Congressional Record, Volume 151 Issue 162 (Friday, December 16, 2005)

[Congressional Record Volume 151, Number 162 (Friday, December 16, 2005)]
[Senate]
[Pages S13736-S13749]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S13736]]
THE PATRIOT ACT

Mrs. FEINSTEIN. Mr. President, I rise today as a 12-year member of
the Senate Judiciary Committee and a 5-year member of the Senate
Intelligence Committee. I do so indeed with a very heavy heart. I have
had, until now, great confidence in America's intelligence activities.
I have assured people time and time again that what happens at home has
always been conducted in accordance with the law.
I played a role in the PATRIOT Act. I moved one of the critical
amendments having to do with the wall and the FISA court. Today's
allegations as written in the New York Times really question whether
this is in fact true. I read it with a heavy heart, yet without knowing
the full story.
Let me be clear. Domestic intelligence collection is governed by the
Foreign Intelligence Surveillance Act, known as FISA. This law sets out
a careful set of checks and balances that are designed to ensure that
domestic intelligence collection is conducted in accordance with the
Constitution, under the supervision of judges and with accountability
to the Congress of the United States.
Specifically, FISA allows the Government to wiretap phones or to open
packages, but only with a showing to a special court--the FISA court--
and after meeting a legal standard that requires that the effort is
based on probable cause to believe the target is an agent of a foreign
power.
Let me cite two sources. The first is a 1978 report by the Senate
Select Committee on Intelligence. In the report is a comment by the
then-chairman of that committee, Senator Birch Bayh. He is talking
about the FISA bill that had just come to the floor in 1978:

The bill requires a court order for electronic
surveillance, defined therein, conducted for foreign
intelligence purposes within the United States or targeted
against the international communications of particular United
States persons who are in the United States. The bill
establishes the exclusive means by which such surveillance
may be conducted.

That is the bill, FISA, which was passed in 1978.
Second, in late 2001 this subject came up again on the Senate
Intelligence Committee. The Senate Intelligence Committee discussed
this subject and amended at that time in its authorization bill
National Security Act section 502, which is the reporting of
intelligence activities other than covert action.
Section 502 states:

To the extent consistent with due regard for the protection
from unauthorized disclosure of classified information
relating to sensitive intelligence sources and methods or
other exceptionally sensitive matters, the Director of
Central Intelligence and the heads of all departments,
agencies, and other entities of the United States Government
involved in intelligence activities shall:
(1) keep the congressional intelligence committees--

It doesn't say only the chairman and the vice chairman--

fully and currently informed of all intelligence activities
other than a covert action (as defined in section 503(e)),
which are not the responsibility of, are engaged in by, or
are carried out for or on behalf of any department, agency,
or entity of the United States Government, including any
significant anticipated intelligence activity and any
significant intelligence failure.
And (2) furnish the congressional intelligence committees
any information or material concerning intelligence
activities, other than covert actions, which is within their
custody or control, and which is requested by either of the
congressional intelligence committees in order to carry out
its authorized responsibilities.

At that time, we had this discussion about just the chairman and the
vice chairman receiving certain information, and this act was amended,
and section (b) was added to the National Security Act, called ``form
and contents of certain reports.'' It was to clarify what the form and
content of the reporting to the committee would be. And the wording is
as follows:

Any report relating to a significant anticipated
intelligence activity or a significant intelligence failure
that is submitted to the congressional intelligence
committees for the purposes of subsection (a)(1) shall be in
writing and shall contain the following:
(1) a concise statement of any fact pertinent to such
report;
(2) an explanation of the significance of the intelligence
activity or intelligence failure covered by such report.

And then section (c) was added, ``standards and procedures for
certain reports,'' that those standards and procedures would hereby be
established.
What has happened is that it has become increasingly used just to
notify a very few people. There are 535 Members of the Senate and the
House of Representatives of the United States.
If the President of the United States is not going to follow the law
and he simply alerts eight Members, that doesn't mean he doesn't
violate a law. I repeat, that doesn't mean he doesn't violate a law.
FISA is the exclusive law in this area, unless there is something I
missed, and please, someone, if there is, bring it to my attention.
Section 105(f) of FISA allows for emergency applications where time
is of the essence. But even in these cases, a judge makes the final
decision as to whether someone inside the United States of America, a
citizen or a noncitizen, is going to have their communications
wiretapped or intercepted. The New York Times reports that in 2004,
over 1,700 warrants for this kind of wiretapping activity were approved
by the FISA Court. The fact of the matter is, FISA can grant emergency
approval for wiretaps within hours and even minutes, if necessary.
In times of war, FISA section 111 states this:

Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance
without a court order under this title to acquire foreign
intelligence information for a period not to exceed 15
calendar days following a declaration of war by the Congress.

I would argue the resolution authorizing use of force was not a
declaration of war. I read it this morning carefully. It does not
authorize the President of the United States to do anything other than
use force. It doesn't say he can wiretap people in the United States of
America. And apparently, perhaps with some change, but apparently this
activity has been going on unbeknownst to most of us in this body and
in the other body now since 2002.
The newspaper, the New York Times, states that the President
unilaterally decided to ignore this law and ordered subordinates to
monitor communications outside of this legal authority.
In the absence of authority under FISA, Americans up till this point
have been confident--and we have assured them--that such surveillance
was prohibited.
This is made explicit in chapter 119 of title 18 of the criminal code
which makes it a crime for any person without authorization to
intentionally intercept any wire, oral, or electronic communication.
As a member of the Senate Judiciary and Intelligence Committees, I
have been repeatedly assured by this administration that their efforts
to combat terrorism were being conducted within the law, specifically
within the parameters of the Foreign Intelligence Surveillance Act
which, as I have just read, makes no exception other than 15 days
following a declaration of war.
We have changed aspects of that law at the request of the
administration in the USA PATRIOT Act to allow for a more aggressive
but still lawful defense against terror. So there have been amendments.
But if this article is accurate, it calls into question the integrity
and credibility of our Nation's commitment to the rule of law.
I refreshed myself this morning on the fourth amendment to the Bill
of Rights of the Constitution of the United States. Here is what it
says:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.

Clearly an intercept, a wiretap, is a search. It is a common
interpretation. A wiretap is a search. You are looking for something.
It is a search. It falls under the fourth amendment.
Again, the New York Times states that a small number of Senators, as
I said, were informed of this decision by the President. That doesn't
diminish the import of this issue, and that certainly doesn't mean that
the action was within the law or legal.
What is concerning me, as a member of the Intelligence Committee, is
if eight people, rather than 535 people, can know there is going to be
an illegal act and they were told this under an intelligence umbrella--
and therefore, their lips are sealed--does that make the act any less
culpable? I don't think so.

[[Page S13737]]

The resolution passed after September 11 gave the President specific
authority to use force, including powers to prevent further terrorist
acts in the form of force. I would like to read it. I read Public Law
107-40, 107th Congress:

Sec. 1. Short title.
This joint resolution may be cited as the ``Authorization
for Use of Military Force''.
Sec. 2. Authorization for Use of United States Armed
Forces.
(A) In General.--That the President is authorized to use
all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international
terrorism against the United States by such nations,
organizations, or persons.

Then it goes on to say:

Consistent with section 8(a)(1) of the War Powers
Resolution, the Congress declares that this section is
intended to constitute specific statutory authorization
within the meaning of section 5(b) of the War Powers
Resolution.

This is use of force. It is not use of wiretapping or electronic
surveillance of American citizens or those without citizenship within
the confines of the United States. That is the jurisdiction of the FISA
Court. There is a procedure, and it is timely.
As a matter of fact, we got into this rather seriously in the
Judiciary Committee. At the time we wrote the PATRIOT Act, I offered an
amendment to change what is called ``the wall'' between domestic
intelligence-gathering agencies and foreign intelligence-gathering
agencies from a ``primary purpose'' for the collection of foreign
intelligence to a ``significant purpose.'' We had a major discussion in
the committee, as is the American way. We were making public policy. We
discussed what primary purpose meant. We discussed in legal terms what
significant purpose meant.
So this was a conscious loosening of a standard in the FISA law to
permit the communication of one element of Government with the other
and transfer foreign intelligence information from one element of the
Government to the other.
That is the way this is done, by law. We are a government of law. The
Congress was never asked to give the President the kind of unilateral
authority that appears to have been exercised.
Mr. BYRD. Right.
Mrs. FEINSTEIN. I was heartened when Senator Specter also said that
he believed that if the New York Times report is true--and the fact
that they have withheld the story for a year leads me to believe it is
true, and I have heard no denunciation of it by the administration--
then it is inappropriate, it is a violation of the law.
How can I go out, how can any Member of this body go out, and say
that under the PATRIOT Act we protect the rights of American citizens
if, in fact, the President is not going to be bound by the law, which
is the FISA court?
And there are no exceptions to the FISA court.
So Senator Specter, this morning, as the chairman of the Judiciary
Committee, announced that he would hold hearings on this matter the
first thing next year. I truly believe this is the most significant
thing I have heard in my 12 years. I am so proud of this Government
because we are governed by the rule of law, and so few countries can
really claim that. I am so proud that nobody can be picked up in the
middle of the night and thrown into jail without due process, and that
they have due process. That is what makes us different. That is why our
Government is so special, and that is why this Constitution is so
special. That is why the fourth amendment was added to the Bill of
Rights--to state clearly that searches and seizures must be carried out
under the parameter of law, not on the direction of a President
unilaterally.
So I believe the door has been opened to a very major investigation
and set of circumstances. I think people who know me in this body know
I am not led toward hyperbole, but I cannot stress what happened when I
read this story. And everything I hold dear about this country,
everything I pledge my allegiance to in that flag, is this kind of
protection as provided by the Constitution of the United States and the
laws we labor to discuss, argue, debate, enact, then pressure the other
body to pass, and then urge the President to sign. That is our process.
If the President wanted this authority, he should have come to the
Intelligence Committee for an amendment to FISA, and he did not. The
fact that this has been going on since 2002--it is now the end of 2005.
Maybe 8 people in these 2 bodies in some way, shape, or form may have
known something about it, but the rest of us on the Intelligence
Committees did not.
That is simply unacceptable.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. DAYTON. Mr. President, I thank the Senator from California for
her remarks and associate myself with them. I commend her for taking on
this vital issue affecting all Americans.
I ask unanimous consent that the previous order be modified to permit
Senator Byrd to precede me in speaking order.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from West Virginia.
Mr. BYRD. Mr. President, I thank the very distinguished Senator from
Minnesota for his kindness and his courtesy in yielding to me. I want
to say there is one thing I am sorry about with respect to the Senator
from Minnesota. He made a bad decision some time ago. I wish he had not
made it, and I begged him to retract on it and say he would not do it.
He says he is not going to run again. I am sorry about that. He is one
of the immortal 23 Senators who voted against that resolution that the
Senator from California is talking about. I voted against it. I have
been in the Senate for 47 years, and that is the vote of which I am
most proud because in voting that way, I stood for this, the
Constitution of the United States. That Constitution does not give any
President the power to declare war. It says Congress shall have the
power to declare war. I voted against that resolution, the best vote I
have cast in 47 years in this Senate, and I am proud that the Senator
from Minnesota can carry that tribute with him to the grave. I thank
him and congratulate him. Again, I thank him for yielding to me.
Mr. President, I believe in America. Let me say that again. I believe
in America. I believe in the dream of the Founders and Framers of our
inspiring Constitution. I believe in the spirit that drove President
Abraham Lincoln to risk all to preserve the Union. I believe in what
President Kennedy challenged America to be--America, the great
experiment of democracy.
Where the strong are also just and the weak can feel secure, the soul
and promise of America stands as a beacon, praise God, of freedom and a
protector of liberty which lights and energizes the people around the
world. Today, sadly, that beacon is dimmed. This administration's
America is becoming a place where the strong are arrogant and the weak
are ignored. Fie on the administration.
Yes, we hear high-flung language from the White House about bringing
democracy to a land where democracy has never been. We seem mesmerized
with glorious rhetoric about justice and liberty, but does the rhetoric
really match the reality of what our country has become?
Since the heinous attacks of September 11, I speak of the actions of
our own Government, actions that have undermined the credibility of
this great Nation around the world. These actions taken one at a time
may seem justified, but taken as a whole they form an unsettling
picture and tell a troubling story. Do we remember the abuses at Abu
Ghraib? They were explained as an aberration. Do we remember the abuses
at Guantanamo Bay? They were denied as an exaggeration. Now we read
about this so-called policy of rendition--what a shame--a policy where
the U.S. taxpayers are funding secret prisons in foreign lands. What a
word, ``rendition.'' What a word, ``rendition.'' Shame. It sounds so
vague, almost harmless. But the practice of rendition is abhorrent.

Let me say that again. It sounds so vague, almost harmless, but the
practice of rendition is abhorrent--abhorrent.
The administration's practice of rendition is an affront, an affront
to the principles of freedom, the very opposite of principles we claim
we are trying to

[[Page S13738]]

transplant to Iraq and to other rogue nations.
The administration claims that rendition is a valuable weapon in the
war on terror. But what is the value of having America's CIA sit as
judge and jury while deciding just who might be a threat to our
national security? Such determinations receive no review by a court of
law--none. The CIA simply swings into action, abducts a person from
some foreign country and flies them off to who knows where, with no
judicial review of guilt or innocence. A person can be held in secret
prisons in unnamed countries or even shipped off to yet another country
to face torture at the hands of the secret police of brutal
governments.
Is that what we want? Is this the America that our Founders
conceived? Is this the America that Nathan Hale died for, when he said
I only regret that I have but one life to lose for my country? Is this
the America that he died for? Is this the America that our Founders
conceived? Is this the America of which millions of people dreamed? Is
this, I ask the Senate, the beacon of freedom inspiring other nations
to follow?
The United States should state clearly and without question that we
will not torture prisoners and that we will abide by the treaties that
we signed, because to fail to do so is to lose the very humanity, the
morality that makes America different, that makes America the hope for
individual liberty around the world.
The disgusting, degrading, and damaging practice of rendition should
cease immediately. Is this what Patrick Henry was talking about--give
me liberty or give me death? It is not about who they are. ``It's not
about who they are. It's about who we are.'' Those are the words of my
colleague Senator John McCain, bless his heart. Senator McCain is a
senior member of the Senate Armed Services Committee. He is a former
prisoner of war. He knows what it is all about. And he is exactly
right. There is no moral high ground in torture. There is no moral high
ground in the inhumane treatment of prisoners. Our misguided, thuggish
practice of rendition has put a major blot on American foreign policy.
Now comes this similarly alarming effort to reauthorize the PATRIOT
Act, retaining provisions that devastate many of our own citizens'
civil liberties here at home. What is happening? What is happening to
our cherished America? Let us stop and look and listen and think. What
is happening to our cherished America?
Any question raised about the wisdom of shredding constitutional
protections of civil liberties with roots that trail back centuries is
met with the disclaimer that the world has changed and that the 9/11
attacks are, in effect, a green light. Get that, a green light to trash
this Constitution, to seize private library records. Hear that.
Suppose I want to get a book out of the library. Suppose I want to
read ``Loves Labors Lost.'' The disclaimer that the world has changed
and that the 9/11 attacks are in effect a green light to trash the
Constitution, to seize private library records--suppose I want to read
about ``A Tale of Two Cities.'' They are going to seize those library
records? To search private property--how about that--without the
knowledge of the owner? If you want to go in my house without my
knowledge, without my wife's knowledge, to spy on ordinary citizens
accused of no crime in a manner is a sick--a sick, s-i-c-k, perversion
of our system of justice and it must not be allowed.
Paranoia must not be allowed to chip away at our civil liberties.
Don't let it happen. The United States of America must not adopt the
thuggish tactics of our enemies--no. We must not trash the fourth
amendment because the Senate is being stampeded at the end of a
congressional session. No.
Government fishing expeditions with search warrants written by FBI
agents is not what the Framers had in mind. It is not what Benjamin
Franklin had in mind. It is not what Morris had in mind. It is not what
James Wilson had in mind. Spying on ordinary, unsuspecting citizens--
not with that in mind. Without their knowledge? No. That is not what
the Framers had in mind. Handing the Government unilateral authority to
keep all evidence secret from a target so that it may never be
challenged in a court of law is not what the Framers had in mind.
Yesterday, I believe it was, we heard reports that the military has
spied on Americans simply because they exercised their right to
peaceably assemble and to speak their minds. What disgrace. What a
shame. Today we hear, yes, we hear today that the military is tapping
phone lines in our own country without the consent of a judge. Can you
believe that? Here in this country, where liberty is supposed to
prevail.
Go and ask that Statue of Liberty. Is that what it stands for?
No. Labeling civil disobedience and political dissent as domestic
terrorism is not what the Framers had in mind.
Read history. What is the matter with us? Have we gone berserk? Read
history. That is not what they had in mind.
Our Nation is the most powerful nation in the world. Why? Because our
Nation was founded on a principle of liberty. Benjamin Franklin said
``those who would give up essential Liberty, to purchase a little
temporary Safety, deserve neither Liberty nor Safety.'' Our Founding
Fathers, intent on addressing the abuses they had suffered at the hands
of an overzealous government, established--yes, it did--established a
system of checks and balances, ensuring that there is a separation of
powers--there is a separation of powers. Read it in the Constitution,
article I, article II, article III--a separation of powers so that no
one body may run amok with its agenda. These checks are what safeguards
freedom for you, Mr. President, and for me and for all others in this
land. These checks are what safeguard freedom, and the American people
are looking to us--yes, they are looking through those lenses there,
they are looking at us, yes. The people out on the broad prairies, out
on the plains, out in the valleys, out on the great shores, the frozen
wastes of the North Pole, and, yes, that liberty extends everywhere.
That American liberty extends everywhere. And nobody may run amok with
its agenda.
These checks are what safeguard freedom, and the American people are
looking to us--you, and me, Senator, you, Senator, and you, Mr.
President--looking to us now to restore and protect that freedom.
So many have died protecting those freedoms. And we owe it to those
brave men and women to deliberate meaningfully and to ultimately
protect those freedoms that Americans cherish so deeply. The American
people deserve nothing less.
Earlier today, the Senate voted to stop a bill that would have
allowed the abuses of American civil liberties to continue for another
4 years. Shame. The message of this vote is not just about the PATRIOT
Act but the message that the Senate can stand up, the Senate can stand
against an overreaching Executive of any party, any party, any party
that has sacrificed our liberties and stained our standing before the
world.
The PATRIOT Act has gone too far. It has gone too far. Secret
renditions should be stopped. Torture must be outlawed. Our military
should not spy on our own people.
The Senate has spoken. Let us secure our country but not by
destroying our liberties.
Thank Almighty God for this Constitution and the Framers who wrote
it, and the Founders of our Nation who risked their lives and their
fortunes and their sacred honor. Thank God for checks and balances.
Thank God for the Senate, and may it always stand for the right.
I thank all Senators. I again thank the distinguished Senator from
Minnesota. I want to tell him that I wish he and his family and loved
ones a merry Christmas, a merry Christmas. I thank him.
The PRESIDING OFFICER (Mr. Burr). Under the previous order, the
Senator from Minnesota is recognized.
Mr. McCAIN. Mr. President, parliamentary inquiry: What is the order?
The PRESIDING OFFICER. The Senator is notified that there is no order
after the Senator from Minnesota.
Mr. McCAIN. I ask my friend to indulge me. I ask unanimous consent I
follow the Senator from Minnesota.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. McCAIN. I thank the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.

[[Page S13739]]

Mr. DAYTON. Mr. President, I want to associate myself with the
remarks made by the great Senator from West Virginia, and he is a great
Senator. His 47 years of experience here and wisdom have made him an
invaluable Member of this body, a leader of this body, an invaluable
mentor to newcomers such as myself, and his fidelity to the
Constitution, his understanding of history, his understanding of the
appropriate relationship of this body, as an independent branch of
Government, with the executive branch has been patriotic, courageous,
and right.
I thank him for his remarks and for his kind words.
I also want to share the outrage that he expressed, and the previous
speaker, the distinguished Senator from California expressed, about
these disclosures. Yet another one today, reading in the New York Times
about the secret spying on American citizens by the National Security
Agency, in contravention of law and in contravention of previous policy
under Presidents, Republican and Democrat.
That, on top of the revelations about secret torture camps being
conducted, again extra-illegally, by this administration, to the
detriment of the great name of the United States of America.
I see that the outstanding Senator from Arizona is on the floor and
will follow me with his remarks. To his enormous credit, he has been
the champion of putting the United States back on track and assuring
that we set the example, the proper example, for the rest of the world
in how to conduct itself even under adverse circumstances.
The PRESIDING OFFICER. Under the previous order, the Senator from
Arizona is recognized.
(The remarks of Mr. McCain, Mr. Lieberman and Mr. Durbin pertaining
to the introduction of S. 2128 are located in today's Record under
``Statements on Introduced Bills and Joint Resolutions.'')

Torture

Mr. DURBIN. Mr. President, I salute Senator John McCain. He achieved
something this week which is historic. He achieved an agreement with
the Bush administration on the issue of torture. That took a lot of
hard work on his part. He took a 90-9 vote in the Senate with him to
the White House, meeting with the President's representatives.
What Senator McCain was seeking is something fundamental. He wanted
to reaffirm in law the fact that the United States would still stand by
its word and by its values, that we would not engage in torture even
though we are in this new age of terrorism and threat to America. He
said: This is less about the enemy than it is about us, who we are and
what we stand for.
I can recall during the debate on this issue, Senator McCain took the
floor and gave one of the best speeches I have heard in this Chamber, a
speech only he could give. As a former prisoner of war, a Navy pilot
shot down over Vietnam, he was a victim of torture. No one else in this
Chamber, fortunately, can speak to it as he spoke to it. But in
speaking to it, he reminded us that torture is not American. It is not
a good means of interrogating prisoners or coming up with information
to make America safer. There was a lengthy debate about whether his
provision would be included in the final legislation. Fortunately, the
White House has agreed to include it.
I was happy to cosponsor that legislation. I have been raising this
issue for the last several years. I know how controversial it can be. A
few months ago I had the spotlight focused on me for some comments made
at this same desk. But I believe that the issue of torture is one that
we have to face forthrightly.
Last week I was traveling in northern Africa and visited with one of
our ambassadors. He is an ambassador to one of the Muslim nations. We
talked about the challenges he faces with our involvement in Iraq. He
said: The controversy about our involvement in Iraq paled in comparison
to the controversy in his country about America's role when it came to
torture. He said: It is hard for the Muslim population and Arab
populations to understand why the United States would abandon a long-
term, multidecade commitment not to engage in torture once they were
involved in a war involving Arabs and Muslims. He reminded me--and I
didn't need to be reminded--that we issue a human rights scorecard each
year from the Department of State. Some of the questions we ask of
countries around the world are: have you incarcerated someone without
charges? Are you holding them indefinitely? Are you torturing them? If
the answers are affirmative, we give them low marks.
Today, obviously, those countries are asking whether the Americans
live by the same standards they are imposing on others. John McCain's
leadership, along with Senator John Warner, chairman of the Armed
Services Committee, resulted in an important agreement to restate the
most basic and bedrock principle, that America will not engage in
torture. We will not engage in cruel, inhuman, and degrading treatment
of prisoners: First, because it is not American; second, because it
invites the same treatment on our soldiers and Americans; and third,
because it doesn't work. We have found time and again, if you torture a
person they will say anything to make the torture stop. That doesn't
give you good information to make America safe. Let me salute Senator
McCain for his leadership.

Eavesdropping on Americans

Mr. President, I am troubled by the reports in the New York Times and
Washington Post today that this administration, since 9/11, has been
engaged in a practice which I thought had been clearly prohibited in
America. That is the eavesdropping on individual American citizens,
those in America, by major agencies such as the National Security
Agency. This all started some 30 years ago during President Nixon's
administration. It was an administration which created an enemies list.
If your name was on that list, be careful; J. Edgar Hoover would be
looking into every aspect of your life that he could. You might be
audited by the Internal Revenue Service and you would be carefully
watched and monitored.
We decided that wasn't a good thing for any President to do. We made
it clear that if you had good reason to eavesdrop on an American in the
commission of a crime, involvement in terrorist activity, that was one
thing. But to say you could do it with impunity, without any legal
approval, that was unacceptable.
Now we find it has been done for several years and several thousand
Americans have been the subject of this wiretapping and eavesdropping.
Mr. President, that is a troubling development. It says that this
administration has decided when it comes to basic rights of Americans,
they are above the law, not accountable; they don't have to go through
the courts, don't have to follow the ordinary judicial process. That is
something that Congress has to stand up and fight. We have to make it
clear that even in the age of terrorism, basic freedoms and liberties
of Americans have to be respected.
I hope that as soon as we return from this holiday break the
appropriate committees will initiate investigations, determine what has
occurred, whether it has gone too far. I sincerely hope, on a
bipartisan basis, that my colleagues will rally to once again assert
the fundamentals when it comes to the right of privacy in America. We
want to be safe in America but not at the cost of our freedom. That,
unfortunately, has become an issue because of these most recent
disclosures.
Mr. SESSIONS. Mr. President, I remain baffled by the failure today to
move forward with the PATRIOT Act. That piece of legislation is
exceedingly important. We know for an absolute fact, as Senator Kyl and
others have pointed out, that terrorist organizations and their
movements and activities were not properly discovered by law
enforcement because of a failure to share information and other
restrictions that fell on those investigators. That has been
demonstrated with clarity. In fact, some say had we not had the wall
between the CIA and the FBI and they could actually have shared
information, we may have even prevented 9/11.
I say this to my friends in this country. Federal agents follow the
law. The law said the CIA, which is out dealing with international
terrorist groups and others who want to harm the United States, and the
FBI, which is given the responsibility of homeland protection and crime
enforcement in this country,

[[Page S13740]]

were not allowed to share information. And they did not do so. It was
part of a governmental reform. I think the Frank Church committee
thought they were doing something good, but they ended up creating a
wall that prohibited the sharing of information that made it far more
difficult for Federal investigators to do the job we pay them to do.

This afternoon, I saw a lady from New York who was touched by 9/11.
She wants this bill passed. As a matter of fact, she was shocked that
it was not. Why is she shocked? It just passed this Senate a few days
ago 100 to 0, by unanimous consent, not a rollcall vote, but unanimous
consent, without an objection. It came out of the Senate Judiciary
Committee, 18 to 0. We have a host of libertarians on that committee--
civil libertarians and libertarians. Chairman Specter is very proud of
his heritage of civil liberties. All of us take it seriously in that
committee, and it came out unanimously.
The bill went to the House, and they passed this very bill that we
just blocked. The House passed it with a 75-vote majority even though,
in fact, the House had to recede and give about 80 percent of the
differences in the House and Senate bill over to the Senate side. The
Senate bill was clearly the bill that was the model for the legislation
on which we finally voted.
So we go over to the House. They have some provisions and we have
some provisions and there is a good bit of discussion over the issues.
Finally, a conference report is agreed to. It comes back over here, and
all of a sudden we face a filibuster.
The PATRIOT Act will sunset December 31. It will be gone. We will not
have the provisions that are in it. Those provisions have played a big
role in helping us protect this country from another attack. Who would
have thought we would have gone over 4 years since 9/11 without another
attack on this homeland? I hope no one thinks that success to date--
praise our Creator--has not been driven in large part by effective law
enforcement activities by the FBI, the CIA, and other agencies that are
charged with these responsibilities.
The compromises reached in the conference committee to work out the
differences between the House and Senate bill, according to Chairman
Arlen Specter, tilted in favor of the Senate on the disputed provisions
by about 80 percent. He said there is not a dime's worth of difference
in terms of whether civil liberties were enhanced or not enhanced in
the bill that we just voted on and the one that came out of committee
18 to 0 and passed the Senate unanimously.
So why would this Senate and the great Democratic Party, except for
two of its members, vote to block us from an up-or- down vote on this?
I don't understand. I think it is a serious matter.
There are provisions in the bill that are important. As I have tried
to state, as a Federal prosecutor for 15 years nearly, I remain baffled
by the concerns over the bill. I remain baffled because of the fact
that every provision in the bill has already been a part of Federal law
at some point in time and had never been overruled or found
unconstitutional. But many of the law enforcement capabilities that the
bill delineates and makes clear and actually creates frameworks for
already exist in current law.
I knew from the beginning that there was nothing in the bill that was
going to be held to be unconstitutional and, indeed, it has not because
it was written in such a way that we would not violate the
Constitution, and it would be within the principles of our commitment
to civil liberties.
All of us are committed to civil liberties. One of our Senators, Mr.
Byrd, said we don't need search warrants written by FBI agents.
Absolutely we don't. We don't want an investigator being able to
conduct a search of somebody without an independent order of a judge,
and there is nothing in this bill that does that. We don't change the
great protection that you have to have a court-approved search warrant,
for heaven's sake. There is nothing in this bill that comes close to
that. But these are the kinds of charges that have been made, upsetting
people and making them think there is something strange or overreaching
about this legislation. It passed with only one negative vote 4 years
ago, 90-something to 1.
We need to get our act together on this bill. I urge my colleagues to
read the legislation that Senator Specter has so carefully written so
that anybody can understand what the complaints are, to consider what
the Department of Justice has said, to listen to the debate, and
actually read the legislation. I am convinced that if colleagues would
take a moment to do so, they will find that all of our great liberties
are protected and, in fact, we didn't give to FBI terrorist
investigators the same powers an IRS investigator has this very day to
subpoena bank records that relate to a person who may not have paid
their income tax. IRS agents can do that on a daily basis.
I see my colleague. Maybe I have already utilized over 10 minutes. If
I have, I will be pleased to wrap up and yield the floor. I am over 10
minutes.

I feel strongly about this mainly because I am so concerned that
people have allowed this vote to become a vote on whether one believes
in civil liberties or whether one believes in law enforcement.
The bill was written and came out of committee--Senator Leahy
approved it; he monitored its passage from the beginning--so as not to
violate the Constitution, not to undermine our liberties, but to make
sure that Federal investigators who are trying to keep another 9/11
from happening here have the same powers as IRS agents. And, indeed, we
didn't even give them that much power, in many instances. They still
have less in some instances.
We need to get our act together on this legislation. We need to move
this bill. I don't think it needs to be any weaker. If we come back and
water it down and pass it, it would be a mistake.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Oregon is recognized.
Mr. WYDEN. Mr. President, I would like to let the Senator from
Georgia propound a unanimous consent request first.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. ISAKSON. Mr. President, I thank the Senator from Oregon. I ask
unanimous consent that I be recognized to speak following the speech of
Senator Wyden from Oregon.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Oregon.

Stopping Indecent Programming

Mr. WYDEN. Mr. President, as the session winds down this year, I
wanted to take a few minutes and bring to the attention of the Senate a
new development that I think will be of great interest to millions of
parents and families across the country. As the distinguished President
of the Senate knows from our service in the other body, parents are
greatly concerned that their children are bombarded every day with
obscene, indecent, profane, and violent entertainment on television.
Parents come up to us as legislators and say: What are you going to do
to stop this trash? What are you going to do to keep indecent
programming away from our children's eyes and ears?
Of course, we all wish for an ideal world where parents would take
the most direct action, which is simply to turn the television set off.
That is something that can be done without any Government role. But
with parents working--and very often both parents working two jobs each
to try to make ends meet--that is not always possible.
So as I began to look at how to solve the indecency problem, I asked
what could the Government do in this area to better protect our kids
from indecent programming on television? I also asked how to do it in a
way without a big government bureaucracy program, a one-size-fits-all
approach or where the Federal Government would regulate the actual
content of the programs on our television sets.
As I began the search to try to figure out a responsible approach to
the problem of indecent programming for children, one of the things I
found is one of the cable companies and the big television programmers
have set up a special tier of programming for those people who are
interested in sports and those people who are interested in movies. I
looked at it and found that not only had cable companies done this, it
seemed to be working as well.

[[Page S13741]]

They found a way to do it that the subscribers like and which was
profitable. I said to myself, if that kind of approach works for sports
fans and movie fans, why can we not do it for families as well? Why can
we not have a special tier of programming that is appropriate for
children and works for families, the way we have special programming
for sports and movies?
So earlier in this session, I introduced the Kid Friendly TV
Programming Act, which would require all video service providers to
implement a tier of television programming that is appropriate for
children. In my bill, a kids' tier is defined as a group of 15 or more
television stations blocked off in a separate channel area with both
programming and commercials on it that are purely kid friendly. Parents
would be able to subscribe to this block of stations separate from
their regular programming, knowing the programming on their television
will not carry material that is obscene, indecent, profane, sexual, or
gratuitously violent. In introducing this legislation, it seemed to hit
the criteria that were most important to me: more wholesome choices for
parents and families but not a one-size-fits-all Government mandate.
The Government would put the focus where it ought to be, which is to
give parents a block or tier of channels separate from regular
programming where there would not be material inappropriate for our
children.
After I introduced the legislation, Chairman Stevens and the ranking
minority member Senator Inouye of the Commerce Committee, also made an
important effort in holding a roundtable discussion on the problem of
indecency, which provided some very valuable exposure for the issue. I
want to express my appreciation to both of them for their leadership on
this matter.
I also want to express my appreciation to the chairman of the Federal
Communications Commission, Kevin Martin, who has discussed this issue
with me on a number of occasions. He gave a great boost to this effort
several weeks ago at the forum that was held on indecent programming,
where he came out and said that a kids' tier of programming would be a
responsible, practical way to make sure our Nation's children had more
wholesome choices on television.
This week, spurred on by the legislation, the work of Chairman
Martin, and the good bipartisan work done by Senator Stevens and
Senator Inouye, the cable industry took a small step in the right
direction when six cable companies, including Time Warner and Comcast,
announced they plan to offer a kids' tier of programming in 2006.
Having listened for months to arguments that kids' tier is not going
to be profitable and it is not going to be practical, we saw the
industry finally come to an understanding that it was time to get
serious about this problem.
Yesterday, Time Warner released the details of their kids' tier
offer. I was pleased to see that their proposal included G-rated
stations that run child friendly content 24 hours a day. However, it is
unclear what will be included in the package that parents must purchase
in order to purchase the kids' tier. Parents still may have to
subscribe to a tier that includes stations that carry foul language,
excessive violence, and inappropriate sexual content in order to
subscribe to the kids' tier.
That is not what my legislation called for at all. It said we had to
have alternatives to the kind of inappropriate programming that is out
there now. But in order to subscribe to Time Warner's kids' tier,
families might also have to subscribe to service which could include
inappropriate programming for children.
I am pleased I can say on the Senate floor that at least some people
in the industry have recognized the need for a kids' tier of cable
programming across our country. For a long time, whenever I brought
this up, they basically said western civilization would end if we have
this kind of programming that meets the needs of parents and families.
At least we have seen baby steps to address this issue.
What is needed is not different than what parents have at the candy-
free checkout lane at the supermarket. Just like parents should not
have to take their kids past all the candy to check out at the grocery
store, parents should not be forced to surf through obscene programs in
order to get to the programs for kids that are appropriate.
In the days ahead I want to make sure that children across the
country have an opportunity to have access to this kind of good quality
programming, that the kids' tier is implemented properly, and that it
does not depend on which community one is in. While a family in
Corvallis or Portland in my home State would have a kids' tier
available to them because they are served by Comcast, a family in
Pendleton or Hood River would not because they receive their cable
through a different company. Until all video service providers are
offering a kids' tier the job will be incomplete.
My legislation requires that all video service providers institute a
kids' tier. I want to make sure families get this option. It is my
intent to watch the developments we have seen in the last couple of
weeks with respect to Time Warner and Comcast very closely. I am very
appreciative of what Chairman Martin has done in this area because he
has given great visibility to the question of improving children's
programming.
I see Senator Pryor is in the Chamber as well. He has done excellent
work on the Commerce Committee on this issue of indecent programming
for children.
If we do not see this kind of tier of kid friendly programming done
right across this country, I am going to come back to the Senate and
push for my original legislation. The private sector has taken baby
steps in the right direction, but there is still a great deal left to
do. With millions of kids being exposed to indecent, profane, and
violent programming, it is important to do this job right, and the
Senate ought to stay at it on a bipartisan basis until it is done.
The PRESIDING OFFICER. Under the previous order, the Senator from
Georgia is recognized.

The Tax Code

Mr. ISAKSON. Mr. President, today is an anniversary of a day of great
renown in American history. Two hundred and thirty-two years ago, on
December 16, 1773, a band of colonists boarded three ships in Boston
Harbor, dumped the cargo of tea into that harbor, and it became known
as the Boston Tea Party. It was a protest of taxation without
representation in that great injustice.
I rise today on the floor of the Senate to tell you that injustice
still exists in our tax system, not in taxation without representation
but in the complexity of our system. Think about it for just a second.
It takes the average American filing the simplest form, 1040, 13 hours,
the length of 6 college basketball games, just to fill out our simplest
form. It takes 3 of 5 Americans the cost of hiring an outside
accountant to consult with them just to meet the demands of the current
tax system. It means the Tax Code is now 1,685,000 words long, which is
exactly 380 times the number of words in the entire Constitution of the
United States of America. As all of us on the floor of the Senate know,
in months, 17 million more Americans will be brought under the
alternative minimum tax, a tax that was allegedly started only to
address the taxation of a few that now addresses the taxation of the
many.
Earlier today, I introduced legislation to deal with this injustice
and create a mechanism for us to forthrightly come before the people of
the United States and develop a simpler, fairer, and flatter system of
taxation. Simply put, we would sunset the current Tax Code on the
Fourth of July, 2008, and command the Congress to take the next 3 years
analyzing consumption taxes, progressive taxes, flat taxes, revenues of
all sorts, and the effect each has on the economy and economic policy,
and then come back to the American people prior to that date with a
new, simplified, fairer, flatter tax system, or, if failing to do so,
the Congress of the United States would then be forced to vote on this
floor to extend the existing system we have and all the injustice that
goes with it. Only by creating a deadline, only by being faced with the
termination and the loss of revenue would this Congress forthrightly
take the due diligence it needs to have the massive overhaul our system
needs.
Today, the United States of America in the 21st century is operating
under 20th century rules--1,685,000 words

[[Page S13742]]

written as long as 100 years ago, when we are looking forward to a
future that is brighter and better for all Americans.
I urge my colleagues in the Senate to join me in cosponsoring this
legislation and for us to forthrightly set a time when we can truly
have a second tea party, this one liberating us from the injustice of
complexity and opening the door for simplicity in the American tax
system.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Kentucky.

Victory in Iraq

Mr. McCONNELL. Mr. President, I rise today to speak on Iraq's
stunning march toward freedom and democracy and America's efforts to
support her progress. I believe, as does President Bush, that it is
squarely in our national security interest to help the Iraqis build a
thriving and healthy democracy. Democracy is the ultimate antidote to
terrorism.
We all know for democracy to flourish we must defeat the terrorists
who still linger in Iraq. The mission facing our country is simple: We
must defeat them by standing up the pillars of Iraq's democratic
institutions so that country can become a hinge of freedom in the
greater Middle East.
We know the terrorists cannot defeat us on the battlefield; our
military might is absolutely unmatched. We know they cannot defeat our
ideas, because when people are given a choice, they will choose liberty
and democracy over terror and tyranny every time.
So this debate turns on just one simple question: do we have the will
to win in Iraq?
This summer, American intelligence forces intercepted a letter
written by Ayman al-Zawahiri, one of the leaders of Al Qaeda, to Abu
Musab al-Zarqawi, the leader of Al Qaeda in Iraq. In his letter, al-
Zawahiri said that al Qaeda's goal was quite clear: ``Expel the
Americans from Iraq.'' He went on to say this:

. . . [T]he mujahedeen['s] ongoing mission is to establish an
Islamic state, and defend it, and for every generation to
hand over the banner to the one after it until the Hour of
Resurrection . . . The Americans will exit soon, God willing.

So the terrorists' intent is plain. They are not only dedicated to
driving us out of Iraq, they are also dedicated to turning Iraq into a
breeding ground for terror and anarchy.
We must not let them succeed. That is why I am so concerned about the
comments of those who suggest that the battle in Iraq is unwinnable.
What signal does that send to the terrorists? What signal does it send
to our troops who are putting it on the line every day in Iraq?
Here is what Congressman Dennis Kucinich, a leader of the House
Democrats' ``Out of Iraq Caucus,'' said: ``It is time for a new
direction in Iraq, and that direction is out.'' It's pretty clear where
he stands. And he is not an outlier in his party.
The ``Out of Iraq Caucus'' is composed of about 70 Democratic House
members. Their goal is America's complete withdrawal from Iraq.
Personally, I don't think it makes sense to set an arbitrary withdrawal
date, so the terrorists can circle that date on their calendars and
wait for us to leave. It seems to me that the better course is to
determine our troop needs based on military requirements on the ground,
as determined by our military leaders.
House Minority Leader Nancy Pelosi herself has endorsed the immediate
withdrawal of our troops from Iraq, and claims that her position
represents the majority of her caucus. Leader Pelosi endorsed H.J. Res.
73, a resolution that states:

The deployment of United States forces in Iraq, by
direction of Congress, is hereby terminated and the forces
involved are to be redeployed at the earliest practicable
date.

So that is the position of the House Democratic Leader, Ms. Pelosi.
Now, the chairman of the Democratic Party, Howard Dean, has said
recently the United States can't even win in Iraq. He says, ``The idea
that we're going to win this war is an idea that, unfortunately, is
just plain wrong.''
Let me say that again. Howard Dean, the leader of the Democratic
Party, believes that ``The idea that we're going to win this war is an
idea that, unfortunately, is just plain wrong.
That is Howard Dean's assessment of the situation.
Chairman Dean later tried to qualify his comments about the
unwinnable nature of the battle in Iraq, but no matter what he says
now, it still sounds like ``cut and run'' to me. If it is not ``cut and
run'' it is at least ``cut and jog.''
Let me be clear. Proponents of immediate withdrawal certainly have
the right to hold that view, and I believe they do so with patriotism
in their hearts. But I must respectfully question their judgment.
Our goal should be to achieve victory in Iraq, not merely to pull out
based on an arbitrary date on the calendar.
The fact is, we are already on the road to victory in Iraq. The
transformation of Iraq from the tyrannical rule of Saddam Hussein to
freedom and democracy in just two and a half years is a remarkable
success story.
It took us 11 years in our country to get from the Declaration of
Independence to the Constitution. And freedom took another giant step
forward yesterday with the elections for the first permanent democratic
government in Iraqi history.

Of course, the news we have now is still preliminary. But early news
reports indicate that 11 million Iraqis went to the polls yesterday,
once again staining their fingers with indelible purple ink to signify
that they had voted.
That is an overall turnout rate of over 70 percent, compared to 60
percent here a year ago, which was a good turnout for us, higher than
normal--70 percent of them going to the polls, proudly holding up their
ink-stained fingers, many of them not certain they wouldn't be killed
by exercising that right to vote. What is there not to admire about
that, an extraordinary performance on the part of the Iraqi people?
As I indicated, that turnout rate exceeds that of their previous
election, the constitutional referendum in October. And the turnout
rate for that referendum exceeded the rate for the election prior to
that, for the interim government in January. Most important, turnout
among Sunnis yesterday appears to have been particularly robust, as
with each election Sunnis have gotten more involved in the democratic
process.
We may not know the results of the elections yet, but we know the
Iraqi people are the winners. They have repeatedly defied the
terrorists by voting for democracy over tyranny. Yesterday's elections
have created a 275-member council of representatives, who will govern
Iraq with the consent of the people.
It is odd to me that at such a moment of triumph in that country,
there are still those who call for America to stop short. Granted, not
everything in Iraq has gone just as we would have wanted it to.
Unfortunately, such is the nature of military conflict. We've all
heard it said that no battle plan survives the first shot. But there
can be no doubt that tremendous progress has been made. Maybe it would
be a good idea to review the progress that has been made in Iraq in the
last two-and-a-half years.
Back during the Saddam Hussein era--when he was in power from 1979 to
2003--in that period, over 4,000 political prisoners were summarily
executed, 50,000 Kurds were killed, 395,000 people were forced to flee
Iraq, there were no free elections whatsoever, no free newspapers, and
Hussein, of course, stood above the law.
What has the situation been since 2003, since the fall of Saddam?
Iraqis are now innocent until proven guilty, and Saddam himself is
being given a fair trial, something he gave no one.
Seventy-five Kurds were elected to the interim Parliament, when
during Saddam's regime, 50,000 of them were murdered. Over 270,000
people repatriated, when during Saddam's regime, 395,000 people left
the country; 9.8 million Iraqis freely voted on the Constitution. There
are over 100 free newspapers in Iraq. They have a robust free press
there, and Hussein, as I suggested earlier, is now on trial, being
given the kind of trial he gave no one.
So much has improved, much is left to do, but now we are heading in
the right direction. Iraqis are feeling positive about the direction of
their country as well. According to an ABC News study, 77 percent of
Iraqis think the security situation in the country will be better in a
year. Two-thirds of them expressed confidence in the Iraqi Army and the
Iraqi police.

[[Page S13743]]

These people are on the ground in Iraq every day. They are living in
the midst of the war on terror. I think we should give their opinions
great weight.
Look at all the progress that has been made. The 24-year reign of
terror is over, and a new democratic, free Iraq is emerging. Voter
turnout in their national elections yesterday was reportedly very
heavy, as I indicated. So Iraqis are optimistic about their future.
They think the fight against the terrorists is worth fighting. They
think democracy is worth fighting for.
We should stand by them and do no less. We need to complete the job,
and our strategy is to stay and win--not cut and run.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arkansas.

Tax Relief for Americans in Combat Act Extension

Mr. PRYOR. Mr. President, I rise today to commend and thank my
colleagues for including a 1-year extension of the Tax Relief for
Americans in Combat Act as part of the Gulf Opportunity Zone Act of
2005. This measure corrects a discrepancy in the Tax Code that
penalizes certain service men and women serving in combat situations.
To give my colleagues a bit of history on this, in 2003, I approached
the distinguished chairman of the Senate Finance Committee, Senator
Chuck Grassley, and the ranking member of that same committee, Senator
Max Baucus, and asked them to join me in an effort to get a fresh look
at the overall picture of how our Tax Code treats our military. I was
very pleased when they agreed to work with me, and was delighted to
jointly request an expedited study by the Government Accountability
Office. It was an honor for me to work with them. I also must say their
staff have been nothing but a delight to work with throughout this
process.
The GAO made their study, and they had some interesting findings.
One of those findings was especially important and necessitated
immediate attention. In a nutshell, what they found is service men and
women who were serving in combat zones and receiving nontaxable combat
pay were not able to also take advantage of the earned-income tax
credit and the childcare tax credit. Imagine that. The result was
thousands of our men and women serving in combat--in places such as
Iraq, Afghanistan, and other places around the globe--were seeing a
reduction or the elimination of their earned-income tax credit or child
tax credit and, in effect, losing money. In other words, the Tax Code
has the impact of penalizing them for serving in combat.
The GAO report characterized this as an unintended consequence. I say
it is plain wrong. I was pleased to introduce legislation to try to fix
this glitch. Back in 2004 we passed Tax Relief for Americans In Combat
Act. The bill allowed men and women in uniform serving in combat to
include combat pay for the purpose of calculating their earned-income
and child tax credit benefits. In other words, they were able to
continue receiving their rightful combat pay exclusions while also
being able to take full advantage of other tax credits. However, what
we passed in 2004 expires at the end of this year. So I am pleased
today's action in effect extends the legislation for one more year.
I thank, again, Senator Max Baucus for his leadership in helping
extend it for another year. Also, I thank Senators John Kerry and
Barack Obama for their leadership in taking up the fight when someone
saw the opportunity to do so, to ensure our men and women in combat are
fairly treated.
The urgency of this situation is highlighted especially when you
focus on our troops whom it affects. We are talking about troops in
combat for more than 6 months. They are at lower pay grades and tend to
be married with children. They have little or no savings or spousal
income. The GAO suggested the amount of tax benefit loss could be up to
$4,500 for enlisted personnel and $3,200 for officers. That is real
money. That is make-or-break money for a lot of these people. They are
already under enormous stress.
I am glad we could come together in this bipartisan fashion and
extend this for another year. The bill corrects the problem and lets
our troops who are risking life and limb for us know that while they
are away fighting for us, we are in the Senate fighting for them and
for their families.
I yield the floor and 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. BURNS. 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. BURNS. Mr. President, I inquire of the Chair, are we on the
PATRIOT Act or what is the order?
The PRESIDING OFFICER. The Senator is correct, we are currently on
the PATRIOT Act.
Mr. BURNS. I ask unanimous consent I be allowed to speak for up to 15
minutes--and I don't think it will be that much--as if in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Iraq

Mr. BURNS. Mr. President, I heard the words of our assistant leader
on the majority side and wanted to come to the Senate. These words may
get lost in the swirl of the times with the holidays, but yesterday was
truly a historic time not only for the people of Iraq, but a historic
time for the peace process in the Middle East.
There was not a doubt in anyone's mind around the world what that was
about yesterday. They not only elected permanent representation in
their government that will move on and try to finish their
constitution, but it was a symbol of a people who voted for peace,
security, and a new economic future. That is what that was all about
yesterday.
I congratulate the people of Iraq who, with a great deal of courage,
turned out and stood in lines and voted their will. This is what this
whole exercise has been about.
I leave a message with not only this Congress but to some who fail to
see how much hope was on display yesterday: there is hope for the
future. Now we have little girls going to school in Iraq. Hope for
families, that they can participate in a republican form of democracy,
and to change the economic culture of those people who live in Iraq.
Think of the possibilities. The success in Iraq also has done another
thing that will change not only Iraq, but it will change the whole
area. For the first time since World War I there will be a
transportation and communication corridor that will change the economic
culture from Tel Aviv to Kuwait City. Think of what that does. It puts
Amman back on the trade route, so to speak. King Abdullah, the leader
of Jordan, understands this. And as he looks at that, it puts Amman
back on the trade route.

But what about the future? Anyone who has visited Iraq has seen this,
probably in Baghdad, or wherever. But I will tell you what this farm
kid has seen on his visit to Iraq. When we were in Mosul we saw dry
land, farming, good soil. There are two great rivers with irrigation
systems from both of them. I saw the kind of dirt it takes in which to
build an economy.
Let's don't talk about gas or oil. Let's talk about the very industry
that contributes more to the GDP of any country in the world, and that
is agriculture. They have the ability to be the breadbasket of the
Middle East. As you know, most of the Middle East is desert. Most of it
has soil that is very thin, and there are not many nutrients in it. And
even where you find those areas where they have it, it is in need of
water. Water isn't there.
I looked at the north of Israel one time, and I understood the
problem there. The problem there has to do with water, the ability to
irrigate out of the Jordan River. You have two great river systems in
Iraq.
The next step in this budding new freedom is the cornerstone of
freedom, and that is land ownership, making people productive, growing
renewable resources, providing for your family, but also providing a
great export out of Iraq and becoming a trading partner with their
neighbors.
We cannot change the ethnic culture, nor can we change the Islamic
culture, but we can change the economic culture to where more people of
that society participate in the economic well-

[[Page S13744]]

being of their country. Just think of the possibilities and the hope it
brings to the next generations of those folks.
If you can find something to export--and I will tell you, I look at
Jordan. There is a country that is not very wealthy. The only thing
they have to export is potash, and the world can only use so much
potash.
But they understand communications and transportation. So there is
great hope there now. There is the hope of land ownership, the hope of
participation in supplying food and fiber not only for their own
people, but to export to other neighboring countries. That corridor is
now established with the free movement not only of people, but also
goods and services.
That corridor will widen. It will effect the way people do business
in Syria and the way they do business in Iran. It will change even how
they do business in Egypt. The Nile Delta, a very fertile delta, now
will have some competition in the food business.
Also, it will have possibilities for our country when those economics
take hold. And it is not going to happen by next week, or next year, or
maybe not even for the next 5 years. But you are going to see it happen
because of this taste of freedom, land ownership, independence, and to
be able to participate in their own government, and, yes, even in their
own provincial governments.
So the possibilities of peace and stability and economic advancement
have never been greater than at any time in history since World War I.
Yet there will be those who say we should not be there helping freedom-
loving people achieve the same dream, having the same hopes we have for
our next generation, our children, and our grandchildren.
Hope is eternal. Now they have a future, a future they have never had
since almost 100 years ago. And the impact of that will spread
throughout the Middle East. It will happen. The Presiding Officer comes
from an agricultural State with land ownership, productivity, and
exports. My good friend from Iowa, my goodness; they are the
breadbasket of the world. They can grow more in Iowa with what falls
out of their pocket accidentally than we can, on purpose, in Montana, I
will tell you. What a great and blessed State, and the same for the
State of my friend from Texas, who is on the floor.
But what makes it operate is land ownership and participation in the
economy. Then the terrorists have nobody to recruit because there is
hope.
Our Marines, our Army, and our Air Force paid a heavy price because
they, too, believe this legacy of freedom, to be passed on from one
generation to another, is worth dying for.
I had a lady say: ``If you wanted to take a poll in Iraq, if you
polled our military people, that poll would say they don't want to be
there.''
I said: Well, if you took a poll in the English Channel on June 6,
1944, they didn't want to be there either. What was that for? Countries
had been overrun by a tyrant who brought nothing but tyranny. And they
were an enemy of this country and our ideals and our principles.
They have those principles already. But what they have too is hope.
And we have to nurture that hope because they cannot only feed
themselves, with their renewables grown from Mother Earth, they can
become a powerhouse in the Middle East for commerce. Just think of that
corridor. Just think of the possibilities of changing an economic
culture that will run from Tel Aviv to Kuwait City, and then you tell
me: Was it worth it?
This President understands a vision of hope for freedom-loving people
everywhere. And what it offers to their citizens is beyond some folks'
comprehension. Freedom is not free. Hope is not free. There must be
sacrifice.
Yesterday, those folks lined up by the droves to take advantage of
changing their lives, sending a strong message to the rest of the
world: Terrorists, you are not welcome here anymore.
That is the greatest enemy terrorists have, when the fires of freedom
burn in the hearts of a people in a line where they stand, where they
vote.
That is the vision I have for the Middle East. It is very clear. It
is clear that with that reform comes land ownership, irrigation
systems, dry land farming, and participation in the world of commerce.
Not only in that, but in goods and services also. Iraqis are a very
talented people, a people who have that fire of freedom in their heart.
We wish them well, and we stand beside them as that fledgling
democracy, that republican form of government, gets its kick-start. And
it really got a kick-start yesterday. We wish them well. We
congratulate them for their courage to stand up and be counted.
I yield the floor.
Mr. HARKIN. 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. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

University of Northern Iowa Panthers Football Team

Mr. HARKIN. Mr. President, today I am here to congratulate the
University of Northern Iowa Panthers football team and wish them the
best of luck as they prepare to take on the Appalachian State
Mountaineers today at 8 p.m. in Chattanooga, TN, for the 1-AA national
championship. This is truly a historic occasion, as this marks UNI's
first appearance in the national championship contest. In addition, UNI
has the opportunity to be only the second Iowa NCAA school to win a
national title in football. Central College in Iowa won the 1974
division III championship.
This has been a season full of highs and lows for the Panthers.
Starting the season at 4 and 3, the outlook looked kind of bleak, but
the team did not get discouraged. They did not give up. Instead, they
rattled off seven straight wins. As a result of their tenacity and
determination, the Panthers find themselves tonight in the championship
game.
In 5 years, head coach Mark Farley has won 44 games, at least a share
of three conference championships, and he has led the Panthers to three
playoff appearances. Under his leadership, the Panthers have again
become a national power in 1-AA football. And Coach Farley is a
graduate of UNI. He was a member of the first UNI football team to play
in the national semifinals. Twenty years later, after 10 playoff
appearances and 5 semifinal appearances, he has led his alma mater to
their first championship game.
Yesterday, the Des Moines Register ran a story titled ``Panther
Football A to Z.'' The article tells the story of the team's season,
beginning with the letter A for adversity. As I mentioned, the Panthers
record stood at 4 to 3, but after seven consecutive wins, which
included five late-game comebacks, they have earned the trip to
Chattanooga and the adoration of their fans. Much as linebacker John
Herman stated in the article:

Text messages, e-mails, phone calls--it's crazy to see how
many people are excited for us to get here.

The article concludes with the letter Z for zenith by quoting
athletic director Rick Hartzell, who said:

There's never been a better time to be a Panther.

I congratulate the young men, their coaches, and the University of
Northern Iowa for their tremendous season and wish them the best of
luck tonight. I will be watching on ESPN2.
I ask unanimous consent that the text of the Des Moines Register
article be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. HARKIN. Mr. President, I see my friend, Richard Burr, the
outstanding Senator from North Carolina, on the floor. North Carolina,
of course, is the home State of that great school, Appalachian State. I
know that after their defeat tonight under the paws of the Panthers, it
will continue to be a great school and a great football team.
My good friend and I have made a little wager on the game tonight:
six North Carolina pork chops versus six Iowa pork chops. You see, I
say to my friend, just as Iowa is No. 1 in pork production, and North
Carolina is No. 2 in pork production, after tonight, Iowa will be No. 1
in 1-AA football, and North Carolina will be No. 2 in 1-AA football.
So, again, I look forward to dining on those great North Carolina
pork chops.

[[Page S13745]]

I ask my friend, please, would you throw in some of that North Carolina
barbecue sauce with them?
I yield the floor.

Exhibit 1

[From the Des Moines Register, Dec. 14, 2005]

Panther Football A to Z

(By Rob Gray)

Chattanooga, TN.--It's hard to describe, let alone explain.
Northern Iowa's stunning run from NCAA Division I-AA
football playoff longshot to championship game participant
ends Friday with a first-ever title hanging in the balance.
Only Appalachian State stands in the way.
``I'm sure after the season's over I'm really going to be
kind of in awe, but right now we're trying to get focused on
the game, trying not to get caught up in the moment,'' said
Panther quarterback Eric Sanders. ``But in the offseason, I
know I'm going to reflect and be pretty proud and go like,
`Wow. This really did happen.' ''
The No. 7 Panthers' transcendence of high-profile injuries,
daunting fourth-quarter deficits and taxing road trips may
defy logic, but it can be loosely quantified, or
encapsulated, within a quick spin through the alphabet. So
it's on to Chattanooga, via the ABCs:
A is for Adversity. The Panthers (11-3) once stood 4-3, but
seven consecutive wins followed, including five late-game
comebacks, and overcoming obstacles has kindled adulation.
``Text messages, e-mails, phone calls--it's crazy to see
how many people are excited for us to get here,'' linebacker
John Hermann said.
B is for Balance. Northern Iowa running back David Horne
has rushed for 1,039 yards and 16 touchdowns. Quarterback
Eric Sanders has thrown for 2,748 yards and 23 touchdowns.
C is for Coaching. Mark Farley suffered along with
teammates and fellow coaches in five Panther losses in the
semifinals. This season, he helped orchestrate a
breakthrough. ``We've got the opportunity to represent our
school, but also our state,'' Farley said.
D is for Defensive ends. Appalachian State (11-3) features
two standouts at the position. Jason Hunter and Marques
Murrell have combined for 22 sacks.
E is for Extra credit. Northern Iowa kicker Brian Wingert
has drilled three consecutive game-winners.
F is for Finish. The Panthers have outscored foes, 63-14,
in the fourth quarter over their seven-game win streak.
G is for Grounded. Northern Iowa's defense has allowed big
games from highly rated quarterbacks Erik Meyer, Ricky Santos
and Barrick Nealy in the postseason, but kept them from
winning.
H is for History. Both Northern Iowa and Appalachian State
make their first title-game appearances.
I is for Interception. Matt Tharp's pick of Nealy preserved
Friday's 40-37 overtime win at Texas State.
``(He) made a good play with a cast on his hand,'' fellow
defensive back Tanner Varner said. ``It was just amazing.''
J is for Jeff Bates. The Indianola senior center eased into
the starting role when offensive line anchor John Schabilion
suffered a season-ending injury.
K is for Krystal. Fans traveling to Chattanooga will
encounter this southern version of White Castle.
L is for Linebackers. Northern Iowa's Darin Heideman and
Brett Koebcke highlight a defense that gets stingy at
precisely the right moment. Koebcke is questionable for
Friday, though, with a high ankle sprain.
M is for Mountaineers. As in Appalachian State's nickname.
The team has lost just once to a I-AA opponent this season.
N is for National. ESPN2 will broadcast a Panthers football
game to a coast-to-coast audience for the second consecutive
week.
0 is for Overtime. The Panthers stand 2-0 in overtime
games, beating Western Kentucky, 23-20, in double overtime
and Texas State. ``We've definitely caught some breaks to be
at this point, but you kind of have to to get this far,''
Sanders said.
P is for Pecan Bowl. Way back in 1964, the Panthers won
this Division II bowl game, 19-17, over Lamar Tech at
Abilene, Texas.
Q is for Quarterback(s). As usual, the Panthers will face a
good one--whether it be Richie Williams, who could be out
with a ruptured ligament, or backup Trey Elder, who led the
Mountaineers to last week's 29-23 win over Furman.
R is for Receivers. Justin Surrency leads the Panthers with
seven touchdown catches--including an end-zone grab in four
consecutive games. Patrick Hunter and Jamie Goodwin furnish
downfield speed. Brian Cutright excels at tight end.
``There's no doubt in this team at any time,'' Cutright
said. (see item ``A'')
S is for Kevin Stensrud. The defensive lineman form Lake
Mills has battled countless injuries to reach his final game.
T is for Two-point conversion. Surrency's leaping catch to
tie the game at Texas State came amid three defenders. ``I
had just enough height on it, and not just enough height on
it to get it over the first guy and in between the other two
guys,'' Sanders said of the pass.
U is for Upsets. Northern Iowa has topped three teams this
season ranked No. 1 at some point--with two wins on the road.
V is for Variety. Sanders has hit nine or more receivers in
five of the past seven wins.
W is for Waffle House. This franchise dots the Tennessee
landscape like Casey's General Stores in Iowa.
X is for X-Factor. Jason Breeland provides a spark in the
Panther backfield and at wideout.
Y is for Yards. Expect plenty. The Panthers average 444
yards in the playoffs; the Mountaineers average 437.
Z is for Zenith. As athletic director Rick Hartzell said,
there's never been a better time to be a Panther.
``For our type of institution, we've got the best athletic
program in the country,'' he said.

The PRESIDING OFFICER. The Senator from North Carolina is recognized.
Mr. BURR. Mr. President, we will learn tonight that being No. 1
doesn't mean that you win, and being the largest doesn't mean you are
the best. In fact, North Carolina pork chops are better than Iowa pork
chops, and North Carolina football is, in most cases, as good if not
better than Iowa football.
I commend the Northern Iowa Panthers. They have had a miraculous
season. They deserve to be in the championship game based on how they
performed in the second half of the season.
Appalachian State was ranked fifth by the Sporting News and fourth by
ESPN/USA Today in the I-AA polls. Appalachian has a record of 11-3, and
they have reached the I-AA semifinals now for the third time. They did
it in 1987, 2000, and now in 2005. But they have never reached the
championship game until this year.
This is a magical year for Appalachian State. Over 10,000 of my
constituents will make the trek today to Chattanooga, TN, for tonight's
football game. I remind my good friend, Senator Harkin, that almost all
of the tickets turned back in by the Northern Iowa Panthers were
purchased by North Carolina constituents who will be at that game.
Appalachian State advanced to the championship game with a 29-23
victory over rival Furman University. Appalachian took the lead with 2
minutes 17 seconds left, with an 11-play, 67-yard drive led by backup
quarterback Trey Elder, who was filling in for a starting quarterback
Ritchie Williams. They held off a last-minute threat and picked up a
fumble by Furman and ran it back to Furman's 1-yard line, where that
game ended.
Two of the team's three losses were to I-A teams--Kansas University
and the tenth-ranked LSU Tigers. The Charlotte Observer named the
Mountaineers the most successful college football program in the State
over the past 20 years.
Among their famous alumni are Dallas Cowboys linebacker Dexter
Coakley, and former Redskins runningback John Settles.
Coach Jerry Moore is the winningest coach in Southern Conference
history, with a string of 16 winning seasons in 17 years, with a record
of 139-67. This is his 13th playoff appearance as a head coach. Coach
Moore perfected his coaching skills as an assistant under our colleague
in the House, Congressman Tom Osborne.
When Appalachian wins tonight's showdown, it will be the first time a
university from the State of North Carolina has ever won a national
football championship.
Senator Harkin doesn't need to take my word for it or the sports
reporters or the commentators opining on the success of Coach Moore and
his Mountaineers. Senator Harkin needs to go no further than his own
backyard to find someone who can attest to Jerry Moore's ability to
prepare the Mountaineers for tonight's game. That is because Coach
Moore counts as one of his closest friends a man synonymous with Iowa
football--former Hawkeyes head coach, Hayden Fry, with whom Jerry Moore
started his coaching career at SMU.
Mr. President, Appalachian State University was started as a teachers
college in 1899. Its enrollment is slightly over 14,000 students. It is
the sixth largest State university in our university system in North
Carolina. It has one of the highest graduation rates of student athlete
football players in the State, and a few years ago it ranked only
behind Duke in that distinction.
I take this opportunity to congratulate the Northern Iowa Panthers. I
congratulate Chancellor Peacock and Coach Moore but, more importantly,
these two teams who have reached the final championship game tonight.
Tonight there will be only winners; there are no losers. Tomorrow
there

[[Page S13746]]

will be one loser, and that will be my colleague from Iowa as he
prepares to send those pork chops to North Carolina.
With that, I yield the floor.
Mr. HARKIN. Mr. President, 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. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Cord Blood Legislation

Mr. HARKIN. Mr. President, yesterday afternoon, the majority leader
offered a unanimous consent request to take up and pass, without any
amendments or any further action, H.R. 2520, a bill to collect cord
blood for use in therapies for various kinds of blood diseases. I
objected to that unanimous consent request after quite a bit of talk on
the floor.
As I explained yesterday, I support this bill. I am a cosponsor of
this bill. In fact, I joined with Senator Specter 2 years ago to create
the National Cord Blood Stem Cell Banking Program by including $10
million for that purpose in the fiscal year 2004 Labor, Health and
Human Services, and Education appropriations bill, of which I am
ranking member. We have been funding that program ever since. So I have
been in the lead in championing cord blood therapies by getting the
program funded and keeping it funded.
Nevertheless, I objected to the unanimous consent request because I
believe the Senate should take up the cord blood bill at the same time
we take up H.R. 810, which is the Stem Cell Research Enhancement Act.
That is what the House did, and that is what the House passed. The
House approved both these bills on May 24 of this year, and we have
been waiting and waiting and waiting and waiting in the Senate to do
the same thing. We keep hearing from the majority leader that he wants
to bring up H.R. 810. In fact, in what I thought was a very courageous
speech the majority leader gave on July 29, he said he would vote for
H.R. 810. But we can't seem to bring it up on the Senate floor.
Members on the Republican side keep coming up with new bills to try
to confuse things. They want to vote on five or six or seven bills,
some of which have absolutely nothing to do with stem cell research.
So a number of us on both sides of the aisle formed a bipartisan
group to do what we could to try to bring both these bills, the same
two the House passed, H.R. 810 and H.R. 2520, and do what the House
did--bring them up, debate them, and pass them.
When this unanimous consent request was then offered by the majority
leader yesterday, I was on the floor. I had not checked with all the
other people who had been involved in that effort, so I objected
because I felt strongly that the two ought to be together.
I said to the majority leader last night that I would take a look at
it today and go over it with my staff. I have decided, after going over
it and looking at it, to lift my hold--I can only speak for myself--but
I have decided to lift my hold on H.R. 2520.
One of the reasons I am doing so is because, quite frankly, the bill
doesn't accomplish anything that we are not already doing or about to
do. In 2002, under the direction of the Appropriations Subcommittee on
Labor, Health and Human Services, Education and Related Agencies, of
which I am ranking member and Senator Specter is the chair, the
registry on bone marrow units had to start including cord blood units
as well.
Last year, there was a 24-percent increase in the number of cord
blood units in the registry. This is because Senator Specter and I put
this in the bill in 2003. Then, in fiscal year 2004, I helped secure
$10 million to create the National Cord Blood Stem Cell Banking
Program. Our subcommittee has appropriated $19.8 million in the last 2
years for that effort. That is for the banking of cord blood.
Yesterday, my colleague from Kansas, Senator Brownback, said that
``more kids will die if we don't take up the cord blood bill.'' That is
simply not true. Cord blood units are being collected and saving lives
as we speak today because of the funding that we appropriated through
the Labor, Health and Human Services, Education appropriations
subcommittee. Let's be clear, that money is there. We appropriated it.
It is doing its job right now.
What will help save lives and help with cord blood is if Republican
conservatives would stop cutting funding for the National Cord Blood
Stem Cell Banking Program that we put in a couple of years ago.
In the Senate version of the fiscal year 2006 Labor-Health and Human
Services appropriations bill, under the leadership of Senator Specter,
we included $9.9 million for cord blood banking. To hear the talk last
night, one would think we didn't have any money. We put $9.9 million in
the bill. Guess what. The House had zero. The conference committee cut
our $9.9 million down to $4 million. That means 3,900 fewer units of
cord blood will be collected under the fiscal year 2006 appropriations
bill than in last year's bill.
I would hope my good friend from Kansas will come to the floor and
implore his colleagues not to go along with the Labor-Health and Human
Services appropriations bill and get that money back in there, but I
didn't hear anything said about that.
The cuts to cord blood banking do not stop at the $4 million level.
We are told that when the DOD appropriations bill comes back, there
will be a 1-percent, across-the-board cut for every Federal program.
First, the cord blood funding is cut from $9.9 million to $4 million.
Now, it is going to get another 1-percent cut for good measure.
As I said, if Senators want to do more for cord blood banking, they
ought to increase the funding, at least not cut it in the Labor-Health
and Human Services appropriations bill. But it is being cut. It
shouldn't be cut. We put the money in there. So if my colleagues feel
strongly about banking cord blood and using that cord blood to save
lives, they ought to be out here demanding that we not cut it from what
we put in the Senate bill. But I have not heard one person come on the
floor and take that up and say: No, we are not going to agree to those
cuts.
If Senators want to do more for cord blood banking, they should
increase the funding, not cut it. But if Senators want to go ahead and
pass H.R. 2520, fine, I have no problem with that. There is no harm in
passing language that authorizes work that is already being done by the
Appropriations Committee. At least Senators who come out and talk at
least ought to thank Senator Specter for taking the lead on this.
There is another reason why I am lifting my hold. When we debate H.R.
810 next year--let me put it this way. The majority leader has kept
saying he wants to make sure we bring up H.R. 810.
Senator Hatch from Utah said we are going to bring up H.R. 810. We
are going to have that debate; we are going to vote on it. Well, when
we bring it up next year and debate it, it will be crystal clear who
supports medical research and who does not. The question will be very
simple: Are my colleagues for stem cell research or are they not?
Cord blood transplants, while enormously beneficial to people with
certain blood diseases, are no substitute for embryonic stem cell
research. Cord blood cannot do a thing for people with Parkinson's,
ALS, juvenile diabetes, Alzheimer's. These are the things we can
address with embryonic stem cell research.
So I wanted to make it very clear today, No. 1, that I have taken off
my hold on the unanimous consent. They want to bring it out again.
Secondly, Senator Specter and I have taken steps in the Appropriations
Committee both to put the money in there but also to set up the
registry. We have already set up the registry. There was some talk
yesterday that maybe there is not a registry out there. Of course there
is a registry. As I said, it went up 24 percent last year.
H.R. 2520 basically authorizes what we are already doing, anyway.
That is fine. But I implore my colleagues who are interested in this,
as I am, come out and talk about the funding. Talk about the 3,900
fewer babies, young people, who will not get cord blood because of the
cut in funding from $9.9 million now to less than $4 million. Let us
hear some talk about that rather than being here and passing an
authorizing bill, which does not do one single

[[Page S13747]]

thing more than what we are doing already.
What it does is make sure the funding is there for the registry and
to collect the cord blood and to bank it so that people and young
people who have these terrible diseases can get the cord blood to help
them.
I hope we do not make these cuts in the Labor-HHS appropriations
bill. It is there, but we should not cut it. And if they do, I will
have more to say about it next year when we return in January and
February. I hope we can bring up H.R. 810, have a good debate on it,
and let us vote it up or down, as the House did, and send it on to the
President so we can get on with the vital research that is needed on
embryonic stem cell research.
I conclude with this: There are some stories in the paper today--
there were a few yesterday--a front-page story today about a South
Korean research doctor and the fact that he may have--I do not know all
the facts--falsified some stem cell lines. There are indications, at
least in my reading of the medical journal, there is some reason to
believe he actually did do that, that it was falsified. Then I heard
some comments such as, well, see, there is the problem with stem cell
research.
That points out the necessity for us to authorize it, to have the
National Institutes of Health supervise it, have jurisdiction over it,
so that it is done in an ethical way, where we can monitor it and make
sure we do not have rogue elements riding off doing their own thing, so
we have standards by which we can measure stem cell research, so we can
have legitimate, ethical, moral guidelines which researchers can
follow, and we can know who is doing the legitimate good work and know
who the outliers are.
The fact that this story has come out today makes it even more
imperative that we pass H.R. 810 and we have National Institutes of
Health jurisdiction oversight over this kind of research.
I yield the floor.
Mr. BINGAMAN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant Journal clerk proceeded to call the roll.
Mr. WYDEN. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.

Federal Trade Commission Nominations

Mr. WYDEN. Mr. President, in the final hours of this session of the
Senate, the Senate is going to approve two nominees to the Federal
Trade Commission. I take a few minutes tonight to describe why I want
to be on record tonight against the nomination of both these
individuals.
When it comes to energy, the Federal Trade Commission essentially is
out of the consumer protection business. Well over a year ago, I
released a report documenting the Federal Trade Commission's campaign
of inaction when it comes to protecting our consumers at the gas pumps.
My report documented how the Federal Trade Commission has refused to
challenge oil industry mergers the Government Accountability Office
says would raise gas prices at the pump by 7 cents a gallon alone on
the west coast.
My report also documented how the Federal Trade Commission failed to
act when refineries had been shut down or to stop anticompetitive
practices such as redlining and zone pricing. Since then nothing has
changed.
Despite what we saw recently--record high prices for consumers, and
record profits by major oil companies--what we have seen is a record
level of inaction by the Federal Trade Commission on behalf of energy
consumers.
In the last few months, when we saw the price of gasoline soar to an
all-time record high, the Federal Trade Commission was invisible. As
far as I can tell, the Federal Trade Commission failed to take any
action at all in the wake of the hurricanes in the gulf that sent the
price of gas skyrocketing to over $3 a gallon across the country.
If you do a Google search on FTC and gasoline prices, nothing at all
comes up to indicate that the Federal Trade Commission has taken any
action on behalf of energy consumers. What you do find are statements
by the Chair of the Federal Trade Commission arguing against giving the
agency additional authority to protect consumers against price gouging
at the pump.
For example, the Federal Trade Commission Chair recently made the
statement opposing an effort here in the Senate to have a price gouging
law because ``they are not simple to enforce and they could do more
harm to consumers.''
The fact, however, is a number of States do have price gouging laws.
Two State attorneys general testified at a joint hearing recently here
in the Senate that these laws are, in fact, beneficial.
In her testimony before a joint Senate hearing last month, the Chair
of the Federal Trade Commission, Debra Majoras, described what I
believe to be an astoundingly serious theory of consumer protection
when she essentially said there is no need for a Federal price gouging
law no matter how high the price of gasoline goes. The argument was by
Ms. Majoras that gasoline price gouging is a local issue even if the
price gouger is a major multinational oil company.
FTC officials also testified before the Congress that the agency has
no authority to stop price gouging by individual companies.
Despite this clear gap in the agency's authority, the agency has
refused to say what additional authority it needs to go after price
gouging, and others have pressed them to do for years.
There are unquestionable efforts in the private marketplace to
exploit consumers, and it didn't start with Hurricane Katrina. As the
Wall Street Journal documented recently, gas prices for much of this
recent period have increased twice as fast as crude oil prices.
Clearly, a number of oil companies are not simply passing on higher
crude oil costs but are also adding substantial increases to the cost
of gas above and beyond the higher cost of crude oil.
Since the early 1970s and for much of this year, there has never been
the kind of disparity between increases in the price of gas and
increases in the price of crude oil. This was not seen even in the days
of the long gas lines following the OPEC embargo.
Over the past 30 years, gasoline prices never rose more than 5
percent higher in a year than the cost of crude increase. But in the
past year, gas price increases outpaced crude by 36 percent. After
Hurricane Katrina, the price difference soared even higher to 68
percent.
Further evidence of price gouging could be found in what happened on
the west coast immediately following Hurricane Katrina, when prices
surged 15 cents per gallon overnight. For years, oil industry
officials, the Federal Trade Commission, and others have maintained
that the west coast was an isolated gasoline market from the rest of
the country. West coast supplies were not affected by the hurricanes.
The west coast gets almost none of its gas from the gulf. If the west
coast was an isolated market, as the oil industry has claimed for
years, then Katrina was not a justification for jacking up gas prices
on the west coast immediately after the hurricanes.
The Federal Trade Commission is the principal consumer protection
agency in the Government. It is the Federal agency that can and should
take action when gasoline markets go haywire as they did after the
hurricanes. But instead of action, what we have repeatedly seen were
excuses.
In the past, the Federal Trade Commission often claimed that it was
studying the problem or monitoring the gasoline markets as an excuse
for inaction on gas pricing.
Recently, the Federal Trade Commission's campaign of inaction has
even extended to the studies that the agency does. The Federal Trade
Commission chair testified last week that a study of gas price gouging
that Congress required the FTC to complete by this month would not be
ready until next spring. In effect, the campaign of inaction is now
approaching the point of paralysis where the agency won't even deliver
promptly on commitments that it has made to study the issue.
The agency has continued its program with inaction on behalf of
gasoline consumers despite the findings by the Government
Accountability Office that the agency's policies are raising prices at
the pump.
In May of 2004 the Government Accountability Office released a major
study showing how oil industry mergers and the Federal Trade Commission

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allowed to go through in the 1990s substantially increased
concentration in the oil industry and increased gas prices for
consumers by as much as 7 cents per gallon on the west coast.
Specifically, the Government Accountability Office found that during
the 1990s the Federal Trade Commission allowed a wave of oil industry
mergers to proceed, that these mergers had substantially increased
concentration in the oil industry, and that almost all of the largest
of the oil industry mega mergers examined by the auditors each had
increased gasoline prices. Essentially, the Government Accountability
Office found that the Federal Trade Commission's policies on mergers
had permitted serial price gouging.
Two years ago, when current Federal Trade Commission Chair Deborah
Majoras last came before the Senate for confirmation, I asked a
response to the report done by the independent government auditor.
Despite her promise to do so, I have yet to receive any response from
the Chairman of the Federal Trade Commission.
The Government Accountability Office is not alone in documenting how
Government regulators have been missing in action when it comes to
protecting our consumers at the gas pump. Since 2001, oil industry
mergers totalling more than $19 billion have gone unchallenged by the
Federal Trade Commission, according to a recent article in Bloomberg
News. The article also reported that these unchecked mergers may have
contributed to the highest gasoline prices in the past 20 years.
According to the Federal Trade Commission's own records, the agency
imposed no conditions on 28 of 33 oil mergers since 2001. You can see
the results of the Federal Trade Commission's inaction at gas stations
in Oregon and across the country. Nationwide, the Government
Accountability Office found between 1994 and 2002, gasoline market
concentration increased in all but four States. As a result of the
Government's merger policies, 46 States now have gasoline markets with
moderate or high concentration, compared to only about half that just
10 years ago.
The Federal Trade Commission, oil industry officials, and consumer
groups all agree in these concentrated markets oil companies do not
need to collude in order to raise prices. The Federal Trade
Commission's former general counsel, William Kovacic, has said:

It may be possible in selected markets for individual firms
to unilaterally increase prices.

In other words, the Federal Trade Commission's general counsel
basically admitted that oil companies in these markets can price gouge
with impunity. Mr. Kovacic is one of the two nominees for the Federal
Trade Commission who is now before the Senate.
Despite all of this evidence that gasoline markets around the country
have become more concentrated and that in these concentrated markets
individual firms can raise prices and extract monopoly profits, the
Federal Trade Commission has failed to take effective action to check
oil industry mergers. In the vast majority of cases, the Federal Trade
Commission took no action at all.
The Federal Trade Commission's inaction on oil mergers is once again
a front burner issue with the recent announcement that ConocoPhillips,
an oil company formed from a series of mergers the Federal Trade
Commission allowed, is acquiring Burlington Resources to create one of
the largest U.S. natural gas producers. Many in the oil and gas
industry expect this merger announcement will lead to a similar wave of
consolidation in the natural gas industry. This, in turn, will lead to
greater consolidation of the industry and fewer choices for consumers.
In addition to the inaction on merger issues, the Federal Trade
Commission has also failed to act against proven areas of
anticompetitive activity. Major oil companies are charging, in some
instances, dealers' discriminatory ``zone prices'' that make it
impossible for dealers to compete fairly with company-owned stations or
even other dealers in the same geographic area. With zone pricing, one
oil company sells the same gas to its own brand stations at different
prices. The cost to the oil company of making the gas is the same. In
many cases, the cost of delivering that gas to the service station is
the same, but the price the station pays is not the same. And the
station that pays the higher price is not able to compete, and
eventually that station goes out of business and there is further
concentration in that particular community's market.
Another example of anticompetitive practices that now occur in gas
markets is a practice known as redlining. This involves oil companies
making certain areas off limits to independent gas distributors, known
as jobbers, who bring competition to a particular area. The Federal
Trade Commission's own investigation of west coast gas markets found
that the practice of redlining was rampant on the west coast, but the
Federal Trade Commission concluded that it could only take action to
stop this anticompetitive practice if the redlining was the result of
out and out collusion, a standard that is almost impossible to prove.
In my home State, one courageous gasoline dealer took on the major
oil companies and won a multimillion-dollar court judgment in a case
that involved redlining. This dealer gave the evidence that was used to
win his case in court to the Federal Trade Commission. The Federal
Trade Commission, the premier consumer protection agency of the Federal
Government, failed to do anything to help this dealer or to reign in
the anticompetitive practices at issue.
In areas other than energy, the Federal Trade Commission, in my view,
has made a significant contribution to protecting consumers. In other
areas, the Federal Trade Commission has not hesitated to move
aggressively on behalf of the consuming public. To give one example,
the Federal Trade Commission created a Do Not Call Program to prevent
consumers from being hassled at home. With its Do Not Call Program, the
agency pushed to protect consumers to the limits of its authority and
even went beyond what the courts say it had authority to do.
For some reason, in the case of energy, the Federal Trade Commission
had a regulatory blind spot. That has been true, I am sad to report, in
both Democrat and Republican administrations. It is a bipartisan blind
spot that keeps the agency from looking out for the millions of
Americans who consume gasoline and gas products every single day.
The Federal Trade Commission will not even speak out now on behalf of
consumers getting gouged at the gas pump. The agency will not use its
bully pulpit to even say that record high gas prices are an issue of
concern that they will be looking at closely.
The FTC approach on gas prices is one, in my view, that must change.
I do not intend to support the business-as-usual approach on energy
that has been seen too long at the Federal Trade Commission. I have met
with both the nominees to the Federal Trade Commission, Mr. William
Kovacic and Mr. Thomas Rosch. I also asked them to provide me their
views in writing in an effort to find out whether they would push the
Commission to take a different approach from its long history of
inaction in this area.
Unfortunately, neither of these individuals provided me with any
compelling evidence that they are committed to and will, in fact, work
aggressively to change the culture of inaction at the Federal Trade
Commission with respect to consumer protection in the energy field.
Despite this prior statement about how oil companies with market
power could gouge with impunity, Mr. Kovacic, the former Trade
Commission general counsel, failed to identify any new authority the
Federal Trade Commission needed to close the regulatory gap. On the
question of whether the Federal Trade Commission needed added authority
to address mergers in the petroleum industry that the GAO found had
increased gasoline prices, Mr. Kovacic wrote:

I do not have any specific preliminary in mind at the
moment.

Mr. Kovacic was more constructive on the question of whether there
were other ways the FTC's statutory authority might be enhanced. He
suggested Federal antitrust laws could be enhanced by encouraging
whistleblowers to reveal illegal conduct by adding qui tam mechanisms
that allow the whistleblowers to receive a percentage of

[[Page S13749]]

the funds the government recovers from wrongdoers. I certainly agree a
qui tam mechanism could provide a useful supplement to Government
oversight in many areas. It is not a substitute for the Federal Trade
Commission doing its job. And Mr. Kovacic did not identify any way the
Federal Trade Commission's own approach to the oil industry would
change. Given the Federal Trade Commission's record, given what they
have done in the last few years, essentially being AWOL when it comes
to energy, Mr. Kovacic's proposal essentially amounts to contracting
out the Federal Trade Commission's enforcement authority in this area.

Now, I personally believe that the Federal Trade Commission itself
needs to be an aggressive watchdog, looking out for consumers at the
gas pump, not passively waiting for an industry whistleblower to come
forward with smoking-gun evidence before taking action. That is why I
find, at this point, no evidence that Mr. Kovacic would bring a
different kind of outlook to the Federal Trade Commission's work in the
energy field.
Now, the other nominee, Mr. Rosch, had a more interesting proposal.
He suggests restoring the Federal Trade Commission's authority to
challenge unilateral conduct affecting competition, authority that the
Federal Trade Commission had prior to 1994. That would be a good first
step toward closing the existing gap in the Agency's regulatory
authority.
Had Mr. Rosch ended his letter to me at that point, I would have been
willing to support his nomination. However, he went on to undercut his
case when it came to anticompetitive practices in a key area: zone
pricing. In effect, before taking any action to deal with this
particularly egregious and anticompetitive practice, Mr. Rosch argued
for waiting for the outcome of a pending court case and for
recommendations of the Antitrust Modernization Commission. So he was,
in effect, saying, as the Federal Trade Commission says again and again
and again in the energy field, that he wants more time to study, which
means more delay and more inaction as it relates to protecting
consumers from anticompetitive practices.
It is my view that we have had enough delay and enough study when it
comes to the anticompetitive practices of the oil industry. I do not
intend to support business as usual at the Agency, and I am not going
to support business-as-usual nominees to be FTC Commissioners. I intend
to continue to raise my concerns as long as the Federal Trade
Commission continues to duck aggressive consumer protection efforts in
an area that, for reasons that I cannot fully explain to the Senate,
they are simply unwilling to take up.
This Agency, which is willing to step in in a variety of areas, such
as ``do not call,'' stretches their authority to the limits and then
even beyond, for some reason continues to sit on their hands when it
relates to energy.
I want things to change at the Agency. I want to see a more
aggressive approach on behalf of energy consumers. I am not convinced
that anything will change if Mr. Kovacic or Mr. Rosch is appointed to
the Federal Trade Commission. Both of these individuals are going to
get approved by the Senate in the last few hours of this session.
It is my hope, in wrapping up--I see the Senator from Pennsylvania on
the floor, who has patiently waited--it is my hope that these two
individuals, Mr. Rosch and Mr. Kovacic, will prove that I am incorrect
in the judgments I make tonight. I hope they will be aggressive. I hope
they will look for opportunities to stand up for the consumer. I hope
they will change this course of inaction that has been laid out by Ms.
Majoras. If those two individuals, Mr. Kovacic and Mr. Rosch, take
those kinds of steps, if they take the kinds of steps I have advocated
tonight--to stand up for the energy consumer in this country--they will
have my full support.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
The assistant journal clerk proceeded to call the roll.
Mr. SANTORUM. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

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