requiring school certification also gives the schools the opportunity to make students aware of federal government student aid options. the bill requires schools to counsel the student about their options, tell them how the private student loan will affect those options and what it's going to cost for them to repay these loans. basics. in addition, schools will be required to inform students about the differences between federal and private student loans, and the differences are dramatic. this will give students time to weigh their options, make a choice, be informed. when students like carrie who contacted my office about their student loans, they often tell me they didn't know the difference between the two. it was just a student loan, senator. most go on to say that if they had known, they would have thought more carefully about a private student loan and the debt they were incurring. for those students who decide to take out a private student loan,

the bill requires lenders to provide the borrower with quarterly up to date information about their balance and interest owed. finally, the bill requires lenders to report information to the consumer financial protection bureau about how many students are taking out loans and what are the rates. there is very little information about private student loans currently available. more information will help congress and the cfpb effectively inform consumers about these loans. this legislation is supported by a huge coalition of education, student and consumer organizations. i want to thank tom harkin for his work on this bill and especially all of the hard work he has put in on these for-profit colleges. mr. president, it's finally dawning on a lot of members of congress as they see programs like "frontline" talking about the for-profit college industry and as they meet these students who are going to these worthless for-profit colleges, students

who are just stacking up the debt for a worthless diploma, that it's time for our federal government to step up. how can you blame a student or his family if they are going to a school where they, the federal government, are willing to offer pell grants and federal loans? what's a student to think? if it's good enough for the federal government to loan money, it must be a good school. in fact, in many instances, in most instances, these for-profit schools are not good schools. they are not offering a good education. there are exceptions, but too many of them are just bad operations. we subsidize it. 90% to 95% of their revenue comes straight from the federal government. when it talks about freezing federal employee salaries, we ought to freeze the employees at these for-profit schools. they are 95% federal. you don't hear that from the other side of the aisle, but it's fact.

and i want to also tell you this. this student loan debt bomb that we're facing, which i talked to to -- talk to treasury secretary geithner about tomorrow, is going to explode on us just like the subprime market. let me tell you how it's going to work. more and more students are going into default. they can't pay back these student loans. and they are going to face life decisions that will change their futures and the future of the american economy. we now have 40% of students who are making payments on their student loans, 40%. 60% are not. some are still in school, i'll concede that point, but many of them just can't do it. we have piled this debt on, we give them preferred treatment in the bankruptcy courts so that the lenders can't have the debt discharged, and we sit there and watch as the lives of these young people deteriorate. this one young lady who testified at my hearing borrowed

$80,000, $40,000 from the federal government, $40,000 private student loan. went to the harrington school of design in the suburbs of chicago and ended up with a worthless diploma, worthless. it's five years later now. her debt is no longer $80,000. it's $98,000. it just keeps going up. she pays $830 a month, and the private student loan debt is exploding right in front of her. she can't pay it. she doesn't know what she is going to do. she says i will have to give up the little home my husband and i just bought, and it looks pretty desperate for her. her desperate situation affects her at the age of 32. 32. how do we let this happen? don't we have an obligation as a government, as a people to stop this exploitation of children and their families? that's what's going on. this bill i put in today is going to require these schools, all schools to tell the students first you have federal loan eligibility left.

it's 3.4%, not 18%. there is loan forgiveness if you become a nurse or a teacher. it's based on the amount of income you have later in life what your repayment is going to be. if you get into trouble, you can have a delay in payment without watching your loan just stack up. these are basic things we have built into the law to help students. students and their families ought to know that. that's what this bill is about. i commend it to my colleagues. i hope you will join senator harkin and me. i want to offer this on the floor. i want some colleagues here to go home and face the student loan issue and listen to the families they represent. we're hearing at our web site, i invite students and families to come to my official web site and tell their stories. as we learn what it's all about, we see the need to move on this and move quickly. mr. president, i yield the floor. a senator: mr. president. the presiding officer: the senator from rhode island. mr. reed: mr. president, i rise

today along with my colleague senator wows to pay tribute to senator dennis whiteell. on march 22, he was in a convoy with his unit in afghanistan. some children were in the road. soar chenoweth whitechell and other troops got out to move most of the children to safety. most of the children got out of the way but one of the little girl came back to the road. as an mrap approached, the sergeant pulled her out of the vehicle's path but in doing so, he was hit by the vehicle. he was medically evacuated to a medical treatment facility where a surgical team worked to stabilize him, but tragically, he died from his injuries. because of his heroic actions, the little girl he saved was unharmed in the accident, and he will be laid to rest this monday in rhode island.

a hero, someone who exemplifies the qualities of the american soldier. sacrifice, selfless sacrifice for others. sergeant whitechell joined the national guard in 2001. he was posthumously promoted to sergeant. he previously deployed to iraq as a member of detachment two headquarters, headquarters company third battalion of the 172nd infantry mountain. in november, 2011, he mobilized the deployment to afghanistan with the first battalion 143rd. each generation of american is called upon to protect and sustain our democracy, and there are no greater heroes than the men and women who have worn the uniform of our nation and who have sacrificed for our country to keep it safe and to keep it free. it is our duty to protect the freedom they sacrificed their lives for through our service, our citizenship. we must continue to keep their

memories alive and honor the heroism, not simply by words but by our deeds as citizens of this country. today our thoughts are with sergeant whitechell's father, mother, brother and sisters, his children nicholas and hope and their mother amanda and his fiancee ashley and their daughter madison, and all of his family and friends and his comrades in arms. we join them in commemorating his sacrifice and honoring his example of selfless service, of love and of courage and of devotion. to the soldiers he served with and the people of afghanistan he was trying to help. sergeant whitechell is one among many rhode islanders who have proven their loyalty, their integrity and their personal courage by giving the last full measure of their lives in

service to our country and afghanistan and iraq and elsewhere around the globe and throughout the years. today we honor his memory and all those that served and sacrificed as he did. sergeant whitechell joins a roll of honor that includes rhode islanders, specialist dennis puland of the army national guard, sergeant michael paranzino of the united states army, private first class kyle cutu of the united states marine core, francis altona of the united states navy, ronald a. gill jr. of the united states coast guard, sergeant michael r. whiteaman, united states army, sergeant moses jasmine, united states army, staff sergeant dale james keller jr., army national

guard, sergeant brian st. germane, united states marine corps, sergeant dennis j. flanagan, united states army, sergeant matthew cutu, united states army, lance corporal lance sharett, army marine corps, lance corporal john d. vanguisen, united states marine corps, captain christopher s. cash, united states army, lance corporal matthew k.serio, united states marine corps, master sergeant richard l. ferguson, united states army, sergeant first class, curtis mancini, united states army reserve, captain matthew j. august, united states army, chief warrant officer sharon t.stofworth, united states army, specialist michael andgrave, army national guard, staff sergeant joseph camera, army national guard, all of these men

and women have given their lives in the last decade in afghanistan and iraq. it is a role of honor. it is a -- it is a roll of honor. it is a roll that sergeant whitechell joins. it should be for us a roll not just to recognize and to remember but to recommit, to try in some small way to match their great sacrifice for this great nation. with that, mr. president, i would yield the floor. the presiding officer: the senator from rhode island. mr. whitehouse: mr. president, it is with great sadness but also considerable pride that i join senator reed today to honor the service of dennis p. whitechell jr. of the rhode island national guard who died one week ago today while serving our country in afghanistan.

dennis' actions in defense of the lives of vulnerable civilians embody the most noble spirit of service, sacrifice and loyalty found in the hearts of the men and women serving our nation in uniform in the most dangerous corners of the globe. in particular, they reflect the spirit of service of the rhode island national guard which is the second most heavily deployed state guard in the country. dennis, who was 29 years old, lived in providence. he had joined the rhode island national guard in 2001 and he deployed to iraq in 2005 in support of operation iraqi freedom. as a member of company d third battalion 172nd infantry mountain regiment. in november, 2011, dennis

mobilized with company c's first battalion 143nd infantry regiment troop command to camp attarbury, indiana. his unit deployed forward to afghanistan just this month. he had only been in afghanistan just a few weeks when his unit encountered a group of children on its way out of the black hills firing range in logman province. the children were scavenging in the road for brass shell casings which are recyclable for money in afghanistan. dennis, a father of three, hopped down from his vehicle to help move the children safely out of the path of the convoy of trucks and armored vehicles. as the heavy trucks rumbled past, it appears that a young afghan girl darted back into the road to grab one last grass shell casing. seeing one of his unit's

mine-resistant, ambush-protected vehicles bearing down on the girl, dennis reacted swiftly and selflessly, lifting the girl to safety and placing himself in the path of the 16-ton m-rap. i'm sure this was a parent's instinct and that dennis had in mind his own children, nicholas, age 8, hope, age 6, and baby madison. dennis was evacuated to the jalalabad medical treatment facility and there he succumbed to his injuries. dennis leaves behind his fiancee ashley, the mother of their 8 month old baby girl madison. he leaves behind his former wife amanda who is mother to his son nicholas and to his daughter hope. he leaves behind his mother and father, linda reynolds and

dennis whitechell sr. my deepest and heartfelt sorrows and prayers go out to all of dennis' family and to his friends. senator reed and i will join them this weekend to pay our respects when dennis comes home for the last time to rhode island. dennis acted with instinctive bravery on that road in logman province. his action reflected the selfless dedication of an american soldier and the heart of a father toward a child. dennis has been post posthumousy promoted from the rank of specialist to sergeant and his family will receive the bronze star he has been awarded for heroism. the writer joseph campbell once described a hero as someone who has given his or her life to

something bigger than oneself. in giving his life to save one small child, sergeant dennis whitechell has reflected great honor upon our military and its best traditions, and this great nation and the values for which it stands. he will justly be remembered a hero. i yield the floor. mr. reed: mr. president, i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

a senator: mr. president. the presiding officer: the senator from rhode island. mr. whitehouse: mr. president, i ask unanimous consent the quorum call we are in be lifted. the presiding officer: without objection. mr. whitehouse: thank you very much, mr. president. i want to take some time this evening to congratulate our environmental protection agency and to thank them for the rule that they proposed this week regarding new coal-fired power plants. they have taken a certain amount of heat over this rule, and have been criticized, but i come from rhode island, and rhode island is a downwind state from the coal-fired power plants

of the midwest. and we pay the price. for the coal power that those midwestern states burn. we pay the price in children coming into our hospitals with asthma attacks, we pay the price in ozone levels that are outside of our control. we are a state that contributes very little in pollution to other states, but we are on the receiving end. we are down the gun barrel of the big array of coal-fired power plants in the midwest. they have not only continued to burn dirty coal, they have

built particularly high stacks so that the emissions from that coal plant get pushed into the high atmosphere, and they move east towards rhode island in the prevailing winds, and we experience that as smog, as ozone, as air pollution. so there's an element of deliberateness to this. there are places in this country that are in compliance with air quality standards because they have put their emissions high enough up that it lands somewhere else. rhode island is often out of compliance with air quality standards, and it's not from emissions in our home state. so we hear a lot from the coal

burning polluters about all the terrible things that the e.p.a. rule is going to cause. it's going to cause nothing but good in rhode island. it is outrageous that on a bright, clear summer day you can be driving in to work in rhode island and hear over the car radio the announcer letting you know that today is going to be a bad air day in rhode island. you look out the window and it looks absolutely beautiful. but it's going to be a bad air day, they tell you. and faints should be kept -- infants should be kept indoors in air conditioning, seniors should not go outside, people with breathing difficulties should stay indoors, and

everyone should avoid vigorous physical activity because the air quality is too poor. that's just not a price that a cor bonn polluter -- a carbon polluter in one state should get to require the seniors, the children, the families in another state to have to pay. so i am delighted that e.p.a. has begun to apply this rule. unfortunately, it only applies to new power plants, so the existing coal-burning power plants that create so much of this pollution in our state, we're going to need to continue to work, to continue to crack down on until these states are sufficiently responsible in their use of power and in how they burn fuel to generate their

power that they're not just exporting bad air and pollution to other states. now, as important as this is to rhode island as a downwind state, as important as it is to protect the lungs of our kids and of our families, this is also an important step for e.p.a. to have taken because of the global problem that we have from carbon pollution. the carbon pollution that we are unleashing as a country, frankly as a species across the globe is having a dire effect in our atmosphere, it's having a dire effect in our oceans, it is truly causing our climate to change, and the changes are

going to be very difficult and very dangerous for our country in the future. that's not just my opinion. that's the opinion of our military leaders, that's the opinion of our national defense intelligence establishment, it is treated as a fact in those responsible quarters of our government. unfortunately, here and down there in the house of representatives there is a campaign of denial that is being propagated that is clearly supported by the polluting industries, and has the purpose of protecting their financial interests and enabling them to continue to profit from the harm that they are imposing on our oceans and on our atmosphere.

it would be nice if the laws of government could supersede the laws of nature. it would be nice if we could repeal the laws of physics, the laws of chemistry, the laws of biology, but we can't. it is arrogance to presume that we could. and the fact of what the carbon pollution is doing to our world can be denied in this chamber, can be denied down the hall in the house of representatives all day long and all night long and it is not going to change the result. it's actually only recently that there was a denial industry

attacking the problem of climate change and trying to minimize it, trying to mock it, trying to distract people from it. in the past, the denial industry was pointed elsewhere. in the past, the denial industry was supporting the tobacco companies in convincing people that it wasn't really that bad for you, the science isn't complete yet, don't worry, there's still doubt. it deployed itself against lead when the dangers of lead paint became known, the denial industry went to bat for the lead industry. denied that lead was very poisonous, said it only happened to really poor people, went through all of their rigamarole. same process, create doubt

about a scientific concern in order to prevent action being taken to protect people. well, now they've turned on carbon pollution. but before they turned from tobacco and lead to carbon pollution, it was pretty well accepted how basic this science is. the first scientist to determine that carbon dioxide would have the effect of warming the atmosphere if its concentration increased, that was a scientist named tindall. i think he was irish. wrote in england.

in 1865. around the time of the civil war , this was discovered. by the year i was born, 1955, there are basic texts that describe that the more carbon pollution you put into the air, the more it traps heat, the warmer the climate gets. it's virtually indisputable what's happening to the oceans. we're not talking projections here, we're not talking estimates. we're talking measurements. and the measurements show that the acidity of our oceans and the increase in acidification is happening faster than it has in three million years.

the extent of the carbon dioxide in our atmosphere now measured is outside of a bound that has been maintained on the surface of our planet for 800,000 years. 8,000 centuries. that's a long time. we've only been farming as a species for about 10,000 years. so 800,000 takes you way back to a very primitive species. and through all that time we've been in this band width of carbon in our atmosphere and now we're out of it. we're flying out of it and it's getting worse all the time. and instead of taking it seriously in this building, we are listening to the siren song of the big-money polluters, as if the laws of government, the

laws of congress could repeal the laws of nature that we know -- the laws of physics, the laws of chemistry, the laws of biology that are causing this to happen. i appreciate very much the presiding officer, the junior senator from minnesota, having been so energic and helpful in continuing to bring this thought to the senate floor. we had a i think both effective and important colloquy on the floor several weeks ago discussing this very point, and i think it is important that from time to time we stand up and we remind our colleagues that there is a truth to this matter. the truth is that we are releasing unprecedented massive

amounts of carbon pollution into our atmosphere, that that as a matter of science, laws of physics warms the atmosphere and that that warming atmosphere creates dramatic changes in our weather, in our oceans, in our sea levels. our coasts are probably going to be hit the hardest of anyplace, and rhode island is a coastal state. and the ocean absorbs the pollution, so the harm isn't just in the atmosphere to the climate, it's to the ocean itself as its p.h. level changes from the absorption of carbon. nobody doubts that the ocean absorbs carbon. there's not credible debate on that. you can measure the ocean's p.h. it is important that every once in awhile we tell the truth about this, because the time is coming very close when it will be past the tipping point of

taking the action that we need to take to protect ourselves. to protect our coasts, to protect our economy, to protect our national security. and so i wanted to take this moment, as the week ended, to come and share my thoughts been on -- my thoughts again on this subject. i will continue to do it from time to time because i think it's important that america be a country that tells the truth about problems. and i think it's important that rhode island, as an ocean state, be as protected as we can from the changes that we see coming. the ipcc just reported on the weather effects of climate change and they said, well, you know, you can't assign a particular storm to the effects of climate change but in various areas, you can connect the threat to climate change with

varying degrees of certainty. with respect to the threat from sea level rise and from worsened storms driving that raised sea ashore and causing flooding and damage, the certainty range was 90% to 100%. if we're not going to listen to warnings that the scientists tell us are now 90% to 100% certain, we're really making a grievous mistake. so i'll conclude by thanking the presiding officer, again, for his support and help. and i hope that the time comes when this body can actually treat this problem in a serious and sober way and the dark hand of the polluting industry tapping on our shoulders and whispering in our ears and

telling us what we can and cannot say is pushed back and instead we stand up in the light of day, in the light of science and fact and behave responsibly about the changes that are coming and our role in causing those changes. i thank the presiding officer. i see the distinguished senator from georgia on the floor, and i yield. mr. chambliss: i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from georgia. mr. chambliss: i would ask the quorum call be dispensed with. the presiding officer: without objection. mr. chambliss: mr. president, next week the annual master's tournament will begin in augusta, georgia. it's a beautiful time of the year in our part of the world and certainly augusta is a little piece of heaven, particularly this time of year. and as that tournament begins next week, there's going to be a sad note in the air because of the fact that furman bisher, a

giant in the world of journalism, a man who has covered the master's for the last 50 or so years, died last week at his home in atlanta. he died at the age of 93 and passed away peacefully in his home after a storied career as one of the nation's foremost sports writers. it was a career that lasted an astonishing 60 years. after nearly six decades of elegant observation of the sports world for the ""atlanta journal constitution,"" furman bisher picked out his final column before his october 2009 retirement on the thinning keys of his trusty royal typewriter. his choice of instrument to convey his thoughts in this age of instantaneous, inane chatter says a lot about why newspaper readers after so many years continue to seek out furman bisher's column in the "a.g.c."

sports pages. it all came down to this. fuhrman's greatly poise, sharp observations were unfailingly backed up by old-fashioned shoe leather reporting. he glorified in doing his homework, making that extra call , interviewing one more player or assistant coach or trainer in order to breathe even more life into the game or the race or the fight for his readers. it's also why fuhrman bisher became a georgia and an american institution. simply put, fuhrman loved sports he and loved journalism. at age 90, he was still driving out on summer nights to cover minor league ball games. in his career, fuhrman scored many journalistic knockouts, including a 1949 interview with shoeless joe jackson, the only interview jackson ever gave regarding his involvement in the 1919 black sox scandal.

he got his stock tips from ty cobb and watched jack nicholas' 1986 master's victory. he said e sat in the press box at countless falcons games at atlanta fulton county stadium and covered the olympics, both winter and summer. he even had a hand in bringing professional sports teams to atlanta. he wrote 11 books, including coauthoring two additions of -- two editions of a hank aaron autobiography. and at the master's tournament in augusta every april, fuhrman reigned among the azaleas and oaks as the dean of the sports press corps. in a testament to his longevity in a tough business, until his retirement, fuhrman covered every kentucky derby since 1950 and every super bowl but the first one. he even branched out into tv, and although i did not grow up in atlanta, i've heard from many people that preachers across the

city would cut their sermons short so that their congregations could be home for fuhrman bisher's kickoff on his program, "football review." along the way, he earned the respect of his colleagues and the loyalty of his readers, garnering writing awards too numerous to mention. he served as president of the national sportscastors and sports writers association from 1974-1976. and of the football writers association of america from 1959 -1960. his features appeared in the "saturday evening post," "golf digest" and sports illustrated, among others. in 1961, "time" magazine named him one of the five best columnists in the nation, and i would argue that honor fit him until the very end. no less than the great jack nicholas said of -- jack nicklaus said of fuhrman's

retirement, "he might be turning in his last column for the newspaper but fuhrman will never stop writing or giving his opinion. i guess you could say that when it comes to the last writings of fuhrman bisher, i will believe it when i don't see it." fuhrman bisher would close every column with a single validiction, the word "salah." a hebrew word that ends many psalms and that exports the reader to reflect. it is appropriate, then, to reflect on fuhrman bisher's long fruitful life and career, one that began in atlanta as the korean war was starting, when joe louis was still boxing, when the minneapolis lakers were the nba champs before, willy mays had joined the major leagues and before "sports illustrated" magazine even existed. in all the ensuing years, fuhrman bisher chronicled the triumphs and the travails of the sports world and it is often all

too human -- and its often all too human heroes. as fuhrman would say, "salah." mr. president, i am thankful for fuhrman bisher. i am pleased to have been the recipient of reading many, many, many of his articles through the years and also very proud to have called him a very good friend over the years. and he's a gentleman that will be missed for his professional career as well as just being a great person and a great individual. and with that, mr. president, i would like to move to another subject. mr. president, the political world this week has been focused on the united states supreme court and the arguments that have taken place over there with respect to what has been referred to as obamacare. now, i rise today to discuss how the two-year-old health care law is forcing more government intrusion into the lives of

americans. after all, what could be more intrusive than the federal government telling you the type of health coverage you must purchase. purchase this product or face a penalty. with this law, i believe the american people have recognized that congress has exceeded its constitutional authority. this week, a poll conducted by "the hill" found that 49% of likely voters believe that the supreme court will rule against the constitutionality of the health care law, while only 29% believe it will be upheld. the american people have to ask themselves whether we should be able to punish citizens based upon whether or not they purchase a product from the private sector. the commerce clause only allows the federal government to regulate existing activity that affects interstate commerce. i hope this distinction will be recognized by our justices on the supreme court. with no end in sight to

escalating health care costs, republicans want to see innovation within the private sector to bring about changes to our health care system. today, medicare and medicaid are running up our national debt and bankrupting our states. one would think less government involvement, not more, would help bring health care costs under control. instead, the health care law builds on this administration's desire to have the federal government control americans' health care decisions. to this end, the current administration has created 159 new boards, bureaucracies and programs under the health care law called obamacare. as of this mornght month, the administration has released more than 12,000 pages of regulations related to the law. the secretary of health and human services will have the power to make more than 1,700 rulings affecting americans and

the health care they seek. time and again, my colleagues and i have warned that adding more red tape and bureaucratic oversight that will affect the relationship between a doctor and a patient is not the prescription that americans are looking for. we want to protect the relationship between the patient and the physician. consultation between your -- the patient and the physician should be the determining factor in what procedures that patient chooses, not someone who sits on a panel in washington, d.c. however, this may well be the case, as the health care law concentrates power in the u.s. preventive services task force. this is the same task force that in november 2009 recommended that women between the ages of 40 and 49 no longer obtain annual mammograms. these are the types of recommendations that washington bureaucrats can coulbureaucratse

future. and i especially understand the importance of early detection of cancer, having been there myself, and will fight to see that individuals through the recommendations of their doctors are in charge of determining their own health care procedures. throughout the debate two years ago we constantly heard from folks on the other side of the aisle that if you liked your health care coverage, you could keep it. well, guess what? according to the latest c.b.o. estimates being you can ask 5 million people who will see their employer-sponsored health insurance end in 2016 whether they had the opportunity to keep what they like or not. further, the incentives for employers to drop their coverage and move employees onto the taxpayer-subsidized plan means that we could see up to 35 million americans lose their current coverage over the first ten years of implementation of this law.

washington is not in the business of re-- is now in the business of reducing the flexibility of consumer-driven health care policies like flexible health care accounts. congress created health savings accounts to allow health care consumers who wish to participate in the program more control over their own money and how they choose to spend that money for health care services. now contributions to these arrangements will be limited to $2,500 per year and over-the over-the-counter medications will require a prescription if they are purchased within these tax-free dollars. this is already leading to doctors having to fill out more paperwork so that an individual can walk into a drugstore to purchase aspirin or cold medicine. yet again this is just another glaring example of bureaucratic meddling in the lives of american consumers. small businesses are also feeling the intrusive effects of

obamacare. in the most recent survey of small businesses by the u.s. chamber of commerce, an astounding 74% of small business owners surveyed said that the health care law makes it harder for the businesses to hire more employees. think about that for a moment. three out of four small business owners are having difficulty hiring because of the uncertainty of health care costs. finally, our states are also feeling the heavy hand of more government control. the medicaid expansion that begins in 2014 will make it increasingly difficult for state leaders to balance their buckets due to strict maintenance of effort requirements. these requirements prevent states from designing health care programs specifically taylored for their own -- tailored for their own citizens. medicaid consumes about one-quarter of state budgets and obamacare creates the largest

expansion of the program since its inception. through 2023, the cost to states is now estimated to be an additional $118 billion. in my home state of georgia, the expansion will cost the state about $2.5 billion through 2020. money in the budget to pay for this expansion will come at the expense of higher education, transportation, and law enforcement services. nationally, 24.7 million people who will be added to the medicaid rolls will be entering a broken system where patients are denied access to about 40% of physicians because reimbursement rates do not keep up with medical costs. two years ago the legislative process that unfolded before us was not something that any senator should be proud of today. backroom deal making and forcing legislation through under a suber havive process --

subversive process left the american people apin angry angrt with congress. just look@the approval rating today. and i hope in the future we'll have an opportunity to revisit the issue because our system does need reforming, but it needs to be done in the right way and it needs to be done in a very transparent way. and i hope that we can come up with solutions that are actually supported by the american public, not solutions that make the american public angry. mr. president, i yield the floor. the presiding officer: the senator from mississippi. a senator: i ask unanimous consent to speak as if in morning business. the presiding officer: without objection. mr. wicker: mr. president, i come to the floor today greatly disturbed and upset, as are many americans, by the comments

president obama made on monday to outgoing russian president didmitry medvedev at the nuclear summit in seoul, korea. the exchange which was accidentally recorded by a russian journalist, suggested that presiden president obama'sn missile defense will change after the november election. it implies that the president is willing to make more concessions to an authoritarian government that has caused american concern time and time again. it raises questions about what else might be hidden on the president's agenda. -- if he secures a second term in the white house. americans can view the recording themselves, as president obama tells mr. medvedev -- quote -- "on all these things, but particularly missile defense, this can be solved, but it's

important for him to give me space." unquote. "him" meaning former and future president vladimir putin. mr. medvedev responds by saying, and i quote, "yeah, i understand. i understand your message about space, space for you." unquote. president obama then goes on to say, and i quote again, "this is my last election. after my election, i have more flexibility." "more flexibility." it is unbelievable and chilling that president obama would make his election a factor in how he deals with an important national security issue that could have dangerous implications for america and its allies. even the hint of compromising on our missile defense capability

is reckless when the prospect of nuclear-armed missiles is a real and growing threat. equolllequally alarm something e looming question over what the president actually means when he says, "more flexibility." the administration continues to press for resetting bilateral relations by fails to follow through on an approach that takes into consideration how russia has not made good on its promises in the past. simply put, we cannot trust the russian government to keep its word. we have no reason to believe that greater cooperation will come from giving the russians what they want. the question now arises: how can we trust our own president, no not to say one thg before the election and yet do

something entirely different afterwards? let us not forget, the russian ambassador vetoed two united nations security council resolutions supporting the syrian people, a move that prompted u.s. ambassador to the united nations sue sang rice to say that -- susan rice to say that russia had decided to stand with a dictator. indeed, russia seems comfortable standing beside a dictator. in addition, russian officials rejected the idea of sanctions against iran, tougher sanctions against iran, despite a report from the international atomic energy agency reinforcing concerns about iran's nuclear program. russia also voted against the united nations' general assembly resolution expressing concern over the violations of civil,

political, economic, social, and cultural rights in north korea. many of my colleagues and i have come to the floor on multiple occasions to express my concern with russia's deteriorating rule of law and respect for human rights. this is not the kind of relationship that president obama promised when he pressed for passage of the new start treaty in late-2010, over strong objections from many of my colleagues. it sends the wrong signal to our allies throughout europe who are worried about undue pressure from russia. at the end of the day, better u.s.-russian relations are not a foregone conclusion. and president obama would be wise to remember that one-sided promises are not the means to get there. he should also not forget that the constitution requires the

advice and consent of the senate on foreign policy decisions. over the coming months, the senate will likely take up several issues related to russia, and i look forward to having a frank discussion about the president's ideas and the president's intentions. mr. obama's comments in seoul are only one instance of the president pledging to have more flexibility after the election day, but they rightly cause us to speculate about what else expects to do. americans are right to wonder what other promises o-are being made that we do not know about. at the end of the exchange in seoul, president obama and president medvedev clasped hands and mr. medvedev promised, "i will transmit this information to va vladimir."

i will transmit in information to vladimir. in other words, but for the accident of an open microphone, the president's intentions would have been known by mr. putin but not known by the american people. mr. medvedev' medvedev's reply m reminder of what happens when one person is able to seize unrestrained power, as mr. putin has demonstrated, and should be a lesson for all of us. it also should give all americans pause as we approach this fall's election. i yield the floor. and i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

the debate on the motion to proceed to calendar number 339, s. 2230, a bill to reduce the deficit by imposing a minimum effective tax rate for high-income taxpayers, signed by 18 senators -- mr. reid: mr. president, i ask the names not be read. the presiding officer: without objection, so ordered. mr. reid: i ask unanimous consent partisan rule under 22 be waived and the vote on the

motion on the vote to proceed occur on monday, april 16 when the senate resumes legislative following confirmation of stephanie thacker. the presiding officer: without objection, so ordered. mr. reid: i ask unanimous consent that at a time to be determined by the majority leader in consultation with senator mcconnell the senate proceed to consider calendar 231, there be two hours of debate equally divided in the usual form, that upon the use or yielding back of that time the senate proceed stroet with no intervening -- proceed to vote, the motion to reconsider be laid on the table, any related statements be printed in the record and president obama be modally notified of the senate's action and partisan senate -- and the senate resume legislative session. the presiding officer: is there objection? mr. mcconnell: i mentioned to the majority leader i've got to do more consultation over here, but for the moment i must object. mr. reid: i ask unanimous consent -plt senate proceed to a

period of morning business with senators allowed to speak for up to ten minutes each. the presiding officer: without objection. mr. reid: i ask unanimous consent the senate proceed to executive session to consider calendars 344, 346, 493, 494, 495, 496, 500, 505 5, 06, 511, 514, 515, 516, 520, 521, 522, 524, 525, 5265, 41, 544, 547, 548, 549, 550, 551, 553, 554, 555, 556, 557, 558, 559, 560, 561, 562, 563, 564, 608, 629, 363 1, 63 2, 6 34, 6 35rbgs 637, 638, 642, 648, 649 and all

nominations be placed on the secretary's desk. the presiding officer: is there objection? mr. reid: and 614, mr. president and that all nominations be placed on the secretary's desk, the nominations be confirmed en bloc, the motions to reconsider be considered made and laid on the table, no or debate and any nominations be printed in the record and the president be notified of the president's actions. the presiding officer: is there objection? mr. mcconnell: i will not be objecting but i want to make a comment. this is the result of a successful discussion among the majority leader, the white house and myself. based on the white house's assurance that there will be no recess appointments during the upcoming adjournment. i will not be objecting and i want to say to my friend, the majority leader, this is the way we ought to be conducting business here. i think it was a successful negotiation, and i certainly do

not object. the presiding officer: without objection. mr. reid: mr. president. the presiding officer: so ordered. mr. reid: very quickly. i know the republican leader is in a hurry. i agree. this is the way we should legislate. aeupbd hope maybe -- and i hope after the two week period when we come back, we start doing appropriations bill. we are both committed, the republican leader and me, we are committed to doing appropriations bills this year. we've got to do that. we can't let other things stand in the way of getting them done. i appreciate the cooperation of the white house and my friend, the republican leader. mr. president, there seems to be confusion that a consent request was 614, not 624. i ask consent that -- the presiding officer: without objection so ordered.

mr. reid: i ask unanimous consent the commerce committee be discharged from further consideration of the presidential nominations of 1134, 35, 36, 37 and 1312, the nominations be confirmed, the motions to reconsider be considered made and laid on the table, there be no intervening action or debate, that no further motions be in order to the nomination, any related statements be printed in the record, that the president be notified of the senate's action. the presiding officer: without objection. mr. reid: i ask unanimous consent the senate consider the following nominations calendar numbers 258, 259, 262, 264, that the nominations be confirmed en bloc, the motions to reconsider be considered made and laid on the table, there be no intervening action or debate, no motions be in order to any of the nominations, that any related statements be printed in the record, and president obama be immediately notified of the senate's action. the presiding officer: without objection, so ordered. mr. reid: i know there's one senator very happy about that. that's senator mikulski.

i ask unanimous consent the homeland security committee be discharged from further consideration of presidential nomination of 1311, christine romer row of roamero of virginia, the nomination be confirm, the motion to reconsider be considered phaeupbd laid on the table, no intervening action or debate or debate, no further motions be in order to the nominations, and the president be notified of the senate's action and the senate continue in legislative session. the presiding officer: without objection, so ordered. mr. reid: i ask consent that on monday april 14 at 4:30 the senate proceed to executive session to consider calendar number 460, 06 minutes for debate equally divided in the usual form. that upon the use or yielding back of that time the senate proceed to vote with no intervening action or debate or calendar number 460, the motion to reconsider be considered made and laid on the table with no intervening action or debate, there be no further motions in order and any related statements be printed in the record and president obama be notified of the senate's action and the

senate resume legislative session. the presiding officer: without objection, so ordered. mr. reid: i ask unanimous consent the senate proceed to a calendar -- to s. con. res. 38, the adjournment resolution. the presiding officer: the clerk will report the resolution. the clerk: s. con. res. 38, providing for a conditional adjournment or recess of the senate and an adjournment of the house of representatives. the presiding officer: without objection the senate will proceed to the measure. mr. reid: i ask that the concurrent resolution be agreed to, the motion to reconsider be laid on the table, there be no intervening action or debate. the presiding officer: without objection, so ordered. mr. reid: i ask now that we proceed to calendar number 352, h.r. 2297. the presiding officer: the clerk will report. the clerk: calendar number 352, h.r. 2297, an act to promote the development of the southwest waterfront in the district of columbia and for other purposes. the presiding officer: without

objection, the senate will proceed to the amendment. mr. reid: i ask unanimous consent the lieberman amendment which is at the desk be agreed to, the bill be read a third time, passed, the motion to reconsider be laid on the table, no intervening, or debate, related statements be printed in the record as if read. the presiding officer: without objection, so ordered. mr. reid: i ask we proceed to s. res. 8o. the presiding officer: the clerk will report. the clerk: calendar number 345, senate resolution 80 condemning the government of the iran for state-sponsored persecution and so forth. the presiding officer: without objection, the senate will proceed to the measure. mr. reid: i ask the paul amendment to the resolution which is at the desk be agreed to, the senate proceed immediately to a voice vote on adoption of the resolution as amended. the presiding officer: the question is on the measure. all those in favor say aye. all those opposed say nay. the ayes appear to have it. the ayes have it. mr. reid: i further ask the preamble be agreed to, the motion to reconsider be laid on the table, there be no

intervening action or debate and any statements appear in the record as if given. the presiding officer: without objection, so ordered. mr. reid: i now ask the senate proceed to calendar number 347, s. res. 356. the presiding officer: the clerk will report. the clerk: calendar number 347, senate resolution 356, expressing support for the people of tibet. the presiding officer: without objection, the senate will proceed to the measure. mr. reid: i ask the senate proceed to vote on this matter. the presiding officer: without objection. the question is before the senate. all those in favor say aye. all those opposed say nay. the ayes appear to have it. the ayes have it. mr. reid: i ask the committee -- the presiding officer: the resolution is agreed to. mr. reid: i ask that the committee-reported amendment to the preamble be agreed to, the preamble as amended be amended -- let's start over. i ask that the committee-reported amendment to the preamble be agreed to, the preamble as amended be agreed to, the motion to reconsider be laid on the table with no intervening action or debate and any statements relating to this matter be placed in the record as if given. the presiding officer: without objection, so ordered. mr. reid: i now ask we proceed to calendar number 348.

the presiding officer: the clerk will report. the clerk: calendar number 348, senate resolution 391, condemning violence by the government of syria and so forth. the presiding officer: without objection, the senate will proceed to the measure. mr. reid: i ask the senate now vote on this matter. the presiding officer: all those in favor please say aye. all those opposed, please say nay. the ayes appear to have it. the aye haves it. the resolution is adopted. mr. reid: i ask the committee-reported amendment to the preamble be agreed to, the preamble as amended be agreed to, the the motion to reconsides laid upon the table, there be no intervening action or debate, any statements appear in the record at the appropriate place. the presiding officer: without objection, so ordered. mr. reid: i now ask we proceed to calendar number 349. the presiding officer: the clerk will report. the clerk: calendar number 349, senate resolution 395, expressing the sense of the senate in support of the north atlantic treaty organization and so forth. the presiding officer: the senate will proceed to the measure. mr. reid: i ask that we now have

a vote on this matter, mr. president. the presiding officer: all in favor of the measure please say aye. all opposed say nay. the ayes appear to have it. the ayes have it. the resolution is adopted. mr. reid: i ask the committee-reported amendment to the preamble be agreed to, the pream bebe agreed to, the motion to reconsider is laid upon the table, there be no intervening action or debate and any statements related to this matter be entered in the record at the appropriate place. the presiding officer: without objection, so ordered. mr. reid: i ask unanimous consent the senate proceed to calendar number 350. the presiding officer: the clerk will report. the clerk: calendar number 350, senate resolution 397, promoting peace and stability in sudan and for other purposes. the presiding officer: the senate will proceed to the measure. mr. reid: i further ask the committee-reported substitute be agreed to -- the presiding officer: are there objections? without objection, so ordered. mr. reid: i ask the senate now vote on this matter, as on adoption of the resolution. the presiding officer: all in favor please say aye. all opposed, nay. the ayes appear to have it. the ayes have it. the resolution is adopted. mr. reid: mr. president, i ask the committee-reported amendment to the preamble be agreed to, the preamble as amend be agreed,

to the motion to reconsider is laid upon the table, there be no intervening action or debate and any statements relating to this matter be placed in the record at the appropriate place. the presiding officer: without objection, so ordered. mr. reid: i now ask we proceed to s. res. 414, 415, 416. the presiding officer: the senate -- the clerk will report. the clerk: senate resolution 414, commemorating the 125th anniversary of the university of north carolina at pembrook. senate resolution 415, designating april 4, 2012, as national association of junior auxiliaries day. senate resolution 416, supporting the designation of april as parkinson's awareness month. the presiding officer: the senate will proceed to the measures. mr. reid: i ask unanimous consent that the resolutions, all three of them, be agreed to, the preambles be agreed, the motion to reconsider is laid upon the table, that there be no intervening action or debate on any of those three measures, that any statements related to the resolutions be printed in the record at the appropriate place as if given. the presiding officer: without objection, so ordered.

mr. reid: mr. president, i'm told that there is a bill at the desk due for its first reading. the presiding officer: the clerk will report. the clerk: h.r. 5, an act to improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system. mr. reid: i ask for a second reading but i object. the reason i'm doing it is i want to place the bill on the calendar under rule 14. the presiding officer: objection is heard. mr. reid: i now ask unanimous consent that -- the presiding officer: the bill will be read for the second time on the next legislative day. mr. reid: i ask consent that from thursday, march 29-monday, april 16, the majority leader, senator webb and senator rockefeller be authorized to sign duly enrolled bills or joint resolutions. the presiding officer: without objection, so ordered. mr. reid: i ask unanimous consent that notwithstanding the upcoming recess or adjournment, the president of the senate, the president pro tempore of the senate, the majority and minority leaders be authorized to make appointments to

commissions, committees, boards, conferences, interparliamentary conferences authorized by law, by concurrent action of the two houses or by order of the senate. the presiding officer: without t objection, so ordered. mr. reid: mr. president, i was really surprised earlier today when i was told by david schiappa and gairry myrick that somebody i care about a great deal is going to leave the senate. i'm just so surprised. i served here. her dad was the parliamentarian and i thought so much of him. he was a very, very courageous man. he jeopardized his position here in the senate doing what he thought was right. he looked at the law, didn't matter to him if it was -- if it were a republican asking for a decision or a democrat. he did what he thought was right. i have so much admiration for bob dove. and then i've gotten to know his

daughter, laura, who we all care about a great deal. she is somebody that i have -- i can joke with, be serious with. she understands what my obligation is here as the majority leader. she doesn't hold it against me. she knows i'm just trying to do what i think is right. she's been dedicated to making the senate a better place. ten years is the -- as the assistant republican secretary. this is her last week with us. so for me, we're going to go out of session, this is her last day with us. she is an example of how this operation works. mr. president, i've read through this stack of stuff very quickly could i have arranged all that stuff myself? no. it's laura doves of the senate that allows us to be able to get our work done. she was a page, just like these

young boys and girls here, as a teenager. she may work for the other party , but as far as i'm concerned, i would never hesitate to ask her a question if somebody on this side wasn't available and she never hesitated to tell me what she thought or give me the information that i was seeking. her work is essential and she's done it with dedication. so, laura, i really have appreciated our relationship and please give my warm regards to your very fine father. and i know, i've heard a little bit about what you're going to do in the next little bit and i hope as you have that motor home and you come to las vegas, hopefully this summer, you'll come to searchlight. because that will be a place you've never been. i'm sure of that. now, what could i do with you there, though? show you my home.

anyway, i'm so, so grateful to you for being the nice person that you are. mr. president, i ask unanimous consent that when the senate completes its business today, it adjourn and convene for pro forma session only with no business conducted on the following dates -- mr. reid: mr. president, the reason we're going through this pro forma sessions, which we thought we were through with, is the house has not acted yet on agreeing to what we've done. but they're very clear, there will be no recess appointments, period. because we're not going to be in recess, we hope. we hope the house will go along with us. that's what senator mcconnell and i hope for and it's been accomplished. so, mr. president, i ask unanimous consent that when the senate completes its business

today, it adjourn and convene for a pro forma sessions only with no business conducted on the following dates and times and that following each pro forma session, the senate adjourn until the next pro forma session monday, april 2, at 2:00 p.m., sthurs thursday, april 5, at 11:00 a.m. monday, april, at 10:00 a.m. that the senate adjourn on thursday, april 12, until 2:00 p.m. on monday, april 18. unless the senate has received a message from the house that it has adopted s. con. res. 38, which will be the recess adjournment. if the senate has received such an a message, the senate will stand in adjournment until 2:00 p.m. on monday, april 16, under the provisions of s. con. res. 38. further, when the senate convenes on monday, april 16, following the prayer and pledge, the journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day. further, that following any leader remarks, the senate resume consideration of the motion to proceed to the pay your fair share act with the time until 4:30 p.m. equally divided and controlled between

the two leaders their designees. that at 4:30 p.m. urk the senate proceed -- p.m., the senate proceed to executive session under the previous order. the presiding officer: without objection, so ordered. mr. reid: there will be two roll call votes then, mr. president, on monday, april 16. the first on judge to be thacker, we hope. that will be the fourth circuit. and the second vote will be on cloture vote on the motion to proceed to the tax measure that's on the calendar. if there's no further business to come before the senate, i ask it adjourn under the previous order. the presiding officer: under the previous order, the senate stands adjourned until 2:00 p.m. on monday, april 2, unless the senate has received a message from the house that it has adopted s. con. resolution 38, in which case the senate will stand adjourned until 2:00 p.m. on monday, april 16, under s. con. resolution 38.

>> says the president know? he told me he did not. on november 205th, the day i was reassigned back to the u.s. is the marine corps for service the president of the united states called me. in the course of that call the president said to me words to the effect that, i just to know. those are the facts as i know them, mr. neal's. i was glad that would you reduce this is said they wanted to hear the truth. i came here to tell you the truth. the good, the bed, and the ugly. and here to tell it all, a

pleasant and unpleasant. and here to accept responsibility for that which i did. i will let except responsibility for that which i did not do. >> c-span2, created by america's cable companies as a public service. >> the attorney investigating the prosecution of former alaska senator ted stevens said congress should pass rules expanding evidence disclosure requirements for prosecutors. the final report on the steven's case says justice department officials withheld evidence that would have seriously damage the testimony in credibility of the government's key witness. the case was thrown out at the request of the justice department after evidence cercis -- surfaced of prosecutorial misconduct. testifying before the senate judiciary committee, he believed some of the prosecutors involved having gays in illegal activity. this is 90 minutes. a a. >> good morning, everybody.

the @booktv to interesting. senator corn and as well as senator grass and myself. probably know that we have a number of hearings going on and around the capitol involving members of this committee. this is an area, we had a great deal of interest. the senators of both parties have talked to me about this. i have said many times and under a lot of different contexts that the criminal-justice system is the envy of the world for. our constitutional framework provides all individuals and guarantee of the right to fair treatment, fair trial, but in order for our criminal justice system toward the courts must

assure adherence to the rule of law. have to be afforded vigorous and competent counsel. i feel, and i think senator corn in as a former prosecutor would agree, they very -- bear a varies powerful position where it comes to us determining when to withhold the charge. plea-bargain, trial, prosecutors have to uphold the law. they have to adhere to the highest ethical standards. they have to seek justice. the integrity of our criminal justice system relies heavily on prosecutors. the fact that they want to make sure all parties, the state, witnesses, whatever else have to be treated fairly. now, much of the country's focus

on the killing last month in florida, a matter which the police decided not to bring charges. local prosecutors since recused themselves. a special state prosecutor fee of -- reevaluate the case. last week the civil rights division of the u.s. department of justice announced it will begin investigation into this matter. i share the president's feelings . there needs to be a thorough investigation to get to the truth, which is what the american people want, the truth. last week had chaired a judiciary committee of one component that supports integrity of our criminal justice system and the importance of collecting and retaining critical evidence like dna that can be used to both convict the guilty and to exonerate the innocent. part of the witnesses said the hearing, district attorney, and greg watkins, nuts to cover

status and the prosecutors dedicated to reevaluate prior cases to make sure there were handled. we heard what the extraordinary work they have been doing, the works of the judge in dallas to example and model help prosecutors, judges, defense attorneys can work together to ensure all criminal defendants receive fair trials. what will happen today, we will talk about what went wrong in that trial of late senator ted stevens. we are going to hear testimony from henry show key. he goes by hank. is that correct? a special counsel appointed by judge kevin sullivan to investigate allegations. the federal prosecutors in this case in days to an intentional prosecutorial misconduct by not sharing critical exculpatory @booktv exculpatory evidence with the defense. in fairness i would note that he

reported his company on behalf of those he investigated his jealous the particular the evidence of misconduct. now, the prosecution took place before the election of president obama and before his appointment of attorney-general holder. attorney-general holder decided based on his own review of the record to shape the dismissive that -- and would treat the case after the jury's guilty verdict. the justice department has also taken recent steps to improve its training of prosecutors. as a senior official dedicated to this process, the attorney general has had a pair of internal investigation with what happens to the steven's case and decided that by the office of professional responsibility. i have talked to the attorney-general about that. and he hopes to make a report public. i intend to have this committee review the report.

but here in today's the oversight responsibility. prosecutorial misconduct cannot be tolerated. i would not tolerate it when i was a prosecutor. it should not be tolerated within our federal system under any circumstances at all. what happened in the steven's case should not happen again. i should be aware of the defendant is prominent port indigent defendant. they should all be treated the same. significant evidence was not disclosed to the defense. critical mistakes were made throughout the course of the trial that tonight senator stevens a fair opportunity to defend himself. the sloppiness of the state court decision in connection with the steven's case disturbed the judge hearing the case and it also disturbed me. i might say it deserves an awful lot of the senators on both sides in the aisle. this is not a pious initiative. this is department is to ensure

such situations are never repeated. cnn day and prosecutors across the nation work tirelessly to seek justice and protect our communities. they do it at the highest standards possible. i speak often. my time as a prosecutor in vermont and i'm proud. prosecutors and law-enforcement officers him i had the privilege to work. in order for the justice to work could prosecutors now they have to add here without fail to the directive to seek justice for all. senator grassley, would you like to say something? >> obviously you deserve a quick thank-you for holding today's hearing because this is very troubling that warrants more attention than it has gotten. in his famous speech titled the federal prosecutor then

attorney-general, littered justice jackson said, ," the prosecutor has more control over life, liberty, and reputation than any other person in america -- he's one of the worst. obviously fitting words for today's hearing as we examine the conduct of the justice department prosecutors in an effort to understand what went wrong in the prosecution of ted stevens. the government's prosecution of senator stevens was arguably the highest profile case ever brought by the justice department in d.c.-based public integrity section -- section. it had consequences far beyond the jury's guilty verdict and impacted the senate election in 2008. while all criminal cases should

be handled with the utmost professionalism, cases of this level of importance and implicitly were elections can be swayed should be shining examples of the best of the justice department. they should have the best prosecutors, best agents, and should be the centerpiece of america's criminal-justice system. unfortunately this case appears to be the opposite of the ideal. according to our witness today the prosecutor the -- prosecution of senator ted stevens was both permeated by this is to make concealment of significant exculpatory evidence which would have independently corroborated his defense in this testimony him and seriously damage the testimony and credibility of the government's key witnesses. almonds the desert shocking statements the call into question the conduct of those involved and threaten to resonate for their throughout

justice. like so many times before we owe much of our insight into the department's failures for whistle-blowers. fbi agents had been joy came forward january 09 with allegations of misconduct in the investigation of stevens. while there were indicators to turn over exculpatory material before it was agent joys disclosure to the courts that instigated the investigation. reports, agent joy is no longer with the fbi. of course i hope it is not because he was run out of the fbi for blowing the whistle on this prosecution gone wrong. he deserves our thanks for having the courage to speak up. to his credit, the justice department ultimately moved to dismiss with prejudice the case against senator stevens. but he did not ignore the

whistle-blower. he held the prosecutors in contempt of court for failure to turn over the a exculpatory evidence. he then appointed an independent special counsel to investigate and prosecute criminal contempt proceedings and if appropriate against the justice department lawyers involved. his report was recently released on march the 15th. police said the report has is to refinance. that is an understatement. reading through this reported slight reading through a case and poor management. riddle with problems right from the start. the doj saw it and expedited file date. this decision, which is not fully explained and something i want to know more about. that put the case on a collision course for failure. the department asked for an expedited trial case when the review for material had to started and was far from

complete. from the report detailed because of the british disclosure problems appeared to stem from an expedited timeline, inadequate staffing, lack of a fine chain of demand for making decisions and poor supervision. two major disclosure problems were not revealed until after the conclusion of the trial, exculpatory affirmation from one of the prosecution witnesses and the withholding of impeachment material for the prosecution's star witness. the impeachment evidence is particularly troubling because it involves the witnesses effort to cover up their relationship with a 15 year-old prussic -- prostitute. it also raises questions because the justice department later apprised state and local prosecutors not to pursue a job and exploitation charges against allen and then drop to the federal charges. this is a second investigation

that the department offers as to why the prosecution was declined. in addition to the failure to disclose exculpatory material the case also suffered from a series of questionable decisions from management at main justice. for example, prosecutors claim that conflicting involvement between public integrity and the of the criminal division created in on @booktv cleared chain of demand and claimed that conflicts and personalities develop as a result of staffing decisions from senior. despite these supervisor barriers, there is no recommendation and report related to management of case. particularly in the rest of this aspect because management failures such as this are sanctions will come backed by a pr. it will be interesting to see how this report compares to the final report issued by of pr.

the opm report should include some review of the management of this case, and in addition to disclosing phil years. the attorneys general should ensure that full and redacted versions of that hopi our report is provided to congress. at an oversight hearing in november 11th, november last year, when the senator asked for a copy of the final report he said, ," that is up to the people at 0pr. what i indicated was that i wanted to chair as much as that as we possibly can given the very public nature of that matter and the very public decision that i made to dismiss the case. despite the attorney-general purported desire to make this information public color his statement that it is, up to the people that a pr leads me to believe that we are not likely to ever see the report. justice barbara has routinely block the release of investigations citing privacy laws and employee rights of the

attorney, an agent guilty of misconduct. the attorney general also the overseas of pr, and if he truly wants that information he should order it released upon the conclusion of the investigation. in the event he does not, the privacy act has an exempted version. and so even under the department started reading of the plain text of that statute i hope as chairman you will be able to obtain the hopi our report, and rejected and i will be happy to work with you on that issue. a lot of things went wrong and the prosecution of stevens and despite his strongly report that we are discussing here today, it seems nobody has been held accountable by the justice department. the criminal defendant's constitutional right to a fair trial regardless of who he is his fundamentals our criminal justice system. , when those rights were intentionally violated by attorneys at the justice

department it seems no one was held accountable. i find this fact even more disturbing than the findings of this report, and we have an obligation to the justice department be held accountable for what went wrong here in prevented from happening in the future. thank you. >> as i noted, one step at a time. attorney-general, is there credit for having the prosecution dismissed? in the hope your report, and we will be seeing. let's take it one step at a time . today in michele d. callan 2009. a special counsel to investigate allegations of prosecutorial misconduct. the prosecution of the u.s. senator ted stevens. it reported the court november november 14 to a dozen 11. by court order made publicly available two weeks ago on

march 15 the company by the submission of the six prosecutors the skeptics of his investigation. this showcase and private practice in washington d.c. society 79. started his own law firm. before that he served for four years in the army, the judge advocate general. three years of military judge. seven years as assistant u.s. attorney for district columbia. three years executive u.s. attorney. please go ahead, sir. >> thank you, at sir. feinstein, according, good morning. i appeared this morning at your invitation to address whatever questions you might have concerning of the report did judge sullivan on the subject of our investigations conducted pursuant to judge sullivan is

order of april 7th 20009. we were ordered to investigate and to prosecute such criminal contempt proceedings as may be appropriate against william welch, brenda marce edward sullivan, jussive and james katie. the department of justice attorneys responsible for the prosecution of the that is states senator theodore f. stevens in the united states district court for the district of columbia. i come before you this morning not as an advocate for any position, but rather to respond to your questions. i have submitted to the committee a copy of our report which has said early he has

indicated was filed on the public docket in the u.s. district court on march 15th. i should like to know that i was assisted throughout our investigation by my colleague, william b. shields. i note as well that our work would not have been possible without the complete cooperation of the department of justice at the highest levels of the department and by the department's office of professional responsibility. with that i will be pleased to answer your questions. >> thank you very much. we have been joined by other former prosecutors. the supreme -- mentioned brady

earlier, and that case, brady verses ballot every prosecutor learns that they have a clear constitutional duty to disclose exculpatory evidence beam. its constitutional duty and also common-sense. it prosecutors failed to disclose exculpatory evidence but intentionally the integrity of the zero criminal justice system, it's my belief that is the minister. also end up convicting or have the risk of convicting innocent people. i mention this because in your report you found information withheld from the defense was go and i quote you, a quintessential informations. no combat what else would you

mean by that? especially howl with the trial have been different if the prosecutor said disclose the sum permission? >> i think, such a lady, that i've first should describes at least briefly the allegations made in the indictment against senator stevens and the essence of his defense. senator stevens and his wife, catherine, in addition to their home here in washington, owned a small cabin in the community of occurred would, alaska. it was a rustic cabin, which was quite agreeable to senator stevens, who likes to go fishing outside the palace said of the porch on an evening, put his feet up, and perhaps smoke a cigar.

not so. or their children or they're grandchildren. found the cabin to be in need of improvement. so in 1999 senator stevens resolved that he would do some kind of a renovation to the cabin, which he jokingly called the shelling. he was a friend of a gentleman his name is bill allen, a self-made entrepreneur who by 19909 had become quite wealthy, and he was the ceo of an oil field services and construction company. he was a fishing buddy from time to time, senator stevens as well

he was conversant with the construction industry to some degree, and he certainly knew what was available in and around anchorage alaska in terms of contracts. senator stevens said he met in 1999 in the company of a gentleman his name was rocky williams who was a veto employees. the name of this corporation. senator stevens told him that he wanted to do the renovation to the so-called shall lay. he wanted allen assistance in identifying a remodeling contractor who might do the bulk of the work, and he was interested in having bill allen through a couple of his employees assist as might be appropriate in the renovation.

>> i don't want to cut in, but we are trying to keep the senators to a certain amount of time, and i do want you to get to the points. on my basic question, how with the trial of been different if the skill to a information had been released? >> all right. one principal example, senator, i told you who rocky williams was. rocky williams in effect served as the on-site foreman of the job. the job was performed, for the most part, by a firm called christiansen builders. this stevenses mortgage their home in washington for $100,000, liquidated the trust for another $10,000 spent another $50,000 -- and spend an additional $10,000 from savings.

they paid christiansen builders and a couple of good cops -- subcontractor's $160,000. for the cabin, which was appraised to be worth after the renovations, $152,000. senator stevens and his wife kathryn stevens testified during senator stevens trial that it was their understanding that would never work ellen's company had provided on the house had been included in tech christiansen builders invoices to which they paid in full. that testimony of both said stevens and mrs. stevens was ridiculed by the prosecutors,

both in cross-examination of each and in their summations. rocky williams was interviewed by two of the prosecutors, but cheney and kiki come at the company of the fbi agent said joy. one month before the trial commences in washington. on the morning that he was interviewed another of the prosecutors, and toward sullivan, send an e-mail to the group persecutors which said, we got some additional documents from senator stevens defense counsel. it is apparent, from those documents, that said stevens and mrs. stevens will testify that they thought that all of the vico charges were included in the christiansen builders. and if catherine stevens does not testify, they will try to squeeze that out of rocky on cross-examination. the very day that that e-mail

was circulated they interviewed recce. it did not have to squeeze that out of him. he told them. back in 1999. i met with senator stevens and bill allen. wanted us to our race to find a contracture. he wanted to pay for everything, and he wanted to make sure that this was done correctly. and so it was my understanding as the foreman on the job that my time as an employee, dave anderson is time, and anybody else who worked on the job would be included in that christiansen dollars invoices. so every month he told them, i went and get the christian sent -- christiansen builders invoice injected and make sure it was accurate based on my observations of what their

people did. then i took it to the front office to give to bill allen or his secretary if he wasn't there so that my time, that of dave anderson and other employees would be added to the christiansen builder's bills before they were sent to the stephens for payment. that was rocky williams account. that was his understanding. his understanding was altogether consistent with that of senator and mrs. stevens. had rocky williams testified as a government witness as the plan was, that is what he would have testified to. >> that would admitted difference in the trout? >> first of all, i believe that that anticipated testimony from rocky williams directly corroborated senator stevens defense. i believe that it may well have

addictive -- affected the outcome of the child. >> this is a very serious -- well, it is a serious allegation did you provide a report on the subjects of your investigation for them to do any rebuttal? >> judge sullivan in november of last year ordered that our report be made available to the subjects of our investigation and it was. and in his order -- i beg your pardon, senator. >> go ahead. >> in his order of november of last year he expressly provided the opportunity for each of them to submit comments and objections. >> and today? >> a couple did.

a couple did not. subsequently -- >> did that in any way change or comments, any way change to report? >> it did not. >> thank you. but i should add, subsequently, in february of this year when judge sullivan order that the report be made public on march march 15th, he provided the subjects yet another opporunity to submit comments on objections, which each of them did, and he ordered that i append those comments to our reports, which i did. >> but -- okay. it wasn't given to him before your report first went to the judge? >> that's correct. >> and i understand that assistant u.s. attorney hammond, the case in alaska, he pressed the supervisor on seven separate occasions to voluntarily

disclose impeachment information regarding the possible subordination of perjury by mr. kaelin who was a key government witness. in the other line prosecutor in alaska .. are they not being truthful when they say on these number occasions they asked to have

that? >> as our report indicates, in great some would say excruciating detail, measures bottini and goeke on a number of occasions proposed, indeed urged, the rest of the prosecution that some disclosure be made about evidence which was in their possession, indicating that their star witness, bill allen, had sworn a false statement from a young woman who was a crack addict did prostitute with whom she claimed to have had sex when she was 15 years old. >> and this is culpatory information was not made available? >> it was not. >> thank you.

senator grassley. >> your report states quote, for a clear specific and unequivocal order of the court which commanded the disclosure of this information were satisfied that a criminal condemned prosecution would lie. olds malia report concluded that no such order existed for the obligations however your report said at a september 102008 motion hearing, the court quote, admonished the government to follow the law, meaning brady, but that no order was issued that day. as a result despite the intentional and willful efforts to conceal this material, the prosecutors could not be criminally prosecuted. question, the fact that judge sullivan did not issue an order on september the tenth is arguably the seminal point of this matter because it prevents the prosecutors from meeting the elements of a prosecution for

criminal intent. had the court issued a formal order on september the tenth, instructing the og prosecutors to comply with brady and giglio would you have recommended criminal contempt against the prosecutor? >> i would. >> notwithstanding this technical violation do you believe that he should face criminal penalties including jail time? >> that is not a judgment senator grassley, for me to make. >> in the course of your investigation were you able to determine what the intent of the prosecutor was during the september 10 motion hearings? that is the question but let me continue. let me start over again. in the course of your investigation were you able to determine what the intent of the prosecutor was during the september 10 motion hearing? did they intend to keep judge sullivan from issuing an order so that they would not be subject to possible criminal

contempt charges later? >> they did not. is a matter fact at one point during the colloquy on september 10, judge sullivan said, well so what should i do matter and prosecutor? addressing brenda morris. should i issue an order that you produce any and all brady and giglio carry him curium and the response was, if that is what the court wishes to do, the court may do so. the court however concluded that colloquy on september the tenth by saying, i am not going to issue an order. i will accept for professions of good faith on the part of the government. we all know the laws. they tell me they know the loss. there is no need for me to issue an order, compelling them to comply with the laws. tends to the wise should be sufficient. >> as a result of this case and

going forward, should all district judges issue formal orders to doj prosecutors, instructing them to comply with radian giglio in an effort to ensure compliance and secure the possibility of criminal contempt? >> senator grassley that is one way to address the issue. i am not satisfied that it is the best way to address the issue. you know i say that in the report, during the discussion about whether or not judge sullivan had issued an order, that no district judge ought to be required to order prosecutors to comply with their constitutional obligation. let alone be required to issue an order so specific that it might support a criminal contempt prosecution in anticipation of its willful violation.

that doesn't make any sense to me. it is true that around the country at last count, of which i'm aware, some 38 of the 94 districts have standing local rules, which order the production of radiation giglio material pretrial as a part of the overall discovery regimen. that is one way to address it. there are judges individually who have standing orders in every criminal case to the same effect and indeed -- >> let me go on to another question. >> the stevens case was prosecuted by two attorneys, u.s. attorney's office alaska as well as two attorneys for public integrity section main justice. in fact the u.s. attorney's office was accused in the case because a complex of interest,

thus the public integrity unit was in charge of the case and the chief of the section and his principle deputies significantly and ball. they were involved in the drafting of the indictment. they prepared memos for leadership of criminal division and they briefed the division's leadership on the progress of the case. numerous e-mails no more -- as a final authority. indeed, shortly before the case was to be indicted, the front office of criminal justice, the criminal division main justice made the principle deputy public integrity to lead trial attorney. nevertheless, the report seems to minimize the responsibility of the public integrity for the failure of the case. for second and chief -- the section chief claims and the report seems to accept that it was cut out of the supervisory chain of command and the deputy chief claims the chief withdrew from supervision over the prosecution team because she

didn't want to cause dissension among the team. question, does the chief -- doesn't the chief of the section that was in charge of the case their responsibility for fairness? this was perhaps one of the most important cases of public integrity that has ever been prosecuted as that of the senate -- sitting senator. why does the report seemed to avoid a finding of fault against the section chief, public integrity ultimately responsible for all cases in the section and shouldn't the buck stop with the boss of the top and if not, why not? >> first of all senator grassley, it is not so that the report fails to address this issue. the report shows in great detail the history of the management or the mismanagement of the case. the report chronicles the fact that both mr. welch, then the chief of the public integrity

section and brenda morris, the deputy chief, abdicated supervisory responsibilities for assorted reasons, some of which you senator just recited. so the report did not shirk from addressing the barriers of management. recalls senator that the object of our investigation has chronicled in our report was to determine whether or not criminal contempt proceedings were appropriate with respect to any of the named and prosecutors. we found no evidence apart from this failure of management that either mr. welch or ms. morris willfully engaged in any misconduct in the nature of concealing brady or giglio

information from the defense. >> this will be my last question because i want to keep my colleagues going. the report makes the deputy chief of public integrity same hapless, overwhelmed and at times she seemed more interested in not ruffling feathers with the trial team then aggressively supervising the case. as an experienced prosecutor assigned to run the case, shouldn't she have above the concerns about ruffling feathers and done the job she was asked -- tasked with and if she was failing was that the job of her supervisor to fix that? >> thank you mr. chairman. >> thank you very much mr. schuelke. >> good morning. >> for your work in this area put your both senator leahy and i have served on the appropriations committee with

senator stevens. senator leahy far longer than i but i for over 20 or so in the course of so doing, you learn a little bit about a person that sits on that committee. so it is with kind of particular shock that we view what happens to him made all the more worse by his premature demise obviously in the fact that he never knew the result of your report, which is a great tragedy. but, as i understand the department policies regarding assistant united states attorneys, a doj attorney engages in professional misconduct when he or she, and this is a quote, intentionally violates our acts and reckless disregard of an obligation or standard imposed by law,

applicable rule of professional conduct or department regulation or policy. do you make that finding in your report? >> i do not address the disciplinary rule nor do i address the standards the department of justice applies. what i did conclude is that in several instances, to of the surviving executor's engaged in intentional misconduct. therefore, if the partner were to come to the same conclusion or if they concluded that the conduct was wrecked as, they would of course conclude that the lawyers engaged in professional misconduct.

speier report finds that the prosecution was troubled by significant mismanagement, specifically the lack of supervision which you point to end the attorneys prosecuting the case in the compressed schedule prosecution was under. did you in any way, shape or form consider whether the failures were due at least in part to lack of time or to a misinterpretation or misunderstanding of what these disclosure duties entailed? >> i did. and i found that there were a number of failures to disclose impeachment information only to the compressed schedule, the absence of effective supervision and the fact that a decision was taken to permit fbi agents who

were not schooled in brady and giglio to do the brady/giglio review. all of those occasions which in my judgment where the product of the failure of management came to light during the trial. they caused judge sullivan to have grave concerns about the credibility of the prosecution, but they did come to life and the defense was able to use that information. not so with respect to the three episodes about which we concluded that there was intentional concealment of exculpatory or impeachment information. none of those three in my judgment was a product of the compressed time schedule or the management supervision failures.

>> what was the motivation? >> prosecutors, plaintiffs attorneys, defense attorneys for that matter -- i have served as all three in the course of my career -- like to win. it's what we call contest living. we go into a case believing that our case is meritorious. we believe that our witnesses are telling us the truth. we do not want to have to undermine our case if it can possibly be avoided. i think that motive to win the case was the principle operative motive. i do not believe that any of the

prosecutors, including the mr. bottini or mr. goeke from alaska -- i don't leave that either of them sought fame and that was the reason i wanted to win the case. that is just not in their personalities and my judgment. they did, however, want to win the case. >> just to remind everybody no matter how much a prosecutor wants to win, we have the responsibility to disclose exculpatory information. the prosecutor has the position in the system that they are not just there to win. they are not just there to win. they are there to make sure that justice is done. senator cornyn speaking of prosecutor former attorney and

justice. >> mr. schuelke the constitutiof our adversarial system of justice and the rules of professional responsibility for members of the bar as these prosecutors all depend upon, prosecutors serving some goal above and more fundamentally, more fundamental than just a desire to win. would you agree? >> absolutely. >> mr. chairman nye would ask on behalf of senator murkowski, she is a statement and she ask unanimous consent to be put in the record and i have one as well that i would like to have put in the record. >> absolutely and i told senator murkowski of course we would. >> mr. schuelke you have performed a profound public service. thank you for that and i know it continues here today.

the thing that disturbs me so greatly does not that this prosecution involved a united states senator, because i doubt we would be having this hearing if it involves a citizen, who was not a united states senator. and that disturbs me greatly because i know the resources that you and the court has put into this investigation, and i doubt those sorts of resources, that time in that effort, would be put into an investigation involving similar abuses involving the constitutional rights of other citizens accused of crimes, but his rights were violated by a prosecutorial misconduct. do you share those concerns? >> to a degree. judge sullivan, whom i know, would have done the same thing no matter who the defendant was,

and i appreciate that and i appreciate what judge sullivan has done here, particularly allowing the release of this report unredacted. and i hope the office of professional responsibility report will be released to a sinful in unredacted form so we can get to the bottom of this. of course, one of the prosecutors in this case did not have an opportunity to respond to your report, nicholas marsh, committed suicide did he not? >> he did although his counsel who was invited to submit a response and did so as a representative of mr. marsh's estate. the justice department has told us that the stevens case does not suggest a systemic problem with regards to prosecutors abusing their responsibilities to divulge exculpatory and other

information required under brady and jig leo. how are we to be -- how can we possibly be satisfied with that representation and how do we know? how does any citizen no that the department of justice won't abide by similar prosecutorial misconduct in the future? >> first of all, i do not believe on the basis of our investigation that what happened in the stevens case is representative of what happens in cases brought by the thousands across this country by the department of justice. secondly, as senator leahy

indicated at the outset, it was of course the attorney general, eric holder, who moved that this case be dismissed with prejudice when he learned of a portion, a portion of the nondisclosure which had occurred in the case. eric holder did not shirk from that responsibility. i know eric holder both personally and professionally and have for years. likewise his deputy, jim cole, likewise the assistant attorney general of the criminal division lanny brewer. they are men of integrity, and i do not believe the stevens case notwithstanding that the public should labor under the notion

that what happened in mr. stevens case happens as a matter of course. >> mr. schuelke i agree with you that the attorney general is entitled to credit for after-the-fact raising this issue with the court in seeking the dismissal of the charges. unfortunately the damage to senator stevens and to the adversarial system of justice has already been done and there's nothing the attorney general or anyone else could do to undo it. and so, let me just ask you in conclusion since time is short here, in those instances where the character and integrity and professional responsibility of a prosecutor did do not seem to overcome their desire to win at any cost, is there anything that congress can or should do or is there any further action you would recommend that we take in order to make sure that abuses

like this do not occur? because i worry that when they do sometimes occur, and i agree with you that in the main prosecutors are honorable people who perform their responsibilities with integrity, but in those instances where they do not and where the intentionally withhold this kind of information as you said these prosecutors have, how do we protect the integrity of our system of justice? how do we protect the reputation of people who were wrongly convicted when this information was withheld? how do we protect our constitution? >> i do have a view on the subject, senator cornyn. as you know, in the supreme court of the united states as well as the circuit courts around the country have long articulated and appellate

standard of review of brady violations. by that standard, the court will not reverse a conviction, even in the presence of a concealment of exculpatory information, unless the court is able to conclude that concealment was outcome determined. that is to say that it was material driven conviction and was so material to the conviction that it would leave one without confidence in the guilty verdict. so we have this appellate standard, which makes perfect sense to me from the post-hoc perspective of appellate court. because that standard has been articulated over the years,

prosecutors take the view pretrial that they are only required to disclose what they believe to be material, that is which might ultimately have an adverse effect on the outcome. judge palfrey been at the district court here in washington in a recent fairly publicized case address this issue and said no, it is not the prerogative of the prosecutor. one of the adversaries of course to decide before a single witness, before a judge has ruled on the admissibility of any piece of evidence that some exculpatory or impeachment information will not be

material. that is looking judge freeman at the subject through the wrong end of the telescope. he is absolutely right and that makes perfect sense, so i believe the question for the congress may be squarely presented, may we do something about eliminating this materiality requirement so that prosecutors understand that in the pretrial setting, they are required to disclose any information which is favorable, or which would serve to impeach anticipated government witnesses. i know that the department of justice has a strong contrary view, mainly that there should be legislation to achieve this

objective rather than the department through the u.s. attorney's manual and your guidance issued by then deputy attorney general david ogden in december of 2010. largely inspired by the stevens case. issued guidance, which directs the prosecutors to disclose information that is impeachment or that is exculpatory, regardless of the materiality standards in most cases recognizing and specifically stating that what we are staying in this policy statement is we are going to have prosecutors go beyond the requirement of the law. >> thank you. i am going to include the

admissions of the committee and hearing record but the department of justice and the association of criminal defense lawyers and discovery and attorney ken weinstein to attorney general holder process substantive concerns by the report of of the special counsel. senator franken. >> thank you mr. chairman. this is pretty awful hearing, frankly. i mean it is high-quality and thank you for holding it in thank you for your work, but this is some pretty awful conduct by the prosecutors i think. they are just appalling. i just want to ask a couple of questions about, and you have just been talking about this, how to get that be fixed on

these kinds of problems. one thing i would like to know, first about you of all to you think what the prosecutors did is you know, is it illegal? or do you think, do you think that we need to change the law or do you think what they did was already illegal? >> i think what occurred in this case in a number of instances was in violation of an application imposed by the courts. >> right. >> interpreting the constitution and so using your term broadly, i would have to say it was illegal. >> okay so now, okay let's talk about what you were talking about in terms of brady

violations and what to do about this. as we are talking about maybe taking out the material part and just say anything is exculpatorr would have to reveal. is there any kind of possibility, and i understand that the judiciary, the justice department doesn't want to do that because they are afraid that it will scare off witnesses who think that anything that they have ever done will have to be you know, a witness against the defendant that anything negative about them will be exposed in court and make people much more reluctant to testify in court. that is one of the fears of the justice department, is it not? >> it is and that is a

legitimate concern. >> okay, so instead of rewriting the law so that the prosecutor has to reveal all the exculpatory, anything that could possibly be exculpatory even in their opinion if there is a material, is there any kind of process that could be set up as reform for the system, where a prosecutor kit get an advisory opinion and about and independent advisory opinion about evidence that resents a close call under brady? >> when you say independent, humane outside of the department of justice? the department of justice has an office, a professional responsibility advisory, which

is there to entertain questions about the application of the disciplinary rules of the bar to conduct. >> in other words if the prosecutor had a question about a brady matter, either that or do or, i guess you can't go to the judge. >> you can. you can. if i had an issue where it began with a federal prosecutor and i said to myself, i have got this piece of evidence here and i'm not so sure whether i have to disclose this. first of all i was taught when i was a young assistant u.s. attorney, if i had to think about that for more than 10 seconds, turn it over. led if i didn't, i could go to

the trial judge ex parte. >> and do an ex parte meeting. >> make a submission to the judge and say, this is what i have. i don't know whether i'm obligated to turn this over or not. there are reasons in my view why perhaps i should but there were reasons why i should not. you your honor decide. you are the neutral magistrate. >> that is kind of what i meant. it can go to the judge. >> yes, that's available but as you might well imagine -- >> pardon me i'm not a lawyer. i played one in a sketch on tv. >> and i think you did a pretty good job. >> thank you, thank you. so that kind of ex parte meeting with the judges is cool, is fine? it's okay?

it's kosher? >> it is. >> thank you. >> all of the above. >> okay, okay, so maybe in the law, changing the law here, and the justice department has a legitimate, meaningful objections to all exculpatory evidence, even if it doesn't seem material, having to be disclosed to the defense, then perhaps there could be some process written into the law saying if you have any question you have to go to the judge and if you didn't go to the judge on something, you have got a big problem. >> yes, yes that could be done. >> okay, thank you. i am done. thank you. >> yes thank you. >> mr. schuelke. >> good morning senator. >> thank you pretest my.

just sullivan stated for two and a great extent we have not seen in 25 years on the bench. i assume that is why attorney general holder took the commendable but rare step of seeking dismissal in the case and not attempting to retry it. but there are some exceptional reasons why we are meeting today. this was a high-profile case involving a united states senator, one of our colleagues. that senator had some of the best legal talent on his defense team, experienced attorneys for prominent washington firm. and extremely conscientious judge presided over this case and took the rare step of appointing an independent investigator who issued a 500 page report, and there was an fbi agent in the case who allegedly spoke out as a whistleblower and raised allegations of misconduct by the governments prosecutorial team. in short, this was the first

of -- furthest thing from the everyday criminal trial world that is going on even as we meet. what is at stake though, the principle of law, the constitutional principle, applies equally to cases of celebrity and notoriety as it does to those that are commonplace by comparable standards. when i heard about your report and came to understand what your conclusions were, i challenge the department of justice and said, now what? now that you know this has taken place, what can you do and what will you do to make certain that it's less likely in the future? the answer was, we have learned our lesson. pardon my skepticism, but i am not sure, because of what you referred to earlier as contest a living, that we will ever avoid that inclination of attorneys in

court, and i was one many years ago, to do their darndest to proceed to the outcome they are looking for. so my question to you, i have to cut. one relates to what senator franken asked. if this happened was illegal was not the omission of a crime, failing to disclose what should have been disclosed as evidence under the brady rule. secondly, if we are really serious about avoiding this in the future, don't we have to go further than to trust the instincts of the department of justice and prosecutors across america? don't we have to enshrine into law some basic protection of the criminal defendant when it comes to this disclosure? the bill has been been introduced by one of our colleagues, i'm not sure if you are aware. she talks about exceptions when it comes to this disclosure

relating to witness safety and national security and the like that really puts a standard that goes to the -- side and says we basically assume that everything is material until proven otherwise. if you would address those two issues, one what is illegal and what specific crimes do these prosecutors committed and secondly, there is a lesson to be learned here, should this lesson be written into the law so that the faceless criminal defendant who may not get a judiciary committee hearing has the same protection? >> first senator durbin, as my report describes, had judge sullivan issued a clear and unequivocal order that the prosecutors proved brady and

giglio material, there would have been a crime of criminal contempt with respect to those episodes described in a report as to which we conclude that conduct was intentional. beyond that, and there is a footnote in our report, which says that we offer no opinion as to whether or not a prosecution for obstruction of justice might lie, because that is not within my prerogative. as a matter of fact, the separation of powers doctrine would include a lawyer investigator appointed by the court from bringing such a charge. >> i'm sorry to interrupt you but what you are saying is unless there's express violation of a court order, that you do

not believe prosecution for obstruction of justice would lie? >> no, no, that is not what i'm saying, sir. in the absence of an express order prosecution for criminal content will not lie. whether or not the same conduct violates the obstruction of justice statutes and, and whether, under the u.s. attorney's manual a prosecution for this or that misconduct would be appropriate is not a decision for me to make. >> i'm going to be out of time but if you could address the second , whether we should seriously consider creating a statute which specifies the protection, which you have articulated, was denied senator stevens and should be given to all criminal defendants under brady? >> i believe you should consider

legislation, which eliminates, as i've explained earlier, the so-called materiality requirement. i know that senator murkowski's bill does that. it does a lot of other things as well, that which i'm not prepared to express a view at this moment. the department, and i know because i saw their statement yesterday, has submitted to the committee a lengthy statement describing what they have done in the wake of the stevens case, which is quite impressive in my view, and they explain as well as i said earlier, that it's a matter of policy that they are prosecutors are instructed not to make distinctions based on materiality issues. that policy however has expressed disclaimer. this does not have the force of law. i understand why as respect to

the policy. my question is, the department believes that there should be no pretrial materiality standard, because that is what they are telling the prosecutors now to do. what is the principle reason for opposing legislation that does just that? >> thank you, chairman. by, having been both a united states attorney and the attorney general for my state, tend to lean towards an open file rule. i think that there are obvious

exceptions to the open file rule, witness safety being preeminent. very often these are particularly dangerous individuals who would like nothing more than to murder witnesses. national security would be another important consideration. not disclosing or disrupting or impeding an ongoing investigation would be another, and a general protection against invasions of individual's privacy. it would all seem to make sense, and it would all seem to be subject to a reasonable check and balance proceeding with the judge, ex parte where it was appropriate and national security safety witness matter and it was sort of put the prosecution through its -- i think that those protections less likely to go wrong, then in

prosecutions that are based on a strategy which is the wrong way to go about taking cases, so i am speaking in part to you mr. schuelke, but i am speaking really through you to the department, to urge them to take a serious look at this, not just to push back because it is different, but to see what systemically can be done about this. and, there are two messages that i have and i don't think there's a place in the government that i admire more than the department of justice, but that doesn't mean there is an occasional room for improvement and i worry sometimes that in addition to not necessarily having the rule

be right, when something does go wrong, it appears that there are times when there can be a bit of a lien shall we say, leean in favor of the department attorneys who violated, assuming that they did, violated the provision. and i just want to raise something that i've raised over and over again with the department and take this opportunity to flag it yet again this goes back to the office of legal counsel opinions on torture, and which the office of legal counsel failed to study the circuit court of appeals of the united states decision to look exactly at the type of conduct that was involved,

waterboarding. they described it very clearly and described it, i don't remember right now by counts for 10 or 11 times that it was torture. and the olc opinion never mentioned the case. they go on for dozens of pages and they never mention the case. what concerns me about that is when the department went back to look at it, the investigation concluded with a memorandum by, think he retired from the department now, but david margolis, the margolis memo which said that the lawyers of the office of legal counsel were not to be held to the standard that a regular ordinary ham and egg lawyer under the district court is in terms of the standard required for candor to the tribunal.

so again, speaking through you to the department, but that continues to leave it the department, the department lawyers by the office of legal counsel which is probably the highest and the most talented part of the legal profession outside, and government outside of the supreme court itself, should not have to be the standard of of the day today, workaday trial lawyer appearing before a judge, particularly where the process for the candor of the tribunal standard is a pretty open one. there are checks on it. there's the other counsel who can say your honor, to tell you the case on point where the

judge can look it up and come back to the lawyer and say counselor, how could you not have told me about the case on point that comes out of the circuit court of appeals? the olc does not operate that way. it's much more secretive particularly when it's a classified hearing so i think if anything, the standard for olc lawyer should be higher than the standard for a regular workaday lawyer before a tribunal, not lower and i'm going to continue to press on that margolis memo because i think it is wrong to rule does lawyers to a lower standard than to those outside of the department. i flagged as because i think it is very important that the department may clear not only that they get the rules right, and follow the rules, but also when there are violations this clear, that there is no hesitancy to come down on people who violated those very important rules.

so mr. chairman that is more in the nature of the state in a question for mr. schuelke but i wanted to make sure that those points were clear to the department of justice and my concerns about the more clear to the department of justice which i will conclude by saying again, it's perhaps the organization and the united states government that i am proudest of. i think that that is a wonderful organization and i don't want to say that with these two specific concerns. thank you mr. chairman. >> thank you. do you have further questions? we will wrap up rather quickly here. you concluded that prosecutors intentionally withheld the information. did you give consideration to the evidence that they sought approval to disclose the evidence but were told not to by

the leadership of the department of justice? >> i did. >> thank you. and is the leadership of the public integrity section bear some responsibility for what happened in the stephen's stevens case? >> it bears responsibility for failing its supervisory responsibility to know all of the operative facts before they pass on a decision. >> and what did you conclude about the role of the criminal division baas been acting assistant attorney general in terms of managing the case, including what you suggested was the department's failure in your judgment to satisfy discovery obligations? >> i think matthew friedrich, and i said so in the report,

quite sensibly and understandably, took an interest in this high visibility prosecution of a senior sitting united states's senator. it would in my judgment -- custody and a member of the same party -- >> the of administration. >> the administration who has prosecuted. >> indeed, so in my view it was a completely counterintuitive if the assistant attorney general from the criminal division hadn't taken a serious interest in the matter. i think however, as we also say, that paradoxically, that sensible interest to supervise and make sure things were done right, put in place a prosecutor to serve as lead counsel who he thought was better equipped than the existing team of prosecutore

morale problems, contributed to brenda morris having to decide, because they put me in here and created all these morale problems, and i want to make anybody anymore and happy so i'm going to make myself as visible as possible, she put it, and i'm just going to do my job. i'm going to cross-examine witnesses and i'm going to make closing arguments and i'm going to trust what the rest of them tell me about what the state of discovery is. >> well, i have great concerns about this case, as you can probably gather. i am trying to be as subjective as i can in getting information. we all have the op our report and we won't go into that, because i agree with senator whitehouse on some of the finest men and women we have in this country, those who work in the department of justice and our

prosecutors and others they are. but this one bothers me greatly, not the least of which i knew ted stevens in my more than 30 years of knowing him, and i never knew him to break his word. i never knew him to tell me something that wasn't accurate and true. and i had for full disclosure, that kind of a personal relationship with him and i thought the world of him. i assumed for whatever time it would i would be in the senate i would be serving with him. we traveled together and in fact i had told his attorney that i can testify to the facts of the case that he was --

honest with me. as chairman of this committee though and on oversight of the department of justice, while i realize this happened with the last department of justice, not the current one, i do agree with your assessment and your statement of approval of attorney general holder in dismissing this case. we have both known for a lot of years before he was attorney general and i have a great deal of respect for his -- i am concerned about what happened. it happened here. i also want to make sure that as it is suggested, this would not have happened if it were ted smith, who nobody would know. that is why i had my innocence protection hearings and others. i think a prosecutor is in many ways the most important person in the whole criminal justice

system. even more so than the judge in many ways because the prosecutor can determine not to bring a case as well as to bring one to of enormous power. if exercised appropriately, the whole population is protected improperly, the whole system is damaged, so that is why i'm holding these hearings. mr. schuelke thank you very much. >> if i may as a point of personal privilege? i should like to say that like senator whitehouse, i am a proud alumnus of the department of justice. this is a sad story. i take no joy in having had to come to these conclusions. i hope i never have to do it again. >> well, i will concur on that.

people ask me what my occupation is then i say lawyer before a say u.s. senator. i'm very proud of that. i was tired of being in private practice and i was proud of being a state and district attorneys and i was proud to be picked as one of the three outstanding prosecutors in the country. whether deserved or not i won't judge, but that is probably the early going to be on my biography someday. thank you very much. >> thank you mr. chairman. [inaudible conversations] [inaudible conversations]

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