
meticulously unable to talk about the cases that they are handling. But
basic 6(e) grand jury testimony is not permitted to be talked about,
and there is a reason for that. There is a reason for not allowing
attorneys into the grand jury proceedings.
The distinguished Senator from Arkansas seems to have the opinion
that in almost every case, or at least in many cases, prosecutors will
act irresponsibly, improperly, will take advantage of witnesses, will
abuse the law. And I do not believe that is the case.
But one reason why grand jury proceedings have been basically
secretive is because, let us say the prosecution was doing a major
investigation of organized crime. You can bet your bottom dollar with
every witness who goes before that grand jury they would have the same
organized crime attorney or attorney representing organized crime or
those organized criminals in that grand jury proceeding. Every one of
them would want that attorney there, except those who are blowing the
whistle on the criminals for whom the grand jury is being held to begin
with.
In other words, it would be almost impossible to ever get a witness
to come forward in grand jury proceedings of any consequence involving
organized crime, and sometimes not so organized crime, because the
minute that person appeared, it would be known who literally was
testifying against the people whom the prosecutors were trying to bring
the actions against.
So it isn't quite as simple as the distinguished Senator has said,
although I share some of his concerns. If there is any evidence that
grand jury proceedings have been used to abuse witnesses or have been
used to seduce witnesses into incriminating themselves, or have been
used to ask questions that are irrelevant, such as some of those
suggested by my distinguished colleague, then, yes, I agree with him,
something ought to be done to prevent those types of things from
happening, and perhaps we should look at this whole area.
On the other hand, we have suggested to him that the way to do this
would be, of course, to let the judicial conference look at this and
make recommendations and really look at all sides of this issue so we
do not go into this half cocked and throw out a system that has served
this country well over 200 years just because there are some alleged
occasional prosecutors who might abuse the process.
It is not quite as simple as people try to make it seem. The grand
jury proceeding has served this country well for well over 200 years.
And, yes, some of these issues that are raised are ones that trouble me
as well. But before we throw this out and before we decide to allow
attorneys in the room, then it seems to me we ought to at least have a
thorough study to determine whether throwing it out is the thing to do,
whether that is going to really be a better process than what we have
today. I don't think it will be.
But it does not take many brains to realize the current grand jury
process is one-sided. The prosecutor can present whatever the
prosecutor wants. And unscrupulous prosecutors can bring an indictment
against almost anybody by just basically asking the grand jury to do
it, because there is nobody in there to represent the rights of the
accused.
The distinguished Senator does raise some very important issues, but
I would prefer that we look at this in a very broad-based study that
really looks at the pros, the cons, the good, the bad, and helps us to
make a determination here. If, after a study like that, we find that
the distinguished Senator is primarily right, and that there are many
injustices that occur through grand jury proceedings, then I would be
the first to join him in making the changes that he would request here
this evening.
But frankly, I think that is the type of thing that should be done,
that should be done carefully and deliberately. And we should not throw
out 200 years of history and 200 years of grand jury proceedings that
have served this country at least ostensibly very well because we are
concerned that there may be some abuses of this particular process in
some instances.
My experience has been that there are very seldom abuses, that the
system works well, that it is a system that can bring indictments
against those who deserve indictments brought against them; and
especially in the area of organized crime, it is a very useful and
worthwhile system.
Having said that, that does not mean that I am ignoring what my
distinguished friend and colleague has said or what he believes,
because I myself

[[Page S8647]]

have some concerns, as he does. Personally, I believe that in most
instances it is a good thing to give people the right to have their
counsel there. And remember, grand jury proceedings can bring down
indictments but they cannot convict people.
On the other hand, once the indictment is brought down, that amounts
to a criminal defense that must be waged in almost every case. So I
hope that I can talk my colleague into having a major, major review and
study of this rather than doing something that literally throws out the
system or at least changes the system dramatically in such a way that
might have very detrimental effects in our getting to the bottom of
organized crime, to the bottom of organized criminal conduct with
regard to drugs, to the bottom of criminal activity in general where
witnesses might be intimidated or afraid to even appear before grand
juries.
The more we do this, I think the more we are going to find that some
of those concerns may outweigh some of the concerns that the
distinguished Senator has, because I do not believe that you can point
to many instances as a whole--as a whole--where the feelings or
complaints of the distinguished Senator from Arkansas are actually
fulfilled.
Currently, all witnesses may leave the grand jury proceeding or grand
jury room to consult with their attorneys anytime they want. Now the
Senator makes a good point when he says, How is that person going to
know whether they are incriminating themselves if they are not skilled
in the law, if you have a skillful grand jury prosecutor in there
asking questions? And that is a tough question to answer.
But the fact of the matter is that if they have an attorney to begin
with, that attorney is going to say, ``Don't answer anything unless you
talk to me, so tell them after each question you want to come out and
talk to me.'' That has been my experience where you have attorneys who
are concerned about their clients going in before the grand jury. And
there is a way to be represented by an attorney to not say one word or
to answer one question without continuously going out and discussing it
with your attorney. So there is a protection.
The difference is that, if I am correct--and I believe I am--there
are instances where the grand jury proceeding works better than any
other system we have ever had, especially in the area of organized
crime. I would be very hesitant to throw out that system without the
study by those who are experts in this field and those who really can
make a difference in determining just what is right and what is wrong
here.
But having said that, I have raised these concerns. I hope my
colleague will consider having a study. I would join with him in that.
We can place a limited period of time on it, and if that study proves
to augment his feelings and proves his thesis here, then I may very
well join with him in making the changes that he would like to make
here today.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from Arkansas.

Amendment No. 3243, As Modified

Mr. BUMPERS. I ask unanimous consent that I be permitted to send a
modification to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered. The
amendment is so modified.
The amendment, as modified, is as follows:
At the appropriate place in title II of the bill, insert
the following:

SEC. 2____. GRAND JURY DUE PROCESS.

(a) In General.--Rule 6 of the Federal Rules of Criminal
Procedure is amended--
(1) in subdivision (d), by inserting ``and counsel for that
witness (as provided in subdivision (h))'' after ``under
examination''; and
(2) by adding at the end the following:
``(h) Counsel for Grand Jury Witnesses.--
``(1) In general.--
``(A) Right of assistance.--Each witness subpoenaed to
appear and testify before a grand jury in a district court,
or to produce books, papers, documents, or other objects
before that grand jury, shall be allowed the assistance of
counsel during such time as the witness is questioned in the
grand jury room.
``(2) Powers and duties of counsel.--A counsel retained by
or appointed for a witness under paragraph (1)--
``(A) shall be allowed to be present in the grand jury room
only during the questioning of the witness and only to advise
the witness;
``(B) shall not be permitted to address the attorney for
the government or any grand juror, or otherwise participate
in the proceedings before the grand jury; and
``(C) shall not represent more than 1 client in a grand
jury proceeding, if the exercise of the independent judgment
of the counsel on behalf of 1 or both clients will be, or is
likely to be, adversely affected by the representation of
another client.''

Mr. SESSIONS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I would like to say a few things about
grand juries. I spent 15 years as a Federal prosecutor working with
grand juries on a regular basis. And people say, ``Oh, it's a secret
proceeding.'' Well, would you rather have your witnesses have to go and
testify in open court?
You see, the purpose of a grand jury is simply to determine whether
there is probable cause to believe a crime has been committed and
whether the defendant probably committed it, to set that case for
trial. It is a protection. Some say, ``Well, just let the prosecutors
indict and eliminate the grand jury because the grand jury will indict
a ham sandwich.'' I heard that here today. Grand juries will not indict
a ham sandwich.
You have to present evidence to them sufficient for them to
understand the charge; and the evidence that is presented is before
they will return an indictment and set the case for trial. At trial,
the burden of proof is not ``probably committed a crime''; at trial the
burden of proof is ``beyond a reasonable doubt''; to a moral certainty
sometimes the judge charges the jury. So that is where the trial takes
place.
Now, I recall a line by Justice Macklin Fleming in California. He
said, ``Perfect justice is not achievable in this life. In the pursuit
of perfect justice, we destroy what justice is achievable.''
Well, I just say that an obsession with everything becoming more and
more complicated is not the history of our Nation and its criminal law.
The founders of our country realized you needed a trial and that people
who are accused of crimes ought to have a chance to present their
defense fully before a jury of 12 citizens, with their lawyer there to
argue, debate, object, and do everything possible to defend that client
in that trial, but there ought to be a vehicle to decide whether a case
should go forward. They decided it was better for the defendant and for
the witnesses when a charge is brought by virtue of a grand jury
investigation before citizens of the community, if the testimony is
taken in secret, so that if the evidence is not sufficient, the public
may never even know that the individual was under investigation and his
reputation would not be stained.
I submit to you that sometimes grand juries will not indict. And
also, in the course of an investigation, a prosecutor may discover, as
his witnesses are called and put under oath, that the good case he
thought he might have had was not sufficient. Many times I have pulled
a case after presenting evidence before a grand jury because I was not
confident, and the grand jury wasn't confident, that there was enough
evidence to proceed to indictment. Sometimes I presented grand jury
indictments to a grand jury and thought there was evidence to indict
and a grand jury declined to do so. That is the power and privilege
they have been given under our laws in this country.
Based on my experience, the grand jury system certainly is working.
It has served us well for 200 years. I think we ought not to, this late
night, without any debate or without any analysis or without any
hearings, alter this historic principle, which I believe protects
citizens from embarrassment as well as unfounded charges.
I have to suggest and note for the Record, Mr. President, that the
Department of Justice strongly opposes this Bumpers amendment. They
don't think it is the way we ought to be going now. I share that
feeling, and that shows that both I, as a Republican Senator, and the
Department of Justice agree on this. I think we are making a big
mistake to go forward at this time without having considered precisely
what we are doing.
There are a number of important reasons. The chairman of the
Judiciary

[[Page S8648]]

Committee has stated quite a number of those in his excellent legal
way, demonstrating his legal skill and analysis of important issues
that come before us. He has made that point. I will not take any more
time on it. I feel very, very strongly about this issue. I think it
would be a colossal error for this body, without any hearings, to
change this historic principle, because I will tell you, it will tie
the grand jury in knots. You will have another adversarial hearing. You
will have two trials instead of one. It will not further the
ascertainment of truth, which is the purpose and nature of a grand
jury.
I know others need to talk, Mr. President. I yield the floor.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I support the amendment of the Senator from
Arkansas. It embodies a historical principle that has been embedded in
most of our psyches and consciousness, which is that an individual has
a right to counsel--particularly an individual involved in the criminal
justice system has a right to counsel.

Our good friend from Utah says, well, someone appearing before a
grand jury can leave the room and get counsel. Indeed, he knows of
cases, as do I, where somebody who is in front of a grand jury leaves
the room after every question to go outside the door and talk to an
attorney.
What is the common sense of requiring somebody who is entitled to
counsel not to be able to get that counsel inside the grand jury room?
What is the common sense of forcing somebody in front of the jury to
leave at the end of each question--leave the grand jury room to go talk
to his or her attorney? How does that meet the ends of either common
sense or justice--to force that rigmarole, that process, when we come
to something as fundamental and basic as the right to counsel?
I don't think anyone here questions that there is a right to counsel
under our Constitution. The question is, Why not then permit that right
to be exercised inside the grand jury room? Why not permit the advice
to be given to somebody inside the grand jury room, rather than to
force that person at the end of each question to say, ``Excuse me, I
want to go outside the grand jury room to consult with my counsel''?
The only argument that I have heard against permitting that is that,
somehow or other, that would tie a grand jury in knots, as our good
friend from Alabama just said. But under this amendment, that is not
possible, because under this amendment, as modified, it carries out the
original language of this amendment, which says that, ``A counsel for a
witness shall be allowed to be present in the grand jury room only
during the questioning of the witness and only to advise the witness,
and shall not be permitted to address the attorney for the government,
or any grand juror, or otherwise participate in the proceedings before
the grand jury.''
That is it. This amendment would only permit the attorney, which
every person under this Constitution has a right to at least hire, to
give advice to a citizen inside the grand jury room instead of forcing
that person to leave each time. I think it is a modest amendment. It is
a modest amendment because it makes sure that we will not tie up a
grand jury in knots. It is a modest amendment because it only says that
what we know is right, that someone ought to have a right to counsel
when they become involved in the criminal justice system--something
that we know is right and something that we know is guaranteed, which
is the right to counsel, to be exercised in a sensible way, in a way
that doesn't undercut and diminish that very right.
To be forced to leave the grand jury room after each question, in
front of that grand jury, it seems to me, undermines the very right to
counsel which is guaranteed in the Constitution. But, at a minimum, we,
it seems to me, as people who want to defend this Constitution, should
say, if there is a right--and there is one--that it ought to be
exercisable in a commonsense way.
In 90 percent of the grand jury proceedings, the witnesses are law
enforcement officers or other governmental officials who are not likely
even to have an attorney or want an attorney. But in those other 10
percent of the cases, it seems to me only fair, only common sense, to
avoid the absurdity of making a witness leave the grand jury room after
every question in order to exercise a constitutional right to the
advice of counsel.
I want to close by emphasizing the words of this amendment, because I
think they are very important: ``The counsel that a witness is allowed
to have in the grand jury room under this amendment is present only
during the questioning of the witness and''--these are the key words--
``only to advise the witness and not to address the attorney for the
government or address any grand juror, or to otherwise participate in
the proceedings before the grand jury.''
Many of our States allow the attorney to be inside of the grand jury
room. Some States do, some States don't. But we have to make up our own
minds as to what makes the most sense in this Federal system. It seems
to me the most fundamental form of common sense. Forcing a person to
get up, walk through the door, and leave the room to talk to someone, I
believe, diminishes and undermines the very fundamental right that
people have to the advice of counsel.
So there is no tying up in knots in this amendment.
This amendment precludes any possibility that an attorney inside the
grand jury room will address the court, will address the grand jurors,
will address the prosecutor. All that is permitted under this
amendment, and all that is required under this amendment, is that the
counsel for the witness be allowed to be present in the grand jury
room, and only to advise his or her client.
I want to commend the Senator from Arkansas for his extraordinary
courage and, as always, his eloquence in presenting a case.
I think that if we will all think about this basic right overnight,
hopefully the majority of this body will do what at least a number of
States have done, and that is to permit the attorney to be inside the
grand jury room solely for the purpose of advising the witness.
I thank the good Senator for his leadership.

technical assistance funding

Mr. STEVENS. Mr. President, one of the most significant economic
problems facing Alaska is the underdevelopment of the business sector
in our rural areas. Alaska's vast size, lack of highway infrastructure,
and numerous small, remote communities present unique problems
requiring unique solutions. If we want to empower people to move from
assistance to self-sufficiency we have to grow small businesses in
rural Alaska. During the conference on the Commerce, Justice and State
appropriations bill, I will ask the conferees to address these issues.
Specifically, my State is suffering from an acute shortage of
technical assistance funding to provide training and other services
specific to rural needs. This is a need that can be satisfied under
SBA's 7(j) program. Additionally, I am informed that regulations
promulgated in 1995 have virtually eliminated all small business
lending by banks and other financial institutions in Alaska under SBA's
7(a) lending program. Before 1995, the 7(a) program provided critical
financing in rural Alaska, and I intend to explore ways to make the
program viable once again in Alaska. Finally, Alaska's size and
remoteness will require SBA to adopt high-tech solutions to facilitate
service delivery. I will seek to create an electronic assistance center
within the SBA specifically designed to provide Internet connectivity,
outreach and training to rural areas specifically in Alaska.
I look forward to working with Senator Gregg and his staff and others
on this issue. It will be within the scope of the conference, I
believe.

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