[Congressional Record Volume 148, Number 53 (Thursday, May 2, 2002)]
[Senate]
[Pages S3844-S3881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. KENNEDY (for himself, Mr. Brownback, Mr. Hatch, Mr. Helms, 
        Mr. Edwards, Mrs. Feinstein, Mr. DeWine, Mr. Durbin, Mr. Hagel, 
        Mr. Graham, and Mrs. Clinton):
  S. 2444. A bill to amend the Immigration and Nationality Act to 
improve the administration and enforcement of the immigration laws, to 
enhance the security of the United States, and to establish the Office 
of Children's Services within the Department of Justice, and for other 
purposes; to the Committee on the Judiciary.
  Mr. KENNEDY. Mr. President, I'm honored to join Senator Brownback and 
my other colleagues in introducing the Immigration Reform, 
Accountability, and Security Enhancement Act of 2002, which will 
strengthen our national security by bringing our immigration system 
into the 21st century. Recently, the Senate took an important step by 
unanimously passing legislation which strengthens the security of our 
borders, improves our ability to screen foreign nationals, and improves 
coordination among the several responsible entities. Restructuring the 
INS is the next critical step in establishing an agency that can act 
effectively and fairly to secure our borders and provide better 
services to immigrants.
  There is strong bipartisan agreement that the INS must be reformed. 
But restructuring must be done correctly. The INS handles the 
enforcement of our immigration laws and the adjudication of benefits 
and services. INS's dual missions have long suffered under the current 
structure.
  On the enforcement side, September 11 clearly demonstrated that our 
immigration laws are being applied inconsistently. Some of the 
terrorists were residing here legally, others had overstayed their 
visas, and the status of others is still unknown. Improving the 
structure of the INS will help ensure

[[Page S3845]]

greater accountability and the consistent and effective enforcement of 
our immigration laws.
  The INS service functions have also suffered. Courteous behavior has 
too often been the exception, rather than the rule. Application fees 
steadily increase, yet poor service and long delays have persisted. 
Massive backlogs have forced individuals to languish for years waiting 
for their naturalization and permanent resident applications to be 
processed. Files have been lost. Fingerprints have expired.
  To address the distinct and at times conflicting responsibilities, 
successful reform must separate the enforcement functions from the 
service and adjudication functions. The result will be increased 
accountability and efficiency, as well as clarity of purpose.
  But, meaningful reform must also include a strong central authority 
to coordinate these dual functions. Our legislation requires that one 
high-level person take charge of the Nation's immigration laws to 
ensure uniform policy determinations and implementation, 
accountability, coordination, and fiscal responsibility. The new 
agency's director, like the FBI director, will have direct access to 
high-level officials in the executive branch.
  I congratulate the House of Representatives for acting quickly and 
decisively on restructuring legislation. The House bill abolishes the 
Immigration and Naturalization Service and establishes separate bureaus 
for services and enforcement which would operate as parallel structures 
with limited coordination. An Associate Attorney General would oversee 
the two bureaus. The goals of the House bill are very similar to our 
bill, and I look forward to working with my colleagues in the House and 
the administration to pass effective legislation and put these reforms 
into law.
  The overarching difference between our two bills is the power and 
authority vested in the agency head and the coordination between the 
two bureaus. Our bill expands and improves the coordination between the 
bureaus through strong central leadership.
  The Immigration Reform, Accountability, and Security Enhancement Act 
establishes a Director of Immigration Affairs, a Deputy Director 
heading the Bureau of Services and Adjudications, and a Deputy Director 
heading the Bureau of Enforcement and Border Affairs. The Director will 
serve as the principal advisor to the Attorney General in developing 
and implementing U.S. immigration law and policy. The Director will be 
the strong central authority over the two bureaus, and will be able to 
integrate information systems, policies, and administrative 
infrastructure.
  The coordination and harmonization of policy, services and 
enforcement will also be enhanced by the establishment of several 
offices which will assist the two bureaus. The General Counsel, 
appointed by the Attorney General in consultation with the Agency 
Director, will serve as the chief legal officer for the Agency, 
providing specialized advice on all legal matters involving U.S. 
immigration laws. A Chief Financial Officer will direct, supervise, and 
coordinate all budgetary duties for the Agency. A Chief of Policy and 
Strategy will promote a national immigration policy, identify 
priorities and coordinate policy within the Agency. A Chief of 
Congressional, Intergovernmental, and Public Affairs will be the 
central liaison with Congress and other Federal agencies, and the 
media.
  This bill will enhance the accountability of the new Agency and will 
renew our national commitment to civil rights in the immigration 
process. This bill establishes an autonomous Office of the Ombudsman to 
be located within the Department of Justice. The Ombudsman will be 
appointed by and report directly to the Attorney General. The Ombudsman 
will identify and report on serious or systematic problems encountered 
by the public and will assist individuals in resolving problems with 
the Agency. The Ombudsman also will report annually to Congress on the 
steps taken to correct the problems and propose changes in the 
practices of the Agency to correct such problems.
  The vital role of statistical information in the modern age is 
recognized. This bill establishes a Director of Immigration Statistics, 
appointed by the Attorney General, who will report directly to the 
Bureau of Justice Statistics of the Department of Justice. Using 21st 
century technology, the newly established Office of Immigration 
Statistics will not only record and analyze statistical information, 
but will also establish standards of reliability and validation and 
will coordinate with the Service Bureau, the Enforcement Bureau, and 
the Executive Office for Immigration Review.
  This legislation also recognizes the need for alternatives to the 
detention of asylum seekers. The U.S. asylum program is a bipartisan 
success story, it provides new hope and new life for the persecuted and 
oppressed and it advances our foreign policy objectives by protecting 
human rights and promoting the American dream of opportunity. The 
United States is a leader in providing asylum to refugees worldwide. 
Still, we constantly need to strive to improve this very important 
program. This bill would require the consideration of specific 
alternatives to detention, including parole with appearance assistance 
provided by private nonprofit voluntary agencies.
  Finally, we are including much needed reform to address the treatment 
of unaccompanied minors in INS custody. I commend Senator Feinstein's 
long-standing commitment to this important issue and am honored to 
include her legislation, the Unaccompanied Alien Child Protection Act, 
as part of our proposal to restructure the INS. These provisions will 
address many of the problems facing unaccompanied minors and will help 
bring U.S. treatment of unaccompanied alien children into line with 
international standards. The bill establishes a new Office of 
Children's Services within the Department of Justice to ensure that 
Federal authorities recognize the special needs and circumstances of 
unaccompanied alien children when making decisions regarding their 
custody and repatriation and ensures that unaccompanied alien children 
have access to appoint counsel and guardians ad litem.
  This bill is needed to ensure that our nation is prepared to meet the 
challenges that are before us. The Immigration Reform, Accountability, 
and Security Enhancement Act will help remedy many of the problems that 
currently plague the Immigration and Naturalization Service and will 
ensure that INS's responsibilities are effectively addressed and 
coordinated, executed with efficiency and courtesy, and uphold our 
great tradition of immigration and refugee protection.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2444

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--Titles I through III of this Act may be 
     cited as the ``Immigration Reform, Accountability, and 
     Security Enhancement Act of 2002''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Purposes.
Sec. 3. Definitions.

                  TITLE I--IMMIGRATION AFFAIRS AGENCY

                        Subtitle A--Organization

Sec. 101. Abolition of INS.
Sec. 102. Establishment of Immigration Affairs Agency.
Sec. 103. Director of Immigration Affairs.
Sec. 104. Bureau of Immigration Services and Adjudications.
Sec. 105. Bureau of Enforcement and Border Affairs.
Sec. 106. Office of the Ombudsman within the Department of Justice.
Sec. 107. Office of Immigration Statistics within the Bureau of Justice 
              Statistics.
Sec. 108. Clerical amendments.

                   Subtitle B--Transition Provisions

Sec. 111. Transfer of functions.
Sec. 112. Transfer of personnel and other resources.
Sec. 113. Determinations with respect to functions and resources.
Sec. 114. Delegation and reservation of functions.
Sec. 115. Allocation of personnel and other resources.
Sec. 116. Savings provisions.
Sec. 117. Interim service of the Commissioner of Immigration and 
              Naturalization.
Sec. 118. Executive Office for Immigration Review and Attorney General 
              authorities not affected.

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Sec. 119. Other authorities not affected.
Sec. 120. Transition funding.

                       Subtitle C--Effective Date

Sec. 121. Effective date.

                   TITLE II--PERSONNEL FLEXIBILITIES

Sec. 201. Improvements in personnel flexibilities.
Sec. 202. Voluntary separation incentive payments for INS employees.
Sec. 203. Voluntary separation incentive payments for employees of the 
              Immigration Affairs Agency.
Sec. 204. Basis for evaluation of Immigration Affairs Agency employees.
Sec. 205. Effective date.

            TITLE III--UNACCOMPANIED ALIEN CHILD PROTECTION

Sec. 301. Short title.
Sec. 302. Definitions.

                     Subtitle A--Structural Changes

Sec. 311. Establishment of the Office of Children's Services.
Sec. 312. Establishment of Interagency Task Force on Unaccompanied 
              Alien Children.
Sec. 313. Effective date.

   Subtitle B--Custody, Release, Family Reunification, and Detention

Sec. 321. Procedures when encountering unaccompanied alien children.
Sec. 322. Family reunification for unaccompanied alien children with 
              relatives in the United States.
Sec. 323. Appropriate conditions for detention of unaccompanied alien 
              children.
Sec. 324. Repatriated unaccompanied alien children.
Sec. 325. Establishing the age of an unaccompanied alien child.
Sec. 326. Effective date.

  Subtitle C--Access by Unaccompanied Alien Children to Guardians Ad 
                           Litem and Counsel

Sec. 331. Right of unaccompanied alien children to guardians ad litem.
Sec. 332. Right of unaccompanied alien children to counsel.
Sec. 333. Transitional pilot program.
Sec. 334. Effective date; applicability.

 Subtitle D--Strengthening Policies for Permanent Protection of Alien 
                                Children

Sec. 341. Special immigrant juvenile visa.
Sec. 342. Training for officials and certain private parties who come 
              into contact with unaccompanied alien children.
Sec. 343. Effective dates.

            Subtitle E--Children Refugee and Asylum Seekers

Sec. 351. Guidelines for children's asylum claims.
Sec. 352. Exceptions for unaccompanied alien children in asylum and 
              refugee-like circumstances.
Sec. 353. Unaccompanied refugee children.

              Subtitle F--Authorization of Appropriations

Sec. 361. Authorization of appropriations.

                   TITLE IV--MISCELLANEOUS PROVISIONS

Sec. 401. Funding adjudication and naturalization services.
Sec. 402. Application of Internet-based technologies.
Sec. 403. Department of State study on matters relating to the 
              employment of consular officers.
Sec. 404. Alternatives to detention of asylum seekers.

     SEC. 2. PURPOSES.

       The purposes of this Act are--
       (1) to improve the administration and enforcement of the 
     immigration laws of the United States and to enhance the 
     security of the United States;
       (2) to abolish the Immigration and Naturalization Service 
     and to establish the Immigration Affairs Agency within the 
     Department of Justice; and
       (3) to establish the Office of Children's Services within 
     the Department of Justice to coordinate and implement 
     Government actions involving unaccompanied alien children.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Director.--The term ``Director'' means the Director of 
     Immigration Affairs appointed under section 112 of the 
     Immigration and Nationality Act, as added by section 103 of 
     this Act.
       (2) Enforcement bureau.--The term ``Enforcement Bureau'' 
     means the Bureau of Enforcement and Border Affairs 
     established in section 114 of the Immigration and Nationality 
     Act, as added by section 105 of this Act.
       (3) Function.--The term ``function'' includes any duty, 
     obligation, power, authority, responsibility, right, 
     privilege, activity, or program.
       (4) Immigration enforcement functions.--The term 
     ``immigration enforcement functions'' has the meaning given 
     the term in section 114(b)(2) of the Immigration and 
     Nationality Act, as added by section 105 of this Act.
       (5) Immigration laws of the united states.--The term 
     ``immigration laws of the United States'' has the meaning 
     given the term in section 111(e) of the Immigration and 
     Nationality Act, as added by section 102 of this Act.
       (6) Immigration policy, administration, and inspection 
     functions.--The term ``immigration policy, administration, 
     and inspection functions'' has the meaning given the term in 
     section 112(b)(3) of the Immigration and Nationality Act, as 
     added by section 103 of this Act.
       (7) Immigration service and adjudication functions.--The 
     term ``immigration service and adjudication functions'' has 
     the meaning given the term in section 113(b)(2) of the 
     Immigration and Nationality Act, as added by section 104 of 
     this Act.
       (8) Office.--The term ``office'' includes any office, 
     administration, agency, bureau, institute, council, unit, 
     organizational entity, or component thereof.
       (9) Service bureau.--The term ``Service Bureau'' means the 
     Bureau of Immigration Services and Adjudications established 
     in section 113 of the Immigration and Nationality Act, as 
     added by section 104 of this Act.

                  TITLE I--IMMIGRATION AFFAIRS AGENCY

                        Subtitle A--Organization

     SEC. 101. ABOLITION OF INS.

       (a) In General.--The Immigration and Naturalization Service 
     is abolished.
       (b) Repeal.--Section 4 of the Act of February 14, 1903, as 
     amended (32 Stat. 826; relating to the establishment of the 
     Immigration and Naturalization Service), is repealed.

     SEC. 102. ESTABLISHMENT OF IMMIGRATION AFFAIRS AGENCY.

       (a) Establishment.--Title I of the Immigration and 
     Nationality Act (8 U.S.C. 1101 et seq.) is amended--
       (1) by inserting ``CHAPTER 1--DEFINITIONS AND GENERAL 
     AUTHORITIES'' after ``TITLE I--GENERAL''; and
       (2) by adding at the end the following:

                ``CHAPTER 2--IMMIGRATION AFFAIRS AGENCY

     ``SEC. 111. ESTABLISHMENT OF IMMIGRATION AFFAIRS AGENCY.

       ``(a) Establishment.--There is established within the 
     Department of Justice the Immigration Affairs Agency.
       ``(b) Principal Officers.--The principal officers of the 
     Agency are the following:
       ``(1) The Director of Immigration Affairs appointed under 
     section 112.
       ``(2) The Deputy Director of Immigration Services and 
     Adjudications appointed under section 113.
       ``(3) The Deputy Director of Enforcement and Border Affairs 
     appointed under section 114.
       ``(c) Functions.--Under the authority of the Attorney 
     General, the Agency shall perform the following functions:
       ``(1) Immigration policy, administration, and inspection 
     functions, as defined in section 112(b).
       ``(2) Immigration service and adjudication functions, as 
     defined in section 113(b).
       ``(3) Immigration enforcement functions, as defined in 
     section 114(b).
       ``(d) Authorization of Appropriations.--
       ``(1) In general.--There are authorized to be appropriated 
     to the Department of Justice such sums as may be necessary to 
     carry out--
       ``(A) the functions of the Agency; and
       ``(B) such other functions of the Attorney General or the 
     Department of Justice under the immigration laws of the 
     United States as are not covered by subparagraph (A).
       ``(2) Availability of funds.--Amounts appropriated pursuant 
     to paragraph (1) are authorized to remain available until 
     expended.
       ``(e) Immigration Laws of the United States Defined.--In 
     this chapter, the term `immigration laws of the United 
     States' means the following:
       ``(1) This Act.
       ``(2) Such other statutes, Executive orders, regulations, 
     or directives, treaties, or other international agreements to 
     which the United States is a party, insofar as they relate to 
     the admission to, detention in, or removal from the United 
     States of aliens, insofar as they relate to the 
     naturalization of aliens, or insofar as they otherwise relate 
     to the status of aliens.''.
       (b) Conforming Amendments.--(1) The Immigration and 
     Nationality Act (8 U.S.C. 1101 et seq.) is amended--
       (1) by striking section 101(a)(34) (8 U.S.C. 1101(a)(34)) 
     and inserting the following:
       ``(34) The term `Agency' means the Immigration Affairs 
     Agency established by section 111.'';
       (2) in section 101(a)(17) (8 U.S.C. 1101(a)(17)), by 
     striking ``The'' and inserting ``Except as otherwise provided 
     in section 111(e), the; and
       (3) by striking ``Immigration and Naturalization Service'', 
     ``Service'', and ``Service's'' each place they appear and 
     inserting ``Immigration Affairs Agency'', ``Agency'', and 
     ``Agency's'', respectively.
       (4) Section 6 of the Act entitled ``An Act to authorize 
     certain administrative expenses for the Department of 
     Justice, and for other purposes'', approved July 28, 1950 (64 
     Stat. 380), is amended--
       (A) by striking ``Immigration and Naturalization Service'' 
     and inserting ``Immigration Affairs Agency'';
       (B) by striking clause (a); and
       (C) by redesignating clauses (b), (c), (d), and (e) as 
     clauses (a), (b), (c), and (d), respectively.
       (c) References.--Any reference in any statute, 
     reorganization plan, Executive order, regulation, agreement, 
     determination, or other official document or proceeding to 
     the Immigration and Naturalization Service shall be deemed to 
     refer to the Immigration Affairs Agency.

     SEC. 103. DIRECTOR OF IMMIGRATION AFFAIRS.

       (a) In General.--Chapter 2 of title I of the Immigration 
     and Nationality Act, as added by section 102 of this Act, is 
     amended by adding at the end the following:

     ``SEC. 112. DIRECTOR OF IMMIGRATION AFFAIRS.

       ``(a) Director of Immigration Affairs.--The Agency shall be 
     headed by a Director of

[[Page S3847]]

     Immigration Affairs who shall be appointed in accordance with 
     section 103(c) of the Immigration and Nationality Act.
       ``(b) Responsibilities of the Director.--
       ``(1) In general.--The Director shall be charged with any 
     and all responsibilities and authority in the administration 
     of the Agency and of this Act which are conferred upon the 
     Attorney General as may be delegated to the Director by the 
     Attorney General or which may be prescribed by the Attorney 
     General.
       ``(2) Duties.--Subject to the authority of the Attorney 
     General under paragraph (1), the Director shall have the 
     following duties:
       ``(A) Immigration policy.--The Director shall develop and 
     implement policy under the immigration laws of the United 
     States. The Director, shall propose, promulgate, and issue 
     rules, regulations, and statements of policy with respect to 
     any function within the jurisdiction of the Agency.
       ``(B) Administration.--The Director shall have 
     responsibility for--
       ``(i) the administration and enforcement of the functions 
     conferred upon the Agency under section 111(c) of this Act; 
     and
       ``(ii) the administration of the Agency, including the 
     direction, supervision, and coordination of the Bureau of 
     Immigration Services and Adjudications and the Bureau of 
     Enforcement and Border Affairs.
       ``(C) Inspections.--The Director shall be directly 
     responsible for the administration and enforcement of the 
     functions of the Attorney General and the Agency under the 
     immigration laws of the United States with respect to the 
     inspection of aliens arriving at ports of entry of the United 
     States.
       ``(D) Other delegated duties and powers.--The Director 
     shall carry out such other duties and exercise such powers as 
     the Attorney General may prescribe.
       ``(3) Activities.--As part of the duties described in 
     paragraph (2), the Director shall do the following:
       ``(A) Resources and personnel management.--The Director 
     shall manage the resources, personnel, and other support 
     requirements of the Agency.
       ``(B) Information resources management.--Except as 
     otherwise provided in section 305 of the Omnibus Crime 
     Control and Safe Streets Act of 1968, the Director shall 
     manage the information resources of the Agency, including the 
     maintenance of records and databases and the coordination of 
     records and other information within the Agency, and shall 
     ensure that the Agency obtains and maintains adequate 
     information technology systems to carry out its functions.
       ``(C) Coordination of response to civil rights 
     violations.--The Director shall coordinate, with the 
     Assistant Attorney General, the Civil Rights Division, or 
     other officials or components of the Department of Justice, 
     as appropriate, the resolution of immigration issues that 
     involve civil rights violations.
       ``(3) Definition.--In this chapter, the term ``immigration 
     policy, administration, and inspection functions'' means the 
     duties, activities, and powers described in this subsection.
       ``(c) General Counsel.--
       ``(1) In general.--There shall be within the Agency a 
     General Counsel, who shall be appointed by the Attorney 
     General, in consultation with the Director.
       ``(2) Function.--The General Counsel shall--
       ``(A) serve as the chief legal officer for the Agency; and
       ``(B) be responsible for providing specialized legal 
     advice, opinions, determinations, regulations, and any other 
     assistance to the Director with respect to legal matters 
     affecting the Immigration Affairs Agency, and any of its 
     components.
       ``(d) Financial Officers for the Immigration Affairs 
     Agency.--
       ``(1) Chief financial officer.--
       ``(A) In general.--There shall be within the Agency a Chief 
     Financial Officer for the Immigration Affairs Agency. The 
     position of Chief Financial Officer shall be a career 
     reserved position in the Senior Executive Service and shall 
     have the authorities and functions described in section 902 
     of title 31, United States Code, in relation to financial 
     activities of the Agency. For purposes of section 902(a)(1) 
     of such title, the Director shall be deemed to be the head of 
     the agency.
       ``(B) Functions.--The Chief Financial Officer shall be 
     responsible for directing, supervising, and coordinating all 
     budget formulas and execution for the Agency.
       ``(2) Deputy chief financial officer.--The Agency shall be 
     deemed to be an agency for purposes of section 903 of such 
     title (relating to Deputy Chief Financial Officers).
       ``(e) Chief of Policy and Strategy.--
       ``(1) In general.--There shall be within the Agency a Chief 
     of Policy and Strategy. Under the authority of the Director, 
     the Chief of Policy and Strategy shall be responsible for--
       ``(A) establishing national immigration policy and 
     priorities;
       ``(B) performing policy research and analysis on issues 
     arising under the immigration laws of the United States; and
       ``(C) coordinating immigration policy between the Agency, 
     the Service Bureau, and the Enforcement Bureau.
       ``(2) Within the senior executive service.--The position of 
     Chief of Policy and Strategy shall be a Senior Executive 
     Service position under section 5382 of title 5, United States 
     Code.
       ``(f) Chief of Congressional, Intergovernmental, and Public 
     Affairs.--
       ``(1) In general.--There shall be within the Agency a Chief 
     of Congressional, Intergovernmental, and Public Affairs. 
     Under the authority of the Director, the Chief of 
     Congressional, Intergovernmental, and Public Affairs shall be 
     responsible for--
       ``(A) providing to Congress information relating to issues 
     arising under the immigration laws of the United States, 
     including information on specific cases;
       ``(B) serving as a liaison with other Federal agencies on 
     immigration issues; and
       ``(C) responding to inquiries from, and providing 
     information to, the media on immigration issues.
       ``(2) Within the senior executive service.--The position of 
     Chief of Congressional, Intergovernmental, and Public Affairs 
     shall be a Senior Executive Service position under section 
     5382 of title 5, United States Code.''.
       (b) Compensation of the Director.--Section 5314 of title 5, 
     United States Code, is amended by adding at the end the 
     following:
       ``Director of Immigration Affairs, Department of 
     Justice.''.
       (c) Compensation of General Counsel and Chief Financial 
     Officer.--Section 5316 of title 5, United States Code, is 
     amended by adding at the end the following:
       ``General Counsel, Immigration Affairs Agency.
       ``Chief Financial Officer, Immigration Affairs Agency.''.
       (d) Repeals.--The following provisions of law are repealed:
       (1) Section 7 of the Act of March 3, 1891, as amended (26 
     Stat. 1085; relating to the establishment of the office of 
     the Commissioner of Immigration and Naturalization).
       (2) Section 201 of the Act of June 20, 1956 (70 Stat. 307; 
     relating to the compensation of assistant commissioners and 
     district directors).
       (3) Section 1 of the Act of March 2, 1895 (28 Stat. 780; 
     relating to special immigrant inspectors).
       (e) Conforming Amendments.--(1)(A) Section 101(a)(8) of the 
     Immigration and Nationality Act (8 U.S.C. 1101(a)(8)) is 
     amended to read as follows:
       ``(8) The term `Director' means the Director of Immigration 
     Affairs who is appointed under section 103(c).''.
       (B) Except as provided in subparagraph (C), the Immigration 
     and Nationality Act (8 U.S.C. 1101 et seq.) is amended by 
     striking ``Commissioner of Immigration and Naturalization'' 
     and ``Commissioner'' each place they appear and inserting 
     ``Director of Immigration Affairs'' and ``Director'', 
     respectively.
       (C) The amendments made by subparagraph (B) do not apply to 
     references to the ``Commissioner of Social Security'' in 
     section 290(c) of the Immigration and Nationality Act (8 
     U.S.C. 1360(c)).
       (2) Section 103 of the Immigration and Nationality Act (8 
     U.S.C. 1103) is amended--
       (A) in subsection (c), by striking ``Commissioner'' and 
     inserting ``Director'';
       (B) in the section heading, by striking ``Commissioner'' 
     and inserting ``Director'';
       (C) in subsection (d), by striking ``Commissioner'' and 
     inserting ``Director''; and
       (D) in subsection (e), by striking ``Commissioner'' and 
     inserting ``Attorney General''.
       (3) Sections 104 and 105 of the Immigration and Nationality 
     Act (8 U.S.C. 1104, 1105) are amended by striking 
     ``Director'' each place it appears and inserting ``Assistant 
     Secretary of State for Consular Affairs''.
       (4) Section 104(c) of the Immigration and Nationality Act 
     (8 U.S.C. 1104(c)) is amended--
       (A) in the first sentence, by striking ``Passport Office, a 
     Visa Office,'' and inserting ``a Passport Services office, a 
     Visa Services office, an Overseas Citizen Services office,''; 
     and
       (B) in the second sentence, by striking ``the Passport 
     Office and the Visa Office'' and inserting ``the Passport 
     Services office and the Visa Services office''.
       (5) Section 5315 of title 5, United States Code, is amended 
     by striking the following:
       ``Commissioner of Immigration and Naturalization, 
     Department of Justice.''.
       (f) References.--Any reference in any statute, 
     reorganization plan, Executive order, regulation, agreement, 
     determination, or other official document or proceeding to 
     the Commissioner of Immigration and Naturalization shall be 
     deemed to refer to the Director of Immigration Affairs.

     SEC. 104. BUREAU OF IMMIGRATION SERVICES AND ADJUDICATIONS.

       (a) In General.--Chapter 2 of title I of the Immigration 
     and Nationality Act, as added by section 102 and amended by 
     section 103, is further amended by adding at the end the 
     following:

     ``SEC. 113. BUREAU OF IMMIGRATION SERVICES AND ADJUDICATIONS.

       ``(a) Establishment of Bureau.--
       ``(1) In general.--There is established within the Agency a 
     bureau to be known as the Bureau of Immigration Services and 
     Adjudications (in this chapter referred to as the `Service 
     Bureau').
       ``(2) Deputy director.--The head of the Service Bureau 
     shall be the Deputy Director of Immigration Services and 
     Adjudications (in this chapter referred to as the `Deputy 
     Director of the Service Bureau'), who--
       ``(A) shall be appointed by the Attorney General, in 
     consultation with the Director; and
       ``(B) shall report directly to the Director.
       ``(b) Responsibilities of the Deputy Director.--

[[Page S3848]]

       ``(1) In general.--Subject to the authority of the 
     Director, the Deputy Director of the Service Bureau shall 
     administer the immigration service and adjudication functions 
     of the Agency.
       ``(2) Immigration service and adjudication functions 
     defined.--In this chapter, the term `immigration service and 
     adjudication functions' means the following functions under 
     the immigration laws of the United States (as defined in 
     section 111(e)):
       ``(A) Adjudications of petitions for classification of 
     nonimmigrant and immigrant status.
       ``(B) Adjudications of applications for adjustment of 
     status and change of status.
       ``(C) Adjudications of naturalization applications.
       ``(D) Adjudications of asylum and refugee applications.
       ``(E) Adjudications performed at Service centers.
       ``(F) Determinations concerning custody and parole of 
     asylum seekers who do not have prior nonpolitical criminal 
     records and who have been found to have a credible fear of 
     persecution, including determinations under section 236B.
       ``(G) All other adjudications under the immigration laws of 
     the United States (as defined in section 111(e)).
       ``(c) Chief Budget Officer of the Service Bureau.--There 
     shall be within the Service Bureau a Chief Budget Officer. 
     Under the authority of the Chief Financial Officer of the 
     Agency, the Chief Budget Officer of the Service Bureau shall 
     be responsible for monitoring and supervising all financial 
     activities of the Service Bureau.
       ``(d) Quality Assurance.--There shall be within the Service 
     Bureau an Office of Quality Assurance that shall develop 
     procedures and conduct audits to--
       ``(1) ensure that the Agency's policies with respect to the 
     immigration service and adjudication functions of the Agency 
     are properly implemented; and
       ``(2) ensure that Service Bureau policies or practices 
     result in sound records management and efficient and accurate 
     service.
       ``(e) Office of Professional Responsibility.--There shall 
     be within the Service Bureau an Office of Professional 
     Responsibility that shall have the responsibility for 
     ensuring the professionalism of the Service Bureau and for 
     receiving and investigating charges of misconduct or ill 
     treatment made by the public.
       ``(f) Training of Personnel.--The Deputy Director of the 
     Service Bureau, in consultation with the Director, shall have 
     responsibility for determining the training for all personnel 
     of the Service Bureau.''.
       (b) Compensation of Deputy Director of Service Bureau.--
     Section 5315 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``Deputy Director of Immigration Services and 
     Adjudications, Immigration Affairs Agency.''.
       (c) Service Bureau Offices.--
       (1) In general.--The Director, acting through the Deputy 
     Director of the Service Bureau, shall establish Service 
     Bureau offices, including suboffices and satellite offices, 
     in appropriate municipalities and locations in the United 
     States. In the selection of sites for the Service Bureau 
     offices, the Director shall consider the location's proximity 
     and accessibility to the community served, the workload for 
     which that office shall be responsible, whether the location 
     would significantly reduce the backlog of cases in that given 
     geographic area, whether the location will improve customer 
     service, and whether the location is in a geographic area 
     with an increase in the population to be served. The Director 
     shall conduct periodic reviews to assess whether the location 
     and size of the respective Service Bureau offices adequately 
     serve customer service needs.
       (2) Transition provision.--In determining the location of 
     Service Bureau offices, including suboffices and satellite 
     offices, the Director shall first consider maintaining and 
     upgrading offices in existing geographic locations that 
     satisfy the provisions of paragraph (1). The Director shall 
     also explore the feasibility and desirability of establishing 
     new Service Bureau offices, including suboffices and 
     satellite offices, in new geographic locations where there is 
     a demonstrated need.

     SEC. 105. BUREAU OF ENFORCEMENT AND BORDER AFFAIRS.

       (a) In General.--Chapter 2 of title I of the Immigration 
     and Nationality Act, as added by section 102 and amended by 
     sections 103 and 104, is further amended by adding at the end 
     the following:

     ``SEC. 114. BUREAU OF ENFORCEMENT AND BORDER AFFAIRS.

       ``(a) Establishment of Bureau.--
       ``(1) In general.--There is established within the Agency a 
     bureau to be known as the Bureau of Enforcement and Border 
     Affairs (in this chapter referred to as the `Enforcement 
     Bureau').
       ``(2) Deputy director.--The head of the Enforcement Bureau 
     shall be the Deputy Director of the Bureau of Enforcement and 
     Border Affairs (in this chapter referred to as the `Deputy 
     Director of the Enforcement Bureau'), who--
       ``(A) shall be appointed by the Attorney General, in 
     consultation with the Director; and
       ``(B) shall report directly to the Director.
       ``(b) Responsibilities of the Deputy Director.--
       ``(1) In general.--Subject to the authority of the 
     Director, the Deputy Director of the Enforcement Bureau shall 
     administer the immigration enforcement functions of the 
     Agency.
       ``(2) Immigration enforcement functions defined.--In this 
     chapter, the term `immigration enforcement functions' means 
     the following functions under the immigration laws of the 
     United States (as defined in section 111(e)):
       ``(A) The border patrol function.
       ``(B) The detention function, except as specified in 
     section 113(b)(2)(F).
       ``(C) The removal function.
       ``(D) The intelligence function.
       ``(E) The investigations function.
       ``(c) Chief Budget Officer of the Enforcement Bureau.--
     There shall be within the Enforcement Bureau a Chief Budget 
     Officer. Under the authority of the Chief Financial Officer 
     of the Agency, the Chief Budget Officer of the Enforcement 
     Bureau shall be responsible for monitoring and supervising 
     all financial activities of the Enforcement Bureau.
       ``(d) Office of Professional Responsibility.--There shall 
     be within the Enforcement Bureau an Office of Professional 
     Responsibility that shall have the responsibility for 
     ensuring the professionalism of the Enforcement Bureau and 
     receiving charges of misconduct or ill treatment made by the 
     public and investigating the charges.
       ``(e) Office of Quality Assurance.--There shall be within 
     the Enforcement Bureau an Office of Quality Assurance that 
     shall develop procedures and conduct audits to--
       ``(1) ensure that the Agency's policies with respect to 
     immigration enforcement functions are properly implemented; 
     and
       ``(2) ensure that Enforcement Bureau policies or practices 
     result in sound record management and efficient and accurate 
     recordkeeping.
       ``(f) Training of Personnel.--The Deputy Director of the 
     Enforcement Bureau, in consultation with the Director, shall 
     have responsibility for determining the training for all 
     personnel of the Enforcement Bureau.''.
       (b) Compensation of Deputy Director of Enforcement 
     Bureau.--Section 5315 of title 5, United States Code, is 
     amended by adding at the end the following:
       ``Director of Enforcement and Border Affairs, Immigration 
     Affairs Agency.''.
       (c) Enforcement Bureau Offices.--
       (1) In general.--The Director, acting through the Deputy 
     Director of the Enforcement Bureau, shall establish 
     Enforcement Bureau offices, including suboffices and 
     satellite offices, in appropriate municipalities and 
     locations in the United States. In the selection of sites for 
     the Enforcement Bureau offices, the Director shall be 
     selected according to trends in unlawful entry and unlawful 
     presence, alien smuggling, national security concerns, the 
     number of Federal prosecutions of immigration-related 
     offenses in a given geographic area, and other enforcement 
     considerations. The Director shall conduct periodic reviews 
     to assess whether the location and size of the respective 
     Enforcement Bureau offices adequately serve enforcement 
     needs.
       (2) Transition provision.--In determining the location of 
     Enforcement Bureau offices, including suboffices and 
     satellite offices, the Director shall first consider 
     maintaining and upgrading offices in existing geographic 
     locations that satisfy the provisions of paragraph (1). The 
     Director shall also explore the feasibility and desirability 
     of establishing new Enforcement Bureau offices, including 
     suboffices and satellite offices, in new geographic locations 
     where there is a demonstrated need.

     SEC. 106. OFFICE OF THE OMBUDSMAN WITHIN THE DEPARTMENT OF 
                   JUSTICE.

       (a) In General.--Chapter 2 of title I of the Immigration 
     and Nationality Act, as added by section 102 and amended by 
     sections 103, 104 and 105, is further amended by adding at 
     the end the following:

     ``SEC. 115. OFFICE OF THE OMBUDSMAN WITHIN THE DEPARTMENT OF 
                   JUSTICE.

       ``(a) In General.--There is established within the 
     Department of Justice the Office of the Ombudsman, which 
     shall be headed by the Ombudsman.
       ``(b) Ombudsman.--
       ``(1) Appointment.--The Ombudsman shall be appointed by the 
     Attorney General. The Ombudsman shall report directly to the 
     Attorney General.
       ``(2) Compensation.--The Ombudsman shall be entitled to 
     compensation at the same rate as the highest rate of basic 
     pay established for the Senior Executive Service under 
     section 5382 of title 5, United States Code, or, if the 
     Attorney General so determines, at a rate fixed under section 
     9503 of such title.
       ``(c) Functions of Office.--The functions of the Office of 
     the Ombudsman shall include--
       ``(1) to assist individuals in resolving problems with the 
     Agency or any component thereof;
       ``(2) to identify systemic problems encountered by the 
     public in dealings with the Agency or any component thereof;
       ``(3) to propose changes in the administrative practices or 
     regulations of the Agency, or any component thereof, to 
     mitigate problems identified under paragraph (2);
       ``(4) to identify potential changes in statutory law that 
     may be required to mitigate such problems; and
       ``(5) to monitor the coverage and geographic distribution 
     of local offices of the Agency.

[[Page S3849]]

       ``(d) Personnel Actions.--The Ombudsman shall have the 
     responsibility and authority to appoint local or regional 
     representatives of the Ombudsman's Office as in the 
     Ombudsman's judgment may be necessary to address and rectify 
     problems.
       ``(e) Annual Report.--Not later than December 31 of each 
     year, the Ombudsman shall submit a report to the Committee on 
     the Judiciary of the House of Representatives and the 
     Committee on the Judiciary of the Senate on the activities of 
     the Ombudsman during the fiscal year ending in that calendar 
     year. Each report shall contain a full and substantive 
     analysis, in addition to statistical information, and shall 
     contain--
       ``(1) a description of the initiatives that the Office of 
     the Ombudsman has taken on improving the responsiveness of 
     the Agency;
       ``(2) a summary of serious or systemic problems encountered 
     by the public, including a description of the nature of such 
     problems;
       ``(3) an accounting of the items described in paragraphs 
     (1) and (2) for which action has been taken, and the result 
     of such action;
       ``(4) an accounting of the items described in paragraphs 
     (1) and (2) for which action remains to be completed;
       ``(5) an accounting of the items described in paragraphs 
     (1) and (2) for which no action has been taken, the reasons 
     for the inaction, and identify any Agency official who is 
     responsible for such inaction;
       ``(6) recommendations as may be appropriate to resolve 
     problems encountered by the public;
       ``(7) recommendations as may be appropriate to resolve 
     problems encountered by the public, including problems 
     created by backlogs in the adjudication and processing of 
     petitions and applications;
       ``(8) recommendations to resolve problems caused by 
     inadequate funding or staffing; and
       ``(9) such other information as the Ombudsman may deem 
     advisable.
       ``(f) Authorization of Appropriations.--
       ``(1) In general.--There are authorized to be appropriated 
     to the Office of the Ombudsman such sums as may be necessary 
     to carry out its functions.
       ``(2) Availability of funds.--Amounts appropriated pursuant 
     to paragraph (1) are authorized to remain available until 
     expended.''.

     SEC. 107. OFFICE OF IMMIGRATION STATISTICS WITHIN THE BUREAU 
                   OF JUSTICE STATISTICS.

       (a) In General.--Part C of title I of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3731 et seq.) 
     is amended by adding at the end the following new section:

     ``SEC. 305. OFFICE OF IMMIGRATION STATISTICS.

       ``(a) Establishment.--There is established within the 
     Bureau of Justice Statistics of the Department of Justice an 
     Office of Immigration Statistics (in this section referred to 
     as the `Office'), which shall be headed by a Director who 
     shall be appointed by the Attorney General and who shall 
     report to the Director of Justice Statistics.
       ``(b) Responsibilities of Director.--The Director of the 
     Office shall be responsible for the following:
       ``(1) Statistical information.--Maintenance of all 
     immigration statistical information of the Immigration 
     Affairs Agency and the Executive Office for Immigration 
     Review.
       ``(2) Standards of reliability and validity.--Establishment 
     of standards of reliability and validity for immigration 
     statistics collected by the Bureau of Immigration Services 
     and Adjudications, the Bureau of Enforcement and Border 
     Affairs of the Immigration Affairs Agency, and the Executive 
     Office for Immigration Review.
       ``(c) Relation to the Immigration Affairs Agency and the 
     Executive Office for Immigration Review.--
       ``(1) Other authorities.--The Immigration Affairs Agency 
     and the Executive Office for Immigration Review shall provide 
     statistical information to the Office from the operational 
     data systems controlled by the Immigration Affairs Agency and 
     the Executive Office for Immigration Review, respectively, as 
     requested by the Office, for the purpose of meeting the 
     responsibilities of the Director of the Office.
       ``(2) Databases.--The Director of the Office, under the 
     direction of the Attorney General, shall ensure the 
     interoperability of the databases of the Immigration Affairs 
     Agency, the Bureau of Immigration Services and Adjudications, 
     the Bureau of Enforcement and Border Affairs, and the 
     Executive Office for Immigration Review to permit the 
     Director of the Office to perform the duties of such office.
       (b) Transfer of Functions.--There are transferred to the 
     Attorney General, for exercise through the Office of 
     Immigration Statistics established by section 305 of the 
     Omnibus Crime Control and Safe Streets Act of 1968, as added 
     by subsection (a), the functions performed by the Statistics 
     Branch of the Office of Policy and Planning of the 
     Immigration and Naturalization Service, and the statistical 
     functions performed by the Executive Office for Immigration 
     Review, on the day before the effective date of this title.
       (c) Conforming Amendment.--Section 302(c) of the Omnibus 
     Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
     3732(c)) is amended--
       (1) by striking ``and'' at the end of paragraph (22);
       (2) by striking the period at the end of paragraph (23) and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(24) collect, maintain, compile, analyze, publish, and 
     disseminate information and statistics about immigration in 
     the United States, including information and statistics 
     involving the functions of the Immigration Affairs Agency and 
     the Executive Office for Immigration Review.''.

     SEC. 108. CLERICAL AMENDMENTS.

       The table of contents of the Immigration and Nationality 
     Act is amended--
       (1) by inserting after the item relating to the heading for 
     title I the following:

          ``CHAPTER 1--DEFINITIONS AND GENERAL AUTHORITIES'';

       (2) by striking the item relating to section 103 and 
     inserting the following:

``Sec. 103. Powers and duties of the Attorney General and the 
              Director.'';

     and
       (3) by inserting after the item relating to section 106 the 
     following:

                ``Chapter 2--Immigration Affairs Agency

``Sec. 111. Establishment of Immigration Affairs Agency.
``Sec. 112. Director of Immigration Affairs.
``Sec. 113. Bureau of Immigration Services and Adjudications.
``Sec. 114. Bureau of Enforcement and Border Affairs.
``Sec. 115. Office of the Ombudsman within the Department of 
              Justice.''.

                   Subtitle B--Transition Provisions

     SEC. 111. TRANSFER OF FUNCTIONS.

       (a) In General.--All functions under the immigration laws 
     of the United States vested by statute in, or exercised by, 
     the Commissioner of Immigration and Naturalization or the 
     Immigration and Naturalization Service (or any officer, 
     employee, or component thereof), immediately prior to the 
     effective date of this title, are transferred to the 
     Immigration Affairs Agency on such effective date for 
     exercise by the Director in accordance with section 112(b) of 
     the Immigration and Nationality Act, as added by section 103 
     of this Act.
       (b) Exercise of Authorities.--Except as otherwise provided 
     by law, the Director may, for purposes of performing any 
     function transferred to the Immigration Affairs Agency under 
     subsection (a), exercise all authorities under any other 
     provision of law that were available with respect to the 
     performance of that function to the official responsible for 
     the performance of the function immediately before the 
     effective date of the transfer of the function pursuant to 
     this title.

     SEC. 112. TRANSFER OF PERSONNEL AND OTHER RESOURCES.

       Subject to section 1531 of title 31, United States Code, 
     upon the effective date of this title, there are transferred 
     to the Director for appropriate allocation in accordance with 
     section 115--
       (1) the personnel of the Department of Justice employed in 
     connection with the functions transferred pursuant to this 
     title (and such other functions that the Attorney General 
     determines are properly related to the functions of the 
     Immigration Affairs Agency and that would, if so transferred, 
     further the purposes of the Agency); and
       (2) the assets, liabilities, contracts, property, records, 
     and unexpended balance of appropriations, authorizations, 
     allocations, and other funds employed, held, used, arising 
     from, available to, or to be made available to the 
     Immigration and Naturalization Service in connection with the 
     functions transferred pursuant to this title.

     SEC. 113. DETERMINATIONS WITH RESPECT TO FUNCTIONS AND 
                   RESOURCES.

       The Director shall determine, in accordance with the 
     corresponding criteria set forth in sections 112(b), 113(b), 
     and 114(b) of the Immigration and Nationality Act (as added 
     by this Act)--
       (1) which of the functions transferred under section 111 
     are--
       (A) immigration policy, administration, and inspection 
     functions;
       (B) immigration service and adjudication functions; and
       (C) immigration enforcement functions; and
       (2) which of the personnel, assets, liabilities, grants, 
     contracts, property, records, and unexpended balances of 
     appropriations, authorizations, allocations, and other funds 
     transferred under section 112 were held or used, arose from, 
     were available to, or were made available, in connection with 
     the performance of the respective functions specified in 
     paragraph (1) immediately prior to the effective date of this 
     title.

     SEC. 114. DELEGATION AND RESERVATION OF FUNCTIONS.

       (a) In General.--
       (1) Delegation to the bureaus.--Subject to section 
     112(b)(1) of the Immigration and Nationality Act (as added by 
     section 103 of this Act), the Director shall delegate--
       (A) immigration service and adjudication functions to the 
     Deputy Director of the Service Bureau; and
       (B) immigration enforcement functions to the Deputy 
     Director of the Enforcement Bureau.
       (2) Reservation of functions.--Subject to section 112(b)(1) 
     of the Immigration and Nationality Act (as added by section 
     103 of this Act), immigration policy, administration, and 
     inspection functions shall be reserved for exercise by the 
     Director.
       (b) Nonexclusive Delegations Authorized.--Delegations made 
     under subsection (a)

[[Page S3850]]

     may be on a nonexclusive basis as the Director may determine 
     may be necessary to ensure the faithful execution of the 
     Director's responsibilities and duties under law.
       (c) Effect of Delegations.--Except as otherwise expressly 
     prohibited by law or otherwise provided in this title, the 
     Director may make delegations under this subsection to such 
     officers and employees of the office of the Director, the 
     Service Bureau, and the Enforcement Bureau, respectively, as 
     the Director may designate, and may authorize successive 
     redelegations of such functions as may be necessary or 
     appropriate. No delegation of functions under this subsection 
     or under any other provision of this title shall relieve the 
     official to whom a function is transferred pursuant to this 
     title of responsibility for the administration of the 
     function.
       (d) Statutory Construction.--Nothing in this Act may be 
     construed to limit the authority of the Director, acting 
     directly or by delegation under the Attorney General, to 
     establish such offices or positions within the Immigration 
     Affairs Agency, in addition to those specified by this Act, 
     as the Director may determine to be necessary to carry out 
     the functions of the Agency.

     SEC. 115. ALLOCATION OF PERSONNEL AND OTHER RESOURCES.

       (a) Authority of the Director.--
       (1) In general.--Subject to paragraph (2) and section 
     114(b), the Director shall make allocations of personnel, 
     assets, liabilities, grants, contracts, property, records, 
     and unexpended balances of appropriations, authorizations, 
     allocations, and other funds held, used, arising from, 
     available to, or to be made available in connection with the 
     performance of the respective functions, as determined under 
     section 113, in accordance with the delegation of functions 
     and the reservation of functions made under section 114.
       (2) Limitation.--Unexpended funds transferred pursuant to 
     section 112 shall be used only for the purposes for which the 
     funds were originally authorized and appropriated.
       (b) Authorities of Attorney General.--
       (1) Incidental transfers.--The Attorney General may make 
     such additional incidental dispositions of personnel, assets, 
     liabilities, grants, contracts, property, records, and 
     unexpended balances of appropriations, authorizations, 
     allocations, and other funds held, used, arising from, 
     available to, or to be made available in connection with such 
     functions, as may be necessary to carry out the provisions of 
     this title, and the amendments made by this title. The 
     Attorney General shall provide for such further measures and 
     dispositions as may be necessary to effectuate the purposes 
     of this title and the amendments made by this title.
       (2) Authority to terminate affairs of ins.--The Attorney 
     General shall provide for the termination of the affairs of 
     the Immigration and Naturalization Service and such further 
     measures and dispositions as may be necessary to effectuate 
     the purposes of this Act.
       (c) Treatment of Shared Resources.--The Director is 
     authorized to provide for an appropriate allocation, or 
     coordination, or both, of resources involved in supporting 
     shared support functions for the office of the Director, the 
     Service Bureau, the Enforcement Bureau, and offices within 
     the Department of Justice. The Director shall maintain 
     oversight and control over the shared computer databases and 
     systems and records management.

     SEC. 116. SAVINGS PROVISIONS.

       (a) Legal Documents.--All orders, determinations, rules, 
     regulations, permits, grants, loans, contracts, recognition 
     of labor organizations, agreements, including collective 
     bargaining agreements, certificates, licenses, and 
     privileges--
       (1) that have been issued, made, granted, or allowed to 
     become effective by the President, the Attorney General, the 
     Commissioner of the Immigration and Naturalization Service, 
     their delegates, or any other Government official, or by a 
     court of competent jurisdiction, in the performance of any 
     function that is transferred pursuant to this title; and
       (2) that are in effect on the effective date of such 
     transfer (or become effective after such date pursuant to 
     their terms as in effect on such effective date);

     shall continue in effect according to their terms until 
     modified, terminated, superseded, set aside, or revoked in 
     accordance with law by the President, any other authorized 
     official, a court of competent jurisdiction, or operation of 
     law, except that any collective bargaining agreement shall 
     remain in effect until the date of termination specified in 
     the agreement.
       (b) Proceedings.--
       (1) Pending.--Sections 111 through 115 of the Immigration 
     and Nationality Act, and section 305 of the Omnibus Crime 
     Control and Safe Streets Act, as added by title I of this 
     Act, shall not affect any proceeding or any application for 
     any benefit, service, license, permit, certificate, or 
     financial assistance pending on the effective date of this 
     title before an office whose functions are transferred 
     pursuant to this title, but such proceedings and applications 
     shall be continued.
       (2) Orders.--Orders shall be issued in such proceedings, 
     appeals shall be taken therefrom, and payments shall be made 
     pursuant to such orders, as if this Act had not been enacted, 
     and orders issued in any such proceeding shall continue in 
     effect until modified, terminated, superseded, or revoked by 
     a duly authorized official, by a court of competent 
     jurisdiction, or by operation of law.
       (3) Discontinuance or modification.--Nothing in this 
     section shall be considered to prohibit the discontinuance or 
     modification of any such proceeding under the same terms and 
     conditions and to the same extent that such proceeding could 
     have been discontinued or modified if this section had not 
     been enacted.
       (c) Suits.--This title, and the amendments made by this 
     title, shall not affect suits commenced before the effective 
     date of this title, and in all such suits, proceeding shall 
     be had, appeals taken, and judgments rendered in the same 
     manner and with the same effect as if this title, and the 
     amendments made by this title, had not been enacted.
       (d) Nonabatement of Actions.--No suit, action, or other 
     proceeding commenced by or against the Department of Justice 
     or the Immigration and Naturalization Service, or by or 
     against any individual in the official capacity of such 
     individual as an officer or employee in connection with a 
     function transferred pursuant to this section, shall abate by 
     reason of the enactment of this Act.
       (e) Continuance of Suit With Substitution of Parties.--If 
     any Government officer in the official capacity of such 
     officer is party to a suit with respect to a function of the 
     officer, and pursuant to this title such function is 
     transferred to any other officer or office, then such suit 
     shall be continued with the other officer or the head of such 
     other office, as applicable, substituted or added as a party.
       (f) Administrative Procedure and Judicial Review.--Except 
     as otherwise provided by this title, any statutory 
     requirements relating to notice, hearings, action upon the 
     record, or administrative or judicial review that apply to 
     any function transferred pursuant to any provision of this 
     title shall apply to the exercise of such function by the 
     head of the office, and other officers of the office, to 
     which such function is transferred pursuant to such 
     provision.

     SEC. 117. INTERIM SERVICE OF THE COMMISSIONER OF IMMIGRATION 
                   AND NATURALIZATION.

       The individual serving as the Commissioner of Immigration 
     and Naturalization on the day before the effective date of 
     this title may serve as Director until the date on which a 
     Director is appointed under section 112 of the Immigration 
     and Nationality Act, as added by section 103 of this Act.

     SEC. 118. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW AND 
                   ATTORNEY GENERAL AUTHORITIES NOT AFFECTED.

       Nothing in this title, or any amendment made by this title, 
     may be construed to authorize or require the transfer or 
     delegation of any function vested in, or exercised by--
       (1) the Executive Office for Immigration Review of the 
     Department of Justice, or any officer, employee, or component 
     thereof, or
       (2) the Attorney General with respect to any matter under 
     the immigration laws of the United States, including the 
     institution of any prosecution, or the institution or defense 
     of any action or appeal, in any court of the United States 
     established under Article III of the Constitution,

     immediately prior to the effective date of this title.

     SEC. 119. OTHER AUTHORITIES NOT AFFECTED.

       Nothing in this title, or any amendment made by this title, 
     may be construed to authorize or require the transfer or 
     delegation of any function vested in, or exercised by--
       (1) the Secretary of State under the State Department Basic 
     Authorities Act of 1956, or under the immigration laws of the 
     United States, immediately prior to the effective date of 
     this title, with respect to the issuance and use of passports 
     and visas;
       (2) the Secretary of Labor or any official of the 
     Department of Labor immediately prior to the effective date 
     of this title, with respect to labor certifications or any 
     other authority under the immigration laws of the United 
     States; or
       (3) except as otherwise specifically provided in this Act, 
     any other official of the Federal Government under the 
     immigration laws of the United States immediately prior to 
     the effective date of this title.

     SEC. 120. TRANSITION FUNDING.

       (a) Authorization of Appropriations for Transition.--
       (1) In general.--There are authorized to be appropriated to 
     the Department of Justice such sums as may be necessary--
       (A) to effect--
       (i) the abolition of the Immigration and Naturalization 
     Service;
       (ii) the establishment of the Immigration Affairs Agency 
     and its components, the Bureau of Immigration Services and 
     Adjudications, and the Bureau of Enforcement and Border 
     Affairs; and
       (iii) the transfer of functions required to be made under 
     this Act; and
       (B) to carry out any other duty that is made necessary by 
     this Act, or any amendment made by this Act.
       (2) Activities supported.--Activities supported under 
     paragraph (1) include--
       (A) planning for the transfer of functions from the 
     Immigration and Naturalization Service to the Immigration 
     Affairs Agency, including the preparation of any reports and 
     implementation plans necessary for such transfer;
       (B) the division, acquisition, and disposition of--
       (i) buildings and facilities;
       (ii) support and infrastructure resources; and

[[Page S3851]]

       (iii) computer hardware, software, and related 
     documentation;
       (C) other capital expenditures necessary to effect the 
     transfer of functions described in this paragraph;
       (D) revision of forms, stationery, logos, and signage;
       (E) expenses incurred in connection with the transfer and 
     training of existing personnel and hiring of new personnel; 
     and
       (F) such other expenses necessary to effect the transfers, 
     as determined by the Attorney General.
       (b) Availability of Funds.--Amounts appropriated pursuant 
     to subsection (a) are authorized to remain available until 
     expended.
       (c) Transition Account.--
       (1) Establishment.--There is established in the general 
     fund of the Treasury of the United States a separate account, 
     which shall be known as the ``Immigration Affairs Agency 
     Transition Account'' (in this section referred to as the 
     ``Account'').
       (2) Use of account.--There shall be deposited into the 
     Account all amounts appropriated under subsection (a) and 
     amounts reprogrammed for the purposes described in subsection 
     (a).
       (d) Report to Congress on Transition.--Beginning not later 
     than 90 days after the date of enactment of this Act, and at 
     the end of each fiscal year in which appropriations are made 
     pursuant to subsection (c), the Attorney General shall submit 
     a report to Congress concerning the availability of funds to 
     cover transition costs, including--
       (1) any unobligated balances available for such purposes; 
     and
       (2) a calculation of the amount of appropriations that 
     would be necessary to fully fund the activities described in 
     subsection (a).
       (e) Effective Date.--This section shall take effect on the 
     date of enactment of this Act.

                       Subtitle C--Effective Date

     SEC. 121. EFFECTIVE DATE.

       Except as otherwise provided in section 120(e), this title, 
     and the amendments made by this title, shall take effect 18 
     months after the date of enactment of this Act.

                   TITLE II--PERSONNEL FLEXIBILITIES

     SEC. 201. IMPROVEMENTS IN PERSONNEL FLEXIBILITIES.

       (a) In General.--Part III of title 5, United States Code, 
     is amended by adding at the end the following new subpart:

           ``Subpart J--Immigration Affairs Agency Personnel

   ``CHAPTER 96--PERSONNEL FLEXIBILITIES RELATING TO THE IMMIGRATION 
                             AFFAIRS AGENCY

``Sec.
``9601. Immigration Affairs Agency personnel flexibilities.
``9602. Pay authority for critical positions.
``9603. Streamlined critical pay authority.
``9604. Recruitment, retention, relocation incentives, and relocation 
              expenses.

     ``Sec. 9601. Immigration Affairs Agency personnel 
       flexibilities

       ``(a) Any flexibilities provided by sections 9602 through 
     9604 of this chapter shall be exercised in a manner 
     consistent with--
       ``(1) chapter 23 (relating to merit system principles and 
     prohibited personnel practices);
       ``(2) provisions relating to preference eligibles;
       ``(3) except as otherwise specifically provided, section 
     5307 (relating to the aggregate limitation on pay);
       ``(4) except as otherwise specifically provided, chapter 71 
     (relating to labor-management relations); and
       ``(5) subject to subsections (b) and (c) of section 1104, 
     as though such authorities were delegated to the Attorney 
     General under section 1104(a)(2).
       ``(b) The Attorney General shall provide the Office of 
     Personnel Management with any information that Office 
     requires in carrying out its responsibilities under this 
     section.

     ``Sec. 9602. Pay authority for critical positions

       ``(a) When the Attorney General seeks a grant of authority 
     under section 5377 for critical pay for 1 or more positions 
     at the Immigration Affairs Agency, the Office of Management 
     and Budget may fix the rate of basic pay, notwithstanding 
     sections 5377(d)(2) and 5307, at any rate up to the salary 
     set in accordance with section 104 of title 3.
       ``(b) Notwithstanding section 5307, no allowance, 
     differential, bonus, award, or similar cash payment may be 
     paid to any employee receiving critical pay at a rate fixed 
     under subsection (a), in any calendar year if, or to the 
     extent that, the employee's total annual compensation will 
     exceed the maximum amount of total annual compensation 
     payable at the salary set in accordance with section 104 of 
     title 3.

     ``Sec. 9603. Streamlined critical pay authority

       ``(a) Notwithstanding section 9602, and without regard to 
     the provisions of this title governing appointments in the 
     competitive service or the Senior Executive Service and 
     chapters 51 and 53 (relating to classification and pay 
     rates), the Attorney General may, for a period of 10 years 
     after the effective date of title II of the Immigration 
     Reform, Accountability, and Security Enhancement Act of 2002, 
     establish, fix the compensation of, and appoint individuals 
     to, designated critical administrative, technical, and 
     professional positions needed to carry out the functions of 
     the Immigration Affairs Agency, if--
       ``(1) the positions--
       ``(A) require expertise of an extremely high level in an 
     administrative, technical, or professional field; and
       ``(B) are critical to the Immigration Affairs Agency's 
     successful accomplishment of an important mission;
       ``(2) exercise of the authority is necessary to recruit or 
     retain an individual exceptionally well qualified for the 
     position;
       ``(3) the number of such positions does not exceed 40 at 
     any one time;
       ``(4) designation of such positions are approved by the 
     Attorney General;
       ``(5) the terms of such appointments are limited to no more 
     than 4 years;
       ``(6) appointees to such positions were not employees of 
     the Immigration and Naturalization Service prior to the 
     effective date of title II of the Immigration Reform, 
     Accountability, and Security Enhancement Act of 2002;
       ``(7) total annual compensation for any appointee to such 
     positions does not exceed the highest total annual 
     compensation payable at the rate determined under section 104 
     of title 3; and
       ``(8) all such positions are excluded from the collective 
     bargaining unit.
       ``(b) Individuals appointed under this section shall not be 
     considered to be employees for purposes of subchapter II of 
     chapter 75.

     ``Sec. 9604. Recruitment, retention, relocation incentives, 
       and relocation expenses

       ``(a) For a period of 10 years after the effective date of 
     title II of the Immigration Reform, Accountability, and 
     Security Enhancement Act of 2002, and subject to approval by 
     the Office of Personnel Management, the Attorney General may 
     provide for variations from sections 5753 and 5754 governing 
     payment of recruitment, relocation, and retention incentives 
     with respect to employees of the Immigration Affairs Agency.
       ``(b) For a period of 10 years after the effective date of 
     title II of the Immigration Reform, Accountability, and 
     Security Enhancement Act of 2002, and subject to approval by 
     the Office of Personnel Management, the Attorney General may 
     pay from appropriations made to the Immigration Affairs 
     Agency allowable relocation expenses under section 5724a for 
     employees transferred or reemployed and allowable travel and 
     transportation expenses under section 5723 for new 
     appointees, for any new appointee appointed to a position for 
     which pay is fixed under section 9602 or 9603 after such 
     effective date.''.
       (b) Clerical Amendment.--The table of chapters for part III 
     of title 5, United States Code, is amended by adding at the 
     end the following new items:

           ``Subpart J--Immigration Affairs Agency Personnel

``96. Personnel flexibilities relating to the Immigration Affairs 
    Agency.................................................9601.''.....

     SEC. 202. VOLUNTARY SEPARATION INCENTIVE PAYMENTS FOR INS 
                   EMPLOYEES.

       (a) Definition.--In this section, the term ``employee'' 
     means an employee (as defined by section 2105 of title 5, 
     United States Code) who is employed by the Immigration and 
     Naturalization Service serving under an appointment without 
     time limitation, and has been currently employed for a 
     continuous period of at least 3 years, but does not include--
       (1) a reemployed annuitant under subchapter III of chapter 
     83 or chapter 84 of title 5, United States Code, or another 
     retirement system;
       (2) an employee having a disability on the basis of which 
     such employee is or would be eligible for disability 
     retirement under the applicable retirement system referred to 
     in paragraph (1);
       (3) an employee who is in receipt of a specific notice of 
     involuntary separation for misconduct or unacceptable 
     performance;
       (4) an employee who, upon completing an additional period 
     of service as referred to in section 3(b)(2)(B)(ii) of the 
     Federal Workforce Restructuring Act of 1994 (5 U.S.C. 5597 
     note), would qualify for a voluntary separation incentive 
     payment under section 3 of such Act;
       (5) an employee who has previously received any voluntary 
     separation incentive payment by the Federal Government under 
     this section or any other authority and has not repaid such 
     payment;
       (6) an employee covered by statutory reemployment rights 
     who is on transfer to another organization; or
       (7) any employee who, during the 24-month period preceding 
     the date of separation, has received a recruitment or 
     relocation bonus under section 5753 of title 5, United States 
     Code, or who, within the 12-month period preceding the date 
     of separation, received a retention allowance under section 
     5754 of title 5, United States Code.
       (b) Authority To Provide Voluntary Separation Incentive 
     Payments.--
       (1) In general.--The Attorney General may pay voluntary 
     separation incentive payments under this section to any 
     employee to the extent necessary to carry out the plan to 
     establish the Immigration Affairs Agency under title I.
       (2) Amount and treatment of payments.--A voluntary 
     separation incentive payment--
       (A) shall be paid in a lump sum after the employee's 
     separation;
       (B) shall be paid from appropriations or funds available 
     for the payment of the basic pay of the employees;
       (C) shall be equal to the lesser of--

[[Page S3852]]

       (i) an amount equal to the amount the employee would be 
     entitled to receive under section 5595(c) of title 5, United 
     States Code; or
       (ii) an amount determined by an agency head not to exceed 
     $25,000;
       (D) may not be made except in the case of any qualifying 
     employee who voluntarily separates (whether by retirement or 
     resignation) before January 1, 2006;
       (E) shall not be a basis for payment, and shall not be 
     included in the computation, of any other type of Government 
     benefit; and
       (F) shall not be taken into account in determining the 
     amount of any severance pay to which the employee may be 
     entitled under section 5595 of title 5, United States Code, 
     based on any other separation.
       (c) Additional Immigration and Naturalization Service 
     Contributions to the Retirement Fund.--
       (1) In general.--In addition to any other payments which it 
     is required to make under subchapter III of chapter 83 of 
     title 5, United States Code, the Immigration and 
     Naturalization Service shall remit to the Office of Personnel 
     Management for deposit in the Treasury of the United States 
     to the credit of the Civil Service Retirement and Disability 
     Fund an amount equal to 15 percent of the final basic pay of 
     each employee who is covered under subchapter III of chapter 
     83 or chapter 84 of title 5, United States Code, to whom a 
     voluntary separation incentive has been paid under this 
     section.
       (2) Definition.--In paragraph (1), the term ``final basic 
     pay'', with respect to an employee, means the total amount of 
     basic pay which would be payable for a year of service by 
     such employee, computed using the employee's final rate of 
     basic pay, and, if last serving on other than a full-time 
     basis, with appropriate adjustment therefore.
       (d) Effect of Subsequent Employment With the Government.--
     An individual who has received a voluntary separation 
     incentive payment under this section and accepts any 
     employment for compensation with the Government of the United 
     States, or who works for any agency of the United States 
     Government through a personal services contract, within 5 
     years after the date of the separation on which the payment 
     is based, shall be required to pay, prior to the individual's 
     first day of employment, the entire amount of the incentive 
     payment to the Immigration and Naturalization Service or, in 
     the case of employment or work occurring after the effective 
     date of title I, the Immigration Affairs Agency.
       (e) Use of Voluntary Separations.--The Immigration and 
     Naturalization Service may redeploy or use the full-time 
     equivalent positions vacated by voluntary separations under 
     this section to make other positions available to more 
     critical locations or more critical occupations.
       (f) Effective Date.--This section shall take effect on the 
     date of enactment of this Act.

     SEC. 203. VOLUNTARY SEPARATION INCENTIVE PAYMENTS FOR 
                   EMPLOYEES OF THE IMMIGRATION AFFAIRS AGENCY.

       (a) Definition.--In this section, the term ``employee'' 
     means an employee (as defined by section 2105 of title 5, 
     United States Code) who is employed by the Immigration 
     Affairs Agency serving under an appointment without time 
     limitation, and has been currently employed for a continuous 
     period of at least 3 years, but does not include--
       (1) a reemployed annuitant under subchapter III of chapter 
     83 or chapter 84 of title 5, United States Code, or another 
     retirement system;
       (2) an employee having a disability on the basis of which 
     such employee is or would be eligible for disability 
     retirement under the applicable retirement system referred to 
     in paragraph (1);
       (3) an employee who is in receipt of a specific notice of 
     involuntary separation for misconduct or unacceptable 
     performance;
       (4) an employee who, upon completing an additional period 
     of service as referred to in section 3(b)(2)(B)(ii) of the 
     Federal Workforce Restructuring Act of 1994 (5 U.S.C. 5597 
     note), would qualify for a voluntary separation incentive 
     payment under section 3 of such Act;
       (5) an employee who has previously received any voluntary 
     separation incentive payment by the Federal Government under 
     this section or any other authority and has not repaid such 
     payment;
       (6) an employee covered by statutory reemployment rights 
     who is on transfer to another organization; or
       (7) any employee who, during the 24-month period preceding 
     the date of separation, has received a recruitment or 
     relocation bonus under section 5753 of title 5, United States 
     Code, or who, within the 12-month period preceding the date 
     of separation, received a retention allowance under section 
     5754 of title 5, United States Code.
       (b) Authority To Provide Voluntary Separation Incentive 
     Payments.--
       (1) In general.--The Attorney General may pay voluntary 
     separation incentive payments under this section to any 
     employee to the extent necessary to carry out the plan to 
     establish the Immigration Affairs Agency under title I.
       (2) Amount and treatment of payments.--A voluntary 
     separation incentive payment--
       (A) shall be paid in a lump sum after the employee's 
     separation;
       (B) shall be paid from appropriations or funds available 
     for the payment of the basic pay of the employees;
       (C) shall be equal to the lesser of--
       (i) an amount equal to the amount the employee would be 
     entitled to receive under section 5595(c) of title 5, United 
     States Code; or
       (ii) an amount determined by an agency head not to exceed 
     $25,000;
       (D) may not be made except in the case of any qualifying 
     employee who voluntarily separates (whether by retirement or 
     resignation) before January 1, 2006;
       (E) shall not be a basis for payment, and shall not be 
     included in the computation, of any other type of Government 
     benefit; and
       (F) shall not be taken into account in determining the 
     amount of any severance pay to which the employee may be 
     entitled under section 5595 of title 5, United States Code, 
     based on any other separation.
       (c) Additional Immigration Affairs Agency Contributions to 
     the Retirement Fund.--
       (1) In general.--In addition to any other payments which it 
     is required to make under subchapter III of chapter 83 of 
     title 5, United States Code, the Immigration Affairs Agency 
     shall remit to the Office of Personnel Management for deposit 
     in the Treasury of the United States to the credit of the 
     Civil Service Retirement and Disability Fund an amount equal 
     to 15 percent of the final basic pay of each employee who is 
     covered under subchapter III of chapter 83 or chapter 84 of 
     title 5, United States Code, to whom a voluntary separation 
     incentive has been paid under this section.
       (2) Definition.--In paragraph (1), the term ``final basic 
     pay'', with respect to an employee, means the total amount of 
     basic pay which would be payable for a year of service by 
     such employee, computed using the employee's final rate of 
     basic pay, and, if last serving on other than a full-time 
     basis, with appropriate adjustment therefore.
       (d) Effect of Subsequent Employment With the Government.--
     An individual who has received a voluntary separation 
     incentive payment under this section and accepts any 
     employment for compensation with the Government of the United 
     States, or who works for any agency of the United States 
     Government through a personal services contract, within 5 
     years after the date of the separation on which the payment 
     is based, shall be required to pay, prior to the individual's 
     first day of employment, the entire amount of the incentive 
     payment to the Immigration Affairs Agency.
       (e) Use of Voluntary Separations.--The Immigration Affairs 
     Agency may redeploy or use the full-time equivalent positions 
     vacated by voluntary separations under this section to make 
     other positions available to more critical locations or more 
     critical occupations.

     SEC. 204. BASIS FOR EVALUATION OF IMMIGRATION AFFAIRS AGENCY 
                   EMPLOYEES.

       The Immigration Affairs Agency shall use the fair and 
     equitable treatment of aliens by employees as one of the 
     standards for evaluating employee performance.

     SEC. 205. EFFECTIVE DATE.

       Except as otherwise provided in section 202(f), this title, 
     and the amendments made by this title, shall take effect 18 
     months after the date of enactment of this Act.

            TITLE III--UNACCOMPANIED ALIEN CHILD PROTECTION

     SEC. 301. SHORT TITLE.

       This title may be cited as the ``Unaccompanied Alien Child 
     Protection Act of 2002''.

     SEC. 302. DEFINITIONS.

       (a) In General.--In this title:
       (1) Director.--The term ``Director'' means the Director of 
     the Office.
       (2) Office.--The term ``Office'' means the Office of 
     Children's Services established by section 311.
       (3) Service.--The term ``Service'' means the Immigration 
     and Naturalization Service (or, upon the effective date of 
     title I, the Immigration Affairs Agency).
       (4) Unaccompanied alien child.--The term ``unaccompanied 
     alien child'' means a child who--
       (A) has no lawful immigration status in the United States;
       (B) has not attained the age of 18; and
       (C) with respect to whom--
       (i) there is no parent or legal guardian in the United 
     States; or
       (ii) no parent or legal guardian in the United States is 
     available to provide care and physical custody.
       (5) Voluntary agency.--The term ``voluntary agency'' means 
     a private, nonprofit voluntary agency with expertise in 
     meeting the cultural, developmental, or psychological needs 
     of unaccompanied alien children as licensed by the 
     appropriate State and certified by the Attorney General.
       (b) Amendments to the Immigration and Nationality Act.--
     Section 101(a) (8 U.S.C. 1101(a)) is amended by adding at the 
     end the following new paragraphs:
       ``(51) The term `unaccompanied alien child' means a child 
     who--
       ``(A) has no lawful immigration status in the United 
     States;
       ``(B) has not attained the age of 18; and
       ``(C) with respect to whom--
       ``(i) there is no parent or legal guardian in the United 
     States; or
       ``(ii) no parent or legal guardian in the United States is 
     able to provide care and physical custody.
       ``(52) The term `unaccompanied refugee children' means 
     persons described in paragraph (42) who--
       ``(A) have not attained the age of 18; and

[[Page S3853]]

       ``(B) with respect to whom there are no parents or legal 
     guardians available to provide care and physical custody.''.

                     Subtitle A--Structural Changes

     SEC. 311. ESTABLISHMENT OF THE OFFICE OF CHILDREN'S SERVICES.

       (a) Establishment.--
       (1) Prohibited within ins.--There is established within the 
     Department of Justice the Office of Children's Services. The 
     Office shall not be an office within the Immigration and 
     Naturalization Service.
       (2) Components.--The Office shall include such other 
     components, staff, and resources as the Attorney General may 
     determine necessary to carry out this title.
       (b) Transfer of Functions.--
       (1) In general.--All functions with respect to the care and 
     custody of unaccompanied alien children under the immigration 
     laws of the United States vested by statute in, or exercised 
     by, the Commissioner of Immigration and Naturalization (or 
     any officer, employee, or component thereof), immediately 
     prior to the effective date of this subtitle, are transferred 
     to the Office under the general authority of the Attorney 
     General.
       (2) Responsibilities of the office.--The Office shall be 
     responsible for coordinating and implementing law and policy 
     for unaccompanied alien children who come into the custody of 
     the Department of Justice.
       (c) Director of the Office of Children's Services.--
       (1) In general.--The Office shall be headed by a Director 
     of Children's Services, who shall be appointed by and report 
     directly to the Attorney General or his designee, if the 
     designee is at a level no lower than Associate Attorney 
     General.
       (2) Compensation at level iv of executive schedule.--
     Section 5315 of title 5, United States Code, is amended by 
     adding at the end the following:
       ``Director of the Office of Children's Services, Department 
     of Justice.''.
       (3) Duties.--The Director shall be responsible for--
       (A) ensuring that the best interests of the child are 
     considered in decisions and actions relating to the care and 
     placement of an unaccompanied alien child;
       (B) making placement, release, and detention determinations 
     for all unaccompanied alien children in the custody of the 
     Office;
       (C) implementing the placement, release, and detention 
     determinations made by the Office;
       (D) coordinating and implementing law and policy for 
     unaccompanied alien children who come into the custody of the 
     Department of Justice;
       (E) convening, in the absence of the Attorney General, the 
     Interagency Task Force on Unaccompanied Alien Children 
     established in section 312;
       (F) identifying a sufficient number of qualified persons, 
     entities, and facilities to house unaccompanied alien 
     children in accordance with sections 322 and 323;
       (G) overseeing the persons, entities, and facilities 
     described in sections 322 and 323 to ensure their compliance 
     with such provisions;
       (H) compiling, updating, and publishing at least annually a 
     State-by-State list of professionals or other entities 
     qualified to contract with the Office to provide the services 
     described in sections 331 and 332;
       (I) maintaining statistical information and other data on 
     unaccompanied alien children in the Office's custody and 
     care, which shall include--
       (i) biographical information such as the child's name, 
     gender, date of birth, country of birth, and country of 
     habitual residence;
       (ii) the date on which the child came into the custody of--

       (I) the Department of Justice (other than as described in 
     subclause (II) or (III);
       (II) the Service; or
       (III) the Office;

       (iii) information relating to the custody, detention, 
     release, and repatriation of unaccompanied alien children who 
     have been in the custody of the Office;
       (iv) in any case in which the child is placed in detention, 
     an explanation relating to the detention; and
       (v) the disposition of any actions in which the child is 
     the subject;
       (J) collecting and compiling statistical information from 
     the Service, including Border Patrol and inspections 
     officers, on the unaccompanied alien children with whom they 
     come into contact; and
       (K) conducting investigations and inspections of facilities 
     and other entities in which unaccompanied alien children 
     reside.
       (4) Duties with respect to foster care.--In carrying out 
     the duties described in paragraph (3)(F), the Director shall 
     assess the extent to which the refugee children foster care 
     system utilized pursuant to section 412(d)(2) of the 
     Immigration and Nationality Act can feasibly be expanded for 
     the placement of unaccompanied alien children.
       (5) Powers.--In carrying out the duties specified in 
     paragraph (3), the Director shall have the power to--
       (A) contract with service providers to perform the services 
     described in sections 322, 323, 331, and 332; and
       (B) compel compliance with the terms and conditions set 
     forth in section 323, including the power to terminate the 
     contracts of providers that are not in compliance with such 
     conditions and reassign any unaccompanied alien child to a 
     similar facility that is in compliance with such section.
       (d) No Effect on INS, EOIR, and Department of State 
     Adjudicatory Responsibilities.--Nothing in this title may be 
     construed to transfer the responsibility for adjudicating 
     benefit determinations under the Immigration and Nationality 
     Act from the authority of any official of the Service, the 
     Executive Office of Immigration Review of the Department of 
     Justice, or the Department of State.

     SEC. 312. ESTABLISHMENT OF INTERAGENCY TASK FORCE ON 
                   UNACCOMPANIED ALIEN CHILDREN.

       (a) Establishment.--There is established an Interagency 
     Task Force on Unaccompanied Alien Children.
       (b) Composition.--The Task Force shall consist of the 
     following members:
       (1) The Attorney General.
       (2) The Commissioner of Immigration and Naturalization.
       (3) The Assistant Secretary of State for Population, 
     Refugees, and Migration.
       (4) The Director of the Office of Refugee Resettlement of 
     the Department of Health and Human Services.
       (5) The Director.
       (6) Such other officials in the executive branch of 
     Government as may be designated by the President.
       (c) Chairman.--The Task Force shall be chaired by the 
     Attorney General.
       (d) Activities of the Task Force.--In consultation with 
     nongovernmental organizations, the Task Force shall--
       (1) measure and evaluate the progress of the United States 
     in treating unaccompanied alien children in United States 
     custody; and
       (2) expand interagency procedures to collect and organize 
     data, including significant research and resource information 
     on the needs and treatment of unaccompanied alien children in 
     the custody of the United States Government.

     SEC. 313. EFFECTIVE DATE.

       This subtitle shall take effect 180 days after the date of 
     enactment of this Act.

   Subtitle B--Custody, Release, Family Reunification, and Detention

     SEC. 321. PROCEDURES WHEN ENCOUNTERING UNACCOMPANIED ALIEN 
                   CHILDREN.

       (a) Unaccompanied Children Found Along the United States 
     Border or at United States Ports of Entry.--
       (1) In general.--Subject to paragraph (2), if an 
     immigration officer finds an unaccompanied alien child who is 
     described in paragraph (2) at a land border or port of entry 
     of the United States and determines that such child is 
     inadmissible under the Immigration and Nationality Act, the 
     officer shall--
       (A) permit such child to withdraw the child's application 
     for admission pursuant to section 235(a)(4) of the 
     Immigration and Nationality Act; and
       (B) remove such child from the United States.
       (2) Special rule for contiguous countries.--
       (A) In general.--Any child who is a national or habitual 
     resident of a country that is contiguous with the United 
     States and that has an agreement in writing with the United 
     States providing for the safe return and orderly repatriation 
     of unaccompanied alien children who are nationals or habitual 
     residents of such country shall be treated in accordance with 
     paragraph (1), unless a determination is made on a case-by-
     case basis that--
       (i) such child has a fear of returning to the child's 
     country of nationality or country of last habitual residence 
     owing to a fear of persecution;
       (ii) the return of such child to the child's country of 
     nationality or country of last habitual residence would 
     endanger the life or safety of such child; or
       (iii) the child cannot make an independent decision to 
     withdraw the child's application for admission due to age or 
     other lack of capacity.
       (B) Right of consultation.--Any child described in 
     subparagraph (A) shall have the right to consult with a 
     consular officer from the child's country of nationality or 
     country of last habitual residence prior to repatriation, as 
     well as consult with the Office, telephonically, and such 
     child shall be informed of that right.
       (3) Rule for apprehensions at the border.--The custody of 
     unaccompanied alien children not described in paragraph (2) 
     who are apprehended at the border of the United States or at 
     a United States port of entry shall be treated in accordance 
     with the provisions of subsection (b).
       (b) Custody of Unaccompanied Alien Children Found in the 
     Interior of the United States.--
       (1) Establishment of jurisdiction.--
       (A) In general.--Except as otherwise provided in subsection 
     (a) and subparagraph (B), the custody of all unaccompanied 
     alien children, including responsibility for their detention, 
     where appropriate, shall be under the jurisdiction of the 
     Office.
       (B) Exception for children who have committed crimes.--
     Notwithstanding subparagraph (A), the Service shall retain or 
     assume the custody and care of any unaccompanied alien child 
     who--
       (i) has been charged with any felony, excluding offenses 
     proscribed by the Immigration and Nationality Act, while such 
     charges are pending; or
       (ii) has been convicted of any such felony.
       (2) Notification.--Upon apprehension of an unaccompanied 
     alien child, the Attorney General shall promptly notify the 
     Office.
       (3) Transfer of unaccompanied alien children.--
       (A) Transfer to the office.--Not later than 72 hours after 
     apprehension of an unaccompanied alien child, the care and 
     custody

[[Page S3854]]

     of such children not described in paragraph (1)(B) shall be 
     transferred to the Office.
       (B) Transfer of children who have committed crimes.--Upon 
     determining that a child in the custody of the Office is 
     described in paragraph (1)(B), the Director shall promptly 
     make arrangements to transfer the care and custody of such 
     child to the Service.
       (c) Age Determinations.--In any case in which the age of an 
     alien is in question and the resolution of questions about 
     such alien's age would affect the alien's eligibility for 
     treatment under the provisions of this title, a determination 
     of whether such alien meets the age requirements of this 
     title shall be made in accordance with the provisions of 
     section 325.

     SEC. 322. FAMILY REUNIFICATION FOR UNACCOMPANIED ALIEN 
                   CHILDREN WITH RELATIVES IN THE UNITED STATES.

       (a) Placement Authority.--
       (1) Order of preference.--Subject to the Attorney General's 
     discretion under paragraph (4) and section 323(a)(2), an 
     unaccompanied alien child in the custody of the Office shall 
     be promptly placed with one of the following individuals in 
     the following order of preference:
       (A) A parent who seeks to establish custody, as described 
     in paragraph (3)(A).
       (B) A legal guardian who seeks to establish custody, as 
     described in paragraph (3)(A).
       (C) An adult relative.
       (D) An entity designated by the parent or legal guardian 
     that is capable and willing to care for the child's well-
     being.
       (E) A State-licensed juvenile shelter, group home, or 
     foster home willing to accept legal custody of the child.
       (F) A qualified adult or entity seeking custody of the 
     child when it appears that there is no other likely 
     alternative to long-term detention and family reunification 
     does not appear to be a reasonable alternative. For purposes 
     of this subparagraph, the qualification of the adult or 
     entity shall be decided by the Office.
       (2) Home study.--Notwithstanding the provisions of 
     paragraph (1), no unaccompanied alien child shall be placed 
     with a person or entity unless a valid home-study conducted 
     by an agency of the State of the child's proposed residence, 
     by an agency authorized by that State to conduct such a 
     study, or by an appropriate voluntary agency contracted with 
     the Office to conduct such studies has found that the person 
     or entity is capable of providing for the child's physical 
     and mental well-being.
       (3) Right of parent or legal guardian to custody of 
     unaccompanied alien child.--
       (A) Placement with parent or legal guardian.--If an 
     unaccompanied alien child is placed with any person or entity 
     other than a parent or legal guardian, but subsequent to that 
     placement a parent or legal guardian seeks to establish 
     custody, the Director shall assess the suitability of placing 
     the child with the parent or legal guardian and shall make a 
     written determination on the child's placement within 30 
     days.
       (B) Rule of construction.--Nothing in this title shall be 
     construed to--
       (i) supersede obligations under any treaty or other 
     international agreement to which the United States is a 
     party, including The Hague Convention on the Civil Aspects of 
     International Child Abduction, the Vienna Declaration and 
     Programme of Action, and the Declaration of the Rights of the 
     Child; or
       (ii) limit any right or remedy under such international 
     agreement.
       (4) Protection from smugglers and traffickers.--The 
     Director shall take steps to ensure that unaccompanied alien 
     children are protected from smugglers, traffickers, or others 
     seeking to victimize or otherwise engage such children in 
     criminal, harmful, or exploitative activity.
       (5) Grants and contracts.--Subject to the availability of 
     appropriations, the Director is authorized to make grants to, 
     and enter into contracts with, voluntary agencies to carry 
     out the provisions of this section.
       (6) Reimbursement of state expenses.--Subject to the 
     availability of appropriations, the Director is authorized to 
     reimburse States for any expenses they incur in providing 
     assistance to unaccompanied alien children who are served 
     pursuant to this title.
       (b) Confidentiality.--All information obtained by the 
     Office relating to the immigration status of a person listed 
     in subsection (a) shall remain confidential and may be used 
     only for the purposes of determining such person's 
     qualifications under subsection (a)(1).

     SEC. 323. APPROPRIATE CONDITIONS FOR DETENTION OF 
                   UNACCOMPANIED ALIEN CHILDREN.

       (a) Standards for Placement.--
       (1) Prohibition of detention in certain facilities.--Except 
     as provided in paragraph (2), an unaccompanied alien child 
     shall not be placed in an adult detention facility or a 
     facility housing delinquent children.
       (2) Detention in appropriate facilities.--An unaccompanied 
     alien child who has exhibited a violent or criminal behavior 
     that endangers others may be detained in conditions 
     appropriate to the behavior in a facility appropriate for 
     delinquent children.
       (3) State licensure.--In the case of a placement of a child 
     with an entity described in section 322(a)(1)(E), the entity 
     must be licensed by an appropriate State agency to provide 
     residential, group, child welfare, or foster care services 
     for dependent children.
       (4) Conditions of detention.--
       (A) In general.--At a minimum, the Attorney General shall 
     promulgate regulations incorporating standards for conditions 
     of detention in such placements that provide for--
       (i) educational services appropriate to the child;
       (ii) medical care;
       (iii) mental health care, including treatment of trauma;
       (iv) access to telephones;
       (v) access to legal services;
       (vi) access to interpreters;
       (vii) supervision by professionals trained in the care of 
     children, taking into account the special cultural, 
     linguistic, and experiential needs of children in immigration 
     proceedings;
       (viii) recreational programs and activities;
       (ix) spiritual and religious needs; and
       (x) dietary needs.
       (B) Notification of children.--Such regulations shall 
     provide that all children are notified orally and in writing 
     of such standards.
       (b) Prohibition of Certain Practices.--The Director and the 
     Commissioner of Immigration and Naturalization shall develop 
     procedures prohibiting the unreasonable use of--
       (1) shackling, handcuffing, or other restraints on 
     children;
       (2) solitary confinement; or
       (3) pat or strip searches.
       (c) Rule of Construction.--Nothing in this section shall be 
     construed to supersede procedures favoring release of 
     children to appropriate adults or entities or placement in 
     the least secure setting possible, as defined in the 
     Stipulated Settlement Agreement under Flores v. Reno.

     SEC. 324. REPATRIATED UNACCOMPANIED ALIEN CHILDREN.

       (a) Country Conditions.--
       (1) Sense of congress.--It is the sense of Congress that, 
     to the extent consistent with the treaties and other 
     international agreements to which the United States is a 
     party and to the extent practicable, the United States 
     Government should undertake efforts to ensure that it does 
     not repatriate children in its custody into settings that 
     would threaten the life and safety of such children.
       (2) Assessment of conditions.--
       (A) In general.--In carrying out repatriations of 
     unaccompanied alien children, the Office shall conduct 
     assessments of country conditions to determine the extent to 
     which the country to which a child is being repatriated has a 
     child welfare system capable of ensuring the child's well 
     being.
       (B) Factors for assessment.--In assessing country 
     conditions, the Office shall, to the maximum extent 
     practicable, examine the conditions specific to the locale of 
     the child's repatriation.
       (b) Report on Repatriation of Unaccompanied Alien 
     Children.--Beginning not later than 18 months after the date 
     of enactment of this Act, and annually thereafter, the 
     Director shall submit a report to the Judiciary Committees of 
     the House of Representatives and Senate on the Director's 
     efforts to repatriate unaccompanied alien children. Such 
     report shall include at a minimum the following information:
       (1) The number of unaccompanied alien children ordered 
     removed and the number of such children actually removed from 
     the United States.
       (2) A description of the type of immigration relief sought 
     and denied to such children.
       (3) A statement of the nationalities, ages, and gender of 
     such children.
       (4) A description of the procedures used to effect the 
     removal of such children from the United States.
       (5) A description of steps taken to ensure that such 
     children were safely and humanely repatriated to their 
     country of origin.
       (6) Any information gathered in assessments of country and 
     local conditions pursuant to subsection (a)(2).

     SEC. 325. ESTABLISHING THE AGE OF AN UNACCOMPANIED ALIEN 
                   CHILD.

       The Director shall develop procedures that permit the 
     presentation and consideration of a variety of forms of 
     evidence, including testimony of a child and other persons, 
     to determine an unaccompanied alien child's age for purposes 
     of placement, custody, parole, and detention. Such procedures 
     shall allow the appeal of a determination to an immigration 
     judge. Radiographs shall not be the sole means of determining 
     age.

     SEC. 326. EFFECTIVE DATE.

       This subtitle shall take effect 180 days after the date of 
     enactment of this Act.

  Subtitle C--Access by Unaccompanied Alien Children to Guardians Ad 
                           Litem and Counsel

     SEC. 331. RIGHT OF UNACCOMPANIED ALIEN CHILDREN TO GUARDIANS 
                   AD LITEM.

       (a) Guardian Ad Litem.--
       (1) Appointment.--The Director shall appoint a guardian ad 
     litem who meets the qualifications described in paragraph (2) 
     for each unaccompanied alien child in the custody of the 
     Office not later than 72 hours after the Office assumes 
     physical or constructive custody of such child. The Director 
     is encouraged, wherever practicable, to contract with a 
     voluntary agency for the selection of an individual to be 
     appointed as a guardian ad litem under this paragraph.
       (2) Qualifications of guardian ad litem.--
       (A) In general.--No person shall serve as a guardian ad 
     litem who is not--
       (i) a child welfare professional or other individual who 
     has received training in child welfare matters; and

[[Page S3855]]

       (ii) possessing of special training on the nature of 
     problems encountered by unaccompanied alien children.
       (B) Prohibition.--A guardian ad litem shall not be an 
     employee of the Service.
       (3) Duties.--The guardian ad litem shall--
       (A) conduct interviews with the child in a manner that is 
     appropriate, taking into account the child's age;
       (B) investigate the facts and circumstances relevant to 
     such child's presence in the United States, including facts 
     and circumstances arising in the country of the child's 
     nationality or last habitual residence and facts and 
     circumstances arising subsequent to the child's departure 
     from such country;
       (C) work with counsel to identify the child's eligibility 
     for relief from removal or voluntary departure by sharing 
     with counsel information collected under subparagraph (B);
       (D) develop recommendations on issues relative to the 
     child's custody, detention, release, and repatriation;
       (E) ensure that the child's best interests are promoted 
     while the child participates in, or is subject to, 
     proceedings or actions under the Immigration and Nationality 
     Act;
       (F) ensure that the child understands such determinations 
     and proceedings; and
       (G) report findings and recommendations to the Director and 
     to the Executive Office of Immigration Review.
       (4) Termination of appointment.--The guardian ad litem 
     shall carry out the duties described in paragraph (3) until--
       (A) those duties are completed,
       (B) the child departs the United States,
       (C) the child is granted permanent resident status in the 
     United States,
       (D) the child attains the age of 18, or
       (E) the child is placed in the custody of a parent or legal 
     guardian,
     whichever occurs first.
       (5) Powers.--The guardian ad litem--
       (A) shall have reasonable access to the child, including 
     access while such child is being held in detention or in the 
     care of a foster family;
       (B) shall be permitted to review all records and 
     information relating to such proceedings that are not deemed 
     privileged or classified;
       (C) may seek independent evaluations of the child;
       (D) shall be notified in advance of all hearings involving 
     the child that are held in connection with proceedings under 
     the Immigration and Nationality Act, and shall be given a 
     reasonable opportunity to be present at such hearings; and
       (E) shall be permitted to consult with the child during any 
     hearing or interview involving such child.
       (b) Training.--The Director shall provide professional 
     training for all persons serving as guardians ad litem under 
     this section in the circumstances and conditions that 
     unaccompanied alien children face as well as in the various 
     immigration benefits for which such a child might be 
     eligible.

     SEC. 332. RIGHT OF UNACCOMPANIED ALIEN CHILDREN TO COUNSEL.

       (a) Access to Counsel.--
       (1) In general.--The Director shall ensure that all 
     unaccompanied alien children in the custody of the Office or 
     in the custody of the Service who are not described in 
     section 321(a)(2) shall have competent counsel to represent 
     them in immigration proceedings or matters.
       (2) Pro bono representation.--To the maximum extent 
     practicable, the Director shall utilize the services of pro 
     bono attorneys who agree to provide representation to such 
     children without charge.
       (3) Government funded representation.--
       (A) Appointment of competent counsel.--Notwithstanding 
     section 292 of the Immigration and Nationality Act (8 U.S.C. 
     1362) or any other provision of law, when no competent 
     counsel is available to represent an unaccompanied alien 
     child without charge, the Director shall appoint competent 
     counsel for such child at the expense of the Government.
       (B) Limitation on attorney fees.--Counsel appointed under 
     subparagraph (A) may not be compensated at a rate in excess 
     of the rate provided under section 3006A of title 18, United 
     States Code.
       (C) Availability of funding.--In carrying out this 
     paragraph, the Director may make use of funds derived from--
       (i) the premium fee for employment-based petitions and 
     applications authorized by section 286(u) of the Immigration 
     and Nationality Act (8 U.S.C. 1356(u)); or
       (ii) any other source designated by the Attorney General 
     from discretionary funds available to the Department of 
     Justice.
       (D) Assumption of the cost of government-paid counsel.--In 
     the case of a child for whom counsel is appointed under 
     subparagraph (A) who is subsequently placed in the physical 
     custody of a parent or legal guardian, such parent or legal 
     guardian may elect to retain the same counsel to continue 
     representation of the child, at no expense to the Government, 
     beginning on the date that the parent or legal guardian 
     assumes physical custody of the child.
       (4) Development of necessary infrastructures and systems.--
     In ensuring that legal representation is provided to such 
     children, the Director shall develop the necessary mechanisms 
     to identify entities available to provide such legal 
     assistance and representation and to recruit such entities.
       (5) Contracting and grant making authority.--
       (A) In general.--Subject to the availability of 
     appropriations, the Director shall enter into contracts with 
     or make grants to national nonprofit agencies with relevant 
     expertise in the delivery of immigration-related legal 
     services to children in order to carry out this subsection.
       (B) Ineligibility for grants and contracts.--In making 
     grants and entering into contracts with such agencies, the 
     Director shall ensure that no such agency is--
       (i) a grantee or contractee for services provided under 
     section 322 or 331; and
       (ii) simultaneously a grantee or contractee for services 
     provided under subparagraph (A).
       (b) Requirement of Legal Representation.--The Director 
     shall ensure that all unaccompanied alien children have legal 
     representation within 7 days of the child coming into the 
     custody of the Department of Justice.
       (c) Duties.--Counsel shall represent the unaccompanied 
     alien child all proceedings and actions relating to the 
     child's immigration status or other actions involving the 
     Service and appear in person for all individual merits 
     hearings before the Executive Office for Immigration Review 
     and interviews involving the Service.
       (d) Access to Child.--
       (1) In general.--Counsel shall have reasonable access to 
     the unaccompanied alien child, including access while the 
     child is being held in detention, in the care of a foster 
     family, or in any other setting that has been determined by 
     the Office.
       (2) Restriction on transfers.--Absent compelling and 
     unusual circumstances, no child who is represented by counsel 
     shall be transferred from the child's placement to another 
     placement unless advance notice of at least 24 hours is made 
     to counsel of such transfer.
       (e) Termination of Appointment.--Counsel shall carry out 
     the duties described in subsection (c) until--
       (1) those duties are completed,
       (2) the child departs the United States,
       (3) the child is granted withholding of removal under 
     section 241(b)(3) of the Immigration and Nationality Act,
       (4) the child is granted protection under the Convention 
     Against Torture,
       (5) the child is granted asylum in the United States under 
     section 208 of the Immigration and Nationality Act,
       (6) the child is granted permanent resident status in the 
     United States, or
       (7) the child attains 18 years of age,
     whichever occurs first.
       (f) Notice to Counsel During Immigration Proceedings.--
       (1) In general.--Except when otherwise required in an 
     emergency situation involving the physical safety of the 
     child, counsel shall be given prompt and adequate notice of 
     all immigration matters affecting or involving an 
     unaccompanied alien child, including adjudications, 
     proceedings, and processing, before such actions are taken.
       (2) Opportunity to consult with counsel.--An unaccompanied 
     alien child in the custody of the Office may not give consent 
     to any immigration action, including consenting to voluntary 
     departure, unless first afforded an opportunity to consult 
     with counsel.
       (g) Access to Recommendations of Guardian Ad Litem.--
     Counsel shall be afforded an opportunity to review the 
     recommendation by the guardian ad litem affecting or 
     involving a client who is an unaccompanied alien child.

     SEC. 333. TRANSITIONAL PILOT PROGRAM.

       (a) In General.--Not later than 90 days after the date of 
     enactment of this Act, the Attorney General shall establish 
     and begin to carry out a transitional pilot program (in this 
     section referred to as the ``pilot program'') of not more 
     than 90 days in duration to test the implementation of the 
     guardian ad litem provisions in section 331 and the counsel 
     provisions in section 332(a)(3).
       (b) Purpose.--The purpose of the pilot program is to study 
     and assess the most efficient and cost-effective means of 
     implementing the guardian ad litem provisions in section 331 
     and the counsel provisions in section 332(a)(3) on a 
     nationwide basis.
       (c) Scope of Program.--
       (1) In general.--The Attorney General shall select three 
     sites in which to operate the pilot program, including at 
     least one secure facility and at least one shelter care 
     facility.
       (2) Eligibility of sites.--To the maximum extent 
     practicable, each such site should have--
       (A) at least 25 children held in immigration custody at any 
     given time; and
       (B) an existing pro bono legal representation program for 
     such children.
       (d) References to Director.--For the purpose of operating 
     the pilot program, to the extent that such program is 
     operating prior to the designation of a Director, the 
     Attorney General may designate any officer within the 
     Department of Justice to perform the functions of the 
     Director, if that officer is not an employee of the 
     Immigration and Naturalization Service.
       (e) Authorization of Appropriations.--There are authorized 
     to be appropriated such sums as may be necessary to operate 
     the pilot program.

     SEC. 334. EFFECTIVE DATE; APPLICABILITY.

       (a) Effective Date.--
       (1) In general.--Except as provided in paragraph (2), this 
     subtitle shall take effect 180 days after the date of 
     enactment of this Act.

[[Page S3856]]

       (2) Exceptions.--Sections 331 and 332(a)(3) shall take 
     effect 270 days after the date of enactment of this Act.
       (b) Applicability.--The provisions of this subtitle shall 
     apply to all unaccompanied alien children in the custody of 
     the Department of Justice on, before, or after the date of 
     enactment of this Act.

 Subtitle D--Strengthening Policies for Permanent Protection of Alien 
                                Children

     SEC. 341. SPECIAL IMMIGRANT JUVENILE VISA.

       (a) J Visa.--Section 101(a)(27)(J) (8 U.S.C. 
     1101(a)(27)(J)) is amended to read as follows:
       ``(J) an immigrant under the age of 18 on the date of 
     application who is present in the United States--
       ``(i) who has been declared dependent on a juvenile court 
     located in the United States or whom such a court has legally 
     committed to, or placed under the custody of, a department or 
     agency of a State, or an individual or entity appointed by a 
     State, and who has been deemed eligible by that court for 
     long-term foster care due to abuse, neglect, or abandonment, 
     or a similar basis found under State law;
       ``(ii) for whom it has been determined in administrative or 
     judicial proceedings that it would not be in the alien's best 
     interest to be returned to the alien's or parent's previous 
     country of nationality or country of last habitual residence; 
     and
       ``(iii) for whom the Office of Children's Services of the 
     Department of Justice has certified to the Commissioner that 
     the classification of an alien as a special immigrant under 
     this subparagraph has not been made solely to provide an 
     immigration benefit to that alien;

     except that no natural parent or prior adoptive parent of any 
     alien provided special immigrant status under this 
     subparagraph shall thereafter, by virtue of such parentage, 
     be accorded any right, privilege, or status under this 
     Act;''.
       (b) Adjustment of Status.--Section 245(h)(2) (8 U.S.C. 
     1255(h)(2)) is amended--
       (1) by amending subparagraph (A) to read as follows:
       ``(A) paragraphs (1), (4), (5), (6), and (7)(A) of section 
     212(a) shall not apply,'';
       (2) in subparagraph (B), by striking the period and 
     inserting ``, and''; and
       (3) by adding at the end the following new subparagraph:
       ``(C) the Attorney General may waive paragraphs (2)(A) and 
     (2)(B) in the case of an offense which arose as a consequence 
     of the child being unaccompanied.''.
       (c) Eligibility for Assistance.--A child who has been 
     granted relief under section 101(a)(27)(J) of the Immigration 
     and Nationality Act (8 U.S.C. 1101(a)(27)(J)), as amended by 
     subsection (a), and who is in the custody of a State shall be 
     eligible for all funds made available under section 412(d) of 
     such Act.

     SEC. 342. TRAINING FOR OFFICIALS AND CERTAIN PRIVATE PARTIES 
                   WHO COME INTO CONTACT WITH UNACCOMPANIED ALIEN 
                   CHILDREN.

       (a) Training of State and Local Officials and Certain 
     Private Parties.--The Attorney General, acting jointly with 
     the Secretary of Health and Human Services, shall provide 
     appropriate training to be available to State and county 
     officials, child welfare specialists, teachers, public 
     counsel, and juvenile judges who come into contact with 
     unaccompanied alien children. The training shall provide 
     education on the processes pertaining to unaccompanied alien 
     children with pending immigration status and on the forms of 
     relief potentially available. The Director shall be 
     responsible for establishing a core curriculum that can be 
     incorporated into currently existing education, training, or 
     orientation modules or formats that are currently used by 
     these professionals.
       (b) Training of INS Personnel.--The Attorney General shall 
     provide specialized training to all personnel of the Service 
     who come into contact with unaccompanied alien children. In 
     the case of Border Patrol agents and immigration inspectors, 
     such training shall include specific training on identifying 
     children at the United States border or at United States 
     ports of entry who have been victimized by smugglers or 
     traffickers, and children for whom asylum or special 
     immigrant relief may be appropriate, including children 
     described in section 321(a)(2).

     SEC. 343. EFFECTIVE DATES.

       The amendment made by section 341 shall apply to all 
     eligible children who were in the United States before, on, 
     or after the date of enactment of this Act.

            Subtitle E--Children Refugee and Asylum Seekers

     SEC. 351. GUIDELINES FOR CHILDREN'S ASYLUM CLAIMS.

       (a) Sense of Congress.--Congress commends the Service for 
     its issuance of its ``Guidelines for Children's Asylum 
     Claims'', dated December 1998, and encourages and supports 
     the Service's implementation of such guidelines in an effort 
     to facilitate the handling of children's asylum claims. 
     Congress calls upon the Executive Office for Immigration 
     Review of the Department of Justice to adopt the ``Guidelines 
     for Children's Asylum Claims'' in its handling of children's 
     asylum claims before immigration judges and the Board of 
     Immigration Appeals.
       (b) Training.--The Attorney General shall provide periodic 
     comprehensive training under the ``Guidelines for Children's 
     Asylum Claims'' to asylum officers, immigration judges, 
     members of the Board of Immigration Appeals, and immigration 
     officers who have contact with children in order to 
     familiarize and sensitize such officers to the needs of 
     children asylum seekers. Voluntary agencies shall be allowed 
     to assist in such training.

     SEC. 352. EXCEPTIONS FOR UNACCOMPANIED ALIEN CHILDREN IN 
                   ASYLUM AND REFUGEE-LIKE CIRCUMSTANCES.

       (a) Exception From Expedited Removal.--Section 235(b)(1)(F) 
     (8 U.S.C. 1225(b)(1)(F)) is amended by striking ``an alien'' 
     and inserting ``unaccompanied alien child or an alien''.
       (b) Exception From Time Limit for Filing Asylum 
     Application.--Section 208(a)(2) (8 U.S.C. 1158(a)(2)) is 
     amended by adding at the end the following new subparagraph:
       ``(E) Subparagraphs (A) and (B) shall not apply to an 
     unaccompanied alien child.''.

     SEC. 353. UNACCOMPANIED REFUGEE CHILDREN.

       (a) Identifying Unaccompanied Refugee Children.--Section 
     207(e) (8 U.S.C. 1157(e)) is amended--
       (1) by redesignating paragraphs (3), (4), (5), (6), and (7) 
     as paragraphs (4), (5), (6), (7), and (8), respectively; and
       (2) by inserting after paragraph (2) the following new 
     paragraph:
       ``(3) An analysis of the worldwide situation faced by 
     unaccompanied refugee children, by region. Such analysis 
     shall include an assessment of--
       ``(A) the number of unaccompanied refugee children, by 
     region;
       ``(B) the capacity of the Department of State to identify 
     such refugees;
       ``(C) the capacity of the international community to care 
     for and protect such refugees;
       ``(D) the capacity of the voluntary agency community to 
     resettle such refugees in the United States;
       ``(E) the degree to which the United States plans to 
     resettle such refugees in the United States in the coming 
     fiscal year; and
       ``(F) the fate that will befall such unaccompanied refugee 
     children for whom resettlement in the United States is not 
     possible.''.
       (b) Training on the Needs of Unaccompanied Refugee 
     Children.--Section 207(f)(2) (8 U.S.C. 1157(f)(2)) is amended 
     by--
       (1) striking ``and'' after ``countries,''; and
       (2) inserting before the period at the end the following: 
     ``, and instruction on the needs of unaccompanied refugee 
     children''.

              Subtitle F--Authorization of Appropriations

     SEC. 361. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated 
     such sums as may be necessary to carry out the provisions of 
     this title.
       (b) Availability of Funds.--Amounts appropriated pursuant 
     to subsection (a) are authorized to remain available until 
     expended.

                   TITLE IV--MISCELLANEOUS PROVISIONS

     SEC. 401. FUNDING ADJUDICATION AND NATURALIZATION SERVICES.

       (a) Level of Fees.--Section 286(m) of the Immigration and 
     Nationality Act (8 U.S.C. 1356(m)) is amended by striking 
     ``services, including the costs of similar services provided 
     without charge to asylum applicants or other immigrants'' and 
     inserting ``services''.
       (b) Use of Fees.--
       (1) In general.--Each fee collected for the provision of an 
     adjudication or naturalization service shall be used only to 
     fund adjudication or naturalization services or, subject to 
     the availability of funds provided pursuant to subsection 
     (c), costs of similar services provided without charge to 
     asylum and refugee applicants.
       (2) Prohibition.--No fee may be used to fund adjudication- 
     or naturalization-related audits that are not regularly 
     conducted in the normal course of operation.
       (c) Refugee and Asylum Adjudication Services.--
       (1) Authorization of appropriations.--In addition to such 
     sums as may be otherwise available for such purposes, there 
     are authorized to be appropriated such sums as may be 
     necessary to carry out the provisions of sections 207 through 
     209 of the Immigration and Nationality Act.
       (2) Availability of funds.--Funds appropriated pursuant to 
     paragraph (1) are authorized to remain available until 
     expended.
       (d) Separation of Funding.--
       (1) In general.--There shall be established separate 
     accounts in the Treasury of the United States for 
     appropriated funds and other collections available for the 
     Bureau of Immigration Services and Adjudications and the 
     Bureau of Enforcement and Border Affairs.
       (2) Fees.--Fees imposed for a particular service, 
     application, or benefit shall be deposited into the account 
     established under paragraph (1) that is for the bureau with 
     jurisdiction over the function to which the fee relates.
       (3) Fees not transferable.--No fee may be transferred 
     between the Bureau of Immigration Services and Adjudications 
     and the Bureau of Enforcement and Border Affairs for purposes 
     not authorized by section 286 of the Immigration and 
     Nationality Act, as amended by subsection (a).
       (e) Authorization of Appropriations for Backlog 
     Reduction.--
       (1) In general.--There are authorized to be appropriated 
     such sums as may be necessary for each of the fiscal years 
     2003 through 2006 to carry out the Immigration Services and 
     Infrastructure Improvement Act of 2000 (title II of Public 
     Law 106-313).
       (2) Availability of funds.--Amounts appropriated under 
     paragraph (1) are authorized to remain available until 
     expended.

[[Page S3857]]

       (3) Infrastructure improvement account.--Amounts 
     appropriated under paragraph (1) shall be deposited into the 
     Immigration Services and Infrastructure Improvements Account 
     established by section 204(a)(2) of title II of Public Law 
     106-313.

     SEC. 402. APPLICATION OF INTERNET-BASED TECHNOLOGIES.

       (a) Establishment of On-Line Database.--
       (1) In general.--Not later than one year after the date of 
     the enactment of this Act, the Director, in consultation with 
     the Technology Advisory Committee, shall establish an 
     Internet-based system that will permit an immigrant, 
     nonimmigrant, employer, or other person who files with the 
     Attorney General any application, petition, or other request 
     for any benefit under the immigration laws of the United 
     States access to on-line information about the processing 
     status of the application, petition, or other request.
       (2) Privacy considerations.--The Director shall consider 
     all applicable privacy issues in the establishment of the 
     Internet system described in paragraph (1). No personally 
     identifying information shall be accessible to unauthorized 
     persons.
       (3) Means of access.--The on-line information under the 
     Internet system described in paragraph (1) shall be 
     accessible to other persons described in subsection (a) 
     through a personal identification number (PIN) or other 
     personalized password.
       (4) Prohibition on fees.--The Director shall not charge any 
     immigrant, nonimmigrant, employer, or other person described 
     in subsection (a) a fee for access to the information in the 
     database that pertains to that person.
       (b) Feasibility Study for On-Line Filing and Improved 
     Processing.--
       (1) On-line filing.--
       (A) In general.--The Director, in consultation with the 
     Technology Advisory Committee, shall conduct a study to 
     determine the feasibility of on-line filing of the documents 
     described in subsection (a).
       (B) Study elements.--The study shall--
       (i) include a review of computerization and technology of 
     the Immigration and Naturalization Service (or successor 
     agency) relating to immigration services and the processing 
     of such documents;
       (ii) include an estimate of the time-frame and costs of 
     implementing on-line filing of such documents; and
       (iii) consider other factors in implementing such a filing 
     system, including the feasibility of the payment of fees on-
     line.
       (2) Report.--Not later than one year after the date of the 
     enactment of this Act, the Director shall submit to the 
     Committees on the Judiciary of the Senate and the House of 
     Representatives a report on the findings of the study 
     conducted under this subsection.
       (c) Technology Advisory Committee.--
       (1) Establishment.--Not later than 60 days after the date 
     of the enactment of this Act, the Director shall establish, 
     after consultation with the Committees on the Judiciary of 
     the Senate and the House of Representatives, an advisory 
     committee (in this section referred to as the ``Technology 
     Advisory Committee'') to assist the Director in--
       (A) establishing the tracking system under subsection (a); 
     and
       (B) conducting the study under subsection (b).
       (2) Composition.--The Technology Advisory Committee shall 
     be composed of--
       (A) experts from the public and private sector capable of 
     establishing and implementing the system in an expeditious 
     manner; and
       (B) representatives of persons or entities who may use the 
     tracking system described in subsection (a) and the on-line 
     filing system described in subsection (b)(1).

     SEC. 403. DEPARTMENT OF STATE STUDY ON MATTERS RELATING TO 
                   THE EMPLOYMENT OF CONSULAR OFFICERS.

       (a) Findings.--Congress finds that--
       (1) consular officers perform an important role daily, 
     often under difficult conditions, at United States embassies 
     throughout the world; and
       (2) many consular officers, who provide the first line of 
     defense against the admission of undesirable persons into the 
     United States, require appropriate training, supervision, and 
     opportunities for promotion while performing this critical 
     work.
       (b) Study.--The Secretary of State shall conduct a study on 
     matters relating to the employment of consular officers of 
     the Department of State, including training promotion 
     policies, rotation frequency, level of experience and 
     seniority, and level of oversight provided by senior 
     personnel.
       (c) Report.--Not later than nine months after the date of 
     enactment of this Act, the Secretary shall submit to the 
     Committee on Foreign Relations and the Committee on the 
     Judiciary of the Senate and the Committee on International 
     Relations and the Committee on the Judiciary of the House of 
     Representatives a report containing--
       (1) the findings of the study conducted under subsection 
     (b); and
       (2) recommendations on how to best retain consular officers 
     with the level of training and expertise in visa issuance 
     appropriate to this important function, especially in 
     sensitive, remote, and hostile locations.

     SEC. 404. ALTERNATIVES TO DETENTION OF ASYLUM SEEKERS.

       (a) In General.--Chapter 4 of title II of the Immigration 
     and Nationality Act (8 U.S.C. 1221 et seq.) is amended by 
     inserting after section 236A the following new section:

     ``SEC. 236B. ALTERNATIVES TO DETENTION OF ASYLUM SEEKERS.

       ``(a) Development of Alternatives to Detention.--The 
     Director shall--
       ``(1) authorize and promote the utilization of alternatives 
     to the detention of asylum seekers who do not have 
     nonpolitical criminal records; and
       ``(2) establish conditions for the detention of asylum 
     seekers that ensure a safe and humane environment.
       ``(b) Specific Alternatives for Consideration.--The 
     Director shall consider the following specific alternatives 
     to the detention of asylum seekers described in subsection 
     (a):
       ``(1) Parole from detention.
       ``(2) For individuals not otherwise qualified for parole 
     under paragraph (1), parole with appearance assistance 
     provided by private nonprofit voluntary agencies with 
     expertise in the legal and social needs of asylum seekers.
       ``(3) For individuals not otherwise qualified for parole 
     under paragraph (1) or (2), non-secure shelter care or group 
     homes operated by private nonprofit voluntary agencies with 
     expertise in the legal and social needs of asylum seekers.
       ``(4) Noninstitutional settings for minors such as foster 
     care or group homes operated by private nonprofit voluntary 
     agencies with expertise in the legal and social needs of 
     asylum seekers.
       ``(c) Regulations.--The Director shall promulgate such 
     regulations as may be necessary to carry out this section.
       ``(d) Definition.--In this section, the term ``asylum 
     seeker'' means any applicant for asylum under section 208 or 
     any alien who indicates an intention to apply for asylum 
     under that section.''.
       (b) Clerical Amendment.--The table of contents of the 
     Immigration and Nationality Act is amended by inserting after 
     the item relating to section 236A the following new item:

``Sec. 236B. Alternatives to detention of asylum seekers.''.

  Mr. BROWNBACK. Mr. President, the attacks of September 11 exposed the 
weaknesses in how we protect our borders. Terrorists exploited the 
shortcomings in our immigration system and the lack of communication 
between the respective agencies that might have detected and deterred 
the events of that horrible day.
  At the same time, however, September 11 has also brought out the best 
of this great Nation. As a people and as a government, we have united 
and stood firm in support of our freedom and our principles.
  Significantly, September 11 has reaffirmed our Nation's pride in its 
immigrant roots. We have not lapsed into xenophobia, nor have we let 
terrorism cloud our judgment about the value of our immigrant neighbors 
or our visitors. We can take great pride in the fact that the Border 
Security bill which this body passed just two weeks ago, was 
intelligent and balanced. We were true both to our responsibility to 
protect our great Nation from those that mean us harm and our 
responsibility to keep our country open to those who mean us well.
  We need an agency that is likewise true to both these missions, an 
agency that can effectively enforce the immigration laws and provide 
timely and competent immigration services. Sadly, the Immigration and 
Naturalization Service has failed to perform either mission well, and 
restructuring INS has long been on the legislative agenda. While I 
deeply respect the hard work that Commissioner Ziglar has put into 
reforming that agency, the fact is that the INS requires more fixes 
than can be done administratively. The fundamental problems with the 
INS compel legislative intervention.
  That is why I am honored to join Senator Kennedy, Senator Hatch, and 
my other colleagues in introducing the Immigration Reform, 
Accountability, and Security Enhancement Act of 2002. I would like to 
point out that, as with the border security bill, we have a bipartisan, 
balanced, and intelligent bill that will deal effectively with the 
challenges that face our Nation. I am proud to be a part of it.
                                 ______
                                 
      By Mr. KENNEDY (for himself and Mrs. Hutchison):
  S. 2445. A bill to establish a program to promote child literacy by 
making books available through early learning, child care, literacy, 
and nutrition programs, and for other purposes; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. KENNEDY. Mr. President, last year we reauthorized the Elementary 
and Secondary Education Act, one of the most far reaching education 
reform bills in decades. It was a significant bipartisan achievement, 
but it isn't enough. We must do more to focus on

[[Page S3858]]

the years leading up to school. Today, Senator Kay Bailey Hutchison and 
I are reintroducing the Book Stamp Act and looking forward to working 
in a bipartisan manner to improve early learning opportunities for our 
youngest children.
  In her statement before the Senate Health, Education, Labor, and 
Pensions Committee, First Lady Laura Bush called attention to the 
problems she saw as a teacher. She described children who were having 
difficulties learning to read because they had not developed the basic 
building blocks of language during their preschool years, the building 
blocks forged through reading, language play, and bedtime stories. In 
her words, ``a failure to learn to read not only leads to failure in 
school, but portends failure throughout life.''
  It should come as no surprise that the foundation for learning and 
literacy is laid long before children arrive at our public schools. We 
can't ignore the facts. Each year, millions of children enter 
kindergarten unprepared for school. Before the first lessons are 
taught, they are already behind. Low-income children are particularly 
at risk of school failure. Children in low-income households are less 
likely than their peers to enter school with the language skills they 
need.
  According to the Carnegie Foundation report, ``Ready to Learn: a 
Mandate for the Nation,'' 35 percent of children enter kindergarten 
unprepared to learn and most lack the language skills that are the 
prerequisites of literacy acquisition. The research also shows that 
children who are placed in remedial reading groups early in school, 
often continue to perform below age expectation. Reading failure in 
school constitutes a major disability that contributes to school 
dropout, juvenile delinquency, teen pregnancy, and other societal 
problems.

  In other words, the early childhood years are crucial ones for the 
development of literacy.
  There is widespread consensus that reading aloud by parents is the 
single most important activity for building the knowledge required for 
eventual success in reading. There is a long history of research 
linking reading aloud by parents with verbal language and literacy 
skills with our children.
  Regardless of culture or wealth, one of the most important factors in 
the development of literacy is access to books. Students from homes 
with an abundance of books and other language activities are 
substantially better readers than those with few or no reading 
materials.
  Children living in poverty bear a disproportionate burden of early 
language delay as well as later reading disability. Children from 
families with lower incomes, as a group, receive comparatively little 
stimulation at home. As a group, children from low-income families grow 
up with fewer books in the home, and are exposed to relatively little 
reading aloud.
  The Book Stamp Act will help remedy this. By providing books to the 
Child Care Resource and Referral Agencies, pediatricians, WIC clinics, 
and child care providers in each community, we can get developmentally 
appropriate books into the hands of low-income families. There are over 
825 Resource and Referral Agencies that will provide free books to 
children enrolled in child care programs that serve low income 
families. Each child will receive at least one book every 6 months to 
take home.
  However, we can't stop there. It is not enough to just give books to 
the children. Since young children cannot read to themselves, we must 
make sure that the adults in their lives understand the importance of 
reading to children as young as six months. Training the parents and 
the child's caregiver about the importance of reading is just as 
critical as getting books into homes. Funds set aside by the Book Stamp 
Act will also be used to provide such training for parents and 
caregivers.
  Funds will be raised through the sale of a postage stamp similar to 
the Breast Cancer Stamp. Postal patrons may choose to support this 
program by purchasing premium stamps which feature as early learning 
character.
  We know what works to combat illiteracy. Through the simple act of 
getting books into the homes of families who might not otherwise be 
able to afford them and by providing simple training for parents and 
caregivers about the best ways to read to children, we can make an 
enormous difference in a short amount of time. I ask unanimous consent 
that the text of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2445

       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 ``Book Stamp Act''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) Literacy is fundamental to all learning.
       (2) Between 40 and 60 percent of the Nation's children do 
     not read at grade level, particularly children in families or 
     school districts that are challenged by significant financial 
     or social instability.
       (3) Increased investments in child literacy are needed to 
     improve opportunities for children and the efficacy of the 
     Nation's education investments.
       (4) Increasing access to books in the home is an important 
     means of improving child literacy, which can be accomplished 
     nationally at modest cost.
       (5) Effective channels for book distribution already exist 
     through child care providers, hospitals, pediatrician's 
     offices, entities carrying out faith-based programs, and 
     entities carrying out early literacy programs.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Early learning program.--The term ``early learning'', 
     used with respect to a program, means a program of activities 
     designed to facilitate development of cognitive, language, 
     motor, and social-emotional skills in children under age 6 as 
     a means of enabling the children to enter school ready to 
     learn, such as a Head Start or Early Head Start program 
     carried out under the Head Start Act (42 U.S.C. 9831 et 
     seq.), or a State pre-kindergarten program.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.
       (3) State.--The term ``State'' means the 50 States, the 
     District of Columbia, the Commonwealth of Puerto Rico, Guam, 
     the United States Virgin Islands, American Samoa, and the 
     Commonwealth of the Northern Mariana Islands.
       (4) State agency.--The term ``State agency'' means an 
     agency designated under section 658D of the Child Care and 
     Development Block Grant Act of 1990 (42 U.S.C. 9858b).

     SEC. 4. GRANTS TO STATE AGENCIES.

       (a) Establishment of Program.--The Secretary shall 
     establish and carry out a program to promote child literacy 
     and improve children's access to books at home and in early 
     learning, child care, literacy, and nutrition programs, by 
     making books available through early learning programs, child 
     care programs, hospital-based or clinic-based literacy 
     programs, library-based literacy programs, nutrition programs 
     at clinics described in section 6(a)(2)(A)(v), faith-based 
     literacy programs, and other literacy programs.
       (b) Grants.--
       (1) In general.--In carrying out the program, the Secretary 
     shall make grants to State agencies from allotments 
     determined under paragraph (2).
       (2) Allotments.--For each fiscal year, the Secretary shall 
     allot to each State an amount that bears the same ratio to 
     the total of the available funds for the fiscal year as the 
     amount the State receives under section 658O(b) of the Child 
     Care and Development Block Grant Act of 1990 (42 U.S.C. 
     9858m(b)) for the fiscal year bears to the total amount 
     received by all States under that section for the fiscal 
     year.
       (c) Applications.--To be eligible to receive an allotment 
     under this section, a State shall submit an application to 
     the Secretary at such time, in such manner, and containing 
     such information as the Secretary may require.
       (d) Accountability.--The provisions of sections 658I(b) and 
     658K(b) of the Child Care and Development Block Grant Act of 
     1990 (42 U.S.C. 9858g(b), 9858i(b)) shall apply to State 
     agencies receiving grants under this Act, except that 
     references in those sections--
       (1) to a subchapter shall be considered to be references to 
     this Act; and
       (2) to a plan or application shall be considered to be 
     references to an application submitted under subsection (c).
       (e) Definition.--In this section, the term ``available 
     funds'', used with respect to a fiscal year, means the total 
     of--
       (1) the funds made available under section 417(c)(1) of 
     title 39, United States Code, for the fiscal year; and
       (2) the amounts appropriated under section 9 for the fiscal 
     year.

     SEC. 5. CONTRACTS TO CHILD CARE RESOURCE AND
                   REFERRAL AGENCIES.

       A State agency that receives a grant under section 4 shall 
     use funds made available through the grant to enter into 
     contracts with local child care resource and referral 
     agencies to carry out the activities described in section 6. 
     The State agency may reserve not more than 3 percent of the 
     funds made available through the grant to support a public 
     awareness campaign relating to the activities.

[[Page S3859]]

     SEC. 6. USE OF FUNDS.

       (a) Activities.--
       (1) Book payments for eligible providers.--A child care 
     resource and referral agency that receives a contract under 
     section 5 shall use the funds made available through the 
     grant to provide payments for eligible providers, on the 
     basis of local needs, to enable the providers to make books 
     available to promote child literacy and improve children's 
     access to books at home and in early learning, child care, 
     literacy, and nutrition programs.
       (2) Eligible providers.--To be eligible to receive a 
     payment under paragraph (1), a provider shall--
       (A)(i) be a center-based child care provider, a group home 
     child care provider, or a family child care provider, 
     described in section 658P(5)(A) of the Child Care and 
     Development Block Grant Act of 1990 (42 U.S.C. 9858n(5)(A));
       (ii) be a Head Start agency designated under section 641 of 
     the Head Start Act (42 U.S.C. 9836), an entity that receives 
     assistance under section 645A of such Act (42 U.S.C. 9840a) 
     to carry out an Early Head Start program, or another provider 
     of an early learning program;
       (iii) be an entity that carries out a hospital-based or 
     clinic-based literacy program;
       (iv) be an entity that carries out a library-based literacy 
     program serving children under age 6;
       (v) be an entity that carries out a nutrition program at a 
     clinic (as defined in part 246.2 of title 7, Code of Federal 
     Regulations (or any corresponding similar regulation or 
     ruling)) under section 17(b)(6) of the Child Nutrition Act of 
     1966 (42 U.S.C. 1786(b)(6));
       (vi) be an entity that carries out a faith-based literacy 
     program serving children under age 6; or
       (vii) be another entity carrying out a literacy program 
     serving children under age 6; and
       (B) provide services in an area where children face high 
     risks of literacy difficulties, as defined by the Secretary.
       (b) Responsibilities.--A child care resource and referral 
     agency that receives a contract under section 5 to provide 
     payments to eligible providers shall--
       (1) consult with local individuals and organizations 
     concerned with early literacy (including parents, teachers, 
     pediatricians, directors of the special supplemental 
     nutrition program for women, infants, and children 
     established by section 17 of the Child Nutrition Act of 1966 
     (42 U.S.C. 1786), literacy coalitions, and organizations 
     carrying out the Reach Out and Read, First Book, and Reading 
     Is Fundamental programs) regarding local book distribution 
     needs;
       (2) make reasonable efforts to learn public demographic and 
     other information about local families and child literacy 
     programs carried out by the eligible providers, as needed to 
     inform the agency's decisions as the agency carries out the 
     contract;
       (3) coordinate local orders of the books made available 
     under this Act;
       (4) distribute, to each eligible provider that receives a 
     payment under this Act, not fewer than 1 book every 6 months 
     for each child served by the provider for more than 3 of the 
     preceding 6 months;
       (5) use not more than 5 percent of the funds made available 
     through the contract to provide training and technical 
     assistance to the eligible providers on the effective use of 
     books with young children at different stages of development; 
     and
       (6) be a training resource for eligible providers that want 
     to offer parent workshops on developing reading readiness.
       (c) Discounts.--
       (1) In general.--Federal funds made available under this 
     Act for the purchase of books may only be used to purchase 
     books on the same terms as are customarily available in the 
     book industry to entities carrying out nonprofit bulk book 
     purchase and distribution programs.
       (2) Terms.--An entity offering books for purchase under 
     this Act shall be present to have met the requirements of 
     paragraph (1), absent contrary evidence, if the terms include 
     a discount of 43 percent off the catalogue price of the 
     books, with no additional charge for shipping and handling of 
     the books.
       (d) Administration.--The child care resource and referral 
     agency may not use more than 6 percent of the funds made 
     available through the contract for administrative costs.

     SEC. 7. REPORT TO CONGRESS.

       Not later than 2 years after the date of enactment of this 
     Act, the Secretary shall prepare and submit to Congress a 
     report on the implementation of the activities carried out 
     under this Act.

     SEC. 8. SPECIAL POSTAGE STAMPS FOR CHILD LITERACY.

       Chapter 4 of title 39, United States Code is amended by 
     adding at the end the following:

     ``Sec. 417. Special postage stamps for child literacy

       ``(a) In order to afford the public a convenient way to 
     contribute to funding for child literacy, the Postal Service 
     shall establish a special rate of postage for first-class 
     mail under this section. The stamps that bear the special 
     rate of postage shall promote childhood literacy and shall, 
     to the extent practicable, contain an image relating to a 
     character in a children's book or cartoon.
       ``(b)(1) The rate of postage established under this 
     section--
       ``(A) shall be equal to the regular first-class rate of 
     postage, plus a differential of not to exceed 25 percent;
       ``(B) shall be set by the Governors in accordance with such 
     procedures as the Governors shall by regulation prescribe (in 
     lieu of the procedures described in chapter 36); and
       ``(C) shall be offered as an alternative to the regular 
     first-class rate of postage.
       ``(2) The use of the special rate of postage established 
     under this section shall be voluntary on the part of postal 
     patrons.
       ``(c)(1) Of the amounts becoming available for child 
     literacy pursuant to this section, the Postal Service shall 
     pay 100 percent to the Department of Health and Human 
     Services.
       ``(2) Payments made under this subsection to the Department 
     shall be made under such arrangements as the Postal Service 
     shall by mutual agreement with such Department establish in 
     order to carry out the objectives of this section, except 
     that, under those arrangements, payments to such agency shall 
     be made at least twice a year.
       ``(3) In this section, the term `amounts becoming available 
     for child literacy pursuant to this section' means--
       ``(A) the total amounts received by the Postal Service that 
     the Postal Service would not have received but for the 
     enactment of this section; reduced by
       ``(B) an amount sufficient to cover reasonable costs 
     incurred by the Postal Service in carrying out this section, 
     including costs attributable to the printing, sale, and 
     distribution of stamps under this section,
     as determined by the Postal Service under regulations that 
     the Postal Service shall prescribe.
       ``(d) It is the sense of Congress that nothing in this 
     section should--
       ``(1) directly or indirectly cause a net decrease in total 
     funds received by the Department of Health and Human 
     Services, or any other agency of the Government (or any 
     component or program of the Government), below the level that 
     would otherwise have been received but for the enactment of 
     this section; or
       ``(2) affect regular first-class rates of postage or any 
     other regular rates of postage.
       ``(e) Special postage stamps made available under this 
     section shall be made available to the public beginning on 
     such date as the Postal Service shall by regulation 
     prescribe, but in no event later than 12 months after the 
     date of enactment of this section.
       ``(f) The Postmaster General shall include in each report 
     provided under section 2402, with respect to any period 
     during any portion of which this section is in effect, 
     information concerning the operation of this section, except 
     that, at a minimum, each report shall include information 
     on--
       ``(1) the total amounts described in subsection (c)(3)(A) 
     that were received by the Postal Service during the period 
     covered by such report; and
       ``(2) of the amounts described in paragraph (1), how much 
     (in the aggregate and by category) was required for the 
     purposes described in subsection (c)(3)(B).
       ``(g) This section shall cease to be effective at the end 
     of the 2-year period beginning on the date on which special 
     postage stamps made available under this section are first 
     made available to the public.''.

     SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to carry out this 
     Act $50,000,000 for each of fiscal years 2003 through 2007.
                                 ______
                                 
      By Mr. SPECTER (for himself, Mr. Biden, Mr. Durbin, and Ms. 
        Collins):
  S. 2446.A bill to ensure that the death penalty defendants have a 
true opportunity to have their cases considered by the courts, to 
provide all prisoners with an opportunity to present exculpatory DNA 
evidence, and for other purposes; to the Committee on the Judiciary.
                                 ______
                                 
      By Mr. SPECTER:
  S. 2441. A bill to provide all prisoners with an opportunity to 
present exculpatory DNA evidence, and for other purposes; to the 
Committee on the Judiciary.
                                 ______
                                 
      By Mr. SPECTER:
  S. 2442. A bill to ensure that indigent death penalty defendants in 
State courts receive adequate legal representation, and for other 
purposes; to the Committee on the Judiciary.
                                 ______
                                 
      By Mr. SPECTER:
  S. 2443. A bill to ensure that death penalty defendants have a true 
opportunity to have their cases considered by the courts, and for other 
purposes; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I have sought recognition to introduce 
legislation which is designed to have societal rights check law 
enforcement and to protect defendants' rights to fundamental fairness.
  We are seeing an evolution of a number of problems in the criminal 
courts, especially applicable to capital cases involving the death 
penalty where I believe we are in danger of losing the death penalty in 
the United States if

[[Page S3860]]

we do not act to see to it that there is fairness.
  For example, there is one case specifically where the Supreme Court 
of the United States had four votes to grant certiorari where the 
defendant was under the death penalty, and that individual was executed 
without the Supreme Court hearing the case because there was not a 
fifth vote to stay the execution.
  In the past several years, there has been growing evidence that DNA 
materials would have exonerated many individuals who have been in jail, 
and among those quite a number of individuals who have been under the 
death penalty.
  And we have also seen very significant problems with the adequacy of 
defense counsel in capital cases.
  The legislation I am introducing today will address these issues.
  During my tenure as district attorney of Philadelphia--from 1966 to 
1974--I became convinced that the death penalty is an effective 
deterrent. I had come to that conclusion earlier when I was an 
assistant district attorney for 4 years preceding my tenure as 
Philadelphia's district attorney.
  I have seen many cases where individuals will decline to carry 
weapons on robberies or burglaries because of fear that a killing might 
occur, and that would be murder in the first degree under the felony 
murder rule and therefore carry the death penalty.
  One case is illustrative of many I have seen. There was a case in the 
late 1950s in Philadelphia with three defendants, Cater, Rivers, and 
Williams. Those young men were 17, 18, and 19 years old, respectively. 
They had IQs of less than 100. They set out to rob a merchant in North 
Philadelphia, and Williams had a gun. Cater and Rivers said: We are not 
going to go along on this robbery if you take the gun. They took that 
position because they were apprehensive that a killing might result and 
they could face the death penalty under the felony murder rule. That is 
a rule which says anyone committing one of five enumerated felonies, 
including robbery, would be subject to murder in the first degree and 
the death penalty if there was a killing in the course of that robbery.
  Williams put the gun in the drawer, slammed it shut, and, as the 
three of them walked out, unbeknownst to Cater and Rivers, Williams 
took the gun with him. They robbed the store. In the course of the 
melee, the merchant was killed. The three of them faced murder in the 
first degree charges and the death penalty.
  In the course of the investigation, the confessions disclosed the 
essential facts which I have related, and all three got the death 
penalty. Williams, the gunman, was subsequently executed, in the early 
1960s, one of the last people executed in Pennsylvania before ``Furman 
v. Georgia'' set aside all of the death penalty cases.
  Cater's and Rivers's cases came up later. I was an assistant DA at 
the time and argued that case in the Supreme Court of Pennsylvania.
  Later, when I was district attorney, Cater and Rivers argued for 
commutation. Representing the Commonwealth, I agreed that they should 
not face the death penalty but should face life imprisonment because 
they had tried to dissuade Williams from carrying the gun. Although in 
the eyes of the law their culpability was the same as a coconspirator, 
it seemed to me that as a matter of fairness they ought not to have the 
death penalty.
  That case is illustrative of many cases which have convinced me that 
the death penalty is a deterrent. But if we are to retain the 
deterrent, we have to be very careful how we use the death penalty.
  When I was district attorney of Philadelphia, we had some 500 
homicides a year. I would not permit any of my 160 assistants to ask 
for the death penalty without my personal review. We asked for the 
death penalty in a very limited number of cases--four, or five, or six 
a year--really heinous and outrageous cases where it was the conclusion 
that only the death penalty would suffice.
  There has recently been a commission in Illinois which has been very 
critical of the application of the death penalty.
  The Governor of Illinois has declared a moratorium on the death 
penalty. And with the growing number of DNA cases which are arising, it 
is my view, that unless some action is taken to see to it that there 
are not executions of people whose innocence might be established 
through DNA evidence, that we will soon lose the death penalty.
  So it is a matter of protecting society's interest to maintain the 
death penalty that this legislation is being introduced, and, at the 
same time, with equal force, it is in order to provide fundamental 
fairness to defendants. Where DNA evidence is available, it ought to be 
examined. And we know it has the capacity, in many, many cases, to rule 
out the defendant.
  The science of DNA has progressed to the point where tangible 
evidence may specifically exclude a defendant. We have seen many cases 
where incarcerated people, including those awaiting the death penalty, 
have been released when the DNA evidence has established their 
innocence.
  There is legislation pending, but none reaches what I consider to be 
the fundamental question--I ask unanimous consent that I may proceed 
for an additional 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. The pending legislation does not reach the critical 
issue; and that is, to establish a right to DNA evidence as a 
constitutional right.
  Congress, under section V of the 14th amendment, has the authority to 
legislate in furtherance of the due process clause. Congress has been 
very inert on establishing constitutional rights under our legislative 
authority under section V. We have seen the wave of Supreme Court 
decisions in the constitutional area--``Mapp v. Ohio,'' where the 
Supreme Court of the United States said it was a constitutional right 
not be subjected to unreasonable searches and seizures, incorporating 
the search and seizure provisions of the 4th amendment into the due 
process clause of the 14th amendment.
  The Supreme Court, ``Miranda v. Arizona,'' required warnings for 
those suspects who are in custodial interrogation. And there have been 
many cases where it has been up to the Court to establish the 
constitutional right.
  In the obvious landmark case, perhaps the most important case in 
American constitutional history, ``Brown v. Board of Education of 
Topeka,'' it was up to the Supreme Court to establish desegregation as 
a constitutional right. Action should have been taken long before by 
the Congress, long before by the executive branch, and long before by 
the State legislatures; but it was up to the Court to establish that 
constitutional right.
  There has been one case in the Eastern District of Pennsylvania, the 
``Godschalk'' case, where Judge Weiner established a constitutional 
right for the defendant to see DNA evidence. And there is a Fourth 
Circuit opinion which addresses the issue but leaves it up to the 
Congress to act. And that is a matter that is taken up in this 
legislation.
  On two other items, the bill will first provide for a true 
opportunity for defendants to have their cases considered by the 
courts. For example, there was a case where the Supreme Court of the 
United States had four justices willing to vote to grant certiorari and 
the defendant was executed because there was not a fifth justice voting 
for a stay of execution--and I ask unanimous consent that the case be 
included in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Alexzene Hamilton, as Natural Mother and Next Friend To James Edward 
 Smith v. Texas, No. 89-7838, Supreme Court of the United States, 498 
      U.S. 908; 111 S. Ct. 281; 112 L. Ed. 2d 236; October 9, 1990


                             prior history:

       On petition for writ of certiorari to The Court of Criminal 
     Appeals of Texas.


                                judges:

       Rehnquist, White, Marshall, Blackmun, Stevens, O'Connor, 
     Scalia, Kennedy. Justice Marshall, with whom Justice Blackmun 
     joins, concurring. Justice Stevens, with whom Justice 
     Blackmun joins, concurring. Justice Souter took no part in 
     the consideration or decision of this motion and this 
     petition.


                                opinion:

       [*908] [***236] [**281] The motion of Chris Lonchar Kellogg 
     for leave to intervene is denied. The petition for a writ of 
     certiorari is denied.


                               concurby:

       MARSHALL; Stevens

[[Page S3861]]

                                concur:

       Justice Marshall, with whom Justice Blackmun joins, 
     concurring.
       I agree with Justice Stevens that the issue raised in this 
     petition is important and merits resolution by this Court. I 
     write to express my frustration with the Court's failure to 
     avail itself of the ordinary procedural mechanisms that would 
     have permitted us to resolve that issue in this case.
       It is already a matter of public record that four Members 
     of this Court voted to grant certiorari before petitioner was 
     executed. [*909] See Hamilton v. Texas, 497 U.S. (1990) 
     (Brennan, J., dissenting from denial of application for 
     stay). According to established practice, this fact should 
     have triggered a fifth vote to grant petitioner's application 
     for a stay of [**282] execution. * Indeed, this result flows 
     naturally from the standard by which we evaluate stay 
     applications, a central component of which is ``whether four 
     Justices are likely to vote to grant certiorari.'' Coleman v. 
     Paccar, 424 U.S. 1301, 1302 (1976) (Rehnquist, J., in 
     chambers) (emphasis added); see also Maggio v. Williams, 464 
     U.S. 46, 48 (1983) (per curiam) (same).
       *See Autry v. Estelle, 464 U.S. 1, 2 (1983) (per curiam) 
     (``Had applicant convinced four Members of the Court that 
     certiorari would be granted on any of his claims, a stay 
     would issue''); Darden v. Wainwright, 473 U.S. 928, 928-929 
     (1985) (Powell, J., concurring in granting of stay); Straight 
     v. Wainwright, 476 U.S. 1132, 1333, n. 2 (1986) (Powell J., 
     concurring in denial of stay, joined by Burger, C. J., 
     Rehnquist, and O'Connor, JJ.) (noting that ``the Court has 
     ordinarily stayed executions when four Members have voted to 
     grant certiorari''); id., at 1134-1135 (Brennan, J., 
     dissenting from denial of stay, joined by Marshall and 
     Blackmun, JJ.) (``When four vote to grant certiorari in a 
     capital case, but there is not a fifth vote to stay the 
     scheduled execution, one of the five Justices, who does not 
     believe the case worthy of granting certiorari will 
     nonetheless vote to stay; this is so that the `Rule of Four' 
     will not be rendered meaningless by an execution that occurs 
     before the Court considers the case on the merits'').
       In my view, the Court's willingness in this case to 
     dispense with the procedures that it ordinarily employs to 
     preserve its jurisdiction only continues the distressing 
     rollback of the legal safeguards traditionally afforded. 
     Compare Boyde v. California, 494 U.S., (1990) (Marshall, J., 
     dissenting) (criticizing diminution in standard used to 
     assess unconstitutional jury instructions in capital cases); 
     Barefoot v. Estelle, 463 U.S. 880, 912-914 (1983) (Marshall, 
     J. dissenting) (criticizing Court's endorsement of summary 
     appellate procedures in capital cases); Autry v. McKaskle, 
     465 U.S. 1085, 1085-1086 (1984) (Marshall, J., dissenting 
     from denial of certiorari) [***237] (criticizing expedited 
     consideration of petitions for certiorari in capital cases).
       Justice Stevens, with whom Justice Blackmun joins, 
     concurring
       This petition for a writ of certiorari raises important, 
     recurring questions of law that should be decided by this 
     Court. These questions concern the standards that the Due 
     Process Clause of [*910] the Fourteenth Amendment mandates in 
     a hearing to determine whether a death row inmate is 
     competent to waive his constitutional right to challenge his 
     conviction and sentence and whether he has made a knowing and 
     intelligent waiver of this right.
       James Edward Smith was convicted of murder and sentenced to 
     death in Harris County, Texas, in 1984. Smith had a 
     substantial history of mental illness, and his mental 
     difficulties prompted a finding by the Texas trial court that 
     he was not competent to represent himself on appeal. Pet. for 
     Cert., Exh. 2, p. 13, Exhs. 4-8, 10-12. After his conviction, 
     Smith vacillated between forceful insistence on prosecuting 
     his own appeal and equally forceful insistence on abandoning 
     any challenge to this conviction or his sentence. Pet. for 
     Cert., Exh. 2, pp. 10-11, p. 2.
       Petitioner is Smith's natural mother. Proceeding as Smith's 
     ``next friend,'' she attempted to establish her standing to 
     litigate on her son's behalf and to have his execution stayed 
     until his competence was established after a full adversarial 
     hearing. She was unsuccessful. On May 23, 1990, without 
     notice to petitioner, the Texas trial court held a 
     nonadversarial hearing, made a finding that Smith was 
     competent to make a decision regarding his execution, and set 
     his execution for 12:01 A. M. on June 26, 1990. Pet. for 
     Cert., Exh. 3.
       [**283] On June 22, over the dissent of Justice Teague, n1 
     the Texas Court of Criminal Appeals for Stay of Execution and 
     Objections to Trial Court's Prior Proceedings.'' Ex Parte 
     Hamilton. No. 18,380-02 (Tex. Crim. App., June 22, 1990) (en 
     banc) (per curiam) (order denying application for stay). On 
     June 24, petitioner filed in this Court her petition for a 
     writ of certiorari and her application for a stay of [*911] 
     Smith's execution. Four Members of the Court voted to grant 
     certiorari, n2 and to stay the execution. Nevertheless, the 
     stay application was denied, and Smith was executed on 
     schedule.
       n1 ``Teague, J., notwithstanding that such might, but 
     probably only will cause a slight delay in carrying out 
     applicant's obvious desire to carry into effect his long held 
     death wish, as well as his strong belief that he will be 
     reincarnated after he is killed, but believing that this 
     Court, at least implicitly, has ruled that in a case such as 
     this one, where the reasonable probability that the defendant 
     is not competent to request that he be put to a premature 
     death, or, to put it another way, to commit legal suicide 
     through the hands of others, has been raised, it is necessary 
     for the trial court to conduct a `full adversarial hearing' 
     should now be conducted in this cause. See Ex parte Jordan, 
     758 S. W. 2d 250 (Tex. Cr. App. 1988). Also see Ford v. 
     Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 92 L. Ed. 2d 335 
     (1986).'' Ex Parte Hamilton, No. 18, 380-02 (Tex. Crim. App., 
     June 22, 1990) (Teague, J., dissenting from order denying 
     application for stay).
       n2 See Hamilton v. Texas, 497 U.S. (1990) (Brennan, J., 
     dissenting from denial of application for stay).
       [***238] Smith's execution obviously mooted this case. The 
     Court has therefore properly denied the petition for a writ 
     of certiorari. This denial, however, does not evidence any 
     lack of merit in the petition; n3 instead, the reason for the 
     denial emphasizes the importance of confronting on the merits 
     the substantial questions that were raised in this case.
       n3 See Singleton v. Commissioner, 439 U.S. 940, 942 (1978) 
     (opinion of Stevens, J., respecting denial of petition for 
     writ of certiorari).

  Mr. SPECTER. The legislation further addresses the issue of adequacy 
of counsel.
  I will now describe the specific provisions of the bill I am offering 
today, and the cases and history that shows the manifest need for such 
legislation.
  The bill contains three titles. The first Title will ensure that 
defendants facing the death penalty will not be executed while the 
Supreme Court considers their petitions for certiorari or their cases 
on the merits. The second Title will ensure that both federal and state 
defendants have a meaningful opportunity to present DNA evidence in 
their defense. Finally, the third Title will establish minimal 
standards for defense counsel representing defendants in death penalty 
cases in state court. I am additionally introducing these three Titles 
as three separate bills, as I will explain later. The first is ``Title 
I: Right to Review of the Death Penalty While a Case is Pending Before 
the Supreme Court.''
  There have been death penalty cases where, despite the fact that the 
Supreme Court was either considering to grant certiorari or had 
actually granted certiorari and the case was pending, the Court did not 
issue a stay of execution in the interim. In the 1990 case of 
``(Alexzene) Hamilton v. Texas,'' 497 U.S. 1016, the Supreme Court 
failed to issue a stay of execution while considering a cert. petition, 
and the defendant was executed before the Court ruled on the petition. 
James Smith was convicted in 1984 of committing murder while 
perpetrating a robbery in 1983. He was sentenced to death. Smith 
appealed his conviction to the Texas Court of Criminal Appeals, citing 
seven points of errors, ranging from insufficiency of evidence to 
sustain a death sentence to challenges to the jury selection process in 
the trial. ``Smith v. State,'' 744 S.W.2d 86, Tex. Crim. App. 1987. In 
1987, that court affirmed his conviction and sentence. In April, 1988, 
Smith waived any further appellate review of his case. His mother, 
Alexzene Hamilton, then entered the case, and filed a state habeas 
corpus petition in the Court of Criminal Appeals, claiming that her son 
was incompetent. The state responded to the mother's petition, and the 
Texas court denied relief. Ms. Hamilton then brought a petition for 
certiorari in the Supreme Court. The Supreme Court granted a stay of 
execution pending disposition of the cert. petition. ``Hamilton v. 
Texas,'' 485 U.S. 1042, 1988. The Court entered an order stating that 
the ``stay of execution of sentence of death . . . is granted pending 
the disposition by [the] Court of petition for writ of certiorari. 
Should the petition for a writ of certiorari be denied, this stay 
terminates automatically. In the event the petition . . . is granted, 
this stay shall continue pending the issuance of the mandate of [the] 
Court.'' Id. On April 3, 1990, the cert. petition was denied. 
``Hamilton v. Texas,'' 496 U.S. 913, 1990. In May, 1990, the state 
trial court conducted a hearing and found that Smith still wanted to 
waive his appellate rights and that he was still competent. The trial 
court scheduled his execution for June 26, 1990. Ms. Hamilton again 
brought a writ of habeas corpus in the state courts on June 20, 1990, 
challenging the court's finding that Smith was competent. On June 22, 
1990, the state courts denied this petition.
  Ms. Hamilton then filed a habeas petition in federal district court 
on June 23, 1990, which the court denied on June 24th. However, Dr. 
Brown, one of the several doctors that had previously

[[Page S3862]]

opined that Smith was competent, stated that he now had some doubts of 
Smith's competency due to his review of some medical records he had not 
previously seen. The federal district court found that this new opinion 
did not affect its findings, and denied Ms. Hamilton's request for 
reconsideration. On June 25th, the state trial court had Dr. Brown re-
examine Smith, and Dr. Brown then returned to his original opinion that 
Smith was competent. On the same day, the trial court then denied Ms. 
Hamilton's habeas corpus petition. The Texas Court of Criminal Appeals 
also dismissed Ms. Hamilton's motion for reconsideration on the same 
day. Additionally, on the same day, the United States Court of Appeals 
for the Fifth Circuit affirmed the federal district court's dismissal 
of the habeas petition and denied her motion for a stay of execution. 
``Hamilton v. Collins,'' 905 F.2d 825, 5th Cir. 1990. Ms. Hamilton then 
filed petitions for certiorari, asking the Supreme Court to review both 
the state and federal court decisions and for a stay of execution. On 
June 26, 1990, the originally scheduled execution date, four Supreme 
Court Justices voted to grant certiorari, but for some unknown 
procedural reason, the Court did not formally act on the petition. The 
Court also did not vote to grant a stay of execution. Smith was 
subsequently executed before the Supreme Court decided on his cert. 
petition. The Supreme Court then denied Smith's petitions of 
certiorari. ``Hamilton v. Collins,'' 498 U.S. 895, 1990; ``Hamilton v. 
Texas,'' 498 U.S. 908, 1990. In denying the petition from the state 
court decision, the Court noted that it was dismissing the petition as 
``moot.'' 498 U.S. 908, Stevens, J., concurring in the dismissal of the 
petition.

  In the 1992 case of ``Herrera v. Collins,'' 502 U.S. 1085, the Court 
actually granted certiorari but failed to issue the stay. Herrera had 
been convicted of the 1981 murder of two police officers. Herrera then 
pursued two lines of appeals through the Texas state system--direct 
appeal and then collateral proceedings. Herrera then pursued two 
sequential federal habeas corpus proceedings. During these proceedings, 
certiorari had been denied three times, but on the second federal 
habeas proceeding, certiorari was granted. Herrera's claim was that he 
was actually innocent in this proceeding. After granting certiorari, 
the Supreme Court failed to grant a stay of execution. However, in that 
case, the Texas Court of Criminal Appeals granted a stay while the case 
was pending before the Supreme Court. Herrera's claim was ultimately 
denied by the Supreme Court and he was executed.
  The reason for this sequence is a procedural twist. By Supreme Court 
practice, it takes only four votes to grant certiorari. Although 
certiorari is recognized by statute as the procedure for getting a case 
before the Court, the statute does not state how many votes are needed. 
The four vote standard is the practice of the Court. However, to grant 
a stay, there must be a majority--five votes--and the standard the 
Court applies is different from that for granting certiorari. There may 
be good reasons why the standard is different, and in almost all other 
cases, the failure to grant a stay when certiorari has been granted or 
while the Court is still considering whether to grant certiorari does 
not have the dispositive effect that it does in a capital punishment 
case. However, in a capital case, the failure to grant a stay while the 
Court considers whether to even hear the case sends the signal that the 
Court is, in effect, affirming the decision of a lower court before it 
even decides that the lower court's decision is worthy of affirmation. 
In a case where the Court has actually granted certiorari and failed to 
issue a stay the Court, in effect, tells the world that a case is 
important enough to be heard, but not important enough to postpone an 
execution.
  Until relatively recently, the Supreme Court had an ``informal'' 
practice where a fifth Justice would vote to grant a stay when four 
justices had voted to grant certiorari. The late Justice Brennan 
articulated the rationale for this rule:

  A minority of the Justices has the power to grant a petition for 
certiorari over the objection of five Justices. The reason for this 
``antimajoritarianism'' is evident: in the context of a preliminary 5-4 
vote to deny, 5 give the 4 an opportunity to change at least one mind. 
Accordingly, when four vote to grant certiorari in a capital case, but 
there is not a fifth vote to stay the scheduled execution, one of the 
five Justices who does not believe the case worthy of granting 
certiorari will nonetheless vote to stay; this is so that the ``Rule of 
Four'' will not be rendered meaningless by an execution that occurs 
before the Court considers the case on the merits. ``Straight v. 
Wainwright,'' 476 U.S. 1132, 1134-35, 1986, Brennan, J., dissenting. 
Justice Brennan's argument requires no further elaboration.

  Justice Brennan's opinion involved a ``hold'' case, where he was 
arguing that a stay should have been granted. The ``hold'' is an 
informal practice whereby at least three Justices of the Supreme Court 
can ``hold'' the Court from acting on a petition for certiorari so that 
the Court does not deny the petition. A ``hold'' is placed on a case 
when the Court has another case pending before the Court, the 
disposition of which may have an affect on the first case.
  In addition to Justice Brennan's argument, there are other reasons 
why a stay should be granted. In my experience as District Attorney in 
Philadelphia, and conducting oversight of the Justice Department while 
serving in the Senate, one theme is constant concerning our system of 
criminal justice: It rests on a bedrock that all Americans see the 
system as being fair to all. When the average American questions the 
fundamental fairness of any aspect of the criminal justice system, then 
it is in trouble. To the average American, when the Supreme Court has 
not yet decided whether it should consider a case or, has in fact, 
decided to consider a case by granting certiorari, but then fails to 
act to ensure that it can in actuality hear the case, that raises 
fundamental questions about fairness, regardless of the procedural 
nuances that legally allow for such a result. If we are to maintain 
confidence in our criminal justice system, then it has to be seen as 
fair to all.
  When the Supreme Court takes action like this, in my judgment, it 
denies the defendant his constitutional right of ``due process'' of law 
which, in these circumstances, is colloquially referred to as 
``procedural due process.'' When the government takes action against an 
individual, the essential core of procedural due process is notice and 
an opportunity to be heard. In the instant case, we are not concerned 
with the notice aspect because the defendant knows why he was 
convicted. But when the Supreme Court has a case pending before it-that 
is a motion to stay execution or a petition for certiorari has been 
filed or the Court has issued a writ of certiorari-and then fails to 
grant a stay so that it can actually consider the petition or hear the 
case, it denies the defendant due process of law because the defendant 
is deprived of his right to be heard. A motion for a stay of execution 
should be treated as a petition for certiorari in these circumstances 
because, in effect, the motion is a preliminary petition for 
certiorari.
  As I noted earlier, the writ of certiorari is codified in Title 28 of 
the U.S. Code. No defendant has a constitutional right to have his or 
her case heard by the Supreme Court. But once the defendant files a 
petition, then the defendant has a statutory right to have, at the very 
least, his petition considered by the court and, if the petition is 
granted, then the right to have his case considered by the Court. This 
is the method that Congress has created for the consideration of these 
cases, which does not allow a right of direct appeal. As Congress has 
created this two step procedural mechanism, Congress has the authority 
to ensure that it is effective. The Court does not have to grant a 
petition, but it must, at the very least, not allow a petition to 
become moot before it even makes this very basic decision. The same 
logic applies if the Court grants the petition.

  The Court cannot consider the petition or the case if the defendant 
is executed before the Court acts. When a defendant is executed in 
these circumstances, he is being denied his right to be heard on his 
petition or his case and is therefore denied his basic right to 
``procedural due process.''
  The legislation I propose addresses this issue both at the federal 
and state level. With respect to federal cases, my

[[Page S3863]]

proposed bill would prohibit the Bureau of Prisons or the military from 
executing a death row inmate when a defendant has filed a petition for 
certiorari and when the Supreme Court has granted certiorari. Congress 
created the federal death penalty, and Congress can establish the 
conditions when it can or cannot be carried out. With respect to state 
cases, my bill would address this issue in two different ways.
  First, just as with federal cases, my bill would prohibit the 
executive officer of a state from executing a defendant when a cert. 
petition is pending or has been granted. Congress's authority to 
legislate in this arena is derived from Section V of the 14th Amendment 
which reads that ``[t]he Congress shall have power to enforce, by 
appropriate legislation, the provisions of this article.'' Section 1 of 
that Amendment reads in pertinent part that no ``State [shall] deprive 
any person of life . . . without due process of law. . . .'' As noted 
above, when a person is executed before the Supreme Court has granted 
or denied certiorari or acted on a case once cert. is granted, that 
person is deprived of his or her life without due process of law. My 
bill would also require the Court to treat a motion for a stay of 
execution as a petition for certiorari.
  Furthermore, this bill would also require all federal judges, to 
include Supreme Court justices, to issue a stay whenever a habeas 
corpus case is pending before the judge or judges and the habeas 
petitioner defendant has been sentenced to death. A case is considered 
to be pending if a defendant has filed a notice of appeal, filed a 
motion for a stay of execution, filed a petition for certiorari, or 
when certiorari has been granted. Most death penalty cases, both 
federal and state cases, have their final hearings through federal 
habeas corpus review. Congress has broad authority in the area of 
habeas corpus legislation. Indeed, Congress enacted a similar provision 
as part of the Antiterrorism and Effective Death Penalty Act of 1996. 
28 U.S. Code Section 2262 requires a federal court to issue a stay of 
execution in those circumstances where a defense counsel has been 
appointed to an indigent defendant and a state is seeking to fall 
within the streamlined habeas corpus procedures contained in the Act.
  Additionally, my bill would require a lower court to issue a stay if 
a higher court did not in these circumstances.
  Finally, my bill would require that if four Justices vote to grant 
certiorari in a death penalty case, then certiorari will be granted. 
When a person petitions the Supreme Court to hear his or her case, that 
person expects to have the case heard if four Justices believe it 
should be heard. This is the expectation of all those seeking Supreme 
Court review, an expectation resulting from the practices of the Court. 
The Court already has great discretion not to hear almost all cases it 
does not wish to consider. Congress has given the Court this discretion 
by eliminating almost all avenues of appeal by right to the Court and 
instead giving the Court the power to pick the cases it wants to hear 
through the certiorari process. Accordingly, Congress should have the 
power to require the Court to review those cases where four Justices 
vote to hear the case. The procedures for obtaining access to our 
courts should be as transparent as possible, and it simply defies logic 
and makes a mockery of the phrase ``equal justice'' when four votes in 
one set of circumstances can result in Supreme Court review of a case, 
but not in other circumstances.
  The second title is ``TITLE II: DNA Testing.''
  My bill also addresses the issue of DNA testing for prisoners who 
claim that such testing would exonerate them. This bill would establish 
the procedures for federal prisoners who seek such review. It would 
also mandate that states adopt similar procedures. My bill would 
establish federal procedures that set a middle ground between the two 
DNA bills that are currently pending before the Senate.
  My bill requires that a person seeking DNA testing not take a 
position inconsistent with any affirmative defense he may have raised 
at trial. An affirmative defense is one such as self-defense, where a 
defendant is not denying that he committed one or more of the acts 
constituting the charged offense, but the defendant is denying criminal 
responsibility. One of the other pending bills does not have any 
similar provision, and another bill requires that the defendant's 
current theory of defense not be inconsistent with a prior theory of 
defense. However, my bill would allow a defendant who pled guilty to 
request DNA testing. Unfortunately, there are instances where due to 
inadequate representation or lack of sophistication on a defendant's 
part, or for a variety of other reasons, a defendant will plead guilty 
to a crime that he did not commit. My bill would allow such a defendant 
to seek DNA testing.
  Another difference is that my bill has a five year limitation on its 
application, with one exception regarding newly discovered evidence. 
One of the other pending bills has no time limitation, and the other 
has a three year time limitation. The thrust of all the pending DNA 
bills is to allow a prisoner to seek potentially exculpatory DNA 
testing, even though such a request would otherwise be barred on 
procedural grounds, such as timeliness requirements.
  My bill would benefit those defendants currently incarcerated who did 
not have access to DNA testing at the time of their trials. My bill 
defines lack of access rather broadly. If 1, the technology was 
actually not available, or 2, it was not generally known that such 
testing was available at the time of trial, or 3, if the technology was 
available and the testing was not requested and the applicant shows 
that the failure to have requested testing is attributable to deficient 
performance on his counsel's part, then the applicant is deemed not to 
have had access to the testing. The bill would allow a prisoner to seek 
testing for up to five years after the enactment of the bill, with the 
exceptions I noted above. Five years would give all defendants 
currently incarcerated enough time to bring their claims.
  I do not propose that there be no time limitation, because I do not 
want to create an exception that could conceivably swallow the time 
limitations currently existing in federal law.
  However, that concern may be misplaced. A track record of five years 
can tell us if this bill is ripe for abuse. If not, then the bill can 
be reenacted with no time limit. If, however, there is evidence that is 
being abused by prisoners, then the law would expire. Based on my 
experience as a prosecutor, I am concerned that the three year 
limitation is not long enough to develop a good track record on the use 
of this testing.
  There would be an exception for this five year limitation. If a 
prisoner can show that there is newly discovered evidence in his case, 
and such evidence could not have been discovered through due diligence, 
or the failure to discover the evidence is attributable to deficient 
performance on his counsel's part, then he could bring a claim beyond 
the five year limit. This exception is consistent with the laws 
currently in force concerning newly discovered evidence.

  Some may question the need for these DNA testing procedures in 
federal cases, as the level of practice and standard of representation 
is considered to be of the highest caliber. Even at that level there 
can be problems. Even though it did not involve DNA testing, we had the 
case of Timothy McVeigh when only days before his scheduled execution 
the FBI announced that it had discovered documents it had failed to 
provide the defense before trial. This highlights that even at the 
federal level mistakes can be made. This bill would provide one 
safeguard against such mistakes.
  My bill would also mandate that states provide similar procedures to 
state prisoners in all cases. One of the pending bills has such a 
requirement, but only in capital cases. DNA evidence is such a powerful 
tool that can exonerate the unjustly convicted that I believe Congress 
has the authority pursuant to Section V of the 14th Amendment to impose 
post-conviction DNA testing requirements on the states.
  In 1963, the United States Supreme Court decided the seminal case of 
``Brady v. Maryland,'' 373 U.S. 83, where the Court held that 
``suppression by the prosecution of evidence favorable to an accused . 
. . violates due process where the evidence is material either to guilt 
or punishment . . . .'' The Court also noted that ``[s]ociety wins not 
only when the guilty are convicted but when criminal trials are

[[Page S3864]]

fair; our system of the administration of justice suffers when any 
accused is treated unfairly.'' Congress has the authority to enact 
legislation to enforce the protections of the ``due process'' clause 
through Section V of the 14th Amendment.
  DNA evidence is the most powerful evidence that can be ``favorable to 
an accused,'' because it can prove that the accused did not commit the 
crime. But when DNA evidence remains in the hands of the state 
untested, we do not know if it is favorable or unfavorable to the 
accused. It really is not ``evidence'' until it is tested, because its 
relevancy to guilt or innocence cannot be determined without testing. 
When a state does not provide a defendant with the opportunity to 
determine whether evidence may exculpate him, the state is, in effect, 
``suppressing . . . favorable evidence'' by not allowing a defendant to 
determine whether it is favorable or not.
  DNA evidence has proven to be extremely valuable to the criminal 
justice system. It has aided prosecutions and freed unjustly convicted 
persons. Since 1973, over 100 people have been freed from Death Row, at 
least 10 due to DNA testing. Additionally, over a total of 100 people 
have been freed after having been exonerated in both capital cases and 
non-capital cases due to DNA testing. The FBI has found that since 
1989, DNA testing has cleared about 25% of sexual assault suspects 
whose samples are sent to the FBI for testing. Indeed, DNA evidence can 
be a stronger indicator of innocence than guilt. If the defendant's DNA 
does not match the DNA evidence, that is conclusive evidence. However, 
when a match results, in actuality, it is only a probability, albeit a 
very high probability, that the defendant was the source of the DNA.
  In questioning whether the death penalty was being fairly 
administered in the United States, Supreme Court Justice Sandra 
O'Connor noted the number of Death Row inmates freed due to being 
exonerated, to include by DNA testing. Indeed, she commented that 
``[i]f statistics are any indication, the system may well be allowing 
some innocent defendants to be executed.'' This concern was made 
manifest when the Governor of Illinois ordered a moratorium on the 
death penalty after 13 Death Row inmates were exonerated. Justice 
O'Connor also noted that the availability of DNA testing in the various 
states varied widely, with some states affording this post-conviction 
DNA testing and others not providing any at all. Even in those states 
that offer such testing, there is a wide variation in procedures. My 
bill would require the states to adopt procedures similar to the 
federal standards and thereby promote consistency among the states.

  Indeed, the recent groundswell of opinion questioning the death 
penalty has been based on doubts about its accuracy. Providing Death 
Row defendants with the opportunity for DNA testing would do much to 
allay those concerns.
  But the death penalty is not the only reason for enacting this bill. 
Many federal and state prisoners are currently incarcerated for long 
sentences due to mandatory minimums and Sentencing Guidelines. Indeed, 
the prisoner most recently freed due to DNA testing had served 21 years 
of an 80 year sentence for rape. Additionally, DNA evidence is relevant 
in many types of cases, beyond the classic sex assault cases and 
violent crimes where there is blood evidence. For example, in a bank 
robbery case, the FBI was able to connect a suspected robber to the 
case by recovering some hairs from a woolen cap the robber used as a 
mask. Obviously, such evidence could also be used to exonerate a 
defendant.
  However, in order for this DNA testing to be of any use, there must 
be evidence to test. That is why this bill requires the preservation of 
biological evidence for the five year period after the enactment of 
this bill or, if someone requests testing pursuant to this bill, while 
those proceedings are underway.
  This bill does more than provide justice to wrongfully convicted 
defendants. It also protects the public. When a person is wrongfully 
convicted of murder or rape, that allows the real perpetrator to remain 
at large. And based on my experience as District Attorney, sexual 
predators, especially those who prey on children, have the highest 
levels of recidivism.
  As noted above, the authority for enacting this provision is Section 
V of the 14th Amendment to the Constitution. When a state fails to 
provide DNA testing that might bear on the guilt or innocence of a 
defendant, then the state is depriving the defendant of his life or 
liberty without due process of law. The state's interest in the 
finality of a conviction is strong. However, when balancing that 
interest against a prisoner's interest in not being wrongfully 
executed, justice cries out for access to DNA testing.
  The need for Congress to address this issue was highlighted by two 
recent federal court decisions that addressed giving state prisoners 
access to DNA testing. In the 2001 case of ``Godschalk v. Montgomery 
County District Attorney's Office,'' 177 F.Supp.2d 366, Judge Charles 
R. Weiner of the United States District Court for the Eastern District 
of Pennsylvania ruled that a prisoner who sought DNA testing had a 
right to such testing pursuant to the Due Process clause of the 14th 
Amendment because such evidence could be exculpatory evidence as 
defined by ``Brady v. Maryland'' and its progeny. In 1987, Godschalk 
had been convicted of two rapes committed in 1986. At the time of 
trial, DNA testing was not available. At the trial, the prosecution 
introduced an audiotaped confession by Godschalk that contained details 
of the crimes not known to the public. Godschalk's state appeals of his 
convictions were denied, as well as his petitions for DNA testing. 
Godschalk then brought an action pursuant to 42 U.S. Code Section 1983 
seeking DNA testing. The evidence from only one of the rapes was still 
in a condition so that it could be tested, but there was no dispute 
that the same person committed both rapes. The court ordered the DNA 
testing, noting that ``[w]hile [Godschalk's] detailed confessions to 
the rapes are powerful inculpatory evidence, so to any DNA testing that 
would exclude [Godschalk] as the source of the genetic material taken 
from the victims would be powerful exculpatory evidence. . . . Given 
the well-known powerful exculpatory effect of DNA testing, confidence 
in the jury's finding of [Godschalk's] guilt at his past trial, where 
such evidence was not considered, would be undermined.'' 177 F.Supp.2d 
at 370. The evidence was tested, and it did not match Godschalks's DNA, 
and he was subsequently freed.

  The United States Court of Appeals for the Fourth Circuit reached a 
different result in the 2002 case of ``Harvey v. Horan,'' 278 F.3d at 
370. In that case, Harvey had been convicted of rape and forcible 
sodomy. Harvey brought a Section 1983 action to have the evidence in 
that case tested with a new DNA technology that had not been available 
at the time of his trial. The district court granted his request, but 
on appeal the Fourth Circuit found his request to be procedurally 
barred. The court found that Section 1983 was not the proper path for 
such a request and that Harvey's request was, in effect, a petition for 
habeas corpus, which was statutorily barred as a successive petition. 
The court specifically noted that Harvey's path of redress was either 
through the state courts and legislature or Congress, stating that 
``[f]ederal and state legislatures and state courts are free in ways 
that [the federal court is] not to set the ground rules by which 
further collateral attacks on state convictions such as Harvey's may be 
entertained.'' 278 F.3d at 380. The purpose of my bill is to establish 
those ``ground rules.''
  The third title is ``Title III: Counsel Standards.''
  Finally, my bill would establish minimal standards for defense 
counsel in state court cases where the defendant is facing the death 
penalty. In 1991, when my distinguished colleague and friend Senator 
Biden chaired the Judiciary Committee, he asked Professor James Liebman 
of Columbia Law School to calculate the frequency of relief in capital 
habeas corpus cases. This ultimately led Professor Liebman to conduct a 
study of the error rates in capital cases. His study found that one of 
the two most common errors prompting a majority of reversals at the 
state post-conviction stage was ``egregiously incompetent defense 
lawyers who didn't even look for and demonstrably missed important 
evidence

[[Page S3865]]

that the defendant was innocent or did not deserve to die . . . .'' In 
a more recent study released this year, Professor Liebman again cited 
the poor quality of defense counsel as a contributing factor to 
erroneous results in capital cases. And we all have heard the stories 
of defense counsel sleeping during the course of a capital trial.
  My bill would establish minimal standards for defense counsel in 
capital cases who represent indigent defendants. The standards I 
propose are the same that are required in federal courts and establish 
an absolute floor for competence of counsel, both at the trial level 
and the appellate level. Unlike the other two pending bills, my bill 
would establish and mandate actual standards. If these standards are 
good enough for the federal courts, they should be good enough for 
state courts. They are specific enough to ensure that a defendant 
receives competent representation but also general enough so that they 
could be applied throughout the United States. Among other 
requirements, the bill would require that any counsel have several 
years of felony experience, and that a defendant would have a right to 
two defense counsel at trial.

  One of the requirements is that defense counsel be ``learned in the 
law applicable to capital cases.'' Concededly, this is a rather general 
requirement which we can develop and explore at hearings on this bill 
and bring more definition to through legislative history or amending 
the bill. However, such generic language would allow flexibility 
between the different states, where the number of capital cases vary 
widely. For example, there may be a very experienced felony defense 
counsel who has never actually tried a capital case, but has attended 
several training sessions put on by the ABA or an equivalent 
organization. Why should not such a person be deemed competent to serve 
as defense counsel in a capital case even though he or she may have 
never defended such a case before? And this ``generic'' requirement 
will have a strict enforcement mechanism described below that will 
ensure it has ``teeth.''
  In the seminal 1963 case of ``Gideon v. Wainwright,'' 372 U.S. 335, 
the Supreme Court recognized that indigent defendants have a 
constitutional right to be represented by counsel in criminal cases. In 
the 1984 case of ``Strickland v. Washington,'' 466 U.S. 668, the 
Supreme Court held that a defendant has a constitutional right to 
effective assistance of counsel guaranteed by the 6th Amendment to the 
Constitution, and that this requirement applied to the states through 
the due process clause of the 14th Amendment. Interestingly, 
``Strickland'' was a death penalty case.
  As these rights are guaranteed by the Constitution and apply to the 
states through the ``due process'' clause of the 14th Amendment, 
Congress has the authority to enforce these rights through Section V of 
that Amendment. There is no doubt that there is state action in these 
circumstances, as the state is responsible for appointing and 
compensating the counsel representing indigent defendants.
  My bill, however, also contains an additional enforcement mechanism. 
``Strickland'' identified a two-part analysis in determining whether 
there was a constitutional violation due to ineffective assistance of 
counsel. The first prong of that analysis is a determination whether 
``counsel's performance was deficient,'' that is, whether the ``counsel 
made errors so serious that counsel was not functioning as the 
`counsel' guaranteed the defendant by the Sixth Amendment.'' 
``Strickland,'' 466 U.S. at 687. The second prong requires a 
determination as to whether the ``counsel's errors were so serious as 
to deprive the defendant of a fair trial, a trial whose result is 
reliable.'' Id. A defendant must establish both prongs to make a 
successful challenge. My bill would, in effect, eliminate the first 
prong of the analysis in a habeas corpus proceeding. If a defendant's 
counsel did not meet the standards established by my bill, then the 
first prong of ``deficient performance'' would be deemed to have been 
met. The defendant would then only have to satisfy the requirements of 
the second prong, thus allowing him to challenge the decisions his 
counsel made that influenced the outcome of the trial, without having 
to fear that the habeas court would deem such decisions to be 
``tactical'' decisions that were within the realm of reasonable 
practice. However, if a state adopted the standards contained in my 
bill, a defendant would have to make both showings, as required by 
current law. A habeas court's review as to whether these standards were 
met will be ``de novo'' and the State would have the burden of proving 
that the standards had been met.
  This overall enforcement provision is analogous to the provision I 
referred to earlier in the 1996 antiterrorism act, that provided for 
expedited habeas review if a state adopted certain procedures for 
indigent defendants.
  The provisions of my bill are all aimed at achieving one goal--
securing for all defendants throughout the criminal justice process all 
the protections guaranteed by the ``due process'' clause and thereby 
ensuring that they receive fair treatment throughout the process, 
regardless of their income level.
  Mr. President, I ask unanimous consent that the bill containing these 
three provisions be printed in the Record.
  Additionally, in order to facilitate hearings or perhaps legislative 
enactment of these bills, I am introducing the three separately: a 
separate bill on DNA evidence; a separate bill on staying execution, 
where the Supreme Court has granted certiorari; and a separate bill on 
adequacy of counsel, so that, in total, four bills are being 
introduced, and I ask that these bills also be printed in the Record.
  There being no objection, the bills were ordered to be printed in the 
Record, as follows:

                                S. 2446

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Confidence 
     in Criminal Justice Act of 2002''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

    TITLE I--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF 
                               CERTIORARI

Sec. 101. Protecting the rights of death row inmates to review of cases 
              granted certiorari.
Sec. 102. Habeas corpus.

                  TITLE II--POSTCONVICTION DNA TESTING

Sec. 201. Postconviction DNA testing.
Sec. 202. Prohibition pursuant to section 5 of the 14th amendment.

TITLE III--MANDATORY MINIMAL DEFENSE COUNSEL STANDARDS IN STATE COURTS 
                           FOR CAPITAL CASES.

Sec. 301. Right to legal representation for indigent defendants.
Sec. 302. Minimum experience required for defense counsel.
Sec. 303. Adequate representation.
Sec. 304. Attorney fees and costs.
Sec. 305. Irrebuttable presumption of deficient performance.

    TITLE I--RIGHT TO REVIEW OF THE DEATH PENALTY UPON THE GRANT OF 
                               CERTIORARI

     SEC. 101. PROTECTING THE RIGHTS OF DEATH ROW INMATES TO 
                   REVIEW OF CASES GRANTED CERTIORARI.

       Section 2101 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(h) Upon notice by a party that has filed a motion for a 
     stay of execution or filed for certiorari with, or has been 
     granted certiorari by, the United States Supreme Court in an 
     appeal from a case in which the sentence is death, the 
     Governor of the State in which the death sentence is to be 
     carried out, in a State case, or the Director of the Bureau 
     of Prisons, the Secretary of a military branch, or any other 
     Federal official with authority to carry out the death 
     sentence, in a Federal case, shall suspend the execution of 
     the sentence of death until the United States Supreme Court 
     enters a stay of execution or until certiorari is acted upon 
     and the case is disposed of by the United States Supreme 
     Court.
       ``(i) For purposes of this section, the United States 
     Supreme Court shall treat a motion for a stay of execution as 
     a petition for certiorari.
       ``(j) In an appeal from a case in which the sentence is 
     death, a writ of certiorari shall be issued by the United 
     States Supreme Court upon the vote of at least 4 qualified 
     justices.''.

     SEC. 102. HABEAS CORPUS.

       (a) State Court Proceedings.--Section 2251 of title 28, 
     United States Code, is amended--
       (1) by inserting ``(a)'' at the beginning of the text;
       (2) by inserting ``(b)'' before the second sentence; and
       (3) by adding at the end the following:
       ``(c)(1) Notwithstanding any other provision of law, a 
     justice or judge of the United States before whom a habeas 
     corpus proceeding that involves the death sentence is

[[Page S3866]]

     pending shall stay the execution of the death sentence until 
     the proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``(2) For purposes of this subsection, a case is pending 
     before a court in the Circuit Court of Appeals if a notice of 
     appeal has been filed and is pending before the United States 
     Supreme Court, if a petition for certiorari has been filed, 
     or if a motion to stay execution has been filed.
       ``(3) A case described in paragraph (2) remains pending 
     before the court until the petition for certiorari is denied. 
     If the petition is granted, the case remains pending.
       ``(4) If a higher court is unable or fails to issue a stay 
     pursuant to this subsection, a lower court before which the 
     case had been pending shall issue the stay of execution.
       ``(d) For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari.''.
       (b) Federal Court Proceedings.--Section 2255 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``Notwithstanding any other provision of law, a justice or 
     judge of the United States, before whom a habeas corpus 
     proceeding that involves a Federal death sentence is pending, 
     shall stay the execution of the death sentence until the 
     proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``If a higher court is unable or fails to issue a stay 
     pursuant to the preceding paragraph, a lower court before 
     which the case had been pending shall issue the stay of 
     execution. For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari. A 
     case described in the preceding paragraph--
       ``(1) is pending before a court in the Circuit Court of 
     Appeals if a notice of appeal has been filed; and
       ``(2) is pending before the United States Supreme Court 
     if--
       ``(A) a petition for certiorari has been filed and has not 
     been denied; or
       ``(B) a motion to stay execution has been filed.''.

                 TITLE II--POST-CONVICTION DNA TESTING

     SEC. 201. POST-CONVICTION DNA TESTING.

       (a) Federal Criminal Procedure.--
       (1) In general.--Part II of title 18, United States Code, 
     is amended by inserting after chapter 228 the following:

              ``CHAPTER 228A--POST-CONVICTION DNA TESTING

``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.

     ``Sec. 3600. DNA testing

       ``(a) Motion.--
       ``(1) In general.--An individual imprisoned because of a 
     conviction of a criminal offense in a court of the United 
     States (referred to in this section as the `applicant') may 
     make a written motion to the court that entered the judgment 
     of conviction for the performance of forensic DNA testing on 
     specified evidence that was secured in relation to the 
     investigation or prosecution that resulted in the conviction.
       ``(2) Contents.--The motion shall--
       ``(A) include an assertion by the applicant, under penalty 
     of perjury, that the applicant is actually innocent of the 
     crime for which the applicant is imprisoned or of uncharged 
     conduct, if the exoneration of the applicant of such conduct 
     would result in a mandatory reduction in the sentence of the 
     applicant;
       ``(B) identify the specific evidence secured in relation to 
     the investigation or prosecution that resulted in the 
     conviction for which testing is requested;
       ``(C) identify a theory of defense--
       ``(i) the validity of which would establish the actual 
     innocence of the applicant, and explain how the requested DNA 
     testing would substantiate that theory; and
       ``(ii) that is not inconsistent with any affirmative 
     defense issued by the applicant in the original prosecution;
       ``(D) make a prima facie showing that the conditions set 
     forth in subsection (c) for issuance of a testing order are 
     satisfied; and
       ``(E) certify that the applicant will provide a DNA sample 
     from the applicant for purposes of comparison.
       ``(3) Filing.--A motion filed under this section is timely 
     if--
       ``(A) it is filed within 60 months of the date of enactment 
     of this section;
       ``(B) the applicant can show that--
       ``(i) the evidence identified pursuant to paragraph (2)(B) 
     is newly discovered; and
       ``(ii)(I) such evidence could not have been discovered 
     through the exercise of due diligence; or
       ``(II) the proximate cause for not having previously 
     discovered such evidence was the deficient performance of the 
     attorney of the applicant; or
       ``(C) the applicant can show that--
       ``(i)(I) the technology for the requested DNA testing was 
     not available at the time of trial;
       ``(II) it was not generally known that such technology was 
     available at the time of trial; or
       ``(III) the failure to request such testing using the 
     technology was due to the deficient performance of the 
     attorney of the applicant; and
       ``(ii) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer 
     technology for DNA testing that is reasonably certain to 
     provide results that are substantially more accurate and 
     probative than any previous DNA testing of the evidence.
       ``(b) Notice to the Government; Preservation Order; 
     Appointment of Counsel.--
       ``(1) Notice to the government.--Upon receipt of a motion 
     under subsection (a), the court shall promptly notify the 
     government of the motion and afford the government an 
     opportunity to respond to the motion.
       ``(2) Preservation order.--The court may direct the 
     government to preserve any evidence to which a motion under 
     subsection (a) relates to the extent necessary to carry out 
     proceedings under this section.
       ``(3) Appointment of counsel.--The court may appoint 
     counsel for an indigent applicant under this section in 
     accordance with section 3006A of this title.
       ``(c) Order for DNA Testing.--The court shall order the DNA 
     testing requested in a motion filed under this section if--
       ``(1) the motion satisfies the requirements of subsection 
     (a);
       ``(2)(A) the identity of the perpetrator was at issue in 
     the trial that resulted in the conviction of the applicant; 
     or
       ``(B) in a case where the applicant pled guilty, the 
     identity of the perpetrator would have been at issue at 
     trial;
       ``(3) the evidence to be tested is in the possession of the 
     government and has been subject to a chain of custody and 
     retained under conditions sufficient to ensure that it has 
     not been substituted, contaminated, tampered with, replaced, 
     or altered in any respect material to the requested DNA 
     testing;
       ``(4)(A)(i) the technology for the requested DNA testing 
     was not available at the time of trial;
       ``(ii) it was not generally known that such technology was 
     available; or
       ``(iii) the applicant can show that the failure to request 
     such testing was due to the deficient performance of the 
     attorney of the applicant; and
       ``(B) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer DNA 
     testing technique which is reasonably certain to provide 
     results that are substantially more accurate and probative 
     than any previous DNA testing of the evidence;
       ``(5) the proposed DNA testing uses scientifically sound 
     methods and is consistent with accepted forensic practice;
       ``(6) the proposed DNA testing is reasonable in scope; and
       ``(7) the court determines, after review of the record of 
     the trial of the applicant and any other relevant evidence, 
     that there is a reasonable probability that the results of 
     the proposed DNA testing will enable the applicant to 
     establish that the applicant is entitled to a new trial under 
     the standard of subsection (e)(3).
       ``(d) Testing Procedures; Reporting of Test Results.--
       ``(1) Testing procedures.--The court shall direct that any 
     DNA testing ordered under this section be carried out by--
       ``(A) a laboratory mutually selected by the government and 
     the applicant; or
       ``(B) if the government and the applicant are unable to 
     agree on a laboratory, a laboratory selected by the court 
     ordering the testing.
       ``(2) Laboratory approval.--With respect to DNA testing by 
     a laboratory in accordance with this subsection, other than 
     an FBI laboratory, the court must approve the selection of 
     the laboratory and make all necessary orders to ensure the 
     integrity of the evidence and the testing process and the 
     reliability of the test results.
       ``(3) Laboratory costs.--The applicant shall pay the cost 
     of any testing by a laboratory in accordance with this 
     subsection, other than an FBI laboratory, except that the 
     court shall pay, in accordance with section 3006A of this 
     title, the cost if the applicant would otherwise be 
     financially incapable of securing such testing.
       ``(4) Disclosure of test results.--The results of any DNA 
     testing ordered under this section--
       ``(A) shall be disclosed to--
       ``(i) the court;
       ``(ii) the applicant;
       ``(iii) the government; and
       ``(iv) the appropriate agency under subsection 
     (e)(3)(B)(ii); and
       ``(B) shall be included in the Combined DNA Index System if 
     the conditions set forth in subsection (e)(2) are met.
       ``(e) Posttesting Procedures.--
       ``(1) Inconclusive result.--If the DNA testing results are 
     inconclusive, the court may order further testing, as 
     appropriate, or may deny the applicant relief.
       ``(2) Positive result.--If DNA testing results obtained 
     under this section show that the applicant was the source of 
     the DNA identified as evidence under subsection (a)(2)(B), 
     the court shall--
       ``(A) deny the applicant relief;
       ``(B) submit the DNA testing results to the Department of 
     Justice for inclusion in the Combined DNA Index System; and
       ``(C) on motion of the government, proceed as provided in 
     paragraph (5)(A).
       ``(3) Negative result.--If DNA testing results obtained 
     under this section show that the applicant was not the source 
     of the DNA identified as evidence under subsection 
     (a)(2)(B)--
       ``(A) the court shall promptly--

[[Page S3867]]

       ``(i) order any further DNA testing needed to clarify the 
     import of the test results, including any testing needed to 
     exclude persons other than the perpetrator of the crime as 
     potential sources of the DNA evidence; and
       ``(ii) determine whether the applicant is entitled to 
     relief under paragraph (4); and
       ``(B) the Attorney General shall--
       ``(i) compare the DNA evidence collected from the applicant 
     with DNA evidence in the Combined DNA Index System that has 
     been collected from unsolved crimes;
       ``(ii) if the comparison yields a DNA match with an 
     unsolved crime, notify the appropriate agency and preserve 
     the DNA sample; and
       ``(iii) if the comparison fails to yield a DNA match with 
     an unsolved crime, destroy the DNA sample collected from the 
     applicant.
       ``(4) Exculpatory evidence.--If the DNA testing conducted 
     under this section produces exculpatory evidence--
       ``(A) the applicant may, during the 60-day period beginning 
     on the date on which the applicant is notified of the test 
     results, make a motion to the court that ordered the testing 
     for a new trial based on newly discovered evidence under rule 
     33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such a 
     motion as untimely; and
       ``(B) upon receipt of a motion under subparagraph (A), the 
     court that ordered the testing shall consider the motion 
     under rule 33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such 
     consideration as untimely.
       ``(5) Failure to obtain relief.--
       ``(A) In general.--If the applicant fails to obtain relief 
     under this subsection, the court, on motion by the 
     government, shall make a determination whether the assertion 
     of innocence by the applicant was false.
       ``(B) False assertion.--If the court finds that the 
     assertion of innocence by the applicant was false, the 
     court--
       ``(i) may hold the applicant in contempt;
       ``(ii) shall assess against the applicant the cost of any 
     DNA testing carried out under this section; and
       ``(iii) shall forward the finding to the Director of the 
     Bureau of Prisons.
       ``(C) Bureau of prisons.--On receipt of a finding by the 
     court under this paragraph, the Director of the Bureau of 
     Prisons may deny, wholly or in part, the good conduct credit 
     authorized under section 3624 of this title, on the basis of 
     that finding.
       ``(D) Parole commission.--If the applicant is subject to 
     the jurisdiction of the United States Parole Commission, the 
     court shall forward its finding under this paragraph to the 
     Parole Commission, and the Parole Commission may deny parole 
     on the basis of that finding.
       ``(E) Penalty.--In any prosecution of an applicant under 
     chapter 79 of this title, for false assertions or other 
     conduct in proceedings under this section, the court, upon 
     conviction of the applicant, shall sentence the applicant to 
     a term of imprisonment of 1 year, which shall run 
     consecutively to any other term of imprisonment the applicant 
     is serving.
       ``(f) Final Order.--An order granting or denying DNA 
     testing under subsection (c), or an order granting or denying 
     a new trial under subsection (e), is a final order for 
     purposes of section 1291 of title 28.
       ``(g) Time Limits Inapplicable; Other Remedies 
     Unaffected.--Notwithstanding any time limit otherwise 
     applicable to motions for new trials based on newly 
     discovered evidence, a court may grant relief under 
     subsection (e) to an applicant, at any time.
       ``(h) Other Remedies Unaffected.--This section does not 
     affect the circumstances under which a person may obtain DNA 
     testing or postconviction relief under any other law or rule.

     ``Sec. 3600A. Prohibition on destruction of biological 
       material

       ``(a) Prohibition.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, during the period described in paragraph (2), the 
     government shall not destroy any biological material 
     preserved if the defendant is serving a term of imprisonment 
     following conviction in a case.
       ``(2) Period described.--The period described in this 
     paragraph is the period beginning on the date of enactment of 
     this section and ending on the later of--
       ``(A) the expiration of the 60-month period beginning on 
     that date of enactment; or
       ``(B) the date on which any proceedings under section 3600 
     relating to the case are completed.
       ``(b) Sanctions for Intentional Violation.--The court may 
     impose appropriate sanctions, including criminal contempt, 
     for an intentional violation of subsection (a).
       ``(c) Exceptions.--The government may dispose of evidence 
     before the expiration of the period of time described in 
     subsection (a) if--
       ``(1) other than subsection (a), no statute, regulation, 
     court order, or other provision of law requires that the 
     evidence be preserved; and
       ``(2)(A)(i) the government notifies any person who remains 
     incarcerated in connection with the investigation or 
     prosecution and any counsel of record for that person (or, if 
     there is no counsel of record, the public defender for the 
     judicial district in which the conviction for that person was 
     imposed), of the intention of the government to dispose of 
     the evidence and the provisions of this chapter; and
       ``(ii) the government affords such person not less than 180 
     days after such notification to make a motion under section 
     3600(a) for DNA testing of the evidence; or
       ``(B)(i) the evidence must be returned to its rightful 
     owner, or is of such a size, bulk, or physical character as 
     to render retention impracticable; and
       ``(ii) the government takes reasonable measures to remove 
     and preserve portions of the material evidence sufficient to 
     permit future DNA testing.''.
       (2) Technical and conforming amendment.--The analysis for 
     part II of title 18, United States Code, is amended by 
     inserting after the item relating to chapter 228 the 
     following:

``228A.  Postconviction DNA Testing.........................3600''.....

       (b) Applicability.--The provisions and amendments in this 
     section shall take effect on the date of enactment of this 
     Act and shall apply with respect to any offense committed, 
     and to any judgment of conviction entered, before, on, or 
     after that date of enactment.
       (c) Report by the Attorney General.--
       (1) Tracking system.--
       (A) In general.--The Attorney General shall establish a 
     system for reporting and tracking motions under section 3600 
     of title 18, United States Code.
       (B) Requested assistance.--The judicial branch shall 
     provide to the Attorney General any requested assistance in 
     operating a reporting and tracking system and in ensuring the 
     accuracy and completeness of information included in that 
     system.
       (2) Information.--Not later than 180 days before the 
     expiration of the time period referenced in section 
     3600(a)(3)(A) of title 18, United States Code, the Attorney 
     General shall submit a report to Congress containing--
       (A) a summary of the motions filed under section 3600 of 
     title 18, United States Code;
       (B) information on whether DNA testing was ordered pursuant 
     to such motions;
       (C) information on whether the applicant obtained relief on 
     the basis of DNA test results; and
       (D) information on whether further proceedings occurred 
     following a granting of relief and the outcome of those 
     proceedings.
       (3) Assessment.--The report submitted under paragraph (2) 
     may also include--
       (A) any other information that the Attorney General 
     believes will be useful in assessing the operation, utility, 
     or costs of section 3600 of title 18, United States Code; and
       (B) any recommendations that the Attorney General may have 
     relating to future legislative action concerning section 3600 
     of title 18, United States Code.

     SEC. 202. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH 
                   AMENDMENT.

       (a) Application for DNA Testing.--No State shall deny an 
     application for DNA testing made by a prisoner in State 
     custody who would be eligible for such testing under the 
     provisions of sections 3600 and 3600A of title 18, United 
     States Code.
       (b) DNA Testing Procedures.--The procedures for DNA testing 
     for a prisoner in State custody shall be substantially 
     similar to the DNA testing procedures established for Federal 
     courts under sections 3600 and 3600A of title 18, United 
     States Code.
       (c) Remedy.--A prisoner in State custody may enforce 
     subsections (a) and (b) in a civil action for declaratory or 
     injunctive relief, filed either in a State court of general 
     jurisdiction or in a district court of the United States, 
     naming an executive or judicial officer of the State as a 
     defendant.

TITLE III--MANDATORY MINIMAL DEFENSE COUNSEL STANDARDS IN STATE COURTS 
                           FOR CAPITAL CASES

     SEC. 301. RIGHT TO LEGAL REPRESENTATION FOR INDIGENT 
                   DEFENDANTS.

       (a) Preconviction Representation.--Notwithstanding any 
     other provision of law, a defendant in a criminal action in a 
     State court, which may result in punishment by death, who is 
     or becomes financially unable to obtain adequate 
     representation or investigative, expert, or other reasonably 
     necessary services at any time--
       (1) before judgment; or
       (2) after the entry of a judgment imposing a sentence of 
     death, but before the execution of that judgment;

     shall be entitled to the appointment of 1 or more attorneys 
     and the furnishing of such other services in accordance with 
     the provisions of this title.
       (b) Postconviction Representation.--In a postconviction 
     proceeding in which a defendant seeks to vacate or set aside 
     a death sentence, a defendant who is or becomes financially 
     unable to obtain adequate representation or investigative, 
     expert, or other reasonably necessary services shall be 
     entitled to the appointment of 1 or more attorneys and the 
     furnishing of such other services in accordance with the 
     provisions of this title.

     SEC. 302. MINIMUM EXPERIENCE REQUIRED FOR DEFENSE COUNSEL.

       (a) Prejudgment Appointment.--
       (1) In general.--If the appointment of legal counsel under 
     this title is made before judgment, at least 1 attorney so 
     appointed--
       (A) must have been admitted to practice for not less than 5 
     years in the court in which the prosecution is to be tried; 
     and
       (B) must have not less than 3 years experience in the 
     actual trial of felony prosecutions in that court.
       (2) Judicial appointment.--The court before which the 
     defendant is to be tried, or a

[[Page S3868]]

     judge thereof, shall promptly, upon the request of the 
     defendant, assign 2 attorneys to the case.
       (3) Expertise; accessibility.--At least 1 of the attorneys 
     assigned under paragraph (2)--
       (A) shall be learned in the law applicable to capital 
     cases; and
       (B) shall have free access to the accused at all reasonable 
     hours.
       (4) Recommendation.--In assigning counsel under this 
     section, the court shall consider--
       (A) the recommendation of the State public defender 
     organization, community defender organization, or equivalent 
     organization; or
       (B) if no such organization exists in the relevant 
     jurisdiction, the administrative office of the local court or 
     any governmental entity, bar association, or organization 
     with knowledge regarding the skills and qualifications of 
     local defense counsel.
       (5) Witnesses.--The court shall allow a defendant, under 
     this title, to produce lawful witnesses to testify in support 
     of the defendant, and shall compel such witnesses to appear 
     at trial in the same manner that witnesses are compelled to 
     appear on behalf of the prosecution.
       (b) Postjudgment Appointment.--If the appointment is made 
     after judgment, at least 1 attorney appointed shall--
       (1) have been admitted to practice for not less than 5 
     years in the appropriate State appellate court;
       (2) have not less than 3 years experience in the handling 
     of felony appeals in that court; and
       (3) be learned in the law applicable to capital cases.
       (c) Learned Standard.--In determining whether an attorney 
     is learned in the law of capital cases under this section, 
     the State court shall apply the standard used in the courts 
     of the United States.

     SEC. 303. ADEQUATE REPRESENTATION.

       (a) Appointment of Substitute Counsel.--With respect to 
     this section, the court, for good cause, may appoint another 
     attorney whose background, knowledge, or experience would 
     otherwise enable the attorney to properly represent the 
     defendant, with due consideration to the seriousness of the 
     possible penalty and to the unique and complex nature of the 
     litigation.
       (b) Scope of Legal Representation.--Unless replaced by 
     similarly qualified counsel upon the motion of the attorney 
     or the defendant, each attorney appointed under this title 
     shall represent the defendant throughout every stage of 
     available judicial proceedings, including--
       (1) pretrial motions and procedures;
       (2) competency proceedings;
       (3) trial;
       (4) sentencing;
       (5) executive and other clemency proceedings;
       (6) motions for new trial;
       (7) appeals;
       (8) applications for stays of execution; and
       (9) applications for writ of certiorari to the Supreme 
     Court of the United States.
       (c) Additional Services.--
       (1) In general.--Upon a finding that investigative, expert, 
     or other services are reasonably necessary for the 
     representation of the defendant, whether in connection with 
     issues relating to guilt or the sentence, the court may 
     authorize the attorneys for the defendant to obtain such 
     services on behalf of the defendant and, if so authorized, 
     shall order the payment of fees and expenses for such 
     services pursuant to section 304.
       (2) Ex parte communications.--No ex parte proceeding, 
     communication, or request may be considered pursuant to this 
     section unless a proper showing is made concerning the need 
     for confidentiality. Any such proceeding, communication, or 
     request shall be transcribed and made a part of the record 
     available for appellate review.

     SEC. 304. ATTORNEY FEES AND COSTS.

       (a) Attorney Fees.--Compensation shall be paid to attorneys 
     appointed under this title at a rate equivalent to that of 
     attorneys representing defendants in Federal capital cases 
     pursuant to section 408(q)(10)(A) of the Controlled 
     Substances Act (21 U.S.C. 848(q)(10)(A)).
       (b) Additional Expenses.--Fees and expenses paid for 
     investigative, expert, and other reasonably necessary 
     services authorized under this section shall be equivalent to 
     fees paid in Federal capital cases pursuant to section 
     408(q)(10)(B) of the Controlled Substances Act (21 U.S.C. 
     848(q)(10)(B)).
       (c) Public Disclosure.--The amounts paid for services under 
     this section shall be disclosed to the public, after the 
     disposition of the petition.

     SEC. 305. IRREBUTTABLE PRESUMPTION OF DEFICIENT PERFORMANCE.

       (a) In General.--In a proceeding in Federal court pursuant 
     to section 2254 of title 28, United States Code, the failure 
     to comply with the procedures of this title shall create an 
     irrebuttable presumption that the performance of the counsel 
     for the petitioner was deficient.
       (b) Entitlement to Relief; Burden of Proof; Standard of 
     Review.--A petitioner is not entitled to relief unless the 
     petitioner shows that the result of the proceeding would have 
     been different if the performance of the counsel for the 
     petitioner had not been deficient. The party opposing the 
     petition has the burden of establishing that the standards in 
     this section have been met. The court shall conduct a de novo 
     review to settle this issue.
       (c) Other Remedies.--The provisions of this section are not 
     intended to limit any other Federal or State court from 
     enforcing this section by any other appropriate remedy.
                                  ____


                                S. 2441

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

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``Post-
     Conviction DNA Testing Act of 2002''.

     SEC. 2. POST-CONVICTION DNA TESTING.

       (a) Federal Criminal Procedure.--
       (1) In general.--Part II of title 18, United States Code, 
     is amended by inserting after chapter 228 the following:

              ``CHAPTER 228A--POST-CONVICTION DNA TESTING

``Sec.
``3600. DNA testing.
``3600A. Prohibition on destruction of biological evidence.

     ``Sec. 3600. DNA testing

       ``(a) Motion.--
       ``(1) In general.--An individual imprisoned because of a 
     conviction of a criminal offense in a court of the United 
     States (referred to in this section as the `applicant') may 
     make a written motion to the court that entered the judgment 
     of conviction for the performance of forensic DNA testing on 
     specified evidence that was secured in relation to the 
     investigation or prosecution that resulted in the conviction.
       ``(2) Contents.--The motion shall--
       ``(A) include an assertion by the applicant, under penalty 
     of perjury, that the applicant is actually innocent of the 
     crime for which the applicant is imprisoned or of uncharged 
     conduct, if the exoneration of the applicant of such conduct 
     would result in a mandatory reduction in the sentence of the 
     applicant;
       ``(B) identify the specific evidence secured in relation to 
     the investigation or prosecution that resulted in the 
     conviction for which testing is requested;
       ``(C) identify a theory of defense--
       ``(i) the validity of which would establish the actual 
     innocence of the applicant, and explain how the requested DNA 
     testing would substantiate that theory; and
       ``(ii) that is not inconsistent with any affirmative 
     defense issued by the applicant in the original prosecution;
       ``(D) make a prima facie showing that the conditions set 
     forth in subsection (c) for issuance of a testing order are 
     satisfied; and
       ``(E) certify that the applicant will provide a DNA sample 
     from the applicant for purposes of comparison.
       ``(3) Filing.--A motion filed under this section is timely 
     if--
       ``(A) it is filed within 60 months of the date of enactment 
     of this section;
       ``(B) the applicant can show that--
       ``(i) the evidence identified pursuant to paragraph (2)(B) 
     is newly discovered; and
       ``(ii)(I) such evidence could not have been discovered 
     through the exercise of due diligence; or
       ``(II) the proximate cause for not having previously 
     discovered such evidence was the deficient performance of the 
     attorney of the applicant; or
       ``(C) the applicant can show that--
       ``(i)(I) the technology for the requested DNA testing was 
     not available at the time of trial;
       ``(II) it was not generally known that such technology was 
     available at the time of trial; or
       ``(III) the failure to request such testing using the 
     technology was due to the deficient performance of the 
     attorney of the applicant; and
       ``(ii) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer 
     technology for DNA testing that is reasonably certain to 
     provide results that are substantially more accurate and 
     probative than any previous DNA testing of the evidence.
       ``(b) Notice to the Government; Preservation Order; 
     Appointment of Counsel.--
       ``(1) Notice to the government.--Upon receipt of a motion 
     under subsection (a), the court shall promptly notify the 
     government of the motion and afford the government an 
     opportunity to respond to the motion.
       ``(2) Preservation order.--The court may direct the 
     government to preserve any evidence to which a motion under 
     subsection (a) relates to the extent necessary to carry out 
     proceedings under this section.
       ``(3) Appointment of counsel.--The court may appoint 
     counsel for an indigent applicant under this section in 
     accordance with section 3006A of this title.
       ``(c) Order for DNA Testing.--The court shall order the DNA 
     testing requested in a motion filed under this section if--
       ``(1) the motion satisfies the requirements of subsection 
     (a);
       ``(2)(A) the identity of the perpetrator was at issue in 
     the trial that resulted in the conviction of the applicant; 
     or
       ``(B) in a case where the applicant pled guilty, the 
     identity of the perpetrator would have been at issue at 
     trial;
       ``(3) the evidence to be tested is in the possession of the 
     government and has been subject to a chain of custody and 
     retained under conditions sufficient to ensure that it has 
     not been substituted, contaminated, tampered with, replaced, 
     or altered in any respect material to the requested DNA 
     testing;

[[Page S3869]]

       ``(4)(A)(i) the technology for the requested DNA testing 
     was not available at the time of trial;
       ``(ii) it was not generally known that such technology was 
     available; or
       ``(iii) the applicant can show that the failure to request 
     such testing was due to the deficient performance of the 
     attorney of the applicant; and
       ``(B) if any of the evidence was previously subjected to 
     DNA testing, the testing now requested uses a newer DNA 
     testing technique which is reasonably certain to provide 
     results that are substantially more accurate and probative 
     than any previous DNA testing of the evidence;
       ``(5) the proposed DNA testing uses scientifically sound 
     methods and is consistent with accepted forensic practice;
       ``(6) the proposed DNA testing is reasonable in scope; and
       ``(7) the court determines, after review of the record of 
     the trial of the applicant and any other relevant evidence, 
     that there is a reasonable probability that the results of 
     the proposed DNA testing will enable the applicant to 
     establish that the applicant is entitled to a new trial under 
     the standard of subsection (e)(3).
       ``(d) Testing Procedures; Reporting of Test Results.--
       ``(1) Testing procedures.--The court shall direct that any 
     DNA testing ordered under this section be carried out by--
       ``(A) a laboratory mutually selected by the government and 
     the applicant; or
       ``(B) if the government and the applicant are unable to 
     agree on a laboratory, a laboratory selected by the court 
     ordering the testing.
       ``(2) Laboratory approval.--With respect to DNA testing by 
     a laboratory in accordance with this subsection, other than 
     an FBI laboratory, the court must approve the selection of 
     the laboratory and make all necessary orders to ensure the 
     integrity of the evidence and the testing process and the 
     reliability of the test results.
       ``(3) Laboratory costs.--The applicant shall pay the cost 
     of any testing by a laboratory in accordance with this 
     subsection, other than an FBI laboratory, except that the 
     court shall pay, in accordance with section 3006A of this 
     title, the cost if the applicant would otherwise be 
     financially incapable of securing such testing.
       ``(4) Disclosure of test results.--The results of any DNA 
     testing ordered under this section--
       ``(A) shall be disclosed to--
       ``(i) the court;
       ``(ii) the applicant;
       ``(iii) the government; and
       ``(iv) the appropriate agency under subsection 
     (e)(3)(B)(ii); and
       ``(B) shall be included in the Combined DNA Index System if 
     the conditions set forth in subsection (e)(2) are met.
       ``(e) Posttesting Procedures.--
       ``(1) Inconclusive result.--If the DNA testing results are 
     inconclusive, the court may order further testing, as 
     appropriate, or may deny the applicant relief.
       ``(2) Positive result.--If DNA testing results obtained 
     under this section show that the applicant was the source of 
     the DNA identified as evidence under subsection (a)(2)(B), 
     the court shall--
       ``(A) deny the applicant relief;
       ``(B) submit the DNA testing results to the Department of 
     Justice for inclusion in the Combined DNA Index System; and
       ``(C) on motion of the government, proceed as provided in 
     paragraph (5)(A).
       ``(3) Negative result.--If DNA testing results obtained 
     under this section show that the applicant was not the source 
     of the DNA identified as evidence under subsection 
     (a)(2)(B)--
       ``(A) the court shall promptly--
       ``(i) order any further DNA testing needed to clarify the 
     import of the test results, including any testing needed to 
     exclude persons other than the perpetrator of the crime as 
     potential sources of the DNA evidence; and
       ``(ii) determine whether the applicant is entitled to 
     relief under paragraph (4); and
       ``(B) the Attorney General shall--
       ``(i) compare the DNA evidence collected from the applicant 
     with DNA evidence in the Combined DNA Index System that has 
     been collected from unsolved crimes;
       ``(ii) if the comparison yields a DNA match with an 
     unsolved crime, notify the appropriate agency and preserve 
     the DNA sample; and
       ``(iii) if the comparison fails to yield a DNA match with 
     an unsolved crime, destroy the DNA sample collected from the 
     applicant.
       ``(4) Exculpatory evidence.--If the DNA testing conducted 
     under this section produces exculpatory evidence--
       ``(A) the applicant may, during the 60-day period beginning 
     on the date on which the applicant is notified of the test 
     results, make a motion to the court that ordered the testing 
     for a new trial based on newly discovered evidence under rule 
     33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such a 
     motion as untimely; and
       ``(B) upon receipt of a motion under subparagraph (A), the 
     court that ordered the testing shall consider the motion 
     under rule 33 of the Federal Rules of Criminal Procedure, 
     notwithstanding any provision of law that would bar such 
     consideration as untimely.
       ``(5) Failure to obtain relief.--
       ``(A) In general.--If the applicant fails to obtain relief 
     under this subsection, the court, on motion by the 
     government, shall make a determination whether the assertion 
     of innocence by the applicant was false.
       ``(B) False assertion.--If the court finds that the 
     assertion of innocence by the applicant was false, the 
     court--
       ``(i) may hold the applicant in contempt;
       ``(ii) shall assess against the applicant the cost of any 
     DNA testing carried out under this section; and
       ``(iii) shall forward the finding to the Director of the 
     Bureau of Prisons.
       ``(C) Bureau of prisons.--On receipt of a finding by the 
     court under this paragraph, the Director of the Bureau of 
     Prisons may deny, wholly or in part, the good conduct credit 
     authorized under section 3624 of this title, on the basis of 
     that finding.
       ``(D) Parole commission.--If the applicant is subject to 
     the jurisdiction of the United States Parole Commission, the 
     court shall forward its finding under this paragraph to the 
     Parole Commission, and the Parole Commission may deny parole 
     on the basis of that finding.
       ``(E) Penalty.--In any prosecution of an applicant under 
     chapter 79 of this title, for false assertions or other 
     conduct in proceedings under this section, the court, upon 
     conviction of the applicant, shall sentence the applicant to 
     a term of imprisonment of 1 year, which shall run 
     consecutively to any other term of imprisonment the applicant 
     is serving.
       ``(f) Final Order.--An order granting or denying DNA 
     testing under subsection (c), or an order granting or denying 
     a new trial under subsection (e), is a final order for 
     purposes of section 1291 of title 28.
       ``(g) Time Limits Inapplicable; Other Remedies 
     Unaffected.--Notwithstanding any time limit otherwise 
     applicable to motions for new trials based on newly 
     discovered evidence, a court may grant relief under 
     subsection (e) to an applicant, at any time.
       ``(h) Other Remedies Unaffected.--This section does not 
     affect the circumstances under which a person may obtain DNA 
     testing or postconviction relief under any other law or rule.

     ``Sec. 3600A. Prohibition on destruction of biological 
       material

       ``(a) Prohibition.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, during the period described in paragraph (2), the 
     government shall not destroy any biological material 
     preserved if the defendant is serving a term of imprisonment 
     following conviction in a case.
       ``(2) Period described.--The period described in this 
     paragraph is the period beginning on the date of enactment of 
     this section and ending on the later of--
       ``(A) the expiration of the 60-month period beginning on 
     that date of enactment; or
       ``(B) the date on which any proceedings under section 3600 
     relating to the case are completed.
       ``(b) Sanctions for Intentional Violation.--The court may 
     impose appropriate sanctions, including criminal contempt, 
     for an intentional violation of subsection (a).
       ``(c) Exceptions.--The government may dispose of evidence 
     before the expiration of the period of time described in 
     subsection (a) if--
       ``(1) other than subsection (a), no statute, regulation, 
     court order, or other provision of law requires that the 
     evidence be preserved; and
       ``(2)(A)(i) the government notifies any person who remains 
     incarcerated in connection with the investigation or 
     prosecution and any counsel of record for that person (or, if 
     there is no counsel of record, the public defender for the 
     judicial district in which the conviction for that person was 
     imposed), of the intention of the government to dispose of 
     the evidence and the provisions of this chapter; and
       ``(ii) the government affords such person not less than 180 
     days after such notification to make a motion under section 
     3600(a) for DNA testing of the evidence; or
       ``(B)(i) the evidence must be returned to its rightful 
     owner, or is of such a size, bulk, or physical character as 
     to render retention impracticable; and
       ``(ii) the government takes reasonable measures to remove 
     and preserve portions of the material evidence sufficient to 
     permit future DNA testing.''.
       (2) Technical and conforming amendment.--The analysis for 
     part II of title 18, United States Code, is amended by 
     inserting after the item relating to chapter 228 the 
     following:

``228A.  Postconviction DNA Testing.........................3600''.....

       (b) Applicability.--The provisions and amendments in this 
     section shall take effect on the date of enactment of this 
     Act and shall apply with respect to any offense committed, 
     and to any judgment of conviction entered, before, on, or 
     after that date of enactment.
       (c) Report by the Attorney General.--
       (1) Tracking system.--
       (A) In general.--The Attorney General shall establish a 
     system for reporting and tracking motions under section 3600 
     of title 18, United States Code.
       (B) Requested assistance.--The judicial branch shall 
     provide to the Attorney General any requested assistance in 
     operating a reporting and tracking system and in ensuring the 
     accuracy and completeness of information included in that 
     system.

[[Page S3870]]

       (2) Information.--Not later than 180 days before the 
     expiration of the time period referenced in section 
     3600(a)(3)(A) of title 18, United States Code, the Attorney 
     General shall submit a report to Congress containing--
       (A) a summary of the motions filed under section 3600 of 
     title 18, United States Code;
       (B) information on whether DNA testing was ordered pursuant 
     to such motions;
       (C) information on whether the applicant obtained relief on 
     the basis of DNA test results; and
       (D) information on whether further proceedings occurred 
     following a granting of relief and the outcome of those 
     proceedings.
       (3) Assessment.--The report submitted under paragraph (2) 
     may also include--
       (A) any other information that the Attorney General 
     believes will be useful in assessing the operation, utility, 
     or costs of section 3600 of title 18, United States Code; and
       (B) any recommendations that the Attorney General may have 
     relating to future legislative action concerning section 3600 
     of title 18, United States Code.

     SEC. 3. PROHIBITION PURSUANT TO SECTION 5 OF THE 14TH 
                   AMENDMENT.

       (a) Application for DNA Testing.--No State shall deny an 
     application for DNA testing made by a prisoner in State 
     custody who would be eligible for such testing under the 
     provisions of sections 3600 and 3600A of title 18, United 
     States Code.
       (b) DNA Testing Procedures.--The procedures for DNA testing 
     for a prisoner in State custody shall be substantially 
     similar to the DNA testing procedures established for Federal 
     courts under sections 3600 and 3600A of title 18, United 
     States Code.
       (c) Remedy.--A prisoner in State custody may enforce 
     subsections (a) and (b) in a civil action for declaratory or 
     injunctive relief, filed either in a State court of general 
     jurisdiction or in a district court of the United States, 
     naming an executive or judicial officer of the State as a 
     defendant.
                                  ____


                                S. 2442

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

     SECTION 1. SHORT TITLE.

       (a) Short Title.--This Act may be cited as the ``Capital 
     Defense Counsel Standards Act of 2002''.

     SEC. 2. RIGHT TO LEGAL REPRESENTATION FOR INDIGENT 
                   DEFENDANTS.

       (a) Preconviction Representation.--Notwithstanding any 
     other provision of law, a defendant in a criminal action in a 
     State court, which may result in punishment by death, who is 
     or becomes financially unable to obtain adequate 
     representation or investigative, expert, or other reasonably 
     necessary services at any time--
       (1) before judgment; or
       (2) after the entry of a judgment imposing a sentence of 
     death, but before the execution of that judgment;

     shall be entitled to the appointment of 1 or more attorneys 
     and the furnishing of such other services in accordance with 
     the provisions of this Act.
       (b) Postconviction Representation.--In a postconviction 
     proceeding in which a defendant seeks to vacate or set aside 
     a death sentence, a defendant who is or becomes financially 
     unable to obtain adequate representation or investigative, 
     expert, or other reasonably necessary services shall be 
     entitled to the appointment of 1 or more attorneys and the 
     furnishing of such other services in accordance with the 
     provisions of this Act.

     SEC. 3. MINIMUM EXPERIENCE REQUIRED FOR DEFENSE COUNSEL.

       (a) Prejudgment Appointment.--
       (1) In general.--If the appointment of legal counsel under 
     this Act is made before judgment, at least 1 attorney so 
     appointed--
       (A) must have been admitted to practice for not less than 5 
     years in the court in which the prosecution is to be tried; 
     and
       (B) must have not less than 3 years experience in the 
     actual trial of felony prosecutions in that court.
       (2) Judicial appointment.--The court before which the 
     defendant is to be tried, or a judge thereof, shall promptly, 
     upon the request of the defendant, assign 2 attorneys to the 
     case.
       (3) Expertise; accessibility.--At least 1 of the attorneys 
     assigned under paragraph (2)--
       (A) shall be learned in the law applicable to capital 
     cases; and
       (B) shall have free access to the accused at all reasonable 
     hours.
       (4) Recommendation.--In assigning counsel under this 
     section, the court shall consider--
       (A) the recommendation of the State public defender 
     organization, community defender organization, or equivalent 
     organization; or
       (B) if no such organization exists in the relevant 
     jurisdiction, the administrative office of the local court or 
     any governmental entity, bar association, or organization 
     with knowledge regarding the skills and qualifications of 
     local defense counsel.
       (5) Witnesses.--The court shall allow a defendant, under 
     this Act, to produce lawful witnesses to testify in support 
     of the defendant, and shall compel such witnesses to appear 
     at trial in the same manner that witnesses are compelled to 
     appear on behalf of the prosecution.
       (b) Postjudgment Appointment.--If the appointment is made 
     after judgment, at least 1 attorney appointed shall--
       (1) have been admitted to practice for not less than 5 
     years in the appropriate State appellate court;
       (2) have not less than 3 years experience in the handling 
     of felony appeals in that court; and
       (3) be learned in the law applicable to capital cases.
       (c) Learned Standard.--In determining whether an attorney 
     is learned in the law of capital cases under this section, 
     the State court shall apply the standard used in the courts 
     of the United States.

     SEC. 4. ADEQUATE REPRESENTATION.

       (a) Appointment of Substitute Counsel.--With respect to 
     this section, the court, for good cause, may appoint another 
     attorney whose background, knowledge, or experience would 
     otherwise enable the attorney to properly represent the 
     defendant, with due consideration to the seriousness of the 
     possible penalty and to the unique and complex nature of the 
     litigation.
       (b) Scope of Legal Representation.--Unless replaced by 
     similarly qualified counsel upon the motion of the attorney 
     or the defendant, each attorney appointed under this Act 
     shall represent the defendant throughout every stage of 
     available judicial proceedings, including--
       (1) pretrial motions and procedures;
       (2) competency proceedings;
       (3) trial;
       (4) sentencing;
       (5) executive and other clemency proceedings;
       (6) motions for new trial;
       (7) appeals;
       (8) applications for stays of execution; and
       (9) applications for writ of certiorari to the Supreme 
     Court of the United States.
       (c) Additional Services.--
       (1) In general.--Upon a finding that investigative, expert, 
     or other services are reasonably necessary for the 
     representation of the defendant, whether in connection with 
     issues relating to guilt or the sentence, the court may 
     authorize the attorneys for the defendant to obtain such 
     services on behalf of the defendant and, if so authorized, 
     shall order the payment of fees and expenses for such 
     services pursuant to section 5.
       (2) Ex parte communications.--No ex parte proceeding, 
     communication, or request may be considered under this 
     section unless a proper showing is made concerning the need 
     for confidentiality. Any such proceeding, communication, or 
     request shall be transcribed and made a part of the record 
     available for appellate review.

     SEC. 5. ATTORNEY FEES AND COSTS.

       (a) Attorney Fees.--Compensation shall be paid to attorneys 
     appointed under this Act at a rate equivalent to that of 
     attorneys representing defendants in Federal capital cases 
     under section 408(q)(10)(A) of the Controlled Substances Act 
     (21 U.S.C. 848(q)(10)(A)).
       (b) Additional Expenses.--Fees and expenses paid for 
     investigative, expert, and other reasonably necessary 
     services authorized under this section shall be equivalent to 
     fees paid in Federal capital cases under section 
     408(q)(10)(B) of the Controlled Substances Act (21 U.S.C. 
     848(q)(10)(B)).
       (c) Public Disclosure.--The amounts paid for services under 
     this section shall be disclosed to the public, after the 
     disposition of the petition.

     SEC. 6. IRREBUTTABLE PRESUMPTION OF DEFICIENT PERFORMANCE.

       (a) In General.--In a proceeding in Federal court under 
     section 2254 of title 28, United States Code, the failure to 
     comply with the procedures of this Act shall create an 
     irrebuttable presumption that the performance of the counsel 
     for the petitioner was deficient.
       (b) Entitlement to Relief; Burden of Proof; Standard of 
     Review.--A petitioner is not entitled to relief unless the 
     petitioner shows that the result of the proceeding would have 
     been different if the performance of the counsel for the 
     petitioner had not been deficient. The party opposing the 
     petition has the burden of establishing that the standards in 
     this section have been met. The court shall conduct a de novo 
     review to settle this issue.
       (c) Other Remedies.--The provisions of this section are not 
     intended to limit any other Federal or State court from 
     enforcing this section by any other appropriate remedy.
                                  ____


                                S. 2443

       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 ``Death Penalty Review Act of 
     2002''.

     SEC. 2. PROTECTING THE RIGHTS OF DEATH ROW INMATES TO REVIEW 
                   OF CASES GRANTED CERTIORARI.

       Section 2101 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(h) Upon notice by a party that has filed a motion for a 
     stay of execution or filed for certiorari with, or has been 
     granted certiorari by, the United States Supreme Court in an 
     appeal from a case in which the sentence is death, the 
     Governor of the State in which the death sentence is to be 
     carried out, in a State case, or the Director of the Bureau 
     of Prisons, the Secretary of a military branch, or any other 
     Federal official with authority to carry out the death 
     sentence, in a Federal case, shall suspend the execution of 
     the sentence of death until the United States Supreme Court 
     enters a stay of execution or

[[Page S3871]]

     until certiorari is acted upon and the case is disposed of by 
     the United States Supreme Court.
       ``(i) For purposes of this section, the United States 
     Supreme Court shall treat a motion for a stay of execution as 
     a petition for certiorari.
       ``(j) In an appeal from a case in which the sentence is 
     death, a writ of certiorari shall be issued by the United 
     States Supreme Court upon the vote of at least 4 qualified 
     justices.''.

     SEC. 3. HABEAS CORPUS.

       (a) State Court Proceedings.--Section 2251 of title 28, 
     United States Code, is amended--
       (1) by inserting ``(a)'' at the beginning of the text;
       (2) by designating the second sentence as subsection (b); 
     and
       (3) by adding at the end the following:
       ``(c)(1) Notwithstanding any other provision of law, a 
     justice or judge of the United States before whom a habeas 
     corpus proceeding that involves the death sentence is pending 
     shall stay the execution of the death sentence until the 
     proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``(2) For purposes of this subsection, a case is pending 
     before--
       ``(A) a court in the Circuit Court of Appeals, if a notice 
     of appeal has been filed; and
       ``(B) the United States Supreme Court, if a petition for 
     certiorari has been filed, or if a motion to stay execution 
     has been filed.
       ``(3) A case described in paragraph (2) remains pending 
     before the court until the petition for certiorari is denied. 
     If the petition is granted, the case remains pending.
       ``(4) If a higher court is unable or fails to issue a stay 
     pursuant to this subsection, a lower court before which the 
     case had been pending shall issue the stay of execution.
       ``(d) For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari.''.
       (b) Federal Court Proceedings.--Section 2255 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``Notwithstanding any other provision of law, a justice or 
     judge of the United States, before whom a habeas corpus 
     proceeding that involves a Federal death sentence is pending, 
     shall stay the execution of the death sentence until the 
     proceeding is completed. If the issuance of such a stay 
     requires more than 1 judge to concur or vote on the stay, the 
     court before which the proceeding is pending shall grant the 
     stay.
       ``If a higher court is unable or fails to issue a stay 
     pursuant to the preceding paragraph, a lower court before 
     which the case had been pending shall issue the stay of 
     execution. For purposes of this section, a motion to stay 
     execution shall be treated as a petition for certiorari. A 
     case described in the preceding paragraph--
       ``(1) is pending before a court in the Circuit Court of 
     Appeals if a notice of appeal has been filed; and
       ``(2) is pending before the United States Supreme Court 
     if--
       ``(A) a petition for certiorari has been filed and has not 
     been denied; or
       ``(B) a motion to stay execution has been filed.''.
                                 ______
                                 
      By Mr. HOLLINGS (for himself, Mrs. Clinton, Mr. Stevens, Mr. 
        Inouye, Mr. Rockefeller, and Mr. Dorgan):
  S. 2448. A bill to improve nationwide access to broadband services; 
to the Committee on Commerce, Science, and Transportation.
  Mr. HOLLINGS. Mr. President, I rise today to introduce the Broadband 
Telecommunications Act of 2002. This legislation is designed to promote 
the deployment of broadband technology in rural and under-served areas 
of the market.
  The Internet has unquestionably revolutionized our society, making it 
possible to transmit data and engage in commerce in a manner not 
previously experienced. However, notwithstanding its enormous benefits, 
the Internet is still in its building stage, with its greatest capacity 
yet to be reached. An important element in enhancing the Internet's 
capability is the technology known as ``broadband.'' This refers to the 
technologies and facilities that enhance the speed and efficiency by 
which voice, video, data communications are transmitted.
  Many, in fact, believe that broadband is the key to securing the 
Internet as the central medium of interstate and global commerce. Once 
extensively and fully deployed and accepted by consumers and the 
marketplace, broadband will undoubtedly produce marvelous advantages: 
permitting physicians to consult with each other and share information 
instantaneously, thus enriching the learning process; allowing 
consumers to access entertainment including music and movies, as well 
as other products at any given time; and offering workers greater 
options, as it will facilitate the ability of workers to access from 
home, electronic files as well as communicate with coworkers by voice 
and video.
  Before this great vision can be realized, however, several key issues 
will have to be addressed. These include ensuring that broadband is 
deployed to all Americans and promoting consumer confidence in the 
Internet, while simultaneously preserving competition in the 
telecommunications and Internet markets.
  With respect to broadband deployment, telephone and cable companies 
have been upgrading their networks, in order to provide broadband 
service. As it stands today, broadband availability for residential 
Internet users is approximately 85 percent. However, even though this 
number is admirable, there are still specific areas where broadband 
capability has yet to take hold. This predicament mostly involves 
rural, as well as some inner city areas. Ensuring the availability of 
broadband in these markets is the public policy challenge we face 
today. Clearly, Congress' main responsibility is ensuring that the 
right policy is pursued and implemented to accomplish this goal.
  Reports indicate that small telephone companies, have been diligently 
rolling out broadband service in rural areas. Nevertheless, to achieve 
the goal of broadband deployment in all rural and underserved areas, 
the government will need to provide some assistance. In recognition of 
this need, Senators Rockefeller and Dorgan both members of the 
Commerce Committee, have sponsored bills to support such deployments 
with options such as low interest loans and tax credits.

  The approach taken by Senators Rockefeller and Dorgan represent a 
constructive approach to achieving greater broadband deployment. 
Financial assistance, through measures such as loans, grants, and tax 
incentives, is necessary to help defray the cost of these additional 
deployments. By providing loans and grants, the bill I introduce today 
takes a similar approach to achieving broadband deployment.
  In addition to deployment of broadband facilities, there also is an 
issue concerning broadband speeds. Currently, the broadband facilities 
that are being deployed to residential consumers provide speeds of up 
to 1.5 megabits per second. However, groups such as TechNet, maintain 
that in order to realize the real potential of broadband--telemedicine, 
distance learning, teleworking, and entertainment over the Internet, 
telecommunications facilities must be able to provide speeds of 50 to 
100 megabits. If this is correct, as policy makers we must, at a 
minimum, determine what is necessary both technologically and 
financially to accomplish this goal. Such findings will provide the 
basis to determine the policies Congress will be compelled to pursue if 
a determination is made that speeds of 50 to 100 megabits per second 
are necessary.
  Even as we discuss broadband speeds of 50-100 megabits, we must 
acknowledge that consumers do not seem seduced by the available 
broadband speeds of 1.5 megabits. In fact, reports show, that about 10 
percent actually subscribe to broadband, leading many to believe that 
low demand is the problem, not slow deployment. If achieving a 
broadband environment is a priority, in addition to spurring 
deployment, we must eliminate the impediments that block consumers from 
obtaining the content, services, and applications necessary to make 
broadband service a useful and productive tool.
  Another essential issue concerning the promotion of broadband 
involves the issue of privacy. Consumers use of the Internet is a 
fundamental first step to promoting interest in broadband. This will 
not be possible, however, unless consumers are confident that their 
privacy and personal information are protected and secured. To 
accomplish this goal, sufficient precautions will have to be taken to 
ensure that highly sensitive personal data--including financial, 
medical, social security numbers--cannot be stolen or misused. The 
Commerce Committee has established a substantial record on the issue of 
Internet privacy. That record demonstrates that consumers will use the 
Internet for more personal purposes only when they are confident that 
their information is secure. I have introduced separate legislation on 
this matter.
  The broadband bill entitled the Broadband Telecommunications Act of

[[Page S3872]]

2002, that I introduce today represents a step towards fostering the 
deployment and adoption of broadband services. It uses monies from the 
telephone excise tax to fund a number of loan and grant programs. It 
stimulates broadband deployment in rural and underserved areas by 
providing low interest loans to upgrade facilities including remote 
terminals and fiber between a remote terminal and central office. It 
authorizes NIST to study how we can facilitate broadband deployment in 
rural and under-served areas. It promotes competition by establishing 
pilot projects for wireless and other non-wireline broadband 
technologies in rural and underserved areas. The bill begins to help us 
understand what is necessary to accomplish broadband with speeds of 50 
to 100 megabits per second by providing grants to NTIA's Lab, NIST 
Labs, National Science Board and to universities for research. In order 
to address the demand issue, we provide grants to digitize library and 
museum collections as well as grants to Universities to conduct 
technical research to develop Internet applications useful to 
consumers. The bill also provides grants to connect under-represented 
colleges and communities to the Internet.

  Ultimately, if we decide as a nation that a broadband world must be 
achieved, we must move beyond the rhetoric of parity and regulation 
versus deregulation. We must move forward and begin to deal with the 
real issues that impact broadband deployment and use. These include 
stimulating deployment in unserved and under-served areas, promoting 
competition to existing monopolies, ensuring the availability of 
content and other Internet applications, preserving the privacy of 
consumers as they use the Internet, safeguarding cyber security, in 
addition to advancing policies such as e-government, teleworking, 
telemedicine, and distance learning. I ask my colleagues to join me in 
an open and forthright debate on these issues.
                                 ______
                                 
      By Mr. BINGAMAN (for himself, Mr. McCain, Mr. Torricelli, and Mr. 
        Corzine):
  S. 2449. A bill to amend title XIX of the Social Security Act to 
allow Federal payments to be made to States under the medicaid program 
for providing pregnancy-related services or services for the testing or 
treatment for communicable diseases to aliens who are not lawfully 
admitted for permanent residence or otherwise permanently residing in 
the United States under color of law, and for other purposes; to the 
Committee on Finance.
  Mr. BINGAMAN. Mr. President, the legislation I am introducing today 
with Senators McCain, Torricelli, and Corzine entitled the ``Federal 
Responsibility for Immigrant Health Act of 2002'' is designed to 
address the hardship caused by Federal limitations on Medicaid 
reimbursement to health care providers and states for health services 
provided to immigrants. Despite the fact that immigration is a Federal 
responsibility, medical providers, who have a legal and ethical 
responsibility to save lives regardless of immigration status, and 
State and local governments bear most of the costs for services 
provided to immigrants.
  The bill expressly allows States and health care providers to receive 
Medicaid reimbursement for dialysis and chemotherapy services, prenatal 
care, and the testing and treatment of communicable diseases provided 
to immigrants; reauthorizes funding, which was provided between fiscal 
years 1998 and 2001 but expired this year, in the increased amount of 
$50 million annually for fiscal years 2003 to 2007 for unreimbursed 
emergency health services provided to immigrants; and clarifies that 
the federal government should not limit the ability of state or local 
governments to use their own funding to address the health care needs 
of immigrants within their communities.
  The Constitution of the United States establishes sole authority in 
the Federal Government to control immigration to this country. Despite 
that fact, the Federal Government often fails to take financial 
responsibility for the costs of immigration. Numerous studies also 
indicate that immigrants pay more to the Federal Government in the form 
of taxes than they receive in services, but State government and local 
communities and providers bear most of the costs of services provided 
to them.
  In Luna County, NM, for example, the Columbus Volunteer Fire 
Department and Ambulance Service has a contract with the county to 
provide emergency medical services to the people in Luna County. Luna 
County is one of the poorest counties in the Nation with almost one-
third of its citizens below poverty and with a per capita income at 
just 49 percent of the national average. Luna County has an extremely 
difficult time addressing the needs of its own citizens due to a high 
level of need and limited resources.
  And yet, with respect to emergency medical services, Luna County, the 
Columbus Volunteer Fire Department and Ambulance Service, and Mimbres 
Memorial Hospital must also respond to the numerous calls from federal 
officials at the port-of-entry near Columbus, NM, to treat or transport 
an injured or ill immigrants. The Columbus Volunteer Fire Department 
and Ambulance Service is located just three miles from the Columbus 
port-of-entry and is 32 miles from Mimbres Memorial Hospital in Deming, 
NM.
  Moreover, the ambulance service is also called in when individuals 
are apprehended after crossing illegally if injury or illness results, 
often while in the custody of the Federal Immigration and 
Naturalization Service, INS. Once treated, the Luna County Sheriff's 
Office is called to take them back from Deming to the Columbus port-of-
entry where they are returned across the border to their homes in 
Mexico.
  According to data collected by the United States/Mexico Border 
Counties Coalition through a grant from the Department of Justice, in 
1999, the Columbus Volunteer Fire Department and Ambulance Service 
responded to 264 calls, of which 56 percent were at the port-of-entry 
and 52 percent were for patients residing outside of the United States. 
Of services billed, 59 percent were for treatment of non-U.S. resident 
patients and the vast majority of those bills went unpaid. In fact, for 
both the EMS system and the hospital, a large majority of billings sent 
to patients residing outside of the United States are returned as 
either unclaimed or undeliverable much less paid.
  To help the County and ambulance service, I secured $200,000 last 
year through the Labor-HHS Appropriations bill for the costs of 
emergency medical services delivered to immigrants in this fiscal year. 
The funding, however, is just a temporary band-aid to a system that is 
poorly funded and cannot survive without the federal government living 
up to its responsibility to help pay the costs of health services 
delivered to immigrants. This bill helps address that responsibility.
  As Ronald Reagan, then Governor of the State of California, testified 
before the Senate Finance Committee in 1972, ``the support of citizens 
of other countries shall be a fiscal obligation of the federal 
government.'' He added, ``States should not be required to support 
citizens of another country, when the state and county governments have 
no effective voice in determining admission standards.''
  In response to such concerns, the Federal Government has taken two 
important steps over the years, providing for federal reimbursement for 
emergency care to low-income immigrants in 1986 and providing 
additional funding to states for unreimbursed costs delivered to 
immigrants in emergency situations in 1997. The first needs a technical 
change and the second, unfortunately, expired in 2001 and needs to be 
reauthorized.
  The first step that was taken occurred through the leadership of 
Senator Lloyd Bentsen and Representative Henry Waxman in 1986 and was 
signed into law by President Reagan. It provides for federal 
reimbursement through the Medicaid program to health providers for 
emergency care services provided to low-income immigrants. Services 
delivered to immigrants who are residents in the country may have the 
cost of their emergency care reimbursed through Medicaid--a joint 
federal and state program serving low-income and disabled people. 
However, in the case of Luna County, the majority of its cases are to 
immigrants who reside outside of the country, and therefore, do not 
qualify. This legislation clarifies that States may waive the residency 
requirement for an immigrant who either comes

[[Page S3873]]

across the border under a temporary visa or is paroled into the country 
by INS.

  The bill also clarifies that, since dialysis and chemotherapy are 
life-threatening conditions, these services qualify as emergency care 
and are eligible for reimbursement by Medicaid. Unfortunately, the 
Centers for Medicare and Medicaid Services, CMS, recently denied 
payment to the State of Arizona for such services and have forced the 
State to pay for such treatment with 100 percent state funding. This 
is, once again, a case of the federal government not fulfilling its 
responsibility and our bill corrects this problem.
  The ``Federal Responsibility for Immigrant Health Act of 2002'' would 
also provide states the option to reimburse providers for the costs of 
prenatal care and the testing and treatment of communicable diseases to 
low-income immigrants. A January 2000 study in the American Journal of 
Obstetrics and Gynecology found that undocumented women with no 
prenatal care were four times more likely to deliver low birthweight 
American citizen infants and seven times more likely to deliver 
premature infants than undocumented women with prenatal care. Moreover, 
a child born in the United States of undocumented parents is a United 
States citizen.
  Simply stated, if a pregnant women is denied access to prenatal care 
due to immigration status, it is her child who is denied the 
opportunity to be ``well-born'' and the financial costs associated with 
poor outcomes are high.
  In addition, States and local governments often seek to ensure that 
all of their residents, including immigrants, are tested and treated 
for certain communicable diseases. It is in the interest of all 
citizens to ensure that everybody residing in this country is treated 
for communicable diseases. As Dr. Richard Brown, Director of UCLA's 
Center for Health Policy Research says, ``Tuberculosis and other 
communicable diseases do not respect distinctions between citizens and 
non-citizens . . . The key to controlling an outbreak of tuberculosis, 
hepatitis, sexually transmitted diseases, or other communicable 
diseases is early identification of the source of infection and 
immediate intervention to treat all infected persons.'' Again, to 
address these problems, the bill would allow states to reimburse 
providers for the costs of prenatal care and the testing and treatment 
of communicable diseases to low-income immigrants through the Medicaid 
program.
  Another area where the Federal Government did take an important step 
to assume its responsibility for the costs of emergency health services 
delivered to immigrants was through $25 million in payments to States 
between fiscal year 1998 through 2001. The following 12 States were 
eligible for this additional funding over the four-year period, which 
expired at the end of last year: California, $11.3 million, Texas, $4.0 
million, New York, $3.1 million, Florida, $2.0 million, Illinois, $1.6 
million, New Jersey, $765,000, Arizona, $652,000, Massachusetts, 
$482,000, Virginia, $312,000, Washington, $295,000, Colorado, $255,000, 
and Maryland, $249,000. Unfortunately, that provision in law expired in 
2001 and needs to be reauthorized.
  The ``Federal Responsibility for Immigrant Health Act of 2002'' 
reauthorizes the program at $50 million between fiscal years 2003 and 
2007, extends the number of qualifying States to 15, and requires that 
States pass those payments on to health care providers who are 
providing this care. This helps cover the costs associated with care to 
immigrants needing emergency care that do not qualify for Medicaid, 
such as men who do not meet the categorical requirements for Medicaid 
coverage. In addition, the bill clarifies that the 15 qualifying States 
are those that have the highest percentage of immigrants rather than 
the highest numbers, which assures States such as New Mexico are not 
inappropriately left out of the funding in the future.
  And finally, the bill clarifies that the Federal Government should 
not limit State or local governments from using their own funding to 
provide health services to immigrants in their communities. The 10th 
Amendment prevents the Federal Government from interfering in the 
authority by State and local governments to spend their own revenue as 
they see fit.
  Unfortunately, a provision in the Personal Responsibility and Work 
Opportunity Reconciliation Act, PRWORA, in 1996 has been interpreted by 
Texas Attorney General John Cornyn and some in the State of New Mexico, 
including the University of New Mexico Hospital, to preclude state and 
local governments from providing non-emergency care services, with the 
exceptions of immunizations and the testing and treatment of 
communicable diseases, unless the State decides to override the law by 
passing its own legislation specifically authorizing such services.
  Others have disagreed. El Paso County Attorney Jose Rodriquez 
disagreed with the opinion of the Texas Attorney General in a August 
14, 2001, letter by saying, ``There is nothing in the PRWORA that 
expressly prohibits providing health care to undocumented aliens . . . 
There are no enforcement mechanisms in the PRWORA, and there are no 
penalties directed at state or local governments.'' As a result, the 
public hospitals in El Paso, TX, and elsewhere in Texas have largely 
ignored the Texas Attorney General's opinion.
  However, in New Mexico, the University of New Mexico Hospital has 
chosen to tighten eligibility requirements for its health care 
services. They argue they are complying with the ambiguous law.
  An article that appears in an Internet-based publication entitled 
Borderlines entitled ``Debate Over Immigrant Health Care Heats Up in 
New Mexico'' in November 2001 notes, ``Critics say the move to deny 
health care to some U.S. residents, regardless of the reasons, is 
dangerous, impractical, and inhumane. It is dangerous, they argue, 
because anyone with a communicable disease, illegal immigrant or not, 
can spread that disease if not treated. The policy is impractical, they 
add, because an untreated health problem will likely worsen and require 
more expensive treatments later, often in emergency rooms. And denying 
non-emergency health care to people with serious, chronic diseases like 
diabetes, asthma, or cancer means they must endure more pain and 
suffering, often as their conditions deteriorate.''
  As Dr. Catherine Torres of First Step Women's Health Center in Las 
Cruces, NM, and a member of the U.S.-Mexico Border Health Commission 
notes, ``When do you treat a child with asthma? When [the child] can't 
breathe?''
  This provision has also led to the unfortunate situation of imposing 
additional liability or malpractice exposure on health providers that 
work for state or local governmental health programs for denying needed 
health services to an individual. Health providers should not have to 
violate medical ethics of purposely denying needed health services to 
anyone and nor should they be exposed to additional liability because 
of a convoluted provision in federal law.
  As Dan Reyna, director of New Mexico's Border Health Office in Las 
Cruces, NM, adds, ``First, we're near an international border, we're 
not going to change that. Second, health care providers, both public 
and private, are not immigration officers for the Federal Government. 
And third, it's to the benefit of every state to protect community 
health and the quality of life of every resident. If you accept these 
primary premises, you have to provide preventative care services to 
everyone who needs it.''
  I urge the passage of this legislation. Although it may not be 
popular, the federal government should help assume its responsibility 
for immigration and the costs associated with health services. We talk 
a great deal about personal responsibility when talking about welfare 
reform. It is time for the federal government to take on its 
responsibility as well. State and local governments and health 
providers, already stressed by the fact that our country has around 40 
million uninsured residents, cannot take on these additional costs.
  I would like to thank Senators McCain, Torricelli, and Corzine for 
their support and help on this legislation. I ask unanimous consent 
that the text of the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

[[Page S3874]]

                                S. 2449

       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 ``Federal Responsibility for 
     Immigrant Health Act of 2002''.

     SEC. 2. FEDERAL PAYMENTS UNDER MEDICAID FOR EMERGENCY MEDICAL 
                   CONDITIONS OF CERTAIN ALIENS.

       (a) In General.--Section 1903(v)(2)(A) of the Social 
     Security Act (42 U.S.C. 1396b(v)(2)(A)) of the Social 
     Security Act is amended to read as follows:
       ``(A) such care and services are--
       ``(i) necessary for the treatment of an emergency medical 
     condition of the alien or necessary for the prevention of an 
     emergency medical condition (including dialysis and 
     chemotherapy services),
       ``(ii) services related to pregnancy (including prenatal, 
     delivery, postpartum, and family planning services) and to 
     other conditions that may complicate pregnancy, or
       ``(iii) services for the testing or treatment for 
     communicable diseases,''.
       (b) State Option to Eliminate Residency Requirement for 
     Certain Aliens.--Section 1903(v)(2)(B) of the Social Security 
     Act (42 U.S.C. 1396b(v)(2)(B)) is amended by inserting ``, 
     or, at State option, in the case of an alien granted parole 
     under section 212(d)(5) of the Immigration and Nationality 
     Act or an alien admitted into the United States as a 
     nonimmigrant alien under section 101(a)(15) of such Act, any 
     residency requirement imposed under the State plan'' after 
     ``payment''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to medical assistance provided on or after the 
     date of enactment of this Act.

     SEC. 3. FUNDING FOR EMERGENCY HEALTH SERVICES FURNISHED TO 
                   UNDOCUMENTED ALIENS.

       (a) Funding.--Section 4723(a) of the Balanced Budget Act of 
     1997 (8 U.S.C. 1611 note) is amended to read as follows:
       ``(a) Total amount available for allotments.--There are 
     available for allotments for payments to certain States under 
     this section--
       ``(1) for each of fiscal years 1998 through 2001, 
     $25,000,000; and
       ``(2) for each of fiscal years 2003 through 2007, 
     $50,000,000.''.
       (b) Determination of State Allotments.--Section 4723(b) of 
     the Balanced Budget Act of 1997 (8 U.S.C. 1611 note) is 
     amended--
       (1) in paragraph (1), in the first sentence, by striking 
     ``The Secretary'' and inserting ``Subject to paragraph (3), 
     the Secretary''; and
       (2) by adding at the end the following new paragraph:
       ``(3) Fiscal years 2003 through 2007 allotments.--
       ``(A) In general.--Notwithstanding paragraph (1), the 
     Secretary of Health and Human Services shall compute an 
     allotment for each of fiscal years 2003 through 2007 for each 
     of the 15 States with the highest percentage of undocumented 
     aliens. The amount of such allotment for each such State for 
     a fiscal year shall bear the same ratio to the total amount 
     available for allotments under subsection (a) for the fiscal 
     year as the ratio of the percentage of undocumented aliens in 
     the State in the fiscal year bears to the total of such 
     percentages for all such States for such fiscal year. The 
     amount of allotment to a State provided under this paragraph 
     for a fiscal year that is not paid out under subsection (c) 
     shall be available for payment during the subsequent fiscal 
     year.
       ``(B) Determination.--For purposes of subparagraph (A), the 
     percentage of undocumented aliens in a State under this 
     section shall be determined based on the most recent 
     available estimates of the resident illegal alien population 
     residing in each State prepared by the Statistics Division of 
     the Immigration and Naturalization Service.''.
       (c) Requiring Use of Funds to Assist Hospitals and Related 
     Providers of Emergency Health Services to Undocumented 
     Aliens.--Section 4723(c) of the Balanced Budget Act of 1997 
     (8 U.S.C. 1611 note) is amended to read as follows:
       ``(c) Use of Funds.--
       ``(1) In general.--From the allotments made under 
     subsection (b), the Secretary shall pay to each State amounts 
     described in a State plan, submitted to the Secretary, under 
     which the amounts so allotted will be paid--
       ``(A) to hospitals and related providers of emergency 
     health services to undocumented aliens that are located in 
     areas that the Secretary or a State determines to be 
     substantially impacted by health costs related to 
     undocumented aliens; and
       ``(B) on the basis of--
       ``(i) each eligible hospital's or related provider's 
     payments under the State plan approved under title XIX of the 
     Social Security Act for emergency medical services described 
     in section 1903(v)(2)(A) of such Act (42 U.S.C. 
     1396b(v)(2)(A)); or
       ``(ii) an appropriate alternative proxy for measuring the 
     volume of emergency health services provided to undocumented 
     aliens by eligible hospitals and related providers.
       ``(2) Definitions; special rules.--For purposes of this 
     subsection:
       ``(A) The term `hospital' has the meaning given such term 
     in section 1861(e) of the Social Security Act (42 U.S.C. 
     1395x(e)).
       ``(B) The term `provider' includes a physician, another 
     health care professional, and an entity that furnishes 
     emergency ambulance services.
       ``(C) A provider shall be considered to be `related' to a 
     hospital to the extent that the provider furnishes emergency 
     health services to an individual for whom the hospital also 
     furnishes emergency health services.
       ``(D) Amounts paid under this subsection shall not--
       ``(i) be substituted for Federal payments made under title 
     XIX of the Social Security Act to reimburse a State for 
     expenditures for the provision of emergency medical services 
     described in section 1903(v)(2)(A) of such Act; or
       ``(ii) be used by a State for the State share of 
     expenditures for such services under title XIX of such 
     Act.''.
       (d) Effective Date.--The amendments made by this section 
     shall apply beginning with fiscal year 2003.

     SEC. 4. PERMITTING STATES AND LOCALITIES TO PROVIDE HEALTH 
                   CARE TO ALL INDIVIDUALS.

       (a) In General.--Section 411 of the Personal Responsibility 
     and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 
     1621) is amended--
       (1) in subsection (b)--
       (A) by striking paragraphs (1) and (3); and
       (B) by redesignating paragraphs (2) and (4) as paragraphs 
     (1) and (2), respectively; and
       (2) in subsection (c)--
       (A) in paragraph (1)--
       (i) in the matter preceding subparagraph (A), by striking 
     ``(2) and (3)'' and inserting ``(2), (3), and (4)''; and
       (ii) in subparagraph (B), by striking ``health,''; and
       (B) by adding at the end the following new paragraph
       ``(4) Such term does not include any health benefit for 
     which payments or assistance are provided to an individual, 
     household, or family eligibility unit by an agency of a State 
     or local government or by appropriated funds of a State or 
     local government.''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall apply to health care furnished before, on, or after the 
     date of the enactment of this Act.
                                 ______
                                 

      By Mr. LIEBERMAN (for himself, Mr. Specter, and Mr. Graham):

  S. 2452. A bill to establish the Department of National Homeland 
Security and the National Office for Combating Terrorism; to the 
Committee on Governmental Affairs.
  Mr. LIEBERMAN. Mr. President, today I am pleased to introduce, with 
Senators Specter and Graham, the National Homeland Security and 
Combating Terrorism Act of 2002. This legislation seeks to strengthen 
the Federal Government's ability to confront terrorism and other 
threats to our homeland security.
  Specifically, this legislation would create a new Department of 
National Homeland Security to focus an array of agencies and programs 
that are vital to securing our borders and critical infrastructure, and 
to preparing for and responding to homeland threats. It also would 
create a White House terrorism director to forge an effective strategy 
to combat terrorism across the entire Federal Government. In addition 
to the bill we introduce here, I am pleased to note that companion 
legislation is being introduced today by Representatives Thornberry, 
Harman, Tauscher and Gibbons.
  The events of September 11 brought home to us the very real threat of 
terrorism not only on foreign shores, but also here at home. Though the 
pain of that day will stay in our hearts and minds forever, we now have 
an opportunity to step back from that single most horrid event in our 
modern history and take action to prevent something like it from ever 
happening again.
  It seems that nearly every day, the media or government investigators 
expose a new crack in America's homeland defense foundation, at our 
borders, our ports, or within our cyberspace. The fact is, without a 
government that is permanently reoriented to meet unexpected challenges 
here at home, new vulnerabilities will emerge. That's why we must 
mobilize government so that it can quickly and effectively prevent 
terrorist threats here at home and respond should the worst occur.
  Our approach, combining a homeland security department with a White 
House office for combating terrorism, addresses the need to permanently 
restructure critical homeland security functions under a cabinet-level 
secretary with real operational authority and the ability to personally 
direct a homeland security plan. At the same time, we would allow for 
the highest

[[Page S3875]]

level of coordination with other Federal agencies--Health and Human 
Services, the Defense Department, the Energy Department, for example, 
and real budget certification authority.
  Our proposal stems from a series of hearings I convened last fall as 
chairman of the Governmental Affairs Committee. We held about a dozen 
different sessions looking into various aspects of homeland security, 
ranging from protection of our critical infrastructure to the state and 
local role in protecting Americans at home. Those hearings confirmed 
what experts and commissions had already warned us: that our government 
is poorly prepared to deal with the threat of terrorism. Although the 
government has an array of programs related to terrorism and 
other homeland threats, these efforts are poorly coordinated and lack 
overall strategic leadership. We need focused, accountable leadership 
to forge these efforts into a cohesive homeland security program.

  Among the witnesses we heard from were former Senators Warren Rudman 
and Gary Hart, who co-chaired the so-called Hart-Rudman Commission on 
National Security/21st Century. Guided by recommendations of that 
Commission, Senator Specter and I introduced legislation to create a 
Homeland Security Department. After negotiations through the winter 
with Senator Graham, we combined our proposal with his idea of 
conferring statutory authority on a White House terrorism office.
  As our bill is written, the department will be led by a Cabinet 
official with real line and budget authority over critical homeland 
security programs. The new department will bring together under one 
roof our key border security agencies, Coast Guard, Customs, INS law 
enforcement, as well as the Federal Emergency Management Agency, which 
is the cornerstone of our emergency preparation and response efforts. 
The department will also include programs to protect our critical 
infrastructure, and an office to promote research and development of 
technologies vital to our homeland security. The new department will 
provide state and local authorities with a clear resource and point of 
contact to forge a truly national response to this problem.
  Yet we recognize that, no matter how robust a department we create, 
it can not include every agency that plays a role in homeland security, 
which is why our legislation incorporates Senator Graham's proposal to 
confer statutory authority on a White House office. That office--the 
National Office for Combating Terrorism--would coordinate a national 
anti-terrorism strategy. The office would be led by a presidentially-
appointed, Senate-confirmed director charged with coordinating a 
comprehensive assessment of terrorist threats and, along with the 
department secretary, developing a strategy and a budget to fight 
terrorism here at home. The director would coordinate execution of the 
strategy by relevant federal agencies--particularly those concerned 
with intelligence and law enforcement.
  Naturally, our new formation would require a major restructuring of 
the Federal Government's public safety-related responsibilities. I know 
this will not be easy. Machiavelli trenchantly observed ``there is 
nothing more difficult to plan, more doubtful of success nor more 
dangerous to manage than the creation of a new system.'' Within the 
agencies, and within Congress as well, as Governor Ridge has already 
discovered, there are powerful reflexes to protect administrative turf. 
Bureaucracies are slow to change. Change is disruptive. It creates 
uncertainty and it distorts existing balances of power.
  But we must look at September 11 as an urgent reason to create 
something better. A restructuring of the kind we envision is not 
unprecedented. We have undertaken bold organizational change in periods 
of crisis before. Consider General Marshall's transformation of the 
army which helped win World War II or the National Security Act of 1947 
that created the CIA and Department of Defense in the midst of the Cold 
War. More recently, the Goldwater-Nichols Act of 1986, in streamlining 
the military command, helped us to prosecute the Persian Gulf War.
  The bottom line is if statutory and budget authority are not 
conferred upon the director of homeland security, the homeland defense 
of this nation will be less than what it should be. In the one area 
where compromise can be catastrophic, this is an unacceptable 
compromise.
  Let's be motivated by the words of Winston Churchill, who in 1941 
said to the Axis powers, ``You do your worst and we will do our best.'' 
We can tinker around the edges of change. Or, we can understand that 
September 11 confirmed our worst fears: warfare has changed and we are 
no longer safe at home. We are in a terrible, new era and we urgently 
need a government that is invigorated and effectively organized to meet 
the challenge.
  I thank my colleagues and ask unanimous consent that the text of our 
legislation be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2452

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``National 
     Homeland Security and Combating Terrorism Act of 2002''.
       (b) Table of Contents.--The table of contents is as 
     follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.

           TITLE I--DEPARTMENT OF NATIONAL HOMELAND SECURITY

Sec. 101. Establishment of the Department of National Homeland 
              Security.
Sec. 102. Transfer of authorities, functions, personnel, and assets to 
              the Department.
Sec. 103. Establishment of directorates and office.
Sec. 104. Steering Group; Coordination Committee; and Acceleration 
              Fund.
Sec. 105. Reporting requirements.
Sec. 106. Planning, programming, and budgeting process.
Sec. 107. Environmental protection, safety, and health requirements.
Sec. 108. Savings provisions.

           TITLE II--NATIONAL OFFICE FOR COMBATING TERRORISM

Sec. 201. National Office for Combating Terrorism.
Sec. 202. Funding for Strategy programs and activities.

 TITLE III--NATIONAL STRATEGY FOR COMBATING TERRORISM AND THE HOMELAND 
                           SECURITY RESPONSE

Sec. 301. Strategy.
Sec. 302. National Homeland Security Panel.

                        TITLE IV--EFFECTIVE DATE

Sec. 401. Effective Date.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Director.--Except as provided under section 104, the 
     term ``Director'' means the Director of the National Office 
     for Combating Terrorism.
       (2) Department.--The term ``Department'' means the 
     Department of National Homeland Security established under 
     title I.
       (3) Federal terrorism prevention and response agency.--The 
     term ``Federal terrorism prevention and response agency'' 
     means any Federal department or agency charged under the 
     Strategy with responsibilities for carrying out the Strategy.
       (4) Office.--The term ``Office'' means the National Office 
     for Combating Terrorism established under title II.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of National Homeland Security.
       (6) Strategy.--The term ``Strategy'' means the National 
     Strategy for Combating Terrorism and the Homeland Security 
     Response developed under this Act.

           TITLE I--DEPARTMENT OF NATIONAL HOMELAND SECURITY

     SEC. 101. ESTABLISHMENT OF THE DEPARTMENT OF NATIONAL 
                   HOMELAND SECURITY.

       (a) Establishment.--
       (1) In general.--There is established the Department of 
     National Homeland Security.
       (2) Executive department.--Section 101 of title 5, United 
     States Code, is amended by adding at the end the following:
       ``The Department of National Homeland Security.''.
       (b) Secretary of National Homeland Security.--
       (1) In general.--The Secretary of National Homeland 
     Security shall be the head of the Department. The Secretary 
     shall be appointed by the President, by and with the advice 
     and consent of the Senate.
       (2) Responsibilities.--The responsibilities of the 
     Secretary shall be the following:
       (A) To develop policies, goals, objectives, priorities, and 
     plans for the United States for the promotion of homeland 
     security.
       (B) To develop, with the Director, a comprehensive strategy 
     in accordance with title III.
       (C) Develop processes to integrate the elements and goals 
     of the Strategy into the strategies and plans of Federal, 
     State, and local departments and agencies, including 
     interagency and intergovernmental shared policies.

[[Page S3876]]

       (D) To evaluate the programs of the Federal Government 
     relating to homeland security that involve activities of 
     State and local governments as part of the Strategy.
       (E) To advise the Director on the development of a 
     comprehensive annual budget for the programs and activities 
     under the Strategy, and have the responsibility for budget 
     recommendations relating to border security, critical 
     infrastructure protection, emergency preparation and 
     response, and State and local activities.
       (F) To plan, coordinate, and integrate those United States 
     Government activities relating to border security, critical 
     infrastructure protection and emergency preparedness, and to 
     act as the focal point regarding natural and manmade crises 
     and emergency planning and response.
       (G) To work and coordinate with State and local governments 
     and executive agencies in providing United States homeland 
     security, and to communicate with and support State and local 
     officials through the use of regional offices around the 
     Nation.
       (H) To provide overall operational planning guidance to 
     executive agencies regarding United States homeland security.
       (I) To conduct exercise and training programs for employees 
     of the Department and other involved agencies, and establish 
     effective command and control procedures for the full range 
     of potential contingencies regarding United States homeland 
     security, including contingencies that require the 
     substantial support of military assets.
       (J) To annually develop a Federal response plan for 
     homeland security and emergency preparedness with regard to 
     terrorism and other manmade and natural disasters.
       (K) To identify and promote technological innovation that 
     will enhance homeland security.
       (L)(i) To develop and implement within the Department a 
     coordinating center with representatives from other Federal 
     departments or agencies with homeland security 
     responsibilities.
       (ii) To designate departments and agencies to provide a 
     representative under clause (i) and require those departments 
     and agencies to furnish a representative on a permanent, 
     part-time, or as needed basis, as determined by the 
     Secretary.
       (iii) To request additional personnel from appropriate 
     departments and agencies as may be necessary and coordinate 
     with those departments and agencies.
       (iv) To request State and local authorities to provide 
     representatives to the coordination center.
       (3) Executive schedule level i position.--Section 5312 of 
     title 5, United States Code, is amended by adding at the end 
     the following:
       ``Secretary of National Homeland Security.''.
       (4) Membership on the national security council.--Section 
     101(a) of the National Security Act of 1947 (50 U.S.C. 
     402(a)) is amended in the fourth sentence by striking 
     paragraphs (5), (6), and (7) and inserting the following:
       ``(5) the Secretary of National Homeland Security; and
       ``(6) each Secretary or Under Secretary of such other 
     executive department, or of a military department, as the 
     President shall designate.''.
       (c) Deputy Secretary of National Homeland Security.--
       (1) In general.--There shall be in the Department a Deputy 
     Secretary of National Homeland Security, who shall be 
     appointed by the President, by and with the advice and 
     consent of the Senate.
       (2) Responsibilities.--The Deputy Secretary of National 
     Homeland Security shall--
       (A) assist the Secretary in the administration and 
     operations of the Department;
       (B) perform such responsibilities as the Secretary shall 
     prescribe; and
       (C) act as the Secretary during the absence or disability 
     of the Secretary or in the event of a vacancy in the office 
     of the Secretary.
       (3) Executive schedule level ii position.--Section 5313 of 
     title 5, United States Code, is amended by adding at the end 
     the following:
       ``Deputy Secretary of National Homeland Security.''.
       (d) Inspector General.--
       (1) In general.--There shall be in the Department an 
     Inspector General for the Department. The Inspector General 
     and the Office of Inspector General shall be subject to the 
     Inspector General Act of 1978 (5 U.S.C. App.).
       (2) Establishment.--Section 11 of the Inspector General Act 
     of 1978 (5 U.S.C. App.) is amended--
       (A) in paragraph (1), by inserting ``National Homeland 
     Security,'' after ``Labor,''; and
       (B) in paragraph (2), by inserting ``National Homeland 
     Security,'' after ``Labor,''.
       (e) Director of the Coordinating Center.--
       (1) In general.--There shall be in the Department a 
     Director of the Coordinating Center who shall report directly 
     to the Deputy Secretary. The Coordinating Center shall be 
     developed and implemented in accordance with subsection 
     (b)(2)(L).
       (2) Responsibilities.--The Director of the Coordinating 
     Center shall be responsible for--
       (A) ensuring that the law enforcement, immigration, and 
     intelligence databases information systems containing 
     information relevant to homeland security are compatible; and
       (B) with respect to the functions under this paragraph, 
     ensuring compliance with Federal laws relating to privacy and 
     intelligence information.

     SEC. 102. TRANSFER OF AUTHORITIES, FUNCTIONS, PERSONNEL, AND 
                   ASSETS TO THE DEPARTMENT.

       The authorities, functions, personnel, and assets of the 
     following entities are transferred to the Department:
       (1) The Federal Emergency Management Agency, the 10 
     regional offices of which shall be maintained and 
     strengthened by the Department.
       (2) The United States Customs Service, which shall be 
     maintained as a distinct entity within the Department.
       (3) The law enforcement components of the Immigration and 
     Naturalization Service relating to Border Patrol, 
     Inspections, Investigations (interior enforcement), 
     Intelligence, Detention and Removal, and International 
     Affairs.
       (4) The United States Coast Guard, which shall be 
     maintained as a distinct entity within the Department.
       (5) The Critical Infrastructure Assurance Office of the 
     Department of Commerce.
       (6) The National Infrastructure Protection Center and the 
     National Domestic Preparedness Office of the Federal Bureau 
     of Investigation.
       (7) The Animal and Plant Health Inspection Service of the 
     Department of Agriculture, that portion of which administers 
     laws relating to agricultural quarantine inspections at 
     points of entry.

     SEC. 103. ESTABLISHMENT OF DIRECTORATES AND OFFICE.

       (a) Establishment of Directorates.--The following staff 
     directorates are established within the Department:
       (1) Directorate of Border and Transportation Protection.--
     The Directorate of Border and Transportation Protection, 
     which shall be responsible for the following:
       (A) Overseeing and coordinating all United States border 
     security activities.
       (B) Developing border and maritime security policy for the 
     United States.
       (C) Developing and implementing international standards for 
     enhanced security in transportation nodes.
       (D) Performing such other duties assigned by the Secretary.
       (2) Directorate of critical infrastructure protection.--The 
     Directorate of Critical Infrastructure Protection, which 
     shall be responsible for the following:
       (A) Acting as the Critical Information Technology, 
     Assurance, and Security Officer of the Department to 
     coordinate efforts to address the vulnerability of the United 
     States to electronic or physical attacks on critical 
     infrastructure of the United States, including utilities, 
     transportation nodes, and energy resources.
       (B) Overseeing the protection of such infrastructure and 
     the physical assets and information networks that make up 
     such infrastructure.
       (C) Ensuring the maintenance of a nucleus of cyber security 
     experts within the United States Government.
       (D) Enhancing sharing of information regarding cyber 
     security and physical security of the United States, tracking 
     vulnerabilities and proposing improved risk management 
     policies, and delineating the roles of various government 
     agencies in preventing, defending, and recovering from 
     attacks.
       (E) Coordinating with the Federal Communications Commission 
     in helping to establish cyber security policy, standards, and 
     enforcement mechanisms, and working closely with the Federal 
     Communications Commission on cyber security issues with 
     respect to international bodies.
       (F) Coordinating the activities of Information Sharing and 
     Analysis Centers to share information on threats, 
     vulnerabilities, individual incidents, and privacy issues 
     regarding United States homeland security.
       (G) Assuming the responsibilities carried out by the 
     Critical Infrastructure Assurance Office before the effective 
     date of this Act.
       (H) Assuming the responsibilities carried out by the 
     National Infrastructure Protection Center before the 
     effective date of this Act.
       (I) Performing such other duties assigned by the Secretary.
       (3) Directorate for emergency preparedness and response.--
     The Directorate for Emergency Preparedness and Response, 
     which shall be responsible for the following:
       (A) Carrying out all emergency preparedness and response 
     activities carried out by the Federal Emergency Management 
     Agency before the effective date of this Act.
       (B) Assuming the responsibilities carried out by the 
     National Domestic Preparedness Office before the effective 
     date of this Act.
       (C) Organizing and training local entities to respond to 
     emergencies and providing State and local authorities with 
     equipment for detection, protection, and decontamination in 
     an emergency involving weapons of mass destruction.
       (D) Overseeing Federal, State, and local emergency 
     preparedness training and exercise programs in keeping with 
     current intelligence estimates and providing a single staff 
     for Federal assistance for any emergency (including 
     emergencies caused by flood, earthquake, hurricane, disease, 
     or terrorist bomb).
       (E) Creating a National Crisis Action Center to act as the 
     focal point for monitoring emergencies and for coordinating 
     Federal support for State and local governments and the 
     private sector in crises.

[[Page S3877]]

       (F) Establishing training and equipment standards, 
     providing resource grants, and encouraging intelligence and 
     information sharing among the Department of Defense, the 
     Federal Bureau of Investigation, the Central Intelligence 
     Agency, State emergency management officials, and local first 
     responders.
       (G) Coordinating and integrating operational activities of 
     the Department of Defense, the National Guard, and other 
     Federal agencies into a Federal response plan.
       (H) Coordinating activities among private sector entities, 
     including entities within the medical community, with respect 
     to recovery, consequence management, and planning for 
     continuity of services.
       (I) Developing and managing a single response system for 
     national incidents in coordination with the Department of 
     Justice, the Federal Bureau of Investigation, the Department 
     of Health and Human Services, the Centers for Disease 
     Control, and other appropriate Federal departments and 
     agencies.
       (J) Maintaining Federal asset databases and supporting up-
     to-date State and local databases.
       (K) Performing such other duties as assigned by the 
     Secretary.
       (b) Establishment of Office of Science and Technology.--
       (1) In general.--There is established in the Department an 
     Office of Science and Technology.
       (2) Purpose.--The Office of Science and Technology shall 
     advise the Secretary regarding research and development 
     efforts and priorities for the directorates established in 
     subsection (a).

     SEC. 104. STEERING GROUP; COORDINATION COMMITTEE; AND 
                   ACCELERATION FUND.

       (a) Definitions.--In this section:
       (1) Coordination committee.--The term ``Coordination 
     Committee'' means the Homeland Security Science and 
     Technology Coordination Committee established under this 
     section.
       (2) Director.--The term ``Director'' means the Director of 
     the Office of Science and Technology.
       (3) Fund.--The term ``Fund'' means the Acceleration Fund 
     for Research and Development of Homeland Security 
     Technologies established under this section.
       (4) Homeland security research and development.--The term 
     ``homeland security research and development'' means research 
     and development of technologies that are applicable in the 
     detection of, prevention of, protection against, response to, 
     and recovery from homeland security threats, particularly 
     acts of terrorism.
       (5) Steering group.--The term ``Steering Group'' means the 
     Homeland Security Science and Technology Senior Steering 
     Group established under this section.
       (b) Purposes.--The purposes of this section are to--
       (1) establish a fund to leverage existing research and 
     development and accelerate the deployment of technology that 
     will serve to enhance homeland defense;
       (2) establish a committee and steering group to coordinate 
     and advise on issues relating to homeland security research 
     and development and administer the Fund; and
       (3) establish the responsibilities of the Director of the 
     Office of Science and Technology relating to homeland 
     security research and development.
       (c) Fund.--
       (1) Establishment.--There is established the Acceleration 
     Fund for Research and Development of Homeland Security 
     Technologies.
       (2) Use of fund.--The Fund may be used to--
       (A) accelerate research, development, testing, and 
     evaluation of critical homeland security technologies; and
       (B) support homeland security research and development.
       (3) Authorization of appropriations.--There are authorized 
     to be appropriated $200,000,000 to the Fund for fiscal year 
     2003.
       (d) Steering Group.--
       (1) Establishment.--There is established the Homeland 
     Security Science and Technology Senior Steering Group within 
     the Office of Science and Technology. The Director shall 
     chair the Steering Group.
       (2) Responsibilities.--The Steering Group shall--
       (A) provide recommendations and priorities to the Director; 
     and
       (B) assist the Director in establishing priorities and 
     forwarding recommendations on homeland security technology to 
     the Secretary.
       (3) Composition.--The Steering Group shall be composed, as 
     named by the Director, of senior research and development 
     officials representing all appropriate Federal departments 
     and agencies that conduct research and development relevant 
     for homeland security and combating terrorism.
       (4) Qualifications.--Each representative shall--
       (A) possess extensive experience in managing research and 
     development projects; and
       (B) be appointed by the head of the respective department 
     or agency.
       (5) Subgroups.--
       (A) In general.--At the discretion of the Director, the 
     Steering Group may be composed of subgroups with expertise in 
     specific homeland security areas.
       (B) Subgroup areas.--The Director may establish subgroups 
     in areas including--
       (i) information technology infrastructure;
       (ii) critical infrastructure;
       (iii) interoperability issues in communications technology;
       (iv) bioterrorism;
       (v) chemical, biological, radiological defense; and
       (vi) any other area as determined necessary.
       (e) Coordination Committee.--
       (1) Establishment.--There is established a Homeland 
     Security Science and Technology Coordination Committee within 
     the Office of Science and Technology. The Director shall 
     chair the Coordination Committee.
       (2) Composition.--The Coordination Committee shall be a 
     working level group composed of representatives managing 
     relevant agency research and development portfolios, 
     appointed by the head of each department or agency described 
     under subsection (d)(2).
       (3) Subgroups.--
       (A) In general.--At the discretion of the Director, the 
     Coordination Committee may be composed of subgroups with 
     relevant expertise in specific homeland security areas.
       (B) Subgroup areas.--The Director may establish subgroups 
     in areas, including--
       (i) information technology infrastructure;
       (ii) critical infrastructure;
       (iii) interoperability issues in Communications Technology;
       (iv) bioterrorism;
       (v) chemical, biological, radiological defense; and
       (vi) any other area as determined necessary.
       (4) Responsibilities.--The Coordination Committee shall 
     have the following responsibilities:
       (A) To facilitate effective communication among 
     departments, agencies, and other entities of the Federal 
     Government, with respect to the conduct of research and 
     development related to homeland security.
       (B) To identify, by consensus and on a yearly basis, 
     specific technology areas for which the Fund shall be used to 
     rapidly transition homeland security research and development 
     into deployed technology and reduce identified homeland 
     security vulnerabilities. The identified technology areas 
     shall, as determined by the Coordination Committee, be areas 
     in which there exist research and development projects that 
     address identified homeland security vulnerabilities and, 
     assuming single-year funding, can be accelerated to the stage 
     of prototyping, evaluating, transitioning, or deploying.
       (C) To administer the Fund, including--
       (i) issuing an annual multiagency program announcement 
     soliciting proposals from governmental entities, industry, 
     and academia;
       (ii) competitively selecting, on the basis of a merit-based 
     review, proposals that advance the state of deployed 
     technologies in the areas identified for that year;
       (iii) at the discretion of the Coordination Committee, 
     assigning 1 or more program managers from any department or 
     agency represented on the Coordination Committee to oversee, 
     administer, and execute a Fund project as the agent of the 
     Coordination Committee; and
       (iv) providing methods of funding administration, including 
     grant, cooperative agreement, or any other transaction.
       (f) Office of Science and Technology Responsibilities.--The 
     Director shall--
       (1) assist the Secretary, the Directorates, and cooperating 
     agencies in--
       (A) assessing and testing homeland security vulnerabilities 
     and possible threats;
       (B) evaluating and advising on maintaining talent resources 
     in key technology and skill areas required for homeland 
     security, including information security experts;
       (C) developing a system for sharing key homeland security 
     research and technology developments and opportunities with 
     appropriate Federal, State, local, and private sector 
     entities; and
       (D) proposing risk management strategies based on 
     technology developments;
       (2) assist the Directorate of Critical Infrastructure 
     Protection in the responsibilities of that Directorate;
       (3) with respect to expenditures from the Fund, exercise 
     acquisition authority consistent with the authority described 
     under section 2371 of title 10, United States Code, relating 
     to authorizing cooperative agreements and other transactions;
       (4) in hiring personnel to assist in the administration of 
     the Office of Science and Technology, have the authority to 
     exercise the personnel hiring and management authorities 
     described in section 1101 of the Strom Thurmond National 
     Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104 
     note; Public Law 105-261); and
       (5) develop and oversee the implementation of periodic 
     homeland security technology demonstrations, held at least 
     annually, for the purpose of improving contact between 
     technology developers, vendors, and acquisition personnel 
     associated with related industries.

     SEC. 105. REPORTING REQUIREMENTS.

       (a) Biennial Reports.--Every 2 years the Secretary shall 
     submit to Congress--
       (1) a report assessing the resources and requirements of 
     executive agencies relating to border security and emergency 
     preparedness issues; and
       (2) a report certifying the preparedness of the United 
     States to prevent, protect against, and respond to natural 
     disasters, cyber attacks, and incidents involving weapons of 
     mass destruction.
       (b) Additional Report.--Not later than 1 year after the 
     effective date of this Act, the

[[Page S3878]]

     Secretary shall submit to Congress a report--
       (1) assessing the progress of the Department in--
       (A) implementing this title; and
       (B) ensuring the core functions of each entity transferred 
     to the Department are maintained and strengthened; and
       (2) recommending any conforming changes in law necessary as 
     a result of the enactment and implementation of this title.

     SEC. 106. PLANNING, PROGRAMMING, AND BUDGETING PROCESS.

       The Secretary shall establish procedures to ensure that the 
     planning, programming, budgeting, and financial activities of 
     the Department comport with sound financial and fiscal 
     management principles. At a minimum, those procedures shall 
     provide for the planning, programming, and budgeting of 
     activities of the Department using funds that are available 
     for obligation for a limited number of years.

     SEC. 107. ENVIRONMENTAL PROTECTION, SAFETY, AND HEALTH 
                   REQUIREMENTS.

       The Secretary shall--
       (1) ensure that the Department complies with all applicable 
     environmental, safety, and health statutes and substantive 
     requirements; and
       (2) develop procedures for meeting such requirements.

     SEC. 108. SAVINGS PROVISIONS.

       (a) Continuing Effect of Legal Documents.--All orders, 
     determinations, rules, regulations, permits, agreements, 
     grants, contracts, recognitions of labor organizations, 
     collective bargaining agreements, certificates, licenses, 
     registrations, privileges, and other administrative actions--
       (1) which have been issued, made, granted, or allowed to 
     become effective by the President, any Federal agency or 
     official thereof, or by a court of competent jurisdiction, in 
     the performance of functions which are transferred under this 
     title; and
       (2) which are in effect at the time this Act takes effect, 
     or were final before the effective date of this Act and are 
     to become effective on or after the effective date of this 
     Act,

     shall, to the extent related to such functions, continue in 
     effect according to their terms until modified, terminated, 
     superseded, set aside, or revoked in accordance with law by 
     the President, the Secretary of National Homeland Security or 
     other authorized official, a court of competent jurisdiction, 
     or by operation of law.
       (b) Proceedings Not Affected.--The provisions of this title 
     shall not affect any proceedings, including notices of 
     proposed rulemaking, or any application for any license, 
     permit, certificate, or financial assistance pending before 
     an agency at the time this title takes effect, with respect 
     to functions transferred by this title but such proceedings 
     and applications shall continue. Orders shall be issued in 
     such proceedings, appeals shall be taken therefrom, and 
     payments shall be made pursuant to such orders, as if this 
     title had not been enacted, and orders issued in any such 
     proceedings shall continue in effect until modified, 
     terminated, superseded, or revoked by a duly authorized 
     official, by a court of competent jurisdiction, or by 
     operation of law. Nothing in this subsection shall be deemed 
     to prohibit the discontinuance or modification of any such 
     proceeding under the same terms and conditions and to the 
     same extent that such proceeding could have been discontinued 
     or modified if this title had not been enacted.
       (c) Suits Not Affected.--The provisions of this title shall 
     not affect suits commenced before the effective date of this 
     Act, and in all such suits, proceedings shall be had, appeals 
     taken, and judgments rendered in the same manner and with the 
     same effect as if this title had not been enacted.
       (d) Nonabatement of Actions.--No suit, action, or other 
     proceeding commenced by or against an agency, or by or 
     against any individual in the official capacity of such 
     individual as an officer of an agency, shall abate by reason 
     of the enactment of this title.
       (e) Administrative Actions Relating to Promulgation of 
     Regulations.--Any administrative action relating to the 
     preparation or promulgation of a regulation by an agency 
     relating to a function transferred under this title may be 
     continued by the Department of National Homeland Security 
     with the same effect as if this title had not been enacted.
       (f) Employment and Personnel.--
       (1) Interim authority for appointment and compensation.--
     Funds available to any official or component of any entity 
     the functions of which are transferred to the Department, may 
     with the approval of the Director of the Office of Management 
     and Budget, be used to pay the compensation and expenses of 
     any officer or employee under this title until such time as 
     funds for that purpose are otherwise available.
       (2) Employee rights.--
       (A) In general.--The Department or a subdivision within the 
     Department shall not be excluded under section 7103(b)(1) of 
     title 5, United States Code, from coverage under chapter 71 
     of that title unless the President determines that a majority 
     of employees within the Department or applicable subdivision 
     have, as their primary job duty, intelligence, 
     counterintelligence, or investigative work directly related 
     to terrorism investigation.
       (B) National security positions.--Employees transferred 
     under this title shall not be considered to perform work 
     which directly affects national security within the meaning 
     of section 7112(b)(6) of title 5, United States Code, unless 
     their primary job duty involves intelligence, 
     counterintelligence, or investigative duties directly related 
     to terrorism investigation. All employees transferred under 
     this title who are not in the counterterrorism positions 
     described in the preceding sentence shall continue to be 
     afforded the full rights and protections under chapter 71 of 
     title 5, United States Code.
       (g) No Affect on Intelligence Authorities.--The transfer of 
     authorities, functions, personnel, and assets of elements of 
     the United States Government under this title, or the 
     assumption of authorities and functions, by the Department of 
     Homeland Security under this title, shall not be construed, 
     in cases where such authorities, functions, personnel, and 
     assets, are engaged in intelligence activities as defined in 
     the National Security Act of 1947, as affecting the 
     authorities of the Director of Central Intelligence, the 
     Secretary of Defense, or the heads of departments and 
     agencies within the intelligence community.
       (h) References.--Any reference in any other Federal law, 
     Executive order, rule, regulation, or delegation of 
     authority, or any document of or pertaining to a department, 
     agency, or office from which a function is transferred by 
     this title--
       (1) to the head of such department, agency, or office is 
     deemed to refer to the Secretary of National Homeland 
     Security; or
       (2) to such department, agency, or office is deemed to 
     refer to the Department of National Homeland Security.

           TITLE II--NATIONAL OFFICE FOR COMBATING TERRORISM

     SEC. 201. NATIONAL OFFICE FOR COMBATING TERRORISM.

       (a) Establishment.--There is established within the 
     Executive Office of the President the National Office for 
     Combating Terrorism.
       (b) Officers.--
       (1) Director.--The head of the Office shall be the Director 
     of the National Office for Combating Terrorism, who shall be 
     appointed by the President, by and with the advice and 
     consent of the Senate.
       (2) Executive schedule level i position.--Section 5312 of 
     title 5, United States Code, is amended by adding at the end 
     the following:
       ``Director of the National Office for Combating 
     Terrorism.''.
       (3) Other officers.--The President shall assign to the 
     Office such other officers as the President, in consultation 
     with the Director, considers appropriate to discharge the 
     responsibilities of the Office.
       (c) Responsibilities.--Subject to the direction and control 
     of the President, the responsibilities of the Office shall 
     include the following:
       (1) To develop national objectives and policies for 
     combating terrorism.
       (2) To direct and review the development of a comprehensive 
     national assessment of terrorist threats and vulnerabilities 
     to those threats, which shall be--
       (A) conducted by the heads of relevant Federal agencies; 
     and
       (B) used in preparation of the Strategy.
       (3) To develop with the Secretary of National Homeland 
     Security, the Strategy under title III.
       (4) To coordinate, oversee, and evaluate the implementation 
     and execution of the Strategy by agencies of the Federal 
     Government with responsibilities for combating terrorism 
     under the Strategy, particularly those involving military, 
     intelligence, law enforcement, and diplomatic assets.
       (5)(A) To coordinate, with the advice of the Secretary of 
     National Homeland Security, the development of a 
     comprehensive annual budget for the programs and activities 
     under the Strategy, including the budgets of the military 
     departments and agencies within the National Foreign 
     Intelligence Program relating to international terrorism, but 
     excluding military programs, projects, or activities relating 
     to force protection.
       (B) To have the lead responsibility for budget 
     recommendations relating to military, intelligence, law 
     enforcement, and diplomatic assets in support of the 
     Strategy.
       (6) To exercise funding authority for Federal terrorism 
     prevention and response agencies in accordance with section 
     202.
       (7) To serve as an advisor to the National Security 
     Council.
       (d) Resources.--In consultation with the Director, the 
     President shall assign or allocate to the Office such 
     resources, including funds, personnel, and other resources, 
     as the President considers appropriate in order to facilitate 
     the discharge of the responsibilities of the Office.
       (e) Oversight by Congress.--The establishment of the Office 
     within the Executive Office of the President shall not be 
     construed as affecting access by Congress, or any committee 
     of Congress, to--
       (1) any information, document, record, or paper in the 
     possession of the Office or any study conducted by or at the 
     direction of the Director; or
       (2) any personnel of the Office.

     SEC. 202. FUNDING FOR STRATEGY PROGRAMS AND ACTIVITIES.

       (a) Budget Review.--In consultation with the Director of 
     the Office of Management and Budget, the Secretary of 
     National Homeland Security, and the heads of other executive 
     departments and agencies, the Director shall--
       (1) identify programs that contribute to the Strategy; and

[[Page S3879]]

       (2) in the development of the budget submitted by the 
     President to Congress under section 1105 of title 31, United 
     States Code, review and provide advice to the heads of 
     executive departments and agencies on the amount and use of 
     funding for programs identified under paragraph (1).
       (b) Submittal of Proposed Budgets to the Director.--
       (1) In general.--The head of each Federal terrorism 
     prevention and response agency shall submit to the Director 
     each year the proposed budget of that agency for the fiscal 
     year beginning in that year for programs and activities of 
     that agency under the Strategy during that fiscal year.
       (2) Date for submission.--The proposed budget of an agency 
     for a fiscal year under paragraph (1) shall be submitted to 
     the Director--
       (A) not later than the date on which the agency completes 
     the collection of information for purposes of the submission 
     by the President of a budget to Congress for that fiscal year 
     under section 1105 of title 31, United States Code; and
       (B) before that information is submitted to the Director of 
     the Office of Management and Budget for such purposes.
       (3) Format.--In consultation with the Director of the 
     Office of Management and Budget, the Director shall specify 
     the format for the submittal of proposed budgets under 
     paragraph (1).
       (c) Review of Proposed Budgets.--
       (1) In general.--The Director shall review each proposed 
     budget submitted to the Director under subsection (b).
       (2) Inadequate funding determination.--If the Director 
     determines under paragraph (1) that the proposed budget of an 
     agency for a fiscal year under subsection (b) is inadequate, 
     in whole or in part, to permit the implementation by the 
     agency during the fiscal year of the goals of the Strategy 
     applicable to the agency during the fiscal year, the Director 
     shall submit to the head of the agency--
       (A) a notice in writing of the determination; and
       (B) a statement of the proposed funding, and any specific 
     initiatives, that would (as determined by the Director) 
     permit the implementation by the agency during the fiscal 
     year of the goals of the Strategy applicable to the agency 
     during the fiscal year.
       (3) Adequate funding determination.--If the Director 
     determines under paragraph (1) that the proposed budget of an 
     agency for a fiscal year under subsection (b) is adequate to 
     permit the implementation by the agency during the fiscal 
     year of the goals of the Strategy applicable to the agency 
     during the fiscal year, the Director shall submit to the head 
     of the agency a notice in writing of that determination.
       (4) Maintenance of records.--The Director shall maintain a 
     record of--
       (A) each notice submitted under paragraph (2), including 
     any statement accompanying such notice; and
       (B) each notice submitted under paragraph (3).
       (d) Agency Response to Review of Proposed Budgets.--
       (1) Incorporation of proposed funding.--The head of a 
     Federal terrorism prevention and response agency that 
     receives a notice under subsection (c)(2) with respect to the 
     proposed budget of the agency for a fiscal year shall 
     incorporate the proposed funding, and any initiatives, set 
     forth in the statement accompanying the notice into the 
     information submitted to the Office of Management and Budget 
     in support of the proposed budget for the agency for the 
     fiscal year under section 1105 of title 31, United States 
     Code.
       (2) Additional information.--The head of each agency 
     described under paragraph (1) for a fiscal year shall include 
     as an appendix to the information submitted to the Office of 
     Management and Budget under that paragraph for the fiscal 
     year the following:
       (A) A summary of any modifications in the proposed budget 
     of such agency for the fiscal year under that paragraph.
       (B) An assessment of the effect of such modifications on 
     the capacity of such agency to perform its responsibilities 
     during the fiscal year other than its responsibilities under 
     the Strategy.
       (3) Submission to congress.--
       (A) In general.--Subject to subparagraph (B), the head of 
     each agency described under paragraph (1) for a fiscal year 
     shall submit to Congress a copy of the appendix submitted to 
     the Office of Management and Budget for the fiscal year under 
     paragraph (2) at the same time the budget of the President 
     for the fiscal year is submitted to Congress under section 
     1105 of title 31, United States Code.
       (B) Elements within intelligence programs.--In the 
     submission of the copy of the appendix to Congress under 
     subparagraph (A), those elements of the appendix which are 
     within the National Foreign Intelligence Program shall be 
     submitted to--
       (i) the Select Committee on Intelligence of the Senate; and
       (ii) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       (e) Submittal of Revised Proposed Budgets.--
       (1) In general.--At the same time the head of a Federal 
     terrorism prevention and response agency submits its proposed 
     budget for a fiscal year to the Office of Management and 
     Budget for purposes of the submission by the President of a 
     budget to Congress for the fiscal year under section 1105 of 
     title 31, United States Code, the head of the agency shall 
     submit a copy of the proposed budget to the Director.
       (2) Review and decertification authority.--The Director of 
     the National Office for Combating Terrorism--
       (A) shall review each proposed budget submitted under 
     paragraph (1); and
       (B) in the case of a proposed budget for a fiscal year to 
     which subsection (c)(2) applies in the fiscal year, if the 
     Director determines as a result of the review that the 
     proposed budget does not include the proposed funding, and 
     any initiatives, set forth in the notice under that 
     subsection with respect to the proposed budget--
       (i) may decertify the proposed budget; and
       (ii) with respect to any proposed budget so decertified, 
     shall submit to Congress--

       (I) a notice of the decertification;
       (II) a copy of the notice submitted to the agency concerned 
     for the fiscal year under subsection (c)(2)(B); and
       (III) the budget recommendations made under this section.

       (f) National Terrorism Prevention and Response Program 
     Budget.--
       (1) In general.--For each fiscal year, following the 
     submittal of proposed budgets to the Director under 
     subsection (b), the Director shall, in consultation with the 
     Secretary of National Homeland Security and the head of each 
     Federal terrorism prevention and response agency concerned--
       (A) develop a consolidated proposed budget for such fiscal 
     year for all programs and activities under the Strategy for 
     such fiscal year; and
       (B) subject to paragraph (2), submit the consolidated 
     proposed budget to the President and to Congress.
       (2) Elements within intelligence programs.--In the 
     submission of the consolidated proposed budget to Congress 
     under paragraph (1)(B), those elements of the budget which 
     are within the National Foreign Intelligence Program shall be 
     submitted to--
       (A) the Select Committee on Intelligence of the Senate; and
       (B) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       (3) Designation of consolidated proposed budget.--The 
     consolidated proposed budget for a fiscal year under this 
     subsection shall be known as the National Terrorism 
     Prevention and Response Program Budget for the fiscal year.
       (g) Reprogramming and Transfer Requests.--
       (1) Approval by the director.--The head of a Federal 
     terrorism prevention and response agency may not submit to 
     Congress a request for the reprogramming or transfer of any 
     funds specified in the National Terrorism Prevention and 
     Response Program Budget for programs or activities of the 
     agency under the Strategy for a fiscal year in excess of 
     $5,000,000 without the approval of the Director.
       (2) Approval by the president.--The President may, upon the 
     request of the head of the agency concerned, permit the 
     submittal to Congress of a request previously disapproved by 
     the Director under paragraph (1) if the President determines 
     that the submittal of the request to Congress will further 
     the purposes of the Strategy.

 TITLE III--NATIONAL STRATEGY FOR COMBATING TERRORISM AND THE HOMELAND 
                           SECURITY RESPONSE

     SEC. 301. STRATEGY.

       (a) Development.--The Secretary and the Director shall 
     develop the National Strategy for Combating Terrorism and 
     Homeland Security Response for detection, prevention, 
     protection, response, and recovery to counter terrorist 
     threats, including the plans, policies, training, exercises, 
     evaluation, and interagency cooperation that address each 
     such action relating to such threats.
       (b) Responsibilities.--
       (1) Responsibilities of the secretary.--The Secretary shall 
     have responsibility for portions of the Strategy addressing 
     border security, critical infrastructure protection, 
     emergency preparation and response, and integrating State and 
     local efforts with activities of the Federal Government.
       (2) Responsibilities of the director.--The Director shall 
     have overall responsibility for development of the Strategy, 
     and particularly for those portions of the Strategy 
     addressing intelligence, military assets, law enforcement, 
     and diplomacy.
       (c) Contents.--The contents of the Strategy shall include--
       (1) policies and procedures to maximize the collection, 
     translation, analysis, exploitation, and dissemination of 
     information relating to combating terrorism and the homeland 
     security response throughout the Federal Government and with 
     State and local authorities;
       (2) plans for countering chemical, biological, 
     radiological, nuclear and explosives, and cyber threats;
       (3) plans for improving the resources of, coordination 
     among, and effectiveness of health and medical sectors for 
     detecting and responding to terrorist attacks on the 
     homeland;
       (4) specific measures to enhance cooperative efforts 
     between the public and private sectors in protecting against 
     terrorist attacks;
       (5) a review of measures needed to enhance transportation 
     security with respect to potential terrorist attacks; and
       (6) other critical areas.
       (d) Cooperation.--At the request of the Secretary or 
     Director, departments and

[[Page S3880]]

     agencies shall provide necessary information or planning 
     documents relating to the Strategy.
       (e) Interagency Council.--
       (1) Establishment.--There is established the National 
     Combating Terrorism and Homeland Security Response Council to 
     assist with preparation and implementation of the Strategy.
       (2) Membership.--The members of the Council shall be the 
     heads of the Federal terrorism prevention and response 
     agencies or their designees. The Secretary and Director shall 
     designate such agencies.
       (3) Co-chairs and meetings.--The Secretary and Director 
     shall co-chair the Council, which shall meet at their 
     direction.
       (f) Submission to Congress.--Not later than December 1, 
     2003, and each year thereafter in which a President is 
     inaugurated, the Secretary and the Director shall submit the 
     Strategy to Congress.
       (g) Updating.--Not later than December 1, 2005, and on 
     December 1, of every 2 years thereafter, the Secretary and 
     the Director shall submit to Congress an updated version of 
     the Strategy.
       (h) Progress Reports.--Not later than December 1, 2004, and 
     on December 1, of each year thereafter, the Secretary and the 
     Director may submit to Congress a report that--
       (1) describes the progress on implementation of the 
     Strategy; and
       (2) provides recommendations for improvement of the 
     Strategy and the implementation of the Strategy.

     SEC. 302. NATIONAL COMBATING TERRORISM STRATEGY PANEL.

       (a) Establishment.--The Secretary and the Director shall 
     establish a nonpartisan, independent panel to be known as the 
     National Combating Terrorism Strategy Panel (in this section 
     referred to as the ``Panel'').
       (b) Membership.--
       (1) Appointment.--The Panel shall be composed of a 
     chairperson and 8 other individuals appointed by the 
     Secretary and the Director, in consultation with the chairman 
     and ranking member of the Committee on Governmental Affairs 
     of the Senate and the chairman and ranking member of the 
     Committee on Government Reform of the House of 
     Representatives, from among individuals in the private sector 
     who are recognized experts in matters relating to the 
     homeland security of the United States.
       (2) Terms.--
       (A) In general.--An individual shall be appointed to the 
     Panel for an 18-month term.
       (B) Term periods.--Terms on the Panel shall not be 
     continuous. All terms shall be for the 18-month period which 
     begins 12 months before each date a report is required to be 
     submitted under subsection (l)(2)(A).
       (C) Multiple terms.--An individual may serve more than 1 
     term.
       (c) Duties.--The Panel shall--
       (1) conduct and submit to the Secretary the assessment of 
     the Strategy; and
       (2) conduct the independent, alternative assessment of 
     homeland security measures required under this section.
       (d) Alternative Assessment.--The Panel shall submit to the 
     Secretary an independent assessment of the optimal policies 
     and programs to combat terrorism, including homeland security 
     measures. As part of the assessment, the Panel shall, to the 
     extent practicable, estimate the funding required by fiscal 
     year to achieve these optimal approaches.
       (e) Information From Federal Agencies.--
       (1) In general.--Subject to paragraph (2), the Panel may 
     secure directly from any Federal department or agency such 
     information as the Panel considers necessary to carry out 
     this section. Upon request of the Chairperson, the head of 
     such department or agency shall furnish such information to 
     the Panel.
       (2) Intelligence information.--The provision of information 
     under this paragraph related to intelligence shall be 
     provided in accordance with procedures established by the 
     Director of Central Intelligence and in accordance with 
     section 103(d)(3) of the National Security Act of 1947 (50 
     U.S.C. 403-3(d)(3)).
       (f) Compensation of Members.--Each member of the Panel 
     shall be compensated at a rate equal to the daily equivalent 
     of the annual rate of basic pay prescribed for level IV of 
     the Executive Schedule under section 5315 of title 5, United 
     States Code, for each day (including travel time) during 
     which such member is engaged in the performance of the duties 
     of the Panel.
       (g) Travel Expenses.--The members of the Panel shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Panel.
       (h) Staff.--
       (1) In general.--The Chairperson of the Panel may, without 
     regard to the civil service laws and regulations, appoint and 
     terminate an executive director and such other additional 
     personnel as may be necessary to enable the Panel to perform 
     its duties. The employment of an executive director shall be 
     subject to confirmation by the Panel.
       (2) Compensation.--The Chairperson of the Panel may fix the 
     compensation of the executive director and other personnel 
     without regard to chapter 51 and subchapter III of chapter 53 
     of title 5, United States Code, relating to classification of 
     positions and General Schedule pay rates, except that the 
     rate of pay for the executive director and other personnel 
     may not exceed the rate payable for level V of the Executive 
     Schedule under section 5316 of such title.
       (3) Personnel as federal employees.--
       (A) In general.--The executive director and any personnel 
     of the Panel who are employees shall be employees under 
     section 2105 of title 5, United States Code, for purposes of 
     chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.
       (B) Members of panel.--Subparagraph (A) shall not be 
     construed to apply to members of the Panel.
       (4) Reduction of staff.--During periods that members are 
     not serving terms on the Panel, the executive director shall 
     reduce the number and hours of employees to the minimum 
     necessary to--
       (A) provide effective continuity of the Panel; and
       (B) minimize personnel costs of the Panel.
       (i) Detail of Government Employees.--Any Federal Government 
     employee may be detailed to the Panel without reimbursement, 
     and such detail shall be without interruption or loss of 
     civil service status or privilege.
       (j) Administrative Provisions.--
       (1) Use of mail and printing.--The Panel may use the United 
     States mails and obtain printing and binding services in the 
     same manner and under the same conditions as other 
     departments and agencies of the Federal Government.
       (2) Support services.--The Secretary shall furnish the 
     Panel any administrative and support services requested by 
     the Panel.
       (3) Gifts.--The Panel may accept, use, and dispose of gifts 
     or donations of services or property.
       (k) Payment of Panel Expenses.--The compensation, travel 
     expenses, and per diem allowances of members and employees of 
     the Panel shall be paid out of funds available to the 
     Department for the payment of compensation, travel 
     allowances, and per diem allowances, respectively, of 
     civilian employees of the Department. The other expenses of 
     the Panel shall be paid out of funds available to the 
     Department for the payment of similar expenses incurred by 
     the Department.
       (l) Reports.--
       (1) Preliminary report.--
       (A) Report to secretary.--Not later than July 1, 2004, the 
     Panel shall submit to the Secretary and the Director a 
     preliminary report setting forth the activities and the 
     findings and recommendations of the Panel under subsection 
     (d), including any recommendations for legislation that the 
     Panel considers appropriate.
       (B) Report to congress.--Not later than 30 days after the 
     submission of the report under subparagraph (A), the 
     Secretary and the Director shall submit to the committees 
     referred to under subsection (b) a copy of that report with 
     the comments of the Secretary on the report.
       (2) Quadrennial reports.--
       (A) Reports to secretary.--Not later than December 1, 2004, 
     and not later than December 1 every 4 years thereafter, the 
     Panel shall submit to the Secretary and the Director a report 
     setting forth the activities and the findings and 
     recommendations of the Panel under subsection (d), including 
     any recommendations for legislation that the Panel considers 
     appropriate.
       (B) Reports to congress.--Not later than 60 days after each 
     report is submitted under subparagraph (A), the Secretary 
     shall submit to the committees referred to under subsection 
     (b) a copy of the report with the comments of the Secretary 
     and the Director on the report.

                        TITLE IV--EFFECTIVE DATE

     SEC. 401. EFFECTIVE DATE.

       This Act shall take effect 180 days after the date of 
     enactment of this Act.
                                 ______
                                 
      By Mr. THURMOND (for himself and Mr. Allard):
  S. 2453. A bill to provide for the disposition of weapons-usable 
plutonium at the Savannah River Site South Carolina; to the Committee 
on Energy and Natural Resources.
  Mr. THURMOND. Mr. President, I rise today to introduce legislation 
that will provide for the disposition of weapons usable plutonium at 
the Savannah River Site, South Carolina. This bill will ensure the 
State of South Carolina will have an enforceable agreement on the 
construction and operation of a mixed-oxide, MOX, fuel fabrication 
facility at the Savannah River Site. The bill also provides for clear 
pathway to remove any weapons-usable plutonium from our State if the 
MOX facility is delayed or fails to operate as planned.
  The Plutonium Disposition program is an important element of our 
National Security. Under agreements made by the United States and the 
Russian Federation, each Nation agreed to dispose of designated amounts 
of weapons-grade plutonium. This agreement is a significant step toward 
safeguarding nuclear materials and preventing their diversion to rogue 
states. In addition, it has been widely acknowledged that Russian 
criminal

[[Page S3881]]

groups are attempting to steal weapons-usable plutonium from poorly 
secured sites for known terrorist organizations, and therefore most 
certainly this is a matter of extreme National Security.
  The MOX facility will be an important economic factor in my State. As 
a result of this bill, Department of Energy officials will also know 
that SRS, the largest industrial employer in my State, will be ready 
and eager to accept new missions and create jobs. Helping the Savannah 
River Site SRS, grow and remain the ``Crown Jewel'' among Department of 
Energy facilities has been one of my proudest achievements of public 
service as a Senator and Governor of my State. South Carolina and the 
Department of Energy have had an outstanding working relationship to 
bring jobs to SRS while helping to defend our National Security.
  I deeply regretted the recent dispute over the mixed oxide (MOX) fuel 
fabrication facility and the Federal lawsuit that was recently filed. I 
have called for reasoned and mature thinking to prevail in this matter. 
This legislation is intended to provide the assurances to both parties 
and restore the elements of trust and cooperation, while protecting the 
interests of the State and the health, safety and economy of its 
citizens. Interested parties must not fail to view this matter without 
taking all the factors into consideration. The health and security of 
South Carolinians must always be protected. current and future jobs in 
South Carolina must be protected. The National Security of the United 
States must be protected. The legislation I am introducing today will 
accomplish all of these objectives.
  This initiative is good government and I encourage its support by my 
colleagues. I yield the floor.

                          ____________________