Congressional Record, Volume 148 Issue 53 (Thursday, May 2, 2002)

[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

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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

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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

[[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

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

[[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.

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.

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.

[[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.
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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.

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