Congressional Record, Volume 151 Issue 103 (Tuesday, July 26, 2005)

[Congressional Record Volume 151, Number 103 (Tuesday, July 26, 2005)]
[Senate]
[Pages S8927-S8932]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

BRAC

Mr. THUNE. Mr. President, last week I offered an amendment to suspend
the 45-day congressional review of the President's final BRAC
recommendations pending completion of several vital studies pertaining
to long-range security needs in the implementation of BRAC and
redeployment of many units presently deployed in Iraq and Afghanistan
back to bases in the United States.
I also introduced a similar amendment yesterday that would allow
Congress discretion to remove individual bases from the closure list
based upon the findings of these studies and results of the
redeployments.
There are two separate options, one of which I hope comes to the
Senate for a vote. I underscore the assertions I made last week. The
underlying purpose of the Base Realignment and Closure Commission, or
BRAC, is not only good for our Armed Forces, it is good for American
taxpayers. We all want to eliminate waste and reduce redundancy in the
Government, but when Congress modified the BRAC law in December of 2001
to make way for the 2005 round of base closings, it failed to envision
this country involved in a protracted war involving stretched manpower
resources and the burden of large overseas rotational deployments of
troops and equipment. This is not the time to begin a new round of
domestic base closures and massive relocations of manpower and
equipment.
I am aware, hearing that coming from a Member of Congress with a
major base on the chopping block, that assertion may sound like another
pitch to defend a home State parochial interest. Regardless of the
outcome for my base, I am very concerned about how this BRAC round will
affect our Nation's overall military posture, not only in South Dakota
but around the country and around the world. This BRAC, in particular,
has serious implications both in the short term, because we are engaged
in a war, and in the longer term because of the need to preserve
critical infrastructure as we enter a very uncertain future.
In essence, we cannot lose sight of the imperative of, in addition to
saving money, perhaps the most critical goal of BRAC should be to
maximize our Nation's warfighting capability. If we fail to follow that
fundamental principle, the BRAC process will fail us and ultimately put
this country at risk.
This BRAC, in particular, not only has serious implications, it
raises serious questions, especially in terms of its timing. In the
short term, our war in Iraq and Afghanistan has put great logistical
strain on our Active military

[[Page S8928]]

and Reserve Forces in terms of both manpower and resources. The
rotational deployment of personnel and assets to overseas areas of
operation has disrupted normal training and maintenance cycles and left
military families with uncertainty.
The drain of resources also raised questions as to our ability to
respond to additional flashpoints if a crisis should arise elsewhere in
the world. Yes, the military is performing its ongoing missions
remarkably well under the circumstances, but is this the time to add to
those commitments by initiating a massive reshuffle of personnel,
equipment, and missions between bases all over the country?
In the long term, these recommendations may pose an even more serious
risk to our security. As the DOD itself points out in the National
Defense Strategy, published earlier this year:

Particularly troublesome is the nexus of transnational
terrorists, proliferation and problem states that possess or
seek WMD, increasing the risk of WMD attack against the
United States.

We simply do not know what dangers may emerge from military powers
such as North Korea, China, Iran, or various rogue states in the next
20 years or more. The threat of terrorism directed against targets in
this country should be indisputable after September 11.
There have been four prior BRAC rounds in the last 20 years. I
believe it is readily apparent that the Pentagon's 2005 BRAC
recommendations go beyond reducing excess infrastructure and would,
instead, reduce critical infrastructure needed to fight the wars of the
21st century.
Prior rounds have been successful in pulling much of the low-hanging
fruit and in reducing waste.
This round begins to cut into the muscle. I want to show you a chart
from 1958, for example. You see there was a large number of Air Force
bases in the northern region of this country. Air Force bases were
dotted all across the northern tier of the United States: Up in the
Northeast, North Central Plains, areas such as that--1, 2, 3, 4, 5, 6,
7, 8, 9, 10--a dozen Air Force bases or more in the northern tier of
this country.
Today, take a look at how that has changed. One can plainly see how
dramatically that number has been reduced and will be further reduced
in the 2005 BRAC round.
You saw the previous chart from 1958. All those bases have been wiped
out. There are three left in the northern tier of the country. This
BRAC round would eliminate Ellsworth Air Force Base in South Dakota and
make Grand Forks Air Force Base essentially a ``warm'' base, hopeful of
an emerging mission but for all intents and purposes removes the
principal mission that has been housed there for some time and leaves
literally only one major Air Force base in the northern tier of this
country.
Of course, one of the flaws I see in this BRAC is not only the
stripping of our air and naval bases in the northern tier, but I
seriously question what I believe to be one of the Pentagon's most
apparent errors in judgment; and that is to consolidate high-value
assets in fewer locations.
In light of the potential threats we face, I wonder whether we really
want to discard a tenet of military doctrine that we have lived by for
the past 60 years. It is called ``strategic redundancy.'' Put simply,
it is the doctrine of dispersing high-value assets at different
locations in order to prevent their complete destruction in a single
attack.
If you look at the statement here, this is from the Air Force
doctrine document, dated November 9, of 2004. It says:

. . . it is easier and more effective to destroy the enemy's
aerial power by destroying his nests and eggs on the ground
than to hunt his flying birds in the air.

If you look at what the potential threats are we face going forward,
and what it means to this Nation to have strategic redundancy, to have
those assets dispersed in several locations around the country, and if
you look at how that fits in with the Defense Department's own military
strategy, you have to ask a question about some of the decisions that
have been made in this particular BRAC round.
Let's look at what it says right here. Again, this is the Department
of Defense, in its March 2005 National Defense Strategy, when it stated
its goal of ``developing greater flexibility to contend with
uncertainty by emphasizing agility and by not overly concentrating
military forces in a few locations.''

I want to put up another chart. It has to do with principles and
imperatives. Even in the Pentagon's deliberative briefing materials
that outline those ``principles and imperatives'' of this BRAC round,
it stated that the Department needed secure installations optimally
located, that support power projection, sustain the capability to
mobilize and ``that ensure strategic redundancy.''
Now, unfortunately, Secretary Rumsfeld's recent BRAC recommendations
to consolidate some of the Nation's most valuable U.S. air and naval
platforms at single installations would apparently abandon that basic
tenet in favor of cutting costs.
Hopefully, we have not forgotten the shortsightedness we once had as
a Nation before Pearl Harbor. Now, folks might dismiss such lapses as
distant events from another time and another place that are not
applicable to today's threats. See on this chart a scene from Pearl
Harbor that took place 60-some years ago. Even in the DOD's Strategy
for Homeland Defense and Civil Support, released a few weeks ago--and,
incidentally, this is a partial completion of one of the amendment's
conditions--it notes that ``a significant element of mission assurance
is continuity of operations--maintaining the ability to carry out DOD
mission essential functions in the event of a national emergency or
terrorist attack.''
It also goes on to state that ``an attack on DOD facilities could
directly affect the Department's ability to project power overseas.''
One well-positioned crater in a runway could ground the entire fleet of
this Nation's B-1 bombers during an emergency, if they are all
stationed at one location. It should always come back to the intuitive
logic possessed by most Americans, and that is that we simply cannot
allow analytical cost models to trump sound and proven security
precautions.
Strategic redundancy, obviously, still has a place in our planning,
as demonstrated in the Pentagon's own planning documents. Why was it
not reflected in its BRAC recommendations?
Additionally, the risk of natural disasters is a constant reminder
that we should not put all our assets in a single location. This chart
shows a tornado that passed within 1,000 feet of the F-16s and B-1
bombers stationed at McConnell Air Force Base back in 1991. Tornadoes
have wreaked havoc on Air Force bases in the past. The one I am going
to show you in a moment is Carswell Air Force Base in Texas. We simply
cannot afford to risk our Nation's security on the whims of a single
deadly tornado that could destroy or damage an entire fleet of
aircraft.
Finally, the GAO has also questioned the potential for cost savings
estimated by the DOD, calling into question whether we want to risk
our national security for questionable cost savings. want to read to
you what it says from the GAO study:

There are clear limitations associated with DOD's
projection of nearly $50 billion in savings over a 20-year
period. Much of the projected net annual recurring savings
(47 percent) is associated with eliminating jobs currently
held by military personnel. However, rather than reducing
end-strength levels, DOD indicates the positions are expected
to be reassigned to other areas.

As this implies, much of these cost savings are apparently illusory.
To quote the distinguished chairman of the Armed Services Committee,
Senator Warner, during his testimony before the BRAC Commission, he
said:

Since 32 percent of BRAC savings come from personnel
reductions, this calls into question the entire savings
estimate--particularly since we are not reducing any
meaningful force structure.

I want to show another GAO chart. The GAO questions, one, the lengthy
payback periods; inconsistencies in how DOD estimated costs for BRAC
actions involving military construction projects; and uncertainties in
estimating the total costs to the Government to implement.
GAO estimates upfront costs of an estimated $24 billion to implement
this round of BRAC. To again quote the distinguished chairman of the
Armed Services Committee before the BRAC Commission, he said this:

My observations are consistent with the testimony of
witnesses and Congressional

[[Page S8929]]

delegations around the country to date who have presented the
Commission firm evidence supporting similar observations of
questionable data and an internal collapse of the
quantitative analytical foundation in lieu of other guidance
provided by senior defense officials. These observations are
also consistent with issues raised by the Government
Accountability Office in its July I, 2005, report to the
Commission and to Congress.

Last week, when I was offering my amendment, the distinguished
chairman, Senator Warner, made what I believe was a reasonable
argument, that by suspending the 45-day review period until these
conditions are met would cause anxiety among some communities by not
knowing their ultimate fate or delaying the process of redeveloping the
base to civilian use.
Now, this may be the case for some communities, but I believe most
communities desperately want to retain their bases because they are the
lifeblood of their local economy. They would do anything--exhaust every
possibility--to have these bases remain open. If anything, knowing that
this Congress has done all it could to have all the answers before
making such a decision I think is tremendously important to these
communities.
I also challenge the perception made by many that these communities
will have many opportunities to develop these closed bases and quickly
restore their economy. This will probably not be the case in rural
areas around bases like Ellsworth Air Force Base and Cannon Air Force
Base.
Some communities may actually prosper from a base closing, where land
for business or home development comes at a high premium and sells for
thousands of dollars per square foot. Bases like Oceana, in Virginia,
will have no difficulty putting the land to profitable use.
As you can see in this picture, Oceana is surrounded by a sea of
development and prosperity. The base is up here. The entire area around
it is completely developed. The land is worth lots of money.
But other bases, like Ellsworth, in my State, as you can see in this
aerial photograph, are surrounded by miles and miles and miles of empty
rangeland and have scant hopes of a booming development taking hold of
the former base. There is little doubt that the nearby community of
Rapid City would have no problems with the delay if it means ensuring
the right decision has truly been made.
There are too many unanswered questions regarding our Nation's long-
term security needs and the circumstances in which our military may
have to operate in the future to make irreversible decisions for which
we could pay a terrible price later. We will not be able to easily
replace or position these installations and units once this BRAC is
fully implemented and we discover we have made a colossal mistake.
Let's take a breath and slow down. My two amendments, offered as
options, merely allow this Nation to have the full benefit of all the
information we need before moving ahead to implement BRAC. The risk is
too great.
Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, if you could tell me the parliamentary
state of affairs.
The PRESIDING OFFICER. The Senate is postcloture on the motion to
proceed to S. 397.
Mr. HATCH. Thank you, Mr. President. I rise in strong support of S.
397, the gun liability bill.
Now, this legislation is a necessary response to the growing problem
of junk lawsuits filed, no doubt, in part with the intention of driving
the firearms industry out of business.
These ill-advised suits attempt to hold manufacturers and dealers
liable for the criminal acts of third parties, actions totally beyond
the control of the manufacturer. These types of lawsuits continue to be
filed in multiple States, seeking a vast array of remedies concerning
the marketing of guns and alleged design flaws. And they continue to be
flawed.
The White House, in its Statement of Administration Policy,
summarized the current problem well. This is what they said:

The possibility of imposing liability on an entire industry
for harm that is solely caused by others is an abuse of the
legal system, erodes public confidence in our Nation's laws,
threatens the diminution of a basic constitutional right and
civil liberty, sets a poor precedent for other lawful
industries, will cause a loss of jobs, and burdens interstate
and foreign commerce.

That is a heck of a good statement because that is exactly what will
happen if we allow these types of suits to continue.
This bill does nothing more than prohibit--with five exceptions--
lawsuits against manufacturers or sellers of guns and ammunition for
damages ``resulting from the criminal or unlawful misuse'' of
nondefective guns and ammunition.
Now, let me repeat that: ``resulting from the criminal or unlawful
misuse'' of nondefective guns and ammunition.
This bill is not a license for the gun industry to act irresponsibly.
If a manufacturer or seller does not operate entirely within Federal or
State law, it is not entitled to the protection of this legislation.
Listen to a few comments from one judge who dismissed some of these
suits. In Ohio, a judge dismissed a gun liability lawsuit, and the
court of appeals affirmed this decision saying:

to do otherwise would open a Pandora's box. For example, the
city could sue manufacturers of matches for arson, or
automobile manufacturers for traffic accidents, or breweries
for drunk driving.

Now, there is no reason the gunmakers should have to continue to
defend these types of meritless lawsuits. We must protect against the
potential harm to interstate commerce here. The gun industry has
already had to bear over $200 million in defense costs thus far. That
is ridiculous. It is immoral. It is wrong.

This legislation is not without precedent. In the 106th Congress,
legislation was introduced to address the possibility of junk lawsuits
related to the Y2K computer problems. This bill sought to ``lessen the
burdens on interstate commerce by discouraging insubstantial
lawsuits.'' It sought to do so by preempting State law to provide a
uniform standard for such suits. This bill merely seeks the same type
of remedy using the same reasoning.
In the past, some have thrown out red herrings arguing against this
bill and suggesting that negligent entrustment will be immunized. This
is pure bunk. It is untrue. That argument doesn't deserve to see the
light of day. Those who make it ought to be ashamed of themselves. The
bill provides an explicit exception for anyone who supplies a gun to
someone they reasonably should have known was likely to use that gun in
a way that would injure another person.
Let me state that again. The bill provides an explicit exception for
anyone who supplies a gun to someone they reasonably should have known
was likely to use the gun in a way that would injure another person.
The bottom line is that this is a reasonable measure to prevent a
growing abuse of our civil justice system. We have had far too many
abuses of that system. This is a chance for Members of this body to
stand up and do something about it.
If we allow these kinds of suits to go forward with guns, then what
is next? Holding manufacturers of knives responsible for stabbings?
Holding manufacturers of baseball bats liable for beatings? We simply
should not force a lawful manufacturer or seller to be responsible for
criminal and unlawful misuse of its products by others.
Individuals who misuse lawful products should be held responsible,
but not those who make lawful products.
We have had through the years a desire by some to put gun controls on
all kinds of guns, even though the second amendment gives us the
freedom to keep and carry arms. To be honest with you, it is an
explicit provision of the Constitution. We should not allow any misuse
of guns, but we should not allow a change in the Constitution by mere
statute that takes away our right to keep and bear arms. That is a God-
given right, in my book, especially in some of the areas of the country
where people have to defend themselves. In my area of the country, we
had to defend ourselves in tremendous ways throughout the whole history
of the West.
To make a long story short, we should not be abusing honest, decent,
law-abiding people who want to collect, shoot, target practice, hunt,
and own guns. We have been through it before.

[[Page S8930]]

It is time to stand up and realize that the people who misuse guns are
criminals. Those criminals should be prosecuted. But to make gun
manufacturers responsible for the irresponsible acts of others, over
which the gun manufacturers had no control, is just plain wrong.
I hope we can pass this bill. It would set a good standard to stop
the frivolous and abusive lawsuits that are occurring in this country
in so many ways, but especially in this particular way.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. 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. DURBIN. Mr. President, I ask to be recognized to speak on the
pending business.
The PRESIDING OFFICER. The Senator is recognized.
Mr. DURBIN. Mr. President, it is amazing how we have reached this
point in Senate business today. We started this day debating the
Department of Defense authorization bill. It is hard to imagine a more
important bill for this Senate to consider and conclude this week. We
are going to be gone for 4 or 5 weeks. The idea was, we would take the
important amendments and decisions to be made about our military, our
men and women in uniform, their benefits, their equipment, and make the
decision this week before we went home. Then a decision was made by the
Republican leadership to interrupt the debate on the Department of
Defense authorization bill and move to the pending bill.
What is this bill? It is a bill that is characterized as ``the gun
industry immunity bill.'' What does it mean? It means that those who
are pushing for this bill want to carve out one industry in America and
say that the people who run the businesses that make the firearms and
sell the firearms cannot be held personally responsible for their
wrongdoing. That's right. If you and I get in an automobile going home
from work, are negligent in our driving the car in any respect, and
there is an accident, we are held personally responsible. If the
business down the street from where you live sells a product that is
defective or dangerous, the person who owns the business, the person
who made the product can be held personally responsible. It is really
part of life that we are responsible for our wrongdoing. The legal
system of America says even people who are powerless have their day in
court to hold accountable the businesses and people who have been
guilty of wrongdoing.
Now comes to the floor the proposal by the Republican leadership that
we take one industry in America and say that it cannot be held
personally responsible for its wrongdoing. Why in the world would we be
doing this? How powerful must the group be that pushes through the
legislation that says they will be treated as an exception in the whole
American body of law? You know the group. They are well known. The gun
lobby, the National Rifle Association. They are so powerful that they
pushed the Senate away from the Department of Defense authorization
bill in the middle of a war. Think about that. How could you move the
Senate from considering a bill to help the men and women in uniform in
the middle of a war? The only way you can do it is if you are a
powerful lobby that snaps and Senators jump. That is what this is all
about.

Before we adjourn at the end of the week, the Republican leadership
wants to make certain that if we can't keep our word to our troops in
the field, we keep our word to the lobbyists downtown for the gun
lobby. We carve out a piece of American law and say they cannot be held
personally responsible. Their businesses can't be held responsible for
wrongdoing.
Is it because there is some huge problem in the gun industry? Are
there businesses that sell guns that are about to go bankrupt because
of all the lawsuits that are being filed against them? Not at all.
Listen to this. On June 29, 2005, the huge American gunmaker Smith &
Wesson said in a press release:

We expect net product sales for fiscal year 2005 to be
approximately 124 million dollars, a 5 percent increase over
the $117.9 million reported for the last fiscal year.
Firearms sales for the next fiscal year are expected to
increase by approximately 11 percent over the last year.

Then March of 2005, Smith & Wesson also said:

In the nine months ended January 31, 2005, we incurred
$4,535 in legal defense costs, net of amounts received from
insurance carriers relative to product liability and
municipal litigation.

Four thousand five hundred thirty-five dollars? Does that sound like
a crisis in the gun industry that would cause us to move away from
considering the Department of Defense authorization bill?
Listen to this from another gunmaker. This is a filing with the
Securities and Exchange Commission, March 11, 2005, from the gunmaker
Sturm, Ruger:

It is not probable and is unlikely that litigation,
including punitive damage claims, will have a material
adverse effect on the financial position of the company.

These companies are doing very well. They are making a lot of money.
They are selling a lot of guns. They aren't being sued. It isn't
costing them a heck of a lot of money when they are sued. Why are we
doing it? Why would we give this unprecedented sweeping immunity to any
industry in America, let alone an industry that makes firearms?
This bill closes the courthouse doors to victims with legitimate
lawsuits. It says: If you are a victim of a gun dealer or a gun
manufacturer who sold a gun in commerce, where they might have known or
should have known that it was going to be used for bad purposes, you
can't go to the courthouse. The door is closed. Sorry. That is the way
it is going to be. The gun industry is going to be treated like
royalty. They are above the law.
During the debate on this bill during the last Congress, the
supporters said a lot of cases about victims were frivolous. We were
told all these companies were on the verge of bankruptcy. None of that
turned out to be true. Two high-profile cases settled. These
settlements would not have occurred had this bill been enacted last
year. One of them, Bull's Eye Shooter Supply, was the dealer and
Bushmaster was the assault weapon maker in the DC sniper case. I
remember that case. These crazy snipers ran around town, killing people
willy-nilly, innocent victims. When it was all over, the company that
made the sniper rifle, the assault weapon, ended up settling with the
families, paying over $2.5 million because of their wrongdoing. And
Bushmaster agreed to inform its dealers of safer sales practices to
prevent other criminals from obtaining guns.
It was only right that the victims had their day in court. It was
only right that a jury of fellow citizens decided their fate. It was
only right that this company was held accountable for sales practices
that ended up endangering the lives of innocent people. Had this bill
now on the floor been passed, there would have been no day in court for
the families who were killed by these DC snipers.
Is that justice, fairness, or is that what we should be doing on the
floor of the Senate instead of working to help the men and women in
uniform who are engaged in a war across the ocean, risking their lives?
Listen to this case. Will's Jewelry and Loan, a West Virginia pawn
shop, settled with Police Officers McGuire and Lemongello in June 2004
for $1 million and agreed to change its practices to prevent sales to
underground traffickers, which includes instituting a policy of
avoiding large-volume sales. Will's had sold the gun used to shoot the
two police officers to a straw purchaser.
It is not only the innocent victims filing who were shot in DC who
would be stopped from suing. This bill will stop policemen and their
families from suing those who were selling guns, putting them into
commerce and endangering the lives of the men and women in uniform who
get up every morning and try to protect us in our communities.
Not surprisingly, law enforcement officials in our Nation oppose this
bill, such as the International Brotherhood of Police Officers and the
Major Cities Chiefs Association, as well as police officers from around
the country have signed a letter begging Congress: Don't

[[Page S8931]]

pass this bill. It will make America more dangerous. It will endanger
the lives of policemen.
Newspapers in 19 different States have editorialized against this
bill. What is troubling to me is that we could go from a bill designed
to help protect America by helping our men and women in uniform to a
bill that makes America less safe, a bill that allows companies to make
guns, which are junk, Saturday-night specials, destined to be used in a
holdup or a killing by some crazed drug addict. We can protect those
companies, but we cannot protect our men and women in uniform, whether
they are serving in our military or serving as our policemen. What a
dramatic distortion of priorities.
The Senate should be embarrassed that we have done this. This is a
week that the Republican leadership will never be able to explain--that
they would leave that bill in the midst of a war in order to do this
grand favor for the gun lobby, the National Rifle Association. It is
not fair. It is not fair that all we do around here is carve out
special treatment and special exceptions for a lot of people who,
frankly, don't need them. We started off with the bankruptcy bill so
credit card companies could make sure that those who end up in
bankruptcy carry the credit card debt to the grave. We passed the class
action bill so individuals filing environmental class actions would
have a difficult time going to court. We have a bill waiting in the
wings that says to 10,000 asbestos victims a year, you victims who
never dreamed you would be dying from exposure to asbestos are going to
be limited when you go to court too. There are bills pending dealing
with the victims of medical malpractice.
And now comes this bill--the absolute icing on the cake--that we
would give to the gun lobby immunity from their own wrongdoing, that
when they make guns that end up killing people, that should not have
been made, without the appropriate warnings, the appropriate safety
devices, when they sell guns by the carload to people who were clearly
destined to sell them on the street, to be used by drug gangs, they
cannot be held accountable.
There is no personal responsibility under this law. That is not
American. That is not what the system of justice is all about. It
certainly doesn't speak to the fairness that we believe is essential to
the American system of justice. When you think of all the things we
could be doing, instead of finding another special interest group to
give their lobbyists such good news that we passed their big bill--we
could be passing a bill that says we are going to stop giving tax
credit to companies that run jobs overseas. We could have done that
this week. No, we didn't have time. We had to help this special
interest group, the NRA. They could have been changing the Medicare
drug prescription bill so they would be able to bargain for lower
prices for seniors. No, that is not on the priority list of the
Republican leadership. We could have been making certain that we don't
privatize Social Security, and instead make it last. That is not a high
priority for the Republican leadership. The gun lobby is the highest
priority this week--higher than our service men and women. They could
have protected the pensions and retirements of Americans who are scared
they won't have anything to rely on. No time for that. No time this
year to deal with it. We could have been dealing with portability of
health insurance and the availability of health insurance for small
businesses. No, we have to deal with helping the NRA. We could have
been helping people with college loans, figuring out new ways that
families can finance the education of their children. Sorry, if you
don't have a big lobby with a lot of power such as the gun lobby, we
cannot do that. We could have been talking about the outsourcing of
medical and financial records, destroying the privacy of individuals
and families. No way. We could have talked about credit card companies,
giving more disclosures on credit cards such as when they increase your
interest rate. No, we don't have time. We have to protect the gun
makers and gun sellers from being held personally responsible in court.
We could have increased our energy availability, it could have been
part of our energy bill. You can hardly find it.
The list goes on. When you talk about the values of the Republican
leadership in the Senate, you know the values today. To think that the
Republican leadership would move away from the Department of Defense
bill for our troops to a special interest bill for the gun lobby, so
that they are not held accountable for selling Saturday-night specials
that kill policemen and innocent people. That is the priority of the
Republican leadership. It is not the priority of the American people.
I look forward to voting against this bill. I hope a majority of my
colleagues will join me in that effort.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. Mr. President, a majority of the Senate is going to
vote for this bill. We have 61 cosponsors. It ought to have already
been passed a long time ago. We will be pleased to get this bill done.
It is something that is needed.
Mr. President, there will be more opportunity tomorrow. What happened
today was that I voted to invoke cloture on the Defense bill so we can
complete the Defense bill, and that was not passed by the votes on the
other side. So when cloture was not invoked, we went to this bill,
which has strong bipartisan support and which will be passed.
However, some on the other side did choose to filibuster the motion
to proceed, as they have a right to do. That is what we are doing
today. Then we will have a filibuster of the bill and we will have
cloture, which I believe will be invoked. Certainly the votes appear to
be there for it. I think we will get this bill done. There are other
things we need to do this week that can still be done.
Mr. President, does Senator Reed have any comments?
Mr. REED. Yes. Mr. President, we have had a long discussion today
about the legislation. I think some of the points the Senator from
Illinois made are very pertinent.
First, there is the erroneous presumption that people who would be
sued would be sued because of the actions of others, when in fact the
negligent suits lie in showing that first an individual had a duty to
someone else--a victim--and that duty was not fulfilled. Essentially,
that is the essence of negligence. If you cannot show that, you cannot
get into court. This is not about somebody being punished or imposed
upon for the actions of others. It goes right to the actions of the
individuals--the seller, manufacturer or, in this case, trade
associations.
There is a perception also, I think, that has been given that the
legislation as drafted actually provides exceptions that will cover the
meritorious suits, the ones that should be before the court and
eliminate the frivolous suits. In fact, that is not the case. As
Senator Durbin pointed out in the situation with respect to the
Washington, DC snipers, there a gun dealer in Washington State was
grossly negligent. He had 230 unaccounted for weapons and they should
have been accounted for. He allowed a teenage boy to walk in and pick
up a sniper rifle off the counter and walk out and didn't know it was
missing until it was discovered to be the weapon of the assassins here
in Washington, DC. That suit would have been barred by this legislation
if it had passed. The two police officers--Lemongello and his partner--
responded to a call and they were in a shootout. They were seriously
hurt, both of them. It turns out that the criminal firing that gun got
it from a gun trafficker who walked into a store, a gun dealership,
with another woman as a straw purchaser and acquired 12 weapons for
cash and walked out the door. In fact, they were so obvious that the
gun dealer called ATF and said he sold them the weapons, but watch out
for them, which is negligent to me. Both cases were settled. Those
cases would be thrown out.
The lives of all of the families in Washington, DC, have already been
totally changed because of the loss of their loved ones. Conrad Johnson
was a bus driver, waiting to go on his bus run, and he was shot,
leaving a wife and children. They would have been out of luck because
they could not have brought a suit like this. And there were others. We
all lived in fear ourselves. We drove around here looking over our
shoulders wondering

[[Page S8932]]

whether the assassins were out here in Washington, DC. One woman who
was an employee of the FBI and was walking in the parking lot of Home
Depot in suburban Virginia was shot. Those families, those victims,
could not have come to the court of justice if this bill passed.
There are other suits that are pending today. There is a case in
Massachusetts, where a young man, Danny Guzman, an innocent bystander,
was shot and killed in front of a nightclub in Worcester. Six days
later, police recovered a 9 mm Kahr Arms handgun without a serial
number behind an apartment building, near where Mr. Guzman was shot. In
fact, I am told a 4-year-old child discovered the weapon first.
Ballistic tests determined that the gun was the one used to kill Danny
Guzman.
This gun was one of about 50 guns that disappeared from Kahr Arms'
manufacturing plant. Some of the guns were removed from the plant by
employees that Kahr Arms hired despite criminal records and histories
of drug addiction. The case is being pursued now. The issue is not what
Mr. Guzman did. It is what this company failed to do. They failed to
have background checks on employees who handled weapons. They failed to
have security devices that would monitor if these weapons would be
taken out of Kahr Arms. I am told, interestingly enough, Kahr Arms is
owned by a holding company for the benefit of the Reverend Sun Myung
Moon's Unification Church. So one of the beneficiaries of this bill, if
it passes, will be Reverend Moon's financial enterprises because they
will be protected from allegations of recklessness, not just
negligence.
Now, the first exception to the bill is title 18 United States Code
section 924(h). This simply permits cases against sellers who sell guns
they know will be used to commit a violent or drug trafficking crime.
First, in the Kahr case, the guns were not sold; they were taken
surreptitiously out of the factory. This exception would not apply.
Second, you have to show they knew that the guns would be used to
commit a violent or drug trafficking crime--not that they were
negligent in allowing guns in circulation, but that they had to know
they would be used in a violent or drug trafficking crime.
The next exception is negligent entrustment. This applies where a gun
dealer knows, or should know, that a purchaser will shoot someone with
the gun, and that individual shoots a person. This exception only
applies to a gun ``seller.'' Once again, Kahr Arms was not, in this
situation, a seller. Moreover, Kahr Arms did not entrust its guns to
its employees. Rather, Kahr's employees removed the guns from the plant
because of Kahr's negligent security, inventory tracking, and hiring of
employees with histories of criminal conduct and drug addiction. So
that exception doesn't apply.
There is another exception, negligence per se. Under this provision,
gun sellers whose negligence causes injury could not be liable unless,
at a minimum, they also violated a law or regulation which the court
found an ``appropriate basis'' for a negligence per se claim and which
proximately caused the injury. The exception only applies to a gun
seller, and the bill defines sellers to include only importers or
dealers, not manufacturers.

Moreover, in many States--and Massachusetts is one--negligence per se
claims are not allowed under their practice and, therefore, the
exception would not apply.
Knowing violation of the law exception: This exception applies where
a gun seller or manufacturer knowingly violates a State or Federal
statute when it makes a sale that leads to an injury. Here, Kahr Arms
did not violate statutes related to the sale or manufacturing of a gun.
Rather, Kahr's employees surreptitiously took the guns out.
Breach of contract or warranty exceptions once again do not apply. It
merely allows gun purchasers to sue if the seller or manufacturer did
not provide the product or service it promised in its sales contract.
This exception clearly does not apply.
Defective design is a narrow exception for actions for some deceptive
design or manufacturing cases. But that exception does not apply.
Rather than being legislation that allows the good suits through and
the frivolous ones out, this legislation effectively denies people,
such as the family of Danny Guzman, their day in court, and many
others. It would have denied the two police officers from New Jersey
their day in court. It would have denied the victims of the snipers
their day in court.
For these reasons and many others, I am opposed to the legislation
and join others who are and look forward to continuing our discussions
in the hours and days ahead.
Mr. SESSIONS. Mr. President, I thank my able colleague and will say,
it is such a state we are in America that a company whose employees
steal the guns and go out and shoot somebody with them gets sued for
it. That is a fact of what my friend is saying, that these companies
ought to be sued as a result of the theft of a gun by their employees.
If the law required them to do a background check and they failed to
do so, they clearly would be liable under this act. The fact of filing
off a serial number is, in fact, a criminal offense for which I have
prosecuted quite a number of criminals. In addition, it would trigger,
of course, a civil liability.
Gosh, we can talk about it a lot, and I will be glad to continue to
discuss it, but the basic fact is a lot of these lawsuits are claiming
that if they know, if manufacturers or distributors or sellers either
know or should know that some guns will be used illegally, they should
be responsible for it. That is not good law. This is against what we
are about in this country.
All this legislation does is say if you sell the firearm according to
law, if you manufacture it according to law and somebody commits an
intervening criminal act with it and shoots somebody, you should not be
sued. But we have this anti-gun crowd which doesn't care about general
principles of law that have stood us in good stead for hundreds of
years. They have learned to manipulate the matter as effectively as
they can to maintain lawsuits. The letter from Beretta I read earlier
indicates that in the District of Columbia, the gun manufacturers who
sold a gun in Minnesota and it was transported some way to Washington,
DC, and was used in a crime and somebody was shot, the gun manufacturer
is liable for that. And, in fact, that one jurisdiction that allows
that kind of lawsuit can be enough to take down every gun manufacturing
company in the United States. They have had some tough years and a lot
of litigation going on.
Mr. President, I have spoken again, and unless my colleague would
like to reply, we will close. It has been a good debate, and I have
enjoyed it.

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