National Defense Authorization Act for Fiscal Year 2005-Continued

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005-CONTINUED

Mr. KENNEDY. Mr. President, I yield myself 6 minutes on the legislation.

I want the history of this legislation to understand what a very important and significant role my friend and colleague, the principal sponsor of this legislation, the Senator from Oregon, GORDON SMITH, has played in giving us the opportunity on the floor of the Senate to vote on an issue of enormous importance and consequence in terms of justice in our country, and to be able to express what this Nation is really about; that is, that when we are going to be facing hate crimes, we are going to use every possible tool we have to deal with these crimes. We are not going to battle them with one hand tied behind our back.

I have enjoyed the chance to work with Senator Smith on this legislation over a number of years. We have had some successes in trying to get it through the Senate, but we have failed. However, I admire my friend and colleague's perseverance. As Shakespeare says, perseverance, Lord, make honor bright, and the Senator from Oregon has enhanced the honor in the Senate by giving us an opportunity to address this issue.

For those listening to these remarks, they may not understand how complicated it is to get a real vote on some matters which are basic and of fundamental importance. On many occasions when they have opposed the legislation, Members try to undermine the central thrust of the legislation, divert it with parliamentary tactics.

The Senator, because of the respect Members have for him, has been able to ensure that the Senate will address this issue frontally, and it should, because it is a defining issue in terms of our country and our society about what this country represents. On the issues dealing with hate crimes, we find them to be completely unacceptable in this country.

We have learned from past experience, in other hate crimes legislation, where the gaps in the legislation have been. This legislation is very targeted, limited, but an important legislative effort to try to address those serious loopholes in a way which is both constitutional, is limited, but also effective and can make an important difference in terms of reducing the incidence of hate crimes.

I am sure my friend remembers a number of years ago we had the proliferation of church burnings in this country, primarily focused in the southern part of this Nation. After a good deal of deliberation, we were able to get the FBI involved in church burnings. The difference we saw was virtually almost overnight. Once America understood in different places of the country that we were serious about making sure we would use the full resources of our National Government to halt church burnings, it is amazing how they were effectively halted. There are still a scattering of them in some communities but effectively the epidemic we were seeing at that time has halted.

The Senator from Oregon and I believe we can make the similar type of progress on the issues of hate crimes. That is why this is such an opportunity.

I will take a few moments later to describe the appropriateness of this amendment on this legislation and the particular challenges we have been faced with in the military. As an Armed Services Committee member who has reviewed and watched that closely, I will come back to this issue. However, let me point out this is entirely relevant to this legislation. We have seen that hate crimes have taken place in the military. A number of occasions I will describe or place in the RECORD.

On one particular occasion it was based upon race. We saw a commanding general perform in an extraordinarily exemplary way, and on another occasion, when dealing with a young gay man, the performance was abysmal. The fact is, we ought to make sure that certainly the Armed Forces are going to understand we are not going to tolerate the issues of hate crimes in the military or in any other place in our society.

It has been argued that our bill is discriminatory because it singles out hate crimes from other crimes when, in fact, all crimes are hate crimes. That is not true. It is not supported by the history or the law. Every crime is tragic and harmful and has its consequences because not all crime is based on hate. Hate crimes are based on bigotry or prejudice. A hate crime occurs when the perpetrator intentionally selects the victim because of who the victim is.

Mr. WARNER. If the Senator will yield, the Chair inquired as to the management of the time in opposition, and I ask unanimous consent that any Senator desiring to speak in opposition could speak for up to 10 minutes. If he or she desires additional time, we can seek an additional UC for another 10 minutes, and if a quorum is put in it will be charged equally to both sides.

The PRESIDING OFFICER. Is there objection?

Mr. SMITH. I further ask that the request be modified to reserve to Senator Kennedy and myself any time unused after his remarks.

Mr. WARNER. Absolutely.

Mr. KENNEDY. I don't expect we will have numerous speakers, but it could happen that all the time will be taken up by people using 10 minutes.

So as I understand what the Senator is saying, those who want to speak may speak up to 10 minutes, but within the general timeframe the total time is divided.

Mr. WARNER. Yes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. KENNEDY. I ask that interlude not be charged against my time.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. KENNEDY. As with acts of terrorism, hate crimes have an impact far greater than the impact on the individual victims and their families. They are crimes against entire communities, against the whole Nation, and against the fundamental ideals of liberty and justice for all on which America was founded.

As Attorney General Ashcroft has said, criminal acts of hate run counter to what is best in America, our belief in equality and freedom.

According to the surveys conducted by the Department of Justice, 85 percent of law enforcement officials believe hate-
motivated violent crimes are more serious than similar crimes not motivated by bias. One need look no further than the current conflict in the Middle East or recall the ethnic cleansing campaigns in Bosnia, Rwanda, what is happening in the Sudan today, study the Holocaust itself, to understand that violence motivated by hate is different and is more destructive. Or consider the hate crimes committed in America. Most of them are committed by multiple offenders against a single victim.

Because the victims are attacked simply because of who they are, there is little that can be done to avoid being a victim of a hate crime. Hate crimes are twice as likely as other crimes to involve injury to the victim and four times as likely to require hospitalization.

In the 1993 decision in Wisconsin v. Mitchell, a unanimous Supreme Court recognized that bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.

A hate crime against one member of a group sends a strong message to the other members that you are next, that certain parts of the country aren't safe for you to work or travel or live in, that you better watch your step. This is domestic terrorism, plain and simple, and it is unacceptable.

Centuries ago, Blackstone commented it was unreasonable that among crimes of a different nature, those should be most severely punished, which are the most destructive of the public safety and happiness.

The simple fact is that hate crimes are different. They are more destructive than other crimes. The Federal Government has a responsibility to send a clear and unambiguous message that hate-motivated violence in any form from any source will not be tolerated.

Congress recognized the special harm caused by hate-motivated bias when it passed the current hate crimes law following the assassination of Dr. King in 1968, when it passed the Hate Crimes Statistics Act of 1990, and when it passed the Hate Crimes Sentencing Enhancement Act of 1994. Now it is time for Congress to take the next step toward protecting all Americans from the problems of hate-motivated violence, by passing the Local Law Enforcement Enhancement Act to address the obvious deficiencies in the current Federal hate crimes law.

As we mentioned, we are going to have our time. We hope those who might be in opposition would come over to the Chamber to debate us.

I think before I yielded myself 7 minutes. Do I still have a little time left on that?

The PRESIDING OFFICER. The Senator has consumed the time.

Mr. KENNEDY. Mr. President, I yield myself 2 additional minutes.

First of all, I know the Senator from Oregon, Mr. Smith, has described this amendment, but what this amendment does is it authorizes the Justice Department to assist State and local authorities in hate crimes cases. It authorizes Federal prosecutions only when a State does not have jurisdiction or when a State asks the Federal Government to take jurisdiction or when a State fails to act against hate-motivated violence.

In other words, the amendment establishes an appropriate backup for State and local law enforcement to deal with hate crimes in cases where States request assistance or cases that would not otherwise be effectively investigated and prosecuted. So this is very limited and targeted.

I want to remind the Senate that the original hate crimes preventive legislation was introduced in 1997 in the 105th Congress. The Senate Judiciary Committee held hearings in the 105th Congress and the 106th Congress. We had testimony from State and local law enforcement, the Justice Department, victims and families, and respected constitutional lawyers alike.

Our hate crimes bill has passed the Senate twice. In July of 1999, we passed it as an amendment to the Commerce-Justice-State appropriations bill. The amendment was stripped out in conference. In June of 2000, the bill was passed as an amendment to the Department of Defense authorization bill by a vote of 57 to 42. So there is precedent for this action. We had good bipartisan support.

Several months later, the House of Representatives voted 232 to 192 to instruct the conferees to accept the hate crimes bill. Again, however, the bill was stripped in conference.

In the 107th Congress, the Local Law Enforcement Act was introduced with 51 original cosponsors and favorably reported out of the Judiciary Committee by a vote of 12 to 7. In June of 2000, the Senate failed to invoke cloture on it with a vote of 54 to 43, with a clear majority supporting it.

So this issue has been studied. We have had extensive hearings. We have listened to the constitutional authorities. We have listened to local, State, and Federal officials with regard to this issue. We have also read the newspapers of this country and have studied what has been happening in the growth of hate crimes.

The PRESIDING OFFICER. The Senator has consumed the time.

Mr. KENNEDY. Mr. President, I will come back to that in a moment.

Mr. SMITH. Mr. President, will the Senator yield for a question?

Mr. KENNEDY. Yes, I yield.

Mr. SMITH. I say to the Senator, I wonder, as you recounted some of these horrendous acts that have occurred, if you are familiar with the Wisconsin case that is called Wisconsin v. Todd Mitchell. It is the 1993 case in which Chief Justice William Rehnquist authored the decision upholding hate crimes legislation. As it says in this preamble:

The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendments. We hold that it is not.

Sir, this was a unanimous decision. And Justice Rehnquist-again, you would probably agree with me, I say to the Senator-is one of the more conservative justices. He wrote:

Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated for a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim. . . .

And that was the man's race.

Justice Rehnquist held it is entirely appropriate to look at the man's motive in ultimately ascribing the severity of the penalty that was handed down for this assault that was made by a White man on a Black man. It was prosecuted under the
Federal Hate Crimes Act.

I am sure the Senator is familiar with that. Maybe he can help me to explain to my conservative colleagues how it is that we are trying to legislate thought or punish thought and punish speaking. Would the Senator agree with me that Justice Rehnquist and I are both right in saying we are only punishing conduct and the evidence that comes from thought and speech that can be used legitimately, constitutionally to enhance penalties?

Mr. KENNEDY. Mr. President, I thank the Senator for raising this issue because this is enormously important. The Senator from Oregon, in terms of protection of the first amendment, has reviewed the holding in the Wisconsin case.

As the Senator remembers, this principle was reaffirmed this last year by the Supreme Court in the cross burning decision in Virginia v. Black. As we know, as it has been interpreted, this act punishes violence, not speech. It covers only violent acts that result in death or bodily injury. It does not prohibit or punish speech, expression, or association in any way, even hate speech-even hate speech.

Those great lines of Oliver Wendell Holmes:

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.

We ensure that even the hate speech is not affected in this. It is the violence, the physical violence that we are addressing, and it is enormously important that our colleagues understand that.

Mr. President, I withhold the remainder of the time.

I suggest that we have the quorum call, and I suggest that we have it on the opponents' time until it reaches where we are, and then we will charge it to both of us if that is acceptable.

Mr. SMITH. Mr. President, if I can modify the request, I think in fairness to my colleagues who disagree with me, we better charge it equally.

I ask unanimous consent that Senator ARLEN SPECTER of Pennsylvania be added as a cosponsor to this amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. SMITH. I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. KENNEDY. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. KENNEDY. Mr. President, I think we had 42 minutes, and we divided that up formally. May I ask, of the 21 minutes, how much time have I used?

The PRESIDING OFFICER. The proponents have 12 minutes.

Mr. KENNEDY. Twelve minutes. That is all that remains between both of us, Senator Smith and I?

The PRESIDING OFFICER. No, for the proponents.

Mr. KENNEDY. We are both proponents.

The PRESIDING OFFICER. The opponents have 37 minutes.

Mr. KENNEDY. Mr. President, I yield myself 2 minutes.

I will put more information in the RECORD, but I want to point out to our colleagues the growth of hate crimes in this country, what the Southern Law Poverty Center has said has taken place. That is the authoritative group, more so than even the Justice Department. The number of hate groups in America has expanded exponentially ever since 9/11. The figures we have here are basically dated figures, because they don't go in until after 9/11, but what we do see is the total number of hate crimes statistics during the period of the 1990s have been going higher and higher. Hate crimes based on sexual orientation have gone up significantly over the last several years. The venom and the hate against gays and lesbians has increased dramatically.

The backlash since 9/11 has been dramatic with regard to hate crimes against Muslims. This chart shows the dramatic increase and it is continuing to go up at an extraordinary level. Hate crimes against Arab Americans and hate crimes against Arabs have gone up dramatically in the last 2 years. Beyond that, hate crimes against Jews in the country and society have gone up exponentially as well. For all of these groups, I will include accurate information. But this is a real problem.

There is the possibility of not having a universal solution, and we don't suggest that with the passage of this amendment all of these problems are going to go away. But what we are going to say is, we ought to be battling this with the full force of the U.S. Government. When we guarantee the kinds of rights and liberties in this country that are in the Constitution and the Bill of Rights, we ought to make sure they are going to be enforced with the full power and authority of the United States. That is what our legislation does in dealing with the issue of hate crimes.

I yield the floor.

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Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.