[Congressional Record Volume 153, Number 183 (Monday, December 3, 2007)]
[Senate]
[Pages S14703-S14705]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SESSIONS (for himself, Mrs. Clinton, Mr. McCain, Mr. 
        Casey, Mr. Martinez, Mr. Sanders, Mr. Lautenberg, Mr. Dorgan, 
        and Mr. Webb):
  S. 2400. A bill to amend title 37, United States Code, to require the 
Secretary of Defense to continue to pay to a member of the Armed Forces 
who is retired or separated from the Armed Forces due to a combat-
related injury certain bonuses that the member was entitled to before 
the retirement or separation and would continue to be entitled to if 
the member was not retired or separated, and for other purposes; to the 
Committee on Armed Services.
  Mr. SESSIONS. Mr. President, I am pleased today to offer a bipartisan 
bill to fix a serious loophole in the law that has prevented some of 
our wounded warriors from Iraq and Afghanistan from receiving their 
full enlistment bonuses when they are discharged as the result of 
wounds they receive in combat. The Wounded Warrior Bonus Equity Act 
reflects the hard work of several Members of Congress, who put 
partisanship aside to address this serious matter. The men and women of 
our magnificent armed forces serve with incredible courage and bravery. 
In return, the U.S. makes a commitment to them, and the Government must 
fulfill its end of the bargain.
                                 ______
                                 
      By Mr. SPECTER:
  S. 2402. A bill to provide for the substitution of the United States 
in certain civil actions; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition to introduce The 
Foreign Intelligence Surveillance Substitution Act of 2007, to 
substitute the Federal Government for the telephone companies in 
litigation challenging the so-called Terrorist Surveillance Program. 
This is a very complex issue, and I have been discussing it at length 
with my colleagues on the Judiciary Committee. It does raise some very 
important questions, and I begin my analysis by acknowledging the good 
citizenship of the telephone companies for whatever it is that they 
have done. We still don't know all of what that is. But I do not 
believe that it is appropriate to grant what is called ``retroactive 
immunity'' because of what has occurred here.
  The legislation substitutes the U.S. in place of any electronic 
communication service company which provided communications in 
connection with an intelligence activity that was authorized by the 
President between September 11, 2001, and January 17, 2007, and 
designed to detect or prevent a terrorist attack against the U.S.
  In order for substitution to apply, the electronic communications 
service provider must have received a written request from the Attorney 
General or the head of an element of the intelligence community 
indicating that the activity was authorized by the President and 
determined to be lawful. If the provider assisted the Government beyond 
what was requested in writing, this legislation will leave the provider 
on the hook for any surplus assistance. On the other hand, the 
Government will be substituted if the Attorney General certifies that 
the electronic communications service provider did only what the 
Government asked. Once substitution occurs, Federal and State courts 
are directed to dismiss the providers from the action.
  This legislation provides that plaintiffs in these cases may continue 
to send third-party discovery requests such as Rule 45 subpoenas to the 
electronic communications service providers after they have been 
dismissed. Moreover, the bill provides that plaintiffs may also deem 
provider admissions as Government admissions in their case against the 
Government. My legislation provides that the Government will not have 
sovereign immunity in the 40 or so cases currently pending in the 
California Multi-District Litigation.
  This bill provides authority for the U.S. to remove actions from 
State court to Federal court. Notably, the legislation is intended to 
ensure that the Government can only assert those defenses the 
electronic communications companies may assert under current law. On 
the other hand, nothing in the bill is designed to increase or diminish 
the ability of the Government to assert the States Secret privilege. 
The legislation is carefully crafted so as not to disturb plaintiffs' 
standing to bring their claims against the Government.
  Now, recognizing the telephone companies are good citizens, I am 
prepared to see their involvement held to the minimum. We hear concerns 
about them being involved in litigation. Well, I don't know if there's 
much litigation

[[Page S14704]]

for them to be involved in once the Federal Government is substituted. 
Some express dismay over the continued burden of discovery. I am not 
convinced there will be much further discovery here. Some have 
expressed a reticence to having their service technicians, in-house 
counsel, and other employees called as witnesses. Yet, I don't know 
that they are necessarily going to be witnesses. We can't judge that 
now.
  I believe there are very important--perhaps even constitutional--
privacy issues here that ought to be subjected to judicial review. We 
know that important litigation in the Federal court in San Francisco, 
Judge Walker has declined to dismiss a challenge to the Terrorist 
Surveillance Program on State secrets grounds.
  I don't think Congress can stand by, and in the face of what has 
happened, give carte blanche, a free ticket, grant retroactive immunity 
to suggest to future administrations that they can ignore separation of 
powers and they can ignore Congressional oversight and just run 
roughshod over the entire process without being held accountable. The 
better practice is to allow judicial proceedings to take their course 
and let the courts make their own determinations.
  I strongly encourage all of my colleagues, Republicans and Democrats 
alike, to carefully consider this bill as we begin to debate the 
related FISA Amendments Act of 2007.
                                 ______
                                 
      By Mr. WARNER (for himself and Mr. Webb):
  S. 2403. A bill to designate the new Federal Courthouse, located in 
the 700 block of East Broad Street, Richmond, Virginia, as the 
``Spottswood W. Robinson III and Robert R. Merhige, Jr. Federal 
Courthouse''; to the Committee on Environment and Public Works.
  Mr. WARNER. Mr. President, I rise today to offer a bill to name the 
new Richmond courthouse for two distinguished Virginia jurists, Judge 
Spottswood W. Robinson III and Judge Robert Merhige, Jr.
  Since the selection of the College of William and Mary as the site 
for the Nation's first law school, Virginia's contribution to the field 
of law is arguably without equal. Virginia practitioners such as George 
Wythe, Thomas Jefferson, John Marshall, James Monroe and Henry Clay 
have all profoundly shaped and molded our country's legal traditions.
  Continuing in that rich tradition, Judge Spottswood W. Robinson, III, 
and Judge Robert Merhige, Jr. were lawyers who throughout their careers 
adhered to the principles of ``equal justice under law.''
  Spottswood William Robinson, III was born in Richmond, Virginia on 
July 26, 1916. He attended Virginia Union University and then Howard 
University School of Law, graduating first in his class in 1939 and 
serving as member of the faculty until 1947.
  Judge Robinson was one of the core attorneys of the NAACP Legal 
Defense and Educational Fund from 1948 to 1960, achieving national 
prominence in the legal community with his representation of the 
Virginia plaintiffs in the 1954 landmark U.S. Supreme Court case Brown 
v. Board of Education that declared ``separate but equal'' schools 
unconstitutional.
  In 1964, Judge Robinson became the first African-American to be 
appointed to the United States District Court for the District of 
Columbia. In 1966, President Johnson appointed Judge Robinson the first 
African-American to the United States Court of Appeals for the District 
of Columbia Circuit. On May 7, 1981, Judge Robinson became the first 
African-American to serve as Chief Judge of the District of Columbia 
Circuit.
  Judge Merhige was born in New York in 1919 and attended High Point 
College in North Carolina. Later, he earned his law degree from T.C. 
Williams School of Law at the University of Richmond, from which he 
graduated at the top of his class in 1942.
  From 1942 to 1945, Judge Merhige served in the United States Air 
Force and then practiced law in Richmond from 1945 until 1967. While 
practicing in Richmond, Judge Merhige established himself as a 
formidable trial lawyer representing a wide variety of clients. In 
August of 1967, Judge Merhige was appointed U.S. District Court Judge 
for the Eastern District of Virginia, Richmond Division by President 
Lyndon B. Johnson, where he served for over 30 years.
  While on the Federal bench, Judge Merhige presided over some of the 
most important and complicated litigation in U.S. history. In 1970, he 
ordered the University of Virginia to admit women, and 2 years later he 
ordered the desegregation of dozens of Virginia school districts. As 
evidence of Judge Merhige's groundbreaking decisions, he was given 24-
hour protection by Federal marshals, due to repeated threats of 
violence against him and his family. His courage in the face of the 
significant opposition of the times is a testimony to his dedication to 
the rule of law.
  I have been down to Richmond to see the new courthouse, and I can 
tell you it is a magnificent structure, and as such, I carefully took 
this responsibility in naming the U.S. Federal courthouse in Richmond. 
No name is more fitting for this important structure than naming it 
after two legal giants--both jurists--the Robinson-Merhige Federal 
Courthouse.
  I thank the Senate for the consideration of this bill and look 
forward to working with my colleagues seeking its passage.
  Mr. WEBB. Mr. President, I am honored to speak on behalf of a bill I 
have cosponsored with my distinguished colleague, the senior senator 
from Virginia.
  It is altogether appropriate that the new Federal courthouse in 
Richmond, our Commonwealth's capital and a city that played a pivotal 
role in our Nation's civil rights debate, be named in honor of two of 
Virginia's most distinguished citizens, Judge Spottswood Robinson, III, 
and Judge Robert Merhige, Jr. Both of these men are considered 
consummate Federal jurists, and both will be remembered as fierce 
defenders of the Constitution and the rule of law.
  Judge Robinson was born in Richmond on July 26, 1916 and passed away 
at his home in Virginia on October 11, 1998. Judge Robinson attended 
Virginia Union University and achieved a number of ``firsts.'' He 
graduated first in his class from Howard University's School of Law. He 
was the first African-American to be appointed to the U.S. District 
Court for the District of Columbia. Also, he was the first African-
American to be appointed to the Circuit Court of Appeals for the 
District of Columbia and the first African-American to serve as chief 
justice of that court. Judge Robinson served on the U.S. Commission on 
Civil Rights and as dean of Howard University Law School. Of his long 
and distinguished career, one of his most notable accomplishments was 
serving as counsel for the NAACP Legal Defense and Educational Fund, 
and acting as one of the principal attorneys in Brown v. The Board of 
Education, arguably the most important civil rights case of the 
twentieth century.
  Professor Jack Greenberg of Columbia University Law School, an 
authority on civil rights law stated, ``[Judge Robinson] was an 
exceptionally capable lawyer. He was good with judges and juries. He 
knew the law. He knew some of the esoteric, technical, sort of obscure 
parts of legal history.'' Considering Judge Robinson's arguments before 
the Supreme Court, Professor Greenberg said, ``He was very calm and 
just absolutely brimming with facts and information and legal 
doctrine.''
  Judge Merhige was born February 5, 1919, in New York, and after 31 
years on the bench, passed away in Richmond on February 18, 2005. Judge 
Merhige presided over the U.S. District Court for the Eastern District 
of Virginia from 1967 until 1998. Judge Merhige received his law degree 
from the University of Richmond's T.C. Williams School of Law. In 1972, 
Judge Merhige courageously ordered the desegregation of dozens of 
Virginia school districts. Despite numerous threats and receiving 24-
hour protection by Federal authorities, Judge Merhige remained faithful 
to the Constitution and the rule of law. Judge Merhige ordered the 
University of Virginia to admit women in 1970 and rejected appeals by 
defendants in the Watergate case.
  A friend of many years, Governor Gerald Baliles, once stated Judge 
Merhige was, ``a man of civility and courage, a gentle but vibrant 
force of the legal realm. . . . [Judge Merhige] was a master of wit and 
could puncture the pomposity of lawyers as well as engage in acts of 
self-deprecation.''

[[Page S14705]]

  These two men were bold enough to recognize and fight to ensure that 
the rights guaranteed under the U.S. Constitution are enjoyed by 
everyone, and not just the privileged or members of a certain race, 
religion, or socio-economic group.
  The names of Judge Robinson and Judge Merhige will be etched on the 
walls of this courthouse. I am committed to ensuring that their legacy 
of equality and fundamental fairness persists in the hearts of all 
Virginians.

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