[House Report 107-807]
[From the U.S. Government Publishing Office]
Union Calendar No. 508
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-807
======================================================================
REPORT ON THE ACTIVITIES
of the
COMMITTEE ON THE JUDICIARY
of the
HOUSE OF REPRESENTATIVES
during the
ONE HUNDRED SEVENTH CONGRESS
pursuant to
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 2, 2003.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
COMMITTEE ON THE JUDICIARY
House of Representatives
one hundred seventh congress
------
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
GEORGE W. GEKAS, Pennsylvania BARNEY FRANK, Massachusetts
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
BOB BARR, Georgia ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
LINDSEY O. GRAHAM, South Carolina MARTIN T. MEEHAN, Massachusetts
SPENCER BACHUS, Alabama WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin TAMMY BALDWIN, Wisconsin
RIC KELLER, Florida ANTHONY D. WEINER, New York
DARRELL E. ISSA, California ADAM B. SCHIFF, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Philip G. Kiko, Chief of Staff--General Counsel
Perry H. Apelbaum, Minority Chief Counsel
Subcommittees of the Committee on the Judiciary
------
Crime, Terrorism, and Homeland Security
LAMAR SMITH, Texas, Chairman
MARK GREEN, Wisconsin ROBERT C. SCOTT, Virginia
HOWARD COBLE, North Carolina SHEILA JACKSON LEE, Texas
BOB GOODLATTE, Virginia MARTIN T. MEEHAN, Massachusetts
STEVE CHABOT, Ohio WILLIAM D. DELAHUNT, Massachusetts
BOB BARR, Georgia ADAM B. SCHIFF, California
RIC KELLER, Florida
MIKE PENCE, Indiana
------
Commercial and Administrative Law
BOB BARR, Georgia, Chairman
JEFF FLAKE, Arizona MELVIN L. WATT, North Carolina
GEORGE W. GEKAS, Pennsylvania JERROLD NADLER, New York
MARK GREEN, Wisconsin TAMMY BALDWIN, Wisconsin
DARRELL E. ISSA, California ANTHONY D. WEINER, New York
STEVE CHABOT, Ohio MAXINE WATERS, California
MIKE PENCE, Indiana
------
Courts, the Internet, and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah WILLIAM D. DELAHUNT, Massachusetts
LINDSEY O. GRAHAM, South Carolina ROBERT WEXLER, Florida
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida TAMMY BALDWIN, Wisconsin
DARRELL E. ISSA, California ANTHONY D. WEINER, New York
MELISSA A. HART, Pennsylvania
------
Immigration, Border Security, and Claims
GEORGE W. GEKAS, Pennsylvania, Chairman
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MELISSA A. HART, Pennsylvania BARNEY FRANK, Massachusetts
LAMAR SMITH, Texas HOWARD L. BERMAN, California
ELTON GALLEGLY, California ZOE LOFGREN, California
CHRIS CANNON, Utah MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
J. RANDY FORBES, Virginia
------
The Constitution
STEVE CHABOT, Ohio, Chairman
WILLIAM L. JENKINS, Tennessee JERROLD NADLER, New York
LINDSEY O. GRAHAM, South Carolina BARNEY FRANK, Massachusetts
SPENCER BACHUS, Alabama JOHN CONYERS, Jr., Michigan
JOHN N. HOSTETTLER, Indiana ROBERT C. SCOTT, Virginia
MELISSA A. HART, Pennsylvania MELVIN L. WATT, North Carolina
LAMAR SMITH, Texas
J. RANDY FORBES, Virginia
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 2, 2003.
Hon. Jeff Trandahl,
Clerk of the House of Representatives,
Washington, DC.
Dear Mr. Trandahl: Pursuant to clause 1(d) of rule XI of
the Rules of the House of Representatives, I am transmitting
the report on the activities of the Committee on the Judiciary
of the U.S. House of Representatives in the 107th Congress.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman.
C O N T E N T S
----------
Page
Jurisdiction of the Committee on the Judiciary................... 1
Tabulation of Legislation and Activity........................... 3
Printed Hearings................................................. 4
Committee Prints................................................. 8
House Documents.................................................. 8
Summary of Activities of the Committee on the Judiciary.......... 9
Public Laws.................................................. 9
Private Laws................................................. 14
Conference Appointments...................................... 15
Full Committee Activities.................................... 20
Legislative activities:
Antitrust:
H.R. 768, the Need-Based Educational Aid Act......... 20
H.R. 809, the Antitrust Technical Corrections Act.... 22
H.R. 1253, the Free Market Antitrust Immunity Reform
(FAIR) Act......................................... 23
H.R. 1407, to amend title 49, U.S.C. to permit air
carriers to meet and discuss their schedules in
order to reduce flight delays...................... 28
H.R. 1542, the Internet Freedom and Broadband
Deployment Act, also H.R. 1697, H.R. 1698, and H.R.
2120............................................... 30
H.R. 3288, the Fairness in Antitrust in National
Sports (FANS) Act.................................. 37
Liability:
H.R. 2037, the Protection of Lawful Commerce in Arms
Act................................................ 42
H.R. 2341, the Class Action Fairness Act............. 42
H.R. 2926, the Air Transportation Safety and System
Stabilization Act.................................. 47
H.R. 3210, the Terrorism Risk Insurance Act.......... 48
H.R. 4600, the Help Efficient, Accessible, Low-cost,
Timely Healthcare (Health) Act..................... 48
Matters held at Full Committee:
H.R. 7, the Community Solutions Act.................. 49
H.R. 169, the Notification and Federal Employee
Antidiscrimination and Retaliation Act............. 52
H.R. 741, the Madrid Protocol Implementation Act..... 53
H.R. 802, the Public Safety Officer Medal of Valor
Act................................................ 53
H.R. 860, the Multidistrict, Multiparty, Multiforum
Trial Jurisdiction Act............................. 54
H.R. 861, to make technical amendments to section 10
of Title 9, U.S.C.................................. 54
H.R. 1209, the Child Status Protection Act........... 55
H.R. 1701, the Consumer Rental Purchase Agreement Act 56
H.R. 2068, to revise, codify, and enact without
substantive change certain general and permanent
laws related to public buildings, property, and
works, as Title 40, U.S.C. ``Public Buildings,
Property, and Works''.............................. 57
H.R. 2137, the Criminal Law Technical Amendments Act. 57
H.R. 2215, 21st Century Department of Justice
Appropriations Authorization Act................... 58
H.R. 2458, E-Government Act of 2002.................. 73
H.R. 2882, Public Safety Officer Benefits Act........ 74
H.R. 3162, H.R. 2975, the USA Patriot Act............ 74
H.R. 3295, the Help America Vote Act................. 79
H.R. 3525, the Enhanced Border Security and Visa
Entry Reform Act................................... 83
H.R. 3925, the Digital Tech Corps Act of 2002........ 87
H.R. 5005, the Homeland Security Act................. 88
H.R. 5710, the Homeland Security Act................. 88
H. Res. 193, Requesting that the President Focus
Appropriate Attention on the Issues of Neighborhood
Crime Prevention, Community policing, and Reduction
of School Crime.................................... 101
H. Res. 417, Recognizing and honoring the career and
work of Justice C. Clifton Young................... 102
H. Con. Res. 225, Expressing the sense of the
Congress that, as a symbol of solidarity following
the terrorist attacks on the United States on
September 11, 2001, every United States citizen is
encouraged to display the flag of the United States 103
H. Con. Res 227, Condemning Bigotry and Violence
against Arab-Americans, American Muslims, and
Americans from South Asia in the wake of terrorist
attacks in New York City, New York, and Washington,
D.C., on September 11, 2001........................ 103
H. Con. Res. 243, Expressing the sense of Congress
that the Public Safety Officer Medal of Valor
should be presented to the public safety officers
who have perished and select other public safety
officers who deserve special recognition for
outstanding valor above and beyond the call of duty
in the aftermath of the terrorist attacks in the
United States on September 11, 2001................ 104
S. 320, Intellectual Property and High Technical
Amendments Act..................................... 104
S. 1888, to amend title 18, of the U.S.C., to correct
a technical error in the codification of title 36
of the U.S.C....................................... 104
Other Matters of the Committee:
H.R. 1, the No Child Left Behind Act................. 105
Energy legislation, H.R. 4........................... 105
H.R. 1586, National Defense Authorization............ 106
H.R. 718, the Unsolicited Commercial E-mail Act...... 107
Agriculture, H.R. 2646............................... 109
Terrorism, H.R. 3016................................. 109
Immigration/Terrorism, H.R. 1646..................... 110
H.R. 2581, the Export Administration Act of 2001..... 111
Trade, H.R. 3009..................................... 112
Bioterrorism, H.R. 3448.............................. 113
Corporate Accountability, H.R. 3763.................. 114
H.R. 3951, the Financial Services Regulatory Relief.. 115
Defense Authorization, H.R. 4546..................... 116
Oversight Activities:
List of Oversight hearings........................... 117
Implementation of the USA PATRIOT Act................ 117
Revisions to the Attorney General Guidelines......... 121
Review of Documents Relating to the Competitive
Imbalance in Major League Baseball................. 125
Review of Judicial Security.......................... 133
Review of FBI Stolen Vehicle Parts Regulations....... 134
Review of Office of Crime Victims.................... 134
Reorganization of the Office of Justice Programs..... 135
Department of Justice Information Technology and
Systems............................................ 136
FBI Information Technology........................... 136
IDENT/IAFIS Integration.............................. 137
Immigration Systems.................................. 138
INS/DOJ System Project Management.................... 138
INS Planning for the Entry/Exit System............... 140
Federal Agencies use of Biometrics to Combat
Terrorism, Improve Law Enforcement, and Enhance
Border Security.................................... 141
Application of the Federal Tort Claims Act........... 145
Review of Case Assignments in Sixth Circuit in Racial
Discrimination..................................... 147
Review of the Circumstances Surrounding Senior
Circuit Judge Richard D. Cudahy's Disclosure that a
Grand Jury was Considering Evidence of President
Clinton's Now Admittedly False Deposition Testimony
in Jones v. Clinton................................ 151
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Crime, Terrorism, and Homeland Security:
Tabulation and disposition of bills referred to the
subcommittee........................................... 155
Jurisdiction of the subcommittee......................... 155
Legislative Activities:
Anti-Hoax Terrorism Act.............................. 156
International Convention for the Suppression of
Terrorist Bombings and for the International
Convention for the Suppression of the Financing of
Terrorism.......................................... 157
Cyber Security Enhancement........................... 158
Anti-Terrorism Explosives Act........................ 160
Homeland Security Information Sharing................ 160
Fairness in Drug Sentencing Act...................... 162
Hometown Heroes Survivors Benefits Act............... 163
RAVE Act............................................. 163
Consequences for Juvenile Offenders Act.............. 164
Child Sex Crimes Wiretapping Act..................... 165
Child Obscenity and Pornography Prevention Act....... 166
Sex Tourism Prohibition Act.......................... 167
Two Strikes and You're Out Child Protection Act...... 168
Lifetime Consequences for Sex Offenders Act.......... 169
Child Abduction Prevention Act....................... 169
Innocence Protection Act............................. 171
James Guelff and Chris McClurley Body Armor Act...... 171
Law Enforcement Tribute Act.......................... 173
Financial Services Antifraud Network Act of 2001..... 173
Human Cloning Prohibition Act........................ 174
Consumer Product Protection Act...................... 175
Federal Prison Industries Competition in Contracting
Act................................................ 176
Combatting Illegal Gambling Reform................... 176
Our Lady of Peace Act................................ 177
Bail Bond Fairness Act............................... 178
Honoring the New Jersey State Law Enforcement
Officers Association............................... 178
Requesting that the President focus appropriate
attention on neighborhood crime prevention and
community policing, and coordinate certain Federal
efforts to participate in ``National Night Out'',
including by supporting local efforts and
neighborhood watches and by supporting local
officials to provide homeland security, and for
other purposes..................................... 179
Mychal Judge Police and Fire Chaplains Public Safety
Officers' Benefit Act of 2002...................... 179
Oversight Activities:
List of Oversight hearings........................... 179
Counterintelligence Program for the 21st Century..... 180
Department of Homeland Security...................... 180
First Responder Training and Assistance for Terrorist
Events............................................. 181
Drug Trafficking on the Southwest Border............. 185
Narco-terrorism...................................... 185
OxyContin............................................ 186
Medical Marijuana.................................... 187
Protecting Seniors from Fraud........................ 187
Reauthorization of the Department of Justice......... 189
Office of Justice Programs........................... 190
FBI: Criminal Justice Information Services........... 191
Computer Hacking..................................... 192
FBI Reorganization................................... 192
FBI Academy: Hostage Rescue Team..................... 192
Implementation of USA Patriot Act.................... 193
FBI Outdated Technology Issues....................... 193
FBI Technology Issues................................ 193
Secret Service: Counterfeiting....................... 194
Electronic Crime Task Force.......................... 194
ATF: Gun Shows....................................... 195
ATF: New York Office................................. 195
Ballistic Imaging.................................... 196
Dog Training......................................... 196
ATF: Explosives...................................... 196
Bureau of Prisons.................................... 196
United States Sentencing Commission.................. 196
Racial Profiling..................................... 197
Newport News Courthouse.............................. 198
New Jersey Speed Violation Survey.................... 198
Misleading Testimony before the Subcommittee......... 198
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Commercial and Administrative Law:
Tabulation and disposition of bills referred to the
subcommittee........................................... 201
Jurisdiction of the subcommittee......................... 201
Legislative activities:
Administrative Law and Regulatory Reform............. 202
Homeland Security Act............................ 202
Federal Agency Protection of Privacy Act......... 203
Housing Affordability for America Act............ 204
Bankruptcy........................................... 205
Chapter 12 of Title 11 of the United States Code
Is Reenacted................................... 206
Bankruptcy Abuse Prevention and Consumer
Protection..................................... 207
State Taxation Affecting Interstate Commerce......... 213
Electronic Commerce.............................. 214
Internet Tax Freedom............................. 214
Internet Tax Nondiscrimination................... 215
Internet Tax Moratorium and Equity............... 215
Satellite Radio Freedom and Satellite Services... 216
Internet Tax Fairness............................ 217
Federal Long-Term Care Insurance................. 219
Federal Arbitration.................................. 219
Motor Vehicle Franchise Contract Arbitration
Fairness....................................... 219
Interstate Compacts.................................. 220
New Hampshire-Vermont Interstate School Compact.. 220
Utah-Nevada State Boundary....................... 221
Tax Treatment of Bonds and Other Obligations
Issued by the Government of American Samoa..... 222
Litigation Reform.................................... 223
Health Care Litigation Reform and Help Efficient,
Accessible, Low-cost, Timely Healthcare........ 223
Oversight activities:
List of Oversight hearings........................... 224
Executive Orders and Presidential Directives......... 224
United States Department of Justice.................. 226
Executive Office for the United States Attorneys. 226
Civil Division................................... 227
Environmental and Natural Resources Division
(ENRD)......................................... 227
Executive Office for the United States Trustees.. 227
Office of the Solicitor General (OSG)............ 227
Executive Office of United States Attorneys (EOUSA).. 227
Settlement Agreement by and among the United States
of America, the Federal Communications Commission,
NextWave Telecom, Inc., and certain affiliates and
Participating Auction 35 Winning Bidders........... 229
Alabama-Coosa-Tallapoosa River Basin Compact and the
Apalachicola-Chattahoochee and Flint River Basin
Compact............................................ 231
Legal Services Corporation........................... 233
Rails-to-Trails Program.............................. 240
Federal Reserve Board/Department of Treasury Proposed
Rule Concerning Competition in the Real Estate
Brokerage and Management Markets................... 242
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Courts, The Internet, and Intellectual
Property:
Tabulation and disposition of bills referred to the
subcommittee........................................... 245
Jurisdiction of the subcommittee......................... 246
Legislative activities:
H.R. 1203, the Ninth Circuit Court of Appeals
Reorganization Act................................. 246
H.R. 2048, To require a report on the operations of
the State Justice Institute........................ 246
H.R. 2336, To make permanent the authority to redact
financial disclosure statements of judicial
employees and judicial officers.................... 247
H.R. 2522, Federal Courts Improvement Act............ 247
H.R. 3892, Judicial Improvements Act................. 247
H.R. 4125, Federal Courts Improvement Act............ 248
Intellectual Property.................................... 248
H.R. 5469, To suspend for a period of 6 months the
determination of the librarian of Congress of July
8, 2002, relating to rates and terms for the
digital performance of sound recordings and
ephemeral recordings............................... 250
S. 487, Technology, Education, and Copyright
Harmonization Act of 2001.......................... 251
Patents.................................................. 252
H.R. 740, Patent and Trademark Office Reauthorization
Act................................................ 252
H.R. 1866, To amend title 35, United States Code, to
clarify the basis for granting requests for
reexamination of patents........................... 252
H.R. 1886, To amend title 35, U.S.C., to provide for
appeals by third parties in certain patent
reexamination proceedings.......................... 252
H.R. 2047, Patent and Trademark Office Authorization
Act................................................ 252
H.R. 5119, Plant Breeders Equity Act................. 253
Oversight Activities:
List of Oversight hearings........................... 254
Review of Operations of the United States Copyright
Office............................................. 254
Review of the Operations of the United States Patent
and Trademark Office including Review of Agency
Funding............................................ 255
Review of Operations of the Federal Judicial
Misconduct and Recusal Statutes.................... 256
Review of the United States Patent and Trademark
Office: Operations and Fiscal Year 2003 Budget..... 257
Review of the Copyright Arbitration Royalty Panel
(CARP) Structure and Process....................... 258
Review of Unpublished Judicial Opinions.............. 259
Review of the United States Patent and Trademark
Office: Fee Schedule Adjustment and Agency Reform.. 259
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Immigration, Border Security, and Claims:
Tabulation and disposition of bills referred to the
subcommittee........................................... 261
Jurisdiction of the subcommittee......................... 262
Legislative Activities:
Immigration.......................................... 262
Family Reunification Act......................... 262
Section 245(i) Extension......................... 264
Work authorization for nonimmigrant spouses of
treaty traders and treaty investors............ 265
Work authorization for nonimmigrant spouses of
intra- company transferees..................... 265
Basic Pilot Extension............................ 266
Family Sponsor Immigration....................... 267
Eligibility for In-Country Refugee Processing in
Vietnam........................................ 268
Barbara Jordan Immigration Reform and
Accountability................................. 269
Embassy Employee Compensation.................... 278
Irish Peace Process Cultural and Training Program
Extension...................................... 279
Improving Access to Physicians in Medically
Underserved Areas.............................. 279
Border Commuter Student.......................... 279
Concurrence by the House with amendments in the
amendment of the Senate to H.R. 1885........... 280
Persian Gulf War POW/MIA Accountability.......... 280
Permanent Authority for Admission of ``S'' Visa
Non-Immigrants................................. 281
Claims............................................... 281
Honorary Citizenship of the United States
posthumously on Marie Joseph Paul Yves Roche
Gilbert du Motier, the Marquis de Lafayette.... 281
Sober Borders.................................... 282
United States-Jordan Free Trade Area
Implementation Act............................. 283
Posthumous Citizenship Restoration............... 283
Bar federal agencies from accepting any
identification-related purposes................ 284
Prevent nonimmigrant aliens who are delinquent in
child support payments from gaining entry to
the United States.............................. 284
Illegal Immigration Reform and Responsibility.... 285
Justice for United States Prisoners of War....... 285
Temporary Emergency Wildfire Suppression......... 286
Federal Charters..................................... 286
New Federal Charters............................. 286
Charter of the AMVETS Organization............... 287
Charter of the Veterans of Foreign Wars of the
United States.................................. 287
Requirements for Eligibility in the American
Legion......................................... 288
Private Claims and Private Immigration........... 289
Oversight Activities:
List of Oversight hearings........................... 289
Examination of INS management of it's Dual Missions.. 290
Review of the Immigration Detention Policies and
Procedures of the Department of Justice............ 292
Issuance of Visas to and Admission to the United
States of the 19 September 11 Hijackers............ 295
Review of the INS Issuance of Visa Approval Letters
for Mohammed Atta and Marwan Al-Shehhi............. 296
Federal Agency Policies and Law Enforcement Efforts
to Prevent Identity Theft.......................... 301
INS Systems Oversight................................ 307
INS Information Technology........................... 308
INS' Failure to Implement the Border Crossing Card... 309
INS' Implementation of a ENTRY-EXIT Tracking System
at U.S. Ports of Entry............................. 310
Operations of the Executive Office for Immigration
Review............................................. 310
INS Admission of Four Aliens from the Progesso....... 314
INS' Foreign Student Tracking Program................ 316
INS Interior Enforcement Strategy.................... 318
State Department shredding of completed diversity
visa applications.................................. 322
INS interactions with Hesham Mohammed Ali Hedayet.... 323
Immigration History of Suspected Criminals in High-
Profile Cases...................................... 329
Information on Alleged Mexican Incursions into the
United States...................................... 330
INS Maintenance of Alien Address Records............. 330
Examination of Immigration and United States
Population......................................... 330
Review of INS and Office of Special Counsel for
Immigration-related Unfair employment Practices.... 332
U.S. and Canada Safe Third Country Agreement......... 333
GAO on the INS Forensic Document Lab................. 335
GAO Report on Immigration Benefit Fraud.............. 336
State Department's Visa Condor Program............... 337
Foreign Guestworker Programs......................... 339
Visa Waiver Program.................................. 342
Summary of activities of the subcommittees of the Committee on
the Judiciary:
Subcommittee on Constitution:
Tabulation and disposition of bills referred to the
subcommittee........................................... 345
Jurisdiction of the subcommittee......................... 345
Legislative Activities:
Born-Alive Infants Protection........................ 346
Child Custody Protection............................. 347
Community Recognition................................ 347
Newdow v. U.S. Congress.............................. 348
George Washington letter to Touro Synagogue in
Newport, Rhode Island.............................. 349
Partial-Birth Abortion Ban........................... 349
Congress to prohibit the physical desecration of the
flag of the United States.......................... 350
Memorializing fallen firefighters by lowering the
American flag to half-staff in honor of the
national Fallen Firefighters memorial service in
Emmittsburg, Maryland.............................. 351
Governors to Appoint Persons Temporarily to Take the
Place of Representatives Who Had Died or Become
Incapacitated in Emergency Situations.............. 351
Tax Limitation....................................... 352
Office of Government Ethics Authorization Act of 2001 353
To Reaffirm the reference to One Nation under God in
the Pledge of Allegiance........................... 354
Unborn Victims of Violence........................... 355
Oversight Activities:
List of Oversight hearings........................... 356
Presidential Pardon Power............................ 356
United States Commission on Civil Rights............. 357
Department of Justice Civil Rights Division.......... 361
Judicial Vacancy Crisis.............................. 362
Genetic Privacy...................................... 363
Union Calendar No. 508
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-807
======================================================================
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 2, 2003.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
Jurisdiction of the Committee on the Judiciary
The jurisdiction of the Committee on the Judiciary is set
forth in Rule X, 1.(k) of the Rules of the House of
Representatives for the 107th Congress:
* * * * * * *
Rule X.--Establishment and Jurisdiction of Standing Committees
THE COMMITTEES AND THEIR JURISDICTION
1. There shall be in the House the following standing
committees, each of which shall have the jurisdiction and
related functions assigned to it by this clause and clauses 2,
3, and 4. All bills, resolutions, and other matters relating to
subjects within the jurisdiction of the standing committees
listed in this clause shall be referred to those committees, in
accordance with clause 2 of rule XII, as follows:
* * * * * * *
(k) Committee on the Judiciary
(1) The judiciary and judicial proceedings, civil and
criminal.
(2) Administrative practice and procedure.
(3) Apportionment of Representatives.
(4) Bankruptcy, mutiny, espionage, and
counterfeiting.
(5) Civil liberties.
(6) Constitutional amendments.
(7) Federal courts and judges, and local courts in
the Territories and possessions.
(8) Immigration and naturalization.
(9) Interstate compacts, generally.
(10) Claims against the United States.
(11) Meetings of Congress, attendance of Members and
their acceptance of incompatible offices.
(12) National penitentiaries.
(13) Patents, the Patent Office, copyrights, and
trademarks.
(14) Presidential succession.
(15) Protection of trade and commerce against
unlawful restraints and monopolies.
(16) Revision and codification of the Statutes of the
United States.
(17) State and Territorial boundaries.
(18) Subversive activities affecting the internal
security of the United States.
Tabulation of Legislation and Activity
____________________________________________________
legislation referred to committee
Public Legislation:
House bills................................................... 760
House joint resolutions....................................... 66
House concurrent resolutions.................................. 35
House resolutions............................................. 25
______
886
=================================================================
________________________________________________
Senate bills.................................................. 24
Senate joint resolutions...................................... 1
Senate concurrent resolutions................................. 2
______
27
=================================================================
________________________________________________
Subtotal.................................................. 913
=================================================================
________________________________________________
Private Legislation:
House bills (claims).......................................... 24
House bills (copyrights)...................................... 1
House bills (immigration)..................................... 48
House resolutions (claims).................................... 1
______
74
=================================================================
________________________________________________
Senate bills (claims)......................................... 1
Senate bills (immigration).................................... 7
______
8
=================================================================
________________________________________________
Subtotal.................................................. 82
=================================================================
________________________________________________
Total..................................................... 995
action on legislation not referred to committee
Held at desk for House action:
Senate bills.................................................. 2
______
2
Conference appointments:
House bills................................................... 5
Senate bills.................................................. 1
______
6
=================================================================
________________________________________________
Total..................................................... 8
final action
House concurrent resolutions approved (public).................... 3
House resolutions approved (public)............................... 4
Public legislation vetoed by the President........................ 0
Public Laws....................................................... 56
Private Laws...................................................... 6
Printed Hearings
Serial No. and Title
__________
1. Consequences for Juvenile Offenders Act of 2001. Subcommittee on
Crime. March 8, 2001. (H.R. 863).
2. Presidential Pardon Power. Subcommittee on the Constitution.
February 28, 2001.
3. Drug Trafficking on the Southwest Border. Subcommittee on Crime.
March 29, 2001.
4. Unborn Victims of Violence Act of 2001. Subcommittee on the
Constitution. March 15, 2001. (H.R. 503).
5. Business Method Patents. Subcommittee on Courts, the Internet,
and Intellectual Property. April 4, 2001.
6. United States Copyright Office. Subcommittee on Courts, the
Internet, and Intellectual Property. May 2, 2001.
7. Bankruptcy Abuse Prevention and Consumer Protection Act of 2001.
Committee on the Judiciary. February 7, 8, 2001. (H.R. 333).
8. ICANN, New gTLDS, and the Protection of Intellectual Property.
Subcommittee on Courts, the Internet, and Intellectual Property. March
22, 2001.
9. Patents: Improving Quality and Curing Defects. Subcommittee on
Courts, the Internet, and Intellectual Property. May 10, 2001.
10. Executive Orders and Presidential Directives. Subcommittee on
Commercial and Administrative Law. March 22, 2001.
11. Federal Prison Industries Competition in Contracting Act of
2001. Subcommittee on Crime. April 26, 2001. (H.R. 1577).
12. Music on the Internet. Subcommittee on Courts, the Internet,
and Intellectual Property. May 17, 2001.
13. State and Local Implementation of Existing Charitable Choice
Programs. Subcommittee on the Constitution. April 24, 2001.
14. Technology, Education and Copyright Harmonization Act of 2001.
Subcommittee on Courts, the Internet, and Intellectual Property. June
27, 2001. (S. 487).
15. Reauthorization of the U.S. Department of Justice: Executive
Office for U.S. Attorneys, Civil Division, Environment and Natural
Resources Division, Executive Office for U.S. Trustees, and Office of
the Solicitor General. Subcommittee on Commercial and Administrative
Law. May 9, 2001.
16. U.S. Patent and Trademark Office Operations and Funding.
Subcommittee on Courts, the Internet, and Intellectual Property. June
7, 2001.
17. Constitutional Role of Faith-Based Organizations in
Competitions for Federal Social Service Funds. Subcommittee on the
Constitution. June 7, 2001.
18. Internet Freedom and Broadband Deployment Act of 2001.
Committee on the Judiciary. June 5, 2001. (H.R. 1542).
19. American Broadband Competition Act of 2001 and the Broadband
Competition and Incentives Act of 2001. Committee on the Judiciary. May
22, 2001. (H.R. 1698 and H.R. 1697).
20. Constitutional Issues Raised by Recent Campaign Finance
Legislation Restricting Freedom of Speech. Subcommittee on the
Constitution. June 12, 2001.
21. INS and the Executive Office for Immigration Review.
Subcommittee on Immigration and Claims. May 15, 2001.
22. Guestworker Visa Programs. Subcommittee on Immigration and
Claims. June 19, 2001.
23. Whois Database: Privacy and Intellectual Property Issues.
Subcommittee on Courts, the Internet, and Intellectual Property. July
12, 2001. (See also Serial No. 70).
24. Unsolicited Commercial Electronic Mail Act of 2001 and the
Anti-Spamming Act of 2001. Committee on the Judiciary. May 10, 2001.
(H.R. 718 and H.R. 1017).
25. Federal Courts Improvement Act of 2001. Subcommittee on Courts,
the Internet, and Intellectual Property. July 26, 2001. (H.R. 2522).
26. Internet Tax Nondiscrimination Act. Subcommittee on Commercial
and Administrative Law. June 26, 2001. (H.R. 1552 and H.R. 1675).
27. Notification and Federal Employee Anti-Discrimination and
Retaliation Act of 2001. Committee on the Judiciary. May 9, 2001. (H.R.
169).
28. Consumer Product Protection Act of 2001. Subcommittee on Crime.
July 26, 2001. (H.R. 2621).
29. Preauthorization of the United States Department of Justice:
Criminal Law Enforcement. Subcommittee on Crime. May 3, 15, 2001.
30. U.S. Population and Immigration. Subcommittee on Immigration
and Claims. August 2, 2001.
31. Internet Tax Moratorium and Equity Act. Subcommittee on
Commercial and Administrative Law. July 18, 2001. (H.R. 1410).
32. Born-Alive Infants Protection Act of 2001. Subcommittee on the
Constitution. July 12, 2001. (H.R. 2175).
33. Fighting Caber Crime. Subcommittee on Crime. May 24, June 12,
14, 2001.
34. Law Enforcement and Community Efforts to Address Crimes Against
Seniors. Subcommittee on Crime. July 11, 2001.
35. Child Sex Crimes Wiretapping Act of 2001. Subcommittee on
Crime. June 21, 2001. (H.R. 1877).
36. Child Custody Protection Act. Subcommittee on the Constitution.
September 6, 2001. (H.R. 476).
37. United States Department of Justice. Committee on the
Judiciary. June 6, 2001.
38. Two Strikes and You're Out Child Protection Act of 2001.
Subcommittee on Crime. July 31, 2001. (H.R. 2146).
39. Administration's Draft Anti-Terrorism Act of 2001. Committee on
the Judiciary. September 24, 2001.
40. Human Cloning. Subcommittee on Crime. June 7, 19, 2001.
[Oversight, H.R. 1644, and H.R. 2172 (a bill referred to the Committee
on Energy and Commerce).]
41. Internet Tax Fairness Act of 2001. Subcommittee on Commercial
and Administrative Law. September 11, 2001. (H.R. 2526).
42. Market Power and Intellectual Property Litigation. Subcommittee
on Courts, the Internet, and Intellectual Property. November 8, 2001.
43. Using Information Technology to Secure America's Borders: INS
Problems with Planning and Implementation. Subcommittee on Immigration
and Claims. October 11, 2001.
44. Immigration and Naturalization Service Performance Issues.
Subcommittee on Immigration and Claims. October 17, 2001.
45. Operations of Federal Judicial Misconduct Statutes.
Subcommittee on Courts, the Internet, and Intellectual Property.
November 29, 2001.
46. Implementation of the International Convention for the
Suppression of Terrorist Bombings and the International Convention for
the Suppression of the Financing of Terrorism. Subcommittee on Crime.
November 14, 2001. (H.R. 3275).
47. Unlawful Internet Gambling Funding Prohibition Act and the
Combating Illegal Gambling Reform and Modernization Act. Subcommittee
on Crime. November 29, 2001. (H.R. 556 and H.R. 3215).
48. Anti-Hoax Terrorism Act of 2001. Subcommittee on Crime.
November 7, 2001. (H.R. 3209).
49. Help America Vote Act of 2001. Committee on the Judiciary.
December 5, 2001. (H.R. 3295).
50. Direct Broadcast Satellite Service and Competition in the
Multichannel Video Distribution Market. Committee on the Judiciary.
December 4, 2001.
51. Fairness in Antitrust in National Sports (FANS) Act of 2001.
Committee on the Judiciary. December 6, 2001. (H.R. 3288).
52. Digital Millennium Copyright Act Section 104 Report.
Subcommittee on Courts, the Internet, and Intellectual Property.
December 12, 13, 2001.
53. Federal Trademark Dilution Act. Subcommittee on Courts, the
Internet, and Intellectual Property. February 14, 2002.
54. Alabama-Coosa-Tallapoosa River Basin Compact and the
Apalachicola-Chattahoochee and Flint River Basin Compact. Subcommittee
on Commercial and Administrative Law. December 19, 2001.
55. Review of Department of Justice Immigration Detention Policies.
Subcommittee on Immigration and Claims. December 19, 2001.
56. Settlement Agreement by and among the United States of America,
the Federal Communications Commission, NextWave Telecom, Inc., et al.
Subcommittee on Commercial and Administrative Law jointly with the
Subcommittee on Courts, the Internet, and Intellectual Property.
December 6, 2001.
57. Operations of the Executive Office for Immigration Review
(EOIR). Subcommittee on Immigration and Claims. February 6, 2002.
58. Cyber Security Enhancement Act of 2001. Subcommittee on Crime.
February 12, 2002. (H.R. 3482).
59. Class Action Fairness Act of 2001. Committee on the Judiciary.
February 6, 2002. (H.R. 2341).
60. Patent Law and Non-Profit Research Collaboration. Subcommittee
on Courts, the Internet, and Intellectual Property. March 14, 2002.
61. Implications of Transnational Terrorism for the Visa Waiver
Program. Subcommittee on Immigration and Claims. February 28, 2002.
62. Temporary Filling of House of Representatives Vacancies During
National Emergencies. Subcommittee on the Constitution. February 28,
2002. (H.J. Res. 62).
63. INS's March 2002 Notification of Approval of Change of Status
for Pilot Training for Terrorist Hijackers Mohammed Atta and Marwan Al-
Shehhi. Subcommittee on Immigration and Claims. March 19, 2002.
64. U.S. Patent and Trademark Office: Operations and Fiscal year
2003 Budget. Subcommittee on Courts, the Internet, and Intellectual
Property. April 11, 2002.
65. Proposed Change of Utah-Nevada State Boundary; Amendments to
the New Hampshire-Vermont Interstate School Compact; and Tax Treatment
of Bonds Issued by the Government of American Samoa. Subcommittee on
Commercial and Administrative Law. March 6, 2002. (H.R. 2054, H.R.
3180, and H.R. 1448).
66. Legal Services Corporation. Subcommittee on Commercial and
Administrative Law. February 28, 2002.
67. HUD's ``Legislative Guidebook'' and Its Potential Impact on
Property Rights and Small Businesses, Including Minority-Owned
Businesses. Subcommittee on the Constitution. March 7, 2002.
68. INS and Office of Special Counsel for Immigration Related
Unfair Employment Practices. Subcommittee on Immigration and Claims.
March 21, 2002.
69. Restructuring the INS--How the Agency's Dysfunctional Structure
Impedes the Performance of Its Dual Mission. Committee on the
Judiciary. April 9, 2002.
70. Accuracy and Integrity of the Whois Database. Subcommittee on
Courts, the Internet, and Intellectual Property. May 22, 2002. (See
also Serial No. 23).
71. Office of Justice Programs. Subcommittee on Crime. March 5, 7,
14, 2002.
72. Consumer Benefits of Today's Digital Rights Management (DRM)
Solutions. Subcommittee on Courts, the Internet, and Intellectual
Property. June 5, 2002.
73. U.S. Commission on Civil Rights. Subcommittee on the
Constitution. April 11, 2002.
74. Victims' Rights Amendment. Subcommittee on the Constitution.
May 9, 2002. (H.J. Res. 91).
75. Enhancing Child Protection Laws After the April 16, 2002
Supreme Court Decision, Ashcroft v. Free Speech Coalition. Subcommittee
on Crime, Terrorism, and Homeland Security. May 1, 2002.
76. Child Obscenity and Pornography Prevention Act of 2002 and the
Sex Tourism Prohibition Improvement Act of 2002. Subcommittee on Crime,
Terrorism, and Homeland Security. May 9, 2002. (H.R. 4623 and H.R.
4477).
77. Administrative and Procedural Aspects of the Federal Reserve
Board/Department of the Treasury Proposed Rule Concerning Competition
in the Real Estate Brokerage and Management Markets. Subcommittee on
Commercial and Administrative Law. May 16, 2002.
78. Copyright Arbitration Royalty Panel (CARP) Structure and
Process. Subcommittee on Courts, the Internet, and Intellectual
Property. June 13, 2002.
79. Patent Reexamination and Small Business Innovation.
Subcommittee on Courts, the Internet, and Intellectual Property. June
20, 2002.
80. Federal Agency Protection of Privacy Act. Subcommittee on
Commercial and Administrative Law. May 1, 2002. (H.R. 4561).
81. Civil Rights Division of the U.S. Department of Justice.
Subcommittee on the Constitution. June 25, 2002.
82. Unpublished Judicial Opinions. Subcommittee on Courts, the
Internet, and Intellectual Property. June 27, 2002.
83. Homeland Security Information Sharing Act. Subcommittee on
Crime, Terrorism, and Homeland Security. June 4, 2002. (H.R. 4598).
84. Anti-Terrorism Explosives Act of 2002. Subcommittee on Crime,
Terrorism, and Homeland Security. June 11, 2002. (H.R. 4864).
85. Immigration and Naturalization Service's (INS) Interior
Enforcement Strategy. Subcommittee on Immigration, Border Security, and
Claims. June 19, 2002.
86. Risk to Homeland Security from Identity Fraud and Identity
Theft. Subcommittee on Immigration, Border Security, and Claims jointly
with the Subcommittee on Crime, Terrorism, and Homeland Security. June
25, 2002.
87. Tort Liability Under the Temporary Emergency Wildfire
Suppression Act. Subcommittee on Immigration, Border Security, and
Claims. June 28, 2002. (H.R. 5017).
88. Free Market Antitrust Immunity Reform (FAIR) Act of 2001.
Committee on the Judiciary. June 5, 2002. (H.R. 1253).
89. Innocence Protection Act of 2001. Subcommittee on Crime,
Terrorism, and Homeland Security. June 18, 2002. (H.R. 912).
90. Litigation and Its Effect on the Rails-to-Trails Program.
Subcommittee on Commercial and Administrative Law. June 20, 2002.
91. Role of Immigration in the Department of Homeland Security
Pursuant to H.R. 5005, the Homeland Security Act of 2002. Subcommittee
on Immigration, Border Security, and Claims. June 27, 2002.
92. U.S. Patent and Trademark Office: Fee Schedule Adjustment and
Agency Reform. Subcommittee on Courts, the Internet, and Intellectual
Property. July 18, 2002.
93. Partial-Birth Abortion Ban Act of 2002. Subcommittee on the
Constitution. July 9, 2002. (H.R. 4965).
94. Proposal to Create a Department of Homeland Security.
Subcommittee on Crime, Terrorism, and Homeland Security. July 9, 2002.
95. Ninth Circuit Court of Appeals Reorganization Act of 2001.
Subcommittee on Courts, theInternet, and Intellectual Property. July
23, 2002. (H.R. 1203).
96. Administrative Law, Adjudicatory Issues, and Privacy
Ramifications of Creating a Department of Homeland Security.
Subcommittee on Commercial and Administrative Law. July 9, 2002.
97. Health Care Litigation Reform: Does Limitless Litigation
Restrict Access to Health Care? Subcommittee on Commercial and
Administrative Law. June 12, 2002.
98. Fairness in Sentencing Act of 2002. Subcommittee on Crime,
Terrorism, and Homeland Security. May 14, 2002. (H.R. 4689).
99. Homeland Security Act of 2002. Committee on the Judiciary. June
26, 2002. (H.R. 5005).
100. Privacy Concerns Raised by the Collection and Use of Genetic
Information by Employers and Insurers. Subcommittee on the
Constitution. September 12, 2002.
101. Supreme Court's School Choice Decision and Congress' Authority
to Enact Choice Programs. Subcommittee on the Constitution. September
17, 2002.
102. Preserving the Integrity of Social Security Numbers and
Preventing Their Misuse by Terrorists and Identity Thieves.
Subcommittee on Immigration, Border Security, and Claims of the
Committee on the Judiciary jointly with the Subcommittee on Social
Security of the Committee on Ways and Means. September 19, 2002.
103. Piracy of Intellectual Property on Peer-to-Peer Networks.
Subcommittee on Courts, the Internet, and Intellectual Property.
September 26, 2002.
104. Plant Breeders Equity Act of 2002. Subcommittee on Courts, the
Internet, and Intellectual Property. September 19, 2002. (H.R. 5119).
105. Immigration and Naturalization Service's (INS's)
Implementation of the Foreign Student Tracking Program. Subcommittee on
Immigration, Border Security, and Claims. September 18, 2002.
106. Justice for United States Prisoners of War Act of 2001.
Subcommittee on Immigration, Border Security, and Claims. September 25,
2002. (H.R. 1198).
107. Satellite Radio Freedom Act and the Satellite Services Act.
Subcommittee on Commercial and Administrative Law. September 25, 2002.
(H.R. 4869 and H.R. 5429).
108. A Judiciary Diminished is Justice Denied: The Constitution,
the Senate, and the Vacancy Crisis in the Federal Judiciary.
Subcommittee on the Constitution. October 10, 2002.
109. Reducing Americans' Vulnerability to Ecstasy Act of 2002.
Subcommittee on Crime, Terrorism, and Homeland Security. October 10,
2002. (H.R. 5519).
110. Immigration and Naturalization Services' (INS's) Interactions
with Hesham Mohamed Ali Hedayet. Subcommittee on Immigration, Border
Security, and Claims. October 9, 2002.
111. United States and Canada Safe Third Country Agreement.
Subcommittee on Immigration, Border Security, and Claims. October 16,
2002.
112. Child Abduction Prevention Act. Subcommittee on Crime,
Terrorism, and Homeland Security. October 1, 2002. (H.R. 5422).
113. Bail Bond Fairness Act of 2001. Subcommittee on Crime,
Terrorism, and Homeland Security. October 8, 2002. (H.R. 2929).
Committee Prints
Serial No. and Title
__________
1. Federal Rules of Appellate Procedure. December 1, 2001.
2. Federal Rules of Civil Procedure. December 1, 2001.
3. Federal Rules of Criminal Procedure. December 1, 2001.
4. Federal Rules of Evidence. December 1, 2001.
5. Federal Rules of Appellate Procedure. December 1, 2002.
6. Federal Rules of Civil Procedure. December 1, 2002.
7. Federal Rules of Criminal Procedure. December 1, 2002.
8. Federal Rules of Evidence. December 1, 2002.
House Documents
H. Doc. No. and Title
__________
107-12. Apportionment Population and State Representation.
Communication from the President of the United States transmitting his
report on the apportionment population for each State as of April 1,
2000, and the number of Representatives to which each State would be
entitled, pursuant to 2 U.S.C. 2a(a) and 13 U.S.C. 141(b). Referred to
the Committee on the Judiciary and the Committee on Government Reform.
January 6, 2001. (Executive Communication No. 88).
107-15. Legislative Proposal for an Agreement Between the United
States and Jordan on the Establishment of a Free Trade Area. Message
from the President of the United States transmitting a legislative
proposal to implement the agreement between the United States of
America and the Hashemite Kingdom of Jordan on the establishment of a
free trade area. Referred to the Committee on Ways and Means and the
Committee on the Judiciary. January 20, 2001. (Presidential Message No.
3).
107-36. Rallying the Armies of Compassion. Message from the
President of the United States transmitting a report to support the
heroic works of faith-based and community groups across America.
Referred to the Committees on Ways and Means, the Judiciary, Education
and the Workforce, Government Reform, and Financial Services. January
31, 2001. (Presidential Message No. 4).
107-39. New Freedom Initiative. Communication from the President of
the United States transmitting his report to increase investment in and
access to assistive technologies and a quality education, and help
integrate Americans with disabilities into the workforce and into
community life. Referred jointly to the Committees on Education and the
Workforce, Financial Services, Ways and Means, Energy and Commerce,
Transportation and Infrastructure, the Judiciary, and House
Administration. February 6, 2001. (Executive Communication No. 672).
107-60. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. April 24, 2001. (Executive Communication No. 1574).
107-61. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2072. April
24, 2001. (Executive Communication No. 1575).
107-62. A Letter Regarding Section 245(i) of the Immigration and
Nationality Act. Communication from the President of the United States
transmitting a letter in support of legislation to extend the window
created under section 245(i) of the Immigration and Nationality Act
during which qualified immigrants may obtain legal residence in the
United States without being forced to leave the country and their
families for several years. May 1, 2001. (Executive Communication No.
1677).
107-139. A Legislative Proposal. Message from the President of the
United States transmitting a legislative proposal to implement the
International Convention for the Suppression of Terrorist Bombings and
the International Convention for the Suppression of the Financing of
Terrorism. October 29, 2001. (Presidential Message No. 53).
107-203. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. May 3, 2002. (Executive Communication No. 6621).
107-204. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2072. May 3,
2002. (Executive Communication No. 6623).
107-205. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. May 3, 2002. (Executive Communication No. 6624).
107-206. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. May 3, 2002. (Executive Communication No. 6622).
Summary of Activities of the Committee on the Judiciary
----------
Legislation Enacted Into Law
A variety of legislation within the Committee's
jurisdiction was enacted into law during the 107th Congress.
The public and private laws, along with approved resolutions,
are listed below and are more fully detailed in the subsequent
sections of this report recounting the activities of the
Committee and its individual subcommittees.
PUBLIC LAWS
Public Law 107-8.--To extend for 11 additional months the
period for which chapter 12 of title 11 of the United States
Code is reenacted. (H.R. 256) (Approved May 11, 2001; effective
date July 1, 2000).
Public Law 107-12.--To authorize the Public Safety Officer
Medal of Valor, and for other purposes. ``Public Safety Officer
Medal of Valor Act of 2001.'' (H.R. 802) (Approved May 30,
2001).
Public Law 107-17.--To extend for 4 additional months the
period for which chapter 12 of title 11 of the United States
Code is reenacted. (H.R. 1914) (Approved June 26, 2001;
effective date June 1, 2001).
Public Law 107-37.--To provide for the expedited payment of
certain benefits for a public safety officer who was killed or
suffered a catastrophic injury as a direct and proximate result
of a personal injury sustained in the line of duty in
connection with the terrorist attacks of September 11, 2001.
(H.R. 2882) (Approved September 18, 2001).
Public Law 107-42.--To preserve the continued viability of
the United States air transportation system. ``Air
Transportation Safety and System Stabilization Act.'' (H.R.
2926) (Approved September 22, 2001).
Public Law 107-43.--To implement the agreement establishing
a United States-Jordan free trade area. ``United States-Jordan
Free Trade Area Implementation Act.'' (H.R. 2603) (Approved by
the President September 28, 2001; effective dates vary).
Public Law 107-45.--To amend the Immigration and
Nationality Act to provide permanent authority for the
admission of ``S'' visa non-immigrants. (S. 1424) (Approved
October 1, 2001).
Public Law 107-51.--Memorializing fallen firefighters by
lowering the American flag to half-staff in honor of the
National Fallen Firefighters Memorial Service in Emmitsburg,
Maryland. (H.J. Res. 42) (Approved October 16, 2001).
Public Law 107-56.--To deter and punish terrorist acts in
the United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes.
``Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001.'' (H.R. 3162) (Approved October 26, 2001;
effective dates and termination dates vary).
Public Law 107-72.--To amend the Improving America's
Schools Act of 1994 to extend the favorable treatment of need-
based educational aid under the antitrust laws. ``Need-Based
Educational Aid Act of 2001.'' (H.R. 768) (Approved November
20, 2001; effective date September 30, 2001).
Public Law 107-75.--To extend the moratorium enacted by the
Internet Tax Freedom Act through November 1, 2003, and for
other purposes. ``Internet Tax Nondiscrimination Act.'' (H.R.
1552) (Approved November 28, 2001).
Public Law 107-104.--To amend chapter 90 of title 5, United
States Code, relating to Federal long-term care insurance.
(H.R. 2559) (Approved December 27, 2001; effective as if
included in the enactment of section 1002 of the Long-Term Care
Security Act--Public Law 106-265).
Public Law 107-107.--To authorize appropriations for fiscal
year 2002 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe personnel strengths for such
fiscal year for the Armed Forces, and for other purposes.
``National Defense Authorization Act for Fiscal Year 2002.''
(S. 1438) (Approved December 28, 2001; effective dates vary).
Public Law 107-110.--To close the achievement gap with
accountability, flexibility, and choice, so that no child is
left behind. ``No Child Left Behind Act of 2001.'' (H.R. 1)
(Approved January 8, 2002; effective dates vary).
Public Law 107-119.--To amend the Ethics in Government Act
of 1978 (5 U.S.C. App.) to extend the authorization of
appropriations for the Office of Government Ethics through
fiscal year 2006. ``Office of Government Ethics Authorization
Act of 2001.'' (S. 1202) (Approved January 15, 2002).
Public Law 107-124.--To provide for work authorization for
nonimmigrant spouses of treaty traders and treaty investors.
(H.R. 2277) (Approved January 16, 2002).
Public Law 107-125.--To provide for work authorization for
nonimmigrant spouses of intracompany transferees, and to reduce
the period of time during which certain intracompany
transferees have to be continuously employed before applying
for admission to the United States. (H.R. 2278) (Approved
January 16, 2002).
Public Law 107-126.--To extend for 4 years, through
December 31, 2005, the authority to redact financial disclosure
statements of judicial employees and judicial officers. (H.R.
2336) (Approved January 16, 2002).
Public Law 107-128.--To extend the basic pilot program for
employment eligibility verification, and for other purposes.
``Basic Pilot Extension Act of 2001.'' (H.R. 3030) (Approved
January 16, 2002).
Public Law 107-140.--To amend title 18 of the United States
Code to correct a technical error in the codification of title
36 of the United States Code. (S. 1888) (Approved February 8,
2002).
Public Law 107-150.--To amend the Immigration and
Nationality Act to provide for the acceptance of an affidavit
of support from another eligible sponsor if the original
sponsor has died and the Attorney General has determined for
humanitarian reasons that the original sponsor's classification
petition should not be revoked. ``Family Sponsor Immigration
Act of 2002.'' (H.R. 1892) (Approved March 13, 2002; effective
dates vary).
Public Law 107-155.--To amend the Federal Election Campaign
Act of 1971 to provide bipartisan campaign reform. ``Bipartisan
Campaign Reform Act of 2002.'' (H.R. 2356) (Approved March 27,
2002; general provisions effective date November 6, 2002; other
effective dates vary).
Public Law 107-169.--To make technical amendments to
section 10 of title 9, United States Code. (H.R. 861) (Approved
May 7, 2002).
Public Law 107-170.--To extend for 8 additional months the
period for which chapter 12 of title 11 of the United States
Code is reenacted. (H.R. 4167) (Approved May 7, 2002; effective
date October 1, 2001).
Public Law 107-171.--To provide for the continuation of
agricultural programs through fiscal year 2011. (H.R. 2646)
(Approved May 13, 2002).
Public Law 107-173.--To enhance the border security of the
United States, and for other purposes. ``Enhanced Border
Security and Visa Entry Reform Act of 2002.'' (H.R. 3525)
(Approved May 14, 2002).
Public Law 107-174.--To require that Federal agencies be
accountable for violations of antidiscrimination and
whistleblower protection laws; to require that each Federal
agency post quarterly on its public Web site, certain
statistical data relating to Federal sector equal employment
opportunity complaints filed with such agency; and for other
purposes. ``Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002.'' (H.R. 169)
(Approved May 15, 2002).
Public Law 107-179.--To require a report on the operation
of the State Justice Institute. (H.R. 2048) (Approved May 20,
2002).
Public Law 107-185.--To extend eligibility for refugee
status of unmarried sons and daughters of certain Vietnamese
refugees. (H.R. 1840) (Approved May 30, 2002).
Public Law 107-188.--To improve the ability of the United
States to prevent, prepare for, and respond to bioterrorism and
other public health emergencies. ``Public Health Security and
Bioterrorism Preparedness and Response Act of 2002.'' (H.R.
3448) (Approved June 12, 2002; effective dates vary).
Public Law 107-196.--To amend the Omnibus Crime Control and
Safe Streets Act of 1968 to ensure that chaplains killed in the
line of duty receive public safety officer death benefits.
``Mychal Judge Police and Fire Chaplains Public Safety
Officers'' Benefit Act of 2002.'' (S. 2431) (Approved June 24,
2002; effective date September 11, 2001, and applicable to
injuries or deaths that occur in the line of duty on or after
such date).
Public Law 107-197.--To implement the International
Convention for the Suppression of Terrorist Bombings to
strengthen criminal laws relating to attacks on places of
public use, to implement the International Convention of the
Suppression of the Financing of Terrorism, to combat terrorism
and defend the Nation against terrorist acts, and for other
purposes. (H.R. 3275) (Approved June 25, 2002; effective dates
vary).
Public Law 107-204.--To protect investors by improving the
accuracy and reliability of corporate disclosures made pursuant
to the securities laws, and for other purposes. ``Sarbanes-
Oxley Act of 2002.'' (H.R. 3763) (Approved July 30, 2002).
Public Law 107-207.--To protect infants who are born alive.
``Born-Alive Infants Protection Act of 2002.'' (H.R. 2175)
(Approved August 5, 2002).
Public Law 107-208.--To amend the Immigration and
Nationality Act to determine whether an alien is a child, for
purposes of classification as an immediate relative, based on
the age of the alien on the date the classification petition
with respect to the alien is filed, and for other purposes.
``Child Status Protection Act.'' (H.R. 1209) (Approved August
6, 2002).
Public Law 107-209.--Conferring honorary citizenship of the
United States posthumously on Marie Joseph Paul Yves Roche
Gilbert du Motier, the Marquis de Lafayette. (S.J. Res. 13)
(Approved August 6, 2002).
Public Law 107-210.--To extend the Andean Trade Preference
Act, to grant additional trade benefits under that Act, and for
other purposes. (H.R. 3009) (Approved August 6, 2002).
Public Law 107-217.--To revise, codify, and enact without
substantive change certain general and permanent laws, related
to public buildings, property, and works, as title 40, United
States Code, ``Public Buildings, Property, and Works.'' (H.R.
2068) (Approved August 21, 2002).
Public Law 107-228.--To authorize appropriations for the
Department of State for fiscal years 2002 and 2003, and for
other purposes. (H.R. 1646) (Approved September 30, 2002).
Public Law 107-234.--To extend the Irish Peace Process
Cultural and Training Program. (H.R. 4558) (Approved October 4,
2002).
Public Law 107-241.--To amend the charter of the AMVETS
organization. (H.R. 3214) (Approved October 16, 2002).
Public Law 107-242.--To amend the charter of the Veterans
of Foreign Wars of the United States organization to make
members of the armed forces who receive special pay for duty
subject to hostile fire or imminent danger eligible for
membership in the organization, and for other purposes. (H.R.
3838) (Approved October 16, 2002).
Public Law 107-252.--To establish a program to provide
funds to States to replace punch card voting systems, to
establish the Election Assistance Commission to assist in the
administration of Federal elections and to otherwise provide
assistance with the administration of certain Federal election
laws and programs, to establish minimum election administration
standards for States and units of local government with
responsibility for the administration of Federal elections, and
for other purposes. ``Help America Vote Act of 2002.'' (H.R.
3295) (Approved October 29, 2002).
Public Law 107-258.--To amend the Bring Them Home Alive Act
of 2000 to provide an asylum program with regard to American
Persian Gulf War POW/MIAs, and for other purposes. ``Persian
Gulf War POW/MIA Accountability Act of 2002.'' (S. 1339)
(Approved October 29, 2002).
Public Law 107-273.--To authorize appropriations for the
Department of Justice for fiscal year 2002, and for other
purposes. ``21st Century Department of Justice Appropriations
Authorization Act.'' (H.R. 2215) (Approved November 2, 2002).
Public Law 107-274.--To establish new nonimmigrant classes
for border commuter students. ``Border Commuter Student Act of
2002.'' (H.R. 4967) (Approved November 2, 2002).
Public Law 107-293.--To reaffirm the reference to one
Nation under God in the Pledge of Allegiance. (S. 2690)
(Approved November 13, 2002).
Public Law 107-296.--To establish the Department of
Homeland Security, and for other purposes. ``Homeland Security
Act of 2002.'' (H.R. 5005) (Approved November 25, 2002).
Public Law 107-297.--To ensure the continued financial
capacity of insurers to provide coverage for risks from
terrorism. ``Terrorism Risk Insurance Act of 2002.'' (H.R.
3210) (Approved November 26, 2002).
Public Law 107-307.--To amend title 18, United States Code,
with respect to consumer product protection. ``Product
Packaging Protection Act of 2002.'' (H.R. 2621) (Approved
December 2, 2002).
Public Law 107-309.--To amend title 36, United States Code,
to clarify the requirements for eligibility in the American
Legion. (H.R. 3988) (Approved December 2, 2002).
Public Law 107-314.--To authorize appropriations for fiscal
year 2003 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe personnel strengths, for
such fiscal year for the Armed Forces, and for other purposes.
``Bob Stump National Defense Authorization Act for Fiscal Year
2003.'' (H.R. 4546) (Approved December 2, 2002).
Public Law 107-321.--To suspend for a period of 6 months
the determination of the Librarian of Congress of July 8, 2002,
relating to rates and terms for the digital performance of
sound recordings and ephemeral recordings. ``Small Webcaster
Settlement Act of 2002.'' (H.R. 5469) (Approved December 4,
2002).
Public Law 107-347.--To enhance the management and
promotion of electronic Government services and processes by
establishing a Federal Chief Information Officer within the
Office of Management and Budget, and by reestablishing a broad
framework of measurers that require using Internet-based
information technology to enhance citizen access to Government
information and services, and for other purposes. ``E-
Government Act of 2002.'' (H.R. 2458) (Approved December 17,
2002).
Public Law 107-352.--To consent to certain amendments to
the New Hampshire-Vermont Interstate School Compact. (H.R.
3180) (Approved December 17, 2002).
Public Law 107-377.--To extend for 6 months the period for
which chapter 12 of title 11 of the United States Code is
reenacted. (H.R. 5472) (Approved December 19, 2002).
PRIVATE LAWS
Private Law 107-1.--For the relief of Rita Mirembe Revell
(a.k.a. Margaret Rita Mirembe). (S. 560) (Approved July 17,
2001).
Private Law 107-2.--For the relief of retired Sergeant
First Class James D. Benoit and Wan Sook Benoit (S. 1834)
(Approved October 1, 2002).
Private Law 107-3.--For the relief of Barbara Makuch. (H.R.
486) (Approved October 4, 2002).
Private Law 107-4.--For the relief of Eugene Makuch. (H.R.
487) (Approved October 4, 2002).
Private Law 107-5.--For the relief of Anisha Goveas Foti.
(H.R. 2245) (Approved November 5, 2002).
Private Law 107-8.--For the relief of So Hyun Jun. (H.R.
3758) (Approved December 2, 2002).
CONCURRENT AND SIMPLE RESOLUTIONS APPROVED
H. Con. Res. 225.--Expressing the sense of the Congress
that, as a symbol of the solidarity following the terrorist
attacks on the United States on September 11, 2001, every
United States citizen is encouraged to display the flag of the
United States. Agreed to by the House September 13, 2001;
agreed to by the Senate September 13, 2001.
H. Con. Res. 227.--Condemning bigotry and violence against
Arab-Americans, American Muslims, and Americans from South Asia
in the wake of terrorist attacks in New York City, New York,
and Washington, D.C., on September 11, 2001. Agreed to by the
House September 15 (legislative day September 14), 2001; agreed
to by the Senate September 26, 2001.
H. Con. Res. 243.--Expressing the sense of the Congress
that the Public Safety Officer Medal of Valor should be
presented to the public safety officers who have perished and
select other public safety officers who deserve special
recognition for outstanding valor above and beyond the call of
duty in the aftermath of the terrorist attacks in the United
States on September 11, 2001. Agreed to by the House October
30, 2001; agreed to by the Senate April 18, 2002.
H. Res. 103.--Referring the bill (H.R. 1258), entitled ``A
bill for the relief of Sarabeth M. Davis, Robert S. Borders,
Victor Maron, Irving Berke, and Adele E. Conrad'', to the chief
judge of the United States Court of Federal Claims for a report
thereon. Agreed to by the House May 21, 2002.
H. Res. 193.--Requesting that the President focus
appropriate attention on the issues of neighborhood crime
prevention, community policing, and reduction of school crime
by delivering speeches, convening meetings, and directing his
Administration to make reducing crime an important priority,
and for other purposes. Agreed to by the House August 2, 2001.
H. Res. 224.--Honoring the New Jersey State Law Enforcement
Officers Association. Agreed to by the House November 1, 2001.
H. Res. 417.--Recognizing and honoring the career and work
of Justice C. Clifton Young. Agreed to by the House October 1,
2002.
H. Res. 459.--Expressing the sense of the House of
Representatives that Newdow v. U.S. Congress was erroneously
decided, and for other purposes. Agreed to by the House June
27, 2002.
Conference Appointments
Members of the Committee were named by the Speaker as
conferees on the following bills which were not referred to the
Committee but which contained legislative language within the
Committee's Rule X jurisdiction:
H.R. 4 (S. 517)
To enhance energy conservation, research and development
and to provide for security and diversity in the energy supply
for the American people, and for other purposes. ``Securing
America's Future Energy Act of 2001'' or the ``SAFE Act of
2001.'' Passed the House, amended, August 2 (legislative day
August 1), 2001 (240 yeas; 189 nays). Passed the Senate,
amended, April 25, 2002 (88 yeas; 11 nays). The Senate
requested a conference April 25, 2002; appointed conferees May
1, 2002. The House agreed to a conference June 12, 2002, and
appointed conferees (including from the Committee on the
Judiciary). The House appointed an additional conferee October
3, 2002. The conference committee did not file a conference
report.
H.R. 1646 (S. 1803)
To authorize appropriations for the Department of State for
fiscal years 2002 and 2003, and for other purposes. ``Foreign
Relations Authorization Act, Fiscal years 2002 and 2003.''
Passed the House, amended, May 16, 2001. Passed the Senate,
amended, May 1, 2002. The Senate requested a conference May 1,
2002, and appointed conferees. The House agreed to a conference
September 12, 2002, and appointed conferees (including from the
Committee on the Judiciary). Conference report filed in the
House September 23, 2002 (H. Rept. 107-671). The House agreed
to the conference report September 25, 2002 (voice vote). The
Senate agreed to the conference report September 26, 2002
(unanimous consent). Approved by the President September 30,
2002--Public Law 107-228.
H.R. 2646 (S. 1731)
To provide for the continuation of agricultural programs
through fiscalyear 2011. ``Farm Security Act of 2001.'' Passed
the House, amended, October 5, 2001. Passed the Senate, amended,
February 13, 2002. The Senate requested a conference February 13, 2002,
and appointed conferees. The House agreed to a conference February 28,
2002, and appointed conferees from the Committee on Agriculture. The
House named additional conferees March 7, 2002 (including from the
Committee on the Judiciary). Conference report filed in the House May
1, 2002 (H. Rept. 107-424). The House agreed to the conference report
May 2, 2002 (280 yeas; 141 nays). The Senate agreed to the conference
report May 8, 2002 (64 yeas; 35 nays). Approved by the President May
13, 2002--Public Law 107-171.
H.R. 3009
To extend the Andean Trade Preference Act, to grant
additional trade benefits under that Act, and for other
purposes. ``Andean Trade Promotion and Drug Eradication Act.''
Passed the House, amended, Nov. 16, 2001. Passed the Senate,
amended, May 23, 2002. The House agreed to the Senate
amendment, amended, June 27, 2002. The House requested a
conference June 27, 2002, and appointed conferees (including
from the Committee on the Judiciary). The Senate agreed to a
conference July 12, 2002, and appointed conferees. Conference
report filed in the House July 27 (legislative day July 26),
2002 (H. Rept. 107-624). The House agreed to the conference
report July 27 (legislative day July 26), 2002 (215 yeas; 212
nays). The Senate agreed to the conference report August 1,
2002 (64 yeas; 34 nays). Approved by the President August 6,
2002--Public Law 107-210.
H.R. 3448
To improve the ability of the United States to prevent,
prepare for, and respond to bioterrorism and other public
health emergencies. ``Public Health Security and Bioterrorism
Response Act of 2001.'' Passed the House December 12, 2001.
Passed the Senate, amended, December 20, 2001. The Senate
requested a conference December 20, 2001, and appointed
conferees. The House agreed to a conference February 28, 2002,
and appointed conferees (including from the Committee on the
Judiciary). Conference report filed in the House May 21, 2002
(H. Rept. 107-481). The House agreed to the conference report
May 22, 2002 (425 yeas; 1 nay). The Senate agreed to the
conference report May 23, 2002 (98 yeas; 0 nays). Approved by
the President June 12, 2002--Public Law 107-188.
H.R. 3763 (S. 2673)
To protect investors by improving the accuracy and
reliability of corporate disclosures made pursuant to the
securities laws, and for other purposes. ``Corporate and
Auditing Accountability, Responsibility, and Transparency Act
of 2002.'' Passed the House, amended, April 24, 2002. Passed
the Senate, amended, July 15, 2002. The Senate requested a
conference July 15, 2002, and appointed conferees July 17,
2002. The House agreed to a conference July 17, 2002, and
appointed conferees (including from the Committee on the
Judiciary). Conference report filed in the House July 24, 2002
(H. Rept. 107-610). The House agreed to the conference report
July 25, 2002 (423 yeas; 3 nays). The Senate agreed to the
conference report July 25, 2002 (99 yeas; 0 nays). Approved by
the President July 30, 2002--Public Law 107-204.
H.R. 4546 (S. 2514)
To authorize appropriations for fiscal year 2003 for
military activities of the Department of Defense, for military
construction, and for defense activities of the Department of
Energy, to prescribe personnel strengths for such fiscal year
for the Armed Forces, and for other purposes. ``National
Defense Authorization Act for Fiscal Year 2003.'' Passed the
House, amended, May 10 (legislative day May 9), 2002. Passed
the Senate, amended, June 27, 2002. The House requested a
conference July 25, 2002, and appointed conferees (including
from the Committee on the Judiciary). The Senate agreed to a
conference July 26, 2002, and appointed conferees. The House
appointed additional conferees July 27, 2002. Conference report
filed in the House November 12, 2002 (H. Rept. 107-772). The
House agreed to the conference report November 12, 2002, by
voice vote. The Senate agreed to the conference report November
13, 2002, by voice vote. Approved by the President December 2,
2002--Public Law 107-314.
S. 1438 (H.R. 2586)
To authorize appropriations for fiscal year 2002 for
military activities of the Department of Defense, for military
construction, and for defense activities of the Department of
Energy, to prescribe personnel strengths for such fiscal year
for the Armed Forces, and for other purposes. ``National
Defense Authorization Act for Fiscal Year 2002.'' Passed the
Senate, amended, October 2, 2001. Passed the House, amended,
October 17, 2001. The House requested a conference October 17,
2001, and appointed conferees (including from the Committee on
the Judiciary). The Senate agreed to a conference October 17,
2001, and appointed conferees. Conference report filed in the
House December 12, 2001 (H. Rept. 107-333). The House agreed to
the conference report December 13, 2001 (382 yeas; 40 nays).
The Senate agreed to the conference report December 13, 2001
(96 yeas; 2 nays). Approved by the President December 28,
2001--Public Law 107-107.
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr.,
Wisconsin, Chairman \1\
JOHN CONYERS, Jr., Michigan HENRY J. HYDE, Illinois
BARNEY FRANK, Massachusetts GEORGE W. GEKAS, Pennsylvania
HOWARD L. BERMAN, California HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia LAMAR S. SMITH, Texas
JERROLD NADLER, New York ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina ED BRYANT, Tennessee \6\ \8\
ZOE LOFGREN, California STEVE CHABOT, Ohio
SHEILA JACKSON LEE, Texas BOB BARR, Georgia
MAXINE WATERS, California WILLIAM L. JENKINS, Tennessee
MARTIN T. MEEHAN, Massachusetts ASA HUTCHINSON, Arkansas \4\
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, FLorida LINDSEY O. GRAHAM, South Carolina
STEVEN R. ROTHMAN, New Jersey \2\ SPENCER BACHUS, Alabama
TAMMY BALDWIN, Wisconsin JOE SCARBOROUGH, Florida \5\
ANTHONY D. WEINER, New York JOHN N. HOSTETTLER, Indiana
ADAM B. SCHIFF, California \3\ MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana \7\
J. RANDY FORBES, Virginia \9\
----------
\1\ F. James Sensenbrenner, Jr., Wisconsin, elected to the Committee as
Chairman pursuant to House Resolution 19, approved by the House January
7, 2001.
Republican Members elected to the Committee pursuant to House
Resolution 19, approved by the House January 7, 2001.
Democratic Members elected to the Committee pursuant to House
Resolution 25, approved by the House January 31, 2001.
\2\ Steven R. Rothman, New Jersey, resigned from the Committee
effective February 7, 2001.
\3\ Adam B. Schiff, California, elected to the Committee pursuant to
House Resolution 33, approved by the House February 8, 2001.
\4\ Asa Hutchinson, Arkansas, resigned from the House effective
midnight August 6, 2001.
\5\ Joe Scarborough, Florida, resigned from the House effective
September 6, 2001.
\6\ Ed Bryant, Tennessee, elected to the Committee to rank after Mr.
Goodlatte pursuant to House Resolution 249, approved by the House
October 2, 2001.
\7\ Mike Pence, Indiana, elected to the Committee pursuant to House
Resolution 249, approved by the House October 2, 2001.
\8\ Ed Bryant, Tennessee, resigned from the Committee effective May 16,
2002.
\9\ J. Randy Forbes, Virginia, elected to the Committee pursuant to H.
Res. 423, approved by the House May 16, 2002.
Tabulation of activity on legislation held at the full Committee
Legislation held at the full Committee............................ 150
Legislation failed to be ordered reported to the House............ 1
Legislation reported favorably to the House....................... 26
Legislation reported adversely to the House....................... 1
Legislation discharged from the Committee......................... 17
Legislation pending in the House.................................. 6
Legislation failed passage by the House........................... 1
Legislation passed by the House................................... 37
Legislation pending in the Senate................................. 8
Legislation enacted into public law as part of another measure.... 5
Legislation enacted into public law............................... 18
House concurrent resolutions approved............................. 3
House resolutions approved........................................ 1
Legislation on which hearings were held........................... 10
Days of legislative hearings...................................... 11
Days of oversight hearings........................................ 4
Full Committee Activities
During the 107th Congress, the full Judiciary Committee
retained original jurisdiction with respect to a number of
legislative and oversight matters. This included exclusive
jurisdiction over antitrust and liability issues. In addition,
a number of specific legislative issues were handled
exclusively by the full Committee, including the 21st Century
Department of Justice Appropriations Authorization Act, the No
Fear Act, and the USA/Patriot Act.
Legislative Activities
ANTITRUST
The Committee on the Judiciary has jurisdiction over all
laws relating to antitrust. United States antitrust laws are
tailored to ensure the competitive functioning of the
marketplace--i.e. competition in the marketplace and not the
protection of any individual competitor. There are two
principal antitrust laws in the United States--the Sherman Act
and the Clayton Act. Both are enforceable by the Antitrust
Division of the Department of Justice (DOJ), the Federal Trade
Commission (FTC), and private persons. Other federal agencies
have authority to examine competitive aspects of market
transactions within their jurisdiction.
H.R. 768, the ``Need-Based Educational Aid Act of 2001''
Summary.--H.R. 768 makes permanent an existing temporary
antitrust exemption that allows colleges and universities that
admit students on a need-blind basis to agree on common
standardsfor assessing need for purposes of awarding
institutional financial aid. The current temporary exemption is set to
expire on September 30, 2001.
Beginning in the mid-1950's, a number of prestigious
private colleges and universities agreed to award institutional
financial aid (i.e. aid from the school's own funds) solely on
the basis of demonstrated financial need. Last year,
institutional grant aid at all colleges and universities
amounted to about $12.2 billion as compared to Federal grant
aid of about $8.9 billion. These schools also agreed to use
common principles to assess each student's financial need and
to give essentially the same financial aid award to students
admitted to more than one member of the group. Among the
schools engaging in this practice were the Ivy Overlap Group
(Brown, Columbia, Cornell, Dartmouth, Harvard, Princeton, Penn,
Yale, and MIT) and the Pentagonal/Sisters Overlap Group
(Amherst, Williams, Wesleyan, Bowdoin, Dartmouth, Barnard, Bryn
Mawr, Mount Holyoke, Radcliffe, Smith, Vassar, Wellesley,
Colby, Middlebury, Trinity, and Tufts).
From the 1950's through the late 1980's, the practice
continued undisturbed. In 1989, the Antitrust Division of the
Department of Justice brought suit against the nine members of
the Ivy Overlap Group to enjoin these practices. In 1991, the
eight Ivy League schools (i.e. all of the Ivy Overlap Group
except for MIT) agreed to a consent decree that for all
practical purposes ended the practices of the Overlap Group.
See United States v. Brown University, 1991 U.S. Dist. Lexis
21168, 1993-2 Trade Cases 70,391 (E.D. Pa. 1991).
In 1992, Congress passed a temporary antitrust exemption to
allow the schools to agree to award financial aid on a need-
blind basis and to use common principles of needs analysis.
Higher Education Amendments of 1992, Sec. 1544, Pub. L. No.
102-325, 106 Stat. 448, 837 (1992). This temporary exemption
specifically prohibited any agreement as to the terms of a
financial aid award to any specific student. By its terms, it
expired on September 30, 1994.
In the meantime, MIT continued to contest the lawsuit.
After a non-jury trial, the district court ruled that the
practices of the Overlap Group violated the antitrust laws, but
specifically invited a legislative solution. United States v.
Brown University, 805 F.Supp. 288 (E.D. Pa. 1992). On appeal,
MIT won a reversal of the district court's decision. United
States v. Brown University, 5 F.3d 658 (3d Cir. 1993). The
appeals court held that the district court had not engaged in a
sufficiently thorough antitrust analysis and remanded for
further consideration. After that decision, the parties reached
a final settlement.
In 1994, Congress passed another temporary exemption from
the antitrust laws. Improving America's Schools Act of 1994,
Sec. 568, Pub. L. No. 103-382, 108 Stat. 3518, 4060 (1994).
This exemption resembled the one passed in 1992 in that it
allowed agreements to provide aid on the basis of need only and
to use common principles of needs analysis. It also prohibited
agreements on awards to specific students. However, unlike the
1992 exemption, it also allows agreement on the use of a common
aid application form and the exchange of the student's
financial information through a third party. This exemption
roughly mirrors the settlement reached in 1993. It was to
expire on September 30, 1997.
Under that exemption, financial aid officers from some of
the affected schools in 1997 proposed a set of guidelines to
determine eligibility for institutional aid. These guidelines
address issues like expected contributions from non-custodial
parents, treatment of depreciation expenses which may reduce
apparent income, valuation of rental properties, and unusually
high medical expenses. However, a number of schools were
reluctant to join the discussions because of fears about the
expiration of the exemption. In 1997, Congress extended the
exemption again through September 30, 2001. The 1997 extension
passed the Committee and the full House by voice vote. It
passed the Senate by unanimous consent.
Since that extension, the affected schools have made
further progress. Seventeen prestigious colleges that were not
part of the original overlap groups have joined the
discussions. Thus, the exemption has encouraged these schools
to adhere to need-blind admissions and need-based aid. That is
particularly important when the cost of elite universities is
increasingly beyond the reach of the middle class. See, e.g.,
Stuart Rojstaczer, ``Colleges Where the Middle Class Need Not
Apply,'' The Washington Post, at A27, March 9, 2001. The
presidents of the universities have tentatively agreed to a
common set of principles affirming the primacy of need-based
aid. In addition, they are discussing and testing guidelines
based on the 1997 proposals of the financial aid officers. The
presidents expect to announce agreement on the principles and
guidelines in the next several months. In the past 2 months,
Harvard, Princeton, and MIT have announced major new efforts to
reduce the amount of loans that students must take out by
substantially increasing their institutional grant aid. These
efforts demonstrate that nothing in the exemption limits the
ability of schools to respond to demonstrated need on an
individual basis. As this progress shows, common treatment of
these types of issues makes sense. The existing exemption has
worked well so far. Progress is being made, and more schools
are moving to need-blind admissions and need-based aid.
The need-based financial aid system serves social goals
that the antitrust laws do not adequately address--namely,
making financial aid available to the broadest number of
students solely on the basis of demonstrated need. Without it,
the schools would be required to compete, through financial aid
awards, for the very top students. Those very top students
would get all of the aid available which would be more than
their demonstrated need. The rest would get less than their
demonstrated need or none at all. Ultimately, such a system
would serve to undermine the principles of need-based aid and
need-blind admissions. No student who is otherwise qualified
ought to be denied the opportunity to go to one of the nation's
most prestigious schools because of the financial situation of
his or her family. H.R. 768 will help protect need-based aid
and need-blind admissions and preserve that opportunity.
Legislative History.--H.R. 768 was introduced by Rep. Lamar
Smith (R-TX) on February 28, 2001, and was referred to the
Judiciary Committee on the same day. On March 28, 2001, the
Committee met in open session and reported the bill without
amendment by voice vote (H. Rept. 107-32). On April 3, 2001,
H.R. 768 passed the House on suspension of the rules by a vote
of 414-0. On November 20, 2001, the bill was enacted into law
after receiving the signature of President Bush (Public Law
107-72).
H.R. 809, the ``Antitrust Technical Corrections Act of 2001''
Summary.--There are two primary federal antitrust statutes.
Enacted in 1890, the Sherman Act (15 U.S.C. Sec. Sec. 1-7)
prohibits contracts or conspiracies in ``restraint of trade,''
or attempts toward market monopolization. The Clayton Act of
1914 (15 U.S.C. Sec. Sec. 12-27) contains the damage provisions
of the antitrust laws, and contains provisions requiring pre-
merger notification to antitrust authorities of specified
acquisitions or merger. H.R. 809 makes miscellaneous changes to
the antitrust laws. Three of these changes repeal outdated
provisions; one clarifies a longstanding ambiguity regarding
the application of the antitrust laws in the District of
Columbia and the territories; and two correct typographical
errors in recently passed laws.
First, H.R. 809 repeals the Act of March 3, 1913, which
required public proceedings for the taking of depositions for
equitable suits brought by the United States under the Sherman
Act. Second, the bill repeals provisions of the Panama Canal
Act which bar the use of the Panama Canal to violators of U.S.
antitrust laws.
H.R. 809 also amends the Sherman Act to extend the
prohibitions against monopolizing trade or commerce among the
States or with foreign nations to monopolizing trade or foreign
commerce in or among any U.S. Territories and the District of
Columbia. In addition, the bill amends the Wilson Tariff Act of
1894 (15 U.S.C. Sec. 8 and 9), which prohibits conspiracies in
restraint of import trade, to repeal provisions that authorized
any person injured in his business or property by this statute
from recovering treble damages and the costs of litigation in
Federal Circuit Court.
Legislative History.--H.R. 809 was introduced by Committee
Chairman F. James Sensenbrenner, Jr. on March 1, 2001. In
addition to the Judiciary Committee, the bill was referred to
the Committee on Armed Services. The Committee held a markup on
March 8, 2001, and the bill was ordered favorably reported
without amendment by voice vote (H. Rept. 107-17, part 1). H.R.
809 was then referred to the Committee on Armed Services, which
discharged the bill without further consideration. H.R. 809 was
included without amendment in H.R. 2215, the 21st Century
Department of Justice Authorization Act, and passed the House
under suspension of the rules by voice vote on March 14, 2001.
On November 2, 2002, this bill was signed into law by President
Bush (Pub. Law 107-273).
H.R. 1253, the ``Free Market Antitrust Immunity Reform (FAIR) Act of
2001''
Summary.--Ocean carriers and ports form the basis of an
international trading system upon which America's economic
vitality depends. Nearly 80 percent of U.S. merchandise exports
and 85 percent of merchandise imports are carried over
international shipping lanes, and in times of war ocean
carriers play a critical transportation role. Because
transportation costs are an important factor in the
determination of market prices for goods shipped to and from
the United States, the shipping industry directly affects the
consumer choices of all Americans.
To understand the discussion below, one must first
understand the terms applied to the various participants in the
ocean shipping industry. The businesses which own ships and
sell the service of transporting cargo on those ships are known
as carriers. While American carriers were central actors in
this market for several decades, today all of the major
carriers operating to and from the United States are foreign-
owned. The businesses which transport their goods on these
carriers are commonly known as ``shippers.'' Shippers range in
size from large retail operations like J.C. Penney or Wal-Mart
to much smaller businesses. Carriers generally sell cargo space
on their ships in relatively large units, and larger shippers
generally receive lower rates. As a result, smaller shippers
use several methods to consolidate their cargo into larger
shipments in order to obtain lower rates. One of the primary
methods that smaller shippers use is to ship through ``non-
vessel operating common carriers'' (known as ``NVOCCs'' or
simply ``NVOs''). NVOs contract with carriers for larger cargo
volumes, and then fill that space by consolidating numerous
small shipments into one large shipment in order to obtain a
volume-discounted rate.
In addition to contracting with NVOs, shippers have also
formed ``shippers'' associations'' of their own to obtain lower
ocean transportation costs. Shippers' associations perform
essentially the same consolidation and brokerage function as
NVOs, but are generally owned cooperatively by shippers
themselves. Finally, some shippers use businesses known as
``freight forwarders'' or ``customs brokers'' to assist with
their shipping needs. These businesses simply help shippers
with the administrative burdens associated with importing or
exporting goods. However, because freight forwarders and
customs brokers do not consolidate transportation contracts on
behalf of shippers, they are unable to obtain the discounted
carrier transportation rates provided to shippers by NVOs and
shippers' associations. All of these businesses conduct
shipping activity through ports, which are more formally known
as ``marine terminal operators.'' Shipping ports are owned by
local governments, but are sometimes operated by private
contractors selected by state or local governments. Some
businesses also have their own private marine terminal
facilities, but operations at these facilities are generally
limited to the activities of the owning business and not open
to the general public. Like ocean carriers, port authorities
are exempt from antitrust scrutiny.
Goods destined for export or import must be transported to
and from ports for carriage. Interport transfer of goods is
known as drayage. Trucking companies also transport cargo
between ports and inland points. Truckers have long contended
that ocean carriers occupy a dominant and unfair marketing
position that has been used to set artificially low and
discriminatory trucking prices. These trucking companies assert
that ocean carriers abuse their antitrust immunity by
collectively establishing secret ``voluntary rate guidelines''
which include inland transportation costs. According to
trucking concerns, including the International Brotherhood of
Teamsters, ocean carriers then contract with port drivers to
deliver goods to and from ports at sub-market rates. Trucking
businesses and unions which represent these drivers further
contend that carriers discriminate against union truckers, and
that these carriers use their dominant and united market
position to extract unfair market concessions. Trucking
interests further assert that this bargaining disparity is
compounded by the fact that port drivers, the vast majority of
whom operate as independent contractors, are prevented from
organizing or taking collective action under federal law.
Overcapacity has plagued the ocean shipping industry since
its inception in the mid-1800s. This overcapacity arises for
several reasons. The primary cause of shipping overcapacity is
the presence of international policies designed to promote
national-flag carriers and to promote indigenous shipbuilding
capacity for employment purposes and to maintain maritime
militarytransportation in time of war.\1\ Ocean liners are
expensive to manufacture, requiring an extensive investment in both
time and capital. Once built, ocean liners tend to last a long time,
and their owners must use them for several years in order to recoup the
costs of construction. In addition, these vessels cannot easily be
converted to other uses in times of low demand. Thus, once transport
ships are built, they tend to remain a part of total available capacity
for several years.
---------------------------------------------------------------------------
\1\ S. Rep. No. 105-61, at 3 (1997).
---------------------------------------------------------------------------
Some governments have exacerbated overcapacity in the
international shipping market by subsidizing their own liners.
For example, Taiwan, the People's Republic of China, South
Korea, and Japan provide direct and indirect financial support
to domestic ocean carrier lines. This subsidization takes the
form of both direct government ownership or payments or other
favorable policies for national carrier owners. While there is
growing international pressure to reassess whether ocean
carriers should be accorded antitrust immunity, all other
maritime nations currently exempt ocean carrier conferences and
discussion groups from the application of antitrust or
competition laws.\2\
---------------------------------------------------------------------------
\2\ Supra, note 6.
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In the late 1800s, overcapacity led to rate wars and
vigorous competition among carriers. As early as 1875, carriers
began to form ``conferences'' to privately and jointly set
rates to avoid potentially self-destructive rate wars. From
that time until World War I, the United States did not regulate
these conferences. In the mid 1910s, Congress began to
investigate these agreements and concluded that the conference
system served the public interest by providing stability to
U.S. ocean carriers and international commerce.\3\ Congress
passed the Shipping Act of 1916 (``the 1916 Act'') to provide a
statutory basis for this conclusion.\4\
---------------------------------------------------------------------------
\3\ Id. In a 1915 report to Congress, the Alexander Committee,
named after the then-Chairman of the House Committee on Merchant Marine
and Fisheries, recommended providing legal protection to the conference
system but also determined that conference practices should be
regulated to ensure carriers did not abuse their market position at the
expense of shippers.
\4\ Shipping Act of 1916, ch. 451, 39 Stat. 728 (1916) (Those parts
of the 1916 Act that have not been subsequently repealed are codified
at 46 U.S.C. App. Sec. 801 et seq.).
---------------------------------------------------------------------------
The 1916 Act gave ocean carrier conferences antitrust
immunity to set rates jointly. It also gave similar antitrust
immunity to port authorities and operators. Recognizing the
potential for anti-competitive practices associated with
exempting carriers and port authorities from antitrust laws,
the 1916 Act also established the United States Shipping Board,
a predecessor of today's Federal Maritime Commission, to
regulate the industry. The Board was given authority to review
rates set by carrier conferences before they could take effect.
The 1916 Act also created a common carrier obligation which
required international shipping companies to carry the cargo of
shippers on nondiscriminatory terms overseen by the Board.\5\
In subsequent judicial decisions, the Supreme Court broadly
construed the scope of the antitrust immunity contained in the
1916 Act. For example, in a 1932 decision, the Court held that
carriers and their conferences can not be sued under the
antitrust laws even if they failed to file their conference
agreements with the regulating United States Shipping Board.\6\
Subsequently expansive interpretations of the 1916 Act
triggered concern that the 1916 Act required legislative
revision.\7\
---------------------------------------------------------------------------
\5\ A common carrier is required by law to convey passengers or
freight without refusal if the approved fare or charge is paid in
contrast to private or contract carriers. Black's Law Dictionary 275
(6th ed. 1990).
\6\ United States Navigation Co. v. Cunard Steamship Co., 284 U.S.
474 (1932).
\7\ See, e.g. Far East Conference v. United States, 342 U.S. 570
(1952) (in which the Court upheld a conference-set, dual-rate system
against a private shipper seeking relief under the Sherman Act for
anti-competitive practices).
---------------------------------------------------------------------------
In 1961, Congress responded to these concerns by amending
the Shipping Act of 1916. The 1961 legislation abolished the
United States Shipping Board and replaced it with the Federal
Maritime Commission (FMC) that exists today.\8\ In addition,
Congress made important substantive changes to the 1916 Act in
separate legislation known commonly as the ``1961 Amendments.''
\9\ Most importantly, the 1961 Amendments required the FMC to
disapprove of any conference agreement it determined to be
contrary to the public interest. The 1961 Amendments also
instituted a mandatory public tariff filing system in order to
give substance to the shipping companies' common carrier
obligations. The public interest and mandatory public filing
system expanded the FMC's authority to investigate and punish
ocean carrier transgressions and authorized it to disapprove
rates considered to be detrimental to United States commerce.
---------------------------------------------------------------------------
\8\ See Reorganization Plan No. 7 of 1961, 75 Stat. 840 (1961).
\9\ Act of October 3, 1961, Pub. L. No. 87-346, 75 Stat. 762
(1961).
---------------------------------------------------------------------------
The FMC subsequently issued regulations that specified the
grounds upon which conference agreements would be considered
inconsistent with the public interest. The regulations stated
that agreements that were contrary to the pro-competitive goals
of the antitrust laws would be considered presumptively
invalid. In litigation stemming from the promulgation of these
regulations, the Supreme Court began to narrow the antitrust
exemption accorded to carrier conferences.\10\ Carriers
asserted that this new policy substantially eroded their
antitrust immunity and undermined the purposes of the 1916 Act.
Carriers further contended that the FMC was ill-equipped to
analyze the antitrust implications of carrier conference
agreements and that this analysis resulted in costly and
protracted delays.\11\
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\10\ See, e.g. Carnation Co. v. Pacific Westbound Conference, 383
U.S. 213 (1966). Federal Maritime Commission v. Aktiebol Svenska
Amerika Linien, 390 U.S. 238 (1968).
\11\ Senate Report, supra, note 8 at 6.
---------------------------------------------------------------------------
In 1984, Congress revisited the international shipping
industry by enacting the Shipping Act of 1984 \12\ (``the 1984
Act''). The 1984 Act represented the most substantive,
comprehensive overhaul of the nation's shipping law since 1916.
However, it maintained the basic compromise of the 1916 Act by
preserving antitrust immunity for collective carrier
ratesetting, while continuing to subject ocean carriers to
common carrier obligations and continued regulatory scrutiny by
the FMC. The principle innovation of the 1984 Act was to allow
carriers to attempt to weaken the unity of carrier conferences
by entering into contracts with individual shippers at rates
discounted from established conference rates. The legislation
also allowed conferences to enter into service contracts in
which shippers receive a discounted rate (from the conference-
set schedule) in return for agreeing to ship a minimum amount
of cargo with a particular carrier. However, the legislation
specified that if a carrier entered into such service
contracts, it had to offer the same terms to all similarly
situated shippers and further required that these rates be
publicly disclosed. The 1984 Act made several other important
changes. The legislation strengthened carrier antitrust
immunity by explicitly protecting carriers from the Clayton
Antitrust Act. In addition, the 1984 Act formally recognized
the existence of NVOs and shippers' associations, and gave them
substantive rights to petition the FMC in instances of carrier
violations. Finally, the 1984 Act set up an Advisory Commission
to study the legislation's impact after it had been in effect
for five and a half years.
---------------------------------------------------------------------------
\12\ Shipping Act of 1984, Pub. L. No. 98-237, 98 Stat. 67
(codified at 46 U.S.C. App. Sec. 1701 et seq.,) repealed by the Ocean
Shipping Reform Act of 1998, 112 Stat.1902 (1998).
---------------------------------------------------------------------------
Since passage of the 1984 Act, the market power of
traditional carrier conferences has declined. To some extent,
conferences have been replaced by broader groups of carriers
commonly known as discussion agreements. These broader groups
are not officially recognized in either the statute or FMC
regulations, but they are arguably encompassed within the
statutory term ``cooperative working agreements'' defined in
the 1984 Act. As with conferences, these agreements operate
under protection from antitrust laws, but membership includes
independent shippers as well as traditional conference
carriers. In addition, the collective ratemaking authority of
these agreements is limited to nonbinding recommendations.
Shippers have expressed continued concern about the power of
discussion agreements in a seller's market. While discussion
agreements are purportedly voluntary bodies without joint
ratemaking authority, some industry analyst assert that, as a
practical matter, these bodies set rates jointly.\13\
---------------------------------------------------------------------------
\13\ See Robert J. Bowman, Maritime Reform Will Re-Make Shipper-
Carrier Relationships, Global Logistics and Supply Chain Strategies,
January/February, 1999.
---------------------------------------------------------------------------
The Advisory Commission established by the 1984 Act filed
its report in April of 1992. Although it did not come to a
consensus, the Commission report highlighted a number of key
concerns by various industry participants. These conclusions
formed the basis of the Ocean Shipping Reform Act of 1998
(OSRA).\14\ OSRA's principle reform was to permit carriers to
enter into service contracts with individual shippers on a
confidential basis.\15\ In addition, carriers were no longer
required to provide the same rates to other similarly-situated
shippers. Rather than issuing mandatory rate guidelines,
conferences were required only to publish voluntary
schedules.\16\ Under OSRA, carrier conferences could continue
to discuss and jointly set rates without losing their antitrust
immunity. The 1998 Act did not afford the same rights to NVOs
and other participants in discussion groups. NVOs may enter
into confidential service contracts with carriers when they buy
space, but they must still publicly disclose their shipping
contracts through a public tariff filing system.
---------------------------------------------------------------------------
\14\ Ocean Shipping Reform Act of 1998, Pub. L. No. 105-258, 112
Stat. 1902 (codified as amended at 46 U.S.C. et seq. (2000)).
\15\ See Paul Edelman, The Ocean Shipping Reform Act of 1998, Intl.
Trade L. J., Summer 2000.
\16\ Id.
---------------------------------------------------------------------------
Finally, OSRA expressly permits ocean carriers to set rates
they will charge for inland transportation through ``joint
rates by a conference, joint venture, or an association of
ocean common carriers.'' \17\ Providing antitrust exemption to
permit carriers to jointly set inland transportation rates in a
noncompetitive context is strenuously opposed by independent
transportation providers and trucking organizations.
---------------------------------------------------------------------------
\17\ 46 U.S.C. Sec. 1702 (11) and (12) (2000).
---------------------------------------------------------------------------
While all other maritime nations have retained antitrust
immunity for ocean carriers, the scope of this privilege has
received increased scrutiny in recent years. The European
Union, for example, has moved away from granting broad
antitrust immunity for carriers to set shipping and inland
transportation rates. Earlier this year, a European Court held
that European carrier conferences were prohibited from
collectively establishing joint inland transportation
rates.\18\ This holding directly conflicts with existing U.S.
law. International organizations, such as the Organization for
Economic Cooperation and Development (OECD), which includes the
world's industrialized economies, have pointedly questioned the
economic justification for continued exemption.
---------------------------------------------------------------------------
\18\ In Case T-96/95, Judgment of the Court of First Instance
(Third Chamber), para. 12, (2002).
---------------------------------------------------------------------------
For example, on April 22, 2002, the OECD issued a report
recommending the abolition of antitrust immunity for ocean
carriers.\19\ The report's authors concluded that they had
``not found convincing evidence that the practice of discussing
and/or fixing rates and surcharges among competing carriers
offers more benefits than costs to shippers and customers.''
\20\ The report also made little distinction between carrier
conferences and less formal discussion agreements, terming the
latter ``soft cartels.'' Finally, the report concluded that
``antitrust exemptions for [carrier] conference price-fixing no
longer serve their stated purpose * * * and are no longer
relevant.'' \21\
---------------------------------------------------------------------------
\19\ Organization for Economic Cooperation and Development,
Competition Policy in Liner Shipping: Final Report, April 16, 2002.
\20\ Id.
\21\ Id. at 77.
---------------------------------------------------------------------------
H.R. 1253 would lift the antitrust exemption currently
accorded to ocean carriers which transport goods to and from
the United States. The bill would not affect the antitrust
exemption currently provided to port authorities. During the
106th Congress, the Judiciary Committee held a legislative
hearing on H.R. 3138, the ``Free Market Antitrust Immunity
Reform (FAIR) Act of 1999.''
Legislative History.--H.R. 1253 was introduced by Chairman
Sensenbrenner on March 27, 2001. The following witnesses
testified at the hearing: Charles James, Assistant Attorney
General, Antitrust Division, United States Department of
Justice; James P. Hoffa, President, International Brotherhood
of Teamsters; Robert Coleman, President, Pacific Coast
Forwarders and Customs Association; and Christopher Koch,
President and Chief Executive Officer, World Shipping Council.
H.R. 1253 received no further Committee consideration.
H.R. 1407, to amend title 49, United States Code, to permit air
carriers to meet and discuss their schedules in order to reduce
flight delays, and for other purposes
Summary.--The Sherman Act of 1980 (15 U.S.C. Sec. Sec. 1-7)
prohibits contracts or conspiracies in ``restraint of trade,''
or attempts toward market monopolization. These provisions
prohibit competitors from joint rate-setting or other practices
which might be considered anticompetitive. On August 31, 1984,
the Civil Aeronautics Board (CAB) issued an order granting
antitrust immunity to airlines to meet and discuss their
schedules. This action was taken to alleviate aviation system
congestion and to reduce flight delays following the air
traffic controller strike of 1981. Several airlines availed
themselves of this immunity, but CAB's authority to grant
antitrust immunity passed to the Department of Transportation
(DOT) after its abolition in 1984. DOT extended antitrust
immunity for airlines to discuss and set schedules in 1987, and
in 1989, the Department of Justice was provided authority to
grant antitrust immunity in this area. No further extensions
were granted by the Department of Justice.
H.R. 1407 amends Federal aviation law to authorize an air
carrier to file with the Attorney General a request for: (1)
authority to discuss with one or more other air carriers or
foreign air carriers agreements or cooperative arrangements
limiting flights at an airport during a time period when
scheduled air transportation exceeds airport capacity; and (2)
approval of such agreements or cooperative arrangements with
respect to such limits on interstate air transportation. The
bill also would direct the Attorney General, notwithstanding
U.S. antitrust laws, to approve such requests if the following
conditions are met. First, these discussions and resulting
agreements are not adverse to the public interest. Second,
these agreements will facilitate voluntary adjustments in air
carrier schedules that could lead to a substantial reduction in
travel delays and improvement of air transportation service to
the public. Third, these arrangements will not substantially
lessen competition or tend to create a monopoly. Finally, any
resulting reduction in delays achieved by these agreements
cannot be obtained by any other immediately available means.
Furthermore, H.R. 1407 would authorize the Attorney General
to: (1) approve such agreements and cooperative arrangements
only if each air carrier or foreign air carrier providing
service or seeking to provide service to an airport under such
an agreement or cooperative arrangement has agreed to it; and
(2) impose any terms or conditions on any approved agreement
that are needed to protect the public interest and to protect
air service to an airport that has less than .25 percent of the
total annual boardings in the United States (non-hub and small
hub airports). The bill would explicitly prohibit participants
in approved discussions from: (1) discussing or entering into
agreements regarding rates, fares, charges, or in-flight
services; or (2) discussing particular city pairs, or
submitting to other air carriers or foreign air carriers
information on their proposed service or schedules in a fashion
that indicates the involvement of city pairs.
Legislative History.--H.R. 1407 was introduced by Rep. Don
Young (R-AK) and 26 co-sponsors on April 4, 2001. The bill
sequentially referred to the Committee on Transportation and
Infrastructure and the Committee on the Judiciary. On May 15,
2001, the Committee on Transportation and Infrastructure
reported H.R. 1407 with amendment by voice vote. It was
referred to the Judiciary Committee on May 23, 2001, and was
ordered favorably reported without amendment by voice vote on
June 20, 2001. (H. Rept. 107-77, Part II). The bill was then
placed on the Union Calender, but received no further
consideration by the House.
H.R. 1542, the ``Internet Freedom and Broadband Deployment Act of
2001''; H.R. 1697, the ``Broadband Competition and Incentives
Act of 2001''; H.R. 1698, the ``American Broadband Competition
Act of 2001''; H.R. 2120, the ``Broadband Antitrust Restoration
and Reform Act''
Summary.--The version of H.R. 1542 which passed the floor
on February 27, 2002, contained versions of the two amendments
which were adopted by the Judiciary Committee. These amendments
were negotiated between the Judiciary and Energy and Commerce
Committees. The first amendment provides that, not less than 30
days before offering interLATA high speed data service or
Internet backbone service in an in-region State, a Bell
operating company shall submit to the Attorney General a
statement expressing the intention to commence providing such
service, providing a description of the service to be offered,
and identifying the geographic region in which the service will
be offered. This statement shall not be made public except as
may be relevant to any administrative or judicial proceeding.
This amendment is important because of the long and
checkered antitrust history of the telecommunications market.
H.R. 1542 would eliminate the need to go through a regulatory
process in deploying broadband, as the RBOCs will continue to
be required to do for telephone services, and this amendment
mandates that the antitrust enforcers at the Department of
Justice will get 30 days notice before such service is offered.
The second amendment provides that the savings clause found
in section 601(b) of the Telecommunications Act of 1996 shall
be interpreted to mean that the antitrust laws are not repealed
by, not precluded by, not diminished by, and not incompatible
with the Communications Act of 1934, this Act, or any law
amended by either such Act. This amendment, a version of which
was adopted by the Judiciary Committee, is a response to
concerns raised about any conflicting, confusing, or
contradictory language found in the Seventh Circuit Court of
Appeals' opinion in Goldwasser v. Ameritech Corp., 222 F. 3d
390 (7th Cir. 2000). In Goldwasser, the Seventh Circuit Court
of Appeals construed the savings clause found in section
601(b)(1) (47 U.S.C. Sec. 152 note) of the Telecommunications
Act of 1996 (P.L. No. 104-104, 110 Stat. 56).
The Telecommunications Act of 1996
The Telecommunications Act of 1996 arose from an antitrust
consent decree. That consent decree, the Modified Final
Judgement (MFJ), prevented the Regional Bell Operating
Companies (RBOCs) from entering the long distance business
because of their monopoly control over the local exchange.
Congress structured the 1996 Act to offer the RBOCs a basic
trade: the RBOCs were to open their local exchanges to
competitors for interconnection and, in return, they were to be
allowed entry into the long distance market.
In particular, it added a new Sec. 271 to the
Communications Act to provide criteria and a process for
scrutinizing RBOC efforts to open their local monopolies. 47
U.S.C. 271. Given the Justice Department's unique expertise in
competitive matters, Congress expressly provided within 271
that the Department would review RBOC compliance with the
market-opening provisions of the act and that the Federal
Communications Commission would give the Department's analysis
substantial weight in making its decision with respect to an
RBOC application to provide long distance service. 47 U.S.C.
271(d)(2)(A). These provisions were included at the insistence
of the Committee on the Judiciary. In providing this role for
the Department, Congress sought to expand the Department's
traditional enforcement authority in an effort to prevent
anticompetitive harms.
During the 5 years since enactment of the 1996 Act, the
Department has fulfilled its statutory obligations in reviewing
RBOC applications for entry into long distance service. In
fact, after reviewing each of the first five petitions filed by
RBOCs under the 1996 Act, the Department concluded that none of
the RBOCs met its obligation under the act. The FCC concurred
and ultimately denied each of the first five RBOC petitions.
In 2000, the Justice Department recommended denial of two
applications based on antitrust concerns--one involving SBC,
the other involving Verizon. In each instance, the applicant
withdrew and resubmitted its application, in an effort to
remedy the antitrust concerns raised by the Justice Department.
In five cases, including the two resubmitted applications--New
York, Texas, Kansas, Oklahoma, and Massachusetts--the
Department did not recommend rejection, but did indicate
problems that needed to be addressed before approval. In those
five instances, the FCC approved the applications. Thus, the
Justice Department's Sec. 271 opinion has essentially
determined the outcome of each application that the RBOCs have
filed to date.
Telecommunications Since the 1996 Act
President Clinton signed the 1996 Act on February 8, 1996.
At that time, the Internet was in its infancy. Most observers
thought that the RBOCs would remain separate companies, that
they would begin competing in long distance quickly, and that
they might enter the cable business. By the same token, most
observers thought that the long distance companies would remain
separate companies, that they would begin competing in local
service quickly, and that they probably would not enter the
cable business. As for the cable companies, most observers
thought that they would remain separate companies, that they
might enter the telephone business, and that they would face
substantial competition in the cable business from satellite
companies and telephone companies.
In the 5 years since the 1996 Act was signed, the Internet
has changed everything. At that time, it was a technological
marvel that was just becoming available to ordinary people and
was hardly used for commerce. Since then, it has become a means
for conducting a substantial and ever growing amount of
commerce.
In 1996, data traffic was not a substantial portion of the
long distance business. Estimates vary as to what the
percentage was, but it was probably less than 10%. Today, it is
probably more than 50%. The demand keeps exploding. As a
result, being a carrier of voice (i.e. traditional telephone
calls) has become relatively less important and being a carrier
of data has become relatively more important. Moreover, it is
now possible to transmit voice telephone calls over the
Internet thus blurring the distinction between voice and data.
As anyone who has used the Internet knows, it can be
frustratingly slow depending on what technology one is using.
Both cable companies and telephone companies are upgrading
their networks in many areas. At the same time, both of these
technologies are getting better and faster, and they are also
becoming capable of carrying voice (i.e. telephone calls),
video (i.e. cable programming), and data (i.e. Internet
content) through the same pipe. This is what is referred to as
``convergence'' of the technologies.
Most telecommunications companies, irrespective of whether
they started as RBOCs, long distance companies, cable
companies, or something else, now think that their future lies
in being capable of providing a package of all of the
``convergent'' services on a global basis. Because getting into
a new part of this business from scratch requires massive
investment, many companies have decided to buy another company
rather than build from scratch. That has led to a wave of
mergers.
First, the RBOCs began to merge with each other. Bell
Atlantic bought Nynex and GTE. SBC bought Pacific Telesis and
Ameritech. Then, new competitors began to buy existing
companies. WorldCom, a relatively new local competitor, bought
MCI, one of the major long distance companies. WorldCom also
tried to buy Sprint, but the deal failed because of antitrust
concerns. Qwest, a relatively new long distance competitor,
bought USWest, an RBOC.
Finally, AT&T, the biggest of the old line long distance
companies, bought Tele-Communications, Inc. (``TCI'') and
MediaOne. TCI and MediaOne were two of the largest cable
companies in the nation. These mergers gave AT&T ownership of
many cable lines going into American homes. Again, estimates of
the percentage vary depending on who is counting. At the same
time, Microsoft has purchased a stake in AT&T as part of an
effort to accelerate the deployment of broadband services
across the country.
When Congress was considering the 1996 Act, most observers
thought that controlling the transmission of telephone voice
calls was the future. Now, most observers believe that
controlling broadband communications lines, be they phone or
cable, is the future. H.R. 1542 seeks to allow the RBOCs to
leverage their monopoly control of the local exchange to
control the broadband future.
The Provisions of H.R. 1542
Fundamentally, H.R. 1542, as reported by the Committee on
Energy and Commerce, eliminates several of the most important
restrictions on the monopoly power of the incumbent local
exchange carriers. In addition, with respect to data, it
completely undoes the basic trade that made the 1996 Act
possible: the RBOCs would no longer have to open their networks
in order to offer long distance data service.
Section 4(a) of H.R. 1542 creates a new Sec. 232 of the
Communications Act of 1934. Subsection (a) of that new 232
provides for a sweeping prohibition of any Federal
Communications Commission or State limits of any kind on any
high speed data service, Internet backbone service, Internet
access service, or network elements used to provide such
services. Section 3(a) of H.R. 1542 defines the terms ``high
speed data service,'' ``Internet backbone service,'' and
``Internet access service'' in very broad terms. For example,
high speed data service is defined as any packet-switched or
successor technology that transmits information at a speed
generally not less than 384 kilobits per second. This
definition could easily include voice transmission over the
Internet. The desire to let the Internet grow unfettered is
understandable. However, this sweeping language could eliminate
even basic anti-fraud protections as well as many other
consumer protection statutes. In addition, this sweeping
language could be read to eliminate the rights of the
Commission and the State attorneys general to bring antitrust
suits under 4, 4C, and 11 of the Clayton Act. 15 U.S.C. 15,
15c, & 21.
Section 4(b) of H.R. 1542 creates a new subsection (j) of
Sec. 251 of the Communications Act. 47 U.S.C. 251. Section 251
sets forth the basic obligations of RBOCs and other incumbent
local exchange carriers to open their local exchanges for
competitors to interconnect. The new 251(j) contains exemptions
that would generally eliminate their obligations to share the
fiber optic parts of their network, to provide unbundled
network elements for high speed data service, and to provide
access to remote terminals as an unbundled network element.
These obligations on incumbent local exchange carriers allow
competitors the ability to provide competing high speed data
service. In short, this provision allows the incumbents
effectively to leverage their monopoly control over the local
exchange and exclude competition in high speed data service.
That is troublesome enough, but taken together with the broad
definition of high speed data service, it could represent the
potential remonopolization of the industry.
Subsection 6(a) of H.R. 1542 inserts high speed data
service and Internet access service into the definition of
incidental interLATA services contained in Sec. 271(g) of the
act. 47 U.S.C. 271(g). Under 271(b)(3), the RBOCs are allowed
to provide incidental interLATA services without meeting the
antimonopoly provisions of 271. 47 U.S.C. 271(b)(3). Thus, this
provision moves high speed data service and Internet access
service out of the 271 process altogether and allows the RBOCs
to start providing them immediately without any further review
by the Department of Justice, the Federal Communications
Commission, or the States. Given the broad definitions of these
terms, this provision undoes much of the basis of the 1996 Act.
More specifically, this language would eliminate the role of
the Department of Justice in reviewing much activity that would
currently fall within the parameters of 271.
Subsection 6(b) of H.R. 1542 creates a new Sec. 271(k) that
would prohibit the RBOCs from offering in any in-region State
any interLATA voice telecommunications service obtained by
means of a high speed data access or Internet access service.
This provision attempts to maintain the 271 restrictions for
voice in the face of the broad definitions for the two key
terms. However, it does not provide any definition of the term
``interLATA voice telecommunications service.'' Apparently,
this would be left to the FCC. Thus, in what claims to be a
deregulatory bill, the purportedly fundamental distinction
between voice and data is left undefined. However, regardless
of how voice or data are defined or who defines them, this
provision is intended to, and will, change the parameters of
what the Justice Department will review in 271 applications.
Finally, subsection 6(c)(2) of H.R. 1542 eliminates the
act's requirement that the RBOCs must conduct their interLATA
information services through a separate affiliate. The act's
definition of ``information services'' appears to include high
speed data access or Internet access service. 47 U.S.C. Sec.
153(20). The separate affiliate requirement was a key provision
designed to ensure that the RBOCs could not leverage their
monopoly power over the local exchange to other lines of
business. The elimination of this requirement simply adds to
the elimination of any restriction on that monopoly power.
In short, H.R. 1542, as reported by the Energy and Commerce
Committee, reverses many of the basic antimonopoly provisions
of the 1996 Act. In doing so, it eliminates potential antitrust
actions by the FCC and the States and substantially limits the
role of the Department of Justice in reviewing the monopoly
power of the RBOCs.
The Goldwasser Case
One recent development in the courts particularly interests
this Committee. The Telecommunications Act of 1996 included an
antitrust savings clause that read as follows: ``Except as
provided in paragraphs (2) and (3) [which are not relevant
here], nothing in this act or the amendments made by this act
shall be construed to modify, impair, or supersede the
applicability of any of the antitrust laws.'' Sec. 601(b)(1) of
the Telecommunications Act of 1996. It also included a general
savings clause that read as follows: ``This act and the
amendments made by this act shall not be construed to modify,
impair, or supersede Federal, State, or local law unless
expressly so provided in such act or amendments.'' 601(c)(1) of
the Telecommunications Act of 1996. Until recently, it was
widely thought that this language made clear that nothing in
the Telecommunications Act in any way effected any implied
repeal of the antitrust laws.
Recently, however, the Seventh Circuit effectively read
these savings clauses out of the law in Goldwasser v. Ameritech
Corp., 222 F.3d 390 (7th Cir. 2000). It held:
[S]uch a conclusion [i.e., that the complaint at issue
alleged a freestanding antitrust claim] would then force us to
confront the question whether the procedures established under
the 1996 Act for achieving competitive markets are compatible
with the procedures that would be used to accomplish the same
result under the antitrust laws. In our view, they are not. The
elaborate system of negotiated agreements and enforcement
established by the 1996 Act could be brushed aside by any
unsatisfied party with the simple act of filing an antitrust
action. Court orders in those cases could easily conflict with
the obligations the State commissions or the FCC imposes under
the sec. 252 agreements. The 1996 Act is, in short, more
specific legislation that must take precedence over the general
antitrust laws, where the two are covering precisely the same
field.
This is not the kind of question that requires further
development of a factual record, either on summary judgment or
at a trial. We therefore agree with the district court that it
was proper for resolution under rule 12(b)(6). There are many
markets within the telecommunications industry that are already
open to competition and that are not subject to the detailed
regulatory regime we have been discussing; as to those, the
antitrust savings clause makes it clear that antitrust suits
may be brought today. At some appropriate point down the road,
the FCC will undoubtedly find that local markets have also
become sufficiently competitive that the transitional
regulatory regime can be dismantled and the background
antitrust laws can move to the fore. Our holding here is simply
that this is not what Congress has mandated at this time for
the ILEC duties that are the subject of the Goldwasser
complaint. The district court thus correctly rejected the
plaintiffs' antitrust theory.
Id. at 401-02. The Committee believes that this
holding is wrong and plainly misstates the clear intent
of Congress in both savings clauses. However, for the
moment at least, it is the law in the Seventh Circuit.
Another case raising the same issue, Intermedia
Communications, Inc. v. BellSouth Telecommunications,
Inc., is currently pending before the Eleventh Circuit.
In that case, the Department of Justice and the Federal
Communications Commission have filed a joint amicus
brief arguing that the Seventh Circuit wrongly decided
Goldwasser with respect to this issue.
Chairman Sensenbrenner's Amendment
Chairman Sensenbrenner offered an amendment to address two
of the antitrust problems in the bill. First, the Sensenbrenner
amendment restores current law in Sec. 271 of the
Communications Act with respect to Bell entry into long
distance data service except that it makes the Justice
Department the decisionmaker rather than the Federal
Communications Commission. Second, it adds language clarifying
the meaning of the antitrust savings clause in the
Telecommunications Act of 1996 and reversing the
misinterpretation of that clause in the Goldwasser case. The
Committee adopted the Chairman's amendment by voice vote.
A great deal of confusion has arisen over the meaning of
the part of the Sensenbrenner amendment that addresses the
Goldwasser decision. In light of that confusion, the Committee
wishes to clarify the following matters. First, the
clarification is directed only at that part of the Goldwasser
decision that is quoted above in section E. This clarification
is not intended to disturb other parts of the decision. Second,
the clarification is not limited to the local exchange context,
but would apply to any case in which a party claimed that the
Communications Act in some way effected an implied repeal of
the antitrust laws.
Third, over the years, case law has added to antitrust law
in ways that are not explicitly set out in the antitrust
statutes, like the primary jurisdiction doctrine, the filed
rate doctrine, the State action immunity doctrine, and other
similar matters. The Committee believes these matters are part
of the ``rights, obligations, powers, and remedies'' provided
under the antitrust laws that the language in the provision
intends to save. The provision is not intended to limit or
eliminate these or other similar doctrines.
Fourth, parties are free to sign contracts that waive their
rights to bring antitrust actions or actions under the
Communications Act. This language is not intended to override
any otherwise valid contract provision that makes such a
waiver.
Finally, the Committee emphasizes again the general notion
that the quoted portion of Goldwasser upset. With respect to
conduct within the ambit of the Communications Act, the Act and
the antitrust laws are parallel and complementary remedy
systems. Conduct may violate the Act and not the antitrust
laws; it may violate the antitrust laws and not the Act; it may
violate both; or it may violate neither. When an action like
Goldwasser is filed alleging conduct violating both the Act and
the antitrust laws, a court should analyze the conduct to see
if it violates the Act, and it should separately analyze the
conduct to see if it violates the antitrust laws. The Committee
understands the portion of Goldwasser quoted in section E,
above, to hold that such conduct--at least if it relates to an
incumbent local exchange carrier's obligations under Sec. 251
of the Act before the local exchange market becomes
competitive--can only be analyzed under the Act and not the
antitrust laws.
That is not what Congress intended in 1996. The courts may
not simply read the antitrust savings clause out of the law.
Accordingly, the Committee believes this clarification is in
order to make it clear to the courts that the antitrust savings
clause meant what its plain language said.
Legislative History.--Chairman Tauzin introduced H.R. 1542
on April 4, 2001. Congressman Conyers introduced H.R. 1697 on
May 3, 2001. Congressman Cannon introduced H.R. 1698 on May 3,
2001. Congressman Cannon introduced H.R. 2120 on June 12, 2001.
All three bills were referred to the Committee. On May 22,
2001, the Committee held a hearing on H.R. 1697, and H.R. 1698.
The Committee received testimony from four witnesses: Honorable
Terry Harvill, Commissioner, Illinois Commerce Commission,
Chicago, Illinois; Honorable Bill Barr, Executive Vice
President and General Counsel, Verizon, Washington, DC; Mr.
Jeff Blumenfeld, Partner, Blumenfeld & Cohen, Washington, DC;
and Mr. John Malone, President and Chief Executive Officer, The
Eastern Management Group, Bedminster, New Jersey.
The Committee held a hearing on H.R. 1542 on June 5, 2001.
The Committee received testimony from four witnesses: Honorable
Tom Tauke, Senior Vice President for Public Policy and External
Affairs, Verizon, Washington, DC; Mr. Clark McLeod, Chairman
and Co-Chief Executive Officer, McLeodUSA, Cedar Rapids, Iowa;
Ms. Margaret Greene, Executive Vice President for Regulatory
and External Affairs, BellSouth Corporation, Atlanta, Georgia;
and Mr. Jim Glassman, Resident Fellow, American Enterprise
Institute, Washington, DC.
On June 13, 2001, the Committee conducted a markup session
on H.R. 1542 and H.R. 2120. The Committee defeated the motion
to report on H.R. 2120, by a 15-19 vote. The Committee
adversely ordered reported, amended H.R. 1542, by voice vote.
On June 18, 2001, the Committee filed its report, H. Rept. 107-
83 pt. II. On February 27, 2002, the House passed H.R. 1542, by
a vote of 273-157.
H.R. 3288, the ``Fairness in Antitrust in National Sports (FANS) Act of
2001''
Review of Major League Baseball's antitrust status and
documents submitted by the Office of the
Commissioner of Major League Baseball
Summary.--The Committee on the Judiciary has maintained
thorough oversight over the operation of Major League Baseball
(MLB). While the jurisdiction of the Committee includes the
operation of other professional sports leagues, MLB is the only
professional sports league that enjoys a judicially created
exemption to the antitrust laws. On November 6, 2001, MLB voted
to contract two teams from the 2002 season roster to address
the League's alleged financial crisis. As a result H.R. 3288,
the ``Fairness in Antitrust in National Sports (FANS) Act of
2001,'' which would have applied the antitrust laws to the
contraction or relocation of Major League clubs, was introduced
on November 14, 2001. On December 6, 2001, the Committee
conducted a legislative hearing on H.R. 3288 that included: a
detailed submission of financial statements by MLB; a careful
review by the Committee to assess these and other related
documents; and subsequent requests by the Committee for
additional information. Although no legislative action was
taken on H.R. 3288, MLB did not contract two teams from the
2002 roster. In addition, wide concerns over inflated costs to
baseball fans and supporting communities have been highlighted
by: MLB's claim of financial peril and the increasing valuation
of Major League Club sales; the increasing value of player's
salaries; and threats of a labor strike by the Major League
Baseball Players Association.
History of Major League Baseball's antitrust status
MLB is the only professional sport that enjoys a virtual
exemption from the antitrust laws. In 1922, the Supreme Court
held that ``exhibitions of baseball'' were not interstate
commerce for the purposes of federal antitrust
jurisdiction.\22\ In 1953 the Court reaffirmed that position,
noting that ``if there are evils in this field which now
warrant application of the antitrust laws it should be by
legislation'' and not by judicial action.\23\ In 1972, the
Court opined that the antitrust-exempt status of professional
baseball an ``anomaly'' and an ``aberration'' in the
application of the antitrust laws--both to business generally
and to professional sports particularly, but that the
``inconsistency or illogic'' of that situation would have to be
``remedied by Congress and not by this Court.'' \24\
---------------------------------------------------------------------------
\22\ Federal Baseball Club of Baltimore, Inc. v. National League of
professional Baseball Clubs, 259 U.S. 200 (1922).
\23\ Toolson v. New York Yankess, 346 U.S. at 356, 357 (1953).
\24\ Flood v. Kuhn, 407 U.S. at 282, 284, 258 (1972).
---------------------------------------------------------------------------
Legislative history of baseball antitrust
In the 103rd Congress, (1) the Senate Judiciary Committee
voted not to report S. 500 (Sen. Metzenbaum, ``Professional
Baseball Reform Act of 1993''); (2) H.R. 108 (Rep. Bilirakis, a
measure to make the antitrust laws applicable to professional
baseball teams and the leagues of which they are a part
remained pending in the Economic and Commercial Law
Subcommittee of the House Judiciary Committee; (3) several
measures--each titled ``Baseball Fans Protection Act''--to
``encourage serious negotiation between the players and the
owners of major league baseball'' by amending the Clayton Act
to make the antitrust laws applicable to ``unilateral terms or
conditions * * * imposed by any party that has been subject to
an agreement between the owners of major league baseball and
labor organizations representing the players of major league
baseball * * *,'' were introduced immediately prior to or at
the beginning of the 1994 baseball strike; (4) September 1994
hearings before the Economic and Commercial Law Subcommittee of
the House Committee on the Judiciary focused on labor-specific
measures; (5) in November, 1994, H.R. 4994 (Rep. Synar,
``Baseball Fans and Communities Protection Act,'' which
appliedthe antitrust laws to MLB's labor negotiations but exempted
``non-major league baseball club[s]'') was reported by the Judiciary
Committee (H.Rept. 103-871), but not acted upon; and (6) S. 2380 (Sen.
Metzenbaum, ``Baseball Fans Protection Act of 1994,'' which applied the
antitrust laws to MLB's labor negotiations) was placed on the Senate
calendar, but not acted upon by the full Senate. More than a dozen
other measures that would have applied the antitrust laws to were
introduced in the 104th Congress, many of which coincided with the 1994
Baseball labor strike.
In 1998 (105th Congress), the ``Curt Flood Act,'' Pub. L.
105-297, was enacted (S. 53, 105th Congress). The Curt Flood
Act establishes a new section Sec. 27 to the Clayton Act (15
U.S.C. Sec. Sec. 12 et seq.) to clarify that major league
baseball players are covered under the federal antitrust laws
to the same extent as are other professional athletes. Although
questions over the Act's efficacy have not been tested, the Act
defines ``major league baseball players'' as persons who are or
were parties to major league players' contracts, and
specifically does not purport to affect in any way, inter alia:
(1) professional baseball's relations with ``organized
professional minor league baseball''; or (2) ``the agreement
between organized professional major league baseball teams and
the National Association of Professional Baseball Leagues
(``Professional Baseball Agreement'').'' The Act is intended to
provide more autonomy for major league players by allowing them
to market themselves as free agents and has little impact on
MLB's antitrust status.
The only statute which exempts professional sports leagues
other than baseball from the antitrust laws is the Sports
Broadcasting Act.\25\ This Act permits professional sports
teams to pool their separate telecasting rights and the
revenues received from these rights without violating the
antitrust laws. As media rights are the most valuable economic
contributor to the bottom line of individual sports franchises,
this law plays a significant role in the ongoing debate over
MLB's decision to contract two Major League clubs. While it is
widely known that MLB's richest teams are located in the
largest media markets and its poorest teams are located in the
smallest media markets, ``revenue sharing'' of broadcasting
revenues, or the lack thereof, creates a severe anti-
competitive perception.
---------------------------------------------------------------------------
\25\ See 15 U.S.C. Sec. Sec. 1291 et seq.
---------------------------------------------------------------------------
Major League Baseball owners decide to contract the League
On the evening of November 6, 2001, the Associated Press
reported that the MLB owners had made the decisions that day to
contract the League by two teams. According to the news report,
the owners:
* * * would not specify which cities would be cut * *
*. The vote was 28-2, with the Minnesota Twins and
Montreal Expos opposing contraction * * *. Montreal,
Minnesota and the Florida Marlins recently have been
mentioned as the likeliest candidates, while Oakland
and Tampa Bay were discussed earlier this year.
``It makes no sense for Major League Baseball to be
in markets that generate insufficient local revenues to
justify the investment in the franchise,'' commissioner
Bud Selig said. ``The teams to be contracted have a
long record of failing to generate enough revenues to
operate a viable major league franchise.''
Baseball's decision reverses nearly a half-century of
expansion during which the major leagues grew from 16
teams in 1960 to 30 since 1998, when Arizona and Tampa
Bay were added.
The amount of money that would be paid to the
eliminated teams was not discussed during the meeting.
This would be the first contraction by Major League
Baseball since the National League shrank from 12 teams
to eight following the 1899 season. No major league
team has moved since the Washington Senators became the
Texas Rangers in 1972.\26\
---------------------------------------------------------------------------
\26\ Associated Press Newswire Report, ``Owners vote to eliminate
two MLB teams,'' November 6, 2001.
Based on this news, the Committee recognized the necessity
of examining the antitrust implications of a League
contraction. The Committee requested a Congressional Research
Service memorandum from the American Law Division addressing
the Antitrust Status of MLB as well as the impact of H.R. 3288
on the contraction or relocation of Major League clubs. H.R.
3288 establishes a provision of the Clayton Act to apply the
antitrust laws to the elimination or relocation of a Major
League club in the same manner that the antitrust laws are
applied to the elimination or relocation of a franchise in any
other professional sports business affecting interstate
commerce. The bill would apply only to the elimination or
relocation of Major League clubs and would allow the antitrust
exemption to remain for the balance of MLB's operations,
notably revenue sharing authorized in the Sports Broadcasting
Act and minor league operations. The advocates of the bill
proposed it as a remedy under the idea that, except for MLB's
antitrust exemption, a decision by MLB's owners to consolidate
would be found by a court to violate the federal antitrust
laws. However, removing MLB's antitrust exemption only for the
purposes of Major League club contraction or relocation, could
permit the owners to act unilaterally to contract or relocate a
club without agreement by the other owners. Therefore, while
H.R. 3288 is narrowly tailored to the contraction or relocation
of Major League clubs and presumably would prevent the owners
from voting to contract or relocate a Major League club, the
bill would not necessarily provide a predictable or desirable
outcome.
December 6, 2001 hearing on anti-trust issues in Major
League Baseball
While it was noticed as a Legislative Hearing on H.R. 3288,
the ``Fairness in Antitrust in National Sports (FANS) Act of
2001,'' the Full Committee hearing on December 6, 2001,included
a comprehensive examination of MLB's antitrust status, the effect of
multi-million dollar player salary contracts, and the use of public
funds for stadiums to house Major League clubs and possibly attract new
Major League clubs. The Committee Chairman's opening statement provided
an eloquent explanation of the Committee's intent.
In 1922, the judicial branch of government was there
to help Major League Baseball. In a unique decision,
the United States Supreme Court held that baseball was
not a business and thus not subject to the antitrust
laws. With minor modification, baseball's antitrust
exemption has survived to this day. It is an exemption
enjoyed by none of the other major league sports.
Seventy-nine years ago Major League Baseball consisted
of 16 teams clustered in the Northeast and Midwest.
Players were paid what was generously described as a
pittance. Ballparks were privately owned, and genuine
fan loyalty was built upon stars playing with the same
team for most of their careers. Today 30 teams play in
major cities throughout the country except one, the
Nation's Capital. Players receive astronomical
salaries, the newer parks were largely built with
taxpayers' money, and free agency sends the stars from
one team to another almost before they can warm their
places in the dugout. The major argument for using
taxpayers' funds to build new stadiums has been the
economic boom brought to a community by having a Major
League Baseball team.
At this hearing we will receive testimony that
baseball is in dire financial straits and that the
antitrust exemption should remain. One of the many
questions which baseball must answer is why so many
teams are in financial peril with the protection of
special legal status when major league football,
basketball and hockey teams are not? Perhaps the help
given to baseball by the Supreme Court in 1922 really
has not been so helpful after all. And another question
to be answered by baseball is how a sport which grosses
over $3 billion a year is still not a business when the
presence of a team obviously stimulates business
throughout the lucky communities.
For years baseball has told Congress that it can heal
itself, and it obviously has not done so, even though
this year baseball has had record attendance and the
best World Series in history. The numbers do not add
up. Success on the field and at the box office should
bring success to the bottom line. So maybe the Supreme
Court's help in 1922 has outlived its usefulness, and
the market should be allowed to work in baseball like
it has in other major sports.
Legislative History.--Witnesses testifying at the hearing
were Mr. Allan H. (Bud) Selig, Commissioner of Major League
Baseball (Commissioner), The Honorable Jesse Ventura, Governor
of Minnesota (Governor), Mr. Jerry Bell, President, Minnesota
Twins, and Mr. Steven A. Fehr, outside counsel for the Major
League Baseball Players Association. Also, all Members of the
Minnesota House delegation accepted an invitation to
participate in this hearing.
The first witness, the Commissioner, identified MLB's
economic problems, and discussed MLB's decision to contract two
teams to advance the long-term economic interests of
professional baseball. The decision to contract teams was
justified to eliminate MLB's most severe financial burdens. The
Commissioner testified that ``the consolidated loss for all
thirty clubs in 2001 will be approximately $519 million.
Twenty-five clubs lost money and five made money.'' He provided
further details of the losses and directed attention to written
documents distributed at the hearing (see below). The
Commissioner testified that H.R. 3288, as introduced, would not
be helpful to MLB and would severely undermine the franchise
stability league owners have worked to achieve. Additionally,
the Commissioner questioned how far the removal of the
exemption would go since there was a 1998 change to the
exemption in the area of labor relations.
Governor Jesse Ventura, the 38th governor of Minnesota,
testified against eliminating the Minnesota Twins and
criticized Major League Baseball's ``failed logic'' in support
of eliminating the Twins.\27\ The Governor emphasized that, in
order to rectify the MLB situation, Congress simply has to pass
a law that ``says the Sherman Act applies to all businesses
without exception,'' and to make clear that there is no
exemption for MLB.
---------------------------------------------------------------------------
\27\ Id. at 27-31.
---------------------------------------------------------------------------
The Committee then heard testimony from Jerry Bell,
President of the Minnesota Twins. Mr. Bell testified to the
need for a new revenue sharing approach in MLB to increase
prospects for improving local revenues for clubs such as the
Twins. Mr. Bell specifically noted the severe lack of local
revenues in Minnesota and testified that the only way to
generate sufficient local revenue was with a new ballpark.
Finally, the Committee heard testimony from Steven A. Fehr,
Outside Counsel for the Major League Baseball Players
Association. Mr. Fehr testified that the players fully
supported the FANS Act of 2002, and oppose contraction within
the league. Mr. Fehr agreed with Gov. Ventura that passing the
bill would remove all doubt that MLB is subject to antitrust
laws.
LIABILITY ISSUES
H.R. 2037, Protection of Lawful Commerce in Arms Act
Summary.--H.R. 2037, the ``Protection of Lawful Commerce in
Arms Act,'' provides protections for those in the firearms
industry from lawsuits arising out of the criminal or unlawful
acts of people who misuse their products. The legislation would
allow Congress to prevent one or a few state courts from
bankrupting the national firearms industry and undermining all
citizens' right to bear arms.
A gun, by its very nature, must be dangerous. Tort law,
however, rests upon a moral foundation which presupposes that a
product may not be defined as defective unless there is
something ``wrong'' with the product, rather than with the
product's user. However, in the last several years, lawsuits
have been filed against the firearms industry on theories of
liability that would hold those in the firearms industry liable
for the actions of others who use their products in a criminal
or unlawful manner. Such lawsuits threaten to separate tort law
from its basis in personal responsibility, and to force
firearms manufacturers into bankruptcy, leaving potential
plaintiffs asserting traditional claims of product
manufacturing defects unable to recover more than pennies on
the dollar in federal bankruptcy court.
Lawsuits seeking to hold the firearms industry responsible
for the criminal and unlawful use of its products by others are
attempts to accomplish through litigation what has not been
achieved by legislation and the democratic process. An equally
destructive dynamic of such lawsuits is created when plaintiffs
seek to obtain through the courts stringent limits on the sale
and distribution of firearms beyond the court's jurisdictional
boundaries. Under the currently unregulated tort system, a
state lawsuit in a single county could destroy a national
industry and deny citizens nationwide the ability to keep and
bear arms guaranteed by the Constitution. These complaints have
the practical effect of shutting down interstate commerce in
firearms, and Congress has the power to protect interstate
commerce. Such lawsuits directly implicate core federalism
principles articulated by the United States Supreme Court.
H.R. 2037 would allow Congress to fulfill its
constitutional duty and exercise its authority under the
Commerce Clause to prevent a few state courts from bankrupting
the national firearms industry and denying all Americans their
fundamental right to self-defense.
Legislative History.--Representative Stearns introduced
H.R. 2037, the ``Protection of Lawful Commerce in Arms Act,''
on May 25, 2001. The Judiciary Committee held a mark-up session
on H.R. 2037 on October 2, 2002, and reported the bill
favorably as amended by the yeas and nays: 18-7. The Committee
filed its report on October 8, 2002, H. Rept. 107-727, Part II.
H.R. 2341, the ``Class Action Fairness Act of 2002''
Summary.--H.R. 2341 provides meaningful improvements in
litigation management by allowing federal courts to hear large
interstate class actions and by establishing new protections
for consumers against abusive class action settlements. In
making these improvements, H.R. 2341 does not limit access to
the courthouse or alter any existing state or federal
substantive law. Furthermore, it will help prevent a handful of
state courts from usurping the authority of other states and
the rights of their citizens.
First, H.R. 2341 amends the current federal diversity-of-
citizenship jurisdiction statute (28 U.S.C. Sec. 1332)--to
allow large interstate class actions to be adjudicated in
federal courts. Currently, federal courts have jurisdiction
over (a) lawsuits dealing with a federal question and (b) cases
meeting current diversity jurisdiction requirements--matters in
which all plaintiffs are citizens of jurisdictions different
than all defendants, and each claimant has an amount in
controversy in excess of $75,000. H.R. 2341 would change the
diversity jurisdiction requirement for class actions, generally
permitting access to federal courts in class actions where
there is ``minimal diversity'' (that is, any member of the
proposed class is a citizen of a state different from any
defendant) and the aggregate amount in controversy among all
class members exceeds $2 million. In that way, H.R. 2341
recognizes that large interstate class actions deserve federal
court access because they typically affect more citizens,
involve more money, and implicate more interstate commerce
issues than any other type of lawsuit.
Secondly, it implements long needed protections for
consumers against abusive settlements. These protections are
established in the ``Consumer Class Action Bill of Rights''
(Bill of Rights), which is located in Section 3 of the bill.
The Bill of Rights would: (1) establish new ``Plain English''
requirements (non-legal jargon) so that class members can
better understand class action settlement notices and how these
notices effect their rights; (2) enhance judicial scrutiny of
coupon settlements; (3) provide judicial scrutiny over
settlements that would result in a net monetary loss to
plaintiffs; (4) prohibit unjustified payments, also known as
bounties, to class representatives; and (5) protect out-of-
state class members against settlements that favor class
members based upon geographic proximity to the courthouse.
Federal diversity jurisdiction
While federal courts have jurisdiction over questions or
disputes concerning federal law, Article III of the
Constitution empowers Congress to establish federal
jurisdiction over any law when there is diversity--disputes
``between citizens of different States.'' Diversity
jurisdiction is premised on concerns that state courts might
discriminate against out of state defendants. Since 1806, with
some exceptions, the federal courts have followed the rule of
Strawbridge v. Curtiss, which states that federal jurisdiction
lies only where all plaintiffs are citizens of states different
than all defendants.\28\ This is known as the ``complete
diversity'' rule.\29\ In a class action, only the citizenship
of the named plaintiffs is considered for determining
diversity, which means that federal diversity jurisdiction will
not exist if the named plaintiff is a citizen of the same state
as the defendant, regardless of the citizenship of the rest of
the class. See Snyder v. Harris, 394 U.S. 332 (1969). And,
since the early days of the country, Congress has imposed a
monetary threshold--now $75,000--for federal diversity
claims.\30\ However, the amount in controversy requirement is
satisfied in a class action only if all of the class members
are seeking damages in excess of the statutory minimum.\31\
---------------------------------------------------------------------------
\28\ Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806).
\29\ The Supreme Court has regularly recognized that the decision
to require complete diversity, and to set a minimum amount in
controversy, are political decisions not mandated by the Constitution.
See, e.g., Newman-Green, Inc. v. Alfonzo-Larrian, 490 U.S. 826, 829 n.1
(1989). It is therefore the prerogative of the Congress to broaden the
scope of diversity jurisdiction to any extent it sees fit, as long as
any two adverse parties to a lawsuit are citizens of different states.
See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 530-31 (1967).
\30\ See 28 U.S.C. Sec. 1332(a).
\31\ See Zahn v. International Paper Co., 414 U.S. 291 (1973).
---------------------------------------------------------------------------
These jurisdictional statutes were originally enacted years
ago, well before the modern class action arose, and they lead
to perverse results. For example, under current law a citizen
of one state may bring in federal court a simple $75,001 slip-
and-fall claim against a party from another state. But if a
class of 25 million consumers living in all 50 states brings
claims collectively worth $15 billion against the manufacturer,
the lawsuit usually must be heard in state court. The current
statutes also allow attorneys to game the system to keep class
actions out of federal court. Attorneys often name irrelevant
parties to their class actions in an effort to ``destroy
diversity''--that is, to keep the case from qualifying for
federal diversity jurisdiction. In fact, plaintiff's counsel
have made statements about a case to prevent a defendant from
removing the case to federal court (e.g., ``plaintiffs seek
only a very small amount of money in this case''). After one
year, however, the same counsel will recant those statements,
since at that point, current statutes bar removal of the case
to federal court.\32\
---------------------------------------------------------------------------
\32\ Hearings on H.R. 1875 and 2005: the ``Interstate Class Action
Jurisdiction Act of 1999'' and ``Workplace Goods Job Growth and
Competitiveness Act of 1999'' Before the House Comm. on the Judiciary,
106th Cong., 1st Sess. 57 (July 21, 1999) (prepared statement of John
Beisner).
---------------------------------------------------------------------------
Removal statute
The general federal removal statute provides, inter alia,
that any civil action brought in a State court of which U.S.
district courts have original jurisdiction, may be removed by
the defendant(s) to the appropriate Federal court.\33\ Removal
is based on the same general assumption as diversity
jurisdiction, that an out-of-state defendant may become a
victim of local prejudice in State court.\34\
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\33\ See 28 U.S.C. Sec. 1441(a).
\34\ See David P. Currie, Federal Jurisdiction at 140 (3rd ed.
1990).
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A defendant must file for removal to Federal court within
30 days after receipt of a copy of the initial pleading (or
service of summons if a pleading has been filed in court and is
not required tobe served on the defendant).\35\ An exception
exists beyond the 30-day deadline when the case stated by the initial
pleading is not removable. If so, a notice of removal must be filed
within 30 days of receipt by the defendant of ``a copy of an amended
pleading, motion, order, or other paper from which it may first be
ascertained that the case [is removable].'' In no event may a case
where Federal jurisdiction is based on diversity be removed more than
one year from commencement of the action.\36\
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\35\ See 28 U.S.C. Sec. 1446(b).
\36\ Id.
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The Act
H.R. 2341 establishes the following six requirements to
enhance the rights of members of a class action:
(1) Judicial scrutiny over coupon and other noncash
settlements--requires the court to conduct a hearing to
determine whether a coupon or noncash settlement is
fair, reasonable, and adequate for class members;
(2) Protections against net losses by class members--
requires the court to make a written finding that non-
monetary benefits to class members outweigh the
monetary loss of a proposed settlement in which any
class member is obligated to pay sums to class counsel
that would result in a net loss to the class member;
(3) Protections against discrimination based on
geographic location--prohibits settlements providing
greater awards to class members on the basis they are
in closer geographic proximity to the court;
(4) Prohibit the payment of bounties--prohibits
settlements providing additional awards to class
representatives other than awards approved by the court
for reasonable time or costs associated with the class
member's obligation as a class representative;
(5) Clearer and simpler settlement information--
establishes a new ``Plain English'' requirement for any
written and broadcast notices concerning a proposed
class action settlement; and
(6) Pleading requirements for class actions--
establishes the following pleading requirements for
class actions:
(a) The complaint shall specify with
particularity the nature and amount of all
relief sought on behalf of any class member,
and the nature of the injury allegedly caused
to members of the class.
(b) In actions asserting that the defendant
acted with a particular state of mind, the
complaint shall state with particularity the
facts, if proven, with respect to each alleged
act demonstrating that the defendant acted with
the required state of mind.
(c) Any defendant may move to dismiss a
complaint based on failure to comply with the
provisions of this section. All discovery shall
be stayed during the pendency of a motion to
dismiss.
H.R. 2341 expands federal diversity jurisdiction by
amending 28 U.S.C. Sec. 1332 to grant original jurisdiction in
federal court to hear interstate class actions where any member
of the proposed class is a citizen of a state different from
any defendant and the total amount in controversy is at least
$2,000,000. This would include civil actions where a named
plaintiff purports to act on behalf of other at least 100 other
members of the same action on the grounds that claims involve
common questions of law or fact, and would apply to any class
action before or after the entry of a class certification
order. An interstate class (i.e. federal diversity
jurisdiction) action would not include:
(1) Intrastate cases--cases in which a ``substantial
majority'' of the class members and defendants are
citizens of the same state and the claims will be
governed primarily by that state's law;
(2) Limited scope cases--cases involving fewer than
100 class members or where the aggregate amount in
controversy is less than $2 million; and
(3) State action cases--cases where the primary
defendants are states or state officials, or other
governmental entities against whom the district court
may be foreclosed from ordering relief.
Other class actions excluded from this expanded diversity
jurisdiction are specific actions, including claims brought by
shareholders that solely involve:
(1) Section 16(f)(3) of the Securities Act of 1933
and section 28 (f)(5)(E) of the Securities Exchange Act
of 1934;
(2) The internal affairs or governance of a
corporation or other form of incorporated business
enterprise; and
(3) The rights, duties, and obligations relating to
any security.
H.R. 2341 establishes a new section providing for removal
of class actions to federal court where the action is filed in
State court and the federal court has original jurisdiction.
While the existing general removal provisions contained in
chapter 89 of Title 28 would continue to apply, the new removal
section overrides circumstances where these statutes may be in
conflict. Generally, the new removal provision preserves all
facets of the expanded diversity jurisdiction established by
the bill and provides three distinctive features:
(1) Unnamed class members (plaintiffs) may remove to
federal court class actions in which their claims are
being asserted within 30 days after formal notice.
Under current rules only the defendants are allowed to
remove.\37\
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\37\ In 1875, the right to remove was extended to plaintiffs as
well as defendants, but the experiment was short-lived, and in 1887,
the predecessor of 28 U.S.C. 1441 once again restricted removal to
defendants only. In individual cases, this reflects the fact that the
plaintiff has chosen voluntarily to submit to the jurisdiction of the
state court by choosing to file suit there. This rationale does not
apply in the case of putative plaintiff class members who did not
control the decision as to where to bring a class action; See 28 U.S.C.
1446.
---------------------------------------------------------------------------
(2) Removal of class actions to federal court would
be available to (a) any defendant without the consent
of all defendants, (b) any named plaintiff class member
without the consent of all members, or (c) any unnamed
plaintiff class member after the class has been
certified by a state court. Current removal rules--
which apply only to defendants--require the consent of
all defendants.
(3) Section 1446 of Title 28 requires that a notice
of removal be filed within 30 days of the receipt by
the defendant of a copy of the pleading which gives
notice of grounds for removal. However, that section
bars the removal of cases to federal court after one
year, even if the basis for removal does not occur
until after that time. H.R. 2341 would eliminate the
bar to removal of class actions after one year, and
would apply the same removal notice rules to
plaintiffs.
Under H.R. 2341, if a removed class action is found not to
meet the requirements for proceeding on a class basis, the
federal court would dismiss the action without prejudice.
Plaintiffs would then be permitted to re-file their claims in
state court, presumably in a form amended either to fall within
one of the types of cases not considered interstate class
actions, or to be maintainable as a class action under federal
Rule 23. The statute of limitations on individual class
members' claims in such a dismissed class action would not run
during the period the action was pending in federal court.
Finally, H.R. 2341 provides for an immediate appeal of an
order by a Federal District Court granting or certifying class
certification under Rule 23 of the Federal Rules of Civil
Procedure. Accordingly, discovery pursuant to the certification
order at issue will be stayed until the Federal Circuit court
has ruled on the appeal in question. However, the court may
order discovery by motion and a showing of necessity by a party
to the action.
Legislative History.--H.R. 2341 was introduced by
Congressmen Bob Goodlatte and Rick Boucher on June 27, 2001 and
ultimately garnered 56 cosponsors. The full committee conducted
a hearing on the bill on February 6, 2002, those testifying
include: Ms. Hilda Bankston of Jefferson County, Mississippi;
Mr. John Beisner, Esq., O'Melveny & Myers LLP; Mr. Peter
Detkin, Vice President, Assistant General Counsel, Intel
Corporation; and Mr. Andrew Friedman, Esq., Bonnett, Fairbourn,
Friedman & Balint. Following two days of markup on March 6th
and 7th, the full committee ordered the bill reported to the
House, as amended, by a vote of 16 ayes to 10 nays. H.R. 2341
was reported to the House on March 12, 2002, (House Report No.
107-370. By a vote of 233 ayes to 190 nays, the House passed
H.R. 2341 on March 13, 2002. While the Senate Judiciary
Committee conducted a hearing on July 31, 2002 on companion
legislation S. 1712 no additional legislative activity was
conducted on this legislation by the Senate.
H.R. 2926, the ``Air Transportation Safety and System Stabilization
Act''
Summary.--Litigation management provisions were necessary
to address the exposure of air carriers to potentially
limitless and bankrupting lawsuits for damages arising out of
the terrorist attacks of September 11, 2001. H.R. 2926 included
provisions creating a ``September 11th Victims Compensation
Fund'' to be administered by a Special Master. The Fund was
created to provide compensation to any individual (or relatives
of a deceased individual) who was physically injured or killed
as a result of the terrorist-related aircraft crashes of
September 11, 2001. H.R. 2926 also included provisions
providing that notwithstanding any other provision of law,
liability for all claims, whether for compensatory or punitive
damages, arising from the terrorist-related aircraft crashes of
September 11, 2001, against any air carrier shall not be in an
amount greater than the limits of the liability coverage
maintained by the air carrier. H.R. 2926 also provided that
there shall exist a Federal cause of action for damages arising
out of the hijacking and subsequent crashes of American
Airlines flights 11 and 77, and United Airlines flights 93 and
175, on September 11, 2001, that would be the exclusive remedy
for damages arising out of the hijacking and subsequent crashes
of such flights. The substantive law for decision in any such
suit shall be derived from the law, including choice of law
principles, of the State in which the crash occurred unless
such law is inconsistent with or preempted by Federal law. H.R.
2926 also provided that the United States District Court for
the Southern District of New York shall have original and
exclusive jurisdiction over all actions brought for any claim
(including any claim for loss of property, personal injury, or
death) resulting from or relating to the terrorist-related
aircraft crashes of September 11, 2001. H.R. 2926 also provided
that nothing in such provisions shall in any way limit any
liability of any person who is a knowing participant in any
conspiracy to hijack any aircraft or commit any terrorist act.
Legislative History.--On September 21, 2001, H.R. 2926 was
referred to the House Judiciary Committee. That same day, H.R.
2926 passed the House by the yeas and nays, 356-54, with 2
Members voting present. On September 22, 2001, H.R. 2926 was
signed by the President and became Public Law No. 107-42.
H.R. 3210, the ``Terrorism Risk Insurance Act''
Summary.--As introduced, H.R. 3210 contained a prohibition
on punitive damages and a provision providing that a defendant
would be liable only for the amount of noneconomic damages
allocated to the defendant in direct proportion to the
percentage of responsibility of the defendant for the harm to
the claimant. These provisions applied only in actions brought
for damages claimed by an insured pursuant to, or in connection
with, any commercial property and casualty insurance. These
provisions failed to protect innocent Americans and American
businesses who were the victims of terrorist attacks and who
might be sued by non-insureds for damages arising out of
terrorist attacks.
Legislative History.--H.R. 3210 was introduced by
Representative Oxley, Chairman of the House Financial Services
Committee, on November 1, 2001. On November 19, 2001, it was
referred sequentially to the House Committee on the Judiciary
for a period ending not later than November 26, 2001 for
consideration of such provisions of the bill and amendment as
fall within the jurisdiction of that committee pursuant to
clause 1(k), rule X. On November 26, 2001, H.R. 3210 was
discharged by the Committee on Judiciary. Pursuant to H. Res.
297, H.R. 3357 was adopted as an amendment in the nature of a
substitute to H.R. 3210. H.R. 3210 passed the House on November
29, 2001, by the yeas and nays, 227-193. On November 14, 2002,
the conference report on the bill, H. Rept. 107-779, was agreed
to by the House by voice vote. On November 26, 2002, H.R. 3210
was signed by the President and became Public Law No. 107-297.
H.R. 4600, Help Efficient, Accessible, Low-cost, Timely Healthcare Act
(the HEALTH Act)
Summary.--A national insurance crisis is ravaging the
nation's health care system. Skyrocketing insurance rates have
caused major insurers to drop coverage, and decimated the ranks
of doctors and other health care providers by forcing them to
abandon patients and practices, particularly in high-risk
specialties such as obstetrics and emergency medicine. The
problem is particularly acute for practitioners in managed
care, where prescribed fixed costs prevent them from recouping
insurance costs. The HEALTH Act, modeled after California's
quarter-century old and highly successful health care
litigation reforms, addresses the current crisis and will make
health care delivery more accessible and cost-effective in the
United States. Its time-tested reforms will make medical
malpractice insurance affordable again, encourage health care
practitioners to maintain their practices, reduce health care
costs for patients, and save billions of dollars a year in
federal taxpayer dollars by significantly reducing the
incidence of wasteful ``defensive medicine'' without increasing
the incidence of adverse health outcomes. Its enactment will
particularly help traditionally under-served rural and inner
city communities, and women seeking obstetrics care. It will
create a ``fair share'' rule, by which damages are allocated
fairly, in direct proportion to fault, reasonable guidelines--
but not caps--on the award of punitive damages, and a rule
preventing unfair and wasteful windfall double-recoveries.
Finally, it will accomplish reform without in any way limiting
compensation for 100% of plaintiffs' economic losses, their
medical costs, their lost wages, their future lost wages,
rehabilitation costs, and any other economic out of pocket loss
suffered as the result of a health care injury. The HEALTH Act
also does not preempt any State law that caps non-economic
damages, such as those for pain and suffering.
Legislative History.--Rep. Greenwood, along with Rep. Cox,
Murtha, Toomey, Moran of Virginia, Peterson of Minnesota,
Stenholm, Lucas of Kentucky, Pickering, and Weldon of Florida,
introduced H.R. 4600 on April 25, 2002. The Judiciary Committee
held a mark-up session on H.R. 4600 on July 23, 2002, and on
September 10, 2002, when it reported the bill favorably as
amended by voice vote. The Committee filed its report on
September 25, 2002, H. Rept. 107-693, Part I. On September 26,
2002, the House passed H.R. 4600 by the yeas and nays: 217-203.
MATTERS HELD AT FULL COMMITTEE
H.R. 7, the ``Community Solutions Act''
Summary.--Government should ensure that members of
organizations seeking to take part in government programs
designed to meet basic and universal human needs are not
discriminated against because of their religious views. The
rules for participation in programs of government funding
through grants and cooperative agreements, and through indirect
forms of assistance, for the provision of social services must
assess eligibility to participate without regard to the
religious character of an organization, and any religious
beliefs that organization might hold, or the intensity of those
beliefs, should not be a basis for rejecting their
participation out-of-hand. Indeed, faith-based organizations
often allow their beneficiaries greater and more flexible
access to the social services they offer.
These so-called ``charitable choice'' principles, embodied
in H.R. 7, allow for the public funding of faith-based
organizations on the same basis as other nongovernmental
organizations and permit them to maintain their religious
character by choosing their staff, board members, and methods.
These principles also protect the rights of conscience of their
clients and ensure that alternative providers that are
unobjectionable to them on religious grounds are available.
``Charitable choice'' is not new. Examples of existing laws
that include ``charitable choice'' provisions are the Substance
Abuse and Mental Health Services Administration, P.L. 106-310,
42 U.S.C. Sec. 300x-65; the Community Services Block Grant Act
of 1998, Pub. L. No. 105-285, 42 U.S.C. Sec. 9920; the Welfare
Reform Act of 1996, P.L. 104-193, 42 U.S.C. Sec. 604a; and the
Community Renewal Tax Relief Act of 2000, P.L. 106-554, 42
U.S.C. Sec. 290kk-1. Each was signed into law by President
Clinton.
H.R. 7 simply seeks to apply the tested principles of
charitable choice, which in the case of welfare services have
been federal law for five years, to cover additional federal
programs, bringing greater clarity and constitutional adherence
to a wider scope of federal funding programs. The charitable
choice language in H.R. 7 has been carefully tailored to
respond to discussions of earlier versions of the provision.
New language emphasizes that government funding of a religious
service provider is not intended to endorse religion but rather
to purchase effective assistance; makes it clearer that
beneficiaries may not be coerced into religious observance, but
instead inherently religious activities such as worship and
proselytization must be privately funded, voluntary, and
offered separately from the government-funded services;
requires religious organizations to sign a certificate
acknowledging this duty of non-coercion; clearly obligates
government to inform clients of their religious liberty rights;
emphasizes that the civil rights exemption that allows
religious organizations to take religion into account in hiring
decisions does not remove their obligation to respect the other
non-discrimination requirements in federal law from which they
are not already exempt; requires religious organizations to
keep direct government funds separate from other funds to
enable government to audit the books of a religious
organization without entangling itself in strictly religious
matters; emphasizes that religious organizations that receive
federal funds are held to the same performance standards as
well as the same accounting standards as other grantees;
requires religious organizations to conduct an annual self
audit to ensure compliance and corrective action; provides for
$50 million in new federal funding for technical assistance to
novice and small nongovernmental organizations to help ensure
that they have the knowledge and administrative capacity to
comply with these and other federal requirements; and clarifies
how charitable choice principles apply when an organization
that receives federal funds in turn subgrants funds to other
organizations.
Under H.R. 7, religious organizations receiving grants
under covered programs may not use the provided funds for
``sectarian instruction, worship, or proselytization,'' and a
beneficiary's taking advantage of a social service program
cannot be conditioned on taking part in such activities.
Existing charitable choice law, part of the Welfare Reform Act
of 1996, contains an explicit protection of a beneficiary's
right to ``refus[e] to actively participate in a religious
practice,'' thereby insuring a beneficiary's right to avoid any
unwanted religious practices, and a similar provision in H.R. 7
makes clear that participation, if any, in sectarian
instruction, worship, or proselytization must be voluntary and
noncompulsory.
H.R. 7 also requires a religious organization receiving
funds under a covered program to sign a certificate of
compliance that certifies that the organization is aware of and
will comply with the provisions against the use of government
funds for inherently religious activities. This certificate,
which has the purpose of impressing upon both the government
grantor and the faith-based organization the importance of both
voluntariness and the need to separate sectarian instruction,
worship, and proselytization, must be filed with the government
agency disbursing the funds.
Subsection (g) of the Community Solutions Act also protects
beneficiaries of charitable choice programs by requiring the
presence of an alternative that is unobjectionable to
beneficiaries on religious grounds when a religious
organization is providing social services. Subsection (g) also
requires the appropriate Federal, State, or local governmental
agency to give notice to beneficiaries receiving services under
the covered programs of their right to an alternative that is
unobjectionable to them on religious grounds.
Further, charitable choice principles prohibit faith-based
organizations taking part in programs covered by Title II of
H.R. 7 from discriminating on the basis of religion against
those who seek to be beneficiaries of such programs. Subsection
(m) of the Community Solutions Act also provides that
intermediaries authorized to act under a grant or other
agreement to select nongovernmental organizations to provide
assistance under any program covered by Title II of H.R. 7 have
the same duties under Title II as the government when selecting
or otherwise dealing with subgrantors, but the intermediary
grantor, if it is a religious organization, shall retain all
other rights of a religious organization under Title II.
Misguided understandings of the Constitutional have for too
long deterred Federal, State, andlocal governments from even
inviting religious organizations to participate in informational
meetings designed for those willing to compete for social service
funds. H.R. 7 simply make clear to the federal government, states, and
localities, that if they provide a grant to or enter into a cooperative
agreement with religious organizations under charitable choice
principles, they need not fear that their actions are unconstitutional.
Legislative History.--Representative Watts, Representative
Hall, and Speaker Hastert introduced H.R. 7, the ``Community
Solutions Act,'' on March 29, 2001. On June 7, 2001, the
Subcommittee on the Constitution held an oversight hearing on
the ``Constitutional Role of Faith-Based Organizations in
Competitions for Federal Social Service Funds.'' The following
witnesses testified at the hearing: Carl Esbeck, Senior Counsel
to the Deputy Attorney General, United States Department of
Justice; Douglas Laycock, Associate Dean for Research and Alice
McKean Young Regents Chair in Law, The University of Texas
School of Law; David N. Saperstein, Adjunct Professor of Law;
Director, Religious Action, Center of Reform Judaism,
Georgetown University Law Center; Ira C. Lupu, Louis Harkey
Mayo Research Professor of Law, The George Washington
University School of Law. On April 24, 2001, the Subcommittee
on the Constitution held an oversight hearing on ``State and
Local Implementation of Existing Charitable Choice Programs.''
The following witnesses testified at the hearing: Dr. Amy
Sherman, Senior Fellow, Welfare Policy Center, Hudson
Institute; Reverend Donna Lawrence Jones, Cookman United
Methodist Church, Philadelphia, Pennsylvania; Charles Clingman,
Executive Director, Jireh Development Corporation, Cincinnati,
Ohio; Reverend J. Brent Walker, Executive Director, Baptist
Joint Committee on Public Affairs. On June 28, 2002, the
Judiciary Committee held a mark-up session on H.R. 7 and
reported the bill favorably as amended by the yeas and nays:
20-5. The Committee filed its report on July 12, 2001, H. Rept.
107-138, Part II. On July 19, 2001, the House passed H.R. 7 by
the yeas and nays: 233-198.
H.R. 169, the ``Notification and Federal Employee Antidiscrimination
and Retaliation Act of 2001''
Summary.--Chairman Sensenbrenner introduced H.R. 169, the
``Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2001,'' (No FEAR Act) on January 3, 2001.
The bill requires that Federal agencies be accountable for
violations of discrimination and whistleblower protection laws.
H.R. 169 provides Federal employees throughout the Federal
Government with additional on-the-job protection from illegal
discrimination, retaliation, and other mistreatment by
deterring and punishing government misconduct toward them.
H.R. 169, the No FEAR Act, was in response to a year-long
congressional investigation under the direction of Chairman
Sensenbrenner as the Chairman of the Committee on Science of
civil rights violations at the Environmental Protection Agency
(EPA). When the EPA was questioned on its behavior, the agency
responded that it had a great diversity record. When questioned
about notifying employees of their rights under the various
whistleblower provisions, the EPA responded that it was only
required to notify the employees under one of the laws, not the
others. When asked how the agency pays for judgements and
settlements for discriminating or retaliating, the EPA
responded such payments were made of the general treasury--not
the Federal agencies. Following the hearings and the
investigation, Federal employees in other agencies began
contacting the Committee on Science with allegations of similar
problems. Immediately after the October 2000 hearing, Chairman
Sensenbrenner and Representatives Sheila Jackson Lee and Connie
Morella introduced the No FEAR Act to rectify the three
problems highlighted in the investigation. The bill was
reintroduced on the first day of the 107th Congress.
Legislative History.--On May 9, 2001, the Committee on the
Judiciary held a legislative hearing on H.R. 169, the No FEAR
Act. The four witnesses that testified were: Kweisi Mfume,
President & CEO of the National Association for the Advancement
of Colored People; J. Christopher Mihm, Director of Strategic
Issues for the General Accounting Office; Bobby L. Harnage,
Sr., National President of the American Federation of
Government Employees, AFL-CIO; and Marsha Coleman-Adebayo,
Ph.D, private citizen. The National Whistleblower Center also
provided written testimony to the Committee regarding the need
for the bill to protect whistleblowers. On May 23, 2001, the
Committee met in open session and ordered favorably reported
the bill, with an amendment in the nature of substitute, by
voice vote, a quorum being present. The bill was reported to
the House on June 14, 2001 (H. Rept. 107-101, Part I). On
October 2, 2001, the bill passed the House by a recorded vote
of 420 yeas to 0 nays (roll no. 360). On April 23, 2002, the
bill passed the Senate with amendments by unanimous consent. On
April 30, 2002, the House agreed to the Senate amendments by a
recorded vote of 412 yeas to 0 nays (roll no. 117). The
President signed the bill on May 15, 2002, and it became Public
Law 107-174.
H.R. 741, the ``Madrid Protocol Implementation Act''
Summary.--Introduced by Representative Howard Coble, H.R.
741 implements the Madrid Protocol, an international trademark
treaty. It makes the process of registering marks in other
countries more convenient and far less expensive for American
citizens and businesses.
Legislative History.--On March 8, 2001, the Committee met
in open session and ordered favorably reported H.R. 741 without
amendment, by voice vote. On March 13, 2001, the Committee
reported S. 741 to the House (H. Rept. 107-19). On March 14,
2001, the House passed H.R. 741 under suspension of the rules,
by voice vote. The provisions of H.R. 741 were later
incorporated into H.R. 2215, the ``21st Century Department of
Justice Appropriations Authorization Act,'' which is Public Law
107-273.
H.R. 802, the ``Public Safety Officer Medal of Valor Act of 2001''
Summary.--Representative Lamar Smith (R-TX) introduced H.R.
802, the ``Public Safety Officer Medal of Valor Act of 2001,''
on February 28, 2001. While law enforcement agencies at all
levels present their own awards and medals to those who
demonstrate bravery, the Federal Government has no medal in
recognition of acts of courage and valor demonstrated by public
safety officers. This bill establishes a national medal, to be
given by the President in the name of the United States
Congress, to public safety officers who display extraordinary
valor above and beyond the call of duty. The Public Safety
Medal of Valor will be the highest national award for valor by
a public safety officer. The Attorney General may select up to
five recipients of the medal each year. The legislation creates
a Medal of Valor Review Board, composed of members appointed by
Congress and the President, to make recommendations to the
Attorney General as to persons deserving of the medal. The
Board will be staffed by a new office within the Department of
Justice known as the National Medal of Valor Office.
Legislative History.--On March 8, 2001, the Committee met
in open session and ordered favorably reported the bill, H.R.
802, by voice vote, a quorum being present. The bill was
reported to the House on March 12, 2001 (H. Rept. 107-15). The
House passed the bill on March 22, 2001, by a recorded vote of
414 yeas to 0 nays (Roll no. 59). On May 14, 2001, the Senate
passed the bill by unanimous consent. The President signed the
bill on May 30, 2001, and it became Public Law 107-12.
H.R. 860, the ``Multidistrict, Multiparty, Multiforum Trial
Jurisdiction Act of 2001''
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 860 would allow a designated U.S.
district court (a so-called ``transferee'' court) under the
multidistrict litigation statute to retain jurisdiction over
referred cases arising from the same fact scenario for purposes
of determining liability and punitive damages, or to send them
back to the respective courts from which they were transferred.
In addition, the legislation would streamline the process by
which multidistrict litigation governing disasters are
adjudicated.
Legislative History.--On March 8, 2002, the Committee met
in open session and favorably reported H.R. 860 without
amendment, by voice vote. H.R. 860 was reported by the
Committee to the House on March 12, 2001 (H. Rept. 107-14). On
March 14, 2001, the House passed H.R. 860 under suspension of
the rules, by voice vote. The provisions of H.R. 860 were later
incorporated into H.R. 2215, the ``21st Century Department of
Justice Appropriations Authorization Act,'' which is Public Law
107-273.
H.R. 861, to make technical amendments to Section 10 of Title 9, United
States Code (Pub. L. No. 107-169)
Summary.--Title 9 of the United States Code pertains to
domestic and international arbitration law. Chapter 1 of title
9 contains the title's general provisions, including section
10. Subsection 10(a) enumerates the grounds for which a Federal
district court may vacate an arbitration award and authorizes
the court to order a rehearing, under certain circumstances. As
drafted, subsection 10(a) consists of five paragraphs, four of
which enumerate the grounds for vacating an arbitration award.
The fifth paragraph, however, is clearly intended to be a
separate provision of subsection 10(a) as it specifies the
basis of the court's authority to direct a rehearing by the
arbitrator.
H.R. 861 corrects this drafting error, which has existed
from the legislation's original enactment in 1925, by simply
converting the fifth paragraph into a separate subsection of
section 10, namely, subsection 10(b), and making conforming
grammatical and technical revisions to section 10. H.R. 861 is
identical to legislation introduced by Representative George W.
Gekas (R-PA) and passed by the House in the 105th and 106th
Congresses.
Legislative History.--Representative Gekas introduced H.R.
861 on March 6, 2001. Given the noncontroversial nature of H.R.
861 (for example, it has often been referred to as the ``Comma
Bill''), no hearings were held on this legislation and it was
retained by the Committee for its consideration. On March 8,
2001, the Committee ordered favorably reported the bill without
amendment by voice vote. Thereafter, the Committee filed its
report on March 12, 2001 as H. Rept. 107-16.
On March 14, 2001, the House passed the bill under the
suspension of the rules by a vote of 413 to 0. H.R. 861 was
received in the Senate on the following day and referred to the
Senate Committee on the Judiciary. Thereafter, the Senate
Judiciary Committee reported the bill without amendment and
without a written report on December 13, 2001. On April 18,
2002, the Senate passed H.R. 861 without amendment by unanimous
consent. The bill was thereafter signed into law on May 7, 2002
as Public Law 107-169.
HR. 1209, the ``Child Status Protection Act'' (Public Law 107-208)
Summary.--The Immigration and Nationality Act provides two
avenues for family-based immigrants to acquire permanent
resident status. Immediate relatives (spouses, unmarried
children under 21, and parents) of United States citizens may
receive such status without numerical limitation. Certain other
relatives of U.S. citizens (unmarried sons and daughters 21 or
over, married sons and daughters, and siblings) and of
permanent resident aliens (spouses, unmarried children under
21, unmarried sons and daughters 21 or over) may receive such
status as family-based preference immigrants, which are subject
to numerical limitations each year.
Under prior law, the date at which the age of an alien was
measured for purposes of eligibility for an immigrant visa was
the date the adjustment of status application filed on his or
her behalf was processed by INS, not the date that the
preceding immigrant visa petition was filed on their behalf.
With the INS taking up to 3 years to process applications,
aliens who were under 21 when their petitions were filed often
found themselves over 21 by the time their applications were
processed. When a child of a U.S. citizen ``ages out'' by
turning 21, the child automatically shifted from the immediate
relative category to the family first preference category. This
put the child at the end of long waiting list for a visa. H.R.
1209 provides that the determination of whether the unmarried
son or daughter of a citizen is considered a child (under 21)
is to be made using the alien's age as of the time an immigrant
visa petition is filed on his or her behalf.
This rule also applies: (1) when permanent resident parents
petition for immigrant visas for their sons and daughters and
later naturalize (making the sons and daughters potentially
eligible for immediate relative visas); and (2) when citizen
parents petition for immigrant visas for their married sons and
daughters, and the sons and daughters later divorce (making
them potentially eligible for immediate relative visas).
The Act also extends age-out protection to cover:
Children of Permanent Residents. When a child of a
permanent resident turns 21, he or she goes from the second
preference ``A'' waiting list to the second preference ``B''
waiting list, which is much longer.
Children of Family and Employer-Sponsored
Immigrants and Diversity Lottery Winners.When an alien receives
permanent residence as a preference-visa recipient or a winner of the
diversity lottery, a minor child receives permanent residence at the
same time. After the child turns 21, the parent has to apply for him or
her to be put on the second preference ``B'' waiting list.
Children of Asylees and Refugees. When an alien
receives asylum or is granted refugee status, a minor child
receives permanent residence at the same time as the parent.
After the child turns 21, the parent has to apply for him or
her to be put on the second preference ``B'' waiting list.
Finally, the Act fixes a troubling anomaly in the
immigration law. Under prior law, when a permanent resident
naturalized who had sponsored adult sons and daughters for
preference visas, they moved from the second preference ``B''
category (for the adult sons and daughters of permanent
residents) to the first preference category (for the adult sons
and daughters of citizens). Normally, the wait for a first
preference visa is much shorter than the wait for a second
preference ``B'' visa. However, currently this is not the case
for the sons and daughters of immigrants from the Philippines.
The line actually gets longer for the sons and daughters when
the parent naturalizes. The Act ameliorates this impact by
allowing an adult son or daughter of a naturalized citizen who
has already been sponsored for permanent residence to choose
not to be transferred from the second preference ``B'' category
to the first preference category.
Legislative History.--On March 26, 2001, Subcommittee on
Immigration and Claims Chairman George Gekas introduced H.R.
1209. On April 4, 2001, the Judiciary Committee ordered H.R.
1209 reported by a voice vote. On April 20, 2001, the Judiciary
Committee reported H.R. 1209 (H. Rept. 107-45). On June 6,
2001, the House passed H.R. 1209 under suspension of the rules
by a vote of 416-0. On May 16, 2002, the Senate Judiciary
Committee ordered H.R. 1209 reported, as amended, and reported
H.R. 1209 without a written report. On June 13, 2002, the
Senate passed H.R. 1209, as amended, by unanimous consent. On
July 22, 2002, the House passed H.R. 1209, as amended, by the
Senate under suspension of the rules by a voice vote. On August
6, 2002, the President signed H.R. 1209 into law (Public Law
107-208).
H.R. 1701, the ``Consumer Rental Purchase Agreement Act''
Summary.--While H.R. 1701 establishes a ``Federal floor''
for consumer protection in rental-purchase transactions in many
states, it preempts the existing law regulating rent-to-own
transactions in Wisconsin, Minnesota, New Jersey, Vermont, and
North Carolina. Provisions dealing with civil liability,
government liability, and criminal liability were sequentially
referred to the Committee on the Judiciary.
Legislative History.--H.R. 1701 was introduced by the
Congressman Walter Jones on May 3, 2001 and ultimately garnered
83 cosponsors. H.R. 1701 was reported, as amended, by the
Committee on Financial Services on June 27, 2002. (House Report
No. 107-590 Part I) and provisions within the jurisdiction of
the Committee on the Judiciary were sequentially referred for a
time not later than September 9, 2002. The Committee on the
Judiciary conducted no hearings on H.R. 1701, and ordered
reported the bill, as amended, on September 5, 2002 by a vote
of 14 ayes to 12 nays. The Committee on the Judiciary reported
H.R. 1701 on September 9, 2002, (House Report No. 107-590 Part
II). On September 18, 2002, the House of Representatives passed
H.R. 1701 by a vote of 215 ayes to 201 nays. H.R. 1701 was
received in the Senate and referred to the Senate Committee on
Banking, Housing, and Urban Affairs, no legislative action was
taken.
H.R. 2068, to revise, codify, and enact without substantive change
certain general and permanent laws, related to public
buildings, property, and works, as title 40, United States
Code, ``Public Buildings, Property, and Works''
Summary.--H.R. 2068 was prepared by the Office of the Law
Revision Counsel as part of the program, required by 2 U.S.C.
285b, to prepare and submit to the Committee on the Judiciary,
one title at a time, a complete compilation, restatement, and
revision of the general and permanent laws of the United
States. The bill makes no substantive change in existing law.
Rather, the bill removes ambiguities, contradictions, and other
imperfections from existing law and repeals obsolete,
superfluous, and superseded provisions.
H.R. 2068 was introduced on June 6, 2001, and referred to
the Committee on the Judiciary in accordance with clause
1(k)(16) of rule X of the Rules of the House of
Representatives. Upon introduction, the bill was circulated for
comment to interested parties including committees of Congress
and agencies and departments of the Government. The Office of
the Law Revision Counsel reviewed and considered all comments,
contacting parties to resolve outstanding questions. Some
comments, suggesting substantive changes, could not be
incorporated in the restatement because this bill makes no
substantive change in existing law. Other comments, proposing
changes to improve organization and clarity, were incorporated
in the restatement. The Office of the Law Revision Counsel has
prepared an amendment in the nature of a substitute which
reflects the changes resulting from the review and comment
process.
Legislative History.--Chairman Sensenbrenner introduced
H.R. 2068 on June 6, 2001, and it was referred to the
Committee. On May 8, 2002, the Committee ordered reported H.R.
2068, with an amendment, by voice vote. On June 11, 2002, the
House passed amended H.R. 2068, by a voice vote. On August 1,
2002, the Senate passed H.R. 2068, without amendment by
unanimous consent. H.R. 2068 was signed by the President on
August 21, 2002, and became Public Law 107-217.
H.R. 2137, the ``Criminal Law Technical Amendments Act of 2001''
Summary.--The last half of the 20th century saw an
explosion of federal criminal statutes. According to a study
conducted by the Task Force on Federalization of Criminal Law
of the Criminal Law Section of the American Bar Association,
``[m]ore than 40% of the federal criminal provisions enacted
since the Civil War have been enacted since 1970.'' This
explosion of lawmaking has resulted in numerous technical
mistakes which litter the criminal code. This legislation
corrects those mistakes.
H.R. 2137, introduced by Chairman Sensenbrenner is
cosponsored by Reps. Conyers, Smith of Texas, and Scott of
Virginia. The bill makes over 60 clerical and technical
corrections to title 18and other criminal laws. The technical
amendments are related to criminal law and procedure. This bill makes
over 60 separate technical changes to various criminal statutes by
correcting missing and incorrect words, margins, punctuation,
redundancies, outmoded fine amounts, cross references, and table of
sections. These amendments resulted from suggestions and extensive
consultation between the majority and minority and the Office of
Legislative Counsel and the Office of Law Revision Counsel.
Legislative History.--Chairman Sensenbrenner introduced
H.R. 2137 on June 12, 2001, and it was referred to the
Committee. On June 26, 2001, the Committee conducted a markup
session on H.R. 2137. On June 26, 2001, the Committee ordered
H.R. 2137 reported by a voice vote. On July 10, 2001, the
Committee filed its report, H. Rept. 107-126. On July 24, 2001
the House passed amended, H.R. 2137 by a vote of 374-0. For
further action see H.R. 2215, which became Public law 107-273
on November 2, 2002.
H.R. 2215, the ``21st Century Department of Justice Appropriations
Authorization Act'' (Public Law Number 107-273)
Summary.--H.R. 2215, the ``21st Century Department of
Justice Appropriations Authorization Act,'' is a comprehensive
authorization of the United States Department of Justice
(``DOJ'' or the ``Department'').
The Department of Justice has not been formerly authorized
since 1979. Since that time, several attempts to authorize the
Department have failed either because of poor timing or because
the authorization bills were compromised by controversial
amendments. H.R. 2215 represents the first statutory
authorization of the Department and its various components in
nearly a quarter century. H.R. 2215 also contains several
additional legislative proposals, many of which passed the
House during the 107th Congress. Through authorization,
legislative committees establish management objectives and
provide expertise and guidance to the Appropriations Committee.
The following is a detailed summary of H.R. 2215, as signed
into law on November 2, 2002.
Section 101 authorizes appropriations to carry out the work
of the various components of the Department of Justice for
fiscal year 2002. Section 102 authorizes appropriations to
carry out the work of the various components of the Department
of Justice for fiscal year 2003. Section 103 authorizes the
Attorney General to transfer 200 additional Assistant U.S.
Attorneys from among the six litigating divisions at the
Justice Department's headquarters (Main Justice) in Washington,
D.C., to the various U.S. Attorneys offices around the country.
Section 104 adds 94 additional U.S. Attorneys to work with
State and local law enforcement for identification and
prosecution of violations of Federal firearms laws, especially
in and around schools.
Section 201 sets out the Attorney General's authority to
use appropriated funds to carry out his official duties.
Section 202 requires the Attorney General to submit a report to
Congress if: (1) any officer of the Department of Justice
establishes a formal or informal policy to refrain from
enforcing any provision of Federal law, or any rules,
regulations, programs or policies within the responsibility of
the Attorney General on the grounds that such a provision is
unconstitutional or within the jurisdiction of the judicial
branch: (2) the Attorney General decides to challenge the
constitutionality of any Federal law, rule, regulation, or
policy, or declines to defend the constitutionality of Federal
law rule, regulation, or policy; or (3) approves the settlement
of a claim against the United States that exceeds or likely to
exceed $2 million, or any agreement, consent decree or order
that provides injunctive or other nonmonetary relief that
exceeds 3 years. Section 203 amends the Omnibus Crime Control
and Safe Streets Act of 1968 to clarify that grants or
contracts to the Bureau of Justice Assistance Grant Programs
are used for law enforcement or law enforcement support.
Section 204 makes miscellaneous amendments to the Department.
Section 204 makes technical amendments to section 524(c) of
title 28, United States Codes, clarifies the Attorney General's
authority to transfer property of marginal value, and requires
the use of standard criteria for the purpose of categorizing
offenders, victims, actors, and those acted upon in any data,
records, or other information acquired, collected, classified,
preserved, or published by the Attorney General for any
statistical, research, or other aggregate reporting purpose. It
also requires the Attorney General to notify Congress in
writing of any civil asset forfeiture award greater than
$500,000. Section 205 requires the Attorney General to submit
to the Committees on the Judiciary and Appropriations of each
House of Congress a report: (1) identifying and describing
every grant, cooperative agreement that was made for which
additional or supplemental funds were provided in the
immediately preceding year; (2) identifying and reviewing every
Office of Justice Programs grant, cooperative agreement, or
programmatic contract. Section 206 provides clarifying
amendments to title 28, United States Code, relating to the
enforcement of Federal criminal law. Section 207 allows the
payment of a retention bonus and other extended assignment
incentives to retain law enforcement personnel in U.S.
territories, commonwealths and possessions.
Section 301 repeals open-ended authorization of
appropriations for the National Institute of Corrections and
United States Marshals Service. Section 302 makes several minor
clarifying amendments to title 18, United States Code. Section
303 requires the President (as he may judge necessary and
expedient) to submit to the House and Senate Committees on the
Judiciary proposed legislation authorizing appropriations for
the Department of Justice for fiscal years 2004 and 2005.
Section 304 directs the Attorney General to conduct a study
within six months of enactment to assess the number of untested
rape examination kits that currently exist nationwide and
submit the findings to Congress. Section 305 would require the
Attorney General to report to Congress on the use of DCS 1000
(Project Carnivore) under a title 18 U.S.C. 3123 order, which
is a pen register or trap and trap order and under a title 18
U.S.C. 2518 order, which is a wiretap order. Generally, law
enforcement will need a wiretap order, pen/trap register or
search warrant for surveillance, depending the information
sought. A pen register captures the outgoing numbers or email
addresses (the to's) and a trap and trace device captures the
incoming numbers or email addresses (the from's). A wiretap
allows law enforcement to intercept live communications. DCS
1000 is an electronic surveillance system used by the FBI to
filter and conduct electronic surveillance through wire tap,
pen register and trap and trace investigations for
communications occurring over computer networks. The system is
installed on the network of an Internet Service Provider to
monitor communications on the network and record messages sent
or received by a targeted user. The Federal Bureau of
Investigation (FBI) initially called the system ``Carnivore''
because the system could get to ``the meat'' of an enormous
quantity of data. The FBI has explained that the system
provides the FBI with the ability to intercept and collect only
the communications subject to the lawful order and ignore
communications the FBI is not authorized to intercept. The
reports will provide Congress with a better understanding of
the FBI's use of this system.
Section 306 requires the Attorney General to submit (within
six months of enactment of this Act) a report to the chairman
and ranking member of the House and Senate Committees on the
Judiciary, detailing the distribution and allocation of
appropriated funds, attorneys and per-attorney workloads, for
each Office of United States Attorney except those at the
Justice Management Division. Section 307 expands the purposes
for truth-in-sentencing and violent offender grants to allow
use of these funds to establish separate detention facilities,
correctional staff and an ombudsman for juvenile offenders.
Section 308 provides the Inspector General discretion to
investigate allegations of criminal wrongdoing or
administrative misconduct by an employee of the Department of
Justice, and allows the Inspector General to refer such
allegations to the Office of Professional Responsibility or the
internal affairs office of the appropriate component of the
Department of Justice. Also requires the Inspector General to
refer allegations of misconduct involving Department attorneys,
investigators, or law enforcement personnel (where the
allegations relate to official authority) to the Counsel,
Office of Professional Responsibility. Section 309 requires the
Inspector General to appoint an official from the IG's office
to supervise and coordinate independent oversight of programs
and operations of the FBI until September 30, 2004. Also
requires the Inspector General to submit to the chairman and
ranking member of the House and Senate Judiciary Committees an
oversight plan of the FBI within 30 days after enactment of
this Act. Section 310 authorizes $2 million to the Department
to increase the Office of Inspector General by 25 employees, to
fund expanded audit coverage of Office of Justice Programs
(OJP) and to conduct special reviews of efforts by the FBI to
implement recommendations of the Inspector General. This
section further authorizes $1.7 million to the FBI to increase
staffing of the Office of Professional Responsibility by 10
special agents and 4 full time support employees.
Section 311 requires the Attorney General to report to
Congress (not later than 45 days after the end of fiscal year
2002) on the number of investigations and prosecutions
involving Federal law enforcement officials, Federal judges and
other Federal officials in the FY 2002. Section 312 authorizes
eight new permanent judgeships as follows: five judgeships in
the Southern District of California, two judgeships in the
Western District of Texas, and one judgeship in the Western
District of North Carolina. It would also convert four
temporary judgeships to permanent judgeships--one each in the
Central District of Illinois, the Southern District of
Illinois, the Northern District of New York, and the Eastern
District of Virginia. Additionally, section 312 creates seven
new temporary judgeships, one each in the Northern District of
Alabama, the District of Arizona, the Central District of
California, the Southern District of Florida, the District of
New Mexico, the Western District of North Carolina, and the
Eastern District of Texas. Finally, it extends the temporary
judgeship in the Northern District of Ohio for five years.
Section 401 creates a Violence Against Women Office (VAWO)
in the Department of Justice, under the general authority of
the Attorney General. The Office shall be headed by a Director
who reports directly to the Attorney General and has final
authority over all grants, cooperative agreements and contracts
awarded by VAWO. The compromise version gives the Attorney
General the discretion to place VAWO wherever he deems
appropriate at the Department. Section 403 states that this
Title shall take effect 90 days after the date of enactment of
this amendment.
Section 1101 provides for an increase in funds available
for grants to the Boys and Girls Club for FY 2002-2005. The
funds will allow the Boys and Girls Clubs to increase outreach
efforts and increase membership nationwide.
Section 2001 provides that the short title of this Act
shall be the ``Drug Abuse Education, Prevention, and Treatment
Act of 2001.'' Section 2101 authorizes the use of Residential
Substance Abuse Treatment (RSAT) Grants for treatment and
sanctions both during incarceration and after release. Section
2102 would allow states to use RSAT funds to establish
nonresidential aftercare programs as well. Additionally, this
section requires that 10% of any funds under the RSAT program
shall be used to make grants to local correctional facilities.
Section 2103 allows revocation of probation or supervised
release if an individual tests positive for illegal controlled
substances more than 3 times over the course of 1 year. Section
2201 requires the National Institute of Justice to conduct a
study alternative drug-testing technologies and report its
conclusions to Congress within one year after enactment of the
Act. Section 2202 requires the President, in consultation with
the Attorney General, and Secretary of Health and Human
Services, to deliver a review of all Federal drug and substance
abuse treatment and prevention programs and to recommend to
Congress ways in which those programs could be streamlined,
consolidated, simplified, coordinated, and made more effective.
Section 2203 provides authority to expand research and
disciplinary trials with treatment centers of the National Drug
Abuse Treatment Clinical Trials Network.
Section 2301 reauthorizes the Drug Courts program. However,
this section improves the current system by consolidating all
drug court programs into one office and incorporating the
evaluation methods suggested by the General Accounting Office.
Section 2302 authorizes appropriations for the Drug Courts
Office to provide grants to states. Section 2303 requires the
General Accounting Office (GAO) to assess the effectiveness of
programs established with grants provided by the Drug Courts
office, including specific data to be evaluated.
Section 2411 establishes a Federal Reentry Center
Demonstration project, under which individualized plans will be
developed to reduce recidivism by offenders to be released from
the Federal prison population. Section 2421 authorizes the
Attorney General to make grants of up to $1 million to States,
Territories, and Indian tribes to establish demonstration
projects to promote successful reentry of criminal offenders.
Section 2501 amends the Controlled Substances Act. Current
law provides for a 3-year moratorium on a State's ability to
preclude physicians, by regulation, from prescribing schedule
III, IV, or IV drugs for maintenance or detoxification
treatment (21 U.S.C. 823(g)(2)(I)). The moratorium ends on
October 17, 2003. This section would prevent States from
precluding the use of such drugs for maintenance or
detoxification treatment for 3 years after the FDA approval of
any drug in these categories. Section 2502 transfers a
methamphetamine study requirement from the Institute of
Medicine of the National Academy of Sciences to the National
Institute on Drug Abuse. Section 2503 authorizes not less than
$5 million for FY03 for regional antidrug training by the DEA
for law enforcement entities in the South and Central Asia
region. Section 2504 authorizes $75,000 for FY03 and FY04 to
establish an exchange program for prosecutors, judges, and
policy makers of Thailand to observe U.S. Federal prosecutors.
Section 3001 raises the penalty for using physical force or
attempting physical force to tamper with a witness from a
maximum imprisonment of 10 years to a maximum imprisonment of
20 years. This section also adds a conspiracy section to the
tampering and retaliating against a witness statutes so that
whoever conspires to commit any of the offenses shall be
subject to the same penalties as those prescribed for the
offense the commission of which was the object of
theconspiracy. Section 3002 corrects certain statutes in title 18 and
title 28 to allow for both the imposition of a fine and a sentence of
imprisonment. Section 3003 allows Federal District Courts to reinstate
any charges that are dismissed as a result of a plea agreement if the
guilty plea is vacated on the motion of the defendant.
Section 3004 amends the statute that allows the United
States to appeal an order of a District Court dismissing an
indictment to clarify that any part of any count of the
dismissed indictment may be appealed. Section 3005 clarifies
that the longer periods of supervised release set forth in
title 21 for certain drug related crimes are not superseded by
the shorter terms set forth in the general supervised release
statute of title 18. Section 3006 clarifies that in certain
cases where the court has reduced the term of imprisonment
because the defendant is over the age of 70 and has served at
least 30 years, the court may impose a period of supervised
release.
Section 3007 clarifies that the need to provide victims
with restitution in a case is a factor to be considered by the
court in determining whether to include a term of supervised
release in a defendant's sentence.
Section 4001 makes over 60 separate technical changes to
various criminal statutes by correcting missing and incorrect
words, margins, punctuation, redundancies, outmoded fine
amounts, cross references, and other technical and clerical
errors. This section incorporates H.R. 2137, which was reported
from the House Judiciary Committee on July 10, 2001, and which
passed the House on July 23, 2001. Section 4003 makes
additional minor, technical corrections to Federal criminal
statutes. Section 4004 further repeals outdated provisions in
the criminal code. Section 4005 makes technical amendments to
the USA Patriot Act. Section 4006 makes technical corrections
to the International Convention for the Suppression of
Terrorist Bombings.
Section 5001 amends the Paul Coverdell National Forensic
Sciences Improvement Act of 2000 to permit local crime labs to
receive grants. Section 5002 authorizes necessary funds for
fiscal years 2002 through 2007 for the Center for Domestic
Preparedness of the Department of Justice; the Texas
Engineering Extension Service of Texas A&M University; the
Energetic Materials Research and Test Center of the New Mexico
Institute of Mining and Technology; the Academy of
Counterterrorist Education at Louisiana State University; the
National Exercise, Test, and Training Center of the Department
of Energy, located at the Nevada test site; the National Center
for the Study of Counter-Terrorism and Cyber-Crime at Norwich
University; and the Northeast Counterdrug Training Center at
Fort Indiantown Gap, Pennsylvania.
Section 11101 authorizes grants for the construction of
memorials to honor the men and women in the United States who
were killed or disabled while serving as law enforcement or
public safety officers. Section 11002 adds sections 1956 and
1957 of Title 18 (money laundering) to the list of ``banking
law violations'' where a prosecutor can disclose grand jury
information to a Federal or State financial institution
regulatory agency. Section 11003 expands the uses for grant
funds and changes the name from the Office of State and Local
Domestic Preparedness Support to the Office of Domestic
Preparedness. Section 11004 allows the Attorney General to
exchange NCIC information with the United States Sentencing
Commission. The U.S. Sentencing Commission has stated that this
provision is necessary to help complete a study on recidivism
rates that they have been charged by Congress to complete. The
Sentencing Commission is currently working with the FBI, which
supports this provision.
Section 11005 amends section 151 of the Foreign Relations
Act, fiscal years 1990 and 1991 (5 U.S.C. 5928 note), to
prohibit the ``Secretary of State from denying a request by the
Federal Bureau of Investigation (FBI) to authorize a danger pay
allowance under title 5 section 5928 for any employee of the
FBI. Under title 5 section 5928, ``an employee serving in a
foreign area may be granted a danger pay allowance on the basis
of civil insurrection, civil war, terrorism, or wartime
conditions which threaten physical harm or imminent danger to
the health or well-being of the employee.'' The note stated
that the Secretary of State may not deny a request by the Drug
Enforcement Administration. This section expands this note to
cover the FBI.
Section 11006 provides for increases in the tuition
allotments for police corps officers scholarship/reimbursement
from $10,000 to $13,333 per year. It reauthorizes the program
for four more years and increases the stipend for training from
$250 to $400 per week. It also eliminates the $10,000 direct
payment to participating police agencies. Section 11007 amends
the Radiation Exposure Compensation Act of 1990 (RECA). RECA
was enacted to affirm the responsibility of the Federal
Government to compensate individuals who were harmed by
radioactive fallout from atomic testing, or were harmed by
being a test site participant, or in the mining of the uranium
necessary for the production of nuclear weapons. This section
contains technical amendments to this Act.
Section 11008 incorporates S. 1099, the ``Federal Judiciary
Protection Act of 2001,'' which passed the Senate on December
20, 2001. Section 11008 enhances penalties for threatening or
attempting to impede Federal officials carrying out their
official duties. Section 11009 incorporates H.R. 1007 and S.
166, of the same name. S. 166 passed the Senate on May 14, 2001
and H.R. 1007 was reported favorably by the Judiciary Committee
on July 19, 2001. This section directs the United States
Sentencing Commission to review and amend the Federal
sentencing guidelines to provide an appropriate enhancement for
any crime of violence or drug trafficking in which the
defendant used body armor. This section also prohibits the
purchase, ownership, or possession of body armor by convicted
violent felons.
Section 11010 amends Federal law to clarify that a law
enforcement officer does not need to be present for a warrant
to be served or executed ``for service or execution of a search
warrant directed to a provider of electronic communication
service or remote computing service for records or other
information pertaining to a subscriber to or customer of such
service.'' Due to the nature of electronic communications, much
of this information is in the possession of Internet Provider
Services (ISPs) and law enforcement officials often serve such
warrants over facsimile machines and are not present at the
site of the ISP. The ISP accept theses warrants. In a recent
child pornography case, a Michigan Federal district court, in
U.S. v. Bach, however, ruled that this procedure was an
unreasonable search and seizure. The Court found that a police
officer had to be present at the time. This section makes it
clear that a police officer does not have to be present at the
time a warrant is served.
Section 11011 requires the Attorney General to conduct a
study of offenders with mental illness who are released from
prison or jail to determine how many such offenders qualify for
Medicaid, SSI, or SSDI, and other government aid. Section 11012
makes technical corrections and revisions to the Omnibus Crime
Control and Safe Streets Act. Section 11013 expands the use of
the Department's Three Percent Debt Collection Fund. This fund
was established by Section 108 of P.L. 103-121. The language of
that Act permits the Department to credit three percent of
allcivil debt collections resulting from Department debt collection
activities to the Working Capital Fund (the Three Percent Fund) and to
use those deposits to the Fund only for the costs of processing and
tracking civil debt collection litigation. Section 11014 reauthorizes
funds for the State Criminal Alien Assistance Program (SCAAP) for FY
2003 and 2004. Under this program, the Federal government provides
payments to states who house illegal or criminal aliens. Section 11015
reforms the Department of Justice's practice for using annuity brokers
in structured settlements in two ways. First, it directs the Attorney
General to establish a list of annuity brokers who meet minimum
qualifications for providing annuity brokerage services in connection
with structured settlements entered by the United States. Second, this
provision permits the United States Attorney (or his designee) involved
in any settlement negotiations (except those negotiated exclusively
through the Civil Division of the Department of Justice) to have the
exclusive authority to select an annuity broker from the list of such
brokers established by the Attorney General, provided that all
documents related to any settlement comply with Department of Justice
requirements.
Section 11016 amends the Immigration and Nationality Act to
specify that processing fees for certain entry documents shall
be deposited in the Land Border Inspection Fee Account as
offsetting receipts. Section 11017 extends the authority of the
U.S. Parole Commission to continue operations for an additional
three years. This section also requires the Attorney General to
prepare a report to Congress on the most efficient entity to
administer the District of Columbia supervised release program.
Section 11018 incorporates H.R. 4858, to ``Improve Access to
Physicians in Medically Underserved Areas,'' which was reported
by the House Judiciary Committee on June 24, 2002, and passed
the House on June 25, 2002. This section extends authorization
for a waiver to permit certain foreign medical doctors to
practice medicine in underserved areas without first leaving
the United States. Aliens who attend medical school in the
United States on ``J'' visas must leave the U.S. after school
to reside abroad for two years before they may practice
medicine in the U.S. In 1994, Congress created a waiver of the
two-year requirement for foreign doctors who commit to
practicing medicine for no less than three years in the
geographic area or areas which are designated by the Secretary
of Health and Human Services as having a shortage of health
care professionals. The waiver limited the number of foreign
doctors to 20 per state so that under-served areas in all
states receive doctors. Section 11018 increases the numerical
limitation on waivers to 30 per state. It also extends the
deadline for the authorization of the waiver until June 1,
2006.
Section 11019 restores two provisions of Rule 16 of the
Federal Rules of Criminal Procedure that were inadvertently
omitted when the Supreme Court transmitted a revision of the
Rules to Congress on April 29, 2002. Section 11020 incorporates
H.R. 860, the ``Multiparty, Multiforum Trial Jurisdiction Act
of 2002,'' which was reported by the House Judiciary Committee
on March 8, 2001 and passed the House on March 14, 2001. It
would streamline the process by which multidistrict litigation
governing disasters are adjudicated. Section 11021 authorizes
judges in the Southern District of Ohio to hold court in St.
Clairsville, Ohio. Section 11022 states that during any period
that the Federal Aviation Administration has in effect
restrictions on airline passengers to ensure their safety, a
person who purchases wine while visiting a winery can ship wine
to another state provided that the purchaser could have carried
or brought the wine into the state to which the wine is
shipped.
Section 11023 would require the FBI to implement the
Webster Commission Implementation Report. In response to the
Robert Hanssen espionage case, former Director Freeh of the FBI
asked Judge Webster to conduct a review of the FBI's internal
security functions and procedures and recommend improvements.
The March 31, 2002, Webster Report included strong criticism
and several recommendations to improve the security at the FBI.
This section would require the FBI to submit a plan for
implementing the recommendations of the Commission by no later
than six months after the enactment of this Act. Section 11024
authorizes the establishment of a police force within the FBI
to provide protection for FBI buildings and personnel in areas.
For example, FBI police provide security and protection at the
main headquarters building in Washington, D.C., the FBI academy
at Quantico, Virginia, and the Criminal Justice Information
Services Complex in Clarksburg, West Virginia. Additionally,
the FBI police will be authorized to provide these security
services at the FBI's larger field offices. Section 11025
requires the Director of the FBI to submit to Congress a report
on the information management and technology programs of the
FBI including recommendations for any legislation needed to
enhance the effective of such programs. The report is due no
later than nine months after the date of enactment of this Act.
Section 11026 requires the Comptroller General of the United
States to submit a report on the issue of how statistics are
reported and used by Federal law enforcement agencies. The
report is due no later than nine months after the date of
enactment of this Act.
Section 11027 authorizes $30 million over three years for
the Attorney General to make grants to State criminal justice,
Byrne, or other designated agencies to develop rural States'
capacity to assist local communities in the prevention and
reduction of crime, violence, and substance abuse. Section
11028 incorporates H.R. 1296 and S. 1140, the ``Motor Vehicle
Franchise Contract Arbitration Fairness Act of 2001,'' which
was reported by the Senate Judiciary Committee on October 31,
2001. It requires that whenever a motor vehicle franchise
contract provides for the use of arbitration to resolve a
controversy arising out of or relating to the contract,
arbitration may be used to settle the controversy only if both
parties consent in writing after such controversy arises. This
section also requires the arbitrator to provide the parties
with a written explanation of the factual and legal basis for
the decision. The section provides that its provisions shall
apply only to contracts entered into, modified, renewed or
extended after the date of enactment. This section does not
amend the Federal Arbitration Act.
Section 11029 permits the U.S. District Court for the
Southern District of Iowa to hold court in Rock Island,
Illinois, from January 1, 2003 through July 1, 2005, while the
Davenport, Iowa courthouse undergoes renovation. Section 11030
incorporates H.R. 2623, the ``Posthumous Citizenship
Restoration Act of 2001.'' In 1990, Congress passed the
Posthumous Citizenship for Active Duty Service Act (Pub. L. No.
101-249). This permitted the next-of-kin or another
representative to file a posthumous citizenship claim on behalf
of a United States non-citizen war veteran who died as a result
of military service to our nation. Currently, the request for
the posthumous citizenship must be filed no later than two
years after the date of enactment of the Act (March 6, 1990),
or two years after the date of the person's death, whichever
date is later.
This provision establishes an additional two-year period
for the family members of deceased non-citizen veterans to file
posthumous citizenship claims. This will give families who
missed the opportunity to file posthumous citizenship claims on
behalf of their deceased relatives when the law was enacted in
1990 another opportunity to file for citizenship. The provision
retains the two-year filing window for deaths which may occur
after the bill's grace period expires.
Section 11030A pertains the status for aliens with lengthy
adjudications. Prior to the enactment of the American
Competitiveness in the 21st Century Act of 2000 (Pub. L. 106-
313), an alienpossessing a H-1B nonimmigrant visa was
authorized work in the U.S. for up to six years. The Act provided for
an extension of H-1B status beyond 6 years in one year increments, as
long as an employment based immigrant visa petition or employment based
adjustment of status application has been filed and at least 365 days
have elapsed since the filing of the petition or a labor certification
application on the alien's behalf (In many instances, labor
certifications are required to be approved by the Department of Labor
before an employment based immigrant visa petition or adjustment of
status application can be filed.). This provision was added to the
Immigration and Nationality Act so that employers would not have to
dismiss H-1B workers after 6 years because their petitions for
immigrant visas or applications for adjustment of status were caught in
processing backlogs. Growing delays in the processing of labor
certifications have in certain instances prevented employers from
taking advantage of the 2000 Act, since their labor certifications had
not been approved in time for them to be able to file immigrant visa
petitions or adjustment of status applications by the required date.
Thus, this provision eliminates the requirement that an immigrant visa
petition or adjustment of status application have been filed. As long
as 365 days have elapsed since the filing of a labor certification
application (that is filed on behalf of or used by the alien) or an
immigrant visa petition, H-1B status can likewise be extended in one
year increments. This will be true even if the alien has since obtained
a non-H-1B nonimmigrant status. If an application for a labor
certification or adjustment of status or a petition for a immigrant
visa petition is denied, the extended H-1B status ends at that point.
Section 11030B amends the Immigration and Nationality Act
to permit a United States citizen grandparent or U.S. citizen
legal guardian to apply for naturalization on behalf of a child
born outside of the U.S., who has not acquired citizenship
automatically under section 320 of the INA, if the child's U.S.
citizen parent has died during the preceding five years.
Section 11031 sets forth new procedures for certain
investors to remove conditional resident status. They must meet
three conditions: (1) they filed an I-526 petition and had it
approved by the INS between January 1, 1995 and August 31,
1998; (2) they obtained conditional resident status; and (3)
before the date of enactment of this bill they filed an I-829
to remove their conditional resident status. Section 11032
provides similar procedures for EB-5 investors whose I-526
petitions were approved, but who never became conditional
residents because the INS never acted on their adjustment of
status applications or because they remained overseas. This
subsection states that the INS must approve applications under
this section within 180 days after enactment.
Section 11033 requires the INS to publish implementing
regulations within 120 days of enactment. Until regulations are
promulgated, the INS may not deny a pending I-829 petition or
adjustment of status application relating to an alien covered
under the terms of sections 11031 or 11032, or commence or
continue removal proceedings against affected EB-5 investors.
Section 11034 states that the terms used in this title shall
have the meaning given such terms in section 101(b) of the
Immigration and Nationality Act (``INA''), unless otherwise
provided. Section 11035 defines full-time employment for
purposes of section 203(b)(5) of the INA as a position
requiring at least 35 hours a week. Section 11034 amends
section 203(b)(5) of the INA to eliminate the ``establishment''
requirement for EB-5 investors. Instead of showing that they
have ``established'' a commercial enterprise, Investors need
only that they have ``invested'' in a commercial enterprise.
This section also amends section 216A of the INA to eliminate
the ``establishment'' requirement for EB-5 investors who have
filed I-829 petitions. They also must show that they have
``sustained'' their investment actions over the two-year
period. This section also clarifies that a ``commercial
enterprise'' may include a limited partnership. The changes
made by this section apply to I-526 and I-829 petitions pending
on or after the date of enactment.
Section 11037 amends section 610(a) of the 1993 Commerce,
State, Justice appropriations act to clarify that an EB-5
regional center can promote increased export sales, improved
regional productivity, job creation, or increased domestic
capital investment.
Section 11041 names this subtitle the ``Judicial
Improvements Act of 2002, which pertains to judicial discipline
procedures. It is based upon H.R. 3892 and S. 2713, of the same
name. H.R. 3892 passed the House on July 22, 2002. S. 2713 was
reported by the Senate Judiciary Committee on July 31, 2002.
These amendments ``tighten'' the existing statute that permits
individuals to file misconduct complaints against federal
judges and magistrates. As a result, the statute will be easier
to locate and use, and will clarify the responsibilities of the
chief judge in a given circuit who initially reviews a
complaint.
Section 11043 makes technical and conforming amendments to
title 28 relating to the judicial discipline amendment. Section
11044 states that if any part of this subtitle is found
unconstitutional, the remainder of the Act will not be
affected.
Section 11051 incorporates H.R. 2325, ``the Antitrust
Modernization Commission Act of 2001.'' Section 11052
establishes and states that the responsibilities of the
Commission are to examine whether the antitrust laws are in
need of modernization, to solicit the views of all concerned
parties, to evaluate proposals, and to prepare and submit a
report to Congress and the President. Section 11054 sets out
the membership of the Commission, which will have 12 members,
with four appointed by the President, two each by the majority
and minority leaders of the Senate, and two each by the Speaker
and minority leader of the House. The President's nominees will
include two members of the opposing party, to be chosen by that
party's Congressional leaders. The President will choose the
chair of the Commission, while the Congressional leaders from
the other party will choose the vice chair. Section 11055
describes the compensation of those who serve on the
Commission. Section 11056 states that the chairperson of the
Commission may appoint and terminate an executive director and
other necessary staff, and use experts and consultants. Section
11057 states that the Commission may hold such hearings and
take such testimony as it considers appropriate, may take
testimony under oath, and obtain information directly from any
executive agency or court. Section 11058 states that the
Commission shall submit a detailed report to Congress and the
President within three years after its first meeting, including
recommendations for legislative and administrative action the
Commission considers appropriate. Section 11059 states that the
Commission shall cease to exist 30 days after it submits its
report. Section 11060 authorizes $4 million to carry out this
subtitle.
Section 12101 provides that the short title of this
subtitle may be cited as the ``Consequences for Juvenile
Offenders Act of 2002.'' Section 12102 incorporates, H.R. 863,
the ``Consequences for Juvenile Offenders Act of 2002,'' into
the bill. H.R. 863 passed the House on October 16, 2001 by
voice vote. This subtitle incorporates H.R. 863 to authorize
the Department of Justice to make grants to States and local
governments to strengthen their juvenile justice systems. The
subtitle allows the States and localities flexibility in using
the grant funds and provides an illustrative list of possible
uses for the grant money. The grant money may be used for a
range of purposes from the hiring of more judges, prosecutors
and corrections personnel to supporting juvenile gun courts,
drug court programs and accountability-based school safety
programs. The flexibility allows States and localities to
strengthen their juvenile justicesystems in way that best meet
their needs. To be eligible for the grant funds, a State must have or
agree to implement a system of graduated sanctions for juvenile
offenders. Under the bill, the graduated sanctions system must ensure
that sanctions are imposed on juveniles offenders for every offense,
that the sanctions escalate in intensity with each subsequent more
serious offense, that the courts will be flexible in applying sanctions
that address the specific problems of the individuals offender, and
that consideration is given to public safety and victims of crime.
Additionally, this subtitle provides that a state or locality may still
qualify for a grant even if its system of graduated sanctions is
discretionary, allowing juvenile courts to not participate. If an
application's system is discretionary, however, then the non-
participating juvenile courts must report at the end of the year why
they did not impose graduated sanctions.
Section 12201 states that this subtitle may be cited as the
``Juvenile Justice and Delinquency Prevention Act of 2002.''
This section incorporates H.R. 1900, which passed the House on
September 20, 2002. Section 12202 states the findings of
Congress on the seriousness of juvenile crime. Section 12203
describes the purpose of this subsection: to assist State and
local governments in preventing acts of juvenile delinquency
and holding offenders accountable.
Section 12204 modifies and adds to the definitions under
the Juvenile Justice and Delinquency Act (JJDPA). Section 12205
modifies the duties of the Administrator of the Office of
Juvenile Justice and Delinquency Prevention. Section 12206
makes a technical correction to the JJDPA to comply with the
current title of the House Education and Workforce Committee.
Section 12207 amends section 207 of the JJDPA to require an
annual evaluation of the effectiveness of programs under this
title. Section 12208 makes technical changes to clarify the
process by which States and territories receive funding under
the Act. Section 12209 eliminates specific state plan
requirements and modify the list of activities eligible for
funding under the formula grant program. Section 12210 creates
a new Part C that establishes the Juvenile Delinquency
Prevention Block Grant and sets forth the allocation of funds,
state plan requirements and criteria and eligibility for state
and local grants. Section 12211 creates new authority for
research, training, technical assistance and information
dissemination regarding juvenile justice matters through the
Office of Juvenile Justice and Delinquency Prevention.
Section 12212 permits the administrator to award grants for
developing, testing, and demonstrating new initiatives and
programs for the prevention, control or reduction of juvenile
delinquency. Section 12213 authorizes such sums as may be
appropriate to carry out Title II of this act. Section 12214
modifies the administrator's authority to establish rules,
regulations, and procedures. Section 12215 amend section 299C
of the JJDPA to state, among other things, that no funds shall
be paid to a residential program unless the State in which it
is located has minimum licensing standards. Section 12216
amends the JJDPA by adding a requirement that funds not be used
to support the unsecured release of juveniles charged with a
violent crime.
Section 12217 amends the JJDPA by adding a new section to
clarify that nothing in Titles I or II (a) prevents otherwise
eligible organizations from receiving grants, or (b) should be
construed to modify or affect existing federal or state laws
related to collective bargaining rights of employees. Section
12218 permits the administrator to receive surplus Federal
property and lease it to eligible entities for use in juvenile
facilities or for delinquency prevention and treatment
activities. Section 12219 allows the administrator to issue
rules to carry out this title.
Section 12220 amends JJDPA to add a new section requiring
that materials funded by this act for the purpose of hate
crimes prevention shall not abridge or infringe upon the
constitutionally protected rights of free speech, religion, and
equal protection of juveniles or their parents or legal
guardians. Section 12221 sets forth technical and conforming
amendments. Section 12222 reauthorizes Title V of the JJDPA,
which provides for grants for delinquency prevention programs
and activities. Section 12223 establishes the effective date of
the act and states that amendments made by the act shall apply
to fiscal years beginning after September 30, 2002.
Section 12301 amends 18 U.S.C. Sec. 5037 to modify current
federal law regarding the sentencing of juvenile delinquents.
Specifically, it (1) provides authority to impose a term of
juvenile delinquency supervision to follow a term of official
detention, (2) provides authority to sanction a violation of
probation when a person adjudicated a juvenile delinquent is
over 21 at the time of the violation, and (3) makes technical
corrections in response to the Supreme Court's decision in
United States v. R.L.C.
Section 13101 states that the short title of this subtitle
is the ``Patent and Trademark Authorization Act of 2002.'' This
section incorporates H.R. 2047, which passed the House on
November 16, 2001, and S. 674, which passed the Senate on June
26, 2002. Section 13102 authorizes the Patent and Trademark
Office (PTO) to receive appropriations for fiscal years 2003
through 2008 in amounts equal to those fees collected by the
agency in each such fiscal year. The Director of the PTO must
submit estimates of the fees for the next fiscal year to the
Committees on Appropriations and Judiciary of the Senate and
the Committees on Appropriations and Judiciary of the House of
Representatives no later than February 15 each fiscal year.
Section 13103 requires the Director to develop a user-friendly
electronic system for the filing and processing patent and
trademark applications. The system must be completed within 3
years of the date of enactment of this legislation. This
section authorizes not more than $50,000,000 for each of fiscal
years 2003, 2004 and 2005 to carry out this Section. Section
13104 requires the Secretary of Commerce to submit annual
updates to the House and Senate Committees on the Judiciary on
the implementation of the ``21st Century Strategic Plan,''
which was issued on June 3, 2002, and any amendments to that
plan. Section 13105 modifies the sections of Title 35 of the
U.S. Code that instruct the Director to determine whether
substantial new questions of patentability are raised by
requests for prior art citations to the Office, ex parte
reexaminations of patents, or inter partes reexaminations of
patents.
Section 13106 amends 35 U.S.C. Section 315 by adding the
Court of Appeals for the Federal Circuit as a venue where a
third party requester may appeal, or be a party to an appeal
of, a final decision on patentability. Section 13201 may be
cited as the ``Intellectual Property and High Technology
Technical Amendments Act of 2002.'' This section incorporates
S. 320, of the same name, which passed the Senate on February
13, 2002, and the House on March 13, 2001.
Section 13202 of the bill clarifies the Patent Act's inter
partes reexamination section by stipulating that it will apply
to the proper parties and operate as envisioned. Section 13203
clarifies the status and authority of the Deputy Director of
the PTO and conforms the membership of the Trademark Trial and
Appeal Board and the Board of Patent Appeals and Interferences
to include the Deputy Director. Section 13204 is technical in
nature and clarifies the effective date of international
applications which may qualify for the provisional rights based
on early publication. Section 13205 contains a safeguard that
the PTO will only rely on information published in English in
patent applications as it makes the essential determination of
novelty during the examination of a patent application. This
limits the evidence from foreignapplications that may be
considered ``prior art'' and could affect patentability. This is an
important safeguard for independent inventors and small American
businesses that do not have access to expensive translation services
and the foreign patent offices.
Section 13206 contains a series of highly technical
clerical amendments developed by the Office of Legislative
Counsel upon its own initiative. Section 13207 makes technical
corrections to Trademark Law by removing redundancies without
foreclosing remedies. Section 13208 corrects a clerical error
pertaining to the section of the law cited relating to the
adjustment of trademark fees and the consumer price index.
Section 13209 makes amendments to Title I of IPCORA to
eliminate existing ambiguities. Section 13210 makes several
technical amendments and revisions to Title 17. Section 13211
makes additional technical and conforming amendments.
Section 13301 amends the Copyright Act to encompass
performances and displays of copyrighted works in digital
distance education under appropriate circumstances. The section
expands the scope of works to which the amended section 110(2)
exemption applies to include performances of reasonable and
limited portions of works other than nondramatic literary and
musical works
Section 13401 incorporates the ``Madrid Protocol
Implementation Act.'' Section 13402 incorporates H.R. 741 (of
the same name), which passed the House on March 14, 2001. This
section streamlines the process by which holders of
applications or registrations before the Patent and Trademark
Office (PTO) may file an international application for
trademark protection at the PTO and requires the PTO Director
to transmit the application to the WIPO International Bureau.
Section 13403 states that the effective date of the act shall
commence on the date on which the Madrid Protocol enters into
force with respect to the United States or 1 year after the
date of enactment, whichever occurs later.
Section 14101 incorporates the ``Antitrust Technical
Corrections Act of 2001,'' which made minor antitrust-related
amendments. It is identical to H.R. 809 and S. 809. H.R. 809
was reported by the Judiciary Committee on March 12, 2001, and
passed the House on March 14, 2001. S. 809 was reported by the
Senate Judiciary Committee on March 15, 2001. Section 14102
amends the Panama Canal Act, which prohibits ships owned by
persons who are violating the antitrust laws from passing
through the Canal. Section 14103 establishes the effective
dates for these provisions.
Legislative History.--H.R. 2215 was introduced by Chairman
Sensenbrenner and Ranking Member Conyers on June 19, 2001.
Several Judiciary Committee Subcommittees conducted hearings on
this bill. The Committee's Subcommittee on Crime, Terrorism,
and Homeland Security conducted an oversight hearing on May 3,
2001 and received testimony from four witnesses: Louie
McKinney, Acting Director for the United States Marshals
Service; Donnie Marshall, Administrator of the Drug Enforcement
Administration; Thomas Pickard, Deputy Director for the Federal
Bureau of Investigation; and Kathleen Sawyer, Director of the
Federal Bureau of Prisons.
On May 9, 2001, the Subcommittee on Commercial and
Administrative Law conducted an oversight hearing and received
testimony from five witnesses: Mark Calloway, Director of the
Executive Office for the United States Attorneys; John Cruden,
Acting Assistant Attorney General for the Environment and
Natural Resources Division; Martha Davis, Acting Director of
the Executive Office for United States Trustees; Stuart
Schiffer, Acting Assistant Attorney General for the Civil
Division; Barbara Underwood; Acting Solicitor General of the
United States.
On May 15, 2001, the Subcommittee on Crime, Terrorism and
Homeland Security conducted a second oversight hearing and
received testimony from five witnesses: Michael Horowitz, Chief
of Staff of the Department's Criminal Division; Ralph Justus,
Acting Director of the Community Oriented Policing Services
Program (COPS); and Mary Leary, Acting Assistant Attorney
General for the Office of Justice Programs. Also on May 15,
2001, the Subcommittee on Immigration and Claims conducted an
oversight hearing and received testimony from five witnesses:
Roy Beck, Executive Director of Numbers USA.com; John Lacey,
Chairman of the Foreign Claims Settlement Commission; Peggy
Philbin, Acting Director for the Executive Office for
Immigration Review; Kevin Rooney, Acting Commissioner of the
Immigration and Naturalization Service (INS); and Bishop Thomas
G. Wenski, Auxiliary Bishop of Miami on behalf of National
Conference of Catholic Bishops' Committee on Migration. In
addition, Attorney General Ashcroft testified before the Full
Committee during a June 6, 2001, oversight hearing.
On Wednesday, June 20, 2001, the Committee reported H.R.
2215, as amended, by voice vote (H. Rept. 107-125). H.R. 2215
passed the House under suspension of the rules on July 23,
2002. On October 30, 2002, the bill was reported by the Senate
Judiciary Committee with an amendment in the nature of a
substitute. The Senate passed its amended version of the bill
on December 20, 2002. The bill then proceeded to conference.
Chairman Sensenbrenner, and Representatives Henry Hyde (R-IL);
George W. Gekas (R-PA); Howard Coble (R-NC); Lamar Smith (R-
TX); Elton Gallegly (R-CA); John Conyers (D-MI); Barney Frank
(D-MA); Bobby Scott (D-VA); and Tammy Baldwin (D-WI) were
appointed House Judiciary Committee conferees. In addition,
Representative Berman was appointed in lieu of Ms. Baldwin for
consideration of section 312 (Additional Federal Judgeships) of
the Senate amendment.
The House filed the Conference Report (H. Rept. 107-685) on
September 25, 2002. On September 26, 2002, the House agreed to
the Conference Report by a vote of 400-4. On October 3, 2002,
the Conference Report passed the Senate by voice vote. On
November 2, 2002, the bill was signed by President Bush and
became Public Law Number 107-273. On October 8, 2002, the house
passed H. Con. Res. 503 to correct the enrollment of the bill
H.R. 2215. The Senate agreed to H. Con. Res. 503 by Unanimous
Consent on October 17, 2002.
H.R. 2458, the E-Government Act of 2002
Summary.--H.R. 2458 establishes the Office of Information
Policy in the Office of Management and Budget (OMB) to be
administered by a Federal Chief Information Officer who shall
provide direction, coordination, and oversight of the
development, application, and management of information
resources by the government. H.R. 2458 establishes an E-
government Fund in the Treasury to be used to fund interagency
information technology projects and other innovative uses of
information technology. H.R. 2458 also establishes an online
federal telephone directory, an online national Library, and an
individual Federal court websites. Lastly the legislation
requires the Chief Information Officer and each agency to
develop and post on the Internet a public domain directory of
government websites.
Legislative History.--H.R. 2458 was introduced on July 11,
2001 by Congressman Turner. On November 11, 2002 the Committee
on the Judiciary was granted a sequential referral for
consideration of provisions of the bill for a period not later
than November 14, 2002. On November 15, 2002 the bill passed
the House without objection. On November 15, 2002 the Senate
passed the bill without amendment by Unanimous Consent. On
Decmber 17, 2002 the President signed H.R. 2458 and the bill
became Public law 107-347.
H.R. 2882, to provide for the expedited payment of certain benefits for
a public safety officer who was killed or suffered a
catastrophic injury as a direct and proximate result of a
personal injury sustained in the line of duty in connection
with the terrorist attacks of September 11, 2001
Summary.--Under 42 U.S.C. Sec. 3796, the Bureau of Justice
Assistance (BJA) is allowed to determine whether or not a
public officer has died as a direct or proximate cause of a
personal injury sustained in the line of duty, and if such
criteria is met the Bureau is directed to pay a monetary
benefit to such officers surviving family members. After the
tragedy of September 11, H.R. 2882 was introduced as a way to
expedite the disbursement of those funds to the proper
beneficiaries as determined by the Public Safety Officer
Benefit Program outline. H.R. 2882 allowed that, upon
certification by a public agency that a public safety officer
employed by such agency was killed or suffered a catastrophic
injury as a direct and proximate result of a personal injury
sustained in the line of duty in connection with the rescue or
recovery efforts related to the terrorist attacks of September
11, 2001, the Director of the Bureau of Justice Assistance was
authorized to make payment to qualified beneficiaries, with
such payment to be made not later than 30 days after receipt of
such certification.
Legislative History.--On September 13, 2001, H.R. 2882 was
introduced by Representative Nadler of New York, and
subsequently referred to the Committee on the Judiciary. On
that same day the Committee discharged the bill to the House
without amendment. Also on that day, the House passed the bill
H.R. 2882, 413-0. On that same day, the Senate considered H.R.
2882 by unanimous consent and was subsequently signed into law
by the President on September 18, 2001, becoming Public Law No.
107-037.
H.R. 3162/H.R.2975, the ``Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001''
Summary of crime related provisions.--On September 11,
2001, terrorists attacked the United States and killed nearly
3,000 United States citizens. These attacks demonstrated the
immediate need for changes in U.S. Federal law to protect our
Nation, our liberty, our economy and our citizens' within our
own borders. The Committee immediately made the fight against
terrorism its top priority. In response to the attacks,
Chairman Sensenbrenner introduced H.R. 2975, ``the Provide
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001,'' (PATRIOT Act) on October 2, 2001. This bill was
similar to the Administration's proposal.
The legislation provided enhanced investigative tools and
improved information sharing for the law enforcement and
intelligence communities to combat terrorism and terrorist
related crimes. The enhanced law enforcement tools and
information sharing provisions assist in the prevention of
future terrorist activities and the preliminary acts and crimes
which further such activities. To protect the delicate balance
between privacy and protection, the bill provided additional
government reporting requirements, disciplinary actions for
abuse, and civil penalties. The bill also provided for
increased penalties for Federal terrorism offenses, eliminated
the statute of limitations, and provided for extended post-
incarceration supervised release for persons convicted of such
offenses. Additionally, the bill amended Federal money
laundering laws, added new terrorism offenses, updated the
bioterrorism laws, and adjusted existing federal criminal
procedures relating to terrorism. The bill also changed
immigration law to increase the Federal Government's ability to
prevent foreign terrorists from entering the U.S., to detain
suspected foreign terrorists and to deport foreign terrorists.
Summary of immigration related provisions.--Under Title IV,
subtitle A--Protecting the Northern Border, authorizes sums
necessary to triple the number of Border Patrol agents, INS
inspectors and Customs Service personnel, along with supporting
personnel and infrastructure, in each State (and port of entry)
along the northern border. It also authorizes $50 million to
both the INS and the Customs Service to make improvements in
technology for monitoring the northern border and acquiring
additional equipment at the northern border.
The subtitle requires that the Attorney General and the FBI
Director provide the INS and the State Department with access
to the criminal history record information contained in the
National Crime Information Center's Interstate Identification
Index and certain other files in the form of extracts for the
purpose of determining whether or not visa applicants or
applicants for admission have criminal history records. The
State Department can receive complete records upon submission
of fingerprints and any required fee. The Department shall
implement procedures for the taking of fingerprints and
establish conditions for use of information received from the
FBI to limit its redissemination, to ensure that it is used
solely for visa issuance and admittance decisions, to secure
its security and confidentiality and to protect any privacy
rights of the subjects of the information.
The Attorney General and the Secretary of State shall have
two years to develop and certify a technology standard that can
be used to verify the identity of persons applying for U.S.
visas or seeking to enter the U.S. in order to conduct
background checks and confirm identity. This shall be done
through the National Institute of Standards and Technology and
other federal law enforcement and intelligence agencies. The
technology standard shall be the technological basis for an
electronic database system to share law enforcement and
intelligence information necessary to confirm the identity of
persons seeking to enter the U.S. This system shall be readily
and easily accessible to consular officers responsible for the
issuance of visas, federal inspection agents at border
inspection points, and to law enforcement and intelligence
officers responsible for the investigation or identification of
aliens admitted to the U.S. Periodic reports shall be provided
to Congress regarding the technology standard and the database
system. Such sums as may be necessary are authorized to carry
out these provisions.
Subtitle B--Enhanced Immigration Provisions
Under prior law, an alien was inadmissible and deportable
for engaging in many terrorist activities only when the alien
had used explosives or firearms. The subtitle provides that an
alien using any weapon or dangerous device in terrorist
activity is inadmissible and deportable.
Under prior law, there was no general prohibition against
an alien contributing funds or other material support to a
terrorist organization, while there was a prohibition against
soliciting membership in or funds from others for a terrorist
organization. The subtitle provides that an alien is
inadmissible and deportable for contributing funds or other
material support to, or soliciting funds for, or membership in,
an organization that has been designated as a terrorist
organization by the Secretary of State, or for contributing to,
or soliciting in or for, any non-designated terrorist
organization, unless the alien can demonstrate that he did not
know and should not reasonably have known that the funds or
other material support or solicitation would further terrorist
activity. However, inadmissibility or deportability for
material support provided to an organization or individual who
has committed terrorist activity shall not apply if the
Attorney General or Secretary of State concludes that they
should not.
Prior immigration law did not define ``terrorist
organization'' for purposes of making an alien inadmissible and
deportable. The subtitle defines such an organization to
include (1) an organization so designated by the Secretary of
State (under a process provided for under prior and continuing
law); (2) an organization otherwise publically designated by
the Secretary of State as a terrorist organization, after
finding that the organization engages in certain forms of
terrorist activity or provides material support to further
terrorist activity; and (3) any group of two of more
individuals, whether organized or not, that engages in certain
forms of terrorist activity. The subtitle clarifies that the
Secretary of State can redesignate organizations as terrorist
organizations and can revoke designations and redesignations.
The subtitle provides that an alien is inadmissible if the
alien is a representative of a political, social, or other
similar group whose public endorsement of terrorism undermines
the effort of the U.S. to eliminate or reduce terrorism. Also
inadmissable will be an alien who has used his or her
prominence to endorse or espouse terrorism or to persuade
others to support terrorism, if this would undermine the
efforts of the U.S. to reduce or eliminate terrorism, and an
alien who is associated with a terrorist organization and
intends, while in the U.S., to engage in activities that could
endanger the welfare, safety, or security of the U.S. These
provisions are similar to the ``foreign policy'' ground of
inadmissibility, barring entry to an alien whose entry or
proposed activities in the U.S. would have potentially serious
adverse foreign policy consequences for the U.S.
The subtitle provides that the spouses or children of
aliens who are inadmissible for engaging in terrorist activity
within the last five years are also inadmissible (with certain
exceptions). The Secretary of State may determine that the
amendments made by the foregoing provisions of this subtitle
shall not apply with respect to actions by an alien taken
outside the U.S. before the date of enactment of this Act upon
the recommendation of a consular officer who has concluded that
there are not reasonable grounds to believe that the alien knew
or reasonably should have known that the actions would further
terrorist activity.
Under the prior regulatory regime, the INS could detain an
alien for 48 hours before making a decision as to charging the
alien with a crime or removable offense (except that in the
event of emergency or other extraordinary circumstance, an
additional reasonable time was allowed). The INS used this time
to establish an alien's true identity, to check domestic and
foreign databases for information about the alien, and to
liaise with law enforcement agencies.
This subtitle provides an alternative mechanism whereby the
Attorney General can certify an alien as a suspected terrorist
(or as having engaged in espionage and certain other offenses)
and detain him for up to seven days before placing him in
removal proceedings or charging him with a crime. If no charges
are filed by the end of this period, the alien must be
released. Otherwise, the Attorney General shall maintain
custody of the alien until the alien is removed from the U.S.
or found not to be inadmissible or deportable. The Attorney
General must submit a report to Congress on the use of these
provisions every six months.
Under this mechanism, the Attorney General or Deputy
Attorney General (with no further power of delegation) may
certify an alien if they have reasonable grounds for their
belief. The alien shall be maintained in custody irrespective
of any relief from removal granted the alien, until the
Attorney General determines that the alien no longer warrants
certification. However, if an alien detained pursuant to this
section is ordered removed as a terrorist (or on the other
grounds allowing certification) but has not been removed within
90 days and is unlikely to be removed in the reasonably
foreseeable future, the alien may only be detained for
additional periods in six month allotments if the Attorney
General demonstrates that release will threaten the national
security of the U.S. or the safety of the community or of any
person.
The Attorney General shall review his certification of an
alien every six months. If the Attorney General determines in
his discretion that the certification should be revoked, the
alien may be released on such conditions as the Attorney
General deems appropriate. The alien may request each six
months in writing that the Attorney General reconsider the
certification and may submit documents or other evidence in
support of that request.
Judicial review as to certification or detention is limited
to habeas corpus review. A final order of any circuit or
district judge is subject to review on appeal only by the U.S.
Court of Appeals for the District of Columbia Circuit. The law
applied by the Supreme Court and the Court of Appeals for the
District of Columbia Circuit shall be regarded as the rule of
decision in all such habeas corpus proceedings. Habeas corpus
review shall include review of the merits of a decision to
certify an alien as a terrorist or to detain an alien despite
the fact that removal is unlikely in the reasonably foreseeable
future.
The subtitle provides that the Secretary of State may, on
the basis of reciprocity, provide to aforeign government
information in the State Department's visa lookout database and related
information with regard to individual aliens at any time on a case-by-
case basis for the purpose of preventing, investigating, or punishing
acts that would constitute crimes in the U.S., or with regard to any or
all aliens in the database pursuant to conditions the Secretary
establishes in an agreement with the foreign government in which that
government agrees to use such information only for such purposes or to
deny visas to person who would be inadmissible in the U.S.
The subtitle also states the sense of Congress of the need
to expedite implementation of the integrated entry and exit
data system established by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996.
The subtitle amends the foreign student tracking system
created by IIRIRA to clarify that the system applies to
educational institutions such as air flight schools, language
training schools, or vocational schools approved by the
Attorney General to accept foreign students under ``F'', ``J'',
or ``M'' student visas. The subtitle authorizes approximately
$37 million to fully implement the tracking system by January
1, 2003.
Finally, the subtitle advances the date by which aliens
wanting to be admitted through the visa waiver program must
have machine-readable passports to October 1, 2003. However,
between that date and the old deadline of October 1, 2007, the
Secretary of State may waive this requirement with respect to
aliens of particular countries if he determines that a country
is making progress toward making such passports generally
available and has taken appropriate measures to protect against
misuse of its passports that are not machine readable.
Subtitle C--Preservation of Immigration Benefits for
Victims of Terrorism
A number of aliens legally present in the United States
were likely victims of the terrorist attacks on the U.S. on
September 11, 2001, were the family members of victims, or were
caught up in the attacks' aftermath. This subtitle was designed
to make certain modifications to the immigration law to provide
humanitarian relief to these aliens. Most importantly, the
subtitle provides permanent resident status through the special
immigrant program to an alien who was the beneficiary of a
petition filed on or before September 11 to grant the alien
permanent residence as a family-sponsored or employer-sponsored
immigrant, or the beneficiary of an application for labor
certification filed on or before September 11, if the petition
or application would otherwise have been rendered null because
of the death or disability of the petitioner, applicant, or
beneficiary, or the loss of employment due to physical damage
of, or destruction of, the business of the petitioner or
applicant, as a direct result of the terrorist attacks on
September 11.
Another of the provisions provides for the extension of
status for aliens who were legally in a nonimmigrant status on
September 11 and were the spouses and children of aliens who
died as a direct result of the terrorist attacks, or who
themselves had been disabled as a direct result of the
terrorist attacks on September 11. The extension lasts until
the later of the date that his or her status normally would
have terminated or one year after the death or onset of
disability.
Legislative History.--On September 24, 2001, the Committee
on the Judiciary held one hearing on the Administration's
proposed legislation ``the Mobilization Against Terrorism Act
of 2001,'' which formed the basis of H.R. 2975, ``the Provide
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001,'' (PATRIOT Act). Testimony was received from four
witnesses, representing the Department of Justice. The
witnesses were: the Honorable John Aschroft, Attorney General;
Michael Chertoff, Assistant Attorney General for the Criminal
Division; Larry Thompson, Deputy Attorney General; and Viet
Dinh, the Assistant Attorney General for Legal Policy. On
October 3, 2001, the Committee met in open session and ordered
favorably reported the bill H.R. 2975, as amended, by a 36-0
vote, a quorum being present. The bill was reported to the
House on October 11, 2001 (H. Rept. 107-236). On October 12,
2001, Chairman Sensenbrenner introduced H.R. 3108, which was
incorporated as an amendment in the nature of a substitute into
H.R. 2975. On October 11, 2001, the Senate passed its version
of the bill, S. 1510, the ``Uniting and Strengthening America
Act of 2001,'' (U.S.A. Act). The House passed H.R. 2975, as
amended, on October 12, 2001, by a recorded vote (Roll No. 385)
of 337 yeas to 79 nays. After informal negotiations, the House
and Senate incorporated the two versions into H.R. 3162, the
``Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of
2001,'' (The U.S.A. Patriot Act). H.R. 3162 also incorporated
provisions of H.R. 3004, the ``Financial Anti-Terrorism Act,''
and H.R. 3160, the ``Bioterrorism Prevention Act of 2001.''
H.R. 3162 became Public Law 107-56 on 10/26/2001.
H.R. 3295, the ``Help America Vote Act of 2002'' (Public Law 107-252)
Summary.--Reports of problems in Florida and elsewhere
during the 2000 election raised concerns among the American
public about specific failures and the overall integrity of the
election system such as: voting fraud and irregularities;
problems with ballots from military and overseas voters; the
electoral college; and the effect of media projections of state
outcomes before the polls have closed. Previously obscure
details of voting and vote counting became the focus of public
attention. More than 80 bills and resolutions were introduced
in the 107th Congress to make broad-reaching or more limited
changes to the electoral system in the U.S. The House and
Senate each passed differing versions of election reform bills.
Subsequently, a House/Senate conference committee was convened
and resulted in passage of H.R. 3295, the ``Help America Vote
Act of 2002,'' in response to the concerns of Americans raised
by the 2000 Presidential elections. This legislation marked the
first significant reforms to our electoral system in the U.S.
since passage of the Voting Rights Act of 1964.
H.R. 3295 establishes a new federal commission to replace
the Office of Election Administration (OEA) of the Federal
Election Commission and also to perform some new functions.
Funding for the Commission is authorized for three fiscal years
and members are appointed by the President. It also establishes
two new boards, with broad-based state and local membership, to
address various aspects of voting system standards. The main
duties of the Commission include administering the grant
programs, providing for testing and certification of voting
systems, studying elections issues,and issuing voluntary
guidelines for voting systems and other federally-mandated requirements
in the bill. The Commission will not have any new rule-making
authority.
H.R. 3295 provides formula grants to replace punchcard
systems, lever voting machines, and other general election
administration improvements. With respect to voting systems and
technology, H.R. 3295 requires voters be provided with an
opportunity to correct errors and sets minimum requirements for
voting systems to assure voting machinery meets minimum error
rates.
H.R. 3295 also provides grants to states to help ensure the
disabled have access to the polling place and that the voting
systems are fully accessible to those with disabilities.
The final agreement also contains new anti-vote fraud
provisions, including the following: (1) states are now
required to maintain a computerized statewide voter
registration list; (2) voter registration applicants must
specifically affirm their American citizenship; (3) new voters
who register by mail must provide proof of identity at some
point in the process; \38\ (4) it is now a federal crime to
conspire to commit voter fraud; (5) voters who do not appear on
a registration list must be allowed to cast a provisional
ballot, however, those ballots will be held and counted
separately until verified a legal vote; (6) if a poll is held
open beyond the time provided by state law, votes cast after
that time will be cast provisionally and held separately; and
(7) voters will be required to include either their driver's
license number or the last four digits of their social security
number on their voter registration form.
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\38\ Among the acceptable forms of identification are the
following: utility bill, government check, bank statement, or driver's
license. In lieu of the individual providing proof of identity, states
may also electronically verify an individual's identity against
existing state databases.
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And finally, H.R. 3295 leaves the specific methods of
implementing the requirements to the discretion of the states
but requires the OEA develop voluntary guidance to help states
meet the requirements. In addition, states must establish
administrative procedures to receive and act on complaints with
regard to violations of the requirements set out in the Act.
The Senate amendment sections within the Judiciary
Committee's jurisdiction
Both the House and Senate versions of the bill provided
grants to state and local governments for replacing and
improving registration and voting systems and improvements in
election administration. However, the method of administering
the grant programs were significantly different and of primary
concern to the Committee. Under the Senate-passed amendment,
Title II, parts A, B, and C, required the Civil Rights Division
of the DOJ to promulgate implementation guidelines for states
to meet federally mandated requirements for voting systems,
provisional voting, voting information requirements, and voter
registration. And, if states were not in compliance with such
guidelines, the Attorney General was then to bring a civil
action against any noncompliant states. The conference report
eliminates the role of the DOJ in administering the grant
programs.
Under the final version conference report, states will now
self-certify compliance with the Act, and if a state is found
to be noncompliant, the DOJ will enforce the Act. In addition,
section 311 of the Senate amendment was then eliminated in the
conference report due to the change in responsibility for
administration of the grant program from the Department of
Justice to the newly created Election Assistance Commission.
Section 101 of the Senate amendment describing Voting
Systems Standards became section 301 of the conference report.
The significant change to the original language was to Section
101(a)(4) referring to alternative language accessibility. The
conference report section 301(a)(4) made this provision
consistent with the already existing requirements of section
203 of the Voting Rights Act of 1965 (42 U.S.C. 1973aa-1a).
Section 102 of the Senate amendment providing for
provisional voting was kept essentially the same in the
conference report, however, one significant portion was added.
Section 302(c) added language that now requires that if polls
are held open after the poll-closing time as a result of a
court order, those votes will be held separately from other
provisional ballots.
Section 104 of the Senate amendment provided for
enforcement of Title I by the Assistant Attorney General of the
Civil Rights Division to bring any civil actions for
declaratory or injunctive relief. The role of the Civil Rights
Division was eliminated from the final version, and enforcement
power for the new law is found in Title IV and was given to the
Attorney General. In addition, the safe harbor provision which
protected states until January 1, 2010 from civil action for
noncompliance with certain provision of the Act, such as
provisional voting, was removed. This change now requires
states to comply with the provisional voting and computerized
statewide voter registration system by 2004, and to comply with
the voting equipment requirements by 2006.
Sections 501 (providing for the AG to review and report on
existing electoral fraud statutes and penalties and provide
such a report to Congress) and 502 (providing new criminal
penalties for conspiracy to deprive voters of a fair election
and providing false information when registering or voting) of
the Senate amendments remained in the final version of the
conference report.
The House bill sections within the Judiciary Committee's
jurisdiction
Section 216 of the House bill remained exactly the same in
the conference report. This section provides that 28 U.S.C.
chapters 161 and 171 apply with respect to the liability of the
Standards Board, and the Board of Advisors, such that there is
no protection from personal liability for criminal acts of a
member of the Standards Board or the Board of Advisors.
Section 221 of the House bill covered voluntary election
standards and made the Election Assistance Commission
responsible for making periodic studies available to the public
regarding election administration issues. The conference report
changes this section in several ways. First,it makes election
standards mandatory, and second, section 241(b)(5-13) makes the
language more explicit with respect to blind and visually impaired
voters, Native American or Alaska Native citizens, and other
information regarding voter fraud, intimidation and eligibility.
Title IV of the House bill became Section 601 of the
conference report and remained the same. Section 601 amends
Part B of subtitle II of 36 U.S.C. to establish the federally
chartered Help America Vote Foundation to mobilize secondary
school students to participate as nonpartisan poll workers and
assistants. It permits the Attorney General to bring a civil
action for relief for behavior by the foundation that is
inconsistent with the purposes designated in the Act.
Legislative History.--H.R. 3295, the ``Help America Vote
Act of 2001'' was introduced on November 14, 2002, after
several months of negotiation, by the Chairman and Ranking
Member of the House Administration Committee, Representatives
Bob Ney (R-OH) and Steny Hoyer (D-MD) (for themselves and 77
original cosponsors). A markup was held by the House
Administration Committee on November 15, 2001, and the bill was
reported favorably to the House by a unanimous vote of the
Committee. The House Administration Committee file H. Rept.
107-325, on December 12, 2001. The following committees
received referrals of H.R. 3295 at introduction: Armed
Services, Science, Government Reform and Judiciary. The other
three committees waived their jurisdiction, however, the
Judiciary Committee held a legislative hearing on H.R. 3295 on
December 5, 2001. The particular provisions of the original
bill that invoked Judiciary Committee jurisdiction included
certain provisions of Title II, which required statutory
compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973,
et. seq.), as well as Title V provisions authorizing the
Attorney General of the United States to bring a civil action
against any state that did not satisfy the requirements of the
title.
The witnesses testifying at the hearing included: Cleta
Mitchell, Election Law Attorney, Foley & Lardner; Philip D.
Zelikow, Executive Director, National Commission on Federal
Election Reform (The Ford/Carter Commission); John R. Lott Jr.,
Resident Scholar, American Enterprise Institute; Lloyd J.
Leonard, Legislative Director, The League of Women Voters; and
Jim Dickson, Vice President of Government Affairs, American
Association of People with Disabilities. Of significant concern
to the Committee was the issue of voter fraud, enforcement of
the proposed law by the Department of Justice (DOJ), and
enforcement of current laws involving voting rights and voting
fraud.
The Armed Services, Science, Government Reform, and
Judiciary Committees were discharged from further consideration
of the bill on December 10, 2001. H.R. 3295 passed in the House
on December 12, 2001 on a 362 to 63 vote and H.R. 3295 was
referred to the Senate for consideration. The Senate passed
H.R. 3295, amended, by a vote of 99 to 1 on April 11, 2002.
The Senate appointed conferees on May 1, 2002, and the
House appointed conferees on May 16, 2002. The following
Members from the Committee on the Judiciary were appointed as
conferees for the consideration of sections 216, 221, Title IV,
sections 502, and 503 of the House bill and sections 101, 102,
104, subtitles A, B and C of Title II, sections 311, 501 and
502 of the Senate amendments, and modifications committed to
conference: Chairman Sensenbrenner, Steve Chabot (R-OH), and
Ranking Member John Conyers (D-MI).
On July 9, 2002, the House voted to instruct conferees to
accept the Senate provision on standards for polling place
accessibility. Additional instructions urging conferees to
reach agreement by early October were passed on September 19,
September 26, and October 2, 2002. A conference agreement was
announced by the managers on October 4, 2002 and the conference
report, H. Rept. 107-730, was filed on October 8, 2002. It was
adopted by the House on October 10, 2002 on a vote of 357 to
48, and by the Senate on October 16, 2002, on a vote of 92 to
2. The President signed the bill into law on October 29, 2002
(P.L. 107-252).
H.R. 3525, the Enhanced Border Security and Visa Entry Reform Act of
2002 (Public Law 107-173)
Summary.--Since September 11, 2001, the nation has learned
how deeply vulnerable our immigration system is to exploitation
by aliens who wish to harm Americans. H.R. 3525 makes needed
changes to our immigration laws to fight terrorism and prevent
such exploitation.
H.R. 3525 authorizes an increase of INS inspectors and
support staff by at least 200 full-time employees over the
levels authorized in the USA-PATRIOT Act for fiscal years 2003-
06, and an increase of INS investigators and support staff by
the same amount. The Act also authorizes sums necessary to
increase the rate of pay for certain Border Patrol agents,
inspectors and other INS personnel and necessary to train INS
personnel in order to better protect U.S. borders and enforce
the Immigration and Nationality Act. The Act authorizes $150
million in order for the INS to improve border security
technology and to facilitate the flow of commerce and persons
at ports of entry. The Act authorizes funds for the INS and
State Department to improve facilities used by their employees.
The Act provides that the State Department's machine-
readable visa fee shall be the higher of $65 or the actual
cost, and that a $10 surcharge may be added for the issuance of
a machine-readable visa in a nonmachine-readable passport.
The Act requires the President to submit to Congress a
report identifying federal law enforcement and intelligence
community information needed by the State Department to screen
visa applicants and by the INS to screen applicants for
admission and to identify inadmissible and deportable aliens.
This report replaces one that had been required by the USA-
PATRIOT Act. Based on the findings of this report, the
President shall develop and implement a plan to require federal
law enforcement agencies and the intelligence community to
provide the necessary information to the State Department and
INS. This plan shall establish conditions on the use of this
information in order to limit its redissemination; to ensure
that it is used solely for its intended purposes; to secure its
accuracy, security and confidentiality; to protect privacy
rights of subjects; to provide for data integrity; and to
protect the sources and methods of intelligence information.
Misuse of informationcarries criminal penalties. Until the plan
is implemented, federal law enforcement agencies and the intelligence
community shall, to the extent practicable, share information with the
State Department and the INS relevant to the admissibility and
deportability of aliens.
The Act advances the dates established by the USA-PATRIOT
Act by which the Attorney General and the Secretary of State
must develop and certify a technology standard that can be used
to verify the identity of persons applying for U.S. visas.
By the time the President begins implementing the
information sharing plan, he must develop and implement an
interoperable electronic data system to provide immediate
access to information in databases of federal law enforcement
agencies and the intelligence community relevant to determining
whether to issue a visa or to determine the admissibility or
deportability of an alien. As part of this system, the INS must
fully integrate all its databases that process or collect
information on aliens. In developing the system, the President
shall consult with the National Institute of Standards and
Technology and other appropriate agencies. The technology
standard utilized shall be the one established by the USA-
PATRIOT Act. Information in the data system shall be readily
and easily accessible to consular officers, federal officials
responsible for determining the admissibility or deportability
of aliens, or any federal law enforcement or intelligence
officer responsible for the investigation or identification of
aliens. The President shall develop appropriate limitations on
access to the information. The system shall have the capacity
to compensate for different spelling of names in different
component databases. The system shall also be searchable in a
linguistically sensitive basis that accounts for variations in
name formats and transliterations and that incorporates
advanced linguistic and other methods. Linguistically sensitive
algorithms shall be developed and implemented within certain
time frames for no fewer than four high priority languages
selected by the Secretary of State. Such sums as are necessary
are authorized to carry out this system.
The President shall establish a Commission on Interoperable
Data Sharing to provide oversight of the data system and
monitor the associated privacy and other protections regarding
the data.
The Attorney General may hire and fix the compensation of
(up to the rate payable at level III of the Executive Schedule)
necessary scientific, technical, engineering, and other
analytical personnel for purposes of the development and
implementation of the system.
The Act requires the Secretary of State to provide to the
INS an electronic version of the visa file of each alien who
has been issued a visa so that it is available to INS
inspectors at ports of entry.
In developing the integrated entry and exit data system for
ports of entry required by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, as amended, the Attorney
General and the Secretary of State shall use the technology
standard required under the USA-PATRIOT Act; establish a
database containing the arrival and departure data from
machine-readable visas, passports and other documents; and make
interoperable all security databases relevant to making
determinations of inadmissibility of aliens.
The Act requires that no later than October 26, 2004, the
Attorney General and the Secretary of State shall issue to
aliens only machine-readable, tamper-resistant visas and other
travel documents that use biometric identifiers, employing the
technology standard established pursuant to the USA-PATRIOT
Act. Document authentication standards and biometric
identifiers standards are to be employed from among those
biometric identifiers recognized by domestic and international
standards organizations. By this same date, the Attorney
General shall install at all ports of entry equipment to allow
biometric comparison and authentication of all U.S. visas and
travel documents and passports issued by visa waiver program
countries, also relying on the USA-PATRIOT Act technology
standard. Also by this date, each country participating in the
visa waiver program shall certify, as a condition for
participation in the program, that it has a program to issue to
its nationals machine-readable passports that are tamper-
resistant and incorporate biometric and document
authentification identifiers that comply with International
Civil Aviation Organization standards. On or after the October
26, 2004, date, any alien applying for admission under the visa
waiver program must present a passport that meets these
requirements unless the passport was issued prior to that date.
Not later than 180 days after enactment, a report must be
submitted to Congress assessing the actions that will be
necessary to carry out these plans by the October 2004 date.
The Act authorizes such sums as may be necessary to carry out
these plans.
The Act requires the Secretary of State to maintain
terrorist lookout committees that meet at least monthly at each
U.S. mission in a foreign country to identify known or
potential terrorists and to ensure that such information is
brought to the attention of appropriate U.S. officials and
entered into the appropriate lookout databases. The Act
authorizes such sums as may be necessary to carry out these
plans.
The Secretary of State shall require that all consular
officers responsible for adjudicating visa applications first
receive specialized training in the effective screening of visa
applicants who pose a threat to the safety or security of the
U.S. Consular officers should also be provided with as much
nonclassified information as possible regarding such visa
applicants. The Act authorizes such sums as may be necessary to
carry out these plans.
The Act provides that no nonimmigrant visa may be issued to
any alien who is a national of a country that is a state
sponsor of international terrorism as determined by the
Secretary of State, unless the Secretary determines that such
alien does not pose a threat to the safety or national security
of the U.S.
The Act provides that a country can only be designated into
the visa waiver program if it certifies that it report to the
U.S. on a timely basis the theft of blank passports issued by
that country. The Attorney General must evaluate at least every
two years the effect of each participating country's continued
participation in the visa waiver program on the law enforcement
and security interests of the U.S. Also, if the Attorney
General and the Secretary of State jointly determine that a
participating country is not reporting the theft of blank
passports as required, the country shall beterminated from the
program. Prior to the admission of any alien under the visa waiver
program, the INS must determine that the alien does not appear on any
of the appropriate lookout databases available to immigration
inspectors.
Once the law enforcement and intelligence data system is
implemented, the Attorney General and the Secretary of State
shall enter into the system the corresponding identification
number for lost or stolen passports within 72 hours of
receiving notification. The identification numbers of U.S. and
foreign passports lost or stolen prior to the implementation of
the data system shall be entered to the extent practicable.
The Act requires the President to conduct a study of the
feasibility of establishing a North American National Security
Program to enhance the mutual security and safety of the U.S.,
Canada, and Mexico. The study shall consider the feasibility of
establishing a program enabling foreign national travelers to
the U.S. to submit voluntarily to a preclearance procedure and
of expanding reinspection facilities at foreign airports.
The Act requires that for each commercial vessel or
aircraft transporting any person to any U.S. seaport or airport
from abroad, the U.S. border officer at the port must be given
manifest information about each passenger, crew member, and
other occupant prior to its arrival. Similar departure
manifests must be given when leaving the U.S. (unless the
Attorney General authorizes their provision at a later date
regarding certain vessels and aircraft making regular trips to
the U.S.). Not later than January 1, 2003, manifest information
must be transmitted electronically. No clearance papers will be
granted until the manifest provisions are complied with. If a
carrier refuses or fails to provide manifest information, or
provides inaccurate or incomplete information, a fine of $1,000
per traveler will be assessed. The Attorney General may waive
the manifest provisions upon such circumstances and conditions
as he may specify. The Act requires that the President conduct
a study regarding the feasibility of extending the manifest
requirements to commercial land carriers.
The Act repeals the provision of immigration law requiring
that arriving passengers on scheduled airline flights have
their immigration processing completed within 45 minutes.
However, the INS should staff ports of entry with the goal of
meeting the 45 minute standard.
The Act allows U.S. border inspection agencies to conduct
joint U.S.-Canada inspections projects on the international
border between the two countries.
The Act modifies the electronic foreign student tracking
system so that it monitors and verifies: (1) the issuance of an
acceptance of a foreign student or an exchange visitor by an
educational institution; (2) the transmittal of the
documentation to the State Department; (3) the issuance of a
visa to such alien; (4) the admission into the U.S. of the
alien; (5) the notification of the institution that the alien
has been admitted to the U.S.; (6) the enrollment of the
student or participation in the exchange program; and (7) any
change in institution by the alien or termination of studies or
participation.
Institutions must report within 30 days of a deadline for
an alien registering for classes or commencing participation in
an exchange program any failure of the alien to enroll or to
commence participation. Not later than 120 days after the date
of enactment, and until the electronic foreign student tracking
system (as here amended) is fully implemented, a transitional
program must be in place to provide much of this information.
Not later than two years after enactment, and every two
years thereafter, the INS shall conduct a review of the
institutions certified to receive aliens under the student and
exchange visitor nonimmigrant visa programs. The review shall
determine the institutions' compliance with the record keeping
and reporting requirements of the visa programs and of the
electronic foreign student tracking system. Also, the Secretary
of State shall conduct similar reviews of entities designated
to sponsor exchange visitors. Material failure of an
institution or entity to comply shall result in suspension for
at least one year, or termination of the institution's approval
to accept students or to sponsor exchange visitors.
Finally, the Act extended to October 1, 2002, the deadline
by which only the biometric border crossing identification
cards required by the IIRIRA will be accepted. See discussion
of H.R. 2276.
Legislative History.--On December 19, 2001, Chairman F.
James Sensenbrenner introduced H.R. 3525. On December 19, 2001,
the House passed H.R. 3525 under suspension of the rules, as
amended, by a voice vote. On April 18, 2002, the Senate passed
H.R. 3525, as amended, by a vote of 97-0. On May 8, 2002, the
House passed H.R. 3525, as amended, by the Senate by a vote of
411-0 with 2 present. On May 14, 2002, the President signed
H.R. 3525 into law (Public Law No. 107-173). See H. Res. 365.
H.R. 3925, the ``Digital Tech Corps Act''
Summary.--Representative Tom Davis introduced H.R. 3925,
the ``Digital Tech Corps Act,'' on March 12, 2002. The bill
establishes an employee exchange program for information
technology management personnel between the Federal Government
and the private sector. H.R. 3925 provides Federal employees
throughout the Federal Government with additional on-the-job
training and education. Additionally, the bill will enhance the
ability of Federal agencies to attract and retain quality
information technology experts.
H.R. 3925, the ``Digital Tech Corps Act of 2002'', is in
response to a growing concern that the Federal Government is
unable to attract and retain quality information technology
experts. This problem is magnified with the increased use of
technology throughout the Federal Government. The Government
Accounting Office (GAO) found that the Federal Government faces
a substantial human capital shortage that is estimated to
intensify because 34 percent of the Federal workforce is
eligible to retire in the next 5 years. This shortfall is even
worse for the information technology fields. When a GAO
official testified before the Government Reform Committee last
summer on the earlier version of the bill, GAO explained that
``estimated that fifty percent of thegovernment's technology
workforce will be eligible to retire by 2006.'' \39\ Information
technology is one of the top priorities for the Nation in all respects
including national security, law enforcement and economic growth. This
legislation addressed the human resource issues.
---------------------------------------------------------------------------
\39\ H.R. Rep. No. 107-379, pt. 1, at 6.
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Legislative History.--The Committee on Government Reform
reported the bill, as amended, favorably on March 14, 2002. The
legislation was then referred to the Committees on the
Judiciary and Ways and Means for a 1-day referral on March 18,
2002 and that referral was extended to April 9, 2002. The
Committee on the Judiciary did not hold hearings on H.R. 3925,
the ``Digital Tech Corps Act of 2002.'' On March 20, 2002, the
Committee met in open session and ordered favorably reported
the bill, as amended, by voice vote, a quorum being present.
The bill was reported to the House on April 9, 2002 (H. Rept.
107-379, Part II). On April 10, 2002, the bill passed the House
by voice vote. No further action was taken on the bill, H.R.
3925, during the 107th Congress.
H.R. 5005/H.R. 5710, the ``Homeland Security Act of 2002'' (Public Law
Number 107-296)
Summary.--The United States faces increasingly diffuse
threats to its internal security. Given the overwhelming
superiority of U.S. military power, hostile nations and
terrorist organizations increasingly employ nonconventional
methods to threaten the American people and institutions. A
basic and fundamental role of the federal government under our
Constitution is to protect the American people from domestic
and foreign threats. Currently, the United States does not
possess a coordinated assessment, reduction, and response
program to protect the American homeland against these
increasingly diverse threats. Federal antiterrorism and
homeland defense responsibilities are dispersed over more than
22 departments and agencies throughout the federal
government.\40\
---------------------------------------------------------------------------
\40\ David. M. Walker, Comptroller General, General Accounting
Office, Combating Terrorism, Selected Challenges and Related
Recommendations, Report to Congressional Committees, September 20,
2001, GAO-01-822, at 5.
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The terrorist attacks on the World Trade Center and the
Pentagon took more than 3,000 lives, caused approximately $100
billion in economic losses, triggered U.S. military
intervention in Afghanistan to topple the Taliban regime, and
led to passage of an historic overhaul of federal law
enforcement policies and priorities culminating in the
enactment of the PATRIOT Act.\41\ The events of September 11th,
2001 will reverberate for many years, if not decades.\42\ These
events also lent impetus to House passage of legislation to
tighten security at America's airports,\43\ reform the
Immigration and Naturalization Service,\44\ and to enhance
border security.\45\
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\41\ Pub. L. No. 107-56, 115 Stat 272 (codified as amended in
scattered sections of 18 U.S.C.) (2001).
\42\ See Michael E. O'Hanlon, et. al, Protecting the American
Homeland, A Preliminary Analysis, The Brookings Institution, Brookings
Institution Press, 2002 at 1, visited June 23, 2002),
\43\ ``Air Transportation Safety and System Stabilization Act,''
Pub L. No. 107-42, 115 Stat. 230 (2001).
\44\ H.R. 3231, the ``Barbara Jordan Immigration Reform and
Accountability Act,'' 107th Congress (2002), (passed the House of
Representatives, April 25, 2002).
\45\ ``Enhanced Border Security and Visa Entry Reform Act of
2002,'' Pub. L. No. 107-173, 116 Stat 543 (2002).
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JUDICIARY COMMITTEE AND HOMELAND SECURITY
The creation of a Department of Homeland Security
overwhelmingly implicates the jurisdiction of the Committee on
the Judiciary. House Rule X provides the Judiciary Committee
with jurisdiction over ``subversive activities affecting the
internal security of the United States.'' \46\ The Committee
also has jurisdiction over civil and criminal judicial
proceedings.\47\ As a result, the Committee has jurisdiction
over federal law enforcement activities undertaken by a number
of federal departments and agencies, including the United
States Secret Service, Federal Bureau of Investigation, and the
Immigration and Naturalization Service of the Department of
Justice. The proposed Department's central, predominate purpose
is to assess, prevent, and respond to terrorism and other
threats affecting America's internal security. The Committee
also has exclusive jurisdiction over the nation's immigration
and naturalization laws,\48\ as well as the federal
administrative practice and procedure which governs federal
agencies.\49\ In addition, the proposed Department would
incorporate a number of federal agencies over which the
Judiciary Committee presently exercises exclusive legislative
and oversight responsibilities. The centrality of the newly
established Department's law enforcement mission necessitates
careful consideration by this Committee.
---------------------------------------------------------------------------
\46\ See House Rule X (k)(18), Rules of the House of
Representatives; see also Judy Schneider, House and Senate Committee
Organization and Jurisdiction: Considerations Related to Proposed
Department of Homeland Security, Congressional Research Service, June
10, 2002, RL31449, .
\47\ House Rule X (k)(1).
\48\ Id. at (k)(8).
\49\ Id. at (k)(2).
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Departmental components transferred by H.R. 5005 (as
introduced) to the Department of Homeland Security
within the jurisdiction of the Judiciary Committee
Immigration and Naturalization Service, including the
Border Patrol
Section 402 of H.R. 5005 would have transferred all
operational assets and control over the Immigration and
Naturalization Service to the new Department's Border and
Transportation Security Division. Transferring the Immigration
and Naturalization Service (INS) raises a number of critical
questions. The proposal vests the Secretary of the new
Department with authority to regulate the issuance of entry
visas at United States diplomatic or consular offices overseas
``through the authority of the Secretary of State.'' As a
result, the Department of State would continue to exercise
authority over the issuance of visas by United States embassies
and consulates.
United States Secret Service
Section 720 of H.R. 5005 transfers the United States Secret
Service to the new Department. However, the bill specifies that
the Secret Service shall be maintained as a distinct entity
with the new Department. The Committee on the Judiciary has
authorizing jurisdiction over the Service. The bill maintains
the present appointment of the Director of the Secret Service
by the President, but transfers operation control of the
Service from the Department of the Treasury. The measure
maintains the security role the Secret Service has begun to
provide at national security events, and retains the Service's
core mission of protecting the President and his family. Crime
prevention is central to the mission of the Secret Service.
Under applicable statutes, the Secret Service engages in
several law enforcement functions, such as anti-
counterfeiting,\50\ threats against the President or his
successors,\51\ credit card fraud,\52\ computer crimes,\53\ and
fraud against financial institutions.\54\ The Secret Service's
core law enforcement functions would be maintained under the
President's proposal.
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\50\ 18 U.S.C. Sec. Sec. 331-333 and 470-504 (2000).
\51\ Id. at Sec. 871.
\52\ Id. at Sec. 1029.
\53\ Id. at Sec. 1030.
\54\ Id. at Sec. 1344.
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National Infrastructure Protection Center, Federal Bureau
of Investigation
Section 202 of H.R. 5005 would have transferred operational
control of the National Infrastructure Protection Center (NIPC)
of the F.B.I. to the new Department. NIPC, was established in
1998 to ensure coordination among intergovernmental and private
organizations to protect against terrorist threats to critical
infrastructures.\55\ NIPC's mission is to serve as the federal
government's focal point for threat assessment, warning,
investigation, and response for threats or attacks against
critical facilities, including telecommunications, computer,
energy, banking and finance, water systems, government
operations, and emergency services. A significant part of its
mission involves establishing mechanisms to increase the
sharing of vulnerability and threat information between the
government and private industry.
---------------------------------------------------------------------------
\55\ See Federal Bureau of Investigation, National Infrastructure
Protection Center, [available at: http://www.fas.org/irp/agency/doj/
fbi/nipc/].
---------------------------------------------------------------------------
On May 22, 1998 President Clinton announced two new
directives designed to strengthen U.S. defenses against
terrorism and other unconventional threats: Presidential
Decision Directives (PDD) 62 and 63. PDD-62 highlights the
growing range of unconventional threats, including ``cyber-
terrorism'' and chemical, radiological, and biological weapons,
and creates a new and more systematic approach to defending
against them.\56\ PDD-63 focuses specifically on protecting the
Nation's critical infrastructures from both physical and
computer-based attacks.\57\ NIPC was established as a result of
this Directive.
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\56\ Presidential Decision Directive 62, Protection Against
Unconventional Threats to the Homeland and Americans Overseas, May 22,
1998.
\57\ Presidential Decision Directive 63, Critical Infrastructure
Protection, May 22, 1998.
---------------------------------------------------------------------------
Office for Domestic Preparedness of the Office of Justice
Programs, Department of Justice
The Office for Domestic Preparedness (ODP) was established
by the Attorney General in 1998 to develop and implement a
national program to enhance the capacity of state and local
agencies to respond to incidents of domestic terrorism,
particularly those involving weapons of mass destruction (WMD),
through coordinated training, equipment acquisition, technical
assistance, and support for Federal, state, and local
exercises.\58\ ODP fulfills this mission through a series of
program efforts responsive to the specific requirements of
state and local agencies; ODP works directly with emergency
responders and conducts assessments of state and local needs
and capabilities to guide the development and execution of
these programs. Assistance provided by ODP is directed at a
broad spectrum of state and local emergency responders,
including firefighters, emergency medical services, emergency
management agencies, law enforcement, and public officials. The
Office for Domestic Preparedness (ODP) (formerly The Office for
State & Local Domestic Preparedness) is the program office
within the Department of Justice (DOJ) responsible for
enhancing the capacity of state and local jurisdictions to
respond to, and mitigate the consequences of, incidents of
domestic terrorism.
---------------------------------------------------------------------------
\58\ See United States Department of Justice, Office of Justice
Programs, Office for Domestic Preparedness, Overview, [available at:
http://www.ojp.usdoj.gov/odp/about/ overview.htm].
---------------------------------------------------------------------------
National Domestic Preparedness Office, Federal Bureau of
Investigation
Former Attorney General Janet Reno created the National
Domestic Preparedness Office (NDPO) on October 16, 1998,
following a stakeholders conference that brought together
leading members of the emergency response community. At this
meeting, stakeholders recommended that all federal WMD
preparedness assistance programs be coordinated by a single
office. After consultation with the National Security Council,
the Federal Bureau of Investigation (FBI), and others, the
Attorney General directed the Bureau to lead an interagency
coordination effort now known as the NDPO.
The NDPO's federal partners include the Federal Emergency
Management Agency, FBI, Department of Energy, Environmental
Protection Agency, Department of Justice, Office for State and
Local Domestic Preparedness Support, Department of Health and
Human Services, and the National Guard Bureau. To coordinate
and facilitate all federal WMD efforts to assist state and
local emergency responders with planning, training, equipment,
exercise, and health and medical issues necessary to respond to
a WMD events. The NDPO's program areas encompass the six broad
areas of domestic preparedness requiring coordination and
assistance, including: Planning, Training, Exercises,
Equipment, Information Sharing, and Public Health and Medical
Services.
Additional federal law enforcement functions transferred by
H.R. 5005 to the Department of Homeland Security
United States Coast Guard
The President's proposal transfers the Coast Guard from the
Department of Transportation to the new Department of Homeland
Security. With approximately 43,600 full-time uniformed and
civilian personnel, the Coast Guard would be the largest
federal agency absorbed into the Department. The Coast Guard is
the federal government's principal maritime law-enforcement
agency. It has about 37,000 active-duty uniformed personnel,
about 6,000 civilian personnel, about 8,000 reserve uniformed
personnel, and an annual budget of $5.702 billion.\59\ It
performs a variety of missions that it groups into four major
roles--maritime law enforcement, maritime safety, marine
environmental protection, and national defense. The Coast Guard
also performs a variety of law enforcement functions, including
maritime narcotics enforcement.\60\
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\59\ United States Coast Guard, Overview, 1,5
LAMAR S. SMITH, Texas, Chairman
ROBERT C. SCOTT, Virginia MARK GREEN, Wisconsin, Vice Chair
ANTHONY D. WEINER, New York 2ARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas BOB GOODLATTE, Virginia
MARTIN T. MEEHAN, Massachusetts STEVE CHABOT, Ohio
WILLIAM D. DELAHUNT, Massachusetts BOB BARR, Georgia
ADAM B. SCHIFF, California 3A HUTCHINSON, Arkansas
4
RIC KELLER, Florida
MIKE PENCE, Indiana 6
----------
1 Subcommittee chairmanship and assignments approved January
31, 2001.
2 Anthony D. Weiner, New York, reassignment from the
Subcommittee on Crime to the Subcommittee on Courts, the Internet, and
Intellectual Property approved May 23, 2001.
3 Adam B. Schiff, California, assignment to the Subcommittee
approved May 23, 2001.
4 Asa Hutchinson, Arkansas, resigned from House effective
midnight August 6, 2001.
5 Subcommittee name change from ``Crime'' to ``Crime,
Terrorism, and Homeland Security'' approved March 20, 2002.
6 Mike Pence, Indiana, assignment to the Subcommittee
approved June 13, 2002.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 297
Legislation on which hearings were held........................... 21
Legislation reported favorably to the full Committee.............. 15
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 8
Legislation pending before the full Committee..................... 0
Legislation reported to the House................................. 24
Legislation discharged from the Committee......................... 6
Legislation pending in the House.................................. 6
Legislation passed by the House................................... 24
Legislation pending in the Senate................................. 20
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into Public Law............................... 3
Legislation enacted into Public Law as part of other legislation.. 6
Days of legislative hearings...................................... 18
Days of oversight hearings........................................ 14
Jurisdiction of the Subcommittee
The Subcommittee on Crime, Terrorism, and Homeland Security
has jurisdiction over the Federal Criminal Code, anti-terrorism
efforts, homeland security, espionage, sabotage, drug
enforcement, sentencing, parole and pardons, Federal Rules of
Criminal Procedure, prisons, law enforcement and anti-terrorism
assistance to state and local governments, and other
appropriate matters as referred by the Chairman, and relevant
oversight including the U.S. Coast Guard, Customs, U.S.
Marshals, Bureau of Prisons, the Department of Homeland
Security, the Drug Enforcement Administration, Bureau of
Alcohol, Tobacco and Firearms, the Federal Bureau of
Investigations, the Office of Justice Programs, and the
Criminal Division of Justice. This report summarizes the
highlights of the Subcommittee's activities during the 107th
Congress.
Legislative Activities
PROTECTING THE HOMELAND AND FIGHTING THE WAR ON TERRORISM
H.R. 3209, the ``Anti-Hoax Terrorism Act of 2001''
Summary.--Chairman Sensenbrenner, (R-WI) and Congressman
Lamar Smith (R-TX) introduced H.R. 3209, the ``Anti-Hoax
Terrorism Act of 2001,'' on November 1, 2001. This bill creates
criminal and civil penalties for persons engaging in any
conduct, with intent to convey false or misleading information,
under circumstances where the conveyed information may
reasonably be believed and where such information concerns an
activity which would constitute a violation of 18 U.S.C.
Sec. Sec. 175 (relating to biological weapons attacks), 229
(relating to chemical weapons attacks), 831 (nuclear attacks)
or 2332a (weapons of mass destruction attacks). Under current
law, it is a felony to perpetrate a hoax such as falsely
claiming there is a bomb on an airplane. It is also a felony to
communicate, in interstate commerce, threats of personal injury
to another. A gap exists, however, in the current law as it
does not address a hoax related to biological, chemical, or
nuclear dangers where there is no specific threat.
Because of the tragic September 11, 2001 attacks and the
October 2001 anthrax attacks, the public is alarmed and
appropriately reporting suspicious activity. Our Nation is on
high alert and our law enforcement cannot afford to be
distracted with hoaxes. Such hoaxes may not be designed to
influence public policy or governments, but are serious threats
to the public's safety on many levels and are their own form of
terrorism. H.R. 3209 makes it a felony to perpetrate a hoax
related to biological, chemical, nuclear, and weapons of mass
destruction attacks.
Legislative History.--On November 7, 2001, the Subcommittee
on Crime held one hearing on H.R. 3209, the ``Anti-Hoax
Terrorism Act of 2001.'' The two witnesses who testified were:
James F. Jarboe, Section Chief, Counterterrorism Division,
Domestic Terrorism, Federal Bureau of Investigation, and James
Reynolds, Chief, Terrorism and Violent Crime Section, Criminal
Division, U.S. Department of Justice. On November 14, 2001, the
Subcommittee met in open session and ordered favorably reported
the bill, H.R. 3209, as amended, by voice vote, a quorum being
present. On November 15, 2001, the Committee met in open
session and ordered favorably reported the bill with an
amendment by voice vote, a quorum being present. The bill was
reported to the House on November 29, 2001 (H. Rept. 107-306).
The House passed the bill on December 12, 2001, by a recorded
vote (roll no. 491) of 423 yeas to 0 nays. No further actionwas
taken on the bill, H.R. 3209, during the 107th Congress.
H.R. 3275, the implementation legislation for the International
Convention for the Suppression of Terrorist Bombings and for
the International Convention for the Suppression of the
Financing of Terrorism
Summary.--Representative Lamar Smith (R-TX) introduced H.R.
3275, the implementation legislation for the International
Convention for the Suppression of Terrorist Bombings and for
the International Convention for the Suppression of the
Financing of Terrorism on November 9, 2001. H.R. 3275 amends
title 18 of the United States Code to allow the U.S. to comply
with the conditions of the two Conventions.
Title I of the bill covers the International Convention for
the Suppression of Terrorist Bombings. The U.S. proposed the
International Convention for the Suppression of Terrorist
Bombings after the 1996 bombing of the U.S. military personnel
in Saudi Arabia. The U.S. signed the treaty on January 12,
1998, and transmitted the treaty on September 8, 1999, to the
Senate for its advice and consent to ratification. The
Convention entered into force internationally on May 23, 2001.
Treaty participants must either prosecute or extradite any
person within their jurisdiction who unlawfully and
intentionally delivers, places, discharges, or detonates an
explosive or other lethal device in, into, or against a place
of public use, a state or government facility, a public
transportation system, or an infrastructure facility. A Nation
is subject to these obligations without regard to the place
where the alleged act covered by the Convention took place.
Title II of the bill covers the International Convention
for the Suppression of Financing of Terrorism. The United
States signed this treaty on January 10, 2000, and transmitted
it to the Senate for its advice and consent to ratification on
October 12, 2000. This Convention imposes binding legal
obligations upon Nations either to prosecute or to extradite
any person within their jurisdiction who unlawfully and
willfully provides or collects funds with the intent to carry
out various terrorist activities. A Nation is subject to these
obligations without regard to the place where the alleged act
covered by the Convention took place.
On October 23, 2001, the Senate Committee on Foreign
Relations held a hearing on the ``terrorist bombings'' and the
``financing terrorism'' conventions. President Bush sent
Congress a legislative proposal to implement these two treaties
on October 26, 2001 (House Document 107-139). These treaties,
once ratified, expand the legal framework for international
cooperation in the investigation, prosecution, and extradition
of persons who engage in bombings and financially support
terrorist organizations to fill an important gap in
international law.
Legislative History.--On November 14, 2001, the
Subcommittee on Crime held a legislative hearing and markup on
H.R. 3275. The two witnesses who testified were: Sam Witten,
Deputy Legal Adviser, U.S. Department of State and Michael
Chertoff, Assistant Attorney General, Criminal Division, U.S.
Department of Justice. On November 14, 2001, the Subcommittee
on Crime met in open session and ordered favorably reported the
bill, H.R. 3275, by voice vote, a quorum being present. On
November 15, 2001, the Committee met in open session and
ordered favorably reported the bill, H.R. 3275, with amendment
by voice vote, a quorum being present. The bill was reported to
the House on November 29, 2001 (H. Rept. 107-307). On December
19, 2001, the bill passed the House by a recorded vote (roll
no. 501) of 381 yeas to 36 nays. On June 14, 2002, the bill
passed the Senate with an amendment by 83 yeas to 1 nay. On
June 18, 2002, the House agreed to the Senate amendment through
unanimous consent. On June 25, 2002, the President signed the
bill and it became Public Law 107-197.
H.R. 3482, the ``Cyber Security Enhancement Act of 2002''
Summary.--Representative Lamar Smith (R-TX) introduced H.R.
3482, the ``Cyber Security Enhancement Act of 2002,'' on
December 13, 2001. This legislation increases penalties for
cybercrimes to better reflect the seriousness of the crime;
enhances law enforcement efforts through better coordination;
and makes the Office of Science and Technology (OST) an
independent office to serve as the national focal point for law
enforcement science and technology efforts. OST will continue
to assist in the development and dissemination of law
enforcement technology, and to make technical assistance
available to Federal, state, and local law enforcement agencies
under the approval of the National Institute of Justice.
Terrorists and high-tech vandals use computers and other
technology to terrorize and harass businesses, private
citizens, and the government. For example, hackers invade the
privacy of citizens' homes to program personal computers into
``zombie computers.'' These zombie computers are then used for
the denial-of-service attacks that bombard a target site with
nonsense data. In February 2000, a denial-of-service attack on
Yahoo and other companies cost millions of dollars. These types
of attacks not only threaten our economy, but also our public
safety. An attack on an emergency service network could prevent
prompt responses to people in life threatening situations,
causing injury or death.
The Subcommittee on Crime, Terrorism, and Homeland Security
held a series of oversight hearings. On May 24, 2001, the
Subcommittee heard from three state and local officials on the
efforts and needs of the police, the prosecutors, and the state
governments to fight cyber crime. The witnesses were Michael T.
McCaul, the Texas Deputy Attorney General for Criminal Justice;
the Honorable Joseph I. Cassilly, the State's Attorney for
Harford County, Maryland and Chairman of the Cyber Crime
Committee for the National District Attorneys Association; and
Ronald R. Stevens, the Senior Investigator for the Bureau of
Criminal Investigation for the New York State Police, Computer
Crime Unit. All three testified that they need better
resources, training, standards, and equipment.
On June 12, 2001, officials from three federal agencies
testified before the Subcommittee. The witnesses were Michael
Chertoff, the Assistant Attorney General of the Criminal
Division for the Department of Justice; Thomas T. Kubic, the
Deputy Assistant Director of the Criminal Investigative
Division for the Federal Bureau of Investigation; and James A.
Savage, Jr., the Deputy Special Agent in Charge of the
Financial Crimes Division for United States Secret Service. The
witnesses agreed that Federal laws regarding the processes and
procedures to investigate and prosecute cybercrime were
outdated.
Alan Davidson, Associate Director at the Center for
Democracy and Technology (CDT), a Washington, DC, non-profit
group interested in civil liberties and human rights on the
Internet and other new digital media, also testified. He urged
the Subcommittee to consider privacy issues when drafting new
legislation and updating the law. At the February 12, 2002
legislative hearing on H.R. 3482, the ``Cyber Security
Enhancement Act of 2002,'' Mr. Davidson testified that the
``[Center for Democracy and Technology (CDT)] commends this
committee for holding this hearing, and for the relatively
measured approach taken in H.R. 3482. We agree that computer
crime and security is a serious problem that requires serious
government response.''
On June 14, 2001, representatives from the business
community testified about the problems they face with
cybercrime. The hearing focused on the efforts and concerns of
private industry with regard to this issue. The witnesses
agreed that sharing information was key to successfully address
and prevent cybercrime. Additionally, the witnesses urged
Congress to examine stricter penalties for cybercrime.
The three hearings highlighted the threat of cybercrime and
cyberterrorism against our citizens and our Nation and the
definitive need for legislation. Representative Lamar Smith (R-
TX) introduced H.R. 2915, ``the Public Safety and Cyber
Security Enhancement Act of 2002,'' on September 20, 2001, to
address the concerns brought forth in the hearings. Most of
H.R. 2915 was adopted as part of the U.S.A. Patriot Act,\1\ the
anti-terrorism bill, enacted on October 26, 2001, in response
to the September 11th attacks. H.R. 3482, ``the Cyber Security
Enhancement Act of 2002,'' responds to the previous hearings
and ongoing discussions with law enforcement, industry, and
academia representatives on the issues not covered in the
U.S.A. Patriot Act.
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\1\ Pub. L. No. 107-56
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Legislative History.--The Subcommittee on Crime held one
day of hearings on H.R. 3482 on February 12, 2002. The four
witnesses who testified were: John G. Malcolm, Deputy Assistant
Attorney General, Criminal Division of the Department of
Justice; Susan Kelley Koeppen, Corporate Attorney, Microsoft
Corporation; Clint Smith, Vice President and Chief Network
Counsel of WorldCom; and Alan Davidson, Staff Counsel, Center
for Democracy and Technology. On February 26, 2002, the
Subcommittee met in open session and ordered favorably reported
the bill, H.R. 3482, as amended, by voice vote, a quorum being
present. On May 8, 2002, the Committee met in open session and
ordered favorably reported the bill, H.R. 3482, as amended, by
voice vote, a quorum being present. The bill was reported to
the House on June 11, 2002 (H. Rept. 107-497). On July 15,
2002, the bill passed the House by a recorded vote (roll no.
296) of 385 yeas to 3 nays. The bill was incorporated into H.R.
5710, the Homeland Security Act of 2002. On November 13, 2002,
H.R. 5710 passed the House by a recorded vote (roll no. 477) of
299 yeas to 121 nays. On November 19, 2002, the Senate
incorporated H.R. 5710, as amended in the nature of a
substitute, and passed H.R. 5005 by 90 yeas to 9 nays. The
House agreed to the Senate amendment to H.R. 5005 on November
22, 2002. On November 25, 2002, the President signed the bill
and it became Public Law 107-296.
H.R. 4864, the ``Anti-Terrorism Explosives Act of 2002''
Summary.--Chairman Sensenbrenner (R-WI), Ranking Minority
Member John Conyers (D-MI), and Congressman Lamar Smith (R-TX)
introduced H.R. 4864, the ``Anti-Terrorism Explosives Act,'' on
June 5, 2002. This bill tightens security for explosive
materials and enhances security measures for purchasers and for
possessors of explosives. The legislation requires all persons
who wish to obtain explosives, even for limited use, to obtain
a permit.
Additionally, the legislation expands the list of persons
prohibited from receiving explosive materials. The provisions
of the bill conform with the list of persons restricted from
possessing firearms. The bill requires companies applying for a
permit ``to possess, use or transfer explosives'' to submit a
list to the Bureau of Alcohol, Tobacco and Firearms (ATF) of
all employees who have responsibility for, or will have
possession of, explosive materials to verify that these
individuals are not on the list of persons who are prohibited
from receiving or possessing explosives. Explosives
manufacturers are also required, under this legislation, to
provide a sample of their explosives to facilitate the tracking
of these materials for ATF. Finally, the bill expands Federal
jurisdiction over intentional fires or explosions occurring on
Federal property to include institutions or organizations
receiving Federal financial assistance.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held one hearing on H.R. 4864, the
``Antiterrorism Explosives Act of 2002,'' on June 11, 2002. The
three witnesses who testified were: The Honorable Kenneth
Lawson, Assistant Secretary of Enforcement, U.S. Department of
the Treasury; Bradley A. Buckles, Director, Bureau of Alcohol,
Tobacco and Firearms; and J. Christopher Ronay, President,
Institute of Makers of Explosives. On June 13, 2002, the
Subcommittee met in open session and ordered favorably reported
the bill, by voice vote, a quorum being present. On June 19,
2002, the Committee on the Judiciary met in open session and
ordered favorably reported the bill, as amended, by voice vote,
a quorum being present. The bill was reported to the House on
September 17, 2002 (H. Rept. 107-658). This bill was
incorporated with minor modifications into H.R. 5710, the
Homeland Security Act of 2002. On November 13, 2002, H.R. 5710
passed the House by a recorded vote (roll no. 477) of 299 yeas
to 121 nays. On November 19, 2002, the Senate incorporated H.R.
5710, as amended in the nature of a substitute and passed H.R.
5005 by 90 yeas to 9 nays. The House agreed to the Senate
amendment to H.R. 5005 on November 22, 2002. On November 25,
2002, the President signed the bill and it became Public Law
107-296.
H.R. 4598, the ``Homeland Security Information Sharing Act''
Summary.--Representatives Saxby Chambliss (R-GA), Chairman
Sensenbrenner (R-WI), Lamar Smith (R-TX) and Jane Harman, (D-
CA) introduced H.R. 4598, the ``Homeland Security Information
Sharing Act,'' on April 25, 2002. With the passage of the
U.S.A. Patriot Act,\2\ the 107th Congress began to break down
the barriers to facilitate information sharing between Federal
law enforcement officials and the intelligence community. H.R.
4598, the ``Homeland Security Information Sharing Act''
continues that effort. This bill requires the President to
create procedures to strip out classified information so that
state and local officials may receive the information without
clearances. The bill also incorporates H.R. 3285, a bill
introduced by Representative Anthony Weiner (D-NY) to remove
the barriers for state and local officials to share law
enforcement and intelligence information with Federal
officials.
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\2\ Pub. L. No. 107-56, 115 Stat. 242.
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After September 11, 2001, it was clear that there were
serious problems with communications between Federal law
enforcement agencies and the intelligence community. The lack
of information sharing was one factor that prevented the U.S.
intelligence community from appropriately responding to prior
warnings about September 11. The Administration and the
Congress took immediate action to address this problem by
drafting and passing the U.S.A. Patriot Act. The very purpose
of the Patriot Act was to improve information sharing for the
law enforcement and intelligence communities to combat
terrorism and terrorist-related crimes. The Patriot Act,
however, did not remove restrictions in sharing homeland
security information with states and localities. The country
needs a comprehensive information sharing system that includes
Federal, state and local law enforcement agencies. Accordingly,
H.R. 4598 directs the Administration to establish procedures to
share classified and unclassified, but sensitive, homeland
security information. The bill also extends provisions in the
U.S.A. Patriot Act to state and local officials to cover grand
jury information and law enforcement or intelligence
surveillance information.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held one day of hearings on H.R. 4598,
the ``Homeland Security Information Sharing Act,'' on June 4,
2002. The three witnesses who testified were: the Honorable
Saxby Chambliss (GA-08); the Honorable Jane Harman (CA-36); and
the Honorable John Cary Bittick, President of the National
Sheriff's Association. On June 4, 2002, the Subcommittee met in
open session and ordered favorably reported the bill, as
amended, by voice vote, a quorum being present. On June 13,
2002, the Committee met in open session and ordered favorably
reported the bill, H.R. 4598, with amendment, by voice vote, a
quorum being present. The bill was reported to the House on
June 25, 2002 (H. Rept. 107-534). The House passed the bill on
June 26, 2002, by a recorded vote (roll no. 258) of 422 yeas to
2 nays. The bill was incorporated into H.R. 5710, the Homeland
Security Act of 2002. On November 13, 2002, H.R. 5710 passed
the House by a recorded vote (roll no. 477) of 299 yeas to 121
nays. On November 19, 2002, the Senate incorporated H.R. 5710,
as amended in the nature of a substitute, and passed H.R. 5005
by 90 yeas to 9 nays. The House agreed to the Senate amendment
to H.R. 5005 on November 22, 2002. On November 25, 2002, the
President signed the bill and it became Public Law 107-296.
ANTI-DRUG EFFORTS
H.R. 4689, the ``Fairness in Drug Sentencing Act of 2002''
Summary.--Representative Lamar Smith (R-TX) introduced H.R.
4689, the ``Fairness in Drug Sentencing Act,'' on May 9, 2002.
This bill would disapprove an amendment to the Sentencing
Guidelines that the United States Sentencing Commission
submitted to Congress on May 1, 2002. The Sentencing
Commission's proposed amendment creates a drug quantity ``cap''
for those persons convicted of trafficking in large quantities
of drugs if those persons also qualify for a mitigating role
adjustment under the existing guidelines. For example, a person
convicted of trafficking 150 kilograms or more of cocaine who
qualifies for the mitigating role adjustment would have their
sentence reduced to the same level as someone who was convicted
of trafficking one-half (\1/2\) kilogram of cocaine. This would
result in the less culpable defendant (one who moved less
drugs) unfairly receiving a disproportionately longer sentence
than the more culpable defendant (one who moved more drugs).
The Sentencing Commission, in its ``Reason for Amendment,''
states that the current guidelines overstate the culpability of
certain drug offenders ``who perform relatively low level
trafficking functions, have little authority in the drug
trafficking organization, and have a lower degree of individual
culpability.'' However, such persons already receive an
individual downward adjustment to reflect these facts. This
amendment will be nothing short of a windfall for large drug
traffickers. It gives drug dealers the incentive to move more
drugs, rather than less, and is contrary to the consistent and
long-standing congressional intent that drug quantity form the
centerpiece of the guidelines in drug sentencing. The greater
the drug quantity involved in the trafficking operation, the
greater the harm to our Nation.
The intent of Congress has been clear that there be an
orderly gradation of sentences based primarily upon the
objective criterion of drug quantity. The proposed amendment to
``cap'' drug quantity is inconsistent with that congressional
intent and also with basic notions of fairness. The
``mitigating role'' participant in a given case whose lower
base offense level does not trigger the ``cap'' (because he
moved less drugs) will receive a disproportionately higher
sentence than the ``mitigating role'' participant in another
case whose level does trigger the ``cap'' (because he moved
more drugs).
Legislative History.--On May 14, 2002, the Subcommittee on
Crime, Terrorism, and Homeland Security held a legislative
hearing on H.R. 4689. The four witnesses who testified were:
Charles Tetzlaff, General Counsel, United States Sentencing
Commission; John Roth, Section Chief, Department of Justice;
the Honorable James M. Rosenbaum, Chief Judge, United States
District Court, Minneapolis, Minnesota; and William G. Otis,
former Assistant U.S. Attorney for the Eastern District of
Virginia. On May 14, 2002, the Subcommittee met in open session
and ordered favorably reported the bill, H.R. 4689, by voice
vote, a quorum being present. On September 10, 2001, the
Committee met in open session and ordered favorably reported
the bill, by voice vote, a quorum being present. The bill was
reported to the House on October 31, 2002 (H. Rept. 107-769).
No further action was taken on H.R. 4689 during the 107th
Congress.
H.R. 5334, the ``Hometown Heroes Survivors Benefits Act of 2002''
Summary.--H.R. 5334, the Hometown Heroes Survivors Benefits
Act of 2002, amends the Omnibus Crime Control and Safe Streets
Act of 1968 to provide that a public safety officer who dies as
the direct and proximate result of a heart attack or stroke
suffered while on duty or within 24 hours after participating
in a training exercise or responding to an emergency situation
shall be presumed to have died as the direct and proximate
result of a personal injury sustained in the line of duty, for
purposes of survivor benefits. H.R. 5334 also makes this
applicable to deaths occurring on or after January 1, 2002.
Legislative History.--On September 5, 2002 Congressman
Etheridge introduced H.R. 5334. OnOctober 9, 2002 the Judiciary
Committee ordered reported H.R. 5334 by voice vote. The Judiciary
Committee filed H. Rept. 107-786 on November 14, 2002. On November 15,
2002 H.R. 5334 passed the House of Representatives without objection.
On November 15, 2002, H.R. 5334 was received in the Senate. No further
action was taken on the bill.
H.R. 5519, the ``Reducing Americans' Vulnerability to Ecstasy Act of
2002,'' or the ``RAVE Act''
Summary.--H.R. 5519, the ``Reducing Americans Vulnerability
to Ecstasy Act,'' was introduced by Lamar Smith (R-TX) on
October 1, 2002. This legislation would amend the Controlled
Substances Act to prohibit knowingly leasing, renting, or
using, or intentionally profiting from, any place (as well as
opening, maintaining, leasing, or renting any place, as
provided under current law), whether permanently or
temporarily, for the purpose of manufacturing, storing,
distributing, or using a controlled substance. The bill
subjects violators to: (1) a civil penalty of the greater of
$250,000 or twice the gross receipts derived from each
violation; and (2) declaratory and injunctive remedies. H.R.
5519 also directs the U.S. Sentencing Commission to review and
consider amending the Federal sentencing guidelines for
offenses involving GHB, a popular club drug, to provide for
increased penalties. The bill authorizes appropriations to the
Drug Enforcement Administration for: (1) a Demand Reduction
Coordinator in each State; and (2) educating youth, parents,
and other interested adults regarding drugs associated with
raves.
Each year tens of thousands of young people are initiated
into the drug culture at ``rave'' parties or events (all-night,
alcohol-free dance parties typically featuring loud, pounding
dance music). The trafficking and use of ``club drugs'',
including Ecstasy or MDMA, Ketamine, Rohypnol, and GHB, is
deeply embedded in the rave culture. Ecstasy is the most
popular of the club drugs associated with raves. Thousands of
teenagers are treated for overdoses and Ecstasy-related health
problems in emergency rooms each year. The Drug Abuse Warning
Network reports that Ecstasy mentions in emergency visits grew
1,040 percent between 1994 and 1999. Ecstasy damages neurons in
the brain which contain serotonin, the chemical responsible for
mood, sleeping and eating habits, thinking processes,
aggressive behavior, sexual function, and sensitivity to pain.
According to the National Institute on Drug Abuse, this can
lead to long-term brain damage that is evident 6 to 7 years
after Ecstasy use.
Legislative History.--On October 10, 2002, the Subcommittee
on Crime, Terrorism, and Homeland Security held one legislative
hearing on this bill. The four witnesses who testified were:
The Honorable Asa Hutchinson, Administrator, Drug Enforcement
Administration; Andrea Craparotta, Investigator, Middlesex
County Prosecutor's Office, New Jersey; Judy Kreamer,
President, Educating Voices, Inc.; and Graham Boyd, Director,
Drug Policy Litigation Project, American Civil Liberties Union.
No further action was taken on H.R. 5519 during the 107th
Congress.
PROTECTING THE NATION'S MOST VULNERABLE
H.R. 863, the ``Consequences for Juvenile Offenders Act of 2001''
Summary.--As in the 106th, juvenile justice reform remained
a top priority for the Crime Subcommittee in the 107th
Congress. Representative Lamar Smith (R-TX) introduced H.R.
863, the ``Consequences for Juvenile Offenders Act of 2001,''
on March 6, 2001. The bill provides needed resources and
flexibility to state and local juvenile justice systems. The
legislation seeks to ensure meaningful, proportional
consequences for juvenile wrongdoing, starting with the first
offense, and intensifying with each subsequent more serious
offense. The bill ensures flexibility by providing that a wide
range of juvenile justice system activities and services can be
supported. From new detention facilities and hiring more judges
and probation officers, to juvenile gun courts, drug court
programs and accountability-based school safety programs--this
bill allows states and localities to strengthen their juvenile
justice systems as they see fit.
Specifically, H.R. 863 authorizes the Department of Justice
to make grants to states and local governments to strengthen
their juvenile justice systems. The bill allows the states and
localities flexibility in using the grant funds and provides an
illustrative list of possible uses for the grant money. To be
eligible for the grant funds, states must have in place or
agree to implement a system of graduated sanctions for juvenile
offenders within one year of applying for the funds. Under the
legislation, the graduated sanctions system will ensure that
the sanctions are imposed on juvenile offenders for every
offense, that the sanctions escalate in intensity with each
subsequent more serious offense, that the courts have
flexibility in applying the sanction to address the specific
problems of the individual offender, and that the courts
consider public safety and victims of crime when applying
sanctions. A state or locality can still qualify for a grant
even if its system of graduated sanctions is discretionary--not
requiring juvenile courts to participate. If the applicant has
a discretionary system, then the bill requires that a non-
participating juvenile court report at the end of the year why
it did not impose graduated sanctions.
Legislative History.--The Subcommittee on Crime held one
hearing on H.R. 863, the ``Consequences for Juvenile Offenders
Act of 2001,'' on March 8, 2001. The four witnesses who
testified were Steve Robinson, Executive Director, Texas Youth
Commission; the Honorable Jim Payne, Marion County, Indiana,
Juvenile Court; the Honorable Michael Anderegg, Marquette,
Michigan Juvenile Court; and Vincent N. Schiraldi, Center on
Juvenile and Criminal Justice. On March 21, 2001, the
Subcommittee met in open session and ordered favorably reported
the bill, H.R. 863, as amended, by voice vote, a quorum being
present. On March 28, 2001, the Committee met in open session
and ordered favorably reported the bill, H.R. 863, with
amendment by voice vote, a quorum being present. The bill was
reported to the House on April 20, 2001 (H. Rept. 107-46). On
October 16, 2001, the House passed the bill by voice vote. The
bill was incorporated into H.R. 2215, the ``21st Century
Department of Justice Appropriations Authorization Act,'' which
was signed by the President on November 2, 2002, and became
Public Law 107-273.
H.R. 1877, the ``Child Sex Crimes Wiretapping Act of 2002''
Summary.--Representative Nancy Johnson (R-CT) introduced
H.R. 1877, the ``Child Sex Crimes Wiretapping Act of 2002,'' on
May 16, 2001. This bill was previously introduced in the 106th
Congress as H.R. 3482. H.R. 1877 assists law enforcement
officials in investigating certain sex crimes that may involve
children. The bill adds four new wiretap predicates under
section 2516of title 18 that relate to sexual exploitation
crimes against children. This legislation amends 18 U.S.C. Sec. 2516 to
authorize the interception of wire, oral, or electronic communications
in the investigation of: (1) the selling and buying of a child for
sexual exploitation under 18 U.S.C. Sec. 2251A; (2) child pornography
under 18 U.S.C. Sec. 2252A; (3) the coercion and enticement to engage
in prostitution or other illegal sexual activity under 18 U.S.C.
Sec. 2422; and (4) the transportation of minors to engage in
prostitution or other illegal sexual activity and travel with intent to
engage in a sexual act with a juvenile under 18 U.S.C. Sec. 2423.
These four new authorities in no way change the strict
limitations on how and when wiretaps may be used. Congress
enacted Title III of the Omnibus Crime Control and Safe Streets
Act of 1968\3\ that outlines what is, and is not, permissible
with regard to wiretaps and electronic surveillance.\4\ Title
III restrictions go beyond Fourth Amendment constitutional
protections and include a statutory suppression rule to exclude
evidence that was collected in violation of Title III.\5\
Except under limited circumstances, it is unlawful to intercept
oral, wire, and electronic communications.\6\ Accordingly under
the Act, Federal and state law enforcement may use wiretaps and
electronic surveillance under strict limitations.\7\ Congress
created these procedures to allow limited law enforcement
access to private communications and communication records for
investigations while protecting Fourth Amendment rights. In
addition to these restrictions, Congress only provided
authority to use a wiretap in investigations of specifically
enumerated crimes, commonly called ``wiretap predicates.'' \8\
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\3\ Omnibus Crime Control and Safe Streets Act, 87 Stat. 197 (1968)
(codified as amended at 18 U.S.C. Sec. Sec. 2510-2520 (1970)).
\4\ Charles Doyle & Gina Stevens, Congressional Research Service,
Library of Congress, Privacy: An Overview of Federal Statutes Governing
Wiretapping and Electronic Eavesdropping, at 6 (2001).
\5\ 87 Stat. 197, 18 U.S.C. 2510-2520 (1970 ed.).
\6\ 18 U.S.C. Sec. 2511.
\7\ 18 U.S.C. Sec. 2518.
\8\ 18 U.S.C. Sec. 2516.
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Legislative History.--The Subcommittee on Crime held one
hearing on H.R. 1877, the ``Child Sex Crimes Wiretapping Act of
2001,'' on June 21, 2001. Testimony was received from the
Honorable Nancy Johnson (R-Conn.); Deputy Assistant Director
Francis A. Gallagher of Criminal Investigative Division of the
Federal Bureau of Investigation; and James Wardwell, Detective
Bureau of the New Britain Police Department, New Britain,
Connecticut. On June 21, 2001, the Subcommittee on Crime met in
open session and ordered favorably reported the bill, as
amended, by voice vote, a quorum being present. On April 24,
2002, the Committee met in open session and ordered favorably
reported the bill, H.R. 1877, by a recorded vote of 20-4, a
quorum being present. The bill was reported to the House on May
16, 2002 (H. Rept. 107-468). The House passed the bill on May
21, 2002, by a recorded vote of 396 yeas to 11 nays (roll no.
175). The bill was also incorporated into H.R. 5422, the
``Child Abduction Prevention Act.'' No further action was taken
on either H.R. 1877 or H.R. 5422 during the 107th Congress.
H.R. 4623, the ``Child Obscenity and Pornography Prevention Act of
2002''
Summary.--Representative Lamar Smith (R-TX) introduced H.R.
4623, the ``Child Obscenity and Pornography Prevention Act of
2002,'' on April 30, 2002, to address the April 16, 2002
Supreme Court decision in Ashcroft v. the Free Speech
Coalition.\9\ That decision held that two parts of the Federal
definition of child pornography in title 18 of the United
States Code were overbroad and unconstitutional. Those two
provisions are 18 U.S.C. Sec. 2256(8)(B), which defined child
pornography to include wholly computer generated pictures that
appear to be of a minor engaging in sexually explicit conduct,
and 18 U.S.C. Sec. 2256(8)(D), which defines child pornography
to include a visual depiction where it is advertised, promoted,
or presented, to convey the impression that the material
contains a visual depiction of a minor engaging in sexually
explicit conduct. This decision did not hold that all virtual
child pornography was protected by the First Amendment. The
result of this decision, however, is that the Country now faces
a proliferation of child pornography. At risk are the
prosecutions against child pornographers who are frequently
child molesters.\10\ In any criminal case, the prosecution must
prove beyond a reasonable doubt that a crime was committed. A
prosecutor would face an impossible burden if a distinction
must be proved between virtual child pornography, which may
include parts of real children or be completely generated by a
computer but indistinguishable from a real child, and child
pornography that depicts an actual child or part of an actual
child when the child is still identifiable.
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\9\ 122 S.Ct. 1389 (2002).
\10\ Andres E. Hernandex, Psy.D. Federal Bureau of Prisons', Self-
Reported Contact Sexual Offenses by Participants in the Federal Bureau
of Prisons' Sex Offender Treatment Program: Implications for Internet
Sex Offenders. (In November 2000, the Federal Bureau of Prisons
released a study on Internet sex offenders who used the Internet to
download, trade, and distribute child pornography as well as offenders
who lure children for sexual abuse and exploitation. The study examined
two groups: those convicted of sexual contact crimes against children
and those convicted of nonsexual contact crimes against children. The
nonsexual contact crimes consisted of those convicted under the child
pornography laws and those convicted of traveling to meet a child with
the intent to sexually exploit that child. Of the 90 subjects of the
study 66 were convicted of crimes that did not include sexual contact.
Out of the 66 who were convicted of non-contact crimes, 62 were still
related to the sexual exploitation of children through child
pornography or traveling to meet a child with the intent to sexually
abuse a child. Of the 62, 49 were convicted of child pornography
(trading or possessing child pornography) and 13 were convicted for
traveling to meet a child. None of those convicted were producers of
pornography. Of the 62 convictions for non-contact crimes against
children, 76 percent of offenders admitted to sexually abusing or
exploiting a child. These offenders admitted to an average of 30.5
victims per offender.)
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To ensure the continued protection of children from sexual
exploitation, this legislation addresses the concerns of the
Supreme Court by narrowing the definition of child pornography,
strengthening the existing affirmative defense, amending the
obscenity laws to address virtual and real child pornography
that involves visual depictions of pre-pubescent children,
establishing new offenses against pandering visual depictions
as child pornography, and creating newoffenses against
providing children obscene or pornographic material.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held two days of hearings on H.R. 4623.
The three witnesses who testified on May 1, 2002, were: Michael
J. Heimbach, Unit Chief, Crimes Against Children Unit, Federal
Bureau of Investigation; Ernie Allen, President and Chief
Executive Officer for the National Center for Missing &
Exploited Children; and Lt. Bill Walsh, with the Dallas
Internet Crimes Against Children Taskforce. At the May 9, 2002
hearing, Daniel Collins, Associate Deputy Attorney General,
Office of the Attorney General, U.S. Department of Justice
testified. On May 9, 2002, the Subcommittee met in open session
and ordered favorably reported the bill, H.R. 4623, as amended,
by voice vote, a quorum being present. On June 19, 2002, the
Committee met in open session and ordered favorably reported
the bill, H.R. 4623, with amendment by a recorded vote of 22 to
3, a quorum being present. The bill was reported to the House
on June 24, 2002 (H. Rept. 107-526). The House passed the bill
on June 25, 2002, by a recorded vote of 413 yeas to 8 nays and
1 present (roll no. 256). No further action was taken on the
bill, H.R. 4623, during the 107th Congress.
H.R. 4477, the ``Sex Tourism Prohibition Act of 2002''
Summary.--Chairman Sensenbrenner (R-WI) introduced H.R.
4477, the ``Sex Tourism Prohibition Improvement Act of 2002,''
on April 17, 2002. The bill addresses a number of problems
related to persons who travel to foreign countries and engage
in illicit sexual relations with minors. Current law requires
the Federal Government to prove that the defendant traveled to
a foreign country with the intent to engage in sex with a
minor. H.R. 4477 eliminates the intent requirement where the
defendant completes the travel and actually engages in the
illicit sexual activity with a minor. The bill also
criminalizes the actions of sex tour operators by prohibiting
persons from arranging, inducing, procuring, or facilitating
the travel of a person knowing that such a person is traveling
in interstate or foreign commerce for the purpose of engaging
in illicit sexual conduct with a minor.
According to the National Center for Missing and Exploited
Children, child-sex tourism is an increasing and major
component of the worldwide sexual exploitation of children. In
Asia alone, there are more than 100 web sites devoted to
promoting teenage commercial sex. Because poor countries are
often under economic pressure to develop tourism and the sex
tourism industry produces a good income, those governments
often turn a blind eye toward this devastating problem. As a
result, children around the world have become trapped and
exploited by the sex tourism industry. This legislation will
close significant loopholes in the law that persons who travel
to foreign countries seeking sex with children are currently
using to their advantage in order to avoid prosecution.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held 2 days of hearings on H.R. 4477 and
other bills relating to similar issues. The three witnesses who
testified on May 1, 2002, were: Michael J. Heimbach, Unit
Chief, Crimes Against Children Unit, Federal Bureau of
Investigation; Ernie Allen, President and Chief Executive
Officer for the National Center for Missing & Exploited
Children; and Lt. Bill Walsh, with the Dallas Internet Crimes
Against Children Taskforce. On May 9, 2002, the Subcommittee
received testimony from Daniel Collins, Associate Deputy
Attorney General, Office of the Attorney General, U.S.
Department of Justice. On May 9, 2002, the Subcommittee met in
open session and ordered favorably reported the bill by voice
vote, a quorum being present. On June 19, 2002, the Committee
met in open session and ordered favorably reported the bill, as
amended, by voice vote, a quorum being present. The bill was
reported to the House on June 24, 2002 (H. Rept. 107-525). The
House passed the bill on June 26, 2002, by a recorded vote
(roll no. 259) of 418 yeas to 8 nays. The bill was also
incorporated into H.R. 5422, the ``Child Abduction Prevention
Act.'' No further action was taken on either H.R. 4477 or H.R.
5422 during the 107th Congress.
H.R. 2146, the ``Two Strikes and You're Out Child Protection Act''
Summary.--H.R. 2146, the ``Two Strikes and You're Out Child
Protection Act,'' was introduced by Mark Green (R-WI) on June
13, 2001. This legislation establishes a mandatory sentence of
life imprisonment for twice-convicted child sex offenders. H.R.
2146 amends 18 U.S.C. Sec. 3559 of the Federal criminal code to
provide for a mandatory minimum sentence of life imprisonment
for any person convicted of a ``Federal sex offense'' if they
had previously been convicted of a similar offense under either
federal or state law. The bill defines federal sex offense to
include offenses committed against a person under the age of 17
and involving the crimes of sexual abuse, aggravated sexual
abuse, sexual abuse of a minor, abusive sexual contact, and the
interstate transportation of minors for sexual purposes.
According to the United States Department of Justice's
Bureau of Justice Statistics, since 1980, the number of
prisoners sentenced for violent sexual assault other than rape
increased by an annual average of nearly 15 percent--faster
than any other category of violent crime. Of the estimated
95,000 sex offenders in state prisons today, well over 60,000
likely committed their crime against a child under 17.
Compounding this growing problem is the high rate of recidivism
among sex offenders. A review of frequently cited studies of
sex offender recidivism indicates that offenders who molest
young girls repeat their crimes at rates up to 25 percent, and
offenders who molest young boys, at rates up to 40 percent.
Moreover, the recidivism rates do not appreciably decline as
offenders age.
Legislative History.--The Subcommittee on Crime held a
legislative hearing on H.R. 2146 on July 31, 2001. The four
witnesses were: Marc Klaas, founder of Klaas Kids Foundation
and advocate for victim's and children's rights; Robert
Fusfeld, Probation and Parole Agent for the Wisconsin
Department of Corrections Sex Offender Intensive Supervision
Team; Polly Sweeney, mother of two victims of a sex offender;
and Phyllis Turner Lawrence, Esq., a Victim Assistance and
Restorative Justice Consultant. On August 2, 2001, the
Subcommittee met in open session and ordered favorably reported
the bill, H.R. 2146, with amendment, by voice vote, a quorum
being present. On February 27, 2002, the Committee commenced a
markup of H.R. 2146 which was continued on March 6, 2002, when
the Committee met in open session and ordered favorably
reported the bill, H.R. 2146, with amendment, by voice vote, a
quorum being present. The bill was reported to the House on
March 12, 2002 (H. Rept. 107-373). The House passed the bill on
March 14, 2002, by a recorded vote of 382 yeas to 34 nays (roll
no. 64). The bill was also incorporated into H.R. 5422, the
``Child Abduction Prevention Act.'' No further action was taken
on either H.R. 2146 or H.R. 5422 during the 107th Congress.
H.R. 4679, the ``Lifetime Consequences for Sex Offenders Act of 2002''
Summary.--H.R. 4679, the ``Lifetime Consequences for Sex
Offenders Act of 2002'' amends the Federal criminal code to
make the authorized term of supervised release after
imprisonment for the offenses of sexual abuse, sexual
exploitation of children, transportation for illegal sexual
activity (generally), and sex trafficking of children any term
of years or life.
Legislative History.--H.R. 4679 was introduced on May 8,
2002 by Congressman Gekas. The Committee on the Judiciary held
a mark-up session on June 19, 2002. The Committee on the
Judiciary ordered H.R. 4679 to be reported amended by a voice
vote. The Committee on the Judiciary filed H. Rept. 107-527 on
June 24, 2002. On June 25, 2002, H.R. 4679 was passed under a
motion to suspend the rules and pass the bill as amended by a
vote of 409-3. H.R. 4679 was referred to the Senate Committee
on the Judiciary.
H.R. 5422, the ``Child Abduction Prevention Act''
Summary.--Chairman Sensenbrenner (R-WI) introduced H.R.
5422, the ``Child Abduction Prevention Act'' on September 19,
2002. This legislation sends a clear message to any potential
child abductor that they will not escape justice. This
legislation provides stronger penalties against kidnapping,
ensures lifetime supervision of sexual offenders and kidnappers
of children, gives law enforcement the tools it needs to
effectively prosecute these crimes, and provides assistance to
the community when a child is abducted.
According to the Department of Justice's (DOJ) Office of
Juvenile Justice Delinquency Prevention (OJJDP), the number of
missing persons reported to law enforcement has increased 468
percent, from 154,341 in 1982 to 876,213 in 2000. Out of those
cases, about 3,000 to 5,000 are non-family abductions reported
to police each year, most of which are short-term sexually-
motivated cases. About 200 to 300 of these cases, or about 6
percent, make up the most serious cases where the child was
murdered, ransomed or taken with the intent to keep. Federal
Government statistics report that three out of four children
who are kidnapped and murdered are killed within 3 hours of
their initial abduction. Authorities believe that promptly
alerting the general public when a child is abducted by a
stranger is crucial to saving their life. To accomplish this,
H.R. 5422 authorizes funding for a national AMBER Alert program
to help expand the child abduction communications warning
network throughout the United States.
For those individuals that would harm a child, H.R. 5422
ensures that punishment is severe and that sexual predators are
not allowed to slip through the cracks of the system to harm
other children. Specifically, this legislation provides a 20-
year mandatory minimum sentence of imprisonment for stranger
abductions of a child under the age of 18, lifetime supervision
for sex offenders, and mandatory life imprisonment for second
time offenders. Furthermore, H.R. 5422 removes any statute of
limitations and opportunity for pretrial release for crimes of
child abduction and sex offenses. Recognizing the important
role that the National Center for Missing and Exploited
Children (NCMEC) plays in our Nation's efforts to prevent child
abductions, the bill doubles the funding for NCMEC to $20
million through 2004. The NCMEC is the Nation's resource center
for child protection and assists parents, children, law
enforcement, schools, and communities in recovering missing
children. NCMEC also raises public awareness to prevent child
abduction, molestation, and sexual exploitation. To date, NCMEC
has worked on more than 73,000 cases of missing and exploited
children and helped recover more than 48,000 children.
Legislative History.--On October 1, 2002, the Subcommittee
on Crime, Terrorism, and Homeland Security held a legislative
hearing on H.R. 5422. Testimony was received from Daniel P.
Collins, Associate Deputy Attorney General, U.S. Department of
Justice; and Ernest E. Allen, President and Chief Executive
Officer, National Center for Missing and Exploited Children. On
October 1, 2002, the Subcommittee met in open session and
ordered favorably reported the bill, H.R. 5422, by voice vote,
a quorum being present. On October 2, 2002, the Committee met
in open session and ordered favorably reported the bill, H.R.
5422, with amendment, by voice vote, a quorum being present.
The bill was reported to the House on October 7, 2002 (H. Rept.
107-723). The House passed the bill on October 8, 2002, by a
recorded vote of 390 yeas to 24 nays (roll no. 446). No further
action was taken on H.R. 5422 during the 107th Congress.
IMPROVING JUSTICE THROUGH ENHANCED TECHNOLOGY
H.R. 912, the ``Innocence Protection Act''
Summary.--Representative William Delahunt (D-MA) introduced
H.R. 912, the ``Innocence Protection Act of 2001,'' on March 7,
2001. This bill would provide for post-conviction DNA testing
for every Federal and state crime, and not just those crimes
where a defendant is facing the death penalty. Defendants in
misdemeanor cases would be allowed to petition the courts to
have DNA testing done to prove their innocence along with those
defendants that are facing the death penalty. The bill
establishes a National Commission on Capital Representation to
formulate standards specifying the elements of an effective
system for providing adequate representation. The Attorney
General is directed to withhold prison grant funds to any State
that allows for the death penalty and is not in compliance with
the standards set forth by the National Commission on Capital
Representation. In addition, those States would also be
penalized in habeas corpus proceedings. The bill also increases
the amount of damages that may be awarded in a case where the
defendant proves he was unjustly convicted and imprisoned from
$5,000 total to $50,000 for each year of incarceration and up
to $100,000 per year if the defendant was sentenced to death.
According to the sponsor of the bill, in more than 80 cases
in the United States, DNA evidence has led to the exoneration
of innocent men and women who were wrongfully convicted. This
number includes at least 10 individuals sentenced to death,
some of whom came within days of being executed. In more than a
dozen cases, post-conviction DNA testing that has exonerated an
innocent person has also enhanced public safety by providing
evidence that led to the identification of the actual
perpetrator. The purpose of H.R. 912 is to ensure that
wrongfully convicted persons have an opportunity to establish
their innocence through DNA testing, by requiring the
preservation of DNA evidence for a limited period.
Legislative History.--The Subcommittee on Crime, Terrorism
and Homeland Security held a legislative hearing on H.R. 912,
the ``Innocence Protection Act of 2001,'' on June 18, 2002. The
four witnesses who testified were: Hon. Paul A. Logli, State's
Attorney, Winnebago Co., IL; Peter J. Neufeld, Esq., Co-
Director, Innocence Project, Benjamin N. Cardozo School of Law;
Robert A. Graci, Esq., Assistant Executive Deputy Attorney
General of Pennsylvania; and Beth A. Wilkinson, Esq., former
Federal prosecutor, Oklahoma City bombing case. No further
action was taken on H.R. 912 during the 107th Congress.
PROTECTING AND SUPPORTING POLICE
H.R. 1007, the ``James Guelff and Chris McCurley Body Armor Act of
2001''
Summary.--Representative Bart Stupak (D-MI) introduced H.R.
1007, the ``James Guelff and Chris McCurley Body Armor Act of
2001,'' on March 13, 2001. This legislation amends title 18 of
the United States Code to prohibit violent felons from
purchasing, owning, or possessing body armor. Any person
convicted of violating this prohibition is subject to a fine or
imprisonment of not more than 3 years, or both. H.R. 1007 also
directs the United States Sentencing Commission to provide an
appropriate sentencing enhancement for any crime of violence or
drug trafficking in which the defendant used body armor. The
bill includes a sense of Congress that any sentencing
enhancement should be at least two levels. In addition, the
language authorizes Federal agencies to donate body armor that
is surplus property and in serviceable condition directly to
any state or local law enforcement agency. Under the
legislation the United States is not liable for any harm
occurring in connection with the use or misuse of any body
armor donated by the Federal agencies.
H.R. 1007 will ensure that criminals do not have body
armor, and that state and local police officers do. The bill is
named for Officer James Guelff and Captain Chris McCurley who
were killed by gunmen wearing body armor. On November 13, 1994,
James Guelff, a highly decorated ten-year veteran of the San
Francisco Police Department, responded to a ``shots fired''
call. Officer Guelff, the first to respond to the scene,
returned fire but the bullets could not penetrate the gunman's
kevlar vest and bullet-proof helmet, which allowed this one
gunman to fire over 200 rounds of ammunition and hold off 120
police officers for over half an hour. Several officers
actually ran out of ammunition in their attempt to stop the
heavily protected gunman. Officer Guelff was shot several times
and died the following morning. Captain Chris McCurley of the
Etowah County, Alabama Drug Task Force was murdered in much the
same way as Officer Guelff. Captain McCurley was shot and
killed by a drug dealer wearing protective body armor when he
and another officer were trying to execute a search warrant on
October 10, 1997.
Unfortunately, these scenarios are not unique. In 1997,
eleven officers were wounded in North Hollywood despite the two
perpetrators being hit a total of 33 times by police gunfire.
Those two gunmen held off 350 police officers for over an hour.
In August of that same year, a gunman wearing a bulletproof
vest shot and killed troopers Scott Phillips and Leslie Lord
and two civilians in Colebrook, New Hampshire. In July 2000, a
kevlar vest and helmet protected gunman murdered Sgt. Todd
Stamper in Crandon, Wisconsin. These are just a few examples of
many incidents where gunmen prolonged shootouts, fired more
rounds of ammunition, and caused more devastation because they
were shielded by body armor.
At the same time criminals have body armor, the Department
of Justice estimates that 25 percent of state and local police
do not. Furthermore, more than 30 percent of the approximately
1,200 officers killed in the line of duty since 1980, could
have been saved by body armor. Dying from gunfire is estimated
to be 14 times more likely for an officer who does not wear a
bulletproof vest. This could be reduced by allowing FBI, DEA,
ATF, INS, and U.S. Marshals, just a few of the Federal agencies
that have surplus body armor, to donate the surplus to local
jurisdictions.
Legislative Hearing.--No hearings were held on H.R. 1007
during the 107th Congress. On July 19, 2001, the Subcommittee
on Crime met in open session and ordered favorably reported the
bill, H.R. 1007, with amendment, by voice vote, a quorum being
present. On July 24, 2001, the Committee met in open session
and ordered favorably reported the bill, H.R. 1007, with
amendment, by voice vote, a quorum being present. The bill was
reported with amendment to the House on August 2, 2001 (H.
Rept. 107-193, Part I). The bill was incorporated into H.R.
2215, the ``21st Century Department of Justice Appropriations
Authorization Act,'' which was signed by the President on
November 2, 2002, and became Public Law 107-273.
H.R. 2624, the ``Law Enforcement Tribute Act''
Summary.--Representative Adam Schiff (D-CA) introduced H.R.
2624, the ``Law Enforcement Tribute Act,'' on July 25, 2001.
This bill authorizes the Attorney General to make grants to
states, units of local government, and Indian Tribes to
construct permanent tributes to honor the achievements of
United States law enforcement or public safety officers who
were killed or disabled in the line of duty. The legislation
establishes a program to award grants directly to a state,
local government, or Indian tribe for up to 50 percent of the
cost of construction of a permanent tribute. The Federal
contribution may not exceed $150,000 for any single recipient.
More than 700,000 men and women risk assault, injury, and
their lives to serve as law enforcement officers in this
country. Each year, one in nine officers is assaulted, one in
25 is injured, and one in 4,400 is killed in the line of duty.
Nationwide, 51 law enforcement officers were feloniously killed
in the line of duty in the year 2000, compared with 42 in 1999,
according to statistics from the Federal Bureau of
Investigation (FBI). Additionally, FBI statistics show that 83
officers were accidentally killed in the line of duty in 2000,
compared with 65 accidental deaths in 1999. In 1999, 112
firefighters also died in the line of duty.
Legislative Hearing.--No hearings were held on H.R. 2624,
the ``Law Enforcement Tribute Act.'' On August, 2, 2001, the
Subcommittee on Crime, Terrorism, and Homeland Security met in
open session and ordered favorably reported the bill, H.R.
2624, by voice vote, a quorum being present. On April 24, 2002,
the Committee met in open session and ordered favorably
reported the bill, by voice vote, a quorum being present. The
bill was reported to the House on May 14, 2002 (H. Rept. 107-
458). The bill was incorporated into H.R. 2215, the ``21st
CenturyDepartment of Justice Appropriations Authorization
Act,'' which was signed by the President on November 2, 2002, and
became Public Law No. 107-273.
GENERAL CRIMINAL PROVISIONS
H.R. 1408, the ``Financial Services Antifraud Network Act of 2001''
Summary.--H.R. 1408 will coordinate information sharing
among 250 financial services agencies around the country as a
fraud-fighting tool. H.R. 1408 would link existing antifraud
records via a network that may be as simple as a computer
search engine. The bill's purpose is to reduce the amount of
money loss due to financial services fraud.
Legislative History.--H.R. 1408 was introduced by
Congressman Rogers on April 4, 2001. On October 10, 2001 the
Committee on the Judiciary held a mark-up on H.R. 1408 and
ordered the bill reported by a voice vote. The Committee on the
Judiciary filed H. Rept. 107-192 pt. II on November 16, 2001.
On November 6, 2001, H.R. 1408, was passed on a motion to
suspend the rules and agree to the bill as amended by a 392-4.
On November 7, 2001, H.R. 1408 was referred to the Senate
Committee on Banking, Housing, and Urban Affairs. No further
action was taken on the bill.
H.R. 2505, the ``Human Cloning Prohibition Act of 2001''
Summary.--Representative Dave Weldon (R-FL) introduced H.R.
2505, the ``Human Cloning Prohibition Act of 2001,'' on July
16, 2001. This bill amends Title 18 of the United States Code
by establishing a comprehensive ban on human cloning and
prohibiting the importation of a cloned embryo, or any product
derived from such embryo. Any person or entity that is
convicted of violating this prohibition on human cloning is
subject to a fine or imprisonment of not more than ten years,
or both. In addition, H.R. 2505 provides a civil penalty of not
less than $1,000,000 for any person who receives a pecuniary
gain from cloning humans. However, H.R. 2505 does not prohibit
the use of cloning technology to produce molecules, DNA, cells,
tissues, organs, plants, or animals.
The National Bioethics Advisory Commission (NBAC) was
ordered to review the legal and ethical issues involved in the
cloning of human beings and delivered its recommendations in
June of 1997. The NBAC agreed that the creation of a child by
somatic cell nuclear transfer is scientifically and ethically
objectionable because: (1) the efficiency of nuclear transfer
is so low and the chance of abnormal offspring is so high that
experimentation of this sort in humans was premature; and (2)
the cloning of an already existing human being may have a
negative impact on issues of personal and social well being
such as family relationships, identity and individuality,
religious beliefs, and expectations of sameness.
Currently, no clear regulations exist in the United States
that would prevent a private group from attempting to clone a
human being. The Food and Drug Administration (FDA) has
announced that it has the authority to regulate human cloning,
but that authority has been questioned by many experts and
remains unclear today. With recent reports that otherwise
reputable scientists and physicians plan to produce the first
human clone and no clear regulations in place, it has become
imperative that Congress act to prevent this ethically and
morally objectionable procedure.
Legislative History.--H.R. 2505 is substantially similar to
H.R. 1644 which the Subcommittee on Crime held two days of
hearings on June 7, 2001, and June 19, 2001. The Subcommittee
also heard testimony on a related bill, H.R. 2172, at those
hearings. Testimony was received from eight witnesses,
representing eight organizations. The witnesses were: Dr. Leon
R. Kass, Professor of Bioethics, The University of Chicago; Dr.
David A. Prentice, Professor of Life Sciences, Indiana State
University; Dr. Daniel Callahan, Director of International
Programs for The Hastings Center; Robyn S. Shapiro, Esq.,
Professor of Bioethics, the Medical College of Wisconsin; Alex
Capron, Esq., Professor of Law and Medicine, University of
Southern California, School of Law; Dr. Jean Bethke Elshtain,
Professor of Social and Political Ethics, The University of
Chicago; Gerard Bradley, Esq., Professor of Law, Notre Dame Law
School; Dr. Thomas Okarma, President and CEO of the Geron
Corporation. On July 19, 2001, the Subcommittee in open session
and ordered favorably reported the bill, H.R. 2505, by voice
vote, a quorum being present. On July 24, 2001, the Committee
met in open session and ordered favorably reported the bill,
H.R. 2505, by a recorded vote of 18 to 11, a quorum being
present. The bill was reported to the House on July 27, 2001
(H. Rept. 107-170). The House passed the bill on July 31, 2001,
by a recorded vote of 265 yeas to 162 nays (roll no. 304). No
further action was taken on the bill, H.R. 2505, during the
107th Congress.
H.R. 2621, the ``Consumer Product Protection Act of 2002''
Summary.--Representative Melissa Hart (R-PA) introduced
H.R. 2621, the ``Consumer Product Protection Act of 2002,'' on
July 25, 2001. This bill would criminalize the unauthorized
placement of any writings in consumer product packages before
their sale to customers. Both adults and children throughout
the country have been subjected to violent, racist, gory, and/
or otherwise disturbing materials hidden in tampered with
products. This legislation prohibits the unscrupulous from
invading products and inflicting their message upon
unsuspecting audiences. Moreover, by filling this gap in
Federal law, H.R. 2621 will appropriately punish, and likely
prevent, individuals whose current activities damage the value
of manufacturers' brand names, tarnish companies' well-deserved
reputation for safe, high quality products, and violate the
integrity of the food that reaches consumers' homes and
families.
In the past five years, manufacturers of food products
regularly found that grocery stores have received complaints
from consumers about hate-filled, pornographic, or political
literature being found in groceries. It appears that the
literature is being folded and inserted into certain groceries
that are packaged in boxes. Cereal boxes, frozen pizza boxes,
and macaroni and cheese boxes are among the more frequently
tampered product packages. The incidents involve pamphlets
espousing racist, anti-Semitic, and white supremacist
sentiments. Leaflets have been found that attack African-
Americans, praised the Holocaust and encourage the killing of
immigrants. For example, one leaflet showed a ``coupon'' with
racial slurs thereon and a demand for African-Americans to go
back to Africa.
Legislative Hearing.--The Subcommittee on Crime, Terrorism,
and Homeland Security held a legislative hearing on H.R. 2621
on July 26, 2001. The four witnesses who testified were: The
Honorable Melissa Hart; Tracey Weaver, a victim; David
Zlotnick, Professor at the Roger Williams School of Law; and
William Macleod, an industry representative testifying on
behalf of the Grocery Manufacturers of America. On July 26,
2001, the Subcommittee met in open session and ordered
favorably reported the bill, H.R. 2621, with amendment, by
voice vote, a quorum being present. On May 8, 2002, the
Committee met in open session and ordered favorably reported
the bill, as amended, by voice vote, a quorum being present.
The bill was reported to the House on May 23, 2002 (H. Rept.
107-485). The House passed the bill on June 11, 2002, by voice
vote. On October 16, 2002, the Senate passed the bill by
unanimous consent with an amendment. The House agreed to the
Senate amendment by unanimous consent on November 15, 2002. The
President signed the bill on December 2, 2002, and it became
Public Law 107-307.
H.R. 1577, the ``Federal Prison Industries Competition in Contracting
Act of 2001''
Summary.--Representative Peter Hoekstra (R-MI) introduced
H.R. 1577, the ``Federal Prison Industries Competition in
Contracting Act of 2001,'' on April 24, 2001. This bill
fundamentally amends Federal Prison Industries' (FPI) 1934
authorizing statute. The legislation gradually phases out by
October 1, 2008, the exclusive right of FPI (deemed ``mandatory
source'') to sell goods to Federal agencies. The bill changes
the manner in which FPI sells its products and services to the
various Federal departments and agencies. During the phase-out
period, FPI is required to provide the agencies with a product
that meets its needs at a ``fair and reasonable price'' in a
timely manner.
This legislation establishes new competitive procedures for
government procurement of products or services that are offered
for sale by FPI. H.R. 1577 requires that FPI sales to its
Federal agency customers be made through contracts won on a
competitive basis, for both products and services. Like other
suppliers to the Federal Government, FPI is required to fulfill
its contractual obligations in a timely manner.
Legislative History.--The Subcommittee on Crime, Terrorism,
and Homeland Security held one day of hearings on H.R. 1577 on
April 26, 2001. During that hearing Representative Peter
Hoekstra (MI-2d), the sponsor of H.R. 1577, testified and
submitted for the record the printed hearing records from five
oversight hearings conducted by the Subcommittee on Oversight
and Investigations of the Committee on Education and the
Workforce during the 104th, 105th, and 106th Congress. The
three other witnesses that testified were: Stephen M. Ryan,
Esq., Manatt, Phelps & Phillips, LLP, Washington, D.C.; Michael
Mansh, President, Ashland, Sales & Service Company,
Philadelphia, Pennsylvania; and Philip W. Glover, President,
Council of Prison Locals, American Federation of Government
Employees, Johnstown, Pennsylvania. On April 24, 2002, the
Committee met in open session and ordered favorably reported
the bill, as amended, by voice vote, a quorum being present.
The bill was reported to the House on July 16, 2002 (H. Rept.
107-583). No further action was taken on H.R. 1577 in the 107th
Congress.
H.R. 3215, the ``Combating Illegal Gambling Reform and Modernization
Act''
Summary.--Representative Bob Goodlatte (R-VA) introduced
H.R. 3215, the ``Combating Illegal Gambling Reform and
Modernization Act,'' on November 1, 2001. This bill would
modernize the ``Wire Act,\11\'' to make it clear that its
prohibitions include Internet gambling and would bring the
current prohibition against wireline interstate gambling up to
speed with the development of new technology. The bill also
prohibits a gambling business from accepting certain forms of
non-cash payment, including credit cards and electronic
transfers, for the transmission of bets and wagers. The bill
further provides an additional tool to fight illegal gambling
by allowing Federal, state, local and tribal law enforcement
officials to seek injunctions against any party to prevent and
restrain violations of the Act.
---------------------------------------------------------------------------
\11\ 18 U.S.C. 1084
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Over the last few years, gambling websites have
proliferated on the Internet. The Internet gambling industry's
revenues grew from $445 million in 1997 to an estimated $1.6
billion in 2001. Industry analysts estimate that it could soon
easily become a $10 billion a year industry. There are
currently over 1,400 gambling sites on the Internet, offering
everything from sports betting to blackjack. Most of these
virtual casinos are organized and operated from tropical off-
shore locations, where the operators feel free from both State
and Federal interference. Among the most popular locales are
Antigua, St. Martin and Costa Rica.
Legislative History.--The Subcommittee on Crime held a
legislative hearing on H.R. 3215 on November 29, 2001. The
Subcommittee on Crime also heard testimony on a related bill,
H.R. 556, at those hearings. The four witnesses that testified
were: the Honorable Bob Goodlatte; the Honorable James A.
Leach; Timothy A. Kelly, Ph.D., Executive Director, National
Gambling Impact Study Commission; and Frank Catania
representing the Interactive Gaming Council (IGC). The
Department of Justice submitted testimony for the record in
support of H.R. 3215. On March 12, 2002, the Subcommittee met
in open session and ordered favorably reported the bill, H.R.
3215, with amendment, by voice vote, a quorum being present. On
June 18, 2002, the Committee met in open session and ordered
favorably reported the bill with amendments by a recorded vote
of 18 to 12, a quorum being present. The bill was reported to
the House on July 18, 2002 (H. Rept. 107-591, Part I). A
supplemental report was filed by the Committee on October 16,
2002 (H. Rept. 107-591, Part II). No further action was taken
on H.R. 3215 during the 107th Congress.
H.R. 4757, the ``Our Lady of Peace Act''
Summary.--Representative Carolyn McCarthy (D-NY) introduced
H.R. 4757, the ``Our Lady Of Peace Act,'' on May 16, 2002. This
bill provides states with the tools to comply with the 1968 Gun
Control Act by giving states additional funds to automate and
share criminal, mental health, and domestic violence
restraining order records with the FBI's National Instant
Criminal Background Check (NICS) database. Under this
legislation, all Federal agencies will transmit relevant
records relating to persons disqualified from acquiring a
firearm under Federal law to the Attorney General for inclusion
in the National Instant Criminal Background Check System,
including all records related to immigration status.
To comply with the grants under this legislation, states
must provide more thorough and up-to-date information relating
to persons disqualified from acquiring a firearm under Federal
law to the Attorney General for inclusion in the NICS. The
Attorney General will award grants to states to improve
computer systems and ensure accurate reporting, especially with
regard to domestic violence and mental health records.
Additionally, the legislation establishes a grant program for
state courts to assess and improve handling of proceedings
related to criminal history dispositions, and temporary
restraining orders, as they relate to disqualification from
firearms ownership under state and Federal laws.
Legislative History.--No hearings were held on H.R. 4757 in
the 107th Congress. On July 23, 2002, the Committee met in open
session and ordered favorably reported the bill, H.R. 4757, as
amended, by recorded vote of 30-2. The bill was reported to the
House on October 15, 2002 (H. Rept. 107-748). On October 15,
2002, the House passed the bill by voice vote. No further
action was taken on H.R. 4757 during the 107th Congress.
H.R. 2929, the ``Bail Bond Fairness Act of 2001''
Summary.--Representative Bob Barr (R-GA) introduced H.R.
2929, the ``Bail Bond Fairness Act of 2001,'' on September 21,
2001. The bill limits the circumstances for which bail can be
forfeited. Bail set by a judge in Federal court typically
includes provisions to require a defendant to make all court
appearances and meet other conditions, including a requirement
that the defendant ``break no laws.'' This bill was drafted in
response to a 1995 decision from the Ninth Circuit and would
prohibit Federal judges from forfeiting bail bonds except in
cases where the defendant actually fails to appear physically
before a court as ordered. It would not permit forfeiture when
the defendant violates some other condition of release. In
other words, it makes bail ``appearance-related'' rather than
``performance-related.''
On April 26, 2002, the Committee on Judiciary sent a letter
to the Judicial Conference of the United States to inquire
about its review of the appropriate circumstances for
forfeiture of bail. The Judicial Conference responded that it
had reviewed the matter and determined that a change in its
policy regarding forfeiture of bail was not appropriate.
Legislative History.--On October 8, 2002, the Subcommittee
on Crime, Terrorism, and Homeland Security held one hearing on
H.R. 2929, the ``Bail Bond Fairness Act of 2001.'' The two
witnesses who testified were: the Honorable Edward Carnes, U.S.
Court of Appeals for the 11th Circuit and Chairman, Advisory
Committee on Criminal Rules, U.S. Judicial Conference,
Secretary, Judicial Conference of the United States; and
Stephen H. Kreimer; Executive Director, Professional Bail
Agents of the United States. No further action was taken on
this bill in the 107th Congress.
H. Res 224, honoring the New Jersey State Law Enforcement Officers
Association
Summary.--H. Res. 224 honors the New Jersey State Law
Enforcement Officers Association. The legislation recognizes
the bravery and honor of the law enforcement officers of New
Jersey and the service those officers provide to the
communities that they serve.
Legislative History.--H. Res 224 was introduced by
Congressman Ferguson on August 2, 2001. On November 1, 2001,
the House passed the resolution without objection.
H. Res. 437, Requesting that the President focus appropriate attention
on neighborhood crime prevention and community policing, and
coordinate certain Federal efforts to participate in ``National
Night Out'', including by supporting local efforts and
neighborhood watches and by supporting local officials to
provide homeland security, and for other purposes
Summary.--H. Res 437 is a sign of support for the
``National Night Out (NNO). The National Night Out held on
August 6, 2002, is widely known as America's night out against
crime where people in thousands of communities take to the
streets to support their communities. Since 1984, the NNO has
promoted neighborhood watch programs and established police
community partnerships in the fight against crime.
Legislative History.--On June 6, 2002, Congressman Stupak
introduced H. Res. 437. On July 17, 2002 the Judiciary
Committee ordered the resolution reported by a voice vote. The
Committee on the Judiciary filed H. Rept 107-606. H. Res. 437
was placed on the House Calendar on July 29, 2002.
S. 2431, the ``Mychal Judge Police and Fire Chaplains Public Safety
Officers'' Benefit Act of 2002''
Summary.--S. 2431 and H.R. 3297 addresses the ambiguity
under current law in regards to making payments of monetary
amounts to survivors of public safety officers who are killed
in the line of duty. S. 2431 specifically names chaplains who
are in service as being eligible for the same benefits as other
public service officers.
Legislative History.--S. 2431 was introduced on May 1, 2002
by Senator Leahy. On May 1, 2002 the Senate Committee ordered
reported S. 2431 with an amendment and without a written
report. On May 7, 2002 the Senate agreed to S. 2431 by
unanimous consent. On June 11, 2002 the House of
Representatives passed S. 2431 and H.R. 3297 was laid on the
table without objection. H.R 3297 was considered on March 3,
2002, at the Committee on the Judiciary and was ordered to be
reported by a voice vote with an amendment. The Committee on
the Judiciary filed H. Rept. 107-384 on April 9, 2002. The
House of Representatives passed as amended H.R. 3297 by a voice
vote. On June 24, 2002 the President signed S. 2431. S. 23431
is Public law 107-196.
Oversight Activities
List of Oversight hearings
Drug Trafficking on the Southwest Border, March 29, 2001
(Serial No. 3)
Reauthorization of the United States Department of Justice--
Part I: Criminal Law Enforcement Agencies, May 3,
2001 (Serial No. 29)
Reauthorization of the United States Department of Justice--
Part II: Criminal Law Componentsat Main Justice,
May 15, 2001 (Serial No. 29)
Reauthorization of the United States Department of Justice--
Part III: Criminal Law Enforcement Agencies,
(Serial No. 29)
Fighting Cyber Crime: Efforts by State and Local Officials, May
24, 2001 (Serial No. 33)
Fighting Cyber Crime: Efforts by Federal Law Enforcement, June
12, 2001 (Serial No. 33)
Fighting Cyber Crime: Efforts by Private Business Interests,
June 14, 2001 (Serial No. 33)
Ethics of Cloning, June 7, 2001 (Serial No. 40)
Law Enforcement and Community Efforts to Address Crimes Against
the Elderly, July 11, 2001 (Serial No. 34)
Office of Justice Programs--Part I: Coordination and
Duplication, March 5, 2002 (Serial No. 71)
Office of Justice Programs--Part II: Evaluation and
Effectiveness, March 7, 2002 (Serial No. 71)
Office of Justice Programs--Part III: Waste, Fraud and Abuse,
March 14, 2002 (Serial No. 71)
Enhancing the Child Protection Laws After the April 16, 2002
Supreme Court Decision, Ashcroft v. Free Speech
Coalition, May 1, 2002 (Serial No. 75)
Risk to Homeland Security from Identity Fraud and Identity
Theft (held jointly with the Subcommittee on
Immigration, Border Security and Claims), June 25,
2002 (Serial No. 86)
Proposal to Create a Department of Homeland Security, July 9,
2002 (Serial No. 94)
Creation of the Counterintelligence Program for the 21st Century
In March 2001, the President released a directive to create
a new program called CI-21 or the Counterintelligence for the
21st century. The FBI Director (Louis Freeh), selected David
Szady, a FBI special agent who was the chief of an interagency
counterintelligence/ counterespionage from 1997 to 1999 that
reported to the CIA and the FBI. The directive stated that the
program and Czar are to work to improve the counterintelligence
communities ability to meet its mission of identifying,
understanding, prioritizing and counteracting the intelligence
threats faced by the United States. Judiciary staff met with
the newly selected counterintelligence Czar in March 2001.
Creation of the Department of Homeland Security
On July 9, 2002, the Subcommittee on Crime, Terrorism, and
Homeland Security held an oversight hearing on the creation of
a Homeland Security Department. The hearing focused on the
Administration's proposed transfer of the Coast Guard, Customs,
FEMA, Secret Service, and Transportation Security
Administration to the proposed Department of Homeland Security.
The Committee heard testimony from Admiral Thomas H. Collins,
Commandant of the United States Coast Guard; the Honorable John
W. Magaw, Under Secretary of Transportation for Security for
the Transportation Security Administration; the Honorable
Robert C. Bonner, Commissioner of the United States Customs
Service; and Brian L. Stafford, Director of the United States
Secret Service. The Honorable Joe M. Allbaugh, Director of the
Federal Emergency Management Agency, declined to testify.
The hearing was in response to H.R. 5005, the ``Homeland
Security Act,'' introduced on June 24, 2002. This bill was the
Administration's proposal for the creation of a Homeland
Security Department. The bill provided for the creation of a
new Department with the primary mission to prevent terrorist
attacks within the United States, to reduce the vulnerability
of the Nation to an attack, to minimize the damage of an
attack, and to assist in the recovery. As a terrorist threat or
attack is a criminal event that requires a law enforcement
response, the hearing examined the roles of law enforcement
agencies the Administration proposed to transfer into the new
Department.
The House of Representatives created a temporary House
Select Committee to enact H.R. 5005. The bill was referred to
12 standing committees, including the Committee on the
Judiciary, which had the bulk of jurisdiction. The Committee on
the Judiciary considered and reported the bill favorably with
amendment to the Select Committee on July 10, 2002. The House
passed the bill by a vote of 295 yeas to 132 nays (roll no.
367) on July 26, 2002. This version contained a substantial
number of recommendations from the Subcommittee and Committee
on the Judiciary. A compromise bill with the Senate and the
White House passed on November 13, 2002, by a recorded vote
(roll no. 477) of 299 yeas to 121 nays. This version was H.R.
5710. On November 19, 2002, the Senate passed H.R. 5005 by 90
yeas to 9 nays. H.R. 5005 included a substitute amendment that
substituted text essentially the same as H.R. 5710 in H.R.
5005. The House agreed to the Senate amendment to H.R. 5005 on
November 22, 2002. On November 25, 2002, the President signed
the bill and it became Public Law 107-296.
First Responder Training and Assistance for Terrorist Events
Congress has been debating the best way to coordinate
Federal agencies and the state and local first responders \12\
in responding to domestic terrorist threats and events. In
1998, the Department of Justice established the National
Domestic Preparedness Office which was housed in the FBI, the
lead agency for crisis management in such an event.
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\12\ First responders are state and local officials, such as law
enforcement, and fire and emergency medical services officers that are
likely to be first on the scene of a domestic terrorist act.
---------------------------------------------------------------------------
The National Domestic Preparedness Office (NDPO) was
created to serve as a single point of contact and clearinghouse
for Federal assistance programs related to weapons of mass
destruction \13\ (WMD) information. The Federal Emergency
Management Agency, the lead agency for consequence management,
argued that it should house the coordinating office. The new
Administration agreed and on May 8, 2001, the President
announced that Vice President Cheney would oversee the
development of a coordinated national effort to deal with
consequence management for the counterterrorism threats. The
new office, the Office of National Preparedness (ONP), was
created in FEMA to deal with consequence management
coordination. The President stated that ``FEMA would work
closely with the Department of Justice, in its lead role for
crisis management, to ensure that all facets of our response to
the threat from weapons of mass destruction are coordinated and
cohesive.''
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\13\ The United States Government Interagency Domestic Terrorism
Concept of Operations Plan defines Weapons of Mass Destruction as ``any
device, material, or substance used in a manner, in a quantity or type,
or under circumstances evidencing an intent to cause death or serious
injury to persons or significant damage to property.''
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This announcement caused some confusion on the role of the
FBI and NDPO in crisis management. Staff of the National
Security Council assured Subcommittee staff that the role of
the NDPO was not affected. However, the Washington Post
reported on May 9, 2001, that Administration officials said
``FEMA will assume a role previously played by the FBI's
National Domestic Preparedness Office for working with local
police, fire and emergency management agencies.''
On July 30, 2001, the Subcommittee sent a letter to the
Attorney General requesting information as to whether NDPO
would be transferred. The Department of Justice responded in
the affirmative. The transfer never took place, however. The
NDPO did become defunct because of the battle of its programs.
This skeleton office was transferred to the Department of
Homeland Security in H.R. 5005 that was signed into law on
November 25, 2002.
Office of Domestic Preparedness (ODP) was another office
within the Department of Justice that is responsible for
establishing Federal domestic preparedness programs and
activities to assist state and local governments to prepare for
and respond to terrorist incidents, including attacks involving
weapons of mass destruction.
On January 24, 2002, the President announced FEMA would
operate the homeland security first responder initiative. On
January 29, 2002, the Committee on the Judiciary sent a letter
requesting FEMA respond to a number of questions. The ONP was
authorized by Congress to carry out similar responsibilities,
including assessment reports of threats and needs of the states
and localities as well as training and exercise. The
Appropriations Committees provided authorization for these
duties through the last few appropriation bills. Moreover,
after the September 11, 2001 terrorist attacks this Committee
passed and Congress enacted Public Law 107-56, the Patriot Act.
Section 1014 of the USA Patriot Act authorized the Office for
State and Local Domestic Preparedness Support of the Office of
Justice Programs in the Department of Justice to provide State
grants that enhance the capability of State and local
jurisdictions to prepare for and respond to terrorist acts
including events of terrorism involving weapons of mass
destruction. The name of this office was changed to the Office
of Domestic Preparedness. Public Law 107-273, the ``21st
Century Department of Justice Appropriations Authorization
Act,'' also authorized the Office of Domestic Preparedness.
The Director of the Office of National Preparedness (ONP)
at FEMA stated in a January 30, 2002 letter to the Subcommittee
on Crime, Terrorism and Homeland Security that ONP was created
to perform duties relative to consequence management. He
further stated that FEMA's mission and function in no way
interferes with, or compromises the authority of, the
Department of Justice or its various departments or programs to
carry out its mission with regard to crisis management.
Through the ongoing meetings and correspondence with FEMA,
the Committee found FEMA's response alarming. FEMA determined
that a terrorist event was not a law enforcement or crisis
management event. FEMA emphatically rejected the need for such
training and assured the Committee they would not offer such
training. Later in the year, FEMA and the Office of Homeland
Security later argued that their was no such distinction
between crisis and consequence management. The Office of
Homeland Security stated this in its description of its draft
legislation to create a new Department.
Law enforcement first responders became immediately
concerned that they would lose the vital training and
assistance for crisis management. The Subcommittee and
Committee believed that the proposed Department of Homeland
Security must serve all first responders through integrated
training and assistance of both crisis and consequence
management.
In a March 13, 2002 letter to the Committee on the
Judiciary, the Director of FEMA emphatically stated that FEMA
and the Office of National Preparedness within FEMA would not
handle crisis management or law enforcement training, technical
assistance, exercises and equipment. The Director stated that
``While FEMA will coordinate grants and assistance to first
responders, it will not assume any law enforcement functions,
nor will FEMA provide law enforcement training--training on
investigative techniques, evidence collection techniques.''
Notable experts, including many in the emergency first
responder community, urged the Congress not to give FEMA the
governing role in training first responders for terrorist
events. Even the Heritage Foundation appeared to have concerns.
For example, David Muhlhausen, policy analyst for the Heritage
Foundation, in testifying before the Senate Judiciary Committee
on March 21, 2002, stated ``[g]iven the nation's continuing
susceptibility to future terrorist attacks, the [F]ederal
government has the responsibility to assist state and local law
enforcement in their efforts to detect, prevent, and respond to
terrorism. FEMA's traditionally reactive approach to disasters
is not well suited for the needs of law enforcement in
responding to prospective terrorist threats.''
As the National Sheriff's Association testified before the
Subcommittee, ``[t]he prevention, detection and apprehension of
terrorists are law enforcement functions, and it is not
appropriate for training and coordination to be assigned to the
FEMA regime, where there are no such responsibilities. In the
tragic event that there is a terrorist attack, that crisis is
also a law enforcement responsibility. Sheriffs and Chiefs of
Police are shocked that OMB would propose that FEMA should
assume responsibility in these areas, where there is neither
experience nor legal authority to act.''
In a March 8, 2002 letter to the Subcommittee on Crime,
Terrorism and Homeland Security the International Brotherhood
of Police Officers (IBPO) stated that it ``is concerned that
FEMA does not have the experience or understanding that a law
enforcement agency has when investigating terrorism.''
Additionally, the Police Executive Research Forum (PERF), a
national organization of police executive professionals, that
serves more than 50 percent of the country's population,
explained that while it respects and values FEMA's role in
disaster mitigation, it was troubled about FEMA assuming a new
role in training in antiterrorism efforts by state and local
law enforcement. PERF explained:
[t]he mission of FEMA and its area of expertise are
based ondisaster response and mitigation. While law
enforcement, firefighting, emergency medical services, and HAZMAT
agencies could all be first responders to a critical incident, the role
of law enforcement is unique in its crisis prevention, detection
activities, and apprehension of suspects. Police agencies have primary
responsibility for local intelligence gathering, public safety and
maintaining public order before and during a crisis. They do this
through combinations of community policing, criminal investigation, and
emergency response. All of this must be done while meeting the day-to-
day demands of a local police department. These efforts require
[F]ederal support that is based on extensive experience and knowledge
of local police operations and challenges. * * * The knowledge that
comes from this experience cannot be easily transferred to an agency
that is relatively new to law enforcement issues.
FEMA's experience and expertise have traditionally
been in other areas of public safety and welfare than
law enforcement. They have little history of effective
partnership with local law enforcement on proactive
efforts.
In the Committee's FY 2003 Views and Estimates, the
Committee stated that it was ``concerned that FEMA is not the
appropriate agency for these responsibilities.'' A terrorist
attack is a criminal event, not a natural disaster. Yet in the
FY 2003 budget, the Office of Management and Budget proposed
transferring the Office of Domestic Preparedness out of the
Department of Justice and into FEMA.
On April 11, 2002, Chairman Sensenbrenner sent a letter to
the President expressing strong opposition to this proposal.
The Chairman stated transferring ODP's function to FEMA would
``leave a gaping hole in our nation's counterterrorism
efforts'' because there would be no training for crisis
management. The Chairman stated that ``[i]t would eliminate an
effective grant-making office, which currently offers the only
integrated program that provides needed funds for training,
equipment and technical assistance to state and local law
enforcement first responders for crisis management and
consequence management in the event of a terrorist attack or
planned attack.''
On May 20, 2002, the Committee wrote Chairman Young of the
Appropriations Committee commending him for continuing the
funding of ODP and its first responder programs as part of the
2002 Supplemental Appropriation.
On July 10, 2002, the Judiciary Committee reported out its
recommendation to the House Select Committee for the creation
of a new Department of Homeland Security. Committee recommended
that only the Office for National Preparedness in FEMA would be
transferred. In conjunction with FEMA's Office of National
Preparedness, the Committee recommended that the Justice
Department's Office for Domestic Preparedness be transferred to
create a central office within the new Department for Federal,
state, and local training and coordination. This office would
ensure a coordinated Federal, state, and local response in
crisis and consequence management to a terrorist threat or
attack.
For the above reasons, the Committee on the Judiciary
adamantly opposed FEMA's lead role in the training of first
responders. Due to the oversight of this Committee, the
training of first responders under the new Department of
Homeland Security will be placed under the law enforcement
division of the new Department that carries out border security
and other law enforcement functions. In fact, the Office of
National Preparedness was moved out of FEMA and placed into the
law enforcement division of the new Department of Homeland
Security.
Drug Trafficking on the Southwest border
On March 29, 2001, the Subcommittee on Crime held an
oversight hearing on drug trafficking on the Southwest border
of the United States. The four witnesses were: the Honorable
Donnie R. Marshall, Administrator, Drug Enforcement
Administration, U.S. Department of Justice; John Varrone,
Assistant Commissioner, Office of Investigations, U.S. Customs
Service; Mike Scott, Chief of Criminal Law Enforcement,
Department of Public Safety, Austin, TX; the Honorable W. Royal
Furgeson, Jr., Judge, U.S. District Court for the Western
District of Texas.
According to the Drug Enforcement Administration (DEA), the
ever-increasing legitimate cross-border traffic and commerce
between the U.S. and Mexico has brought with it a significant
increase in narcotics trafficking at the U.S./Mexico border in
the last several years. Several international organized crime
groups have established elaborate smuggling infrastructures on
both sides of the border, which has made the Southwest border
the smuggling corridor of preference for the flow of marijuana,
cocaine, heroin, and methamphetamine. The latest figures show
that about 63 percent of all U.S. drug seizures (representing
over 76 percent of the total weight seized) occur along the
Southwest border and that number threatens to increase as
Mexico-based drug trafficking organizations grow even more
powerful. This hearing examined not only the increased drug
trafficking, but also the effects that the increase has had on
the safety of the surrounding communities and the overwhelming
burden imposed on the judicial districts along the border.
Narco-terrorism
On December 4, 2001, the Subcommittee staff met with the
DEA to discuss the relationship between narcotics trafficking
and terrorism. According to the DEA, illegal drug production in
Mexico, Columbia, Thailand, and Afghanistan funds terror and
represents a clear and present danger to our national security.
During this meeting the DEA briefed the staff on its strategy
in dealing with drugs and terrorism. That strategy is to focus
on DEA's priorities; to develop intelligence to a greater
extent; and to develop international cooperation. The
Subcommittee continues to conduct oversight over the DEA's role
in dealing with the issue of narco-terrorism.
OxyContin
Beginning on May 9, 2001, the Subcommittee staff met with
the DEA on numerous occasions to discuss the issue of drug
diversion relating to the prescription medication OxyContin.
OxyContin is a trade name product for the generic narcotic
oxycodone. It is a synthetic drug that acts exactly like
morphine and is prescribed for moderate to high pain relief
associated with injuries, arthritis, lower back pain and
terminal cancer pain. OxyContin was approved by the Food and
Drug Administration in 1995 and was seen as a breakthrough drug
in dealing with the treatment of pain.
What makes OxyContin unique is that it contains a time
release mechanism that allows for a slow release of the
narcotic oxycodone over a twelve hour period. A patient can
take one pill and receive a steady release of pain reliever
over a long period of time, rather than suffer the common
``roller-coaster'' of pain effect that shorter duration pain
relievers are subject to. There is a highly significant problem
with the time release mechanism of which the DEA says the
manufacturer was aware. The time release mechanism is destroyed
if you simply break up the pill or dissolve it in water. This
is why the packaging makes it very clear that the pills must be
swallowed whole. When you crush the pill you are left with a
highly addictive pile of pure morphine that can be snorted or
injected.
Opiate abusers have quickly learned the ease of converting
the tablets from a safe medication for the chronic treatment of
pain to a suitable substitute for heroin. Drug abuse treatment
centers, law enforcement personnel, and pharmacists have
recently reported a sudden increase in the abuse of OxyContin
across the country and among all ethnic and economic groups.
The number of emergency department episodes involving OxyContin
abuse have doubled from 3,190 episodes in 1996 to 6,429
episodes in 1999.
Drugs such as OxyContin are diverted in a variety of ways
including pharmacy diversion, ``doctor shopping,'' and improper
prescribing practices by physicians. Pharmacy diversion occurs
when individuals working in pharmacies take products directly
from the shelves, or when people make fraudulent prescriptions.
The most widely used diversion technique at the street level is
doctor shopping.
DEA has had two separate meetings with the manufacturer
concerning this problem. DEA officials present at those
meetings say that the company has expressed a willingness to
cooperate, however, correspondence received from the company
following those meetings makes clear that the company feels
that they are producing a lawful product, is operating within
FDA guidelines, and believes that there have been no deaths
attributable to OxyContin. The Subcommittee continues to
conduct oversight over the DEA's handling of the problem of the
diversion of OxyContin.
Medical marijuana
On July 11, 2002, the Subcommittee staff met with the DEA
to discuss the issue of ``medical marijuana.'' State laws in
Oregon, Alaska, Hawaii, and California allow medical use of
marijuana under specified conditions. All four states require a
patient to have a physician's recommendation to be eligible for
medical marijuana use. Alaska, Hawaii, and Oregon established
state-run registries for patients and caregivers to document
their eligibility to engage in medical marijuana use; and
require physician documentation of a person's debilitating
condition to register. However, under Federal law, marijuana is
still classified as a Schedule I drug and is therefore still
illegal.
DEA addressed some of the serious difficulties associated
with ``medical marijuana'' programs. Specifically, DEA
discussed the inherent conflict between state laws permitting
the use of marijuana and Federal laws that do not; the
potential for facilitating illegal trafficking; the impact of
such laws on cooperation among Federal, state, and local law
enforcement; and the lack of data on the medicinal value of
marijuana. DEA further discussed that the use of the phrase
``medical marijuana'' implicitly accepts a premise that is
contrary to existing federal law.
DEA has been aggressive in enforcing Federal drug laws
relating to the sale and distribution of marijuana in states
that have passed contrary laws. For example, on February 12,
2002, the DEA raided ``medical marijuana clubs'' in San
Francisco, confiscating 8,300 plants, a handgun and a shotgun
and arresting three men who allegedly provided the marijuana.
The Subcommittee continues to conduct oversight over the DEA's
enforcement of federal drug laws.
Protecting Seniors from fraud
On April 30, 2001, the Subcommittee on Crime staff met with
the FBI to discuss the Nation's problem with crimes against
seniors. Currently, there are 34.5 million Americans over the
age of 65 and that number is expected to double by 2030.
Seniors are frequently targets of frauds and scams, purse
snatching, pick pocketing, theft of checks from the mail and
crimes in long-term care settings.\14\ Con artists set up
sophisticated investment scams and steal life savings. For
example, there is the lottery fraud, where a caller offers the
senior a percentage of a lottery ticket for a price promising
that it is easier to win the lottery in another country. After
the senior pays for the ticket, the con will call back claiming
the senior won and that for the senior to receive the money he
or she must pay thousands in taxes. Another common fraud scheme
is the Bank Examiner Fraud. Here, a caller claims to be a
``bank examiner'' and tells the senior his or her checking or
savings account has had some unusual withdrawals. The ``bank
examiner'' will then say that the bank is investigating a
dishonest teller who is allegedly making withdrawals from the
senior's account. Someone posing as law enforcement will then
ask the senior to help by catching the teller in the act. The
senior is asked to withdraw money and give it to the examiner
for marking and recording serial numbers.
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\14\ TRIAD: reducing crime against the elderly (4th ed.) P. 15.
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This meeting lead to the July 11, 2001 Subcommittee
oversight hearing on law enforcement and community efforts to
address crimes against seniors. The four witnesses that
testified at the hearing were: Joseph Pollock, the Sheriff of
Burnet, Texas; Susan Reed, the District Attorney of Bexar
County Courthouse in San Antonio Texas; Frank Donaghue, the
Chief Deputy Attorney General and the Director of the Bureau of
Consumer Protection of the Pennsylvania Office of Attorney
General; and Michele J. Bruno, State Director of Triad Program,
Office of the Attorney General in Richmond, Virginia.
The states and communities with the support of the Federal
Government have lead the effort against such crime. For
instance, the National Association of Attorneys General (NAAG)
have worked with Federal, state and local law enforcement and
communities addressing crimes against the elderly ranging from
health care abuse to telemarketing scams to sweepstakes
problems. Last fall, the State Attorneys General reached
settlements with two sweepstakes companies regarding claims
that those companies disseminated promotional material which
claimed consumers had won when they had not.\15\
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\15\ Consumer Protection Report: (Sept. 2000) 1.
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Another federally supported state and communities effort is
TRIAD. In 1988, the American Association of Retired Persons,
the International Association of Chiefs of Police and the
National Sheriffs Association signed a cooperative agreement to
reduce crime against seniors and to improve law enforcement
services to the elderly. This agreement is known as TRIAD and
works to connect senior citizens with police and sheriff
departments. A volunteer council called SALT (Seniors and Law
Enforcement Together) is organized for each local TRIAD. The
local SALT Council determines what services or programs the
TRIAD will offer, recruits volunteers, and oversees the
results.
The ``Protecting Seniors from Fraud Act'' \16\ was enacted
on November 22, 2000, and authorized appropriations to the
Attorney General for fiscal years 2001 through 2005 for TRIAD
programs. Among other things, that law directed the Secretary
of Health and Human Services, acting through the Assistant
Secretary of Health and Human Services for Aging, to provide to
the Attorney General of each State and to publicly disseminate
in each State (including to area agencies on aging) information
designed to educate senior citizens and raise awareness about
the dangers of fraud, including telemarketing and sweepstakes
fraud. Additionally, the law required the Attorney General to:
(1) conduct a study to assist in developing new strategies to
prevent and otherwise reduce the incidence of crimes against
seniors; and (2) include as part of each National Crime
Victimization Survey statistics related to crimes targeting or
disproportionately affecting seniors, crime risk factors for
seniors, and specific characteristics of the victims of crimes
who are seniors.
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\16\ Pub. L. No. 106-534.
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In response to the hearing and to ensure the implementation
of the Act, the Subcommittee on Crime sent a letter to the
Department of Health and Human Services on July 11, 2001,
requesting a status report on the Department's implementation
of this bill. The Department responded on September 19, 2001,
stating that the Administration on Aging (AoA) is implementing
this law through its existing programs and networks. In this
letter, the Secretary of Health and Human Services reported:
The AoA administers Older American Act (OAA) formula
grants for state activities designed to protect seniors
from abuse, neglect, and exploitation. These include
efforts to train law enforcement officials, develop and
distribute education materials, conduct public
awareness campaigns, and create community coalitions.
The AoA provides comprehensive consumer protection
information on its web site. It also funds the National
Center on Elder Abuse and five national legal resource
centers. These organizations provide the public with
information on consumer scams. They also share fraud
information with other professionals. For example,
three of the legal resource centers participate in a
quarterly conference call with the National Association
of Attorneys General.
On May 2001, the National Consumer Law Center (NCLC)
used OAA funds to produce and disseminate the enclosed
document, ``What To Do If You've Become The Victim Of
Telemarketing Fraud.'' Next year NCLC will produce an
elder fraud brochure, two fact sheets for seniors, and
two for advocates. The center will disseminate these
materials to State Attorneys General, senior legal
services providers, and senior centers.
Additionally, the Subcommittee sent a letter to the
Department of Justice on July 11, 2001, requesting the status
of its compliance. The Department of Justice responded on
August 22, 2001. In compliance with the law, the Department's
Bureau of Justice Statistics (BJS) now reports the levels and
rates of violent and property crimes against persons age 65 or
older. BJS recently published ``Crimes Against Persons Age 65
or Older, 1992-97.'' This report does not include fraud data,
however. The Department's National Institute for Justice (NIJ)
is working with BJS to determine if fraud data may be obtained
through the National Incident Based Reporting System.
Reauthorization of the United States Department of Justice
In preparation for H.R. 2215, the ``21st Century Department
of Justice Appropriations Authorization Act'' the legislation
that reauthorizes the programs within the Department of
Justice. On May 3 and May 15, 2001, the Subcommittee on Crime
held two oversight hearings on the reauthorization of the
United States Department of Justice. Specifically, the
Subcommittee held one hearing on the criminal law enforcement
components (the Federal Bureau of Investigation, the Drug
Enforcement Administration, the Bureau of Prison, and the
United States Marshal Service) of the Justice Department that
comprise the largest portion of the Department, employing the
largest number of employees and accounting for most of the
Department's budget. All of these divisions fall within the
oversight and legislative jurisdiction of the Subcommittee on
Crime. Because of the wide breadth of the Department of
Justice's activities, the Subcommittee held a second hearing on
the criminal law components of the Department of Justice that
are not its direct law enforcement agencies--the Criminal
Division, the Office of Justice Programs (OJP), and the
Community Oriented Policing Services office (COPS).
Office of Justice Programs
The Subcommittee on Crime held three oversight hearings on
the Office of Justice programs on March 5, March 7, and March
14, 2002. The Office of Justice Programs (OJP) is the primary
grant-making office within the Department of Justice. The
programs that OJP currently operateswere authorized by various
crime bills throughout the past two decades. Although these grant
programs provide a vital resource for state and local law enforcement
agencies, studies on the effectiveness of these grants have been
inconclusive. Additionally, some of the programs at OJP overlap or
duplicate other programs at OJP, at other Department of Justice offices
(e.g., COPS) and at other agencies.
At a March 5, 2002 hearing, witnesses testified on how
duplication and lack of coordination in OJP various grant
programs prevent OJP from effectively achieving its core
mission of delivering Federal crime funds to state and local
units of government. The four witnesses were: the Honorable
Deborah Daniels, Assistant Attorney General, Department of
Justice Office of Justice Programs; the Honorable Laurie
Robinson, former Assistant Attorney General, Office of Justice
Programs; Dr. Nolan Jones, National Governor's Association; and
Ralph Kelley, Commissioner, Kentucky Department of Juvenile
Justice.
The witnesses at the March 7, 2002 hearing testified on how
OJP's programs are evaluated for effectiveness. The four
witnesses were: Dr. Laurie Ekstrand, Director, Justice Issues,
General Accounting Office; David Muhlhausen, Policy Analyst,
Heritage Foundation; Sheriff John Cary Bittick, President of
the National Sheriffs Association; and The Honorable David B.
Mitchell, Executive Director National Council of Juvenile and
Family Court Judges.
On March 14, 2002, the Subcommittee on Crime held the third
hearing at which witnesses testified on the administration of
Federal law enforcement grants by the Office of Justice
Programs (OJP), the principal grant-making arm of the Justice
Department, as well as the Community Oriented Policing Services
(COPS) Program. Those witnesses were: Glenn A. Fine, Inspector
General of the Department of Justice; Tracy Henke, OJP
Principal Deputy Assistant Attorney General; Carl Peed,
Director of the COPS Office; and Bonnie Campbell, Esq., Former
Director, Violence Against Women Office, OJP.
These hearings pointed out the need for continued oversight
of OJP, especially in light of the President's FY 2003 Budget
proposal to redirect Federal law enforcement funding into
counter-terrorism and homeland security. By examining certain
COPS and OJP grants some consider to be wasteful or
ineffective, the Subcommittee seeks ways to ensure that Federal
law enforcement funds will have a more direct and measurable
impact on crime.
To prepare for these hearings, the Subcommittee on Crime
sent a letter to the Office of Justice Programs (OJP) asking
for information regarding coordination, duplication, and
evaluations of effectiveness at OJP. Additionally, the
Subcommittee sent two letters directing General Accounting
Office (GAO) to perform studies on programs within the Office
of Justice Programs. The first GAO letter sent on January 25,
2002, requested that the GAO review the effectiveness of the
Weed and Seed programs. The second letter sent on February 8,
2002, requested that the GAO review the evaluations being
performed by the National Institute of Justice. These studies
will be completed during the 108th Congress.
Federal Bureau of Investigation: Criminal Justice Information Services
(CJIS)
On February 21, 2001, the Subcommittee on Crime staff met
with the Criminal Justice Information Services (CJIS) at FBI
headquarters in Washington, D.C. The CJIS Advisory Panel
advises the FBI with respect to programs administered on behalf
of the U.S. criminal justice community and is located in
Clarksburg, West Virginia. To meet its mission to reduce
criminal activity, CJIS provides timely and relevant criminal
justice information to the FBI and to qualified law
enforcement, criminal justice, civilian, academic employment,
and licensing agencies concerning individuals, stolen property,
criminal organizations and activities and other law
enforcement-related data. CJIS has six components: (1)
Fingerprint Identification System; (2) National Crime
Information Center (NCIC); (3) National Instant Criminal
Background Check System; (4) Law Enforcement On-Line; (5)
Uniform Crime Reporting; and (6) other systems determined by
the FBI Director to have some relationship to the above
programs.
The primary function of the CJIS Division is to provide
fingerprint identification services and to maintain a national
criminal history repository. This is very important in the war
against terrorism. On July 28, 1999, CJIS implemented the new
integrated automated tool--the Integrated Automated Fingerprint
Identification System (IAFIS). IAFIS has three parts which have
automated much of the existing work flow and manual processes
and eliminated the need to process and retain paper fingerprint
cards. IAFIS can process up to 62,500 ten-print fingerprint
searchers (i.e. rolled paper prints) and 635 latent fingerprint
(i.e. one left at the scene of a crime) search.
The National Crime Information Center (NCIC) is a
nationwide computerized information system accessed by more
than 80,000 law enforcement and criminal justice agencies at
all levels of government. The Uniform Crime Reporting/National
Incident-Based Reporting System (NIBRS) is a nationwide
cooperative effort of city, county, and state law enforcement
agencies to report data on crimes. There are eight crimes in
the Crime Index: murder, nonnegligent manslaughter, forcible
rape, robbery, aggravated assault, and property crimes of
burglary, larceny-theft, motor vehicle theft, and arson.
Another component, the National Instant Criminal Background
Check System (NICS) was established as a result of the Brady
Act, which in 1998 required the Federal Firearms Licensees
(FFL) to initiate a background check on all persons who attempt
to purchase a firearm. The FBI established the NICS operation
center to enforce the provisions of the Brady Act and to
manage, operate and support NICS. The NICS mission is to ensure
the timely transfer of firearms to individuals who are not
specifically prohibited under Federal law and to deny the
transfer to those who are prohibited from possessing or
receiving a firearm.
Law Enforcement On-Line (LEO), is a national interactive
computer communications. LEO provides a state-of-the-art
Intranet to link all levels of law enforcement nationwide. LEO
offers real-time chat capability, news groups, distance
learning, and articles on law enforcement issues, to name a
few. Additionally, CJIS runs other systems related to the above
programs.
On February 21, 2002, the staff of the Subcommittee on
Crime, Terrorism, and Homeland Security traveled to CJIS in
West Virginia. In particular the Subcommittee concentrated on
the FBI Operations Center-NICS. Subcommittee staff met
examiners who perform NICS instantbackground checks for
federally licensed firearms dealers. The meetings provided the
Subcommittee with firsthand knowledge of the instant check system and
the appeal process for firearms purchases and assisted in the drafting
of legislation. FBI personnel also highlighted the types of technology
available at the center to perform background checks and fingerprint
identifications, which are a concern after the terrorist attacks of
2001. Specifically, the FBI described its effort to integrate their
biometric technology with other Federal agencies and with the states.
Computer hacking issues
On March 22, 2001, the Subcommittee staff met with the FBI
to discuss the growing threat of computer hacking to the
Nation's economy and security. This meeting provided invaluable
information that the Subcommittee used in drafting various
cyber crime provisions enacted in the 107th Congress.
FBI reorganization
On October 23, 2001, the Subcommittee staff met with the
FBI Director Robert Mueller for a briefing on the proposed
reorganization of the FBI. At that meeting the FBI explained
that due to the 9-11 attacks and terrorism threat that
terrorism was now the FBI's number one priority and that the
reorganization was based on these new priorities.
FBI Academy/Hostage Rescue Team
On April 17, 2002, the Subcommittee staff toured the FBI
Academy at Quantico, Virginia, to review FBI training efforts.
Staff were also briefed on the FBI training for state and local
law enforcement and on the Hostage Rescue Team's work.
Implementation of USA Patriot Act information sharing requirements
On September 30, 2002, the Subcommittee and Committee staff
met with the Department of Justice, the FBI and the CIA to
discuss the implementation of the information sharing
provisions of the USA Patriot Act. The Committee continues to
conduct oversight over these and other Patriot Act provisions.
FBI outdated technology issues
In April and May of 2001, the Subcommittee staff met with
the FBI to discuss concerns that the FBI computer systems are
slow, unreliable, and obsolete.
Problems with document retrieval on Oklahoma City
The Subcommittee also met with the FBI and DOJ on the
belated production of documents related to the Oklahoma City
case. On April 25, 2001, the Committee on the Judiciary sent an
oversight letter to the Justice Department regarding this
problem and urged the FBI and DOJ to take steps to upgrade
their information technology systems. The Chairman of the
Subcommittee on Crime issued a public statement on May 11,
2001, expressing further concern after problems developed in
the Timothy McVeigh case relating to inaccurate record keeping.
Subcommittee staff also met with the FBI to discuss these
issues and concerns. In March 2002, the Office of Inspector
General (OIG) issued a report that found that the FBI's
failures to disclose numerous documents related to the case in
a timely manner were due to a number of causes including:
individual mistakes made by FBI employees, the FBI's
cumbersome and complex document-handling procedures,
agents' failures to follow FBI policies and directives,
inconsistent interpretations of FBI policies and
procedures, agents' lack of understanding of the
unusual discovery agreement in this case, and the
tremendous volume of material being processed within a
short period of time. The OIG concluded that the FBI's
computer systems--although antiquated, inefficient, and
badly in need of improvement--were not the chief cause
of the failures.
Missing equipment at the FBI
In July, the Subcommittee learned that the FBI could not
account for 449 firearms and 184 laptops. On July 17, 2001, the
Attorney General directed that the Department of Justice's
Inspector General would conduct a Department-wide review. The
Immigration and Naturalization Service and the Bureau of
Prisons had similar problems. The reviews are examining the
inventory of Federal law enforcement equipment that may pose a
danger to the public (i.e., missing guns) or a threat to
national security (i.e., missing laptops). The OIG is
conducting three separate reviews and in August 2002 reported
its findings on the Bureau of Prisons. That report recommends
that the Bureau of Prisons improve their controls.
The Committee sent a letter on July 12, 2001 to the
Department of Justice requesting specific information on the
missing equipment. Of the 449 weapons, 265 are reported lost
and 184 are reported stolen. Ninety-one of those weapons were
training weapons that are inoperative. The weapons that were
stolen were from automobile trunks, home burglaries, and armed
robberies. One of the stolen guns was used in a murder in
Detroit, Michigan. Of the 184 laptops, 13 were stolen and 171
were reported lost. Of the 171 reported lost one contained and
three others may have contained classified information. Since
July 17, 2001, one of the three laptops that may contain
classified information has been found. None of the stolen
computers contained classified information. These computers
could also contain law enforcement sensitive information.
On July 24, 2001, the FBI briefed Members of the Committee
on the Judiciary on the ``lost and stolen weapons and
laptops.'' A hearing was not requested because the FBI and
Department of Justice were in the middle of reviewing the
situation. The informal briefing allowed the FBI and the
attending Judiciary Members to participate in an informative
open dialogue on the problem. These questions solicited answers
that demonstrated to the FBI and the Department of Justice that
they needed to resolve a few more issues. In response to the
briefing, the Committee sent a letter on August 2, 2001,
requesting additional information from the Department of
Justice.
Secret Service oversight: Counterfeiting
On August 15, 2001, staff of the Subcommittee on Crime met
with the special agents of the Unites States Secret Service's
counterfeiting divisions. The meeting provided staff with
knowledge of the new counterfeiting problems related to
computer technology and dollarization. ``Dollarization''
throughout the world will increase overseas counterfeit
activities of U.S. currency. Dollarization is when another
country adopts the U.S. dollars as its own currency. This has
already happened in such countries as Guatemala, Ecuador and
Panama. The Committee on the Judiciary expressed its support
for the establishment of four foreign offices in regions where
increased liaison, training and other services to foreign
financial institutions and law enforcement agencies are
necessary to prevent the manufacturing of counterfeit U.S.
currency and financial crimes victimizing U.S. financial
institutions in the FY 2003 Views and Estimates. Counterfeiting
is a serious threat to the Nation's security as it undermines
our financial structure and assists criminals such as drug
traffickers and terrorists in financing their activities.
Electronic crime task forces
On May 30, and August 18, 2001, staff of the Subcommittee
on Crime traveled to New York City to meet with the special
agents of United States Secret Service's New York Electronic
Crimes Task Force. At these meetings, the staff learned about
the operations of the task force. The meetings provided the
staff with firsthand knowledge of sensitive law enforcement
efforts and cases carried out by the Secret Service. Bob
Weaver, the Special Agent in Charge of the Unit, highlighted
the types of technology and crime that are occurring. The
evidence and technology reviewed by staff were destroyed in the
September 11, 2001 terrorist attacks. These meetings allowed
the staff an opportunity to determine whether to suggest
authorizing a national network of electronic crime task forces
based on the New York task force. This national network was
authorized in Public Law 107-56, the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act (USA Patriot Act) of 2001.
ATF/Gun Issues: Gun shows
On January 11, and 12, 2002, staff from the Subcommittee on
Crime attended a gun show with Americans for Gun Safety in
Richmond, Virginia. The purpose of the trip was to afford the
Subcommittee staff an opportunity to experience a gun show
firsthand and receive a briefing from the Americans for Gun
Safety's position on the ``gun show loophole.'' Americans for
Gun Safety (AGS) is a non-partisan, not-for-profit advocacy
organization that supports the right of individuals to own
firearms and urges responsibility in keeping guns out of the
hands of criminals and children. Overall, this gun show did not
present any evidence that the ``gun show loophole'' is a major
problem that needs to be addressed by legislation.
ATF New York Office
On August 14-16, 2002, staff of the Subcommittee on Crime,
Terrorism, and Homeland Security and the Judiciary Committee
traveled to New York City to learn about the operations of the
ATF in New York. The ATF took staff to a platform on the
building next the World Trade Center site, which overlooks the
site. Several New York ATF agents described the events of 9-11
from their perspective inside Tower 7 and the rescue and
cleanup efforts. We were shown much of the destruction from
that day including other buildings and the damage each
sustained. Communications, evacuations and response efforts
after the attack were discussed. In addition, the differences
between this investigation and the investigation of the 1993
World trade Center were described.
Staff of the Subcommittee on Crime, Terrorism, and Homeland
Security were briefed on the ATF National Response Team
facility in Red Hook, N.Y., which consists of a large,
emergency response vehicle and trained specialists in arson,
explosives and bio-weapons. The primary mission of the ATF
National Response Teams is to assist state and local fire and
police agencies. The teams are trained to assist local fire
investigators in the investigation of suspected crime sites,
e.g. car bombings or arson to cover up other crimes. Evidence
extraction and preservation is key to subsequent stages of
investigations and prosecutions.
In the afternoon, Paul Browne, Deputy Commissioner of the
New York Police Department briefed us on the added security
precautions that have been taken since 9/11 especially with
regard to certain bridges and buildings that have been the
subject of intelligence reports provided to the NYPD by Federal
agencies. Additionally, counsels were given a tour of the new
offices of the New York Field Division of ATF and briefed us on
the transition and the great assistance that GSA and the
appropriation by Congress of emergency supplemental funding
provided. We were also briefed on the ATF Crime Gun Center
(Center) operated out of the New York Field Division offices.
The Center compiles crime gun information that is used
primarily for assisting state and local police agencies to
solve crimes, deploy additional resources to areas where crime
weapons are recovered, and proactive investigations and arrests
of Federal firearms licensees (FFLs) who may be engaged in
illegal firearms trafficking. The Center compiles data such as
the number of crime guns traced to an FFL in a 1-year time
frame, time to crime information, numbers of firearms stolen,
multiple gun sales by a dealer to one individual, and the
number of unsuccessful traces by a particular FFL trends.
Ballistics imaging
On November 8, 2002, staff from the Subcommittee on Crime,
Terrorism, and Homeland Security visited the ATF's Ballistics
Imaging Center in Rockville, Maryland, and it's weapons library
in Washington, D.C. to learn about how bullets and casings are
entered into the system and matched to guns and to learn about
the various types of weapons that are banned in the United
States.
Dog training
On April 2, 2002, staff from the Subcommittee on Crime
toured the Bureau of Alcohol, Tobacco and Firearms and the U.S.
Customs Service canine training center in Front Royal,
Virginia, to learn about the training program for bomb sniffing
and drug sniffing dogs that these two agencies employ,
respectively.
Explosives
On August 29, 2002, staff of the Subcommittee on Crime,
Terrorism, and Homeland Security traveled to Fredericksburg,
VA, with the Bureau of Alcohol, Tobacco and Firearms for a
demonstration of the different types of explosives and the
damage each can cause.
Bureau of Prisons
On November 21, 2002, staff from the Subcommittee on Crime,
Terrorism, and Homeland Security toured the Federal
Correctional Institute (FCI) at Fairton, New Jersey, to learn
about the conditions and the opportunities for education,
skills training and counseling the prisoners receive. FCI
Fairton houses prisoners classified at both medium security and
minimum security levels.
United States Sentencing Commission: Crack/powder cocaine penalty
ratios
On January 17, 2002, the United States Sentencing
Commission (the Commission) published in the Federal Register a
request for public comment regarding proposed amendments to the
U.S. Sentencing Guidelines regarding penalties for crack
cocaine. Under the current statutory scheme and sentencing
guidelines, there is a 100-1 differential between powder and
crack cocaine that triggers a 5- and 10-year mandatory minimum
sentence. For example, someone trafficking 5 grams of crack
cocaine would receive the same 5 year mandatory minimum
sentence as someone trafficking 500 grams of powder cocaine. On
March 29, 2002, the Subcommittee sent a letter to the
Commission objecting to any change to the current Federal
sentencing policy and guidelines.
The Subcommittee noted in that letter and in meetings with
the staff of the Commission that Congress's decision to
differentiate crack cocaine from powder cocaine in the penalty
structure was deliberate and the Commission appropriately
followed those directives in implementing the drug penalty
guidelines in 1989. Crack is more addictive than powder
cocaine; it accounts for more emergency room visits; it is most
popular among juveniles; it has a greater likelihood of being
associated with violence; and crack dealers have more extensive
criminal records than other drug dealers and tend to use young
people to distribute the drug at a greater rate.
On April 15, 2002, in a letter to the Subcommittee, the
Commission stated that they were persuaded by the reasoning of
the Subcommittee's March 29, 2002 letter and therefore decided
not to promulgate an amendment to the Sentencing Guidelines.
The Commission would instead make a recommendation to Congress
for a change to the crack/powder cocaine penalty ratios.
Racial profiling
The Subcommittee has had several meetings with the
Department of Justice with regard to the issue of racial
profiling and possible legislation such as H.R. 2074, a bill
introduced by Representative John Conyers, Jr., that seeks to
address the issue. The Subcommittee has expressed two important
points to the Department with regard to the issue of racial
profiling: (1) Racial profiling is prohibited under current
law; and (2) H.R. 2074 would undermine legitimate law
enforcement and have a disproportionate effect on minority
communities.
Racial profiling, as any reasonable person understands it--
intentional police action against a person based solely upon
that person's race--is already prohibited under the
Constitution's Equal Protection Clause of the Fourteenth
Amendment, see Whren v. United States, 517 U.S. 806, 813
(1966), as well as existing criminal and civil statutes.
Title 18 U.S.C. Sec. Sec. 241 and 242 are criminal
provisions already available to prosecute Federal, state and
local police officials who target persons solely because of
race or ethnicity. The Courts have consistently ruled that the
Constitution does not prohibit police from routinely taking
race into account, as long as race is only one of several
factors considered and it is not done for the purpose of
harassment. See, United States v. Weaver, 966 F.2d 391, 394
(8th Cir.1992). H.R. 2074 would prohibit investigative agencies
from using both historical and practical experience to focus an
investigation. It would also prohibit the use of case-specific
information from informants or cooperators in cases where
criminals were using persons of particular races or ethnicity
to further the criminal enterprise. The Subcommittee will
continue to conduct oversight of the Department of Justice and
its enforcement of the Federal laws prohibiting racial
profiling.
Newport News Courthouse
On April 17, 2002, the Subcommittee sent a letter to the
Administrative Office of the United States Courts expressing
its concern about the proposed transfer of the U.S. Magistrate
Judge in Newport News, Virginia, along with a majority of the
clerk's office personnel, to Norfolk, Virginia. The concern of
the Subcommittee was that this transfer was inconsistent with
case load requirements. The Newport News Division handled a
third of the criminal work in addition to a fourth of the civil
work of the combined Newport News and Norfolk Division offices.
Since the U.S. Attorneys office had increased its presence in
Newport News and the Federal Public Defender had similar plans,
it did not seem to be a coordinated action by the Court and the
Subcommittee sought justification for the relocation.
In a letter dated April 25, 2002, Judge Rebecca Beach Smith
of the United States District Court of the Eastern District of
Virginia stated that the decision was a thoughtful action taken
in an effort to best serve the growing Norfolk and Newport News
dockets with the limited judicial resources available to the
Courts. Additionally, Judge Smith informed the Subcommittee
that the federal court facility in Newport News is in an
extremely deteriorating condition, which poses grave security
concerns for the court and the public. The Subcommittee will
continue to monitor the effect the transfer of the Magistrate
has on the courts of the Norfolk Division.
New Jersey speed violation survey
On April 23, 2002, the Subcommittee wrote to Attorney
General Ashcroft concerning press reports that the Department
of Justice may have attempted to suppress or delay the public
release of a December 13, 2001 final report by the Public
Services Research Institute entitled ``Speed Violation Survey
of the New Jersey Turnpike: Final Report, December 13, 2001.''
That report reflected that Black motorists in New Jersey were
much more likely than White or Hispanicmotorists there to
exceed the lawful speed limits on the New Jersey Turnpike. This is
currently an ongoing oversight matter.
Misleading testimony before the subcommittee
On May 14, 2002, the Subcommittee held a legislative
hearing on the bill, H.R. 4689, the ``Fairness in Sentencing
Act of 2002.'' This bill would disapprove of an amendment to
the Sentencing Guidelines submitted by the United States
Sentencing Commission to Congress that would create a drug
quantity ``cap'' for those persons convicted of trafficking in
large quantities of drugs if those persons also qualify for a
mitigating role adjustment under the existing guidelines. One
of the witnesses that testified at the hearing was the
Honorable James M. Rosenbaum, Chief Judge, U.S. District Court,
District of Minnesota. Judge Rosenbaum testified against the
bill and advocated strongly that the Sentencing Commission's
amendment to cap the base offense level for those trafficking
in large quantities of drugs was very much needed to bring
equity to the Federal sentencing system.
In describing those persons who would be affected by the
Sentencing Commission's amendment, he testified: ``they are the
women whose boyfriends tell them, `A package will be coming by
mail or from a package delivery service in the next 2 weeks.
Keep it for me, and I'll give you $200, or maybe I'll buy you
food for the kids.' Or they are drug couriers who either
swallow, wear, or drive drugs from one place to another. And
they frequently have no idea what they are carrying or
receiving, and if they have an idea of what, they usually don't
know how much.'' Throughout his testimony, Judge Rosenbaum
described drug cases in his courthouse in which defendants with
minor roles in drug organizations were subject to prison terms
of a decade or more. He also described how the Sentencing
Commission's amendment to the guidelines would lessen those
sentences.
Following the hearing, the Subcommittee submitted
additional written questions to Judge Rosenbaum on May 22,
2002, in order to ascertain, among other things, the actual
cases to which Judge Rosenbaum referred during his testimony.
After receiving the May 22, 2002 letter, Judge Rosenbaum
contacted Subcommittee Chairman Lamar Smith by telephone and
asked that the Chairman agree to permit the Judge to limit his
response to ``publicly available information.'' The Chairman
agreed that the Judge's initial response could be so limited.
Thereafter, Judge Rosenbaum responded to the Subcommittee's May
22, 2002 letter on June 6, 2002. Along with his response, Judge
Rosenbaum conveyed copies of nine Judgment and Commitment
Orders, which reveal some, but by no means all, of the
information sought by the Sub-committee. Both in his June 6,
2002 response, and thereafter, Judge Rosenbaum declined,
however, to answer certain questions posed to him by the
Subcommittee relevant to his testimony, even for the cases over
which he personally presided.
The Subcommittee was able to determine, through pre-
sentence investigation reports and transcripts of sentencing
proceedings, that Judge Rosenbaum inaccurately represented the
sentences of the defendants in the examples he offered as
evidence that the amendment to the guidelines was necessary.
For example, Judge Rosenbaum said a woman he identified as
``MGA'' was in court after she received $2,000 for agreeing to
accept a package of drugs. He stated that her guideline range
was 57 to 71 months, or five to seven years, after reductions
for role, acceptance and other factors. According to the Judge,
under the proposed change, her range would instead be 37 to 46
months, or three to four years. However, Judge Rosenbaum never
explained that the woman was actually sentenced to six months
of work release.
At a meeting on November 7, 2002, with representatives of
the Administrative Office of the United States Courts,
Committee staff stated that it was the opinion of the Committee
that Eighth Circuit Chief Judge David Hansen should initiate a
complaint against Judge Rosenbaum for consideration by the
Circuit Council. In a letter dated December 4, 2002, Judge
Hansen stated he is disinclined to exercise his statutory
discretion to initiate a complaint against Judge Rosenbaum at
this time. Judge Hansen noted that one of the cases used by
Judge Rosenbaum is still on appeal and that Judge Rosenbaum has
yet to respond to the Subcommittee's October 16, 2002 letter
requesting additional information. Judge Hansen stated that he
thinks it is ``advisable to await his response before I decide
what action, if any, is merited under the discipline statute.''
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW \1\
BOB BARR, Georgia, Chairman
MELVIN L. WATT, North Carolina JEFF FLAKE, Arizona, Vice Chair
JERROLD NADLER, New York GEORGE W. GEKAS, Pennsylvania
TAMMY BALDWIN, Wisconsin MARK GREEN, Wisconsin
ANTHONY D. WEINER, New York DARRELL E. ISSA, California
MAXINE WATERS, California STEVE CHABOT, Ohio
MELISSA A. HART, Pennsylvania \2\
MIKE PENCE, Indiana \3\
----------
\1\ Subcommittee chairmanship and assignments approved January 31,
2001.
\2\ Melissa A. Hart, Pennsylvania, removal from the subcommittee
approved June 13, 2002.
\3\ Mike Pence, Indiana, assignment to the subcommittee approved June
13, 2002.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 63
Legislation reported favorably to the full Committee.............. 10
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 1
Legislation ordered tabled in the Subcommittee.................... 1
Legislation pending before the full Committee..................... 1
Legislation reported to the House................................. 8
Legislation discharged from the Committee......................... 4
Legislation pending in the House.................................. 2
Legislation passed by the House................................... 10
Legislation pending in the Senate................................. 3
Legislation vetoed by the President............................... 0
Legislation enacted into public law............................... 7
Legislation enacted into public law as part of another bill....... 2
Legislation on which hearings were held........................... 10
Days of legislative hearings...................................... 6
Days of oversight hearings........................................ 9
Jurisdiction of the Subcommittee
The Subcommittee on Commercial and Administrative Law has
legislative and oversight responsibility for the Independent
Counsel statute, the Legal Services Corporation, the Office of
Solicitor General, the U.S. Bankruptcy Courts, the Executive
Office for the U.S. Trustees of the Department of Justice, the
Executive Office of United States Attorneys, and the
Environment and Natural Resources Division of the Department of
Justice. The Subcommittee's legislative responsibilities
include administrative law (practice and procedure), regulatory
flexibility, State taxation affecting interstate commerce,
bankruptcy law, bankruptcy judgeships, legal services, Federal
debt collection, the Contract Disputes Act, the Federal
Arbitration Act, and interstate compacts.
Legislative Activities
ADMINISTRATIVE LAW AND REGULATORY REFORM
The Subcommittee has jurisdiction over the Administrative
Procedure Act 1 and related legislation. In
addition, the Subcommittee has responsibility for matters
affecting privacy rights. Administrative law provides the
framework for accountability of administrative agencies,
including agency rulemaking, adjudicatory proceedings, and
judicial review.
---------------------------------------------------------------------------
\1\ 5 U.S.C. Sec. Sec. 551-59, 701-06, 1305, 3105, 3344, 5372, 7521
(2001).
---------------------------------------------------------------------------
H.R. 5005, the ``Homeland Security Act of 2002'' (Pub. L. No. 107-296)
Summary.--On June 6, 2002, President George W. Bush
announced his proposal to create a Cabinet-level Department of
Homeland Security and provide for the transfer of numerous
governmental entities from various Federal agencies into a
single unit devoted to domestic security protection. At the
request of the Administration, implementing legislation was
subsequently introduced on June 24, 2002 as H.R. 5005, the
``Homeland Security Act of 2002,'' by Majority Leader Dick
Armey together with 113 original cosponsors.
H.R. 5005 was intended to respond to the terrorist attacks
of September 11, 2001. These attacks and the apparent breach of
national security which permitted their occurrence starkly
documented the dangers threatening the security of our nation
in the twenty-first century. Given these developments and the
unprecedented challenges presented by constantly evolving
technological advances, H.R. 5005 represented an important
legislative response. It also presented issues with respect to
whether one integrated authority dedicated to ensuring the
safety and security of our nation's homeland would be an
effective response and how to craft the administrative
implementation of this new agency so its components would
function in a cohesive and operationally functional manner.
Under the President's proposal, 22 existing governmental
units consisting of approximately 170,000 employees will be
integrated into one agency--the Department of Homeland
Security--organized into four divisions. Each division, in
turn, will be headed by a Senate-confirmed Under Secretary. The
creation of such a comprehensive Federal agency presented
important issues concerning administrative law and procedure as
well as privacy concerns.
Legislative History.--On July 9, 2002, the Subcommittee
conducted a hearing on the administrative law, adjudicatory
issues, and privacy ramifications related to the creation of
the proposed Department of Homeland Security presented by H.R.
5005. Witnesses included: Mark Everson, Deputy Director for
Management at the Office of Management and Budget nominee,
appearing on behalf of the Administration; Professor Jeffrey
Lubbers of American University Washington College of Law; and
Professor Peter Swire of Ohio State University Moritz College
of Law.
The hearing provided an opportunity to explore issues
relating to how the divergent rulemaking and adjudicative
processes of the various governmental units being integrated
into theDepartment of Homeland Security would be harmonized and
whether Congressional review of the constituent entities comprising the
Department of Homeland Security would be affected. The potential impact
on personal privacy with respect to information sharing authorized
under the President's proposal between the Department and other law
enforcement agencies was also explored at the hearing.
In addition, the hearing highlighted the privacy
ramifications presented by the creation of this new Federal
agency. For example, section 201 of H.R. 5005 (as originally
introduced) specified the primary responsibilities of the Under
Secretary for Information Analysis. In pertinent part, it
stated that this officer would be responsible for ``making
recommendations for improvements in policies and procedures
governing the sharing of law enforcement, intelligence, and
other information relating to homeland security within the
Federal government and between such government and State and
local government personnel, agencies, and authorities.'' Given
the nature of the Department's authority in this regard,
witnesses were extensively queried about the privacy impact of
regulations and the possible need for the appointment of a
privacy officer.
As a result of this hearing, the Subcommittee made various
recommendations with respect to the proposed legislation. At
the Committee's mark up of H.R. 5005 on July 10, 2002, several
of Subcommittee Chairman Barr's amendments reflecting these
recommendations were adopted. As passed by the Committee, the
bill would require the appointment of a privacy officer to
ensure the Department's compliance with the Privacy Act of 1974
and permit congressional oversight of such compliance. In
addition to information technologies, this officer would be
responsible for assuring that all forms of technologies,
including surveillance systems such as the Carnivore Project,
do not erode citizens' privacy protections. This officer would
report to Congress on privacy violations and conduct privacy
impact assessments of proposed rules when such assessment is
deemed appropriate by the Secretary. The bill, as amended by
the Committee, also would direct the Secretary to establish
procedures ensuring the confidentiality and accuracy of
personally identifiable information. The text of this provision
is substantively identical to H.R. 4598, the Homeland Security
Information Sharing Act. Further, the bill contains a clear
mandate that it not be construed to authorize the development
of a national identification system or card. Finally, the bill
includes provisions intended to better effectuate the
administrative procedures and adjudicative processes of the new
Department, including the appointment of a task force on
administrative procedure. For a discussion of the subsequent
disposition of H.R. 5005, see the Full Committee section of
this report.
H.R. 4561, the ``Federal Agency Protection of Privacy Act''
Summary.--H.R. 4561, the ``Federal Agency Protection of
Privacy Act,'' was intended to help safeguard privacy rights of
Americans. While existing Federal statutes protect against the
disclosure of information already obtained by the Federal
government, the Federal Agency Protection of Privacy Act would
have provided the public with prospective notice and an
opportunity to comment on how proposed Federal rules might
affect personal privacy before they become binding regulations.
The bill would have required rules noticed for public comment
by Federal agencies to be accompanied by an initial assessment
of the rule's impact on personal privacy interests, including
the extent to which the proposed rule provided notice of the
collection of personally identifiable information, the type of
personally identifiable information to be obtained, and the
manner in which this information would be collected,
maintained, protected, transferred, or disclosed by the Federal
government. The bill also would have required a final rule to
be accompanied by a final privacy impact analysis detailing how
the issuing agency considered and responded to privacy concerns
raised by the public during the comment period and explaining
whether the agency considered less burdensome alternatives.
H.R. 4561, in addition, contained a provision for judicial
review to ensure agency compliance with its requirements.
Legislative History.--Subcommittee Chairman Bob Barr (R-GA)
(for himself and six original cosponsors) introduced H.R. 4561
on April 24, 2002. H.R. 4561 attracted strong bipartisan
support as evidenced by its 43 cosponsors representing a broad
cross-section of the political spectrum.
The Subcommittee held a legislative hearing on H.R. 4561 on
May 1, 2002. Although witnesses who testified at the hearing
represented an ideologically-diverse range of viewpoints, each
one expressed strong support for the legislation. Witnesses who
testified included: Lori Waters on behalf of the Eagle Forum;
Gregory Nojeim, representing the American Civil Liberties
Union; James Harper on behalf of Privacilla.com and Progress &
Freedom Foundation; and Edward Mierzwinski, representing the
United States Public Interest Group.
On July 9, 2002, the Subcommittee ordered H.R. 4561
favorably reported without amendment by voice vote. Thereafter,
the Committee ordered the bill favorably reported without
amendment by voice vote on September 10, 2002. The Committee
reported H.R. 4561 on September 30, 2002 as H. Rept. 107-701.
On October 7, 2002, the House passed H.R. 4561 by voice vote
under suspension of the rules. The bill was received by the
Senate on the following day, but was not acted upon prior to
the conclusion of the 107th Congress.
H.R. 3995, the ``Housing Affordability for America Act of 2002''
Summary.--H.R. 3995, the ``Housing Affordability for
America Act of 2002,'' improves access to affordable housing
for more Americans by amending specified laws related to
housing and community opportunity. The vast majority of H.R.
3995 was referred to the Financial Services Committee, while
Title VIII of the bill, pertaining to housing affordability
impact analyses, was the only portion referred to the Judiciary
Committee. Title VIII requires agencies, when promulgating any
proposed or final rule for notice and comment, to issue a
housing impact analysis when that rule has a significant
economic impact on housing affordability. ``Significant,'' as
it applies to impact, is defined as increasing consumers' cost
of housing by more than $100,000,000 per year.
Title VIII directs an agency, when publishing general
notice of a proposed rulemaking, to prepare and make available
for public comment an initial housing impact analysis which
describes and, where feasible, estimates the extent to which
the proposed rule would increase the cost or reduce the supply
of housing or land for residential development. Agencies must
also prepare a final housing impact analysis when promulgating
a final rule. Each final housing impact analysis must summarize
and assess the issues, analyses and alternatives to the
proposed rule raised during the comment period, and must state
any changes made in the proposed rule as a result of such
comments. The final housing impact analysis must also describe
and estimate the extent of the rule's impact on housing
affordability.
Title VIII of H.R. 3995 includes procedures for the
exemption from these reportingrequirements when a proposed or
final rule does not have a significant deleterious impact on housing
affordability. The initial housing impact analysis may be delayed or
waived upon publication in the Federal Register of a certification and
written finding by the head of the respective agency that the final
rule is being promulgated in response to an emergency. A final housing
impact analysis may be delayed, but not waived, for a period of not
more than 180 days after the date of publication in the Federal
Register of a final rule. In such instances, the head of the agency
must publish in the Federal Register a certification and written
finding that the final rule is being promulgated in response to an
emergency.
Legislative History.--H.R. 3995 was introduced on March 19,
2002 by Representative Marge Roukema (R-NJ) (for herself and 23
original cosponsors). During the 106th Congress, the House
overwhelmingly passed H.R. 1776, the ``American Homeownership
and Economic Opportunity Act of 2002,'' a bill containing
language nearly identical to title VIII. In addition, title
VIII of H.R. 3995 is virtually identical to H.R. 2753, the
``Housing Affordability Assurance Act,'' which was introduced
by Representative Mark Green (R-WI) on August 2, 2001, and
referred to the Judiciary Committee. The Committee took no
action on that bill.
Given the limited nature of its jurisdiction over the bill,
the Subcommittee did not conduct hearings on H.R.
3995.2 On July 16, 2002, the Subcommittee ordered
favorably reported H.R. 3995, without amendment, by voice vote.
On July 23, 2002, the Judiciary Committee met in open session
and ordered favorably reported H.R. 3995 without amendment by
voice vote. On September 4, 2002, title VIII of H.R. 3995 was
reported by the Judiciary Committee as H. Rept. 107-640, pt. I.
On September 17, 2002, H.R. 3995 was reported by the Committee
on Financial Services as H. Rept. 107-640, pt. II. Prior to the
adjournment of the 107th Congress, there was no further
consideration of H.R. 3995.
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\2\ The Subcommittee on Housing and Community Opportunity of the
Financial Services Committee conducted hearings on the remaining
portions of the bill on April 10, 23, and 24, 2002. The Housing
Affordability for America Act of 2002: Hearings on H.R. 3995 Before the
Subcomm. on Housing and Community Opportunity of the House Comm. on
Financial Services, 107th Cong. (2002).
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BANKRUPTCY
Under the Constitution, Congress is given the power to
promulgate ``uniform Laws on the subject of Bankruptcies
throughout the United States[.]'' 3 The Subcommittee
has jurisdiction over bankruptcy legislation and bankruptcy
judges.
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\3\ U.S. Const. art. I, Sec. 8, cl. 4.
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H.R. 188, H.R. 256, H.R. 1914, H.R. 2870, H.R. 2914, H.R. 4167, H.R.
5348 and H.R. 5472, to extend the period of time for which
chapter 12 of title 11 of the United States Code is reenacted
(Pub. L. Nos. 107-8, 107-17, 107-170, 107-171, 107-377)
Summary.--Chapter 12 is a specialized form of bankruptcy
relief available to a ``family farmer with regular annual
income,'' as defined in the Bankruptcy Code.\4\ This form of
bankruptcy relief permits eligible family farmers, under the
supervision of a bankruptcy trustee, to reorganize their debts
pursuant to a repayment plan. The special attributes of chapter
12 make it better suited to meet the particularized needs of
family farmers in financial distress than other forms of
bankruptcy relief, such as chapter 11 (business reorganization)
and chapter 13 (individual reorganization). It was enacted on a
temporary seven-year basis as part of the Bankruptcy Judges,
United States Trustees, and Family Farmer Bankruptcy Act of
1986 \5\ in response to the farm financial crisis of the early
1980's. It has subsequently been extended eight times.
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\4\ 11 U.S.C. Sec. 101(19) (2001).
\5\ Pub. L. No. 99-554, 100 Stat. 3124 (1986).
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During the 107th Congress, eight bills were introduced to
either extend chapter 12 or make it a permanent component of
the Bankruptcy Code. In addition, similar provisions were
included in omnibus legislation.
Legislative History.--The first bill introduced in the
107th Congress that pertained to chapter 12 was H.R. 188. This
bill, introduced by Representative Nick Smith (R-MI) on January
3, 2001, would have made chapter 12 a permanent component of
the Bankruptcy Code. Thereafter, Mr. Smith introduced H.R. 256
on January 30, 2001, a bill to retroactively reenact and extend
chapter 12 for eleven months until June 1, 2001. Chapter 12 had
previously elapsed as of July 1, 2000.6
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\6\ During the 106th Congress, the House passed H.R. 4718 on June
22, 2000 to extend chapter 12 for an additional three months until
October 1, 2000, but the Senate failed to act on this bill and chapter
12 accordingly expired as of July 1, 2000.
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In light of the noncontroversial nature of the bill, H.R.
256 was held at the full Committee, which marked up the bill
and ordered it favorably reported by a vote of 24 to 0 on
February 12, 2001 without amendment. The bill was reported by
the Committee on February 26, 2001 as H. Rept. 107-2. On
February 28, 2001, H.R. 256 was considered under the suspension
of the rules and passed by a vote of 408 to 2. It thereafter
passed the Senate on unanimous consent without amendment on
April 26, 2001. The bill was signed into law on May 11, 2001 as
Public Law 107-8.
On May 17, 2001, Representative Smith (for himself and
Representative Tammy Baldwin (D-WI)) introduced H.R. 1914, to
extend chapter 12 for four additional months. Given the
imminent expiration date of chapter 12, the bill was considered
under suspension of the rules and agreed to by the House by a
vote of 411 to 1 without amendment on June 6, 2001. As passed
by the House, the bill extended chapter 12 for three additional
months until October 1, 2001. H.R. 1914 was received in the
Senate on the following day and passed by unanimous consent
without amendment on June 8, 2001. Thereafter, the bill was
signed into law on June 26, 2001 as Public Law 107-17.
Over the ensuing months, three additional bills were
introduced further extending chapter 12. On September 10, 2001,
Representative Baldwin introduced H.R. 2870, which would have
extended chapter 12 for six additional months to April 1, 2002.
On September 20, 2001, Representative Smith introduced H.R.
2914, which also would have extended chapter 12 until April 1,
2002. Neither the Subcommittee nor the Committee considered
these bills in light of the subsequent introduction of H.R.
4167 by Chairman F. James Sensenbrenner on April 11, 2002. H.R.
4167, which retroactively extended chapter 12 for eight
additional months until June 1, 2002, was considered by the
House under the suspension of the rules and passed by a vote of
407 to 3 without amendment on April 16, 2002. The bill was
received in the Senate on the following day and passed by
unanimous consent without amendment on April 23, 2002. H.R.
4167 was subsequently signed into law on May 7, 2002 as Public
Law 107-170.
A provision further extending chapter 12 until January 1,
2003 was included in the conference report on H.R. 2646, the
``Farm Security and Rural Investment Act of 2002.''
7 This legislation was signed into law on May 13,
2002 as Public Law 107-171.
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\7\ H. Rep. No. 107-424 (2002).
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On September 9, 2002, Representative Baldwin introduced
H.R. 5348, the ``Family Farmers and Family Fishermen Protection
Act of 2002,'' a bill providing for the permanent enactment of
chapter 12 and extending its protections to family fishermen.
Neither the Subcommittee nor the Committee considered this bill
in light of the introduction of H.R. 5472, the ``Protection of
Family Farmers Act of 2002,'' by Chairman Sensenbrenner on
September 26, 2002. H.R. 5472 further extends chapter 12 from
December 31, 2002 to July 1, 2003. It was passed by the House
under suspension of the rules without amendment on October 1,
2002 by voice vote. The bill was received in the Senate on the
following day. The Senate subsequently passed H.R. 5472 without
amendment on unanimous consent on November 20, 2002. This
legislation was signed into law on December 19, 2002 as Public
Law 107-377.
H.R. 333, the ``Bankruptcy Abuse Prevention and Consumer Protection Act
of 2002''
Summary.--Representative George W. Gekas (R-PA) (for
himself and 56 original cosponsors) introduced H.R. 333, the
``Bankruptcy Abuse Prevention and Consumer Protection Act,'' on
January 31, 2001. H.R. 333 represented the culmination of more
than five years of intensive Congressional consideration of
comprehensive bankruptcy reform legislation.
Legislative History.--As introduced, H.R. 333 was virtually
identical to the conference report on H.R. 2415, the ``Gekas-
Grassley Bankruptcy Reform Act of 2000,'' 8 which
passed the House in the 106th Congress by voice vote on October
12, 2000, and passed the Senate on December 7, 2000 by a vote
of 70 to 28. On December 19, 2000, the conference report on
H.R. 2415 was pocket-vetoed by President Clinton.
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\8\ H. Rep. No. 106-970 (2000). The only differences were H.R.
333's title and the deletion of section 1224 (pertaining to the
Bankruptcy Administrator Program) from the conference report, as this
provision was previously enacted into law. Federal Courts Improvement
Act of 2000, Pub. L. No. 106-518, 501, 114 Stat. 2410, 2422 (2000).
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In the preceding two Congresses, as well as the 107th
Congress, bankruptcy reform legislation received overwhelming
bipartisan support. In the 105th Congress for example, the
House passed legislation similar to H.R. 333 on two occasions
by veto-proof margins.9 The Senate passed this
legislation by a vote of 97 to 1. The House again in the 106th
Congress passed bankruptcy reform legislation by a veto-proof
margin 10 and adopted the conference report by voice
vote. The Senate thereafter passed the conference report by a
vote of 70 to 28.
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\9\ On June 10, 1998, the House passed H.R. 3150, the ``Bankruptcy
Reform Act of 1998,'' by a vote of 306 to 118. 144 Cong. Rec. H4442
(daily ed. June 10, 1998). Thereafter, the House passed the conference
report on H.R. 3150 by a vote of 300 to 125 on October 9, 1998. 144
Cong. Rec. H10239-40 (daily ed. Oct. 9, 1998).
\10\ On May 5, 1999, the House passed H.R. 833, the ``Bankruptcy
Reform Act of 1999,'' by a vote of 313 to 108. 145 Cong. Rec. H2771
(daily ed. May 5, 1999).
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H.R. 333 consisted of a comprehensive package of reform
measures pertaining to both consumer and business bankruptcy
cases. The purpose of the bill was to improve bankruptcy law
and practice by restoring personal responsibility and integrity
in the bankruptcy system and by ensuring that the system is
fair for both debtors and creditors. It was introduced in
response to several developments affecting bankruptcy law and
practice. One development has been the continuing surge in
bankruptcy filings. According to the Administrative Office of
the United States Courts, bankruptcy filings as of 2002
exceeded 1.5 million, which ``broke all records'' and
represented the ``largest number of cases ever filed'' in any
one-year period.11 Since 1996, when bankruptcy
filings first exceeded one million, filings as of June 2002
increased by 150 percent.12
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\11\ Administrative Office of the U.S. Courts News Release,
Bankruptcy Cases Total Over 1.5 Million for First Time--Personal
Bankruptcy and Quarterly Filings Hit Historic Highs (Aug. 14, 2002).
\12\ Id.
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Coupled with this development was the release of a
privately funded study, which estimated financial losses in
1997 resulting from bankruptcy exceeded $44 billion, a loss
equal to approximately $400 per each American
household.13 This study projected that even if the
growth rate in personal bankruptcies slowed to only 15 percent
over the next three years, the American economy would have to
absorb a cumulative cost of more than $220
billion.14
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\13\ Bankruptcy Reform Act of 1998: Hearings on H.R. 3150 Before
the Subcomm. on Commercial and Admin. Law of the House Comm. on the
Judiciary, 105th Cong. 147 (1998).
\14\ Id.
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The consumer bankruptcy provisions of H.R. 333 were
intended to enhance recoveries for creditors and include
protections for consumer debtors. With respect to creditors,
H.R. 333's principal provisions consisted of needs-based
bankruptcy relief, general protections for creditors, and
protections for specific types of creditors. The bill's debtor
protections included heightened requirements for those
professionals and others who assist consumer debtors in
connection with their bankruptcy cases, expanded notice
requirements for consumers with regard to alternatives to
bankruptcy relief, required participation in debt repayment
programs for consumers before they may be eligible to be
debtors in bankruptcy, mandatory consumer financial management
education for debtors, and heightened disclosures in connection
with credit card solicitations, monthly billing statements, and
related matters.
The heart of H.R. 333's consumer bankruptcy reforms was the
implementation of a mechanism to ensure that consumer debtors
repay their creditors the maximum that they can afford. This
income/expense mechanism, variously referred to as the ``needs-
based test'' or ``means test,'' articulated objective criteria
so that debtors and their counsel could self-evaluate their
eligibility for relief under chapter 7 (a form of bankruptcy
relief where the debtor generally receives a discharge of his
or her personal liability for most unsecured debts). Certain
expense allowances were localized and a debtor's special
circumstances were recognized, including episodic losses of
income. Parties in interest, such as creditors, were empowered
under H.R. 333 to move for dismissal of chapter 7 cases for
abuse. These reforms were not intended to affect consumer
debtors lacking the ability to repay their debts and deserving
of an expeditious fresh start.
With regard to business bankruptcy reforms, H.R. 333
addressed the special problems that small business debtors
present by instituting a variety of time frames and enforcement
mechanisms to identify and weed out those cases not likely to
reorganize. It also required more active monitoring of these
cases by United States Trustees and the bankruptcy courts. In
addition, H.R. 333 included provisions dealing with business
bankruptcy cases in general. With regard to single asset real
estate debtors, H.R. 333 eliminated the monetary cap from the
Bankruptcy Code's definition applicable to these debtors and
made them subject to the small business provisions of the bill.
The small business and single asset real estate provisions of
H.R. 333 were largely derived from consensus recommendations of
the National Bankruptcy Review Commission. Many of these
recommendations received broad support from those in the
bankruptcy community, including various bankruptcy judges,
creditor groups, and the Executive Office for United States
Trustees.
Other business provisions in H.R. 333 related to the
treatment of certain financial contracts under the banking laws
as well as under the Bankruptcy Code. In addition, H.R. 333
responded to the special needs of family farmers by making
chapter 12 of the Bankruptcy Code, a form of bankruptcy relief
available only to eligible family farmers, permanent.
H.R. 333, in addition, contained several provisions having
general impact with respect to bankruptcy law and practice.
Under H.R. 333, certain appeals from final bankruptcy court
decisions would be heard directly by the court of appeals for
the appropriate circuit. Another general provision of H.R. 333
required the Executive Office for United States Trustees to
compile various statistics regarding chapter 7, 11 and 13
cases, to make these data available to the public, and to
report annually to Congress on the data collected. Other
general provisions included an allowance of shared compensation
with bona fide public service attorney referral programs.
The Judiciary Committee began its consideration of
comprehensive bankruptcy reform early in the 105th Congress. On
April 16, 1997, the Subcommittee conducted a hearing on the
operation of the bankruptcy system that was combined with a
status report from the National Bankruptcy Review Commission.
This would be the first of 17 hearings that the Subcommittee
and the Committee would hold on the subject of bankruptcy
reform over the ensuing years. Ten of these hearings were
devoted solely to consideration of H.R. 333 and its
predecessors, H.R. 3150, the Bankruptcy Reform Act of 1998,
which was considered during the 105th Congress, and H.R. 833,
the Gekas-Grassley Bankruptcy Reform Act, which was considered
during the 106th Congress. Over the course of these hearings,
nearly 130 witnesses, representing nearly every major
constituency in the bankruptcy community, testified. With
regard to H.R. 833 alone, testimony was received from 66
witnesses, representing 23 organizations, with additional
material submitted by other groups. In fact, the Subcommittee's
inaugural hearing on H.R. 833 was held jointly with the Senate
Subcommittee on Administrative Oversight and the Courts on
March 11, 1999.15 This marked the first time in more
than 60 years that a bicameral hearing was held on the subject
of bankruptcy reform.
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\15\ Bankruptcy Reform: Joint Hearing Before the Subcomm. on
Commercial and Admin. Law of the House Comm. on the Judiciary and the
Subcomm. on Admin. Oversight and the Courts of the Senate Comm. on the
Judiciary, 106th Cong. (1999).
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During the 107th Congress, the Committee held two days of
hearings on H.R. 333 on February 7 and 8, 2001. Testimony was
received from eight witnesses, representing seven
organizations. During the course of the first hearing, the
Committee received testimony from Kenneth Beine on behalf of
the Credit Union National Association who explained how the
current bankruptcy system impacts small business entrepreneurs
and non-profit businesses. The Committee also received
testimony from R. Bruce Josten on behalf of the U.S. Chamber of
Commerce, who described the current consumer bankruptcy law's
adverse impact on businesses. In addition, the Committee heard
from Phillip Strauss, a professional with more than 25 years of
experience in child support enforcement. Speaking on behalf of
the California District Attorneys Association and the
California Family Support Council, Mr. Strauss described the
ways in which H.R. 333 would help ensure payment of these
obligations. George Wallace, the final witness appeared on
behalf of The Coalition for Responsible Bankruptcy Laws. He
explained the differences between the version of the bill as
reported by the Committee in the 106th Congress and H.R. 333.
The second day of hearings provided a different
perspective. The witnesses included Charles Trapp, who was a
former chapter 7 debtor. He was joined by Ralph Mabey, who
appeared on behalf of the National Bankruptcy Conference and
Professor Karen Gross of New York Law School. The final witness
was Damon Silvers, who testified on behalf of the AFL-CIO.
Although each of these witnesses acknowledged that H.R. 333 did
make needed improvements to current bankruptcy law, they
questioned the efficacy of certain provisions of the proposed
legislation.
On February 14, 2001, the Committee met in open session and
ordered favorably reported H.R. 333 with amendment by a
recorded vote of 19 to 8. The legislation, as reported by the
Committee, included two amendments offered by Chairman
Sensenbrenner which conformed: (1) the fee allocation
percentage in section 325 of the bill with that specified under
Section 406(b) of the Judiciary Appropriations Act; and (2) a
statutory cross reference necessitated by the enactment of the
Commodity Futures Modernization Act of 2000. On February 26,
2001, the Committee filed its report on H.R. 333 as H. Rept.
107-3, pt. 1.
The House, under a rule making certain amendments in order,
thereafter passed H.R. 333, as amended, on March 1, 2001 by a
vote of 306 to 108. Among the principal changes to the bill
occurring as the result of floor action was the inclusion of a
provision permitting a debtor to deduct public school expenses
up to a specified amount as an allowable expense under the
means test and a provision treating public and private school
expenses equally. In addition, the bill as passed by the House
included a provision restricting the disclosure of the name of
a debtor's child in a bankruptcy case.
H.R. 333 was received in the Senate on March 5, 2001. On
July 12, 2001, cloture was invoked by a vote of 88 to 10.
Thereafter, the Senate struck all of H.R. 333's language after
its enacting clause and substituted the text of S. 420, as
amended. H.R. 333, as amended, was then passed by the Senate in
lieu of S. 420 by a recorded vote of 82 to 16 on July 17, 2001.
The Senate then insisted on its amendment and requested a
conference.
On July 31, 2001, Chairman Sensenbrenner asked unanimous
consent that the House disagree to the Senate amendment to H.R.
333. His motion was granted without objection. The House then
considered a motion to instruct conferees offered by
Representative Tammy Baldwin (D-WI). The instructions, which
required the managers on the part of the House to agree to
title Xof the Senate amendment to H.R. 333 (relating to family
farmers and family fishermen), was agreed to by voice vote.
The following Members from the Committee on the Judiciary
were appointed as conferees for the consideration of the House
bill and the Senate amendment: Chairman Sensenbrenner, Henry
Hyde (R-IL), George Gekas (R-PA), Lamar Smith (R-TX), Steve
Chabot (R-OH), Bob Barr (R-GA), Ranking Member John Conyers (D-
MI), Rick Boucher (D-VA), Jerrold Nadler (D-NY), and Mel Watt
(D-NC). The following Members from the Committee on Financial
Services were appointed as conferees for consideration of
sections 901-906, 907A-909, 911, and 1301-1309 of the House
bill, and sections 901-906, 907A-909, 911, 913-4, and title
XIII of the Senate amendment: Mike Oxley (R-OH), Spencer Bachus
(R-AL), and John LaFalce (D-NY). The following Members from the
Committee on Energy and Commerce were appointed for
consideration of title XIV of the Senate amendment, and
modifications committed to conference: Billy Tauzin (R-LA), Joe
Barton (R-TX), and John Dingell (D-MI). The following Members
from the Committee on Education and the Workforce were
appointed for consideration of section 1403 of the Senate
amendment: John Boehner (R-OH), Mike Castle (R-DE), and Dale
Kildee (D-MI). The conference committee formally met on three
occasions: November 14, 2001, April 23, 2002, and May 22, 2002.
The conference report was filed on July 26, 2002 as H. Rept.
107-617.
The conference report differed from the House-passed
version of H.R. 333 in several respects. New provisions
included section 204, concerning the preservation of certain
claims and defenses upon sale of predatory loans; section 205,
requiring the General Accounting Office to study and report on
the reaffirmation agreement process; sections 231 and 232,
relating to the protection of personally identifiable
information, section 329, clarifying the treatment of
postpetition wages and benefits; section 330, providing for the
nondischargeability of debts incurred through violations of
laws relating to the provision of lawful goods and services;
section 331, requiring the entry of a debtor's discharge to be
delayed during pendency of certain proceedings; section 446,
specifying the duties of a debtor who is a plan administrator
for an employee benefit plan; section 447, requiring the
appointment of committee of retired employees, under certain
circumstances; sections 1004 through 1006, providing additional
protections to family farmers; section 1007, allowing certain
family fishermen to be eligible for bankruptcy relief under
chapter 12 of the Bankruptcy Code; section 1234, pertaining to
the filing criteria for involuntarily commenced bankruptcy
cases; and section 1235, making certain Federal election law
fines and penalties nondischargeable.
In addition, the conference report on H.R. 333 deleted
several provisions from the House-passed version of this
legislation. These include section 907A, which dealt with
securities and commodity broker liquidation; section 912,
pertaining to asset-backed securitizations; and section 1310,
concerning the enforceability of certain foreign judgments.
Further, the conference report modified several provisions
of the House-passed version of H.R. 333. These included
modifications to section 102, which clarified who was included
as the debtor's immediate family, a provision with respect to
additional education expenses; a provision permitting the
debtor, under certain circumstances, to include an allowance
for housing and utilities in excess of the specified amount; a
provision allowing a debtor to exclude from the income
component of the needs-based test payments to victims of
international or domestic terrorism; a modified version of the
safe harbor from dismissal for abuse based on ability to repay
with respect to consideration of the income of the debtor's
spouse; a provision permitting a chapter 13 debtor to include a
special allowance for health insurance, under certain
circumstances; and revisions pertaining to the imposition of
sanctions against a debtor's counsel.
Other sections reflecting substantive modifications
included section 202, clarifying the priority of payment for
domestic support obligations; section 224, requiring the $1
million maximum for certain exempt retirement funds to be
automatically adjusted for inflation; section 233, clarifying
that a debtor may be required to disclose the name of a minor
child under certain circumstances; section 307, clarifying that
if the effect of the domiciliary requirement for exemptions
renders the debtor ineligible for any exemption, the debtor may
elect to claim Federal exemptions; and section 308, specifying
that the homestead exemption includes real or personal property
claimed as homestead property, and extending the reachback
period from 7 to 10 years for the purpose of reducing a
debtor's homestead exemption to the extent it is attributable
to any portion of any property that the debtor fraudulently
disposed of during such period. Section 311, was substantively
modified with respect to the types of eviction proceedings
excepted from the automatic stay and the procedure with respect
to such. Section 312 was modified with respect to the time
periods during which subsequent discharges were prohibited from
being granted.
The conference report also contained a modified version of
section 313, pertaining to the definition of household goods
and antiques; section 316, concerning the mandatory dismissal
of a bankruptcy case, under certain circumstances; section 322,
pertaining to the allowability of homestead exemptions; section
438, relating to chapter 11 plan confirmation deadlines;
section 439, concerning the termination of the automatic stay;
section 441, pertaining to the grounds for dismissal or
conversion of a chapter 11 case; section 708, concerning the
nondischargeability of certain debts in a chapter 11 case;
section 910, dealing with the measure of damages for certain
terminated financial contracts; section 1224 (renumbered as
section 1223), providing for the authorization of additional
bankruptcy judgeships; and section 1234 (renumbered as section
1233) concerning expedited appeals of bankruptcy court
decisions. In addition, section 1401 was revised with respect
to when certain provisions concerning the treatment of
homestead exemptions become effective.
On July 26, 2002, the Committee on Rules reported H. Res.
506 providing for the consideration of the conference report on
H.R. 333. On unanimous consent, however, the resolution was
laid on the table on September 12, 2002. Thereafter, the Rules
Committee reported H. Res. 606 providing for consideration of
the conference report on H.R. 333 on November 13, 2002. The
resolution was not agreed to by a vote of 172 to 243 on
November 14, 2002.
Later that day, Representative Gekas moved that the House
agree with an amendment to the Senate amendment to H.R. 333.
The motion consisted of replacing the text of the Senate
amendment with the text of H.R. 5745, which was introduced by
Representative Gekas on November 14, 2002. H.R. 5745 was
virtually identical to the conference report on H.R. 333 except
that it did not include section 330, providing for the
nondischargeability of debts incurred through violations of
laws relating to the provision of lawful goods and services;
and section 1223, authorizing the appointment of additional
bankruptcy judgeships. In addition, the text included various
technical revisions. The House agreed with an amendment to the
Senate amendment to H.R. 333 by a vote of 244 to 116. The
Senate received the bill the following day, but did not act
upon it prior to the end of the 107th Congress.
STATE TAXATION AFFECTING INTERSTATE COMMERCE
The right of States to tax economic activities within their
borders is a key aspect of Federalism rooted in the
Constitution and long recognized by Congress. At the same time,
the authority of States to lay and collect taxes is subject to
various constitutional limitations. First, the Commerce Clause
prohibits States from assessing taxes which unduly burden
interstate commerce. Second, the Due Process clause prohibits
States from taxing those who lack a ``substantial nexus'' with
the taxing State. Finally, the Privileges and Immunities clause
prevents States from assessing taxes which discriminate against
nonresidents. During the 107th Congress, the Subcommittee
considered a number of bills that bear directly on State taxes
affecting interstate commerce.
Electronic commerce
The Internet and information technology (IT) industries
comprise an increasingly vital component of U.S. economic
health. Internet retail sales continue to accelerate at an
impressive rate. While some forecasts estimate Internet retail
sales could reach $300 billion annually, 16 these
claims have yet to materialize.
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\16\ See, e.g., Clayton W. Shan, Taxation of Global E-Commerce on
the Internet: The Underlying Issues and Proposed Plans, 9 Minn. J.
Global Trade 233, 235 (2000).
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Contrary to the widespread impression that the Internet is
a tax-free haven, electronic commercial transactions do not
escape all State and local taxes. Telecommunications channels
such as telephone lines, wireless transmissions, cable, and
satellites are subject to State and local taxes. Electronic
merchants are required to pay State and local income,
licensing, franchise, business activity and other direct taxes.
In addition, physically-present electronic merchants are
required to collect and remit all applicable sales and use
taxes for all intrastate transactions. In short, online
transactions are subject to nearly all taxes imposed on
traditional, brick and mortar enterprises. The only substantive
difference between the tax treatment of online and traditional
retailers is a State's authority to require nonresident
electronic merchants to collect and remit sales and use taxes.
In 1998, Congress passed the Internet Tax Freedom Act
17 (ITFA) to help address the emerging challenges
associated with Internet commerce. The ITFA imposed a three-
year moratorium on both Internet access taxes and multiple and
discriminatory taxes on electronic commerce. The bill also
created a 19-member Advisory Commission on Electronic Commerce
to examine, among other things, the effect of State and local
taxes on Internet commerce. While a majority of Commissioners
recognized the need to move toward national uniform treatment
of electronic commerce, no consensus on the taxing status of
the Internet was achieved.
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\17\ 47 U.S.C. Sec. 151 (1998).
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H.R. 1552, the ``Internet Tax Nondiscrimination Act'' (Pub. L. No. 107-
75)
Summary.--H.R. 1552 preserves and promotes the commercial
potential of the Internet by protecting electronic commerce
from multiple or discriminatory State and local taxes. H.R.
1552 accomplishes this purpose by extending the ITFA moratorium
on multiple and discriminatory taxes on electronic commerce
until November 1, 2003. It also maintains for two years the
authority of States to collect Internet access taxes if these
taxes were generally imposed and collected before October 1,
1998.
Legislative History.--H.R. 1552 was introduced by
Representative Christopher Cox (R-CA) on April 25, 2001. As
introduced, the bill would have extended the ITFA moratorium on
multiple or discriminatory taxes for an additional five years.
On June 26, 2001 the Subcommittee held a hearing on H.R.
1552 at which the following witnesses testified: James S.
Gilmore, III, Governor of the State of Virginia and Chairman of
the Advisory Commission on Electronic Commerce; Representative
Cox; Robert Comfort, Vice President for Tax and Tax Policy,
Amazon.com; and John Engler, Governor of the State of Michigan,
on behalf of the National Governors Association. Additional
information was submitted by the Internet Tax Fairness
Coalition and by Frank Julian, Operating Vice President of
Federated Department Stores, Inc.
On August 2, 2001, the Subcommittee ordered favorably
reported H.R. 1552 without amendment by voice vote. On October
10, 2001, the Committee ordered favorably reported H.R. 1552,
with an amendment, by voice vote. The Committee reported the
bill, as amended, as H. Rept. 107-240. The amendment limited
the extension of the ITFA moratorium on multiple or
discriminatory taxes on electronic commerce until November 21,
2003. On October 16, 2001, H.R. 1552, as amended, passed the
House under suspension of the rules by voice vote without
amendment. On November 15, 2001, H.R. 1552 passed the Senate by
voice vote without amendment. It was signed into law by
President Bush on November 28, 2001 as Public Law 107-75.
H.R. 1675, the ``Internet Tax Nondiscrimination Act''
Summary.--H.R. 1675 would have: (1) permanently extended
the ITFA's moratorium on multiple and discriminatory taxes on
electronic commerce; (2) permanently extended the ban on
Internet access taxes; and (3) abolished the ITFA's exemption
which permitted a handful of States to continue collecting
taxes on electronic commerce if those were widely imposed at
the time the ITFA was originally enacted.
Legislative History.--H.R. 1675 was introduced by
Representative Christopher Cox (R-CA) on May 2, 2001. On June
26, 2001, the Subcommittee held a hearing on the bill at which
the following witnesses testified: James S. Gilmore, III,
Governor of the State of Virginia and Chairman of the Advisory
Commission on Electronic Commerce; Representative Cox; Robert
Comfort, Vice President for Tax and Tax Policy, Amazon.com; and
John Engler, Governor of the State of Michigan, on behalf of
the National Governors Association. Additional information was
submitted by the Internet Tax Fairness Coalition and by Frank
Julian, Operating Vice President of Federated Department
Stores, Inc. H.R. 1675 received no further Subcommittee
consideration.
H.R. 1410, the ``Internet Tax Moratorium and Equity Act''
Summary.--H.R. 1410 would have: (1) amended the ITFA's
moratorium on multiple and discriminatory electronic taxes
until December 31, 2005; (2) continued to allow States
thatimposed Internet access taxes before passage of the ITFA to
continue to do so; (3) expressed the sense of Congress that States and
localities should work together to develop a uniform streamlined sales
and use tax system defining goods and services; and (4) stated that a
joint comprehensive study should be undertaken to determine the cost of
collecting and remitting State and local sales and use taxes under such
a streamlined system. Furthermore, H.R. 1410 would have authorized
States to enter into an Interstate Sales and Use Tax Compact if: at
least twenty States approved the Compact; Congress consented to the
Compact within 120 days after it was submitted to Congress; and the
Compact would be formed before January 1, 2006. States entering into
the Compact would then have been permitted to collect sales and use
taxes on nonresident sellers that conduct more than $5 million in gross
annual sales. Finally, the bill would have specifically exempted
franchise taxes, income taxes, licensing taxes, and any other State
taxes from the scope of its coverage.
Legislative History.--H.R. 1410 was introduced by
Representative Ernest Istook (R-OK) and eleven cosponsors on
April 4, 2001. On July 18, 2001, the Subcommittee held a
hearing on H.R. 1410 at which the following witnesses
testified: Representative Istook; Grover Norquist, President of
Americans for Tax Reform and member of the Advisory Commission
on Electronic Commerce; Frank Julian, Operating Vice President
and Tax Counsel, Federated Department Stores, Inc., testifying
on behalf of the Direct Marketing Association and Internet Tax
Fairness Coalition; and Jon W. Abolins, Chief Tax Counsel and
Vice President for Tax and Government Affairs, TAXWARE
International, Inc. The bill received no further consideration
by the Subcommittee.
H.R. 4869, the ``Satellite Radio Freedom Act,'' and H.R. 5429, the
``Satellite Services Act''
Summary.--H.R. 4869, the ``Satellite Radio Freedom Act''
and H.R. 5429, the ``Satellite Services Act,'' reflect two
approaches to provide a burgeoning telecommunications
technology with an exemption from the collection or remittance
of local income and business taxes. H.R. 4869 and H.R. 5429
were introduced by Representative Tom Davis (R-VA) on June 5,
2002 and September 23, 2002, respectively.
H.R. 4869 would exempt digital audio radio service (DARS)
providers from taxes or fees by local taxing authorities. DARS
is a direct-to-customer, satellite-delivered subscription
service providing continuous radio programming across the
country in digital quality and without interruption or fading.
H.R. 4869 would not exempt providers from local taxation in
those jurisdictions in which DARS providers maintain a land-
based ``repeater,'' or transmission apparatus. Charges subject
to State taxes would be sourced to the customer's place of
primary use; for other purposes, charges would be sourced to
the customer's home or business address.
Subsequent to the introduction of H.R. 4869, Mr. Davis
introduced an alternative bill, H.R. 5429, which exempts from
the collection or remittance of local taxation ``direct-to-
subscriber satellite service providers,'' a class broader than
solely DARS. Direct-to-subscriber satellite services are those
which currently broadcast by satellite directly to the service
subscriber as well as future services operating in the same
manner. The bill's preemption extends to those localities in
which providers maintain a terrestrial repeater. Both H.R. 4869
and H.R. 5429 preserve State authority to impose taxes on their
respective service providers and would not prevent a local
taxing jurisdiction from receiving tax revenue collected by a
State.
The bills would achieve parity with Section 602 of the
Telecommunications Act of 1996, 18 wherein ``direct-
to-home'' (DTH) satellite services receive an exemption from
local taxation and fees. DTH, also known as ``direct-broadcast
satellite video services,'' encompasses satellite television
services whose consumers are equipped with satellite receivers
located at their premises. Similar to DTH services, direct-to-
subscriber satellite services, including satellite radio, are
delivered via satellite directly to consumers equipped with
satellite receivers. Because these national services utilize
little to none of the public rights-of-way or physical
facilities of a community to transmit their signals, the
administrative burdens associated with the collection and
remittance of taxation to thousands of local jurisdictions are
considered unnecessary and undue. Direct-to-subscriber
satellite services are excluded from the scope of the exemption
under the Telecommunications Act because that exemption applies
only to DTH services. H.R. 4869 and H.R. 5429 would achieve
parity of treatment between DTH and direct-to-subscriber
satellite services. The bills promote the development of
technology while respecting reasonable concepts of State and
local taxing prerogatives.
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\18\ Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in
scattered sections of 47 U.S.C.) (1996).
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Legislative History.--On September 25, 2002, the
Subcommittee held a hearing on H.R. 4869 and H.R. 5429.
Witnesses testifying at the hearing were: Representative Davis,
sponsor of H.R. 4869 and 5429; Andrew Wright, president of the
Satellite Broadcasting and Communications Association; Nicholas
Miller, a partner with the law firm of Miller & Van Eaton,
P.L.L.C., on behalf of the National League of Cities, the
TeleCommunity Alliance, and the United States Conference of
Mayors; and Arthur Rosen, Chairman of the Coalition for Fair
and Rational Taxation and a partner with the law firm of
McDermott, Will & Emery. The witnesses discussed the reasons
for their support/opposition to the concept of a local tax
exemption for satellite-delivered services; in addition, the
hearing allowed the Members to assess the two approaches
offered by H.R. 4869 and H.R. 5429. A number of questions were
presented to witnesses following the hearing. Their responses
became part of the formal hearing record. The Subcommittee took
no further action on either H.R. 4869 or H.R. 5429.
H.R. 2526, the ``Internet Tax Fairness Act of 2001''
Summary.--H.R. 2526 would have permanently banned all
Internet access taxes while prohibiting multiple or
discriminatory taxes on electronic commerce. In addition, the
legislation would have created a bright-line physical presence
nexus requirement for States to collect business activity taxes
on multistate enterprises. 19 The genesis of the
physical-presence-nexus portion of the bill is the Supreme
Court's ruling in Quill Corp. v. North Dakota, which
invalidated State efforts to compel out-of-State sellers to
collect and remit sales and use taxes without the existence of
a physical presence or other ``substantial nexus.''
20 While the Court established in Quill a physical
presence threshold for the collection of sales taxes, it did
not fully articulate a coherent basis for determining when a
nonresident business enterprise has a sufficient economic
presence to justify the imposition of business activity taxes.
As a result, the degree of connection or nexus necessary to
justify the imposition of business activity taxes has been the
result of costly and protracted litigation between State taxing
authorities and multistate businesses.
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\19\ H.R. 2526 defined business activities taxes as those imposed
or measured by net income, a business license tax, a franchise tax, a
single business tax or a capital stock tax, or any similar tax or fee
imposed by a State or locality on an a business for the right to
conduct business within the taxing jurisdiction which is measured by
the amount of such business or related activity.
\20\ 504 U.S. 298, 311 (1992).
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Most States and some local governments levy a range of
business activities taxes on companies that either operate or
conduct business activities within their jurisdictions. With
the exception of Michigan, Nevada, South Dakota, Washington,
and Wyoming, all States and the District of Columbia levy
general corporate income taxes. H.R. 2526 would reduce the
uncertainties--and litigation costs--surrounding business
activity taxes by establishing a bright-line physical presence
requirement for States and localities as a prerequisite to
collect such taxes on multistate businesses. The bill also
lists those conditions which would not meet the ``substantial
physical presence'' threshold sufficient to warrant the
imposition of business activity taxes upon a nonresident
enterprise.
Legislative History.--H.R. 2526 was introduced by
Representative Bob Goodlatte (R-VA) on July 17, 2001. On
September 11, 2001, the Subcommittee held a hearing on H.R.
2526. Testimony was received from the following witnesses:
Arthur Rosen, Chairman of the Coalition for Fair and Rational
Taxation and partner with the law firm of McDermott, Will &
Emery; Stanley Sokul, Member of the Advisory Commission on
Electronic Commerce and Principal of Davidson & Company; Fred
Montgomery, Director of State and Local Tax of Sara Lee
Corporation; and June Summers Haas, Commissioner of Revenue of
the Michigan Department of Treasury. 21
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\21\ The hearing was adjourned prematurely due to the events
surrounding the terrorist attacks on the Pentagon and other sites;
however testimony in oral and written form was received from the
witnesses.
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The Subcommittee held a mark up of H.R. 2526 on July 17,
2002. The bill was reported by voice vote with an amendment in
the nature of a substitute offered by Subcommittee Chairman
Barr. The amendment struck the title and Internet tax language
contained in H.R. 2526 and renamed the bill the ``Business
Activity Tax Modernization Act of 2002.'' There was no further
consideration of H.R. 2526 by the Committee prior to the
conclusion of the 107th Congress.
ADDITIONAL LEGISLATION PERTAINING TO STATE TAXATION AFFECTING
INTERSTATE COMMERCE
H.R. 2559, to amend chapter 90 of title 5, United States Code, relating
to Federal Long-Term Care Insurance (Pub. L. No. 107-104)
Summary.--The Long-Term Care Security Act of 2001 (LTCSA)
22 established a program under which qualified
Federal personnel (including postal and other civilian
employees and military personnel), retirees receiving an
annuity, and certain family members may purchase long-term care
insurance from one or more private insurance carriers at a
group discount. ``Long-term care'' refers to a broad range of
supportive, medical, personal, and social services designed for
individuals who are limited in their ability to function
independently on a daily basis. While the legislation contained
broad preemption language, it did not explicitly prohibit
States and localities from taxing LTCSA insurance premiums.
H.R. 2559 makes the LTCSA more consistent with analogous
programs under which insurance is offered to Federal employees,
and makes enrollment in the LTCSA program more affordable to
potential enrollees, by amending the LTCSA to exempt premiums
under the program from State and local taxes. The bill also
expands coverage to include retired government personnel who
are not yet receiving annuity payments but are entitled to a
deferred annuity under Federal retirement programs.
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\22\ Pub. L. No. 106--265 (2001).
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Legislative History.--Introduced by Representative Joe
Scarborough (R-FL) on July 18, 2001, H.R. 2559 remedies this
perceived oversight by amending LTCSA to exempt its premiums
from State and local taxes. On October 3, 2001, the Committee
ordered favorably reported the bill without amendment by voice
vote. The Committee filed its report on H.R. 2559, H. Rept.
107--235, pt. I. The bill passed the Senate on December 17,
2001 and was signed into law by President Bush on December 27,
2001 as Public Law 107-104.
FEDERAL ARBITRATION ACT
During the 107th Congress, the Subcommittee considered
legislation pertaining to the Federal Arbitration Act.
23
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\23\ 9 U.S.C. Sec. Sec. 1-14 (1998).
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H.R. 1296, the ``Motor Vehicle Franchise Contract Arbitration Fairness
Act of 2001''
Summary.--H.R. 1296 would have amended the Federal
Arbitration Act to make arbitration clauses in certain sales
and service contracts enforceable only if parties to the
contract consent in writing to arbitrate the dispute after the
controversy in question arises. A bill similar to H.R. 1296 was
passed by the House during the 106th Congress. 24
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\24\ H.R. 543, 106th Cong. (1999).
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Legislative History.--H.R. 1296, the ``Motor Vehicle
Franchise Contract Arbitration Fairness Act of 2001,'' was
introduced by Representative Mary Bono (R-CA) on March 29, 2001
(for herself and 33 original co-sponors). During the 106th
Congress, legislation similar to H.R. 1296 was considered by
the Subcommittee and passed by the House. 25
Although the Subcommittee took no action on the bill during the
107th Congress, legislation substantively identical to H.R.
1296 was passed into law as part of H.R. 2215, the ``21st
Century Department of Justice Appropriations Authorization
Act,'' as a free-standing provision and not as an amendment to
the Federal Arbitration Act. H.R. 2215 was signed by the
President on November 2, 2002 as Public Law 107-273.
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\25\ See, e.g., Fairness and Voluntary Arbitration Act: Hearing on
H.R. 534 Before the Subcomm. on Commercial and Admin. Law of the House
Comm on the Judiciary, 106th Cong. (2000).
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INTERSTATE COMPACTS
Article I, section 10, clause 3 of the United States
Constitution provides that ``No State shall, without the
consent of Congress * * * enter into any Agreement or Compact
with another State, or with a foreign power.'' The Subcommittee
considered a number of interstate compacts during the 107th
Congress.
H.R. 3180, to provide the consent of Congress to certain amendments to
the New Hampshire-Vermont Interstate School Compact (Pub. L.
No. 352)
Summary.--H.R. 3180 provides congressional consent to
certain amendments in the New Hampshire-Vermont Interstate
School Compact of 1969. Specifically, the bill provides
participating interstate school districts with the option of
choosing ``Australian balloting'' to incur debt to support
school construction. 26 Last year, the Vermont and
New Hampshire State legislatures passed legislation adopting
these proposed changes. The proposed amendments make these
decisions a matter of local prerogative and do not dictate a
State-wide or Federal approach to resolving these questions.
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\26\ This paper ballot system was first adopted in the Australian
State of Victoria in 1856 and in the remaining Australian States over
the next several years. The paper ballot system thereafter became known
as the ``Australian ballot.'' New York became the first American State
to adopt the paper ballot for Statewide elections in 1889. As of 1996,
paper ballots were still used by 1.7% of the registered voters in the
United States. They are used as the primary voting system in small
communities and rural areas, and quite often for absentee balloting in
other jurisdictions. See Federal Election Commission, available at
http://www.fec.gov/pages/paper.htm (last visited Mar. 1, 2002).
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Originally approved by Congress in 1969, the New Hampshire-
Vermont Interstate School Compact was established to increase
educational opportunities and to promote administrative
efficiency by encouraging the formation of interstate school
districts across the New Hampshire-Vermont State line.
27 In 1978, Congress consented to a number of
amendments to the original Compact. 28 These
amendments clarified the terms of the Compact to ensure that
participating interstate school districts would receive support
from their States commensurate with their respective
contributions. The 1978 revisions also clarified the procedures
by which amendments to the articles of agreement among
interstate school district members could be approved.
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\27\ Pub. L. No. 91-21, 83. Stat. 14 (1969).
\28\ Pub. L. No. 95-536, 92 Stat. 2035 (1978).
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Legislative History.--H.R. 3180 was introduced by
Representatives Charles Bass (R-NH) and Bernard Sanders (I-VT)
on October 30, 2001. The Subcommittee held a hearing and mark
up on H.R. 3180 on March 6, 2002. Representative Bass testified
at the hearing. The bill was reported by the Subcommittee
without amendment by voice vote on March 6, 2002. On May 8,
2002, the Committee ordered H.R. 3180 favorably reported by
voice vote. The bill was reported as H. Rept. 107-478. On June
25, 2002, H.R. 3180 passed the House under suspension of the
rules by a vote of 425 to 0. The measure passed the Senate on
November 20, 2002 and was signed into law on December17, 2002
as Public Law 107-352.
H.R. 2054, to provide the consent of Congress to a proposed change in
the Utah-Nevada State boundary
Summary.--H.R. 2054 would have given the prior consent of
Congress to an anticipated compact between Utah and Nevada
regarding a change in the boundaries of those States. The area
involved relates to the city and surrounding area of Wendover,
Utah, which would be, under an agreement between the two
States, part of Nevada.
The City of Wendover, Utah and West Wendover, Nevada sit
astride the Utah-Nevada State boundary. While the two
communities of Wendover, Utah and West Wendover, Nevada are
divided only by a line painted across the street, they are
vastly different. West Wendover is a thriving city with liberal
alcohol laws, legalized gambling, and a vibrant tax base. The
town's casinos attract more than 300,000 visitors a month, and
its population has more than doubled in the past decade to
about 5,000 permanent residents. Wendover, Utah, however, is
quite different. In Wendover, gambling is illegal, and many of
the 1,500 residents live in mobile homes and work at casinos
located across the State line. Wendover's motels and businesses
have a difficult time competing with their Nevada neighbors,
and a steady erosion in Wendover's local tax base, coupled with
costly duplication of government services, makes the efficient
delivery of quality public services difficult to provide.
For some time the Wendover communities have been
considering ways to bridge the economic divide between
themselves. State and local officials have considered shifting
the State boundary in order to incorporate Wendover into
Nevada. This solution would involve moving the State line
approximately three miles into Utah and, in the process,
shifting approximately 10,000 square acres from Utah to Nevada.
On September 7, 2001, the City Councils of Wendover and West
Wendover agreed that their citizens should have a vote on
whether the State line should be moved to allow the communities
to unite. The two councils, meeting jointly on the Nevada side
of the border, agreed to ask Congress to condition its consent
to the proposed boundary change upon passage of local
referenda. H.R. 2054 would facilitate State efforts to redraw
the Nevada-Utah State line by removing Federal obstacles to a
boundary change that takes place in a manner consistent with
conditions contained in the bill.
H.R. 2054 gave congressional consent to a proposed border
change if: (1) the compact is consented to by both State
legislatures within a specified period after the date of the
enactment of the legislation; (2) the compact does not conflict
with Federal law; (3) the agreement does not change the
boundary of any other State; (4) the amount of land transferred
is not more than 10,000 acres; and (5) the primary purpose of
changing the boundaries of Utah and Nevada is to ensure that
lands located within the municipal boundaries of the City of
Wendover-Utah, including the municipal airport, shall be
located within the boundaries of Nevada. Further, H.R. 2054
would have required that Nevada and Utah enter into this
agreement no later than December 31, 2006, and that the
affirmation of Wendover, Utah and West Wendover, Nevada be
demonstrated by a majority vote taking place on the issue of
boundary movement.
Legislative History.--H.R. 2054 was introduced by
Representative James Hansen (R-UT) on June 5, 2001. The
Subcommittee held a hearing and mark up of H.R. 2054 on March
6, 2002. Representative Hansen, Chairman of the House Resources
Committee, testified in support of its passage. The
Subcommittee favorably reported H.R. 2054 by voice vote without
amendment. On May 8, 2002, the Committee ordered reported the
bill favorably to the House, with an amendment, by voice vote.
On May 16, 2002, the Committee filed the report as H. Rept.
107-469. On June 11, 2002, the House passed the bill as amended
under suspension of the rules by voice vote without amendment.
The Senate took no action on this bill prior to the conclusion
of the 107th Congress.
H.R. 1448, to clarify the tax treatment of bonds and other obligations
issued by the government of American Samoa
Summary.--Like most States and localities, American Samoa
issues government bonds to fund a variety of public projects.
However, its bond raising activities are very limited. Relevant
sections of the Internal Revenue Code exclude interest from
State and local bonds from Federal taxation. This exemption
specifically applies to the ``District of Columbia and any
possession of the United States.'' 29 This
definition, however, does not explicitly encompass United
States territories. Bonds issued by other U.S. territories and
possessions such as Guam and Puerto Rico are exempt from
Federal, State, and local taxes.
---------------------------------------------------------------------------
\29\ 48 U.S.C. Sec. 103(c)(2) (2001).
---------------------------------------------------------------------------
H.R. 1448 provides that bonds issued by American Samoa are
exempt from Federal, State, and local income taxes. As
introduced, H.R. 1448 extended this exemption to a variety of
bonds, including ``private activity bonds,'' municipal bonds
used either entirely or partially for private purposes and
which enjoy Federal tax-exempt status.
Legislative History.--H.R. 1448 was introduced by
Representative Eni F.H. Faleomovaega (D-AS) on April 4, 2001.
On March 6, 2002, the Subcommittee held a hearing and mark up
on the bill. An amendment in the nature of a substitute offered
by Subcommittee Chairman Barr to limit the tax exemption to
government-issued bonds was reported by voice vote. H.R. 1448
passed the House under suspension of the rules on September 24,
2002, but the Senate failed to consider the bill prior to the
conclusion of the 107th Congress.
LITIGATION REFORM
Hearing on health care litigation reform and H.R. 4600 the ``Help
Efficient, Accessible, Low-cost, Timely Healthcare Act''
On June 12, 2002, the Subcommittee held a hearing to
examine the impact of excessive litigation on patients' access
to health care. The following witnesses testified at the
hearing: Donald J. Palmisano, Secretary-Treasurer of the
American Medical Association; Joanne Doroshow, Executive
Director of the Center for Justice & Democracy; Danielle
Walters, Executive Vice President of Californians Allied for
Patient Protection; and Lawrence E. Smarr, President of the
Physician Insurers Association of America.
Much of the witnesses' testimony included a discussion of
some or all aspects of H.R. 4600, the ``Help Efficient,
Accessible, Low-cost, Timely Healthcare Act,'' introduced by
Representative James Greenwood (R-PA) (together with nine
original cosponsors) on April 25, 2002.
The hearing explored the causes of this current health care
crisis, its effects on health care providers and patients'
access to health care, and the success of the approach to
address these problems undertaken by California more than 25
years ago. Virtually unscathed by the effects of the current
medical professional liability insurance crisis, Californians
have enjoyed the protection of highly successful health care
litigation reforms that have made health care delivery more
accessible and cost-effective in their State.
California's Medical Injury Compensation Reform Act
(MICRA), which was signed into law by Governor Jerry Brown in
1976, has proved immensely successful in increasing access to
affordable medical care in California. MICRA's reforms include
a $250,000 cap on non-economic damages; limits on contingency
fees lawyers can charge so that more money goes to victims and
less to lawyers; authorization for defendants to introduce
evidence showing the plaintiff received compensation for losses
from outside sources in order to prevent double recoveries; and
authorization for courts to require periodic payments for
future damages, instead of lump sum awards, in order to prevent
bankruptcies in which plaintiffs would receive only pennies on
the dollar.
Premiums in California, adjusted for inflation, are lower
than what they were before that State implemented its health
care litigation reforms. Insofar as those premiums have risen
at all since then, they are rising at much smaller rates than
elsewhere in the nation.
Along with restricting access to insurance by physicians
and to health care by patients, the mere threat of potentially
limitless and bankrupting litigation also causes doctors to
engage in ``defensive medicine''--the sometimes harmful and
certainly wasteful prescription of medically unnecessary
medicine, and the performance of unnecessary tests simply to
reduce liability exposure. In this way, the current,
unregulated medical tort system can force doctors to practice
bad medicine. It also discourages improvements in the delivery
of medical care, by deterring doctors from freely discussing
errors or potential errors due to a fear of litigation.
Defensive medicine also wastes billions of dollars a year in
taxpayer funds, by directing money to medically unnecessary
prescriptions and tests in Federally-funded programs.
The Committee marked up H.R. 4600 on July 23, 2002 and
September 10, 2002, and ordered it reported favorably as
amended by voice vote. The Committee filed its report on
September 25, 2002 as H. Rept. 107-693, pt. I. On September 26,
2002, the House passed H.R. 4600 by a vote of 217 to 203. The
Senate failed to act on the bill prior to the conclusion of the
107th Congress.
Oversight Activities
List of oversight hearings
Executive Orders and Presidential Directives, March 22, 2001
(Serial No. 10)
Reauthorization of the United States Department of Justice:
Executive Office for United States Attorneys, Civil
Division, Environment and Natural Resources
Division, Executive Office for United States
Trustees, and Office of the Solicitor General, May
9, 2001 (Serial No. 15)
Settlement Agreement by and among the United States of America,
the Federal Communications Commission, NextWave
Telecom, Inc., and certain affiliates, and
Participating Auction 35 Winning Bidders, December
6, 2001 (Serial No. 56)
The Alabama-Coosa-Tallapoosa River Basin Compact and the
Apalachiola-Chattahoochee and Flint River Basin
Compact, December 19, 2001 (Serial No. 54)
Legal Services Corporation, February 28, 2002 (Serial No. 66)
Administrative and Procedural Aspects of the Federal Reserve
Board/Department of the Treasury Proposed Rule
Concerning Competition in the Real Estate Brokerage
and Management Markets, May 16, 2002 (Serial No.
77)
Litigation and its Effect on the Rails-to-Trails Program, June
20, 2002 (Serial No. 90)
Hearing on executive orders and presidential directives
The executive order is the best known instrument by which
Presidents implement policy and manage the affairs of the
executive branch. Most executive orders and other presidential
directives are routine and unremarkable. Sometimes, however,
the substance of an executive order may be controversial or may
exceed the scope of the President's statutory or constitutional
authority. Executive orders that lack a statutory or
constitutional predicate implicate the separation of powers
doctrine and tend to disturb the balance of powers enumerated
to the legislative and executive branches under the
Constitution.
The Property Clause of the Constitution provides that
``Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other
property belonging to the United States.'' 30 The
Supreme Court has broadly interpreted this provision, holding
that Congress has sovereign authority to make laws pertaining
to all aspects of Federal land management. 31 The
Antiquities Act of 1906 grants the President the power to
declare national monuments by ``public proclamation.''
32 However, the Act is not a blank grant of
authority. Under the Act, the President is required to
specifically designate the ``archeological, historic or
scientific'' interest of withdrawn land. Moreover, when making
designations under the Antiquities Act, the President is
explicitly required to reserve the ``smallest area compatible
with the proper care and management of the objects to be
protected.'' 33
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\30\ U.S. Const. art. IV, Sec. 3, cl. 2.
\31\ Kleppe v. New Mexico, 426 U.S. 540, 547 (1976).
\32\ 16 U.S.C. Sec. 431 (1996).
\33\ Id.
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Since its passage, the Antiquities Act has been used by
successive Presidents to designate nearly 70 million acres of
Federal land. It has been repeatedly challenged in Federal
court, with little success. In 1908, the scale of President
Theodore Roosevelt's designation of the Grand Canyon was
challenged unsuccessfully.34 In 1943, Wyoming
unsuccessfully challenged President Roosevelt's designation of
the Jackson Hole National Monument.35 Legal
challenges to President Carter's 1978 decision to withdraw
millions of acres of Federal land in Alaska under the
Antiquities Act also proved unavailing.36
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\34\ Cameron v. United States, 252 U.S. 450 (1920).
\35\ Wyoming v. Franke, 58 F. Supp. 890 (D. Wy. 1945).
\36\ Anaconda Copper Co. v. Andrus, Case No. A79-161 CIV (D. Ala.
1980).
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During his eight years in office, President Clinton used
the Antiquities Act to establish 19 national monuments spanning
more than five million acres. With one exception, all of these
designations were made during the final year of his term. For
example, on January 11, 2000, President Clinton proclaimed
three national monuments and enlarged a fourth. The largest of
these, the Grand Canyon-Parashant National Monument in Arizona,
encompasses 1.02 million acres of Federal land and nearly
30,000 acres of private land. The Agua Fria National Monument,
located within 40 miles of Phoenix, Arizona, contains over
71,000 acres of Federal land and nearly 1,500 acres of private
land. On April 15, 2000, President Clinton proclaimed the Giant
Sequoia National Monument, which extends over 380,00 acres of
public and private land in California. Two months
later,President Clinton declared another four national monuments,
including the Canyons of the Ancients National Monument (Colorado), the
Cascade-Sikouyou National Monument (Oregon), the Hanford Reach National
Monument (Washington), and the Ironwood Forest National Monument
(Arizona). Finally, on November 9, 2000, President Clinton withdrew an
additional 300,000 acres of land in Arizona when he declared the
Vermilion Cliffs National Monument. All of these designations took
place after little or no prior consultation with affected communities.
On March 22, 2001, the Subcommittee conducted a hearing
which examined the historical, statutory, constitutional, and
administrative aspects of Executive Orders and other
presidential directives.37 The hearing focused on
the surge of Clinton-era environmental proclamations issued
under the purported authority of the Antiquities Act of 1906
and examined steps Congress might take to address executive
decrees that exceed the President's constitutional or statutory
authority. Testimony was received from the following witnesses:
House Resources Committee Chairman Jim Hansen (R-UT); Bruce
Fein, former Associate Deputy Attorney General under the Reagan
Administration and constitutional law expert; Todd Gaziano,
Director of the Center for Legal and Judicial Studies at the
Heritage Foundation; and Professor Kenneth Mayer from the
University of Wisconsin-Madison.
---------------------------------------------------------------------------
\37\ Executive Orders and Presidential Directives: Hearing Before
the Subcomm. on Commercial and Admin. Law of the House Comm. on the
Judiciary, 107th Cong. (2001).
---------------------------------------------------------------------------
Oversight hearing on the reauthorization of the United States
Department of Justice: Executive Office for United States
Attorneys, Civil Division, Environment and Natural Resources
Division, Executive Office for United States Trustees, and
Office of the Solicitor General
Pursuant to House Rules, the Judiciary Committee has
jurisdiction over the functions of the Department of Justice
(``Department'' or ``DOJ''). The Subcommittee on Commercial and
Administrative Law has jurisdiction over the following
components of the Department of Justice: Executive Office for
United States Attorneys, the Civil Division, the Environment
and Natural Resources Division, the Executive Office for United
States Trustees, the Office of the Solicitor General of the
United States, and any other areas which may be assigned to it
by the Chairman.
On May 9, 2001, the Subcommittee held a reauthorization
oversight hearing on the components of the Department of
Justice within the Subcommittee's jurisdiction. The purpose of
the hearing was to examine the budget and policy priorities
within the respective divisions, and focus on the efforts to
address any needed improvements.
The witnesses from the Department of Justice who testified
at the hearing were: Mark Calloway, Acting Director, Executive
Office for United States Attorneys; Stuart Schiffer, Acting
Assistant Attorney General, Civil Division; John Cruden, Acting
Assistant Attorney General, Environment and Natural Resources
Division; and Martha Davis, Acting Director, Executive Office
of United States Trustees. The Solicitor General's Office also
submitted a statement for the record.
On August 7, 2001, the Honorable Bob Barr, Chairman of the
Subcommittee on Commercial and Administrative Law, sent a
letter to the Department of Justice requesting additional
information relating to each of the five components of the DOJ
within the Subcommittee's area of jurisdiction. On November 14,
2001, the Department sent the Subcommittee its responses.
(a) The Executive Office for United States Attorneys
The Subcommittee's examination of DOJ's budget priorities
for programs within the responsibility of the United States
Attorneys included questions as to whether adequate resources
were being devoted to support those responsibilities. The
Subcommittee also inquired into how well the EOUSA coordinates
and supports the activities of the United States Attorneys. The
Subcommittee also explored the effect of the so-called McDade
Amendment on the United States Attorneys' conduct of undercover
sting operations.
(b) Civil Division
The Civil Division's requested increase of approximately
$7.3 million for Fiscal Year (FY) 2003 is primarily comprised
of expenditures for compensation-related adjustments ($4.6
million), rent ($1.6 million), and health insurance premiums
($.3 million). It also includes expenditures for lease
expirations in the amount of $654,000. The areas of inquiry
during the hearing focused on the ways in which the Civil
Division can maximize its resources. Among the areas of inquiry
at the hearing, the question of whether Civil Division
attorneys should be transferred from Main Justice to United
States Attorneys Offices in the field and if there is any
duplication or overlap between the Civil Division and the
United States Attorneys.
These areas of inquiry will also be further explored by the
GAO in the EOUSA study requested by the Subcommittee and
described later.
(c) Environment and Natural Resources Division (ENRD)
The Subcommittee examined with the witnesses and in follow-
up questions the priorities of ENRD in its efforts to balance
the enforcement of environmental laws with the legitimate
concerns of private land owners and businesses. The sufficiency
of government appraisals of land values during takings
proceedings was also explored. Following up on this issue, the
Subcommittee held an oversight hearing on the Rails-to-Trails
program in June 2002, which is described later.
(d) The Executive Office for United States Trustees
The Subcommittee reviewed the preparedness of U.S. Trustees
to handle the impact on the bankruptcy system if the Bankruptcy
Abuse Prevention and Consumer Protection Act of 2001 were to
pass. Specifically, the Subcommittee examined the efforts to
prevent bankruptcy abuse with a focus on identifying those who
file for Chapter 7 protection but have the means to fund a
Chapter 13 repayment plan.
The Subcommittee also examined efforts by the U.S. Trustees
Program to coordinate its bankruptcy anti-fraud program with
U.S. Attorneys, the FBI, and other law enforcement agencies.
Finally, the Subcommittee looked at the success of the U.S.
Trustees Program's automation initiative, a costly program
intended to facilitate the handling of bankruptcy filings to
reduce the considerable administrative expenses faced by the
agency.
(e) Office of the Solicitor General (OSG)
The Subcommittee examined the criteria utilized by the OSG
in determining which issues toappeal, the relationship between
the OSG and other areas of the DOJ with regard to control of appellate
matters, improving efficiency, and general administrative matters.
Oversight of the Executive Office of United States Attorneys (EOUSA)
The Department of Justice Appropriations Act for 2002 was
passed by the House on July 18, 2001. An appropriation was
included for more than $1.3 billion in salaries and expenses
for U.S. Attorneys' offices, including the Executive Office for
U.S. Attorneys (``EOUSA'') in the main office of the Department
of Justice in Washington, D.C.
In appropriating these funds, Congress relied on
information provided by the DOJ, for which there was little
correlation to DOJ's Strategic Plan and Performance Plan, as
required by the Government Performance and Results Act (GPRA).
In fact, DOJ's Strategic Plan and Performance Plan both suggest
an allocation of resources by the U.S. Attorneys toward law
enforcement goals, yet fail to describe how that effort will be
managed to achieve the desired results.
Chairman F. James Sensenbrenner, Jr., Subcommittee Chairman
Bob Barr, and the respective ranking Members John Conyers and
Melvin Watt, were concerned by the lack of specifics regarding
DOJ's performance goals for the U.S. Attorneys' Offices and the
apparent absence of measurable performance targets. Also of
concern was how DOJ management communicates the need for U.S.
Attorneys to develop meaningful performance objectives and case
management so DOJ's law enforcement goals can be better met. On
September 24, 2001, they requested the General Accounting
Office (``GAO'') prepare a report to address the application of
GPRA requirements as well as a results-oriented management of
costs and human resources in the Executive Office for U.S.
Attorneys and the U.S. Attorneys' offices.
The report will address how and to what degree the
management of the financial budget and human resources are
directed to achieving specific performance goals. It will also
describe the methods used to identify and communicate the GPRA
goals pertaining to the U.S. Attorneys' offices and describe to
what degree objectives stated in DOJ's Strategic Plan and
Performance Plan are applied to evaluate the performance of
individual Assistant U.S. Attorneys. The report will also
describe and evaluate how the budget is actually developed by
EOUSA and to what extent actual budget execution follows the
proposed use of funds contained in DOJ's submissions in support
of the appropriation request.
As part of the study, the GAO was asked to identify how
strategies are used to achieve performance goals and determine
if the goals can be measured against actual results. For
example, as points of comparison, does EOUSA establish baseline
performance standards based on measurable criteria, such as
statistical reductions in crime? Are there measurable goals,
and do those goals challenge management or are they easily
attained through routine performance? Are there annual goals
that support long term objectives? Do human resource management
policies and practices link to DOJ performance goals and, if
so, how do they contribute to the achievement of those goals?
With regard to EOUSA's budget planning and execution
processes, the report will describe whether management applies
performance consequences in allocation of budget and human
resources. It will also describe how management allocates
funding toward meeting DOJ's defined performance goals. For
example, does the budget process take into account the impact
of technology, and how will the proposed information technology
investments contribute to achieving performance goals? How does
the agency measure and allocate its human capital toward
achieving performance goals? How do the requested budget
amounts relate to the achievement of specific performance
goals?
The report will identify the direction provided by EOUSA to
U.S. Attorneys and oversight, if any, undertaken by EOUSA, OJP,
or other offices within DOJ to determine if U.S. Attorneys are
fulfilling their responsibilities under OJP grant programs.
There are programs within the Office of Justice Programs (OJP)
requiring U.S. Attorneys to take a significant role in
directing the use of appropriated grant funding, such as
operation ``Weed and Seed.'' And finally, the report will
include GAO's recommendations for improving DOJ's management of
the GPRA plan preparation and implementation.
On October 23, 2001, the GAO formally accepted the
Subcommittee's request as work within the scope of their
authority. On January 30, 2002, Subcommittee staff met with the
GAO EOUSA team assigned to complete the study in an effort to
clarify the request and receive approval by the Subcommittee to
proceed and on June 12, 2002, the formal scope and methodology
was presented to the Subcommittee. The final report on the
management of EOUSA and U.S. Attorney's Offices will be issued
by February 28, 2003.
Joint hearing with the Subcommittee on Courts, the Internet, and
Intellectual Property on the Settlement Agreement by and among
the United States of America, the Federal Communications
Commission, NextWave Telecom, Inc., and certain affiliates, and
Participating Auction 35 Winning Bidders
For approximately six years, NextWave Telecom Inc. and
certain of its affiliates have been involved in a contentious
dispute with the Federal Communications Commission (FCC)
concerning the ownership of personal communications services
(PCS) spectrum licenses that NextWave acquired in an auction
conducted by the FCC in 1996. The Communications Act of 1934
gives the FCC exclusive regulatory authority over the radio
spectrum, including the issuance of licenses and construction
permits. In 1993, the Act was amended to permit the FCC to sell
licenses and construction permits through a competitive bidding
process. Intended to promote economic opportunity for
``designated entities'' (i.e., qualified small businesses,
rural telephone companies, and businesses owned by members of
minority groups and women), the legislation permitted
successful bidders to pay for their licenses in installments.
The legislation also authorized the FCC to retain auction
revenues as offsetting collections.
Beginning in 1996, the FCC held a series of PCS license
auctions pursuant to this legislation. The licenses offered for
sale at these auctions were divided into ``blocks.'' The ``C-
block'' licenses were offered exclusively to designated
entities such as NextWave, which successfully bid approximately
$4.7 billion for 63 C-block licenses. After initial payment of
a $474 million deposit, NextWave consummated the transaction in
February of 1997 by executing $4.26 billion in promissory notes
to the Federal government payable over ten years.
Subsequent to these auctions, however, the market value of
the C-block licenses plummeted, which interfered with the
ability of some licensees to obtain funding for their purchases
and operations. Due to the depressed C-block market, NextWave
was unable to obtain adequate financing to fund its promissory
note obligations to the FCC. It subsequently filed for
bankruptcy relief under chapter11 of the Bankruptcy Code on
June 8, 1998. Other than the deposit, NextWave made no further payments
to the FCC. Approximately 20 other C-block licensees also filed for
chapter 11 bankruptcy relief. During the pendency of the bankruptcy
case, the FCC cancelled NextWave's licenses and reauctioned them.
In response to the issues presented by the NextWave
bankruptcy case and the actions of the FCC, the Subcommittee
held an oversight hearing regarding the limits on governmental
regulatory powers under the Bankruptcy Code on April 11, 2000.
38 Specifically, the hearing examined the exception
to the automatic stay as codified in section 362(b)(4) of the
Bankruptcy Code as applied to certain types of regulatory
powers exercised by governmental entities. Witnesses at the
hearing included representatives from the Justice Department
and the FCC as well as panelists presenting views from the
bankruptcy community perspective. The general tenor of the
testimony and comments of participating Subcommittee Members
was that the current law with respect to the exception from the
automatic stay clearly did not apply to actions by governmental
regulators that were inherently attempting to collect monetary
obligations.
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\38\ Oversight Hearing on the Limits on Regulatory under the
Bankruptcy Code Before the Subcomm. on Commercial and Admin. Law of the
House Comm. on the Judiciary, 106th Cong. (2000).
---------------------------------------------------------------------------
In November of 2001, the FCC, NextWave and certain other
parties entered into an agreement intended to resolve the
issues raised by the disputed ownership of NextWave's licenses.
The settlement agreement, in essence, provided for the transfer
of the licenses by NextWave to the FCC, which, in turn, would
convey them to the successful reauction bidders. Under the
terms of the settlement agreement, NextWave, in exchange for
transferring the licenses to the FCC, would have received from
the Federal government an approximate cash payment of $6.5
billion. In addition, the Federal government would have made a
cash payment directly to the Internal Revenue Service on behalf
of NextWave in the approximate amount of $3 billion. Pursuant
to the settlement agreement, NextWave would have paid the
Federal government $180 million in addition to the deposit it
previously paid. As a result of this settlement, the United
States Government would have received net proceeds of
approximately $10 billion. The settlement was premised on the
enactment of legislation approving the settlement and
authorizing the appropriation of $9.55 billion to implement it,
among other provisions. The proposed legislation also contained
provisions for expedited judicial review and limitations on
jurisdiction of actions taken pursuant to the settlement
agreement. These provisions substantially altered regular court
procedures and should be carefully reviewed.
On December 6, 2001, the Subcommittee, in conjunction with
the Subcommittee on Courts, the Internet, and Intellectual
Property, held an oversight hearing on a proposed settlement
agreement that NextWave, the FCC and certain other parties
entered into on November 26, 2001. Witnesses who testified at
the hearing included Jay S. Bybee, Assistant Attorney General,
Office of Legal Counsel, and Jody Hunt, Counsel to the Deputy
Attorney General, on behalf of the Department of Justice; John
A. Rogovin, Deputy General Counsel of the FCC; Donald Verrilli,
General Partner, Jenner & Block, on behalf of NextWave; and
Stephen M. Roberts on behalf of Eldorado Communications, LLC.
The hearing allowed Members to assess whether legislation was
necessary to implement this settlement agreement, the basis of
the allocation of the reauction proceeds, and whether the
legislation would affect other pending bankruptcy cases. In
addition, it provided an opportunity to examine whether the
proposed legislation violated the Bankruptcy Clause of the U.S.
Constitution in light of the fact that it specifically provided
relief to parties in a pending bankruptcy case. 39
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\39\ The Constitution provides that ``[t]he Congress shall have the
power * * * [t]o establish * * * uniform Laws on the subject of
Bankruptcies throughout the United States[.]'' U.S. Const. art. I,
Sec. 8, cl. 4 (emphasis added).
---------------------------------------------------------------------------
Subsequent to this hearing, Representative Billy Tauzin (R-
LA) (for himself and three original cosponsors) introduced H.R.
3484, the ``Prompt Utilization of Wireless Spectrum Act of
2001,'' on December 13, 2001. The bill was not considered by
the Committee prior to the conclusion of the 107th Congress.
Hearing on the Alabama-Coosa-Tallapoosa River Basin Compact and the
Apalachicola-Chattahoochee and Flint River Basin Compact
On December 19, 2001, the Subcommittee conducted a hearing
on the status of two interstate compacts that the Congress
approved during the 105th Congress. The compacts provided for
the creation of respective commissions to develop a formula
allocating waters from various river basins among the signatory
States. The Alabama-Coosa-Tallapoosa (ACT) River Basin Compact
40 involved Georgia and Alabama, while the
Apalachicola-Chattahoochee and Flint (ACF) River Basin Compact
41 involved Georgia, Alabama and Florida.
Congressional consent is required for such agreements and
compacts in order to determine whether they work to the
detriment of another State, and to ensure they do not conflict
with Federal law or Federal interests.
---------------------------------------------------------------------------
\40\ Pub. L. No. 105-104 (1997).
\41\ Pub. L. No. 105-105 (1997).
---------------------------------------------------------------------------
Testifying at the hearing were: Newt Gingrich, Chief
Executive Officer of the Gingrich Group and the former Speaker
of the United States House of Representatives; Lindsay Thomas,
former United States Representative from Georgia and then
Federal Commissioner of the ACT and ACF River Basin
Commissions; Jerome C. Muys, President of Muys and Associates;
and George William Sherk, (the latter two witnesses being
experts in water resources and allocation law).
The issue of water use in the southeast United States has a
considerable history. Alabama, Florida and Georgia have for
some time been negotiating over the waters of the ACF River
Basin. Concerned with the potential impact of a proposed
reallocation of storage from Federal reservoirs in Georgia,
Alabama filed suit in 1990 in Federal district court to prevent
the U.S. Army Corps of Engineers from reallocating storage
without completing adequate environmental assessments. Florida
later joined Alabama in the suit. Thereafter, the three States
and the Corps of Engineers, seeking to negotiate and resolve
the issue, agreed that a comprehensive study should be
conducted by a partnership of the three States and the Federal
government.
The waters from the ACF and ACT River Basins are extremely
important to the economic vitality of the entire region. The
ACF and ACT River basins affect more than 22,000 square miles
in Georgia, comprising 39 percent of the land mass of that
State. Within Alabama, the figure is more than 17,000 square
miles and 34 percent of the State's land mass. Florida's
affected area is more than 2,000 square miles representing four
percent of the State. The ACF River Basin intertwines the three
States in a cause and effect commonality of interests. Two
droughts in the 1980's created significant water shortages in
the ACF River Basin and led to disputes and litigation about
waterallocation in the basins from Federally owned and operated
flood control projects. The increased need for drinking water, as well
as water for agricultural and industrial uses, have affected the
availability of fresh water flowing downstream into Apalachicola Bay in
Florida. As a result, salinity, sedimentation, and pollutant levels
have increased, posing a threat to marine life in the bay, especially
oyster beds.42 In 1992, the three States adopted a
Memorandum of Agreement committing themselves to: (1) a partnership
which involved a ``live-and-let-live'' understanding on water use and
management in ACF Basin; (2) conducting a joint comprehensive study of
water resource issues; (3) achieving a long-term water management
agreement among the partners; and (4) placing the lawsuit in an
inactive status. The ACF Compact, together with a virtually identical
compact concerning the ACT River Basin, was negotiated from September
through December 1996 by the States and the Federal government.
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\42\ Apalachicola-Chattahoochee-Flint River Basin Compact; Alabama-
Coosa-Tallapoosa River Basin Compact: Hearing on H.J. Res. 91 Before
the Subcomm. on Commercial and Admin. Law of the House Comm. on the
Judiciary, 105th Cong. (1997) (statement of Rep. F. Allan Boyd).
---------------------------------------------------------------------------
During the 105th Congress, the Subcommittee held a hearing
on H.J. Res. 91 and 92, approving the compacts that were
subsequently adopted by the Congress.43 Testifying
at the hearing were members of Congress and representatives
from the Department of Justice and the participating States.
Since the adoption of the compacts, the commissions created
under them have continued to meet and negotiate in an effort to
develop mutually agreeable water allocation formulas with the
potential for a successful outcome varying from month to month.
---------------------------------------------------------------------------
\43\ Id.
---------------------------------------------------------------------------
In conducting the hearing during the 107th Congress, the
Subcommittee sought to determine the progress of the parties
and encourage an outcome which the Congress had anticipated
would be achieved when it approved the compacts. The
Subcommittee also examined relevant water law issues in order
to lay a better foundation for consideration of the final
agreements into which the States may ultimately enter.
Moreover, the Subcommittee determined that continued review of
the ACT and ACF compacts would be helpful in assessing how well
States can balance such water rights issues with Federal
interests in coming to ultimate allocation agreements.
Subsequent to the hearing, the Subcommittee presented
additional questions to the witnesses and engaged in oversight
of the progress of the States, but took no further legislative
action.
Oversight of the Legal Services Corporation
A priority of the Subcommittee during the 107th Congress
was oversight of the Legal Services Corporation. The
Subcommittee was concerned about whether the Legal Services
Corporation (``LSC'' or the ``Corporation''), and its grantees,
comply with statutory mandates passed by Congress in 1996.
Congressional oversight of the LSC and its grantees' compliance
with these mandates is an essential element of ensuring that
funding for legal services for the poor is not diverted to
other unauthorized uses that violate Congressional mandates.
Any unlawful diversion of resources to prohibited activity
would frustrate Congressional objectives and deprive many needy
individuals of the legal representation that Congress intended
to fund.
The Subcommittee initiated an oversight investigation in
January of 2002 and has completed an extensive review of LSC
documents, the hearing record of a Subcommittee on Commercial
and Administrative Law oversight hearing of February 28,
2002,44 interviews with LSC staff and confidential
sources, and other records obtained by the Subcommittee.
Following the February 28, 2002 hearing, the Subcommittee
submitted further record questions to LSC President John N.
Erlenborn on April 4, 2002.45 President Erlenborn
provided the LSC's responses and documents to the Subcommittee
on May 8, 2002.46
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\44\ This Subcommittee held two other oversight hearings since the
1996 restrictions were enacted: the first hearing was two months after
the restrictions were effective, and the second hearing was after the
General Accounting Office issued a highly critical report of the case
counting numbers reported to Congress. Legal Services Corp.: Hearing
Before the Subcomm. on Commercial and Admin. Law of the House Comm. on
the Judiciary, 104th Cong., (June 26, 1996) and Legal Services
Corporation: Hearing Before the Subcomm. on Commercial and Admin. Law
Before the House Comm. on the Judiciary, 106th Cong. (Sept. 29, 1999).
\45\ Letter from Hon. Bob Barr, Chairman, Subcomm. on Commercial
and Admin. Law, and Hon. Jeff Flake, Vice-Chairman, Subcomm. on
Commercial and Admin. Law, to John N. Erlenborn, President, LSC (Apr.
4, 2002) (on file with the Subcomm. on Commercial and Admin. Law).
\46\ Letter from John N. Erlenborn, President, Legal Services
Corp., to Hon. Bob Barr, Chairman, Subcomm. on Commercial and Admin.
Law (May 8, 2002) (on file with the Subcomm. on Commercial and Admin.
Law). It should be noted the LSC produced to the Subcommittee many
unnecessary and unrequested documents. For example, pages H-01939 to H-
02127 provided the Subcommittee with unrequested U.S. Census Bureau
documents that were unrelated and irrelevant to the substance of
questions asked in section H of the Subcommittee's April 4, 2002
letter.
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Development and background of the Legal Services Corporation
The Legal Services Corporation Act of 1974 (the ``Act'')
was originally intended to provide funding for legal
representation of the indigent in our society. Since the
earliest days of the program, however, the Legal Services
Corporation was the subject of concerns that federal tax
dollars would be used to promote a political and ideological
agenda, instead of providing important legal services to the
neediest Americans.47 In response to over a decade
of complaints, and in an effort to protect the integrity of the
program, Congress passed significant restrictions, which were
included in the Fiscal Year (``FY'') 1996 Commerce, Justice,
and State, the Judiciary, and Related Agencies appropriations
legislation.48 Many of these restrictions directed
the Board to promulgate federal regulations in order to
implement the statute effectively.49 The
Subcommittee is concerned that Congressional reforms have been
diluted by the Board's implementation of weak, unworkable, and
unenforceable regulations.
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\47\ Kenneth F. Boehm, The Legal Services Program: Unaccountable,
Political, Anti-Poor, Beyond Reform and Unnecessary, 17:2 ST. Louis U.
Pub. L. Rev. 328 (1998).
\48\ Omnibus Consolidated Rescissions and Appropriations Act, Pub.
L. No. 104-134, 110 Stat. 1321-50 (1996). These restrictions include,
among others, prohibitions on class actions, collection of attorney's
fees, rulemaking, participation in lobbying or political activities,
litigation on behalf of prisoners, representation of drug-related
public housing evictions, and representation of certain categories of
aliens.
\49\ Legal Services Corp. Act, Pub. L. No. 93-355 Sec. 1006(b)(A)
(1974).
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Ensuring accountability of the LSC for compliance with the
restrictions is made more difficult because the LSC, although
funded by Congressional appropriation, is a nonprofit
corporation,50 not a federal agency subject to the
laws applicable to federal agencies, their employees, and third
parties who deal with them.51
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\50\ The LSC replaced the Office of Legal Services by amending the
Economic Opportunity Act of 1964 a major part of President Lyndon B.
Johnson's ``War on Poverty.'' Legal Services Corp. Act, Pub. L. No. 93-
355 Sec. 2 (1974). In doing so however, Congress created an office
that, unlike the Office of Economic Opportunity, is independent of the
Executive Branch. For example, by law the LSC budget is submitted
directly to Congress. 42 U.S.C. Sec. 2996(d) (2001).
\51\ Boehm, supra note 4, at 322.
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The LSC has not been reauthorized since 1980. In 1995, this
Subcommittee held an extensive series of hearings on the
reauthorization of the LSC.52 Following those
hearings, the House Judiciary Committee reported legislation to
the full House that would have replaced the LSC with a program
of block grants administered by individual states.53
This legislation was never voted on by the full House.
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\52\ Rauthorization of Legal Services Corporation: Hearings Before
the Subcomm. on Commercial and Admin. Law of the House Comm. on the
Judiciary, 104th Cong. (1995).
\53\ The Legal Aid Act of 1995, H.R. 2277, 104th Cong. (1995); H.R.
REP. NO. 104-255 (1995).
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Congress followed this effort in 1996 with the passage of
the most sweeping reforms since 1974, enumerating restrictions
on the types of cases LSC grantee attorneys could pursue. Under
current restrictions, LSC grantees may not:
(1) Engage in partisan litigation related to
redistricting;
(2) Attempt to influence regulatory, legislative, or
adjudicative action at the federal, state, or local
level;
(3) Attempt to influence oversight proceedings of the
LSC;
(4) Initiate or participate in any class action suit;
(5) Represent certain categories of aliens, except
that non-federal funds may be used to represent aliens
who have been victims of domestic violence or child
abuse; 54
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\54\ In 1997, a narrow exception to the 1996 regulations was added
to provide that, under certain conditions, non-LSC funds could be used
for representation of undocumented aliens who are battered. Departments
of Commerce, Justice, and State, the Judiciary and Related Agency
Appropriations, 1998, Pub. L. 105-119 Sec. 502, 111 Stat. 2440-2510
(1997).
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(6) Conduct advocacy training on a public policy
issue or encourage political activities, strikes, or
demonstrations;
(7) Claim or collect attorney's fees;
(8) Engage in litigation related to abortion;
(9) Represent federal, state, or local prisoners;
(10) Participate in efforts to reform a federal or
state welfare system; 55
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\55\ On February 28, 2001, the U.S. Supreme Court held in the case
of Legal Services Corp. v. Velazquez, 121 S. Ct. 1043 (2001), that an
LSC funding restriction related to welfare reform violates the First
Amendment rights of LSC grantees and their clients and is thereby
unconstitutional. The Supreme Court agreed with the Second Circuit
Court's ruling that, by prohibiting LSC-funded attorneys from
litigating cases that challenge existing welfare statutes or
regulations, Congress had improperly prohibited lawyers from presenting
certain arguments to the courts, which had the effect of distorting the
legal system and altering the traditional role of lawyers and advocates
for their clients. Id. Although this statutory restriction was struck
down, it is important to realize the Court implicitly approved the
other congressional restrictions when it refused to hear arguments why
all the restrictions should be overturned. See id.
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(11) Represent clients in eviction proceedings if
they have been evicted from public housing because of
their own illegal drug-related activities; or
(12) Solicit representation of clients.
Internal controls over the Corporation
The legal authority regulating the LSC and its grantees,
include the Legal Services Corporation Act of 1974, the
congressional restrictions incorporated through the budget
process since 1996, and the LSC regulations, which are
promulgated by the LSC Board and published in the Federal
Register. Since the LSC was not organized as a federal agency,
LSC is subject only to those federal laws expressly enumerated
by Congress as applicable to the LSC, including the Government
in the Sunshine Act and the Freedom of Information
Act.56
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\56\ Legal Services Corp. Act, Pub. L. No. 93-355 Sec. 1005(f) and
(g) (1974).
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The LSC has two divisions intended to ensure LSC, its
employees, and its grantees comply with all applicable laws and
regulations, including the specific restrictions passed by
Congress in 1996. Those divisions are the Office of Compliance
and Enforcement (the ``OCE'') and the Office of Inspector
General (the ``OIG''). If any other individual or entity
discovers a violation of the LSC Act by an LSC grantee, there
is no private right of action to enforce the Act.57
Similarly, LSC employees and its grantees are not protected by
the Whistleblower Protection Act for reporting waste, fraud, or
abuse of federal laws or resources, nor are they protected from
retaliation and discrimination for whistleblowing provided by
the newly enacted Notification and Federal Anti-discrimination
and Retaliation Act (``No FEAR'').58 Finally, any
failure by the LSC, including its Board of Directors, to
enforce congressional restrictions is not subject to judicial
review.59
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\57\ Grassley v. Legal Services Corp., 535 F. Supp. 818 (S. D. Iowa
1982).
\58\ Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (``No FEAR''), Pub. L. No. 107-174, 116 Stat.
566 (2002). No FEAR is intended to fight discrimination and retaliation
at federal agencies by forcing agencies that discriminate or retaliate
pay the costs associated with their actions, rather than those costs
being paid by the general federal judgment fund.
\59\ Regional Mgmt. Corp. v. Legal Services Corp., 186 F.3d 457
(4th Cir. 1999); see also Lindquist v. Bangor Mental Health Inst., 770
A.2d 616, 619 (Me. 2001) (noting Congress' amendment to the LSC Act
prohibiting courts from inquiring into client eligibility questions in
individual cases); Milbourne v. Mid-Penn Consumer Disc. Co., 108 B.R.
522, 544 (Bankr. E.D. Pa. 1989) (remarking that Motion to Disqualify
debtor's legal services program counsel was misplaced). By reference to
42 U.S.C. Sec. 2996e(b)(1)(B) (2002), the court observed that the only
recourse for lender appeared to be through the administrative channels
of LSC. Id.
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LSC's oversight responsibilities with respect to its
grantees include establishing guidelines so grantees will
properly determine the eligibility of clients on the basis of
certain specified factors,60 and ensuring grants and
contracts provide the most economical and effective delivery of
legal assistance to persons in both urban and rural
areas.61 In addition, LSC's enabling legislation
mandates various restrictions with respect to the activities of
grantees; 62 namely proscriptions against engaging
in certain types of litigation 63 and prohibitions
against engaging in specified lobbying activities.64
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\60\ These include:
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(i) the liquid assets and income level of the client,
(ii) the fixed debts, medical expenses, and other factors
which affect the client's ability to pay,
(iii) the cost of living in the locality, and
(iv) such other factors as relate to financial inability to
afford legal assistance, which may include evidence of a prior
determination that such individual's lack of income results
from refusal or unwillingness, without good cause, to seek or
accept an employment situation.
42 U.S.C. Sec. 2996f(a)(2)(B) (2001).
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\61\ 42 U.S.C. Sec. 2996f(a)(3) (2001).
\62\ These restrictions include restrictions against lobbying,
political activities, class actions, except under certain restrictions,
and cases involving abortion, school desegregation, and draft
registration or desertion from the military. 42 U.S.C.
Sec. Sec. 2996f(b)(8)-(10) (2001).
\63\ See e.g., 42 U.S.C. Sec. 2996e(d)(5) (2001) (restrictions on
representation of class actions).
\64\ See e.g., 42 U.S.C. Sec. 2996e(c)(2) (2001).
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The LSC's Inspector General (``IG'') is subject to the
Inspector General Act of 1978,65 which requires the
LSC IG to report to the President of LSC, and in turn, the
President should then report to Congress, whenever the IG
becomes aware of particularly serious or flagrant problems,
abuses, or deficiencies relating to the administration of
programs and operations of such establishment.
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\65\ Inspector General Act of 1978, 5 U.S.C. app. 3 Sec. 8G(a)(2).
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Oversight hearing of the Legal Services Corporation
On February 28, 2002, the Subcommittee held an oversight
hearing in an effort to examine compliance by Legal Services
grantees with the congressionally mandated restrictions and the
Board of Directors' role in the monitoring the activities of
the Corporation and its grantees.
The witnesses who testified at the oversight hearing were
the following: the Honorable Edwin Meese III, Chairman, Center
for Legal and Judicial Studies, Heritage Foundation; the
Honorable John M. Erlenborn, President, Legal Services
Corporation; Kenneth F. Boehm, Chairman, National Legal and
Policy Center; and L. Jonathan Ross, Chairman, Standing
Committee on Legal Aid and Indigent Defendants, American Bar
Association.
Testimony was received to address the following questions:
(1) Has an effective system of competition been implemented
by the LSC, as directed by Congress in 1996, resulting in the
promotion of competition among potential grant recipients to
deliver the best service, at the best price, to the truly
needy?
The 1996 congressional reforms specifically changed the Act
to require LSC grantees to compete for their
grants.66 This reform was passed in response to
critics of LSC who charged that LSC grantee attorneys produced
substandard work, engaged in controversial litigation, received
their LSC funding regardless of work quality, and that renewal
of grant funding had become, in essence, an entitlement. The
LSC Board of Directors then promulgated regulations
implementing a system of competition,67 as required
by the 1996 law.68 The hearing and follow-up
questions explored the competition mandate. The Subcommittee
remained concerned about the implementation of the mandate and,
on May 7, 2002, requested the GAO explore the issue further.
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\66\ Sec. 503 of Pub. L. 104-134 states:
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(a)(1) Not later than April 1, 1996, the Legal Services
Corporation shall implement a system of competitive awards of
grants and contracts for all basic field programs.
(f) No person or entity that was previously awarded a grant
or contract by the Legal Services Corporation for the provision
of legal assistance may be given any preference in the
competitive selection process.
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\67\ 45 C.F.R. Sec. 1634 (2001).
\68\ Omnibus Consolidated Rescissions and Appropriations Act, Pub.
L. No. 104-134, Stat. 1321-50 (1996).
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(2) What has been the role of the Board of Directors in
working towards a solution for American farmers, plagued by
frivolous and expensive lawsuits by the migrant and seasonal
worker community? In addition, The Erlenborn Commission Report,
essentially allows LSC lawyers to represent any alien who has
ever worked in the U.S. at any time. What is the implementing
regulation resulting from the findings of the Commission?
Extensive questioning about the findings of the Erlenborn
Commission occurred at the hearing but without a satisfactory
resolution to the issue. In addition to a series of follow up
records questions sent to the Corporation, Subcommittee counsel
attended a negotiated rulemaking session of 45 C.F.R.
Sec. 1626, involving representation of undocumented aliens by
LSC-funded attorneys. The Subcommittee's concerns about the
findings of the Erlenborn Commission remain and the negotiated
rulemaking process and final rule will be closely monitored
during the 108th Congress.
(3) Is there a renewed or continuing effort by LSC grantees
to set up ``mirror corporations'' to handle restricted cases,
in violation of the ``physically and financially separate''
requirement of the federal regulations?
In the 1980s the LSC grantees sought to evade the 1974
statutory restrictions, by setting up closely affiliated but
not legally distinct entities. Typically, the legal services
group would provide a subgrant to another group, that would
then engage in the restricted activities. 69 This
strategy was commonly referred to as setting up ``mirror
corporations.'' 70 However, this strategy was not
available in the 1990's because LSC interpreted its regulations
to require subgrantees to comply with LSC restrictions imposed
by Congress.71
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\69\ Id.
\70\ Id.
\71\ Id.
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The Subcommittee was concerned about evidence that new
similar strategies had been developed to circumvent the
restrictions. The hearing and the Subcommittee follow-up
questions included extensive questioning in this area, which
remains an area of concern to the Subcommittee.
(4) How accurate are the case reporting statistics the LSC
is currently reporting to Congress since a 1999 GAO report
critical of LSC case reporting?
Prior to 1998, critics contend, inadequate recordkeeping
requirements precluded effectively auditing LSC grantee's files
to determine if the cases they were handling were both (1)
client eligible, as required by the LSC Act, and (2) cases
violating the restrictions. Congress added a provision to the
1998 appropriations bill, requiring basic information be
recorded by grantees.72 LSC grantees are now
required by statute to keep records of each case they handle
with the following information: name and full address of each
party to the action, cause of action, and name and address of
the court and the assigned case number. On March 7, 2002, the
Subcommittee requested the GAO conduct a formal follow-up
review of their 1999 findings in this area.
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\72\ Sec. 505(b) of Pub. L. No. 105-119, 110 Stat. 2440-2510.
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First request to the GAO to complete a study concerning the LSC
In September 1999, the General Accounting Office issued a
report to Congress entitled ``LegalServices Corporation: More
Needs To Be Done To Correct Case Service Reporting Problems.'' This
report resulted from a May 1999 request from several Members of
Congress that GAO review the accuracy of LSC's case handling statistics
for Fiscal Year (FY) 1997. The 1999 congressional request to GAO for
this report resulted from significantly inaccurate and inflated annual,
nation-wide case handling statistics, which were reported to Congress
in 1997 incorrectly indicating the LSC's grantees served 1.9 million
clients. In the report, the GAO concluded ``we do not believe that
LSC's efforts to date have been sufficient to resolve the case
reporting problems that occurred in 1997.'' In addition, the GAO made
seven specific recommendations to the President of the Legal Services
Corporation in order to resolve the problems.
LSC President Erlenborn testified that the error rate in FY
1999 had dropped to 11 percent, and, even more dramatically in
FY 2000, to five percent. These figures were derived from
audits by LSC's staff in conjunction with self-inspection by
the grantees. Mr. Erlenborn further stated to the Subcommittee
that ``all of those things that the GAO recommended the
Corporation do to get accurate figures, we have accomplished.''
In light of GAO's earlier work on this subject, the
Subcommittee requested that GAO prepare a report on the
following areas:
(1) LSC's response to GAO's 1999 report;
(2) LSC's implementation of GAO's recommendations;
(3) The practical outcome of the alleged changes by
the LSC, in terms of accuracy and error rates in FYs
1999, 2000 and 2001;
(4) The accuracy of recent case reporting to
Congress; and
(5) Problems with GAO or OIG access to records since
1999.
The report will also include GAO's further recommendations
for improving case reporting accuracy and provide notification
to Congress of any other problems or issues which arise during
the course of the investigation.
Development of additional information post-hearing
On April 5, 2002, Subcommittee Chairman Bob Barr and Vice-
Chairman Jeff Flake sent an extensive twenty-one page follow up
letter to LSC President John Erlenborn. The questions pertained
to the following areas:
(1) The Erlenborn Commission;
(2) The LSC Inspector General's Office and Its
Functions;
(3) Access to Records;
(4) Lobbying by LSC Grantees;
(5) LSC Regulations, including Alien Representation
and Financial Eligibility;
(6) Program Integrity and Mirror Corporations;
(7) State Planning and Reconfiguration of LSC State
Programs;
(8) Competition for LSC Funds;
(9) Case Overcounting;
(10) Litigation against the LSC; and
(11) Class Action Lawsuits.
On April 5 and 6, 2002, Subcommittee counsel attended the
LSC Board meeting held in Washington, D.C. The Board's agenda
included Board consideration and action on a new policy
defining audit compliance by LSC grantees to case file records,
described in a policy document titled ``LSC's Access
Protocol.'' At the last minute, the new Access to Records
Protocol was stricken from the agenda and instead issued by
Presidential directive the week following the Board meeting.
Elimination of Board consideration thwarted any public
discussion and a recorded transcript of the proceedings.
After the issuance of the ``Access Protocol,'' Subcommittee
staff requested meetings with LSC staff. The first meeting took
place on April 23, 2002 with the LSC `s President, General
Counsel, and Director of Congressional Affairs to discuss the
newly issued Access Protocol. At that meeting, LSC staff was
questioned about its records retention policy and possible
shredding of documents. The Corporation could not provide the
Subcommittee with the records retention policy but indicated
that all documents would be retained.
The next meeting was held on April 30, 2002 with LSC's IG
and General Counsel. During this meeting, the Subcommittee
received information about auditors who could not gain access
to case file records. Upon examination of the additional
information received by the Subcommittee, a second request was
made to the GAO for a study of the LSC. The scope of GAO's
investigation of the LSC was expanded and is to address the
following specific areas:
(1) Has the Legal Services Corporation process and practice
of conducting State Planning, resulted in the use of LSC funds
to support work for persons who are restricted from receiving
assistance by LSC programs? If so, to what extent have LSC
resources been used to support restricted activities?
(2) Has the Legal Services Corporation required its
programs/grantees to coordinate and work with non-LSC programs
conducting prohibited work, as part of the creation of State
Justice Communities? If so, has such coordinated work utilized
federally funded Corporation or LSC grantee staff time, or any
other federal resources?
(3) Have LSC funds been used, in any way, to establish and
support services forpersons, or groups of persons, who are
prohibited by statute from receiving federal funds?
(4) Has the creation of larger program service areas, and
many statewide service areas, resulted in anti-competitive
conditions?
(5) Has the creation of ``State Justice Communities''
resulted in discouraging competition for grants instead of
encouraging competition?
(6) Since the congressional mandate for competition was
prescribed by Congress in 1996, has competition occurred? If
not, what does GAO recommend for promoting competition for
federal grants?
In addition to reporting to the Subcommittee on prior
access issues, the GAO is expected to analyze how the recently
issued policy will affect future access to records requests
from the grantees/programs.
Oversight hearing on litigation relating to the Rails-to-Trails Program
On June 20, 2002, the Subcommittee held an oversight
hearing entitled ``Litigation and its effect on the Rails-to-
Trails Program.'' Testimony was received from the following
witnesses: Thomas L. Sansonetti, Assistant Attorney General,
Environment and Resources Division, U.S. Department of Justice;
Nels Ackerson, Chairman, The Ackerson Group, Chartered; Andrea
Ferster, General Counsel, Rails-to-Trails Conservancy; and Tom
Murphy, Mayor, the City of Pittsburgh.
The hearing examined the effect of the 1983 Amendments
73 to the National Trails System Act
(NTSA),74 more commonly known as the ``Rails-to-
Trails'' program. The program permitted the conversion of land
from abandoned railroad tracks, previously conveyed to the
federal government for railroad use, into recreational trails.
The Subcommittee was concerned that the transfer of land
created by the 1983 Amendments has created significant
litigation involving the Environment and Natural Resources
Division (ENRD) of the Department of Justice (DOJ), due to the
large number of landowners who are asserting Fifth Amendment
takings claims against the federal government for the
conversion of their reversionary interests in the railroad
easements without compensation.
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\73\ Pub.L. No. 98-11, Title II, Sec. 208 (March 28, 1983), 97
Stat. 48.
\74\ 16 U.S.C. Sec. 1241-1251 (2000).
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The Subcommittee was also concerned with the potential
budget impact of substantial awards to the plaintiffs in such
litigation that the Congressional Budget Office (CBO) did not
contemplate in its original cost estimate of zero federal
dollars for the program. In one case alone, Presault v. U.S.,
75 compensation and attorneys' fees amounted to more
than $1.4 million. Recent DOJ statistics indicate there are 19
such cases pending in the ENRD, a figure which includes over
5,000 plaintiffs. The potential explosion of litigation could
require Congress to consider a significant allocation of
federal resources, including both staff and judgement costs, to
the ENRD to address the effects of the program.
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\75\ Presault v. U.S., 100 F.3d 1525 (1996).
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The hearing examined whether landowners, whose property
rights have been affected by the rails-to-trails conversions,
have been fairly compensated by the federal government. The
hearing did not dispute benefits of this program, but rather
focused on whether landowners have a legitimate claim against
the federal government for a Fifth Amendment taking. In
addition, the hearing examined the process whereby the
government, through the ENRD of the DOJ, handles this type of
litigation with landowners.
The hearing also explored the role of the complex and
expensive litigation in delaying payment to landowners and the
possibility that future litigation could involve filings by
large classes of plaintiffs. Finally, possible legislative and
administrative remedies to address the costly complex
litigation were explored.
Federal legislation
In 1922, Congress passed 43 U.S.C. Sec. 912, providing some
guidance on how federally granted rights-of-way should be
handled upon abandonment for railroad purposes. Until that
time, the common law for the disposition of the right-of-ways
after abandonment was the abutting property owner, whether the
government or the successor in title to the government,
received the right-of-way free and clear. The new federal
statute asserted if the right-of-way was within the boundary
limits of a municipality, then the right-of-way went to the
municipality free and clear, otherwise it went to the abutting
property owner.
Although the National Trails Systems Act was originally
enacted in 1968,76 the Rails-to-Trails Program was
not created until 1983 when Congress amended section 8(d) of
the NTSA.77 This so-called ``rails-to-trails''
statute provides that a railroad that ceases operations along a
particular route may negotiate with a State, municipality, or
private group prepared to assume financial and managerial
responsibility for the right-of-way.
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\76\ The National Trails System Act of 1968 was intended by the
Congress to be a generic measure through which the outdoor recreation
opportunities of America could be expended by the development of a
nationwide program to establish and maintain trails of various kinds.
H.R. Rep. No. 98-28, at 1 (1983).
\77\ 16 U.S.C. Sec. 1247(d)(2000).
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If the parties reach agreement, the land may, subject to
Interstate Commerce Commission (ICC) 78 terms and
conditions, be transferred to the trail operator for interim
trail use notwithstanding whatever reversionary interests may
exist in the property under state law. An important source of
the current problem can be found in the legislative history of
the Senate Committee on Energy and Natural Resources, which
states: ``[T]he key finding of this amendment is that interim
use of a railroad right-of-way for trail use, when the route
itself remains intact for future railroad purposes, shall not
constitute an abandonment.'' 79 Further language in
the Senate Committee Report finds ``(t)his provision will
protect railroad interests by providing that the right-of-way
can be maintained for future railroad use even though service
is discontinued and tracks removed, and by protecting the
railroad interests from any liability or responsibility in the
interim period.'' 80 This language has led the DOJ
to contend the railroad land is never abandoned and is always
waiting further use and therefore, there is no reversionary
property interest and no compensable taking.
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\78\ The ICC was succeeded by the Surface Transportation Board
(STB) as the body responsible for issuance of Certificates of Interim
Trail Use (CITU). The CITU allows the interested party to begin the
process of conversion of the rail to a trail.
\79\ S. Rep. No. 98-1, at 9 (1983).
\80\ Id at 10.
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Notwithstanding this position, the U.S. Court of Appeals
for the Federal Circuit, in an en banc decision, found that a
taking had occurred in the 1996 case Presault v.
U.S.,81 relying on state court determinations that
the interest conveyed by the property owner was an easement and
that conversion to the non-railroad use entitled the previous
landowner to assert a reversionary interest. The Court held the
reversionary property owner is entitled to just compensation
from the federal government for a Fifth Amendment
taking.82 The Court found such takings are properly
classified as physical takings, and not the rather complicated
regulatory takings, and therefore, just compensation is due to
the landowner from the U.S. government. In practical terms,
this stage of litigation is also extremely complicated since
land appraisals and determinations of the types of interest
originally conveyed must be made on a case-by-case basis.
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\81\ Presault v. U.S., 100 F. 3d 1525 (1996).
\82\ Id.
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Hearing on administrative and procedural aspects of the Federal Reserve
Board/Department of the Treasury proposed rule concerning
competition in the real estate brokerage and management markets
The Gramm-Leach-Bliley Act 83 (GLBA) was enacted
into law in 1999 and became effective a year later. Its purpose
was to deregulate financial institutions and expand the
permissible range of activities in which they could offer
services. GLBA permitted banks, insurance companies, and
securities firms to not only interact with one another, but to
offer a range of previously prohibited financial services. Many
of its supporters believed that ``by tearing down the legal
barriers between commercial banking, investment banking, and
insurance, [GLBA] would lead to dramatic new efficiencies, the
rise of huge financial conglomerates, exciting new financial
products and substantial savings to consumers.'' 84
In relevant part, the measure allows ``'financial holding
companies'' to engage in any activity that is financial in
nature or incidental to such financial activity * * * [or is]
complementary to a financial activity and does not pose a
substantial risk to the safety or soundness of depository
institutions or the financial system generally.'' 85
The ambiguity of this section has produced considerable
uncertainty.
---------------------------------------------------------------------------
\83\ Pub. L. No. 106-102, 113 Stat. 1338 (1999) (codified in
scattered sections of 12, 15, 16, 18 U.S.C.).
\84\ The Federal Reserve Bank of St. Louis, One Year After Gramm-
Leach-Bliley: Are We Modern Yet? (2001), available at: http: //
www.stls.frb.org/publications/cb/2001/a/pages/p3-article.html (last
visited Apr. 26, 2002).
\85\ Gramm-Leach-Bliley Act, 12 U.S.C. Sec. 1843(k)(i) (2000).
---------------------------------------------------------------------------
On January 3, 2001, the Federal Reserve Board and Treasury
Department noticed for public comment a proposed rule that
would enable commercial banks to compete in the real estate
brokerage and management markets.86 If finalized,
the proposed rule would have the effect of transforming the
definition of ``financial activity'' to include a range of
services heretofore considered ``commercial'' in nature. This
departure from existing policy, which was not articulated in
the text or legislative history of GLBA, would permit
Federally-chartered banks, subsidiaries and financial services
to enter the real estate brokerage and management market; an
arena long reserved under State law to realtors and other
``commercial'' businesses.
---------------------------------------------------------------------------
\86\ Bank Holding Companies and Change in Bank Control, 66 Fed.
Reg. 307-14 (proposed Jan. 3, 2001) (to be codified at 12 C.F.R. pt.
225).
---------------------------------------------------------------------------
Financial services organizations such as the American
Bankers Association, the Financial Services Roundtable, and the
New York Clearing House Association were the most vocal
supporters of expanding the definition of ``financial
activity'' to include real estate brokerage and management.
Proponents contend that large commercial banks will be able to
offer a range of services to potential homebuyers, which will
spur competition by creating complementary financial/brokerage
services by these financial institutions. Those who favor the
proposed rule further contend that consumer protections will
not suffer if this rule is finalized. Finally, proponents
insist that Congress completely delegated its authority to
determine what institutions are financial in nature under the
GLBA.87
---------------------------------------------------------------------------
\87\ See American Bankers Association, Banks and Real Estate
Brokerage Dispelling the Misrepresentations of the Real Estate
Industry, http://www.aba.com/Press+Room/brokerage 050101.htm (last
visited Apr. 30, 2002).
---------------------------------------------------------------------------
The National Association of Realtors (NAR) has become the
most vocal opponent of the proposed rule. NAR, which counts
over 900,000 realtors among its membership, asserts the
proposed rule is inconsistent with existing law, violates the
Administrative Procedure Act, and would further hasten
consolidation in the financial industry and stifle competition
in this market. Currently, several thousand real estate
brokerage and management firms compete in this market, and NAR
contends they would be replaced by large commercial banks with
access to low interest Federal Reserve prime lending
rates.88 Opponents also contend real estate
brokerage and management are historically and fundamentally
commercial in character. They assert real estate brokerage is
not incident to banking, but that banking is incident to real
estate brokerage, and that the proposed rule violates this
widely-accepted precept.
---------------------------------------------------------------------------
\88\ See Steve Cook, NAR Letters Argue Against Proposed Rule to
Allow Banks Into Real Estate (May 1, 2001), available at: http://
nar.realtor.com/news/2001REleases/May/56.htm; Steve Cook, NAR President
Testifies Against Bankers Entering Real Estate (May 2, 2001).
---------------------------------------------------------------------------
While H.R. 3424, the ``Community Choice in Real Estate
Act,'' was introduced during the 107th Congress to reverse this
proposal, the rule raises a number of administrative law
questions concerning the process by which it was proposed. For
example, was the rule proposed in compliance with congressional
statutes pertaining to the regulatory process? Was the proposed
rule consistent with the agencies' organic statutes and the
implementing legislation upon which it was predicated? Did the
proposed rule implicate the ``nondelegation doctrine,'' which
limits congressional authority to delegate legislative power to
agencies? Have agencies provided proper deference to
congressional intent?
On May 16, 2002, the Subcommittee conducted a hearing to
help answer these questions and to consider the possibility of
subsequent legislative remedies to ensure agency compliance
with congressional intent. The following witnesses testified at
the hearing: Sheila Bair, Assistant Secretary, United States
Department of Treasury; Martin Edwards, Jr., President of NAR;
and Mr. Edward Yingling, Executive Director, American Bankers
Association. At the hearing, Secretary Bair defended the legal
validity of the proposed rule. She testified that GLBA provided
the regulatory agencies (Department of Treasury and Federal
Reserve Board) with broad authority to define activities
commercial activities. Secretary Bair also repeatedly stressed
that the rule in question was a proposal, rather than a
finalized regulation. Mr. Yingling also defended the validity
of the proposed rule. However, Martin Edwards challenged the
legal validity of the rule, citing what he considered to be
grave administrative and procedural defects associated with its
formulation and notice. A number of detailed questions were
submitted to witnesses following the hearing. Their responses
to these questions became a part of the formal hearing record.
SUBCOMMITTEE ON COURTS, THE INTERNET, AND INTELLECTUAL PROPERTY \1\
HOWARD COBLE, North Carolina,
Chairman
HOWARD L. BERMAN, California HENRY J. HYDE, Illinois
JOHN CONYERS, Jr., Michigan ELTON GALLEGLY, California
RICK BOUCHER, Virginia BOB GOODLATTE, Virginia, Vice
ZOE LOFGREN, California Chair
WILLIAM D. DELAHUNT, Massachusetts WILLIAM L. JENKINS, Tennessee
ROBERT WEXLER, Florida ASA HUTCHINSON, Arkansas \4\
MAXINE WATERS, California CHRIS CANNON, Utah
MARTIN T. MEEHAN, Massachusetts LINDSEY O. GRAHAM, South Carolina
STEVEN R. ROTHMAN, New Jersey \2\ SPENCER BACHUS, Alabama
TAMMY BALDWIN, Wisconsin JOE SCARBOROUGH, Florida \5\
ANTHONY D. WEINER, New York \3\ JOHN N. HOSTETLER, Indiana
RIC KELLER, Florida
DARRELL E. ISSA, California \6\
MELISSA A. HART, Pennsylvania \6\
----------
\1\ Subcommittee chairmanship and assignments approved January 31,
2001.
\2\ Steven R. Rothman, New Jersey, resigned from the Committee
effective February 7, 2001.
\3\ Anthony D. Weiner, New York, reassignment from the Subcommittee on
Crime to the Subcommittee on Courts, the Internet, and Intellectual
Property approved May 23, 2001.
\4\ Asa Hutchinson, Arkansas, resigned from the House effective
midnight August 6, 2001.
\5\ Joe Scarborough, Florida, resigned from the House effective
September 6, 2001.
\6\ Darrell E. Issa, California, and Melissa A. Hart, Pennsylvania,
assignments to the subcommittee approved November 15, 2001.
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee...................... 64
Legislation on which hearings were held....................... 4
Legislation reported favorably to the full Committee.......... 6
Legislation reported adversely to the full Committee.......... 0
Legislation reported without recommendation to the full
Committee................................................... 0
Legislation reported as original measure to the full Committee 0
Legislation discharged from the Subcommittee.................. 2
Legislation pending before the full Committee................. 0
Legislation reported to the House............................. 11
Legislation discharged from the Committee..................... 1
Legislation pending in the House.............................. 0
Legislation passed by the House............................... 12
Legislation pending in the Senate............................. 1
Legislation vetoed by the President (not overridden).......... 0
Legislation enacted into Public Law........................... 3
Legislation enacted into Public Law as part of other
legislation................................................. 11
Days of legislative hearings.................................. 4
Days of oversight hearings.................................... 22
Private:
Legislation referred to the Subcommittee...................... 1
Legislation on which hearings were held....................... 0
Legislation reported favorably to the full Committee.......... 0
Legislation discharged from the Subcommittee.................. 0
Legislation pending before the full Committee................. 0
Legislation reported to the House............................. 0
Legislation discharged from the Committee..................... 0
Legislation pending in the House.............................. 0
Legislation passed by the House............................... 0
Legislation pending in the Senate............................. 0
Legislation enacted into Private Law.......................... 0
Jurisdiction of the Subcommittee
The Subcommittee has legislative and oversight
responsibility for (1) the intellectual property laws of the
United States (including authorizing jurisdiction over the
Patent and Trademark Office of the Department of Commerce and
the Copyright Office of the Library of Congress); and (2)
Article III Federal courts (including authorizing jurisdiction
over the Administrative Office of the United States Courts, the
Judicial Conference of the United States, and the Federal
Judicial Center); the Federal Rules of Evidence and Civil and
Appellate Procedure; and judicial discipline and misconduct.
Legislative Activities
COURTS
H.R. 1203, Ninth Circuit Court of Appeals Reorganization Act of 2001
Summary.--Introduced by Representative Michael K. Simpson,
H.R. 1203 amends chapter 3 of title 28, United States Code, to
divide the Ninth Judicial Circuit of the United States into two
circuits. On July 23, 2002, the Subcommittee held a hearing on
H.R. 1203. Testimony was received from the following witnesses:
The Honorable Mary M. Schroeder, Chief Judge, U.S. Court of
Appeals for the Ninth Circuit; The Honorable Alan G. Lance,
Attorney General, State of Idaho; The Honorable Diarmuid F.
O'Scannlain, Judge, U.S. Court of Appeals for the Ninth
Circuit; and the Honorable Sidney R. Thomas, Judge, U.S. Court
of Appeals for the Ninth Circuit. No further action was taken
on the bill.
H.R. 2048, to require a report on the operations of the State Justice
Institute (Pub. L. No. 107-179)
Summary.--Introduced by Representative Howard Coble, H.R.
2048 requires the Attorney General, in consultation with the
State Justice Institute (SJI, ``the Institute''), to submit a
report to the House and Senate Committees on the Judiciary
regarding the effectiveness of the Institute in fulfilling its
missions, which include providing funds to improve the quality
of justice in state courts, facilitating enhanced coordination
between state and federal courts, and developing solutions to
common problems faced by all courts. The report would be done
in consultation with SJI, and would be due not later than
October 1, 2002.
Legislative History.--On July 16, 2001, the Subcommittee
was discharged from further consideration of H.R. 2048. On July
24, 2001, the Committee met in open session and ordered
favorably reported H.R. 2048, without amendment, by voice vote.
HR. 2048 was reported by the Committee to the House on August
2, 2001 (H. Rept. 107-189). On September 5, 2001, the House
passed H.R. 2048 under suspension of the rules, by voice vote.
On December 13, 2001, H.R. 2048 was reported favorably to the
Senate by Senator Leahy. On May 20, 2002, the President signed
H.R. 2048 and it is Public Law 107-179.
H.R. 2336, to make permanent the authority to redact financial
disclosure statements of judicial employees and judicial
officers (Pub. L. No. 107-126)
Summary.--Introduced by Representative Howard Coble, H.R.
2336 extends for 4 years, through December 31, 2005, the
authority of the Judicial Conference of the United States to
redact financial disclosure statements of judicial employees
and judicial officers where the release of the information
could endanger the filer or his or her family.
Legislative History.--On October 2, 2001, the Subcommittee
was discharged from further consideration of H.R. 2336. On
October 3, 2001, the Committee met in open session and ordered
favorably reported H.R. 2336 without amendment by voice vote.
H.R. 2336 was reported by the Committee to the House on October
12, 2001 (H. Rept. 107-239). On October 16, 2001, the House
passed H.R. 2336 under suspension of the rules, by voice vote.
On December 7, 2001, H.R. 2336 was reported favorably to the
Senate by Senator Lieberman (S. Rept. 107-111). The Senate
passed H.R. 2336, amended, on December 11, 2001. On December
20, 2001, the House agreed to the Senate amendments under
suspension of the rules. The President signed H.R. 2336 on
January 16, 2002, and it is Public Law 107-126.
H.R. 2522, Federal Courts Improvement Act of 2001
Summary.--Introduced by Representative Howard Coble, by
request, H.R. 2522 contains several provisions that are needed
to improve the Federal Court System. The bill affects a wide
range of judicial branch programs and operations. It addresses
judicial financial administration, judicial process
improvements, judiciary personnel administration, and benefits
and protections.
Legislative History.--On July 26, 2001, the Subcommittee
held a hearing on H.R. 2522. Testimony was received from the
Honorable Deanell R. Tacha, Chief Judge, United States Court of
Appeals for the Tenth Circuit. Nearly all of the provisions in
H.R. 2522 were later incorporated into H.R. 4125, the ``Federal
Courts Improvement Act of 2002.''
H.R. 3892, Judicial Improvements Act of 2002
Summary.--Introduced by Representative Howard Coble, H.R.
3892 reorganizes and clarifies the existing statutory mechanism
that allows individuals to file complaints against Article III
judges. These reforms will offer more guidance to circuit chief
judges when evaluating individual complaints, while providing
individuals with more insight as to the disposition of their
cases. The overall reorganization will make the process of
learning about and filing a complaint more user-friendly.
Legislative History.--The Subcommittee conducted an
oversight hearing on judicial misconduct on November 29, 2001.
Testimony was received from the following witnesses: The
Honorable William L. Osteen, U.S. District Judge for the Middle
District of North Carolina; Professor Arthur D. Hellman,
Professor of Law, University of Pittsburgh School of Law;
Michael J. Remington, Partner, Drinker Biddle & Reath LLP; and
Douglas T. Kendall, Executive Director, Community Rights
Counsel. On March 20, 2002, the Subcommittee met in open
session and ordered favorably reported H.R. 3892, amended, by
voice vote. On April 24, 2002, the Committee met in open
session and ordered favorably reported the bill H.R. 3892, as
amended, by voice vote. H.R. 3892 was reported by the Committee
to the House on May 14, 2002 (H. Rept. 107-459). On July 22,
2002, the House passed H.R. 3892, as amended, under suspension
of the rules, by voice vote. H.R. 3892 was reported favorably
to the Senate, amended, by Senator Leahy on July 31, 2002. The
provisions of H.R. 3892 were later incorporated into H.R. 2215,
the ``21st Century Department of Justice Appropriations
Authorization Act,'' which is Public Law 107-273.
H.R. 4125, Federal Courts Improvement Act of 2002
Summary.--Introduced by Representative Howard Coble, H.R.
4125 contains several provisions that are needed to improve the
Federal Court System. The bill affects a wide range of judicial
branch programs and operations. It addresses judicial financial
administration, judicial process improvements, judiciary
personnel administration, and benefits and protections.
Legislative History.--On May 2, 2002, the Subcommittee met
in open session and ordered favorably reported H.R. 4125,
amended, by voice vote. On September 10, 2002, the Committee
met in open session and ordered favorably reported H.R. 4125,
as amended, with additional Full Committee amendments by voice
vote. H.R. 4125 was reported by the Committee to the House on
September 30, 2002 (H. Rept. 107-700). On October 1, 2002, the
House passed H.R. 4125, as amended, under suspension of the
rules by a recorded vote of 370 yeas and 21 nays. No further
action was taken on the bill.
INTELLECTUAL PROPERTY
Copyrights
H.J. Res. 116, Consumer Technology Bill of Rights
Introduced by Representative Christopher Cox, H.J. Res. 116
recognizes the rights of consumers to use copyright protected
works. No action was taken on the resolution.
H.R. 614, Copyright Technical Corrections Act of 2001
Introduced by Representative Howard Coble, H.R. 614 amends
title 17, United States Code, to make technical corrections.
The provisions of H.R. 614 were later incorporated into S. 320.
H.R. 615, Intellectual Property Technical Amendments Act of 2001
Introduced by Representative Howard Coble, H.R. 615 makes
technical corrections in the patent, copyright, and trademark
laws. The provisions of H.R. 615 were later incorporated into
S. 320.
H.R. 2724, Music Online Competition Act of 2001
Introduced by Representative Chris Cannon, H.R. 2724: (1)
expands the current exemption from license fees for in-store
sampling of sound recordings by ``brick and Mortar'' music
retailers to include online sampling; (2) expands the current
exemption from copyright fees for broadcasters' ``server'' or
ephemeral copies to also exempt the multiple server copies
webcasters use to accommodate different bit rates, formats, and
caching; (3) provides for direct payment to artists of receipts
from statutory licensing of sound recordings; (4) amends the
Copyright Act to address the difficulties digital media
companies have experienced in attempting to use the statutory
license by instructing the Copyright Office to implement an
electronic filing system and collect the fees; and (5) exempts
the copying of sound recordings and works included in sound
recordings that is incidental to the operation of a device in
the course of lawful use of the work and permits the owners of
lawfully acquired digital phonorecord deliveries to make an
archival copy. No action was taken on the bill.
H.R. 5057, Intellectual Property Protection Act of 2002
Introduced by Representative Lamar Smith, H.R. 5057 amends
the Federal criminal code to prohibit trafficking in a physical
authentication feature that: (1) is genuine but has been
tampered with or altered without the authorization of the
copyright owner to induce a third party to reproduce or accept
distribution of a phono-record, a copy of a computer program, a
copy of a motion picture or other audiovisual work, or
documentation or packaging, where such reproduction or
distribution violates the rights of the copyright owner; (2) is
genuine but has been or is intended to be distributed without
the authorization of the copyright owner and not in connection
with the lawfully made copy or phono-record to which it was
intended to be affixed or embedded by the copyright owner; or
(3) appears to be genuine but is not. It also authorizes an
injured copyright owner to bring a civil action in an
appropriate U.S. district court. No action was taken on the
bill.
H.R. 5211, to amend title 17, United States Code, to limit the
liability of copyright owners for protecting their works on
peer-to-peer networks
Introduced by Representative Howard L. Berman, H.R. 5211
amends Federal copyright law to protect a copyright owner from
liability in any criminal or civil action for impairing, with
appropriate technology, the unauthorized distribution, display,
performance, or reproduction of his or her copyrighted work on
a publicly accessible peer-to-peer file trading network, if
such impairment does not, without authorization, alter, delete,
or otherwise impair the integrity of any computer file or data
residing on the computer of a file trader. No action was taken
on the bill.
H.R. 5285, Internet Radio Fairness Act
Introduced by Representative Jay Inslee, H.R. 5285 declares
that the July 8, 2002, determination by the Librarian of
Congress of rates and terms for the digital performance of
sound recordings and ephemeral recordings shall not apply to
transmissions and ephemeral recordings by a small business,
small organization, or small governmental jurisdiction (small
entities). It further declares that the first determination of
terms and rates of royalty payments made after enactment of
this Act shall apply to transmissions made by small business
concerns during the period between the enactment of the Digital
Millennium Copyright Act and the date provided for in that
determination. It also amends Federal copyright law to declare
that, except in the case of a motion picture or other
audiovisual work, it is not a copyright infringement for a
transmitting organization entitled to transmit to the public a
performance or display of a work, under a license or transfer
of the copyright, or for a broadcast radio station licensed by
the Federal Communications Commission that makes a broadcast
transmission of a sound recording in a digital format on a
nonsubscription basis, to make one or more copies or
phonorecords of that work, if each copy or phonorecord is: (1)
retained and used solely by the transmitting organization that
made it; and (2) used solely for the purpose of making the
transmitting organization's own transmissions or for purposes
of archival preservation or security. No action was taken on
the bill.
H.R. 5469, to suspend for a period of 6 months the determination of the
librarian of Congress of July 8, 2002, relating to rates and
terms for the digital performance of sound recordings and
ephemeral recordings (Pub. L. No. 107-321)
Summary.--Introduced by Representative F. James
Sensenbrenner, Jr., H.R. 5469 suspends royalties due from
noncommercial webcasters for the digital performance of sound
recordings for six months and from small commercial webcasters
for 30 days. At the end of the specified periods, all royalties
shall be due under the then applicable rates. The legislation
also authorizes SoundExchange to negotiate a global settlement
agreement with small webcasters on behalf of copyright owners
and performers. It also permits nonprofit agents designated to
distribute statutory royalties to artists and labels to deduct
from royalties the reasonable costs of collection and
distribution and the licensing or enforcing of statutory
rights, including costs incurred in rate setting arbitration
proceedings. Agents designated to distribute statutory
royalties to featured artists are required to pay such
royalties directly to those artists.
Legislative History.--On October 7, 2002, the Committee on
the Judiciary was discharged from further consideration of the
bill. On October 7, 2002, the House passed H.R. 5469, amended,
under suspension of the rules, by voice vote. On November 14,
2002, the Senate passed H.R. 5469, amended, by unanimous
consent. On November 15, 2002, the House agreed to the Senate
amendment and passed H.R. 5469 by unanimous consent. The
President signed H.R. 5469 on December 4, 2002, and it is
Public Law 107-321.
H.R. 5522, Digital Choice and Freedom Act of 2002
Introduced by Representative Zoe Lofgren, H.R. 5522 amends
title 17, United States Code, to safeguard the rights and
expectations of consumers who lawfully obtain digital
entertainment. No action was taken on the bill.
H.R. 5544, Digital Media Consumers' Rights Act of 2002
Introduced by Representative Rick Boucher, H.R. 5544 amends
the Federal Trade Commission Act to provide that the
advertising or sale of a mislabeled copy-protected music disc
is an unfair method of competition and an unfair and deceptive
act or practice. No action was taken on the bill.
S. 487, Technology, Education, and Copyright Harmonization Act of 2001
Summary.--Introduced by Senator Orrin G. Hatch, S. 487
revises Federal copyright law to extend the exemption from
infringement liability for instructional broadcasting to
digital distance learning or distance education. The Copyright
Act contains provisions outlining permissible uses of
copyrighted material for educational purposes, such as fair use
and other educational exemptions from copyright infringement.
These provisions were written more than 20 years ago, however,
prior to the advent of digital technologies. Accordingly, S.
487 updates the Copyright Act by appropriately striking a
balance between the rights of copyright owners and the ability
of users to access copyrighted material via the Internet and
other media for educational pursuits. The legislation makes
three basic changes to current law: (1) it eliminates the
current eligibility requirements for the distance learning
exemption that the instruction occur in a physical classroom or
that special circumstances prevent the attendance of students
in the classroom; (2) it clarifies that the distance learning
exemption covers the transient or temporary copies that may
occur through the automatic technical process of transmitting
material over the Internet; and (3) it amends the Copyright Act
to allow educators to show reasonable and limited portions of
dramatic literary and musical works, audiovisual works, and
sound recordings, in addition to the complete versions of non-
dramatic literary and musical works which are currently
exempted.
Legislative History.--On June 5, 2001, S. 487 was reported
favorably to the Senate, amended, by Senator Hatch (S. Rept.
107-31). On June 7, 2001, the Senate passed S. 487, as amended,
with additional floor amendments. On June 18, 2001, S. 487 was
referred to the Subcommittee. On June 27, 2001, the
Subcommittee held a hearing on S. 487. Testimony was received
from the following witnesses: The Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
The Library of Congress; Allan Robert Adler, Vice President,
Legal & Government Affairs, Association of American Publishers,
Inc; and John C. Vaughn, Executive Vice President, Association
of American Universities. On July 11, 2001, the Subcommittee
met in open session and favorably reported S. 487, without
amendment, by a recorded vote of 12 yeas and 0 nays. On July
17, 2002, the Committee met in open session and favorably
reported S. 487 without amendment, by voice vote. On September
25, 2002, the Committee reported S. 487 to the House (H. Rept.
107-687). The provisions of S. 487 were later incorporated into
H.R. 2215, the ``21st Century Department of Justice
Appropriations Authorization Act,'' which is Public Law 107-
273.
PATENTS
H.R. 740, Patent and Trademark Office Reauthorization Act
Summary.--Introduced by Representative Howard Coble, H.R.
740 amends Federal patent law to authorize fees collected for
Patent and Trademark Office services or materials to be
available until expended for Office activities. (Currently,
such fees are available only to the extent and in the amounts
provided in advance in appropriations Acts.) The provisions of
H.R. 740 were later incorporated into H.R. 2047.
H.R. 1866, to amend title 35, United States Code, to clarify the basis
for granting requests for reexamination of patents
Summary.--Introduced by Representative Howard Coble, H.R.
1866 clarifies the basis for the U.S. Patent and Trademark
Office (PTO) to determine whether the request for the
reexamination of a patent should be granted.
Legislative History.--On May 22, 2001, the Subcommittee met
in open session and ordered favorably reported H.R. 1866,
amended, by voice vote. On June 20, 2001, the Committee met in
open session and ordered favorably reported H.R. 1866, as
amended, with an additional Full Committee amendment, by voice
vote. On June 28, 2001, the Committee reported H.R. 1866 to the
House (H. Rept. 107-120). On September 5, 2001, the House
passed H.R. 1866, as amended, under suspension of the rules, by
voice vote. The provisions of H.R. 1866 were later incorporated
into H.R. 2215, the ``21st Century Department of Justice
Appropriations Authorization Act,'' which is Public Law 107-
273.
H.R. 1886, to amend title 35, United States Code, to provide for
appeals by third parties in certain patent reexamination
proceedings
Summary.--Introduced by Representative Howard Coble, H.R.
1886 repeals a prohibition which bars judicial review of
certain patent inter partes reexamination decisions. The
legislation permits the third-party requester in an inter
partes reexamination to appeal the decision by the U.S. Patent
and Trademark Office (PTO) to the U.S. Court of Appeals for the
Federal Circuit.
Legislative History.--On May 22, 2001, the Subcommittee met
in open session and ordered favorably reported H.R. 1886,
without amendment,by voice vote. On June 20, 2001, the
Committee met in open session and ordered favorably reported H.R. 1886,
without amendment, by voice vote. On June 28, 2001 the Committee
reported H.R. 1886 to the House (H. Rept. 107-121). On September 5,
2001, the House passed H.R. 1886 under suspension of the rules, by
voice vote. The provisions of H.R. 1886 were later incorporated into
H.R. 2215, the ``21st Century Department of Justice Appropriations
Authorization Act,'' which is Public Law 107-273.
H.R. 2047, Patent and Trademark Office Authorization Act of 2002
Summary.--Introduced by Representative Howard Coble, H.R.
2047 authorizes the Patent and Trademark Office (PTO) to retain
all of the user fee revenue it collects in fiscal year 2002 for
agency operations. In addition, PTO is to earmark a portion of
this revenue to address problems relating to its computer
systems, and to develop a 5-year strategic plan to establish
goals and methods by which the agency can enhance patent and
trademark quality while reducing application pendency.
On June 7, 2001, the Subcommittee held an oversight hearing
on: ``The Operations of the United States Patent and Trademark
Office, Including Review of Agency Funding.'' Testimony was
received from the following witnesses: The Honorable Nicholas
Godici, Acting Undersecretary of Commerce for Intellectual
Property and Acting Director of the U.S. Patent and Trademark
Office; Ronald E. Myrick, Chief Intellectual Property Counsel,
General Electric Capital Services, on behalf of Intellectual
Property Owners (IPO); Nils Victor Montan, Vice President,
Senior Intellectual Property Counsel, Warner Brothers, on
behalf of the International Trademark Association (INTA); and
Ronald J. Stern, President, Patent Office Professional
Association (POPA).
Legislative History.--On June 14, 2001, the Subcommittee
met in open session and ordered favorably reported H.R. 2047,
amended, by voice vote. On July 24, 2001, the Committee met in
open session and ordered favorably reported H.R. 2047, as
amended, with additional full Committee amendments, by voice
vote. On August 2, 2001, the Committee reported H.R. 2047 to
the House (H. Rept. 107-190). On November 6, 2001, the House
passed H.R. 2047, as amended, under suspension of the rules, by
voice vote. On June 26, 2002, H.R. 2047 passed the Senate,
amended. The provisions of H.R. 2047 were later incorporated
into H.R. 2215, the ``21st Century Department of Justice
Appropriations Authorization Act,'' which is Public Law 107-
273.
H.R. 5119, Plant Breeders Equity Act of 2002
Summary.--Introduced by Representative Darrell E. Issa,
H.R. 5119 amends Federal patent law to declare that no plant
patent application shall be denied, nor shall any issued plant
patent be invalidated, on the grounds that the invention was
described in a printed publication in this or a foreign country
or in public use or on sale in this country, more than one year
before the date of the U.S. patent application, unless the
invention was described in a printed publication in this or a
foreign country more than ten years before the date of the U.S.
patent application.
Legislative History.--On September 19, 2002, the
Subcommittee held a hearing on H.R. 5119. Testimony was
received from the following witnesses: The Honorable James A.
Toupin, General Counsel, U.S. Patent and Trademark Office;
Vincent E. Garlock, Deputy Executive Director, American
Intellectual Property Law Association (AIPLA); Craig J.
Regelbrugge, Senior Director, Government Relations, The
American Nursery & Landscape Association; and Peter T. DiMauro,
Ph.D., Director, PatentWatch Project, International Center for
Technology Assessment. No further action was taken on the bill.
Oversight Activities
List of oversight hearings
Internet Corporation for Assigned Names and Numbers (ICANN),
New global Top Level Domains (gTLDs), and the
Protection of Intellectual Property, March 22, 2001
(Serial No. 8)
Business Method Patents, April 4, 2001 (Serial No. 5)
United States Copyright Office, May 2, 2001 (Serial No. 6)
Patents: Improving Quality and Curing Defects, May 10, 2001
(Serial No. 9)
Music on the Internet, May 17, 2001 (Serial No. 12)
Operations of the United States Patent and Trademark Office,
Including Review of Agency Funding, June 7, 2001
(Serial No. 16)
Whois Database: Privacy and Intellectual Property Issues, July
12, 2001 (Serial No. 23)
Market Power and Intellectual Property Litigation, November 8,
2001 (Serial No. 42)
Operations of Federal Judicial Misconduct and Recusal Statutes,
November 29, 2001 (Serial No. 45)
Settlement Agreement by and among the United States of America,
the Federal Communications Commission, NextWave
Telecom, Inc., and Certain Affiliates, and
Participating Auction 35 Winning Bidders (Held
jointly with the Subcommittee on Commercial and
Administrative Law), December 6, 2001 (Serial No.
56)
Digital Millennium Copyright Act Section 104 Report, December
12 and 13, 2001 (Serial No. 52)
Federal Trademark Dilution Act, February 14, 2002 (Serial No.
53)
Patent Law and Non-Profit Research Collaboration, March 14,
2002 (Serial No. 60)
United States Patent and Trademark Office--Operations and
Fiscal Year 2003 Budget, April 11, 2002 (Serial No.
64)
Accuracy and Integrity of the Whois Database, May 22, 2002
(Serial No. 70)
Consumer Benefits of Today's Digital Rights Management (DRM)
Solutions, June 5, 2002 (Serial No. 72)
Copyright Arbitration Royalty Panel (CARP) Structure and
Process, June 13, 2002 (Serial No. 78)
Patent Reexamination and Small Business Innovation, June 20,
2002 (Serial No. 79)
Unpublished Judicial Opinions, June 27, 2002 (Serial No. 82)
United States Patent and Trademark Office: Fee Schedule
Adjustment and Agency Reform, July 18, 2002 (Serial
No. 92)
Piracy of Intellectual Property on Peer-to-Peer Networks,
September 26, 2002 (Serial No. 103)
Review of operations of the United States Copyright Office
On May 2, 2001, the Subcommittee held an oversight hearing
to review the administrative activities and the funding and
expenditures of the Copyright Office to ensure that it is
utilizing its resources effectively. Testimony was received
from The Honorable Marybeth Peters, Register of Copyrights,
Copyright Office of the United States, The Library of Congress.
The Copyright Office is a division in the Library of
Congress. It performs several functions aside from its primary
responsibility to examine and register copyright claims. These
other functions include: maintaining records regarding
transfers and terminations of copyright, administering the
Copyright Arbitration Royalty Panel, providing information to
the public about copyright law and registration procedures,
providing technical assistance to the Congress, assisting the
domestic and international copyright community in copyright
protection and collecting works to be deposited in the Library
of Congress. The Copyright Office funds roughly two-thirds of
its operations through fee receipts and the balance through
appropriations.
Register Peters provided the Subcommittee with an overview
of two operational improvement initiatives underway at the
Office--information technology planning and business process
reengineering. She also provided a detailed review of FY 2000
operational activities and ongoing work; the legislative and
policy assistance provided to the Legislative and Executive
branches by the Office; recent and ongoing rulemakings; and
litigation in which the Office is involved. Finally, she
explained the FY 2002 budget request, citing several reasons
for the need for an increased appropriation.
Review of the Operations of the United States Patent and Trademark
Office including Review of Agency Funding
On June 7, 2001, the Subcommittee held an oversight hearing
on: ``The Operations of the United States Patent and Trademark
Office, Including Review of Agency Funding.'' Testimony was
received from the following witnesses: The Honorable Nicholas
Godici, Acting Undersecretary of Commerce for Intellectual
Property and Acting Director of the U.S. Patent and Trademark
Office; Ronald E. Myrick, Chief Intellectual Property Counsel,
General Electric Capital Services, on behalf of Intellectual
Property Owners (IPO); Nils Victor Montan, Vice President,
Senior Intellectual Property Counsel, Warner Brothers, on
behalf of the International Trademark Association (INTA); and
Ronald J. Stern, President, Patent Office Professional
Association (POPA).
The purpose of the hearing was to review the general
operations of the U.S. Patent and Trademark Office (PTO). The
agency generates its funding by imposing statutory user fees on
individuals and businesses which file for patent and trademark
protection in the United States. Since congressional
appropriators have consistently diverted a percentage of PTO
revenue to other programs over the past decade, the
Subcommittee explored the extent to which this budget practice
has created administrative problems at the agency and for its
users.
Nicholas Godici elaborated on the increased agency
workload, and described various ``e-government'' initiatives
which the USPTO is developing to enhance productivity. Ronald
Myrick emphasized that implementation of electronic filing was
an imperative given the rise of application pendency rates; and
voiced his support for H.R. 2047, which would require the
development of a detailed Strategic Business Plan by USPTO.
Nils Montan concurred with Mr. Myrick's points while
articulating his opposition to a recent effort by the
Department of Commerce to implement a hiring freeze at USPTO.
Ronald Stern voiced his displeasure with the ongoing practice
of fee diversion, and stated his belief that USPTO would
benefit from additional examiner hires who should be permitted
to spend more time reviewing applications.
Review of Operations of the Federal Judicial Misconduct and Recusal
Statutes
The Subcommittee conducted an oversight hearing on Judicial
Misconduct on November 29, 2001. Testimony was received from
the following witnesses: The Honorable William L. Osteen, U.S.
District Judge for the Middle District of North Carolina;
Professor Arthur D. Hellman, Professor of Law, University of
Pittsburgh School of Law; Michael J. Remington, Partner,
Drinker Biddle & Reath LLP; and Douglas T. Kendall, Executive
Director, Community Rights Counsel. The hearing reviewed the
operations and effectiveness of the Code of Conduct for U.S.
judges, which governs Federal judicial misconduct, including
the so-called ``disability and discipline'' act (28 U.S.C.
Sec. 372 (c)), and two recusal measures (28 U.S.C. Sec. 144 and
Sec. 455). Specifically, the purpose was to determine whether
the affected judicial committees, judicial councils, and the
Judicial Conference accord appropriate consideration to those
complaints brought before them; the general willingness of
judges to police their colleagues and recuse themselves from
cases when necessary; whether appropriate disciplinary measures
are taken when warranted; and any other possible misuse or
abuse of these statutes which might compromise the integrity of
and public confidence in the Federal judiciary.
Judge William L. Osteen testified that judges do not
neglect their ethical obligations by attending private
education seminars. He further testified that over the past few
years the relative number of reported problems regarding judges
recusal practices were small, and that nevertheless, the
judiciary has taken numerous steps to correct those problems
which were identifiable. Professor Arthur Hellman recommended
that the Judicial Conduct and Disability Act of 1980 should be
amended to explicitly recognize the authority of the chief
judge to conduct a limited inquiry into the validity of the
complaint as well as the ability to dismiss the complaint if
the limited inquiry demonstrates that the allegations lack any
factual foundation or are conclusively refuted by objective
evidence. Section 372(c)(3)(A) should more fully specify other
bases for dismissal that can be identified on the face of a
complaint, and the Act should be amended to permit petitions
for review to be considered by a standing or rotating panel of
the judicial council, rather than by the entire council. In
order to ensure that judicial conflict of interests are
properly dealt with, all federal courts should post on their
web sites conflict lists for all judges of that court. 28
U.S.C. Sec. 46(c) should be amended to make clear that recused
judges are not counted as part of the majority for purposes of
this statute. Michael J. Remington approved the 1980 Act in its
current structure but felt that the public and practicing bar
were largely unaware of its existence. He stated that the
Committee should examine whether any of the National
Commissions' recommendations have continuing merit,
necessitating statutory or administrative implementation, and
that the issue must be taken in context with an understanding
of the informal methods utilized in the areas of judicial
misconduct and disqualification. Douglas T. Kendall stated that
the Judicial Conference should enact reforms that prevent the
appearanceof impropriety currently stemming from private
judicial seminars; that there should be more effective penalties to
enforce judges' disclosure obligations and the ban on ruling in cases
in which a judge owns stock; that judges should be required to maintain
an up-to-date ``recusal list'' available to litigants (without advance
notification of the judge) at the clerk's office; and unless there is a
threat to a particular federal judge, that financial disclosure forms
should be made immediately unavailable to those requesting review.
In response to issues brought forth in this hearing,
Chairman Coble introduced H.R. 3892, the ``Judicial
Improvements Act of 2002.'' The legislation proposes to
reorganize the Judicial Conduct and Disability Act of 1980 by
recodifying it as a new chapter of title 28 of the U.S. Code,
and clarifies the responsibilities of a circuit chief judge in
making initial evaluations of a complaint. The testimony of
Professor Hellman and Mr. Remington were critical in the
drafting of H.R. 3892. See H.R. 3892 above for legislative
history.
Review of the United States Patent and Trademark Office: Operations and
Fiscal Year 2003 Budget
On April 11, 2002, the Subcommittee held an oversight
hearing on: ``The United States Patent and Trademark Office:
Operations and Fiscal Year 2003 Budget.'' Testimony was
received from the following witnesses: The Honorable James
Rogan, Undersecretary of Commerce for Intellectual Property and
Director of the U.S. Patent and Trademark Office; Michael K.
Kirk, Executive Director, American Intellectual Property Law
Association (AIPLA); Colleen Kelley, National President,
National Treasury Employees Union (NTEU); and John K.
Williamson, President, Intellectual Property Owners (IPO).
The Administration's fiscal year 2003 budget requested a
21-percent increase in the operating budget of the Patent and
Trademark Office (PTO), funded primarily through a one-year
19.3-percent surcharge on patent fees and a 10.3-percent
surcharge on trademark fees. This budget also signaled that the
Administration plans to develop a major fee-restructuring
proposal to fund future PTO operations. The primary purpose of
the hearing was to encourage PTO Director Rogan to release,
present, and defend his strategic plan for the agency; and to
elicit comments from the user community about the relative
merits of the plan. Such compliance will enable the Committee
to make informed judgments as to the development of policy
initiatives that will assist PTO in fulfilling its missions.
Director James E. Rogan noted a sharp increase in the
volume and complexity of his agency's workload. He emphasized
his intention to conduct a top-to-bottom review of the USPTO
with the goal of increasing productivity and efficiency.
Michael Kirk announced his continued support for H.R. 2047 and
the development of a USPTO Strategic Business Plan. He further
restated the general ``user group'' opposition to fee
diversion. Mr. Kirk's views were essentially reiterated by John
Williamson. Colleen Kelley discussed the need for greater
agency funding of the agency and NTEU opposition to efforts to
privatize or contract-out certain USPTO functions.
Review of the Copyright Arbitration Royalty Panel (CARP) structure and
process
As part of the 1976 Copyright Act Amendments, Congress
acknowledged the need for the government to oversee the royalty
rate-making and distribution process by creating the Copyright
Royalty Tribunal (CRT). By 1993, Congress, the Copyright
office, and rate-making participants believed that greater
efficiencies could be realized under a different system which
led to the creation of the CARP. Once more, the rate-making
participants and the Copyright office lodged complaints about
the CARP's overall ineffectiveness, thus prompting the
Subcommittee to conduct an oversight hearing on the process and
structure of the CARP (Copyright Arbitration Royalty Panel) on
June 10, 2002. Testimony was received from the following
witnesses: Michael J. Remington, Attorney-at-Law and Partner,
Drinker Biddle & Reath, LLP; Robert A. Garrett, Attorney-at-Law
and Partner, Arnold & Porter; R. Bruce Rich, Attorney-at-Law,
Weil, Gotschal & Manges, LLP; and The Honorable Marybeth
Peters, Register of Copyrights and Associate Librarian for
Copyright Services, Copyright Office of the United States, The
Library of Congress.
Michael J. Remington made the following recommendations:
the current CARP system should be reformed to include a
permanent panel of salaried administrative law judges supported
by a professional staff; a small claims process should be
created; costs should be further reduced and fiscal
accountability should be added to the process; various
administrative improvements should be promoted; and there
should be a continuance of vigorous oversight by the
legislature. Robert Alan Barrett advocated maintaining the
current structure of the CARP while focusing on ``revising''
the process. Among the various alternative measures that he
championed were, achieving cost savings without eliminating
evidentiary hearings, and allowing the parties to choose how
much underlying documentation should accompany their written
testimony. R. Bruce Rich stated that regardless of what
construct was chosen, reform of the CARP should be focused upon
hiring panelists who possess an understanding of macroeconomics
and basic principles of antitrust law; the ability to
assimilate facts concerning multiple media marketplaces; the
ability evaluate complex statistical and economic data put
forth by the parties' experts; and, the ability to sift through
and properly evaluate record evidence, including making
judgements on issues such as witness credibility. Marybeth
Peters testified that the CARP system should be revised so as
to allow the Copyright Office and the Library to hire full-time
employees; and that consideration should be given to whether
the Register should have discretion to assign additional
copyright work to the Copyright office-based decision makers
during these periods of inactivity.
Review of unpublished judicial opinions
On June 27, 2002, the subcommittee conducted an oversight
hearing on unpublished judicial opinions in an attempt to
ascertain whether the use of limited publication/non-citation
rules is constitutional; whether the varying rules within the
circuits as to limited publication/non-citation rules should be
uniform; what precedential effect non-published opinions should
be given; and what level of access the public is entitled to
with regard to non-published opinions. Testimony was received
from the following witnesses: Professor Arthur Hellman,
Professor of Law, University of Pittsburgh School of Law;
Kenneth Schmier, Chairman, Committee for the Rule of Law; the
Honorable Alex Kozinski, Judge, United States Court of Appeals
for the Ninth Circuit; and the Honorable Samuel A. Alito, Jr.,
Judge, United States Court of Appeals for the Third Circuit;
and Chair, Advisory Committee on the Federal Rules of Appellate
Procedure.
Professor Arthur Hellman testified that, at minimum, courts
should allow attorneys to cite unpublished dispositions; and
that, when an unpublished disposition is closely on point, an
opinion clarifying the law on that issue should be published.
In addition, Professor Hellman stated that he would not favor a
national rule on the precedential status of unpublished
opinions and that he considered the rule under advisement by
the Advisory Committee at the time of the hearing to be
favorable. Kenneth J. Schmier testified that all cases should
be decided by written decisions which set forth the prevailing
party and why that party prevailed so as to ensure adherence to
the doctrine of stare decisis. Judge Alex Kozinski took the
position that each court should be entitled to independently
address the issues of non-citation/non-publication according to
its own customs and needs. Judge Samuel Alito, Jr. stated that
while the justification for the creation of the concept of
unpublished opinions was originally grounded in equity, the
concept might no longer be viable. For example, technological
advances (the Internet) provide greater access to opinions.
Review of the United States Patent and Trademark Office: Fee Schedule
Adjustment and Agency Reform
On Thursday, July 18, 2002, the Subcommittee held an
oversight hearing on: ``The U.S. Patent and Trademark Office:
Fee Schedule Adjustment and Agency Reform.'' Testimony was
received from the following witnesses: The Honorable James
Rogan, Undersecretary of Commerce for Intellectual Property and
Director of the U.S. Patent and Trademark Office; Kathryn
Barrett Park, Executive Vice President, International Trademark
Association (INTA); Michael K. Kirk, Executive Director,
American Intellectual Property Law Association (AIPLA); and
Charles P. Baker, Chair, Intellectual Property Law Section,
American Bar Association. The purpose of the hearing was to
provide James E. Rogan, Director of the U.S. Patent and
Trademark Office (PTO), with the opportunity to present and
defend his ``21st Century Strategic Plan'' for the agency. The
testimony and questioning focused on Director Rogan's request
that Congress enact a new fee schedule to subsidize PTO
operations beginning in fiscal year 2003. Given that PTO is
completely funded through the imposition of user fees, the
hearing also gave organizations representing the interests of
inventors and trademark owners an opportunity to critique the
plan, especially the proposed fee schedule.
Director James E. Rogan described and defended the general
contents of the June 3, 2001, USPTO Strategic Business Plan,
developed in response to Subcommittee requests and the text of
H.R. 2047. The other witnesses--Michael Kirk, Charles Baker,
and Kathryn Barrett Park--praised portions of the Plan,
including certain work-sharing and employee-evaluation
procedures. However, they also criticized other provisions,
most especially the proffered fee schedule, which included some
increases described as ``punitive.''
SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS 1,2
GEORGE W. GEKAS,
Pennsylvania, Chairman
SHEILA JACKSON LEE, Texas DARRELL E. ISSA, California
BARNEY FLAKE, Massachusetts MELISSA A. HART, Pennsylvania
HOWARD L. BERMAN, California LAMAR S. SMITH, Texas
ZOE LOFGREN, California ELTON GALLEGLY, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah, Vice Chair
J. RANDY FORBES, Virginia \3\ JEFF FLAKE, Arizona
----------
\1\ Subcommittee chairmanship and assignments approved January 31,
2001.
\2\ Subcommittee name change from ``Immigration and Claims'' to
``Immigration, Border Security, and Claims'' approved June 13, 2002.
\3\ J. Randy Forbes, Virginia, assignment to the subcommittee approved
June 13, 2002.
Tabulation of subcommittee legislation and activity
Public:
Legislation referred to the Subcommittee...................... 201
Legislation on which hearings were held....................... 3
Legislation reported favorably to the full Committee.......... 15
Legislation reported adversely to the full Committee.......... 0
Legislation reported without recommendation to the full
Committee................................................... 0
Legislation reported as original measure to the full Committee 0
Legislation discharged from the Subcommittee.................. 3
Legislation pending before the full Committee................. 4
Legislation reported to the House............................. 10
Legislation discharged from the Committee..................... 3
Legislation pending in the House.............................. 2
Legislation passed by the House............................... 11
Legislation pending in the Senate............................. 1
Legislation vetoed by the President (not overridden).......... 0
Legislation enacted into Public Law........................... 13
Days of legislative hearings.................................. 3
Days of oversight hearings.................................... 17
Private:
Claims:
Legislation referred to the Subcommittee.................. 25
Legislation on which hearings were held................... 0
Legislation reported favorably to the full Committee...... 6
Legislation pending before the full Committee............. 0
Legislation reported to the House......................... 6
Legislation discharged from the Committee................. 0
Legislation pending in the House.......................... 1
Legislation passed by the House........................... 5
Legislation pending in the Senate......................... 1
Legislation enacted into Private Law...................... 3
Immigration:
Legislation referred to the Subcommittee.................. 56
Legislation on which hearings were held................... 0
Legislation reported favorably to the full Committee...... 3
Legislation pending before the full Committee............. 0
Legislation reported to the House......................... 3
Legislation discharged from the Committee................. 0
Legislation pending in the House.......................... 0
Legislation passed by the House........................... 3
Legislation pending in the Senate......................... 0
Legislation enacted into Private Law...................... 3
Jurisdiction of the Subcommittee
The Subcommittee on Immigration, Border Security and Claims
has legislative and oversight jurisdiction over matters
involving: immigration and naturalization, admission of
refugees, border security, treaties, conventions and
international agreements, claims against the United States,
federal charters of incorporation, private immigration and
claims bills, and other appropriate matters as referred by the
Chairman of the Judiciary Committee.
Public Legislation Enacted Into Law
IMMIGRATION
H.R. 1452, the Family Reunification Act of 2002
Summary.--Prior to enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 and the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, permanent
resident aliens who were domiciled in the United States for
seven continuous years and were subject to deportation could
seek discretionary ``212(c)'' relief from deportation, unless
they had been convicted of one or more aggravated felonies and
had served for such felonies terms of imprisonment of at least
five years. AEDPA rescinded judicial review of final orders of
deportation based on the commission of certain crimes
(including aggravated felonies), requiring the detention of any
alien convicted of an aggravated felony upon release from
incarceration, making aliens who have been convicted of certain
crimes (including any aggravated felonies) ineligible for
212(c) relief, and expanding the number of crimes considered
aggravated felonies under the Immigration and Nationality Act.
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 refined these reforms. ``212(c)'' relief was repealed.
In its place, deportable permanent residents could
seek``cancellation of removal''--discretionary relief from removal by
an immigration judge--if the alien: (1) has been an alien lawfully
admitted for permanent residence for not less than 5 years; (2) has
resided in the United States continuously for 7 years after having been
admitted in any status; and (3) has not been convicted of any
aggravated felony. IIRIRA defined ``term of imprisonment'' as including
a period of incarceration or confinement, regardless of any suspension
of the imposition or execution of the imprisonment. IIRIRA also defined
continuous residence to end when the alien was served a notice to
appear at a removal proceeding or when the alien has committed certain
crimes making him inadmissible or removable (including aggravated
felonies).
A number of cases have arisen in which the deportation of
legal permanent resident aliens under the 1996 laws seemed
harsh. The first category of such hardship cases involves
permanent residents who were brought legally to the U.S., when
still young children and now face deportation to countries that
they no longer even remember, let alone to which they have any
ties or speak the language. The second category involves
permanent residents who committed crimes well before 1996 that
were reclassified as aggravated felonies in that year. Some of
these aliens have fully reformed, raised families and become
productive members of their communities in the ensuing years.
The third category involves aliens who have committed
relatively minor crimes. Since an aggravated felony is now
defined to include any crime of theft or violence for which an
alien is sentenced to one year or more of prison, or any drug
trafficking offense (regardless of whether any jail sentence is
imposed), crimes such as shoplifting, drunk driving, and very
low- level drug trafficking can carry with them mandatory
deportation for permanent residents.
H.R. 1452 was designed to strike an appropriate and fair
balance on the issue of relief from deportation for legal
permanent resident aliens. It would have retained the
beneficial reforms from 1996 while letting a select group of
legal permanent residents request discretionary relief from
deportation. Because of concerns about the willingness of some
immigration judges to grant relief from deportation
profligately if given the ability, the bill would have provided
that only the Attorney General or Deputy Attorney General could
grant the relief provided.
The bill would have set forth four avenues of relief from
removal for permanent residents who have been convicted of a
crime. None of those four forms of relief would have been
available to aliens who had engaged in, or are likely to engage
in, terrorist activity or have been convicted of murder, rape,
or sexual abuse of a minor:
First, a non-violent aggravated felon would have
been able to seek relief if he: (1) had been a permanent
resident for at least 5 years; (2) had resided in the U.S.
continuously for at least seven to 10 years; (3) was convicted
in connection with a single scheme of misconduct for which the
alien received a sentence of four years or less, or two schemes
of misconduct for which the alien received a sentence of four
years or less, but was never actually imprisoned; and (4) was
not an organizer or leader of the aggravated felony or
felonies. If the alien has served jail time in connection with
any other offense, he would not have been eligible for this
relief. In addition, the criminal prosecutor would have been
able to block such relief if the alien failed to provide the
prosecutor with all information he possesses about the offense.
Second, an alien convicted of a violent aggravated
felony would have been able to seek relief under the same
standards, except that the requirement of not having been
sentenced to more than four years would have been reduced to
more than two years, and the crime could not have resulted in
serious bodily injury or death.
The third form of relief in H.R. 1452 provided
that an alien who legally arrived in the U.S. before age 10
would have been able to seek relief if the alien had: (1) been
a permanent resident for at least five years; (2) has resided
in the U.S. continuously for at least seven years after having
arrived in the U.S.; and (3) had not been imprisoned for
aggravated felonies arising out of more than two patterns of
criminal misconduct.
Fourth, an alien who legally entered the U.S.
before age 16 would have been able to apply for relief in the
same manner as those aliens who arrived before the age of 10,
except that such aliens were barred from relief if they
committed any aggravated felony within their first seven years
in the U.S.
The bill would have provided that an alien who was made
ineligible for relief by the 1996 immigration legislation, but
who would be eligible for one of these four forms of relief,
could move to reopen his case within one year of the Attorney
General's issuance of regulations. While aliens who have
already been deported could move to reopen to apply for relief,
those aliens would have had to apply from abroad and could only
reenter the United States if they were actually granted relief.
The bill also would have provided that an immigration judge
could release a permanent resident from detention if the alien
could demonstrate that he or she was prima facie eligible for
one of the four forms of relief, would not pose a danger to
persons, property, or national security, and would likely
appear at all future proceedings.
Finally, the bill would have ceased to have effect as of
the later of three years after the date on which a final rule
implementing the bill was promulgated, or December 31, 2005.
Legislative History.--On April 4, 2001, Representative
Barney Frank introduced H.R. 1452. On July 23, 2002, the
Judiciary Committee ordered H.R. 1452 reported, as amended, by
a vote of 18-15. On November 14, 2002, the Judiciary Committee
reported H.R. 1452 (H. Rept. 107-785). No further action was
taken on H.R. 1452 in the 107th Congress.
H.R. 1885, the Section 245(i) Extension Act of 2001
Summary.--Section 245(i) of the Immigration and Nationality
Act allows aliens who are eligible for immigrant visas, but who
are illegally in the U.S., to adjust their status with the INS
in the U.S. upon payment of a $1,000 penalty. In the absence of
section 245(i), illegal aliens must pursue their visa
applications abroad. Those who have been illegally present in
the U.S., for a year would be barred from reentry for 10 years,
pursuant to the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. The Legal Immigration Family Equity
Act of 2000 allowed illegal aliens who were in the U.S. as of
December 21, 2000, and who had immigrant visa petitions filed
on their behalf by April 30, 2001, to utilize section 245(i).
However, aliens eligible to utilize this provision may not have
had the four month window to apply that the Act contemplated.
The INS did not issue implementing regulations until March 2001
and many aliens claimed to have difficulty procuring the
services of immigration lawyers in time to apply.
H.R. 1885, as it passed the House, would have allowed
illegal aliens to utilize section 245(i) as long as they had
immigrant visa petitions filed on their behalf within 120 days
of its enactment. The bill retained the LIFE Act's requirement
that aliens must have been in the U.S. as of December 21, 2000,
so as not to encourage further illegal immigration into the
U.S. It also would have required that eligible aliens must have
entered into the family or business relationships qualifying
them for green cards by April 30, 2001, the original filing
deadline. This requirement was designed to ensure that there
would not be a wave of sham marriages designed purely to
procure immigrant visas. Numerous news articles had reported
that many thousands of illegal aliens rushed to get married to
U.S. citizens to beat the April 30 deadline.
Legislative History.--On May 17, 2001, Subcommittee on
Immigration and Claims Chairman George Gekas introduced H.R.
1885. On May 21, 2001, the House passed H.R. 1885 under
suspension of the rules by a vote of 336-43. On September 6,
2001, the Senate passed H.R. 1885 as amended by unanimous
consent. No further action was taken on H.R. 1885 in the 107th
Congress. See H. Res. 365.
H.R. 2277, to provide for work authorization for nonimmigrant spouses
of treaty traders and treaty investors (Public Law 107-124)
Summary.--E visas are available for treaty traders and
investors. An E visa is available to an alien who: is entitled
to enter the United States under and in pursuance of the
provisions of a treaty of commerce and navigation between the
United States and the foreign state of which he is a national,
and the spouse and children of any such alien if accompanying
or following to join him: (1) solely to carry on substantial
trade, including trade in services or trade in technology,
principally between the United States and the foreign state of
which he is a national; or (2) solely to develop and direct the
operations of an enterprise in which he has invested * * * a
substantial amount of capital.
Alien employees of a treaty trader or treaty investor may
receive E visas if they are coming to the U.S. to engage in
duties of an executive or supervisory character, or, if
employed in a lesser capacity, if they have special
qualifications that make the services to be rendered essential
to the efficient operation of the enterprise. The alien
employee would need to be of the same nationality as the treaty
trader or investor. E visas are issued directly by the State
Department (requiring no preliminary petition to the INS). Visa
recipients can stay in the U.S. for as long as they maintain
their status.
While prior law allowed spouses (and minor children) to
come to the U.S. with the E visa recipients, spouses were not
allowed to work in the U.S. H.R. 2277 allows the spouses of E
visa recipients to work in the United States while accompanying
the primary visa recipients.
Legislative History.-- On June 21, 2001, Subcommittee on
Immigration and Claims Chairman George Gekas introduced H.R.
2277. On June 27, 2001, the Subcommittee on Immigration and
Claims reported H.R. 2277 to the Judiciary Committee by a voice
vote. On July 24, 2001, the Judiciary Committee ordered H.R.
2277 reported by a voice vote. On August 2, 2001, the Judiciary
Committee reported H.R. 2277 (H. Rept. 107-187). On September
5, 2001, the House passed H.R. 2277 under suspension of the
rules by a voice vote. December 13, 2001, the Senate Judiciary
Committee ordered H.R. 2277 reported and reported H.R. 2277
without a written report. On December 20, 2001, the Senate
passed H.R. 2277 by unanimous consent. On January 16, 2002, the
President signed H.R. 2277 into law (Public Law 107-124).
H.R. 2278, to provide for work authorization for nonimmigrant spouses
of intracompany transferees (Public Law 107-125)
Summary.--L visas are available for intracompany
transferees. A visa is available to an alien who: Within 3
years preceding the time of his application for admission into
the United States, has been employed continuously for 1 year by
a firm * * * or an affiliate or subsidiary thereof and who
seeks to enter the United States temporarily in order to
continue to render his services to the same employer or a
subsidiary or affiliate thereof in a capacity that is
managerial, executive, or involves specialized knowledge, and
the alien spouse and minor children of any such alien if
accompanying him.* * *
The visas are good for up to 5 years for aliens admitted to
render services in a capacity that involves specialized
knowledge and for up to 7 years for aliens admitted to render
services in a managerial or executive capacity.
To make the L visa program more convenient for established
and frequent users of the program, ``blanket'' L visas are
available. If an employer meets certain qualifications--it (1)
is engaged in commercial trade or services; (2) has an office
in the U.S. that has been doing business for at least 1 year;
(3) has three or more domestic and foreign branches,
subsidiaries, or affiliates; and (4) has received approval for
at least 10 L visa professionals during the past year or has
U.S. subsidiaries or affiliates with annual combined sales of
at least $25 million or has a U.S. workforce of at least 1,000
employees--it can receive pre-approval for an unlimited number
of L visas from the INS. While prior law allowed spouses (and
minor children) to come to the U.S. with the L visa recipients,
spouses were not allowed to work in the U.S. H.R. 2278 would
allow the spouses of L visa recipients to work in the United
States while accompanying the primary visa recipients.
Additionally, prior law required that a beneficiary of a L
visa have been employed for at least 1 year overseas by the
petitioning employer. H.R. 2278 allows aliens to qualify for L
visas after having worked for 6 months overseas for employers
if the employers have filed blanket L petitions and have met
the blanket petitions' requirements.
Legislative History.--On June 21, 2001, Subcommittee on
Immigration and Claims Chairman George Gekas introduced H.R.
2278. On June 27, 2001, the Subcommittee on Immigration and
Claims reported H.R. 2278 to the Judiciary Committee by a voice
vote. On July 24, 2001, the Judiciary Committee ordered H.R.
2278 reported by a voice vote. On August 2, 2001, the Judiciary
Committee reported H.R. 2278 (H. Rept. 107-188). On September
5, 2001, the House passed H.R. 2278 under suspension of the
rules by a voice vote. On December 13, 2001, the Senate
Judiciary Committee ordered H.R. 2278 reported and reported
H.R. 2278 without a written report. On December 20, 2001, the
Senate passed H.R. 2278 by unanimous consent. On January 16,
2002, the President signed H.R. 2278 into law (Public Law 107-
125).
H.R. 3030, the Basic Pilot Extension of 2001 (Public Law 107-128)
Summary.--The Immigration Reform and Control Act of 1986
made it unlawful for employers to knowingly hire or employ
aliens not eligible to work and required employers to check the
identity and work eligibility documents of all new employees.
If the documents provided by an employee reasonably appear on
their face to be genuine, the employer has met its document
review obligation. If a new hire produces the required
documents, the employer is not required to solicit the
production of additional documents and the employee is not
required to produce additional documents. In fact, an
employer's request for more or different documents than are
required, or refusal to honor documents that reasonably appear
to be genuine, shall be treated as an unfair immigration-
related employment practice if made for the purpose or with the
intent of discriminating against an individual because of such
individual's national origin or citizenship status.
The easy availability of counterfeit documents has made a
mockery of IRCA. Fake documents are produced by the millions
and can be obtained cheaply. In response to the deficiencies of
IRCA, title IV of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 instituted three employment
eligibility confirmation pilot programs for volunteer employers
that were to last for 4 years. Under the basic pilot, the
proffered Social Security numbers and alien identification
numbers of new hires are checked against Social Security
Administration and INS records in order to weed out documents
containing counterfeit numbers and real numbers used by
multiple individuals and thus to ensure that new hires are
genuinely eligible to work. Operation of the basic pilot
program commenced in November 1997 and was set to expire in
November 2001.
Businesses and trade associations participating in the
basic pilot program reported to the Judiciary Committee that
the program has been a great success and that they favored a 2-
year extension. They wrote that the pilot program ``enhance[s]
the current * * * employment verification process by providing
employers with greater assurances that they are not hiring
unauthorized aliens and by establishing larger obstacles to
aliens seeking to work illegally.'' H.R. 3030 extends the
operation of the basic pilot program for an additional two
years.
Legislative History.--On October 4, 2001, Representative
Tom Latham introduced H.R. 3030. On November 1, 2001, the
Subcommittee on Immigration and Claims reported H.R. 3030 to
the Judiciary Committee by a voice vote. On November 15, 2001,
the Judiciary Committee ordered H.R. 3030 reported by a voice
vote. On November 30, 2001, the Judiciary Committee reported
H.R. 3030 (H. Rept. 107-310, Part I), and the Committee on
Education and the Workforce was discharged from consideration
of H.R. 3030. On December 11, 2001, the House passed H.R. 3030,
as amended, under suspension of the rules by a voice vote. On
December 20, 2001, the Senate passed H.R. 3030 by unanimous
consent. On January 16, 2002, the President signed H.R. 3030
into law (Public Law 107-128).
H.R. 1892, the Family Sponsor Immigration Act of 2002 (Public Law 107-
150)
Summary.--INS regulations provide for automatic revocation
of an immigrant visa petition when the petitioner dies,
``unless the Attorney General in his or her discretion
determines that for humanitarian reasons revocation would be
inappropriate.'' However, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 requires that when a
family member petitions for a relative to receive an immigrant
visa, the visa can only be granted if the petitioner signs a
legally binding affidavit of support promising to provide for
the support of the immigrant. Obviously, if the petitioner has
died, he or she can obviously not sign an affidavit. Thus, even
in cases where the Attorney General feels a humanitarian waiver
of the revocation of the visa petition is warranted, under
prior law, a permanent resident visa could not be granted
because the affidavit requirement was unfulfilled.
The consequences are severe for a beneficiary when his or
her petitioner dies before the beneficiary has adjusted status
or received an immigrant visa. If no other relative can qualify
as a petitioner, then the beneficiary would lose the
opportunity to become a permanent resident. If another relative
can file an immigrant visa petition for the beneficiary, the
beneficiary would still go to the end of the line if the visa
category was numerically limited.
H.R. 1892 provides that in cases where the petitioner has
died and the Attorney General determines for humanitarian
reasons that revocation of the petition would be inappropriate,
a close family member other than the petitioner would be
allowed to sign the necessary affidavit of support. Eligible
family members of beneficiaries would include spouses, parents,
grandparents, mother and fathers-in-law, siblings, adult sons
and daughters, adult son and daughters-in-law and
grandchildren. In order to sign an affidavit of support, the
family member would need to meet the general eligibility
requirements needed to be an immigrant's sponsor. He or she
would need to be a citizen or national of the United States or
an alien who is lawfully admitted to the United States for
permanent residence, be at least 18 years of age, be domiciled
in a State, the District of Columbia, or any territory or
possession of the United States, and demonstrate the means to
maintain an annual income equal to at least 125% of the Federal
poverty line.
Legislative History.--On May 17, 2001, Representative Ken
Calvert introduced H.R. 1892. On June 6, 2001, the Subcommittee
on Immigration and Claims reported H.R. 1892 to the Judiciary
Committee, as amended, by a voice vote. On June 26, 2001, the
Judiciary Committee ordered H.R. 1892 reported, as amended, by
a voice vote. On July 10, 2001, the Judiciary Committee
reported H.R. 1892 (H. Rept. 107-127). On July 23, 2001, the
House passed H.R. 1892 under suspension of the rules by a vote
of 379-0. On December 13, 2001, the Senate Judiciary Committee
ordered H.R. 1892 reported, as amended, and reported H.R. 1892
without a written report. On December 20, 2001, the Senate
passed H.R. 1892, as amended, by unanimous consent. On February
26, 2002, the House passed H.R. 1892, as amended, by the Senate
by a vote of 404-3. On March 13, 2002, the President signed
H.R. 1892 into law (Public Law 107-150).
H.R. 1840, eligibility for in-country refugee processing in Vietnam
(Public Law 107-185)
Summary.--H.R. 1840 amends section 255 of Title II, the
Department of State Authorities and Activities, of the
``Admiral James W. Nance and Meg Donovan Foreign Relations
Authorization Act, Fiscal Years 2000 and 2001,'' contained in
H.R. 3194, the ``Consolidated Appropriations Act for FY2000''
(Public Law 106-113), to extend eligibility for refugee status
of unmarried sons and daughters of certain Vietnamese refugees.
H.R. 1840 extends the time period that the State Department and
the INS have to process eligible adult, unmarried sons and
daughters through fiscalyear 2003. It also removes the date of
April 1, 1995, imposed by the McCain Amendment (Section 584 of the
Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1997, Division A of H.R. 3610, Public Law 104-208),
so that the cases of sons and daughters processed after April 1, 1995,
are adjudicated in the same manner as those cases processed prior to
that date. The Act permits the INS to reconsider cases that were
previously denied for failure of proof of family relationship, rather
than just those cases that were denied based on the issue of co-
habitation with the principal alien. Finally, the Act expands
eligibility to adult, unmarried sons and daughters whose principal
parent has died, but whose surviving parent is maintaining a residence
in the United States or is awaiting departure formalities from Vietnam.
Legislative History.--On May 15, 2001, Representative Tom
Davis introduced H.R. 1840. On June 27, 2001, the Subcommittee
on Immigration and Claims reported H.R. 1840 to the Judiciary
Committee, as amended, by a vote of 6-3. On October 10, 2001,
the Judiciary Committee ordered H.R. 1840 reported, as amended,
by a voice vote. On October 29, 2001, the Judiciary Committee
reported H.R. 1840 (H. Rept. 107-254). On October 30, 2001, the
House passed H.R. 1840 under suspension of the rules by a voice
vote. On May 10, 2002, the Senate passed H.R. 1840 by unanimous
consent. On May 30, 2002, the President signed H.R. 1840 into
law (Public Law 107-185).
H.R. 3231, The Barbara Jordan Immigration Reform and Accountability Act
Summary.--The INS has been a beleaguered bureaucracy for
decades. Congress has increased the INS's budget, hoping that
additional resources were what was needed to solve the agency's
shortcomings. The INS's budget increased from $1.4 billion in
fiscal year 1992 to $5.5 billion in fiscal year 2002.
Notwithstanding this budgetary expansion, the INS's performance
has not improved. Most Members of Congress have grown
increasingly frustrated with the agency's poor performance in
both immigration services and enforcement.
The magnitude of the INS's problems is extraordinary--it
had a backlog of 4.9 million applications and petitions at the
end of fiscal year 2001, forcing aliens trying to play by the
rules to wait in limbo for years. The Census Bureau estimates
that at least eight million undocumented aliens reside in the
U.S. Over 300,000 criminal and deportable aliens ordered
removed by immigration judges have absconded. Much of the INS's
failure stems from the conflict between its enforcement and
service missions. The INS is unable to adequately perform
either of its missions. Rather, the agency appears to move from
one crisis to the next, with no coherent strategy of how to
accomplish both missions successfully.
The Immigration Act of 1990 established the U.S. Commission
on Immigration Reform (CIR) to review and evaluate our
immigration system. The CIR, chaired by the late Barbara
Jordan, concluded that the INS suffered from mission overload.
The Commission explained that the INS must give equal weight to
more priorities than any one agency can handle. The Commission
stated that ``[i]mmigration law enforcement requires staffing,
training, resources, and a work culture that differs from what
is required for effective adjudication of benefits or labor
standards regulation of U.S. businesses.'' \1\ Such a system is
set up for failure and, with such failure, further loss of
public confidence in the immigration system.
---------------------------------------------------------------------------
\1\ U.S. Commission on Immigration Reform, Becoming an American:
Immigration and Immigrant Policy, 1997 Report to Congress 148.
---------------------------------------------------------------------------
On the issue of structural and management reform, the CIR
found that the current structure for the administration of the
immigration law was problematic. In fact, the CIR found that
``no one agency is likely to have the capacity to accomplish
all of the goals of immigration policy equally well.'' \2\
Also, the CIR stated that the system compounded the problems of
fragmentation, redundancy and delay. To resolve these problems,
the CIR recommended the dismantling of the INS.
---------------------------------------------------------------------------
\2\ Id.
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The INS has reorganized itself numerous times in just the
last two decades. However, if one glances at the current
organizational chart of the INS, it is clear how dysfunctional
the agency's structure is, even after these numerous internal
reorganizations over the years. In response to the CIR's
recommendations, several INS restructuring proposals were
offered by Members of Congress, think tanks, and policy
experts. The Fiscal Year 1998 Commerce, Justice, State
Appropriations Conference Report required the Clinton
Administration to review the recommendations of the CIR on
restructuring, reorganizing and managing the immigration
responsibilities of the INS. The INS rejected the CIR's
recommendations and presented its own restructuring plan in
April 1998. The proposal called for splitting INS's enforcement
components from its service components, but leaving both within
the INS. The proposal would have eliminated the current INS
structure of over 30 district and 3 regional offices and
created new Service and Enforcement areas. The plan was to have
approximately 6 to 12 Immigrant Service Areas and 6 to 12
Enforcement Areas nation-wide, each with a separate chain of
command reporting to an Executive Associate Commissioner at INS
Headquarters. The Commissioner would maintain control over both
branches. However, the INS under Commissioner Meissner never
strongly pursued its own restructuring plan.
A handful of INS restructuring bills were introduced and
considered during the 105th and 106th Congresses. The plans
ranged from duplicating the CIR's recommendation to legislating
the Meissner restructuring plan, from creating totally separate
enforcement and service agencies, to putting both agencies
under the control of an Associate Attorney General. However, no
bill moved beyond the Subcommittee level.
H.R. 3231 would have dismantled the INS and restructured
the agency into a better, more manageable structure (for a
discussion of the enacted version of INS restructuring
legislation, see the discussion of H.R. 5710). H.R. 3231 was
intended to break the INS into smaller, more manageable pieces
that concentrated on very different missions--administering
immigration benefits and enforcing immigration laws. By
separating immigration services from enforcement, managers
would no longer have been pulled in two directions and both
bureaus would have made significant improvements in fulfilling
their respective statutory missions. The Bureau of Citizenship
and Immigration Services (BCIS), led by an expert in government
benefits, could have concentrated on improving immigration
services and reducing adjudication backlogs for legal
immigrants. Likewise,the Bureau of Immigration Enforcement
(BIE), led by a law enforcement professional, would have been an agency
with a true enforcement mission: denying admission to aliens who should
be kept out of the U.S., and apprehending and removing aliens along the
border and in the interior who were deportable. Each bureau would have
had a distinct mission, would have been able to craft its own policies,
and would have had its own budget and its own dedicated employees who
could not have been shifted to the other agency. No longer would
service have been sacrificed for the sake of enforcement, or
enforcement for the sake of service, as has happened so often in the
past. Both functions are equally important and were treated as such in
this legislation.
H.R. 3231's creation of an Associate Attorney General in
the Department of Justice who would have handled only
immigration affairs would have raised these issues to the level
and attention that they deserve in the Department of Justice.
This would also have created more accountability for the
actions taken by the bureaus than currently exists in the INS.
The Associate Attorney General would have been responsible for
overseeing the work of, and supervising, the directors of the
BCIS and the BIE, coordinating the administration of national
immigration policy and the operations of the two bureaus and
reconciling conflicting policies of the bureaus, and allocating
and coordinating resources in the shared support functions for
the two bureaus through the Office of Shared Services. The day-
to-day immigration operations would have been run and managed
independently within each immigration bureau.
The following narrative will more fully describe the
provisions of H.R. 3231--
The Associate Attorney General would have had to have had
at least five years of experience in managing a large and
complex organization. There would have been established a
position of Policy Advisor for the Associate Attorney General
for Immigration Affairs to advise the Associate Attorney
General on all immigration and naturalization policy matters.
While policies specific to immigration services and enforcement
would have generally been made in each respective bureau by the
bureau's Chief of Policy and Strategy, the Policy Advisor in
the Associate Attorney General's office would have coordinated
and reconciled any inconsistent policies that arose between the
two bureaus.
The bill would have established a position of General
Counsel for the Associate Attorney General for Immigration
Affairs to act as the principal legal advisor to the Associate
Attorney General. While the directors of the bureaus may have
had legal advisors, such legal advisors would have remained
accountable for implementing and complying with the specialized
legal advice, opinions, determinations, and regulations given
by the General Counsel regarding legal matters that affected
the Office of the Associate Attorney General or the bureaus.
H.R. 3231 would have established the position of Chief
Financial Officer for the Associate Attorney General for
Immigration Affairs, who would have been responsible for
managing the finances of the Office of Associate Attorney
General for Immigration Affairs and the two bureaus, collecting
payments, fines, and debts for the two bureaus, and
coordinating budget and financial management issues with the
bureaus. While the budgets for immigration services and
enforcement would have been formulated and executed in each
respective bureau by the bureau's chief budget officer, the CFO
in the Associate Attorney General's office would have
coordinated budget and financial issues that affected both
bureaus.
The bill would have established a position of Director of
the Office of Shared Services for the Associate Attorney
General for Immigration Affairs to be responsible for the
allocation and coordination of resources involved in shared
support functions for the two bureaus, including facilities
management, information resources management, such as computer
databases and information technology, records and file
management and forms management.
The bill would have established an Office of the Ombudsman
in the Office of the Associate Attorney General for Immigration
Affairs who would have reported directly to the Associate
Attorney General and must have had a background in customer
service and immigration law. The functions of the Ombudsman
would have been: (1) assisting individuals and employers in
resolving problems with the BCIS; (2) identifying areas in
which individuals and employers have problems in dealing with
the BCIS; (3) proposing changes in the administrative practices
of the BCIS to mitigate identified problems; and (4)
identifying potential legislative changes appropriate to
mitigate such problems.
H.R. 3231 would have established the Office of Professional
Responsibility and Quality Review in the Office of Associate
Attorney General for Immigration Affairs. The Director of the
Office of Professional Responsibility and Quality Review would
have conducted investigations of non-criminal allegations of
misconduct, corruption, and fraud involving any employee of the
Office of the Associate Attorney General for Immigration
Affairs or the two bureaus that were not subject to
investigation by the Justice Department's Office of the
Inspector General; inspected the operations of the Associate
Attorney General's office and the two bureaus; provided
assessments of the quality of the operations of the office and
bureaus as a whole and each of their components; and provided
an analysis of the management of the Associate Attorney
General's office and the two bureaus.
The bill would have established an Office of Children's
Affairs within the Office of the Associate Attorney General for
Immigration Affairs. The Office of Children's Affairs would
have been headed by a Director, who would have reported to the
Associate Attorney General for Immigration Affairs. The bill
would have transferred the functions with respect to the care
and placement of unaccompanied alien children that had been
exercised by the INS Commissioner, to the Director of the new
Office of Children's Affairs. The new Office would have been
responsible for coordinating and implementing the law and
policy for unaccompanied alien children who came into the
custody of the Department of Justice; making placement
determinations for all unaccompanied alien children apprehended
by the Attorney General or who otherwise came into the custody
of the Department of Justice; identifying and overseeing the
infrastructure and personnel of facilities that housed
unaccompanied alien children; annually publishing a state-by-
state list of professionals or other entities qualified to
provide guardian and attorney services; maintaining statistics
on unaccompanied alien children; and reuniting unaccompanied
alien children with a parent abroad, where appropriate. H.R.
3231 would not have altered or affected substantive immigration
law with regard to unaccompanied alien children in the United
States.
H.R. 3231 would have transferred all functions, personnel,
infrastructure, and funding of the Office of Immigration
Litigation from the AssistantAttorney General, Civil Division,
to the Associate Attorney General for Immigration Affairs. The
Associate Attorney General could have, in his discretion, charged his
General Counsel with such functions, or transferred the functions
elsewhere within the Office of the Associate Attorney General for
Immigration Affairs.
Regardless of any other provision of law, H.R. 3231 would
have permitted the Associate Attorney General for Immigration
Affairs to impose disciplinary action, including termination of
employment, under the same policies and procedures applicable
to FBI employees, upon any employee of the Office of the
Associate Attorney General for Immigration Affairs or the
bureaus who willfully deceived the Congress or agency
leadership on any matter.
H.R. 3231 would have established the Bureau of Citizenship
and Immigration Service in the Justice Department. The bureau
would have been headed by a Director, who would report directly
to the Associate Attorney General for Immigration Affairs and
must have had at least 10 years professional experience in
adjudicating government benefits or services, at least five of
which must have been years of service in a managerial capacity
or in a position affording comparable management experience.
The bureau director would have established citizenship and
immigration services policies for the bureau, overseen the
administration of such policies and advised the Associate
Attorney General on any policy or operation of the BCIS that
might have affected the BIE, including potentially conflicting
policies or operations, met regularly with the Ombudsman to
correct serious service problems identified by the Ombudsman,
and established procedures for a formal response to any
recommendations submitted in the Ombudsman's annual report to
Congress. The bureau director would also have designated an
official to administer student visa programs and the foreign
student tracking system. The Director would have provided any
information collected by the tracking system to the Director of
the BIE necessary to enforce immigration laws.
The bill would have transferred from the INS Commissioner
to the Director of the BCIS the following functions, and all
personnel, infrastructure, and funding given to the
Commissioner in support of such functions prior to the
abolishment of the INS: (1) adjudications of nonimmigrant and
immigrant visa petitions; (2) naturalization petition
adjudications; (3) asylum and refugee application
adjudications; (4) service center adjudications; and (5) all
other immigration benefit adjudications under the Immigration
and Nationality Act.
The bill would have established an Office of Citizenship in
the BCIS, headed by the Chief. The Chief would have promoted
instruction and training on citizenship responsibilities for
aliens interested in becoming naturalized citizens of the
United States, including the development of educational
materials.
H.R. 3231 would have created sectors of the BCIS, headed by
sector directors and located in appropriate geographic
locations. Sectors would have been responsible for directing
all aspects of the BCIS' operations within their assigned
geographic areas of activity. Sector directors would have
provided general guidance and supervision to the field offices
of the BCIS within their sectors.
The bill also would have established field offices in the
BCIS, headed by field directors, who may have been assisted by
deputy field directors. Field offices would have been
responsible for assisting the Director of the BCIS in carrying
out the Director's functions. Field directors would have been
subject to the supervision and direction of their respective
sector director, while field directors outside of the United
States would have been subject to the supervision and direction
of the bureau director. All field directors would have been
accountable to, and received their authority from, the Director
of the BCIS to ensure consistent application and implementation
of citizenship and immigration services policies and practices
nationwide.
The bill would have established service centers, headed by
directors and responsible for assisting the bureau director in
carrying out the director's functions that could have been
effectively carried out at remote locations. Service center
directors would have been subject to the general supervision
and direction of their respective sector director, except that
all service center directors would have been accountable to,
and received their authority from, the bureau director, to
ensure consistent application and implementation of citizenship
and immigration services policies and practices nationwide.
Regardless of any other law, the Director of the BCIS would
have been authorized to transfer or remove any sector director,
field director, or service center director, in the bureau
director's discretion.
H.R. 3231 would have established the BIE in the Justice
Department, headed by a director who would have reported
directly to the Associate Attorney General for Immigration
Affairs and must have had a minimum of at least 10 years
professional experience in law enforcement, at least five of
which must have been years of service in a managerial capacity.
The bureau director would have established immigration
enforcement policies for the bureau; overseen the
administration of such policies; and advised the Associate
Attorney General on any policy or operation of the BIE that
might have affected the BCIS, including potentially conflicting
policies or operations.
The bill would have transferred from the INS Commissioner
to the Director of the BIE the following functions, and all
personnel, infrastructure, and funding given to the
Commissioner in support of such functions prior to the
abolishment of the INS: (1) the Border Patrol program; (2) the
detention and removal program; (3) the intelligence program;
(4) the investigations program; and (5) the inspections
program.
The bill would have established sectors of the BIE, headed
by sector directors and located in appropriate geographic
locations. Sectors would have been responsible for directing
all aspects of the BIE's operations within their assigned
geographic areas of activity. Sector directors would have
provided general guidance and supervision to the field offices
of the BIE within their sectors.
The bill also would have established field offices in the
BIE, headed by field directors, who may have been assisted by
deputy field directors. A BIE field office would have been
required to be situated in at least every city where there
would be situated a BCIS field office so that the two bureaus
would have communicated with each other, could share files of
aliens who might have faced action from both bureaus, and so
that the BCIS could easily have brought any suspected
application fraud to the BIE for investigation or other
necessary immigration enforcement action. Field offices would
have been responsible for assisting the Director of the BIE in
carrying out the Director's functions. Field directors would
have been subject to the supervision and direction of
theirrespective sector director, while field directors outside of the
United States would have been subject to the supervision and direction
of the bureau director.
The bill would have permitted the BIE to establish Border
Patrol Sectors, headed by chief patrol agents, who may have
been assisted by deputy chief patrol agents. Border Patrol
sectors would have been responsible for the enforcement of the
Immigration and Nationality Act within their assigned
geographic areas of activity, unless a power and authority was
required to be exercised by a higher authority or had been
exclusively delegated to another immigration official or class
of immigration officer.
Regardless of any other law, the Director of the BIE would
have been authorized to transfer or remove any sector director,
field director, or chief patrol officer, in the bureau
director's discretion. H.R. 3231 would have established an
Office of Policy and Strategy in each bureau, headed by a
Chief. Each Chief would have consulted with bureau personnel in
the field and (1) established national immigration enforcement
or services policies and priorities; (2) performed policy
research and analysis on immigration enforcement or services
issues; and (3) coordinated immigration enforcement or services
policy issues with the Chief of Policy and Strategy in the
other bureau and the Associate Attorney General for Immigration
Affairs through the Policy Advisor for the Associate Attorney
General's Office, as appropriate.
The bill would have permitted the position of a Legal
Advisor for each bureau to provide legal advice for the
bureau's director and the bureau's employees. The bill would
have established the position of a Chief Budget Officer for
each bureau. The CBOs would have formulated and executed the
budget of each bureau according to the needs of the bureau. The
CBO would have reported to the bureau director and provided
information to, and coordinated resolution of relevant issues
with, the CFO for the Associate Attorney General for
Immigration Affairs.
H.R. 3231 would have established the Office of
Congressional, Intergovernmental, and Public Affairs in each
bureau headed by a Chief. The Chiefs would have provided
enforcement or citizenship and immigration services information
to the Congress, including information on specific constituent
cases relating to their respective mission, served as liaisons
with other Federal agencies on enforcement or citizenship and
immigration services issues, and responded to inquiries from
the media and general public on enforcement or citizenship and
immigration services issues.
The bill would have established within the Justice
Department's Bureau of Justice Statistics an Office of
Immigration Statistics, headed by a director who would have
been appointed by the Attorney General and reported to the
Director of Justice Statistics. The director would have been
responsible for maintaining all immigration statistical
information of the Office of the Associate Attorney General for
Immigration Affairs, the BCIS, the BIE, and EOIR.
The director would also have been responsible for
establishing standards of reliability and validity for
immigration statistics collected by the Office of the Associate
Attorney General, the BCIS, the BIE, and EOIR. While this new
Office of Immigration Statistics would have maintained all
immigration statistics, the Office of the Associate Attorney
General, the BCIS, BIE and EOIR, each would have given the
Office of Immigration Statistics statistical information from
the operational data systems controlled by each respective
component.
H.R. 3231 would have required the Associate Attorney
General for Immigration Affairs to ensure that the databases of
the Office of the Associate Attorney General and those of the
bureaus were integrated with each other and with the databases
of EOIR to permit the electronic docketing of each case by date
of service upon an alien of the charging document, and the
tracking of the status of any alien throughout the alien's
contact(s) with the United States immigration authorities,
regardless of whether the entity with jurisdiction of the alien
was the BCIS, the BIE, or EOIR.
The bill would have authorized such appropriated sums as
were necessary to (1) abolish the INS; (2) establish the Office
of the Associate Attorney General for Immigration Affairs, the
BCIS, the BIE, and their components, and the transfers of
functions required under H.R. 3231; and (3) carry out any other
duty related to the reorganization of the immigration and
naturalization functions that is necessary by H.R. 3231. The
amounts appropriated would have had to remain available until
expended. The Associate Attorney General for Immigration
Affairs would have been designated as the principal person in
the Department of Justice to appear before the House and Senate
Appropriations Committees regarding appropriation requests,
unless the Attorney General otherwise designated.
The bill would also have established a separate account in
the general fund of the United States Treasury known as the
``Immigration Reorganization Transition Account.'' All
appropriated amounts mentioned above, in addition to amounts
otherwise generated or reprogrammed, would have been deposited
into this transition account.
H.R. 3231 would have established separate accounts in the
U.S. Treasury for appropriated funds and other deposits
available for the BCIS and the BIE. It would also have required
the Director of the Office of Management and Budget to separate
the budget requests for the two bureaus to ensure that the two
bureaus are funded to the extent necessary to fully carry out
their respective functions. Fees imposed for a specific
service, application, or benefit would have to have been
deposited into the appropriate account for the bureau with
jurisdiction over the function to which the fee related. No fee
could have been transferred between the BCIS and the BIE.
The bill would also have ended the policy of using a
portion of fees paid by visa applicants to cover the costs of
adjudication of asylum applications. In addition, H.R. 3231
would have authorized such sums as were necessary to process
refugee, asylum, and adjustment of status for refugees
applications.
H.R. 3231 would have required the Attorney General to
report to the Committees on Appropriations and the Judiciary of
both the House of Representatives and the Senate on the
proposed division and transfer of funds, as well as the
division of personnel among the Office of the Associate
Attorney General for Immigration Affairs and the two bureaus.
The bill would also have required the Attorney General to
submit to the same Committees an implementation plan to carry
out H.R. 3231.
The bill would have required the Attorney General to report
to the Appropriations and Judiciary Committees of both chambers
on plans to improve immigration services and immigration
enforcement. The Attorney General must also have submitted to
Congress a report to ensure a prompt and timely response to
emergent, unforeseen, or impending changes in applications for
immigration benefits, including the amount of immediate funding
that would be needed to respond to such unforeseen changes.
The last report that would have been required of the
Attorney General related to the cost effectiveness of interior
checkpoints. H.R. 3231 would have required the Attorney General
to establish an internet-based system that would permit
individuals and employers with immigration applications filed
with the Attorney General to have access to online information
about the processing status of the application. The bill would
also have required the Attorney General to conduct a
feasibility study on giving applicants the ability to file
applications on-line. The bill would have required the Attorney
General to establish an advisory committee to assist the
Attorney General in establishing the tracking system and
conducting the study.
H.R. 3231 would have authorized the Attorney General, after
submitting a strategic restructuring plan to the appropriate
congressional committees, to make voluntary separation
incentive payments to certain employees to help carry out the
strategic restructuring plan.
Finally, the bill would have permitted the Attorney General
to conduct a five-year demonstration project for the purpose of
determining whether changes in the employee disciplining
policies or procedures would have resulted in improved
personnel management. The demonstration project would had to
have encouraged the use of alternative means of dispute
resolution, whenever appropriate, and the expeditious, fair,
and independent review of any action would have been required.
Non-managers or supervisors would not have been included within
the project. However, an aggrieved employee within a labor
organization could have elected to participate in the
demonstration project's complaint procedure in lieu of any
negotiated grievance procedure.
Legislative History.--On November 6, 2001, Chairman F.
James Sensenbrenner, Jr., introduced H.R. 3231. The Judiciary
Committee held one day of hearings: ``Restructuring the INS-How
the Agency's Dysfunctional Structure Impedes the Performance of
its Dual Mission'' on April 9, 2002. Testimony was received
from The Honorable James W. Ziglar, Commissioner of the INS;
Richard J. Gallo, President of the Federal Law Enforcement
Officers Association; Dr. Susan F. Martin, Director for the
Institute for the Study of International Migration at
Georgetown University; and Mr. Lawrence Gonzalez, Washington
Director of the National Association of Latino Elected and
Appointed Officials Educational Fund. On April 10, 2002, the
Judiciary Committee ordered H.R. 3231 reported, as amended, by
a vote of 32 to 2. On April 19, 2002, the Judiciary Committee
reported H.R. 3231 (H. Rept. 107-413). On April 25, 2002, the
House passed H.R. 3231, as amended, by a vote of 405-9. No
further action was taken on H.R. 3231 in the 107th Congress.
See H.R. 5005 and H.R. 5710.
H.R. 3375, Embassy Employee Compensation Act
Summary.--On August 7, 1998, agents of Osama bin Laden
orchestrated near simultaneous vehicular bombings of the US
Embassies in Nairobi, Kenya, and Dar Es Salaam, Tanzania. These
terrorist incidents cost the lives of over 220 persons and
wounded more than 4,000 others. Twelve American employees of
the federal government and their family members were among
those killed. H.R.3375 would have provided compensation for the
United States citizens who were victims of these bombings on
the same basis as compensation is provided to victims of the
terrorist-related aircraft crashes on September 11, 2001.
On September 22, 2001, the September 11th Victim
Compensation Fund of 2001 was established as part of Public Law
107-42. That fund created a compensation program, administered
by the Attorney General through a Special Master for any
individual who was injured or killed as a result of the
terrorist-related aircraft crashes of September 11, 2001. The
program makes payments for physical harm, economic losses and
noneconomic losses, such as physical and emotional pain or loss
of enjoyment of life. In the case of a deceased individual,
relatives of that individual may be compensated. Punitive
damages may not be awarded. Additionally, any award under the
Fund will be reduced by any other amount of compensation the
claimant has received or is entitled to receive as a result of
their injury or death.
H.R. 3375 would have directed the Attorney General to
provide compensation for American citizen victims of the United
States Embassy bombings through the Special Master appointed to
administer the September 11th Victim Compensation Fund.
Legislative History.--On November 29, 2001, Representative
Roy Blunt introduced H.R. 3375. On April 24, 2002, the
Judiciary Committee ordered H.R. 3375 reported by a voice vote.
On May 20, 2002, the Judiciary Committee reported H.R. 3375 (H.
Rept. 107-477). On May 21, 2002, the House passed H.R. 3375
under suspension of the rules by a vote of 391-18. No further
action was taken on H.R. 3375 in the 107th Congress.
H.R. 4558, the Irish Peace Process Cultural and Training Program
extension (Public Law 107-234)
Summary.--H.R. 4558 amends the Irish Peace Process Cultural
and Training Program Act (Public Law 105-319) to extend the
program one year, until 2006. The program allows adults between
the ages of 18 and 35 years old who live in disadvantaged areas
in Northern Ireland and designated border counties of Ireland
suffering from sectarian violence and high unemployment to
enter the United States to develop job skills and conflict
resolution abilities in a diverse, cooperative, peaceful, and
prosperous environment, so that they can return to their homes
better able to contribute toward economic regeneration and the
Irish peace process.
Legislative History.--On April 23, 2002, Representative
James Walsh introduced H.R. 4558. On May 2, 2002, the
Subcommittee on Immigration and Claims reported H.R. 4558 to
the Judiciary Committee by a voice vote. On July 17, 2002, the
Judiciary Committee ordered H.R. 4558 reported by a vote of 31-
0. On July 22, 2002, the Judiciary Committee reported H.R. 4558
(H. Rept. 107-596, Part I). On July 22, 2002, the House passed
H.R. 4558 under suspension of the rules by a voice vote.On
September 18, 2002, the Senate passed H.R. 4558 by unanimous consent.
On October 4, 2002, the President signed H.R. 4558 into law (Public Law
107-234).
H.R. 4858, improving access to physicians in medically underserved
areas
Summary.--For description of language, see section 11018 of
H.R. 2215, the 21st Century Department of Justice
Appropriations Authorization Act (Public Law 107-273).
Legislative History.--On June 4, 2002, Representative Jerry
Moran introduced H.R. 4858. On June 19, 2002, the Judiciary
Committee ordered H.R. 4858 reported by a voice vote. On June
24, 2002, the Judiciary Committee reported H.R. 4858 (H. Rept.
107-528). On June 25, 2002, the House passed H.R. 4858 under
suspension of the rules by a recorded vote of 407-7. No further
action was taken on H.R. 4858 in the 107th Congress. However,
the language of the bill was included as section 11018 of the
conference report for H.R. 2215, the ``21st Century Department
of Justice Appropriations Authorization Act'' (Public Law 107-
273).
H.R. 4967, the Border Commuter Student Act (Public Law 107-274)
Summary.--H.R. 4967 expands authorization for ``F'' student
visa status to include aliens who are nationals of Canada or
Mexico, who maintain actual residence and place of abode in
their country of nationality, who are pursuing a full or part-
time course of study in academic or language studies, and who
commute to the U.S. institution or place of study from Canada
or Mexico. The bill also expands authorization for ``M''
student visa status to include aliens who are nationals of
Canada or Mexico, who maintain actual residence and place of
abode in their country of nationality, who are pursuing a full
or part-time course of study in vocational or non-academic
studies, and who commute to the U.S. institution or place of
study from Canada or Mexico.
Legislative History.--On June 19, 2002, Representative Jim
Kolbe introduced H.R. 4967. On September 25, 2002, the
Subcommittee on Immigration, Border Security, and Claims
reported H.R. 4967 to the Judiciary Committee by a voice vote.
On October 9, 2002, the Judiciary Committee ordered H.R. 4967
reported by a voice vote. On October 15, 2002, the Judiciary
Committee reported H.R. 4967 (H. Rept. 107-753). On October 15,
2002, the House passed H.R. 4967 under suspension of the rules
by a voice vote. On October 16, 2002, the Senate passed H.R.
4967 by unanimous consent. On November 2, 2002, the President
signed H.R. 4967 into law (Public Law 107-274).
H. Res. 365, providing for the concurrence by the House with amendments
in the amendment of the Senate to H.R. 1885
Summary.--H. Res. 365 contained the language of H.R. 3525,
the ``Enhanced Border Security and Visa Entry Reform Act of
2002'' (later to become Public Law 107-173). It also contained
a modified version of the language of H.R. 1885, the ``Section
245(i) Extension Act of 2001.'' To utilize section 245(i),
illegal aliens would have had to have immigrant visa petitions
filed on their behalf within 120 days after the date that the
Attorney General issues appropriate implementing regulations,
but not later than November 30, 2002. Eligible aliens would
have had to have entered into the family relationships
qualifying them for permanent residence by August 14, 2001. In
the case of employers seeking immigrant visas for aliens, the
employers' applications for labor certification would have had
to have been filed by August 14, 2001.
Legislative History.--On March 12, 2002, Chairman F. James
Sensenbrenner introduced H. Res. 365. On March 12, 2002, the
House passed H. Res. 365 under suspension of the rules by a
vote of 275-137. No further action was taken on H. Res. 365 in
the 107th Congress.
S. 1339, the Persian Gulf War POW/MIA Accountability Act of 2002
(Public Law 107-258)
Summary.--The Bring Them Home Alive Act of 2000 (Public Law
106-484) requires the Attorney General to provide refugee
status to any alien (and his or her parent, spouse, or child)
who is a national of Vietnam, Cambodia, Laos, China, or any of
the independent states of the former Soviet Union, and who
personally delivers into the custody of the U.S. government a
living American prisoner of war from the Vietnam War. The Act
grants similar status to any alien (and his or her family
members) who is a national of North Korea, China, or the
independent states of the former Soviet Union, and who delivers
a living American prisoner of war from the Korean War.
Information regarding the Act is to be broadcast by the
International Broadcasting Bureau over Voice of America and
other services. S. 1339 amends the Act to encompass the 1990-91
Persian Gulf War and any future American military operations
against Iraq by providing refugee status to an alien (and his
or her parent, spouse, or child) who is a national of Iraq or a
nation of the greater Middle East, who personally delivers into
the custody of the U.S. government a living American prisoner
of war from the Persian Gulf War or subsequent actions against
Iraq. To receive refugee status, the alien cannot be ineligible
for asylum on the basis of the factors set out in section
208(b)(2)(A)(i)-(v) of the Immigration and Nationality Act
(such as being a criminal, a terrorist, or a danger to the
security of the United States).
Legislative History.--On August 2, 2001, Senator Ben
Nighthorse Campbell introduced S. 1339. On June 27, 2002, the
Senate Judiciary Committee ordered reported S. 1339, as
amended, and reported S. 1339 without a written report. On July
29, 2002, the Senate passed S. 1339, as amended, by unanimous
consent. On October 9, 2002, the House Judiciary Committee
ordered S. 1339 reported by a voice vote. On October 15, 2002,
the Judiciary Committee reported S. 1339 (H. Rept. 107-749,
Part I). On October 15, 2002, the House passed S. 1339 under
suspension of the rules by a voice vote. On October 29, 2002,
the President signed S. 1339 (Public Law 107-258).
S. 1424, permanent authority for admission of ``S'' visa non-immigrants
(Public Law 107-45)
Summary.--S. 1424 provides permanent authorization for the
granting of ``S'' nonimmigrant visa status for informants.
Legislative History.--On September 13, 2001, Senator
Kennedy introduced S. 1424 and the bill passed the Senate by
unanimous consent. On September 15, 2001, the House passed S.
1424 by unanimous consent. On October 1, 2001, the President
signed S. 1424 into law (Public Law 107-45).
CLAIMS
S.J. Res. 13, a joint resolution conferring honorary citizenship of the
United States posthumously on Marie Joseph Paul Yves Roche
Gilbert du Motier, the Marquis de Lafayette (Public Law 107-
209)
Summary.--Before the 107th Congress, the United States has
conferred honorary citizenship on only four occasions in the
last two hundred years. Honorary citizenship is an
extraordinary honor not lightly conferred. However, an
exception is merited in the case of Paul Yves Roch Gilbert du
Motier, also known as the Marquis de Lafayette. The Marquis de
Lafayette made extraordinary contributions to, and sacrifices
for, the cause of American independence and his support of the
principles of representative government. The Marquis de
Lafayette put forth his own money and risked his life for the
freedom of Americans, was voted to the rank of Major General by
the Congress, was wounded at the Battle of Brandywine during
the Revolutionary War, secured the help of France to aid the
United States' colonists against Great Britain. Upon his death,
both the House of Representatives and the Senate draped their
chambers in black as a demonstration of respect and gratitude
for his contribution to the independence of the United States.
The Marquis de Lafayette was granted citizenship by the
States of Maryland and Virginia before the Constitution was
adopted. In 1935, the State Department determined that the
citizenship conferred by these states did not make him a United
States citizen.
Legislative History.--On April 24, 2001, Senator John
Warner introduced S.J. Res. 13. On December 13, 2001, the
Senate Judiciary Committee ordered S.J. Res. 13 reported to the
Senate. On December 18, 2001, the Senate passed S.J. Res. 13 by
unanimous consent. On April 17, 2002, the House Subcommittee on
Immigration and Claims reported S.J. Res. 13 to the Judiciary
Committee by a voice vote. On July 17, 2002, the House
Judiciary Committee ordered S.J. Res. 13 reported by a voice
vote. On July 19, 2002, the Judiciary Committee reported S.J.
Res. 13 (H. Rept. 107-595). On July 22, 2002, the House passed
S.J. Res. 13 under suspension of the rules, as amended, by a
voice vote. On July 24, 2002, the Senate passed S.J. Res. 13 as
amended by the House by unanimous consent. On August 8, 2002,
the President signed S.J. Res. 13 into law (Public Law 107-
209).
ACTION ON OTHER PUBLIC LEGISLATION LEGISLATION PASSED BY THE HOUSE
H.R. 2155, the Sober Borders Act
Summary.--H.R. 2155 would have made driving at a land
border port of entry with drugs or alcohol in the body a
federal offense and would have deemed a driver to have given
consent to submit to a drug or alcohol test by an INS officer.
If the individual refused to submit to such a test, the bill
would have required the Attorney General to notify the driver's
state of jurisdiction of the driver's refusal to submit to a
test. If a driver was convicted of driving at a land border
port of entry under the influence of drugs or alcohol, the
Attorney General would also have been required to notify the
driver's state of jurisdiction of such conviction. H.R. 2155
would have authorized INS employees inspecting drivers at land
border ports of entry to require impaired drivers to submit to
a drug or alcohol test if inspectors had reasonable grounds to
believe a driver was impaired or if the officer arrested a
driver for operating a vehicle while impaired. Finally, the
bill would have required the Attorney General to issue
regulations authorizing INS officers to impound vehicles
operated at a land border port of entry if the drivers refused
to submit to a drug or alcohol test and if the impoundment
would not be inconsistent with the laws of the State in which
the port of entry is located.
Legislative History.--On June 13, 2001, Representative Jeff
Flake introduced H.R. 2155. On September 25, 2002, the
Subcommittee on Immigration, Border Security, and Claims
reported H.R. 2155 to the Judiciary Committee by a voice vote.
On October 9, 2002, the Judiciary Committee ordered H.R. 2155
reported, as amended, by a voice vote. On October 15, 2002, the
Judiciary Committee reported H.R. 2155 (H. Rept. 107-754). On
October 16, 2002, the House passed H.R. 2155 under suspension
of the rules by a recorded vote of 296-94. No further action
was taken on H.R. 2155 in the 107th Congress.
H.R. 2603, the ``United States-Jordan Free Trade Area Implementation
Act''
Summary.--While H.R. 2603 authorizes the President to
proclaim such modifications or continuation of duty,
continuation of duty-free or excise treatment, or additional
duties as are deemed necessary or appropriate to carry out the
Agreement between the United States of America and the
Hashemite Kingdom of Jordan on the Establishment of the a Free
Trade Area (Agreement), entered into on October 24, 2000,
provisions dealing with competition policy and a Jordanian
temporary immigration entry status were sequentially referred
to the Committee on the Judiciary.
Legislative History.--The Committee on the Judiciary
discharged H.R. 2603 and did not conduct hearings or mark-ups
on this legislation. H.R. 2603 was introduced by Chairman
Thomas on July 24, 2001 and referred to the Committee on Ways
and Means and the Committee on the Judiciary. On July 31, 2001,
H.R. 2603 was reported by the Committee on Ways and Means and
discharged by the Committee on the Judiciary. Also on July 31,
2001, H.R. 2603 passed the House by voice vote, was received by
the Senate and referred to the Senate Committee on Finance. On
September 24, 2001, H.R. 2603 was discharged by the Senate
Committee on Finance and passed the Senate by a voice vote. On
September 28, 2001, H.R. 2603 was signed by President Bush and
became Public Law No. 107-43.
LEGISLATION PASSED BY THE SUBCOMMITTEE
H.R. 2623, the Posthumous Citizenship Restoration Act
Summary.--In 1990, Congress passed the Posthumous
Citizenship for Active Duty Service Act (Public Law 101-249)
permitting the next-of-kin or another representative to file a
posthumous citizenship claim on behalf of a United States non-
citizen who died as a result of military service to our nation.
The request for the posthumous citizenship must be filed no
later than two years after the date of enactment (March 6,
1990), or two years after the date of the person's death,
whichever date is later. H.R. 2623 would have given families
who have missed the opportunity to file posthumous citizenship
claims on behalf of their deceased relatives an additional two
year opportunity to file for citizenship.
Legislative History.--On July 25, 2001, Representative
Martin Meehan introduced H.R. 2623. On April 17, 2002, the
Subcommittee on Immigration and Claims reported H.R. 2623 to
the Judiciary Committee by a voice vote. While no further
action on H.R. 2623 was taken in the 107th Congress, identical
text was included in the section X of H.R. 2215, the ``21st
Century Department of Justice Appropriations Authorization
Act,'' signed into law by the President on November 2, 2002
(Public Law 107-273).
H.R. 4043, to bar federal agencies from accepting for any
identification-related purposes any State-issued driver's
license, or other comparable identification document, unless
the State requires licenses or comparable documents issued to
nonimmigrant aliens to expire upon the expiration of the
aliens' nonimmigrant visas
Summary.--H.R. 4043 would have provided that a federal
agency may not accept for any identification-related purpose a
driver's license (or similar identity document) unless the
issuing State has in effect a policy requiring that when
issuing such licenses to aliens on temporary visas, the
licenses have expiration dates that (1) are not later than the
last day of validity of the visas, or (2) are not later than 5
years after the date the licenses were issued (if the visa's
period of validity was subsequently modified or superseded).
The bill would have applied to licenses first issued (or
renewed) to nonimmigrants one year after the date of enactment.
The Attorney General would have made grants to States to assist
them in issuing licenses or other identity documents.
Legislative History.--On March 20, 2002, Representative
Jeff Flake introduced H.R. 4043. On May 2, 2002, the
Subcommittee on Immigration and Claims ordered H.R. 4043
reported to the Judiciary Committee by a voice vote. No further
action was taken on H.R. 4043 in the 107th Congress.
H.R. 4597, to prevent nonimmigrant aliens who are delinquent in child
support payments from gaining entry into the United States
Summary.--Section 212 of the Immigration and Nationality
Act specifies the grounds upon which an alien is inadmissible
to the United States. H.R. 4597 would have added a ground of
inadmissibility for arriving aliens who are not permanent
residents and who are in arrears on child support payments. Any
(non-permanent resident) alien would have been inadmissible if
the alien was more than $2,500 in arrears in child support
obligations that were legally obligated under a judgment,
decree, or order to pay child support. The ground of
inadmissibility would have expired when the obligation was
satisfied or the alien came in compliance with an approved
payment agreement. However, the Attorney General would have
been able to waive the ground of inadmissibility upon a request
of the court or administrative agency having jurisdiction over
the order or if he determined that there were prevailing
humanitarian or public interest concerns.
The bill also would have provided that, if consistent with
State law, immigration officers would have been authorized to
serve on any alien applicant for admission legal process with
respect to any action to enforce or establish a child support
obligation. Finally, the bill would have provided that if the
Secretary of Health and Human Services received a certification
from a State agency that an alien on a temporary visa was in
arrears on child support obligations by more than $2,500, the
Secretary could have provided the Secretary of State or the
Attorney General information regarding the alien's
inadmissibility.
Legislative History.--On April 25, 2002, Representative
Benjamin Cardin introduced H.R. 4597. On May 2, 2002, the
Subcommittee on Immigration and Claims ordered H.R. 4597
reported to the Judiciary Committee by a voice vote. No further
action was taken on H.R. 4597 in the 107th Congress.
H.R. 2276, to amend the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 to extend the deadline for aliens to
present a border crossing card that contains a biometric
identifier matching the appropriate biometric characteristic of
the alien
Summary.--Border crossing cards have long allowed eligible
Mexicans to travel up to 25 miles inside the border for up to
72 hours. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 mandated the issuance of new border
crossing cards containing a machine readable biometric
identifier. Under that Act, holders of old border crossing
cards could still use them to cross the border until September
30, 1999. Congress later agreed to extend the deadline to
September 30, 2001. H.R. 2276 would have granted an additional
one-year extension to September 30, 2002.
Legislative History.--On June 21, 2001, Subcommittee on
Immigration and Claims Subcommittee Chairman George Gekas
introduced H.R. 2276. On June 27, 2001, the Subcommittee on
Immigration and Claims ordered H.R. 2276 reported to the
Judiciary Committee by a voice vote. No further action was
taken on H.R. 2276 in the 107th Congress. However, H.R. 3325
(Public Law 107-173) extended the deadline as proposed in H.R.
2276.
H.R. 1198, the ``Justice for United States Prisoners of War Act of
2001''
Summary.--On September 25, 2002, the Subcommittee on
Immigration, Border Security, and Claims held a hearing on H.R.
1198, which would have required that any Federal court in which
an action is brought against a Japanese entity by a member of
the U.S. armed forces seeking compensation for mistreatment or
failure to pay wages in connection with labor performed in
Japan for that entity as a prisoner of war during World War II
apply the statute of limitations of the State in which the
action is pending to that action. The bill would have required
courts not to interpret a provision contained in the Treaty of
Peace With Japan as waiving any such claims by the United
States. The bill also stated that it was U.S. policy to ensure
that any war claims settlement terms between Japan and any
other country that are more beneficial than terms extended to
the United States under the Treaty of Peace With Japan are
extended to the United States with respect to any claim covered
by this legislation. Finally, the bill would have authorized
the Secretary of Veterans Affairs to secure information
relating to chemical or biological tests conducted by Japan on
members of the U.S. armed forces held as prisoners of war
during World War II and required all heads of departments and
agencies with that information to release it to the Secretary.
Once information was received by the Secretary regarding any
particular individual, the bill would have directed that the
information be made available to that individual to the extent
otherwise provided by law. Testimony was received from the
Honorable Dana Rohrabacher; William H. Taft, IV, Legal Advisor,
Department of State;Rob McCallum, Jr., Assistant Attorney
General, Civil Division, Department of Justice; and Lester I. Tenney,
PhD, Former Prisoner of War.
H.R. 5017, a bill to amend the Temporary Emergency Wildfire Suppression
Act to facilitate the ability of the Secretary of the Interior
and the Secretary of Agriculture to enter into reciprocal
agreements with foreign countries for the sharing of personnel
to fight wildfires
Summary.--H.R. 5017 would have amended the Temporary
Emergency Wildfire Suppression Act by authorizing the Secretary
of the Interior and the Secretary of Agriculture to enter into
reciprocal agreements with foreign nations to provide federal
employee status, for purposes of tort liability, to foreign
personnel who are assisting in the presuppression or
suppression of wildfires. Currently, the Secretaries are
prohibited from entering into any such reciprocal agreement
where the foreign nation does not assume any and all liability
for the acts or omissions of American firefighters. Therefore,
the only available civil remedies permitted in these agreements
are limited to the laws of the host country. Finally, this
section excludes firefighters, the sending country, or any
associated organization from any action pertaining to, or
arising out of, assistance pursuant to a reciprocal agreement
authorized by this section.
Legislative History.--On June 26, 2002, Representative
Scott McInnis introduced H.R. 5017. On June 28, 2002, the
Subcommittee on Immigration, Border Security, and Claims held a
hearing on H.R. 5017. Testimony was received from Paul Harris,
Esq., Deputy Associate Attorney General, U.S. Department of
Justice and Mr. Tim Hartzell, Director for the Office of
Wildland Fire Policy, U.S. Department of the Interior. On July
9, 2002, the House passed H.R. 5017 under suspension of the
rules by a voice vote. No further action was taken on H.R. 5017
in the 107th Congress.
FEDERAL CHARTERS
Subcommittee policy on new federal charters
On March 14, 2001, the Subcommittee on Immigration and
Claims adopted the following policy concerning the granting of
new federal charters:
The Subcommittee will not consider any legislation to grant
new federal charters because such charters are unnecessary for
the operations of any charitable, non-profit organization and
falsely imply to the public that a chartered organization and
its activities carry a congressional ``seal of approval,'' or
that the Federal Government is in some way responsible for its
operations. The Subcommittee believes that the significant
resources required to properly investigate prospective
chartered organizations and monitor them after their charters
are granted could and should be spent instead on the
Subcommittee's large range of legislative and other substantive
policy matters. This policy is not based on any decision that
the organizations seeking federal charters are not worthwhile,
but rather on the fact that federal charters serve no valid
purpose and therefore ought to be discontinued.
This policy represented a continuation of the
Subcommittee's informal policy, which was put in place at the
start of the 101st Congress and has been continued every
Congress since, against granting new federal charters to
private, non-profit organizations.
A federal charter is an Act of Congress passed for private,
non-profit organizations. The primary reasons that
organizations seek federal charters are to have the honor of
federal recognition and to use this status in fundraising.
These charters grant no new privileges or legal rights to
organizations. At the conclusion of the 104th Congress,
approximately 90 private, non-profit organizations had federal
charters over which the Judiciary Committee has jurisdiction.
About half of these had only a federal charter, and were not
incorporated in any state and thus not subject to any state
regulatory requirements.
Those organizations chartered more recently are required by
their charters to submit annual audit reports to Congress,
which the Subcommittee sent to the General Accounting Office to
determine if the reports comply with the audit requirements
detailed in the charter. The GAO does not conduct an
independent or more detailed audit of chartered organizations.
H.R. 3214, to amend the charter of the AMVETS Organization (Public Law
107-241)
Summary.--In 1998, the delegates of the ``American Veterans
of World War II, Korea, and Vietnam (AMVETS)'' voted to change
the organization's name to ``American Veterans'' to more
accurately reflect its membership. Additionally, delegates
voted to change the structure of the governing body. Finally,
the organization has changed the location of its headquarters
to Lanham, Maryland. In order for these changes to be
recognized by the Department of Veterans Affairs, the AMVETS
federal charter had to be amended. H.R. 3214 appropriately
amends the federal charter.
Legislative History.--On November 1, 2001, Representative
Michael Bilirakis introduced H.R. 3214. On April 17, 2002, the
Subcommittee on Immigration and Claims reported H.R. 3214 to
the Judiciary Committee by a voice vote. On July 10, 2002, the
Judiciary Committee ordered H.R. 3214 reported by a voice vote.
On July 12, 2002, the Judiciary Committee reported H.R. 3214
(H. Rept. 107-569). On July 15, 2002, the House passed H.R.
3214 under suspension of the rules a by voice vote. On
September 5, 2002, the Senate Judiciary Committee ordered H.R.
3214 reported to the Senate and reported the bill without a
written report. On October 2, 2002, the Senate passed H.R. 3214
by unanimous consent. On October 16, 2002, the President signed
H.R. 3214 into law (Public Law 107-241).
H.R. 3838, to amend the charter of the Veterans of Foreign Wars of the
United States organization to make members of the armed forces
who receive special pay for duty subject to hostile fire or
imminent danger eligible for membership in the organization,
and for other purposes
Summary.--H.R. 3838 amends the federal charter of the
Veterans of Foreign Wars. First, the Act allows any member of
the armed forces who has received hostile fire or imminent
danger pay to be a member of the VFW. Under the prior charter,
members of the armed forces must have served honorably and
received a campaign medal for service or have served honorably
for a specific periodon the Korean peninsula. Many members of
the armed forces who served under dangerous conditions in places such
as Somalia or Kosovo were not eligible for VFW membership. Second, the
Act includes the word ``charitable'' as one of the purposes of the VFW.
Volunteerism has always been a large part of the mission of the VFW.
However, in some states, VFW was being denied qualification as a
charitable organization under section 501(c) of the Internal Revenue
Code simply because the word ``charitable'' was not included in its
charter. These amendments to the charter reflect the language of
resolutions approved by the voting delegates of the VFW at their
National Convention.
Legislative History.--On March 4, 2002, Representative
Christopher Smith introduced H.R. 3838. On April 17, 2002, the
Subcommittee on Immigration and Claims reported H.R. 3838 to
the Judiciary Committee by a voice vote. On July 10, 2002, the
Judiciary Committee ordered H.R. 3838 reported by a voice vote.
On July 12, 2002, the Judiciary Committee reported H.R. 3838
(H. Rept. 107-570). On July 15, 2002, the House passed H.R.
3838 under suspension of the rules by a voice vote. On
September 5, 2002, the Senate Judiciary Committee ordered H.R.
3838 reported to the Senate and reported the bill without a
written report. On October 2, 2002, the Senate passed H.R. 3838
by unanimous consent. On October 16, 2002, the President signed
H.R. 3838 into law (Public Law 107-242).
H.R. 3988, to amend title 36, United States Code, to clarify the
requirements for eligibility in the American Legion (Public Law
107-309)
Summary.--H.R. 3988 makes a technical amendment to the
membership qualifications language of the federal charter for
the American Legion. Under the prior charter, veterans who left
service were eligible to become members of the American Legion
if they had served since ``August 2, 1990 through the date of
cessation of hostilities, as decided by the United States
Government'' and were ``honorably discharged or separated from
that service or continues to serve honorably after that
period.'' The United States Government has never issued a
cessation of hostilities decision. For those who are no longer
serving, they have discharge papers stating they served
honorably during that period. However, servicemen who served
since August 2, 1990, and are still on active duty have no
discharge papers for the period, and are not serving after the
cessation of hostilities, but during that period. The amendment
would change the standard for qualification to read ``continues
to serve during or after that period'' to make clear that
membership is open to the thousands of active duty personnel
who served during operations Desert Shield, Desert Storm, and
all the operations that followed in Iraq, Bosnia, Kosovo, and
Afghanistan.
Legislative History.--On March 18, 2002, Subcommittee on
Immigration and Claims Chairman George Gekas introduced H.R.
3988. On April 17, 2002, the Subcommittee on Immigration and
Claims reported H.R. 3988 to the Judiciary Committee by a voice
vote. On July 10, 2002, the Judiciary Committee ordered H.R.
3988 reported by a voice vote. On July 12, 2002, the Judiciary
Committee reported H.R. 3988 (H. Rept. 107-571). On July 15,
2002, the House passed H.R. 3988 under suspension of the rules
by a voice vote. On November 14, 2002, the Senate Judiciary
Committee ordered H.R. 3988 reported to the Senate, reported
the bill without a written report and the Senate passed H.R.
3988 by unanimous consent. On December 2, 2002, the President
signed H.R. 3988 into law (Public Law 107-309).
Private Claims and Private Immigration Legislation
During the 107th Congress, the Subcommittee on Immigration
and Claims received referral of 25 private claims bills and 56
private immigration bills. The Subcommittee held no hearings on
these bills. The Subcommittee recommended 6 private claims
bills and 3 private immigration bills to the full Committee.
The Committee ordered 6 private claims bills and 3 private
immigration bills reported favorably to the House. The House
passed 5 private claims bills and 3 private immigration bills
reported by the Committee. Of the 5 private claims bill and 3
private immigration bills, 3 private claims bill and 3 private
immigration bills were passed by the Senate and signed into law
by the President. One bill was still pending in the Senate at
the close of the 107th Congress. One private bill ordered
reported by the full Committee was not approved by the full
House prior to the close of the 107th Congress.
Oversight Activities
List of oversight hearings
Immigration and Naturalization Service and the Executive Office
for Immigration Review, May 15, 2001 (Serial No.
21)
Guestworker Visa Programs, June 19, 2001 (Serial No. 22)
United States Population and Immigration, August 2, 2001
(Serial No. 30)
Using Information Technology to Secure America's Borders: INS
Problems with Planning and Implementation, October
11, 2001 (Serial No. 43)
Immigration and Naturalization Service Performance: An
Examination of INS Management Problems, October 17,
2001 (Serial No. 44)
A Review of Department of Justice Immigration Detention
Policies, December 19, 2001 (Serial No. 55)
The Operations of the Executive Office for Immigration Review,
February 6, 2002 (Serial No. 57)
Implications of Transnational Terrorism and the Argentine
Economic Collapse for the Visa Waiver Program,
February 28, 2002 (Serial No. 61)
The INS's March 2002 Notification of the Approval of Pilot
Training Status for Terrorist Hijackers Mohammed
Atta and Marwan Al-Shehhi, March 19, 2001 (Serial
No. 63)
Immigration and Naturalization Service and Office of Special
Counsel for Immigration Related Unfair Employment
Practices, March 21, 2002 (Serial No. 68)
The INS's Interior Enforcement Strategy, June 19, 2002 (Serial
No. 85)
Risk to Homeland Security from Identity Fraud and Identity
Theft (Held jointly with the Subcommittee on Crime,
Terrorism, and Homeland Security), June 25, 2002
(Serial No. 86)
Role of Immigration in the Proposed Department of Homeland
Security pursuant to H.R. 5005, the Homeland
Security Act of 2002, June 27, 2002 (Serial No. 91)
The INS's Implementation of the Foreign Student Tracking
Program, September 18, 2002 (Serial No. 105)
Preserving the Integrity of Social Security Numbers and
Preventing Their Misuse by Terrorists and Identity
Thieves (Held jointly with the Subcommittee On
Social Security of the Committee on Ways and
Means), September 19, 2002 (Serial No. 102)
The INS's Interactions with Hesham Mohamed Ali Hedayet, October
9, 2002 (Serial No. 110)
United States and Canada Safe Third Country Agreement, October
16, 2002 (Serial No. 111)
Examination of INS management of its dual missions
The Subcommittee on Immigration, Border Security and Claims
engaged in an ongoing examination of INS's mismanagement of its
service and enforcement missions to assist the Committee in its
legislative restructuring of the INS. For an analysis of INS's
troubled management history, see the description of H.R. 3231.
On May 15, 2001, the Subcommittee held an oversight hearing
on ``the Immigration and Naturalization Service and the
Executive Office for Immigration Review.'' Witnesses included
Kevin Rooney, Director of EOIR and then-Acting INS
Commissioner, Peggy Philbin, Acting Director of EOIR, Bishop
Thomas Wenski, the Auxiliary Bishop of Miami who testified on
behalf of the National Conference of Catholic Bishops'
Committee on Migration, and Roy Beck, Executive Director,
Numbers, USA.
On October 17, 2001, the Subcommittee held an oversight
hearing on ``Immigration and Naturalization Service
Performance: An Examination of INS Management Problems''. The
Subcommittee heard from Glenn Fine, Inspector General of the
U.S. Department of Justice, Richard Stana, Associate Director
for Administration of Justice Issues, General Accounting
Office, Elizabeth Espin Stern, Shaw Pittman, LLP, and Larry
Gonzalez, Director, National Association of Latino Elected and
Appointed Officials.
On June 6, 2002, the President released his plan to create
the Department of Homeland Security and asked Congress for
swift consideration. The President's plan transferred the
functions of many agencies into the Department of Homeland
Security, including both the immigration services and
enforcement functions. Despite the submission of the
Administration's bill, immigration questions remained relating
to this new department. The plan did not describe how the INS
would be structured within the department. Also, the authority
over visa issuance in the plan was unusual. The authority was
given to the new department, but consular affairs officers
remained in the State Department under the plan. On June 27,
2002, the Subcommittee held an oversight hearing on ``the Role
of Immigration in the Proposed Department of Homeland
Security'' to explore these issues and to help the Judiciary
Committee draft appropriate legislation for an effective
immigration system within the Department of Homeland Security.
The witnesses were Grant Green, Under Secretary for Management
and Resources, U.S. Department of State, John Ratigan, Baker &
McKenzie, Mark Krikorian, Executive Director, Center for
Immigration Studies, Kathleen Walker, the American Immigration
Lawyers Association, and Kevin Appleby, Policy Director, U.S.
Conference of Bishops Migration and Refugee Services.
Under Secretary Green supported the President's hybrid
proposal for visa issuance. He said it would ensure that the
Secretary of State retains the authority to deny visas on
foreign policy grounds because visa decisions abroad are
important in carrying out foreign policy. In emphasizing the
importance of information sharing, Green stated that the State
Department believed that a new Department of Homeland Security
empowered to provide to consular officers abroad all the
information that the U.S. Government possesses from whatever
source is the most essential element in assuring the denial of
visas to those who would do us harm.
He also noted the skills and training of consular officers,
stating that these qualities peculiar to the Foreign Service
would complement and strengthen those of the new Homeland
Security Department to prevent potential terrorists from
entering the country.
Mr. Ratigan testified that the visa function should be
transferred from the State Department to the Department of
Homeland Security and then incorporated into the INS, or its
successor, to form a single, unified Government entity
responsible for the formulation and implementation of U.S.
immigration policy. He explained that this action would
finally, 50 years after the passage of the Immigration and
Nationality Act, give the U.S. a single policymaking and
implementing body in immigration. Unifying U.S. immigration
policy formulation and implementation under one roof, like the
model established in Australia and Canada, would end the
awkward and inefficient structure of shared authority with the
State Department and the INS. It would also improve internal
communication and coordination, improve case handling for
applicants, make the immigration agency more attractive as a
profession with the added overseas positions, and elevate the
importance of fighting fraud above the State Department's main
priority of facilitating travel and the free movement of
people.
Mr. Ratigan noted the financial interest the State
Department has in keeping visa issuance in its own department.
If the function were transferred to the Homeland Security
Department, the State Department would lose approximately $400
million annually in non-appropriated funds.
Mr. Krikorian testified that the service half of the INS
must transfer to the Department of Homeland Security in
addition to the enforcement half of the agency. He also argued
that the visa function of the State Department should transfer
to the new Homeland Security Department. Krikorian explained
that terrorists have used all avenues of our immigration system
to operate in the U.S. undetected, concluding that granting
green cards or citizenship is a homeland security issue.
Ms. Walker testified that AILA would prefer immigration to
remain in the Justice Department rather than move it to the
Department of Homeland Security. If immigration must move to
the new department, she proposed a fifth prong in the
department structure for immigration only. Walker advocated for
transferring EOIR out of the Justice Department and making it
an independent agency to improve public perception of the
agency. Walker also testified that visa issuance should remain
in the State Department rather than move to the Department of
Homeland Security.
Mr. Appleby stated that the Conference of Catholic Bishops
opposes the transfer of the INS in its entirety to the Homeland
Security Department. Instead, he recommended that specific
enforcement components be transferred to the new department,
while the remainder of the INS, including services and some
non-terrorist related immigration enforcement functions, remain
in the Justice Department. Appleby explained that immigration
services already competing forlimited resources within the INS
would receive even less priority and resources in a new department. He
added that the overwhelming majority of immigrants who enter the U.S.
and for whom the new agency would be responsible are not national
security threats to our country.
Review of the immigration detention policies and procedures of the
Department of Justice
In the 106th and 107th Congresses, the Subcommittee
received information indicating that a large number of aliens
released by the INS abscond rather than appearing for hearings
or removal. In the first session, the Subcommittee undertook a
review of the Justice Department's detention and release
policies, to assess whether those policies contributed to the
large number of alien absconders. That review is ongoing.
According to statistics released by the Executive Office
for Immigration Review, the rate of aliens who failed to appear
for hearings overall fluctuated between 21 and 25 percent from
FY 1996 to FY 1999. All tolled, between FY 1996 and FY 2000,
more than 250,000 aliens failed to appear for hearings after
being released from INS custody.
Certain criminal aliens released from INS custody pose a
danger to the public. In response to requests from the
Subcommittee, the Department of Justice has disclosed that more
than a third of aliens released from INS custody have gone on
to commit criminal offenses, including violent crimes and drug
crimes. The INS released 35,318 criminals between October 1994
and May 1999. Of that number, 11,605 aliens committed further
crimes. Among those crimes were 1,845 violent crimes, including
98 homicides, 142 sexual assaults, 44 kidnapings, and 347
robberies.
In addition, aliens who were released from INS custody have
gone on to commit terrorist acts in the United States. Of
particular note is Ramzi Yousef, a Pakistani citizen and
national who was the mastermind behind the first World Trade
Center bombing in 1993. On September 1, 1992, Yousef traveled
to John F. Kennedy International Airport in New York under an
assumed name and using a falsified passport. Upon his arrival
at JFK, Yousef was arrested by the INS because he did not have
a visa to enter the United States. During inspection, he
claimed to be an Iraqi dissident seeking asylum. Because of a
lack of detention space, the INS paroled him into the United
States. Once released by the INS, he carried out the first
bombing of the World Trade Center in 1993, reportedly fleeing
the United States the night of the attack. Yousef is currently
serving a life sentence in the United States.
Section 236(a) of the Immigration and Nationality Act gives
the Attorney General discretionary power to arrest and detain
an alien pending a decision on whether the alien is to be
removed from the United States. Despite the fact that the Act
gives the Attorney General the authority to release many
aliens, the Attorney General has long been prohibited from
releasing specified aliens. The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 expanded this category of
nonreleasable aliens. Currently, the INS must detain arriving
aliens subject to mandatory detention, aliens with criminal
convictions, aliens removable under the terrorism grounds of
inadmissibility and deportability, and those under final orders
of removal.
Aliens not otherwise subject to mandatory detention are
eligible for release under one of two procedures, depending on
the alien's status. Arriving aliens seeking admission at a port
of entry can only be released on parole. All other aliens not
subject to mandatory detention may be released on bond.
In order to be released on bond, an alien must demonstrate
to the INS's satisfaction that the alien would not pose a
danger to persons or property if released and is likely to
appear for any future proceeding. The IJs have authority to
review INS bond decisions, and an appeal from an IJ bond
decision may be taken by either party to the BIA. The INS may
appeal a BIA release determination to the Attorney General. The
BIA has held that an alien who is eligible for bond should not
generally be detained pending a determination of removability
absent a finding of dangerousness or flight risk.
The requirements for parole are more strict than the
requirements for release on bond. Parole is now allowed only on
a ``case-by-case basis for urgent humanitarian reasons or
significant public benefit.'' The IJs and BIA lack review
jurisdiction over parole denials, but review of such denials
may be sought in federal District Court on habeas.
The Subcommittee reviewed the factors that are considered
in deciding whether an alien would pose a danger if released
and is likely to appear for future proceedings, and why,
despite consideration of those factors, so many aliens who are
released commit criminal offenses, and/or fail to appear for
proceedings or deportation.
The Subcommittee focused, in particular, on the release of
arriving aliens. As part of that investigation, Committee staff
met with INS officials responsible for making detention
decisions and visited two INS detention centers at which
arriving aliens are held in October 2001.
On October 23, 2001, staff toured the Wackenhut Detention
Facility in Jamaica, New York (Jamaica facility). The Jamaica
facility is one of the primary detention centers for aliens
seeking admission at John F. Kennedy International Airport. On
October 24, 2001, staff toured the Elizabeth Detention Center
in Elizabeth, New Jersey, the primary detention center for
aliens seeking admission at Newark International Airport. On
October 24, 2001, staff also met with the INS New York District
Director, Edward J. McElroy, and his staff. In 1997, the New
York District increased detention space for housing
inadmissible aliens when it opened the Jamaica facility.
Reversing a policy of paroling inadmissible aliens for
immigration proceedings, the New York District now detains
almost all aliens who are inadmissible for fraud and document-
related reasons. The District has concluded that this policy
ensures the security of the United States and ensuring
compliance with the immigration laws.
In reviewing the failure of arriving aliens to appear after
being paroled by the INS, staff also examined documents
relating to detention and parole. In testimony submitted to the
Senate on November 13, 2001, Richard Stana of the GAO discussed
the release of arriving aliens subject to expedited removal who
were deemed to have a ``credible fear of persecution or
torture.''
Stana noted that INS policy favors the release of aliens
found to have a credible fear, provided that the alien will
likely appear for future removal proceedings and does not pose
a danger to the community. He stated that there are several
different factors that are considered in determining whether to
release an alien found to have a credible fear, but that those
factors are applied unevenly from office to office.
Aliens found to have a credible fear are placed in removal
proceedings. This is primarily done to allow those aliens to
request asylum from an IJ. Stana concluded, however, that a
``significant number'' of aliens released after being found to
have a credible fear have not subsequently appeared for removal
proceedings. Specifically, of 2,351 aliens found to have a
credible fear between April 1, 1997, and September 30, 1999, in
cases in which an IJ had issued a decision, 1,000 aliens, or 42
percent of the total, failed to appear for their hearings and
were ordered removed in absentia. Furthermore, of the 7,947
aliens determined to have a credible fear of persecution from
the inception of the program on April 1, 1997 through FY 1999,
3,140 (or almost 40 percent) had not filed for asylum as of
February 22, 2000, despite the fact that they were released
primarily to pursue such relief.
As part of its review of the Justice Department's detention
policies, staff also reviewed a recent report from the
Department of Justice Inspector General examining instances in
which the INS released arriving aliens for deferred inspection.
The Inspector General reviewed a sample of 725 inspections to
determine the effectiveness of the deferred inspections
process. ``Deferred inspection'' is a process by which an
Inspector at a port of entry refers an alien seeking admission
to the United States to an onward INS office to complete
inspection in instances in which an immediate decision
regarding admissibility cannot be made. In 79 of the 725 cases
reviewed by the Inspector General (11 percent of the total),
aliens paroled into the country failed to appear for their
inspections. Of the 79 aliens in the sample who failed to
appear, 42 were identified as having criminal records or
immigration violations by Inspectors at the time of deferral.
The Inspector General found that there were no adequate
procedures to ensure that individuals who failed to appear for
deferred inspections were brought in to complete their
inspection or were appropriately penalized for failing to do
so. Absent any clear procedural guidance, the Inspector General
determined, inspectors were largely left to their own
discretion to determine appropriate actions when individuals
failed to appear. The Inspector General concluded that actions
when taken failed to yield significant results, but that more
often, no follow-up of any kind was initiated.
On December 9, 2001, the Subcommittee held a hearing on the
Department of Justice's immigration detention policies.
Witnesses were Joseph R. Greene, then-Acting Deputy Executive
Associate Commissioner for Field Operations, INS, INS District
Director McElroy, Professor Margaret Taylor, Wake Forest
University School of Law, and Paul H. Thomson, Commonwealth's
Attorney, City of Winchester, Virginia. The witnesses discussed
the application of the INS's detention policies, alternatives
to detention, and the consequences of the INS's failure to
detain dangerous aliens.
At that hearing, INS disclosed that it was currently
detaining approximately 20,000 aliens. Of the aliens being
detained, sixty-five percent were criminal aliens. INS
detainees are housed in a variety of facilities across the
country.
The INS also detailed its detention policy, which sets
forth guidelines for determining priorities in which aliens
should be detained, at that hearing. This policy sets forth
four major categories of aliens and classifies these
individuals as required detention, high priority, medium
priority and lower priority. The four categories are: Category
I--mandatory detention; Category II--which includes security
and related crimes, other criminals not subject to mandatory
detention, aliens deemed to be a danger to the community or a
flight risk and alien smugglers; Category III--which includes
inadmissible non-criminal aliens (not placed in expedited
removal), aliens who committed fraud or were smuggled into the
United States, and worksite apprehensions; and Category IV--
which includes non-criminal border apprehensions, other aliens
not subject to mandatory detention, and aliens placed in
expedited removal referred to section 240 removal proceedings.
The Subcommittee continues to examine whether the INS's
detention policy adequately protects the American people, and
whether additional detention space, or a modification of the
INS's detention policies, are needed to achieve this goal.
Oversight of the issuance of visas to and admission to the United
States of the 19 September 11 hijackers
On September 26, 2001, Subcommittee Chairman Gekas and
Ranking Member Sheila Jackson Lee sent a request to the
Commissioner of the INS for information on all 19 aliens known
to have participated in the September 11 attacks. On October
11, 2001, the INS sent its initial response to that letter.
In that response, the INS stated that 10 of the 19 were in
lawful status, while three appeared to have overstayed the
authorized period of their stay and were in unlawful status on
September 11. The INS was ``unable to confirm any relating
records based on current information on six [of the]
individuals.''
On November 21, 2001, the INS updated its October 11, 2001
response. The INS stated that its previous report that two of
the hijackers, Ahmed Alghamdi and Waleed Alsheri, were in
illegal status was in error, based on erroneous dates of birth.
That updated response showed that 15 of these aliens entered as
visitors for pleasure, two as visitors for business, and one as
a student. It showed that one (Mohammed Atta) adjusted his
status to M-1 vocational student. Three were overstays: Satam
Al Suqami; Nawaf Alhazmi; and Hani Hanjour.
In a March 14, 2002, Chairman Sensenbrenner asked the INS
for a full immigration history of all 19 hijackers, including
each of their entries and departures from the United States,
and the status under which each entered on each of those
occasions. The INS sent its response on April 4, 2002. That
information arrived bearing the legend ``DOJ Limited Official
Use.'' Anattachment to that information warned: ``Be aware that
dissemination to any party not entitled to receive the attached
information may result in the imposition of criminal and/or civil
penalties.''
A review of the information that was provided by the INS
showed that all 19 of the hijackers entered the United States
on visas issued by the State Department. Accordingly, on June
27, 2002, Judiciary Committee Chairman Sensenbrenner asked the
Secretary of State to provide to the Committee with copies of
the Nonimmigrant Visa Applications (Forms OF-156) prepared by
each of those hijackers. Given the high percentage of the
hijackers who were Saudi Arabian nationals, Chairman
Sensenbrenner also requested copies of the Consular Packages
for the United States Embassy in Riyadh and the United States
Consulate in Jeddah from 1996. On July 2, 2002, the State
Department provided the Committee with information in response
to that request. That submission was marked ``Sensitive But
Unclassified.''
The Subcommittee continues to review the information that
has been provided by both the INS and the State Department. Its
investigation into the issuance of visas to and the admission
of the 19 September 11 hijackers remains ongoing.
Review of the INS issuance of visa approval letters for Mohammed Atta
and Marwan Al-Shehhi
In addition to the Subcommittee's general oversight into
the admission and immigration histories of each of the 19
September 11 hijackers, the Subcommittee also launched a
specific investigation into the issuance of visa approval
letters for two of the hijackers, Mohammed Atta and Marwan Al-
Shehhi. Atta and Al-Shehhi are believed to have each been
piloting planes that crashed into the World Trade Center on
September 11, 2001. Six months to the day after that incident,
the flight school that the pair attended, Huffman Aviation,
received notification that the INS had approved the application
of each to change his status to M-1 student. Both the
Subcommittee and the Department of Justice's Inspector General
found several irregularities with respect to the issuance of
those notifications.
Both Atta and Al-Shehhi entered the United States
repeatedly on visitor visas between early 2000 and the
September 11 attacks. On January 18, 2000, Al-Shehhi was
granted a nonimmigrant visitor visa by the State Department at
the United States Consulate in Dubai. He was admitted to the
United States on that visa at Newark International Airport on
May 29, 2000. On May 18, 2000, Atta was issued a nonimmigrant
visitor visa by the State Department at the United States
Consulate in Berlin. On June 3, 2000, Atta was admitted to the
United States at Newark International Airport as a visitor.
Both filed applications for change of their nonimmigrant status
to that of a vocational student to attend Huffman, a flight
school in Venice, Florida.
As noted, on March 11, 2002, six months to the day after
the September 11 attacks, Huffman received notification from
the INS that applications to change status filed by Atta and
Al-Shehhi had been approved. The notification letters were sent
to the flight school from the INS Student Processing Center,
operated by INS contractor ``Affiliated Computer Systems
Inc.,'' out of its offices in London, Kentucky. This incident
raised almost immediate complaints from throughout the
government, including the Congress, President, and Attorney
General.
Information that the Subcommittee received in the course of
this investigation revealed the following about Atta and Al-
Shehhi's immigration history:
On July 3, 2000, Atta and Al-Shehhi signed up for flight
training at Huffman. At the time that they signed up for
training, Atta held a private pilot's license, and was seeking
a commercial license. Al-Shehhi was seeking both a private and
commercial license. The two started taking lessons on July 6,
2000.
On August 29, 2000, Huffman filed verifications of
eligibility for vocational nonimmigrant student status (Forms
I-20M) for Atta and Al-Shehhi with the INS. Subsequently, on
September 19, 2000, Atta and Al-Shehhi each applied for a
change in status from non-immigrant visitor to non-immigrant
student.
In December 2000, Atta and Al-Shehhi took their last flight
tests at Huffman. Atta received his Instrument, Single/Multi-
Commercial Certification. Al-Shehhi was granted the same
certification along with his private pilot's license. Atta paid
a total of $18,703.50 for his lessons, and Al-Shehhi paid
$20,917.63 for his.
On January 4, 2001, after completing his training, Atta
left the United States, travelling from Miami to Madrid. Atta
reentered the United States at Miami International Airport on
January 10, 2001, and applied for admission as a visitor. He
presented his Egyptian passport during inspection, and was in
possession of a Form I-20. This was, presumably, the I-20 that
was filed by Huffman. The Inspector's notes reflect that Atta
had told the Inspector that he had been attending flight school
for five or six months. Apparently because of the information
Atta gave to the primary Inspector, and the fact that he was
carrying an unexpired visitor's visa, Atta was referred to
secondary inspection to determine his admissibility during this
entry. The INS checked its benefits processing database,
CLAIMS, confirming that Atta had previously submitted an
application to change his status to M-1 student. Atta was
admitted as a nonimmigrant visitor.
On January 11, 2001, Al-Shehhi departed the United States
at New York. He returned seven days later through New York, and
was referred to secondary inspection. The primary Inspector
noted: ``Subj. left one week ago after entry in May. Has
extension and now returning for a few more months.'' The
secondary inspection results show that Al-Shehhi was admitted
by the secondary Inspector as a visitor for business. The notes
in the secondary referral entry state: ``Was in the US gaining
flight hours to become a pilot. Admitted for four months.''
On April 18, 2001, Al-Shehhi again departed the United
States from Miami, going to Amsterdam. On May 2, 2001, he
reentered the United States at Miami, and was again admitted as
a visitor. He was not referred to secondary inspection on that
date.\3\
---------------------------------------------------------------------------
\3\ The Washington Post reported on March 17, 2002, that Atta and
Al-Shehhi took additional flight training in the United States in June
2001. Dan Eggen and Cheryl Thompson, Hijackers Visa Fiasco Points Up
INS Woes, Mar. 17, 2002, at A21.
---------------------------------------------------------------------------
Atta departed the United States on July 8, 2001, flying
from Miami to Madrid. While Atta was outside of the United
States, on July 17, 2001, his change of status application to
M-1 student was approved. Atta reentered the United States at
Atlanta, and was admitted as a visitor, on July 19, 2001. There
is no indication as to whether Atta was referred to secondary
inspection during that entry.
On August 9, 2001, Al-Shehhi's application for change of
status to M-1 student was approved. As noted, on March 11,
2002, six months to the day after the September 11 attacks,
Huffman received notification from the INS that the
applications for change of status filed by Atta and Al-Shehhi
had been approved. On March 14, 2002, Chairman Sensenbrenner
sent a letter to the INS requesting information relevant to the
INS's delayed issuance of the visa approval letters to Huffman
for Atta and Al-Shehhi.
On March 19, 2002, the Subcommittee held a hearing on both
the INS's delayed notification to Huffman and on the
immigration statuses of Atta and Al-Shehhi. Rudi Dekkers, the
President of Huffman appeared as a witness at that hearing, as
did Thomas Blodgett, Managing Director of ACS, Commissioner
James Ziglar of the INS, and Michael Cutler, a Special Agent
with the INS.
In his testimony, the INS Commissioner admitted that the
INS's information technology systems were ``big on information
and small on technology.'' While improvements had taken place,
the Commissioner conceded that ``the pace of improvement [of
those systems] has been well behind any reasonable definition
of the Service's needs.''
The Commissioner also presented the Subcommittee with a
series of measures that INS was considering to rectify gaps in
current processes and policies related to student and visitor
visas. Those changes fall into two categories: regulatory and
administrative.
First, he stated that the INS was considering regulatory
changes to tighten up temporary visa programs. For example, the
agency was considering a regulatory change that would result in
most holders of visitors' visas being admitted for a period of
30 days.
Second, the Commissioner testified that the agency was also
considering changing its regulations to prevent a nonimmigrant
alien with a pending request to change to student status who
entered under some other status from beginning a course of
study before the alien's request for a change of status request
to student was approved, as happened in the cases of Atta and
Al-Shehhi.
Third, the Commissioner stated that the INS had reduced the
processing time for student change of status applications to 30
days at two Service Centers and would reduce the processing
time to 30 days or less at the remaining two. To prevent the
possibility of a long gap in sending a return copy of the I-20,
the Commissioner testified, the INS would immediately revise
the process through which the I-20s are sent to the schools, so
that the I-20 is returned promptly after the alien is
authorized to enter into student status. In addition, the
Commissioner stated, all applications filed at Service Centers,
including student status applications, would be checked against
the Interagency Border Inspection System (IBIS), an inspections
database.
Thomas Blodgett, Managing Director of ACS, described the
company's business relationship with the INS. ACS operates a
microfilm, data entry, and storage facility in London, Kentucky
for the INS that performs high-volume transaction processing
for the microfilming, data entry, and storage of multiple INS
forms, including I-94 and I-20 forms. ACS receives completed
forms from INS Service Centers, schools, and ports of entry. It
then scans and microfilms the forms, and enters certain data
off of the forms. The data is returned to INS in microfilm and
electronic form, and the original form is stored by ACS for a
period specified by its contracts with the INS. After
expiration of the contractual storage period, ACS mails the
original form to the originating school.
Under its prior subcontract, ACS believed it was required
to store those forms for 180 days before returning them to the
school. ACS is now providing these services pursuant to a
Blanket Purchase Agreement, dated October 22, 2001. The
agreement changes the mandatory storage period from 180 days to
30 days for I-20 forms.
The third witness was Rudi Dekkers, the President of
Huffman Aviation. Dekkers described the flight training that
Atta and Al-Shehhi undertook at Huffman, and the role that the
school played in Atta's and Al-Shehhi's applications for change
of status.
Both Atta and Al-Shehhi came to Huffman claiming they were
unhappy with a flight school that they were attending ``up
[n]orth,'' and seeking flight lessons. After they signed up
with the school, Huffman found the two accommodations, from
which they were evicted due to ``excessive rudeness'' to their
landlord. The two were also nearly expelled from the flight-
training program in August 2000 because of their ``behavioral
problems'' and their inability to follow instructions. After a
meeting with the Chief Flight Instructor, however, their
behavior changed and they completed the course without further
problems.
Huffman sent Forms I-20M for the two to the INS on August
29, 2000, along with copies of their passports. They took their
last flight tests in December 2000, passed their FAA exams
``with average grades,'' and were given temporary FAA licenses
for 120 days. After paying their bills, the two were asked to
leave the Huffman facility ``due to their bad attitudes and not
being liked by staff and students alike.''
Huffman was contacted the morning after the September 11
attacks by the FBI, which was looking for the files for the
two. Dekkers was thereafter asked whether he recognized any of
the other terrorists, and he said that he did not. On March 11,
2002, Dekkers received the original I-20M's for Atta and Al-
Shehhi in the mail. Dekkers stated that he ``was relieved to
see the paperwork, but not surprised. It usually takes a long
time for visas to be returned from the INS.'' Dekkers claimed
that an INS officer from Tampa came to him on March 14, 2002,
requesting the original I-20M's, which Dekkers provided after
the agent produced a subpoena.
More than two months after that hearing, on May 20, 2002,
the Inspector General of the Department of Justice issued a
report on the INS's contacts with Atta and Al-Shehhi. That
report contained three sets of findings with respect to the two
aliens.
First, the Inspector General concluded that the inspectors
who admitted the two aliens did not violate INS policies and
practices. The Inspector General was unable to reach any
definitive conclusion whether Atta's admission in January 2001
was improper, given the limited record relating to the
admission and the inspector's inability to remember the
specifics of what was said at the time. The Inspector General
found, however, that before September 11, the INS did not
closely scrutinize aliens who were entering the United States
to become students or consistently require them to possess the
required documentation before entering the United States.
Second, the Inspector General found the INS's adjudication
and notification process for change of status applications and
the I-20 forms associated with those applications to be
untimely and significantly flawed. Because the INS assigned a
low priority to adjudicating these types of applications, a
significant backlog existed. As a result, Atta's and Al-
Shehhi's applications were adjudicated and approved more than
10 months after the INS received them, well after both aliens
had finished their flight training course. Even after
adjudication, the Inspector General found, there was another
significant delay before the I-20 forms were mailed to the
flight school notifying it of the approved applications because
ACS held onto them for 180 days before mailing them to the
school. The Inspector General found that ACS handled these
forms consistently with its handling of other I-20 forms and
its interpretation of the requirements of its contract with the
INS. He determined that the evidence suggested, however, that
the contract was written so that the I-20 forms would be
returned to the schools within 30 days, and the Inspector
General criticized the INS for failing to monitor adequately
the requirements and performance of the contract. The Inspector
General also criticized INS personnel for failing to consider
the I-20s during the initial stages of the September 11
investigation, and thereby failing to make the FBI aware of the
I-20s. No one in the INS took responsibility for locating the
forms or notifying the FBI of their existence, an oversight the
Inspector General found to be a failure on the part of many
individuals in the INS.
Third, the Inspector General concluded that the INS's
current, paper-based system for monitoring and tracking foreign
students in the United States was antiquated and inadequate.
The Inspector General also noted several problems with the
process pursuant to which the INS adjudicated Atta's and Al-
Shehhi's applications for change of status. The Inspector
General found that Atta and Al-Shehhi did not sign their I-20
Forms, which technically should have resulted in the forms
being returned to them. More importantly, the Inspector General
found, the adjudicator did not have complete information about
Atta and Al-Shehhi before adjudicating their applications. In
particular, the Inspector General found that according to long-
standing INS policy, an alien who files an application for
change of status and travels abroad abandons that application.
Both Atta and Al-Shehhi filed applications with the INS for
change of status on September 19, 2000, and thereafter each
departed the United States at least twice before those
applications were approved, abandoning those applications.
Although the INS captures departure information in its
Nonimmigrant Information System (NIIS) database, adjudicators
were not required to access NIIS in every case to ensure that
an applicant had not departed the United States while the
application was pending.
After concluding its investigation, the Subcommittee
concurs with the conclusions of the Inspector General.
As the Commissioner discussed in his testimony at the March
19, 2002 hearing, the INS has subsequently proposed changes to
its regulations intended to address problems in the admission
and change of status of nonimmigrant visitors and students
uncovered by the Subcommittee's and the Inspector General's
investigation of Atta and Al-Shehhi.
Specifically, the INS has promulgated an interim rule
prohibiting non-immigrant visitors from pursuing a course of
study prior to obtaining INS approval of a change to student
status. The INS has stated that this change will ensure that
aliens seeking to remain in the United States in student status
will have received the appropriate security checks before
beginning a course of study.
The INS has also issued a proposed rule that would
eliminate the minimum period of admission for a nonimmigrant
visitor for pleasure, which is currently six months. In place
of the minimum period of admission for visitors, the agency is
proposing that both visitors for business and visitors for
pleasure be admitted for a period of time ``that is fair and
reasonable for the completion of the purpose of the visit.''
The INS is also proposing to reduce the maximum period of
admission for visitors from one year to six months. The
proposed rule will also prohibit a non-immigrant visitor from
changing to student status unless the alien states an intention
to study at the time of admission.
Oversight of federal agency policies and law enforcement efforts to
prevent identity theft
The Subcommittee has recognized the necessity to better
understand the serious threat to homeland security that
emanates from identity fraud and identity theft. This need was
illuminated by the fact that nearly all the 9/11 terrorists who
perished on the hijacked planes employed one or more false
identities. The hijackers obtained valid drivers' licenses and
presented those cards as identification instead of their
national passports that might have aroused some extra level of
scrutiny.
Following those events, federal agents arrested hundreds of
people working in airports, who were subsequently convicted of
identity fraud, illegal misrepresentations, and immigration
violations. Many of those convicted held top security
clearances at airports and had regular access to secure areas.
The Subcommittee held two hearings to further its
investigation regarding the federal government's role in
preventing identity theft and determining the level of
continued threat from terrorists exploiting the U.S.
vulnerability from respective security weaknesses. The
Subcommittee recognized that the Subcommittee on Crime,
Terrorism and Homeland Security, as well as the Subcommittee on
Social Security of the Committee on Ways and Means were
appropriate partners with which to hold joint hearings on this
subject.
The first of these joint hearings was held by the
Subcommittee and the Subcommittee on Crime, Terrorism, and
Homeland Security on ``The Risk to Homeland Security From
Identity Fraud and Identity Theft,'' on June 25, 2002.
Witnesses were the U.S. Attorney for the Eastern District of
Virginia, Paul McNulty, Social Security Administration
Inspector General James G. Huse, Jr.,Richard M. Stana,
Director, Justice Issues, U.S. General Accounting Office, and Edmund
Mierzwinski, U.S. Public Interest Research Groups Consumer Program
Director.
The Members heard testimony from U.S. Attorney Paul
McNulty, regarding the details of how the 9/11 terrorists were
successful in obtaining valid Virginia drivers' licenses using
false identities. He also testified to the need for stronger
penalties, and mentioned that the Attorney General has endorsed
legislation to increase the penalties for identity theft. James
Huse, Inspector General of the Social Security Administration,
described the critical security vulnerability caused by tens of
thousands of foreigners each year illegally obtaining Social
Security numbers by using fake documents. A report issued on
May 10, 2002, by Mr. Huse's office, revealed that 1 in 12
foreigners receiving new Social Security Cards used counterfeit
documents or stolen identities to get them. The report cited
preliminary figures showing 100,000 Social Security Cards were
wrongly issued to non citizens in 2000.\4\
---------------------------------------------------------------------------
\4\ ``Foreigners obtain Social Security ID with Fake Papers,'' by
Robert Pear, New York Times, May 19, 2002.
---------------------------------------------------------------------------
Richard Stana from the GAO presented findings of a GAO
study of identity theft completed in March 2002. That study
provided cost data that pertained primarily to consumer and
business losses and provided insight into the costs of identity
theft and the investigatory complications that impact law
enforcement. The GAO study included a review of identity theft
investigations by Federal law enforcement agencies that
illustrated the growing demands on law enforcement resources
devoted to investigating and prosecuting perpetrators of
criminal identity theft. The Subcommittee has determined that:
There is a continuing threat from terrorists
operating under false identities. Terrorists exploited the
relatively weak procedures of several States to obtain legal
identity cards that allowed them to commit the atrocities of
September 11, 2001.
There are no federal laws that require minimum
standards for confirming identity before issuing identity
documents.
There are tens of thousands of illegal aliens and
U.S. citizens using assumed identities working in high security
jobs with security clearances issued by federal, state, and
municipal agencies.
There has been an exponential rise in identity
theft related crime, often involving substantial financial loss
to businesses and individual citizens. Current federal and
state penalties for identity theft crime are insufficient, and
law enforcement methods will need to updated to apprehend more
identity thieves.
There continues to be lax scrutiny of source
documents by federal agencies and State agencies that issue
identity cards, social security cards and drivers licenses,
which makes it relatively easy for identity thieves to operate.
There is a large and growing legal and illegal
information market through which illegal aliens, criminals and
terrorists can obtain and use valid documents such as drivers
licenses and social security numbers.
The INS is responsible for assisting State and
federal agencies in training their employees in the examination
of identity documents such as visas and immigration status
documents. The INS does not now effectively train federal
agencies in how to identity counterfeit source documents.
Only after September 11, 2001, did the Social
Security Administration reverse its policy on checking INS
records before issuing Social Security cards to noncitizens.
The INS has still not completed any arrangement to provide the
SSA with automated checking of its records, despite public
statements that this is a ``top priority.''
There is still no biometric used either to confirm
identity when SSA issues a card, nor any biometric attached to
the card to confirm that the bearer is the same person to whom
the card was issued. The SSA does not use any of the
sophisticated anticounterfeiting measures and tamper proof
production methods employed by the State Department for
passports or visas, nor by the INS for the Permanent Residence
Card or the Biometric Border Crossing Card.
The INS is the only federal agency that actively
pursues criminal organizations that manufacture counterfeit
Social Security cards, false birth certificates and other false
source identity documents. The SSA has no criminal enforcement
powers and has initiated few programs to combat the widespread
use of counterfeit Social Security Cards and false or stolen
Social Security numbers. The relative lack of law enforcement
against counterfeiting organizations makes it very easy for
terrorists to obtain counterfeit documents that can be
``upgraded'' to legally issued identification documents such as
valid Social Security cards, U.S. passports and State issued
drivers licenses.
The SSA's Office of the Inspector General has proposed
changes that would reduce fraudulent use of Social Security
cards and Social Security Card numbers. According to the OIG,
the SSA should:
Obtain independent verification from the
issuing agency (for example, INS and the State
Department) for all evidentiary documents submitted by
noncitizens before issuing an original Social Security
number,
Establish a reasonable threshold for the
number of replacement Social Security cards an
individual may obtain during a year and over a
lifetime, and then implement controls requiring
management personnel to approve any applications
exceeding this limit,
Provide further training to its field office
employees and perform quality reviews of Social
Security number processing,
Seek legislative authority to require
chronic problem employers to use the INS/SSA pilot
program that checks the Social Security numbers and
alien identification numbers of new hires against SSA
and INS data bases, and
Continue pursuing with the IRS penalties
against chronic problem employers, (If the IRS does not
enforce such penalties, SSA should seek its own
sanctioning authority.)
The OIG also recommended that Congress and the SSA consider
the following steps:
Increase the number of investigative and
enforcement resources provided for SSN misuse cases,
Authorize SSA and its OIG to disclose
information from SSA files as requested by the DOJ and
FBI in times of national emergency and in connection
with terrorist investigations,
Expand the agency's data matching activities
with other federal, State, and local Government
entities, and
Explore the use of other innovative
technologies, such as biometrics, in the enumeration
process.
The second hearing took place on September 19, 2002. It was
a joint Hearing of the Ways and Means Subcommittee on Social
Security and Judiciary Subcommittee on Immigration, Border
Security, and Claims titled ``Ensuring the Integrity of Social
Security Numbers and Preventing Their Misuse by Terrorists and
Identity Thieves''. The hearing examined the role Social
Security number fraud plays in crime and terrorist activities,
methods by which criminal fraud is accomplished utilizing
stolen Social Security numbers, the integrity of the Social
Security Administration's enumeration and wage crediting
process, federal agency coordination and cooperation, including
data sharing, to verify identification documents, and to detect
and prevent fraud. The hearing also addressed recommended
legislative proposals aimed at combating Social Security number
misuse and protecting privacy.
The subcommittees heard testimony from Ms. Charisse M.
Phillips, Director, Office of Fraud Prevention Programs, Bureau
of Consular Affairs, U.S. Department of State, regarding the
problems that lack of conforming standards among the States in
issuing and controlling birth certificates, death certificates,
and driver's licenses create for federal agencies when seeking
to confirm identity. She testified that there needs to be a
better method to confirm Social Security numbers easily and
routinely. She pointed out that it is difficult to confirm the
bonafides of U.S. birth certificates and driver's licenses,
because the U.S. has more than 8,000 authorities issuing birth
certificates. While the commonly accepted proof of identity is
the driver's license, she explained that high-quality
duplicates of state licenses are available on the Internet,
with only a removable sticker warning ``novelty item'' to deter
criminals. She explained that the State Department's passport
workers have no way of verifying driver's licenses, either on-
line or though routine access.
Mr. Jim Huse, Inspector General of the Social Security
Administration, testified about how the current lack of
identity theft enforcement by federal agencies, particularly
relating to Social Security card numbers, is a significant risk
to domestic security. He stated that in calendar year 2000 the
SSA issued approximately 1.2 million Social Security numbers to
non-citizens, out of some 5.5 million numbers issued in all. A
recently conducted Office of Inspector General study indicates
that 8 percent--196,000--of those 1.2 million SSNs were based
on invalid immigration documents. Mr. Huse stated with alarm
that ``[w]e have no way of determining how many SSNs have been
improperly assigned to non-citizens throughout history. The
issuance of SSNs based on invalid documentation creates a
homeland security risk.* * * Protecting the integrity of that
identifier is as important to our homeland security as any
border patrol or airport screening.''
Mr. Huse provided an alarming example of the ease with
which terrorists obtain social security cards from a case that
is just completing the sentencing phase:
The Antiterrorist Task Force arrested a naturalized
American citizen who had trained with Palestinian
guerrilla groups in Lebanon since he was 12 years old.
He was carrying a loaded semi-automatic pistol and an
assault rifle in the back seat of his car, along with
four loaded 30- round magazines for the rifle and
hundreds of rounds of additional ammunition. In his
home were a calendar with September 11th circled in
red, three different Social Security cards in his name,
a false Alien Registration Card, evidence of credit
card fraud and $20,000 in cash, as well as a wood
carved plaque with the name of the terrorist group
Hamas on it.
We determined he had obtained the three different
SSNs from SSA by falsifying two of his three SSN
applications. He had used them to get jobs as a
security guard and as an employee with the multi-
billion-dollar Intel Corporation, when a criminal
history check would have kept him from getting either
job under his true identity.
Mr. Huse also testified as to federal agency coordination
and cooperation to verify identification documents and to
detect and prevent fraud. He said ``it is critical that SSA
independently verify the authenticity of the birth records with
States, immigration records with the Immigration and
Naturalization Service, as well as other identification
documents presented by an applicant for an SSN.''
The Committee heard testimony from Robert Bond, Deputy
Special Agent in Charge, Financial Crimes Division, U.S. Secret
Service, in which he described how, with the passage of federal
laws in 1982 and 1984, the Secret Service was given primary
authority for the investigation of access device fraud and
parallel authority with other law enforcement agencies in
identification fraud cases.
He explained that the Internet and advanced technology
coupled with fierce competition within the financial sector has
created a target rich environment for today's sophisticated
criminals, including organized crime and foreign criminals. He
testified that identity theft is not typically a ``stand
alone'' crime, but almost always a component of one or more
other crimes, such as financial crimes, violent crimes, or
possibly, the facilitation of terrorist activities. In many
instances, an identity theft case encompasses multiple types of
fraud. In 2001, 20% of the 86,168 victim complaints regarding
identity theft involved more than one type of fraud.
Mr. Bond explained that identity theft victims have to
repair the damage done to their credit, their savings, and
their reputation. Among the groups most at risk are senior
citizens.
Mr. Grant D. Ashley, Assistant Director, Criminal
Investigative Division of the Federal Bureau of Investigation,
testified regarding the FBI's role in prosecuting identity
thieves. He described investigations of identity theft,
including bank fraud, credit card fraud, wire fraud, mail
fraud,money laundering, bankruptcy fraud, computer crimes,
terrorism, organized crime, and fugitive cases.
He described how a stolen identity is employed while the
groundwork is laid to carry out the crime. This includes the
rental of mail drops, post office boxes, apartments, office
space, vehicles, and storage lockers as well as the activation
of pagers, cellular telephones, and various utility services.
He stated the need to strengthen existing federal identity
theft criminal statutes and endorsed changes in federal law to
impose a mandatory two-year enhanced penalty (over and above
the sentence that would otherwise apply in a particular case)
for a wide range of cases involving identification document
fraud. He also supported increasing the maximum prison term for
possession with intent to use unlawfully of valid or fake
identity documents from three to five years.
Mr. Ashley gave an example of large scale identity theft:
One case under investigation by one of our offices in
conjunction with the U.S. Postal Inspection Service
involves an individual who obtained personal
identifying information such as the names, and dates of
birth of attorneys in the Boston area from the
Martindale-Hubbell directory of attorneys. Using this
information, his co-conspirator visited the
Massachusetts Bureau of Vital Records which has an open
records policy and was able to obtain copies of birth
certificates of his victims.
According to interviews with the defendants, using
the combined information, they were able to contact the
Social Security Administration and obtain the victims'
Social Security Numbers. Once they obtained the Social
Security Numbers, they were able to order credit
reports and look at the credit scores for these victims
to determine their creditworthiness and where accounts
already existed.
Using this information they were able to make pretext
calls to at least one bank and obtain the account
number. This enabled them to wire transfer $96,000 from
one of the victim's bank accounts, half of which went
to a casino and the remainder went to one of the
subject's personal accounts.
One of these suspects also added authorized users to
the victims' credit card accounts and ordered emergency
replacement cards which were sent to them by overnight
delivery. At the time of arrest, this individual was
found to be in possession of at least 12 different
license or identification cards from three states and
at least four or five credit cards, all in the names of
the victims whose identity he had stolen.
Mr. Ashley advised that ``[t]here needs to be some serious
review of the availability of personal identifying information,
including the Social Security Number, over the internet,
especially through these types of information brokers who can
provide this information for a fee.''
The hearing led to the following conclusions:
Combating identity theft is key to protecting
homeland security; According to SSA IG testimony, after the
September 11th attacks, 5 Social Security numbers associated
with some of the terrorists appeared to be counterfeit (were
never issued by SSA), 1 was assigned to a child, and 4 of the
terrorists were associated with multiple SSNs. According to FBI
testimony, ``terrorists have long utilized identity theft as
well as Social Security number fraud to enable them to obtain
such things as cover employment and access to secure locations.
These and similar means can be utilized by terrorists to obtain
driver's licenses, and bank and credit card accounts, through
which terrorism is facilitated.''
Federal agencies must cooperate, as the SSA has no
legal authority to levy fines and penalties against employers
or employees who submit incorrect information on wage reports--
the Internal Revenue Service enforces penalties for inaccurate
wage reporting, and the Immigration and Naturalization Service
has oversight responsibility for unauthorized citizens.
Enhanced coordination and cooperation among these agencies can
help stem the growth of Social Security number misuse.
INS systems oversight
The Subcommittee has a historical interest in INS
information systems, initiating important legislation over the
past 10 years that has mandated improvements in INS' use of
technology. Because of the significance of INS' enforcement
systems in combating terrorism, and the increased threat to
Border Security from terrorism, the Subcommittee focused on
those systems.
The Subcommittee took a broad approach to this oversight,
including: (1) an oversight hearing on INS Information
Technology; (2) a GAO study of four key INS enforcement
systems; (3) on-site investigations of INS systems in use at
airport Ports of Entry and land Ports of Entry; (4) on-site
investigations of new systems planning, development and
implementation; (5) an oversight hearing on the SEVIS system
deployment.
The Subcommittee's oversight work on INS systems had a
considerable impact, leading to improvements in INS management
communication with Congress, changes in INS project management,
a public commitment by the Department of Justice's Chief
Information Officer to improve oversight of INS information
technology projects, and a commitment to the GAO by INS to
improve its processes and documentation related to baseline
cost and schedule data of these projects. The Subcommittee's
hearings also generated a great deal of interest from the
public and the press regarding the role of INS systems, which
in turn will lead to a continuing emphasis on improving INS
systems performance and delivery.
Oversight hearing on INS information technology
The Subcommittee conducted an oversight hearing on the
INS's use of information technology in enforcement on October
11, 2001. The hearing was held to examine how the INS was
implementing the information technology systems that it uses
for enforcement, particularly the $111 million for new
investment that was proposed in the FY2002 INS appropriation.
The hearing also examined INS's lack of progress in
implementing the automated systems component of the biometric
Border Crossing Card and whether it constituted a critical
mission failure or a deliberate policy decision by the former
administration.
Similarly, the hearing addressed the delayed implementation
of the Student and Exchange Visitor Information System (SEVIS),
for which the INS failed to meet a congressionally set date for
implementation. Both these systems were mandated by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996.
The Subcommittee was particularly concerned about these INS
failures given that they occurred despite the agency receiving
ample financial resources. GAO and DOJ OIG audits had revealed
that the INS was deficient in Enterprise Architecture
Management, Investment Management, and Information Security
Management.
Commissioner Ziglar attempted to explain why the two major
systems efforts of most interest to the Subcommittee had not
been completed in a timely manner: (1) implementation of a
systems approach to automated scanning of the new Biometric
Border Crossing Card and (2) completion of a system to collect
foreign student data from all universities, colleges and trade
schools across the U.S. Commissioner Ziglar pledged to the
Subcommittee Members that he would direct his managers to
complete these two projects no later than the Spring of 2002.
Glenn A. Fine, Inspector General, U.S. Department of
Justice, testified that his office's reviews of INS programs
and their associated information technology systems found
serious process and management deficiencies. He described how
two OIG reviews of the INS's management of its automation
initiatives found lengthy delays in completing many automation
programs, unnecessary cost increases, and a significant risk
that finished projects would fail to meet the agency's needs.
The first of these audits concluded that the INS lacked
comprehensive performance measures and insufficiently tracked
the status of its projects. Consequently, the INS could not
determine if progress towards the completion of the projects
was acceptable. As a result, he stated that the INS faced risks
that: (1) completed projects would not meet the overall goals
of the automation programs, (2) completion of the automated
projects would be significantly delayed and (3) unnecessary
cost increases would occur. In the followup 1999 audit, it was
reported that: (1) estimated completion dates for projects were
delayed without explanation, (2) costs continued to spiral
upward with no justification for how funds were spent and (3)
projects neared completion with no assurance for meeting
performance and functional requirements.
Subcommittee investigations into the INS's failure to implement the
Border Crossing Card as required by Congress
Section 104 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 mandated the implementation of a
biometric Border Crossing Card. The INS began issuing the cards
in 1998, and more than five million have been issued to date.
By October 1, 2001 (later extended to October 1, 2002), any
Mexican or Canadian national who seeks admission with a BCC is
required to present the new biometric card to an inspector
before being admitted to the United States.
The Subcommittee Members, especially the Chairman and
Ranking Member, were deeply concerned that while the INS issued
cards to meet one of the requirements of section 104, it failed
to select or procure the card-verification equipment to read
the encrypted optic back surface of those cards, and failed to
begin work on the system to process the information on the
aliens to whom the cards were issued. The biometric Border
Crossing Card (also known as the laser visa), has a photo and
basic ID information printed on the front and machine-readable
information contained on a special laser read/write disk
embedded in the back of the card. It was Congress's intent that
effective October 1, 2001, any Mexican national who seeks
admission with a BCC will be required to present the new
biometric card to an Inspector before being admitted to the
United States. Those purposes included: (1) having a machine
read the card to confirm that is was not a counterfeit card and
that the biometric information (fingerprint and photo) matched
both the card holder and the centralized record and (2) that an
automated record of entry and exit be created through a
scanning device every time the person crossed the border. This
issue was discussed at the October 2001 hearing. Largely as a
result of the Subcommittee Chairman's expressed concern
following the hearing, the Emergency Supplemental
Appropriations bill appropriated $10 million and mandated that
the INS purchase scanners and deploy them at sea, land, and air
ports of entry. The Subcommittee staff met regularly with the
INS to ensure that reasonable progress was made to establish
minimum specifications for the optic readers, an implementation
plan for the optic surface card readers, and the procurement
plan for their acquisition. The staff has actively monitored
the activity of the pilot phase of the implementation plan
which is ongoing at interior locations in Southern California
and at selected land port of entry locations on the Southwest
border and at the Atlanta airport. Subcommittee staff has also
investigated the security of the card-manufacturing process and
of the data systems that capture and store the data obtained by
the State Department Bureau of Consular Affairs.
Oversight of the INS's implementation of a entry-exit tracking system
at U.S. ports of entry
Section 110 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 required INS to implement an
automated entry-exit control system for land and sea ports of
entry. The Subcommittee required the INS to meet with staff
regarding acceleration of development of an effective entry-
exit system, focusing on initial deployment at inspections
stations in airports, beginning in October 2002. The
Subcommittee staff relied on knowledge gained through these
meetings when drafting the Enhanced Border Security and Visa
Entry Reform Act of 2001 (H.R. 3525). In consultation with
staff, the INS had earlier agreed to establish an interim
system for tracking entry and exit of airline passengers using
data from the Advanced Passenger Information System (APIS) and
to add that information in a more efficient way to the IBIS
system. To ensure that the INS receives that information, H.R.
3525 required that commercial airlines flying to the United
States from abroad submit passenger manifests, including
arrival and departure manifests, in advance electronically by
January 1, 2003. The Subcommittee staff met with Customs
officers in 2002 to monitor progress in receiving the required
data from commercial airlines, including receiving a restricted
report that identified which internationalairlines had not yet
complied with the requirement. The Subcommittee staff also met with INS
to ensure that plans had been made to capture the departure information
that will be provided through APIS, so that foreign visitors not
complying with the constraints of their visa admittance issued by the
INS will be identified, starting January 1, 2003. The Subcommittee
staff also required briefings by the INS regarding the implementation
of biometric identification and mandatory entry and exit confirmation
of visitors from countries identified as state sponsors of terrorism.
The resulting system was identified by the Attorney General as a pilot
for the United States Entry Exit System. Now in place at selected air
and land ports of entry is the National Security Entry Exit
Registration System, or NSEERS. The INS is now required to register,
photograph, and fingerprint certain non-immigrant aliens subject to
special registration as a condition of entry into the United States.
The Subcommittee anticipates on site oversight observation of NSEERS in
the 108th Congress.
Oversight of the operations of the Executive Office for Immigration
Review
Throughout the 107th Congress, critics expressed concerns
about the actions and operations of the Immigration Court and
the Board of Immigration Appeals, the trial and appellate
courts, respectively, of removal actions brought by the INS.
These two courts are components of the Executive Office for
Immigration Review within the Justice Department.
Observers have complained that cases before both the
Immigration Judges and the BIA can take years to complete, and
reports have stated that even cases involving detained aliens
have gone unresolved at the BIA level for extended periods of
time. Backlogs in cases have also been growing in recent years,
although the number of BIA members has steadily increased over
the past six years. In addition, certain BIA members and IJs
have been criticized, both by the public at large and by the
immigration-law community, for failing to follow the language
of the Immigration and Nationality Act, or for granting or
denying relief inappropriately. The BIA has also been
criticized for failing to defer to IJ decisions, including
decisions premised on IJs' observations of witnesses at
hearings. In the fall of 2001, the Subcommittee opened an
oversight investigation into those concerns. That investigation
is ongoing.
Backlogs in removal cases have been a problem for the BIA
for several years, and that problem appears to have been
largely unaffected by an increase in resources. For several
decades up until February 1995, the BIA had five members,
including a Chairman. Starting in 1995, the number of BIA
members has steadily increased. Eight new members were
appointed in 1995, one in 1997, two in 1998, two in 1999, four
in 2000, and two in 2001. The BIA is now composed of 23
Members, including the Chairman and two Vice Chairmen (there
are currently five vacancies).
Despite the fact that the number of BIA members have more
than quadrupled since 1995, the backlog in issuing decisions on
appeal grew. In FY 2000, the backlog increased even more, as
the BIA completed 23,184 appeals against 35,361 receipts. An
article from February 2001 stated that there was, at that time,
a backlog of 60,000 cases at the BIA, and that non-detainee
cases were taking ``a matter of years.''
This backlog has had tragic effects, both for aliens with
cases languishing on appeal and for the public at large.
Several newspaper articles published in the recent past
described situations where aliens have been detained for years
while waiting for the IJs and the BIA to rule on their cases.
The backlog at the BIA has also allowed criminal aliens to
remain in the United States to prey on the American public.
Observers also complained about decisional irregularities
in decisions issued by the IJs and the BIA. In an October 2000
series, The (San Jose) Mercury News examined the grant and
denial rate for 219 IJs from 1995 to 1999, finding
``extraordinary disparities from one judge to the next.'' As it
stated ``[A]t one end of the spectrum, some judges granted
asylum in more than half the cases they heard. At the other
end, judges granted asylum in less than 5 percent of the cases
they heard, some less than 2 percent.'' The Mercury News noted
that ``[a]sylum lawyers and advocates have long complained that
the results are arbitrary.''
Critics have also complained that a large number of aliens
who are released by the INS and by the IJs and the BIA
subsequently fail to appear at scheduled hearings. According to
statistics released by EOIR, the rate of aliens who failed to
appear for hearings overall fluctuated between 21 and 25
percent between FY 1996 and FY 1999. A large number of criminal
aliens have gone on to commit additional crimes in the United
States after they were released from INS custody.
After collecting information on the operations of EOIR, and
discussing the issues raised with immigration practitioners, on
February 6, 2002, the Subcommittee held an oversight hearing on
the operations of the office. Kevin Rooney, Director of EOIR
appeared as a witness, as did Stephen Yoel-Loehr of the
American Immigration Lawyers Association and former BIA members
Michael Heilman and Lauren Mathon.
In his testimony, Director Rooney described recent
initiatives implemented by the BIA and Immigration Court to
improve efficiency, expedite cases, and reduce the removal case
backlog. Of particular note was the ``streamlining''
initiative. Under this initiative, noncontroversial cases that
meet specified criteria may be reviewed and adjudicated by a
single Board Member. The types of cases in which the
``streamlining'' procedures may be used include unopposed
motions, withdrawals of appeals, summary remands, summary
dismissals, other procedural and ministerial issues determined
by the Chairman, and affirmances of IJ decisions without
opinion. This latter category is limited to cases (1) where the
result reached in the decision under review was correct and any
errors in the decision were harmless or nonmaterial, (2) where
the issue on appeal is squarely controlled by existing BIA or
federal court precedent and does not involve the application of
precedent to a novel fact situation or (3) where the factual
and legal questions raised on appeal are so insubstantial that
three-Member review is not warranted.
Director Rooney explained that the streamlining initiative
was then being implemented through a pilot project, with the
results of the project used to implement streamlining on a
permanent basis. For FY 2002, approximately 58% of all incoming
cases were sent to the streamlining panel, and the streamlining
panel issued 15,372 decisions, which helped the Board increase
its productivity by 50% for the year. Rooney asserted that an
independent audit concluded that streamlining did not result in
an appreciable difference in the ultimate outcome of a case,
nor didit affect the rate of legal representation of aliens in
appeals before the Board. He also claimed that the independent auditor
concluded that the Streamlining Project has been an ``unqualified
success.''
In his testimony, former Board Member Heilman detailed
problems that have impaired the BIA's performance and
efficiency. Heilman stated that, having reviewed over 100,000
appeals at the BIA, ``the overwhelming percentage of [IJ]
decisions * * * were legally and factually correct, and that
the subsequent appeals were without any substantial basis on
any ground.''
Heilman claimed that there were a number of incentives for
aliens to appeal, including the low filing fee (waived, he
claimed, in many of the cases) and the fact that the alien did
not have to pay for fees or transcripts. ``[T]he single
greatest incentive for an alien to appeal'' though, he
asserted, was the fact that the filing of an appeal stayed the
IJ's order until the BIA issued a decision.
Heilman also argued that the usefulness of the BIA's
precedent decisions has decreased as the number of Board
Members has increased. He asserted that as the size of the BIA
increased, the BIA ``came to be marked by internal divisions
based on personality conflicts.'' In particular, he noted, the
IJs ``came to see their decisions being subjected to
intemperate and even personal critiques by certain BIA
Members.'' The BIA panels began to issue conflicting decisions,
and to remand increasing numbers of cases to the IJs. ``Many
Immigration Judges came to believe that their decisions were
not being subjected to a reasonable review, but rather the
whims of individual Members.''
To correct these problems, Heilman argued that the BIA
should limit the cases that it hears on appeal, considering
precedential cases and cases where ``a clear case has been made
that an Immigration Judge has made an incorrect application of
the law below.'' He also suggested that aliens should be
required to file a brief within 30 days of filing the appeal
identifying legal errors committed by the IJ, that a time limit
be set by regulation or statute within which the BIA would have
to render a decision on the merits of the appeal, that the
number of Board Members be reduced to no more than nine, and
that an alien be charged the cost of the alien's appeal. Other
changes proposed by Heilman would end the present practice by
which an alien may have an asylum application heard by both an
INS asylum officer and an IJ, and would require cases to be
screened by INS attorneys before they are filed with an IJ.
Former Board Member (and current Social Security
Administrative Law Judge) Lauren Mathon offered her own
perspective on the backlog problem and other problems facing
the BIA. Judge Mathon gave five reasons for the BIA's
staggering backlog: A backlog at the time that the number of
Board Members expanded, ``radical changes'' in the immigration
laws in 1996 that have resulted in extensive litigation, an
increase in the number of IJs, management difficulties at the
BIA between 1995 and 2000, and the fact that many recent Board
Members lack immigration expertise.
Judge Mathon lauded three BIA initiatives: the
``streamlining'' initiative, the jurisdiction panel, and the
backlog panel. She stated that the streamlining initiative
``allows the Board to adjudicate noncontroversial cases by a
single Board Member,'' and claimed that it has dramatically
increased BIA production of the Board. She explained that
streamlining is responsible for about a third of the BIA's
overall production. The jurisdiction panel, Judge Mathon
stated, ``effectively and efficiently adjudicates all cases
with jurisdictional issues,'' without having to address the
merits of the cases considered. Judge Mathon stated that the
backlog panel ``has been successful in making a big dent in the
backlog.''
To address the BIA's caseload and make Board Members
accountable, Judge Mathon proposed setting specific time limits
for the BIA to render decisions and mandating a result for
failure to meet these limits, requiring the BIA to enforce the
regulatory numerical and temporal deadlines for filing appeals
and motions, mandating the Board to consider only those issues
raised on appeal, setting a short and specific time limit for a
Board Member to write a separate opinion or dissent, reducing
the number of Board Members to a total of 16, adding more
categories of cases for adjudication by a single Board Member
on the streamlining panel and promoting consistency of
decisions among the panels.
Yale-Loehr also addressed the effectiveness of the
streamlining initiative in his testimony. He stated that an
outside auditor who had examined the initiative concluded that
the ``overwhelming weight of both `objective' and `subjective'
evidence gathered and analyzed indicated that the Streamlining
Pilot Project has been an unqualified success.'' Yale-Loehr
also argued, in his testimony, for the creation of ``a
separate, Executive Branch agency that would include the trial-
level immigration courts and the BIA.''
On the day of the EOIR oversight hearing, the Attorney
General announced proposed regulatory amendments containing
procedural changes in how the BIA adjudicates cases, which
incorporated many of the streamlining procedures utilized by
the BIA. The final rule implementing those amendments was
issued on August 23, 2002. Under these new regulations:
Carrying forward the streamlining pilot, decisions
will be issued by a single Board member where there are no
novel questions, disagreements or difficult matters of law.
Three-member panels of the BIA will continue to consider
``complex cases.''
The BIA will no longer review IJs' factual
findings de novo, and will instead employ a ``clearly
erroneous'' standard, the standard of review that most
appellate courts use for factual issues.
The rule includes a series of time limits for the
adjudication of cases to provide a more timely decision to the
parties:
A single Board Member has 90 days either to
decide the case or refer it for three-member panel
review, and
A three-member panel must render its decision
within 180 days of referral. In limited circumstances,
these time limits may be temporarily suspended.
After a six-month transition period, the Board will be
reduced to 11 members.
At the February 6, 2002 hearing, Yale-Loehr discussed these
regulations in their proposed form. He was critical of the
Attorney General's proposals for eliminating the backlog at the
BIA and reducing the appeal period for BIA appeals, arguing
that the existing backlogs before the BIA arenot the result of
inefficiency, but rather reflect a lack of resources, and that a
reduction in the number of Board Members would not serve the interests
of fairness or efficiency.
Inquiry into the INS admission of four aliens from the Progresso and
request for INS directives
On March 22, 2002, Subcommittee staff received information
about the Progresso, a ship sailing under a Maltese flag that
landed at the Port of Chesapeake, Virginia on March 16, 2002.
Specifically, staff was informed that Ahmad Salman, Thulan
Qadar, Mohammad Nazir, and Adnan Ahmad, four Pakistani
nationals who were crewmen aboard that ship, were waived into
the United States for shore leave while that ship was in port.
When the ship departed on March 18, 2002, the four were not on
board. Initial reports suggested that after it was discovered
that the four had failed to appear for the Progresso's
departure, the names of the four were checked against a
terrorist ``watch'' or ``lookout'' list, which had not,
purportedly, been done before they were admitted. That check
allegedly revealed that the name of one of the four appeared on
the lookout list. Shore passes for the rest of the crew
reportedly were subsequently revoked.
Subcommittee staff was also informed that INS Field
Operations issued field guidance in the Fall of 2001 stating
that crewmen were not to be waived for shore leave without
permission from the District Director, Deputy District
Director, Assistant District Director for Investigations, or
Assistant District Director for Examinations. Permission was
not obtained from any of these four INS employees before the
four named crewmen were waived for shore leave during the
Progresso's March 2002 visit to Chesapeake, Virginia, staff was
told.
On March 22, 2002, Committee and Subcommittee staff held a
conference call with employees of both the INS and Department
of Justice about this incident. On that call, the INS and
Justice Department officials revealed that the names of each of
the crewmen was checked against the Interagency Border
Inspection System (IBIS) prior to the Progresso's arrival,
resulting in no matches. A mistake in the entry of information
for one of the aliens, however, caused INS to miss information
regarding that alien's prior immigration history. Specifically,
the alien had applied for admission previously, but withdrew
that application when the evidence that he presented to support
his application could not be verified.
Later that day, Chairman Sensenbrenner sent a request to
the INS for additional information on that incident, to be
forwarded to the Committee by March 27, 2002. On March 25,
2002, the Commissioner sent his initial response to that
request. On April 3, 2002, he forwarded a full description of
this incident. That letter verified that one of the four aliens
had a prior immigration history that was mistakenly overlooked
when he was granted a landing permit. The response also
indicated that the Inspector who waived the four failed to
comply with the aforementioned field guidance because, she
stated, she was unaware of the policy. The Supervisor
responsible was removed, the INS said, and the agency initiated
an investigation to determine whether any other personnel were
responsible for the guidance not being followed or
disseminated.
Following public disclosures about this incident, the
Commissioner ``implement[ed] a zero tolerance policy with
regard to INS employees who fail to abide by headquarters-
issued policy and field instructions.'' This ``zero tolerance
policy'' raised the issue of how many ``headquarters-issued
policy and field instructions'' were then currently in effect,
and whether any of those instructions were in conflict with one
another or reflected policies that might have needed review in
light of the terrorist attacks of September 11, 2001. For these
reasons, on April 2, 2002, Chairman Sensenbrenner requested
that the Attorney General provide the Committee, no later than
April 5, 2002, with copies of all current INS ``headquarters-
issued policy and field instructions,'' along with copies of
any documentation indexing those instructions. The Chairman
stated that he was particularly interested in ``any indices
that have been issued to assist INS headquarters, regional, and
field personnel in applying those instructions.''
On April 5, 2002, the Justice Department notified
Subcommittee staff that the INS had identified approximately
six boxes of materials and ``several volumes of electronic
materials'' which ``may be responsive to the Chairman's
request.'' No indices existed, raising the question of how INS
staff could possibly comply with the zero tolerance policy.
Review and assessment of the Immigration and Naturalization Service's
foreign Student Tracking Program
In the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Congress directed the Attorney
General to develop and conduct a program to collect specified
information on nonimmigrant students and exchange visitors from
approved institutions of higher education and designated
exchange programs. In the USA PATRIOT Act, Congress mandated
that the Attorney General fully implement that program,
authorizing $36,800,000 (later appropriated) for this purpose.
The tracking of alien students in the United States again
became a priority for the INS after the first World Trade
Center bombing. The investigation of that incident revealed
that Eyad Ismoil, a 21-year-old Jordanian citizen, had driven
the truckload of explosives into the World Trade Center that
were detonated on February 26, 1993. Ismoil entered the United
States in 1989 on a student visa, attending Wichita State
University in Kansas for three semesters before dropping out to
live and work illegally in Texas for the next two years.
Congress imposed a requirement for an electronic monitoring
system for foreign students in IIRIRA, mandating that a program
to collect information on students and exchange visitors from a
minimum of five countries, designated by the Attorney General,
be established by January 1, 1998. Not later than four years
after the commencement of that program, the Attorney General,
Secretary of State, and Secretary of Education were to file a
joint report with the House and Senate Judiciary Committees on
the feasibility of expanding the program to cover all foreign
nationals. Not later than one year after the filing of that
report (or by January 1, 2003), the Attorney General was to
expand that program to cover all foreign students. The program
was required to be self-funding, through a fee paid by
students.
As mandated by this provision, in June 1997 the INS
developed a computer program, the Coordinated Interagency
Partnership for Reporting on International Students (CIPRIS),
to test the concept of an electronic reporting system. The most
significant difference between the formerstudent tracking
process and CIPRIS was that under CIPRIS, schools provided information
about themselves and their students directly into INS computer systems,
instead of the INS relying on information from forms being entered
after the fact by contractors. As the Inspector General has noted,
CIPRIS ``was intended to involve the issuance of student registration
cards that would contain additional identifying information about the
student such as fingerprints and photographs that were collected by the
schools.''
Following the CIPRIS pilot, the Student and Exchange
Visitor Program (SEVP) was established. SEVP is the
reengineered process under which nonimmigrants and exchange
visitors are to be admitted into the United States. The CIPRIS
computer system was reconfigured into SEVIS, the internet-based
computer system on which SEVP operates.
The attacks of September 11, and the fact that three of the
19 hijackers were present in the United States on student
visas, refocused attention on the student tracking system. In
section 416 of the USA PATRIOT Act, Congress mandated that
SEVIS be fully implemented by January 1, 2003, providing
funding for this purpose.
There are two ways in which a school can submit SEVIS
information to the INS: (1) a ``real-time'' interactive method
that allows authorized users to input individual student
information and transmit the information to the INS and (2) a
``batch'' reporting system that will allow an institution's
servers to upload and download large amounts of information
directly into the INS system. The web-based ``real-time''
interactive method is intended for smaller institutions with
few foreign students, while the batch system is contemplated
for institutions with large populations of foreign students.
The INS introduced SEVIS on a limited, preliminary basis in
July 2002. On September 18, 2002, the Subcommittee held an
oversight hearing on the INS's implementation of the SEVIS
system, to review and assess the status of that program. The
witnesses at that hearing were: Janis Sposato, Assistant Deputy
Executive Associate Commissioner for the Immigration Services
Division, INS, Glenn Fine, Inspector General, U.S. Department
of Justice, Catheryn D. Cotten, Director of the International
Office, Duke University, and Dr. Terry W. Hartle, Senior Vice
President for Government and Public Affairs, American Council
on Education.
At hearing. Sposato described the efforts that the INS has
made to implement SEVIS. She stated that the INS was
``confident'' that SEVIS would ``meet the January 1, 2003, date
established by the USA PATRIOT Act for making SEVIS available''
to schools, noting that INS has ``deployed the initial
operational version of SEVIS six months prior to the USA
PATRIOT Act deadline.''
Fine, Cotten, and Hartle, however, each questioned whether
SEVIS would be fully operational by the January 30, 2003
deadline set by the INS for schools to be using SEVIS to issue
Forms I-20.
Fine asserted that while SEVIS would be technically
operational by that date, he had concerns about whether the INS
would be able to complete all the steps necessary to ensure
full and proper implementation by January 30, 2003. His
concerns included whether the INS would assign and train
sufficient numbers of dedicated staff to review and approve the
schools' applications to access SEVIS, whether it would conduct
sufficient and thorough site visits of schools applying to
accept foreign students, whether it would adequately train
school officials to use SEVIS, and whether it would train INS
inspectors and investigators adequately to use SEVIS to detect
fraud.
While Cotten also believed that INS could have an
electronic mechanism in place to bring all schools online and
connect them to SEVIS by January 30, 2003, thus meeting the
mandatory schools compliance date, she doubted whether the
schools could have all of their data entered into the system by
that date. She argued that the INS should give schools a full
calendar year, or until January 30, 2004, to enter all of their
information. She also noted that the INS had not then published
a final rule containing the SEVIS requirements for students,
and had not even published a proposed rule for exchange
visitors, arguing that schools should know what was expected of
them. She questioned whether the exchange visitor program would
be ``completely usable or accurate when it comes online.''
Cotten also argued that schools would not be able to
manually enter their information by the January 30, 2003,
deadline, noting that the INS would not have the batch
submission system available until October 2002 at the earliest.
She asserted that ``[h]asty and forced mandatory record entry
on'' all of the foreign student files in the United States
would ``result in a data base that is so full of errors as to
be unreliable and unusable.''
To improve the system, Cotten recommended that the INS
establish a SEVIS Help Desk providing assistance in all U.S.
time zones for at least 12 hours per day. She advised that the
help desk staff be trained and knowledgeable both in the
student and exchange visitor regulations and in how to
represent students and scholar in SEVIS under those
regulations.
Hartle asserted that while the higher education and
exchange visitor communities support the prompt implementation
of SEVIS, there is much that remains to be done before SEVIS
will be operational. He stated that these groups were, at that
point, deeply concerned that they would face enormous
difficulties when compliance was required because they had
``very little information'' to enable them to implement the new
system. Specifically, like Cotten, Hartle noted that the SEVIS
regulations for students had not been published in final form,
that the regulations for exchange visitors had not been
published in draft form, and that batch processing of
information was not then available. He further complained that
the amount of the fee that students would have to pay to be
registered in the SEVIS system and the procedure for collecting
the fee was unsettled, and that the INS had ``no meaningful
plans for training and has ignored our repeated requests that
they hold regional briefing sessions for campus officials that
we would organize and pay for.''
Sposato responded at the hearing to Cotten's concerns about
schools entering all of their foreign student data by January
30, 2003. Sposato explained that the January 30 date was for
new students, while schools would have up to the start of the
next ``full academic term'' to enter continuing students. She
further explained that additional training and compliance
monitoring would occur in the Spring of 2003.
Review of the INS interior enforcement strategy
``Interior enforcement'' is the INS's scheme for enforcing
the immigration laws within the United States. The INS's
interior enforcement strategy is meant to complement the
agency's ``border enforcement strategy,'' which aims to prevent
unauthorized aliens from entering the United States.
In January 1999, the INS announced a new interior
enforcement strategy. The plan's stated primary strategic goal
was to reduce the size and annual growth of the illegal
resident population. To achieve this goal, the INS established
the following strategic priorities:
(1) Identify and remove alien criminals (subsequently
modified to include terrorists),
(2) Deter and diminish smuggling and trafficking of
aliens,
(3) Respond to community reports and complaints about
illegal immigration and build partnerships to solve
local problems,
(4) Minimize immigration benefit fraud and other
document abuse, and
(5) Deter and limit employment opportunities for
aliens not authorized to work.
Criticisms of that policy were voiced shortly after it was
announced. Those criticisms largely focused on the fact that
the interior enforcement strategy did not prioritize, or even
address, the general removal of illegal aliens from the United
States.
Despite the fact that this goal was absent from the
interior enforcement strategy, the removal of illegal aliens
from the United States has been described as a crucial factor
in any immigration enforcement plan. In prepared remarks to the
Subcommittee in February 1995, Barbara Jordan, former Chair of
the United States Commission on Immigration Reform (CIR),
stated that:
Credibility in immigration policy can be summed up in one
sentence: Those who should get in, get in; those who should be
kept out, are kept out; and those who should not be here will
be required to leave. * * * [F]or the system to be credible,
people actually have to be deported at the end of the process.
Critics of the interior enforcement plan concluded that the
plan's failure to address the removal of non-criminal aliens to
be a crucial flaw. At a hearing on that strategy held by the
Subcommittee in June 1999, Congressman Lamar Smith, then-
Chairman of the Subcommittee, stated:
The interior enforcement strategy recently unveiled
by the Immigration and Naturalization Service
effectively gives up removing illegal aliens from the
United States. Except for a small fraction of convicted
criminal aliens, illegal aliens have little or no fear
that they will ever be deported. If it widely known
that once they get past the border, illegal aliens are
almost never removed from the United States. This in
turn, of course, encourages ever greater waves of
illegal immigration.
In addition to this point, some observers have been
critical of the INS's performance even in the narrow priority
areas that the agency has identified. Major errors have been
found in the INS's ability to identify and remove alien
criminals and terrorists. The September 11 attacks were carried
out by 19 aliens who had previously been admitted as
nonimmigrants. In response, INS asserted that ``terrorists''
were the ``first priority'' of its interior enforcement
efforts. The INS's ability to identify alien terrorists was
called into question, however, in March 2002, when it was
revealed that six months after those attacks, the flight school
in Florida that two of the hijackers attended received
confirmation letters that applications for change of status had
been approved for the two.
INS's record in removing criminal aliens from the United
States has also been uneven, at best. GAO has identified
criminal alien removal as ``one of INS's long-standing
challenges.'' The INS's experience with its Institutional
Hearing Program is indicative of its inconsistent performance
in identifying and removing criminal aliens. The IHP, now known
as the Institutional Removal Program, is the agency's main
vehicle for placing aliens who are incarcerated in state and
federal prisons into deportation proceedings so that they can
be expeditiously deported upon release.
In September 2002, the Justice Department Inspector General
issued a report finding that the INS has not effectively
managed the IRP. In particular, the Inspector General
determined, the INS has yet to determine the nationwide
population of foreign-born inmates, particularly at the county
level, and therefore cannot properly quantify the resources the
IRP needs to fully identify and process all deportable inmates.
That report also found that the INS did not always timely
process IRP cases, and as a result has been forced to detain
criminal aliens released from incarceration into INS custody to
complete deportation proceedings. After reviewing a judgmental
sample of 151 alien files of criminal aliens in INS custody,
which included criminal aliens released from federal, state,
and local correctional facilities throughout the country, the
Inspector General identified a total of $2.3 million in IRP-
related detention costs, of which $1.1 million was attributable
to failures in the IRP process within the INS's control.
A review of the INS's anti-smuggling efforts also shows
major flaws. In a May 2000 report, GAO stated that the INS's
ability to implement and evaluate the effectiveness of the
domestic component of its anti-smuggling strategy is impeded by
several factors, including a lack of program coordination, the
absence of an automated case tracking and management system,
and limited performance measures.
The INS's ability to minimize fraud and document abuse has
also been criticized over the past two years. In particular, in
a January 2002 report, the GAO concluded that while the INS
does not know the extent of the immigration benefit fraud
problem, reports and INS officials themselves indicate that the
problem is ``pervasive'' and ``significant,'' and that
immigration benefit fraud is ``rampant.'' GAO cited an INS
Service Center official who estimated that fraud is ``probably
involved'' in 20 to 30% of all applications filed.
Despite these problems, the GAO found that benefit fraud is
a comparatively low priority within the INS. GAO determined
that the agency's efforts to contain immigration benefit fraud
are fragmented and unfocused.
In its 1997 Executive Summary, the CIR underscored the
importance of worksite enforcement, the fifth priority in the
agency's interior enforcement strategy, to controlling illegal
immigration. The CIR found that ``[r]educing the employment
magnet is the lynchpin of a comprehensive strategy to deter
unlawful migration.''
In contrast to the strong emphasis on employer sanctions
that CIR advocated, the INS's efforts in this area have been
weak for several years. In testimony before this Subcommittee
in 1999, Commissioner Hill of the CIR, deemed the demotion of
employer sanctions to last among the stated priorities in its
interior enforcement plan ``unacceptable.''
INS claimed that worksite enforcement's diminished status
amongst its priorities reflected its perceptions that it had
failed to effectively deter illegal immigration through its
worksite enforcement efforts and that achievement of its other
goals, such as removal of criminal aliens, would reverse that
trend.
As part of its review of the INS's interior enforcement
strategy, on June 19, 2002, the Subcommittee held an oversight
hearing on that strategy. Appearing at that hearing were Joseph
Greene, Assistant Commissioner for Investigations, INS, Richard
Stana, Associate Director for Administration of Justice Issues,
GAO, Steven Camarota, Director of Research, Center for
Immigration Studies, and Marissa Demeo, Regional Counsel for
the Mexican American Legal Defense Fund.
At hearing, Greene described the interior enforcement
operations that the INS has been conducting since the September
11 attacks. He asserted that as a result of a new emphasis on
worksite enforcement targeting national interest industries,
there has been more than a 20 percent increase in employer
sanction case completions. It appears that this emphasis has
been focused primarily in a series of investigations into the
hiring practices of airport employers known as ``Operation
Tarmac.'' The purpose of these investigations is to ensure that
individuals who work at airports and who have direct access to
commercial aircraft and other secure areas are authorized to
work, and that employers are complying with the employment
eligibility verification requirements in employing these
individuals.
Greene also discussed the agency's efforts to target alien
smuggling organizations from countries that are of national
security interest to the United States. This program, known as
``Operation Southern Focus,'' was initiated in January 2002. He
asserted that since the inception of this operation, ``five
significant alien smugglers have been arrested and charged with
alien smuggling violations, and significant alien smuggling
pipelines have been severely crippled.''
Another aspect of the INS's post-September 11 enforcement
efforts is the Alien Absconder Initiative, which is designed to
identify and apprehend unauthorized aliens who have unexecuted
final orders of removal. Green described the AAI as the INS's
``first national program to address alien absconders.'' There
are currently 314,000 aliens in the United States under final
orders. Greene testified that approximately 700 of those aliens
had been apprehended in the first phase of that initiative.
Stana testified that the INS could do a better job of using
its limited interior enforcement resources. Specifically, he
testified that the INS needs better data to determine staff
needs, reliable information technology, clear and consistent
guidelines and procedures for line staff, effective
collaboration and coordination, both internally and with other
agencies, and performance measures to assess its results.
Camarota argued that interior enforcement is a critically
important part of effective immigration control, but that
efforts to enforce immigration laws within the United States
have been very limited for a long time. The INS's lax
enforcement of the immigration laws has resulted in an illegal-
alien population of eight million in the United States, he
asserted, and has had other serious adverse ramifications for
our country, some of which have been economic and some of which
have been security-related.
Camarota further asserted that lax enforcement of the
immigration laws has increased America's vulnerability to
foreign-based terrorists, noting that 22 of 48 al Qaeda-linked
terrorists in the United States between 1993 and 2001 committed
significant violations of immigration laws prior to taking part
in terrorism. He asserted that allowing a large illegal
population to reside in the United States facilitates terrorism
for two reasons: first, it has crated a large underground
industry that furnishes illegal aliens with fraudulent
identities and documents that terrorists can (and have) tapped
into; and second, the existence of a huge illegal population
creates a general contempt or disregard for immigration law.
Camarota made several proposals to improve interior
enforcement. Specifically, he suggested that the INS implement
several systems for monitoring the flow of aliens through the
United States, including a tracking system for temporary visa
holders, an effective entry/exit system for aliens on temporary
visas, and the placing of the names of visa overstayers in a
criminal database. He also argued for improvements in the area
of worksite enforcement, integration of INS databases, and
increasing the number of INS investigators.
Demeo commented on several recent Justice Department
interior enforcement initiatives and proposed initiatives. She
asserted that Operation Tarmac adversely impacts the Latino
community without forwarding the goal of fighting terrorism.
She argued that allowing local law-enforcement to enforce the
immigration laws actually decreases public safety and increases
mistrust between Latinos and law-enforcement.
Inquiry into the State Department shredding of completed diversity visa
applications
According to The Associated Press on August 21, 2002,
``State Department officials say they have been using high-
speed shredders * * * to destroy the records of immigrants who
fail to win entry to the United States after applying through''
the diversity visa lottery system, despite the post-September
11 emphasis on sharing such information among law enforcement
andintelligence agencies. The Associated Press the next day
reported that law enforcement and counter-terrorism officials who it
told about the shredding said that they ``could see an investigative
use for the information,'' quoting an unnamed top Bush administration
counter-terrorism official who said that the destruction of the
applications was ``very shocking.''
On August 23, 2002, Subcommittee Chairman Gekas asked the
State Department to provide this Subcommittee with an
assessment of the intelligence value of applications from
unsuccessful diversity visa applicants. He also asked the State
Department to retain those applications until after it
submitted the requested information to the Subcommittee, and
until after the Subcommittee had an opportunity to take action
on the information.
On September 6, 2002, the State Department responded to
that letter, announcing that it was revising its procedure for
processing diversity lottery entries. The Department stated
that it was suspending the shredding of all current entries
while other agencies assessed the intelligence value of those
documents.
Investigation into INS interactions with Hesham Mohamed Ali Hedayet
On July 4, 2002, Hesham Mohamed Ali Hedayet, an Egyptian
national, entered Los Angeles International Airport and shot
and killed two people at the El Al ticket counter before being
shot once--and mortally wounded--by an El Al security guard.
Four days later, as information on that attack was released,
the Subcommittee opened an investigation into the incident and
into Hedayet's presence in the United States.
Press reports shortly after the July 4 shooting stated that
Hedayet was a lawful permanent resident, having gained that
status through his wife, who won the diversity lottery in 1996.
Those reports indicated that Hedayet had adjusted his status
under section 245(i) of the Immigration and Nationality Act,
but that he had previously filed an application for permanent
residency, which was denied in 1996.
It was unclear from those press reports on what basis
Hedayet filed his original applications, or why that
application was denied. Given the facts reported, however, it
appeared most likely that Hedayet had applied for asylum. The
possibility that Hedayet had filed an asylum application raised
the possibility that the INS might have had information
suggesting that Hedayet had engaged, may have engaged, or
intended to engage in terrorist activity prior to the July 4,
2002 shooting and yet still granted him permanent residence.
To assess whether the INS had information in its possession
suggesting that Hedayet should have been denied adjustment of
status and deported, on July 8, 2002, Subcommittee Chairman
Gekas sent a letter to the Commissioner of the INS requesting a
copy of Hedayet's alien file (A-file).
The Committee received the A-file on July 29, 2002. After
the documents were received and reviewed, it was apparent that
Hedayet had applied for, and was denied, asylum, but no asylum
application was included with that packet, and no reference was
made to asylum in the cover letter that accompanied that file.
In fact, all references to asylum were redacted from the
documents received, including on Hedayet's Employment
Authorization Document and a fingerprint card.
The Committee continued to press the Department of Justice
for the remaining documents in Hedayet's A-file. On September
24, 2002, the INS provided additional documents responsive to
the July 8, 2002, request, including the missing asylum
application and Asylum Officer's decision, to staff. Notably,
in his cover letter accompanying those documents, the
Commissioner stated that Hedayet's asylum information was being
released to the Subcommittee because the Attorney General had
waived the confidentiality of that document.
The A-file revealed that Hedayet entered the United States
on July 31, 1992, at Los Angeles as a B-2 visitor for pleasure,
with permission to remain in the United States until January
25, 1993. That visa was issued by the U.S. Consulate in Cairo,
Egypt, on July 13, 1992.
On December 29, 1992, less than a month before his
authorized stay was due to expire, Hedayet filed his asylum
application. He alleged that the police in Egypt arrested him
without reason over a period of 14 years, and that he had been
followed, jailed, ``threatened by phone [and] letter for no
reason, just because I am a religious individual who has a
strong belief in my religion and God.'' He stated in his asylum
application that he was arrested several times and ``was forced
to sign papers * * * admitting crimes I did not commit and did
not know about.'' He claimed to have been physically and
psychologically tortured.
The only group in which he claimed membership in his asylum
application was a ``Mosque Association,'' the purpose of which
is ``to understand truly and apply Islamic law in the 20th
Century under any circumstances. * * * In houses and government
to extend all the effor[t]s to support establishing Islamic
government.''
He was interviewed in conjunction with that application on
March 30, 1993. Almost two years later, on March 7, 1995, the
INS Asylum Office in Anaheim, California sent Hedayet a notice
of intent to deny his asylum application.
In that notice, the INS stated that Hedayet had told the
asylum officer that the police forced him to sign papers
falsely stating that he was a member of ``Gamatt El Islamaia''
and that he was trying to overthrow the government. This is an
apparent reference to al-Gama'a al-Islamiyya, also known as the
``Islamic Group'' or ``IG.'' \5\
---------------------------------------------------------------------------
\5\ The State Department describes al-Gama'a as ``Egypt's largest
terrorist group,'' stating that it ``specialized in armed attacks
against Egyptian security and other government officials, Coptic
Christians, and Egyptian opponents of Islamic extremism'' before it
announced a cease-fire in March 1999.
From 1993 until the cease-fire, al-Gama'a launched attacks on
tourists in Egypt, most notably an attack in November 1997 at Luxor
that killed 58 foreign tourists. It also claimed responsibility for the
attempt in June 1995 to assassinate Egyptian President Hosni Mubarak in
Addis Ababa, Ethiopia.
---------------------------------------------------------------------------
Hedayet claimed that he was afraid for his wife, ``Hala El
Awadly,'' and young son, who were, he claimed, ``still in
Egypt.''
The Asylum Officer had concerns about Hedayet's
credibility, but not the common concern that Hedayet had
manufactured his claim, per se. In fact, the Asylum Officer
concluded that Hedayet had experienced past harm at the hands
of the Egyptian government. Specifically, Hedayet had claimed
that he had been arrested twice for no reason shortly before
coming to the United States, that the Egyptian government put a
guard on his apartment whenever a foreign head of government
would visit Egypt, and that the Egyptian government sent a
letter to the bank where he worked, essentially asking that he
be fired.
What the asylum officer did not believe was Hedayet's
assertion that he only wanted the nonviolent overthrow of the
Egyptian government. As the asylum officer stated:
You said that your father and his friends gave you
advice as to how to avoid trouble with the authorities,
but you declined to take the advice, preferring to flee
the country instead. When asked about the Copts, you
maintained that the Copts are not treated badly in
Egypt, despite the fact that treatment of Copts is a
matter of comment among human rights groups the world
over. You lived in Cairo, are well-educated and
articulate, but claim to have read nothing about anti-
Coptic activities in the city. No one who knows
anything about Egyptian politics, as you obviously do,
could be as unaware of Coptic problems as you claim to
be. Each of these inconsistencies is suggestive of
concealment, and call into question your assertion that
all you wish for the government of Egypt is that it be
overthrown by peaceful means.
(emphasis added). This finding, coupled with Hedayet's
assertions that he had been mistreated by the Egyptian
government (which the INS believed) and that he had been
accused of membership in the IG would suggest that Hedayet may
have been a terrorist, or may have been connected to terrorism.
It did not appear, however, that the INS investigated
Hedayet's claims that he was suspected of being a terrorist by
the Egyptian government, or the possibility that he may, in
fact, have been a terrorist. Rather, it does not appear that
any extrinsic information, beyond Hedayet's own statements, was
considered by the INS in denying that application.
Notably, the INS Asylum Officer apparently did not deny
that application because of Hedayet's perceived lack of
credibility. Rather, the asylum officer stated the application
was denied on the ground that Hedayet had ``not proven that
[the harm that he had experienced in the past] was on account
of one of the five enumerated grounds (race, religion,
nationality, membership in a particular social group, or
political opinion).''
Hedayet did not respond to the notice of intent to deny his
asylum application. For this reason, on October 19, 2002, the
INS sent him a final decision denying his asylum, along with
charging him with overstaying his visa, at the last home
address he provided to the Asylum Office, in Mission Viejo,
California. Those documents were returned to the INS by the
Postal Service, marked: ``Return to Sender/No Forward Order on
File/Unable to Forward.''
The deportation hearing was set for March 26, 1996. When
Hedayet failed to appear, the Immigration Judge ordered those
proceedings administratively closed, rather than issuing a
final order of deportation for Hedayet, because there was no
proof that Hedayet had been served with the order to show
cause. The trial attorney sent the case to the service clerk to
locate the postal return receipt in order to prove that the
documents had been served. The record of action in the file
states in a subsequent March 29, 1996 entry: ``unable to locate
ret. rec.''
The INS did not thereafter attempt to locate Hedayet, but
rather sent his A-file to its records branch for filing. A memo
in the file from INS's Detention and Deportation branch, dated
June 11, 1996, states:
[I]nasmuch as the charging document was not served on
the alien and the file does not contain a current
address to which the OSC could be mailed, this case is
considered not properly under Docket Control. The file
will be forwarded to records. * * * If at any time
after the date of this memorandum, the alien is
encountered, a superceding OSC is to be issued, if
applicable, and properly served on the alien and EOIR.
It appears from the file documents that Hedayet was
``encountered'' by the INS on June 11, 1996, the date this
memorandum was issued, because on that day the INS renewed
Hedayet's employment authorization. Despite this interaction
with the alien, the INS did not place Hedayet in proceedings on
that date.
Hedayet himself next contacted the INS after his wife,
under the name ``Awadly Abslamhala,'' was notified by the State
Department that she had won the diversity visa lottery on July
18, 1996. Hedayet applied for adjustment of status, premised on
his eligibility for derivative immigration status as the
husband of a diversity visa lottery winner, on November 22,
1997.
As noted, information in Hedayet's asylum application
suggested that he had been accused of having terrorist
connections by the Egyptian government. If Hedayet had engaged
in terrorist activity, or if the INS had reasonable ground to
believe that Hedayet was engaged or was likely to engage in
terrorist activity, he would have been barred from adjustment
of status. It does not appear, however, that the INS
investigated those claims or even reviewed those claims in
connection with his adjustment application.
Further, documents relating to Hedayet's son, which are
also in Hedayet's A-file, suggest other possible evidence of
fraud in Hedayet's asylum application. The son's visa
application states that he has lived in the United States since
July 1992. According to the INS, both Hedayet's son and his
wife actually arrived in the United States on March 12, 1993.
It appears, however, from the asylum officer's decision that
Hedayet claimed at his March 30, 1993, asylum interview that
his wife and son were still in Egypt. Specifically, the asylum
officer stated: ``You said you are afraid for your family, your
wife and young son. They are still in Egypt.'' There are two
ossible reasons Hedayet may have claimed falsely that his
family was still in Egypt when they were actually in the United
States: First, he may have thought that he would have a better
chance of being granted asylum if it appeared that his wife and
son were in danger, and that he neededasylum status to protect
them from harm. Second, he may have thought that he would be less
likely to receive asylum if the government knew that he had brought his
wife and son to America. Either of these would have been a material
misrepresentation, barring Hedayet from adjustment of status. It is
unclear whether the adjudicator who granted Hedayet adjustment of
status to lawful permanent resident reviewed the asylum application, or
questioned Hedayet about this discrepancy, however.
Notwithstanding these and other questions, Hedayet's
adjustment application was approved by the INS, and he was
granted lawful permanent resident status on August 29, 1997.
The same day that Subcommittee staff received Hedayet's A-
file, the Justice Department forwarded the Subcommittee a copy
of a memorandum, dated September 18, 2002, from the Attorney
General to the Commissioner of the INS concerning the Hedayet
case. In that memorandum, the Attorney General stated that he
``was made aware of certain serious irregularities in the INS'
treatment of'' Hedayet on September 13, 2002. The Attorney
General noted that based on a review of the file by the INS, it
appeared that:
Hedayet claimed that he had been accused of being
a terrorist, but the INS did not conduct any further
investigation to assess whether this accusation was true.
INS was unable to serve Hedayet with the OSC
because he had moved.
The INS continued to grant Hedayet employment
authorization after denying his asylum application while he was
in illegal status, but did not recalendar his deportation
proceedings.
It was unclear whether Hedayet was interviewed in
connection with his adjustment application, or whether the
officer who adjudicated that application reviewed his asylum
application, ``which presumably would have triggered a further
inquiry into his possible terrorist connections.''
Because these facts ``have implications for our immigration
system and our national security,'' the Attorney General
directed the Commissioner to ``undertake a prompt
investigation'' into the Hedayet case and to report back to the
Deputy Attorney General ``with [his] findings, including any
remedial or disciplinary action taken.'' The Attorney General
also told the Commissioner to review pending asylum
applications ``to ascertain whether other individuals may be
present in the United States who have admitted that they have
been accused of terrorist activity or terrorist associations.''
On October 9, 2002, the Subcommittee held an oversight
hearing into the INS's interactions with Hedayet. Appearing as
witnesses at that hearing were: William Yates, Deputy Executive
Associate Commissioner, Immigration Services Division, INS, Dr.
Steven Camarota, Director of Research, Center for Immigration
Studies, Daniel Pipes, Director, Middle East Forum, and Paul
Virtue, Hogan & Hartson (former General Counsel of the INS).
Yates started his testimony by asserting that no
enforcement or intelligence information indicated that Hedayet
was ever associated with a terrorist organization, or had
engaged in any criminal activity prior to July 4, 2002, and
that INS's decisions in connection with Hedayet's asylum and
adjustment of status applications ``were appropriate under the
laws, regulations, policies and procedures in existence at the
time.'' He stated, however, that the INS has improved its
processing procedures and strengthened its security measures
since adjudicating those applications.
Yates also stated that applications for asylum are now
forwarded to the FBI and CIA for background checks, and the INS
would have scheduled Hedayet to have his fingerprints taken at
an Application Support Center under the improved procedures.
Finally, Yates asserted, Hedayet's allegation that he had been
accused of membership in a terrorist organization would have
triggered referral of his case to INS Asylum Headquarters for
further scrutiny.
It does not appear that the INS's forwarding of Hedayet's
applications to the FBI and CIA for background checks would
have made a difference in this case, because Yates asserted
that there was no domestic intelligence indicating that Hedayet
was ever associated with a terrorist organization. Rather, it
appears that the Egyptian government would have been the best
source for information to assess Hedayet's assertions that he
had been falsely accused of being a member of a terrorist
organization by that government. As Camarota testified,
however, the primary reason that the INS failed to do so was
because of the asylum confidentiality provisions. Camarota
noted that there is a fear that a foreign government may move
to penalize members of an asylum applicant's family who are
still in their home country if the foreign government became
aware that the applicant was seeking asylum in the United
States. He argued, however, that ``the national security of the
United States must supercede such concerns.''
In addition to his comments about the asylum
confidentiality provision, Camarota testified about the abuses
of asylum and adjustment of status by alien terrorists in the
United States, and about problems with those forms of relief
generally.
Camarota described the asylum system as ``lax,'' and argued
that asylum ``has been one of the favorite means for terrorists
to live in the United States.'' He claimed that this system has
allowed terrorists ``not only to enter the United States but
has also allowed them to remain in the country moving about
freely while they plan their attacks.'' He stated that several
aliens who participated in terrorist attacks in the United
States used political asylum to enter and/or remain in the
country, including: Sheik Omar Abdel Rahman, who inspired
several terrorist plots, most notably the 1993 attack on the
World Trade Center, Mir Aimal Kansi, who murdered two CIA
employees, and Ramzi Yousef, who masterminded the first attack
on the World Trade Center.
Camarota also described the diversity visa lottery, which
was used by Hedayet and his wife to remain in the United
States, as ``very problematic from a national security point of
view.'' He criticized the lottery for allowing 50,000 aliens a
year with no strong ties to the United States to become
permanent residents, arguing that aliens with few ties to the
United States are more likely to be willing to attack our
country. Camarota further asserted that Hedayet is not the only
terrorist to use the lottery.
He also contended that section 245(i) of the Immigration
and Nationality Act is a significant threat to American
national security in that it allows illegal aliens to use this
procedure to adjust status without returning home to be
processed. This procedure increases the chancethat a problem
with the application will be missed by eliminating consular officers in
the home country (who, Camarota alleged, are in a much better position
than an INS adjudicator to judge the validity of the application and
whether someone poses a security threat) from the visa-issuance
process.
Pipes, in turn, criticized the INS's ``cavalier attitude''
toward Hedayet's possible membership in the IG. He suggested
that Hedayet may have mentioned the Egyptian government's
accusations because, anticipating ``that the INS would do a
thorough investigation of his life and want[ing] to spin his
record in advance he decided the best tactic would be pre-
emption.'' Although Pipes admitted that the Egyptian government
might have compelled an innocent person to sign a false
document, he argued that ``there was also a very real
possibility that Hedayet actually did belong to'' the IG. Given
what Pipes described as the IG's ``long and notorious history
of terrorism,'' he found the INS's ``complete lack of curiosity
on this issue * * * astonishing.''
Virtue argued, on the other hand, that while Hedayet's case
serves as the basis for legitimate inquiry into INS processes
and procedures, ``it is both unfair and inaccurate to use the
case to raise allegations against sound immigration policies
that underlie programs involving the protection of refugees,
the diversity lottery, or former [s]ection 245(i).'' He argued
that immigration reform needs to enhance ``our intelligence
capacity while respecting our commitment to due process and
civil liberties and facilitating the free flow of people and
goods.
A review of the information provided by the Justice
Department and the testimony of the witnesses leads to the
conclusion that the INS did not investigate concerns regarding
Hedayet. There is no evidence that the INS requested background
checks from any U.S. government components, nor does it appear
that the INS verified Hedayet's story with the Egyptian
government. The INS apparently did not verify Hedayet's story
with the Egyptian government because of its reading of the
confidentiality regulation. While there are serious
humanitarian concerns underpinning the INS's interpretation of
this regulation, the agency must assess whether its
interpretation adequately protects the national security and,
if not, must review its position on asylum confidentiality.
Review of the immigration history of suspected criminals in high-
profile cases
Throughout 2002, the media reported that a number of
individuals suspected of engaging in criminal activity in high-
profile cases were aliens present in the United States. In
order to assess whether those individuals were lawfully
admitted to the United States, and if so, to determine whether
the INS or the State Department may have had information
relevant to the aliens' criminal activity at the time that the
aliens were issued visas or admitted to the United States, the
Subcommittee requested that the INS provide it with the
immigration records for a number of these aliens.
On August 31, 2002, Maximiliano Cilerio Esparza, a Mexican
national, allegedly attacked and raped two Catholic nuns in
Klamath Falls, Oregon. One of those nuns died from her
injuries. Esparza is being currently held without bail by local
officials on aggravated murder and other charges.
According to an article in the September 6, 2002 edition of
The Oregonian, Esparza has an extensive immigration history.
Although the paper provided a lengthy description of Esparza's
that history, there were portions of Esparza's relationship
with the INS that were unclear even from that article. In order
to assess whether the INS had properly handled Esparza's case,
on September 10, 2002, Subcommittee Chairman Gekas requested
the alien's file from the INS.
Subsequently, on October 9, 2002. The Oregonian reported
that the Department of Justice's Inspector General was
investigating why Border Patrol agents who twice arrested and
released Esparza in 2002 didn't perform more extensive
background checks on the alien that might have uncovered a
previous conviction that the alien had in California, and might
have revealed that he had been deported before, subjecting him
to federal prosecution.
On November 6, 2002, the INS provided a copy of Esparza's
alien file to the Subcommittee. In the cover letter attached to
that file, the Commissioner stated that the Inspector General
``is reviewing the entire case to see whether established
procedures were followed.'' The Subcommittee is continuing its
investigation of this matter, and has followed up with the INS
seeking additional information.
The Subcommittee is also investigating the interactions
that the INS and State Department may have had with two
individuals who have been charged in a series of shootings in
the Washington, D.C. and Richmond areas, John Allen Muhammad
(also known as John Williams, Wayne Weeks, and Wayne Weekley)
and John Lee Malvo (also known as Lee Malvo and Lee Boyd
Malvo).
Shortly after Muhammad and Malvo were arrested on October
24, 2002, the press reported that Malvo was a Jamaican
national. Subcommittee staff requested information on Malvo,
and on October 25, 2002, Chairman Sensenbrenner sent a request
to the Attorney General seeking a complete briefing on Malvo's
immigration history. Three weeks later, press reports indicated
that Muhammad was known to the United States Embassy in Antigua
while he was living in that country. On November 15, 2002,
Chairman Sensenbrenner sent a request to the Secretary of State
for any information that the State Department might have
regarding Muhammad's repeated entries and possible criminal
activities. The Subcommittee is awaiting responses to those
requests.
Review of information on alleged Mexican incursions into the United
States
In early 2002, the Subcommittee received a number of
reports concerning alleged incursions along the Southwest
Border by the Mexican police and military. One report indicated
that there had been a total of 23 incursions by Mexican
military and police into the United States along theSouthwest
border that were documented in 2001, and that the actual number of
incursions may be three times that number.
On September 24, 2002, Subcommittee Chairman Gekas
requested copies of all documents that the INS has addressing
incursions into the United States between January 2001 and the
present. The INS is currently compiling those documents to
present to the Subcommittee for review.
INS maintenance of alien address records
At the request of Subcommittee Chairman Gekas, the General
Accounting Office issued a November 2002 report titled:
``Homeland Security: INS Cannot Locate Many Aliens Because It
Lacks Reliable Address Information,'' GAO-03-188. The report
addressed (1) the INS's failure to effectively track aliens
under the current address processing system; (2) the
insufficiency of current INS forms with respect to address
reporting; (3) the need for the INS to adequately inform aliens
of the need to both provide complete address information and
update address information when necessary; and (4) additional
options which the Executive branch might adopt without
congressional action to enhance the INS's information gathering
capabilities.
Examination of immigration and United States population
After the 2000 Census was taken, the Census Bureau released
many reports, including several numbers involving the
immigrants population in the U.S. On August 2, 2001, the
Subcommittee held a hearing to examine immigrant population
numbers released by the Census Bureau. On August 2, 2001, the
Subcommittee heard from Dr. John Long, the Chief of the
Population Division of the U.S. Census Bureau; Dr. Jeffrey
Passel, Principal Research Associate in the Population Studies
Center of the Urban Institute; Dr. Steven Camarota, Director of
Research at the Center for Immigration Studies; and Mr. William
Elder, Chairman for the Sierrans for U.S. Population
Stabilization.
Dr. Long testified that 281 million people were counted in
Census 2000, an increase of 33 million from 1990. This was a
13.2 percent increase and the largest numeric increase between
any two censuses in U.S. history. At the time of the hearing,
the Census Bureau estimated a foreign-born population of about
30 million in the U.S., almost 11 percent of the U.S.
population. The foreign-born population measured by the 1990
census was around 20 million, which was about 8 percent of the
population, according to Long.
Dr. Passel testified that although the 2000 numbers of
immigrants are large relative to the total population, the
percentage of foreign-born is lower than historical highs. He
noted that from about 1870 through 1920, the percentage of
foreign-born in the U.S. population ranged from 13 to 15
percent. He also noted that the illegal population has reached
unprecedented levels and, by his own estimation, number from 8
to 9 million.
Dr. Camarota testified that immigration policy accounted
for the extraordinary population increase during the 1990s.
This translates into 1.3 million legal and illegal immigrants
settling in the U.S. each year, he stated. During the 1990s, it
is likely that immigrant women gave birth to an estimated 6.9
million children. If the number of births and the number of new
arrivals are added together, the total impact on population
growth is around 20 to 21 million of the total 33 million, or
roughly two thirds of the population growth in the U.S. is new
immigrants and births to immigrant women. The Census Bureau
indicates that immigration will add about 76 million people to
the U.S. population between now and 2050, according to
Camarota.
Camarota testified that this large growth has significant
consequences for some quality-of-life issues such as sprawl and
congestion. It has an enormous impact on the size of school-
aged population. Roughly 90 percent of the increase in the
number of children in public schools in the U.S. over the last
20 years is a direct result of post-1970 immigration, said
Camarota.
Mr. Elder stated that the growth of 33 million during the
1990s is equivalent to adding a State the size of California,
including all of its houses, apartments, factories, office
buildings, shopping centers, schools, streets, freeways and
automobiles; its consumption of power, water, food, and
consumer goods; and its environmental waste stream of refuse,
air and water pollution, to an already crowded and stressed
U.S. environment. Intentionally or not, Elder stated that
Congress created the current population boom through
immigration policy. This has undone the progress of the
American people toward a stable and sustainable population in
voluntarily adopting replacement level reproduction, an average
of two births per woman, Elder stated.
Review of the Immigration and Naturalization Service and Office of
Special Counsel for Immigration-related unfair employment
practices
Representative Bob Barr requested an oversight hearing to
examine the consequences of the Immigration Reform and Control
Act of 1986 with regard to employer sanctions and employment
discrimination. The law places American employers in a
difficult situation. They are required to verify the employment
eligibility of their workers or face fines and possibly be
penalized criminally by the INS for knowingly hiring illegal
aliens. On the other hand, employers cannot ask for more
documents than are required by law without the Office of
Special Counsel for Immigration-Related Unfair Employment
Practices (OSC) possibly initiating an investigation and/or
prosecution of the employer for violating an alien's civil
rights. To further complicate the process for employers,
fraudulent employment authorization documents are abundant and
ubiquitous.
On March 21, 2002, the Subcommittee held an oversight
hearing on this matter. Witnesses included Juan Carlos Benitez,
Special Counsel for Immigration Related Unfair Employment
Practices, U.S. Department of Justice, Joseph Greene, Acting
Deputy Executive Associate Commissioner for Field Operations,
INS, Otto Kuczynski, President of Fairfield Textiles
Corporation, and Wade Henderson, Executive Director of the
Leadership Conference on Civil Rights.
Mr. Benitez noted that the OSC is the only office in the
Federal Government specifically designed and empowered to
protect the civil rights of alien workers. Benitez testified
that even 16 years after IRCA was passed, U.S. citizens and
lawful aliens are discriminated against based upon whether they
appear or sound foreign. He explained that one of OSC's major
priorities is to educate the general public, both employers and
employees, about their rights and obligations. Benitez stated
that OSChas established an early intervention program which is
unique among Government anti-discrimination enforcement agencies and is
based upon the idea that prevention of discrimination and early
intervention are more important than obtaining a remedy after the fact.
Mr. Greene testified that the INS concentrated its
personnel and its resources on employment cases involving
criminal violations or widespread egregious industry-wide civil
violations, particularly those cases where a nexus with human
smuggling or human trafficking had been established or where
there was evidence that worker exploitation has occurred. He
stated that the INS believes that criminal convictions and
their accompanying sentences have proven to be a far greater
deterrent to illegally hiring aliens than the employer
sanctions law.
Mr. Kuczynski is the owner of a company that knits, dyes,
and finishes fabric. The large majority of his workforce has
always consisted of immigrants. He is an immigrant himself and
explained that he always makes clear to his employees that his
company does not and would not discriminate against immigrants.
He testified that in 1991, the INS raided his facilities and
took into custody employees who appeared to be immigrants. A
number of employees were determined to be illegal aliens even
though the company had the necessary documentation of the
employees. The INS issued no notices of violation on the
company, but had disrupted production by taking the employees
into custody. Kuczynski could not afford another major
disruption to his business so he vowed to ensure no illegal
alien would be hired, even unwittingly.
In 1998, his company received a letter from OSC at the
Justice Department regarding a charge of discrimination from
someone who had sought a job with his company. OSC looked
through hundreds of the company's documents, took depositions,
and threatened suit against Fairfield Textiles, alleging the
company violated the law in not hiring the individual who filed
the charge. Kuczynski reported that OSC threatened that if he
did not want to be sued, the company would have to agree to
including a civil penalty of $2,000 and back pay of $7,451.
Kuczynski declined and OSC instituted suit against Fairfield
Textiles. The case settled two and a half years later.
Fairfield Textiles paid a fine of $1,100 to the U.S. Treasury
and paid the charging party $12,470. The legal fees and related
costs to defend the charge exceeded $93,000.
Kuczynski's company was sued because of ``document abuse.''
He explained that the law permits an applicant to choose which
document the applicant presents to an employer from a list of
acceptable documents to prove the applicant's identity and work
eligibility. The employer cannot request the applicant to
present more or different documents than are required. In
addition, the employer must accept a document which, on its
face, appears to be genuine and relates to the person who
presents it. Failure to comply with this regulatory requirement
can lead to a fine of up to $2,000 per violation.
Mr. Henderson testified that the OSC is woefully
underfunded, operating on a budget of only about $6 million a
year and with a staff of approximately 30 employees. He stated
that the employer sanctions have not worked to decrease illegal
immigration and should be re-examined.
Examination of the U.S. and Canada Safe Third Country Agreement
On August 30, 2002, Safe Third Country Agreement final
draft text was initialed by our Administration as one point of
the 30 point Ridge-Manley Smart Border Action Plan between the
U.S. and Canada. Under the agreement, if an alien seeks to
travel from the United States to Canada through a land border
port of entry to apply for asylum in Canada, the alien will
generally be sent back to the U.S. to apply for asylum. If an
alien travels from Canada to the U.S. for the same purposes,
the alien must seek asylum in Canada, the first of the two
countries in which the alien traveled. The intent is to prevent
asylum shopping in both the U.S. and Canada. The policy behind
the agreement is that an alien is safe in either country and
should seek asylum in the first country in which the alien
lands.
Because this draft agreement was creating significant
controversy, the Subcommittee held a hearing to examine its
pros and cons on October 16, 2002. The witnesses were Kelly
Ryan, Deputy Assistant Secretary, Bureau of Population,
Refugees, and Migration, U.S. State Department, Joe Langlois,
Director of the Asylum Division, INS, Mark Krikorian, Executive
Director, Center for Immigration Studies, and Bill Frelick,
Director, Amnesty International.
Ms. Ryan testified that negotiations on this matter were
undertaken at the request of the Canadian government. She
stated that approximately one-third of asylum applicants in
Canada pass through the U.S. first. Thus, such an agreement
would be more beneficial to Canada than it would be to the U.S.
The greatest challenge is determining an asylum seeker's travel
itinerary before making a claim and hence determining which
country is responsible for adjudicating that claim, Ryan
stated. To avoid debates with Canada over whether an applicant
did or did not transit the U.S. en route to Canada, the
proposal would be limited to land border ports of entry. Only
at ports of entry will there be incontrovertible evidence that
an alien was physically present in one of our two countries
before applying for asylum in the other.
Ryan testified that in contrast to the EU approach, this
proposal would not attempt to substantively harmonize the U.S.
and Canadian asylum systems. She explained several reasons why
asylum seekers prefer to apply in Canada rather than in the
U.S. Some are attracted by Canadian social welfare benefits.
Others may seek to file a second application after having a
claim rejected in the U.S. Others have strong family,
community, or language ties to Canada. Family ties caused the
U.S. to propose several family member exceptions in the
agreement. Finally, Ryan stated that the U.S. has no intention
to expand this bilateral agreement to include third countries.
Mr. Langlois explained that the proposed agreement is
founded on the premise that there can appropriately be limits
on the ability of an asylum seeker to choose a country of
refuge so long as that asylum seeker has a full and fair
opportunity to present a claim for protection and to receive
asylum if the applicant is a true refugee.
The proposed agreement contains an exemption for family
members so that asylum seekers with spouses, sons, daughters,
parents, legal guardians, siblings, grandparents,
grandchildren, aunts, uncles, nieces, and nephews in the U.S.
or Canada will be allowed to reunite with their family members
in either country, as long as the relative has lawful status
(other than as a visitor) or him or herself has a pending
asylum claim in that country. Langlois also explained that the
agreement contains exceptions for unaccompanied minors.
Mr. Krikorian testified that this agreement is a logically
and morally necessary part of any asylum system. He analogized
asylum to giving a drowning man a berth in a lifeboat. A
genuinely desperate man grabs at the first lifeboat that comes
his way. A person who seeks to pick and choose among lifeboats
is, by definition, not seeking immediate protection, but
instead seeking immigration.
Krikorian acknowledged that, in the short run, the U.S.
will face an increase of asylum applicants as a result of the
agreement because more people will be returned to the U.S. than
returned to Canada, mostly due to air travel patterns. However,
he stated that this is not an argument against the agreement
because it should be considered a first step in reaching
similar agreements with other safe countries transited by
asylum seekers, particularly EU countries and perhaps Mexico.
Mr. Frelick opposed the agreement. He referenced the INS's
estimates that about 200 people a year come from Canada to the
U.S. to seek asylum while about 15,000 people went to Canada
from the U.S. to apply for asylum. With a backlog of over
250,000 asylum cases, Frelick argued that it made no sense to
knowingly increase our asylum application backlog.
He disputed that asylum shopping was in fact a problem,
stating that most asylum applicants want to apply in Canada but
are stopped upon arrival at a U.S. airport and simply lodge an
asylum application as a way of avoiding deportation and
detention before later proceeding to their desired location of
Canada. Frelick also stated that because the agreement only
applies to land border port of entry crossing, illegal border
crossings and smuggling will rise.
Mr. Felick questioned how the exceptions would be
adjudicated. How would the governments determine whether an
applicant really is a family member of someone in the second
country? He concluded that this agreement has nothing to do
with national security and solves no visible problem.
Request for GAO on the INS Forensic Document Lab
In April 2001, the Chairmen of the Judiciary Committee and
the Subcommittee requested that the General Accounting Office
review and issue a report on the INS Forensic Document Lab. The
INS has one forensic document lab to handle all requests for
forensic examinations for deportation/removal hearings, asylum,
and inspection cases for the U.S. Located in McLean, Virginia,
this lab also handles requests from federal, state, and local
agencies, including the State Department, FBI, and ATF, because
it has the largest known collection of document exemplars.
With the INS's increased case load, the FDL has been unable
to investigate many of the cases sent to it by INS trial
attorneys, inspectors, and asylum officers in a timely manner.
Thousands of case documents are sent to the lab because
document fraud is such a prevalent problem. However, due to the
lab's backlog, many documents are not examined in time for
scheduled immigration removal hearings months later. As a
result, cases go forward in which INS trial attorneys suspect
fraud and aliens often receive relief from deportation.
Because of the Committee's concern regarding document
fraud, the Committee asked the GAO to ascertain the
capabilities of the FDL, the number of cases the lab receives
each year, the types of requests the lab receives, whether the
lab is capable of detecting the most sophisticated document
counterfeiting and alteration methods, the priorities of the
lab, the percentage of cases the lab is able to complete by the
requested deadline, the lab's budget, and the lab's staff
level.
The GAO issued its report, ``INS Forensic Document
Laboratory--Several Factors Impeded Timeliness of Case
Processing'' (GAO-02-410), in March 2002. The GAO determined
that the INS established a forensic case priority system in FY
99 to ensure that certain categories of cases received priority
attention by FDL examiners. Despite the new system, the FDL's
overdue caseload and case completion time for its highest-
priority cases--custody and criminal cases--were higher in FY
01 than in FY 00. In addition, case completion time increased
on average from 12 to 19 days for custody cases and from 11 to
34 days for criminal cases.
With a January 2002 supplemental appropriation by Congress,
the FDL planned to nearly double its lab staff size and budget.
However, because the lab would need time to recruit, hire, and
train the new staff, the impact of these increases on case
completion time and reduction in pending caseloads would not be
immediate and was unknown as of the report printing.
The GAO made the following recommendations to the Attorney
General in its report: collect and analyze data on requesters'
deadlines for obtaining forensic case results so that the lab
can better ensure that cases are processed in an order that is
optimally responsive to both the requesters' needs and INS's
case priority system, and collect and analyze data on the total
amount of time spent processing forensic cases to help the lab
better manage its workload, project staff and budgetary needs,
and establish benchmarks for case deadlines that are based on
requesters' needs. The INS concurred with the GAO's
recommendations, stating that the agency is evaluating
requirements for an enhanced automated case management system
that will enable the lab to effectively implement the report
recommendations.
Request for GAO report on immigration benefit fraud
In April 2001, the Chairmen of the Judiciary Committee and
the Subcommittee requested that the GAO study and report on
immigration benefit fraud. The GAO issued its report
``Immigration Benefit Fraud--Focused Approach is Needed to
Address Problems'' (GAO-02-66), in January 2002. The GAO
reported that the INS does not empirically know the extent of
the immigration benefit fraud problem. However, reports and INS
officials indicate that the problem is pervasive, rampant and
significant and will increase as smugglers and other criminal
enterprises use fraud as another means of bringing illegal
aliens, including criminal aliens, into the country.
GAO concluded that several problems have hampered INS's
immigration benefit fraud investigations. First, the interior
enforcement strategy does not lay out a comprehensive plan to
identify how components within and among the service centers
and district offices are to coordinate their immigration
benefit fraud investigations. Second, INS has not established
guidance for opening immigration benefit fraud investigations
or for prioritizing investigative leads. Third, the INS does
not have an effective and efficient capability for tracking and
managing agency-wide investigations. Finally, information
sharing among offices is remarkably inadequate.
The GAO recommended that the Attorney General direct the
INS Commissioner to revise INS's interior enforcement strategy
to better integrate its many units, including the service
centers' operations units involved in benefit fraud
enforcement, to effectively coordinate limited resources and to
address crosscutting policy and procedural or logistical
problems, revise INS's strategy to determine how INS should
balance its dual responsibilities of processing applications in
a timely manner and detecting fraudulent applications, develop
guidance for INS's investigative units at the district office
and service centers to use in deciding which benefit
application fraud cases to pursue, use the criminal
investigative reporting system, or develop another method, to
track and manage benefit fraud investigations, so that INS can
maintain data on individuals and organizations that are or have
been the target of investigations, determine the actions and
related costs that would be associated with providing
adjudicators access to INS databases for reviewing applications
for alien benefits, and if appropriate, provide adjudicators
such access, and establish outcome-based performance measures
for benefit fraud investigations against which to gauge the
success of these efforts.
In its response to the report, the INS agreed with GAO's
recommendations with one exception. While the INS agreed that
it should more effectively detect fraudulent applications and
process applications in a more timely manner, it did not
believe that both issues should be addressed by the interior
enforcement strategy. INS cited the pending restructuring plan
that divides INS's enforcement and service missions into two
distinct bureaus.
This Committee's repeated requests of the INS for fraud
percentages in various benefit application forms and this GAO
report prompted the INS to initiate a benefit fraud assessment
of its application forms in January 2003. The Committee will
monitor the agency's assessment, the results, and future
strategies to detect fraud, deny fraudulent applications, and
punish the applicants.
Oversight of the State Department's Visa Condor Program
Following the September 11, 2001, attacks, attention was
focused on the State Department's issuance of visas to citizens
of countries from which the hijackers came. In the week after
the attacks, Committee and Subcommittee staff began meeting
with State Department officials to urge corrective changes in
the visa review and issuance process. Thereafter, the State
Department implemented procedures under which aliens from
specific countries would be subjected to heightened scrutiny
before being issued visas.
Following the September 11 attacks, the process by which
the State Department issues visas received strong criticism. In
apparent response to public and internal concerns about its
visa-issuance procedures, the State Department, in conjunction
with other Executive branch components, began an extensive
review of those procedures as they relate to the national
security. In November 2001, staff received a briefing on a
State Department plan to perform additional background checks
on certain visa applicants. The ``20-day'' name check went into
effect on November 14, 2001, and applied to all male visa
applicants between the ages of 16 and 45 from specified
countries (the exact list of which is classified). The State
Department's Consular Lookout Automated Support System (CLASS)
\6\ automatically placed a hold on these applications, so that
a visa could not be issued in less than 20 days. While this
hold was pending, the visa application information was
electronically transmitted to the FBI for the name check. On
the 21st day, CLASS released the hold and prompted the consular
officer to make a visa decision. If the consular officer had
not received a negative response on an applicant, the visa
could be issued.
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\6\ CLASS is a database that includes name-check information from
overseas and domestic State Department offices, INS, Customs, FBI and
CIA.
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In January 2001, the State Department instituted a 30-day
name check, called ``Visas Condor,'' for visa applicants who
fall within the 20-day name check and fit certain additional,
classified, criteria. Aliens meeting the Condor criteria were
required to complete a supplemental visa application form,
information from which was sent to the United States in a cable
for review. Name checks were originally performed by the CIA
and FBI as a part of this process. The Visas Condor security
check applied only to visas adjudicated after January 2002, and
did not apply to previously issued visas.
On September 20, 2002, representatives of the State
Department, CIA, and Justice Department (representing the FBI)
updated Committee and Subcommittee staff on the implementation
of Visas Condor. Up until July 2002, consulates were told to
hold applications for aliens to whom Visas Condor applied for
30 days, and then process any applications for which the
consulate had not received a response. In July, consulates were
told to wait for a response before issuing a visa in a Visas
Condor case, creating a massive backlog. In September, the
process was changed, with FBI assuming responsibility for
performing the name checks. Under the new procedures, FBI will
refer an application to the State Department for forwarding to
CIA only if checks result in a possible match. The State
Department hopes to reduce the processing time for applications
in which there are no hits to 10 days.
Prior to the implementation of these procedures, between
April and July 2002, the Foreign Terrorist Tracking Task Force
(FTTTF), an interagency group operating under the auspices of
the Justice Department, assumed primary responsibility for
Visas Condor name checks for the FBI.\7\ According to a GAO
report released in October 2002, of 38,000 cables processed as
of August 1, 2002, the FTTTF identified 280 visa applicants
``who should not receive a visa under the'' terrorism
provisions of the Immigration and Nationality Act. The
Department of State received the refusal recommendations for
approximately 200 of these applicants after the 30-day hold had
expired and the visas had been issued. This number was lowered
to 105 in subsequent published reports. According to
information recently received by the Subcommittee, as of
December 3, 2002, FTTTF has withdrawn its objection to the
issuance of 59 of those 105 cases, and the remaining 46 are
pending with the FTTTF.
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\7\ In July 2002, the FBI streamlined its internal procedures for
providing Visas Condor responses to the State Department and moved the
primary responsibility for Condor name checks from the FTTTF to the
FBI's National Name Check Program.
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On November 11, 2002, staff received a briefing from the
State Department on a change in visa procedures for three
``low-risk'' categories of visa applicants: scientists,
immigrants, and refugees.Each of these categories is subject to
special clearance procedures, and were previously subject to a hold on
issuance pending a positive response. Under the revised procedures,
visas may be issued to aliens subject to the procedures if no response
is received in 15 days, 30 days, and 45 days, respectively. Consulates
must still receive a positive response on Visa Condor cases before
issuing visas.
Committee and Subcommittee staff were briefed on the
problems that the State and Justice Departments have had in
implementing Visas Condor on December 12, 2002. As the State
Department, and to a lesser degree, the FBI and Justice
Department further refine the Visas Condor name-check system,
the Committee and Subcommittee will continue to oversee the
implementation of those checks.
Oversight of foreign guestworker programs
On February 16, 2001, President Bush and Mexican President
Fox issued a joint statement that ``we agree there should be an
orderly framework for migration which ensures humane treatment,
legal security, and dignified labor conditions. For this
purpose, we are instructing our Governments to engage, at the
earliest opportunity, in formal high-level negotiations aimed
at achieving short and long-term agreements that will allow us
to constructively address migration and labor issues between
our two countries.'' The Committee conducted a careful review
of guestworker issues in the expectation that President Bush
would propose a new guestworker program as an outgrowth of
these negotiations with Mexico.
The review first focused on the Bracero program. In 1942,
in response to the U.S. manpower shortage arising from World
War II, the United States and Mexico negotiated a treaty
permitting the entry of Mexican farm workers, known as
``braceros''. This emergency wartime measure was the beginning
of the Bracero program, which continued under various legal
authorizations for 22 years and involved approximately 5
million Mexican workers.
In ``Guestworker Programs: Evidence from Europe and the
United States and some Implications for U.S. Policy'',\8\
Joshua Reichert & Douglass Massey write that:
\8\ 1 Population Research and Policy Review 1 (1982).
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An increasing body of research indicates that the Bracero
Program was pivotal in building a tradition of migration to the
United States. * * *
[B]raceros were able to build up a network of interpersonal
relations and social ties upon which future migration could
and, indeed, did eventually become self-sustaining in the
absence of active recruitment by the United States government.
* * * * * * *
[I]n the long run the Bracero Program was far from
temporary. When the program was phased-out in 1964, former
braceros did not cease migrating to the United States as had
been anticipated. Rather, they continued to enter the country,
legally if possible, but if not, then as undocumented migrants.
In a very real sense, therefore, the phenomenal growth in
illegal immigration to the United States over the past 15 years
represents an unintended result of the Bracero Program.
The Committee then looked at the experience of Germany with
guestworkers. Well funded under the Marshall Plan, the German
economy developed at an astonishing rate in the post-war
period. With the growing economy came a tremendous increase in
the amount of jobs in the country. In contrast, World War II
decimated the German workforce. The war left a substantial void
in the demographic of working age men in the German population.
Initially, the void of laborers was filled by defectors from
the newly formed communist East Germany; however, the need for
laborers quickly surpassed the number of defectors. In
response, the German government opted to create a program to
recruit temporary foreign workers. It was expected that these
jobs (mostly factory, agricultural and mining jobs), when
automated, would eliminate the need of temporary workers
causing the workers to return to their home countries. The
number of workers increased steadily throughout the years; in
1956, there were 95,000 foreign workers in Germany, by 1966,
there were 1.3 million, climbing to 2.6 million in 1973.
Although German officials and foreign workers alike
maintained that their residency in Germany was temporary, all
signs pointed to the opposite. Many German employers persuaded
their workers to stay, thus saving the costs of retraining new
workers. The German government abetted this practice by not
strictly enforcing rotation, mandated as part of the
guestworker program. The government also increased the rights
of the workers with each renewal of a work permit; for example,
after one year of satisfactory work and suitable
accommodations, the worker could send for his family. Immigrant
populations swelled rapidly. With workers bringing their wives
and children to live with them, it became apparent that the
guests were planning on staying permanently. Children of
immigrants were attending German schools and speaking German.
Second generation workers who were born in Germany were
unfamiliar with the country from which their parents emigrated,
thus, they had no intention of returning.
This caused a backlash in Germany. The German government
made repeated attempts to prevent the number of foreign workers
from rising. However, as guestworkers already present brought
more and more family members to Germany, the overall population
of foreigners in Germany has been ever increasing since the
early 1970's despite the lack of new guestworkers.
In their book ``Administering Foreign-Worker Programs'',
Mark Miller and Philip Martin found that:
[E]uropean governments did not expect foreign-worker
employment to result in large-scale permanent
immigration. Foreign workers were expected to be a
temporary or complementary work force, which eventually
returned home. To the contrary, a large number of
foreign workers have become long-term residents of
Europe, and foreign-worker policies have become de
facto but still not fully acknowledged immigration
policies. * * * [R]epatriation of foreign workers and
their dependents who do not voluntarily return has
proven to be a difficult, if not impossible, goal to
attain.
In retrospect, one fundamental miscalculation of
European alien-labor policies was underestimation of
the human dimensions of alien-worker employment. As
foreign-worker policies were progressively improved
over the years, facilitating family entry and other
measures to improve the lot of foreign workers,
European governments undercut theirown policy goal of
short-term foreign-worker employment.* * * By the time unfavorable
economic conditions moved governments to implement the expectation of
return, many foreign workers had such long continuous residency due to
permit renewal that they could not be forced to return home.
On April 12, 2001, Chairman Sensenbrenner and Subcommittee
Chairman Gekas sent a letter to President Bush stating in part
that:
The most significant item on the Mexican agenda is
the creation of a new guestworker program in the United
States for Mexican workers and the consequent
``regularization'' of Mexicans illegally present in the
United States. Such a request must be viewed through
the prism of past large-scale guestworker programs both
in the United States and Europe.
In the United States, the Bracero program from 1942
to 1964 brought in millions of Mexican workers to do
agricultural labor. The program attempted to safeguard
guestworkers and domestic workers alike, but
guestworkers were still, unfortunately, exploited.
Millions of dollars from laborers' earnings, sent to
Mexican banks for the workers' retirement, disappeared.
Significant illegal immigration coexisted with the
Bracero program and the program's end stimulated this
illegal flow, as formerly legal workers continued to
return to the U.S. and work illegally.
Europe's experience with guestworker programs since
the end of World War II, such as with Turkish workers
in Germany, has been that ``temporary'' workers often
ended up staying permanently (despite the best efforts
of the host government). This created a permanent
underclass of ``temporary'' workers and their families.
In light of this history, several questions about any
proposed new guestworker program, especially one that
is expanded beyond the agricultural sector, must be
answered.
First, would a guestworker program constitute an
amnesty for illegal aliens now here in the United
States, especially if it offers permanent residence
after a term as a guestworker?
Second, would a program contain any real method to
guarantee that guestworkers return home? As long as the
wage differential between Mexican and U.S. jobs remains
as great as it is, such a method might be difficult to
find.
Third, would a guest-worker program contain any
protections for American workers? If the only
requirement would be that guestworkers be paid the
minimum wage, guestworkers might be used to flood the
labor market and drive down wages in various
industries.* * * Would businesses be required to
recruit American workers, be prohibited from replacing
American workers with Mexicans, and be required to
focus on long-term solutions to labor needs?
On June 19, 2001, the Subcommittee on Immigration and
Claims held an oversight hearing on Guestworker Visa Programs.
Witnesses were Susan Martin, Institute for the Study of
International Migration, Georgetown University, Randel Johnson,
Vice President, Labor and Employee Benefits at the U.S. Chamber
of Commerce, Mark Krikorian, Executive Director of the Center
for Immigration Studies, and Cecilia Munoz, Vice President of
the Office of Research Advocacy and Legislation, National
Council of La Raza.
Oversight of the Visa Waiver Program
The Visa Waiver Program allows aliens traveling from
certain designated ``low-risk'' countries to come to the United
States as temporary visitors for business or pleasure without
having to obtain the nonimmigrant visa normally required to
enter the United States. There are currently 28 countries,
mostly European, participating in the VWP. In fiscal year 2001,
17.1 million aliens entered the U.S. under the VWP. The program
is of great importance to the U.S. travel and tourism industry.
The Department of Justice's Office of Inspector General
issued a report in 1999 on the ``Potential for Fraud and INS's
Efforts to Reduce the Risks of Visa Waiver Pilot Program''. The
report concluded that ``[a]buse of the [VWP] poses threats to
U.S. national security * * *.'' It stated that ``it is believed
that thousands of * * * mala fide [VWP] applicants--those
individuals using fraudulent VWP passports or individuals with
fraudulent intent using valid [VWP] passports--successfully
entered the United States without being intercepted'' and that
``the [VWP] provides an avenue for terrorists, criminals, and
other inadmissible applicants to enter the United States''.
The VWP is based on the premise that nationals of
participating countries pose little risk of being security
threats or overstaying the period of their admittance.
Therefore, there is no need for prescreening by State
Department consular officers abroad who would normally review
documents provided by a visa applicant and interview the
applicant to determine whether he or she posed a danger or was
likely to overstay.
While this premise might have been true in years past
regarding nationals of wealthy and democratic European
countries that make up the bulk of VWP participants, it is
questionable whether it is true today. The New York Times
reported on December 28, 2001, that a ``world of Muslim
militancy * * * took root in Europe in the 1990's'' and that
``Europe became the forward operating base for Islamic terror
over the last decade.''
There seems to be a high risk that Western intelligence
services have no idea as to the identity of many terrorists who
are nationals of VWP countries. If they tried to enter the U.S.
under the VWP, their names would not come up on any lookout
system. All they would need to enter would be a passport. In
fact, a number of terrorists have already gained access to the
U.S. or U.S.-bound aircraft through the use of passports of VWP
countries that were issued to them in a legitimate fashion.
Zacarias Moussaoui, the putative ``20th hijacker'' on September
11, came to the U.S. as a French national under the VWP.
Richard Reid, the ``shoe-bomber'', had gotten aboard a U.S.-
bound flight from Paris using a British passport that the
French government believes to be legitimately his.
The Department of Justice Inspector General's 1999 report
on the VWP stated that the ``INS estimates that over 100,000
blank [VWP] passports have been stolen in the past several
years.'' The report went on to state that ``passports of [VWP]
countries are in demand on the black market.
The VWP is vulnerable in a number of ways to aliens seeking
entry to the U.S. possessing European passports that have been
stolen while blank and then modified to identify the aliens.
First, while the federal government does maintain a database of
lost or stolen VWP country passports thatis used by INS
inspectors at ports of entry, the IG found that VWP countries do not
always report lost or stolen passports to the U.S. government. INS
inspectors told IG investigators that ``some countries are reluctant to
provide data on stolen passports.''
The next vulnerability is that the numbers of passports
reported stolen or lost by VWP countries are not always entered
into the lookout database, or not entered in a timely manner.
The IG found that the ``INS did not systematically collect
information on all stolen passports and did not create lookout
records based on the information that it did receive.'' This
was because ``[t]here is no single entity within INS
responsible for the collection of information on stolen
passports'' and ``no single office within INS * * * responsible
for systematically entering stolen passport numbers into the
lookout system.
The IG recommended that the INS ``[d]esignate a unit to
systematically collect information on stolen blank [VWP]
passports and ensure timely * * * entry of stolen passport
numbers into the lookout system.'' The IG's 2001 follow-up
report stated that the INS did issue a memorandum to district
directors in October 1999 consolidating functions in the INS
``Lookout Unit.'' However, the IG found that ``these policies
are not being followed.''
The next vulnerability is that the passport numbers that
are entered into the database or are queried against the
lookout system are often incorrect. The IG found in 1999 that
in the cases of 112 of the 1,067 passports studied, there were
discrepancies between the passport numbers as they were
reported stolen and the passport numbers as they were entered
into the lookout system. The major problem was that some
passports contain multiple numbers, including serial or issuing
numbers. Obviously, ``[i]f the INS inspector queries a number
other than the passport number that was used to create the
lookout record, or if the lookout record was created using a
number other than the passport number, a match will not be
found.'' The IG recommended that the INS ``[d]evelop clear
guidelines for the entry of passport numbers when creating
lookout records.'' The IG in 2001 found that while the October
1999 memo to district directors contained guidelines on which
number on a passport to enter into the lookout system,
``[i]nterviews with INS officials at the four [ports of entry]
indicate a lack of uniformity among ports as to which passport
number they enter for lookout records.''
The last major vulnerability is that the passport numbers
of aliens arriving under the VWP are not always checked against
the lookout system by INS inspectors. The IG found that the
reason for this was primarily that INS inspectors had, on
average, less than one minute to check and decide on each
foreigner arriving at an airport and that INS inspectors thus
usually manually entered passport numbers only if they had
suspicions about particular individuals. The IG recommended
that the INS ``[m]odify primary inspection policy to ensure
that the passport number of each [VWP] applicant is checked
against the lookout system.''
Unfortunately, the IG found in 2001 that while the INS's
October 1999 memorandum to district directors did direct that
inspecting officers at air and sea ports of entry query the
passport number of all applicants for admission, including VWP
applicants, it was likely that this was still not being done
consistently at all ports of entry.
For all these reasons, the IG concluded that ``[i]t is
difficult for the INS to ensure that inadmissible aliens with
fraudulent VWP passports are reliably refused entry into the
United States. * * *'' The threat of terrorists using stolen
passports to gain entry to the U.S. under the visa waiver
program is not entirely theoretical. The AP reported that a
search of abandoned Al Qaeda caves in Afghanistan found ``blank
U.S. and European passports.''
On February 28, 2002, the Subcommittee in Immigration and
Claims held an oversight hearing on Implications of
Transnational Terrorism and the Argentine Economic Collapse for
the Visa Waiver Program. Witnesses included Glen Fine,
Inspector General, U.S. Department of Justice, Peter Becraft,
Deputy Commissioner, INS, Yonah Alexander, Professor, Potomac
Institute for Policy Studies, and William Norman, President,
Travel Industry Association of America. A short time after this
hearing took place, Argentina was suspended from participation
in the VWP.
SUBCOMMITTEE ON THE CONSTITUTION \1\
STEVE CHABOT, Ohio, Chairman
JERROLD NADLER, New York WILLIAM L. JENKINS, Tennessee
BARNEY FRANK, Massachusetts LINDSEY O. GRAHAM, South Carolina
JOHN CONYERS, Jr., Michigan SPENCER BACHUS, Alabama
ROBERT C. SCOTT, Virginia JOHN N. HOSTETTLER, Indiana
MELVIN L. WATT, North Carolina MELISSA A. HART, Pennsylvania,
Vice Chair
LAMAR S. SMITH, Texas
ASA HUTCHINSON, Arkansas \2\
J. RANDY FORBES, Virginia \3\
----------
\1\ Subcommittee chairmanship and assignments approved January 31,
2001.
\2\ Asa Hutchinson, Arkansas, resigned from the House effective
midnight August 6, 2001.
\3\ J. Randy Forbes, Virginia, assignment to the subcommittee approved
June 13, 2002.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 122
Legislation on which hearings were held........................... 6
Legislation reported favorably to the full Committee.............. 5
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 3
Legislation pending before the full Committee..................... 0
Legislation reported to the House................................. 8
Legislation discharged from the Committee......................... 4
Legislation pending in the House.................................. 1
Legislation failed passage by the House........................... 1
Legislation passed by the House................................... 10
Legislation pending in the Senate................................. 4
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into Public Law............................... 4
Days of legislative hearings...................................... 6
Days of oversight hearings........................................ 10
Jurisdiction of the Subcommittee
The Subcommittee on the Constitution has legislative and
oversight responsibility for the Civil Rights Division and the
Community Relations Service of the Department of Justice, as
well as the U.S. Commission on Civil Rights and the Office of
Government Ethics. General legislative and oversight
jurisdiction of the Subcommittee includes civil and
constitutional rights, civil liberties and personal privacy,
federal regulation of lobbying, private property rights,
federal ethics laws, and proposed constitutional amendments.
Legislative Activities
H.R. 2175, Born-Alive Infants Protection Act of 2002 (Pub. L. No. 107-
207)
Summary.--It has long been an accepted legal principle that
infants who are born alive, at any stage of development, are
persons who are entitled to the protections of the law. But
recent changes in the legal and cultural landscape have brought
this well-settled principle into question. These changes have
allowed our culture and legal community to accept the notion
that once a child is marked for abortion, it is wholly
irrelevant whether that child survives an abortion and emerges
from the womb as a live baby. That child may still be treated
as though he or she did not exist, and would not have any
rights under the law--no right to receive medical care, to be
sustained in life, or to receive any care at all. Credible
public testimony received by the Subcommittee on the
Constitution indicates that this is, in fact, already
occurring. According to eyewitness accounts, ``induced-labor''
or ``live-birth'' abortions are indeed being performed,
resulting in live-born premature infants who are simply allowed
to die, sometimes without the provision of even basic comfort
care such as warmth and nutrition.
H.R. 2175, the ``Born-Alive Infants Protection Act of
2001,'' provides that, for purposes of federal law, ``the words
`person,' `human being,' `child,' and `individual,' shall
include every infant member of the species homo sapiens who is
born alive at any stage of development.'' The term ``born
alive'' is defined as ``the complete expulsion or extraction
from its mother of that member, at any stage of development,
who after such expulsion or extraction breathes or has a
beating heart, pulsation of the umbilical cord, or definite
movement of the voluntary muscles, regardless of whether the
umbilical cord has been cut, and regardless of whether the
expulsion or extraction occurs as a result of natural or
induced labor, cesarean section, or induced abortion.'' This
definition of ``born alive'' was derived from a model
definition of ``live birth'' that has been adopted, with minor
variations, in thirty states and the District of Columbia.
Legislative History.--H.R. 2175, the ``Born-Alive Infants
Protection Act of 2001,'' was introduced by Constitution
Subcommittee Chairman Steve Chabot on June 14, 2001. On July
12, 2001, the Subcommittee on the Constitution held a hearing
on H.R. 2175 at which testimony was received from the following
witnesses: Hadley Arkes, Ney Professor of Jurisprudence and
American Institutions, Amherst College; Jill L. Stanek, R.N.,
formerly of Christ Hospital, Oak Lawn, Illinois; Watson A.
Bowes, Jr., M.D., professor emeritus of Obstetrics and
Gynecology, School of Medicine, University of North Carolina at
Chapel Hill. Additional material was submitted by Matthew G.
Hile, Ph.D.; F. Sessions Cole, M.D.; Gordon B. Avery, M.D.,
Ph.D.; Advocate Christ Medical Center; and Jill. L. Stanek,
R.N. On July 12, 2001, the Subcommittee on the Constitution met
in open session and ordered favorably reported the bill H.R.
2175, without amendment, by a voice vote, a quorum being
present. On July 24, 2001, the Committee met in open session
and ordered favorably reported the bill H.R. 2175 without
amendment by a recorded vote of 25 to 2, a quorum being
present. (H. Rept. 107-186). On March 12, 2002, H.R. 2175 was
passed by the House after a motion to suspend the rules and
pass the bill was agreed to by voice vote. On July 18, 2002,
H.R. 2175 passed the Senate after a motion to suspend the rules
and pass the bill was agreed to by voice vote. On July 26,
2002, H.R. 2175 was presented to the President and on August 5,
2002, it was signed into law by President Bush, becoming Pub.
L. No. 107-207.
H.R. 476, Child Custody Protection Act
Summary.--H.R. 476, the ``Child Custody Protection Act,''
has two primary purposes. The first is to protect the health
and safety of young girls by preventing valid and
constitutional state parental involvement laws from being
circumvented. The second is to protect the rights of parents to
be involved in the medical decisions of their minor daughters.
To achieve these purposes, H.R. 476 makes it a federal offense
to knowingly transport a minor across a state line, with the
intent that she obtain an abortion, in circumvention of a
state's parental consent or parental notification law. A
violation of the Act is a Class One misdemeanor, carrying a
fine of up to $100,000 and incarceration of up to one year.
H.R. 476 does not supercede, override, or in any way alter
existing state parental involvement laws. Nor does the Act
impose any parental notice or consent requirement on any state.
H.R. 476 would prevent the interstate transportation of minors
in order to circumvent valid, existing state laws by using
Congress's authority to regulate interstate activity to protect
those laws from evasion.
Legislative History.--H.R. 476, the ``Child Custody
Protection Act,'' was introduced by Rep. Ileana Ros-Lehtinen on
Feb. 6, 2001. The Subcommittee on the Constitution held a
hearing on H.R. 476 on September 6, 2001, at which testimony
was received from the following witnesses: Ms. Eileen Roberts,
Mothers Against Minors' Abortions, Inc.; Professor John C.
Harrison, Professor of Law, University of Virginia School of
Law; Rev. Katherine Ragsdale, Vicar, St. David's Episcopal
Church; and Ms. Teresa S. Collett, Professor of Law, South
Texas College of Law. Additional material was submitted by the
Honorable Ileana Ros-Lehtinen; Mr. Laurence H. Tribe, Tyler
Professor of Constitutional Law, Harvard University and Mr.
Peter J. Rubin, Associate Professor of Law, Georgetown
University; Bill and Karen Bell; and the Center for
Reproductive Law and Policy. On February 7, 2002, the
Subcommittee on the Constitution met in open session and
ordered favorably reported the bill H.R. 476, without
amendment, by a voice vote, a quorum being present. On March
20, 2002, the Committee met in open session and ordered
favorably reported the bill H.R. 476, without amendment, by a
recorded vote of 19 to 6, a quorum being present. (H. Rept.
107-387). On April 17, 2002, the House passed H.R. 476 by a
vote of 260 to 161. On April 17, 2002, H.R. 476 was received in
the Senate, read twice, and referred to the Committee on the
Judiciary. No further Senate action was taken on the measure.
H.R. 1022, Community Recognition Act of 2001
Summary.--The purpose of H.R. 1022 was to ensure that the
rules of etiquette for flying the flag of the United States do
not preclude the flying of flags at half mast when ordered by
city and local officials. The legislation would have authorized
the chief elected leader of a city or other locality, in the
event of the death of a present or former official of that
particular locality, to proclaim that the national flag be
flown at half staff.
4 U.S.C. Sec. 7(m) grants authority to the President of the
United States or the Governor of any State, territory, or
possession to order that the national flag be flown at half
staff in recognition of the death of a current or former
official of the government under which they preside. Local
officials may order the national flag flown at half mast only
with the direct permission of the President or their Governor.
Permission sought is not always timely, which results in the
missed opportunity to properly honor the individual in
question. H.R. 1022 would have permitted the chief elected
official of local government entities, such as cities, towns,
counties, or other like traditional political subdivisions, to
honor those leaders or public servants who either died in the
line of duty or passed away following a distinguished career in
public service by ordering the national flag flown at half
staff.
While the Code does not expressly outlaw the common
practice of lowering the flag in honor of local heroes it,
neither does it expressly permit such activity. This ambiguous
wording has upset local officials across the country who
believe that communities should have the right to honor their
fellow citizens without the express and time consuming
permission of either the President or their corresponding
Governor.
Legislative History.--On March 14, 2001, H.R. 1022 was
introduced by Representative Doolittle of California, and
subsequently referred to the Committee on the Judiciary. On
November 15, 2001 the Committee ordered reported the bill
favorably to the House, with amendment, by a voice vote. On
November 29, 2002 the Committee filed the report, H. Rept. 107-
305. On November 15, 2002, the House passed the bill by the
Yeas and Nays, 420--0, and subsequently was referred to the
Senate Judiciary Committee, which took no further action.
H. Res. 459, expressing the sense of the House of Representatives that
Newdow v. U.S. Congress was erroneously decided, and for other
purposes
Summary.--On June 26, 2002, the United States Court of
Appeals for the Ninth Circuit, in Newdow v. U.S. Congress, 292
F.3d 597 (9th Cir. 2002), held that the Pledge of Allegiance is
an unconstitutional endorsement of religion, stating that it
``impermissibly takes a position with respect to the purely
religious question of the existence and identity of God,'' and
places children in the ``untenable position of choosing between
participating in an exercise with religious content or
protesting.'' Id. at 609. The purpose of H. Res. 459 was to
express the sense of the House that Newdow v. U.S. Congress was
erroneously decided.
Legislative History.--On June 26, 2002, H. Res. 459,
expressing the sense of the House of Representatives that
Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), was
erroneously decided, and for other purposes was introduced by
Judiciary Committee Chairman F. James Sensenbrenner and
referred to the Judiciary Committee's Subcommittee on the
Constitution. On June 27, 2002, Chairman Sensenbrenner moved to
suspend the rules and agree to the resolution. A motion to
suspend the rules and agree to the resolution was agreed to by
a 416 to 3 vote, 11 members voting ``present''. On June 26,
2002, a similar resolution, S. Res. 292, was introduced in the
Senate by Sen. Tom Daschle and was agreed to by a 99-0 vote.
H. Con. Res. 62, expressing the sense of Congress that the George
Washington letter to Touro Synagogue in Newport, Rhode Island,
which is on display at the B'nai B'rith Klutznick National
Jewish Museum in Washington, D.C., is one of the most
significant early statements buttressing the nascent American
constitutional guarantee of religious freedom
Summary.--The purpose of H. Con. Res. 62 was to express the
sense of Congress that George Washington's letter to Touro
Synagogue in Newport, Rhode Island, which is on display at the
B'nai B'rith Klutznick National Jewish Museum in Washington,
D.C., is one of the most significant early statements
buttressing the nascent American constitutional guarantee of
religious freedom. H. Con. Res. 62 also calls for the text of
the letter to be widely circulated, serving as an important
tool for teaching tolerance to children and adults alike.
Legislative History.--H. Con. Res. 62 was introduced by
Rep. Patrick J. Kennedy on March 14, 2001. No hearings were
held on H. Con. Res. 62. On June 28, 2001, the Committee met in
open session and ordered favorably reported the bill H. Con.
Res. 62 with amendment--inserting theactual text of the
letter--by voice vote, a quorum being present. (H. Rept. 107-143). No
further action was taken on the measure in the House. On February 15,
2001, S. Con. Res. 16, expressing the sense of Congress that the George
Washington letter to Touro Synagogue in Newport, Rhode Island, which is
on display at the B'nai B'rith Klutznick National Jewish Museum in
Washington, D.C., is one of the most significant early statements
buttressing the nascent American constitutional guarantee of religious
freedom, was introduced by Sen. Lincoln D. Chafee. On February 15,
2001, S. Con. Res. 16 was referred to the Committee on the Judiciary
which ordered the measure to be reported favorably without amendment.
On July 23, 2001, S. Con. Res. 16 was agreed to in the Senate by
unanimous consent.
H.R. 4965, Partial-Birth Abortion Ban Act of 2002
Summary.--H.R. 4965, the ``Partial-Birth Abortion Ban Act
of 2002,'' bans the partial-birth abortion procedure in which
an intact living fetus is partially delivered until some
portion of the fetus is outside the body of the mother before
the fetus is killed and the delivery completed. A partial-birth
abortion is defined by H.R. 4965 as an abortion in which a
physician ``deliberately and intentionally vaginally delivers a
living fetus until, in the case of a head-first presentation,
the entire fetal head is outside the body of the mother, or, in
the case of breech presentation, any part of the fetal trunk
past the navel is outside the body of the mother for the
purpose of performing an overt act that the person knows will
kill the partially delivered living fetus.'' An abortionist who
violates the ban would be subject to fines or a maximum of two
years imprisonment, or both. H.R. 4965 also establishes a civil
cause of action for damages against an abortionist who violates
the ban and includes an exception for those situations in which
a partial-birth abortion is necessary to save the life of the
mother. H.R. 4965 differs from legislation to ban partial-birth
abortions approved by previous Congresses in that it contained
a revised definition of the banned procedure and includes
Congress's factual findings that, based upon extensive medical
evidence compiled during congressional hearings, a partial-
birth abortion is never necessary to preserve the health of a
woman.
Legislative History.--H.R. 4965, the ``Partial-Birth
Abortion Ban Act of 2002,'' was introduced by Constitution
Subcommittee Chairman Steve Chabot on June 19, 2002. The
Committee's Subcommittee on the Constitution held a hearing on
H.R. 4965 on July 9, 2002. Testimony was received from four
witnesses: Dr. Kathi Aultman, M.D.; Dr. Curtis Cook, M.D.;
Professor Robert A. Destro, Professor of Law, Columbus School
of Law at the Catholic University of America; and Simon Heller,
Consulting Attorney with the Center for Reproductive Law and
Policy. Additional materials were submitted by Dr. Kathi
Aultman M.D.; Dr. Curtis Cook, M.D.; the Center for
Reproductive Law and Policy; Rep. Steve Chabot; and Rep. Randy
Forbes. On July 11, 2002, the Subcommittee on the Constitution
met in open session and ordered favorably reported the bill
H.R. 4965, without amendment, by a vote of 8 to 3, a quorum
being present. On July 17, 2002, the Committee met in open
session and ordered favorably reported the bill H.R. 4965
without amendment by a recorded vote of 20 to 8, a quorum being
present. (H. Rept. 107-604). On July 24, 2002, the House
approved H.R. 4965 by a vote of 274-151, with one member voting
``present''. On July 25, 2002, H.R. 4965 was received in the
Senate. No further Senate action was taken on the measure.
H.J. Res. 36, proposing an amendment to the Constitution of the United
States authorizing the Congress to prohibit the physical
desecration of the flag of the United States
Summary.--H.J. Res. 36 proposes to amend the United States
Constitution to allow Congress to prohibit the physical
desecration of the flag of the United States. The proposed
amendment reads: ``The Congress shall have the power to
prohibit the physical desecration of the flag of the United
States.'' The amendment itself does not prohibit flag
desecration. It merely empowers Congress to enact legislation
to prohibit the physical desecration of the flag and
establishes boundaries within which it may legislate. Prior to
the United States Supreme Court decision in Texas v. Johnson,
491 U.S. 397 (1989), forty-eight states and the Federal
Government had laws prohibiting desecration of the flag. The
purpose of the proposed amendment is to restore to the Congress
the power to protect the flag.
Legislative History.--On March 13, 2001, H.J. Res. 36,
proposing an amendment to the Constitution of the United States
authorizing the Congress to prohibit the physical desecration
of the flag of the United States, was introduced by Rep. Randy
(Duke) Cunningham. No hearings were held on H.J. Res. 36. On
Thursday, May 24, 2001, the Subcommittee on the Constitution
met in open session and ordered favorably reported the bill,
H.J. Res. 36, without amendment, by a vote of 5 to 3, a quorum
being present. On Wednesday, June 20, 2001, the Committee met
in open session and ordered favorably reported the bill, H.J.
Res. 36 without amendment by a recorded vote of 15 to 11, a
quorum being present. (H. Rept. 107-115). On July 17, 2001, the
House passed H.J. Res. 36 by a vote of 298-125. On March 13,
2001, S.J. Res. 7, proposing an amendment to the Constitution
of the United States authorizing the Congress to prohibit the
physical desecration of the flag of the United States, was
introduced by Sen. Orrin G. Hatch. On March 13, 2001, S.J. Res.
7 was referred to the Committee on the Judiciary and on July
15, 2001, the Committee on the Judiciary referred S.J. Res. 7
to its Subcommittee on the Constitution. No further action was
taken on the measure.
H.J. Res 42, memorializing fallen firefighters by lowering the American
flag to half-staff in honor of the National Fallen Firefighters
Memorial Service in Emmitsburg, Maryland
Summary.--H.J. Res. 42 recognizes the thousands of
Americans that have fallen while serving as a fire or emergency
personnel. This joint resolution acknowledges the lowering of
the American flag at the National Fallen Firefighters Memorial
Service held in Emmitsburg, Maryland. H.J. Res. 42 joins the
Federal Government in praise and prayers for our fallen heroes
by lowering the American flag to half-staff on the day of this
memorial service.
Legislative History.--H.J. Res. 42 was introduced on March
29, 2001 by Congressman Castle. On October 2, 2001 the joint
resolution passed the House by a 420-0 vote. On October 4, 2001
the Senate passed the joint resolution by unanimous consent. On
October 16, 2001 the joint resolution was signed by the
President and became Public Law 107-51.
H.J. Res. 67, a proposed amendment to the Constitution that would
authorize governors to appoint persons temporarily to take the
place of Representatives who had died or become incapacitated
in emergency situations
Summary.--H.J. Res. 67 would authorize governors to appoint
persons temporarily to take the place of Representatives who
had died or become incapacitated when 25% or more of all
Representatives were unable to perform their duties. Generally,
under the proposed amendment, each appointee would serve until
a Member was elected to fill the vacancy and each special
election would be held at any time during the 90-day period
beginning on the date of the individual's appointment.
Such a proposal is not the first of its kind to have been
introduced. From the 1940's through 1962, the issue of filling
House vacancies in the event of a national emergency generated
considerable interest among some Members of Congress during the
``cold war'' with the former Soviet Union. More than 30
proposed constitutional amendments which provided for
temporarily filling House vacancies or selecting successors in
case of the disability of a significant number of
Representatives were introduced from the 79th through the 87th
Congress. The House has never voted on any of these proposals.
Many of the current issues raised and policy arguments
offered in support of or in opposition to the temporary
appointment of Representatives are the same as those that were
made 50 years ago, but the events of September 11, 2001, have
raised additional issues. Suicidal terrorists may act
independently from sovereign nations and may not be deterred
from using weapons of mass destruction because of the possible
consequences for their own people. Opponents argue that
allowing governors to appoint Representatives temporarily would
depart from a foundational principle under which the House has
kept close to the people and each Member has taken his seat
only as a result of direct election by the voters in the
Member's district. Also, the states, rather than Congress, may
be in the best position to provide for expedited election
procedures in emergencies.
Legislative History.--Representative Brian Baird introduced
H.J. Res. 67 on November 10, 2001. H.J. Res. 67 was referred to
the House Judiciary Committee and then to the Subcommittee on
the Constitution on November 27, 2001. The Subcommittee on the
Constitution held a hearing on H.J. Res. 67 on February 28,
2002. No further action was taken on H.J. Res. 67.
H.J. Res. 96, tax limitation amendment
Summary.--H.J. Res. 96 was a proposed constitutional
amendment that would require any legislative measure changing
the internal revenue laws that increases revenue by more than a
de minimis amount to receive the concurrence of two-thirds of
the Members of each House voting and present. Excluded from
this requirement would be any increase resulting from the
lowering of an effective rate of any tax. The supermajority
requirement could be waived when a declaration of war is in
effect or when the United States is engaged in military
conflict which causes an imminent and serious threat to
national security and is so declared by a joint resolution,
adopted by a majority of the whole number of each House, which
becomes law. Pursuant to the Necessary and Proper Clause of
Article I, section 8 of the Constitution, the Congress would
have authority to enact implementing legislation.
Legislative History.--Proposals to limit the level or rate
of growth of revenues were considered on the House Floor in
conjunction with consideration of proposed balanced budget
amendments in the 101st, 102nd, and 103rd Congresses. At the
beginning of the 104th Congress, the House adopted a new
provision in its rules requiring that an income tax rate
increase be approved by three-fifths of the Members voting. \1\
The House also began an annual practice of considering a
constitutional amendment requiring a two-thirds vote on certain
tax legislation. On April 15, 1996, H.J. Res. 159 failed to
receive the required two-thirds vote for constitutional
amendments by a vote of 241-157. It would have required any
bill to levy a new tax or to increase the rate or base of any
tax to receive a two-thirds majority of the whole number of
each House of Congress.
---------------------------------------------------------------------------
\1\ See House Rule XXI, cl. 5(c), 104th Cong.
---------------------------------------------------------------------------
At the beginning of the 105th Congress, the House rule was
changed to require a three-fifths vote for any bill that
``amends subsection (a), (b), (c), (d), or (e) of section 1, or
to section 11(b) or 55(b) of the Internal Revenue Code of 1986,
that imposes a new percentage as a rate of tax and thereby
increases the amount of tax imposed by any such section.'' \2\
In addition, the Committee on the Judiciary conducted a markup
of H.J. Res. 62 following a hearing conducted by the
Subcommittee on the Constitution, during which eight witnesses,
including two Members of Congress, testified. On April 8, 1997,
the Committee ordered H.J. Res. 62 to be reported, as amended,
by a vote of 18-10. \3\ H.J. Res. 62, as amended, would have
required, inter alia, any legislative measure changing the
internal revenue laws to receive the concurrence of two-thirds
of the Members of each House voting and present, unless the
bill is determined at the time of adoption not to increase the
internal revenue by more than a de minimis amount. But on April
15, 1997, the bill failed by a vote of 233-190.
---------------------------------------------------------------------------
\2\ See House Rule XXI, cl. 5(b), 106th Cong.
\3\ See H. Rept. 105-50, 105th Cong., 1st Sess. (1997).
---------------------------------------------------------------------------
In 1998, H.J. Res. 111 was introduced but subsequently
modified and deliberated pursuant to H. Res. 407, a rule for
its consideration. Pursuant to H.AMDT. 553, section 1 of H.J.
Res. 111 was amended to additionally state that ``[f]or the
purposes of determining any increase in the internal revenue
under this section, there shall be excluded any increase
resulting from the lowering of an effective rate of any tax.''
On April 22, 1998, H.J. Res. 111, as amended, failed by a vote
of 238-186.
During the 106th Congress, H.J. Res. 37 failed on April 15,
1999 by a vote of 229-199, and H.J. Res. 94 failed on April 12,
2000 by a vote of 234-192. The bills were identical to each
other and identical to H.J. Res. 111, 105th Cong., as amended,
except that the bills introduced during the 106th Congress did
not contain a section providing that Congress can enact
enabling legislation.
On March 22, 2001, Representative Pete Sessions introduced
H.J. Res. 41, during the 107th Congress. H.J. Res. 41 failed on
April 25, 2001 by a vote of 232-189. On June 6, 2002,
Representative Sessions introduced H.J. Res. 96. On June 12,
2002, H.J. Res. 96 failed by a vote of 227-178.
S. 1202, the Office of Government Ethics Authorization Act of 2001
Summary.--S. 1202 would reauthorize the Office of
Government Ethics through 2006. The small agency established in
1978 fosters high ethical standards for government employees.
The agency oversees compliance by federal departments and
agencies with a variety of ethics laws. It issues rules and
regulations for federal employees to follow on such matters as
conflict of interest, post-employment restrictions, standards
of conduct, and financial disclosure.
Legislative History.--S. 1202 was introduced by Senator
Lieberman on July 19, 2001. OnNovember 15, 2001, the Senate
passed the bill by Unanimous Consent. On November 16, 2001 the bill was
referred to the Judiciary Committee. On December 20, 2001 the House
agreed to suspend the rules and pass the bill by a voice vote. S. 1202
was signed by the president on January 15, 2002 and became Public Law
107-119.
S. 2690, to reaffirm the reference to one Nation under God in the
Pledge of Allegiance (Pub. L. No. 107-293)
Summary.--The purpose of S. 2690, is to reaffirm Congress's
commitment to the Pledge of Allegiance and our national motto,
``In God we trust,'' in the wake of the Ninth Circuit Court of
Appeals' June 26, 2002, holding in Newdow v. U.S. Congress, 292
F.3d 597 (9th Cir. 2002), that the Pledge of Allegiance is an
unconstitutional endorsement of religion, because it
``impermissibly takes a position with respect to the purely
religious question of the existence and identity of God,'' and
places children in the ``untenable position of choosing between
participating in an exercise with religious content or
protesting.'' Id. at 609. America has a rich history of
referring to God in its political and civic discourse and
acknowledging the important role faith and religion have played
throughout our Nation's history. Thus the Ninth Circuit's
analysis in the Newdow ruling cannot be supported by any
reasonable interpretation of the Establishment Clause and is
inconsistent with the meaning given the Establishment Clause
since America's founding.
Both the House and the Senate approved S. 2690, which
contained extensive findings regarding the numerous ways in
which the government has recognized the religious heritage of
America, in order to reaffirm that the Nation's motto and
pledge as currently written are consistent with the First
Amendment of the United States Constitution. It is important to
note that under Pierce v. Underwood, 487 U.S. 552 (1988),
Congress, by approving S. 2690 which calls for the re-
codification of section 4 of title 4 of the United States Code,
could be presumed to have adopted previous interpretations of
this provision, including the Ninth Circuit Court of Appeals'
interpretation of section 4 of title 4 of the United States
Code in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002).
The Committee wishes to make clear that it is not the intent of
Congress to adopt any previous judicial interpretations of this
provision, particularly that given to it by the Ninth Circuit
in the Newdow ruling.
Legislative History.--S. 2690, which would reaffirm the
reference to one Nation under God in the Pledge of Allegiance
(Pub. L. No. 107-293), was introduced by Sen. Tim Hutchinson on
June 27, 2002, at which time it passed the Senate by a 99 to 0
vote. On June 27, 2002, S. 2690 was received in the House and
referred to the Committee on the Judiciary. On July 18, 2002,
S. 2690 was referred to the Committee's Subcommittee on the
Constitution. No hearings were held on S. 2690 and on August
29, 2002, S. 2690 was discharged from the Subcommittee. On
September, 10, 2002, the Committee met in open session at which
point S. 2690 was amended to clarify that section 4 of title
4's requirement that men, who are not in uniform, ``remove
their headdress with their right hand and hold it at the left
shoulder, the hand being over the heart'' prior to reciting the
pledge, only applies to a ``non-religious'' headdress. S. 2690
was then ordered reported favorably with amendment, by voice
vote, a quorum being present. (H. Rept. 107-659). On October 7,
2002, Judiciary Committee Chairman F. James Sensenbrenner moved
to suspend the rules and pass S. 2690 as amended and on October
8, 2002, the motion was agreed to by a 401 to 5 vote, with 4
members voting ``present''. On October 17, 2002, the Senate
agreed to the House amended version of S. 2690 by unanimous
consent. On November 4, 2002, S. 2690 was presented to the
President and on November 13, 2002, it was signed by the
President, becoming Pub. L. No. 107-293.
H.R. 503, Unborn Victims of Violence Act of 2001
Summary.--Under current Federal law, an individual who
commits a Federal crime of violence against a pregnant woman
receives no additional punishment for killing or injuring the
woman's unborn child during the commission of the crime.
Therefore, except in those States that recognize unborn
children as victims of such crimes, injuring or killing an
unborn child during the commission of a violent crime has no
legal consequence whatsoever. H.R. 503, the ``Unborn Victims of
Violence Act of 2001,'' fills this gap in Federal law by
providing that an individual who injures or kills an unborn
child during the commission of one of over sixty Federal crimes
will be guilty of a separate offense. The punishment for that
separate offense is the same as the punishment provided under
Federal law for that conduct had the same injury or death
resulted to the unborn child's mother.
An offense under H.R. 503 does not require proof that the
defendant knew or should have known that the victim was
pregnant, or that the defendant intended to cause the death or
injury of the unborn child. If, however, the defendant
committed the predicate offense with the intent to kill the
unborn child, the punishment for the separate offense shall be
the same as that provided under Federal law for intentionally
killing or attempting to kill a human being. By its own terms,
H.R. 503 does not apply to ``conduct relating to an abortion
for which the consent of the pregnant woman has been obtained
or for which such consent is implied by law.'' The bill also
does not permit prosecution ``of any person for any medical
treatment of the pregnant woman or her unborn child,'' or ``of
any woman with respect to her unborn child.''
Legislative History.--On February 7, 2001, Rep. Lindsey
Graham introduced H.R. 503, the ``Unborn Victims of Violence
Act of 2001.'' The Committee's Subcommittee on the Constitution
held a hearing on H.R. 503 on March 15, 2001. Testimony was
received from the following witnesses: William Croston III,
Charlotte, North Carolina; Professor Richard S. Myers,
Professor of Law, Ave Maria School of Law; Juley Fulcher,
Director of Public Policy, National Coalition Against Domestic
Violence; Robert J. Cynkar, Attorney at Law, Cooper, Carvin &
Rosenthal. On March 21, 2001, the Subcommittee on the
Constitution met in open session and ordered favorably reported
the bill, H.R. 503, without amendment, by a voice vote, a
quorum being present. On March 28, 2001, the Committee met in
open session and ordered favorably reported the bill, H.R. 503,
without amendment, by a recorded vote of 15 to 9, a quorum
being present. (H. Rept. 107-42). On April 26, 2001, the House
passed H.R. 503 by a vote of 252 to 172 with one member voting
``present''. On April 26, 2001, H.R. 503 was received in the
Senate and on June 8, 2001, it was read a second time and
placed on the Senate Legislative Calendar. No further action
was taken on the measure.
Oversight Activities
List of oversight hearings
Presidential Pardon Power, February 28, 2001 (Serial No. 2)
State and Local Implementation of Existing Charitable Choice
Programs, April 24, 2001 (Serial No. 13)
Constitutional Role of Faith-Based Organizations in
Competitions for Federal Social Service Funds, June
7, 2001 (Serial No. 17)
Constitutional Issues Raised by Recent Campaign Finance
Legislation Restricting Freedom of Speech, June 12,
2001 (Serial No. 20)
HUD's ``Legislative Guidebook'' and Its Potential Impact on
Property Rights and Small Business, Including
Minority-Owned Businesses, March 7, 2002 (Serial
No. 67)
United States Commission on Civil Rights, April 11, 2002
(Serial No. 73)
Civil Rights Division of the United States Department of
Justice, June 25, 2002 (Serial No. 81)
Privacy Concerns Raised by the Collection and Use of Genetic
Information by Employers and Insurers, September
12, 2002 (Serial No. 100)
Supreme Court's School Choice Decision and Congress' Authority
to Enact Choice Programs, September 17, 2002
(Serial No. 101)
A Judiciary Diminished is Justice Denied: the Constitution, the
Senate, and the Vacancy Crisis in the Federal
Judiciary, October 10, 2002 (Serial No. 108)
Presidential Pardon Power
On February 28, 2001, the Subcommittee on the Constitution
held an oversight hearing on the Presidential Pardon Power.
Witnesses included: Daniel T. Kobil, Professor of Law, Capital
University Law School; Allan J. Lichtman, Professsor of
History, American University; Margaret Colgate Love, Former
Pardon Attorney, U.S. Department of Justice; Alan Charles Raul,
Former Associate Counsel to the President. \4\
---------------------------------------------------------------------------
\4\ See Oversight Hearing on the Presidential Pardon Power, 107th
Cong., Sess. 1 (Feb. 28, 2001).
---------------------------------------------------------------------------
Daniel Kobil testified that the Framers rejected every
proposal to limit the clemency power and the Supreme Court has
``consistently refused to allow inroads into the President's
authority.'' \5\ Kobil mentioned important exercises of the
clemency power in our nation's history which served to ``bind
the country together'' and ``heal wounds'' following the Civil
War and the Vietnam War. Kobil concluded that the current
decline in exercise of the clemency power may result in the
power not being used by future Presidents in ``deserving
cases.'' \6\
---------------------------------------------------------------------------
\5\ Id. (Testimony of Daniel Kobil).
\6\ See id.
---------------------------------------------------------------------------
Alan Lichtman testified that use of the pardon power has
been ``politically charged throughout American history and not
always exercised with what Alexander Hamilton called
``scrupulousness and caution.'' \7\ Lichtman noted the
controversies surrounding President John Adams' pardon of anti-
tax rebels, Andrew Johnson's pardon of ex-Confederates and Bush
and Reagan's pardons of Watergate scandal figures. \8\ Lichtman
concluded, ``[T]he lesson of history is that appropriate use of
the pardoning power requires a delicate balance, not just of
caution, but also of courage, something that has not been
emphasized in the recent controversy [with Clinton's
pardons].'' \9\
---------------------------------------------------------------------------
\7\ Id. (Testimony of Alan J. Lichtman).
\8\ See id.
\9\ Id.
---------------------------------------------------------------------------
Margaret Colgate Love testified that the Justice
Department's ``reluctance to recommend cases favorably for
clemency was, at least in part, responsible for the
extraordinary breakdown of the pardon process at the end of the
Clinton administration.'' \10\ Ms. Love noted that she was
``grateful'' for the final Clinton pardons, two-thirds of which
went to ``ordinary people'' who had waited for relief for
years. \11\ Ms. Love concluded that the controversy surrounding
the Clinton pardons will offer President Bush and his Attorney
General the opportunity to review the use and administration of
the pardon power. \12\
---------------------------------------------------------------------------
\10\ Id. (Testimony of Margaret Colgate Love).
\11\ See id.
\12\ See id.
---------------------------------------------------------------------------
Alan Charles Raul testified that during his tenure as an
associate counsel to President Ronald Reagan, the pardon
process was ``orderly and deliberate.'' \13\ Mr. Raul noted
that a President's approach to granting pardons reflects on the
President's character and his ``respect for the rule of law. *
* * A president who disrespects the rule of law and views the
pardon power as essentially a personal prerogative rather than
a public trust will be in a position to exploit [and] abuse the
process.'' \14\ He concluded that Americans can best restrain
the pardon power by electing Presidents of good character. \15\
---------------------------------------------------------------------------
\13\ See id. (Testimony of Alan Charles Raul).
\14\ Id.
\15\ See id.
---------------------------------------------------------------------------
Oversight of the United States Commission on Civil Rights
The House Committee on the Judiciary through its
Subcommittee on the Constitution has continued its oversight of
the United States Commission on Civil Rights. On June 22, 2001,
the Subcommittee Chairman Steve Chabot wrote to Commission
Chair Mary Frances Berry concerning the June 5, 6, and 9, 2001
reports in the New York Times that the Commission failed to
involve all commissioners in the preparation of its draft
report entitled ``Voting Irregularities in Florida During the
2000 Presidential Election,'' prematurely leaked the Report to
the public and failed to provide affected parties with full
access to the contents of the Report. Chairman Chabot
questioned the Commission's adherence to its own review and
public disclosure policies. \16\
---------------------------------------------------------------------------
\16\ See Letter from Chairman Steve Chabot, Subcommittee on the
Constitution, to Commission Chair Mary Frances Berry (June 22, 2001).
---------------------------------------------------------------------------
On June 27, 2001, the Senate Rules and Administration
Committee held a hearing concerning the Commission's Report on
the Florida Election. The Subcommittee issued a letter to the
Commission on July 10, 2001, seeking to resolve a disagreement
over the availability and the substance of data used by
Professor Allan Lichtman in formulating the Report's
conclusions. The Committee requested production of all
documents relating to the data and methodology used by
Professor Lichtman in his analysis.\17\ Commission Staff
Director Les Jin's responses on July 9, 2001 and July 16, 2001
were inadequate and unresponsive. The Commission never produced
Professor Lichtman's data.\18\
---------------------------------------------------------------------------
\17\ See Letter from Chairman Chabot, to Chair Berry (June 27,
2001).
\18\ See Letters from Les Jin, to Chairman Chabot and accompanying
documents (July 9, 2001 and July 16, 2001).
---------------------------------------------------------------------------
On July 20, 2001, the Subcommittee sent a letter to the
Commission to renew its request for information and documents
that the Commission failed to provide and to follow-up on Jin's
responses.\19\ The Commission's July 30, 2001 reply was
evasive, and the Commission again refused to produce the
requested documents.\20\ On August 21, 2001, the Subcommittee
sent a letter to the Commission expressing concern that the
Commission had apparently deliberately withheld documents
relating to its contractual relationship with McKinney &
Associates, an outside public affairs firm the Commission hired
when it also maintained its own public affairs office with
three employees.\21\ The Commission responded with an
incomplete production of McKinney contracts.
---------------------------------------------------------------------------
\19\ See Letter from Chairman Chabot, to Chair Berry (July 20,
2001).
\20\ See Letter from Les Jin, to Chairman Chabot and accompanying
documents (July 30, 2001).
\21\ See Letter from Chairman Chabot, to Chair Berry (Aug. 21,
2001).
---------------------------------------------------------------------------
On November 30, 2001, the Subcommittee wrote to Chair Berry
concerning the Commission's position that Commissioner Victoria
Wilson, who was appointed to complete the term of the late
Judge Leon Higginbotham, which expired on November 29, 2001,
was entitled to maintain her seat and serve a full six-year
term.\22\ Following that letter, on December 4, 2001, the
Subcommittee requested and received the position of the U.S.
Department of Justice which stated that a Commission ``member
serves only the remainder of the predecessor's term.'' \23\ On
December 5, 2001, White House Counsel Alberto R. Gonzales
issued a letter to the Commission confirming that Ms. Wilson's
term expired on November 29, 2001 and the President's
appointee, Peter N. Kirsanow, was entitled to assume Wilson's
seat as a full member of the Commission.\24\
---------------------------------------------------------------------------
\22\ See Letter from Chairman Chabot, to Chair Berry (Nov. 30,
2001).
\23\ See Letter from Assistant Attorney General Dan Bryant, to
Chairman Chabot (Dec. 4, 2001).
\24\ See Letter from Alberto R. Gonzales, Counsel to the President,
to Chair Berry (Dec. 5, 2001).
---------------------------------------------------------------------------
Chair Berry disregarded both the Subcommittee's and the
White House Counsel's letters, and at the December 8, 2001
Commission meeting, refused to recognize and seat Peter
Kirsanow as a Commissioner. On December 14, 2001, the
Subcommittee received an opinion from the Congressional
Research Service which concluded that the 1994 Commission
statute did not repeal the uniform staggered Commission term
requirement in the 1983 legislation and that Mr. Kirsanow was
entitled to the vacant position on the Commission: ``[I]t is
consonant with the congressional intent for the [C]ommission to
maintain the staggered three year appointment cycle by
calculating a successor's term from the date of expiration of
her predecessor's term, a practice followed by many other
similar agencies.'' \25\
---------------------------------------------------------------------------
\25\ Memorandum from Morton Rosenberg, Specialist in American
Public Law, American Law Division, Congressional Research Service, to
Chairman Chabot (Dec. 14, 2001).
---------------------------------------------------------------------------
In January 2002, the Subcommittee wrote to Chair Berry
concerning her unlawful refusal to seat Commissioner Kirsanow
and commenced an investigation into the unlawful use of
Commission resources to fund litigation against the United
States.\26\ On February 27, 2002, the Subcommittee obtained an
opinion from GAO General Counsel Anthony Gamboa which held that
``the Commission does not have statutory authority to use its
appropriated funds to hire outside counsel'' in the Wilson
case.\27\ This opinion served as the basis for the
Subcommittee's February 27, 2002 letter to Solicitor General
Olson urging him to maintain the government's appeal of a
ruling permitting the Commission to intervene in U.S. v.
Wilson.\28\
---------------------------------------------------------------------------
\26\ See Letter from Chairman Chabot, to Commission Chair Berry
(Jan. 9, 2002).
\27\ See Letter from GAO General Counsel Anthony H. Gamboa, to
Chairman Chabot (Feb. 27, 2002).
\28\ See Letter from Chairman Chabot, to Solicitor General Ted
Olson (Feb. 27, 2002).
---------------------------------------------------------------------------
Also in February of 2002, the Subcommittee commenced a
review of the Commission's overall management. On February 14,
2002, the Subcommittee sent a letter to Berry questioning the
Commission's compliance with GAO's 1997 recommendations issued
in a Report entitled, ``U.S. Commission on Civil Rights: Agency
Lacks Basic Management Controls.'' \29\ In a follow-up letter,
on March 7, 2002, the Subcommittee probed the Commission's
relationship with McKinney & Associates.\30\ Staff Director Les
Jin's responses revealed the Commission's failure to implement
many of the reforms recommended by GAO five years ago.\31\
Documents produced showed Commission expenditures of over
$170,000 on McKinney & Associates, despite the fact that the
Commission continued to receive bad press and could not explain
what McKinney does for the Commission.\32\
---------------------------------------------------------------------------
\29\ See Letter from Chairman Chabot, to Chair Berry (Feb. 14,
2002). See also U.S. Commission on Civil Rights: Agency Lacks Basic
Management Controls GAO/HEHS-97-125 (July 1997).
\30\ See Letter from Chairman Chabot, to Chair Berry (Mar. 7,
2002).
\31\ See Letters from Commission Staff Director Les Jin, to
Chairman Chabot (February 22, 2002 and March 13, 2002).
\32\ See id. and accompanying documents produced to the
Subcommittee.
---------------------------------------------------------------------------
On April 11, 2002, the Subcommittee on the Constitution
held an oversight hearing to inquire into Commission
mismanagement which continues to undermine public confidence in
the Commission's work. Witnesses included: Abigail Thernstrom,
Commissioner; Les Jin, Commission Staff Director; Hillary O.
Shelton, Director, NAACP Washington Bureau; and Thomas Schatz,
President, Citizens Against Government Waste.\33\
---------------------------------------------------------------------------
\33\ See Oversight Hearing on the US Commission on Civil Rights,
107th Cong., Sess. 2 (Apr. 11, 2002).
---------------------------------------------------------------------------
Commissioner Thernstrom testified that Commission meetings
are marked by ``procedural chaos'' and ``[r]ules are changed
arbitrarily. I'm never sure what will be on the agenda until I
get there.'' \34\ Thernstrom raised concerns about
Commissioners' lack of access to the staff and its work:
``Direct conversations with anybody outside the Staff Director,
Les Jin, are explicitly prohibited. Moreover, memos to Mr. Jin
containing vital questions are regularly unanswered or only
very partially answered.'' \35\ She noted that reports take
years to complete and often the information gathered is
``obsolete.'' Commissioner Thernstrom emphasized that
``secrecy'' and ``fear of dissenting voices'' pervades the
Commission's report process.\36\ Commissioner Thernstrom
concluded with this overall assessment: ``The Commission should
be a source of hard facts on current civil rights issues and a
place of robust debate. It is neither. It is a national
embarrassment.'' \37\
---------------------------------------------------------------------------
\34\ Id. (Testimony of Commissioner Abigail Thernstrom).
\35\ Id.
\36\ See id.
\37\ Id.
---------------------------------------------------------------------------
Staff Director Les Jin defended the Commission's work:
``The Commission has produced quality work in a timely manner,
covering a broad range of civil rights topics.'' \38\ Jin noted
two reports generated by Commission staff--one concerning
alleged ``minority voter disenfranchisement'' in the 2000
Florida election and another alleging racial profiling by the
New York City Police Department. Jin did not respond to
Commissioner Thernstrom's contention that these reports rested
on dubious statistical data. Moreover, Jin did not dispute the
Subcommittee's conclusion that the Commission failed to
implement fully GAO's 1997 management recommendations. Jin
reiterated his policy that staff are not permitted to speak
with or respond to Commissioner's written questions or
memorandum.\39\
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\38\ Id. (Testimony of Commission Staff Director Les Jin).
\39\ See id.
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Hillary Shelton testified that the ``NAACP appreciates and
often relies on the Commission'swork.'' \40\ He noted the
Commission's reports on issues affecting native Hawaiians, age
discrimination, concerns of native Alaskans, and ethnic tensions in
American communities. Shelton did not comment on the efficiency of the
Commission's report process or its overall management.\41\
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\40\ Id. (Testimony of Hillary O. Shelton).
\41\ See id.
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Thomas Schatz testified to the Commission's failure to
implement GAO's 1997 reforms. He raised concern over the
relationship between the Commission and McKinney & Associates
noting, ``[I]t is highly unusual for any Federal agency to hire
a private firm to handle public relations * * *.'' \42\ He
recommended that GAO conduct another study on the
Commission.\43\ Following the hearing, the Subcommittee asked
GAO to reassess the Commission's overall management and its
compliance with GAO's 1997 recommendations.\44\
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\42\ Id. (Testimony of Thomas Schatz).
\43\ See id.
\44\ See Letter from Chairman Chabot, to GAO Comptroller David M.
Walker (Nov. 13, 2002).
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When the Senate, at the recommendation of Republican Leader
Trent Lott, appointed Russell Redenbaugh on July 18, 2002,
Constitution Subcommittee Chairman Chabot issued a press
release in which he praised the newly balanced Commission and
criticized the press and leaders of some Arab American and
civil rights groups for seeking to disrupt the new balance of
the Commission by the immediate unwarranted calls for the
removal of Commissioner Peter N. Kirsanow for his comments at a
July 19, 2002 Commission meeting in Detroit, Michigan.\45\
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\45\ See Chairman Praises Newly Balanced Civil Rights Commission,
Press Release, House Committee on the Judiciary (July 23, 2002).
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In September 2002, the Subcommittee wrote two letters to
the Commission regarding its refusal to pay Tim Keefer,
Commissioner Kirsanow's newly appointed Special Assistant, the
appropriate salary of GS-13, Level 10.\46\ The Commission's
claim that all other special assistants start at GS-13, Level 1
was contradicted by documents the Commission produced,
revealing that one special assistant started at GS-13, Level 9.
The Subcommittee requested that the Commission reconsider the
designation of Mr. Keefer in light of his record of achievement
and superior qualifications.\47\ Les Jin refused to review the
personnel decision of the Commission human resources office.
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\46\ See Letters from Chairman Chabot, to Staff Director Jin (Sept.
10, 2002 and Sept. 20, 2002).
\47\ See Letter from Chairman Chabot, to Staff Director Jin (Sept.
20, 2002).
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In October 2002, the Subcommittee wrote a letter to the
Commission when it refused to authorize the travel of
Commissioners to Washington, D.C. for purposes of participating
in the out-of-town meeting in Jackson, Mississippi.\48\
Chairman Chabot warned, ``If the Commission continues to
operate in this manner, I will not hesitate to seek a reduction
in the Commission's FY-2003 budget.'' \49\
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\48\ See Letter from Chairman Chabot, to Staff Director Jin (Oct.
9, 2002).
\49\ Id.
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Oversight of the Department of Justice Civil Rights Division
The House Committee on the Judiciary through the
Subcommittee on the Constitution continued its oversight of the
Department of Justice Civil Rights Division under the direction
of Assistant Attorney General Ralph Boyd. In May 2002, Chairman
Chabot and oversight staff met with Assistant Attorney General
Boyd to discuss the Division's enforcement record. In a follow-
up meeting, oversight staff met with Division deputies to
discuss the more than 400 school desegregation cases still
pending, political subdivisions subject to Section 5 of the
Voting Rights Act, pending Florida voting rights litigation,
and agreements with cities and municipalities in use of force
cases.
On June 25, 2002, the Subcommittee on the Constitution held
an oversight hearing to review the Division's progress.
Assistant Attorney General Boyd was the sole witness.\50\ Boyd
testified that during his tenure the Division has acted
``carefully, but aggressively'' in prosecuting civil rights
violations. He noted that following September 11, the Division
investigated over 350 incidents of alleged discrimination
against individuals of Middle Eastern descent, from which
federal and state authorities initiated 80 prosecutions. Boyd
testified that the Division has taken the lead in prosecution
of human trafficking. The Division has also reached landmark
settlement agreements with 21 communities across the country to
improve the accessibility of public buildings and venues. Boyd
also discussed the Division's efforts to conclude two decades
old desegregation cases--one in the State of Mississippi and
the other in Yonkers, New York. The Chairman encouraged the
Assistant Attorney General to continue to lift consent decrees
in school desegregation cases as school districts satisfy the
terms of the decrees.\51\
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\50\ See Oversight Hearing on the Civil Rights Division of the U.S.
Department of Justice, 107th Cong., Sess. 2 (June 25, 2002).
\51\ See id. (Testimony of Assistant Attorney General Ralph Boyd).
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Throughout 2002, the Committee monitored the Division's
filings, paying close attention to the roughly 380 school
desegregation cases still pending. On October 30, 2002,
Committee oversight staff met with Division deputies to review
the Division's recent activities. The Division has reached
agreements for unitary status in approximately 20 cases this
year.
Judicial vacancy crisis oversight
On October 10, 2002, the Subcommittee on the Constitution
held a hearing to explore the causes and effects of the current
federal judiciary vacancy crisis and the Senate's
constitutionalrole in confirming judges. Witnesses were: John
Eastman, Professor, Chapman University School of Law; Todd Gaziano,
Senior Fellow in Legal Studies, Heritage Foundation; Ralph Neas,
President, People for the American Way; and Kay Daly, Spokesperson,
Coalition for a Fair Judiciary.\52\
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\52\ See Oversight Hearing on a Judiciary Diminished is Justice
Denied: The Constitution, the Senate and the Vacancy Crisis in the
Federal Judiciary, 107th Cong., Sess. 2 (Oct. 10, 2002).
---------------------------------------------------------------------------
Professor John Eastman testified to the limited nature of
the Senate's advise and consent role. He noted that the Framers
refused to grant the Senate the power of appointment ``because
they wanted the accountability that came with placing the
appointment power in a single individual'' and ``they knew the
tendency of public bodies to feel no personal responsibility
and to give full play to intrigue and cabal.'' \53\ Professor
Eastman contended that the ideological litmus test proposed by
some Senators would threaten the independent judiciary and its
ability to check congressional power. He suggested that the
Committee consider legislation that would give the sole
appointment power to the President.\54\
---------------------------------------------------------------------------
\53\ Id. (Testimony of Professor John Eastman).
\54\ See id.
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Todd Gaziano testified to the Senate's ``intentional
refusal'' to act on many of the President's nominees. He noted
that the average wait for confirmation of the first 11 court of
appeals nominees was 500 days. Gaziano raised concerns about
the judicial emergencies created in courts where the vacancy
rates have increased substantially. He testified that the large
vacancy rate on the Sixth Circuit, with only nine out of 16
seats filled, has resulted in serious allegations by a
dissenting judge that the Chief Judge improperly influenced the
outcome of a case by using nonrandom procedures to appoint
himself to the panel in Grutter v. Bollinger, a case involving
the use of race in admission to the University of Michigan Law
School.\55\
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\55\ See id. (Testimony of Todd Gaziano).
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Ralph Neas contended that the Senate has made significant
progress in reducing vacancies. He argued that Eastman and
Gaziano's charges of delay are ``totally inaccurate'' producing
his own statistics that purported to show that ``confirmations
are nearly four times the number confirmed during the entire
first year of the first Bush administration and more than twice
the number confirmed during the first year of the Clinton
administration.'' \56\ He concluded that no Presidential
nominee should be entitled to a lifetime seat on the Federal
bench.\57\
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\56\ Id. (Testimony of Ralph Neas).
\57\ See id.
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Kay Daly testified to the efforts of coalition groups to
encourage Senate confirmation of nominees. She contended that
the judicial confirmation process has been ``hijacked'' by
left-of-center interest groups that attack the President's
nominees for ``anything at all, even including membership in a
men's only fly-fishing club that they can use to charge a
nominee with being racist, sexist, bigoted, homophobic * * *.''
\58\ She noted that the nominees are unable to defend
themselves because confirmation hearings are delayed for months
and sometimes years which ``permit[s] the drumbeat of ethics
criticism to continue in the media unobstructed.'' \59\ Daly
urged the Senate to take swift action to confirm nominees.\60\
---------------------------------------------------------------------------
\58\ Id. (Testimony of Kay Daly).
\59\ Id.
\60\ See id.
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Chairman Chabot noted for the record that following an
inquiry from the Committee regarding the case assignment
irregularities in the Sixth Circuit, Chief Judge Martin has
instituted more random assignment procedures and agreed to
conduct an extensive review of the Sixth Circuit's internal
operating procedures. In response to the Committee's inquiry
regarding the procedures used in Grutter, Chief Judge Martin
wrote: ``Operating within a circuit as ours with eight
vacancies out of sixteen positions, we, of course, have found
great difficulty in completing enough panels * * *.'' \61\
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\61\ Letter from Chief Judge Boyce Martin, Sixth Circuit Court of
Appeals, to Chairman James Sensenbrenner, House Committtee on the
Judiciary (Aug. 22, 2002).
---------------------------------------------------------------------------
The Subcommittee solicited and received letters from the
Chief Judges of four other circuit courts and the Chair of the
Judicial Conference Committee on Judicial Resources discussing
the challenges created by vacancies in the Federal courts.
Chief Judge Ginsburg of the D.C. Circuit wrote, ``[I]f the
court does not have additional judges soon, our ability to
manage our workload in a timely fashion will be seriously
compromised.'' \62\ Chief Judge Becker of the Third Circuit
described the court's struggle to handle pro se cases, which
compromise 50% of the court's docket: ``In this area, we are
sorely pressed, for the burden on the judges of the Court is
crushing and we are stretched beyond the limit.'' \63\ Chief
Judge J.L. Edmondson of the Eleventh Circuit noted that if
either or both of the two judges now eligible elect to take
senior status, the court will be in ``serious trouble.'' \64\
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\62\ Letter from Chief Judge Ginsburg, D.C. Court of Appeals, to
Chairman Chabot (Oct. 16, 2002).
\63\ Letter from Chief Judge Becker, Third Circuit Court of
Appeals, to Chairman Chabot (Oct. 15, 2002).
\64\ Letter from Chief Judge J.L. Edmondson, Eleventh Circuit Court
of Appeals, to Chairman Chabot (Oct. 8, 2002).
---------------------------------------------------------------------------
Genetic privacy oversight hearing
On September 12, 2002, the Subcommittee on the Constitution
held an oversight hearing on the concerns raised by the
collection and use of genetic information by employers and
insurers. Witnesses included: Tom Miller, Director of Health
Studies, Cato Institute; Dr. John Rowe, President and CEO,
Aetna; Joanne Hustead, Senior Counsel, Health Privacy Project,
AssistantProfessor, Georgetown University; and Dr. Deborah
Peel, President, the American Psychoanalytic Foundation.\65\
---------------------------------------------------------------------------
\65\ See Oversight Hearing on the Privacy Concerns Raised by the
Collection and Use of Genetic Information by Employers and Insurers,
107th Cong., Sess. 2 (Sept. 12, 2002).
---------------------------------------------------------------------------
Tom Miller testified that there is little evidence that
health insurers use genetic information in medical underwriting
and evidence of genetic discrimination by employers is limited
to ``isolated anecdotes.'' \66\ Miller noted the complications
in crafting legal protection for personally identifiable
genetic information. He argued that a broad prohibition on any
disclosure of genetic information ``would prevent good health
risks from obtaining positive genetic information on their
behalf and then voluntarily disclosing it to potential health
insurers.'' \67\ He concluded that market-based, private-sector
mechanisms for protecting genetic information should be
considered as alternatives to expanded regulation.\68\
---------------------------------------------------------------------------
\66\ See id. (Testimony of Tom Miller).
\67\ Id.
\68\ See id.
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Dr. John Rowe testified that discrimination based on
genetic information is highly speculative because the
technology is new and still developing. Dr. Rowe illustrated
how an absolute ban on genetic information would impair
insurers' capacity to provide appropriate service to members:
For individuals known to have the gene for a familial
form of colorectal cancer, their best interest, in
terms of early detection and prevention, is to have
frequent screenings via colonoscopy, every six months
instead of every three to five years. We can only
approve payment for those six-monthly tests if we know
that the individual has the colorectal cancer gene. If
we don't have access to that information, the person
doesn't have access to the treatment.\69\
---------------------------------------------------------------------------
\69\ Id. (Testimony of Dr. John Rowe).
He concluded by discussing some of the privacy guidelines Aetna
has suggested for the industry including coverage of genetic
testing and consultation with physicians to facilitate
appropriate interpretation of tests.\70\
---------------------------------------------------------------------------
\70\ See id.
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Joanne Hustead testified that federal law is inadequate in
protecting genetic information: ``The HIPAA privacy regulation
does not prevent health plans from collecting genetic
information or from requiring that people undergo genetic tests
or provide genetic information.'' \71\ Hustead noted further
that the HIPAA nondiscrimination provisions protect the genetic
information of only a very narrow subset of policy-seekers.\72\
Hustead also raised concern that the Americans with
Disabilities Act ``permits employers to collect much more
medical and genetic information than they need to assess
whether a person can actually perform the essential job
functions.'' \73\ Hustead urged Congress to pass genetic
privacy legislation that would ``fill the gaps'' in current
federal law.\74\
---------------------------------------------------------------------------
\71\ Id. (Testimony of Joanne Hustead).
\72\ See id.
\73\ Id.
\74\ See id.
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Dr. Deborah Peel testified that as a physician she has seen
frequent discrimination based on patients' medical and genetic
conditions. She raised concern that the new amendments to HIPAA
will not adequately protect genetic information. Dr. Peel
contended that the amendments will take away a patient's right
to consent to the release of medical information and grant
health plans retroactive access to a patient's past health
records. She urged Congress to review the HIPAA amendments and
deny these rule changes.\75\
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\75\ See id. (Testimony of Dr. Deborah Peel).
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