Ranking Member, Senate Committee on the Judiciary
Executive Business Meeting
Thursday, February 2, 2012
With regard to the legislation on today’s agenda, we have a request to hold over the Supreme Court television bill, S. 1945. We will have amendments on the Violence Against Women Act (VAWA) Reauthorization, when we turn to that item.
On today’s agenda for the first time is the nomination of Mr. Desai, to be a Member of the Foreign Claims Settlement Commission. I understand there are actually two nominations pending for Mr. Desai, one for a term that has already expired and the other is a re-nomination to a current term expiring in 2014. We are prepared to move that nomination by voice vote.
We also have two nominees who appeared on the agenda last week. I’m not aware of any request for a vote on Mr. Erby’s nomination, so we can voice vote that nomination as well.
With regard to the Watford nomination, I have some remarks to make. Other Senators may wish to be recognized, after which we request a roll-call vote.
I will oppose the nomination of Paul J. Watford to be United States Circuit Judge for the Ninth Circuit and ask my colleagues to vote no.
I have substantive concerns regarding Mr. Watford’s views on both immigration and the death penalty.
Mr. Watford partnered with the American Civil Liberties Union (ACLU) and the National Immigration Law Center (NILC) in two cases to oppose Arizona’s 2010 immigration bill. In the first case, Friendly House, a class-action lawsuit, Mr. Watford served as co-counsel for most of the plaintiffs, including the class action representative, Friendly House.
The Friendly House complaint attacks the Arizona law on a variety of grounds. He argued the law violates the Supremacy Clause; violates the Equal Protection Clause by promoting racial profiling; violates the First Amendment by chilling the speech of non-English speakers; violates the Fourth Amendment; and violates Due Process by inviting racial profiling and employing vague definitions of “public offense” and other statutory terms.
In the second case, United States v. Arizona, Mr. Watford served as co-counsel on an amicus brief filed by the Friendly House plaintiffs. This brief covers most of the arguments raised in the Friendly House complaint. But in addition, it asserts that Arizona “fails to account for the complexities and realities of federal immigration law” because individuals lacking immigration registration documents are put at risk of “constant and repeated criminal prosecution.”
I don’t believe that an attorney should be held accountable for the legal positions he advocates on behalf of a client. Of course, there are some exceptions to that general rule. For instance, if the legal positions are far outside the mainstream of legal theory, are frivolous, or indicate an unacceptable level of professional competence.
In this case, Mr. Watford has not simply argued on behalf of a client. He adopted those legal theories as his own. On July 14, 2010, Mr. Watford gave a speech analyzing the constitutionality of the Arizona law. His speech concentrated on “why SB 1070 is unconstitutional,” recapping many of the Friendly House arguments.
Moreover, despite the fact that he discussed his views on immigration publicly, he nonetheless declined to answer many of my questions. For instance, I asked about an argument in his brief that the Arizona statute prohibiting illegal aliens from soliciting work violated the First Amendment. He said it would be inappropriate for him to comment on questions related to the whether illegal immigrants were entitled to constitutional protections other than those contained in the Fifth, Sixth, and Fourteenth Amendments. Again, he had already given a speech on this topic, so I was disappointed that he would not share his views on these important topics.
With regard to the death penalty, Mr. Watford assisted in submitting an amicus brief to the Supreme Court in Baze v. Rees on behalf of a number of groups who opposed Kentucky’s three-drug lethal injection protocol. In its plurality opinion, the Court rejected the arguments raised in the brief. Ultimately, Kentucky’s three drug protocol was upheld 7-2.
Mr. Watford gave the standard response that he would follow Supreme Court precedent regarding the death penalty. Yet, I find it curious that he would go out of his way to provide his services to a case that would undermine the death penalty.
Furthermore, his concession that he would give consideration to foreign or international law in interpreting the meaning of the Cruel and Unusual Punishments Clause makes me wonder how he would approach this issue.
I have other concerns based on positions this nominee has taken, in his legal advocacy as well as in some of his presentations.
I’m generally willing to give the President’s nominees the benefit of the doubt when the nominee on the surface meets the requirements I have previously outlined. But, I don’t think this nominee meets these requirements.
And again, as I indicated last week, we’re not operating under normal circumstances. The atmosphere the President has created with his disregard for Constitutional principles has made it difficult to give his nominees any benefit of the doubt. So I will oppose this nomination and ask my colleagues to do the same.
With respect to the Violence Against Women Act (VAWA), I’m glad that S.1925 is before the Committee. No one can legitimately question my commitment to helping victims, especially victims of domestic violence. I have a long record on this issue and I’m proud of it. I have consistently supported previous reauthorizations of VAWA. The law has been reauthorized with broad bipartisan support in the past.
If all S.1925 did was reauthorize the valuable programs that VAWA authorizes, I’d be an original cosponsor. I’d even be able to agree to many of the new additions to the bill.
I wish we could proceed in a consensus fashion again. But there are provisions in the bill before us that have never been part of VAWA before. They’re not consensus items. I’m hopeful that a consensus bill will be able to pass again.
Over a period of months, our staffs have worked on bridging differences between our positions. Some agreements were reached. Other areas remain in disagreement. I thank you for offering your substitute. Although I’m unable to co-sponsor, or even vote for the amendment, I appreciate that you have continued to improve the bill that you originally offered.
The Violence Against Women Act has done much good over the years. I’ve seen firsthand in Iowa the services that are provided and the victims who are helped. They’ve contacted me in support of reauthorization. I’ve received a letter from State Attorneys General taking the same position. I’d say three things in response to these letters.
First, I agree with you that the programs that VAWA currently funds should be reauthorized.
Second, unfortunately, it doesn’t follow that therefore S.1925 should be enacted. As I said, the bill, unfortunately, contains many provisions that aren’t connected to current law and that the letters do not address.
And third, supporters of VAWA should know that whether or not a reauthorization bill passes, VAWA will still be funded. No reauthorization is needed for that to occur. In fact, the current VAWA authorization has expired.
I’d like to introduce a letter into the record, from a number of groups that oppose S.1925.
I’ll turn now to some of the provisions that I cannot support. For instance, S.1925 states that it recognizes the “inherent power” of Indian tribes “which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons.” Now I believe in the importance of federal responsibility for law enforcement and social services for Indian tribes. And I believe in tribal self-government. But as we meet here today, there is no inherent power of tribes to do anything of the sort the bill says. Self-government is not government over “all persons” – including non-Indians.
Because tribes lack this power, it’s untrue to say that Congress can recognize and affirm it. And if we do, I don’t know what effect such language will have on current law enforcement arrangements. After all, the bill goes much further than changing something for the future. It says that something exists that does not now exist.
For the first time, the Committee would extend tribal criminal jurisdiction over non-Indians. I do not believe the Committee has a good understanding of what the consequences would be of doing so. This was put in the bill. Like the other provisions to which I object, it was not the subject of any hearing.
Why would Congress, should it decide for the first time to make such a change, do so on a bill to reauthorize VAWA? Why should domestic violence cases be the first criminal cases to be treated in this way? What precedent would be created that might lead to other prosecutions of non-Indians in tribal courts? The bill’s expansion of the civil jurisdiction of tribal courts over non-Indians also needs more thought.
The Leahy substitute would prohibit discrimination by grantees on the basis of sexual orientation or gender identity. Of course, I agree that shelters and other grant recipients should provide services equally to everyone. But advocates of this provision haven’t produced data that shelters have refused to provide services for these reasons. This is true even after we were told they would send a report on the subject. The provision is a solution in search of a problem. Instead, it is only a political statement that shouldn’t be made on a bill that is designed to address actual needs of victims.
The substitute creates so many new programs for underserved populations that it risks losing the focus on helping victims, period. For instance, the programs for youth now cover people who are up to age 24. And there is a program for older victims, defined as over 50. Most of the population is under 24 or over 50. But by definition, only a minority of the population can be underserved.
There are so many programs for underserved groups that many women will be targeted by multiple programs. That doesn’t make sense. And when you consider that men are victims of various kinds of sexual violence – as the state Attorneys General point out, 1 in 71 men outside prison is a rape victim. Those victims face a large social stigma in seeking help. Are we going to now create programs for underserved male victims as well? If every group is a priority, no group is a priority.
I’m also troubled by the provisions of the bill that change current federal criminal law. For instance, the bill amends the assault statute as it defines “strangulation” and “suffocation.” It permits prosecution when the defendant acts “intentionally.” This is poor drafting. The federal courts of appeals define this term inconsistently. If this language were to become law, prosecutions for this offense would differ depending where in the country they were brought.
Similarly, the bill’s changes to the marriage broker statute create an offense with no required intent. This is a serious concern to me. I oppose any strict liability offenses in this area. And the bill’s language on sexual abuse of a ward is vaguely written, creating potential liability long after the government official ceases to exercise supervision or control of the person.
The Leahy substitute contains some measures to enhance accountability for grantees. I appreciate that. But more is needed. The Inspector General conducted a review of 22 VAWA grantees from 1998 to 2010. Of these 22, 21 were found to have some form of violation of grant requirements ranging from unauthorized and unallowable expenditures, to sloppy recordkeeping and failure to report in a timely manner.
In 2010, one grantee was found by the Inspector General to have questionable costs for 93 percent of the nearly $900,000 they received from the Department of Justice. A 2009 audit found that nearly $500,000 of a $680,000 grant was questionable. We should make
sure that VAWA money goes to the victims.
I also have concerns about some of the immigration provisions included in the Chairman’s substitute. I appreciate that he deleted several troublesome provisions from his original bill. Unfortunately, it wasn’t enough.
VAWA is meant to protect victims of violence. It shouldn’t be an avenue to expand immigration law or to give additional benefits to people here unlawfully.
I was disappointed that the Chairman’s bill – as introduced – included sweeping immigration provisions. The substitute that we’re contemplating today struck a provision that watered down the law enforcement certification for U visa applicants. As everyone knows, law enforcement must certify that a person is, or will be, helpful in a criminal investigation before a U visa is granted.
The Chairman’s original provision would have undermined the entire U visa program, and would have opened it up to abuse. It would have effectively eliminated the role and authority of law enforcement in what is supposed to be a law enforcement tool.
I’m also glad that the substitute we’re considering does away with work authorizations for anyone that simply applies for protection under VAWA. During this time of record unemployment, I couldn’t see the need to hand out more work authorizations to individuals who may not have the right to be here in the first place.
Despite these advances, the Chairman’s substitute retains a provision to increase the annual cap on U visas. I objected to this increase early on in negotiations. Originally, the Chairman wanted to increase the cap from 10,000 annual visas to 20,000. The mark we’re presented with today would only increase the cap by 5,000, but it does so by taking “unused” visas from previous years. In this instance, the Chairman wants to go back to 2006 and claim that since we didn’t use all the visas allowed at that time, we should use them now. We could be talking about 34,000 or more “unused” visas.
I’m not a fan of legislative attempts to “recapture” unused visas. I’ve opposed recapture in the past with other programs.
I’ll compare this little trick to authorizations and appropriations. It’s like saying that “We authorize $10 million each year for program X, but we only spent $5 million on it in the previous three years, so let’s go ahead and spend $35 million more today to make up for it.” That’s absurd.
We have numerical caps on many visa programs. We have caps for a reason. The U.S. can’t take everybody who comes to our shores, as much as many would like to. Caps are a way to control the flow of people. They are a stop-gap measure against fraud.
Moreover, increasing the cap on U visas will likely increase the costs to taxpayers. I’d be interested to know how much the increase in the numerical cap would cost the government and the American people.
Finally, with regard to the immigration provisions, I want to say that the substitute is woefully inadequate when it comes to fighting fraud and abuse in the U visa or VAWA self-petitioning program.
I’ll discuss this issue more when I offer my substitute, but this committee needs to include safeguards against immigration fraud.
So although there is much in S.1925 I can support, there are many other provisions that I oppose. I’ll be offering amendments today and I hope we’ll be able to improve the bill, because we all agree the issue is important.
Amendment EAS12031 to S.1925, “Violence Against Women Reauthorization Act”
Mr. Chairman, I’d like to offer amendment EAS12031 to S.1925.
My substitute amendment accepts some of the changes to the existing VAWA in the Leahy bill. But it makes additional changes as well.
It strikes the unprecedented expansion of the power of tribal courts. I believe in tribal self-government. But I don’t support Indian courts governing non-Indians. The Committee held no hearing on this, and I’m concerned about its ramifications.
What would the effect be on non-Indians? Do the tribes have the resources and expertise to prosecute these additional responsibilities? Why is this being offered on this bill? What other crimes against non-Indians will be prosecuted in tribal courts if domestic violence crimes were tried in this way?
My substitute amendment eliminates requirements that certain groups be the subjects of underserved population programs. Programs for youth end at age 20. Programs for the elderly begin at age 60. Others are eliminated altogether.
For instance, there is no showing that discrimination is occurring by VAWA recipients against individuals based on sexual orientation or gender identity. Adding language on this subject is a solution in search of a problem. It is a political statement only.
If we have too many programs directed at supposedly underserved groups, we risk spreading services too thin and losing the focus on victims that VAWA was created to do. My substitute amendment authorizes a study to determine the reasons why domestic violence services aren’t provided to the individuals who don’t receive them. We need real data on this subject.
As the witness from the Government Accountability Office pointed out at our VAWA hearing in July, “Having better and more complete data on the prevalence of domestic violence, sexual assault, dating violence, and stalking, as well as related services provided to victims of these crimes, can without a doubt better inform and shape the federal programs intended to meet the needs of these victims.” This is the type of information we’re requesting, and it will help make sure we aren’t throwing good money after bad programs. Once we have this data, then we can enact legislation that really serves those who are underserved.
My substitute amendment tightens accountability for funds used. These are straightforward provisions that we have previously adopted on the Trafficking Victims bill to deter fraud and abuse. I strongly support money going to the victims. So these anti-fraud measures in my substitute amendment will ensure that more of the VAWA funds go to services and less to the waste, fraud, and abuse that the Inspector General found existed in its random audits of VAWA fund recipients.
For example, since 1998, the Inspector General has audited 22 individual VAWA grantees. In those random audits, 21 were found to have unallowable costs, unsupported expenditures, or other serious deficiencies in how they expended taxpayer dollars. That is millions of dollars that could have helped an untold number of victims, but instead was lost to graft.
Specifically, the anti-fraud provisions include mandatory audits, as well as mandatory exclusions for those who are found to have violated program rules.
The provisions prohibit the government from providing taxpayer dollars to non-profits that hold funds offshore for the purpose of evading our tax laws. They also limit conference expenditures at the Justice Department and the Department of Health and Human Services unless there is proper oversight. Moreover, these provisions prohibit lobbying by grantees, and limit administrative expenses in the Government. These provisions previously passed out of the Committee on bills where there was less evidence of wrongdoing. There is no reason we shouldn’t include all of these anti-fraud, good government provisions here today.
My substitute amendment also provides that more money go to victims and less to bureaucrats by keeping the separate Office of Violence Against Women as an entity within the Office of Justice Programs. The importance of the Office is maintained. But there is no need to duplicate in Office of Violence Against Women the bureaucracy that overlaps with Office of Justice Programs, and the money saved can provide that a greater portion of VAWA funds really flows to victims.
My substitute amendment also cleans up a number of the criminal provisions in the Leahy bill. It strikes the offense that doesn’t require intent. It strikes the parts of the definitions of “strangulation” and “suffocation” that define the required intent in an ambiguous fashion. It clarifies that the crime of sexual abuse of a ward is not of infinite duration.
The final part of my amendment addresses immigration fraud. It replaces the expansive immigration sections in the bill with three new sections. These new sections combat fraud and truly protect the victims of domestic violence.
As I said at the hearing in July, an issue that must be addressed during the reauthorization process is immigration fraud.
We must do everything in our power to help victims of abuse and domestic violence. At the same time, we can’t allow a law intended to prevent abuse to be manipulated as a pathway to U.S. citizenship for foreign con artists and criminals.
At the hearing in July, the Committee heard the powerful testimony of Julie Poner. She described her personal experience as a victim of immigration marriage fraud and with the fraudulent use of VAWA self-petitions.
The committee also received written testimony from John Sampson, who had 27 years of experience as a senior deportation officer with the U.S. Immigration and Customs Enforcement and its predecessor agency. He described immigration fraud as being at an “epidemic level.”
The Committee received similar written testimony from Michael Cutler, who had 30 years of experience with the Immigration and Naturalization Service.
The Committee also received written statements from more than 20 individuals who maintained that they were victims of marriage fraud or were falsely accused as part of VAWA self-petitions.
These witnesses told of their first-hand experiences and how foreign nationals prey on U.S. citizens simply to get a green card. The U.S. citizens thought it was all for love. But after saying “I do,” the foreign national lodged false allegations, sometimes of physical abuse, in order to get out of the marriage, collect alimony, and secure a green card.
Witnesses have said that their side of the story was never heard, because under the process used by the United States Citizenship and Immigration Services, the citizen’s side of the story isn’t considered. The USCIS handles all of these green card applications in one remote service center that relies exclusively on paper, without interviewing either the allegedly abused foreign national or the accused citizen.
I was encouraged at the hearing when the Chairman acknowledged the impact of Ms. Poner’s testimony and instructed his staff to speak with her. I had hoped that immigration fraud would be addressed in the bill introduced by the majority.
So I was disappointed when I saw that the bill introduced by the Chairman didn’t include a single provision that addressed immigration fraud in VAWA self-petitions or in other visas.
That’s why my amendment takes on the issue of fraud.
It would require an interview of the applicant. Each VAWA petition will be assigned to an investigative officer at a local service center of the United States Citizenship and Immigration Services. That officer, before he or she adjudicates the petition, will be required to conduct an in-person interview of the alien who filed it. Currently, these petitions are adjudicated exclusively on the paper work.
Also, as part of the adjudication, the investigative officer will determine whether any law enforcement agency has undertaken an investigation or prosecution of the abusive conduct alleged by the petitioning alien. If a criminal proceeding finds the citizen not guilty of the charges, the VAWA application will be denied.
Finally, if an investigative officer makes a written finding that the petitioning alien made a material misrepresentation, it will be grounds for deportation.
The second immigration related section would strengthen the requirements for a U visa.
This change is needed in light of the efforts to eliminate the role of law enforcement agencies in the U visa process and to eliminate the requirement that an alien actually help with an investigation before receiving a U visa.
Under current law, the requirements for receiving a U visa are generous.
There’s no requirement that an investigation be commenced as a result of the alien reporting the crime. There’s no time period within which an alien has to report the crime.
The crime could’ve occurred years before it’s reported and there could be no way to identify the perpetrator. Moreover, the alien seeking the U visa could even have a criminal record of their own.
So, my amendment implements some common sense, best practices.
In addition to confirming that the alien has been helpful, each law enforcement certification also will have to confirm that:
(1) the alien reported the criminal activity to a law enforcement agency within 60 days of its occurrence;
(2) the statute of limitations for prosecuting an offense based on the criminal activity has not lapsed;
(3) the criminal activity is actively under investigation or a prosecution has been commenced;
(4) the alien has information that will assist in identifying the perpetrator of the criminal activity and/or the perpetrator’s identity is known; and
(5) the alien has provided a copy of written documentation, signed by a licensed medical doctor, verifying that he or she suffered substantial physical or mental abuse as a result of having been a victim of a qualifying criminal activity.
With these changes, U visas will become a true law enforcement tool. The additional requirements will ensure that the help given is real and significantly advances an actual investigation and prosecution.
The third immigration related section will have the Government Accountability Office conduct a study and prepare a report.
The report will assess the efficiency and reliability of the process for reviewing applications for U visas and self-petitions under VAWA, including whether the process includes adequate safeguards against fraud and abuse. It will also identify possible improvements in order to reduce fraud and abuse.
Finally, my substitute amendment implements some of the changes to the International Marriage Broker Regulation Act that are part of the Chairman’s bill. I’ve included the portions that I feel comfortable with.
The provisions that I didn’t include made negative factual findings about the Department of Justice, created new criminal laws, and altered how the Department of Justice enforces the Marriage Broker law.
I didn’t believe it was appropriate to include those provisions, in light of the fact that we haven’t received any input on these issues from the Department of Justice.
It’s fitting that today’s markup occurs on February 2, Groundhog Day. We’ve seen over and over again what happens when the majority insists on reporting out a bill from Committee that has the support of none of its Republicans. The bill isn’t enacted into law.
If we’re to enact a VAWA reauthorization law, we should start with my substitute. The House, I believe, will pass legislation very similar to my substitute. My substitute will provide the funding for the programs that the state Attorneys General and the various grant recipients want. In the past, we have facilitated passage of VAWA reauthorization by keeping VAWA a consensus bill. We can do so again if we remember that less is more. I ask my colleagues and the advocates of S. 1925 to be realistic. VAWA can continue to be funded under its current language even if no reauthorization bill is passed this year.
I urge my colleagues to support my amendment.