It always
feels good to come back to Georgetown Law Center. I am grateful
to this law school for nurturing my appreciation for the rule of
law in a just and free society. I thank Dean Aleinikoff for his
invitation and we wish his duties allowed him to be with us
today, and I also appreciate the sponsorship of the Constitution
Project, which is making a real difference in focusing public
discourse on first principles and away from the partisan
divisiveness of the last few years. I will not speak long
because I know that the students among you, including a number
of talented folks who have helped me — Chanda Betourney, Phil
Toomajian, and Emily Dakin, to name a few — are in the throes of
finals for your classes this semester. With the Congress
finally adjourning early Saturday morning, I want to take this
opportunity to look forward to the next Congress and some of the
priorities that will help restore balance to our system and
better protect the rights and serve the interests of the
American people.
I came to the Senate during the
ebb tide of Watergate and Vietnam. In my 32 years since then in
the Senate, I have never seen a Congress so willfully derelict
in its duties as during this Administration. This has been an
unfortunate chapter in Congress’s history, a time when our
Constitution was under assault, when our legal and human rights
were weakened, when our privacy and other freedoms were eroded.
This election was an intervention. The American people rose up
to take away Congress’s rubber stamp, and to demand a new
direction with more accountability.
The Senate Judiciary Committee
will do its part. We will take an active role – and, I hope, a
bipartisan role -- in charting a new course. I have enjoyed
working closely with our current Chairman, Arlen Specter, who
has accomplished much and has tried to accomplish even more,
under difficult circumstances and with incredible stamina. We
have a strong bond of friendship to build upon.
Restoration,
Repair and Renewal
Year in and year out, the
Judiciary Committee handles much more than its share of the most
sensitive and controversial issues that come before the Senate
-- from countering terrorism and fighting crime, to protecting
the civil and voting rights of all Americans, to protecting
inventors’ patents, and everything in between. The Judiciary
Committee has a special stewardship role over our national
charter and over our most cherished rights as Americans. This
sense of stewardship helps shape the agenda that I will discuss
today.
As a Democratic majority prepares
to take the lead on the Judiciary Committee, we do not have the
luxury of starting with a completely clean slate. We begin,
knowing that we have a duty to repair real damage done to our
system of government over the last few years.
Today I will outline a new agenda
for the Senate Judiciary Committee, an agenda of restoration,
repair and renewal: Restoration of constitutional values and
the rights of ordinary Americans. Repair of a broken oversight
process and the return of accountability. And renewal of the
public’s right to know.
Corrosive
Unilateralism
When a White House acts as if it
alone knows best, thwarting the accountability of checks and
balances, it makes bad decisions, even worse. It also risks
losing the people’s trust. These are precisely the penalties
that this Administration has amassed through its unilateralism,
in policies ranging from Iraq, to torture, to domestic
surveillance.
The Bush
Administration’s impulse to unilateralism predates 9/11. But
after that watershed crisis, the White House accelerated its
power plays at the expense of the other branches of government –
all, in the name of fighting terrorism.
This Administration has rolled
back open government laws and systematically eroded Americans’
privacy rights. It has brazenly refused to answer the
legitimate oversight questions of the public’s duly elected
representatives, and it has acted outside lawful authority to
wiretap Americans without warrants, and to create databanks and
dossiers on law-abiding Americans without following the law and
without first seeking legal authorization. This White House has
behaved as if the Constitution begins with Article II, and they
have taken their extreme ideology of a “unitary executive” to
strip both Congress and our independent federal judiciary of
their rightful roles.
The Oversight
Imperative
The constitutional balance must be
restored. Congress has a solemn duty to protect the rights of
the American people and to perform meaningful oversight to make
sure the laws are followed. Real oversight makes government
more accountable and more effective in keeping us safe.
This is why oversight of the FBI
and the Department of Justice will again be one of my highest
priorities when I take the gavel once more as chairman of the
Senate Judiciary Committee. When I previously chaired the
Committee, our oversight was done in a bipartisan way, and I
hope and expect to carry on that tradition in the coming
Congress.
The Erosion Of
Privacy
At a time when government is
trying to databank and datamine more and more information about
ordinary Americans, this Administration has been less and less
willing to let us know what they are doing.
Americans’ privacy is a price the
Bush Administration is willing to pay for the cavalier way it is
spawning new databanks. But privacy rights belong to the
people, not to the government. They need to stop treating the
privacy of ordinary Americans as an expendable commodity.
When it comes to protecting
Americans’ privacy, what we have today are analog rules in a
digital world. We are way overdue in catching up to the erosion
of privacy, and the Judiciary Committee now will help to bring
this picture into focus. This will be one of our highest
priorities.
I have long questioned Secretary
Rumsfeld about the Defense Department’s creation of dossiers on
Quakers and peaceful anti-war protestors. Congress acted to
rein in Admiral Poindexter’s Total Information Awareness
program. Recently we learned through the press -- and I’m
thankful for a free and vigilant press -- that the Bush
Administration has secretly been compiling dossiers on millions
of law-abiding Americans. It is incredible that the
Administration has reportedly been sharing this sensitive
information with foreign governments and even private employers,
while refusing to allow U.S. citizens to see or challenge the
so-called terror score that the government has assigned them
based on their travel schedules.
New and improved technologies make
data banks and data mining more powerful and more useful than
they have ever been before. They can be important tools in our
national security arsenal, and we should use them in an
effective way. But data banks are ripe for abuse and prone to
mistakes without proper safeguards. A mistake can cost
Americans their jobs and wreak havoc in their lives and
reputations that can take years to repair. Mistakes on
government watch lists have become legendary in recent years and
would be comical if not a tragic reflection of dangerous
government incompetence. Not only do we need checks and
balances to keep government data bases from being misused
against the American people, that is what the Constitution and
our laws require.
Senator Specter and I have worked on a good data privacy bill
that was reported by the Committee two years ago but never taken
up by the Senate. The proliferation of data brokers and the
burgeoning market for collecting and selling personal
information intrude on the privacy of all Americans. Our
bipartisan legislation establishes stronger penalties to deter
identity theft and requires companies to notify individuals when
their information has been compromised.
War
Profiteering Oversight And Prevention
Another oversight priority on the
Judiciary Committee will be pressing for accountability over the
use and abuse of billions of taxpayers’ dollars, sent as
development aid to Iraq. Rarely if ever has so much money been
funneled so fast to so many unsupervised contractors, with so
few safeguards.
It is hard to win a battle for the
hearts and minds of Iraqis who still are without basic services,
even as they watch billions of dollars being siphoned off by
unsupervised contractors. Too much of that money is unaccounted
for, and many of the facilities and services it was supposed to
provide are still nonexistent. And now this week we read about
plans to spend hundreds of millions more to create jobs in
Iraq. Weren’t we supposed to be doing that with all those
billions of other taxpayers’ dollars? At the risk of incurring
another of Vice President Cheney’s special season’s “greetings,”
I ask: Where did all the money go?
Up to now, the committees of
Congress have looked the other way, and the Administration has
fought tooth and nail against any accountability for this
massive wastefulness. We even had to fight to preserve the one
watchdog that Congress has sent to Iraq: the Special Inspector
General for Iraq Reconstruction. Two months ago, a rider was
slipped into the Defense Authorization Bill that pulled the plug
on the inspector general’s work. I am pleased that the election
results helped us reverse that last week -- for now.
The Judiciary Committee will be
asking the Justice Department why it has slowed and obstructed
the civil suits against contractors brought by whistleblowers,
under the False Claims Act. And because prosecuting criminal
cases against war profiteering is difficult under current law
and has to overcome jurisdictional legal defenses, we also will
renew our efforts to enact the War Profiteering Prevention Act.
I have repeatedly offered this bill, and it has passed the
Senate, only to die in a Republican-controlled conference
committee.
With each passing day of the
conflict in Iraq, it is more than just the future of Iraq that
hangs in the balance, but also our own. The recently released
Iraq Study Group report offers a way forward to change the
disastrous course of the past four years. As the Study Group
points out, Iraq has long desperately needed an effective and
credible law enforcement and legal system. I look forward to
the Judiciary Committee contributing to these efforts by
exploring the dozen recommendations relating to the Iraqi
justice system and the training of Iraqi police forces. The
police force has proven to be one of the worst failures of the
occupation. Just this past weekend the press reported that a
nephew of Saddam Hussein escaped from custody with the help of
police forces.
Defending The
Public’s Right To Know
The public’s need to know is a
constant in our democracy, a basic building block for the
consent of the governed. This year, we marked the 40th
anniversary of the Freedom of Information Act, or “FOIA.”
Unfortunately, open, informed
government has been under assault by the first administration in
modern times that is explicitly hostile to the public’s right to
know. By using ideology to trump science, gagging government
scientists and experts, reclassifying public documents and
undermining important tools like FOIA, this government has
displayed a dangerous disdain for the free press and the
public. Dr. James Hansen, director of NASA’s Goddard Institute
and a leading authority on climate change, was kept away from
events where he could share his research insights with the
public – the same American public that pays the bills for the
research Dr. Hansen has been doing.
It will be a priority of mine to
continue efforts to strengthen and improve our open government
laws. Some may be surprised to know that Senator John Cornyn has
been an ally in efforts to restore FOIA. We are forging a
bipartisan partnership that I hope will continue, and I look
forward to greater progress in the next Congress.
Defending Our
Constitution By Restoring Checks and Balances
I am immensely proud to be one of
the two Senators given the opportunity to represent a state that
boasts such a rich tradition of defending those rights. At one
time, we even declared ourselves an independent republic --
Vermont did not
and would not become a state until 1791, the year the Bill of
Rights was ratified. It is also the state that gave us
some of the most honorable senators in our history --
Robert Stafford, Ralph Flanders, George Aiken and Jim Jeffords,
to name a few. These are men who exemplified that tradition,
who rose up against abuses, against infringements upon
Americans’ rights when doing that was not popular, but it was
right.
Just as we cannot allow ourselves
to be lulled into a sense of false comfort when it comes to our
national security, we cannot allow ourselves to be lulled into
parking our rights and liberty in a blind trust. Our freedom is
the foundation that makes us strong as a nation. We must remain
vigilant on all fronts or we stand to lose all that is precious
– our liberty, along with our security.
For years, this Administration had
hidden the “President’s program” of warrantless wiretapping of
Americans. We are now beginning to learn that it was not just
one program but many that have been hidden from Congress. We
all support monitoring the communications of suspected
terrorists. Doing that is basic to thwarting terrorism. It is
essential, and it is permitted under existing law. It is also
essential that when that monitoring impinges upon the rights of
Americans, it needs to be done lawfully and with adequate checks
and balances to prevent abuses. Initially the Administration
stonewalled our inquiries and claimed unilateral power and a
monopoly on deciding what needs to be done and how to do it. As
we pressed for answers, their responses turned into a demand for
sweeping legal authority without any independent judgment by
Congress, or any meaningful answers about what they have been
doing.
We came together in the days after
9/11. We worked together to provide new authority the
Administration said it needed. But after White House
unilateralism set in, they have claimed for themselves broad
authority to violate the law and secretly eavesdrop on American
phone and computer communications, without proper congressional
or judicial review. That is a recipe for abuse. The reason we
have the Foreign Intelligence Surveillance Act – or FISA – in
the first place is because of a period of earlier abuses of
Americans’ rights and privacy.
With meaningful oversight and
cooperation from this Administration we can achieve the right
balance. We all have the same goal – protecting our country and
its citizens. We have made more than a dozen changes to FISA
since 9/11. If FISA needs more changes, then we should work
together to achieve that in a responsible way, once Congress has
a basis in knowledge that justifies further changes.
Defending The
Independence Of The Judiciary
The final check on an overreaching
Executive in our constitutional structure is the judiciary. The
reason I have fought against the packing of the federal courts
with those who will not preserve its independence and fairness
is because the courts are so important to protecting the rights
of all Americans.
For too long, this White House has
used judicial nominations for partisan political purposes and
refused to work with us on consensus nominees. The American
people want the Senate to be more than a rubber stamp. They
want the Senate to do its job by carefully evaluating nominees
for lifetime judgeships -- judgeships that will continue long
after this President leaves office and will affect the rights of
today’s Americans and those of their children and grandchildren.
The process starts with the
President. In the choices he makes, he can unite the Senate and
the American people, or he can divide us. If he works with us
to send consensus nominees instead of picking political fights,
we can make good progress filling vacancies in these important
lifetime appointments. One tangible step we should consider is
wider use of bipartisan judicial nominating commissions in
screening judicial candidates.
Restoring Our Basic American Values And Human Rights
A
lesson in how not to legislate was the adoption in the run-up to
the November election of the Military Commissions Act. Congress
was wrong to suspend the Great Writ of Habeas Corpus -- a
keystone of American liberty -- in order to avoid judicial
review that prevents government abuse. That law needlessly
undercut our freedoms and values, and, as I noted at the time,
allowed the terrorists to achieve something they could never win
on the battlefield, an action from fear rather than strength to
undercut the Constitution. It was a squandered opportunity to
write a good law to set enforceable guidelines for fighting and
winning the war on terror without sacrificing American values
and American leadership on human rights.
Justice Scalia wrote in the
Hamdi case: “The very core of liberty secured by our
Anglo-Saxon system of separated powers has been freedom from
indefinite imprisonment at the will of the Executive.” But the
bill written by the White House and passed by the last Congress
is designed to ensure that the Bush-Cheney Administration is
never again embarrassed by a United States Supreme Court
decision reviewing its unlawful abuses of power. I am committed
to restoring basic American values to the way we combat
terrorism and to developing a more effective strategy.
As a result of that sweeping,
ill-conceived law, we have now eliminated basic legal and human
rights for 12 million lawful permanent residents who live and
work among us, to say nothing of the millions of other legal
immigrants and visitors whom we welcome to our shores each year.
I look forward in the next Congress to working
with Senator Specter, Senator Dodd and others to restore these
fundamental protections and the checks and balances on which the
Constitution and our freedoms rest.
Comprehensive Immigration Reform
I hope that we can also
advance American interests and American values by making further
progress on comprehensive immigration reform. We made some
bipartisan progress on the Committee and in the Senate last year
only to be stymied by Republican congressional leaders. We can
work together to bring people out of the shadows, to treat
hardworking people with dignity and respect rather than disdain
and discrimination.
Patent Reform
And Life-Saving Medicines
Reforming our patent system will
also be an enormous, but critically important, project in the
new Congress. Our Constitution enshrined patent rights for a
reason: “to promote the progress of science and useful arts.”
The spirit of American innovation has made the United States the
world’s leader in intellectual property. Yet the expressions of
American innovation – in the form of patented goods and
processes – are only as good as the system that fosters and
protects innovation. Our patent system was created in another
century, and we need to update it. It must serve the 21st
Century industries that have made us the envy of the world, just
as it well served the smokestack industries of an earlier era.
Complementing that effort, I
intend to redouble efforts to reexamine our patent laws in the
hope that by making thoughtful and practical changes we can
greatly increase access to essential medicines throughout the
world. We can help struggling families in developing nations,
while improving U.S. relations with large segments of the
world’s population. The current global health crisis is one of
the great callings of our time. Whether it is the Avian Flu,
AIDS, SARS, West Nile Virus, or the approaching menace of
multi-drug resistant bacteria, we need to recognize that the
health of those half way around the world now influences our
security and affects our lives here in the United States. I
want the work of the Judiciary
Committee to be a catalyst to help make life-saving medicines
more readily available around the world.
New
Subcommittee On Human Rights And The Law
Finally, I plan to establish a new
subcommittee, one that will focus our attention and efforts on
protecting human rights. A Human Rights and the Law
Subcommittee would help us better fulfill our role in a
challenging global environment. Over the years we have enacted
laws against torture, human trafficking and war crimes, for
example. This Human Rights Subcommittee would provide a focal
point for our activity. I want to do this on a bipartisan basis
and hope to continue consultations so that we can proceed to
establish all our subcommittees at the outset of the new
Congress.
A Fresh Start
Emphasizing Progress Over Politics
There is much work to be done. I look forward to a new Congress
where we work together on behalf of all Americans. We are
living in challenging times. It is my intention to confront
security risks by finding strength in our core American values.
Benjamin Franklin memorably warned that those who would “give up
an essential liberty for temporary security, deserve neither
liberty nor security.”
History can attest that we are able to make a difference when we
fight to protect our freedoms, instead of sacrificing them
through fear. Those freedoms and core values are what make this
such a great and good nation. Freedom and security must not
become mutually exclusive values in America. We can have both,
and we must have both. Steering that prudent course will be one
of the greatest challenges of our time.
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