[Congressional Record (Bound Edition), Volume 153 (2007), Part 13]
[Senate]
[Pages 18053-18059]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Ms. MURKOWSKI (for herself and Mr. Stevens):
  S. 1746. A bill to provide for the recognition of certain Native 
communities and the settlement of certain claims under the Alaska 
Native Claims Settlement Act, and for other purposes; to the Committee 
on Energy and Natural Resources.
  Ms. MURKOWSKI. Mr. President, at the very beginning of the Alaska 
Native Claims Settlement Act of 1971 there are a series of findings and 
declarations of congressional policy which explain the underpinnings of 
this landmark legislation.
  The first clause reads, ``There is an immediate need for a fair and 
just settlement of all claims by Natives and Native groups of Alaska, 
based on aboriginal land claims.'' The second clause states, ``The 
settlement should be accomplished rapidly, with certainty, in 
conformity with the real economic and social needs of Natives.''
  Mr. President, 34, going on 35, years have passed since the Alaska 
Native Claims Settlement Act became law and still the Native peoples of 
five communities in Southeast Alaska--Haines, Ketchikan, Petersburg, 
Tenakee and Wrangell--the five ``landless communities'' are still 
waiting for their fair and just settlement.
  The Alaska Native Claims Settlement Act awarded approximately $1 
billion and 44 million acres of land to Alaska Natives and provided for 
the establishment of Native Corporations to receive and manage such 
funds and lands. The beneficiaries of the settlement were issued stock 
in one of 13 regional Alaska Native corporations. Most beneficiaries 
also had the option to enroll and receive stock in a village, group or 
urban corporation.
  For reasons that still defy explanation the Native peoples of the 
``landless communities,'' were not permitted by the Alaska Native 
Claims Settlement Act to form village or urban corporations. These 
communities were excluded from this benefit even though they did not 
differ significantly from other communities in Southeast Alaska that 
were permitted to form village or urban corporations under the Alaska 
Native Claims Settlement Act. This finding was confirmed in a February 
1994 report submitted by the Secretary of the Interior at the direction 
of the Congress. That study was conducted by the Institute of Social 
and Economic Research at the University of Alaska.
  The Native people of Southeast Alaska have recognized the injustice 
of this oversight for more than 34 years. An independent study issued 
more than 12 years ago confirms that the grievance of the landless 
communities is legitimate. Legislation has been introduced in the past 
sessions of Congress to remedy this injustice. Hearings have been held 
and reports written. Yet legislation to right the wrong has inevitably 
stalled out. This December marks the 35th anniversary of Congress' 
promise to the Native peoples of Alaska, the promise of a rapid and 
certain settlement. And still the landless communities of southeast 
Alaska are landless.
  I am convinced that this cause is just, it is right, and it is about 
time that the Native peoples of the five landless communities receive 
what has been denied them for going on 35 years.
  The legislation that I am introducing today would enable the Native 
peoples of the five ``landless communities'' to organize five ``urban 
corporations,'' one for each unrecognized community. These newly formed 
corporations would be offered and could accept the surface estate to 
approximately 23,000 acres of land. Sealaska Corporation, the regional 
Alaska Native Corporation for southeast Alaska would receive title to 
the subsurface estate to the designated lands. The urban corporations 
would each receive a lump sum payment to be used as start-up funds for 
the newly established corporation. The Secretary of the Interior would 
determine other appropriate compensation to redress the inequities 
faced by the unrecognized communities.
  It is long past time that we return to the Native peoples of 
southeast Alaska a small slice of the aboriginal lands

[[Page 18054]]

that were once theirs alone. It is time that we open our minds and open 
our hearts to correcting this injustice which has gone on far too long 
and finally give the Native peoples of southeast Alaska the rapid and 
certain settlement for which they have been waiting.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1746

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Unrecognized Southeast 
     Alaska Native Communities Recognition and Compensation Act''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds the following:
       (1) In 1971, Congress enacted the Alaska Native Claims 
     Settlement Act (43 U.S.C. 1601 et seq.) (referred to in this 
     section as the ``Act'') to recognize and settle the 
     aboriginal claims of Alaska Natives to the lands Alaska 
     Natives had used for traditional purposes.
       (2) The Act awarded approximately $1,000,000,000 and 
     44,000,000 acres of land to Alaska Natives and provided for 
     the establishment of Native Corporations to receive and 
     manage such funds and lands.
       (3) Pursuant to the Act, Alaska Natives have been enrolled 
     in one of 13 Regional Corporations.
       (4) Most Alaska Natives reside in communities that are 
     eligible under the Act to form a Village or Urban Corporation 
     within the geographical area of a Regional Corporation.
       (5) Village or Urban Corporations established under the Act 
     received cash and surface rights to the settlement land 
     described in paragraph (2) and the corresponding Regional 
     Corporation received cash and land which includes the 
     subsurface rights to the land of the Village or Urban 
     Corporation.
       (6) The southeastern Alaska communities of Haines, 
     Ketchikan, Petersburg, Tenakee, and Wrangell are not listed 
     under the Act as communities eligible to form Village or 
     Urban Corporations, even though the population of such 
     villages comprises greater than 20 percent of the 
     shareholders of the Regional Corporation for Southeast Alaska 
     and display historic, cultural, and traditional qualities of 
     Alaska Natives.
       (7) The communities described in paragraph (6) have sought 
     full eligibility for lands and benefits under the Act for 
     more than three decades.
       (8) In 1993, Congress directed the Secretary of the 
     Interior to prepare a report examining the reasons why the 
     communities listed in paragraph (6) had been denied 
     eligibility to form Village or Urban Corporations and receive 
     land and benefits pursuant to the Act.
       (9) The report described in paragraph (8), published in 
     February, 1994, indicates that--
       (A) the communities listed in paragraph (6) do not differ 
     significantly from the southeast Alaska communities that were 
     permitted to form Village or Urban Corporations under the 
     Act;
       (B) such communities are similar to other communities that 
     are eligible to form Village or Urban Corporations under the 
     Act and receive lands and benefits under the Act--
       (i) in actual number and percentage of Native Alaskan 
     population; and
       (ii) with respect to the historic use and occupation of 
     land;
       (C) each such community was involved in advocating the 
     settlement of the aboriginal claims of the community; and
       (D) some of the communities appeared on early versions of 
     lists of Native Villages prepared before the date of the 
     enactment of the Act, but were not included as Native 
     Villages in the Act.
       (10) The omissions described in paragraph (9) are not 
     clearly explained in any provision of the Act or the 
     legislative history of the Act.
       (11) On the basis of the findings described in paragraphs 
     (1) through (10), Alaska Natives who were enrolled in the 
     five unlisted communities and their heirs have been 
     inadvertently and wrongly denied the cultural and financial 
     benefits of enrollment in Village or Urban Corporations 
     established pursuant to the Act.
       (b) Purpose.--The purpose of this Act is to redress the 
     omission of the communities described in subsection (a)(6) 
     from eligibility by authorizing the Native people enrolled in 
     the communities--
       (1) to form Urban Corporations for the communities of 
     Haines, Ketchikan, Petersburg, Tenakee, and Wrangell under 
     the Act; and
       (2) to receive certain settlement lands and other 
     compensation pursuant to the Act.

     SEC. 3. ESTABLISHMENT OF ADDITIONAL NATIVE CORPORATIONS.

       Section 16 of the Alaska Native Claims Settlement Act (43 
     U.S.C. 1615) is amended by adding at the end thereof the 
     following new subsection:
       ``(e)(1) The Native residents of each of the Native 
     Villages of Haines, Ketchikan, Petersburg, Tenakee, and 
     Wrangell, Alaska, may organize as Urban Corporations.
       ``(2) Nothing in this subsection shall affect any 
     entitlement to land of any Native Corporation previously 
     established pursuant to this Act or any other provision of 
     law.''.

     SEC. 4. SHAREHOLDER ELIGIBILITY.

       Section 8 of the Alaska Native Claims Settlement Act (43 
     U.S.C. 1607) is amended by adding at the end thereof the 
     following new subsection:
       ``(d)(1) The Secretary of the Interior shall enroll to each 
     of the Urban Corporations for Haines, Ketchikan, Petersburg, 
     Tenakee, or Wrangell those individual Natives who enrolled 
     under this Act to the Native Villages of Haines, Ketchikan, 
     Petersburg, Tenakee, or Wrangell, respectively.
       ``(2) Those Natives who are enrolled to an Urban 
     Corporation for Haines, Ketchikan, Petersburg, Tenakee, or 
     Wrangell pursuant to paragraph (1) and who were enrolled as 
     shareholders of the Regional Corporation for Southeast Alaska 
     on or before March 30, 1973, shall receive 100 shares of 
     Settlement Common Stock in such Urban Corporation.
       ``(3) A Native who has received shares of stock in the 
     Regional Corporation for Southeast Alaska through inheritance 
     from a decedent Native who originally enrolled to the Native 
     Villages of Haines, Ketchikan, Petersburg, Tenakee, or 
     Wrangell, which decedent Native was not a shareholder in a 
     Village or Urban Corporation, shall receive the identical 
     number of shares of Settlement Common Stock in the Urban 
     Corporation for Haines, Ketchikan, Petersburg, Tenakee, or 
     Wrangell as the number of shares inherited by that Native 
     from the decedent Native who would have been eligible to be 
     enrolled to such Urban Corporation.
       ``(4) Nothing in this subsection shall affect entitlement 
     to land of any Regional Corporation pursuant to section 12(b) 
     or section 14(h)(8).''.

     SEC. 5. DISTRIBUTION RIGHTS.

       Section 7 of the Alaska Native Claims Settlement Act (43 
     U.S.C. 1606) is amended--
       (1) in subsection (j), by adding at the end thereof the 
     following new sentence: ``Native members of the Native 
     Villages of Haines, Ketchikan, Petersburg, Tenakee, and 
     Wrangell who become shareholders in an Urban Corporation for 
     such a community shall continue to be eligible to receive 
     distributions under this subsection as at-large shareholders 
     of the Regional Corporation for Southeast Alaska.''; and
       (2) by adding at the end thereof the following new 
     subsection:
       ``(s) No provision of or amendment made by the Unrecognized 
     Southeast Alaska Native Communities Recognition and 
     Compensation Act shall affect the ratio for determination of 
     revenue distribution among Native Corporations under this 
     section and the `1982 Section 7(i) Settlement Agreement' 
     among the Regional Corporations or among Village Corporations 
     under subsection (j).''.

     SEC. 6. COMPENSATION.

       The Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
     seq.) is amended by adding at the end thereof the following 
     new section:


 ``URBAN CORPORATIONS FOR HAINES, KETCHIKAN, PETERSBURG, TENAKEE, AND 
                                WRANGELL

       ``Sec. 43.  (a) Upon incorporation of the Urban 
     Corporations for Haines, Ketchikan, Petersburg, Tenakee, and 
     Wrangell, the Secretary, in consultation and coordination 
     with the Secretary of Commerce, and in consultation with 
     representatives of each such Urban Corporation and the 
     Regional Corporation for Southeast Alaska, shall offer as 
     compensation, pursuant to this Act, one township of land 
     (23,040 acres) to each of the Urban Corporations for Haines, 
     Ketchikan, Petersburg, Tenakee, and Wrangell, and other 
     appropriate compensation, including the following:
       ``(1) Local areas of historical, cultural, traditional, and 
     economic importance to Alaska Natives from the Villages of 
     Haines, Ketchikan, Petersburg, Tenakee, or Wrangell. In 
     selecting the lands to be withdrawn and conveyed pursuant to 
     this section, the Secretary shall give preference to lands 
     with commercial purposes and may include subsistence and 
     cultural sites, aquaculture sites, hydroelectric sites, 
     tidelands, surplus Federal property and eco-tourism sites. 
     The lands selected pursuant to this section shall be 
     contiguous and reasonably compact tracts wherever possible. 
     The lands selected pursuant to this section shall be subject 
     to all valid existing rights and all other provisions of 
     section 14(g), including any lease, contract, permit, right-
     of-way, or easement (including a lease issued under section 
     6(g) of the Alaska Statehood Act).
       ``(2) $650,000 for capital expenses associated with 
     corporate organization and development, including--
       ``(A) the identification of forest and land parcels for 
     selection and withdrawal;
       ``(B) making conveyance requests, receiving title, 
     preparing resource inventories, land and resource use, and 
     development planning;
       ``(C) land and property valuations;
       ``(D) corporation incorporation and start-up;
       ``(E) advising and enrolling shareholders;
       ``(F) issuing stock; and
       ``(G) seed capital for resource development.

[[Page 18055]]

       ``(3) Such additional forms of compensation as the 
     Secretary deems appropriate, including grants and loan 
     guarantees to be used for planning, development and other 
     purposes for which Native Corporations are organized under 
     the Act, and any additional financial compensation, which 
     shall be allocated among the five Urban Corporations on a pro 
     rata basis based on the number of shareholders in each Urban 
     Corporation.
       ``(b) The Urban Corporations for Haines, Ketchikan, 
     Petersburg, Tenakee, and Wrangell, shall have one year from 
     the date of the offer of compensation from the Secretary to 
     each such Urban Corporation provided for in this section 
     within which to accept or reject the offer. In order to 
     accept or reject the offer, each such Urban Corporation shall 
     provide to the Secretary a properly executed and certified 
     corporate resolution that states that the offer proposed by 
     the Secretary was voted on, and either approved or rejected, 
     by a majority of the shareholders of the Urban Corporation. 
     In the event that the offer is rejected, the Secretary, in 
     consultation with representatives of the Urban Corporation 
     that rejected the offer and the Regional Corporation for 
     Southeast Alaska, shall revise the offer and the Urban 
     Corporation shall have an additional six months within which 
     to accept or reject the revised offer.
       ``(c) Not later than 180 days after receipt of a corporate 
     resolution approving an offer of the Secretary as required in 
     subsection (b), the Secretary shall withdraw the lands and 
     convey to the Urban Corporation title to the surface estate 
     of the lands and convey to the Regional Corporation for 
     Southeast Alaska title to the subsurface estate as 
     appropriate for such lands.
       ``(d) The Secretary shall, without consideration of 
     compensation, convey to the Urban Corporations of Haines, 
     Ketchikan, Petersburg, Tenakee, and Wrangell, by quitclaim 
     deed or patent, all right, title, and interest of the United 
     States in all roads, trails, log transfer facilities, leases, 
     and appurtenances on or related to the land conveyed to the 
     corporations pursuant to subsection (c).
       ``(e)(1) The Urban Corporations of Haines, Ketchikan, 
     Petersburg, Tenakee, and Wrangell may establish a settlement 
     trust in accordance with the provisions of section 39 for the 
     purposes of promoting the health, education, and welfare of 
     the trust beneficiaries and preserving the Native heritage 
     and culture of the communities of Haines, Ketchikan, 
     Petersburg, Tenakee, and Wrangell, respectively.
       ``(2) The proceeds and income from the principal of a trust 
     established under paragraph (1) shall first be applied to the 
     support of those enrollees and their descendants who are 
     elders or minor children and then to the support of all other 
     enrollees.''.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       There is authorized to be appropriated such sums as shall 
     be necessary to carry out this Act and the amendments made by 
     this Act.
                                 ______
                                 
      By Mr. SPECTER:
  S. 1747. A bill to regulate the judicial use of presidential signing 
statements in the interpretation of Act of Congress; to the Committee 
on the Judiciary.
  Mr. SPECTER. Mr President, I seek recognition today to offer the 
Presidential Signing Statements Act of 2007. The purpose of this bill 
is to regulate the use of Presidential Signing Statements in the 
interpretation of acts of Congress. This bill is similar in substance 
to the Presidential Signing Statements Act of 2006, which I introduced 
on July 26, 2006. The Senate Judiciary Committee also held a hearing on 
this topic on June 27, 2006.
  I believe that this is necessary to protect our constitutional system 
of checks and balances. This bill achieves that goal in the following 
ways.
  First, it prevents the President from issuing a signing statement 
that alters the meaning of a statute by instructing Federal and State 
courts not to rely on Presidential signing statements in interpreting a 
statute.
  Second, it grants Congress the power to participate in any case where 
the construction or constitutionality of any act of Congress is in 
question and a presidential signing statement for that act was issued 
by (i) allowing Congress to file an amicus brief and present oral 
argument in such a case; (ii) instructing that if Congress passes a 
joint resolution declaring its view of the correct interpretation of 
the statute, the court must admit that resolution into the case record; 
and (iii) providing for expedited review in such a case.
  Presidential signing statements are nothing new. Since the days of 
President James Monroe, Presidents have issued statements when signing 
bills. It is widely agreed that there are legitimate uses for signing 
statements. For example, Presidents may use signing statements to 
instruct executive branch officials how to administer a law. They may 
also use them to explain to the public the likely effect of a law. And, 
there may be a host of other legitimate uses.
  However, the use of signing statements has risen dramatically in 
recent years. When I introduced the Presidential Signing Statement bill 
last year, I noted that as of June 26, 2006, President Bush had issued 
132 signing statements. Since then, he has issued an additional 17 
statements, for a total of 149 to date. In comparison, President 
Clinton issued 105 signing statements during his two terms. Moreover, 
President Bush's signing statements often raise objections to several 
provisions of a law. For example, a recent report by the Government 
Accountability Office released June 18, 2007, found that, for 11 
appropriations acts for fiscal year 2006, President Bush issued signing 
statements identifying constitutional concerns or objections to 160 
different provisions appearing in the acts. While the mere numbers may 
not be significant, the reality is that the way the President has used 
those statements threatens to render the legislative process a virtual 
nullity, making it completely unpredictable how certain laws will be 
enforced.
  The President cannot use a signing statement to rewrite the words of 
a statute nor can he use a signing statement to selectively nullify 
those provisions he does not like. This much is clear from our 
Constitution. The Constitution grants the President a specific, 
narrowly defined role in enacting legislation. Article I, section 1 of 
the Constitution vests ``all legislative powers . . . in a Congress.'' 
Article I, section 7 of the Constitution provides that when a bill is 
presented to the President, he may either sign it or veto it with his 
objections. He may also choose to do nothing, thus rendering a so-
called pocket veto. The President, however, cannot veto part of bill, 
he cannot veto certain provisions he does not like.
  The Founders had good reason for constructing the legislative process 
as they did: by creating a bicameral legislature and then granting the 
President the veto power. According to The Records of the 
Constitutional Convention, the veto power was designed by our Framers 
to protect citizens from a particular Congress that might enact 
oppressive legislation. However, the Framers did not want the veto 
power to be unchecked, and so, in article I, section 7, they balanced 
it by allowing Congress to override a veto by two-thirds vote.
  As I stated when I introduced the Presidential Signing Statement bill 
last year, this is a finely structured constitutional procedure that 
goes straight to the heart of our system of check and balances. Any 
action by the President that circumvents this finely structured 
procedure is an unconstitutional attempt to usurp legislative 
authority. If the President is permitted to rewrite the bills that 
Congress passes and cherry pick which provisions he likes and does not 
like, he subverts the constitutional process designed by our Framers.
  The Supreme Court has affirmed that the constitutional process for 
enacting legislation must be safeguarded. As the Supreme Court 
explained in INS v. Chahda, ``It emerges clearly that the prescription 
for legislative action in article I, section 1 and 7 represents the 
Framers' decision that the legislative power of the Federal Government 
be exercised in accord with a single, finely wrought and exhaustively 
considered, procedure.''
  So, while signing statements have been commonplace since our 
country's founding, we must make sure that they are not being used in 
an unconstitutional manner; a manner that seeks to rewrite legislation, 
and exercise line item vetoes.
  As I have previously explained, President Bush has used signing 
statements in ways that have raised some eyebrows. An example is the 
signing statement accompanying Senator McCain's

[[Page 18056]]

``anti-torture amendment'' to the Department of Defense Emergency 
Supplemental Appropriations Act, otherwise known as the ``McCain 
Amendment.'' In that legislation, Congress voted by an overwhelming 
majority, 90 to 9, to ban all U.S. personnel from inflicting ``cruel, 
inhuman or degrading'' treatment on any prisoner held anywhere by the 
United States. President Bush, who had threatened to veto the 
legislation, instead invited Senator McCain to the White House for a 
public reconciliation and declared they had a mutual goal: to make it 
clear to the world that this government does not torture and that we 
adhere to the international convention of torture.''
  Now from that, you might conclude that by signing the McCain 
amendment into law, President Bush and his administration have fully 
committed to not using torture. But you would be wrong. After the 
public ceremony of signing the bill into law, the President issued a 
signing statement saying his administration would construe the new law 
``in a manner consistent with the constitutional authority of the 
President to supervise the unitary executive branch and as Commander in 
Chief and consistent with the constitutional limitations on the 
judicial power.'' This vague language may mean that, despite the 
enactment of the McCain Amendment, the administration may still be 
preserving a right to inflict torture on prisoners and to evade the 
International Convention Against Torture.
  Now, the National Defense Authorization Bill, like the McCain 
amendment, has a crucial provision regarding torture: it provides that 
the Combatant Status Review Tribunals, CSRTs, in Guantanamo Bay ``may 
not consider a [detainee's] statement that was obtained through methods 
that amount to torture.'' See section 1023(4)(e). But who knows how 
this provision will be enforced if deemed inconsistent with the unitary 
executive theory?
  And, the McCain amendment is just the tip of the iceberg: On close 
examination of the same signing statement, we see that President Bush 
has declared the right to construe the entire Detainee Treatment Act 
and all provisions relating to detainees, in a manner consistent with 
the unitary executive theory and with his powers as Commander and 
Chief. This is extremely troublesome. Like the DTA, this bill has 
crucial sections relating to detainees. Specifically, this bill 
contains much-needed provisions that protect detainees' due process 
rights in CSRT procedures, including allowing detainees a right to 
legal counsel, a right to compel and cross examine witnesses, and a 
right to have their status determined by a military judge. Should a 
similar signing statement be issued to S. 1547, that all sections 
related to detainees will be construed in a certain way, there is 
really no way to know how these crucial provisions will be enforced.
  We must ensure that such provisions, and for that matter, any and all 
provisions in this bill, are not subject to revision by a Presidential 
signing statement.
  In addition to these examples, I have noted another instance in which 
a questionable signing statement was issued, for the PATRIOT Act. We 
passed the PATRIOT Act after months of deliberation. We debated nearly 
every provision, often redrafting and revising. Moreover, we worked 
very closely with the President because we wanted to get it right. We 
wanted to make sure that we were passing legislation that the executive 
branch would find workable. In fact, in many ways, the process was an 
excellent example of the legislative branch and the executive branch 
working together towards a common goal.
  In the end, the bill that was passed by the Senate and the House 
contained several oversight provisions intended to make sure the FBI 
did not abuse the special terrorism-related powers to search homes and 
secretly seize papers. It also required Justice Department officials to 
keep closer track of how often the FBI uses the new powers and in what 
type of situations.
  The President signed the PATRIOT Act into law, but afterwards, he 
wrote a signing statement that said he could withhold any information 
from Congress provided in the oversight provisions if he decided that 
disclosure would ``impair foreign relations, national security, the 
deliberative process of the executive, or the performance of the 
executive's constitutional duties.''
  As I noted last year, during the entire process of working with the 
President to draft the PATRIOT Act, he never asked the Congress to 
include this language in the act. At a hearing we held last June on 
signing statements, I asked an executive branch official, Michelle 
Boardman from the Office of Legal Counsel, why the President did not 
ask the Congress to put the signing statement language into the bill. 
She simply didn't have an answer.
  Given this backdrop, I believe this bill is necessary. As I noted 
when I introduced the Presidential Signing Statement bill last summer, 
this bill does not seek to limit the President's power, and it does not 
seek to expand Congress's power. Rather, this bill simply seeks to 
safeguard our Constitution.
  This bill will provide courts with much-needed guidance on how 
legislation should be interpreted. The recent GAO report on 
Presidential Signing Statements found that Federal courts cited or 
referred to presidential signing statements in 137 different opinions 
reported from 1945 to May 2007. It also shows that the Supreme Court's 
reliance on presidential signing statements has been sporadic and 
unpredictable. In some cases, such as United States v. Lopez, 115 S.Ct. 
1624 at 1631, 1995, where the Court struck down the Gun-Free School 
Zones Act, the Supreme Court has relied on Presidential signing 
statements as a source of authority to interpret an act, while in other 
cases, such as the military tribunals case, Hamdan v. Rumsfeld, 126 
S.Ct. 2749 (2006), Scalia dissenting, it has conspicuously declined to 
do so. This inconsistency has the unfortunate result of rendering the 
effect of Presidential signing statements on Federal law unpredictable.
  As I stated when I initially introduced the Presidential Signing 
Statements Act of 2006, it is well within Congress's power to resolve 
judicial disputes such as this by enacting rules of statutory 
interpretation. In fact, the Department of Defense Authorization bill 
already contains at least one ``rule of construction'' provision. See 
section 845(e). This power flows from article 1, section 8, clause 18 
of the Constitution, which gives Congress the power ``To make all laws 
which shall be necessary and proper for carrying into execution the 
foregoing powers, and all other powers vested by this Constitution in 
the government of the United States, or in any department or officer 
thereof.'' Rules of statutory interpretation are ``necessary and 
proper'' to execute the legislative power.
  Several scholars have agreed: Jefferson B. Fordham, a former dean of 
the University of Pennsylvania Law School said, ``[I]t is within the 
legislative power to lay down rules of interpretation for the future;'' 
Mark Tushnet, a professor at Harvard Law School explained, ``In light 
of the obvious congressional power to prescribe a statute's terms, and 
so its meaning, congressional power to prescribe interpretive methods 
seems to me to follow;'' Michael Stokes Paulsen, an associate dean of 
the University of Minnesota Law School noted, ``Congress is the master 
of its own statutes and can prescribe rules of interpretation governing 
its own statutes as surely as it may alter or amend the statutes 
directly.'' Finally, J. Sutherland, the author of the leading 
multivolume treatise for the rules of statutory construction has said, 
``There should be no question that an interpretive clause operating 
prospectively is within legislative power.''
  Furthermore, any legislation that sets out rules for interpreting an 
act makes legislation more clear and precise, which is exactly what we 
aim to achieve here in Congress. Congress can and should exercise this 
power over the interpretation of Federal statutes in a systematic and 
comprehensive manner.
  Put simply, this bill seeks to implement measures that will safeguard 
the constitutional structure of enacting

[[Page 18057]]

legislation. In preserving this structure, this bill reinforces the 
system of checks and balances and separation of powers set out in our 
Constitution, and I urge my colleagues to support it.
                                 ______
                                 
      By Mr. COLEMAN (for himself, Mr. DeMint, Mr. McConnell, Mr. 
        Sessions, Mrs. Hutchison, Mr. Isakson, Mr. Craig, Mr. 
        Chambliss, Mr. Graham, Mr. Cornyn, Mr. Bond, Mr. McCain, Mr. 
        Cochran, Mr. Voinovich, Mr. Thune, Mr. Coburn, Mr. Allard, Mr. 
        Roberts, and Mr. Kyl):
  S. 1748. A bill to prevent the Federal Communications Commission from 
repromulgating the fairness doctrine; to the Committee on Commerce, 
Science, and Transportation.
  Mr. COLEMAN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1748

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Broadcaster Freedom Act of 
     2007''.

     SEC. 2. FAIRNESS DOCTRINE PROHIBITED.

       Title III of the Communications Act of 1934 is amended by 
     inserting after section 303 (47 U.S.C. 303) the following new 
     section:

     ``SEC. 303A. LIMITATION ON GENERAL POWERS: FAIRNESS DOCTRINE.

       ``Notwithstanding section 303 or any other provision of 
     this Act or any other Act authorizing the Commission to 
     prescribe rules, regulations, policies, doctrines, standards, 
     or other requirements, the Commission shall not have the 
     authority to prescribe any rule, regulation, policy, 
     doctrine, standard, or other requirement that has the purpose 
     or effect of reinstating or repromulgating (in whole or in 
     part) the requirement that broadcasters present opposing 
     viewpoints on controversial issues of public importance, 
     commonly referred to as the `Fairness Doctrine', as repealed 
     in General Fairness Doctrine Obligations of Broadcast 
     Licensees, 50 Fed. Reg. 35418 (1985).''.
                                 ______
                                 
      By Mr. KYL:
  S. 1749. A bill to amend the Federal Rules of Criminal Procedure to 
provide adequate protection to the rights of crime victims, and for 
other purposes; to the Committee on the Judiciary.
  Mr. KYL. Mr. President, I rise to introduce The Crime Victims' Rights 
Rules Act, which would continue the work started in The Scott Campbell, 
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime 
Victims' Rights Act.
  The bill would make comprehensive procedural changes to the Federal 
Rules of Criminal Procedure to protect crime victims' rights throughout 
the federal criminal process, thereby guaranteeing that crime victims' 
rights will be fully respected in our federal courts.
  As one of the Senate sponsors of the CVRA, I know that Congress 
intended the Act to bring dramatic changes to the way that the federal 
courts treat crime victims. Fortunately, in the two-and-a-half years 
since that legislation became law, positive strides have been made for 
crime victims. For example, with funding provided by act, the National 
Crime Victims Law Institute has been able to support crime victims' 
legal clinics around the country. I am also encouraged that court 
decisions have recognized the importance of crime victims' rights in 
the process.
  But while progress has been made in implementing the CVRA, at least 
one important step remains to be taken: The Federal Rules of Criminal 
Procedure must be comprehensively amended to recognize the rights of 
crime victims throughout the process.
  The Federal rules have been described as ``the playbook'' for Federal 
judges, prosecutors, and defense attorneys. Currently, the Federal 
rules make virtually no mention of crime victims. If crime victims are 
to fully integrated into the daily workings of our criminal justice 
process, then their role in that process must be fully protected in the 
Federal rules.
  I am encouraged to see that the Federal courts have been taking some 
modest steps toward protecting crime victims in the Federal rules. 
Federal district court judge Paul Cassell initiated the process by 
recommending rule changes to the Advisory Committee on Criminal Rules. 
His comprehensive set of useful proposals appeared in an excellent law 
review article published in The Brigham Young University Law Review in 
2005. In recent months, the Advisory Committee has adopted a few of his 
proposals to implement some aspects of the CVRA. These changes are 
expected to take effect next year.
  These amendments are positive, but far more remains to be done. The 
Advisory Committee's six proposed amendments, five changes to existing 
rules and one new rule, do little more than reiterate limited parts of 
the statute. Crime victims have been treated unfairly in the Federal 
criminal justice system for far too long to be left to rely on a 
handful of minimal protections. To respect crime victims' rights fully 
in the process, it is necessary to take more decisive and comprehensive 
action to thoroughly amend the rules.
  When Congress passed the CVRA in 2004, it promised that crime victims 
would have rights throughout the criminal justice process. Of 
particular importance, the CVRA guaranteed that crime victims would 
have the right to be treated with ``fairness.'' My proposed amendments 
would add to the Federal rules the changes needed to treat crime 
victims fairly. These changes to the rules would provide vital 
protections for crime victims without interfering with the rights of 
criminal defendants or the need for Federal judges to manage their 
dockets effectively.
  One example of the bill's changes is the amendment to Rule 50 to 
protect the victims' right to a speedy trial. The bill would amend Rule 
50 to provide: ``The court shall assure that a victim's right to 
proceedings free from unreasonable delay is protected. A victim has the 
right to be heard regarding any motion to continue any proceeding. If 
the court grants a motion to continue over the objection of a victim, 
the court shall state its reasons in the record.''
  It is hard for me to see how anyone could object to this procedural 
change. The CVRA promised to crime victims the right ``to proceedings 
free from unreasonable delay.'' The bill would place that right into 
the Federal rules.
  Another example of the kind of change that the bill would make is its 
amendment of Rule 21 to protect crime victims' rights in transfer 
decisions. In some situations, federal courts can transfer a criminal 
case from one district to another. The bill would amend Rule 21 to 
provide: ``The court shall not transfer any proceeding without giving 
any victim an opportunity to be heard. The court shall consider the 
views of the victim in making any transfer decision.''
  It is again hard to understand how anyone could object to the 
requirement that a judge give a crime victim the chance to be heard 
before a case is transferred to a distant location. For example, the 
bill would have protected the right of the Oklahoma City bombing 
victims to present to the trial judge their views on whether the trial 
should have been transferred out of Oklahoma and, if so, to where.
  The bill does not mandate any particular substantive result, leaving 
it to the trial judge to make the ultimate determination about whether 
to transfer a case. But the bill would change the process by which such 
decisions are made, ensuring that victims are treated fairly by giving 
them an opportunity to provide their views to the judge.
  A further example of the changes in the bill is the amendment to Rule 
48 to protect the victim's right to be heard before a case is 
dismissed. The bill would provide: ``In deciding whether to grant the 
government's motion to dismiss, the court shall consider the views of 
any victims.''
  With this procedural change, the victim would have the opportunity to 
present the court any reasons why a case should not be dismissed. This 
right is implicit in the CVRA's mandate that crime victims be treated 
with fairness. It is hard to understand how a crime victim is treated 
with fairness if the court dismisses a case without considering the 
victim's position on the dismissal.

[[Page 18058]]

  Indeed, the only case to have considered this issue reached exactly 
this conclusion. As United States v. Heaton explains,

       When the government files a motion to dismiss criminal 
     charges that involve a specific victim, the only way to 
     protect the victim's right to be treated fairly and with 
     respect for her dignity is to consider the victim's views on 
     the dismissal. It is hard to begin to understand how a victim 
     would be treated with fairness if the court acted 
     precipitously to approve dismissal of a case without even 
     troubling to consider the victim's views. To treat a person 
     with ``fairness'' is generally understood as treating them 
     ''justly'' and ``equitably.'' A victim is not treated justly 
     and equitably if her views are not even before the court. 
     Likewise, to grant the motion without knowing what the victim 
     thought would be a plain affront to the victim's dignity. 
     U.S. v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).

  I agree with Heaton that the CVRA requires that crime victims have 
the opportunity to submit their views to the court on any dismissal. 
That is why this bill would place this right specifically into the 
federal criminal rules.
  One particularly important part of the bill is its change to Rule 17 
to protect the confidential and personal records of crime victims. The 
Advisory Committee itself proposed an amendment to Rule 17 to create 
specific procedures for subpoenas directed at confidential and private 
information concerning crime victims.
  This change was designed to prevent a recurrence of the problems that 
recently occurred in the Elizabeth Smart kidnapping case in Salt Lake 
City. My colleagues may remember this case, which involved the 
abduction of a teenaged girl from her home. Fortunately, she was found 
a year later and the suspected kidnapper apprehended. In the state 
criminal proceedings that followed, defense attorneys subpoenaed 
confidential school and medical records about Elizabeth. Because these 
subpoenas went directly to Elizabeth's school and hospital, she was 
never given the opportunity to object to them, and some confidential 
information was improperly turned over to defense counsel.
  The Advisory Committee has recognized that this same ``end run'' 
around the victim could occur under the federal rules. It has therefore 
adopted a rule requiring notice to crime victims before their personal 
and confidential information is subpoenaed.
  But this seeming protection has a catch: a defendant can avoid giving 
any notice to victim by arguing to a court, in an ex parte proceeding, 
that exceptional circumstances exist.
  This kind of ex parte procedure raises serious ethical concerns. In 
fact, the American Bar Association wrote to the Advisory Committee in 
February urging it to make certain that crime victims receive notice 
and an opportunity to be heard before such subpoenas issue. As Robert 
Johnson, Chair of the ABA's Criminal Justice section explained, the 
canons of judicial ethics forbid ex parte contacts with judges on 
substantive matters. Mr. Johnson went on to urge the Advisory Committee 
to give careful consideration of the ethical violations that might 
occur from ex parte subpoenas:

       While the proposed amendment to Rule 17 is intended to 
     protect the interests of crime victims, the ABA urges the 
     Committee to carefully examine the proposal to determine if 
     the proposal regarding Rule 17 would be contrary to the 
     Court's responsibility under Canon 3(B)(7) in allowing ex 
     parte contact on a substantive matter. Even if the Committee 
     decides that it is not a substantive matter, the Committee 
     should consider whether the proposed rule would allow a 
     tactical advantage as a result of the ex parte communication 
     and the judge is required to promptly notify the other party 
     of the substance of the ex parte communication and allow an 
     opportunity to respond.

  It seems that the Advisory Committee's proposed rule permitting ex 
parte subpoenas of personal and confidential information of crime 
victims in some situations might run afoul of these ethical rules. 
Accordingly, under the bill, crime victims would enjoy an absolute 
right to notice before such information as psychiatric and medical 
records could be subpoenaed. This is the standard process that our 
adversary system of justice uses.
  The CVRA promised crime victims that they would enjoy ``the right to 
be treated with fairness and with respect for the victim's dignity and 
privacy.'' My bill would respect victims' dignity and privacy by giving 
them a court hearing before any of their confidential records could be 
turned over to an offender accused of victimizing them. This is not to 
say that such information will never be disclosed to the defense. A 
judge will have to make the determination whether disclosure is 
appropriate. But the judge would make that determination only after 
hearing from the prosecutor, defense counsel and most important of all 
the crime victim whose privacy rights are directly affected.
  One of the most significant parts of the bill is its creation of a 
new Rule 44.1, which would provide: ``When the interests of justice 
require, the court may appoint counsel for a victim to assist the 
victim in exercising their rights as provided by law.''
  This important change builds on existing Federal law. Title 28 
already permits the court in a criminal case to ``request an attorney 
to represent any person unable to afford counsel.'' For criminal cases 
involving child victims, Title 18 U.S.C. section 3509 allows the 
appointment of a guardian to represent the child's interests. Although 
the statutes provide these rights, they have yet to be actually 
implemented so that crime victims can actually take advantage of them.
  I want to be clear that I am not proposing that all crime victims 
should have counsel appointed for them. At the same time, though, I 
would think all could agree that there are situations where a trial 
court ought, as a matter of discretion, to have the ability to appoint 
legal counsel for a crime victim. For example, a crime victim might 
present a novel or complex claim that the courts have not yet 
considered. Or a crime victim might suffer from physical or mental 
disabilities as a result of the crime that would make it difficult for 
the victim to be heard without the help of an advocate.
  For many years, courts have had the ability to appoint counsel for 
potential defendants on a discretionary basis. My bill would allow that 
same, well-recognized power to be used to appoint counsel for crime 
victims.
  One last section of the bill deserves special note because it 
demonstrates the need for Congress to step into the rules process. The 
bill would amend Rule 32 to guarantee victims the right to speak at 
sentencing hearings.
  This is a change from the more limited right that the Advisory 
Committee has given victims the right ``to be reasonably heard.'' The 
Advisory Committee's note to this provision seemingly suggests that 
courts would not have to give all victims the right to speak at 
sentencing. This more limited right runs counter to the legislative 
history as to how the CVRA was to operate. While the CVRA gave crime 
victims the right to be reasonably heard, it was the undisputed 
legislative intent that victims would have the right to speak. I 
explained on the Senate floor at the time the act was under 
consideration that:

       It is not the intent of the term ``reasonably'' in the 
     phrase ``to be reasonably heard'' to provide any excuse for 
     denying a victim the right to appear in person and directly 
     address the court. Indeed, the very purpose of this section 
     is to allow the victim to appear personally and directly 
     address the court.

  My colleague Senator Feinstein remarked at that time that my 
understanding was her ``understanding as well.''
  The Advisory Committee's action also contravenes at least two 
published court decisions on this issue. In United States v. Kenna, 
Judge Kozinski wrote for the Ninth Circuit that the CVRA's legislative 
history reveals ``a clear congressional intent to give crime victims 
the right to speak at proceedings covered by the CVRA.'' And in United 
States v. Degenhardt, Judge Cassell reached the same conclusion writing 
for the District of Utah.
  My bill would provide the right of victims to speak at sentencing 
hearings. Of course, prosecutors, defense counsel, and defendants have 
on enjoyed this right. Crime victims, too, deserve the opportunity to 
speak to the court to ``allocute'' as this right is called and to make 
sure that the court and the defendant understand the crime's full harm.

[[Page 18059]]

  I will not take the time here to go through all of the other 
provisions of the bill. But I did want to highlight one important note 
about the appropriateness of Congress acting to amend the rules to 
protect crime victims. Congress enacted the CVRA in October 2004. In 
the almost 3 years since then, I have waited patiently to give the 
federal courts the first opportunity to review the need for rule 
changes. At the same time, though, I have made clear my position, as 
one of the cosponsors of the CVRA, that Congress expected significant 
reforms in the Federal rules. As I explained to my colleagues at that 
time, the crime victims' community in this country was looking to the 
CVRA to serve as a model for the states and a formula for fully 
protecting crime victims. It was because the CVRA was expected to have 
such a far-reaching impact that the crime victims' community was 
willing to defer, at least temporarily, its efforts to pass a 
constitutional amendment protecting victims' rights.
  I made this point directly to the advisory committee in a letter I 
sent to Judge Levi on February 15 of this year. Thus, several months 
ago, I placed the Advisory Committee on notice that, if it failed to 
act to fully protect crime victims, Congress might step into the 
breach.
  A few weeks ago, Judge Levi replied to my letter, and I greatly 
appreciate his comments and explanations. In his reply, he acknowledged 
that many of the proposals were worthy of close attention. He 
indicated, however, that the Advisory Committee was going to delay 
action on them for some indefinite period of time. The reasons he gave 
for the delay were to:

       1. gather more information on precisely how the proposals 
     would operate in specific proceedings and what effects they 
     might have, 2. obtain empirical data substantiating the 
     existence and nature of any problem or problems that could be 
     addressed by rule, and 3. provide additional time for courts 
     to acquire experience under the CVRA and to develop case law 
     construing it.

  Judge Levi also suggested that some of the proposed rule changes 
would have created, in his view, new ``substantive rights'' for crime 
victims that went beyond the CVRA.
  Judge Levi's letter demonstrates why the Rules Enabling Act wisely 
left the final decision on how to structure rules of evidence and 
procedure to Congress. The letter refers to the need to ``gather more 
information'' and ``empirical data'' on crime victims'' issues before 
proceeding. While some might point out that the Advisory Committee has 
already had more than 2\1/2\ years to collect such data, I can 
appreciate the difficulty that a court rules committee can have in 
assessing the scope of a national problem. Congress, however, is 
already well-informed on the need for protecting crime victims' rights. 
Congress adopted the CVRA only after 8 years of legislative efforts and 
hearings on the Crime Victims Rights Amendment. This record leaves 
Congress well positioned to recognize the need for prompt and effective 
action to protect crime victims.
  The letter also refers to the need for courts to develop case law 
construing the CVRA. The problem with this approach is that the 
anticipated case law may never develop. Most crime victims are not 
trained in the nuances of the law and lack the means to retain legal 
counsel. Victims are often indigent and are frequently emotionally and 
physically harmed by the defendant's crime. They are then involuntarily 
forced into the middle of complicated and unfamiliar legal proceedings. 
To expect that in these circumstances, crime victims will often be able 
to undertake the kind of sophisticated and pathbreaking litigation that 
would be necessary to establish crime victims seems unreasonable. One 
of the main reasons for the CVRA was to change a legal culture that has 
been hostile to crime victims. To expect that this legal culture will 
somehow, on a case-by-case basis, welcome crime victims is unlikely. 
Indeed, it is ironic that while waiting for case law to ``develop,'' 
the Advisory Committee refused to add to the Federal rules a provision 
confirming the existing discretionary right of trial judges to appoint 
legal counsel for crime victims who need legal assistance on 
complicated issues.
  The wait-for-caselaw approach is also troubling because it assumes 
that Federal court litigation will serve sufficiently to clarify the 
rights of victims in the Federal system. But the Federal Rules of 
Criminal Procedure form the template for rules of criminal procedure in 
states throughout the country. One of the main purposes of the CVRA was 
to create a model for protecting victims in the criminal justice 
system. Unless the text of the Federal rules themselves protects crime 
victims, the states will not have a model they can look to in drafting 
their own rules to guarantee victims fair treatment.
  The final reason given for deferring action on rules changes is that 
the Advisory Committee thought that some of the changes might create 
new substantive rights better left to Congress. It's a bit of an 
Alphonse-and-Gaston situation: Congress says ``after you'' to the 
Advisory Committee, only to have the Advisory Committee say ``after 
you.'' To avoid an impasse that leaves crime victims unprotected, 
obviously someone needs to take the lead. That is why I am today 
introducing The Crime Victims' Rights Rules Act.
  One last provision in the bill is also worth highlighting. The bill 
includes a sense of the Congress provision that crime victims ought to 
be represented on the Advisory Committee on Criminal Rules.
  This point was called to my attention by Professor Douglas Beloof, a 
distinguished law professor at the Lewis and Clark College of Law and 
the Director of the well-regarded National Crime Victims Law Institute. 
Professor Beloof testified before the Advisory Committee in January.
  He was surprised to discover at that time that, while the Justice 
Department, the defense bar, and judges are all represented on the 
Committee, there is no representative for crime victims. Not only does 
this leave crime victims organizations without a liaison for bringing 
information to the attention of the Committee, but, more important, it 
deprives the Committee of the valuable perspective that such a 
representative could bring on the rule change issues the Committee 
regularly considers.
  With the passage of the CVRA, crime victims, no less then the Justice 
Department and the defense bar, became participants with recognized 
rights in the criminal justice process. They should, therefore, be 
represented directly on the Advisory Committee on Criminal Rules.
  When Congress passed the CVRA, it made a commitment to crime victims 
that they would no longer be overlooked in the criminal justice 
process. Nowhere is that commitment better exemplified than in the 
CVRA's promise that victims will be given ``the right to be treated 
with fairness and with respect for the victim's dignity and privacy.'' 
Until the rules governing criminal proceedings in our Federal courts 
fully protect crime victims, that important goal will not be achieved.
  I urge my colleagues to carry forward the promises made in the Crime 
Victims Rights Act. Crime victims' rights must be respected throughout 
the Federal Rules of Criminal Procedure. The Crime Victims' Rights 
Rules Act would amend the rules to ensure that crime victims are no 
longer overlooked in the federal criminal process.

                          ____________________