[Congressional Record Volume 151, Number 166 (Tuesday, December 20, 2005)]
[Senate]
[Pages S14165-S14170]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            USA PATRIOT ACT

  Mr. SALAZAR. Mr. President, I wanted to take this opportunity today 
to speak yet again on reauthorization of the PATRIOT Act.
  I spoke earlier in the day on my dedication to fighting terrorism and 
in my support for giving law enforcement the tools to fight terrorism, 
the need and desire to reauthorize the PATRIOT Act, the political games 
surrounding extension of the PATRIOT Act, and the true patriotism of my 
colleagues in striving to uphold the Constitution and its liberties.
  The President acts irresponsibly when he refuses--for purely 
political purposes--to allow the extension of the PATRIOT Act.
  If the PATRIOT Act expires at the end of 2005, the responsibility 
lies with

[[Page S14166]]

the President alone and with those Members of the Senate and the House 
who rubberstamp his irresponsible direction.
  We can act today to resolve this impasse over the PATRIOT Act. It 
simply requires good faith. Surely in the final few days before 
Christmas we can come together, set aside political posturing, and pass 
another extension of the PATRIOT Act so that we can continue in good 
faith to fix it.
  But what we are witnessing with the PATRIOT Act is something more 
troubling--the abuse of absolute power.
  It is an age-old self-portrait of America that we are a nation and 
people governed by the ``rule of law.''
  Since before the American Revolution, we have held ourselves out to 
the world as a country and as a people different from all others. We 
have rejected for our country the tyranny of the powerful, the despotic 
kingships and the dictatorships that have oppressed mankind throughout 
its history.
  The ``rule of law'' also of course includes the ``rules of law''--how 
we create laws at every level of government.
  In our country, the rule of law protects the rights of those not in 
control of the levers of power--from the Bill of Rights to the rules of 
the Senate, our laws and rules aim to protect those out of power from 
the abuses of those who are in power.
  But notwithstanding the ideal of our Nation--that we are governed by 
the rule of law and not by the whims of the powerful--all too often in 
our history the convictions that ``might makes right'' degrades the 
rule of law.
  Earlier this year, those in power threatened to break the rules of 
the Senate to force their will on the Senate. It is happening again 
this week.
  I have witnessed over the last few days the naked display of ``might 
makes right'' and the corrupting influence of absolute power.
  Instead of an honest debate on differences of opinion between 
patriots on the reauthorization of the PATRIOT Act, our commitment to 
fighting terrorism is questioned.
  In the closing hours of the session of Congress, we witness the 
amazing switch of ANWR from the budget reconciliation bill to the 
Defense Appropriations bill and the trashing of Senate rules. And why? 
Simply because those in power believe that might makes right.
  We have an administration that has admitted it ignored our 
intelligence surveillance laws because it found them to be 
inconvenient.
  When people dare to question the legality of these actions, they are 
called unpatriotic and obstructionist.
  That is wrong.
  Now Mr. President, let me turn my attention in more detail to the 
PATRIOT Act.
  In March of this year, I joined a group of three Republicans and 
three Democrats in introducing legislation known as the SAFE Act. This 
legislation would have extended every single one of the expiring 
portions of the PATRIOT Act, while at the same time imposing reasonable 
checks on those powers.
  In keeping with that spirit of compromise, the Senate Judiciary 
Committee worked tirelessly this spring and summer to draft a 
reauthorization bill that could garner broad support. With the 
participation of two of the original cosponsors of the SAFE Act, 
members of that committee, in conjunction with our colleagues on the 
Senate Intelligence Committee, worked together to make tough choices 
and hammer out a bipartisan compromise.
  The legislation passed unanimously out of the Judiciary Committee--a 
group not known for its ability to achieve complete consensus on many 
issues--and it passed the Senate with the support of all 100 Senators--
Republicans, Democrats, and Independents alike.
  We stood together behind the principle that we can give law 
enforcement officers the tools they need without sacrificing our basic 
freedoms--freedoms that Americans are fighting and dying for in Iraq 
and Afghanistan, freedoms that Americans have fought and died to 
establish and preserve throughout our history.

  But, once again, we were faced with the need to find compromise--this 
time, with the House. And again, my colleagues and I did not expect to 
get everything we wanted.
  It is worth repeating that the Senate bill passed with the support of 
all 100 Senators, while the House bill passed in the face of stiff 
opposition.
  It is also worth noting that, in separate votes, a bipartisan 
majority in the House supported stronger civil liberties protections 
than were included in the final conference report.
  Unfortunately, after the House delayed for months in appointing 
conferees, the conference committee filed legislation that failed to 
provide the modest--but critical--civil liberties protections that 
Americans deserve.
  Once again, I joined with the cosponsors of the SAFE Act--this time 
in a final effort to bring the conference committee back from the brink 
and to pass reauthorization legislation worthy of broad, bipartisan 
support.
  Our requests were modest. We asked the conference committee to 
address four specific provisions: section 215 of the PATRIOT Act 
itself, which allows the government to obtain sensitive personal and 
business records without any meaningful limitation and no ability to 
challenge the permanent automatic gag order; national security letters, 
which allow the government to obtain certain categories of records 
without prior judicial approval, again without the ability to challenge 
the gag order; the need for periodic congressional review of these 
authorities; and sneak-and-peek searches, where the government can wait 
up to 30 days before notifying the target of a property search.
  Last week, my colleagues and I introduced legislation to extend the 
PATRIOT Act by three months to give Congress time to make the final 
changes to the conference report necessary to protect civil liberties.
  That proposal was summarily rejected by the majority leadership and 
by the White House.
  When we have repeatedly this week attempted to propose extending the 
PATRIOT Act to allow for necessary improvements, those efforts have 
been again summarily rejected.
  When the minority leader even attempted yesterday to propose the 
Senate simply re-pass its version of the PATRIOT Act reauthorization, 
that effort was rejected by the very same Senators who supposedly 
supported the Senate version the first time around.
  It is eminent1y clear that those of us who have worked to improve the 
PATRIOT Act over the course of the past days, weeks, and months are 
entirely focused on extending these important powers as we continue to 
fight the war on terror. But, given that we have been labeled 
``obstructionists'' and told that we are putting the nation at greater 
risk, it is worth examining some of the arguments over the bill's 
substance in greater detail.
  Over the past few days, some on the other side of this debate have 
asserted that the changes we have proposed are unnecessary, because 
intelligence investigations authorized under the PATRIOT Act are no 
different from the routine law enforcement investigative activities 
that occur throughout our Nation thousands of times a day.
  At the heart of this disagreement is section 215 of the PATRIOT Act, 
which revises substantially the authority under the Foreign 
Intelligence Surveillance Act, FISA, for seizure of business records, 
including third party records of individuals' transactions and 
activities.
  Section 215 broadened the authority to seize business records under 
FISA in two ways. First, it expanded the scope of the kinds of records 
the government may obtain using this authority from ``records'' to 
``any tangible things.'' Second, it eased the requirements for 
obtaining an order. Previously, FISA required the government to present 
to the secret FISA court ``specific articulable facts giving reason to 
believe'' that the subject of an investigation was a ``foreign power or 
the agent of a foreign power.'' Under section 215, the government is 
required only to assert that the records or things sought are needed 
``to protect against'' international terrorism--in effect, that they 
are relevant in some way to a terrorist investigation. There is no 
requirement for an evidentiary or factual showing and the judge has no 
real discretion in reviewing an application. If the judge finds that 
``the application meets the requirements'' of the section, he or she 
must issue an order as requested ``or as

[[Page S14167]]

modified.'' In addition, section 215 prevented the recipient of a 
search order from disclosing the fact that the FBI has sought or 
obtained records, and prohibited the recipient from challenging that 
gag order.
  Both the SAFE Act and the Senate reauthorization bill retained the 
PATRIOT Act's expanded scope of the FISA records provision, but both 
restored a standard of individualized suspicion, and permitted the 
recipient of a search order to challenge that order in court.
  National security letters have also been at the center of this 
debate. NSLs allow the government to obtain certain narrow categories 
of records without the prior approval of a judge. The PATRIOT Act 
expanded the use of national security letters, and authorized a much 
larger number of government officials to issue them. It has been 
asserted that the number of NSLs has exploded since passage of the 
PATRIOT Act, possibly by as many as 30,000 a year. In addition, as with 
section 215 orders, the act prohibited the recipient of an NSL from 
disclosing information about the order, and from challenging that order 
in court.
  In contrast, the Senate bill would have permitted recipients of an 
NSL to challenge the gag order and to receive meaningful review of that 
order in court. Although many of my colleagues and I would have 
preferred to require a standard of individualized suspicion before an 
NSL was issued--as would have been required by the SAFE Act--we 
understood that NSLs are distinct from section 215 orders in that they 
are much more limited in scope, and supported the Senate compromise.
  As I mentioned previously, supporters of the conference report have 
argued against the changes in the Senate bill on the grounds that the 
government already has the authority to obtain broad categories of 
third-party records without the prior approval of a judge, and without 
having to demonstrate even relevance to an investigation, let alone 
individualized suspicion.
  In fact, it has been asserted that there are 335 specific cases in 
which the government is authorized to subpoena information without the 
prior approval of a judge.
  It is important to point out that a vast majority of the 
administrative subpoena powers the government possesses are related to 
the ability of regulatory agencies to obtain records to ensure 
compliance by the industry being regulated. This is vastly different 
than government intelligence agents seeking information about U.S. 
citizens engaged in lawful activities. Moreover, the administrative 
subpoena powers not related to regulatory enforcement are far narrower 
than the authorities provided by the PATRIOT Act.
  Secondly, and more importantly, intelligence investigations are 
inherently different from criminal investigations, because criminal 
investigations are limited to cases involving unlawful conduct.
  In contrast, intelligence investigations may focus on lawful activity 
by law-abiding Americans.
  Accordingly, it is inappropriate--and just plain wrong--to compare 
the authority provided to the government for intelligence 
investigations with the subpoena powers the government currently 
possesses with respect to regulatory enforcement, or under the criminal 
code.
  Mr. President, there is still time to get this right. I am confident 
that, by working in the same spirit of bipartisanship and compromise 
that the cosponsors of the SAFE Act have exemplified all year, we will 
get this right.
  That, Mr. President, is my goal.
  Mr. BAUCUS. Mr. President, I rise today to speak briefly about the 
PATRIOT Act. I voted against cloture for the PATRIOT Act because I do 
not feel that this bill is good for our country. The conference report 
invades our most treasured civil liberties--the right to be left alone 
without the Government invading our personal space. I know the people 
of Montana value this freedom. So does the rest of the country. We can 
be safe from terrorism and at the same time be free from Government 
restrictions on our basic civil liberties. The conference report does 
not strike this essential balance. Instead, it infringes on the rights 
we hold most dear.
  The Senate bill I supported in July was a joint effort, between 
Republicans and Democrats, which took important steps to protect the 
freedoms of innocent Americans. At the same time, the Senate bill made 
sure that the Government had the power it needed to investigate 
potential terrorists and terrorist activities. I am deeply disappointed 
in the conference report which retreats too far from the bill I 
supported in the Senate. The conference report fails to make some 
vitally important reforms to the PATRIOT Act that we, in Senate, agreed 
to in July. My colleagues have spoken at length about the broad, 
intrusive powers of section 215. I share these concerns on the 
expansive powers given to the Government in the conference report. I am 
also seriously disturbed by the recent news of the Government's ability 
to spy on innocent U.S. citizens and listen to our private 
conversations.
  This conference report is flawed. And it needs work. Let me make 
myself clear. I am not opposed to reauthorization of the PATRIOT Act.
  We need to work together to make the necessary improvements on this 
very important piece of legislation. We must put aside our party lines 
and come to an agreement that gives our law enforcement officers the 
ability to do their jobs. But we must also preserve our freedoms in the 
process. We can protect the country from terrorism while at the same 
time protecting all innocent Americans from unnecessary Government 
intrusion. The safety of our country depends on it.
  Mr. JEFFORDS. Mr. President, I rise today to make some comments and 
share my concerns about the provisions of the Department of Defense 
appropriations conference report that open the Arctic National Wildlife 
Refuge to oil drilling. I do not support drilling in the Refuge. But 
even if I did, I would not support the language in this bill. It is 
inappropriate to make management decisions regarding one of our 
Nation's largest and most ecologically important wildlife refuges in a 
closed conference. Doing so restricts the ability of the Senate and the 
administration to ensure that drilling is done in an environmentally 
sound way. It is particularly troubling that a military spending 
conference report is being used as the vehicle to sneak this unrelated, 
controversial, and reckless legislation through the Senate.
  As ranking member of Environment and Public Works Committee, I feel I 
must make clear to the Senate that the language in that this conference 
report has not passed the Senate before. It does not just open the 
Refuge to oil drilling, it does so in the least environmentally 
sensitive way possible. And, Mr. President, it does so in a manner that 
treats the Arctic Refuge differently than any other Federal lands or 
wildlife refuges.
  Arctic Refuge drilling proponents repeatedly profess that oil 
development in the Refuge would be done in an environmentally sensitive 
way. As the ranking member of the Environment and Public Works 
Committee, I want to inform the Senate that this bill is actually 
riddled with clauses that weaken existing environmental standards, 
exempt drilling from key rules, or otherwise allow oil development 
activities to sidestep environmental protection laws. First, for 
example, the conference report exempts parts of the proposed Arctic oil 
and gas leasing program from environmental review requirements. In 
particular, it declares that the Department of Interior's Environmental 
Impact Statement EIS prepared in 1987 satisfies the requirements of the 
National Environmental Policy Act, NEPA, for preparation of the 
regulations that will guide the leasing program and any preleasing 
exploration or other activities. NEPA is supposed to ensure that public 
and Federal decisionmakers have the most recent, accurate information 
concerning the environmental impacts of projects, but this clause seems 
to ensure the opposite. In fact, as long ago as 1991, a Federal court 
found that due to new scientific information, Interior should have 
supplemented this very same 1987 EIS analysis before recommending to 
Congress that it allow development on the Coastal Plain.
  In 2002, some 15 years after the 1987 EIS, the U.S. Geological Survey 
released a significant report detailing 12 years of study about the 
potential impacts of oil drilling on the wildlife of

[[Page S14168]]

the Arctic Refuge. This information can, and should, be incorporated as 
the Interior Department's consideration of drilling.
  Many now question whether the existing final legislative 
environmental impact statement, prepared in 1987 to comply with the 
National Environmental Policy Act, NEPA, is adequate to support 
development now or whether a Supplement or a new EIS should be 
prepared. As I mentioned, a court in a declaratory judgment action in 
1991 held that the Interior Department should have prepared a 
supplemental invironmental impact statement SEIS at that time to 
encompass new information about the Coastal Plain in connection with 
the Department's recommendation that Congress legislate to permit 
development. Therefore, without the language of this bill, it seems 
clear that either an SEIS or a new EIS would have to be prepared before 
drilling could begin.

  But, in this provision, we change the law and the legal precedent. 
The bill before us states that the Congress finds the 1987 EIS adequate 
to satisfy the legal and procedural requirements of NEPA with respect 
to the actions authorized to be taken by the Secretary of the Interior 
in developing and promulgating the regulations for the establishment of 
the leasing program. This language explicitly eliminates the need to 
redo or update the EIS for the leasing regulations.
  The Secretary is only directed to prepare an EIS with respect to 
actions other than the preparation of the regulations. This is 
noteworthy because only the smaller document, an environmental 
assessment, might not normally be sufficient, given on the magnitude of 
the action involved. The rest of that paragraph sets out limitations on 
the alternatives that the Secretary must consider as to leasing, as 
though this paragraph relates only to the leasing stage, rather than to 
all actions. But, the language is unclear and may curtain environmental 
review at all stages. The section goes on to say that the Secretary is 
to identify only a preferred action for leasing and a single 
alternative and analyze only those two choices and to consider public 
comment only on the preferred alternative. Public comments must be 
submitted within 20 days of publication of the environmental analysis, 
and the Secretary may only consider public comments that specifically 
address the preferred action. Compliance with this law is stated as 
satisfying all requirements for consideration and analysis of 
environmental effects.
  There is no question that this language substantially weakens 
environmental review requirements. It significantly diminishes the 
comprehensive analysis traditionally required by NEPA, by stating that 
the Secretary of Interior need consider only its preferred action and a 
single leasing alternative. The ``alternatives analysis,'' which is all 
but eliminated by this section of the bill, is the heart of NEPA. 
Senators supporting this provision should be fully aware that these 
limitations strike at the core of our country's environmental review 
process and requirements.
  Further, this language undermines the U.S. Fish and Wildlife 
Service's authority to impose conditions on leases. It states that the 
oil and gas leasing program are ``deemed to be compatible'' with the 
purposes of the Arctic Refuge. According to the Congressional Research 
Service, this provision ``appears to eliminate the usual compatibility 
determination process for purposes of refuge management.'' CRS notes 
that without the compatibility process, the authority of the Fish and 
Wildlife Service to impose conditions on leases is called into 
question.
  Finally, this language changes judicial review of leasing decisions. 
Judicial review is limited to ``whether the Secretary has complied'' 
with this legislation. It also states the only appropriate legal venue 
is the DC Circuit Court of Appeals. The judicial review provisions 
undermine drilling proponents' claims that the language will result in 
sufficient environmental protection. A leasing program that is truly 
``environmentally sound'' would be at no risk from judicial review.
  We can do better, and we should. This debate will never lead us to 
actually fix these problems because a conference report cannot be 
amended. And putting this provision in a conference report constrains 
the way in which Senators who are concerned about these issues and who 
do not serve on the Appropriations Committee are able to address those 
issues on the floor.
  I would caution all Members of the Senate who have committed to 
support Arctic drilling only in certain cases, or only if certain other 
legislative or regulatory actions take place, to closely examine the 
language in this conference report.
  Finally, I oppose including this in a conference report because I 
believe it is being used to limit consideration of a controversial 
issue. The American people have strongly held views on drilling in the 
Refuge, and they want to know that the Senate is working to pass 
legislation to manage the area appropriately in a forthright and open 
process.
  Mrs. FEINSTEIN. Mr. President, I rise today to state my opposition to 
this cynical effort to add a very controversial provision to allow 
drilling in the Arctic National Wildlife Refuge and also adds a 
provision to grant unprecedented liability protection to vaccine 
manufacturers to a critical Defense appropriations bill.
  Holding funding for our troops and relief for Hurricane Katrina 
victims hostage in this manner is just plain wrong and a violation of 
at least two Senate rules--XXVIII and a budget point of order--and 
cynical.
  Rule XXVII prevents Senators from adding provisions that have not 
been included in either the House or Senate bill from being added to 
the conference report. Neither the House nor the Senate included any 
language on ANWR, so according to the Senate rules, it should not have 
been included in the conference report.
  The provision also appears to violate section 311 of the Budget Act. 
The budget resolution which we passed in April assumed that the 
Treasury Department would raise about $2 billion from opening the 
Arctic for drilling. Yet the appropriations bill spends $5 billion of 
revenue from ANWR.
  As far as I know, opening ANWR to drilling has not been rescored, so 
the score from earlier this year is still in effect. As a result, this 
provision is subject to a budget point of order.
  It makes a mockery of the rules and procedures of the Senate and 
strikes a blow at the heart of collegiality.
  The ANWR provision was originally added to the budget reconciliation 
bill. Courageous House Republicans stood up and said no. So when this 
route was closed, it was added to this important appropriations bill, 
in violation of at least one Senate Rule and the Budget Act.
  To make matters worse, the vaccine proposal was added to the bill 
after the House-Senate Conference Committee concluded its meeting. This 
is outrageous.
  I believe it is all being done with a cynical attitude that says 
unless we accept it, we are going to run the risk that we will vote 
against a major bill which funds all military operations at a critical 
time in our history.
  ANWR is an issue that arouses great passion on both sides of the 
issue. There are strong arguments that underlie the belief that the 
opening of these critical 1.5 million acres of pristine wilderness is 
small from an oil production perspective and damaging environmentally.
  First, the Artic Refuge's Coastal Plain, where the drilling would 
occur, is the ecological heart of the refuge.
  It is the center of wildlife activity and the home of nearly 200 
wildlife species, including polar bears, musk oxen, and porcupine 
caribou.
  If ANWR were opened up for drilling, the wilderness would be 
crisscrossed by roads, pipelines, power plants, and other 
infrastructure.
  In fact, the Department of the Interior estimated that 12,500 acres 
would be directly impacted by drilling.
  I believe that destroying this wilderness does very little to reduce 
energy costs, nor does it do it very much for oil independence.
  I also believe deeply that we cannot drill our way out of our 
Nation's over dependence on oil.
  ANWR will produce too little oil to have a real impact on prices or 
overall supply. And it would offer a number of false hopes:
  First, to those seeking lower gasoline prices: opening the Refuge 
would only lower gasoline prices only 1 cent per gallon 20 years from 
now.

[[Page S14169]]

  Second, to those seeking a major boost in oil supply: the United 
States now consumes 20 million barrels of oil per day, a number that 
will climb every year unless we learn to conserve and recognize that we 
must find alternatives to fossil fuels.
  On average, ANWR is expected to produce about 800,000 barrels per 
day. And in 2025, this 800,000 barrels per day would represent only 3 
percent of the projected 25 million barrel a day U.S. daily 
consumption.
  So, in essence, we would be sacrificing this cherished wilderness to 
obtain about 10.4 billion barrels of oil over the 35-year projected 
ANWR lifetime. This amounts to a little more than one year's supply of 
oil for the United States.
  There are other things we can do to meet our energy needs, including 
raising fuel economy standards and drilling at alternative sites.
  First, just changing the mileage of SUVs and light trucks from 21 to 
27.5 miles per gallon would save the United States 1 million barrels of 
oil a day and reduce our dependence on oil imports by 10 percent.
  This would save more oil in 1 day--1 million barrels--than ANWR would 
produce in one day 800,000 barrels.
  Second, there are other important supplies of domestically produced 
oil.
  The Minerals Management Service, MMS, has reported that there are 
36.9 billion barrels of undiscovered, technically recoverable oil that 
exists in the Gulf of Mexico, much of which would likely be found under 
the 8,043 already leased blocks in the Gulf.
  These already leased blocks can be drilled right now, without delay, 
if the oil companies were willing.
  In addition, there are new technologies to produce oil from 
``depleted'' oil fields throughout the United States.
  According to scientists, using enhanced oil recovery could allow the 
United States to produce an additional 32 billion barrels of 
technically recoverable oil from already existing wells.
  The bottom line is that it is hardly worthwhile to damage the 
Nation's only refuge that encompasses a complete range of arctic 
ecosystems and provides an essential habitat for many species for less 
than 1 percent of the world's oil output.
  Drilling will not give us more energy security, but it will carry 
huge environmental costs.
  We can start to address high energy prices, energy security and 
global warming by increasing fuel economy standards, encouraging energy 
efficiency, promoting the development of new and alternative fuels, and 
supporting the invention and commercialization of new vehicle 
technologies. Drilling in ANWR is not the answer.
  Before I close, I also want to say a few words about another 
problematic provision in the bill.
  I was quite surprised to discover yesterday that after the conference 
on Sunday had been closed, new liability protections for pharmaceutical 
companies were added to the conference report.
  Over 30 pages of new language were included that provide essentially 
complete immunity from civil liability for drug companies and medical 
device manufacturers even when there is reckless disregard or gross 
negligence in developing or manufacturing these products--so long as 
the Secretary of HHS has made a ``Declaration.''
  In addition, pharmaceutical and medical device companies are 
protected even when there are criminal violations of FDA standards so 
long as the administration has not taken action to enforce the 
violations.
  The bill does appear to allow for a lawsuit if an injured patient can 
demonstrate willful misconduct on the part of the company.
  However, the language is unclear as to whether the Secretary has to 
first approve regulations before even these suits may go forward.
  In addition, the bill literally directs the Secretary to promulgate 
regulations to further restrict the definition of willful misconduct--a 
decision that is usually left up to a court.
  Even more disturbing is that none of the Secretary's decisions are 
subject to review by a court, essentially wiping out individual's 
access to an impartial forum.
  I am also concerned that this legislation preempts State laws. If 
States have stronger laws to protect consumers from defective drugs or 
devices those laws are pre-empted, as we do in California, those laws 
are wiped out.
  Finally, the bill does create a trust fund to pay patients who cannot 
meet these severely restrictive standards based on the Smallpox 
Emergency Personnel Protection Act.
  However, that act is meant as a supplemental benefits program for 
health care workers administering the potentially deadly smallpox 
vaccine. And more importantly, there is no money for the trust.
  I am very disturbed that this egregious provision was added to the 
conference report. I am disturbed both by the process in which it was 
added, and by the substantive impact it could have if enacted into law.
  It is with a heavy heart that I will vote against cloture on this 
bill. I support the military 100 percent. I support our efforts to help 
the victims of Hurricane Katrina 100 percent. But I cannot support the 
manner in which this important bill was hijacked in an effort to get 
several very controversial provisions enacted despite widespread 
opposition.
  In an article that appeared in the Fairbanks Daily News-Miner, 
Senator Stevens was quoted saying that if a Senate filibuster over ANWR 
stops this bill, the legislation can be modified and passed so it has 
no impact on military finances. He said, ``If we lose, then we'll 
reconstitute the conference and ANWR will be out.'' I would hope that 
is the result. It would be the best course for this Congress and the 
Nation.
  Mr. KENNEDY. Mr. President, I support the Defense authorization bill 
as a strong expression of our support in the Senate for our Armed 
Forces at this difficult point in our history. We are proud of the 
courage of our troops in Iraq and their extraordinary dedication in 
carrying out their mission.
  But I strongly object to the action of the conferees in including a 
last-minute rider to the bill that received little debate and that 
would drastically restrict the fundamental right to habeas corpus for 
aliens detained by the Department of Defense at Guantanamo Bay, Cuba. 
Section 1405 of the bill amends the habeas corpus statute in the U.S. 
Code by adding these words: ``Except as provided in section 1405 of the 
National Defense Authorization Act for Fiscal Year 2006, no court, 
justice, or judge shall have jurisdiction to hear'' any habeas corpus 
claim or any other action relating to the detention of an alien at 
Guantanamo.
  For centuries, the writ of habeas corpus has been a cornerstone of 
the rule of law in Anglo-American jurisprudence. Since the Second Magna 
Carta in 1679, it has served as the primary means to challenge unlawful 
government detention. Literally, the writ means ``have the body,'' i.e. 
the person detained, brought before a court or judge to consider the 
legality of detention. The writ was used to prevent indefinite 
detention, and ensured that individuals could be held no longer than 3 
to 6 months without indictment or trial for felony or treason. In other 
words, it requires the Government to provide a court with a legal basis 
for its decision to deprive persons of their liberty.
  This provision strikes at one of the basic principles of liberty 
enshrined in the Anglo-Saxon system of government that the executive 
may not arbitrarily deprive persons of liberty for an indefinite 
period. As Blackstone wrote in his commentaries:

       To bereave a man of life, or by violence to confiscate his 
     estate, without accusation or trial, would be so gross and 
     notorious an act of despotism as must at once convey the 
     alarm or tyranny throughout the whole kingdom. But 
     confinement of a person, by secretly hurrying him to gaol, 
     where his sufferings are unknown or forgotten, is a less 
     public, a less striking, and therefore a more dangerous 
     engine of arbitrary government.

  This principle was so important to the Framers that ``the great 
writ'' was the only common law writ enshrined in the Constitution. 
Article I, section 9 of the Constitution states, that ``The privilege 
of the Writ of Habeas Corpus shall not be suspended, unless when in 
cases of Rebellion or Invasion the public safety may require it.''
  Any changes to the writ of habeas corpus, this most fundamental of 
rights, should be made carefully, through open debate, and with a full 
understanding of the implications of the change. The Senate did not 
hold a

[[Page S14170]]

single hearing on the need for this drastic change. In fact, the 
sponsor of the amendment, Senator Graham, admitted that some of his 
comments during the debate were not accurate statements of law. Senator 
Specter, the chairman of the Judiciary Committee, opposed the 
provision, and spoke eloquently on the lack of appropriate process for 
its consideration. The provision was adopted by the Senate with less 
than 2 hours of debate. Since its passage, all negotiations on this 
provision have occurred in back rooms, without the involvement of the 
vast majority of Congress, and without even consulting most of the 
conferees. Such a cavalier treatment of the basic right to habeas 
corpus is appalling.
  The constitutional writ of habeas corpus deserves better than that. 
Justices Scalia and Stevens, dissenting in the recent case of Hamdi v. 
Rumsfeld, acknowledged the power of Congress to suspend the writ of 
habeas corpus, but they noted the limits on that power embedded in the 
Constitution. In this dissent, they said:

       To be sure, suspension is limited by the Constitution to 
     cases of rebellion or invasion. But whether the attacks of 
     September 11, 2001, constitute an ``invasion,'' and whether 
     those attacks still justify suspension several years later, 
     are questions for Congress.

  Here, neither the legislation nor the report language makes any 
findings that would satisfy the requirements of the Suspension clause. 
Without such a record, it would be preposterous for Senators to claim 
that somehow their actions fulfilled the constitutional requirement for 
suspending habeas corpus. Section 1405, therefore, can be treated only 
as a modification of the statutory provisions for habeas corpus in the 
U.S. Code. In Rasul v. Bush, for example, decided last year, the 
Supreme Court made clear that it was considering the statutory right to 
habeas corpus, not the constitutional right. They did not determine 
whether the constitutional right to habeas corpus was reached. Since 
Congress cannot act in violation of the Constitution to prohibit 
judicial review, the courts still have the power to determine whether 
the constitutional right of habeas corpus is available in cases where 
section 1405 deprives a detainee of the statutory right. So this 
unseemly action may well not have achieved its purpose.
  Some may claim that the right of habeas corpus does not apply to 
Guantanamo because Section 1405 defines the United States specifically 
to exclude Guatanamo Bay, Cuba. But as the Supreme Court found in 
Rasul, the common law right of habeas corpus is not limited to the 
formal territorial boundaries of a nation, but is defined by ``the 
practical question of `the exact extent and nature of the jurisdiction 
or dominion exercised in fact by the Crown.' `` It is this common law 
right which our founders enshrined in the Constitution. Thus, the scope 
of the constitutional right to corpus habeas is the same as the common 
law right. In Rasul, the Supreme Court stated that the United States 
``exercises `complete jurisdiction and control' over Guanatanamo Naval 
Base, and may continue to exercise such control permanently. . .''
  Supporters of this provision argue that after stripping the courts of 
jurisdiction for habeas corpus claims, the provision adds back limited 
appeal rights for detainees in two classes: No. 1, those who have had a 
Combatant Status Review Tribunal, which serves as an initial 
designation of enemy combatant status but is not a final judgment; and 
No. 2, those who have received a final decision from a military 
commission. Over 500 detainees in the first category, those who have 
had a CSRT--many of them have already filed a petition to challenge 
their designation as enemy combatants. We are not aware of any 
detainees in the second category.
  For the first category, section 1405 does not apply the habeas-
stripping provision to pending cases, so the courts retain jurisdiction 
to consider these petitions--in addition to pending military commission 
cases--consistent with Lindh v. Murphy. During deliberations on the 
floor for this provision, the Senate specifically rejected language 
from the original Graham amendment, which would have brought these 
categories of cases within its reach.
  Section 1405 also leaves completely undisturbed a challenge to the 
military commission process now pending in the Supreme Court in the 
case of Hamdan v. Rumsfeld. The sponsors of the original amendment made 
it clear on the floor of the Senate that the provision has prospective 
application only, which is what my colleagues and I understood to be 
the drafters' intent.
  When Congress authorizes a procedure to challenge military 
commissions or the tribunals, Congress is clearly not endorsing or 
authorizing the use of commissions or tribunals themselves. The Senate 
has numerous bills before it to authorize military commissions, and it 
has not acted on any of them.
  In addition, section 1405 in no way endorses the amorphous and 
unlimited definition of enemy combatant currently used by the Bush 
administration. We all hope that the administration will soon provide 
Congress and the American people with a definition of who is an ``enemy 
combatant,'' with clear limits on who is subject to such a designation 
and is subject to indefinite detention as a result.
  Sadly, section 1405 also undermines the giant step forward we took in 
giving such overwhelming support to the McCain amendment and its 
prohibitions on abusive interrogation techniques. Yet section 1405 
appears to undermine that amendment. We have established clear rules, 
but the Graham amendment is a flagrant attempt to prevent their 
enforcement. That is not what we intended when nearly all of us voted 
for Senator McCain's prohibition and that is not the message we intend 
to send to the world when we did so. In this devious maneuver, Congress 
has slammed the front door on torture, then surreptitiously opened a 
back door to it. This legislation obviously raises larger policy 
concerns in addition to its ambiguous statutory language and the 
constitutional concerns. America was founded on the principle that no 
one, especially not the President, is above the law.
  Section 1405, however, sends exactly the wrong message. By barring 
claims from the detainees, it creates a legal black hole in Guantnanamo 
where detainees can be abused and tortured. We can't continue to turn a 
blind eye to the treatment of detainees at Guantanamo. The actions of 
our Government, wherever they are taken, should be limited by the rule 
of law.
  Yet this provision attempts to put Guantanamo above the rule of law. 
As we try to build democratic societies in Iraq and Afghanistan, how 
can we possibly prove to them that arbitrary imprisonment is wrong and 
that all persons are entitled to humane treatment, when Congress so 
blatantly refuses to practice what it preaches? The hypocrisy is as 
breathtaking as it is shameful.
  It is an outrage that the conferees have included this irresponsible 
provision in this must-pass bill, and I hope the Senate will do all it 
can to remove it in the new session that begins in January.

                          ____________________