[Congressional Record Volume 149, Number 31 (Wednesday, February 26, 2003)]
[Pages S2724-S2767]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

                           EXECUTIVE SESSION

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session and resume consideration of Executive 
Calendar Order No. 21, which the clerk will report.
  The assistant legislative clerk read the nomination of Miguel A. 
Estrada, of Virginia, to be United States Circuit Judge for the 
District of Columbia Circuit.
  The PRESIDING OFFICER. The Senator from Nevada.

                            Order For Recess

  Mr. REID. Before the majority leader leaves the floor on a matter 
regarding what we are going to do this afternoon, at 2:30 today it is 
my understanding the Secretary of Defense will be here to brief 
Senators. I think it would be in everyone's interest if we had at least 
an hour recess during the time the Secretary is here.
  Mr. FRIST. Mr. President, given the circumstances surrounding and 
leading to the discussion today at 2:30, that would be satisfactory on 
our part.
  We will likely be in session late this afternoon, into the evening, 
because there are a number of issues we do want to address. It is 
appropriate to be in recess from 2:30 to 3:30 today.
  Mr. REID. I ask unanimous consent that that be in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. REID. Mr. President, Senator Hatch is in the Chamber, as well as 
Senator Dorgan, who has been trying to speak for 2 days now. It is 
obvious there are not enough votes, as indicated by the letter sent to 
the President. The fact is that there are three ways to dispose of 
Estrada: No. 1, pull the nomination so we can go to other issues that 
affect this country, such as the economy, such as have a discussion 
relating to the global warming document that came out today indicating 
there certainly needs to be a lot more done regarding global warming. 
It certainly is time we should be talking about the education of our 
children. Yesterday, the Democratic leader offered an economic stimulus 
plan. We wanted to bring that to the floor. So the nomination should be 
pulled for those other reasons.
  If that is not the case, then there is another way of disposing of 
this matter perhaps--by having the majority file a cloture motion. That 
failing, it seems to me they should meet our request to have him 
honestly--I should not say honestly--thoroughly answer questions that 
have been propounded to him; and, secondly, submit the memos to this 
body, at least to the Judiciary Committee, so they can review the memos 
he wrote while he was Solicitor General.
  That failing, we can stay in tonight and tomorrow night, whatever the 
leader decides to do, but as I have indicated before, now that the 
majority has changed, the majority has to preside and we will have 
people to protect our interests on the floor, so that is certainly no 
punishment to us.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have been interested in the approach by 
the other side. Yesterday, they came on the floor and said, oh, my 
goodness, we should get rid of this because we have so many important 
issues to take care of. There is one way to get it rid of it, and that 
is to let the people's representatives in the Senate vote. That is what 
the Washington Post said: Just vote. Vote up or down.
  The real reason they are not allowing a vote--because, as we can see 
from the letter, we have at least 52 votes and there have been at least 
3 other Senators on the minority side who have said they are going to 
vote for Mr. Estrada. So there are at least 55 votes for Mr. Estrada, 
and I believe there will be others votes as well.
  It is one thing to support your party and to stand in an intractable 
way against the first Hispanic ever nominated to the Circuit Court of 
Appeals for the District of Columbia. It is another thing to come on 
the floor and say we are not going about the people's business because 
we are dealing with this incidental judicial nomination. Well, it is 
not incidental. It is one of the most important nominations in the 
  This is a man who really deserves to be on the Circuit Court of 
Appeals for the District of Columbia. This is a man who has every 
credential and has not had a glove laid on him. That is why the fishing 
expedition request into privileged matters. They want to get his 
recommendations, or I suppose in the future anybody's recommendations, 
especially Republicans who might have worked in the Solicitor General's 
Office, on appeals, on certiorari petitions, and on amicus curiae 
matters. Those have never been given to anybody. Those are the crucial 
documents upon which the Solicitor General, the people's attorney, 
makes decisions as to where to go and what to do. There is only one 
reason they would like to get these privileged documents, and that is 
they are on a fishing expedition because they have not been able to 
find anything to hang on Miguel Estrada yet, other than these phony 
accusations that he has not answered the questions.
  My gosh, the hearing transcript is that thick; the briefs he has 
filed and the answers in the testimony before the Supreme Court, two 
volumes, that thick. They have more materials on Mr. Estrada to know 
what he is and what he is about than almost any judicial nominee, other 
than the Supreme Court, who has been nominated in the whole 27 years I 
have been in the Senate. I think my colleagues can take it

[[Page S2725]]

from me because I have been involved in every one of these nominations. 
As chairman, now twice, I can say there has very seldom been anybody as 
scrutinized as Mr. Estrada. And since there is still nothing they can 
point to that is a good reason for keeping him out of this position, 
what one has to conclude is the reason they are doing this--well, I 
will leave that up to the American people, and I will leave it up to 
the people in the Hispanic community. My personal conclusion is that 
they do not like having a Republican, Hispanic, conservative who thinks 
for himself as an independent thinker.
  Mr. DURBIN. Will the Senator yield?
  Mr. HATCH. Not yet. I will make a statement first before I yield for 
a question. I will do that later, however. I have been very good about 
yielding, so I hope my colleague does not feel badly about my decision 
to make my statement first.
  I cannot believe the arguments that have been used in this matter, 
and I cannot believe my colleagues on the other side, with their feet 
in concrete, cannot understand why this is such an important 
  The fact is this fellow is immensely qualified. I have had countless 
people tell me that, in addition to my own studies, and I have had a 
lot of Democrats say he is really qualified--but.
  ``But'' what? These phony accusations that he has not answered 
questions? Come on. The Democrats conducted the hearings. They 
controlled the process. They could have kept the hearings going for 
days. It would have been very unusual for them to do that, but they 
could have. The hearings were conducted by Senator Schumer. Every 
Democrat had a chance to come and ask questions. After the hearings 
were over, they had an opportunity to present written questions to him. 
Guess how many of those nine Democrats offered written questions. Only 
two of them.
  I will say, the distinguished Senator from Illinois has tried to get 
to the bottom of what he is concerned about in Federal judgeships. I 
commend him for it. He wrote questions, and he got answers. Senator 
Kennedy, who takes a very active role on the committee, wrote 
questions, and he got answers. Where were the rest of them? Why all the 
complaining now, 2 years later? Are we going to make every circuit 
court of appeals judge wait 2 years?
  Actually, we are finding a slowdown in the Federal judiciary like I 
have never seen before, except for district court nominees about whom 
they do not seem to worry too much. If they are qualified, district 
court nominees are the trial court nominees. Circuit court nominees 
should be qualified, too, and this one--I would not say overly 
qualified, but not many people can match his qualifications in this 
whole society today--here, in the 10th or 11th day of debate, he is 
being treated very shabbily.
  We are in the middle of a filibuster, no matter what anyone says. 
That is exactly what it is. I noted my friend from New York, Senator 
Schumer, said on Sunday this is not a filibuster. If it is not, I don't 
know what it is. And, frankly, I know a lot about filibusters, having 
led one of the most important filibusters in history on labor law 
reform in 1978 that lasted at least a month. It was very tough, mean, 
miserable, and in some ways tremendously difficult.
  My colleague, the distinguished ranking member on the committee, on 
June 18, 1998, said: ``I have stated over and over again on this floor 
that I would . . . object and fight against any filibuster on a judge, 
whether it is somebody I opposed or supported.''
  So I suppose the distinguished Senator from Vermont will be another 
vote for Mr. Estrada, if he really meant what he said. Knowing him, I 
am sure he did mean what he said. So that would get us up to 56 votes 
right there. He also said: ``I do not want to get to having to invoke 
cloture on judicial nominations. I think it is a bad precedent.''
  Boy, I sure agree with that. I spent 6 years during the Clinton years 
when a lot of liberal judges were put up, who were qualified, arguing 
with some on our side, a relative few, but some who believed we should 
filibuster those judges. I said: No way. We can't get into 
filibustering of judges. It diminishes the power of the administration, 
the executive office, the executive branch of Government, which is 
supposed to be coequal with the legislative branch. But in addition to 
diminishing the power of the executive branch, it diminishes the power 
of the judiciary with regard to its coequality with the executive 
branch, so both would be diminished while the executive branch was 
augmented and made superior over both of those branches.

  Why? Because a filibuster means that from here on in, with every 
nominee who may be ``controversial,'' you are going to have to have a 
supermajority of 60 votes. Or will you? If the Democrats have their 
way, that is how it will be. And it will be both ways. There will not 
be any more well-known liberals or well-known conservatives, as great 
as many in the past have been, on the courts of this country; there 
will be people who do not have a paper trail, do not have any opinions, 
on whom you do not know what is going on in their minds. They will be 
the only ones who can get through for the circuit court of appeals 
positions or the Supreme Court. That would be indeed a tragedy for this 
  What we get when we elect a President is a person who picks the 
judges in this country. The Senate's obligation is to vote on those 
judges. If you do not like what you see, you vote no. If you like what 
you see, you vote aye. But they get a vote on the Senate floor. That is 
not what is happening here.
  If press reports are to be believed, some Senators are contemplating 
a dramatic change to the Senate's treatment of the President's judicial 
nominees. A new requirement: The nominees to the Nation's courts must 
receive at least 60 votes in order to be confirmed. Since our friends 
on the other side are filibustering Mr. Estrada's nomination to the 
Circuit Court of Appeals for the District of Columbia, and if the 
filibuster results in the nomination being rejected, Democrats will 
have forced a permanent change in the political and constitutional 
landscape, a very dangerous and bad change.
  Mr. DURBIN. Will the Senator yield?
  Mr. HATCH. I am happy to.
  Mr. DURBIN. I will only ask one question and would like the Senator's 
  I think there has been a very constructive and valuable suggestion by 
one of your colleagues, Senator Bennett of Utah, who came to the floor 
last week and suggested, to end this impasse, that we can finally bring 
this matter to a vote on Mr. Estrada simply by producing the 
controversial documents to be reviewed by you and Senator Leahy, and if 
a decision is made by either of you that there is something worth 
pursuing by way of written questions or further hearing, then we can 
bring this to closure.
  I asked Senator Daschle on the floor yesterday, would this be a good 
end game for the Estrada issue? He said it was acceptable to him. So I 
ask the Senator from Utah if he would entertain the suggestion of his 
colleague, Senator Bennett, to produce these work documents that 
reflect on Mr. Estrada's philosophy, for you, personally, for Senator 
Leahy personally, and followup, if necessary, so that we can finally 
move on to important issues that we should be considering on the Senate 
  Mr. HATCH. That is a good question. I have to say, no administration 
worth their salt, no executive branch of government worth any 
constitutional knowledge, would give up those papers, even to people 
they trust, such as Senator Leahy and myself. The reason is they have 
to maintain the dignity of that Solicitor General's Office. They have 
to maintain the discipline of that office. They have to maintain the 
privileged nature of those documents. If those documents are disclosed, 
that means they will have to be disclosed henceforth forever in every 
case where a person has worked in the Solicitor General's office. It 
would demean the office and diminish the ability to get forthright and 
accurate information, and it would impinge upon the work of the 
Solicitor General.

  The only reason those letters were written requesting those documents 
is that they knew this would constitute a red herring. The only thing 
they have to argue against Miguel Estrada is a red herring, so they can 
say: We cannot vote for him because we cannot get these documents. 
Which is right, they cannot get them. No self-respecting administration 
would give them.

[[Page S2726]]

  Mr. DURBIN. One last question. The chairman suggested it would be 
unprecedented to produce these documents. But is the chairman not aware 
of the fact that similar documents were produced when William Rehnquist 
was being nominated to the Chief Justice of the Supreme Court, when 
Robert Bork's nomination came before the Senate, Benjamin Civiletti, 
and several other cases?
  This is not unprecedented and has happened before. To suggest this 
administration would be breaking new ground--would the Senator from 
Utah concede that other administrations, Republican administrations, 
and Democrat, have disclosed this kind of information? We are 
suggesting, through Senator Bennett, a limited disclosure to you and 
Senator Leahy--
  Mr. HATCH. The Senator is again mistaken. He is absolutely wrong, 
totally inaccurate.
  The fact is the request was for his recommendation on his appeal 
recommendations, his certiorari recommendations, his amicus curiae 
recommendations. Those have never ever been given to anybody up here on 
Capitol Hill. And they shouldn't be given to anybody. Those are the 
most crucial recommendations the Solicitor General gets and relies 
  There are some cases where documents for appeal, certiorari, amicus 
curiae documents, were leaked to Democrat Senators in the past, and 
there were one or two cases where there were allegations of criminal 
behavior, or potential criminal behavior, where very selected documents 
were produced. But there has never, ever been a production of internal, 
privileged recommendations for appeals, certiorari, and amicus curiae. 
Again, the Senator is mistaken. I hesitate to point that out, but it is 
something that has to be pointed out.
  I believe with all my heart that my friends on the other side know 
that. So this is a phony issue they have raised. Here is a man who has 
the highest rating of the American Bar Association, given by a majority 
of Democrats who have supported financially other Democrats, and yet 
they found him worthy of the highest rating of the American Bar 
Association. I know my colleagues do not like that, even though many of 
them said he deserves it, he is that good, but we are going to vote 
against cloture anyway--because we are Democrats, I guess.
  Is that really the reason? What is the reason there is a double 
standard with regard to Miguel Estrada? Is it because we are Democrats? 
I hope not. Is it because we are liberals? You got that one right. Is 
it because he is an independent thinker? You have that one right. Is 
it because he just does not toe the line of the Democratic Party? You 
got that right. Is it because he is a Republican Hispanic? You got that 
right. Is it because he is a Republican Hispanic who may be 
conservative? You bet. Is it because he is a Republican Hispanic who 
may be conservative who might even be pro-life? I don't know what he is 
that way, but that is surely part of it.

  In other words, it is a double standard, even though we did not take 
that standard on our side. There were some who wanted to, I admit that. 
But I didn't take that standard in approving 377 Clinton judges, the 
second all-time record of judicial confirmations in the history of the 
Presidency, second only to Ronald Reagan, who had 6 years of a 
Republican Senate to help him, where President Clinton had only 2 years 
of a Democrat Senate to help him.
  Think about it. What do you conclude is the reason they are fighting 
this? Because they found something wrong with Miguel Estrada? Show me 
what it is. Because of this red herring issue--and they know it is a 
red herring issue--that they know is improper to even ask for?
  But counting on their friends in the media to ignore the seven former 
Solicitors General, four of whom are Democrat, leading liberal Democrat 
Solicitors General who say those papers should never be given to the 
legislative branch--it would upset and ruin the work of the Solicitor 
General of the United States; he is the people's attorney. That is the 
only thing they have. Yet they are filibustering this man, this 
Hispanic, this first Hispanic ever nominated to the Circuit Court of 
Appeals for the District of Columbia, and one of the few ever nominated 
to the circuit courts of appeals in this country. It is amazing to me.
  What really louses this up for them, as far as I am concerned, is 
their claim that he does not have any judicial experience; therefore, 
he should not have this position. That is condemning every Hispanic 
lawyer to never be a Federal court judge, by and large, because hardly 
any of them have judicial experience. The only way they get it is by 
rising in the profession, like Miguel Estrada, reaching the top of the 
profession, and getting nominated by a President of the United States.
  It is a tough road for Hispanics. Here is one who has made it, and my 
colleagues on the other side are standing in his way, blocking his 
path, taking away his future. He is the embodiment of the American 
dream, and they are taking away his future as a judge. I suppose part 
of it also is to discourage conservative Hispanics, conservatives of 
other minorities, from wanting to be judges if they are Republicans 
because it is not worth going through this kind of a battle.
  I chatted with Miguel Estrada yesterday. Miguel Estrada said it is 
worth going through this battle. He will do a great job on that court. 
He will do it in the best interests of the American people, regardless 
of ideology. That is basically what he said in answers to these 
questions that were raised by Democrats. He basically said he would 
follow the law as he always has as a top-flight attorney.
  Now, are we going to have to have 60 votes to confirm 
``controversial'' nominees? If his nomination is rejected by a 
filibuster, then Democrats will have forced a permanent change in the 
political and constitutional landscape.
  Never again could any future President--or even this President--
fairly expect a judicial nominee, whose nomination reaches the Senate 
floor, to receive an up-or-down vote. And never again would the Senate 
minority party fear that blocking of a judicial nominee by partisan 
filibuster, or 41 votes, was unprecedented.
  If the Estrada nomination is permanently blocked by filibuster, the 
political baseline shifts forever. What is sauce for the goose is going 
to be sauce for the gander. And I think it is terrible. I am doing 
everything in my power to fight against that. It is even bigger than 
this nomination, as important as this nomination is, because it could 
taint the Federal judiciary henceforth and forever because of partisan 
politics on the Democrat side.
  To understand just how stunningly extraordinary this state of affairs 
is, one needs to examine the Senate's record of confirming judicial 
  The first filibuster of a judicial nominee that resulted in a cloture 
vote was in 1968. In other words, in all the history of this country, 
that was the first filibuster, in 1968. Since then, the Senate has 
confirmed approximately 1,600 judicial nominations--since 1968. That 
filibuster was on the Fortas nomination. Since then, they have 
confirmed approximately 1,600 judicial nominations, and the vast 
majority--nearly 1,500--of them without even a rollcall vote, as most 
are confirmed by unanimous consent.
  Indeed, of those some 1,600 judicial nominations confirmed by the 
Senate since 1968, only 14 even underwent a cloture vote. And with the 
exception of the bipartisan 1968 filibuster of Abe Fortas's nomination 
to be Chief Justice of the United States, the Senate has never--let me 
repeat that--has never blocked by filibuster a judicial nominee to any 
court in this land--never; never--until this, I think, ill-fated, 
hopefully, attempt on the part of some of our colleagues on the other 
  I am just wondering why some of my strong colleagues are being led 
like lambs to the slaughter in this matter without standing up and 
saying: Hey, enough is enough. We have made our point. We have roughed 
this guy up. We made it clear to him that, ``you had better behave 
yourself on the court or you will never be on the Supreme Court.'' That 
is part of this, I know. That may be a legitimate part as far as I am 
concerned. They have a right to rough anybody up, I suppose, although I 
question the propriety of it from time to time.
  What follows is an account of all past debates over judicial nominees 

[[Page S2727]]

required cloture votes. The history establishes a consistent, 
bipartisan resistance to taking the step that some Democrats are really 
doing right now.
  Let me talk about the bipartisan Fortas filibuster because, indeed, 
that was a bipartisan filibuster. It was not just one side, as it is 
here. But I decry that. That filibuster should not have occurred 
  Judicial nominations have been especially contentious since the days 
of the Warren Court. That was from 1954 to 1969. Nowhere has that 
controversy been more pronounced than for nominees to the Nation's 
highest court. In particular, Supreme Court nominees such as Abe 
Fortas, William Rehnquist, and Clarence Thomas all faced considerable 
opposition in the Senate during their confirmations. Yet despite this 
controversy, only one nomination, Justice Fortas's nomination to be 
Chief Justice in the tumultuous summer of 1668, caused the Senate to 
filibuster and block confirmation.
  President Lyndon Johnson nominated Associate Justice Abe Fortas to be 
Chief Justice in June of 1968. A bipartisan coalition of Senators soon 
formed to oppose Justice Fortas's elevation. The reasons were varied. 
Some opposed the nomination because Justice Fortas often joined the 
``progressive'' Earl Warren wing of the activist Supreme Court. Other 
Senators opposed Fortas because of his admissions before the Judiciary 
Committee that he remained involved in White House political affairs 
even while serving on the Supreme Court, including advising the 
President during the Vietnam war and the then-recent race riots in 
Detroit. When it was discovered that Justice Fortas accepted $15,000--
more than $75,000 in 2001 dollars--from controversial sources to teach 
a 9-week academic course, his support further deteriorated. Yet as the 
heated 1968 election season continued, some Democrats were wary of 
defeating Fortas if that meant leaving the nomination to soon-to-be-
President-elect Richard Nixon.
  Nevertheless, bipartisan opposition to Fortas's elevation was 
substantial and the filibuster did ensue. The filibuster itself was 
controversial, as some Republicans, such as Nixon himself, believed 
that Fortas should receive an up-or-down vote as a matter of principle. 
That would have been my position at the time. And it is my position 
now. Senators persisted, and on October 1, a cloture vote failed by a 
margin of 45 to 43. Twenty-four Republicans and nineteen Democrats 
voted against the cloture motion, with 10 Republicans and 35 Democrats 
in favor of cutting off debate. President Johnson then withdrew the 
  Now let me chat a little bit about the effect of the Fortas 
filibuster on future Supreme Court battles.
  After the Fortas filibuster, the Senate rejected outright two of 
President Nixon's nominees to the Supreme Court, Clement Haynsworth--
that was on a vote of 45 to 55--and G. Harold Carswell--on a vote of 48 
to 51. But neither nominee faced a filibuster attempt despite the close 
votes. The Fortas affair is, therefore, especially important for what 
it did not lead to: a pattern of blocking by filibuster controversial 
judicial nominees.
  That refusal to block nominees by filibuster is most dramatic and 
important in the context of the Supreme Court. The Supreme Court 
nominations that most divided the Senate since the Haynsworth and 
Carswell defeats were those of William Rehnquist--in 1972 to the Court, 
and in 1986 to be Chief Justice--and Clarence Thomas in 1991.
  Rehnquist's nomination to be Associate Justice provoked considerable 
controversy and division within the Senate, but he nonetheless received 
a full Senate vote after but a few days' debate. The same was true in 
1986, when he was nominated to become Chief Justice.
  During Clarence Thomas's hard-fought nomination battle of 1991, 
outside activist groups urged Justice Thomas's Senate opponents to 
filibuster his nomination, but Senate Democrats, such as then-Judiciary 
Chairman Joseph Biden, and leading Thomas opponent Senator Howard 
Metzenbaum, balked. Former Judiciary Committee Chairman Patrick Leahy 
publicly declared himself ``totally opposed to a filibuster,'' adding, 
``We should vote for or against [Thomas].'' I commend my colleague for 
that. He was right then, and he would be right today to do the same. No 
filibuster was attempted, and Justice Thomas was confirmed 52 to 48.
  As is well known, President Clinton's nominations of both Ruth Bader 
Ginsburg and Stephen Breyer sailed through the Senate with minimal 
debate and no filibusters. Justice Ginsburg was confirmed 96 to 3, and 
Justice Breyer was confirmed 87 to 9.

  Now I want to make the point that lower court nominees have never 
been blocked by filibusters.
  Given the Senate's general unwillingness to filibuster nominees--even 
Supreme Court nominees--it is surprising that the Senate has never 
blocked by filibuster a nominee to any lower court. Furthermore, the 
Senate has never blocked--by a partisan filibuster--any judicial 
nominee, including Justice Fortas. The only successful rejection by 
filibuster was the aforementioned case of Justice Fortas, which was 
clearly bipartisan. Thus, there is no historical example of a 
filibuster conducted solely by one party that denied the President his 
judicial nominee--until now. This is the first time in the history of 
this country. It is amazing to me that my colleagues on the other side 
are so blatant about it.
  Now, there have been recent, what some people have called, quasi-
filibusters of President Bush's judicial nominees.
  During the Democratic control of the Senate during 2001 to 2002, only 
17 Bush circuit court nominees reached the floor for votes. In three of 
the cases where they did--the nominations of Julia Smith Gibbons, 
Richard B. Clifton, and Lavenski R. Smith--cloture motions were filed, 
and the motions easily carried. However, none of those cloture votes 
was responding to a genuine effort to filibuster a nominee. Rather, 
cloture motions were filed as a Senate time-management device--
certainly in the Clifton and Gibbons matters--or in response to a small 
number of Senators who wished to force the cloture vote to draw 
attention to another issue unrelated to the nominee--such as in the 
case of nominee Smith.
  Now, despite a Republican majority during 6 years of President 
Clinton's term, no judicial nominee was ever deprived of a vote on the 
Senate floor because of a floor filibuster of the nomination.
  Many Senators may recall the controversy over President Clinton's 
nominations of Marsha Berzon and Richard Paez to the U.S. Court of 
Appeals for the Ninth Circuit. Although most Republican Senators 
opposed their confirmations, the majority of Republican Senators also 
opposed any effort to prevent the full Senate from voting on their 
nominations. Debate on each nomination lasted only 1 day. These were 
very liberal, some thought activist, nominees, and yet the debate 
lasted 1 day. We are now on our 11th, I think--10th or 11th--day on 
this debate.
  So debate on each nomination lasted only 1 day, and a majority of 
Republicans joined all Democrats in supporting cloture motions for 
debate on each nomination, including over 20 Republicans who would 
eventually vote against confirmation and a majority of the Republican 
members of the Judiciary Committee.
  In neither case did Republicans mount a party-line filibuster effort 
to prevent voting on any nominee. Indeed, Majority Leader Lott filed 
the cloture motions for the above debates.
  The situation was similar in 1994, when some Republicans voiced 
objections to President Clinton's nomination of H. Lee Sarokin to the 
U.S. Court of Appeals for the Third Circuit. A majority of Republicans 
supported a cloture motion after a relatively brief period of debate, 
and cloture was invoked by a vote of 85 to 12. It was clear it was a 
time-management device. It was not a filibuster. Judge Sarokin was then 
confirmed by a vote of only 63 to 35.
  The only judge nominated by President Clinton who faced a partisan 
filibuster was Brian Theadore Stewart, a nominee to the Federal 
District Court in Utah. However, it was the Senate Democrats--not 
Republicans--who filibustered this Clinton nominee in protest over 
purported delays in bringing other judicial nominees to the floor. A 
cloture motion was voted upon on September 21, 1999, and it failed--by 
falling short of 60 votes--by a vote of 55 to 44,

[[Page S2728]]

with all Democrats except Senator Moynihan opposing cloture. But once 
again, the Democrats' objection was not to Judge Stewart himself, who 
has since proven to be an excellent judge on the bench, and on October 
5, 1999, the Senate confirmed him by a vote of 93 to 5. So it clearly 
was not a serious filibuster, even though the Democrats used that for 
various reasons, none of which related to Judge Stewart.
  For all the hand wringing about the ``treatment'' of President 
Clinton's nominees, one thing is clear: Every nomination taken up for 
debate on the floor received an up-or-down vote.
  Even when Democrats attempted to filibuster Republican Presidents' 
judicial nominees, those efforts were still unsuccessful, as a 
substantial majority of Senators resisted using the partisan filibuster 
as a means to block judicial nominations.
  When President Bush nominated Edward Carnes to be a judge on the U.S. 
Court of Appeals for the Eleventh Circuit, in 1992, many Democrats 
opposed the nomination on the merits, in particular because of his past 
prosecution of death penalty cases.
  Aware of this opposition, the Senate agreed by unanimous consent to 2 
days of debate, with a cloture vote to follow. The debate proceeded, 
and the cloture motion carried by a vote of 66 to 30, with 24 Democrats 
joining 42 Republicans to close the debate. The Senate proceeded 
immediately to confirm Judge Carnes by a vote of 62 to 36.
  I hope my friends on the other side will realize that they have 
raised a big fuss here. They certainly got their points across--
whatever those points are--whether valid or invalid. It is time to vote 
on the nomination.
  A similarly close cloture vote occurred in March 1986 when the Senate 
considered President Reagan's nomination of Sidney Fitzwater to be a 
Federal district court judge in Texas. Many Democrats opposed Judge 
Fitzwater on the merits and after a few days' debate, Majority Leader 
Dole filed a cloture motion which, by unanimous consent, was to be 
voted on the next day the Senate was in session. That cloture motion 
prevailed, 64-33, with the support of 12 Democrats. The Senate 
proceeded immediately to confirm Judge Fitzwater by a vote of 52-42.
  The only other judicial nominee of President Reagan's to face a 
cloture vote was J. Harvie Wilkinson to the U.S. Court of Appeals for 
the Fourth Circuit. Many Democrats opposed the nominee and filibustered 
the nomination. An initial cloture motion failed on July 31, 1984, 57-
39, because some Senators argued that additional information had arisen 
since Judge Wilkinson's original Judiciary Committee hearings and that 
further investigation was necessary. Judge Wilkinson returned to the 
Judiciary Committee on August 7, his nomination was returned to the 
floor of the Senate, and a second cloture motion prevailed on August 9 
by a vote of 65-32. The Senate then proceeded immediately to confirm 
Judge Wilkinson by a vote of 58-39.
  It is apparent that Democrats historically have been more willing 
than Republicans to vote against cloture motions and to attempt to 
prevent votes on Republican judicial nominees. In other words, they 
have been more than willing on occasion to filibuster Republican 
nominees. Apparently not in true filibusters, however. However, it is 
important to note that even in the cases above, many Democrats found 
the filibuster process inappropriate in the judicial nominee context 
and insisted upon full Senate votes.
  Senators, Led by Republican Gordon Humphrey and Democrat Robert 
Morgan of North Carolina, Filibustered the nomination of Justice 
Stephen Breyer to be a judge on the U.S. Court of Appeals for the First 
Circuit in late 1980. Their objection was not to Mr. Breyer's 
qualifications--indeed, this is the same Stephen Breyer currently 
serving as a Supreme Court Justice--but to the process by which he was 
nominated and reported to the full Senate. The Senators argued that the 
Judiciary Committee had improperly reported out Mr. Breyer's nomination 
without proper committee approval and without regard to many other 
earlier-nominated persons waiting for hearings. After forcing the 
Judiciary Committee to reconvene and approve the nominee through proper 
procedures, the Senate invoked cloture, 68-28, and confirmed Mr. 
Breyer, 80-10.
  So it clearly was not a filibuster, a real filibuster.
  This history demonstrates that while some nominees have been 
filibustered and cloture petitions filed in those and other situations, 
the only nominee ever to have been defeated or withdrawn after a 
filibuster was Abe Fortas in 1968. Even key Democrats who opposed 
Republican nominees voted for cloture. So, if a partisan filibuster of 
Miguel Estrada resulted in his nomination being defeated, it would be 
  A partisan attempt to block Mr. Estrada's nomination by filibuster 
would contradict the repeated and emphatic statements of Democrats who 
have served for a long time in positions of special responsibility in 
these matters. I am calling on those Democrats to continue to be 
responsible, not irresponsible. To vote against cloture in this case I 
think would be irresponsible because they know how serious this is. 
Consider the past comments by Senators regarding judicial and executive 
  Senator Leahy, past Judiciary Chairman and current Ranking Member 

       If we want to vote against somebody, vote against them. I 
     respect that. State your reasons. I respect that. But don't 
     hold up a qualified judicial nominee. . . . I have stated 
     over and over again on this floor that I would . . . object 
     and fight against any filibuster on a judge, whether it is 
     somebody I opposed or supported; that I felt the Senate 
     should do its duty.

  That was on June 18, 1998, right in the Congressional Record.
  The distinguished Senator from Vermont again:

       I have said on the floor, although we are different 
     parties, I have agreed with Gov. George Bush, who has said 
     that in the Senate a nominee ought to get a [floor] vote, up 
     or down, within 60 days.

  That was on October 11, 2000.
  The distinguished minority leader, Senator Daschle, had this to say:

       As Chief Justice Rehnquist has recognized: ``The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry it should vote him 
     up or vote him down.'' An up-or-down vote, that is all we ask 
     for [Clinton judicial nominees] Berzon and Paez.

  That was on October 5, 1999.
  The distinguished Senator from Delaware, a past Judiciary Committee 
Chairman said:

       But I also respectfully suggest that everyone who is 
     nominated ought to have a shot, to have a hearing and to have 
     a shot, to have a hearing and to have a shot to be heard on 
     the floor and have a vote on the floor. . . . It is totally 
     appropriate for Republicans to reject every single nominee if 
     they want to. That is within their right. But it is not, I 
     will respectfully request, Madam president, appropriate not 
     to have hearings on them, not to bring them to the floor and 
     not to allow a vote. . . .

  That was on March 19, 1997.
  The distinguished Senator from Massachusetts, also a past Judiciary 
Committee Chairman:

       The Chief Justice of the United States Supreme Court said: 
     ``The Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry 
     it should vote him up or vote him down.'' Which is exactly 
     what I would like.

  That was on March 7, 2000.
  Again, Senator Kennedy, the distinguished Senator from Massachusetts 
said on February 3, 1998:

       We owe it to Americans across the country to give these 
     nominees a vote. If our Republican colleagues don't like 
     them, vote against them. But give them a vote.

  That is exactly what I would like.
  The Senator from California, Ms. Feinstein, a distinguished member of 
our Judiciary Committee on September 16, 1999, said:

       A nominee is entitled to a vote. Vote them up; vote them 

  There are others but I will leave it at that. Absent from any of the 
current debate over Miguel Estrada is any explanation as to why he 
should be denied the floor vote that every one of President Clinton's 
judicial nominees who reached the floor received.
  The rejection of Abe Fortas to serve as chief Justice of the United 
States marked the first and only time the Senate has rejected a 
President's judicial nominee by way of a filibuster. Yet, Miguel 
Estrada presents none of the concerns that caused a bipartisan 
coalition of Senators to block Justice Fortas's elevation to Chief 
Justice. Mr. Estrada is an outstanding nominee, fully qualified for 
this judgeship, who

[[Page S2729]]

has committed to enforce the Constitution as interpreted by the Supreme 
Court, not to interpose his personal political views into his 
jurisprudence. The American Bar Association unanimously gave him its 
highest rating of ``well-qualified''; and Democrats such as President 
Clinton's Solicitor General, Seth Waxman, and Vice President Gore's 
attorney, Ron Klain, have praised his intellect, judgment, and 
  But the stakes here are much greater than the fate of a single 
judicial nominee. At issue is whether the Senate should reinterpret its 
constitutional advise and consent obligation to require 60 rather than 
51 votes to confirm a judicial nominee. This is a position that the 
Senate has never taken in the context of lower court nominees, and 
Republicans especially have eschewed. To adopt this new standard would 
fundamentally alter the balance of power between the Executive and the 
Senate in the judicial confirmation process and would seriously erode 
the comity that generally has existed between the two branches in the 
  For the life of me, I don't understand why my colleagues on the other 
side are delaying this explosive issue like they are. They are just 
asking for it. I think our side is far more capable of conducting 
filibusters than they are. I think the past proves it. And we have won 
on them. I think they are totally capable of conducting this filibuster 
if they ignore all the precedents, if they ignore all the history, if 
they ignore the Constitution, and the unconstitutionality of what they 
are doing, they ignore the future and what is going to happen when 
Democrat nominees become President. I think they are making a 
tremendous mistake to even go this far. I call upon my colleagues, at 
least I call upon the reasonable people on the other side, I call upon 
the people who have good faith in the Senate, who believe in the 
process, who really want to have a fair deal in judicial nominations, 
who really don't want to have this whole system break down, although it 
has been called broken by no less than a former Solicitor General, 
Walter Dellinger, one of the four who basically have said Miguel 
Estrada is a good man, and who basically has said these documents 
should never be given to the legislative branch because they are 
privileged executive documents--Democrats said that. I think it is very 
important my colleagues, the ones who are clear thinkers on the other 
side, the ones who really believe in this institution, the ones who 
really believe in the judicial nominations process, the ones who really 
can see the future and not just the instant, that they stop this 
filibuster and give an up-or-down vote, voting whichever way they want, 
on Miguel Estrada.
  Mr. President, I ask unanimous consent that the distinguished Senator 
from North Dakota, Mr. Dorgan, be permitted to speak, and then 
immediately following Senator Dorgan, Senator Specter from Pennsylvania 
be recognized to speak.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). Is there 
  Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I hope I perhaps am one of those clear 
thinkers and ``reasonable'' people the Senator from Utah was referring 
to. I suspect there are a good many in this Chamber who are self-
proclaimed clear thinkers and reasonable people.
  I am not out here as a member of the Judiciary Committee. I do not 
spend a lot of time on judicial issues, on a point of nomination. And 
on judicial nominations, I want to work with President Bush.
  We have had two Republican nominees for judges in the east and west 
districts of North Dakota in the last year and a half. I have been 
pleased to work with President Bush on their nominations. We now have 
investiture of a Republican judge in the western district of North 
Dakota, someone I supported--a Republican but someone I strongly 
supported. He will be a fine Federal judge. I know I am going to be 
proud of him.
  There is a nominee before the Judiciary Committee for the east 
district in Fargo. I likewise have strong support for that nominee of 
President Bush. I think he will be a fine Federal judge. He is a 
Republican. But the fact is he will, I think, make us proud of the 
Federal bench. I am very pleased to say that the President chose well. 
He consulted with us. And I was very supportive of the two judges who 
will now assume the bench in the Federal districts of North Dakota.
  So I am not someone who comes to this saying I am a Democrat with 
respect to this process and the process should be political. That is 
not the way I come to this.
  But I do believe this Congress has a responsibility to advise and 
consent, and it is not a responsibility to have a huge rubberstamp, 
where the President sends us a nomination and we say, yes, sir; yes, 
sir, count us in. That is not the responsibility of advise and consent.
  The constitutional responsibility for Congress is equal to the 
President's. He proposes and we make a judgment on his proposal. He 
sends us a nomination. We make a judgment.
  Now this is not some ordinary decision on the floor of the Senate. 
This is a lifetime appointment. When we decide to confirm a nominee 
sent to us by the White House, this is not for 2 years or 5 years or 15 
years or 25 years; it is for a lifetime. And we ought to take that 
seriously. I know most Members of the Senate do. So if we are going to 
be passing judgment on a nominee who is going to be there for a 
lifetime, let's know a little about the nominee.
  I was proud to support Dan Hovland, who is now the confirmed Federal 
judge in the west district of North Dakota. President Bush nominated 
him, and I was proud to support him. But unlike Miguel Estrada, Mr. 
Hovland cooperated with the Judiciary Committee. He was asked during 
his confirmation process, ``Can you list three Supreme Court cases that 
you disagree with?'' And unlike Mr. Estrada, Mr. Hovland had no 
difficulty answering that simple question.
  Why would one ask a nominee that question? To get a sense of how they 
think and reason. Mr. Hovland didn't object to that. Judge Hovland 
readily identified a couple of recent cases--Thompson v. Western States 
Medical Center, Behrens v. Peltier. He cited a case that most would 
cite, Korematsu v. the United States, the case in which the Supreme 
Court affirmed the conviction of a person of Japanese ancestry for the 
violation of a curfew order solely because of the individual's 
ancestry. So Mr. Hovelnd was asked a simple question and was happy to 
give us a glimpse of how he was thinking about things, and how he 
viewed some of these decisions. He didn't object to answering that 
question. He was asked a simple question, and he gave a straightforward 
answer that was helpful to my colleagues and me.
  Other nominees have been asked the same kinds of questions. Mr. 
Estrada, however, has not been willing to answer those questions. He 
apparently thinks there is some inherent right to be confirmed by the 
  There is no inherent right for a confirmation. We have a 
responsibility to understand who these nominees are and then to pass 
judgment on them as to whether or not we think they deserve a lifetime 
appointment to the bench. As I have indicated, on at least two Federal 
judgeships in North Dakota, I was proud to support Republicans. I think 
President Bush chose well.
  I don't have the information about Mr. Estrada with which to make 
that judgment. Some say, well, look, you don't need the information, 
you don't deserve the information, and we don't want you to get the 
information. So belly up here and vote. If you don't like it, it 
doesn't matter, just vote.
  Really, how would you vote if you don't have basic information? We 
have sent Mr. Estrada a letter saying you have not answered basic 
questions; you have not allowed to have released the basic information. 
Provide all of that and let's have a vote.
  I am for that. For me, this isn't about a filibuster. It is about 
saying we ought to have nominees provide the basic information to 
Members of the Senate before there is a vote. Mr. Estrada has not done 
that. It is simple. He hasn't done that. Perhaps when he does it, he 
will get a big vote in the Senate. I don't know. But I think it is a 
terrible precedent for the Senate to allow a nominee to say, I am not 
going to answer your questions; I will show up and give you my name and 
tell you

[[Page S2730]]

where I went to school, but I don't intend to talk about much else at 
  Mr. Estrada has never been a judge. We don't have judicial record to 
examine. We don't have any information about that. That is the reason 
we have asked him the same kinds of questions we have asked others. The 
difference is he has not responded. I don't understand that.
  Let me also say something else. I have listened to my colleague from 
Utah, and he is one of the more capable Members of the Senate. He 
talked about delay and how terrible it was to delay this, that, and the 
other thing. Let me tell you something. We understand what it feels 
like to be faced with delay on judicial nominations. We have been on 
the receiving end of it for a long time. Notwithstanding that fact, I 
don't believe we ought to delay anybody just for the sake of delay. I 
think we get the information and we move forward. If we don't get the 
information requested of a nominee, there is no inherent right for a 
nominee to go to a vote, to receive a lifetime appointment.
  We know a little about facing delay. I find it interesting that those 
who were the architects of delay for so long now come to the floor--
many of them--and say it is terrible what has happened here.

  I will give you examples of what has happened. James Beatty was 
nominated by President Clinton to the Fourth Circuit, rated well 
qualified by the ABA. He had no hearing and no vote. Do you know how 
long his nomination languished up here? Three years. Do you suppose he 
knows a little something about delay?
  Robert Cindrich, nominated to the Third Circuit, found well qualified 
by the ABA; he didn't get a hearing and certainly no vote. Not a 
hearing and not a vote. He would know something about delay, I guess.
  H. Alston Johnson, nominated to the Fifth Circuit by the previous 
administration, was rated well qualified by the ABA. He never got a 
hearing or a vote. His nomination was up here 696 days. He never got a 
hearing, never got a vote.
  The question is, Why? It was the previous administration that sent 
them up, and those who controlled the Judiciary Committee at that point 
didn't want to provide a hearing or a vote. I suppose that is a 
filibuster in its effect, isn't it?
  James Duffy, a Ninth Circuit Court nominee, was up here for 640 days. 
Well qualified by the ABA, no hearing, no vote.
  The list is fairly lengthy. I shall not go through it all. Kathleen 
Lewis, nominated by the Sixth Circuit, found well qualified by the ABA; 
no hearing, no vote.
  These are just a few nominations that came from the President, the 
previous administration. Those on the other side who want to push Mr. 
Estrada through without our getting the information we have asked of 
him, those are the same Senators who blocked all of these other 
nominees. They didn't get to the floor or get a hearing, let alone a 
vote in the committee. Not even a hearing, for gosh sakes. So we 
understand a little about facing delay.
  Some of these delays, as you know, stretched to 4 full years, with 
not even a hearing. I find it interesting that people here who talk 
about delay are those who took nominations from the previous 
administration and said: They are irrelevant as far as we are 
concerned. We don't even intend to hold a hearing.
  Well, Mr. Estrada got a hearing. I think Mr. Estrada would get a vote 
on the floor of the Senate, as soon as he provided the information he 
has been requested to provide. The ranking member of the Judiciary 
Committee and the minority leader have sent a letter and said here is 
what he has not provided. It is a lifetime appointment. Provide the 
information and let us move forward. I think that is what we ought to 
  I am not part of a filibuster. I have only spoken one time previously 
on the floor about Mr. Estrada. It is not a filibuster, as far as I am 
  I just don't think the Senate ought to vote on a nominee for a 
lifetime appointment to the Federal bench--whether it is a circuit 
court or any court--if the nominee says: I am sorry, I don't intend to 
answer your questions.
  Here is a question posed to Miguel Estrada: What are several Supreme 
Court rulings over a good many years with which you disagree, and why?
  Is that a reasonable thing to ask somebody who aspires to serve on 
the Federal bench? I think so, and most other nominees have answered 
that question. The nominee I was proud to support for the western 
district judgeship in North Dakota didn't object to that. I thought he 
answered that question easily and with good judgment, which gave me 
some comfort about that nominee.
  Mr. Estrada won't answer that question. I just don't think there is 
an inherent right--certainly there is no inherent requirement in the 
Constitution--that we move forward and cast a vote on a nominee that 
has not yet provided the information that has been requested of him.
  This nomination should not yet be on the floor of the Senate. It 
ought to be in the Judiciary Committee, and the nominee ought to not 
have his name brought to the floor until he has satisfied the members 
of the Judiciary Committee with respect to the information they are 
requesting. The information they are requesting is not unusual, not 
extraordinary. It is information that has been requested of others and 
provided by others. And with respect to this lifetime appointment, my 
feeling is the country will be best served if we decide as a Senate not 
to treat lifetime appointments to the Federal bench in a trifling way.
  It is a trifling way if we say to people, by the way, if your 
nomination comes before this Senate, you can just get by with saying: I 
don't intend to answer your questions. I don't have answers to your 
questions. We don't need to have that dialogue. You have a 
responsibility to vote because the President sent the nomination down 
to the Senate.
  Well, as I have described, those who ran the Judiciary Committee 
during the last administration felt no such obligation. They created a 
special ``jail'' for nominees, and nominations went into that jail and 
the door was locked forever. A good many of them were very well-
qualified men and women, and they didn't even get a hearing, let alone 
a vote. So I don't think we ought to be lectured by anybody about 
delays and about tactics that somehow injure a nominee.
  Plenty of nominees have been derailed unjustifiably, in my judgment. 
It is not my intention in any way to derail the nomination of Mr. 
Estrada. It is my intention as one Member of the Senate to insist--yes, 
to demand--that a nominee who expects a Senate to consider his or her 
nomination provide the information requested by the Senate.
  The minute this nominee complies with the request of the ranking 
member of the Judiciary Committee, the former chairman of the 
committee, for information that was requested on behalf of the members 
of the minority on the committee and on behalf of dozens of Members in 
the Senate, I think that nomination should be on the floor of the 
Senate, and we should have a vote. Until then, I do not think we ought 
  I have voted now for, I believe, well over 100 Federal judges 
submitted to this Senate by President Bush. I believe I have voted 
against only one. With respect to the two Republicans nominated in 
North Dakota, I have been a strong supporter. I have spoken in the 
committee and on the floor in support of their nominations.
  I do not think anyone can take a look at me and say I am trying to 
obstruct anything. I am not. I think I am pretty clear-headed on these 
matters. But I do not feel an obligation to vote on anybody until we 
get the information requested of them, especially for a lifetime 
appointment. That is clear-headed. That is common sense. And the Senate 
will rue the day it decides it is all right for nominees to come to the 
Senate and simply say: I am going to stonewall; I do not provide 
information; I do not answer questions. That will not, and should not, 
be the rule of the day with respect to considering lifetime 


  Mr. President, one of the problems with having the Estrada nomination 
on the floor for a great length of time is that there are so many other 
matters we ought to be working on.

[[Page S2731]]

  President Bush, in his State of the Union speech and his subsequent 
appearance a week later in Washington, DC, talked about the need to 
move to a hydrogen economy and fuel cells as a way of extending 
America's energy independence, making us less dependent on foreign 
energy. I support this idea, and I would much rather we all discuss 
that issue on the floor of the Senate, rather than being at parade rest 
on the Estrada nomination.
  We import over one-half of the oil that we use--20 million barrels a 
day. Here are our top sources of imported oil: No. 1 is Saudi Arabia; 
Venezuela is No. 4; Iraq is No. 6. These and other of our top suppliers 
are beset by turmoil.
  The fact is, it makes no sense for our economy to be this dependent 
on foreign sources of energy, and yet we will always be that dependent 
unless we do something about transportation. Let me describe why, using 
this chart.
  In this country today, the transportation sector is the sector for 
the great majority of our imported oil. And as one can see, the total 
demand for oil is increasing. This line is moving steadily upward. As 
one can see, the transportation demand is what is driving it; that is, 
putting gasoline through our carburetors. And we have done that for a 
century. Nothing has changed. With the Model T Ford, they pulled up to 
a pump and pumped gas. With a 2003 Ford, you pull up to a pump and pump 
gas. Nothing has changed in almost a century.
  If we do not do something about this demand, this line will continue 
to go up. We will dramatically increase our dependence on foreign oil, 
and our economy will be held hostage to things we cannot control.

  As you can see from this press release that the White House issued, 
we import 55 percent of our oil, and that is expected to grow to 68 
percent by 2025. Nearly all of our cars and trucks run on gasoline. 
Two-thirds of the 20 million barrels of oil we use each day is used for 
transportation, and one-third of it comes from a troubled part of the 
world. Does this make any sense to anybody?
  What the President said--and I fully agree--is we ought to move to a 
hydrogen economy and fuel cells. He proposed a $1.2 billion program, 
though only $700 million of that is new money. I think that is too 
timid, not bold enough, but it is definitely a step in the right 
  What is that right path? The right path, it seems to me, is to see if 
we can find a way to power America's transportation fleet in a 
different manner.
  There is a new book written by Jeremy Rifkin called ``The Hydrogen 
Economy,'' that discusses the possibility of using hydrogen as a fuel, 
to radically transform our economy. The fact is, hydrogen is 
ubiquitous. Hydrogen is everywhere. It is in water. Electrolysis can 
separate hydrogen and oxygen from water, and you can use that hydrogen 
in a fuel cell to power an electric engine, an electric motor, power a 
  When we use hydrogen fuel cells to power a vehicle, we put only water 
vapor out the tailpipe. What a wonderful thing.
  Now the hydrogen has to be obtained using other energy sources, but 
we can use every source available to us. We can use fossil fuels, coal, 
natural gas, but also renewable sources, like wind and solar. By using 
hydrogen as a fuel, we make the most efficient use of every 
domestically available fuel source, and what comes out of the tailpipe 
of a fuel cell vehicle is water vapor. Boy, that makes a lot of sense. 
The quicker we get to that point, the better.
  That does not mean abandoning oil, natural gas, and coal for some 
long while. But if digging and drilling is our only strategy with 
respect to our future energy supply, then our energy program is 
something I call yesterday forever, and it is not an energy program 
that makes this country secure, that does what we need to do to be 
reasonably independent with respect to energy sources.
  When President Bush moves us in this direction, I say absolutely: I 
am with you; let's do this. I say let's be bolder than he suggests. 
Let's be less timid. Let's develop an Apollo-type project, a real 
project, a big project. With the Apollo project, we said we were going 
to put a man on the Moon at the end of a decade. Let's do an Apollo-
type project where we agree that in the next 5, 10, 15 years we are 
going to convert America's vehicle fleet to hydrogen economy and fuel 
cells. We can do that. We cannot do that if we are timid, but we can 
set goals, and commit the necessary resources.
  The goal we ought to set for this country is to have a period, 
whether it is 10, 15, or 20 years out, in which we have a large number 
of vehicles that are hydrogen vehicles and fuel cell vehicles.
  I am going to introduce a piece of legislation that is a robust 
Apollo-type project, with $6.5 billion invested over 10 years, and with 
specific goals. I would like 2.5 million vehicles on the roads by the 
year 2020 that use fuel cells and hydrogen.
  Last year when we wrote the energy bill in the Senate, we passed a 
provision that I authored, which said that we should have 2.5 million 
fuel-cell vehicles on the road in this country by the year 2020.
  The fact is we already have some cars running on fuel cells. We had a 
demonstration car go from Los Angeles to New York. I have driven 
demonstration fuel-cell cars.
  Mr. SCHUMER. Mr. President, will my colleague yield for a unanimous 
consent request?
  Mr. DORGAN. Certainly, I will yield for a question.
  Mr. SCHUMER. I understand, Mr. President, that there has already been 
a request that Senator Specter immediately follow Senator Dorgan. I 
haven't had a chance to speak in the last few days. I ask unanimous 
consent that I be allowed to follow Senator Specter when he finishes 
his remarks.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SCHUMER. I thank the Chair.
  I thank my colleague. I think what he is doing on these fuel-cell 
cars is great and the way to the future. I commend him for his bill.
  Mr. DORGAN. Mr. President, I began talking about the Estrada 
nomination, about how we wish we could resolve that, and turn to other 
important issues.
  I think this issue of fuel-cell vehicles and a hydrogen economy is 
something we will deal with in an energy bill. I visited with Senator 
Domenici, who is now chairman of the Energy Committee, and my colleague 
Senator Bingaman as well, the ranking member, about this issue.
  Now, I want to show my colleagues that this fuel cell technology is 
not pie in the sky. Here is a fuel-cell vehicle--a Ford Focus 
production-ready prototype introduced in the autumn of 2002. And this 
is a fuel-cell vehicle at the hydrogen fueling station. PowerTech 
Laboratories created this infrastructure for fueling, which, of course, 
you have to have if you are going to have these kinds of vehicles.
  This next chart shows a Nissan X-Terra fueled by compressed hydrogen 
and tested on public roads in California in the year 2001.
  Finally, this is the General Motors Hy-Wire Fuel Concept Car unveiled 
in August 2002.
  The fact is we can do this and should do this as a country, but it 
won't happen unless we make it happen. That is the point of my 
  The Director of Environmental Affairs at Daimler Chrysler has said 
that political support is vital for the car industry to make inroads in 
fuel cell technology. They can do a lot themselves, but at a certain 
point they need legislative and financial support to stimulate this 
important sector. For that, they need the Government. The European 
Union has already earmarked 2 billion euros for research over the next 
5 years. The central focus will be hydrogen fuel cells.
  This is a big idea. This is something our country needs to do. It is 
the equivalent of going to the Moon by the end of the decade, as John 
F. Kennedy proposed.
  President Bush is right to propose an initiative in this area. I was 
pleased to support him. I was working with him a year ago. We had in 
the energy bill goals that I had set. I am convinced we will make much 
more progress this year.
  At a recent hearing, I asked officials from the Department of Energy 
what kind of vision we have for the year 2025 or 2050 about the type of 
fuel we are

[[Page S2732]]

going to use in American vehicles. The answer was they didn't have a 
guess. I said: That is interesting. We project out 25 to 50 years and 
talk about what kind of financial circumstances will exist for Social 
Security or Medicare. But we have no such goals with respect to the 
energy? The answer was: No, we don't really have that kind of planning.
  It is long past time to start that kind of planning. This country 
needs a big idea. The President has proposed an approach that I 
support. It is something I have worked on for the last couple of years. 
I think by working together--Republicans and Democrats--we can embrace 
a big idea and move in a very significant way to improve America's 
energy future to make our country less dependent--less dangerously 
dependent--on foreign sources of energy. That is my goal.
  It is not my goal to turn my back on coal, oil, and natural gas. The 
fact is the leaders in this effort in this hydrogen economy and in the 
move to this hydrogen economy will be many of the utility companies and 
the energy companies of today.
  They are the ones in the forefront--United Technologies, Shell, BP. I 
could go on and name at great length the companies that are involved in 
this right now at the front end. They are going to be the leaders.
  I just think this is the right thing to do. It is important for our 
country to establish goals. If ever we needed to think about the 
fragile nature of this American economy, it is now. With the threat of 
terrorism, with the problems in the Middle East, and with the potential 
war against Iraq, we ought to be thinking: do we want to depend for 
over half of our oil from areas of the world that are troubled areas? 
If not, let us do something about it, and do it now, and let us do it 
  That is why I am introducing my bill, setting forth $6.5 billion over 
a 10-year period, so that we will establish and reach ambitious goals, 
in partnership with the private sector, and with the support, I hope, 
of the President of the United States. I think we can do this, and I 
think if we do it, it will be extraordinarily helpful to this country.

                           The Trade Deficit

  Mr. President, one of the other issues I wanted to come to the floor 
and talk about is the issue of the trade deficit. I think this is a 
vitally important issue, and I wish my colleagues and I were debating 
this at length, rather than continuing to dwell on the Estrada matter.
  On Thursday last, the Commerce Department announced that our trade 
deficit was at a record for the year 2002. Our country's deficit in 
goods last year was $470 billion. That means we sold $470 billion less 
to other countries than we purchased from other countries. What does 
all that mean?
  This chart shows that our trade deficit has exploded since 1991, a 
little over a decade ago--and our merchandise trade deficit is now $470 
billion. When the Washington Post reported that on the day it was 
announced, they finally said, it will put a significant damper on U.S. 
economic growth. Now, the Washington Post is not in the habit of 
sounding the alarm about the trade deficit. You cannot get them to 
print an op-ed on that subject. They have a rosy view of trade, and 
view everyone who raises these questions as some sort of isolationist 
xenophobes. But here is the Washington Post, in its report last week, 
saying that the record deficit will put a significant damper on 
economic growth. They noted that a combination of increasing imports 
and falling exports clipped a half of a percentage point off the 
increase in GDP last year.

  The Post further reported that nearly one-fourth of the year's trade 
deficit was with China, which sold $103 billion more in goods to the 
United States than we were able to sell there. I will speak about China 
in a couple of moments, but China is by no means the only country with 
which we have a trade deficit.
  This chart shows we have a trade deficit with nearly every country 
with whom we do business. One notable exception is Australia, but I 
think that is going to get remedied because our trade negotiators are 
now negotiating a free trade agreement with Australia, and our trade 
negotiators are able to lose almost immediately when they negotiate 
trade agreements.
  Will Rogers once said the United States of America has never lost a 
war and has never won a conference. He surely must have been talking 
about our trade negotiators.
  So every time we have a new trade agreement, it ends up hurting us 
and helping those with whom we reach the agreement. I guess we are 
fixing to do an agreement with Australia so perhaps our positive trade 
balance with Australia will be gone soon.
  This chart, sourced from the Department of Commerce, shows that with 
virtually every major trading partner we have a very large trade 
deficit. Our deficit with Canada now is $50 billion; deficits with 
Mexico, $37 billion. Before our negotiators went to negotiate with 
Canada and Mexico and created this trade agreement, which I thought was 
a terrible agreement and sold out certain American interests in 
exchange for other benefits, we had a reasonably modest trade deficit 
with Canada and a small trade surplus with Mexico. We have managed to 
turn that into a huge deficit with Canada and a very large deficit with 
  We have deficits with every major Asian country except Singapore. We 
have deficits with the major economies of Latin America.
  Not only do we have deficits with virtually all of our major trading 
partners, we also have deficits in about every major sector of goods 
trade. A $110 billion deficit in vehicle trade--vehicles, mind you--a 
$47 billion deficit in consumer electronics; a $58 billion deficit in 
clothing, for example.
  Some might say agriculture is a bright spot, isn't it, because we are 
a net exporter of agricultural goods? But even our modest surplus on 
agricultural products has now been reduced by 30 percent, just over the 
last year, from $14.2 billion to $10.9 billion in 2002. Our surplus in 
meats declined by $1 billion. Our deficit in livestock trade reached 
$1.5 billion. Our deficit in vegetables and fruits reached $2.5 
  I mentioned trade with China. We have a deficit with China of $103 
  One innocent sounding sector in which we have a trade deficit with 
China is toys. We have a trade deficit of $14 billion with China in the 
area of toys. Now, let me describe a news report that I read last year, 
about conditions in a Chinese toy factory.
  The story is entitled ``Worked Till They Drop. Few Protections For 
China's New Laborers.''

       On the night she died, Li Chunmei must have been exhausted. 
     Co-workers said she had been on her feet for nearly 16 hours, 
     running back and forth inside the toy factory, carrying toy 
     parts from machine to machine.

  This was the busy season before Christmas.

       The factory food was so bad, she said, she felt as if she 
     had not eaten at all. Long hours were mandatory, and at least 
     2 months had passed since Li and other workers had enjoyed 
     even a Sunday off. ``I want to quit,'' one of her roommates 
     remembered her saying. ``I want to go home.'' Her roommates 
     had fallen asleep when Li started coughing up blood. They 
     found her in the bathroom a few hours later, curled up on the 
     floor, moaning softly in the dark, bleeding from her nose and 

  She died before she could arrive at a hospital. The exact cause of 
her death remains unknown, they say.
  What happened to her last November is described by family and friends 
and coworkers as an example of what China's more daring newspapers have 
actually given a name. They call it ``guolaosi.'' The phrase means 
``overwork death.'' They actually have a name for it in China. It 
usually applies to young workers who suddenly collapse and die after 
working exceedingly long hours day after day.
  Think of it. Think of working 16-hour days with no day off, 
inadequate food, in unsafe factories, working children to death in a 
country where they do it often enough so there is actually a name for 
  Is this the sort of playing field that our manufacturers should be 
competing in? With children working long hours, for months on end, for 
virtually no money?
  There is another reason, of course, for our trade deficit with China, 
and that is our markets are open to virtually all of their products, 
and their markets are not open to ours. The Washington Times ran an 
article documenting many of the trade barriers that China puts up to 
our products, particularly the agricultural products. It quotes the 
American Farm Bureau, which says the Chinese market is no

[[Page S2733]]

more open today than it was when China entered the WTO.
  At the end of the WTO negotiations, China was a $2 billion market. We 
expected substantial growth, the Farm Bureau says, but we have not seen 
that growth because China has not done what it was supposed to do.
  Trade barriers are as numerous as they are creative. Import 
regulations are nearly impossible to figure out. Health inspection 
standards have changed one month to the next, and it goes on and on.
  The bottom line is our agricultural products are not getting into 
China. China is a country of 1.3 billion people, and they have a $103 
billion trade surplus with us, or we a deficit with them. That story in 
the Washington Times tells us another reason why.
  One does not have to travel as far as China to find closed markets 
for U.S. products. We have a $50 billion trade deficit with Canada. In 
2002, for example, our deficit with Canada was $90 million in durum 
wheat, $160 million in spring wheat. It is pretty easy to calculate 
that. Do you want to know why? Because our exports to Canada in these 
areas in wheat are zero. You cannot get it in. I know that personally 
because I have been on a truck trying to get through the border into 
Canada with 200 bushels of durum wheat, watching all the Canadian durum 
ship south on the trip north, and we were stopped at the border.
  On February 15 of last year, the USTR found that Canada was guilty of 
unfair trade, but they said: We will not impose tariff rate quotas. In 
the absence of tariff rate quotas, one recent study says, U.S. wheat 
producers lost $124 million in sales in the last crop year.
  On April 19, I held a hearing in the Commerce subcommittee I then 
chaired and talked to agriculture negotiator Ambassador Allen Johnson 
and said: We need to take action now. I showed him an article in the 
Bismarck Tribune where the Canadian Wheat Board president was gloating 
saying USTR had not imposed tariff rate quotas on Canadian wheat. 
Therefore, they have won. Since the USTR's decision on February 15, 
last year, enough wheat has come in from Canada to fill 50,000 18-wheel 
trucks, and the Canadians have not changed their practices at all.
  Are farmers upset about that? You are darn right they are. They do 
not think anybody stands up for them or speaks out for them, and they 
are sick and tired of it.
  We also have a trade deficit with the European Union of $82 billion. 
One area that is a chronic problem is beef. They will not allow 
American beef into the European Union. They claim that our beef is made 
with dangerous growth hormones, even though there is no evidence that 
such beef is bad for people.
  So they have decided that this is what livestock in America looks 
like: a two-headed cow. Therefore, $100 million in U.S. beef is banned 
from the EU each year.
  Now, we go to the WTO and we get a ruling against the Europeans. What 
does that mean? Nothing. It does not mean a thing. So then our country 
takes action against the Europeans. Do you know what we do to the 
Europeans? We take action against European truffles, goose liver, and 
Roquefort cheese. Now, my God, that is enough to scare the devil out of 
any country. Truffles, goose liver, and Roquefort cheese.
  Let's talk about Korea. The year 2001, the last year for which I have 
figures, Korea sent 618,000 automobiles into our country; we were able 
to get 2,800 cars into Korea. I repeat that because people think that 
cannot be right. Korea shipped us 618,000 automobiles made in Korea and 
we were able to get 2,800 U.S. vehicles into the Korean marketplace. 
Why? Because Korea does not want American vehicles in their 
marketplace. End of story. We have a $13 billion trade deficit with 
Korea. If you do not like to talk automobiles, let's talk about potato 
flakes, the ingredient they use for snack food, and on which they 
impose a 300-percent tariff.
  The list goes on and on. I have not even talked about Japan. We have 
had a deficit with them forever. It has gone on and on and on. We had a 
deficit with them when the dollar was strong, when the dollar was weak, 
when we were growing, when we were in recession, it does not matter.
  All of these countries have decided they will use the American 
marketplace for their benefit and keep American goods out of their 
marketplace for their benefit. The result is the American consumers pay 
the price. Some say it is good for consumers that we have all of this 
trade deficit because this means cheap foreign goods coming in. But our 
consumers are also people who work. And when you lose your job, which 
is the result of a trade deficit that is $470 billion, when you lose 
your job, your time as a consumer is just about over.
  One can make a case, I suppose, that the Federal budget deficit is 
money we owe to ourselves. Some economists make that case. You cannot 
make that case with respect to the trade deficit. That is money we owe 
to others outside of this country and will be repaid, inevitably will 
be repaid, with a lower standard of living someday in this country.
  Just once I want our trade negotiators and want this administration 
and future administrations to stand up for this country's interests. 
No, not to put a wall around this country. But I would like for this 
country to believe that its trade policies are in this country's best 
interests. And they have not been. NAFTA has not been. The United 
States-Canada FTA was not. The WTO is not.
  Just look at the bilateral we did with China--do you know what our 
negotiators did with China 2 years ago? They sat down, always in 
secret, and then the door opened, and they trumpeted this new 
agreement. Do you know what they agreed to with the Chinese? After a 
phase-in period, we will agree that we will have a tariff on Chinese 
automobiles that come to the United States that is only one-tenth of 
the tariff we allow the Chinese to allow on U.S. vehicles that go to 
China. Our negotiators agreed that we would allow the Chinese to have 
ten times larger tariffs against U.S. automobiles going to China.
  I don't know who agreed to that. I would love to get a name. But 
these are amorphous groups of people who go over and meet in secret and 
they lose a trade agreement the minute they sit down with another 
  Harry Truman used to say, I want a one-armed economist because they 
always say on the one hand this, on the other hand that. I want one 
economist who supported all the trade agreements we have had to come 
forward and make a case that this has worked.
  It is not working. It is hurting this country. No country will long 
remain a world power without a strong manufacturing sector. And our 
manufacturing sector is being sucked out of the middle of this country.
  When they talked about NAFTA, with U.S. and Mexican trade, they said 
U.S.-Mexican trade will all be the product of low-skilled labor coming 
from Mexico to the United States. That is what we will get from Mexico. 
Not true. Not true at all. The three largest imports from Mexico, 
including the maquiladora area, are automobiles, automobile parts, and 
electronics, the product of high-skilled labor. You can see what is 
happening in this country as a result of these trade agreements.
  Just once I would like to see somebody stand up for this country's 
producers and its interests. I know a lot of companies that you think 
of as American companies like these trade agreements. And the chambers 
of commerce and others that support them support these agreements. Why? 
Because they are really multinational, international companies. They 
think this is just fine. Take a jet, fly around the world, look down on 
the ground and see where you can produce for 14 cents, hire 14-year-
olds and work them 14 hours a day. Where can you do that? And then ship 
the product back to Toledo, Bismarck, Los Angeles, or Denver? Where can 
you do that? It is about profit, not about strengthening our country. 
It is about international profit.
  I care about this country's long-term economic interests. A $470 
billion trade deficit, especially given the circumstances that exist 
with those with whom we have that deficit--Japan, Europe, Korea, China, 
Canada, Mexico--shame on us for deciding this is acceptable. It is not 
acceptable. In the long term it will hurt every child in this country 
who grows up and experiences a lower standard of living because we

[[Page S2734]]

did not have the guts to decide we would demand fair trade with other 
  Fair trade means if we cannot compete, that is our fault. But fair 
trade insists that the rules be fair. And no American worker and no 
American company ought to have to compete against someone that wants to 
hire 14-year-olds and work them 14 hours a day.
  You say it does not happen? I will give you names. Of course it 
happens. It happens all the time, all over the world. No American 
should have to compete against a company that decided to renounce its 
citizenship, moved its headquarters on paper to Bermuda to avoid paying 
U.S. corporate income tax, and then moved its production to yet a third 
country, somewhere where they can dump chemicals into the water and 
chemicals into the area and run a factory that is unsafe, where they 
hire kids. No American should have to compete against that. It is not 
fair competition, and at some point, in some way, some day, someone 
will say this is not in our interest.
  It is in our interest to encourage expanded trade; that clearly is in 
our interest. On behalf of those who produce in this country and who 
work in production in this country, it is in our interest to demand 
fair trade rules. Globalization has galloped far ahead of the rules of 
trade and no one is willing to admit it or do anything about it. And it 
is injuring this country, inevitably injuring this country.
  The question is, When will we have a real debate about it? You can 
put on a blindfold and listen. You can listen to Democratic Presidents 
and Republican Presidents and you will not hear a bit of difference on 
international trade. For 20 years, we have had the same mindless mantra 
about this trade. And when I finish this speech, some will say that I 
am a protectionist, a xenophobic isolationist protectionist, someone 
who just does not get it.
  Well, I get it. What I get is I have seen the unfairness that is 
undermining American farmers, American manufacturers, American 
businesses, and it ought to stop. The only way it will stop is if we 
have someone, someplace, somewhere who has the guts to stand up and 
stop it.
  We had a vote in this Chamber recently on something called fast 
track. They called it trade promotion authority, which is just a goofy 
way of putting some new clothing on a old, bad deal--fast track. I 
voted against it. I would not give it to President Clinton. I would not 
give it to President George H.W. Bush. I did not think either of them 
should have it.

  President George W. Bush now has fast-track authority. What does that 
mean? That trade agreements are being negotiated in secret somewhere 
around the world, and when they are done negotiating, they will be 
brought back to this Chamber for a straight up-or-down vote. Fast track 
means that no one in this Chamber, under any circumstances, at any 
time, will ever be able to offer an amendment to strike out an 
offending provision, to strike out something we think inherently 
injures this country. Nobody will be able to offer the amendment. Why? 
Because we decided to handcuff ourselves. I have no idea why Members of 
the Senate think we ought to be doing that. And it is exactly what we 
have done.
  So this, unfortunately, is not going to get better. It is going to 
get worse, unless enough of us decide in this country that American 
jobs are important, that yes, globalism is here, but the rules of 
globalism must keep pace, and we must insist and demand fair trade. We 
must demand that other countries open their markets in exchange for an 
admission to the American marketplace. All of these things are 
conditions that are inherent to the well-being and stability of this 
country's future.
  I am obviously frustrated, from time to time, about trade issues 
because no one seems to care. There is a sense that there are only two 
sides: There are the expansionists and the protectionists. That is 
fundamentally wrong. There are people like me who believe in expanded 
trade, but believe, on behalf of the things we fought for for a century 
in this country, that such expanded trade needs to be done with fair 
  We fought for a century, I would say, for people to have the right to 
go into a factory that is safe, to have a safe workplace. We fought for 
a long while about preventing people from dumping chemicals into 
streams and the air. People lost their lives demonstrating on the 
streets for the right to be able to collectively bargain.
  And now we decide that did not matter much, just skip all that, and 
pole-vault over it all and move your plant, in fact, renounce your 
citizenship while you are at it, become a Bermuda paper company so you 
do not even pay your taxes.
  Bermuda has a navy that has 26 people. Maybe the next time a U.S. 
company that decides to become a Bermuda paper company, and they are in 
trouble, and someone wants to expropriate their assets, maybe they 
ought to call on the Bermudan Navy. Maybe that is where they ought to 
get their protection.
  I am going to come back and speak at some greater length on trade. 
This is such an important issue.
  I represent a State that produces agricultural products, for which we 
must find a foreign home for a sizable portion of it. I am not anti-
trade. I very strongly support expanded trade. But I am sick and tired 
of this country being taken advantage of. I am sick and tired of seeing 
wheat farmers being injured by bad agreements and by bad practices that 
you can't stop. And the same is true with the textile workers. And the 
same is true for those who manufacture aircraft. It just goes on and 
on. We have a responsibility to stop it.
  We should be a world leader and say we support globalization and 
world trade, providing the rules are fair. The rules are not fair. We 
ought to say, we, by God, are going to change them. We have to be the 
leader that changes those rules to make sure we have a fair chance at a 
world trade regime that is beneficial not just to those with whom we 
trade, but beneficial to this country as well.
  So I will continue this at a later time. I did tell my colleague that 
I would be finished at about this time. I thank him for his patience.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I have sought recognition to support the 
confirmation of Miguel Estrada to be a judge for the Court of Appeals 
for the District of Columbia Circuit.
  We are seeing a Democratic filibuster, which essentially constitutes 
a revolution on the advice and consent process. It is unprecedented. 
What we are seeing is the culmination of 41 opposition Senators holding 
the judicial confirmation process hostage.
  The advice and consent function has traditionally been structured 
where the President makes the nomination and, unless there is some 
reason to oppose, some objection, some basis for opposition, the 
confirmation follows.
  In this situation there is no reason not to confirm Mr. Estrada. He 
has an extraordinary academic background. Phi Beta Kappa, magna cum 
laude from Columbia; magna cum laude from Harvard Law School. He was on 
the Harvard Law Review. He argued 15 cases before the Supreme Court of 
the United States. He is the member of a distinguished law practice. He 
has had service as an Assistant Solicitor General. This is a great 
American success story of a man coming from a very humble background 
and achieving real success, with real credentials for the court of 
  The opponents to Mr. Estrada have contended that he has not answered 
questions to their satisfaction in the Judiciary Committee hearing. I 
suggest that a fair reading of the record shows the contrary.
  Nominees are not supposed to give their opinions or judgments on 
hypothetical cases or in matters which may come before the court. The 
judicial process works so that cases in controversy depend upon the 
specific facts. Then briefs are submitted to the court. Then there is 
oral argument before the court. Then the judges deliberate, talk among 
themselves, reflect on the case, ultimately come to a judgment, write 
an opinion, and express themselves as to their conclusions.
  That is a very different matter from someone being asked: What is 
your judgment on issue A? What is your judgment on issue B? How would 
you find on issue C? The judicial process does not function that way.
  Traditionally, nominees have been accorded an understanding that they 
do not have to answer such questions.

[[Page S2735]]

  It is commonplace for questions to be asked. And I refer now to the 
confirmation hearings of Merrick Garland, where I asked now-Judge 

       Do you favor, as a personal matter, capital punishment?

  Mr. Garland:

       That is really a matter of settled law now. The Court has 
     held that capital punishment is constitutional, and lower 
     courts are required to follow that rule.

  There was an extended discussion which followed, but the upshot of 
the matter was that Mr. Garland--now Judge Garland--did not give his 
views. And I accepted that. He said that it was a matter of established 
law, and as a lower court judge he would be obliged to follow the law.
  There was a very controversial nominee, now Judge Marsha Berzon. She 
was asked about her view on Roe v. Wade and her thoughts about the 
abortion issue. And Marsha Berzon responded:

       I'm bound by Casey in that regard.

  That is referring to the case of Casey v. Planned Parenthood. And 
Marsha Berzon was a nominee by President Clinton, as was Judge Garland 
a nominee by President Clinton.
  When the shoe was on the other foot, these nominees did not give 
answers to these questions, but responded in the traditional way. And 
they were confirmed.
  Judge Rogers was questioned by Senator Cohen and asked about 
constitutional interpretation, where Senator Bill Cohen said:

       This is an evolutionary interpretation of what was 
     originally defined at least in the Constitution. Would you 
     agree with that general statement?

  Judge Rogers responded, ``My job as an appellate judge is to apply 
  And so it goes with the tradition being established that nominees do 
not answer specific questions.
  Mr. Estrada has agreed to make himself available to talk to any 
Senator who wishes to talk to him and to respond to inquiries and to 
have a discussion as to his judicial qualifications and answer 
questions consistent with appropriate practice. I think that is 
sufficient, certainly in the context where Mr. Estrada has already had 
his hearing by the Judiciary Committee and has been reported out.
  There has been an effort to obtain the legal papers of Miguel Estrada 
when he worked as an Assistant Solicitor General. I say with all due 
respect that that kind of contention is a red herring. Seven former 
Solicitors General wrote to the then chairman of the Judiciary 
Committee, Senator Leahy, outlining this issue in a succinct way. 
Reading the letter would express it as briefly as it can be expressed. 
Solicitors General Seth Waxman, a Democrat, Walter Dellinger, a 
Democrat, Drew Days, a Democrat, Kenneth Starr, a Republican, Charles 
Fried, a Republican, Robert H. Bork, a Republican, Archibald Cox, a 
Democrat--a four to three balance for Democrats--wrote as follows:

       We write to express our concern about your recent request 
     that the Department of Justice turn over ``appeal 
     recommendations, certiorari recommendations and amicus 
     recommendations'' that Miguel Estrada worked on while in the 
     Office of Solicitor General. As former heads of the Office of 
     Solicitor General, we can attest to the vital importance of 
     candor and confidentiality in the Solicitor General's 
     decision-making process. The Solicitor General is charged 
     with weighing responsibility, of deciding whether to appeal 
     adverse decisions in cases where the United States is a 
     party, whether to seek Supreme Court review of adverse 
     appellate decisions, and whether to participate as amicus 
     curiae and other high-profile cases that implicate an 
     important Federal interest. The Solicitor General has the 
     responsibility of representing the interests not just of the 
     Justice Department nor just of the executive branch but of 
     the entire Federal Government, including Congress. It goes 
     without saying that when we make these and other critical 
     decisions we rely on frank, honest, and thorough advice from 
     our staff attorneys, such as Mr. Estrada. Our decision-making 
     process requires the unbridled, open exchange of ideas, and 
     exchange simply cannot take place if attorneys have reason to 
     fear that their private recommendations are not private at 
     all but vulnerable to public disclosures. Attorneys 
     inevitably will hesitate before giving their honest, 
     independent analysis if their opinions are not safeguarded 
     from future disclosures. High-level decision-making requires 
     candor, and candor in turn requires confidentiality. Any 
     attempt to intrude into the office's highly privileged 
     deliberations would come at the cost of the Solicitor 
     General's ability to defend vigorously the U.S. litigation 
     interests, a cost that would also be borne by Congress 
     itself. Although we profoundly respect the Senate's duty to 
     evaluate Mr. Estrada's fitness for the Federal judiciary, we 
     do not think that the confidentiality and integrity of 
     internal deliberations should be sacrificed in the 

  It is signed by four former Democratic Solicitors General for 
Democratic Presidents who were Democrats, and three former Solicitors 
General who served in that capacity for Republican Presidents.
  What is really happening here is that the advise and consent function 
is being turned into an advise and dissent function. Beyond the 
qualifications of Mr. Estrada to be on the Court of Appeals for the 
District of Columbia Circuit, this is obviously a preliminary battle 
for the next nominee to the Supreme Court of the United States.
  I emphasize the issue of the unprecedented nature of this challenge 
and this procedure where 41 Senators can hold the confirmation process 
hostage. In order to cut off debate--to get what we call cloture--60 
votes are required. So as long as 41 Senators of the opposition party 
vote against cloture, the nomination process cannot go forward and 
there cannot be an up-or-down vote on a nominee.
  It has been said many times that if the opponents of Mr. Estrada seek 
to vote him down, let them do so. But it is plain that there are more 
than 51 Senators who are ready to vote to confirm Miguel Estrada. It is 
reported that some 55 Senators are prepared to vote for cloture. If 
this process goes on long enough, I think it is true that 60 votes 
would be obtained, cloture would be invoked, debate would be cut off, 
and there would be a vote on Miguel Estrada and he would be confirmed.
  But this lengthy process comes at the expense of very important other 
business of the Senate. The minority leader appeared in the Chamber 
earlier this week and asked to proceed to a discussion of the economy, 
which is a very important subject. That was obviously a tactic to make 
a point of trying to get off of Estrada and going to something else. 
But we should conclude Estrada not by way of removing the nomination 
from the floor but by way of voting on Miguel Estrada and then moving 
on to other very important items.
  There are very important issues which this Senate has to consider--an 
economic stimulus package, the prospects of a war in Iraq, and the 
issue of terrorism, which I am going to speak about in a few minutes. 
But right now, there is a stranglehold on the Senate with both sides 
having dug in.
  I will concede that when President Clinton was in the White House and 
we Republicans controlled the Senate that we did not give due deference 
to Presidential nominees. The record is also plain that I was willing 
to and did support Democratic nominees who were qualified. Other 
Republicans did as well. When we had a majority in the Judiciary 
Committee, we voted out nominees who were Democrats.
  It is my hope that one day we will find a resolution to this issue by 
establishing a protocol where the practice is established that so many 
days after a nomination is submitted there is a hearing in the 
Judiciary Committee; some days later, there is a vote by the committee; 
so many days after that, there is a floor debate and a vote by the 
Senate could be extended.
  On the most controversial nomination we have had during my tenure, 
the nomination of Justice Clarence Thomas, which was decided on the 52-
to-48 vote with a lot of acrimonious debate remembered well in this 
Chamber although it was back in October of 1991, the opposition party 
did not resort to a filibuster. In 1991, the Senate was controlled by 
the Democrats. They had a majority of the Senators. Justice Thomas was 
confirmed 52 to 48 in a very hotly contested, very partisan, very 
controversial nomination.
  Now to move to Miguel Estrada to be on the lower court, the District 
of Columbia Circuit Court, and with a matter of his qualifications, is 
sending the confirmation process into turmoil from which it may never 
recover, or if it does recover it is going to be a very long time. The 
fallout on this issue goes beyond the nomination process but to the 
essence of collegiality and the workings of the Senate, which is very 
much to the detriment of this

[[Page S2736]]

body and very much to the detriment of the American people whom we are 
supposed to serve.
  It is my hope that we yet might be able to come to some 
accommodation--not on Miguel Estrada but on the broader issues where we 
can have a protocol and establish a procedure that is not partisan, not 
  We ought to take the judicial nominating process out of politics so 
that when you have a Republican President and a Senate controlled by 
the Democrats, or a President who is a Democrat with a Senate 
controlled by the Republicans, we do not get into a logjam. And now we 
have a President who is a Republican and a Senate controlled by the 
Republicans, but as long as there are 41 who will stand up and oppose 
and filibuster, then the entire process breaks down.


  Mr. President, I intend to talk on another subject. I have gotten the 
acquiescence of the chairman of the committee, Senator Hatch. This is 
not about the Estrada nomination that we are generally talking about, 
although Senators have talked about other subjects. The subject I am 
now going to discuss is a matter of great national importance. It 
relates to a report that was issued yesterday by Senator Leahy, Senator 
Grassley, and myself. It is in reference to the issue of terrorism.
  The Judiciary Committee is scheduled to have a hearing next Tuesday, 
and there are matters that require discussion so that we are in a 
position to get responses from the Director of the FBI and move ahead 
with the Judiciary Committee hearings scheduled, as I said, for next 
  Yesterday, as a matter of senatorial oversight, Senator Leahy, 
Senator Grassley, and I released a 37-page report that deals with the 
issue of the FBI's activities under the Foreign Intelligence 
Surveillance Act (``FISA'') and the ability of the Federal Bureau of 
Investigation and the Department of Justice to handle counterterrorism. 
The report can be found on my office's internet website at 
  It is my view that there is a critical issue of the FBI's competence 
to handle terrorism, in light of the clear-cut failures of the FBI 
prior to 9/11, and the FBI's failure to answer important questions 
about what the FBI has done to correct the current failures.
  The report we released yesterday refers to the FBI's handling of the 
famous Phoenix memorandum, where there was a suspicious person who was 
taking flight training in the Phoenix area, and he had a big picture of 
Osama bin Laden on his wall. A detailed FBI report was submitted to 
Washington and was lost in the shuffle at FBI headquarters.
  At pages 31-32 of the report that we filed yesterday, there is a 
reference to the Phoenix memo. Had it been forwarded to the right 
personnel and understood at FBI headquarters, the Foreign Intelligence 
Surveillance Act request in the Moussaoui case from the Justice 
Department's Office of Intelligence Policy and Review would have been 
handled in a different manner. With that Phoenix report, coupled with 
the information from Zacarias Moussaoui's computer, and coupled with 
other information, 9/11 might well have been prevented.
  There was information in the hands of the Central Intelligence Agency 
about individuals in Kuala Lampur, Malaysia, who later turned out to be 
among the hijackers on 9/11--information that was not turned over to 
the Immigration and Naturalization Service. Had it been turned over, 
those individuals would have been kept out of the United States and 
would not have been hijackers on 9/11.
  There had been information as early as 1996 from a Pakistani named 
Abdul Hakim Murad, an al-Qaida member, who had plans to fly an airplane 
into the White House or CIA headquarters.
  Had the information on Zacarias Moussaoui been properly handled, it 
could have led to a FISA search authorization for Moussaoui's computer 
and the information contained on that computer, and might well have 
prevented 9/11.

  The Zacarias Moussaoui case received national prominence when a 
conscientious FBI agent named Coleen Rowley wrote a 13-page, single-
spaced letter to the FBI Director, which the Judiciary Committee 
ultimately saw and was the subject of a very important Judiciary 
Committee hearing last June 6. FBI Agent Rowley was honored on the 
cover of Time Magazine as one of the persons of the year--three so-
called whistleblowers, which is a categorization that doesn't sound too 
complimentary on its face, but it is very important when somebody knows 
what is going on within the Government that is wrong and has the 
courage to stand up and expose it and subject himself or herself to 
  But in the course of what Agent Rowley wrote to FBI Director Mueller, 
it was apparent the FBI was applying the wrong standard for a warrant 
under the Foreign Intelligence Surveillance Act.
  The letter from Agent Rowley pointed out that they were being held to 
a standard of preponderance of the evidence--meaning more likely or 
more probable than not--meaning 51 percent or more. In the course of 
that hearing, I raised with Director Mueller and with Agent Rowley the 
case of Illinois v. Gates, 462 U.S. 213, 1983, which appears at pages 
23-24 of the report that Senators Leahy, Grassley, and I released 
yesterday, which defined probable cause as ``circumstances which 
warrant suspicion'' under the ``totality of the circumstances 
  This case was decided in 1983 and it referred back to an opinion of 
Chief Justice Marshall in 1813. So this had been the law for a long 
time. But at the hearing, Agent Rowley testified that was not the 
standard that was used, and there is a real question which has yet to 
be answered as to whether FBI Director Mueller knew what the right 
standard was.
  In light of the fact that a warrant was not obtained under the 
Foreign Intelligence Surveillance Act, Moussaoui, a key participant in 
the 9/11 planning, developed into a burgeoning, very major case in the 
United States in the intervening months. We then proceeded to have a 
closed-door session, where we brought in attorneys and personnel from 
the FBI who were in charge of handling warrants under the Foreign 
Intelligence Surveillance Act. This appears at page 27.
  My questioning:

       What is the legal standard for probable cause for a 

  FBI attorney:

       A reasonable belief that the facts you are trying to prove 
     are accurate.

  Question by me:

       Reason to believe?

  Answer by the attorney:

       Reasonable belief.

  Question by me:

       Reasonable belief?

  Answer by the attorney:

       More probable than not.

  My question:

       More probable than not?

  Mr. President, that is not the standard. The standard is suspicion 
under the totality of the circumstances. Here is the key attorney who 
is supposed to pass on applications for warrants under the Foreign 
Intelligence Surveillance Act, and he doesn't know the standard.
  My question was:

       Are you familiar with Gates v. Illinois?


       No, sir.

  He doesn't know the baseline case for deciding what the standard is 
for probable cause, and he is the man who is supposed to approve 
warrants under the Foreign Intelligence Surveillance Act so that we can 
find out what men like Zacarias Moussaoui are doing and protect the 
American people.
  I was absolutely astounded at what I heard. I was astounded because 
the June 6 hearings, more than a month before we had this closed-door 
session on July 9, were widely publicized. They were on C-SPAN. Maybe 
nobody watches C-SPAN. Maybe nobody is watching C-SPAN now. Maybe 
nobody ever watches C-SPAN. But beyond being publicized on C-SPAN, 
there was extensive newspaper coverage about it. One would have 
expected that the agents who deal with the Foreign Intelligence 
Surveillance Act would be looking at a hearing which was squarely on 
their subject. Or one would also expect that the Director of the FBI, 
who was at the hearing, and found that key FBI personnel had applied 
the wrong standard in the Zacarias Moussaoui case--causing them not to 
apply for a search warrant--that the

[[Page S2737]]

FBI Director would take specific steps to see to it that the people in 
charge of handling those warrant applications would have known what was 
going on.
  From June 6 to July 9 is 33 days. The world could turn in 33 days. 
People could be doing highly suspicious things, people could be 
planning terrorist attacks, and no action was taken by the Director of 
the FBI to see to it that the people who were charged with the 
responsibility of applying for these warrants did so.
  The very next day, I wrote to the Director of the FBI:

       Dear Bob, In a hearing before the Judiciary Committee on 
     June 6 . . . I called your attention to the standard on 
     probable cause in the opinion of then-Associate Justice 
     Rehnquist in Illinois v. Gates. . . .

  I go through the business about suspicion and totality of the 
circumstances. My letter continues:

       In a closed door hearing yesterday, seven FBI personnel 
     handling FISA warrant applications were questioned, including 
     four attorneys.
       A fair summary of their testimony demonstrated that no one 
     was familiar with Justice Rehnquist's definition from Gates 
     and no one articulated an accurate standard for probable 
       I would have thought that the FBI personnel handling FISA 
     applications would have noted this issue from the June 6th 
     hearing; or, in the alternative, that you or other 
     supervisory personnel would have called it to their 
       It is obvious that these applications, which are frequently 
     made, are of the utmost importance to our national security 
     and your personnel should not be applying such a high 
     standard that precludes submission of FISA applications to 
     the Foreign Intelligence Surveillance Court.
       I believe the Judiciary Committee will have more to say on 
     this subject but I wanted to call this to your attention 
     immediately so that you could personally take appropriate 
     corrective action.

  Days followed, weeks followed, and no response from Director Mueller.
  Then on September 10, I again raised these issues with a 
representative of the Department of Justice who appeared before the 
Judiciary Committee. On September 12, I received an undated letter 
signed by the Assistant Director for the Office of Public and 
Congressional Affairs. It is very unusual to get undated letters. The 
representation has been made that the letter was sent on July 25, but 
it was received in my office on September 12.
  Mr. President, I ask unanimous consent that my letter to Director 
Mueller dated July 10 and the undated response from John E. Collingwood 
be printed in the Congressional Record at the conclusion of my remarks.
  Mr. SCHUMER. Reserving the right to object--and I am not going to 
object--I want to get a time line. My friend has important things to 
say. How much longer does my colleague from Pennsylvania--if he will 
yield for a question--expect to hold the floor?
  Mr. SPECTER. I will not say regular order, but there is no basis for 
the inquiry, but I will respond. I expect to be about 15 minutes more.
  Mr. SCHUMER. I thank my colleague. I am trying to work out our 
schedule. I have no objection, of course. I am very interested in what 
my colleague has to say.
  The PRESIDING OFFICER (Mr. Thomas). Without objection, it is so 
  (See exhibit 1.)
  Mr. SPECTER. Mr. President, the FBI then put out a memorandum dated 
September 16. That was in response to my questioning the Department of 
Justice representative at the Judiciary Committee hearings on September 
10. Again, Mr. President, I ask unanimous consent that this memorandum 
be printed in the Congressional Record following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. SPECTER. Mr. President, I will not read the memo or analyze it in 
detail, but I invite readers of the Congressional Record to do so. This 
is a virtually unintelligible memorandum, if agents are supposed to 
read this and know what to do about applications for warrants under the 
Foreign Intelligence Surveillance Act.
  In paragraph 3, it talks about ``which deal with probabilities.'' It 
makes a reference to ``it requires more than unfounded suspicion,'' but 
it is not probabilities that involve the standards, it is suspicion. 
Obviously, not unfounded suspicion, but suspicion based on a totality 
of the circumstances.
  At that stage, I again wrote to Director Mueller noting the questions 
which I had propounded to him and Special Agent Coleen Rowley on June 6 
and the July 10 letter which I wrote to him which had still not been 
answered. This undated letter from John E. Collingwood provides no 
answer at all. I will not read it in detail, but it will be in the 
  The closest the letter from John E. Collingwood, the Assistant 
Director for the Office of Public and Congressional Affairs, comes is:

       This guidance will also address the concerns raised in your 
     letter in your meeting with FBI personnel on July 9, 2002. We 
     anticipate approval of the guidance shortly and will 
     immediately disseminate it to field offices for 

  That is as close as they come to an answer which, obviously, on its 
face is no answer at all.
  So I again wrote Director Mueller on September 24, 2002. I referenced 
the July 10 letter, and I referenced the fact that on September 12, my 
office received an undated letter from Assistant Director Collingwood 
which was totally unresponsive. I referenced the September 16 FBI memo, 
and concluded by saying I would like an explanation from him as to why 
it took the FBI so long to disseminate information on the standard for 
probable cause under Illinois v. Gates for a Foreign Intelligence 
Surveillance Act warrant. As yet, I have not received an answer from 
FBI Director Mueller to that important question as to why it took so 
  Then I supplemented that letter on October 1, inquiring what were the 
specifics on the standard of probable cause used by the FBI for 
warrants under the Foreign Intelligence Surveillance Act from June 6, 
the date of our Judiciary Committee hearing, until September 16, when 
the memorandum went out. As yet, I have not gotten an answer to that 
  I ask unanimous consent that both of those letters be printed at the 
conclusion of my remarks.
  In the sequence of events, we next sent over to the FBI the report 
which we issued yesterday to give them an opportunity to review it and 
an opportunity to make comments. Finally, last Friday, February 21, 
2003, we received another letter dated February 20 from the Department 
of Justice which referenced the outstanding questions--not sent to me, 
the person who had raised the questions, but sent to Senator Hatch, 
with a copy to me--and ending with the statement of what standard had 
been applied. The letter is signed by Acting Assistant Attorney General 
Jamie E. Brown:

       The standard they employed was consistent with ``Illinois 
     v. Gates'' both before and after they received the 

  That is patently false. The standard which had been employed before 
the memorandum was more probable than not, 51 percent, as testified by 
Special Agent Coleen Rowley, and it is undetermined as to what standard 
was used thereafter.
  The issues under the Foreign Intelligence Surveillance Act have been 
raised in other oversight hearings relating to Wen Ho Lee, when the 
Department of Justice, on a matter handled by Attorney General Janet 
Reno personally, declined to request a warrant under the Foreign 
Intelligence Surveillance Act where there was ample probable cause, a 
matter which was reviewed in depth by the subcommittee which I chaired 
on Department of Justice oversight.
  The Attorney General designated Assistant U.S. Attorney Randy Bellows 
to review the Wen Ho Lee case. Mister Bellows filed an extensive report 
on May 12, 2000, saying that Attorney General Reno was wrong and the 
subcommittee of the Judiciary Committee was correct that a warrant 
should have been issued.
  Just in the last few weeks, an indictment has been returned, charging 
Mr. Sami Al-Arian for gathering funds for terrorist organizations since 
the early 1990s, an indictment based on extensive evidence collected 
pursuant to the Foreign Intelligence Surveillance Act, raising a real 
question as to the interpretation by the FBI and the Department of 
Justice of the Foreign Intelligence Surveillance Act, going back to Wen 
Ho Lee, going back to the 1990s, and surviving up until very recently, 
when they failed to utilize the provisions of the Foreign Intelligence 
Surveillance Act for criminal prosecutions.

[[Page S2738]]

  Prior to the enactment of the PATRIOT Act in the fall of 2001, the 
standard for Foreign Intelligence Surveillance Act surveillance had 
been interpreted by the courts to be that the primary purpose for the 
surveillance had to be for intelligence gathering, but saying ``primary 
purpose'' left latitude for some law enforcement purpose.

  Then the PATRIOT Act amended the Foreign Intelligence Surveillance 
Act standards to say ``significant purpose,'' broadening to some extent 
the issue of using Foreign Intelligence Surveillance Act warrants for 
law enforcement purposes. So in that substance, there is a persistent 
question as to the activities of the Department of Justice in 
implementing the Foreign Intelligence Surveillance Act, passed in 1978, 
at a time when gathering information and evidence against terrorists is 
of the utmost importance for the security of the American people.
  In our oversight hearing which we conducted last July 9, and in 
subsequent hearings and correspondence, we asked the Department of 
Justice for an opinion written by the Foreign Intelligence Surveillance 
Court, which the Department of Justice declined to give us. We finally 
had to get it from the court itself. In that matter, the Foreign 
Intelligence Surveillance Court criticized the Department of Justice 
and the FBI for some 75 cases where, as the court put it, the 
applications for search warrants had contained substantial 
inaccuracies. Then there was an appeal taken, the first such appeal, 
where the Court of Appeals for the Foreign Intelligence Surveillance 
Act found that there was broader discretion for law enforcement, which 
was very important in the war against terrorism.
  All of this is very complicated, and I have gone to some length to 
put this into the Record.
  I ask unanimous consent, on behalf of Senator Leahy, Senator 
Grassley, and myself, that the full text of the report issued yesterday 
be printed in the Record. As I noted earlier, the report can also be 
found on my office's website at specter.senate.gov.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     Interim Report on FBI Oversight: FISA Implementation Failures


       Working in a bipartisan manner in the 107th Congress, the 
     Senate Judiciary Committee conducted the first comprehensive 
     oversight of the FBI in nearly two decades. That oversight 
     was aimed not at tearing down the FBI but at identifying any 
     problem areas as a necessary first step to finding 
     constructive solutions and marshaling the attention and 
     resources to implement improvements. The overarching goal of 
     this oversight was to restore confidence in the FBI and make 
     the FBI as strong and as great as it must be to fulfill this 
     agency's multiple and critical missions of protecting the 
     United States against crime, international terrorism, and 
     foreign clandestine intelligence activity, within 
     constitutional and statutory boundaries.
       Shortly after the Committee initiated oversight hearings 
     and had confirmed the new Director of the FBI, the Nation 
     suffered the terrorist attacks of September 11, 2001, the 
     most serious attacks on these shores since Pearl Harbor. 
     While it is impossible to say what could have been done to 
     stop these attacks from occurring, it is certainly possible 
     in hindsight to say that the FBI, and therefore the Nation, 
     would have benefitted from earlier close scrutiny by this 
     Committee of the problems the agency faced, particularly as 
     those problems affected the Foreign Intelligence Surveillance 
     Act (``FISA'') process. Such oversight might have led to 
     corrective actions, as that is an important purpose of 
       In the immediate aftermath of the attacks, the Congress 
     and, in particular, the Senate Judiciary Committee responded 
     to demands by the Department of Justice (DOJ) and the FBI for 
     greater powers to meet the security challenges posed by 
     international terrorism. We worked together to craft the USA 
     PATRIOT Act to provide such powers. With those enhanced 
     powers comes an increased potential for abuse and the 
     necessity of enhanced congressional oversight.
       Our oversight has been multi-faceted. We have held public 
     hearings, conducted informal briefings, convened closed 
     hearings on matters of a classified nature, and posed written 
     questions in letters in connection with hearings to the DOJ 
     and FBI. Although our oversight has focused primarily on the 
     FBI, the Attorney General and the DOJ have ultimate 
     responsibility for the performance of the FBI. Without both 
     accountability and support on the part of the Attorney 
     General and senior officials of the DOJ, the FBI cannot make 
     necessary improvements or garner the resources to implement 
       At times, the DOJ and FBI have been cooperative in our 
     oversight efforts. Unfortunately, however, at times the DOJ 
     and FBI have either delayed answering or refused to answer 
     fully legitimate oversight questions. Such reticence only 
     further underscores the need for continued aggressive 
     congressional oversight. Our constitutional system of checks 
     and balances and our vital national security concerns demand 
     no less. In the future, we urge the DOJ and FBI to embrace, 
     rather than resist, the healthy scrutiny that legitimate 
     congressional oversight brings.
       One particular focus of our oversight efforts has been the 
     Foreign Intelligence Surveillance Act (FISA). This report is 
     focused on our FISA oversight for three reasons. First, the 
     FISA is the law governing the exercise of the DOJ's and FBI's 
     surveillance powers inside the United States to collect 
     foreign intelligence information in the fight against 
     terrorism and, as such, is vitally important to our national 
     security. Second, the concerns revealed by our FISA oversight 
     highlight the more systemic problems facing the FBI and the 
     importance of close congressional oversight and scrutiny in 
     helping to provide the resources and attention to correct 
     such problems before they worsen. Third, members of this 
     Committee led the effort to amend key provisions of the FISA 
     in the USA PATRIOT Act, and the sunset or termination of 
     those amendments in four years makes it imperative that the 
     Committee carefully monitor how the FISA changes are being 
       This report is in no way intended to be a comprehensive 
     study of what did, or did not, ``go wrong'' before the 9/11 
     attacks. That important work was commenced by the Joint 
     Intelligence Committee in the 107th Congress and will be 
     continued by the National Commission on Terrorist Attacks 
     (the ``9/11 Commission'') established by an act of Congress 
     at the end of the last session. The focus of this report is 
     different than these other important inquiries. We have not 
     attempted to analyze each and every piece of intelligence or 
     the performance of each and every member of the Intelligence 
     Community prior to the 9/11 attacks. Nor have we limited our 
     inquiry to matters relating only to the 9/11 attacks. Rather, 
     we have attempted, based upon an array of oversight 
     activities related to the performance of the FBI over an 
     extended period of time, to highlight broader and more 
     systemic problems within the DOJ and FBI and to ascertain 
     whether these systemic shortcomings played a role in the 
     implementation of the FISA prior to the 9/11 attacks.
       The FISA provides a statutory framework for electronic and 
     other forms of surveillance in the context of foreign 
     intelligence gathering. These types of investigations give 
     rise to a tension between the government's legitimate 
     national security interests, on the one hand, and, on the 
     other hand, constitutional safeguards against unreasonable 
     government searches and seizures and excessive government 
     intrusion into the exercise of free speech, associational, 
     and privacy rights. Congress, through legislation, has sought 
     to strike a delicate balance between national security and 
     constitutionally protected interests in this sensitive 
       The oversight review this Committee has conducted during 
     the 107th Congress has uncovered a number of problems in the 
     FISA process: a misunderstanding of the rules governing the 
     application procedure, varying interpretations of the law 
     among key participants, and a break-down of communication 
     among all those involved in the FISA application process. 
     Most disturbing is the lack of accountability that has 
     permeated the entire application procedure.
       Our FISA oversight--especially oversight dealing with the 
     time leading up to the 9/11 attacks--has reinforced the 
     conclusion that the FBI must improve in the most basic 
     aspects of its operations. Following is a list of our most 
     important conclusions:
       FBI Headquarters did not properly support the efforts of 
     its field offices in foreign intelligence matters. The role 
     of FBI Headquarters in national security investigations is to 
     ``add value'' in two ways: by applying legal and practical 
     expertise in the processing of FISA surveillance applications 
     and by integrating relevant information from all available 
     intelligence sources to evaluate the significance of 
     particular information and to supplement information from the 
     field. In short, Headquarters' role is to know the law and 
     ``connect the dots'' from multiple sources both inside and 
     outside the FBI. The FBI failed in this role before the 9/11 
     attacks. In fact, the bureaucratic hurdles erected by 
     Headquarters (and DOJ) not only hindered investigations but 
     contributed to inaccurate information being presented to the 
     FISA Court, eroding the trust in the FBI of the special court 
     that is key to the government's enforcement efforts in 
     national security investigations.
       Key FBI agents and officials were inadequately trained in 
     important aspects of not only FISA, but also fundamental 
     aspects of criminal law.
       In the time leading up to the 9/11 attacks, the FBI and DOJ 
     had not devoted sufficient resources to implementing the 
     FISA, so that long delays both crippled enforcement efforts 
     and demoralized line agents.
       The secrecy of individual FISA cases is certainly 
     necessary, but this secrecy has been extended to the most 
     basic legal and procedural aspects of the FISA, which should 
     not be secret. This unnecessary secrecy contributed to the 
     deficiencies that have hamstrung the implementation of the 

[[Page S2739]]

     Much more information, including all unclassified opinions 
     and operating rules of the FISA Court and Court of Review, 
     should be made public and/or provided to the Congress.
       The FBI's failure to analyze and disseminate properly the 
     intelligence data in the agency's possession rendered useless 
     important work of some of its best field agents. In short, 
     the FBI did not know what it knew. While we are encouraged by 
     the steps commenced by Director Mueller to address this 
     problem, there is more work to be done.
       The FBI's information technology was, and remains, 
     inadequate to meet the challenges facing the FBI, and FBI 
     personnel are not adequately trained to use the technology 
     that they do possess. We appreciate that Director Mueller is 
     trying to address this endemic problem, but past performance 
     indicates that close congressional scrutiny is necessary to 
     ensure that improvements continue to be made swiftly and 
       A deep-rooted culture of ignoring problems and discouraging 
     employees from criticizing the FBI contributes to the FBI's 
     repetition of its past mistakes in the foreign intelligence 
     field. There has been little or no progress at the FBI in 
     addressing this culture.
       It is important to note that our oversight and conclusions 
     in no way reflect on the fine and important work being done 
     by the vast majority of line agents in the FBI. We want to 
     commend the hard-working special agents and supervisory 
     agents in the Phoenix and Minneapolis field offices for their 
     dedication, professionalism, and initiative in serving the 
     American people in the finest traditions of the FBI and law 
     enforcement. Indeed, one of our most basic conclusions, both 
     with respect to FISA and the FBI generally, is that 
     institutional and management flaws prevent the FBI's field 
     agents from operating to their full potential.
       Although the DOJ and FBI have acknowledged shortcomings in 
     some of these areas and begun efforts to reform, we cannot 
     stress strongly enough the urgency of this situation. The 
     pace of improvement and reform must quicken.
       We are issuing this interim public report now so that this 
     information is available to the American people and Members 
     of Congress as we evaluate the implementation of the USA 
     PATRIOT Act amendments to the FISA and additional pending 
     legislation, including the FBI Reform Act. We also note that 
     many of the same concerns set forth in this report have 
     already led to legislative reforms. Included in these was the 
     bipartisan proposal, first made in the Senate, to establish a 
     cabinet level Department of Homeland Security, a proposal 
     that is already a legislative reality. Our oversight also 
     helped us to craft and pass, for the first time in 20 
     years, the 21st Century Department of Justice 
     Appropriations Authorization Act, P.L. 107-296, designed 
     to support important reforms at the Department of Justice 
     and the FBI. In addition, concerns raised by this 
     Committee about the need for training on basic legal 
     concepts, such as probable cause, spurred the FBI to issue 
     an electronic communication on September 16, 2002, from 
     the FBI's Office of the General Counsel to all field 
     offices explaining this critical legal standard.
       Additionally, this report may assist the senior leadership 
     of the DOJ and FBI, and other persons responsible for 
     ensuring that FISA is used properly in defending against 
     international terrorists.


 A. The Purposes of FBI Oversight: Enhancing Both Security and Liberty

       Beginning in the summer of 2001 and continuing through the 
     remainder of the 107th Congress, the Senate Judiciary 
     Committee conducted intensive, bipartisan oversight of the 
     FBI. The purpose of this comprehensive oversight effort was 
     to reverse the trend of the prior decades, during which the 
     FBI operated with only sporadic congressional oversight 
     focused on its handling of specific incidents, such as the 
     standoffs at Ruby Ridge, Idaho, or Waco, Texas, and the 
     handling of the Peter Lee and Wen Ho Lee espionage cases. It 
     was the view of both Democrats and Republicans on the 
     Judiciary Committee that the FBI would benefit from a more 
     hands-on approach and that congressional oversight would help 
     identify problems within the FBI as a first step to ensuring 
     that appropriate resources and attention were focused on 
     constructive solutions. In short, the goal of this oversight 
     was to ensure that the FBI would perform at its full 
     potential. Strong and bipartisan oversight, while at times 
     potentially embarrassing to any law enforcement agency, 
     strengthens an agency in the long run. It helps inform the 
     crafting of legislation to improve an agency's performance, 
     and it casts light on both successes and problems in order to 
     spur agencies to institute administrative reforms of their 
     own accord. In short, the primary goal of FBI oversight is to 
     help the FBI be as great and effective as it can be.
       So, too, is oversight important in order to protect the 
     basic liberties upon which our country is founded. Past 
     oversight efforts, such as the Church Committee in the 1970s, 
     have exposed abuses by law enforcement agencies such as the 
     FBI. It is no coincidence that these abuses have come after 
     extended periods when the public and the Congress did not 
     diligently monitor the FBI's activities. Even when agencies 
     such as the FBI operate with the best of intentions (such as 
     protecting our nation from foreign threats such as Communism 
     in the 1950s and 1960s and fighting terrorism now), if left 
     unchecked, the immense power wielded by such government 
     agencies can lead them astray. Public scrutiny and debate 
     regarding the actions of government agencies as powerful as 
     the DOJ and the FBI are critical to explaining actions to the 
     citizens to whom these agencies are ultimately accountable. 
     In this way, congressional oversight plays a critical role in 
     our democracy.
       The importance of the dual goals of congressional 
     oversight--improving FBI performance and protecting liberty--
     have been driven home since the 9/11 attacks. Even prior to 
     the terrorist attacks, the Judiciary Committee had begun 
     oversight and held hearings that had exposed several 
     longstanding problems at the FBI, such as the double standard 
     in discipline between line agents and senior executive 
     officials. The 9/11 attacks on our country have forever 
     redefined the stakes riding upon the FBI's success in 
     fulfilling its mission to fight terrorism. It is no luxury 
     that the FBI perform at its peak level--it is now a 
       At the same time, the increased powers granted to the FBI 
     and other law enforcement agencies after the 9/11 attacks, in 
     the USA PATRIOT Act, which Members of this Committee helped 
     to craft, and through the actions of the Attorney General and 
     the President, have made it more important than ever that 
     Congress fulfills its role in protecting the liberty of our 
     nation. Everyone would agree that winning the war on 
     terrorism would be a hollow victory indeed if it came only at 
     the cost of the very liberties we are fighting to preserve. 
     By carefully overseeing the DOJ's and FBI's use of its broad 
     powers, Congress can help to ensure that the false choice 
     between fundamental liberty and basic security is one that 
     our government never takes upon itself to make. For these 
     reasons, in the post-9/11 world, FBI oversight has been, and 
     will continue to be, more important than ever.

 B. Judiciary Committee FBI Oversight Activities in the 107th Congress

                1. Full Committee FBI Oversight Hearings

       Beginning in July 2001, after Senator Leahy became 
     chairman, the Senate Judiciary Committee held hearings that 
     focused on certain longstanding and systemic problems at the 
     FBI. These included hearings concerning: (1) the FBI's 
     antiquated computer systems and its belated upgrade program; 
     (2) the FBI's ``circle the wagons'' mentality, wherein those 
     who report flaws in the FBI are punished for their frankness; 
     and (3) the FBI's flawed internal disciplinary procedures and 
     ``double standard'' in discipline, in which line FBI agents 
     can be seriously punished for the same misconduct that only 
     earns senior FBI executives a slap on the wrist. Such flaws 
     were exemplified by the disciplinary actions taken (and not 
     taken) by the FBI and DOJ after the incidents at Waco, Texas, 
     and Ruby Ridge, Idaho, and the apparent adverse career 
     effects experienced by FBI agents participating in those 
     investigations who answered the duty call to police their 
       The Committee's pre-9/11 FBI oversight efforts culminated 
     with the confirmation hearings of the new FBI Director, 
     Robert S. Mueller, III. Beginning on July 30, 2001, the 
     Committee held two days of extensive hearings on Director 
     Mueller's confirmation and closely questioned Director 
     Mueller about the need to correct the information technology 
     and other problems within the FBI. In conducting these 
     hearings, Committee Members understood the critical role of 
     the FBI Director in protecting our country from criminal, 
     terrorist, and clandestine intelligence activities and 
     recognized the many challenges facing the new Director.
       Director Mueller was questioned very closely on the issue 
     of congressional oversight, engaging in four rounds of 
     questioning over two days. In response to one of Senator 
     Specter's early questions, Director Mueller stated ``I 
     understand, firmly believe in the right and the power of 
     Congress to engage in its oversight function. It is not only 
     a right, but it is a duty.''
       In response to a later question, Director Mueller stated:
       ``I absolutely agree that Congress is entitled to oversight 
     of the ongoing responsibilities of the FBI and the Department 
     of Justice. You mentioned at the outset the problems that you 
     have had over a period of getting documents in ongoing 
     investigations. And as I stated before and I'll state again, 
     I think it is incumbent upon the FBI and the Department of 
     Justice to attempt to accommodate every request from Congress 
     swiftly and, where it cannot accommodate or believes that 
     there are confidential issues that have to be raised, to 
     bring to your attention and articulate with some specificity, 
     not just the fact that there's ongoing investigation, not 
     just the fact that there is an ongoing or an upcoming trial, 
     but with specificity why producing the documents would 
     interfere with either that trial or for some other reason or 
     we believed covered by some issue of confidentiality.''
       Incoming Director Mueller, at that time, frankly 
     acknowledged that there was room for improvement in these 
     areas at the FBI and vowed to cooperate with efforts to 
     conduct congressional oversight of the FBI in the future.
       Director Mueller assumed his duties on September 4, 2001, 
     just one week before the terrorist attacks. After the 
     terrorist attacks, there was a brief break from FBI 
     oversight, as the Members of the Judiciary Committee worked 
     with the White House to craft

[[Page S2740]]

     and pass the USA PATRIOT Act. In that new law, the Congress 
     responded to the DOJ's and FBI's demands for increased powers 
     but granted many of those powers only on a temporary basis, 
     making them subject to termination at the end of 2005. The 
     ``sunset'' of the increased FISA surveillance powers 
     reflected the promise that the Congress would conduct 
     vigilant oversight to evaluate the FBI's performance both 
     before and after 9/11. Only in that way could Congress and 
     the public be assured that the DOJ and FBI needed the 
     increased powers in the first place, and were effectively and 
     properly using these new powers to warrant extension of the 
       Passage of the USA PATRIOT Act did not solve the 
     longstanding and acknowledged problems at the FBI. Rather, 
     the 9/11 attacks created a new imperative to remedy systemic 
     shortcomings at the FBI. Review of the FBI's pre-9/11 
     performance is not conducted to assess blame. The blame lies 
     with the terrorists. Rather, such review is conducted to help 
     the FBI prevent future attacks by not repeating the mistakes 
     of the past. Thus, the enactment of the USA PATRIOT Act did 
     not obviate the need to oversee the FBI; it augmented that 
       Within weeks of passage of the USA PATRIOT Act, the Senate 
     Judiciary Committee held hearings with senior DOJ officials 
     on implementation of the new law and other steps that were 
     being taken by the Administration to combat terrorism. The 
     Committee heard testimony on November 28, 2001, from 
     Assistant Attorney General Michael Chertoff and, on December 
     6, 2001, from Attorney General Ashcroft. In response to 
     written questions submitted in connection with the latter 
     hearing, DOJ confirmed that shortly after the USA PATRIOT Act 
     had been signed by the President on October 26, 2001, DOJ 
     began to press the Congress for additional changes to relax 
     FISA requirements, including expansion of the definition of 
     ``foreign power'' to include individual, non-U.S. persons 
     engaged in international terrorism. DOJ explained that this 
     proposal was to address the threat posed by a single foreign 
     terrorist without an obvious tie to another person, group, or 
     state overseas. Yet, when asked to ``provide this Committee 
     with information about specific cases that support your claim 
     to need such broad new powers,'' DOJ was silent in its 
     response and named no specific cases showing such a need, nor 
     did it say that it could provide such specificity even in a 
     classified setting. In short, DOJ sought more power but was 
     either unwilling or unable to provide an example as to why.
       Beginning in March 2002, the Committee convened another 
     series of hearings monitoring the FBI's performance and its 
     efforts to reform itself. On March 21, 2002, the Judiciary 
     Committee held a hearing on the DOJ Inspector General's 
     report on the belated production of documents in the Oklahoma 
     City bombing case. That hearing highlighted longstanding 
     problems in the FBI's information technology and training 
     regarding the use of, and access to, records. It also 
     highlighted the persistence of a ``head-in-the-sand'' 
     approach to problems, where shortcomings are ignored rather 
     than addressed and the reporting of problems is 
     discouraged rather than encouraged.
       On April 9, 2002, the Committee held a hearing on the 
     Webster Commission's report regarding former FBI Agent and 
     Russian spy Robert Hanssen's activities. That hearing exposed 
     a deep-seated cultural bias against the importance of 
     security at the FBI. One important finding brought to light 
     at that hearing was the highly inappropriate handling of 
     sensitive FISA materials in the time after the 9/11 attacks. 
     In short, massive amounts of the most sensitive and highly 
     classified materials in the FBI's possession were made 
     available on an unrestricted basis to nearly all FBI 
     employees. Even more disturbing, this action was taken 
     without proper consultation with the FBI's own security 
       On May 8, 2002, the Judiciary Committee held an oversight 
     hearing at which FBI Director Mueller and Deputy Attorney 
     General Thompson testified regarding their efforts to reshape 
     the FBI and the DOJ to address the threat of terrorism. It 
     was at this hearing that the so-called ``Phoenix Memorandum'' 
     was publicly discussed for the first time. Director Mueller 
     explained in response to one question:
       ``[T]he Phoenix electronic communication contains 
     suggestions from the agent as to steps that should be taken, 
     or he suggested taking to look at other flight schools . . . 
     . He made a recommendation that we initiate a program to look 
     at flight schools. That was received at Headquarters. It was 
     not acted on by September 11. I should say in passing that 
     even if we had followed those suggestions at that time, it 
     would not, given what we know since September 11, have 
     enabled us to prevent the attacks of September 11. But in the 
     same breath I should say that what we learned from instances 
     such as that is much about the weaknesses of our approach to 
     counterterrorism prior to September 11.''
       In addition, Director Mueller first discussed at this 
     hearing that FBI agents in Minnesota had been frustrated by 
     Headquarters officials in obtaining a FISA warrant in the 
     Zacharias Moussaoui investigation before the 9/11 attacks, 
     and that one agent seeking the warrant had said that he was 
     worried that Moussaoui would hijack an airplane and fly it 
     into the World Trade Center.
       On June 6, 2002, the Committee held another hearing at 
     which Director Mueller testified further regarding the 
     restructuring underway at the FBI. Significantly, that 
     hearing also provided the first public forum for FBI Chief 
     Division Counsel Coleen Rowley of the Minneapolis Division to 
     voice constructive criticism about the FBI. Her criticisms, 
     the subject of a lengthy letter sent to Director Mueller on 
     May 21, 2002, which was also sent to Members of Congress, 
     echoed many of the issues raised in this Committee's 
     oversight hearings. Special Agent Rowley testified about 
     ``careerism'' at the FBI and a mentality at FBI Headquarters 
     that led Headquarters agents to more often stand in the way 
     of field agents than to support them. She cited the Moussaoui 
     case as only the most high profile instance of such an 
     attitude. Special Agent Rowley also described a FBI computer 
     system that prevented agents from accessing their own records 
     and conducting even the most basic types of searches. In 
     short, Special Agent Rowley's testimony reemphasized the 
     importance of addressing the FBI's longstanding problems, not 
     hiding from them, in the post-9/11 era.
       As the head of the Department of Justice as a whole, the 
     Attorney General has ultimate responsibility for the 
     performance of the FBI. On July 25, 2002, the Judiciary 
     Committee held an oversight hearing at which Attorney General 
     Ashcroft testified. The Committee and the Attorney General 
     engaged in a dialogue regarding the performance of the DOJ on 
     many areas of interest, including the fight against 
     terrorism. Among other things discussed at this hearing were 
     the Attorney General's plans to implement the Terrorism 
     Information and Prevention System (TIPS), which would have 
     enlisted private citizens to monitor ``suspicious'' 
     activities of other Americans. After questioning on the 
     subject, Attorney General Ashcroft testified that he would 
     seek restrictions on whether and how information generated 
     through TIPS would be retained. Later, as part of the 
     Homeland Security legislation, TIPS was prohibited 
       On September 10, 2002, the Committee held an oversight 
     hearing specifically focusing on issues related to the FISA. 
     Leading experts from the DOJ, from academia, and from the 
     civil liberties and national security legal communities 
     participated in a rare public debate on the FISA. That 
     hearing brought before the public an important discussion 
     about the reaches of domestic surveillance using FISA and the 
     meaning of the USA PATRIOT Act. In addition, through the 
     efforts of the Judiciary Committee, the public learned that 
     this same debate was already raging in private. The FISA 
     Court (FISC) had rejected the DOJ's proposed procedure for 
     implementing the USA PATRIOT Act, and the FISA Court of 
     Review was hearing its first appeal in its 20-year-plus 
     existence to address important issues regarding these USA 
     PATRIOT Act amendments to the FISA. The Committee requested 
     that the FISA Court of Review publicly release an 
     unclassified version of the transcript of the oral argument 
     and its opinion, which the Court agreed to do and furnished 
     to the Committee. Thus, only through the bipartisan oversight 
     work of the Judiciary Committee was the public first informed 
     of the landmark legal opinion interpreting the FISA and the 
     USA PATRIOT Act amendments overruling the FISC's position, 
     accepting some of the DOJ's legal arguments, but rejecting 
       These are only the full Judiciary Committee hearings 
     related to FBI oversight issues in the 107th Congress. The 
     Judiciary Committee's subcommittees also convened numerous, 
     bipartisan oversight hearings relating to the FBI's 
     performance both before and after 9/11.

 2. Other oversight activities: classified hearings, written requests, 
                         and informal briefings

       The Judiciary Committee and its Members have fulfilled 
     their oversight responsibilities through methods other than 
     public hearings as well. Particularly with respect to FISA 
     oversight, Members of the Judiciary Committee and its staff 
     conducted a series of closed hearings and briefings, and made 
     numerous written inquiries on the issues surrounding both the 
     application for a FISA search warrant of accused 
     international terrorist Zacharias Moussaoui's personal 
     property before the 9/11 attacks and the post-9/11 
     implementation of the USA PATRIOT Act. As with all of our FBI 
     oversight, these inquiries were intended to review the 
     performance of the FBI and DOJ in order to improve that 
     performance in the future.
       The Judiciary Committee and its Members also exercised 
     their oversight responsibilities over the DOJ and the FBI 
     implementation of the FISA through written inquiries, written 
     hearing questions, and other informal requests. These efforts 
     included letters to the Attorney General and the FBI Director 
     from Senator Leahy on November 1, 2001, and May 23, 2002, and 
     from Senators Leahy, Specter, and Grassley on June 4, June 
     13, July 3, and July 31, 2002. In addition, these Members 
     sent letters requesting information from the FISA Court and 
     FISA Court of Review on July 16, July 31, and September 9, 
     2002. Such oversight efforts are important on a day-to-day 
     basis because they are often the most efficient means of 
     monitoring the activities of the FBI and DOJ.

                   3. DOJ and FBI non-responsiveness

       Particularly with respect to our FISA oversight efforts, we 
     are disappointed with the non-responsiveness of the DOJ and 
     FBI. Although the FBI and the DOJ have sometimes cooperated 
     with our oversight efforts, often, legitimate requests went 

[[Page S2741]]

     or the DOJ answers were delayed for so long or were so 
     incomplete that they were of minimal use in the oversight 
     efforts of this Committee. The difficulty in obtaining 
     responses from DOJ prompted Senator Specter to ask the 
     Attorney General directly, ``how do we communicate with you 
     and are you really too busy to respond?''
       Two clear examples of such reticence on the part of the DOJ 
     and the FBI relate directly to our FISA oversight efforts. 
     First, Chairman Sensenbrenner and Ranking Member Conyers of 
     the House Judiciary Committee issued a set of 50 questions on 
     June 13, 2002, in order to fulfill the House Judiciary 
     Committee's oversight responsibilities to monitor the 
     implementation of the USA PATRIOT Act, including its 
     amendments to FISA. In connection with the July 25, 2002, 
     oversight hearing with the Attorney General, Chairman Leahy 
     posed the same questions to the Department on behalf of the 
     Senate Judiciary Committee. Unfortunately, the Department 
     refused to respond to the Judiciary Committee with answers to 
     many of these legitimate questions. Indeed, it was only after 
     Chairman Sensenbrenner publicly stated that he would subpoena 
     the material that the Department provided any response at all 
     to many of the questions posed, and to date some questions 
     remain unanswered. Senator Leahy posed a total of 93 
     questions, including the 50 questions posed by the leadership 
     of the House Judiciary Committee. While the DOJ responded to 
     56 of those questions in a series of letters on July 29, 
     August 26, and December 23, 2002, thirty-seven questions 
     remain unanswered. In addition, the DOJ attempted to respond 
     to some of these requests by providing information not to the 
     Judiciary Committees, which had made the request, but to the 
     Intelligence Committees. Such attempts at forum shopping by 
     the Executive Branch are not a productive means of 
     facilitating legitimate oversight.
       Second, the FBI and DOJ repeatedly refused to provide 
     Members of the Judiciary Committee with a copy of the FISA 
     Court's May 17, 2002, opinion rejecting the DOJ's proposed 
     implementation of the USA PATRIOT Act's FISA amendments. This 
     refusal was made despite the fact that the opinion, which was 
     highly critical of aspects of the FBI's past performance on 
     FISA warrants, was not classified and bore directly upon the 
     meaning of provisions in the USA PATRIOT Act authored by 
     Members of the Judiciary Committee. Indeed, the Committee 
     eventually had to obtain the opinion not from the DOJ but 
     directly from the FISA Court, and it was only through these 
     efforts that the public was first made aware of the important 
     appeal being pursued by the DOJ and the legal positions being 
     taken by the Department on the FISA Amendments.
       In both of these instances, and in others, the DOJ and FBI 
     have made exercise of our oversight responsibilities 
       It is our sincere hope that the FBI and DOJ will 
     reconsider their approach to congressional oversight in 
     the future. The Congress and the American people deserve 
     to know what their government is doing. Certainly, the 
     Department should not expect Congress to be a ``rubber 
     stamp'' on its requests for new or expanded powers if 
     requests for information about how the Department has 
     handled its existing powers have been either ignored or 
     summarily paid lip service.


                      A. Overview and Conclusions

       The Judiciary Committee held a series of classified 
     briefings for the purpose of reviewing the processing of FISA 
     applications before the terrorist attacks on September 11, 
     2001. The Judiciary Committee sought to determine whether any 
     problems at the FBI in the processing of FISA applications 
     contributed to intelligence failures before September 11th; 
     to evaluate the implementation of the changes to FISA enacted 
     pursuant to the USA PATRIOT Act; and to determine whether 
     additional legislation is necessary to improve this process 
     and facilitate congressional oversight and public confidence 
     in the FISA and the FBI.
       We specifically sought to determine whether the systemic 
     problems uncovered in our FBI oversight hearings commenced in 
     the summer of 2001 contributed to any shortcomings that may 
     have affected the FBI counterterrorism efforts prior to the 
     9/11 attacks. Not surprisingly, we conclude that they did. 
     Indeed, in many ways the DOJ and FBI's shortcomings in 
     implementing the FISA--including but not limited to the time 
     period before the 9/11 attacks--present a compelling case for 
     both comprehensive FBI reform and close congressional 
     oversight and scrutiny of the justification for any further 
     relaxation of FISA requirements. FISA applications are of the 
     utmost importance to our national security. Our review 
     suggests that the same fundamental problems within the FBI 
     that have plagued the agency in other contexts also prevented 
     both the FBI and DOJ from aggressively pursuing FISA 
     applications in the period before the 9/11 attacks. Such 
     problems caused the submission of key FISA applications to 
     the FISA Court to have been significantly delayed or not 
     made. More specifically, our concerns that the FBI and DOJ 
     did not make effective use of FISA before making demands on 
     the Congress for expanded FISA powers in the USA PATRIOT Act 
     are bolstered by the following findings:
       (1) The FBI and Justice Department were setting too high a 
     standard to establish that there is ``probable cause'' that a 
     person may be an ``agent of a foreign power'' and, therefore, 
     may be subject to surveillance pursuant to FISA;
       (2) FBI agents and key Headquarters officials were not 
     sufficiently trained to understand the meanings of crucial 
     legal terms and standards in the FISA process;
       (3) Prior problems between the FBI and the FISA Court that 
     resulted in the Court barring one FBI agent from appearing 
     before it for allegedly filing inaccurate affidavits may have 
     ``chilled'' the FBI and DOJ from aggressively seeking FISA 
     warrants (although there is some contradictory information on 
     this matter, we will seek to do additional oversight on this 
       (4) FBI Headquarters fostered a culture that stifled rather 
     than supported aggressive and creative investigative 
     initiatives from agents in the field; and
       (5) The FBI's difficulties in properly analyzing and 
     disseminating information in its possession caused it not to 
     seek FISA warrants that it should have sought. These 
     difficulties are due to:
       (a) a lack of proper resources dedicated to intelligence 
       (b) a ``stove pipe'' mentality where crucial intelligence 
     is pigeonholed into a particular unit and may not be shared 
     with other units;
       (c) High turnover of senior agents at FBI Headquarters 
     within critical counterterrorism and foreign intelligence 
       (d) Outmoded information technology that hinders access to, 
     and dissemination of, important intelligence; and
       (e) A lack of training for FBI agents to know how to use, 
     and a lack of requirements that they do use, the technology 
     available to search for and access relevant information.
       We have found that, in combination, all of these factors 
     contributed to the intelligence failures at the FBI prior to 
     the 9/11 attacks.
       We are also conscious of the extraordinary power FISA 
     confers on the Executive branch. FISA contains safeguards, 
     including judicial review by the FISA Court and certain 
     limited reporting requirements to congressional intelligence 
     committees, to ensure that this power is not abused. Such 
     safeguards are no substitute, however, for the watchful 
     eye of the public and the Judiciary Committees, which have 
     broader oversight responsibilities for DOJ and the FBI. In 
     addition to reviewing the effectiveness of the FBI's use 
     of its FISA power, this Committee carries the important 
     responsibility of checking that the FBI does not abuse its 
     power to conduct surveillance within our borders. 
     Increased congressional oversight is important in 
     achieving that goal.
       From the outset, we note that our discussion will not 
     address any of the specific facts of the case against 
     Zacharias Moussaoui that we have reviewed in our closed 
     inquiries. That case is still pending trial, and, no matter 
     how it is resolved, this Committee is not the appropriate 
     forum for adjudicating the allegations in that case. Any of 
     the facts recited in this report that bear on the substance 
     of the Moussaoui case are already in the public record. To 
     the extent that this report contains information we received 
     in closed sessions, that information bears on abstract, 
     procedural issues, and not any substantive issues relating to 
     any criminal or national security investigation or 
     proceeding. This is an interim report of what we have 
     discovered to date. We hope to and should continue this 
     important oversight in the 108th Congress.

         B. Allegations Raised by Special Agent Rowley's Letter

       The Judiciary Committee had initiated its FISA oversight 
     inquiry several months before the revelations in the dramatic 
     letter sent on May 21, 2002, to FBI Director Mueller by 
     Special Agent Coleen Rowley. Indeed, it was this Committee's 
     oversight about the FBI's counterintelligence operations 
     before the 9/11 attacks that in part helped motivate SA 
     Rowley to write this letter to the Director.
       The observations and critiques of the FBI's FISA process in 
     this letter only corroborated problems that the Judiciary 
     Committee was uncovering. In her letter, SA Rowley detailed 
     the problems the Minneapolis agents had in dealing with FBI 
     Headquarters in their unsuccessful attempts to seek a FISA 
     warrant for the search of Moussaoui's lap top computer and 
     other personal belongings. These attempts proved fruitless, 
     and Moussaoui's computer and personal belongings were not 
     searched until September 11th, 2001, when the Minneapolis 
     agents were able to obtain a criminal search warrant after 
     the attacks of that date. According to SA Rowley, with the 
     exception of the fact of those attacks, the information 
     presented in the warrant application establishing probable 
     cause for the criminal search warrant was exactly the same as 
     the facts that FBI Headquarters earlier had deemed inadequate 
     to obtain a FISA search warrant.
       In her letter, SA Rowley raised many issues concerning the 
     efforts by the agents assigned to the Minneapolis Field 
     Office to obtain a FISA search warrant for Moussaoui's 
     personal belongings. Two of the issues she raised were 
     notable. First, SA Rowley corroborated that many of the 
     cultural and management problems within the FBI (including 
     what she referred to as ``careerism'') have significant 
     effects on the FBI's law enforcement and intelligence 
     gathering activities. This led to a perception among the 
     Minneapolis agents that FBI Headquarters personnel had 
     frustrated their efforts to obtain a FISA warrant by raising

[[Page S2742]]

     unnecessary objections to the information submitted by 
     Minneapolis, modifying and removing that information, and 
     limiting the efforts by the Minneapolis Field Office to 
     contact other agencies for relevant information to bolster 
     the probable cause for the warrant. These concerns echoed 
     criticisms that this Committee has heard in other contexts 
     about the culture of FBI management and the effect of the 
     bureaucracy in stifling initiative by FBI agents in the 
       In making this point, SA Rowley provided specific examples 
     of the frustrating delays and roadblocks erected by 
     Headquarters agents in the Moussaoui investigation:
       ``For example at one point, the Supervisory Special Agent 
     at FBIHQ posited that the French information could be 
     worthless because it only identified Zacharias Moussaoui by 
     name and he, the SSA, didn't know how many people by that 
     name existed in France. A Minneapolis agent attempted to 
     surmount that problem by quickly phoning the FBI's Legal 
     Attache (Legat) in Paris, France, so that a check could be 
     made of the French telephone directories. Although the Legat 
     in France did not have access to all of the French telephone 
     directories, he was able to quickly ascertain that there was 
     only one listed in the Paris directory. It is not known if 
     this sufficiently answered the question, for the SSA 
     continued to find new reasons to stall.
       ``Eventually, on August 28, 2001, after a series of e-mails 
     between Minneapolis and FBIHQ, which suggest that the FBIHQ 
     SSA deliberately further undercut the FISA effort by not 
     adding the further intelligence information which he had 
     promised to add that supported Moussaoui's foreign power 
     connection and making several changes in the wording of the 
     information that had been provided by the Minneapolis agent, 
     the Minneapolis agents were notified that the NSLU Unit Chief 
     did not think there was sufficient evidence of Moussaoui's 
     connection to a foreign power. Minneapolis personnel are, to 
     this date, unaware of the specifics of the verbal 
     presentations by the FBIHQ SSA to NSLU or whether anyone in 
     NSLU ever was afforded the opportunity to actually read for 
     him/herself all of the information on Moussaoui that had been 
     gathered by the Minneapolis Division and [redacted; 
     classified]. Obviously[,] verbal presentations are far 
     more susceptible to mis-characterization and error.''
       Even after the attacks had commenced, FBI Headquarters 
     discouraged Minneapolis from securing a criminal search 
     warrant to examine Moussaoui's belongings, dismissing the 
     coordinated attack on the World Trade Center and Pentagon as 
     a coincidence.
       Second, SA Rowley's letter highlighted the issue of the 
     apparent lack of understanding of the applicable legal 
     standards for establishing ``probable cause'' and the 
     requisite statutory FISA requirements by FBI personnel in the 
     Minneapolis Division and at FBI Headquarters. This issue will 
     be discussed in more detail below.

                      C. Results of Investigation

          1. The Mishandling of the Moussaoui FISA Application

       Apart from SA Rowley's letter and her public testimony, the 
     Judiciary Committee and its staff found additional 
     corroboration that many of her concerns about the handling of 
     the Moussaoui FISA application for a search warrant were 
       At the outset, it is helpful to review how Headquarters 
     ``adds value'' to field offices in national security 
     investigations using FISA surveillance tools. Headquarters 
     has three functions in such investigations. The first 
     function is the ministerial function of actually assembling 
     the FISA application in the proper format for review by the 
     DOJ's Office of Intelligence Policy and Review OIPR and the 
     FISA Court. The other two functions are more substantive and 
     add ``value'' to the FISA application. The first substantive 
     function is to assist the field by being experts on the legal 
     aspects of FISA, and to provide guidance to the field as to 
     the information needed to meet the statutory requirements of 
     FISA. The second function is to supplement the information 
     from the field in order to establish or strengthen the 
     showing that there is ``probable cause'' that the FISA target 
     was an ``agent of a foreign power,'' by integrating 
     additional relevant intelligence information both from within 
     the FBI and from other intelligence or law enforcement 
     organizations outside the FBI. It is with respect to the 
     latter, substantive functions that Headquarters fell short in 
     the Moussaoui FISA application and, as a consequence, never 
     got to the first, more ministerial, function.
       Our investigation revealed that the following events 
     occurred in connection with this FISA application. We 
     discovered that the Supervisory Special Agent (SSA) involved 
     in reviewing the Moussaoui FISA request was assigned to the 
     Radical Fundamentalist Unit (RFU) of the International 
     Terrorism Operations Section of the FBI's Counterterrorism 
     Division. The Unit Chief of the RFU was the SSA's immediate 
     supervisor. When the Minneapolis Division submitted its 
     application for the FISA search warrant for Moussaoui's 
     laptop computer and other property, the SSA was assigned the 
     responsibility of processing the application for approval. 
     Minneapolis submitted its application for the FISA warrant in 
     the form of a 26-page Electronic Communication (EC), which 
     contained all of the information that the Minneapolis agents 
     had collected to establish that Moussaoui was an agent of a 
     foreign power at the time. The SSA's responsibilities 
     included integrating this information submitted by the 
     Minneapolis division with information from other sources that 
     the Minneapolis agents were not privy to, in order to 
     establish there was probable cause that Moussaoui was an 
     agent of a foreign power. In performing this fairly 
     straightforward task, FBI Headquarters personnel failed 
     miserably in at least two ways.
       First, most surprisingly, the SSA never presented the 
     information submitted by Minneapolis and from other sources 
     in its written, original format to any of the FBI's attorneys 
     in the National Security Law Unit (NSLU). The Minneapolis 
     agents had submitted their information in the 26-page EC and 
     a subsequent letterhead memorandum (LHM), but neither was 
     shown to the attorneys. Instead, the SSA relied on short, 
     verbal briefings to the attorneys, who opined that based on 
     the information provided verbally by the SSA they could not 
     establish that there was probable cause that Moussaoui was an 
     agent of a foreign power. Each of the attorneys in the NSLU 
     stated they did not receive documents on the Moussaoui FISA, 
     but instead only received a short, verbal briefing from the 
     SSA. As SA Rowley noted, however, ``verbal presentations are 
     far more susceptible to mis-characterization and error.''
       The failure of the SSA to provide the 26-page Minneapolis 
     EC and the LHM to the attorneys, and the failure of the 
     attorneys to review those documents, meant that the 
     consideration by Headquarters officials of the evidence 
     developed by the Minneapolis agents was truncated. The 
     Committee has requested, but not yet received, the full 26-
     page Minneapolis EC (even, inexplicably, in a classified 
       Second, the SSA's task was to help bolster the work of the 
     Minneapolis agents and collect information that would 
     establish probable cause that a ``foreign power'' existed, 
     and that Moussaoui was its ``agent.'' Indeed, sitting in the 
     FBI computer system was the Phoenix memorandum, which senior 
     FBI officials have conceded would have provided sufficient 
     additional context to Moussaoui's conduct to have established 
     probable cause. (Joint Inquiry Hearing, Testimony of Eleanor 
     Hill, Staff Director, September 24, 2002, p. 19: ``The [FBI] 
     attorneys also told the Staff that, if they had been aware of 
     the Phoenix memo, they would have forwarded the FISA request 
     to the Justice Department's Office of Intelligence Policy 
     Review (OIPR). They reasoned that the particulars of the 
     Phoenix memo changed the context of the Moussaoui 
     investigation and made a stronger case for the FISA warrant. 
     None of them saw the Phoenix memo before September 11.'') 
     Yet, neither the SSA nor anyone else at Headquarters 
     consulted about the Moussaoui application ever conducted any 
     computer searches for electronic or other information 
     relevant to the application. Even the much touted ``Woods 
     Procedures'' governing the procedures to be followed by FBI 
     personnel in preparing FISA applications do not require 
     Headquarters personnel to conduct even the most basic subject 
     matter computer searches or checks as part of the preparation 
     and review of FISA applications.

                          2. General Findings.

       We found that key FBI personnel involved in the FISA 
     process were not properly trained to carry out their 
     important duties. In addition, we found that the structural, 
     management, and resource problems plaguing the FBI in general 
     contributed to the intelligence failures prior to the 9/11 
     attacks. (The Joint Inquiry by the Senate and House Select 
     Committee on Intelligence similarly concluded that the FBI 
     needs to ``establish and sustain independent career tracks 
     within the FBI that recognize and provide incentives for 
     demonstrated skills and performance of counterterrorism 
     agents and analysts; . . . implement training for agents in 
     the effective use of analysts and analysis in their 
     work;?improve national security law training of FBI 
     personnel;?and finally solve the FBI's persistent and 
     incapacitating information technology problems.'' (Final 
     Report, Recommendations, p. 6).) Following are some of the 
     most salient facts supporting these conclusions.
       First, key FBI personnel responsible for protecting our 
     country against terrorism did not understand the law. The SSA 
     at FBI Headquarters responsible for assembling the facts in 
     support of the Moussaoui FISA application testified before 
     the Committee in a closed hearing that he did not know that 
     ``probable cause'' was the applicable legal standard for 
     obtaining a FISA warrant. In addition, he did not have a 
     clear understanding of what the probable cause standard 
     meant. The SSA was not a lawyer, and he was relying on FBI 
     lawyers for their expertise on what constituted probable 
     cause. In addition to not understanding the probable cause 
     standard, the SSA's supervisor (the Unit Chief) 
     responsible for reviewing FISA applications did not have a 
     proper understanding of the legal definition of the 
     ``agent of a foreign power'' requirement. Specifically, he 
     was under the incorrect impression that the statute 
     required a link to an already identified or ``recognized'' 
     terrorist organization, an interpretation that the FBI and 
     the supervisor himself admitted was incorrect. Thus, key 
     FBI officials did not have a proper understanding of 
     either the relevant burden of proof (probable cause) or 
     the substantive element of proof (agent of a foreign 
     power). This fundamental breakdown in training on an 
     important intelligence matter is of serious concern to 
     this Committee.

[[Page S2743]]

       Second, the complaints contained in the Rowley letter about 
     problems in the working relationship between field offices 
     and FBI Headquarters are more widespread. There must be a 
     dynamic relationship between Headquarters and field offices 
     with Headquarters providing direction to the efforts of 
     agents in the field when required. At the same time, 
     Headquarters personnel should serve to support field agents, 
     not to stifle initiative by field agents and hinder the 
     progress of significant cases. The FBI's Minneapolis office 
     was not alone in this complaint. Our oversight also confirmed 
     that agents from the FBI's Phoenix office, whose 
     investigation and initiative resulted in the so-called 
     ``Phoenix Memorandum,'' warning about suspicious activity in 
     U.S. aviation schools, also found their initiative dampened 
     by a non-responsive FBI Headquarters.
       So deficient was the FISA process that, according to at 
     least one FBI supervisor, not only were new applications not 
     acted upon in a timely manner, but the surveillance of 
     existing targets of interest was often terminated, not 
     because the facts no longer warranted surveillance, but 
     because the application for extending FISA surveillance could 
     not be completed in a timely manner. Thus, targets that 
     represented a sufficient threat to national security that the 
     Department had sought, and a FISA Court judge had approved, a 
     FISA warrant were allowed to break free of surveillance for 
     no reason other than the FBI and DOJ's failure to complete 
     and submit the proper paper work. This failure is 
       Third, systemic management problems at FBI Headquarters led 
     to a lack of accountability among senior FBI officials. A 
     revolving door at FBI Headquarters resulted in agents who 
     held key supervisory positions not having the required 
     specialized knowledge to perform their jobs competently. A 
     lack of proper communication produced a system where no 
     single person was held accountable for mistakes. Therefore, 
     there was little or no incentive to improve performance. 
     Fourth, the layers of FBI and DOJ bureaucracy also helped 
     lead to breakdowns in communication and serious errors in the 
     materials presented to the FISA Court. The Committee learned 
     that in the year before the Moussaoui case, one FBI 
     supervisor was barred from appearing before the FISC due to 
     inaccurate information presented in sworn affidavits to the 
     Court. DOJ explained in a December 23, 2002, response to 
     written questions from the July 25, 2002, oversight hearing 
       ``One FBI supervisory special agent has been barred from 
     appearing before the Court. In March of 2001, the government 
     informed the Court of an error contained in a series of FISA 
     applications. This error arose in the description of a 
     ``wall'' procedure. The Presiding Judge of the Court at the 
     time, Royce Lamberth, wrote to the Attorney General 
     expressing concern over this error and barred one 
     specifically-named FBI agent from appearing before the Court 
     as a FISA affiant. . . . FBI Director Freeh personally met 
     twice with then-Presiding Judge Lamberth to discuss the 
     accuracy problems and necessary solutions.''
       As the Committee later learned from review of the FISA 
     Court's May 17, 2002, opinion, that Court had complained of 
     75 inaccuracies in FISA affidavits submitted by the FBI, and 
     the DOJ and FBI had to develop new procedures to ensure 
     accuracy in presentations to that Court. These so-called 
     ``Woods Procedures'' were declassified at the request of the 
     authors and were made publicly available at the Committee's 
     hearing on June 6, 2002. As DOJ further explained in its 
     December 23, 2002, answers to written questions submitted on 
     July 25, 2002:
       ``On April 6, 2001, the FBI disseminated to all field 
     divisions and relevant Headquarters divisions a set of new 
     mandatory procedures to be applied to all FISAs within the 
     FBI. These procedures known as the ``Woods procedures,'' are 
     designed to help minimize errors in and ensure that the 
     information provided to the Court is accurate. . .  They have 
     been declassified at the request of your Committee.''
       DOJ describes the inaccuracies cited in the FISA Court 
     opinion as related to ``errors in the `wall' procedure'' to 
     keep separate information used for criminal prosecution and 
     information collected under FISA and used for foreign 
     intelligence. However, this does not appear to be the only 
     problem the FBI and DOJ were having in the use of FISA.
       An FBI document obtained under the Freedom of Information 
     Act, which is attached to this report as Exhibit D, suggests 
     that the errors committed were far broader. The document is a 
     memorandum dated April 21, 2000, from the FBI's 
     Counterterrorism Division, that details a series of 
     inaccuracies and errors in handling FISA applications and 
     wiretaps that have nothing whatsoever to do with the 
     ``wall.'' Such mistakes included videotaping a meeting when 
     videotaping was not allowed under the relevant FISA Court 
     order, continuing to intercept a person's email after there 
     was no authorization to do so, and continuing a wiretap on a 
     cell phone even after the phone number had changed to a new 
     subscriber who spoke a different language from the target.
       This document highlights the fact apart from the problems 
     with applications made to the FISC, that the FBI was 
     experiencing more systemic problems related to the 
     implementation of FISA orders. These issues were unrelated to 
     the legal questions surrounding the ``wall,'' which was in 
     effect long before 1999. The document notes that the number 
     of inaccuracies grew by three-and-one-half times from 1999 to 
     2000. We recommend that additional efforts to correct the 
     procedural, structural, and training problems in the FISA 
     process would go further toward ensuring accuracy in the FISA 
     process than simply criticizing the state of the law.
       One legitimate question is whether the problems inside the 
     FBI and between the FBI and the FISA Court either caused FBI 
     Headquarters to be unduly cautious in proposing FISA warrants 
     or eroded the FISA Court's confidence in the DOJ and the FBI 
     to the point that it affected the FBI's ability to conduct 
     terrorism and intelligence investigations effectively. SA 
     Rowley opines in her letter that in the year before ``the 
     September 11th acts of terrorism, numerous alleged IOB 
     [Intelligence Oversight Board] violations on the part of FBI 
     personnel had to be submitted to the FBI's Office of 
     Professional Responsibility (OPR) as well as the IOB. I 
     believe the chilling effect upon all levels of FBI agents 
     assigned to intelligence matters and their managers hampered 
     us from aggressive investigation of terrorists.'' (Rowley 
     letter, pp. 7-8, fn. 7). Although the belated release of the 
     FISA Court's opinion of May 17, 2002, provided additional 
     insight into this issue, further inquiry is needed.
       Fifth, the FBI's inability to properly analyze and 
     disseminate information (even from and between its own 
     agents) rendered key information that it collected relatively 
     useless. Had the FBI put together the disparate strands of 
     information that agents from around the country had furnished 
     to Headquarters before September 11, 2001, additional steps 
     could certainly have been taken to prevent the 9/11 attacks. 
     So, while no one can say with certainty that the 9/11 attacks 
     could have been prevented, in our view, it is also beyond 
     reasonable dispute that more could have been done in the 
     weeks before the attacks to try to prevent them.
       Certain of our findings merit additional discussion, and 
     such discussion follows.

  3. FBI's Misunderstanding of Legal Standards Applicable to the FISA

      a. The FISA Statutory Standard: ``Agent of a Foreign Power''

       In order to obtain either a search warrant or an 
     authorization to conduct electronic surveillance pursuant to 
     FISA, the FBI and Justice Department must establish before 
     the FISA Court probable cause that the targeted person is an 
     ``agent of a foreign power.'' An agent of a foreign power is 
     defined as ``any person who . . . knowingly aids or abets any 
     person in the conduct of [certain] activities.'' Those 
     certain activities include ``international terrorism,'' and 
     one definition of ``foreign power'' includes groups that 
     engage in international terrorism. Accordingly, in the 
     Moussaoui case, to obtain a FISA warrant the FBI had to 
     collect only enough evidence to establish that there was 
     ``probable cause'' to believe that Moussaoui was the 
     ``agent'' of an ``international terrorist group'' as defined 
     by FISA.
       However, even the FBI agents who dealt most with FISA did 
     not correctly understand this requirement. During a briefing 
     with Judiciary Committee staff in February 2002, the 
     Headquarters counterterrorism Unit Chief of the unit 
     responsible for handling the Moussaoui FISA application 
     stated that with respect to international terrorism cases, 
     FISA warrants could only be obtained for ``recognized'' 
     terrorist groups (presumably those identified by the 
     Department of State or by the FBI itself or some other 
     government agency). The Unit Chief later admitted that he 
     knew that this was an incorrect understanding of the law, but 
     it was his understanding at the time the application was 
     pending. Additionally, during a closed hearing on July 9, 
     2002, the Supervisory Special Agent (``SSA'') who actually 
     handled the Moussaoui FISA application at Headquarters also 
     mentioned that he was trying to establish whether Moussaoui 
     was an ``agent of a recognized foreign power''.
       Nowhere, however, does the statutory definition require 
     that the terrorist group be an identified organization that 
     is already recognized (such as by the United States 
     Department of State) as engaging in terrorist activities. 
     Indeed, even the FBI concedes this point. Thus, there was no 
     support whatsoever for key FBI officials' incorrect 
     understanding that the target of FISA surveillance must be 
     linked to such an identified group in the time before 9/
     11. This misunderstanding colored the handling of requests 
     from the field to conduct FISA surveillance in the crucial 
     weeks before the 9/11 attacks. Instead of supporting such 
     an application, key Headquarters personnel asked the field 
     agents working on this investigation to develop additional 
     evidence to prove a fact that was unnecessary to gain 
     judicial approval under FISA. It is difficult to 
     understand how the agents whose job included such a heavy 
     FISA component could not have understood that statute. It 
     is difficult to understand how the FBI could have so 
     failed its own agents in such a crucial aspect of their 
       The Headquarters personnel misapplied the FISA 
     requirements. In the context of this case, the foreign power 
     would be an international terrorist group, that is, ``a group 
     engaged in international terrorism or activities in 
     preparation therefore.'' A ``group'' is not defined in the 
     FISA, but in common parlance, and using other legal 
     principles, including criminal conspiracy, a group consists 
     of two or more persons whether identified or not. It is our 
     opinion that such a ``group''

[[Page S2744]]

     may exist, even if not a group ``recognized'' by the 
     Department of State.
       The SSA's other task would be to help marshal evidence 
     showing probable cause that Moussaoui was an agent of that 
     group. In applying the ``totality of the circumstances,'' as 
     defined in the case of Illinois v. Gates, 462 U.S. 213 
     (1983), any information available about Moussaoui's ``actual 
     contacts'' with the group should have been considered in 
     light of other information the FBI had in order to understand 
     and establish the true probable nature of those contacts. 
     (The Supreme Court's leading case on probable cause; it is 
     discussed in more detail in the next section of this report.) 
     It is only with consideration of all the information known to 
     the FBI that Moussaoui's contacts with any group could be 
     properly characterized in determining whether he was an agent 
     of such a group.
       In making this evaluation, the fact, as recited in the 
     public indictment, that Moussaoui ``paid $6,800 in cash'' to 
     the Minneapolis flight school, without adequate explanation 
     for the source of this funding, would have been a highly 
     probative fact bearing on his connections to foreign groups. 
     Yet, it does not appear that this was a fact that the FBI 
     Headquarters agents considered in analyzing the totality of 
     the circumstances. The probable source of that cash should 
     have been a factor that was considered in analyzing the 
     totality of the circumstances. So too would the information 
     in the Phoenix memorandum have been helpful. It also was not 
     considered, as discussed further below. In our view, the FBI 
     applied too cramped an interpretation of probable cause and 
     ``agent of a foreign power'' in making the determination of 
     whether Moussaoui was an agent of a foreign power. FBI 
     Headquarters personnel in charge of reviewing this 
     application focused too much on establishing a nexus between 
     Moussaoui and a ``recognized'' group, which is not legally 
     required. Without going into the actual evidence in the 
     Moussaoui case, there appears to have been sufficient 
     evidence in the possession of the FBI which satisfied the 
     FISA requirements for the Moussaoui application. Given this 
     conclusion, our primary task is not to assess blame on 
     particular agents, the overwhelming majority of whom are to 
     be commended for devoting their lives to protecting the 
     public, but to discuss the systemic problems at the FBI that 
     contributed to their inability to succeed in that endeavor.

                     b. The Probable Cause Standard

       i. Supreme Court's Definition of ``Probable Cause''.--
     During the course of our investigation, the evidence we have 
     evaluated thus far indicates that both FBI agents and FBI 
     attorneys do not have a clear understanding of the legal 
     standard for probable cause, as defined by the Supreme Court 
     in the case of Illinois v. Gates, 462 U.S. 213 (1983). This 
     is such a basic legal principle that, again, it is impossible 
     to justify the FBI's lack of complete and proper training on 
     it. In Gates, then-Associate Justice Rehnquist wrote for the 
       ``Standards such as proof beyond a reasonable doubt or by a 
     preponderance of the evidence, useful in formal trials, have 
     no place in the magistrate's decision. While an effort to fix 
     some general, numerically precise degree of certainty 
     corresponding to ``probable cause'' may not be helpful, it is 
     clear that ``only the probability, and not a prima facie 
     showing, of criminal activity is the standard of probable 
     cause.'' (462 U.S. at 236 (citations omitted.)
       The Court further stated:
       For all these reasons, we conclude that it is wiser to 
     abandon the ``twopronged test'' established by our decisions 
     in Aguilar and Spinelli. In its place we reaffirm the 
     totality of the circumstances analysis that traditionally has 
     informed probable cause determinations. The task of the 
     issuing magistrate is simply to make a practical, common-
     sense decision whether, given all the circumstances set 
     forth in the affidavit before him, including the 
     ``veracity'' and ``basis of knowledge'' of persons 
     supplying hearsay information, there is a fair probability 
     that contraband or evidence of a crime will be found in a 
     particular place. And the duty of a reviewing court is 
     simply to ensure that the magistrate had a ``substantial 
     basis for . . . conclud[ing]'' that probable cause 
     existed. We are convinced that this flexible, easily 
     applied standard will better achieve the accommodation of 
     public and private interests that the Fourth Amendment 
     requires than does the approach that has developed from 
     Aguilar and Spinelli.''
     Accordingly, it is clear that the Court rejected 
     ``preponderance of the evidence'' as the standard for 
     probable cause and established a standard of ``probability'' 
     based on the ``totality of the circumstances.''
       ii. The FBI's Unnecessarily High Standard for Probable 
     Cause.--Unfortunately, our review has revealed that many 
     agents and lawyers at the FBI did not properly understand the 
     definition of probable cause and that they also possessed 
     inconsistent understandings of that term. In the portion of 
     her letter to Director Mueller discussing the quantum of 
     evidence needed to reach the standard of probable cause, SA 
     Rowley wrote that ``although I thought probable cause existed 
     (`probable cause' meaning that the proposition has to be more 
     likely than not, or if quantified, a 51% likelihood), I 
     thought our United States Attorney's Office, (for a lot of 
     reasons including just to play it safe), in regularly 
     requiring much more than probable cause before approving 
     affidavits, (maybe, if quantified, 75%-80% probability and 
     sometimes even higher), and depending upon the actual AUSA 
     who would be assigned, might turn us down.'' The Gates case 
     and its progeny do not require an exacting standard of proof. 
     Probable cause does not mean more likely than not, but only a 
     probability or substantial chance of the prohibited conduct 
     taking place. Moreover, ``[t]he fact that an innocent 
     explanation may be consistent with the facts alleged . . . 
     does not negate probable cause.''
       On June 6, 2002, the Judiciary Committee held an open 
     hearing on the FBI's conduct of counterterrorism 
     investigations. The Committee heard from Director Mueller and 
     DOJ Inspector General Glenn Fine on the first panel and from 
     SA Rowley on the second panel. The issue of the probable 
     cause standard was specifically raised with Director Mueller, 
     citing the case of Illinois v. Gates, and Director Mueller 
     was asked to comment in writing on the proper standard was 
     asked for establishing probable cause. The FBI responded in 
     an undated letter to Senator Specter and with the subsequent 
     transmission of an electronic communication (E.C.) dated 
     September 16, 2002. In the E.C., the FBI's General Counsel 
     reviewed the case law defining ``probable cause,'' in order 
     to clarify the definition of probable cause for FBI personnel 
     handling both criminal investigations and FISA applications.
       At the June 6th hearing, SA Rowley reviewed her discussion 
     of the probable cause standard in her letter. During that 
     testimony three issues arose. First, by focusing on the 
     prosecution of a potential case, versus investigating a case, 
     law enforcement personnel, both investigators and 
     prosecutors, may impose on themselves a higher standard than 
     necessary to secure a warrant. This prosecution focus is one 
     of the largest hurdles that the FBI is facing as it tries to 
     change its focus from crime fighting to the prevention of 
     terrorist attacks. It is symptomatic of a challenge facing 
     the FBI and DOJ in nearly every aspect of their new mission 
     in preventing terrorism. Secondly, prosecutors, in gauging 
     what amount of evidence reaches the probable cause standard, 
     may calibrate their decision to meet the de facto standard 
     imposed by the judges, who may be imposing a higher standard 
     than is required by law. Finally, SA Rowley opined that some 
     prosecutors and senior FBI officials may set a higher 
     standard due to risk-averseness, which is caused by 
       SA Rowley's testimony was corroborated in our other 
     hearings. During a closed hearing, in response to the 
     following questions, a key Headquarters SSA assigned to 
     terrorism matters stated that he did not know the legal 
     standard for obtaining a warrant under FISA.
       ``Sen. Specter: . . . [SSA], what is your understanding of 
     the legal standard for a FISA warrant?
       [SSA]: I am not an attorney, so I would turn all of those 
     types of questions over to one of the attorneys that I work 
     with in the National Security Law Unit.
       Question: Well, did you make the preliminary determination 
     that there was not sufficient facts to get a FISA warrant 
       [SSA]: That is the way I saw it.
       Question: Well, assuming you would have to prove there was 
     an agent and there was a foreign power, do you have to prove 
     it beyond a reasonable doubt? Do you have to have a 
     suspicion? Where in between?
       [SSA]: I would ask my attorney in the National Security Law 
     Unit that question.
       Question: Did anybody give you any instruction as to what 
     the legal standard for probable cause was?
       [SSA]: In this particular instance, no.''
       The SSA explained that he had instruction on probable cause 
     in the past, but could not recall that training. It became 
     clear to us that the SSA was collecting information without 
     knowing when he had enough and, more importantly, making 
     ``preliminary'' decisions and directing field agents to take 
     investigating steps without knowing the applicable legal 
     standards. While we agree that FBI agents and supervisory 
     personnel should consult regularly with legal experts at the 
     National Security Law Unit, and with the DOJ and U.S. 
     Attorneys Offices, supervisory agents must also have 
     sufficient facility for evaluating probable cause in order to 
     provide support and guidance to the field.
       Unfortunately, our oversight revealed a similar confusion 
     as to the proper standard among other FBI officials. On July 
     9, 2002, the Committee held a closed session on this issue, 
     and heard from the following FBI personnel: Special Agent 
     ``G,'' who had been a counterterrorism supervisor in the 
     Minneapolis Division of the FBI and worked with SA Rowley; 
     the Supervisory Special Agent (``the SSA'') from FBI 
     Headquarters referred to in SA Rowley's letter (and referred 
     to the discussion above); the SSA's Unit Chief (``the Unit 
     Chief''); a very senior attorney from the FBI's Office of 
     General Counsel with national security responsibilities 
     (``Attorney #1''); and three attorneys assigned to the FBI's 
     Office of General Counsel's National Security Law Unit 
     (``Attorney #2,'' ``Attorney #3,'' and ``Attorney #4''). The 
     purpose of the session was to determine how the Moussaoui 
     FISA application had been processed by FBI Headquarters 
     personnel. None of the personnel present, including the 
     attorneys, appeared to be familiar with the standard for 
     probable cause articulated in Illinois v. Gates, and none had 
     reviewed the case prior to the hearing, despite its 
     importance having been highlighted at the June 6th hearing 
     with the FBI Director. To wit:

[[Page S2745]]

       Sen. Specter: . . .  [Attorney #1] what is the legal 
     standard for probable cause for a warrant?
       [Attorney #1]: A reasonable belief that the facts you are 
     trying to prove are accurate.
       Question: Reason to believe?
       [Attorney #1]: Reasonable belief.
       Question: Reasonable belief?
       [Attorney #1]: More probable than not.
       Question: More probable than not?
       [Attorney #1]: Yes, sir. Not a preponderance of the 
       Question: Are you familiar with ``Gates v. Illinois''?
       [Attorney #1]: No, sir.
       However, ``more probable than not'' is not the standard; 
     rather, ``only the probability, and not a prima facie 
     showing, of criminal activity is the standard of probable 
     cause.'' (Gates, 462 U.S. at 36 (citations omitted). )
       Similarly, Attorneys #2, #3, and #4 were also not familiar 
     with Gates. Under further questioning, Attorney #1 conceded 
     that the FBI, at that time, did not have written procedures 
     concerning the definition of ``probable cause'' in FISA 
     cases: ``On the FISA side of the house I don't think we have 
     any written guidelines on that.'' Additionally, Attorney #1 
     stated that ``[w]e need to have some kinds of facts that an 
     agent can swear to a reasonable belief that they are true,'' 
     to establish that a person is an agent of a foreign power. 
     Giving a precise definition of probable cause is not an easy 
     task, as whether probable cause exists rests on factual and 
     practical considerations in a particular context. Yet, even 
     with the inherent difficulty in this standard we are 
     concerned that senior FBI officials offered definitions that 
     imposed heightened proof requirements. The issue of what is 
     required for ``probable cause'' is especially troubling 
     because it is not the first time that the issue had arisen 
     specifically in the FISA context. Indeed, the Judiciary 
     Committee confronted the issue of ``probable cause'' in the 
     FISA context in 1999, when the Committee initiated oversight 
     hearings of the espionage investigation of Dr. Wen Ho Lee. 
     Among the many issues examined was whether there was probable 
     cause to obtain FISA surveillance of Dr. Lee. In that case, 
     there was a disagreement as to whether probable cause existed 
     between the FBI and the DOJ, within the DOJ, and among 
       In 1999, Attorney General Janet Reno commissioned an 
     internal DOJ review of the Wen Ho Lee investigation. The 
     Attorney General's Review Team on the Handling of the Los 
     Alamos National Laboratory Investigation was headed by 
     Assistant United States Attorney Randy I. Bellows, a Senior 
     Litigation Counsel in the Office of the United States 
     Attorney for the Eastern District of Virginia. Mr. Bellows 
     submitted his exhaustive report on May 12, 2000 (the 
     ``Bellows Report''), and made numerous findings of fact and 
     recommendations. With respect to the issue of probable cause, 
     Mr. Bellows concluded that:
       ``The final draft FISA application (Draft #3), on its face, 
     established probable cause to believe that Wen Ho Lee was an 
     agent of a foreign power, that is to say, a United States 
     person currently engaged in clandestine intelligence 
     gathering activities for or on behalf of the PRC which 
     activities involved or might involve violations of the 
     criminal laws of the United States . . . . Given what the FBI 
     and OIPR knew at the time, it should have resulted in the 
     submission of a FISA application, and the issuance of a FISA 
       The Bellows team concluded that OIPR had been too 
     conservative with the Wen Ho Lee FISA application, a 
     conservatism that may continue to affect the FBI's and DOJ's 
     handling of FISA applications. The team found that with 
     respect to OIPR's near-``perfect record'' before the FISA 
     Court (only one FISA rejection), ``[w]hile there is something 
     almost unseemly in the use of such a remarkable track record 
     as proof of error, rather than proof of excellence, it is 
     nevertheless true that this record suggests the use of `PC+,' 
     an insistence on a bit more than the law requires.''
       The Bellows team made another finding of particular 
     pertinence to the instant issue. It found that ``[t]he 
     Attorney General should have been apprised of any rejection 
     of a FISA request . . . .'' In effect, FBI Headquarters 
     rejected the Minneapolis Division's request for a FISA 
     application, a decision that was not reported to then Acting 
     Director Thomas Pickard. Director Mueller has adopted a new 
     policy, not formally recorded in writing, that he be informed 
     of the denial within the FBI of any request for a FISA 
     application. However, in an informal briefing the weekend 
     after this new policy was publicly announced, the FBI lawyer 
     whom it most directly affected claimed to know nothing of the 
     new ``policy'' beyond what he had read in the newspaper. From 
     an oversight perspective, it is striking that the FBI and DOJ 
     were effectively on notice regarding precisely this issue: 
     that the probable cause test being applied in FISA 
     investigations was more stringent than legally required. We 
     appreciate the carefulness and diligence with which the 
     professionals at OIPR and the FBI exercise their duties in 
     processing FISA applications, which normally remain secret 
     and immune from the adversarial scrutiny to which criminal 
     warrants are subject. Yet, this persistent problem has two 
     serious repercussions. First, the FBI and DOJ appear to be 
     failing to take decisive action to provide in-depth training 
     to agents and lawyers on an issue of the utmost national 
     importance. We simply cannot continue to deny or ignore such 
     training flaws only to see them repeated in the future.
       Second, when the DOJ and FBI do not apply or use the FISA 
     as fully or comprehensively as the law allows, pressure is 
     brought on the Congress to change the statute in ways that 
     may not be at all necessary. From a civil liberties 
     perspective, the high-profile investigations and cases in 
     which the FISA process appears to have broken down is too 
     easily blamed on the state of the law rather than on 
     inadequacies in the training of those responsible for 
     implementing the law. The reaction on the part of the DOJ and 
     FBI has been to call upon the Congress to relax FISA 
     standards rather than engage in the more time-consuming 
     remedial task of reforming the management and process to make 
     it work better. Many times such ``quick legislative fixes'' 
     are attractive on the surface, but only operate as an excuse 
     to avoid correcting more fundamental problems.

 4. The Working Relationship Between FBI Headquarters and Field Offices

       Our oversight revealed that on more than one occasion FBI 
     Headquarters was not sufficiently supportive of agents in the 
     field who were exercising their initiative in an attempt to 
     carry out the FBI's mission. While at least some of this is 
     due to resource and staffing shortages, which the current 
     Director is taking action to address, there are broader 
     issues involved as well. Included in these is a deep-rooted 
     culture at the FBI that makes an assignment to Headquarters 
     unattractive to aggressive field agents and results in an 
     attitude among many who do work at Headquarters that is not 
     supportive of the field.
       In addition to these cultural problems at the FBI, we 
     conclude that there are also structural and management 
     problems that contribute to the FBI's shortcomings as 
     exemplified in the implementation of the FISA. Personnel are 
     transferred in and out of key Headquarters jobs too quickly, 
     so that they do not possess the expertise necessary to carry 
     out their vital functions. In addition, the multiple layers 
     of supervision at Headquarters have created a bureaucratic 
     FBI that either will not or cannot respond quickly enough to 
     time-sensitive initiatives from the field. We appreciate that 
     the FBI has taken steps to cut through some of this 
     bureaucracy by requiring OIPR attorneys to have direct 
     contact with field agents working on particular cases.
       In addition to hampering the implementation of FISA, these 
     are problems that the Judiciary Committee has witnessed 
     replayed in other contexts within the FBI. These root causes 
     must be addressed head on, so that Headquarters personnel at 
     the FBI view their jobs as supporting talented and aggressive 
     field agents.
       The FBI has a key role in the FISA process. Under the 
     system designed by the FBI, a field agent and his field 
     supervisors must negotiate a series of bureaucratic levels in 
     order to even ask for a FISA warrant. The initial 
     consideration of a FISA application and evaluation of whether 
     statutory requirements are met is made by Supervisory Special 
     Agents who staff the numerous Headquarters investigative 
     units. These positions are critical and sensitive by their 
     very nature. No application can move forward to the attorneys 
     in the FBI's National Security Law Unit (NSLU) for further 
     consideration unless the unit SSA says so. In addition, no 
     matter may be forwarded to the DOJ lawyers at the OIPR 
     without the approval of the NSLU. These multiple layers of 
     review are necessary and prudent but take time.
       The purpose of having SSAs in the various counterterrorism 
     units is so that those personnel may bring their experience 
     and skill to bear to bolster and enhance the substance of 
     applications sent by field offices. A responsible SSA will 
     provide strategic guidance to the requesting field division 
     and coordinate the investigative activities and efforts 
     between FBI Headquarters and that office, in addition to the 
     other field divisions and outside agencies involved in the 
     investigation. This process did not work well in the 
     Moussaoui case.
       Under the FBI's system, an effective SSA should thoroughly 
     brief the NSLU and solicit its determination on the adequacy 
     of any application within a reasonable time after receipt. In 
     ``close call'' investigations, we would expect the NSLU 
     attorneys to seek to review all written information forwarded 
     by the field office rather than rely on brief oral briefings. 
     In the case of the Moussaoui application forwarded from 
     Minneapolis, the RFU SSA merely provided brief, oral 
     briefings to NSLU attorneys and did not once provide that 
     office with a copy of the extensive written application for 
     their review. An SSA should also facilitate communication 
     between the OIPR, the NSLU, and those in the field doing the 
     investigation and constructing the application. That also did 
     not occur in this case.
       By its very nature, having so many players involved in the 
     process allows internal FBI finger-pointing with little or no 
     accountability for mistakes. The NSLU can claim, as it does 
     here, to have acquiesced to the factual judgment of the SSAs 
     in the investigative unit. The SSAs, in turn, claim that they 
     have received no legal training or guidance and rely on the 
     lawyers at the NSLU to make what they term as legal 
     decisions. The judgment of the agents in the field, who are 
     closest to the facts of the case, is almost completely 
       Stuck in this confusing, bureaucratic maze, the seemingly 
     simple and routine business practices within key Headquarters 

[[Page S2746]]

     were flawed. As we note above, even routine renewals on 
     already existing FISA warrants were delayed or not obtained 
     due to the lengthy delays in processing FISA applications.

       5. The Mishandling of the Phoenix Electronic Communication

       The handling of the Phoenix EC represents another prime 
     example of the problems with the FBI's FISA system as well as 
     its faulty use of information technology. The EC contained 
     information that was material to the decision whether or not 
     to seek a FISA warrant in the Moussaoui case, but it was 
     never considered by the proper people. Even though the RFU 
     Unit Chief himself was listed as a direct addressee on the 
     Phoenix EC (in addition to others within the RFU and other 
     counterterrorism Units at FBI Headquarters), he claims that 
     he never even knew of the existence of such an EC until the 
     FBI's Office of Professional Responsibility (OPR) contacted 
     him months after the 9/11 attacks. Even after this 
     revelation, the Unit Chief never made any attempt to notify 
     the Phoenix Division (or any other field Division) that he 
     had not read the EC addressed to him. He issued no clarifying 
     instructions from his Unit to the field, which very naturally 
     must believe to this day that this Unit Chief is actually 
     reading and assessing the reports that are submitted to his 
     attention and for his consideration. The Unit Chief in 
     question here has claimed to be ``at a loss'' as to why he 
     did not receive a copy of the Phoenix EC at the time it was 
     assigned, as was the practice in the Unit at that time.
       Apparently, it was routine in the Unit for analytic support 
     personnel to assess and close leads assigned to them without 
     any supervisory agent personnel reviewing their activities. 
     In the RFU, the two individuals in the support capacity 
     entered into service at the FBI in 1996 and 1998. The Phoenix 
     memo was assigned to one of these analysts as a ``lead'' by 
     the Unit's Investigative Assistant (IA) on or about July 
     30th, 2001. The IA would then accordingly give the Unit Chief 
     a copy of each EC assigned to personnel in the Unit for 
     investigation. The RFU Unit Chief claims to have never seen 
     this one. In short, the crucial information being collected 
     by FBI agents in the field was disappearing into a black hole 
     at Headquarters. To the extent the information was reviewed, 
     it was not reviewed by the appropriate people.
       More disturbingly, this is a recurrent problem at the FBI. 
     The handling of the Minneapolis LHM and the Phoenix memo, 
     neither of which were reviewed by the correct people in the 
     FBI, are not the first times that the FBI has experienced 
     such a problem in a major case. The delayed production of 
     documents in the Oklahoma City bombing trial, for example, 
     resulted in significant embarrassment for the FBI in a case 
     of national importance. The Judiciary Committee held a 
     hearing during which the DOJ's own Inspector General 
     testified that the inability of the FBI to access its own 
     information base did and will have serious negative 
     consequences. Although the FBI is undertaking to update its 
     information technology to assist in addressing this problem, 
     the Oklahoma City case demonstrates that the issue is broader 
     than antiquated computer systems. As the report concluded, 
     ``human error, not the inadequate computer system, was the 
     chief cause of the failure. . . .'' The report concluded that 
     problems of training and FBI culture were the primary causes 
     of the embarrassing mishaps in that case. Once again, the 
     FBI's and DOJ's failures to address such broad based problems 
     seem to have caused their recurrence in another context.

         6. The FBI's Poor Information Technology Capabilities

       On June 6, 2002, Director Mueller and SA Rowley testified 
     before the Senate Judiciary Committee on the search 
     capabilities of the FBI's Automated Case Support (ACS) 
     system. ACS is the FBI's centralized case management system, 
     and serves as the central electronic repository for the FBI's 
     official investigative textual documents. Director Mueller, 
     who was presumably briefed by senior FBI officials regarding 
     the abilities of the FBI's computers, testified that, 
     although the Phoenix memorandum had been uploaded to the ACS, 
     it was not used by agents who were investigating the 
     Moussaoui case in Minnesota or at Headquarters. According to 
     Director Mueller, the Phoenix memorandum was not accessible 
     to the Minneapolis field office or any other offices around 
     the country; it was only accessible to the places where it 
     had been sent: Headquarters and perhaps two other offices. 
     Director Mueller also testified that no one in the FBI had 
     searched the ACS for relevant terms such as ``aviation 
     schools'' or ``pilot training.'' According to Director 
     Mueller, he hoped to have in the future the technology in the 
     computer system to do that type of search (e.g., to pull out 
     any electronic communication relating to aviation), as it was 
     very cumbersome to do that type of search as of June 6, 2002. 
     SA Rowley testified that FBI personnel could only perform 
     one-word searches in the ACS system, which results in too 
     many results to review.
       Within two weeks of the hearing, on June 14, 2002, both 
     Director Mueller (through John E. Collingwood, AD Office of 
     Public and Congressional Affairs) and SA Rowley submitted to 
     the Committee written corrections of their June 6, 2002, 
     testimony. The FBI corrected the record by stating that ACS 
     was implemented in all FBI field offices, resident agencies, 
     legal attache offices, and Headquarters on October 16, 1995. 
     In addition, it was, in fact, possible to search for multiple 
     terms in the ACS system, using Boolean connectors (e.g., 
     hijacker or terrorist and flight adj school), and to refine 
     searches with other fields (e.g., document type). Rowley 
     confirmed the multiple search-term capabilities of ACS and 
     added that the specifics of ACS's search capabilities are not 
     widely known within the FBI.
       We commend Director Mueller and SA Rowley for promptly 
     correcting their testimony as they became aware of the 
     incorrect description of the FBI's ACS system during the 
     hearing. Nevertheless, their corrections and statements 
     regarding FBI personnel's lack of knowledge of the ACS system 
     highlights a longstanding problem within the Bureau. An OIG 
     report, issued in July 1999, states that FBI personnel were 
     not well-versed in the ACS system or other FBI databases. An 
     OIG report of March 2002, which analyzed the causes for the 
     belated production of many documents in the Oklahoma City 
     bombing case, also concluded that the inefficient and complex 
     ACS system was a contributing factor in the FBI's failure to 
     provide hundreds of investigative documents to the defendants 
     in the Oklahoma City Bombing Case. In short, this Committee's 
     oversight has confirmed, yet again, that not only are the 
     FBI's computer systems inadequate but that the FBI does not 
     adequately train its own personnel in how to use their 

             7. The ``Revolving Door'' at FBI Headquarters

       Compounding information technology problems at the FBI are 
     both the inexperience and attitude of ``careerist'' senior 
     FBI agents who rapidly move through sensitive supervisory 
     positions at FBI Headquarters. This ``ticket punching'' is 
     routinely allowed to take place with the acquiescence of 
     senior FBI management at the expense of maintaining critical 
     institutional knowledge in key investigative and analytical 
     units. FBI agents occupying key Headquarters positions have 
     complained to members of the Senate Judiciary Committee that 
     relocating to Washington, DC, is akin to a ``hardship'' 
     transfer in the minds of many field agents. More often than 
     not, however, the move is a career enhancement, as the agent 
     is almost always promoted to a higher pay grade during or 
     upon the completion of the assignment. The tour at 
     Headquarters is usually relatively short in duration and the 
     agent is allowed to leave and return to the field.
       To his credit, Director Mueller tasked the Executive Board 
     of the Special Agents Advisory Committee (SAAC) to report to 
     him on disincentives for Special Agents seeking 
     administrative advancement. They reported on July 1, 2002, 
     with the following results of an earlier survey:
       ``Less than 5% of the Agents surveyed indicated an interest 
     in promotion if relocation to FBIHQ was required. Of 35 field 
     supervisors queried, 31 said they would `step down' rather 
     than accept an assignment in Washington, D.C. All groups of 
     Agents (those with and without FBIHQ experience) viewed as 
     assignment at FBIHQ as very negative. Only 6% of those who 
     had previously been assigned there believed that the 
     experience was positive--the work was clerical, void of 
     supervisory responsibility critical to future field or other 
     assignments. Additionally, the FBIHQ supervisors were 
     generally powerless to make decisions while working in an 
     environment which was full of negativity, intimidation, fear 
     and anxiousness to leave.''
       The SAAC report also contained serious criticism of FBI 
     management, stating:
       ``Agents across the board expressed reluctance to become 
     involved in a management system which they believe to [be] 
     hypocritical, lacking ethics, and one in which we lead by 
     what we say and not by example. Most subordinates believe and 
     most managers agreed that the FBI is too often concerned with 
     appearance over substance. Agents believed that management 
     decisions are often based on promoting one's self interest 
     versus the best interests of the FBI.''
       There is a dire need for the FBI to reconsider and reform a 
     personnel system and a management structure that do not 
     create the proper incentives for its most capable and 
     talented agents to occupy its most important posts. The SAAC 
     recommended a number of steps to reduce or eliminate 
     ``disincentives for attaining leadership within the Bureau.'' 
     Congress must also step up to the plate and assess the 
     location pay differential for Headquarters transfers compared 
     to other transfers and other financial rewards for 
     administrative advancement to ensure that those agents with 
     relevant field experience and accomplishment are in critical 
     Headquarters positions.
       Indeed, in the time period both before and after the 
     Moussaoui application was processed at Headquarters (and 
     continuing for months after the 9/11 attacks), most of the 
     agents in the pertinent Headquarters terrorism unit had less 
     than two years of experience working on such cases. In the 
     spring and summer of 2001, when Administration officials have 
     publicly acknowledged increased ``chatter'' internationally 
     about potential terrorist attacks, the Radical Fundamentalist 
     Unit at FBI Headquarters experienced the routinely high rate 
     of turnover in agent personnel as other units regularly did. 
     Not only was the Unit Chief replaced, but also one or more of 
     the four SSAs who reported to the Unit Chief was a recent 
     transfer into the Unit. These key personnel were to have 
     immediate and direct control over the fate of

[[Page S2747]]

     the ``Phoenix memo'' and the Minneapolis Division's 
     submission of a FISA application for the personal belongings 
     of Moussaoui. While these supervisory agents certainly had 
     distinguished and even outstanding professional experience 
     within the FBI before being assigned to Headquarters, their 
     short tours in the specialized counterterrorism units raises 
     questions about the depth and scope of their training and 
     experience to handle these requests properly and, more 
     importantly, about the FBI's decision to allow such a key 
     unit to be staffed in such a manner.
       Rather than staffing counterterrorism units with 
     Supervisory Special Agents on a revolving door basis, these 
     positions should be filled with a cadre of senior agents who 
     can provide continuity in investigations and guidance to the 
       A related deficiency in FBI management practices was that 
     those SSAs making the decisions on whether any FISA 
     application moved out of an operational unit were not given 
     adequate training, guidance, or instruction on the practical 
     application of key elements of the FISA statute. As we stated 
     earlier, it seems incomprehensible that those very 
     individuals responsible for taking a FISA application past 
     the first step were allowed to apply their own individual 
     interpretations of critical elements of the law relating to 
     what constitutes a ``foreign power,'' ``acting as an agent of 
     a foreign power,'' ``probable cause,'' and the meaning of 
     ``totality of the circumstances,'' before presenting an 
     application to the attorneys in the NSLU. We learned at the 
     Committee's hearing this past September 10th, a full year 
     after the terrorist attacks, that the FBI drafted 
     administrative guidelines that will provide for Unit Chiefs 
     and SSAs at Headquarters a uniform interpretation of how--and 
     just as importantly--when to apply probable cause or other 
     standards in FISA warrant applications.
       All of these problems demonstrate that there is a dire need 
     for a thorough review of procedural and substantive practices 
     regarding FISA at the FBI and the DOJ. The Senate Judiciary 
     Committee needs to be even more vigilant in its oversight 
     responsibilities regarding the entire FISA process and the 
     FISA Court itself. The FISA process is not fatally flawed, 
     but rather its administration and coordination needs swift 
     review and improvement if it is to continue to be an 
     effective tool in America's war on terrorism.

         IV. The Importance of Enhanced Congressional Oversight

       An undeniable and distinguishing feature of the flawed FISA 
     implementation system that has developed at the DOJ and FBI 
     over the last 23 years is its secrecy. Both at the legal and 
     operational level, the most generalized aspects of the DOJ's 
     FISA activities have not only been kept secret from the 
     general public but from the Congress as well. As we stated 
     above, much of this secrecy has been due to a lack of 
     diligence on the part of Congress exercising its oversight 
     responsibility. Equally disturbing, however, is the 
     difficulty that a properly constituted Senate Committee, 
     including a bipartisan group of senior senators, had in 
     conducting effective oversight of the FISA process when we 
     did attempt to perform our constitutional duties.
       The Judiciary Committee's ability to conduct its inquiry 
     was seriously hampered by the initial failure of the DOJ and 
     the Administrative Office of the United States Courts to 
     provide to the Committee an unclassified opinion of the FISA 
     Court relevant to these matters. As noted above, we only 
     received this opinion on August 22, 2002, in the middle of 
     the August recess.
       Under current law there is no requirement that FISA Court 
     opinions be made available to Congressional committees or the 
     public. The only statutory FISA reporting requirement is for 
     an unclassified annual report of the Attorney General to the 
     Administrative Office of the United States Courts and to 
     Congress setting forth with respect to the preceding calendar 
     year (a) the total number of applications made for orders and 
     extensions of orders approving electronic surveillance under 
     Title I, and (b) the total number of such orders and 
     extensions either granted, modified, or denied. These reports 
     do not disclose or identify unclassified FISA Court opinions 
     or disclose the number of individuals or entities targeted 
     for surveillance, nor do they cover FISA Court orders for 
     physical searches, pen registers, or records access.
       Current law also requires various reports from the Attorney 
     General to the Intelligence and Judiciary Committees that are 
     not made public. These reports are used for Congressional 
     oversight purposes, but do not include FISA Court opinions. 
     When the Act was passed in 1978, it required the Intelligence 
     Committees for the first five years after enactment to report 
     respectively to the House of Representatives and the Senate 
     concerning the implementation of the Act and whether the Act 
     should be amended, repealed, or permitted to continue in 
     effect without amendment. Those public reports were issued in 
     1979-1984 and discussed one FISA Court opinion issued in 
     1981, which related to the Court's authority to issue search 
     warrants without express statutory jurisdiction.
       The USA PATRIOT Act of 2001 made substantial amendments to 
     FISA, and those changes are subject to a sunset clause under 
     which they shall generally cease to have effect on December 
     31, 2005. That Act did not provide for any additional 
     reporting to the Congress or the public regarding 
     implementation of these amendments or FISA Court opinions 
     interpreting them.
       Oversight of the entire FISA process is hampered not just 
     because the Committee was initially denied access to a single 
     unclassified opinion but because the Congress and the public 
     get no access to any work of the FISA Court, even work that 
     is unclassified. This secrecy is unnecessary, and allows 
     problems in applying the law to fester. There needs to be a 
     healthy dialogue on unclassified FISA issues within Congress 
     and the Executive branch and among informed professionals and 
     interested groups. Even classified legal memoranda submitted 
     by the DOJ to, and classified opinions by, the FISA Court can 
     reasonably be redacted to allow some scrutiny of the issues 
     that are being considered. This highly important body of FISA 
     law is being developed in secret, and, because they are ex 
     parte proceedings, without the benefit of opposing sides 
     fleshing out the arguments as in other judicial contexts, and 
     without even the scrutiny of the public or the Congress. 
     Resolution of this problem requires considering legislation 
     that would mandate that the Attorney General submit annual 
     public reports on the number of targets of FISA surveillance, 
     search, and investigative measures who are United States 
     persons, the number of criminal prosecutions where FISA 
     information is used and approved for use, and the 
     unclassified opinions and legal reasoning adopted by the FISA 
     Court and submitted by the DOJ.
       As the recent litigation before the FISA Court of Review 
     demonstrated, oversight also bears directly on the protection 
     of important civil liberties. Due process means that the 
     justice system has to be fair and accountable when the system 
     breaks down.
       Many things are different now since the tragic events of 
     last September, but one thing that has not changed is the 
     United States Constitution. Congress must work to guarantee 
     the civil liberties of our people while at the same time meet 
     our obligations to America's national security. Excessive 
     secrecy and unilateral decision making by a single branch of 
     government is not the proper method of striking that all 
     important balance. We hope that, joining together, the 
     Congress and the Executive Branch can work in a bipartisan 
     manner to best serve the American people on these important 
     issues. The stakes are too high for any other approach.
     Patrick Leahy,
       U.S. Senator. 
     Arlen Specter,
       U.S. Senator.
     Charles E. Grassley,
       U.S. Senator.

  Mr. SPECTER. I ask unanimous consent that the response of the 
Department of Justice dated February 20, 2003 be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                            Department of Justice,

                                Office of Legislative Affairs,

                                Washington, DC, February 20, 2003.
     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: This is to follow up on outstanding 
     questions from the Committee's hearings on June 6, 2002, at 
     which FBI Director Mueller testified, a closed hearing on 
     July 9, 2002, at which seven FBI personnel testified, and a 
     September 10, 2002, hearing at which an Associate Deputy 
     Attorney General testified on the FISA process. During this 
     latter hearing, and in follow-up letters, dated September 24, 
     2002 and October 1, 2002, Senator Specter asked for 
     additional information about the circumstances leading up to 
     the FBI's issuance of guidance on the probable cause standard 
     and the number of FBI requests for FISA warrants between June 
     6, 2002 and September 16, 2002.
       In July 2002, the General Counsel's Office undertook to 
     draft a comprehensive memorandum to provide FBI field and 
     headquarters personnel with a practitioner's guide to the 
     FISA process and the changes resulting from the USA PATRIOT 
     Act. A section of that guidance was to be devoted to a 
     refresher discussion of the probable cause standard. Near the 
     end of that month, however, a new General Counsel reported to 
     the FBI and reviewed the initial draft. After discussions 
     with attorneys in the FBI's National Security Law Unit and 
     the Justice Department, it was determined that the guidance 
     would be issued in three separate memoranda. One would 
     provide a broad overview of the FISA process; one would cover 
     recent revisions to the limitations on the sharing of FISA-
     derived information; and one would clarify the probable cause 
       These three memoranda were issued in September 2002 and 
     copies are enclosed for your convenience. The 15-page 
     overview of the FISA process was finalized and posted on the 
     FBI intranet on September 12, 2002. The 11-page guidance on 
     the new information sharing procedures was issued on 
     September 18, 2002, and later superceded by the November 18, 
     2002 decision of the Foreign Intelligence Surveillance Court 
     of Review which approved the Attorney General's March 6, 2002 
     Intelligence Sharing Procedures for Foreign Intelligence and 
     Foreign Counterintelligence Investigations Conducted by the 
     FBI. The clarification memorandum on the probable cause 
     standard was released on September 16, 2002 and I am advised 
     that, as a

[[Page S2748]]

     matter of courtesy, a copy was delivered to Senator Specter's 
     office on that date.
       In light of the November 18, 2002, decision of the Foreign 
     Intelligence Surveillance Court of Review, the Department 
     issued ``field guidance'' on intelligence sharing and FISA 
     issues on December 24, 2002, which was sent to all United 
     States Attorneys, all Anti-Terrorism Task Force coordinators 
     and all Special Agents of the FBI. It consisted of three 
     documents: (1) a memorandum jointly issued by the Deputy 
     Attorney General and the Director of the FBI discussing the 
     intelligence sharing procedures for foreign intelligence and 
     foreign counterintelligence investigations, including a chart 
     summarizing the March 6, 2002 Intelligence Sharing 
     Procedures; (2) the Attorney General's March 6, 2002 
     memorandum on Intelligence Sharing Procedures for Foreign 
     Intelligence and Counterintelligence Investigations conducted 
     by the FBI; and (3) a memorandum from the Deputy Attorney 
     General summarizing the November 18, 2002, decision of 
     Foreign Intelligence Surveillance Court of Review. An 
     electronic copy of the field guidance was provided to the 
     Judiciary Committee on January 17, 2003 (an additional 
     courtesy copy is enclosed).
       Also on December 24, 2002, the Deputy Attorney General 
     issued a memorandum instructing the Counsel for Intelligence 
     Policy, the Assistant Attorney General for the Criminal 
     Division, and the Director of the FBI to ``jointly establish 
     and implement a training curriculum for all Department 
     lawyers and FBI agents who work on foreign intelligence or 
     counterintelligence investigations, both in Washington, DC 
     and in the field, including Assistant United States Attorneys 
     designated under the Department's March 6, 2002 Intelligence 
     Sharing Procedures. At a minimum, the training shall address 
     the FISA process, the importance of accuracy in FISA 
     applications, the legal standards (including probable cause) 
     set by FISA, coordination with law enforcement and with the 
     Intelligence Community, and the proper storing and handling 
     of classified information.'' A copy of the December 24, 2002, 
     training memorandum is enclosed.
       Senator Specter's letter of October 1, 2002, asked as an 
     additional follow-up question about the number of FBI 
     requests for FISA warrants between Colleen Rowley's June 6, 
     2002, appearance before the Judiciary Committee and the 
     September 16, 2002, issuance of the probable cause 
     memorandum. The number of FBI applications to the Foreign 
     Intelligence Surveillance Court (FISC) for FISA searches and 
     surveillances during this time period is classified at the 
     SECRET level and is being delivered to the Committee through 
     the Office of Senate Security under separate cover and in 
     accordance with the longstanding Executive branch practices 
     on the sharing of classified intelligence information with 
     Congress. Please note that the total annual number of FISA 
     applications for orders authorizing electronic surveillance 
     filed by the government and the total annual number of such 
     applications either granted, modified, or denied by the FISC 
     are not classified and are provided annually to the 
     Administrative Office of the United States Court and to 
     Congress under section 1807 of FISA.
       The question of what probable cause standard was used on 
     FISA applications for warrants during that time was posed to 
     supervisors in the National Security Law Unit and in the 
     Office of Intelligence Policy and Review. They responded that 
     the applications--and their discussions about those 
     applications--reflect that the agents and attorneys involved 
     in the FISA process understood and applied the correct 
     probable cause standard in their analyses of the relevant 
     evidence. Based on their observations, the staff's 
     understanding of probable cause--whether based on a reading 
     of Illinois v. Gates, 462 U.S. 213 (1983), or of any of the 
     other numerous authoritative judicial statements of the 
     probable cause standard--did not change with the issuance of 
     the probable cause memorandum. The standard they employed was 
     consistent with Illinois v. Gates both before and after they 
     received the memorandum.
       I hope that this information is helpful. If you would like 
     further assistance on this or on any other matter, please do 
     not hesitate to contact me.
                                                   Jamie E. Brown,
                                Acting Assistant Attorney General.

  Mr. SPECTER. The oversight is going to continue on this matter. We 
are dealing with a constitutional responsibility of the Congress, that 
is the Senate and the Judiciary Committee, to conduct oversight on the 
Department of Justice and on the Federal Bureau of Investigation. This 
inquiry has demonstrated to this Senator that such oversight is sorely 
  When I was District Attorney of Philadelphia and an assistant 
district attorney before that time, I had occasion to deal with a great 
many applications for search warrants. To find now that the key FBI 
personnel entrusted with the responsibility to apply for warrants under 
the Foreign Intelligence Surveillance Act, to get information on agents 
of foreign powers, at a time when the United States is threatened by 
terrorism, and they do not know what the right standard is, is just 
  It has already been detailed on the public record that had they 
followed the right standard, and had the FBI gotten the computer of 
Zacarias Moussaoui, that 9/11 might have been prevented.
  Then when the Judiciary Committee pursues the issue more than a month 
later at a subsequent hearing, and finds that the key FBI personnel, 
including their attorneys, do not know the right standard, it is just 
incredible. Then when the FBI Director does not respond to inquiries as 
to what the standards are, and days, weeks, and months follow, I wonder 
what has happened with many matters where terrorists may be plotting 
other attacks and our law enforcement officials are not doing the job.
  This does raise the very fundamental question of whether the FBI is 
capable of handling counterterrorism in the United States, and what 
standards are being applied. Senator Leahy, Senator Grassley, and I 
have introduced further legislation requiring more reporting. There is 
a very important issue about civil liberties, but it all turns on 
appropriate application of the law, and that certainly has not been 
  I will be sending a copy of this statement to FBI Director Mueller 
tomorrow when it is in print, and these issues will be raised at the 
hearing which is scheduled for next Tuesday. We have a hearing 
scheduled which will include Attorney General Ashcroft, FBI Director 
Robert Mueller, CIA Director George Tenet, and Secretary of Homeland 
Defense Tom Ridge. I am urging Chairman Hatch to break it up and to 
have only one of those individuals appear. If we have all four of them 
at one time, we will only be hearing opening statements from the 
Senators and opening statements from the individuals, and along about 
1:15, when nobody has gone to lunch, is when we will really get to 
serious questioning, and the hearing will not exactly be fruitful. So 
we really need to take these very important individuals one at a time. 
So stay tuned on some questions for FBI Director Mueller.
  I ask unanimous consent to print the letter in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                               Washington, DC, September 24, 2002.
     Hon. Robert Mueller,
     Director, Federal Bureau of Investigation,
     Washington, DC.
       Dear Director Mueller: In a hearing before the Judiciary 
     Committee on June 6, 2002, I questioned you and Special Agent 
     Colleen Rowley about the erroneous standards being applied by 
     the FBI on applications for warrants under the Foreign 
     Intelligence Surveillance Act. I specifically called your 
     attention to the appropriate standards in Illinois v. Gates.
       On July 10, 2002, I wrote to you concerning a closed door 
     hearing on July 9, 2002 where seven FBI personnel including 
     four attorneys were still unfamiliar with the appropriate 
     standard for probable cause of a FISA warrant under Gates.
       At a Judiciary Committee hearing on September 10, 2002, I 
     again raised these issues with a representative of the 
     Department of Justice asking why I had not heard about any 
     action taken by the FBI on these issues.
       On September 12, 2002, my office received an undated letter 
     from Assistant Director John E. Collingwood (copy enclosed) 
     which was a totally inadequate response. My office has since 
     been furnished with a copy of a memorandum from the Federal 
     Bureau of Investigation dated September 16, 2002, entitled 
     ``Probable Cause'' which references the Gates case.
       I would like an explanation from you as to why it took the 
     FBI so long to disseminate information on the standard for 
     probable cause under Gates for a FISA warrant.
     Arlen Specter.

                                            Department of Justice,

                              Federal Bureau of Investigation,

                               Washington, DC, September 12, 2002.
     Hon. Arlen Specter,
     Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senator Specter: I am writing in response to your 
     letter to Director Mueller dated July 10, 2002 regarding the 
     standards applied to applications under the Foreign 
     Intelligence Surveillance Act (FISA).
       As you know, the events of September 11, 2001 caused the 
     entire Government to review all of its programs to identify 
     any revisions which may help to prevent another terrorist 
     attack. The FISA review process is critical to our 
     counterterrorism mission and, even before September 11th, we 
     were working with the Department of Justice (DOJ), as well as 
     the FISA Court, to simplify and expedite the FISA procedures. 
     We have made significant progress including implementation of 

[[Page S2749]]

     FISA procedures to ensure accuracy (known as the ``Woods 
     Procedures''), a copy of which has been provided to the 
       In addition, we have been crafting new guidance, in 
     consultation with DOJ, to address the FISA process as 
     modified by the USA PATRIOT Act. This guidance will also 
     address the concerns raised in your letter and your meeting 
     with FBI personnel on July 9, 2002. We anticipate approval of 
     the guidance shortly and will immediately disseminate it to 
     field offices for implementation. A copy will be provided to 
     the Committee as well.
       I appreciate your concerns and your support in these 
     critical matters. Please contact me if you have any 

                                          John E. Collingwood,

                                     Assistant Director, Office of
     Public and Congressional Affairs.

                                                  U.S. Senate,

                                  Washington, DC, October 1, 2002.
     Hon. Robert Mueller,
     Director, Federal Bureau of Investigation,
     Washington, DC.
       Dear Director Mueller: Supplementing my letter of September 
     24, 2002, I would like to know how many requests the FBI made 
     for warrants under the Foreign Intelligence Surveillance Act 
     from June 10, 2002, the date of the Judiciary Committee 
     hearing with you and Special Agent Colleen Rowley, and 
     September 16, 2002, the date on the FBI memorandum citing the 
     Gates case.
       I would also like to know the specifics on what standard of 
     probable cause was used on the applications for warrants 
     under FISA during that period.
     Arlen Specter.

                               Exhibit 1

                                                  U.S. Senate,

                                    Washington, DC, July 10, 2002.
     Hon. Robert Mueller,
     Director, Federal Bureau of Investigation,
     Washington, DC.
       Dear Director: In a hearing before the Judiciary Committee 
     on June 6, 2002, I called your attention to the standard on 
     probable cause in the opinion of then-Associate Justice 
     Rehnquist in Illinois v. Gates, 462 U.S. 213, 236 (1983) 
     (citations omitted) as follows:
       As early as Locke v. United States, 7 Cranch. 339, 348, 3 
     L.Ed. 364 (1813), Chief Justice Marshall observed, in a 
     closely related context, that ``the term `probable cause,' 
     according to its usual acceptation, means less than evidence 
     which would justify condemnation. . . . It imports a seizure 
     made under circumstances which warrant suspicion.'' More 
     recently, we said that ``the quanta . . . of proof'' 
     appropriate in ordinary judicial proceedings are inapplicable 
     to the decision to issue a warrant. Finely-tuned standards 
     such as proof beyond a reasonable doubt or by a preponderance 
     of the evidence, useful in formal trials, have no place in 
     the magistrate's decision. While an effort to fix some 
     general, numerically precise degree of certainty 
     corresponding to ``probable cause'' may not be helpful, it is 
     clear that ``only the probability, and not a prima facie 
     showing, of criminal activity is the standard of probable 
       In a closed door hearing yesterday, seven FBI personnel 
     handling FISA warrant applications were questioned, including 
     four attorneys.
       A fair summary of their testimony demonstrated that no one 
     was familiar with Justice Rehnquist's definition from Gates 
     and no one articulated an accurate standard for probable 
       I would have thought that the FBI personnel handling FISA 
     applications would have noted that issue from the June 6th 
     hearing; or, in the alternative, that you are other 
     supervisory personnel would have called it to their 
       It is obvious that these applications, which are frequently 
     made, are of the utmost importance to our national security 
     and your personnel should not be applying such a high 
     standard that precludes submission of FISA applications to 
     the Foreign Intelligence Surveillance Court.
       I believe the Judiciary Committee will have more to say on 
     this subject but I wanted to call this to your attention 
     immediately so that you could personally take appropriate 
     corrective action.
     Arlen Specter.

                                            Department of Justice,

                              Federal Bureau of Investigation,

                                                   Washington, DC.
     Hon. Arlen Specter,
     Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Senator Specter: I am writing in response to your 
     letter to Director Mueller dated July 10, 2002 regarding the 
     standards applied to applications under the Foreign 
     Intelligence Surveillance Act (FISA).
       As you know, the events of September 11, 2001 caused the 
     entire Government to review all of its programs to identify 
     any revisions which may help to prevent another terrorist 
     attack. The FISA review process is critical to our 
     counterterrorism mission and, even before September 11th, we 
     were working with the Department of Justice (DOJ), as well as 
     the FISA Court, to simplify and expedite the FISA procedures. 
     We have made significant progress including implementation of 
     the FISA procedures to ensure accuracy (known as the ``Woods 
     Procedures''), a copy of which has been provided to the 
       In addition, we have been crafting new guidance, in 
     consultation with DOJ, to address the FISA process as 
     modified by the USA PATRIOT Act. This guidance will also 
     address the concerns raised in your letter and your meeting 
     with FBI personnel on July 9, 2002. We anticipate approval of 
     the guidance shortly and will immediately disseminate it to 
     field offices for implementation. A copy will be provided to 
     the Committee as well.
       I appreciate your concerns and your support in these 
     critical matters. Please contact me if you have any 

                                          John E. Collingwood,

                                     Assistant Director, Office of
     Public and Congressional Affairs.

                               Exhibit 2

                    Federal Bureau of Investigation

     To: All Divisions.
     From: Office of the General Counsel.

                             probable cause

       Synopsis: The purpose of this Electronic Communication is 
     to clarify the meaning of probable cause.
       Details: In recent legislative hearings, questions have 
     been raised about the concept of probable cause as it applies 
     to the Foreign Intelligence Surveillance Act (FISA). While 
     FBI Agents receive substantial legal training and have ample 
     experience applying the concept in their daily work, it is 
     nonetheless helpful to review the case law defining probable 
     cause. Accordingly, the Office of the General Counsel 
     prepared the following summary for the benefit of all FBI 
       In Illinois versus Gates, 462 U.S. 213 (1983, the Supreme 
     Court explained that the probable cause standard is a 
     practical, nontechnical concept which deals with 
     probabilities--not hard certainties--derived from the 
     totality of the circumstances in a factual situation. 
     Probable cause to believe a particular contention is 
     determined by evaluating ``the factual and practical 
     considerations of everyday life on which reasonable and 
     prudent men, not legal technicians, act;'' it is a ``fluid 
     concept . . . not readily, or even usefully, reduced to a 
     neat set of legal rules.'' 462 U.S. at 231-32.
       The courts have broadly defined the parameters of probable 
     cause. While it requires more than an unfounded suspicion, 
     courts have repeatedly explained that probable cause requires 
     a lesser showing than the rigorous evidentiary standards 
     employed in trial proceedings. In Gates, 462 U.S. at 235, the 
     Supreme Court explained that probable cause is less demanding 
     than the evidentiary standards of beyond a reasonable doubt, 
     preponderance of the evidence or even a prima facie case--all 
     that is required to establish probable cause is a ``fair 
     probability'' that the asserted contention is true. It is 
     particularly important to note that probable cause is a lower 
     standard than ``preponderance of the evidence,'' which is 
     defined as the amount of evidence that makes a contention 
     more likely true than not true. See, e.g., United States 
     versus Bapack, 129 F.3d 1320, 1324 (D.C. Cir. 1997) 
     (preponderance standards means ``more likley than not''); 
     United States versus Montague, 40 F.3d 1251, 1255 (D.C. Cir. 
     1994) (``more probable than not''), BLACK'S LAW DICTIONARY 
     1064 (5th ed. 1979) (``[e]vidence which is of greater weight 
     or more convincing than the evidence which is offered in 
     opposition to it''). Since probable cause is a lower standard 
     than preponderance of the evidence, an Agent can demonstrate 
     probable cause to believe a factual contention without 
     proving that contention even to a 51 percent certainty, as 
     required under the preponderance of the evidence standard. 
     See, e.g., United States versus Cruz, 834 F.2d 47, 50 (2d 
     Cir. 1987) (probable cause does not require a showing that it 
     is more probable than not that a crime has been committed); 
     Paff versus Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) 
     (probable cause is a lesser showing than preponderance of the 
     evidence); United States versus Limares, 269 F.3d 794, 798 
     (7th Cir. 2001) (same); United States versus Mounts, 248 F.3d 
     712, 715 (7th Cir. 2001) (probable cause does not require a 
     showing that it is more likely than not that the suspected 
     committed a crime).
       Courts have instructed judges to apply no higher standard 
     when they review warrants for probable cause. The magistrate 
     reviewing an application for a criminal search warrant ``is 
     simply to make a practical, common-sense decision whether, 
     given all the circumstances set forth in the affidavit before 
     him, . . . there is a fair probability that contraband or 
     evidence of a crime will be found in a particular place.'' 
     Gates, 462 U.S. at 238. As to arrest warrants, the question 
     for the magistrate is whether the totality of the facts and 
     circumstances set forth in the affidavit are ``sufficient to 
     warrant a prudent man in believing that the [suspect] had 
     committed'' the alleged offense--an evaluation that ``does 
     not require the fine resolution of conflicting evidence that 
     a reasonable-doubt or even a preponderance standard 
     demands.'' Gerstin versus Pugh, 420 U.S. 103, 111-12, 121 
       Similarly, a judge of the Foreign Intelligence Surveillance 
     Court reviewing an application for a FISA electronic 
     surveillance order or search warrant must make a probable 
     cause determination based on a practical, common-sense 
     assessment of the circumstances set forth in the declaration. 
     The judge must first find probable cause that the target of 
     the surveillance or search is a foreign power or an agent of 
     a foreign power. While certain non-U.S. persons can qualify

[[Page S2750]]

     as agents of a foreign power merely by acting in the United 
     States as an officer or employee of a foreign power, a U.S. 
     person can be found to be an agent of a foreign power only if 
     the judge finds probable cause to believe that he or she is 
     engaged in activities that involve (or in the case of 
     clandestine intelligence gathering activities ``may 
     involve'') certain criminal conduct. 50 U.S.C. 1801(b). For 
     an electronic surveillance order to issue under FISA, the 
     judge must additionally find that there is probable cause to 
     believe that each of the facilities or places to be 
     electronically surveilled is being used, or is about to be 
     used, by a foreign power or an agent of a foreign power. 50 
     U.S.C. 1805(a)(3). For a FISA search warrant, the judge must 
     find probable cause to believe that the premises or property 
     to be searched is owned, used, possessed by or in transit to 
     or from a foreign power or an agent of a foreign power. 50 
     U.S.C. 1824(a)(3).
       We hope this summary clarifies the meaning of probable 
     cause. Agents with questions about probable cause in a case 
     should consult with their Chief Division Counsel, the Office 
     of the General Counsel, or the Assistant United States 
     Attorney or Justice Department attorney assigned to the case.

  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I think Members on both sides of the 
aisle greatly respect the work of our colleague on the FBI and we 
appreciate his work.
  Mr. SPECTER. I thank my colleague from New York for the generous 
  Mr. SCHUMER. Well deserved, not just in my opinion but in the opinion 
of many Members.
  Mr. SPECTER. I thank the Senator.
  Mr. SCHUMER. Mr. President, I will continue our discussion on so many 
issues facing the Nation. Obviously, in the Senate the business is the 
business of Miguel Estrada. I will comment on that in a few minutes.
  I do want to say, however, that some on the other side are attempting 
to convey the impression that it is we, the Democrats, who continue the 
debate on Miguel Estrada. We do not. We have, indeed, asked Mr. Estrada 
to answer the most rudimentary questions that every person who seeks to 
achieve a lifetime appointment of the high office of judge of the DC 
Circuit Court of Appeals is asked to answer. There are a large number 
of Members who will not move to vote until those questions are 
answered. That seems to be entirely logical.
  Let me make clear the reason we continue to debate Mr. Estrada--not 
the economy, not homeland security, not the many issues that our 
constituents are asking about--is the choice not of the Democratic 
minority but of the Republican majority that controls the floor.
  In fact, 2 weeks ago, when the Republican majority thought they ought 
to get other things done, they have. We actually approved three other 
judges at the majority leader's request. We left the subject of Mr. 
Estrada and debated those judges. We approved the omnibus budget--late, 
of course--but we approved that budget, the largest amount of Federal 
spending we have ever voted on, debated it, amended it, while the 
Estrada nomination was still pending.
  I ask my colleagues on the other side of the aisle, until we resolve 
this impasse about who Mr. Estrada is and what he actually believes, 
what his judicial philosophy is, and get the best evidence--not hearsay 
evidence because there is hearsay evidence on both sides--that we do 
move to other issues.
  When I go to New York, virtually none of my constituents ask me about 
Miguel Estrada. Yes, you will get some editorials and you get some talk 
shows talking about him one way or the other. But not average voters. 
Not even any voter except those in the political class.
  My constituents are asking me about the war, when we might go to war 
and what is happening. I get a lot of negative comments about France, 
which I am sympathetic toward--not France but the negative comments. 
And more than that I get questions about the economy. I get question 
after question after question: What are you guys in Washington doing 
about the economy?
  This morning I flew back from New York and the man at the gate of the 
airport, obviously somebody who makes an average salary working for 
Delta Airlines, asked me: Senator, when are you guys going to get the 
economy going?
  We on this side would love to start debating on the economy. We would 
love to start talking about how we will get people to work. As our 
minority leader, Tom Daschle, put it so well yesterday, the Republicans 
on the other side of the aisle are concerned about one job, that of Mr. 
Estrada. And by the way, he already has a job. My guess is he is being 
paid well into the six figures. He can live quite a nice life, as he 
deserves, on that ample salary.

  But what about the 2.8 million Americans who have lost jobs? What 
about the tens of millions of other Americans who have jobs, but they 
are not getting the salaries they used to get in terms of buying power? 
What about all the companies, the small businesses, that say the 
business climate is not good enough so they can expand? What about the 
large businesses? I was reading my clips here and some of the largest 
companies in upstate New York have stopped putting dollars into 
research or decreased the amount of money they are putting into 
research, which is the lifeblood of our future, our information-based 
economy, because very simply, the economy is so squishy soft.
  We have plans to deal with the economy. We would like to debate them. 
I was told this morning that many think the majority leader will not 
even bring up a stimulus package until late spring. We cannot afford to 
wait. We can sit here and make the speeches.
  Do you know how many times I have heard that Mr. Estrada graduated 
from Harvard Law School? It is not new news. We are not making any new 
points in this debate. I guess every one of the Senators could answer 
this question: How many former Solicitors General have said that the 
records should not be revealed? We have heard that probably 100 times 
on the floor. No new ground is being broken in this debate.
  Yet for some strange reason the majority leader seeks to keep us on 
this issue. We all know what the issue is. It is a simple issue. That 
is, many Members believe Mr. Estrada has to tell not only the Senate 
but the American people--because the Founding Fathers regarded us as a 
mechanism by which the American people could learn--his views on 
fundamental issues. What is his view of the first amendment and whether 
it is an expansive view or narrowing view?
  Right now we are faced with the age-old conflict between security and 
liberty as we debate the PATRIOT Act. It is all challenged in court. 
What are Mr. Estrada's views? How does he see it? Is he hard on the 
security side? Is he hard on the liberty side? What are his views on 
the commerce clause?
  We all know that there is a move among many Justices in the Supreme 
Court and judges in the courts of appeals to narrow that commerce 
clause. Some want to narrow it, in my opinion, so severely we could go 
back not to the 1930s but the 1890s.
  The American people are entitled to know his views. They are not 
simply entitled to know that Mr. Seth Waxman says he is a good fellow. 
That is not an answer.
  I am sure my colleague from Pennsylvania would admit if he were here, 
direct evidence is a lot better than hearsay evidence. There are 
various ways you get direct evidence. One is by asking a witness 
questions. As anyone who has read the transcript of the hearing that I 
chaired for Mr. Estrada, he went to every length to avoid any answers 
that were substantive on any direct questions. I have never seen 
anything like it.
  Of course, subsequent to Mr. Estrada answering that way, I believe 
there are new nominees saying the same thing. But none of the nominees 
before were ever so restrictive. And I believe the only reason the 
others have not answered questions, they were afraid they would 
embarrass Mr. Estrada, acting at the request of the White House. It is 
a good guess he has been instructed not to answer these.
  Another way is to look at somebody's past history. There is only one 
place where we can find Mr. Estrada's own views in his past history 
because he has written very little.
  He clearly was not previously a judge; he was a lawyer. He was 
obviously representing clients; that is, by his writings and by his 
views when he was in the Solicitor General's office. There are some who 
say those should not be revealed. There are arguments on that side. But 
there are no legal arguments and there is plenty of precedent on the 
other side.

[[Page S2751]]

  Should everybody who worked in the Solicitor General's Office have to 
reveal such information? Probably it would be better. I believe in 
openness. But it wouldn't be essential because just about every nominee 
who has come before us for this kind of high court has had some kind of 
  There are some who say Mr. Estrada is way to the right of Justice 
Scalia. If that is true, he should not be approved. If, on the other 
hand, he is a mainstream conservative, he should be approved.
  Of the 106 people the President nominated for judge for whom we 
voted, on whom we have had votes here in the Senate, I have supported 
98, 99, or 100 of them. I am sure the vast majority of those were 
mainstream conservatives--people I might disagree with on this issue or 
that. But the real issue here is, Is Mr. Estrada so far out of the 
mainstream on the second highest court in the land that if the American 
people knew his views they would be aghast?
  Do you know what many people say when they hear this argument? When I 
went back home and anyone asked me--as I said, almost no one did--but 
when I was asked or when I entered an opinion, there was not a soul who 
would disagree that he should reveal what he thinks. There is too much 
power in this awesome lifetime appointment not to do so.
  So the issue is drawn. We know the issue. No one has budged over the 
last 2 to 3 weeks.
  Why are we still debating Estrada? Because the Republican majority 
insists on doing it. Maybe they think they can win political points. I 
doubt it. I think most people do not care. Maybe they feel so strongly 
that they want to keep the Senate tied up. I will tell you, if they do, 
they are not representing what the American people want, which is 
debate on other issues.
  The two issues I think we should be debating now are the economy and 
what we are doing about homeland security. Those two issues, in my 
judgment, are the two that have a real impact. We have disagreements on 
the war. We know that. That is now pretty much in executive branch 
hands. But what to do about homeland security and what to do about the 
economy or what the American people are asking us to do--and I will say 
to you, ladies and gentlemen of America--the reason we are not debating 
those extremely serious issues is because the Republican majority 
insists that we stay on the Estrada issue.
  If I heard from the other side new arguments that might convince 
people, I would say, well, maybe they have a point. But a new argument 
has not been made on this issue for a week or two. Do you know what. If 
someone comes up with an ingenious argument that might convince a 
number of Members on this side, we can go back and debate Mr. Estrada. 
But right now, I will challenge my good friends, my Republican 
colleagues on the other side of the aisle, to start doing something 
about the economy. Let us debate that issue.
  Again, I say this to the American people. We do not control the 
  When they say Democrats are filibustering on Mr. Estrada, that is not 
true. It is the Republican side that is keeping us debating the issue 
of Mr. Estrada. They say until you see it our way, we are going to stay 
with Mr. Estrada. If this were the No. 1 issue most Americans think 
should be tackled, they might have a point. But it isn't, although I am 
afraid some of my colleagues are sort of out of touch.

  I want to quote my good friend, the junior Senator from Pennsylvania, 
Mr. Santorum. He came out of a White House meeting, according to the 
National Journal, and said that getting Estrada to the Senate was first 
and foremost on President Bush's mind.
  More important than the war in Iraq? More important than protecting 
our homeland? More important than starting the economy going and 
getting the jobs we need? I don't think more than 1 percent of the 
American people would agree with that analysis. If so, the President 
ought to rethink. If Mr. Santorum is properly reporting on President 
Bush's views that Estrada is first and foremost, then the President 
ought to get out on the hustings and start talking to the American 
people and finding out what is on their minds because it isn't Mr. 
  I would like to talk about one thing about the economy which I think 
is important. Today, along with my colleague from New Jersey, Senator 
Corzine, and my colleague from Michigan, Ms. Stabenow, and my colleague 
from Delaware, Senator Carper, all members of the Banking Committee, we 
put in a sense-of-the-Congress resolution that says the independence of 
the Federal Reserve Board should be preserved; that praises Chairman 
Greenspan as an independent voice and that asks this Senate to go on 
record in support of Mr. Greenspan.
  Why have we done that? Very simply, 2 weeks ago Mr. Greenspan, before 
our Banking Committee, was his usual independent self. He said that 
while he likes the dividend tax cut, that he was so worried about 
plunging this Nation into fiscal chaos with huge deficits that we only 
ought to do it if it could be revenue-neutral--in other words, if we 
could find other cuts in spending or other increases in taxes that 
would equal the dividend tax cut--a view, by the way, that I find is 
corroborated by most of the business leaders I talk to.
  Right after that happened, there were reports in all the newspapers 
that the White House was furious at Alan Greenspan. Bob Novak said in 
his column--which I believe was entitled, ``Goodbye Greenspan?''--the 
White House was so angry at Alan Greenspan's show of display of 
independence that they might not reappoint him.
  Mr. BURNS. Mr. President, will the Senator yield for a question?
  Mr. SCHUMER. I will be happy to yield in a few minutes. I want to 
finish my point.
  When the Federal Reserve Board was set up, it was supposed to be 
independent. That is why it was a board. That is why the appointments 
are for such lengths of time. If you go back and read the history, it 
was set up to be as far removed from the political forces within the 
White House and elsewhere as it could be. Sometimes the independence of 
Chairman Greenspan benefits the White House.
  Two years ago, many of us on this side of the aisle were quite upset 
with him when he encouraged a tax cut that many economists thought 
seemed too high--not that there shouldn't have been a tax cut, but that 
it was too large. At that point, the White House was very happy with 
the independence of the chairman. Now he said something else. Our 
economy is weaker. We have a large deficit. It is getting worse. The 
White House, which says we have no money for homeland security and no 
money to help the States out of their problems, has $670 billion for a 
tax cut.
  I tend to like tax cuts. I tend to support them. But they ought to be 
stimulative to the economy. They ought to be fair. In other words, the 
middle-class people ought to get a good, decent share of the benefit. 
And they ought to be responsible. They ought not throw us into such 
large deficits that our economy has a burden on its shoulders for a 
decade. Chairman Greenspan was saying on the last point that we need to 
correct it.
  When I mentioned this resolution in the Banking Committee a few hours 
ago, I was glad to hear that three or four of my Republican colleagues, 
including Chairman Shelby, said that Alan Greenspan was a fine man, 
that the Federal Reserve Board ought to be independent, and that he 
ought to be reappointed.
  I ask unanimous consent right now to bring up that amendment, to 
bring up that sense-of-the-Senate resolution because that would help 
calm the markets that are jittery enough as they are right now.
  The PRESIDING OFFICER. Is there objection?
  Mr. BURNS. I object.
  Mr. SCHUMER. I understand that my colleague objected. It didn't 
surprise me.
  But, again, on the issue of great importance to Americans, the state 
of this economy, and the independence of the Federal Reserve Board and 
the need that we don't just become profligate with the tax cut or the 
spending side, the other side wants not to debate that subject and 
continue debating Mr. Estrada.
  I am happy to debate it. I have been on this floor for many hours. 
But, again, there are no new arguments that come out. I think every one 
of us could take a quiz on the three major points the Republican side 
makes and the Democrat side makes. So I say to my

[[Page S2752]]

colleagues, it is time to move on. There is another issue I think we 
should move on to.
  I am going to yield just for the purposes of a question to my 
colleague because I am going on to another little area.
  Mr. BURNS. I thank the Senator from New York.
  The reason I objected is, that is not the issue at hand on the floor 
now, and the proper people are not on the floor to strengthen or weaken 
his argument on Mr. Greenspan.
  But I have been watching the debate on Miguel Estrada with a great 
deal of interest. I would agree with my friend from New York in that I 
have traveled through my whole State--not the whole State, but a goodly 
part of it--and it is not the first question we are asked in townhall 
meetings or in an occasional meeting on the street.
  I understand, though, that the Senator from New York questioned Mr. 
Estrada for about 90 minutes or so in committee. And I think it is 
general practice here that if you have more questions, even after the 
committee hearing is over, you submit written questions. I would 
inquire of my friend from New York: Did you send Mr. Estrada any 
written questions after the hearing, after he was voted out of 
committee and his nomination was brought to the floor?
  Mr. SCHUMER. Let me respond to my colleague, I did not. I usually do 
send written questions. I had ample time to question Mr. Estrada. I got 
to ask a lot of the questions I wanted to ask. There was one problem: I 
got no answers. When I asked Mr. Estrada his views on, say, the 1st 
amendment, or on the commerce clause, or on the 11th amendment, I got 
back an answer that I found extremely unsatisfying. Some might call it 
disingenuous. I am not going to go that far. He said: Senator, I will 
follow the law.
  Of course, every judge believes they are following the law. But if 
following the law was all one needed to say, we would not need a 
confirmation process. How Justice Scalia thinks we ought to follow the 
law is quite different than how Justice Breyer or Justice Thomas thinks 
we ought to follow the law.
  If simply following the law told us how a judge would vote on the 
most important issues, then why is it that judges who tend to be 
appointed by Republican Presidents--not always, but usually--vote quite 
differently than judges who get appointed by Democratic Presidents? It 
is because even as you follow the law, your own views always influence 
you as a judge. And the higher the court is, and the more important the 
court is, the more that is the case, because there are fewer 
  In fact, I commend to my good friend from Montana a study done by 
Professor Sunstein of the University of Chicago. He looked at this very 
DC Court of Appeals, and he said there were huge differences on just 
about every issue between the judges appointed by Democratic Presidents 
and judges appointed by Republican Presidents.
  So the bottom line is, I asked Mr. Estrada, and first he said: I 
can't answer these questions because it might influence me when I have 
to make a future decision. And he cited the canons of ethics. We all 
know that the canons of ethics means you cannot say: Well, there is a 
case over there about the logging standards in the Sawtooth Mountains. 
I think those are in Montana.
  Mr. BURNS. You got the right mountains, but you have got the wrong 
  Mr. SCHUMER. Idaho. My family and I have traveled through there, and 
it is a beautiful part of America. We go hiking out there every summer, 
although I am sure my friend from Montana would think not enough of the 
West has rubbed off on me yet, but we are trying.
  But in any case, that prospective nominee should not answer. But if 
you ask a prospective nominee his views or her views on: What are your 
general views on how much leeway the Federal Government has versus the 
State governments on how logging should be done or how the environment 
should be regulated? I would argue to my colleague from Montana that is 
exactly what we should be asking the nominee, and that is exactly what 
they should be answering.
  Let me read you a quote from your leader on the Judiciary Committee. 
He said, on February 18, 1997, before the University of Utah Federalist 

       Determining which of President Clinton's nominees will 
     become activists is complicated and it will require the 
     Senate to be more diligent and extensive in its questioning 
     of nominees' jurisprudential views.

  That is exactly what we are saying. He was asked by Senator Feinstein 
his views on Roe v. Wade. Now, I do not believe in a litmus test, and I 
would say, of the 99 or so judges I voted for, who were nominated by 
President Bush, most of them disagree with my view on choice, but I 
voted for them because they were mainstream conservatives. They were 
  Mr. BURNS. Will the Senator further yield?
  Mr. SCHUMER. I will yield when I finish my point.
  But when Miguel Estrada was asked if he had any personal views on Roe 
v. Wade, he said, no--something to that effect. I said to him: Name 
three Supreme Court cases already decided that you do not like. There 
would be no worry about the canons of ethics. And guess what he said. 
``I won't answer.''
  So after 90 minutes of basically being stonewalled, there was no 
further point in asking written questions and getting the same answers. 
It is not that we did not ask the questions. We asked him a ton of 
questions, my colleague from Illinois and all the members of the 
Judiciary Committee. He just simply dead flat refused to answer them. 
And that when you are being nominated for the second most important 
court in the land, a court that is going to have huge power over every 
one of our lives.
  That is not what the Founding Fathers intended. You read The 
Federalist Papers. It is not fair to this Senate. It makes a mockery of 
the process. And most of all, I say to my good friend from Montana, it 
is not fair to the American people. Because the judiciary is the one 
unelected branch of Government. It is where the people have the least 
say. That is why sometimes it garners such fervent opinions, pro and 
con. But the only chance you have--before this lifetime appointment 
passes--is at this point. And, in all fairness, I cannot think of 
anybody who has shown less of what he thinks about the major issues of 
the day before nomination than Mr. Estrada. I am sure my colleague 
would agree with me, if you asked 100 Americans: Should nominees for 
such awesome positions be--not required--but should they reveal their 
views? I bet 99 or 98 would say: Yes.
  So I just want to make one other point. I see my other colleagues are 
in the Chamber. There is another issue--I am going to yield.
  I ask the Senator, do you have another question?
  Mr. BURNS. Being that the Senate is made up of about 65 to 70 percent 
attorneys--and I not being one of those--that was the longest ``yes, I 
did not ask him any further questions in written form'' I have ever 
heard. But we have to contend with that in this body.
  I watched those hearings with a great deal of interest because I 
believe, as does the Senator from New York, this is a very sensitive 
and important part of our role in the Senate. However, I think we have 
injected a double standard here in this case. And I think that case has 
been made here. But I would say after----
  Mr. SCHUMER. Mr. President, just reclaiming my time, I would say it 
has been made about 50 times--not very well, in my judgment but 50 
  Mr. BURNS. If I may finish my question. Didn't he answer that 
question just about the same as the nominees sent up by the previous 
President of the United States? That is what I am going back to.
  Like the Senator from New York, I think we should be moving on. I 
contend that we have talked about this, we have discussed it and 
debated it. The only thing I am saying is let's just vote on him.
  I plan to come back to the Chamber later today to make a statement. I 
was interested in the Senator's discussion and his statement. I thank 
my good friend from New York for responding to the question.
  Mr. SCHUMER. I appreciate that.
  Mr. President, let me say this. I don't have all of the nominees 
here. I have been on the Judiciary Committee for 4 years. I have not 
come across a nominee to the court of appeals, when given

[[Page S2753]]

so many extensive questions, who had so few answers as Miguel Estrada.
  I don't think there is a double standard. I will quote one. Probably, 
the nominee of President Clinton that garnered the most controversy--
because my colleagues on the other side thought he was too far out of 
the mainstream from the left side--happened to be a Hispanic nominee 
named Richard Paez. As the Senator knows, he was held up for over 1,500 
days. Let me read the same question that was asked of Mr. Paez--by the 
way, these were asked by your colleague, my colleague, our friend, 
Senator Sessions. Senator Sessions asked him:

       In your opinion, what is the greatest Supreme Court 
     decision in American history?

  Did Judge Paez refuse to answer that question, say he could not, as 
Mr. Estrada did? No. He right away named Brown v. Board of Education.
  Senator Sessions then asked the same question I asked of Mr. Estrada. 
He said:

       What is the worst Supreme Court decision?

  Again, Paez answered without hesitation, without ducking, without 
hiding behind some legal subterfuge--which I know my colleague from 
Montana doesn't like--that it was Dred Scott.
  So if these questions were fair to ask Judge Paez, why are they not 
fair to ask Miguel Estrada?
  One other point I will make rhetorically is, we have heard some 
charges here--not directed at any one of us specifically--that asking 
Mr. Estrada all these questions means we are against Hispanics. Why 
wasn't asking these questions of Judge Paez anti-Hispanic? If you want 
to talk about a double standard, the double standard, I am afraid, has 
been brought up by many of my colleagues on the other side of the aisle 
who seem to think it was perfectly OK then.
  This is what Senator Hatch said about another Hispanic nominee. Her 
name was Rosemary Barkett--a Hispanic nominee, by the way, with the 
same kind of rags-to-riches story--well, Miguel Estrada didn't come 
from poverty, but it was the same quick advancement story. She tried to 
become a nun. She worked in schools and made herself a lawyer--very 
admirable, with high ratings from the American Bar Association. Same 
thing. This is what our good friend, Orrin Hatch, said:

       I led the fight to oppose Judge Barkett's confirmation . . 
     . because her judicial records indicated that she would be an 
     activist who would legislate from the bench.

  Why isn't what's good for the goose good for the gander? Senator 
Hatch believed--and nobody on this side stopped him--that he had to ask 
this nominee, who also happens to be Hispanic--a Mexican American, not 
from Central America--a whole lot of questions. He had to go through 
her records and now all of a sudden when Miguel Estrada comes up, not 
only are we being told we should not ask questions, but it is a 
``double standard'' because he is Hispanic. I think the double standard 
comes from the people who are making that charge on the other side. 
They ought to look in the mirror.

  I yield to my colleague from Nevada for a question.
  Mr. REID. The Senator from New York is a member of the Judiciary 
Committee, true?
  Mr. SCHUMER. I am indeed.
  Mr. REID. The Senator is familiar with the record of the Judiciary 
Committee during the time Democrats were in control of the Senate, 
  Mr. SCHUMER. I am.
  Mr. REID. Is it true that a hundred judges were approved during that 
short period of time when we were in control of the Senate?
  Mr. SCHUMER. Exactly true.
  Mr. REID. Breaking all records.
  Mr. SCHUMER. Yes. Senator Leahy, our chairman, made every effort to 
bring nominees through. When I tell my constituents--the few who care 
about this, frankly, because most of them want us to talk about the 
economy or homeland security--that we have approved something like 99 
out of 106 nominees, a lot of them said we approved too many. Everyone 
should not be rubberstamped.
  Mr. REID. If I may ask another question. It is also true, is it not, 
that during this session of the legislature, the three judges brought 
before us other than Estrada have been approved unanimously?
  Mr. SCHUMER. My colleague is exactly correct. I brought this up 
before while we were debating Miguel Estrada, so we could go off the 
Estrada issue to debate the economy and homeland security, which my 
good friend from Montana had the good grace to say is also far more on 
the minds of his constituents.
  Mr. REID. If the Senator will yield for another question, is the 
Senator aware that a poll was conducted by the Pew Research Center. You 
are familiar with polls, as I am.
  Mr. SCHUMER. I am not familiar with that particular one, but Pew 
Research has a good reputation.
  Mr. REID. They did a poll of 1,254 people that was completed on 
February 18. Is the Senator aware that in that poll, the people were 
asked how President Bush was handling the economy? Is the Senator aware 
that 43 percent of the people approved of the way President Bush was 
handling the economy and 48 percent disapproved?
  Mr. SCHUMER. I was not aware of that poll.
  Mr. REID. Is the Senator aware of the fact that Senator Daschle, the 
Democratic leader, came to the floor yesterday and asked that a bill 
that had been moved by the majority leader the day before, a rule 14, 
S. 414, is the Senator aware that Senator Daschle asked unanimous 
consent to bring that bill to the floor so we could start talking about 
a way to maybe improve President Bush's numbers as it relates to the 
economy and talk about stimulating the economy? S. 414, is the Senator 
aware that it was objected to?
  Mr. SCHUMER. I am aware of that. I was sitting on the floor when 
Senator Daschle brought it up. He made an excellent point, I thought. 
He said the other side seemed to be concerned about one man's job, 
Miguel Estrada.
  By the way--and Senator Daschle didn't say this--Mr. Estrada already 
has a job. My guess is that he is probably making in the high six 
figures, so he can do pretty well feeding his family.
  Mr. BURNS. Will the Senator yield for another question?
  Mr. SCHUMER. In a minute, I will be delighted to yield.
  We have 2.8 million fewer Americans in jobs than we had when 
President Bush took office. We have tens of millions of Americans who 
have jobs, but their jobs are not as good as the jobs they used to 
have. We should be debating that issue.
  I say to my colleague from Nevada and my colleague from Montana that 
we should be debating homeland security, which is vital to our future. 
Those of us who follow football, or basketball, or baseball know that a 
good team needs both a good offense and a good defense. There are many 
opinions on the offense, but clearly President Bush has a plan and has 
implemented it. I have been sometimes critical, but usually supportive, 
of the President's plan in that regard. But a good team needs defense.
  On homeland security, this country is not doing close to what we need 
to do. Even if, God willing, tomorrow we were to get rid of Saddam 
Hussein, Osama bin Laden, and al-Qaida, other groups would come 
forward. Are we protected from shoulder-held missile launchers? Are our 
planes protected? No. Are we protected from somebody smuggling a 
nuclear weapon into this country? Are we doing much about it? No.
  Is our northern border, which my State shares with Canada for 
hundreds of miles, at all adequately guarded so bad people cannot come 
in? No.
  Is there money in the President's budget to do these activities? No.
  I do not know if this is true of my colleague from Montana, but when 
I go back and talk to my police chiefs and fire chiefs of big towns, 
little towns, urban areas, rural areas, and suburban areas, does my 
colleague know what they tell me? They have huge new responsibilities 
post 9/11, and they are not getting one thin dime from Washington. In 
my opinion, most Americans would rather we debate that than debating 
Miguel Estrada.
  So we are at an impasse with Estrada. We believe records should be 
revealed. The other side says: No, let's vote on him without the 
records. Nothing has changed in the last week or two. Why don't we just 
put the issue of Mr. Estrada aside until someone a lot smarter than the 
Senator from New

[[Page S2754]]

York and the Senator from Montana thinks of some kind of compromise, 
because right now we are at loggerheads and nothing has budged, and why 
don't we start talking about the economy, which my colleague from 
Nevada brought up; why don't we start talking about homeland security 
as we are on the edge of war with Iraq, which is what, again, my good 
friend from Montana has admitted his constituents would prefer. I can 
certainly tell the Senator that my constituents in New York would much 
prefer that.
  I yield for another question.
  Mr. BURNS. Mr. President, I say to my friend from New York, I did not 
get questions on homeland security or the economy while I was up there. 
We will go over those questions later.
  I understand what the Senator from New York said about Judge Paez, 
but in the end, did he get a vote?
  Mr. SCHUMER. I say to my colleague----
  Mr. BURNS. Yes or no, and I have a followup question.
  Mr. SCHUMER. Wait, in the Senate--I have only been here 4 years, and 
my colleague has been here longer, but we do not do that yes or no, 
cross-examination stuff. In fact, when I came here, I only spoke for 5 
or 10 minutes on subjects, and people thought I was crazy, but I am not 
going to take that long. I am not going to take more than 5 minutes.
  At first, Judge Paez, as my friend knows, was held up for 4 years. If 
my colleague wants to make it equal, start complaining in 2 more years 
about Judge Estrada. Second, and far more important than the amount of 
time, Judge Paez had an ample record in the courts. By the way, so 
ample that I believe it was 39 Members from the other side--perhaps my 
friend from Montana; I do not know how he voted--voted against Judge 
Paez, and when Judge Paez came before us and was subjected to extensive 
questioning by Senator Sessions, by Senator Ashcroft, who was then a 
Senator, by many of my colleagues on the Judiciary Committee, did he 
duck? Did he hide behind the legal shibboleth of: I have to see all the 
briefs before I answer, or it is a case that might come before me? He 
did not. He had the courage, he had the decency, and, most of all, he 
had the respect for the advise and consent process to answer those 
questions. So he deserved a vote.
  I say to my colleague, if in 2005 we have a Democratic President--God 
willing--and if that Democratic President should nominate somebody who 
many on the other side fear would be so far over to the left that he 
would do real damage on the bench, I would support my colleagues, if he 
did not answer questions and had as skimpy a record and did as much of 
a job of stonewalling, in not bringing that nominee to a vote as I 
would today.

  This is not an issue of left or right, in my judgment. It should not 
be. This is not an issue even of my view, which is: Should ideology 
matter when you vote for judges? I believe it should, but some do not. 
This is a matter, in my judgment--and I mean this sincerely to my 
colleague--that goes to the sacredness of the Constitution of the 
United States.
  When the Founding Fathers, in their wisdom, set up the advice and 
consent clause, they did not intend it to be degraded by having a sham 
hearing where the witness answers no questions.
  Mr. BURNS. Mr. President, if my friend from New York will allow a 
comment, and maybe a followup question.
  Mr. SCHUMER. Well----
  Mr. BURNS. No, a followup question. That is a long way to say, yes, 
he got a vote. Is it snowing outside today, right now?
  Mr. SCHUMER. Let me say to my colleague that snow comes from the 
clouds, and it happens when the temperature is below 32 degrees up in 
the clouds.
  Mr. BURNS. I submit it is snowing inside today also.
  I thank the Presiding Officer. I thank my good friend from New York.
  Mr. SCHUMER. Mr. President, it is always a pleasure to debate with my 
colleague from Montana. I say to my colleague, this, plain and simple, 
he knows in his heart--I hope he knows; I think he knows--that what 
Miguel Estrada did in terms of how he treated this body--all of us--was 
wrong, and if it is allowed to continue, we will have dramatic changes 
in the way this country is governed, and that is why so many of us feel 
so strongly about this issue.
  I reiterate to my colleague once more, he is not going to change our 
views, at least not with the same old arguments. I have been asked 
about four or five times did Judge Paez get a vote. Let's put this 
aside and talk about the issues the American people want us to talk 
about: the economy and homeland security. If my colleague can get the 
record of Mr. Estrada, we will be happy then to bring him to a vote.
  I thank my colleague. I yield the floor.
  The PRESIDING OFFICER (Mr. Chambliss). The Senator from Illinois.
  Mr. DURBIN. I thank the Chair.
  Mr. President, I thank my colleague from New York and my seatmate on 
the Senate Judiciary Committee for the statement he made on this 
important nomination. I think he has made this point. I listened 
earlier today when President Bush spoke to the Latino Coalition at the 
White House, in the Executive Office Building. I listened to what he 
said about Miguel Estrada. I find it difficult to quarrel with any of 
the statements he said about the man's quality.
  I met him personally. There is no doubt he has an inspiring life 
story, having come to the United States from Honduras with limited 
knowledge of English and, in a matter of a few years, reaching the 
heights of a legal education at Harvard Law School. Then, of course, 
there are his opportunities to serve our Government in a legal 
capacity, and now in private practice. All of these attest to his legal 
acumen, his legal skills, and the fact he has overcome adversity. Those 
are qualities we want to respect and reward when it comes to those 
seeking public service.
  The issue before us is one that is narrow in one respect but much 
broader in another. It is narrow in that we are not questioning his 
academic or legal credentials or even his experience. I quarrel with 
those who say he has never been on the bench, in the judiciary. That is 
not good enough from my point of view. I have seen first timers on the 
bench in Federal and State courts who have done very well.
  What we are questioning--the narrow aspect--is whether he has been 
forthcoming, honest, and candid in revealing his views on issues, not 
going so far as to be intrusive in terms of pending cases before the 
court, or not suggesting he answer a question that is a conflict of 
interest, but rather that he comes to the heart of the question: What 
is in his mind? Is he truly a conservative--and we expect those 
nominees from this President--or is he something more? And if he is 
something more, should we pause, should we reflect on this fact? Should 
we ask the hard question of whether this man is entitled to a lifetime 
appointment to the bench which the President characterized today as the 
second highest court in the land, the DC Circuit Court of Appeals?
  Sadly, when one looks at the record of responses from Miguel Estrada, 
it is unfortunate. It is truly unfortunate because I believe he has 
views that he can share with us. I believe he certainly has the 
knowledge to answer the questions. But he was coached and trained and 
cautioned not to come to Capitol Hill and be honest and open in his 
  I am sure the people at the Department of Justice said: Miguel, you 
may want to answer these questions, but do not do it. Trust us, do not 
answer them. Give them an evasive answer for anything. Try to move on, 
get it behind you, get this to the floor. You have enough votes, and 
you never have to answer those questions.
  He probably said at some point: Wait a minute; I do not mind 
answering a question such as which Supreme Court case do I disagree 
with. And they said: Be careful. If you start answering those 
questions, we do not know where this could lead.
  He followed that advice, or followed someone's advice. He came before 
the Judiciary Committee and refused to answer the questions.
  So now we have a broader issue. The broader issue is this: If the 
Senate, and particularly the Judiciary Committee, is to accept this 
approach from nominees, why in the world are we here? Why do we swear 
to uphold this Constitution when it comes to advice and

[[Page S2755]]

consent? Why is it we go through any process whatsoever with nominees? 
Because we know if Miguel Estrada comes through under these 
circumstances, the order of the day will be for future nominees: 
Evasion, concealment, refusal to answer the most basic questions. If 
that is the case, then, frankly, I think we are not meeting our 
  The broader issue is a constitutional responsibility of this Senate. 
It has been raised before and should be raised again. There is an easy 
way to end this impasse and end it within a matter of days. We have 
asked Miguel Estrada to produce the documents which he generated in the 
Solicitor General's Office, documents which we can review--in fact, we 
could review them on a restricted basis.
  One of the Republican Senators I admire very much, Mr. Bennett of 
Utah, suggested these documents be produced and given to Senator Hatch, 
a Republican, and Senator Leahy, a Democrat. They can review them. I do 
not have to see them as a member of the Judiciary Committee. They can 
decide whether they merit further inquiry, either with written 
questions or another hearing. If they decide, on the basis of that in 
camera and private review, that they do not merit that kind of 
followup, I will accept Senator Leahy's judgment on that.
  I do not speak for myself only. Yesterday, Senator Daschle came to 
the floor and I asked him point blank if Miguel Estrada will produce 
this documentation, which he says he wants to voluntarily turn over, to 
be reviewed by Senators Hatch and Leahy, and if there is anything 
controversial we have a chance to follow up or not, can this bring the 
matter to a close, to a vote?
  I think Senator Daschle spoke for virtually all of us on the Democrat 
side and said: Yes, it can. I think that is a fair way to bring this to 
a conclusion.
  This morning I said to Senator Hatch: Isn't that a way to bring this 
to an end? Isn't that a reasonable way, a dignified way, that does not 
turn loose all these documents for the world to see and for the press 
to pore over but gives it to Senator Hatch and Senator Leahy to review 
them and see if there is anything that merits a followup?
  Senator Hatch said: That is absolutely unacceptable. These are 
privileged documents and never have they been released and we are not 
going to start now. Start releasing internal memos and documents like 
this, and there is no end to it and the White House is right. Despite 
Miguel Estrada's objections, the White House is right to refuse to 
release those documents.
  I call the attention of my colleagues and those following this debate 
to the fact that Senator Hatch perhaps did not tell the whole story 
because when we look at requests for writings such as Miguel Estrada's 
writings, in the past the Department of Justice has provided memos by 
attorneys during the following nominations: William Bradford Reynolds, 
nominated to be Associate Attorney General, the Republican Department 
of Justice provided the documents then. Robert Bork, the 
controversial--celebrated in some quarters--nominee to the Supreme 
Court, he, too, was asked to provide the documents. The Department of 
Justice did. Benjamin Civiletti, nominated to be Attorney General, 
provided similar documents to this Congress for review by the Senate 
Judiciary Committee; Stephen Trott, nominated to the Court of Appeals 
for the Ninth Circuit, same standard applied, documents provided from 
the Department of Justice.

  Finally, I know it is at the bottom of the list and it maybe should 
have been at the top, Justice William Rehnquist, when he was nominated 
to be Chief Justice of the Supreme Court, was asked by those before me 
who were members of the Judiciary Committee for memoranda that he had 
prepared. They were provided by the Department of Justice.
  For Senators' staff and others to argue that this request is patently 
unreasonable, unacceptable, and unprecedented, I suggest that in five 
specific instances, Democratic and Republican Departments of Justice, 
with Democratic and Republican Attorneys General, these documents have 
been provided.
  Let me go further. I am going to ask in a moment for these letters to 
be printed in the Record, but we have letters to the then-chairman of 
the Senate Judiciary Committee, Joe Biden, from the State of Delaware, 
relative to the nominations of two individuals, Judge Robert Bork to 
the Supreme Court--I am sorry. Both of these related to Judge Robert 
Bork's nomination to the Supreme Court.
  It is interesting that the Ronald Reagan Department of Justice, with 
a Republican Attorney General, produced the very documents that we are 
discussing today, which Senator Hatch and others have said are 
unprecedented, that there has never been a request of this nature.
  Frankly, in reading the letter of transmittal of presentation from 
the Department of Justice, we see they decided that in the interest of 
disclosure, in the interest of openness and candor, that they would 
cooperate, as they say, to the fullest extent possible with the 
committee to expedite Judge Bork's confirmation process.
  And I quote further from this letter signed by John Bolton, Assistant 
Attorney General:

       Accordingly, we have decided to take the exceptional step 
     of providing the committee with access to responsive 
     materials we currently possess, except those privileged 
     documents specifically described above. Of course, our 
     decision to produce these documents does not constitute a 
     waiver of any future claim of privilege.

  And it should not. But in this instance, the Department of Justice, 
with the Robert Bork nomination to the Supreme Court before them, made 
a decision to cooperate with the committee.
  In this case, Miguel Estrada, realizing he has never sat on the bench 
before, and he does not have a body of opinion to which we can turn to 
understand his judicial philosophy and thinking, has said he is 
prepared to turn over these memos so we can review them. He believes 
they are not controversial. He believes they will shed light, perhaps, 
on his point of view. I think he is probably right, but we will not 
  Mr. CRAPO. Will the Senator yield for and respond to a question?
  Mr. DURBIN. I am happy to respond to a question.
  Mr. CRAPO. I have been listening to the arguments the Senator has 
made. I have been listening very carefully to the examples the Senator 
is pointing out about other nominations in which documents were 
provided. It is my understanding, however, that the Department of 
Justice has never disclosed confidential deliberative documents on 
career lawyers in the Solicitor General's Office. These are documents 
dealing with recommendations on internal deliberations regarding 
appeals and certiorari or amicus recommendations in pending cases.

  From the information I am aware of that the White House has provided 
in each of the cases that the Senator has listed, there is a very clear 
difference in each of those cases. Take the situation of Judge Bork to 
which the Senator was referring. The materials involving Judge Bork 
were very carefully limited to those that focused on his observations 
on political questions, such as President Nixon's assertion of the 
executive privilege or the pocket veto. Never has the Department of 
Justice allowed access to internal career lawyers' working documents on 
appeals or on certiorari or amicus recommendations, and that is what I 
understand the Senator to be requesting.
  First, does the Senator understand the distinction that is made 
between these document explanations that have been made? And does the 
Senator believe the Senate should start the precedent, which has never 
been done in this Senate, of asking for access to these career lawyers' 
deliberations on confidential matters in the Solicitor's Office?
  Mr. DURBIN. In response to my colleague, I believe this is a good-
faith question and it is one that deserves an honest reply. Do I 
believe there are some internal memoranda and writings generated within 
the Department of Justice that should not be subject to public 
disclosure? I certainly do. I think lines should be drawn.
  In the Bork case, the lines were drawn. They said some of the 
documents you have requested we will produce in the spirit of 
cooperation; some we cannot and should not produce. And if that is the 

[[Page S2756]]

from the Department of Justice when it comes to Miguel Estrada, we may 
quarrel with their dividing line, but at least it would demonstrate a 
cooperative effort to work with the Senate Judiciary Committee.
  So if they say to us they can give certain memoranda, but they draw 
the line on others, at least we are moving forward in the process. But 
at this moment in time, I say to my colleague and friend, the 
Department of Justice has said flat out: No, not ever; we will not 
produce anything.
  Mr. CRAPO. Will the Senator yield further?
  Mr. DURBIN. If I can finish, and then I will be glad to yield for 
another question.
  In the Bork situation, they said: We wish to cooperate to the fullest 
extent possible. We have decided to take the exceptional step of 
providing the committee with access to responsive materials we 
currently possess, except those privileged documents specifically 
described above.
  The Department of Justice, in the Bork situation, said we are drawing 
a line but we are providing you with these internal memos and 
information. Now, if the same thing is to apply to Miguel Estrada, as I 
said, we can debate where the lines can be drawn, but Mr. Gonzales in 
the White House said, no, we will not consider producing anything.
  It leads Members to conclude on this side of the aisle that there is 
something very damaging in these materials that they do not want 
disclosed. It is the only conclusion you can draw. The fact that Miguel 
Estrada volunteered the information, the fact that he is prepared to 
waive the privilege if it exists, is an indication he does not think 
the controversy is there, but this White House, tentative and concerned 
about whether or not Miguel Estrada has said some things that could 
jeopardize his nomination, refuses to disclose.
  I yield to the Senator.
  Mr. CRAPO. If I understand correctly, you are reading that the 
internal work documents of a career attorney of the Solicitor General's 
Office in making recommendations on how to handle cases would not be 
something this Senate should try to investigate or to cause to be 
  In each of the cases you have discussed, either it was specific 
charges of misconduct about which very narrow documents were disclosed 
or general comments on politics such as the case of Justice Bork. And 
if you are agreeing with that, perhaps there is some progress we can 
make. It is my understanding the demand for disclosure is far broader 
than what you have just described.
  Mr. DURBIN. Let me say in response to my colleague, in the case 
involving Robert Bork, I am reading from a letter from Thomas Boyd, the 
Acting Assistant Attorney General--and I ask unanimous consent these 
letters be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Department of Justice, Office of Legislative and 
           Intergovernmental Affairs,
                                  Washington, DC, August 24, 1987.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Senate Judiciary Committee,
     Washington, DC.
       Dear Chairman Biden: This responds further to your August 
     10th letter requesting certain documents relating to the 
     nomination of Judge Robert Bork to the Supreme Court. 
     Specifically, this sets forth the status of our search for 
     responsive documents and the method and scope of review by 
     the Committee.
       As we have previously informed you in our letter of August 
     18, the search for requested documents has required massive 
     expenditures of resources and time by the Executive Branch. 
     We have nonetheless, with a few exceptions discussed below, 
     completed a thorough review of all sources referenced in your 
     request that were in any way reasonably likely to produce 
     potentially responsive documents. The results of this effort 
     are as follows:
       In response to your requests numbered 1-3, we have 
     conducted an extensive search for documents generated during 
     the period 1972-1974 and relating to the so-called Watergate 
     affair. We have followed the same procedure, in response to 
     request number 4, for all documents relating to consideration 
     of Robert Bork for the Supreme Court by President Nixon or 
     his subordinates. We have completed our search and relevant 
     Department of Justice and White House files for documents 
     responsive to these requests. The Federal Bureau of 
     Investigation also has completed its search for responsive 
     documents, focusing on the period October-December 1973 and 
     on references to Robert Bork generally.
       Most of the documents responsive to requests numbered 1-4 
     are in the possession of the National Archives and Records 
     Administration, which has custody of the Nixon Presidential 
     materials and the files of the Watergate Special Prosecution 
     Force. The Archives staff supervised and participated in the 
     search of the opened files of the Nixon Presidential 
     materials and the files of the Watergate Special Prosecution 
     Force, which was directed to those files which the Archives 
     staff deemed reasonably likely to contain potentially 
     responsive documents.
       Pursuant to a request by this Department under 36 C.F.R. 
     1275, the Archives staff also examined relevant unopened 
     files of the Nixon Presidential materials, and, as required 
     under the pertinent regulations, submitted the responsive 
     documents thus located for review by counsel for former 
     President Nixon. Mr. Nixon's counsel, R. Stan Mortenson, 
     interposed no objection to release of those submitted 
     documents that (a) reference, directly or indirectly, Robert 
     Bork, or (b) were received by or disseminated to persons 
     outside the Nixon White House. Mr. Mortenson on behalf of Mr. 
     Nixon objected to production of the documents which are 
     described in the attached appendix. Mr. Mortenson represents 
     that these documents constitute purely internal 
     communications within the White House and contain no direct 
     or indirect reference to Robert Bork.
       Mr. Mortenson also objected on the same grounds to 
     production of unopened portions of two documents produced in 
     incomplete form from the opened files of the Nixon 
     Presidential materials:
       1. First page and redacted portion of fifth page of 
     handwritten note of John D. Ehrlichman dated December 11, 
       2. All pages other than the first page of memorandum from 
     Geoff Shepard to Ken Cole dated June 19, 1973.
       Mr. James J. Hastings, Acting Director of the Nixon 
     Presidential Materials Project, has reviewed these two 
     documents and has advised us that the unopened portions of 
     neither document contain any direct or indirect reference to 
     Judge Bork.
       Our search has not yielded a copy of the document 
     referenced in paragraph ``a'' of your request numbered 3, 
     which, as you correctly note, is printed at pages 287-288 of 
     the Judiciary Committee's 1973 ``Special Prosecutor'' 
       Among the documents collected by the Department are certain 
     documents generated in the defense of Halperin. v. Kissinger, 
     Civil Action No. 73-1187 (D. D.C.), a suit filed against 
     several federal officials in their individual capacity, which 
     remains pending. The Department has an ongoing attorney-
     client relationship with the defendants in Halperin, which 
     precludes us from releasing certain documents containing 
     client confidences and litigation strategy, without their 
     consent. 28 C.F.R. 50.156(a)(3).
       All documents responsive to request number 5, concerning 
     the pocket veto, have been assembled.
       All documents responsive to request number 6 have been 
     assembled. The exhibits filed by counsel for Edward S. Miller 
     on July 12, 1978 and referred to in your August 10 letter, 
     remain under seal by order of the United States District 
     Court for the District of Columbia. However, a list of the 
     thirteen documents has been unsealed. We have supplied 
     copies of eleven of these documents, including redacted 
     versions of two of the documents (a few sentences of 
     classified material have been deleted). We have supplied 
     unclassified versions of two of these eleven documents, as 
     small portions of them remain classified. We are precluded 
     by Rule 6(e) of the Rules of Criminal Procedure from 
     giving you access to two other exhibits--classified 
     excerpts of grand jury transcripts--filed on July 12, 
     1978. We also searched the files of several civil cases 
     related to the Felt and Miller criminal prosecution, as 
     well as the documents generated during the consideration 
     of the pardon for Felt and Miller.
       With respect to request number 7, Judge Bork has previously 
     provided to the Committee a number of his speeches, which we 
     have not sought to duplicate. We have sought and supplied any 
     additional speeches, press conferences or interviews by Mr. 
     Bork, as well as any contemporaneous documents which tend to 
     identify a date or event where he gave a speech or press 
     interview during his tenure at the Department.
       On request number 8, there are no documents in which 
     President Reagan has set forth the criteria he used to select 
     Supreme Court nominees, or their application to Judge Bork, 
     other than the public pronouncements and speeches we have 
       Our search for documents responsive to request number 9 has 
     been time-consuming and very difficult, and is not at this 
     time entirely complete. In order to conduct as broad a search 
     as possible, we requested the files in every case handled by 
     the Civil Rights Division or Civil Division, between 1969-77, 
     which concerned desegregation of public education. Although 
     most of these case files have been retrieved, several remain 
     unaccounted for and perhaps have been lost. We expect to have 
     accounted for the remaining files (which may or may not 
     contain responsive documents) in the next few days. We have 
     also assembled some responsive documents obtained from other 
     Department files. The Department of Education is nearing 
     completion of its search of its files, and those of its 
     predecessor agency, HEW.

[[Page S2757]]

       We have assembled case files for the cases referred to in 
     question 10, with the exception of Hill v. Stone, for which 
     there is no file. We have no record of the participation of 
     the United States in Hill v. Stone, or consideration by the 
     Solicitor General's office of whether to participate in that 
       A few general searches of certain front office files are 
     still underway, and we expect those searches to be concluded 
     in the next few days. We will promptly notify you should any 
     further responsive documents come into our possession.
       As you know, the vast majority of the documents you have 
     requested reflect or disclose purely internal deliberations 
     within the Executive Branch, the work product of attorneys in 
     connection with government litigation or confidential legal 
     advice received from or provided to client agencies within 
     the Executive Branch. The disclosure of such sensitive and 
     confidential documents seriously impairs the deliberative 
     process within the Executive Branch, our ability to represent 
     the government in litigation and our relationship with other 
     entities. For these reasons, the Justice Department and other 
     executive agencies have consistently taken the position, in 
     response to the Freedom of Information Act and other 
     requests, that it is not at liberty to disclose materials 
     that would compromise the confidentiality of any such 
     deliberative or otherwise privileged communications.
       On the other hand, we also wish to cooperate to the fullest 
     extent possible with the Committee and to expedite Judge 
     Bork's confirmation process. Accordingly, we have decided to 
     take the exceptional step of providing the Committee with 
     access to responsive materials we currently possess, except 
     those privileged documents specifically described above and 
     in the attached appendix. Of course, our decision to produce 
     these documents does not constitute a waiver of any future 
     claims of privilege concerning other documents that the 
     Committee requests or a waiver of any claim over these 
     documents with respect to entities or persons other than the 
     Judiciary Committee.
       As I have previously discussed with Diana Huffman, the 
     other documents will be made available in a room at the 
     Justice Department. Particularly in light of the voluminous 
     and privileged nature of these documents, copies of 
     identified documents will be produced, upon request, only to 
     members of the Judiciary Committee and their staff and only 
     on the understanding that they will not be shown or disclosed 
     to any other persons. Please have your staff contact me to 
     arrange a mutually convenient time for inspection of the 
       As I stressed in my previous letter, if the Committee is or 
     becomes aware of any documents it believes are potentially 
     responsive but have not been produced, please alert us as 
     soon as possible and we will attempt to locate them.
       Should you have any questions or comments, please contact 
     me as soon as possible. Thank you for your cooperation.

                                                  Laura Nelson

                                              (For John R. Bolton,
                                      Assistant Attorney General).


                     Documents subject to objection

                        (By Mr. Nixon's Counsel)

       1. Memorandum to Buzhardt and Garment from Charles Alan 
     Wright, January 7, 1973. Subject: June 6th meeting with the 
     Special Prosecutor (document No. 8).
       2. Memorandum to Buzhardt and Garment from Charles Alan 
     Wright, January 7, 1973. Subject: June 6th meeting with the 
     Special Prosecutor (document No. 9).
       3. Memorandum to Garment from Ray Price, July 25, 1973. 
     Subject: Procedures re: Subpoena (document No. 13).
       4. Memorandum to General Haig from Charles A. Wright, July 
     25, 1973. Subject: Proposed redrafts of letters (document No. 
       5. Draft letter to Senator Ervin dated July 26, 1973. 
     Subject: two subpoenas from Senator Ervin (document No. 15).
       6. Draft letter to Judge Sirica dated July 26, 1973. 
     Subject: subpoena duces tecum (document No. 16).
       7. Memorandum to the Lawyers from Charles A. Wright, July 
     25, 1973. Subject: Thoughts while shaving (document No. 17).
       8. Memorandum to the President from J. Fred Buzhardt, 
     Leonard Garment, Charles A. Wright, dated July 24, 1973. 
     Subject: Response to Subpoenas (document No. 18).
       9. Memorandum to Ray Price from Tex Lezar, dated October 
     17, 1973. Subject: WG Tapes (document No. 20).
       10. Memorandum to Leonard Garment and J. Fred Buzhardt from 
     Charles A. Wright, dated August 3, 1973. Subject: Discussions 
     with Philip Lacovara (document No. 25).
       11. Memorandum to the President from Leonard Garment, J. 
     Fred Buzhardt, Charles A. Wright, dated August 2, 1973. 
     Subject: Brief for Judge Sirica (document No. 26).
       12. Memorandum to Len Garment, Fred Buzhardt, Doug Parker 
     and Tom Marinis from Charlie Wright, dated August 1, 1973. 
     Subject: note regarding brief (document No. 27).
       13. Memorandum to the President from J. Fred Buzhardt, 
     Leonard Garment, Charles A. Wright, dated July 24, 1973. 
     Subject: Response to Subpoenas (document No. 28).
       14. Draft letter to Senator Ervin dated July 26, 1973. 
     Subject: two subpoenas issued July 23rd (document No. 29).
       15. Draft letter to Judge Sirica dated July 26, 1973. 
     Subject: subpoena duces tecum (document No. 30).
       16. Memorandum to J. Fred Buzhardt, Leonard Garment, 
     Charles A. Wright, from Thomas P. Marinis, Jr. (Undated). 
     Subject: Appealability of Cox Suit (document No. 31).
       17. Notes (handwritten) (Undated). Subject: [appears to be 
     notes of oral argument] (document No. 32).
       18. Memorandum to the President from Charles Alan Wright, 
     dated September 14, 1973. Subject: Response to Court's 
     memorandum (document No. 34).
       19. Handwritten notes (document no. 36).
       20. Memorandum to J. Frederick Buzhardt from Charles Alan 
     Wright, dated June 2, 1973. Subject: Executive privilege 
     (document no. 41).
       21. Memorandum to J. Frederick Buzhardt and Leonard Garment 
     from Charles Alan Wright, dated June 7, 1973. Subject: June 
     6th meeting with Special Prosecutor (document no. 42).
       22. Memorandum to J. Fred Buzhardt from Robert R. Andrews, 
     dated June 21, 1973. Subject: Executive Privilege (document 
     no. 43).
       23. Memorandum to J. Fred Buzhardt and Leonard Garment from 
     Thomas P. Marinis, Jr., dated June 20, 1973. Subject: 
     Prosecutor Wright's attempt to obtain document (document no. 
       24. Memorandum to J. Frederick Buzhardt and Leonard Garment 
     from Charles Alan Garment (sic), dated June 7, 1973. Subject: 
     June 6th meeting with Special Prosecutor (document no. 46).
       25. Draft letter to Senator from Alexander Haig, dated 
     December 12, 1973. Subject: Response to letter of the 5th 
     (document no. 60).
       26. Draft letter to Senator from Alexander Haig, dated 
     December 12, 1973. Subject: Response to letter of the 5th 
     (document no. 61).
       27. Proposal re: transcription of tapes dated October 17, 
     1973. (document no. 63).
       28. Typed note with handwritten notation: Sent to Buzhardt 
     12/11/73. Undated. Subject: papers Buzhardt sent to Jaworski 
     (document no. 66).
       29. Chronology--Presidential Statements, Letters, Subpoenas 
     dated March 12, 1973. Subject: chronology of same (document 
     no. 71).
       30. Handwritten note dated 1/31/74 (January 31, 1974). 
     Subject: Duties and responsibilities of Special Prosecutor 
     (document no. 82).
       31. Memorandum to Fred Buzhardt from William Timmons, dated 
     7/30/73 (July 30, 1973). Subject: refusal to release taped 
     conversations (document no. 91).
       32. Memorandum to J. Fred Buzhardt from Paul Troible, dated 
     October 30, 1973. Subject: Cox's disclosure of Kleindienst's 
     confidential communication (document no. 92).
       33. Proposal regarding transcription of tape conversations 
     dated 10/17/73 (October 17, 1973). (document no. 94).

                                            Department of Justice,

                                Office of Legislative Affairs,

                                     Washington, DC, May 10, 1988.
     Hon. Joseph R. Biden, Jr.,
     Chairman, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Biden: This letter requests that the 
     Committee return to the Justice Department all copies of 
     documents produced by the Department in response to Committee 
     requests for records relating to the nomination of Robert 
     Bork to the Supreme Court. As Assistant Attorney General John 
     Bolton noted in an August 24, 1987, letter to you, many of 
     the documents provided the Committee, ``reflect or disclose 
     purely internal deliberations within the Executive Branch, 
     the work product of attorneys in connection with government 
     litigation or confidential legal advice received from or 
     provided to client agencies within the Executive Branch.'' We 
     provided these privileged documents to the Committee in order 
     to respond fully to the Committee's request and to expedite 
     the confirmation process.
       Although the Committee's need for these documents has 
     ceased, their privileged nature remains. As we emphasized in 
     our August 24, 1987, letter, production of these documents to 
     the Committee did not constitute a general waiver of claims 
     of privilege. We therefore request that the Committee return 
     all copies of all documents provided by the Department to the 
     Committee, except documents that are clearly a matter of 
     public record (e.g., briefs and judicial opinions) or that 
     were specifically made a part of the record of the hearings.
       Please contact me if you have any questions. Thank you for 
     your cooperation.
                                                   Thomas M. Boyd,
                                Acting Assistant Attorney General.

  Mr. DURBIN. In this May 10, 1988, letter from Thomas Boyd to Joe 
Biden, then-chairman of the Senate Judiciary Committee:

       As Assistant Attorney General John Bolton noted in an 
     August 24, 1987, letter to you, many of the documents 
     provided the Committee, ``reflect or disclose purely internal 
     deliberations within the Executive Branch, the work product 
     of attorneys in connection with government litigation or 
     confidential legal advice received from or provided to client 
     agencies within the Executive Branch.'' We provided these 
     privileged documents to the Committee in order to respond 
     fully to the Committee's request and to expedite the 
     confirmation process.

  In response to my friend, the point I am making is they did not draw 
the same absolute line being drawn by the

[[Page S2758]]

Bush White House for Miguel Estrada. They disclosed information which 
reflected purely internal deliberations and the work product of 
attorneys and confidential legal advice and did it in the spirit of 
cooperation. They drew a line, but the line was on the side of 
disclosure. The line drawn by the Bush White House for Estrada is on 
the side of concealment, the refusal to disclose this information.
  Mr. CRAPO. Will the Senator yield further?
  Mr. DURBIN. I am happy to yield.
  Mr. CRAPO. If I understand correctly, you are saying, based on the 
letter, that you indeed are seeking the disclosure of these 
confidential internal work documents and you believe that letter shows 
the precedent for disclosure exists, is that correct?
  Mr. DURBIN. Certainly the precedent exists. The statement made on the 
floor by Senator Hatch and others that this has never been done or only 
been leaked--he used that term this morning--is not a fact.
  I concede the point made by my colleague that they do draw a line. 
The Department of Justice said no to everything, but they did disclose 
the information I just described when it came to Robert Bork. At this 
moment in time I don't think this Department of Justice has even 
entered into an honest conversation with the Senate Judiciary Committee 
members about whether that line can be drawn. They have said 
categorically that they are not going to allow anything to be produced.
  That is why we are at this impasse. It is troublesome to have a 
nominee with great credentials, a great resume, a good paying job as an 
attorney in the District of Columbia. He has not served as a judge so 
he does not have written opinions. We are trying to get to the heart of 
the matter. What are his values? Is he conservative or something else?
  Mr. CRAPO. Will the Senator yield?
  Mr. DURBIN. I am happy to yield for a question.
  Mr. CRAPO. I understand your position now, which is that you are 
asking for the disclosure of this broad array of confidential 
  I assume you are aware that every living former Solicitor General has 
rejected this request. This letter was signed by Democrats Seth Waxman, 
Walter Dellinger, and by Republicans, Ken Starr, Charles Fried, Robert 
Bork, and Archibald Cox for the very reasons we have been talking 
  I want to get at this principle. Is it the correct policy, is it the 
right thing for us to do in the Senate, to change the practice? I 
understand you can list a few cases where there were exceptions in the 
history of handling judicial nominations in this country, but if you 
look at the thousands, indeed tens of thousands of judicial 
nominations, the policy and practice of the Senate has been not to 
delve into the confidential documents for the very reason every former 
living Solicitor General has said it would compromise the ability of 
its office to do its work effectively.

  Do you believe it is the right policy for the Senate to begin putting 
some standard on those who would become nominees of any President, 
Republican or Democrat, to a position in the U.S. Judiciary? Should we 
open this door and start demanding that the Solicitor General's Office, 
the Justice Department, and other contacts, or in any other situation, 
start revealing these confidential internal work documents by career 
  (Mrs. DOLE assumed the Chair.)
  Mr. DURBIN. In response, Miguel Estrada does not see a problem with 
this at all.
  Mr. CRAPO. Miguel Estrada believes his papers will show support for 
him. But the principle here is the principle--
  Mr. DURBIN. I would like to respond, if I could. In fact, because 
Miguel Estrada does not see a problem with this is an indication to me 
that perhaps some in the White House are being overly cautious again. 
They coached Miguel Estrada to come before us and not answer questions 
and now when he says, disclose the memoranda, they are saying, no, no, 
we did not want the Senate raising that.
  Going to the point raised by the Senator as to in the history of this 
Senate how often this has occurred, let me reflect on this for a 
moment. In most instances, this will never happen. There are only a few 
nominees who will come before the Senate who actually have generated 
this kind of documentation in the Solicitor General's Office or the 
Department. And many of those nominees will have an open record as 
judges with their writings to indicate what they believe. And most, if 
not all, of them will have been responsive to the questions that we 
have asked of the nominees.
  We find ourselves backed into this corner with Miguel Estrada because 
he does not have a body of established opinions as a judge. He does not 
have an abundance of writings reflecting on his philosophy. He has not 
answered the questions which we have asked of him. And we are straining 
to find some information on which to base a reasoned judgment about his 
nomination to the second highest court of the land for a lifetime 
  We find ourselves in the difficult, and I think somewhat rare, 
situation that has been created by Miguel Estrada and the strategy of 
the White House in sending this nominee to Capitol Hill. I think that 
is rare. I hope it does not happen again.
  I yield for a question.
  Mr. CRAPO. It is not just the White House. As I indicated, this is 
every living former Solicitor General in the United States who is 
saying this issue goes far beyond the Miguel Estrada nomination. It 
goes to the core of what the Senate should be dealing with in terms of 
its investigation of judicial nominees and what they can do to our 
judicial system and to the Justice Department in that context.
  But you indicated also in your answer that Miguel Estrada did not 
answer the questions asked of him by the Judiciary Committee. I wish to 
clarify this because I understand he would not reveal the documents 
that we are discussing.
  Were there any other questions which you asked him or which you are 
aware of that he has not answered?
  Mr. DURBIN. Let me suggest you look at the questions asked of him by 
Senator Kennedy, written questions after the nominee appeared, that 
went to specific decided cases and asked for his response or reasoning. 
Time after time he came back and said: Well, I have to read all of the 
pleadings that were filed and all the briefs that were filed before I 
would hazard an opinion upon this.
  Similarly, when Senator Schumer asked him what I thought to be a 
perfectly reasonable question, one that had been asked by Republican 
Senators of Clinton nominees, repeatedly he refused to answer. The 
question was one that you would dream of in a constitutional law course 
in law school. The question was: Name a Supreme Court decision in the 
last 40 years--or a followup question, at any time in its history--that 
you would find objectionable.
  If that were the question on the final at law school, you would 
breathe a sigh of relief. You can think of one case with which you 
disagree. But this man, seeking a lifetime appointment to the second 
highest court in the land, would not answer that question.
  I asked: Which Federal court judge, living or dead, would you emulate 
or admire on the bench? He went on to say, first, that he could not 
name a single Federal court judge, living or dead, he would try to 
emulate on the bench.
  He then, in later response to the same question, said: I admire some 
of the Federal Court Justices I have worked with. I can understand 
that. That is a reasonable response.
  But do you understand how we, sitting on this side of the table, are 
saying how can this man, who is clearly a gifted individual with 
extraordinary legal talent, be so afraid to share with us one Supreme 
Court case that he disagrees with?
  That was a question Senator Sessions asked of Richard Paez, and I 
don't believe a Democrat stood up and said: That is not fair. You have 
gone too far.
  It is a reasonable question. It gives you insight. Is he going to 
mention Brown v. Board of Education? Is he going to mention Roe v. 
Wade? What case is he going to mention? He wouldn't mention one. 
Doesn't that trouble you? I ask my colleague and friend, doesn't that 
trouble you, that someone who is seeking that kind of legal appointment 
wouldn't be honest and candid with you? For the sake of yielding to my 
colleague for a question

[[Page S2759]]

and for him to answer my question, I will yield.
  Mr. CRAPO. I will respond and ask a question, how is that?
  Mr. DURBIN. Sure.
  Mr. CRAPO. Not having sat in the hearing, I don't know how much it 
would trouble me. I can't tell you if a witness would not answer my 
questions I wouldn't be troubled by it. I don't think that would cause 
me to try to filibuster the nomination, which is really one of the core 
issues we are dealing with here. I might vote no because of it. And you 
are perfectly entitled to vote no if you don't like the answers to your 
questions. But we are way beyond not liking the answers to questions 
here. We are seeing a filibuster of a nomination to the Circuit Court 
of Appeals for the District of Columbia. It is based, as I understand 
it, in large part on the fact that confidential documents are not 
  What I am trying to get at is: What else? What I have heard at this 
point is the nominee did not identify which was his favorite and least 
favorite Supreme Court case, and that he would not say how he would 
have judged a particular case until he had read the briefs and studied 
the matter more carefully. Frankly, I think that makes him a better 
  Mr. DURBIN. I am sorry, I am going to have to interject at that 
point. We didn't ask him how he would rule on a particular case. We 
asked him, on deciding cases, to explain his position on an accepted 
standard of law. We could not and should not and I don't think any 
Member would ask him how he would rule on a specific case pending 
before the Court. That is way beyond the bounds.
  Let me just say, though, this is an interesting thing on which I 
think my colleague might reflect. This comes from the Legal Times of 
April 2002. It's a quote:

       President George W. Bush's judicial nominees received some 
     very specific confirmation advice last week: Keep your mouth 
     shut. Justice Scalia called DC Circuit Judge Silberman at one 
     point, the latter recalled, and told him he was about to be 
     questioned about his views about Marbury v. Madison, the 
     nearly 200-year-old case that established the principle of 
     judicial review.

  That's almost the first case--McCulloch v. Maryland and Marbury v. 
Madison--the first two cases you'll ever read in constitutional law. 
Listen to what Silberman told him.

       ``I told him as a matter of principle he should not answer 
     that question either,'' Silberman said.

  So you understand we are not just dealing with my interpretation as 
to whether or not Miguel Estrada is cooperative; we are dealing with a 
strategy: Keep your mouth shut. Don't tell the Senate, don't tell the 
American people, don't put on the record who you are and what you 
believe. Zip your mouth, hold tight, wait for the vote, and we will 
give you a lifetime appointment to the second highest court of the 
land. I don't think that is a fair way to approach this process.

  Mr. CRAPO. Will the Senator yield?
  Mr. DURBIN. After I finish. When the Clinton nominees came before the 
Judiciary Committee under the control of the Republicans, they were 
peppered with questions. Some of those questions I think went way 
beyond the realm of reasonable inquiry.
  I can recall one woman from California who was asked to explain how 
she had voted on every proposition before the California voters over 
the previous 10 years; in other words, to disclose the secrecy of the 
ballot place, how she had voted and why on every proposition. That was 
a question propounded by a Republican Senator from the Judiciary 
Committee, still serving there, to this Clinton nominee. She said that 
is unfair, and we agreed with her. Because of that stance she took, she 
waited forever and ever to be confirmed.
  In this situation I think what we are dealing with is a reasonable 
inquiry--positions on Supreme Court Justices, Supreme Court cases. We 
are not asking for Miguel Estrada to disclose his personal conscience 
and feelings on issues that may be of some personal note to him, but, 
rather, to focus on his view of the law. I think that is reasonable. I 
hope we will continue in our efforts to do that.
  I might say to the Senator, I am going to move to another topic. If 
he is interested in staying, of course, he might.
  Mr. CRAPO. Will the Senator entertain one more question before he 
moves on? I do appreciate him allowing me to engage in this discussion 
with him.
  Again, I am trying to make it clear so we understand just exactly 
what it is that is being said Miguel Estrada has not disclosed. We 
talked about the documents in the Solicitor General's Office that he 
prepared as a career attorney. We talked about his failure to identify 
which was his favorite and least favorite Supreme Court case. And 
apparently--I was not at the hearing because I don't sit on the 
Judiciary Committee--he did not answer Senator Kennedy's questions 
about some current cases to the satisfaction of the Senators.
  Is there anything else that is holding him back? Again, the reason I 
am getting at this is because we are facing a remarkably unique 
circumstance here, the filibuster of a circuit court nomination on the 
basis of nondisclosure. I want to get out exactly what that 
nondisclosure is so we and the American public can understand that. 
Then we can deal with it on a very focused basis, on a point-by-point 
basis and, where there is merit on either side, deal with it.
  But the general charges, it seems to me, of nondisclosure and not 
answering questions to the satisfaction of a Senator usually result in 
a Senator saying I don't like the way the answers were given so I am 
going to vote no on the nomination. Instead, at this point we are 
facing a filibuster, which I believe is a serious threat to the manner 
and the protocol with which the Senate has approached Presidential 
nominations to the judiciary and is much broader than just the 
nomination of this individual judge.
  So we have two issues which to me are much broader than this specific 
nomination. The first is whether we should have the Senate start 
inquiries into confidential Solicitor General documents, and the second 
is whether the Senate should be stopped from voting on a Presidential 
nomination by a filibuster when we are dealing with nominations to the 
judiciary. That will change the way this Senate has operated 

  Mr. DURBIN. Let me just say to my colleague, I have given him great 
leeway in his questioning.
  Mr. CRAPO. You have.
  Mr. DURBIN. And for specific reason. I thank him for coming to the 
floor, even though we disagree on this issue. This deliberative body 
doesn't deliberate much. There is not much debate on the floor of the 
Senate and that is sad. I thank him for coming to the floor and for 
engaging me in questions. I think he will find, almost without 
exception, I always yield for questions because I happen to believe 
that is what this is about. It is a deliberative body. We should 
express our points of view. Let our colleagues and those following 
debate decide who is right and who is wrong. I thank him for asking 
those questions.
  I think what he has said is he has a difference of opinion from my 
point of view on the disclosure of documents. That is an honest 
difference. I think what I have said is in the past there has been 
disclosure, lines have been drawn, but in this case the White House 
said no disclosure when it comes to Miguel Estrada's documents, and 
that is an important issue before us.
  Second, he has asked for a bill of particulars: Give us the specific 
questions that you didn't like when it came to Miguel Estrada's 
responses. I have given him several. That is not an exclusive or 
exhaustive list. I think other members of the Judiciary Committee could 
come up with more.
  If the Senator is suggesting we should resubmit the questions and see 
if he takes the test a second time whether he can pass it, maybe that 
would move us down the road a little closer to a final vote on this 
  I want to add here it is unusual for there to be a filibuster on a 
nominee to such an important bench, but it is not unprecedented. I 
don't know if my colleague was in the Senate when the Richard Paez 
nomination came before us. But the fact is, he would not have been 
confirmed had it not been for a cloture vote that had to be filed. 
Paez, who waited patiently for over 4 years before the Senate Judiciary 
Committee, finally had to have a cloture vote in which he prevailed to 
become a Federal judge.

[[Page S2760]]

  The Republicans, then in a position to launch a filibuster, did it on 
a Hispanic nominee not that long ago, in March of 2000. We know when it 
came to Richard Paez, the standard used by many Republican Senators was 
we will filibuster him. It took a cloture vote to stop the filibuster. 
I don't know if the Senator was in the Senate at that time. I think he 
was. I do not know how he voted. But the fact is some Members felt 
strongly enough about the Paez nomination that they went ahead and 
initiated this kind of filibuster.

                              The Economy

  Mr. President, I would like to move on to another issue if I can. It 
is one I think bears some attention by the Senate and those following 
the deliberation. We are now in the third week of debating Miguel 
Estrada. It is an important issue.
  Today, I noticed when President Bush spoke to the Latino Coalition in 
the Executive Office Building, the first issue he raised was not Miguel 
Estrada but it was an important issue--and I am sure he did that for 
emphasis--but when it came to the issues raised by the President of the 
United States to the Latino Coalition in the Executive Office Building, 
the first issue he raised was the state of the economy. It is 
interesting to me that though the President raised this issue, we can't 
raise this issue on the floor of the Senate.
  Yesterday, the minority leader, Tom Daschle, made a unanimous consent 
request which I am going to repeat in a few moments that we move from 
this debate to a debate on the state of the economy--and I think for 
good reason.
  As you look across America, you think people will realize our economy 
is in a sad state. This is a recession which has gone on entirely too 
long. My friends on the Republican side say this is a Clinton 
recession. I am afraid the statute of limitations has run on that 
particular complaint.
  At this point in time, 2.5 million jobs have been lost since 
President Bush took office. He is going to have to take ownership for 
this recession.
  There are many factors which led to this recession. There is no doubt 
the economy heated up prior to his coming into office, and there was 
going to be a correction. There is no doubt as well that terrorism and 
9/11 took its toll on the economy, and continue to, I might add.
  There is also no doubt that the economic policy pursued by the Bush 
tax cut 2 years ago failed. It didn't work. We continue to lose jobs by 
the cut in interest rates to try to get the economy moving forward 
again. Frankly, we are in a terrible situation. We understand our 
economy needs a boost. Consumer confidence in America is at a 10-year 
low. It was reported yesterday that the Consumer Confidence Index 
plummeted from 4.6 to the revised 7.8, this the lowest reading since 
October of 1993.
  Unemployment is on the rise. Since January 2000, the number of 
unemployed increased by nearly 40 percent with nearly 8.3 million 
Americans out of work, and 2.3 million private sector jobs lost.
  Contrast that with the Clinton administration where 22 million jobs 
were created. In the Bush administration of 2 years and a few months, 
10 percent of those jobs have been lost--a 2.3 million increase in the 
creation of jobs. What we have in the Bush administration is the 
elimination of jobs which were previously created by the Clinton 
  Unemployment spells are lengthening because companies are not hiring. 
It isn't a problem of losing a job today and finding another one next 
month. The average number of weeks individuals spend unsuccessfully 
seeking work increased by a month over the past year. Approximately 20 
percent of all the unemployed have been looking for work for more than 
6 months. Wage growth is now stagnant. The shortage of jobs has 
slowed--I might add, as has the increase in the cost of health 
insurance, another issue which this administration summarily ignores.
  Today, President Bush spoke to the Latino Coalition about small 
businesses and what we need to do to help small businesses. Instead of 
a tax plan that will help small businesses, let me suggest as follows. 
What the Bush tax plan offers to the wealthiest individuals in America 
is a three-layered cake. What the Bush tax plan offers to small 
business is crumbs; things that, frankly, are not controversial in 
terms of expensing. But the vast majority of the tax cut the President 
is pushing will not stimulate today's economy, but it will burrow us 
deep into a deficit which, frankly, is not fair. The fact is they are 
giving tax breaks to the wealthy people.

  The President failed to mention what I would suggest would be the top 
one or two complaints of small businesses in America today. You pick 
them. Open the phone books and call a small business person and ask, 
What is your problem today? They will say the economy is not strong. 
People aren't buying. What about your expenses in business? What kind 
of problems do you face? I guarantee you the answer will be the cost of 
health insurance. And not a word, not one word from the Bush 
administration about how to deal with that.
  I introduced a bill to give a tax credit to small businesses which 
would allow them to provide health insurance for their employees. It 
doesn't answer the problem. But at least it is sensitive to trying to 
help small employers employ their people as well as the owners of the 
business dealing with health insurance protection. That, to me, is a 
reasonable approach, and something that would help small businesses, 
which is summarily ignored by the Bush administration.
  The track record we have now for job creation is the worst in 58 
years. In order for the Bush administration to tie the Eisenhower 
administration for the worst job creation record ever, President Bush 
would have to create 96,000 jobs a month starting today to the end of 
his term. He is not going to get that done, I am afraid. I hope I am 
wrong. I hope the economy turns around.
  But isn't it interesting, with the economy in a basket struggling to 
survive, that we can't even engage in a debate on the floor of the 
Senate about what steps we can take to get this economy back on track. 
I don't have to tell you about the crisis most States are facing when 
it comes to their budgets. Illinois will have about a $5 billion 
deficit which the Governor is going to have to wrestle with under 
extraordinary circumstances. He will have to cut spending, I am sure. 
There are some who will say he should raise taxes. Whatever he does 
will not help us move out after a recession. In fact, it puts a damper 
on economic growth at a time when we should be putting stimulus. So 
that situation is out there as well.
  I might also add that the situation when it comes to homeland 
security is also a damper on the economy. So many business people 
across America are worried about their vulnerabilities when it comes to 
the economy. They hope this government, starting in Washington, will 
provide a helping hand. But it hasn't happened, because this 
administration has been strong on rhetoric and press conferences, but 
weak when it comes to providing the money so that State and local 
resources can be increased and enhanced.
  Who are you going to call if there is a threat of terrorism in the 
community? Are you going to ask for a telephone number for 1600 
Pennsylvania Avenue to try to get through to President Bush or Vice 
President Chaney? Not likely. You are likely to call 9-1-1 and a local 
policeman or firefighter is going to be the voice at the other end of 
the call. If they are not trained, if they are not equipped, frankly, 
homeland security is a farce.
  We know what is going on in the Middle East today. Troops numbering 
180,000 have been sent by our government--military personnel and 
support personnel--in preparation for the invasion of Iraq. It is clear 
that America is preparing to attack. But we know from the homeland 
security side that America is not prepared to defend. We are not 
prepared to defend the hometown families and neighborhoods and 
communities across America. This administration has not come up with 
the resources we need to make that happen.
  At this point, I would like to introduce into the Record--it probably 
has been done before, but it certainly bears repeating--a letter sent 
to President Bush by my friend and colleague, and ranking Member of the 
Senate Committee on Appropriations, Senator

[[Page S2761]]

Robert C. Byrd of West Virginia. The letter is dated February 23, 2003. 
The reason I want to enter it at this point is that Senator Byrd goes 
through chapter and verse of the take by Democrats in Congress and 
Congress in general to persuade the Bush administration to put more 
money into homeland security. He spells out in graphic detail how this 
White House has stopped our efforts every step of the way. It is a sad 
reality that as we face terrorists at home we are not providing the 
resources that are necessary to the local first responders.
  I ask unanimous consent that the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,

                                  Committee on Appropriations,

                                Washington, DC, February 25, 2003.
     Hon. George W. Bush,
     Office of the President, The White House,
     Washington, DC.
       Dear Mr. President: In your remarks to the National 
     Governors Association on February 24, 2003, you claimed that 
     Congress was to blame for a reduction in homeland security 
     funding in Fiscal Year 2003. Such a claim is wrong, and I 
     urge you to correct it.
       If enacted, the Administration's Fiscal Year 2003 request 
     for first responders, for instance, would have eliminated 
     funding for the Justice Department's Office of Domestic 
     Preparedness; it would have eliminated funding for the 
     Community Oriented Policing Services (COPS) hiring 
     initiative; it would have discarded the Edward Byrne Memorial 
     and the Local Law Enforcement Assistance Block grant 
     programs; and it would have provided absolutely no support 
     for the Assistance to Firefighters grant program.
       A lack of Administration commitment to first responders is 
     just the beginning of the empty rhetoric coming from the 
     White House on homeland security funding.
       Since September 11, 2001, you have signed, with great 
     fanfare, legislation to authorize improvements in airport, 
     seaport, and border security. Yet, your Administration has 
     opposed efforts to fund those bills. On December 10, 2002, 
     you announced a plan for state and local governments to 
     vaccinate 10 million first responders for a potential 
     smallpox attack. But your Administration has passed the 
     responsibility of paying for these vaccines to the state and 
     local governments.
       Last August, you rejected $2.5 billion that Congress, in an 
     overwhelming bipartisan fashion, approved for homeland 
     security efforts. Congress had designated those funds as 
     emergency priorities in the Fiscal Year 2002 Supplemental 
     Appropriations bill. This package include funds to begin to 
     meet the billions of dollars of outstanding applications from 
     18,000 fire departments for equipment and training. The 
     legislation also included grant funding to make police and 
     fire equipment interoperable--a critical weakness in response 
     efforts on September 11, 2001. The homeland security package 
     contained critical funding for port security, for security 
     enhancements at small and medium airports, and for federal 
     law enforcement counterterrorism efforts. The legislation 
     included funding to strengthen security at nuclear plants 
     and laboratories and to protect the nation's food and 
     water supply.
       Instead of embracing this package and agreeing with 
     Congress on its urgency, you called it wasteful. It only took 
     your signature to address these vulnerabilities, but you 
     refused and called the funding wasteful.
       I must note that the Senate Appropriations Committee 
     approved that funding unanimously. In fact, the Committee 
     last July approved each of the 13 appropriations bills on a 
     unanimous, bipartisan basis. But your Administration objected 
     again and again to these bills despite the overwhelming needs 
     facing the nation.
       This past January, during Senate consideration of the 
     Fiscal Year 2003 Omnibus Appropriations bill, I offered two 
     amendments, both aimed at increasing investments in homeland 
     security initiatives from coast to coast. The amendments 
     focused on funding authorization bills that you signed with 
     great fanfare. But again the Administration said the funds 
     were unnecessary and urged the Senate to reject these 
     amendments. The political strong-arm tactics worked, and the 
     amendments were rejected to partisan votes (roll call votes 
     #002 and #003).
       Last spring, the Senate Appropriations Committee held five 
     days of hearings to examine homeland security priorities. The 
     Administration was represented by six Cabinet secretaries, 
     the Attorney General, and the Director of the Federal 
     Emergency Management Agency. They argued the case for 
     homeland security funding plan. However, every local 
     government representative and every representative of fire, 
     police, and emergency response agencies testified that the 
     Administration's funding plan was seriously flawed. They 
     testified that doing away with the funding programs which 
     have proved so valuable was shortsighted and irresponsible.
       In your remarks to the governors, you characterized the 
     Congress's decision to use existing and effective programs to 
     deliver funding to our first responders as micromanagement. 
     Congress chose to fully fund your $3.5 billion first 
     responder request through existing, effective channels rather 
     than launch a new, untested program. This was a responsible 
       In the Fiscal Year 2003 appropriations legislation, 
     Congress chose to be responsible by listening to the men and 
     women on the front lines of homeland security. We heard their 
     needs and answered their calls for help. But, time and time 
     again, the Administration has turned its back to the nation's 
     first responders. Enough is enough.
       I appreciate your desire to protect the nation from 
     terrorist attack, but the job cannot be accomplished with 
     continued political grandstanding. The country needs an 
     Administration that takes an honest approach to homeland 
     security instead of continually making empty promises to the 
     nation's police, fire, and emergency medical teams. The 
     American people want to know that if there is an attack close 
     to their homes, their local doctors and nurses have the 
     training to treat the injured. They want to know that their 
     local firemen have the ability and equipment to handle a 
     chemical or biological attack. They want to know that their 
     local police officers are trained in identifying and 
     responding to the variety of terrorist attacks that we now 
     could face.
       The enemy is not Congress, Mr. President. The enemy is the 
     terrorist who stands ready to exploit the nation's many 
     security gaps. Especially now, when the terror alert is high 
     and war is looming at our doorstep, we must be acutely aware 
     of the sharply increased threat of attack here at home. 
     Instead of pointing fingers and assigning blame, I implore 
     you to expedite the release of the homeland security funds in 
     the Fiscal Year 2003 appropriations legislation and the funds 
     that still are unobligated from the Fiscal Year 2002 
     appropriations bills. The fact that these dollars, approved 
     by Congress in December 2001, sit idle is beyond 
     comprehension. I also hope that you consider expanding the 
     investment in homeland security in the upcoming supplemental 
     bill. As a nation, we know where our vulnerabilities lie, and 
     we can be sure that the terrorists do, as well. We should 
     take every step possible to protect the American people and 
     to provide critical funding for homeland security 
       As we move forward, I urge you to work with Congress in a 
     bipartisan fashion to provide homeland security funding will 
     make a significant investment in the protection of the 
     American people.
           Sincerely yours,
                                                   Robert C. Byrd.
  Mr. REID. Mr. President, will the Senator yield for a question?
  Mr. DURBIN. I would be happy to yield.
  Mr. REID. I appreciate very much the Senator entering that letter 
from Senator Byrd.
  I ask the Senator from Illinois: Is he aware that the reason Senator 
Byrd wrote that letter is because President Bush, at the signing of the 
omnibus bill when we lumped 11 appropriations bills--is the Senator 
aware that he had the audacity to say at the signing of that bill that 
it was OK, but he was upset with Congress for not providing more money 
for homeland security? Is the Senator aware that is why Senator Byrd 
wrote that letter, because it is just not true?
  Mr. DURBIN. Yes. I am aware of it. It is sadly troubling, because 
what the President did in making that statement is to mischaracterize 
what happened.
  The Senator may recall, as I do, that Senator Byrd came before this 
body early on and said to us we have a problem in America. If we are 
going to protect America, we need to make a substantial investment in 
changes such as a statewide communications system for Nevada and 
Illinois so the police, fire, and medical responders can all be on the 
same network if there is terrorist activity or a disaster. These 
investments are basic. And also in the area of bioterrorism, to make 
sure that doctors, nurses, and health care personnel are adequately 
trained and that hospitals are ready if there is anthrax, God forbid, 
as we faced on Capitol Hill.

  Senator Byrd came time and time again to this floor and begged us, as 
a nation, to be responsive. Unfortunately, time and time again, he was 
  When we finally sent a $2.5 billion amount to the White House, asking 
them to put that into homeland security, it was effectively vetoed--
$2.5 billion stopped. So the President cannot point the finger at 
  I say to my friend from Nevada, I am anxious to follow the debate we 
are going to face in a few weeks when we have this administration come 
before us and tell us they need $26 billion for Turkey--$6 billion in 
grants and $20 billion in loan guarantees for Turkey--which has been 
their demand if we are going to be using Turkey as a base of operations 
for an invasion of Iraq.

[[Page S2762]]

  I want the administration to explain to the American people how we 
can afford $26 billion for the defense and security of Turkey and 
cannot afford $2 billion for the defense and security of the United 
States of America when it comes to homeland security. That is going to 
be an interesting debate.
  Mr. REID. Will the Senator yield for another question?
  Mr. DURBIN. I am happy to yield for another question.
  Mr. REID. Is the Senator aware that one of the reasons Senator Byrd 
was so upset--and that is probably too calm a term for how he reacted 
to this statement of the President. Senator Byrd, you will recall, when 
he was chairman of the Appropriations Committee, last year, held a 
series of hearings that went over 2 weeks, where we called in various 
administration officials, people from communities in States around the 
country, to find out what their needs were for homeland security. That 
is why he brought the money number before the Congress. And he was 
rejected by the President.
  Is the Senator aware of that?
  Mr. DURBIN. I am not only aware of it, I attended many of those 
hearings, as I believe the Senator from Nevada did as well. And Senator 
Byrd took it very seriously. He brought in the experts when it came to 
law enforcement, fire protection, and medical personnel, and asked them 
what they needed. It was not this porkbarrel that we are often accused 
of here and of dreaming up ideas on how to spend money.
  He asked the people on the ground: What do you need? What will help? 
When they identified those needs, he put that into legislation, which 
was rejected by this administration.
  So we have a situation, if you would step back for a second, where we 
have an economy on the ropes. We have a President with a failed 
economic policy. We have a war on terrorism, which continues to pursue 
Osama bin Laden, with very little success. We have a homeland security 
program headed up by a man we both respect, Tom Ridge, which, 
unfortunately, is not sending the resources necessary to State and 
local governments so they can protect America.
  Instead, we are preparing to launch an invasion of Iraq. We are 
putting the billions of dollars necessary into that effort and, 
unfortunately, shortchanging homeland security in the process. That, to 
me, shows misguided priorities.
  The President cannot get away with blaming Congress for this. It 
really is a creation of his own administration and their own priorities 
in spending.
  Mr. REID. I have three questions I wish to ask the Senator. Will the 
Senator yield for the first question?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. I had in my office yesterday--and I am wondering if the 
Senator had people from Illinois in his office recently--people who 
came from Nevada and represented 911 centers, especially the Las Vegas 
Metropolitan Police Department, which is a very large police 
department. I spoke to a woman who has worked there for 20 years. She 
proceeded to tell me that she is frightened for the people of Clark 
County. That is in the Las Vegas metropolitan area. If someone calls on 
a regular telephone from their home, they know where that call is 
coming from.
  But a lot of people--because computer use has become so prevalent, 
and they are using computers for telephones, and because of the use of 
cell phones--if someone calls from a computer or cell phone to 911, 
they have no idea where, or who, or anything about that. It is a 
terrible tragedy for the American people.
  Is the Senator aware that is something that money for homeland 
security would identify because the technology is there, they just need 
money to be able to do it?
  Mr. DURBIN. The Senator's point is well taken because I visited the 
911 center in Chicago. It is really state of the art. But there are 
gaps that they face as well. They need the funding for training, for 
improving the communications network, money that is not forthcoming 
from this administration, from this White House.
  I pray to God we never face another terrorist event in America. But 
if we do, this administration will be held accountable as to whether it 
spent the money, when it should have, to prepare America to defend 
itself. And when it comes to this kind of communication effort, I am 
afraid we have not done that.
  Mr. REID. I listened to the Senator outline, as he is so adept at 
doing, the situation we have in the American economy today, with 2 
million people unemployed. The Senator has laid out a very good picture 
of what we have going on in America today.
  Is the Senator aware of the nonpartisan organization called the Pew 
Research Center? Is the Senator aware of that organization?
  Mr. DURBIN. Yes, I am.
  Mr. REID. I ask, is the Senator aware they conducted a poll, which 
was completed on February 18, of 1,254 adults? Is the Senator aware 
that when asked the question on how President Bush is handling the 
economy, 43 percent of the people said yes, he is doing fine, but that 
48 percent of the people asked that question disapproved? Is the 
Senator aware of those numbers?
  Mr. DURBIN. I heard those numbers when the Senator from Nevada 
mentioned them earlier. But I think reality has caught up with the 
administration. Generally, Americans give the President high marks as a 
President. And the numbers have come down, but only slightly. His 
general overall rating is positive. I think a lot of that reflects on 
his leadership since 911 and perhaps in the Middle East. But when asked 
specifically about the state of the economy, that is when the chickens 
come home to roost.
  I think that is the point where the President and the White House is 
failing. They have failed because their economic policy--giving tax 
cuts to the wealthiest people in America, generating the biggest 
deficits in our history--really has us headed down the road which we 
all understand would be a road of economic ruin.
  Mr. REID. Will the Senator yield for another question?
  Mr. DURBIN. I am happy to yield for a question.
  Mr. REID. Is the Senator aware that this same poll asked how 
President Bush is handling tax policy? The Senator has made a number of 
statements on this floor, and he personally disagrees with the tax 
policy enunciated by this President. I am happy to report, from this 
poll, people in America agree with the Senator and not the President.
  Is the Senator aware that 42 percent of the people approve of the way 
George W. Bush is handling tax policy, and 44 percent disapprove? Is 
the Senator aware of that?
  Mr. DURBIN. I had not heard those numbers before, but I think I can 
understand why the American people reached that conclusion. Because the 
President promised the age-old Republican response: If you just cut 
taxes on the wealthiest people in America, it is bound to enliven and 
energize the economy. Well, he did it. I voted no when it came to that 
issue. But it passed. It did not work. What happened was we wound up 
with a deficit and a weaker economy.
  So the Bush tax plan failed in the first instance. Now the President 
has said: I have a new economic policy, and it is called: More of the 
same; let's try to do this, and do it at even greater levels, which 
will drag us more deeply into deficit.
  I would like to illustrate this point to the Senator from Nevada by 
showing him a couple charts, if I can find them.
  President Bush, on January 29, 2002, in his State of the Union 
Address, was quoted as saying:

       Our budget will run a deficit that will be [a] small and 
     short term [deficit.]

  Then, take a look at what this means. We are going to have record 
deficits in terms of the Bush administration, the legacy that is going 
to be left from the President. The actual deficits, which our children 
will have to pay, are going to break records.
  Isn't it interesting that the Republicans, who have fashioned 
themselves as fiscal conservatives, now find themselves, once again, in 
a posture of creating the biggest deficits in the history of the United 
States--harkening back to President Ronald Reagan's administration?
  But if you take a look at the surpluses, which we thought we would 
enjoy for a long time to come, they started with $236 billion to $127 
billion. We are paying down the debt in the Social Security trust fund. 
And then it falls off the table.

[[Page S2763]]

  In comes the George Bush tax plan, and the state of the economy, and 
the recession, and look at these deficits start to grow--in the range 
of $300 billion plus. The administration just gives the back of the 
hand to those deficits and says they are not really long-term problems.
  They are long-term problems because they have to be repaid. And it 
does not show the kind of discipline, in which we should be engaged. 
The tax plan proposed by the President is a plan which, sadly, is going 
to plunge the United States more deeply into deficit and is not going 
to revive the economy.
  Mr. REID. Will the Senator yield for another question?
  Mr. DURBIN. I will yield for one last question. I see another 
colleague is in the Chamber.

  Mr. REID. I actually have two questions. I know the Senator is 
anxious to leave.
  I will first lay the basis for my question. The numbers the Senator 
has on that chart are basically inaccurate to the effect that it does 
not include the disguise that is taking place down at Pennsylvania 
Avenue, because Social Security surpluses are there to dampen the 
amount of the deficit. Actually, the deficit is about $485 billion, not 
$304 billion, because the Social Security surpluses are being used to 
disguise the budget.
  Is the Senator aware of that?
  Mr. DURBIN. I am aware of that. I think it is a good point to be 
made. These true deficits are at the expense of the Social Security 
trust fund. In the closing years of the Clinton administration, 
surpluses that we generated were paying off the debt of the Social 
Security trust fund, making it a stronger program for years to come, as 
baby boomers will arrive and ask for benefits.
  Now, in the Bush administration, with tax cuts for the wealthiest 
people in America, we are raiding the Social Security trust fund and 
weakening it at a time when we know we need it the most.
  Mr. REID. Last question. The Senator has spoken about the need for us 
to be doing something other than just talking about a man who is fully 
employed, in contrast to the 2.8 million people who have lost jobs 
under this administration. The man we are debating now has a job 
downtown where he makes lots of money. We should be doing something 
else. The Senator, I am sure, is not aware of this statement because it 
was made during the noon hour and he has been on the floor. I would 
like the Senator to tell me if he is familiar with Robert Novak.
  Mr. DURBIN. Yes. He is an Illinois resident, who grew up in Joliet. I 
have been on ``Crossfire'' with him many times.
  Mr. REID. Bob Novak said today:

       Well, the Republicans figured that they would be home at 
     their recess last week and find out what the people wanted. 
     Apparently, the people weren't interested in Estrada, because 
     the Republicans have no idea what to do in the Senate. They 
     had a leadership meeting yesterday afternoon [that was 
     Tuesday] couldn't figure anything out, had a luncheon of all 
     the Republican senators, didn't figure it out. All that's 
     decided is, they're not going to ask for a cloture vote to 
     force an end to the filibuster, because they'd lose that. But 
     they have no strategy for around-the-clock sessions. They 
     don't know what to do. The Democrats are winning.

  So that former resident of the State of Illinois said this, and would 
the Senator agree with him?
  Mr. DURBIN. The Senator is putting me on the spot to agree with Bob 
Novak. I will not question his conclusion, unless the Senator on that 
side would like to correct the record. That is the problem faced by the 
Republican caucus.
  I say to the Senator from Nevada that I am prepared to deliver them 
from their plight. I am prepared to give them hope and direction. I am 
going to make a unanimous consent request that we stop this debate 
right now and move immediately to the consideration of an economic 
stimulus package and that we engage all of the Senators, Democrats and 
Republicans, to come to the floor and talk about what we can do to turn 
the economy around, create jobs, create consumer confidence, give 
businesses some hope, try to find some way to put Americans back to 
  Let's stop talking about Miguel Estrada, who has a good job downtown 
for a law firm, and start talking about the millions of Americans who 
are worried about their jobs and whether they will have them in the 
  When I make the unanimous consent request, if there is no objection, 
I say to those following the debate, we will move directly to the 
economic stimulus package. In that debate, perhaps by the end of the 
week, we can come up with something that shows that the Senate cares, 
that this Congress cares about the state of the economy.
  Now, if by chance a Republican Senator stands up and objects to my 
unanimous consent request, that Senator is saying that he does not want 
us to talk about the economy, doesn't want us to talk about economic 
stimulus; he wants us to stay mired down in one judicial nomination for 
the remainder of this week. I cannot believe any Republican Senator 
would object to this unanimous consent request, which I will make now. 
I believe it is going to finally move us away from this judicial 
nomination to the issue people care about across America, getting this 
economy moving.

  Madam President, I ask unanimous consent that the Senate proceed to 
legislative session and begin the consideration of Calendar No. 21, S. 
414, a bill to provide an economic stimulus package for America.
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAPO. Madam President, reserving the right to object. I will not 
object if the request for unanimous consent is amended to provide that 
prior to moving to the legislative calendar, the Senate move no later 
than 6 p.m. today to a vote on the Estrada nomination, up or down, and 
then proceed to the legislative calendar under the consideration of 
both the Republican and Democratic plans.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Madam President, I ask unanimous consent to modify the 
request of the distinguished junior Senator from Idaho, that his 
request be changed to that the vote on Estrada would occur only after 
the memos from the Solicitor General's Office are provided to us, and 
that following that, he submits himself to questioning.
  Mr. CRAPO. Madam President, I will not accept that modification to my 
  Mr. REID. I object to his request.
  Mr. CRAPO. I object to the previous request.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DURBIN. Madam President, there you have it. I tried my best to 
move this debate away from one man, one nomination, to the state of the 
  Basically, what the Senator has said is that unless we can have this 
one nominee, we don't care about the economy; let it languish, falter, 
and let the American people lose hope. We are going to stick with this 
one political issue.
  I think there is a way out of this morass with Miguel Estrada. I 
think we can do it cooperatively, with the production of documents and 
the honest answering of questions. I don't think we should delay the 
business of the Senate indefinitely and ignore the serious problems 
facing our Nation in the process. I hope there will be some 
reconsideration of the issue.
  Mr. CRAPO. Will the Senator yield for a question?
  Mr. DURBIN. I will.
  Mr. CRAPO. Madam President, it seems to me that we can easily move to 
any of these other issues that the Senator and his colleagues have been 
discussing, which we all agree need to be addressed. We can easily move 
there if your side will agree to give up trying to stop the nomination 
of this one single judge.
  So one could say that those who want to hold the floor and focus on 
this nomination are willing to delay debate of other issues until we 
vote on this particular nomination, or that those who are 
filibustering--which is generally understood by the public as an act of 
stopping a procedure and moving to a vote--this particular nomination 
are unwilling to move to these other economic issues.
  Would you not agree that it really comes down to the question of 
whether we want to agree to change the precedent of the Senate and open 
up investigation into these confidential documents of the Solicitor 
General's Office?

  Mr. DURBIN. I will say to my friend, we have talked about this at 
length. I

[[Page S2764]]

believe it is unprecedented. We are asking for the writings of Mr. 
Estrada so we may know who he is. I don't think that is unreasonable.
  There are three conceivable outcomes of the nomination. One is that 
there be a cloture vote called for by Senator Frist to try to bring an 
end to this debate on the floor. That is his right.
  As I noted, there was a cloture vote called on Richard Paez, a 
Hispanic nominee of the Clinton administration. So it has happened 
  There could be a decision by Senator Frist to move this nomination 
back to the calendar. I think the best outcome would be that, finally, 
Miguel Estrada would be open, candid, honest, and not conceal what he 
truly believes about the state of law in America. If he is seeking a 
lifetime appointment to the second highest court of the land, that is 
the least we can ask of him.
  Those are the potential outcomes. What I tried to do was circumvent 
even those three and say let's move to the economy, and maybe at some 
later time move back to Miguel Estrada. But the Senator said, no, we 
don't want to talk about the economic situation in America, about 
unemployment, about job loss and loss of consumer confidence, the 
biggest deficits in the history of the United States. We just want to 
talk about one judicial nomination. That is unfortunate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.

                             A Safer World

  Mr. LEAHY. Madam President, regarding this debate on Miguel Estrada, 
we do have a lot of other issues that seem to be ignored. I am back 
home almost every week in Vermont and I don't find anybody talking to 
me about Miguel Estrada. Even when the White House has sent people up 
and various special interest groups to attack me, nobody seems to 
care--``either the press, the people in my State,'' or anybody else. 
But what they do care very much about is the economy and Iraq.
  More than a half century ago in the aftermath of two catastrophic 
world wars, the United Nations Charter was signed in San Francisco. It 
was dedicated to the prevention and peaceful resolution of conflict. 
The U.N. was largely a creation of the United States, with the support 
of the other great world powers.
  The U.N. has had a difficult history. With the notable exception of 
the Korean war, the Soviet Union and the United States each worked 
throughout the Cold War to ensure that the U.N. Security Council 
remained little more than a toothless forum for debating and passing 
resolutions of little or no effect.
  Even in recent years, the United Nations has had a string of 
failures. It was unable to prevent the slaughter of half a million 
people in Rwanda. It failed to prevent the destruction of the former 
Yugoslavia, which was ultimately stopped only by NATO's intervention. 
United Nations resolutions seeking to resolve the Israeli--Palestinian 
conflict have been routinely ignored.
  The United Nations has also passed resolutions aimed at eliminating 
Iraq's nuclear, chemical, and biological weapons programs, but the 
Iraqi Government has flagrantly tried to subvert those resolutions.
  The United Nations is frequently blamed for these failures. It is 
convenient to ridicule a multilateral organization that often seems to 
be its own worst enemy. But there are also many examples of U.N. 
successes, like peacekeeping missions that are strongly supported by 
the United States but rarely involve any commitment of U.S. troops.
  The U.N.'s effectiveness depends on the political--will or lack of 
will--of its 191 member states. No country--no country--bears more 
responsibility than the United States for the success or failure of the 
United Nations. This has never been more true than today when solving 
so many of the world's problems--especially combating terrorism--depend 
on U.S. leadership and the cooperation of other nations.
  Not surprisingly, when it has served its interests, this 
administration has praised the United Nations and has urged the 
Congress to provide the funds to support it. In fact, a Bush 
administration publication states:

       Acting through the United Nations allows the United States 
     to share the risks and costs of responding to international 

  I applauded President Bush when he went to the United Nations last 
September to seek a resolution calling for the return of U.N. weapons 
inspectors to Iraq. I and others here had urged him to take that step, 
at a time when many of the President's advisers were insisting that a 
resolution was both unnecessary and unwise.
  And I commended Secretary Powell for recognizing the importance of 
securing United Nations support for disarming Iraq, and for his work in 
obtaining a unanimous vote of the U.N. Security Council for that 
  Since then, the inspectors have reported mixed cooperation from the 
Government of Iraq. They have visited hundreds of sites but have not 
found significant evidence of Saddam Hussein's weapons of mass 
destruction, despite Saddam Hussein's failure to explain what happened 
to the thousands of tons of chemical and biological weapons material 
that was known to exist when the inspectors left Iraq 5 years ago.
  The administration's response, with justification, is that Saddam 
Hussein is once again playing a cat-and-mouse game of deceiving the 
inspectors, and that time has finally run out. But the solution is not 
to direct threats and name-calling at some of our oldest allies, or to 
dismiss the U.N. as irrelevant just because some of its members 
disagree with us. It is counterproductive and beneath a great nation.

  It is no less harmful to mislead the American people. Yesterday's 
Washington Post reported that the President and other administration 
officials continue to say publicly that the President has not made a 
final decision about whether to invade Iraq. These statements lack 
credibility, especially when the Pentagon continues to amass tens of 
thousands of U.S. troops on Iraq's borders.
  Yet the White House is telling our potential coalition partners that 
the decision to invade Iraq has been made. The President has made it, 
they say, and nothing the U.N. Security Council says or does will 
change that. They warn that unless the U.N. Security Council abandons 
the inspections process and supports a U.S.-led military invasion, the 
United Nations will become irrelevant.
  At the same time that White House officials dismiss any meaningful 
role for the Security Council in the decision to go to war, they are 
calling on the U.N. to prepare to help take care of as many as 2 
million Iraqi refugees once the war begins. And they make no secret of 
the fact that they expect the U.N. to play a central role in the 
reconstruction of a post-Saddam Iraq.
  One of the lessons of the gulf war was that it was far safer for our 
troops, and of critical importance to our continued relations with the 
Arab world, to build a broad international coalition in support of the 
use of force. The importance of that coalition has been lauded by 
administration officials and Members of Congress, time and again, in 
public statements and in testimony.
  Nothing that has happened since, and nothing that we have heard from 
this President or his advisers leads one to believe that we should go 
to war without such a coalition. To the contrary, with the threat of 
international terrorism fueled by Islamic extremists who fan the flames 
of hatred of Americans, the arguments for building a strong coalition 
with the backing of the United Nations are even more compelling.
  It has been 28 years since I was first elected to represent my State 
of Vermont in the Senate. I have served during the administrations of 
five Presidents Democrat and Republican. I have had my share of 
agreements and disagreements with each of these Presidents on issues of 
great importance--from the Vietnam war to the dilemma we face today 
with Iraq.
  But never, in all those years, have I seen such an opportunity to use 
the tremendous influence of the United States to unite the world behind 
the common goal of disarmament and in doing so to strengthen the United 
Nations, mishandled with such arrogance.
  Today, apparently only weeks away from a war with Iraq, the United 
States is telling the rest of the world, ``We don't need you.'' Even 
though we will be risking the lives of American men and women in 
uniform to enforce a United Nations resolution, we are

[[Page S2765]]

going to war in spite of our U.N. allies who urge caution and patience.
  The administration's ultimatum on Iraq is but the latest example of 
its disdain for working with other nations to solve global problems 
from arms control to the environment.
  They thumbed their noses at the Kyoto Treaty, even though the United 
States uses wastefully a quarter of the world's resources and is by far 
the largest contributor to global warming.
  They sabotaged the International Criminal Court, despite the fact 
that the United States was instrumental in its conception.
  They have walked away from the Anti-Ballistic Missile Treaty and from 
an agreement to strengthen the biological weapons convention.
  Reasonable people may disagree about the merits of these treaties, 
but the administration has simply walked away. They have offered no 
constructive alternatives, they have unnecessarily poisoned relations 
with allies, and they have undermined our Nation's interests.
  This pattern has not only alienated and angered those whose support 
we need, it has made it easier for others to ignore their own 
international obligations. It has needlessly and recklessly squandered 
the good will we felt after September 11, when the Star-Spangled Banner 
played outside Buckingham Palace and France's Le Monde declared, ``We 
are all Americans''. This attitude has made us less secure, not more. 
The administration squandered that worldwide support.
  I have no doubt, nor does anyone in this Chamber, that our armed 
forces can defeat Saddam Hussein's army, which according to all reports 
is far weaker than it was a decade ago. Nor do any of us differ about 
the desire to see an end to Saddam Hussein's despicable regime. But the 
risk that he will use chemical or biological weapons, and of the horror 
that could result for our own troops, as well as the civilian 
casualties, are hardly mentioned by the White House.
  In the meantime, the situation in Afghanistan so recently the focus 
of attention remains extremely unstable.
  In fact, I read today that Afghanistan has become the largest opium 
exporter in the world.
  The survival of the Karzai government is far from certain, as 
Pakistan, Russia, and Iran continue to provide support and sanctuary to 
Afghan warlords and to the Taliban who fled.
  Osama bin Laden continues to broadcast threats against Americans, and 
al-Qaida remains active in dozens of countries.
  A nuclear crisis on the Korean peninsula threatens to spiral out of 
  In the Middle East, hardly a day passes without shootings or bombings 
by both Israelis and Palestinians. The administration appears to have 
abandoned that crisis.
  Our allies are divided about the need to abort the U.N. inspections 
process and launch a preemptive military invasion of Iraq, and a 
majority of the American people oppose the use of unilateral U.S. 
military force.
  I am not among those who believe that under no circumstances would 
force ever be justified to disarm Saddam Hussein. But why now, when 
there is such discord even among those who agree about the need for 
Iraq to disarm? Why now, when there is no realistic chance that Saddam 
Hussein will seek to carry out an act of aggression as long as the U.N. 
inspectors are there? Why now, when the United Nations is seized with 
this issue? Why now, when giving the inspectors more time could bring 
more key nations on board with us if the use of force becomes 
necessary? Why rush to act in a way that will weaken the United 
Nations, that will further isolate us from many of our closest allies 
and create more anti-Americanism and quite possibly more terrorists?
  This country is not close to being united in favor of a preemptive, 
unilateral war with Iraq. It is not a question of whether we can defeat 
Saddam Hussein. It is a question of the long-term risks to our own 
  The President should listen to the American people. Hundreds of 
thousands of Americans have braved the freezing cold in recent weeks, 
as have millions of people in Europe and elsewhere, to demonstrate 
their opposition to the President's policy. They are protesting not in 
sympathy with the Iraqi government but in opposition to a war that 
might yet be prevented.
  So today, as our Government moves inexorably towards war, we must 
continue to question, we must continue to debate, we must continue to 
do everything we can to support a policy that makes our country and the 
world safer, not only for tomorrow but for next year and beyond.
  If war comes, let us be able to say that it was only because we and 
our allies exhausted every other option, that we acted with the support 
of the Security Council, and in doing so we made the United Nations 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.

                           Foster Care Reform

  Mrs. CLINTON. Madam President, I thank my friend and colleague from 
Vermont for his thoughtful comments. He always brings a really good 
analysis of any situation to the floor and shares it with us, and I am 
very grateful to him for that.
  Occasionally a movie comes to the screen that brings to life the 
stories that have become routine in our newspapers and on our 
television stations, and because of that constant repetition we 
sometimes become numb to the news. That happens across the board on 
many issues, but there is one in particular I wish to address that I do 
not think we can ever afford to be numb to or indifferent toward, and 
that is the abuse and neglect so many children in our country live with 
every day, the children who are shuffled in and out of our foster care 
systems, often with little guidance from or connection to any adult. 
Too often these stories end in the most tragic way possible.
  Seven-year-old Faheem Williams in Newark, NJ, was recently found dead 
in a basement, with his two brothers in a deplorable condition, having 
been chained in that basement for weeks at a time. Six-year-old Alma 
Manjarrez in Chicago was beaten by her mother's boyfriend and left to 
die outside in the snow and cold of the winter. And despite 27 visits 
by law enforcement officials to investigate violence, 7-year-old Ray 
Ferguson from Los Angeles was recently killed in the crossfire of a gun 
battle in his neighborhood.
  Unfortunately, I could take up quite a few minutes of my allotted 
time telling even more tragic stories such as these, but today I want 
to focus on a different kind of story, a story of hope and possibility, 
the story of Antwone Fisher.
  Mr. Fisher overcame tremendous odds. He was born in prison, handed 
over to the State, and lived to tell his story of heartbreaking abuse. 
At the age of 18, he left foster care for the streets, with nowhere to 
turn. He found the support, education, and structure he desperately 
needed in the United States Navy. In the Navy, Mr. Fisher received a 
mentor and professional counselor who helped him turn his life around.
  Mr. Fisher survived that childhood of neglect, abuse, and violence, 
and has lived to inspire us all and send a stern reminder that it is 
our duty to reform the foster care system. I believe we have a moral 
obligation to make sure that no child languishes in this system, left 
to develop his or her own survival skills, without the attention, 
guidance, discipline, and love every child is entitled to from at least 
one caring, responsible adult.
  I believe Antwone Fisher's success story should be the rule, not the 
exception. Tonight, House Majority Leader Tom DeLay and I will be 
cohosting a screening of the movie ``Antwone Fisher''--Mr. Fisher's 
life story. This is a screening for Members of Congress, but I urge 
anyone listening or watching today to seek this movie out in their 
movie theater, because it is an inspirational story. It makes you cry, 
it makes you laugh, but it leaves you with the very strong fundamental 
faith that every one of us can do something to help a child like 
Antwone have a better life.
  Tom DeLay and I decided to host this together because we both feel it 
is imperative to raise national awareness about foster care. Because 
Antwone Fisher's story is inspirational, we hope his movie will give 
all of us in this Chamber and in the House the inspiration to tackle 
this tough issue.
  In the year 2000, Congressman DeLay and I received an award together 
from the Orphan Foundation of America for

[[Page S2766]]

the work we have both done over many years in the area of foster care 
and adoption. My staff and Congressman DeLay's staff have been working 
together to try to figure out how we could, across party lines, from 
both Houses of Congress, help to create the kind of attention that is 
needed in the lives of our foster care children.
  I commend the commitment Congressman DeLay and his wife Christine 
have. This is not just an issue for them. They are certainly strong 
advocates for foster children, but they are also foster parents.
  I hope my colleagues in the Senate will join us tonight at the Motion 
Picture Association for this viewing. For those who cannot join and for 
those who are watching at home, I want to share a little bit about 
Antwone Fisher's story. People should know that his book, called 
``Finding Fish,'' is just as good as the movie. So go out and buy that. 
Pass it around. Make sure everybody you go to school with, you work 
with, you go to church with sees this book and sees this movie.
  I would like to read a section from the book. Here is how Mr. Antwone 
Fisher describes his life story:

       The first recorded mention of me and my life was from the 
     Ohio State child welfare records: Ward No. 13544. Acceptance: 
     Acceptance for the temporary care of Baby Boy Fisher was 
     signed by Mr. Nesi of the Ohio Revised Code. Cause: Referred 
     by division of Child Welfare on 8-3-59. Child is 
     illegitimate; paternity not established. The mother, a 
     minor is unable to plan for the child.' The report when on 
     to detail the otherwise uneventful matter of my birth in a 
     prison hospital facility and my first week of life in a 
     Cleveland orphanage before my placement in the foster care 
     home of Mrs. Nellie Strange. According to the careful 
     notes made by the second of what would be a total of 
     thirteen caseworkers to document my childhood, the board 
     rate for my feeding and care costs the state $2.20 per 

  Fisher continues to describe the document and writes that the child 
welfare caseworker felt that his first foster mother had become ``too 
attached'' to him and insisted that he be given up to another foster 
  The caseworker documents this change,

       Foster mother's friend brought Antwone in from their car. 
     Also her little adopted son came into the agency lobby with 
     Antwone . . . They arrived at the door to the lobby and the 
     friend and the older child quickly slipped back out the door. 
     When Antwone realized that he was alone with the caseworker, 
     he let out a lusty yell and attempted to follow them.
       Caseworker picked him up and brought him in. Child cried 
     until completely exhausted and finally leaned back against 
     caseworker, because he was completely unable to cry anymore.

  I know a little bit about this because when I was a law student in 
the late 1960s and very early 1970s, I worked for the Legal Services 
Organization. The first case I was assigned to was representing a 
foster mother who had signed up with the State of Connecticut to care 
for foster children, and in the contract she signed, it said she would 
never try to adopt any of her foster children. She was just a weigh 
station. The children were supposed to be just passing by and through. 
This little girl who came to live with my client was a child of mixed 
race, a beautiful little girl. She was left with her foster mother for 
a couple of years. And, boy, did that foster mother get attached. 
Wouldn't you want a person taking care of a child to become attached? 
And just as with Antwone Fisher's case, when the State found out that 
the foster mother had gotten attached to this little girl, they decided 
they needed to move her on, put her up for adoption, take her to 
another foster home, but to break the attachment.
  I was part of trying to reverse that rule that governed in all the 
States in the 1960s and early 1970s. I was unsuccessful, although later 
in Arkansas I tried a case where I was able to reverse that rule, 
making the argument that is not the best interests of the child 
supposed to be the guiding standard? Why would we let a bureaucracy and 
the rules of a bureaucracy determine what is in the best interests of a 
child, as long as that child was well cared for and that child had a 
home that was loving and supportive? Why would we break it up?
  That is what happened to Antwone Fisher. All through his case files, 
everyone always seemed to be slipping away in one sense or another. 
When he arrived at his next foster home and as he grew, he was first 
not told about the circumstances of his birth. All he knew was that he 
felt unwanted, that he did not belong anywhere to anyone. It was not 
long before he came to the conclusion that he was an uninvited guest. 
It was his hardest earliest truth that he wanted to belong somewhere. 
He wanted a mother and a father. He never knew that. He never knew a 
mother, a father, or a permanent home. Instead, he was left to fend for 
himself until he was expelled from foster care at the age of 18.
  That is what we used to do everywhere. It is what we still do in lots 
of places. When you finish high school, you turn 18, whichever happens 
first, you are out on the street. I have literally known children whose 
foster parents and case workers came into the little bedroom, maybe, 
that they shared with somebody else, took all their belongings, put it 
in a black garbage bag, handed the garbage bag to the child and said: 
We are finished with you.
  I cannot even imagine that, but that is what happens. That is what 
happened to Antwone Fisher when he found himself, at the age of 18, on 
the streets and homeless.
  Luckily, somewhere deep inside him, in some sacred place, he found 
the courage and resilience to keep going with his life, and he found 
his way to a recruiting station where he volunteered for the U.S. Navy. 
He needed a place to sleep; he needed food to eat; he needed to be safe 
on the streets, and thank goodness he did. Thank goodness the U.S. Navy 
took a chance on Antwone Fisher.
  There are lots and lots of children just like him in our foster care 
system. There are approximately 542,000 children in our Nation's foster 
care system; 16,000 of these young people leave foster care every year 
just like Antwone Fisher had to. We worked during the last several 
years to try to improve conditions.
  In 1999, when I was First Lady, I advocated for and Congress passed 
the Chafee Foster Care Independence Act which provides States with 
funds to give young people assistance with housing and health care and 
education. It is funded at $140 million annually. That is not nearly 
enough for the needs of these children, but I am very grateful that we 
are doing something to recognize what it means to be the age of 18 and 
have nowhere to go. I have even met foster children who got admitted 
into college and during the holidays when most of us who went to 
college look forward to going home and seeing our friends and seeing 
our family, they begged to be able to stay in the dorm, even if the 
heat was turned off, because they had no home to go to.
  This bill came after the very important bipartisan Adoption and Safe 
Families Act of 1997 where we made the most sweeping changes in the 
Federal child welfare law since 1980 that once and for all said a 
child's safety is the paramount issue in any placement. If you cannot 
return a child to his or her home with their biological parents, with 
their natural family, then let's move to relieve that child of the past 
and put that child in a position to be adopted and placed in a 
permanent home.
  The next major hurdle we need to tackle is the financing system. 
Currently, we spend approximately $7 billion annually to protect 
children from abuse and neglect, to place children in foster care, and 
to provide adoption assistance. The bulk of this funding falls to 
States as reimbursements for low-income children taken into foster care 
when there is a judicial finding that continuation in their home is not 
safe. This funding provides payments for foster families to care for 
foster children, as well as training and administrative costs which 
gives children a safety net. But it is not enough because the financing 
is focused on the time when the child is in foster care. The longer the 
child stays in foster care, the more money the States get, which makes 
no sense to me. We ought to have the incentives in the other direction.
  Try to provide the services so you can reunite a child with their 
family or make the decision to terminate parental rights and put a 
permanency plan into effect so the child can have a better shot at the 
  I appreciate that President Bush has put a proposal on the table to 
change the way foster care is financed. I look forward to working with 
him and my

[[Page S2767]]

colleagues to try to deal with some of these legitimate issues around 
financing. But I cannot support block-granting our child welfare system 
because it is imperative we have standards. If the States could have 
done this on their own, without Federal oversight funding and 
standards, they would have done so.
  Therefore, we have to ask ourselves, How do we maintain child safety 
protections that we passed in the Adoption and Safe Families Act? How 
do we require the targeting of funds to prevention and postfoster care 
services? What happens if there is a crisis and more foster care 
children enter the system? These are all important questions. They 
deserve answers. But it is critical we begin the process to look at how 
we change the incentives.
  In the past, my colleagues, Senators Landrieu, DeWine, and Grassley, 
put forth a proposal to restructure the priorities in our child welfare 
system. I think their proposal was headed in the right direction. It 
ensured that incentives were in place so that foster care stays would 
be shorter. I applaud my colleague Senator Rockefeller, who has been a 
long-time champion on these issues, for his welfare reform bill which 
offers an alternative to financing child welfare by aligning foster 
care and adoption assistance with TANF eligibility.
  I look forward to tackling this hard issue in the months ahead. I 
look forward to seeing the number of children in foster care decrease. 
I look forward to seeing more children in foster care being reunited 
with their birth families or being placed into permanent, loving homes.
  For those of you who want more insight into what this issue is truly 
all about, I urge you to see the movie ``Antwone Fisher,'' to read Mr. 
Fisher's book ``Finding Fish,'' to understand that may be just one 
story but it stands for countless others, innocent children to whom we 
owe a chance for a better life.
  I ask unanimous consent that an article appearing in USA Today be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                            [From USA Today]

         Easing Foster Care's Pain Unites Disparate Politicians

               (By Hillary Rodham Clinton and Tom DeLay)

       Occasionally, a movie shines the spotlight of public 
     recognition onto a problem that lingers deep in the nation's 
     shadow. It forces the country either to confront the issue or 
     look away. Today, the movie is Antwone Fisher, and the 
     542,000 children languishing in our broken foster care system 
     are the issue.
       Antwone Fisher tells the true story of a boy born in prison 
     and abandoned by his mother to years of abuse, both emotional 
     and sexual, in foster care. The compelling story of his life, 
     written by Fisher, is about a child's hope and resilience 
     despite an uncaring system. While we cheer Fisher's success 
     against such abysmal odds, the movie also reminds us that too 
     many still suffer needlessly in a foster care system that is 
     inherently flawed.
       When Fisher turned 18, the system dropped him onto the 
     streets. Fisher turned to the Navy, where he discovered 
     structure, discipline, the power of education and strong 
     guidance from an adult mentor. This powerful catalyst turned 
     Fisher's life around. But what about all of the others in our 
     foster care system whose longing for meaning and direction 
     goes unrequited?
       Every year 16,000 young adults age out of this system. Many 
     grew up without guidance and faced enormous hardships. The 
     foster care system simply did not teach them the basic skills 
     to live independently in the world. They never learned how to 
     cook, balance a checkbook or apply for a job. Without this 
     critical guidance, they emerge from a system unwanted and 
     uncertain about navigating life's turns. In short, they enter 
     adulthood the way they spend their childhood: alone.

                            Reset priorities

       Fisher's story should spark broad reforms of the foster 
     care system, which needs to be changed, one community at a 
     time, so that no more children fall through the cracks. 
     Despite our political differences, we are committed to 
     working together so that children like Fisher do not languish 
     in foster care until at 18, then get expelled with little 
     guidance and support.
       The federal government now gives states almost $7 billion 
     annually to protect children from abuse and neglect, place 
     children in foster care and provide adoption assistance. But 
     the timing is off: Most of the money goes to states for use 
     after a child is removed from a troubled home. Instead, it 
     should be used to provide more preventive resources--to keep 
     children out of foster care to begin with--and to assist 
     children after they leave the system.
       Senators and representatives from both parties acknowledge 
     that we have to change the way we finance our foster care 
     system. Greater emphasis needs to be put on reducing both the 
     number of children in the system and the length of time they 
     stay in foster care. American's children need safe, permanent 
     homes--something Fisher never knew as a child.

                          Bush offers one plan

       We can find a bipartisan solution to reform the way we 
     finance our child welfare system, but both the House and 
     Senate must make reforms a priority. President Bush has 
     offered one proposal that deserves careful consideration. He 
     wants to give states an option to change the way foster care 
     is financed so they can do more to prevent children from 
     entering foster care, shorten the time spend in such care and 
     provide more assistance to children and their families after 
     they leave the system.
       Although reform is never easy, there are proven legislative 
     successes in this area. During the past five years, Congress 
     has passed two major bipartisan child-welfare bills, which we 
     both strongly supported. One helped to nearly double the 
     number of children being adopted from foster care, and the 
     second has helped to provide better transition services for 
     older children who, like Fisher, never are adopted and age 
     out of the foster care system at 18.
       We are no doubt surprising many of our friends by writing 
     this piece together, but that just underscores our point. If 
     a public-policy dilemma can bring the two of us together, it 
     clearly deserves a hard look from everyone. Fisher's success 
     should be the norm for all children who travel through the 
     foster care system, not be one exceptional spark in the 
     darkness of countless children's lives.