Statements on Introduced Bills and Joint Resolutions

Floor Speech

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - October 03, 2007)

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BY Mr. DURBIN (for himself, Mr. COBURN, Mr. FEINGOLD, and Mr. BROWNBACK):

S. 2135. A bill to prohibit the recruitment or use of child soldiers, to designate persons who recruit or use child soldiers as inadmissible aliens, to allow the deportation of persons who recruit or use child soldiers, and for other purposes; to the Committee on the Judiciary.

Mr. DURBIN. Mr. President, I rise today to introduce the Child Soldiers Accountability Act of 2007. This narrowly-tailored bipartisan legislation would make it a crime and a violation of immigration law to recruit or use child soldiers. Congress must ensure that perpetrators who commit this war crime will not find safe haven in our country.

I would like to thank the other original cosponsors of the Child Soldiers Accountability Act, Senator TOM COBURN of Oklahoma, Senator RUSSELL FEINGOLD of Wisconsin, and Senator SAM BROWNBACK of Kansas. This bill is a product of the Judiciary Committee's new Subcommittee on Human Rights and the Law, which is the first ever congressional committee dealing specifically with human rights. I am the Chairman of this Subcommittee and Senator COBURN is its ranking member.

Up to 250,000 children currently serve as combatants, porters, human mine detectors and sex slaves in state-run armies, paramilitaries and guerilla groups around the world. These child soldiers are denied the childhood that our children and grandchildren have and to which every child has an inalienable right. Moreover, their health and lives are endangered.

Children are recruited and used in combat situations because their emotional and physical immaturity makes it easy to mold them into obedient combatants who will witness and partake in horrific violence, often without comprehending their actions. Child soldiers are frequently recruited in areas of long-standing conflict where there are no longer eligible adults for recruitment. In many cases, they are provided with drugs and alcohol to numb them to the atrocities they are required to commit, as well as to increase their dependency upon the armed group.

Children are more likely to be killed, injured or become ill in combat situations than adults. In combat, child soldiers have been forced to the front lines, sent into minefields ahead of older troops or even used for suicide missions.

The devastating effects of war and abuse on the physical, emotional and social development of children are long lasting. Former child soldiers require extensive care and support from family and others in order to be rehabilitated and reintegrated into society. In the absence of such support, former child soldiers may comprise a generation of adults who will perpetuate conflict and undermine security, creating unforeseen challenges that our children will have to address.

There is a clear legal prohibition on recruiting and using child soldiers. Under customary international law, recruitment or use of child soldiers under the age of 15 is a war crime. Over 110 countries, including the United States, have ratified the Optional Protocol to the Convention on the Rights of the Child, which prohibits the recruitment and use of child soldiers under 18.

While there have been positive developments internationally in the prosecution of child soldier recruitment and use, especially by the Special Court for Sierra Leone, the ability of international tribunals or hybrid courts to try these cases is limited. The average perpetrator still runs very little risk of being prosecuted. National courts can and should play a greater role in prosecuting perpetrators.

Unfortunately, recruiting and using child soldiers does not violate U.S. criminal or immigration law. As a result, the U.S. government is unable to punish individuals found in our country who have recruited or used child soldiers. In contrast, other grave human rights violations, including genocide and torture, are punishable under U.S. criminal and immigration law.

This loophole in the law was identified during a hearing entitled ``Casualties of War: Child Soldiers and the Law,'' held by the Senate Subcommittee on Human Rights and the Law. Ismael Beah, a former child soldier and author of the bestselling book A Long Way Gone: Memoirs of a Boy Soldier, testified at this hearing. Mr. Beah said this gap in the law ``saddens me tremendously'' and that closing this loophole ``would set a clear example that there is no safe haven anywhere for those who recruit and use children in war.'' Mr. Beah also posed a moral challenge to all of us:

When you go home tonight to your children, your cousins, and your grandchildren and watch them carrying out their various childhood activities, I want you to remember that at that same moment, there are countless children elsewhere who are being killed; injured; exposed to extreme violence; and forced to serve in armed groups, including girls who are raped (leading some to have babies of commanders); all of them between the ages of 8 and 17. As you watch your loved ones, those children you adore most, ask yourselves whether you would want these kinds of suffering for them. If you don't, then you must stop this from happening to other children around the world whose lives and humanity are as important and of the same value as all children everywhere.

The Child Soldiers Accountability Act will help to ensure that the war criminals who recruit or use children as soldiers will not find safe haven in our country and allow the U.S. government to hold these individuals accountable for their actions.

First, this bill will make it a crime to recruit or use persons under the age of 15 as soldiers. Second, it will enable the government to deport or deny admission to an individual who recruited or used child soldiers under the age of 15.

This legislation will send a clear message to those who recruit or use child soldiers that there are real consequences to their actions. By holding such individuals criminally responsible, our country will help to deter the recruitment and use of child soldiers.

I urge my colleagues to ask themselves the question Ishmael Beah posed: Would we want our children or grandchildren to endure the pain and suffering that Mr. Beah and other child soldiers face? As Mr. Beah reminded us, the lives of child soldiers are just as important as those of our children and grandchildren. We have a moral obligation to take action to help these young people and to stop the abhorrent practice of recruiting and using child soldiers.

I urge my colleagues to support this legislation.

Mr. President, I ask unanimous consent that the text of the bill be printed in the RECORD.

There being no objection, the text of the bill was ordered to be printed in the RECORD, as follows:

S. 2135

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By Mr. DURBIN (for himself and Mr. SCHUMER):

S. 2136. A bill to address the treatment of primary mortgages in bankruptcy, and for other purposes; to the Committee on the Judiciary.

Mr. DURBIN. Mr. President, over 2 million families are going to lose their homes in the next few years. Mr. President, 28,000 of those families are in Illinois.

Why?

Because they are stuck in bad mortgages.

Homeowners across America don't need to hear from me to know that the housing boom has busted. From Wall Street to Main Street, we see the spillover effects on the economy.

I am pleased that in Congress we are now talking about how to tighten lending regulations so we don't repeat this type of market meltdown--and there is certainly more work to be done on that--but in the meantime, millions of families are stuck in the current mess. They need our help.

It is true that some families knowingly stretched a bit to buy more house than they should have. But many families were sold mortgages they couldn't afford by unscrupulous brokers. Some families were given faulty appraisals, only to find later that their homes weren't worth as much as they thought. Still other families have been hit with a mountain of excessive fees that have pushed them over the edge.

Regardless of the reason, a family pushed into foreclosure is a disaster for the homeowner and the surrounding community, and it is a bad deal for the banks as well.

That is why I am introducing the Helping Families Save Their Homes Act, which will help around 600,000 families who have nowhere else to turn to save their homes.

I support the constructive efforts of all of my Democratic colleagues in both the Senate and the House to deal with this crisis, and with this bill I add one more targeted solution to that list.

Bankruptcy should be the last resort, to be sure, but this change in how family homes are treated in bankruptcy will help hundreds of thousands of families who would otherwise be out on the street.

Today, a bankruptcy judge in Chapter 13 can change the structure of any secured debt, except for a mortgage on a principal residence. When this exception was added to the law in 1978, mortgages were largely 30-year fixed rate loans that required 20 percent down and were originated by a local banker who personally knew the homeowner. In 1978, it was rare for the mortgage to be the source of financial difficulty that sent a family into bankruptcy.

The mortgage market has changed since then, to put it mildly. Now, unregulated out-of-town mortgage brokers can sell exotic ``no-doc,'' ``interest-only,'' ``2-28,'' or other mortgages to families, with few questions asked. The mortgages are then securitized by big banks and sold into the secondary market to investors who have no knowledge of the homeowner's financial situation. Risk is dispersed, but so is responsibility.

In 1978, when a family realized it might begin having trouble making the house payments, it could go down to the local bank and work out a new plan to keep up. Today, families struggle to even get a straight answer on the phone.

As the New York Times documented on Sunday, one homeowner made around 670 phone calls to her loan servicer over a 3-month period in an attempt to work out a modified mortgage that she could pay and that would still be profitable to the bank. She spoke to 14 different people and received nine different answers on how she should proceed. Community activists confirm that this type of struggle is not unusual. For millions of families who are nearing foreclosure, this just isn't good enough.

We need another solution for families that aren't being helped by their bank.

If mortgages on vacation homes and family farms can be modified in bankruptcy, why can't mortgages on primary homes?

My bill would allow bankruptcy judges to work out payment plans with homeowners and banks and would also protect families from excessive fees.

The bill would help families who are at risk of losing their homes. But it also protects property values for every other family on that block. In fact, this change in the way mortgages are handled in bankruptcy would save an estimated $72.5 billion in existing property values for the neighborhood, since each foreclosure on a neighborhood block reduces the property value for every other family on that block.

As for the banks? Foreclosures cost banks around $50,000 to process, so every home saved from foreclosure represents a good deal for them too. My bill would allow judges to modify mortgages only in ways that would still be profitable for the banks and their investors.

Everybody wins, right? Well, the banks are still opposing this bill, so I would like to take a moment to directly address some of the primary complaints that I have heard. There are too many families in need--and this bill makes too much sense--for the bill to be shot down.

While everyone seems to agree on the problem--millions of families are going to lose their homes when the variable rate loans that were originated in 2005 and beyond begin to reset, and fall--some argue that we shouldn't do anything to help these families keep their homes in bankruptcy. I have heard three main complaints, none of which stand up to scrutiny.

The first complaint is that banks are already helping homeowners with their mortgage problems, and so this change is unnecessary.

In fact, the banks aren't doing nearly enough. A recent study by Moody's Investors Service Inc. found that the 16 largest subprime servicers, which manage a combined $950 billion of loans, modified just 1 percent of the loans that were made in 2005 and that reset in January, April, and July. Shouldn't we try to help some of the other 99 percent of homeowners who are at risk of foreclosure but who could make payments on a different mortgage that is still profitable for the banks?

The second argument is that Congress shouldn't modify the bankruptcy code again so soon after the 2005 amendments were implemented.

However, the changes made to the bankruptcy code in 2005 had nothing to do with mortgages on primary residences. My bill would change elements of the code that date from 1978.

Would the banks argue that the tax code shouldn't be changed in 2007 because a completely unrelated area of the tax code was modified in 2005? Not if they don't want to get laughed out of the Finance Committee room, they wouldn't.

Finally, I have heard that allowing mortgages on principal residences to be modified in bankruptcy would introduce ``uncertainty'' in the market and would cause the market for loans for low-income families to dry up.

But mortgage lending is a hypercompetitive market. There is no evidence to suggest that a full-scale exodus will occur because of a change to the bankruptcy law. Banks are still willing to lend for vacation homes and family farms and those mortgages can be modified in bankruptcy, so this argument has no basis in fact.

As a spokesman from JP Morgan Chase said in the American Banker: ``It is always in the best interest of the servicer, the borrower, and the investors if we can modify a loan, because foreclosure means there's no chance the investor is going to recoup their money.'' It should make no difference if a modification is agreed to outside of the context of bankruptcy or within it, if the modification itself is identical.

I would like to conclude by noting that only families that desperately need this help will file for bankruptcy, and only reasonable mortgages will result. My bill has been carefully constructed to avoid unintended consequences in several ways:

First, families that are helped by these changes to the law have to live within the strict IRS spending guidelines for Chapter 13 filers. Families that don't desperately need the help will be very unlikely to try to take advantage of this provision.

Second, every mortgage restructured by a bankruptcy judge will be a better deal for the banks and investors than foreclosure. The minimum value of the mortgage in a restructured deal would be the fair market value of the home, which is the same price the bank would earn if it sold the house after a foreclosure. Plus, the banks will avoid the average of $50,000 in foreclosure fees.

Finally, giving bankruptcy judges the flexibility to restructure mortgages should provide an incentive for banks and investors to do more to restructure mortgages outside of bankruptcy, which is in everyone's best interest.

I repeat that quote from a major bank: ``It is always in the best interest of the servicer, the borrower, and the investors if we can modify a loan, because foreclosure means there's no chance the investor is going to recoup their money.''

I agree. It shouldn't be so hard for customers to modify their loans outside of bankruptcy since it's in everyone's best interest to do so. But allowing families to modify loans within bankruptcy as a last resort so they can keep their homes is the right thing to do.

This bill is supported by the AARP, ACORN, AFL-CIO and SEIU, the Center for Responsible Lending, the Consumer Federation of America, NAACP and La Raza, the National Association of Consumer Bankruptcy Attorneys, the National Community Reinvestment Coalition, and many others.

I urge my colleagues to support this bill, and I look forward to helping families save their homes. Over the next few years, hundreds of thousands of families will desperately need it.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

There being no objection, the text of the bill was ordered to be printed in the Record, as follows:

S. 2136

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