[Congressional Record Volume 147, Number 122 (Wednesday, September 19, 2001)]
[Senate]
[Pages S9509-S9512]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Hatch, and Mr. Wyden):
  S. 1437. A bill to clarify the applicable standards of professional 
conduct for attorneys for the Government, and for other purposes; to 
the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, I have spoken many times over the past two 
years of the problems caused by the so-called McDade law, 28 U.S.C. 
530B, which was slipped into the omnibus appropriations bill at the end 
of the 105th Congress. The McDade law has delayed important criminal 
investigations, prevented the use of effective and traditionally-
accepted investigative techniques, and served as the basis of 
litigation to interfere with legitimate Federal prosecutions. At a time 
when we need Federal law enforcement authorities to move quickly to 
catch those responsible for last week's terrorist attacks, and to 
prevent further attacks on our country, we can no longer tolerate the 
drag on Federal investigations and prosecutions caused by this ill-
considered legislation.
  The bill that I am introducing today, along with Senators Hatch and 
Wyden, will modify the McDade law by establishing a set of rules that 
clarify the professional standards applicable to government attorneys. 
I introduced similar legislation in the last Congress, but was unable 
to get it before the Judiciary Committee for consideration. Since then, 
I have continued to work closely with the Justice Department and the 
FBI to monitor the problems caused by the McDade law and to refine this 
corrective legislation. I hope Congress will make it a top priority as 
it considers ways to improve Federal law enforcement and combat 
terrorism.
  By way of background, controversy surrounding the application of 
State ethics rules to Federal prosecutors began over a decade ago, when 
a Federal appellate court held in United States v. Hammad, that a 
disciplinary rule prohibiting lawyers from communicating with persons 
they knew to be represented applied in the investigatory stages of a 
Federal criminal prosecution. The court also noted that suppression of 
evidence was an appropriate remedy for a prosecutor's breach of an 
ethical rule.
  The Department of Justice responded to the Hammad opinion with what 
became known as the Thornburgh Memorandum. Issued on June 8, 1989, the 
Memorandum asserted that ``contact with a represented individual in the 
course of authorized law enforcement activity does not violate'' the 
ABA's model ``no contact'' rule. The Memorandum concluded, ``The 
Department will resist, on Supremacy Clause grounds, local attempts to 
curb legitimate Federal law enforcement techniques.''
  The Federal courts responded negatively to the Department's position. 
In general, the Department was unable to persuade the courts of the 
efficacy of the Attorney General's policy statement.
  Amid mounting criticism of the Thornburgh Memorandum, Attorney 
General Reno issued regulations in 1994 governing all Justice 
Department litigators in their communications with persons represented 
by counsel. These regulations allowed contacts with represented persons 
in certain circumstances, even if such contacts were at odds with State 
or local Federal court ethics rules. State disciplinary authorities 
could sanction a government attorney for willful violation of the 
regulations, but only upon a finding by the Attorney General that a 
willful violation had occurred.
  The Department's new regulations shared the fundamental defect of the 
Thornburgh Memorandum, regulation of Federal prosecutors by the Justice 
Department instead of by the courts, without valid statutory authority. 
Not surprisingly, the only court to consider these regulations found 
them to be invalid.
  On May 1, 1996, Representative Joseph McDade introduced legislation 
that sought to resolve the controversy over the Justice Department's 
claimed authority to write its own ethics rules. In essence, H.R. 3386 
provided that Federal prosecutors were governed by the ethics rules 
that apply to lawyers generally. A hearing on the bill was held on 
September 12, 1996, before the Subcommittee on Courts and Intellectual 
Property, but no further action was taken.
  On March 5, 1998, Representative McDade introduced H.R. 3396, a 
modified version of H.R. 3386. Although the House Judiciary Committee 
did not hold hearings or act on the bill, language similar to H.R. 3396 
was included in the House-passed Commerce-Justice-State appropriations 
bill for FY1999. Thereafter, without the benefit of any hearings or 
debate in the Senate, and over the objection of a bipartisan majority 
of the Senate Judiciary Committee, the same language was enacted as 
Title VIII of the final omnibus bill, with a six-month delayed 
effective date.
  At a hearing before a Judiciary Subcommittee on March 24, 1999, a 
number of law enforcement officials lined up to criticize the new law. 
In particular, they argued that its vague directive to comply with 
rules in each State where the attorney engages in his or her duties 
leaves prosecutors unsure about what rule applies to particular 
conduct. The one certain result of this confusion: Attorneys would 
refrain from taking critically important investigative steps or would 
leave law enforcement officers to make their own decisions about whom 
and how to investigate.
  The McDade law went into effect on April 19, 1999. Since then, all of 
law enforcement's concerns about the McDade law have come to pass.
  In floor statements on May 25 and September 14, 2000, I described 
some of the devastating effects that the McDade law is having on 
Federal law enforcement efforts across the country. You will recall 
some of the disturbing facts I described:
  In Oregon, Federal prosecutors will no longer authorize undercover 
operations, and the FBI was forced to shut down its Innocent Images 
initiative, which targets child pornography and exploitation.

[[Page S9510]]

  In California, a grand jury investigation into an airline's safety 
and maintenance practices was stalled for many months because of the 
McDade law's interplay with that State's ethics rules. After about a 
year of investigation, one of the airline's planes crashed, after 
experiencing mechanical problems on the first leg of its trip.
  In another State, the FBI was stymied in a child murder investigation 
because of a State Bar ethics rule that went far beyond what is 
required by established Supreme Court and Federal appellate case law.
  There are other recent examples. In one case, the FBI has had to 
close an investigation into allegations of fraud committed by the 
officials of a city with regard to FEMA disaster funds after the city's 
attorney invoked the McDade law to prohibit FBI agents from 
interviewing any city employees. In another case, counsel for an 
aviation company has used the McDade law to prevent the FBI from 
working with company employees who are willing to provide information 
and evidence concerning allegations that the company has been selling 
defective aircraft engine parts to military and civilian airlines.
  Of more immediate urgency, the McDade law seriously threatens to 
impede the terrorism investigation into the events of September 11, 
2001. In this widespread, international investigation, the McDade law 
will subject Justice Department attorneys to multiple and different 
attorney conduct rules, either because the attorneys working on or 
supervising the investigation are admitted to practice in more than one 
state, or because they are seeking assistance through court processes, 
search warrants; material witness warrants; criminal complaints; and 
grand jury subpoenas, in more than one Federal district court, each of 
which adopts its own set of attorney conduct rules. How are Justice 
Department attorneys meant to resolve conflicts in those rules in a 
manner that is reliable without unduly delaying this critical 
investigation?
  There can no longer be any serious doubt about the need for 
corrective legislation. We cannot afford to wait until the McDade law 
impedes the investigation into last Tuesday's attacks before taking 
action.
  Supporters of the McDade law have argued that Federal prosecutors are 
no worse off than their State counterparts, who have long been subject 
to State ethics rules. This is simply not the case. State prosecutors 
practice almost entirely before the courts of the State in which they 
are licensed: they do not practice in Federal court. Thus, they are 
subject to only one set of ethics rules, the rules applied by the 
courts before which they appear and the rules of the State in which 
they are licensed are one and the same. This is not true for Federal 
prosecutors, who are licensed by a State but practice in Federal courts 
and must comport with local Federal court ethics rules. Thus, Federal 
prosecutors are generally subject to at least two sets of potentially 
conflicting ethics rules.
  Additionally, Federal prosecutors frequently work across State lines. 
This is not true of State prosecutors, whose work is generally confined 
to a single State. Under the McDade law, Federal prosecutors must 
comport with the State ethics rules of each State where they engage in 
their duties, which may be different than the rules of either the 
licensing State or the local Federal court. This means that Federal 
prosecutors may be subject to three or more sets of ethics rules with 
respect to the same conduct, including two or more sets of State ethics 
rules that do not take into consideration the special needs and 
interests of the United States in investigating and prosecuting 
violations of Federal law.
  In any event, even assuming that State Bar rules are causing serious 
problems for State prosecutors as well as Federal prosecutors, that is 
a matter for the States, not for Congress. Our responsibility is to 
ensure the effective enforcement of the Federal criminal laws, and that 
is what my legislation seeks to accomplish.
  The Professional Standards for Government Attorneys Act adheres to 
the basic premise of the McDade law: The Department of Justice does not 
have the authority it has long claimed to write its own ethics rules. 
This legislation establishes that the Department may not unilaterally 
exempt Federal trial lawyers from the standards of professional 
responsibility adopted by the Federal courts. Federal courts are the 
more appropriate body to establish such standards for Federal 
prosecutors, not only because Federal courts have traditional authority 
to establish such standards for lawyers generally, but because the 
Department lacks the requisite objectivity.
  The first part of this bill embodies the traditional understanding 
that when lawyers handle cases before a Federal court, they should be 
subject to the Federal court's standards of professional 
responsibility, and not to the possibly inconsistent standards of other 
jurisdictions. By incorporating this ordinary choice-of-law principle, 
the bill preserves the Federal courts' traditional authority to oversee 
the professional conduct of Federal trial lawyers, including Federal 
prosecutors. It thus avoids the uncertainties presented by the McDade 
law, which potentially subjects Federal prosecutors to State laws, 
rules of criminal procedure, and judicial decisions which differ from 
existing Federal law.
  Another part of the bill specifically addresses the situation in 
Oregon, where a state court ruling has seriously impeded the ability of 
Federal agents to engage in undercover operations and other covert 
activities. Such activities are legitimate and essential crimefighting 
tools. The Professional Standards for Government Attorneys Act ensures 
that these tools will be available to combat terrorism.
  Finally, the bill addresses the most pressing contemporary question 
of government attorney ethics, namely, the question of which rule 
should govern government attorneys' communications with represented 
persons. It asks the Judicial Conference of the United States to submit 
to the Supreme Court a proposed uniform national rule to govern this 
area of professional conduct, and to study the need for additional 
national rules to govern other areas in which the proliferation of 
local rules may interfere with effective Federal law enforcement. The 
Rules Enabling Act process is the ideal one for developing such rules, 
both because the Federal judiciary traditionally is responsible for 
overseeing the conduct of lawyers in Federal court proceedings, and 
because this process would best provide the Supreme Court an 
opportunity fully to consider and objectively to weigh all relevant 
considerations.
  The problems posed to Federal law enforcement investigations and 
prosecutions by the McDade law are real and urgent. The Professional 
Standards for Government Attorneys Act provides a reasonable and 
measured alternative: It preserves the traditional role of the State 
courts in regulating the conduct of attorneys licensed to practice 
before them, while ensuring that Federal prosecutors and law 
enforcement agents will be able to use traditional Federal 
investigative techniques. I urge Congress to move quickly to pass this 
corrective legislation before more cases are compromised.
  I ask unanimous consent that the bill and a summary of the bill be 
printed in the Record.
  There being no objection, the additional material ordered to be 
printed in the Record, as follows:

                                S. 1437

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Professional Standards for 
     Government Attorneys Act of 2001''.

     SEC. 2. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.

       (a) Section 530B of title 28, United States Code, is 
     amended to read as follows:

     ``SEC. 530B. PROFESSIONAL STANDARDS FOR GOVERNMENT ATTORNEYS.

       ``(a) Definitions.--In this section:
       ``(1) Government attorney.--The term `Government 
     attorney'----
       ``(A) means the Attorney General; the Deputy Attorney 
     General; the Solicitor General; the Associate Attorney 
     General; the head of, and any attorney employed in, any 
     division, office, board, bureau, component, or agency of the 
     Department of Justice; any United States Attorney; any 
     Assistant United States Attorney; and Special Assistant to 
     the Attorney General or Special Attorney appointed under 
     section 515; any special Assistant United States Attorney 
     appointed under section 543 who is authorized to conduct 
     criminal or civil law enforcement investigations or 
     proceedings on behalf of the United States; any other 
     attorney employed

[[Page S9511]]

     by the Department of Justice who is authorized to conduct 
     criminal or civil law enforcement proceedings on behalf of 
     the United States; any independent counsel, or employee of 
     such counsel, appointed under chapter 40; and any outside 
     special counsel, or employee of such counsel, as may be duly 
     appointed by the Attorney General; and
       ``(B) does not include any attorney employed as an 
     investigator or other law enforcement agent by the Department 
     of Justice who is not authorized to represent the United 
     States in criminal or civil law enforcement litigation or to 
     supervise such proceedings.
       ``(2) State.--The term `State' includes a Territory and the 
     District of Columbia.
       ``(b) Choice of Law.--Subject to any uniform national rule 
     prescribed by the Supreme Court under chapter 131, the 
     standards of professional responsibility that apply to a 
     Government attorney with respect to the attorney's work for 
     the Government shall be--
       ``(1) for conduct in connection with a proceeding in or 
     before a court, the standards of professional responsibility 
     established by the rules and decisions of that court;
       ``(2) for conduct reasonably intended to lead to a 
     proceeding in or before a court, the standards of 
     professional responsibility established by the rules and 
     decisions of the court in or before which the proceeding is 
     intended to be brought; and
       ``(3) for all other conduct, the standards of professional 
     responsibility established by the rules and decisions of the 
     Federal district court for the judicial district in which the 
     attorney principally performs his or her official duties.
       ``(c) Licensure.--A Government attorney (except foreign 
     counsel employed in special cases)----
       ``(1) shall be duly licensed and authorized to practice as 
     an attorney under the laws of a State; and
       ``(2) shall not be required to be a member of the bar of 
     any particular State.
       ``(d) Covert Activities.--Notwithstanding any provision of 
     State law, including disciplinary rules, statutes, 
     regulations, constitutional provisions, or case law, a 
     Government attorney may, for the purpose of enforcing Federal 
     law, provide legal advice, authorization, concurrence, 
     direction, or supervision on conducting covert activities, 
     and participate in such activities, even though such 
     activities may require the use of deceit or 
     misrepresentation.
       ``(e) Admissibility of Evidence.--No violation of any 
     disciplinary, ethical, or professional conduct rule shall be 
     construed to permit the exclusion of otherwise admissible 
     evidence in any Federal criminal proceeding.
       ``(f) Rulemaking Authority.--The Attorney General shall 
     make and amend rules of the Department of Justice to ensure 
     compliance with this section.''.
       (b) Technical and Conforming Amendment.--The analysis for 
     chapter 31 of title 28, United States Code, is amended, in 
     the item relating to section 530B, by striking ``Ethical 
     standards for attorneys for the Government'' and inserting 
     ``Professional standards for Government attorneys''.
       (c) Reports.----
       (1) Uniform rule.--In order to encourage the Supreme Court 
     to prescribe, under chapter 131 of title 28, United States 
     Code, a uniform national rule for Government attorneys with 
     respect to communications with represented persons and 
     parties, not later than 1 year after the date of enactment of 
     this Act, the Judicial Conference of the United States shall 
     submit to the Chief Justice of the United States a report, 
     which shall include recommendations with respect to amending 
     the Federal Rules of Practice and Procedure to provide for 
     such a uniform national rule.
       (2) Actual or potential conflicts.--Not later than 2 years 
     after the date of enactment of this Act, the Judicial 
     Conference of the United States shall submit to the Chairmen 
     and Ranking Members of the Committees on the Judiciary of the 
     House of Representatives and the Senate a report, which shall 
     include----
       (A) a review of any areas of actual or potential conflict 
     between specific Federal duties related to the investigation 
     and prosecution of violations of Federal law and the 
     regulation of Government attorneys (as that term is defined 
     in section 530B of title 28, United States Code, as amended 
     by this Act) by existing standards of professional 
     responsibility; and
       (B) recommendations with respect to amending the Federal 
     Rules of Practice and Procedure to provide for additional 
     rules governing attorney conduct to address any areas of 
     actual or potential conflict identified pursuant to the 
     review under subparagraph (A).
       (3) Report considerations.--In carrying out paragraphs (1) 
     and (2), the Judicial Conference of the United States shall 
     take into consideration----
       (A) the needs and circumstances of multiforum and 
     multijurisdictional litigation;
       (B) the special needs and interests of the United States in 
     investigating and prosecuting violations of Federal criminal 
     and civil law; and
       (C) practices that are approved under Federal statutory or 
     case law or that are otherwise consistent with traditional 
     Federal law enforcement techniques.
                                  ____


Summary of the ``Professional Standards for Government Attorneys Act of 
                                 2001''


                  I. Amendments to 28 U.S.C. Sec. 530B

       The first part of the bill supersedes the McDade law with a 
     new 28 U.S.C. Sec. 530B, consisting of six subsections:
       Subsection (a) codifies the definition of ``government 
     attorney,'' by reference to the current Department of Justice 
     regulations.
       Subsection (b) establishes clear choice-of-law rules for 
     government attorneys with respect to standards of 
     professional responsibility, modeled on Rule 8.5(b) of the 
     ABA's Model Rules of Professional Conduct. These choice-of-
     law rules apply only with respect to government attorney 
     conduct that is related to the attorney's work for the 
     government. Under these rules, an attorney who is handling a 
     case in court would be subject to the professional standards 
     established by the rules and decisions of that court; an 
     attorney who is engaged in conduct reasonably intended to 
     lead to a proceeding in court, such as conduct in connection 
     with a grand jury or civil investigation, would be subject to 
     the professional standards of the court in which the 
     proceeding is intended to be brought; in other circumstances, 
     where no court has clear supervisory authority over 
     particular conduct, an attorney would be subject to the 
     professional standards established by rules and decisions of 
     the United States District Court for the judicial district in 
     which the attorney principally performs his official duties. 
     In the event that the Supreme Court promulgates one or more 
     uniform national rules governing the professional conduct of 
     government attorneys practicing before the Federal courts, 
     the terms of the uniform national rule would apply.
       Subsection (c) clarifies the law regarding the licensing of 
     government attorneys, an issue that is currently addressed 
     through the appropriations process. Since 1979, 
     appropriations bills for the Department of Justice have 
     incorporated by reference section 3(a) of Pub. L. 96-132, 
     which states: ``None of the sums authorized to be 
     appropriated by this Act may be used to pay the compensation 
     of any person employed after the date of the enactment of 
     this Act as an attorney (except foreign counsel employed in 
     special cases) unless such person shall be duly licensed and 
     authorized to practice as an attorney under the laws of a 
     State, territory, or the District of Columbia.'' Subsection 
     (c) codifies this longstanding requirement, and also makes 
     clear that government attorneys need not be licensed under 
     the laws of any state in particular. The clarification is 
     necessary to ensure that local rules regarding state 
     licensure are not applied to federal prosecutors. Cf. United 
     States v. Straub, No. 5:99 Cr. 10 (N.D. W. Va. June 14, 1999) 
     (granting defense motion to disqualify the Assistant United 
     States Attorney because he was not licensed to practice in 
     West Virginia).
       Subsection (d) specifically addresses the situation in 
     Oregon, where a state court ruling has seriously impeded the 
     ability of Federal agents to engage in undercover operations 
     and other covert activities. See In re Gatti, 330 Or. 517 
     (2000). This subsection ensures that these traditional law 
     enforcement tools will be available to federal prosecutors 
     and agents.
       Subsection (e) makes clear that violations of professional 
     conduct rules by government attorneys shall not be construed 
     to permit the exclusion of otherwise admissible evidence in 
     any Federal criminal proceeding.
       Subsection (f), like the McDade law, authorizes the 
     Attorney General to make and amend rules to assure compliance 
     with section 530B.


           II. Judicial Conference Report and Recommendations

       The second part of the bill directs the Judicial Conference 
     of the United States to prepare two reports regarding the 
     regulation of government attorney conduct. Both reports would 
     contain recommendations with respect to the advisability of 
     uniform national rules.
       The first report would address the issue of contacts with 
     represented persons, which has generated the most serious 
     controversy regarding the professional conduct of government 
     attorneys. See, e.g., State v. Miller, 600 N.W.2d 457 (Minn. 
     1999); United States v. McDonnell Douglas Corp., 132 F.3d 
     1252 (8th Cir. 1998); United States v. Lopez, 4 F.3d 1455 
     (9th Cir. 1993); United States v. Hammad, 858 F.2d 834 (2d 
     Cir. 1988).
       Rule 4.2 of the ABA's Model Rules of Professional Conduct 
     and analogous rules adopted by state courts and bar 
     associations place strict limits on when a lawyer may 
     communicate with a person he knows to be represented by 
     another lawyer. These ``no contact'' rules preserve fairness 
     in the adversarial system and the integrity of the attorney-
     client relationship by protecting parties, potential parties 
     and witnesses from lawyers who would exploit the disparity in 
     legal skill between attorneys and lay people and damage the 
     position of the represented person. Courts have given a wide 
     variety of interpretations to these rules, however, creating 
     uncertainty and confusion as to how they apply in criminal 
     cases and to government attorneys. For example, courts have 
     disagreed about whether these rules apply to Federal 
     prosecutor contacts with represented persons in non-custodial 
     pre-indictment situations, in custodial pre-indictment 
     situations, and in post-indictment situations involving the 
     same or different matters underlying the charges.
       Lawyers who practice in federal court--and federal 
     prosecutors in particular--have a legitimate interest in 
     being governed by a single set of professional standards 
     relating to

[[Page S9512]]

     frequently recurring questions of professional conduct. 
     Further, any rule governing federal prosecutors' 
     communications with represented persons should be respectful 
     of legitimate law enforcement interest as well as the 
     legitimate interests of the represented individuals. Absent 
     clear authority to engage in communications with represented 
     persons, when necessary and under limited circumstances 
     carefully circumscribed by law, the government is 
     significantly hampered in its ability to detect and prosecute 
     Federal offenses.
       The proposed legislation charges the Judicial Conference 
     with developing a uniform national rule governing government 
     attorney contacts with represented persons. Given the 
     advanced stage of dialogue among the interested parties, the 
     Department of Justice, the ABA, the Federal and State courts, 
     and others, the Committee is confident that a satisfactory 
     rule can be developed within the one-year time frame 
     established by the bill.
       While the ``no contact'' rule poses the most serious 
     challenge to effective law enforcement, other rules of 
     professional responsibility may also threaten to interfere 
     with legitimate investigations. The proposed legislation 
     therefore directs the Judicial Conference to prepare a second 
     report addressing broader questions regarding the regulation 
     of government attorney conduct. This report, to be completed 
     within two years, would review any areas of conflict or 
     potential conflict between federal law enforcement techniques 
     and existing standards of professional responsibility, and 
     make recommendations concerning the need for additional 
     national rules.

  Mr. WYDEN. Mr. President, I wish to bring to the Senate's attention a 
serious legal matter currently impeding Federal criminal investigations 
in many States, especially Oregon, and legislation that I am joining 
the Chairman of the Judiciary Committee, Senator Leahy, in introducing 
today to correct this problem.
  Enacted at the end of the 105th Congress as Section 801 of the 
Omnibus Appropriations Bill (Public Law 105-277), the Citizens 
Protection Act, commonly known as the ``McDade law,'' has hampered 
Federal law enforcement efforts aimed at combating child pornography, 
drug trafficking, and terrorism, particularly in the State of Oregon.
  In the Gatti case [Gatti, 330 Or. 517 (2000)] in early 2000, the 
Oregon Supreme Court held that a private attorney had acted unethically 
by intentionally misrepresenting his identity to the employees of a 
medical records review company called Comprehensive Medical Review, 
CMR. The attorney, who represented a client who had filed a claim with 
an insurance company, believed that the insurance company was using CMR 
to generate fraudulent medical reports that the insurer then used to 
deny or limit claims. The attorney called CMR and falsely represented 
himself to be a chiropractor seeking employment with the company. The 
attorney was hoping to obtain information from CMR that he could use in 
a subsequent lawsuit against CMR and the insurance company.
  The Oregon Supreme Court upheld the State Bar's view that the 
attorney's conduct violated two Oregon State Bar disciplinary rules and 
an Oregon statute, specifically, a disciplinary rule prohibiting 
conduct involving dishonesty, fraud, deceit or misrepresentation; a 
disciplinary rule prohibiting knowingly making a false statement of law 
or fact; and a statute prohibiting willful deceit or misconduct in the 
legal profession. In doing so, the court rejected the attorney's 
defense that his misrepresentations were justifiable because he was 
engaged in an investigation to seek evidence of fraud and other 
wrongful conduct. The court expressly ruled that there was no 
`prosecutorial exception' to either the State Bar disciplinary rules or 
the Oregon statute. As a result of this decision, prosecutors in Oregon 
may not concur or participate in undercover and other covert law 
enforcement techniques, even if the law enforcement technique at issue 
is lawful under Federal law.
  Soon after this Oregon Supreme Court decision, the Oregon U.S. 
Attorney's Office informed the Oregon FBI Field Office that it would 
not concur or participate in the use of long-used and highly productive 
techniques, such as undercover operations and consensual monitoring of 
telephone calls, that could be disallowed by the State Bar. Several 
important investigations were immediately terminated or severely 
impeded. The Oregon U.S. Attorney even refused to certify the renewal 
of the Portland Innocent Images undercover program, which targets child 
pornography and exploitation. Without the U.S. Attorney's 
certification, the program was shut down and a significant criminal 
problem has since gone unchecked.
  The Federal Investigation Enhancement Act that I am introducing today 
with Senator Leahy will clarify that Federal attorneys may, for the 
purpose of enforcing Federal law, authorize, concur, direct, and 
supervise covert investigations even though such activities may require 
the use of deceit or misrepresentation. In doing so, our legislation 
will make it possible for Federal authorities to continue their efforts 
to investigate and apprehend the most dangerous criminals.
  It is my hope that the Senate will act quickly on this legislation 
that will correct the most serious problems caused by the McDade law. 
It will be of enormous help to Federal law enforcement efforts in 
Oregon and across our country who are prosecuting these crimes.
                                 ______