[Congressional Record Volume 151, Number 167 (Wednesday, December 21, 2005)]
[Senate]
[Pages S14241-S14254]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S14241]]
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House of Representatives
The House was not in session today. Its next meeting will be held on
Thursday, December 22, 2005, at 4 p.m.
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Senate
Wednesday, December 21, 2005
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2006--CONFERENCE REPORT
The PRESIDING OFFICER. Under the previous order, the clerk will
report the conference report to accompany H.R. 2863.
The legislative clerk read as follows:
The committee of conference on the disagreeing votes of the
two Houses on the amendment of the Senate to the bill (H.R.
2863) making appropriations for the Department of Defense for
the fiscal year ending September 30, 2006, and for other
purposes, having met, have agreed that the House recede from
its disagreement to the amendment of the Senate, and agree to
the same with an amendment, and the Senate agree to the same,
signed by a majority of the conferees on the part of both
Houses.
The PRESIDING OFFICER. The Senate will proceed to the consideration
of the conference report.
(The conference report is printed in the House proceedings of
December 18, 2005.)
Mr. McCONNELL. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?NOTICE
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TRENT LOTT, Chairman.
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There appears to be a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The Senator from Louisiana.
Ms. LANDRIEU. Mr. President, I would like to speak for 30 seconds.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. LANDRIEU. Mr. President, I know everyone is anxious to vote. In
this underlying bill on defense, I just wish to say that there is $29
billion for coastal restoration, hurricane protection, housing, and
business help for the gulf coast. I know it has been a tough, long day,
but in this bill there is $29 billion because of the hard work by both
sides of the aisle. We are very grateful for the help on this bill.
Mr. BIDEN. Mr. President, I rise to express my surprise and deep-
seated opposition to the so-called Public Readiness and Emergency
Preparedness Act, which is included in the Defense Department
Appropriations bill.
This provision would give the Secretary of Health and Human Services
authority to provide almost total immunity from liability to the makers
of almost any drug, and to those who administer it.
While the measure's proponents portray it as a simple tool to make
sure we have sufficient vaccine available in the case of an avian flu
pandemic, the actual language of the provision is far broader than
that, and it therefore poses a danger to all Americans.
The actual provision permits immunity for the makers of virtually any
drug or medical treatment. All the secretary need do is declare that it
is a ``countermeasure'' used to fight an epidemic. One solitary person
gets to decide what is a countermeasure and what is an epidemic. There
is nothing to prevent the declaration of immunity for, say, Tylenol.
There is nothing to prevent a declaration that, say, arthritis is an
epidemic.
What's more, this is no typical grant of immunity. No, the breadth of
this provision is staggering. A drug maker can be grossly negligent in
making or distributing a drug, and still escape liability. It can even
make that drug with wanton recklessness and escape scott-free after
harming thousands of people.
In fact, under this provision, the only way a victim could still
recover compensation from a drug maker for a dangerous drug or vaccine
would be to prove ``willful misconduct,'' and then only by ``clear and
convincing evidence.'' What this means is that, for a victim to be able
to be compensated by the company that harmed him, he must prove that
they committed a crime. And even if he can do that, the company can
still avoid liability simply by notifying the authorities within 7 days
that someone was harmed by their product. In other words, so as long as
you ``confess'' to your bad behavior, you can get away with it!
Is this the sort of justice system that Americans desire?
The answer to this question seems clear from the way this provision
was inserted in the larger bill. No hearings were held on this
language; no Committee vote was taken; no bill passed the House or the
Senate. Not even the House and Senate conferees had a chance to give
input on this provision. Indeed, I'm told it was inserted in the dead
of night, after conferees had already signed the conference report!
Perhaps the folks who secretly inserted this provision in the dead of
night knew that it was overly broad, as I've discussed; perhaps they
knew that it was constitutionally suspect, as has been noted by at
least one prominent law professor; or perhaps they just knew that, if
this provision ever saw the light of day, the American people would not
stand for such secrecy and injustice.
This should not be how we conduct the business of the American
people, and we will all suffer if this provision is permitted to go
forward.
Mr. BYRD. Mr. President, the Senate is now on its way to passing the
Defense appropriations bill, which will provide essential funds to our
troops. The U.S. Armed Forces are comprised of some of the finest men
and women our country has to offer. Each of these brave individuals has
made the commitment to serve our country, during times of war or peace,
and each is deserving of the support of a grateful nation.
I particularly wish to salute the fine members of the West Virginia
National Guard who have time and again demonstrated their commitment to
serving our State and our Nation. These citizen-soldiers have served in
all corners of the world while balancing their obligations to their
families, to their employers, and to their communities. The Defense
appropriations bill is important to our National Guard and all the
members of our military. I am proud to have worked with my colleagues
to expedite passage of this essential legislation.
The Senate is proceeding in a wise course after the cloture vote this
morning. The most controversial part of the conference report will be
removed, clearing the way for the Defense appropriations bill to pass
the Senate and be sent on its way to the White House. It is unfortunate
that the deletion of the most controversial provision that was attached
to the bill in conference will also result in eliminating needed funds
for hurricane relief, LIHEAP, homeland security, and border security.
Congress should not delay in providing additional funds for these
purposes. There are emergency needs in each of these areas that must be
met with quick action.
While the ANWR provision will be removed from the bill, I continue to
have serious concerns about the avian flu-related liability provisions
that were slipped into the conference report without debate. These
liability provisions did not appear in either the House- or the Senate-
passed bill. These provisions were not in the materials presented to
the conference committee during its deliberations. It was not until the
dead of night on this past Sunday, after signatures had already been
collected on the conference report, that the Republican majority
slipped these provisions into the bill before the Senate today. What an
insult to the legislative process.
It makes sense for Congress to take steps to encourage companies to
develop and manufacture lifesaving flu vaccines. Manufacturers and
health professionals acting in good faith to protect the public health,
by developing and distributing critical vaccines, should not be
unfairly penalized for their efforts to protect the American people
from the horrors of a pandemic disease.
However, our country has a moral obligation to look out for those who
may become seriously ill as a result of these vaccines. We are talking
about the lives of real American people. There ought to be compensation
available to those persons who may suffer adverse effects from these
kinds of vaccines.
But the liability amendment slipped into the bill does not contain
any meaningful provisions establishing a fair compensation system to
protect vaccine recipients. Americans who pull up their sleeves to
receive an emergency flu vaccine must be provided with some assurance
that they would not face economic catastrophe should they be harmed.
All of this comes as our country is coming to grips with the threat
that the avian flu might spread to our shores. A flu pandemic is one of
the most dangerous threats the United States faces today. Medical
experts warn that a global, cataclysmic pandemic is not a question of
if but when. Like any natural disaster, it could hit at anytime. And
when it does, it could take the lives of tens of millions of people.
According to the Congressional Budget Office, an avian flu pandemic
would deliver a devastating $675 billion blow to the U.S. economy. This
administration has failed to adequately respond to safeguard the
American people and limit the human and economic cost of such a
pandemic.
In the event of a flu pandemic, hundreds of millions of Americans
will need to be vaccinated as quickly as possible. Yet our current
public health infrastructure is alarmingly ill-equipped for this
threat. This administration and the Republican-led Congress have
weakened the health care infrastructure of this country by starving it
of needed funding. The administration has been engaged in a relentless
campaign to arbitrarily cut Medicaid and other vital safety-net
programs that protect the health of the poor and disabled.
I am also disappointed that the majority chose to limit funds for
vaccines, medicines, and other tools to combat
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the avian flu to just $3.8 billion. That level of funding is $4.3
billion below the level that the Senate approved just 2 months ago.
The American people deserve better from their elected
representatives. They deserve a coherent plan to combat the looming
threat of a flu pandemic with significant resources devoted to
protecting the public's health.
Finally, Mr. President, I regret that so little attention has been
paid during the recent debate on this bill to the most important issue
facing our country. The ongoing war in Iraq has so far cost the lives
of 2,155 members of the U.S. Armed Forces. Including the so-called
``bridge fund'' of $50 billion that is appropriated in this bill, our
Nation will have dedicated $259 billion to carry out the war in Iraq.
What an enormous sum. More than a quarter of a trillion dollars has
been spent on this war that should never have begun.
What is more, the newspapers are full of stories that the President
is going to ask Congress for another $100 billion in the coming months
to pay for the wars in Iraq and Afghanistan.
These huge sums of money are being requested and spent for the war in
Iraq with no idea of how the White House intends to get our troops out
of that country. The President has taken to the speaking circuit to try
to rally support for the war, but his statements are simply variations
on a theme: stay the course, stay the course, stay the course.
Americans are asking questions that the White House has so far
refused to address. How much longer will our troops be in Iraq? How
many more Americas will perish in this costly war? How many more
billions will be spent to support the administration's misguided
policies in Iraq?
Instead of getting answers to these questions, and instead of
changing course in the war in Iraq, this appropriations bill includes
$50 billion to continue the wars in Iraq and Afghanistan, despite the
fact that the President did not request a single dime in his budget for
these costs. Let me say again: the Congress is appropriating billions
more for the war in Iraq without a request from the President. Is this
any way to pay for a war?
Although Senators must do our part in providing for our troops
serving in harm's way, I do not think that our troops are served by
having Congress appropriate funds for the war in Iraq without any
explanation by the President or the Secretary of Defense about how
these funds are to be used. If the administration wants additional
funds to prosecute the war in Iraq, the administration should answer
the tough questions about its policy for getting our country out of
Iraq.
Mrs. CLINTON. Mr. President, I would like to take this opportunity to
object to insertion of a provision in the Department of Defense
appropriations bill that would provide sweeping immunity protections to
pharmaceutical manufacturers. I know that this provision is being
billed as a simple liability protection to help those who would
manufacture avian flu vaccine, but it is nothing of the sort. I support
limited liability protections for manufacturers to help cover their
risks in developing products that our Nation will need in case of
emergency. However, this provision would grant immunity to all claims
of loss, including death and disability, for a broad range of products,
including any drug that the Secretary designated as one that would
limit the harm caused by a pandemic--a definition so broad as to
encompass nearly any drug.
This immunity is not subject to judicial review. It preempts any
State laws that provide different liability protections or that may
provide stronger consumer safety protections for pharmaceutical
products. In fact, the only exception to this immunity is for actions
of ``willful misconduct,'' which is so narrowly defined that it would
only apply to cases where a company intentionally set out ``to achieve
a wrongful purpose . . . in disregard of a known or obvious risk that
is so great as to make it highly probable that the harm will outweigh
the benefit.'' The provision requires the Secretary and the Attorney
General to narrow the scope of willful misconduct even further and
states that for any FDA-approved product, willful misconduct will not
apply unless the Government is already taking action against the
manufacturer for such misconduct.
If the Government is providing complete immunity to manufacturers,
how are those who may be injured to seek compensation in case of
injury? This provision sets up a ``Covered Countermeasure Process
Fund,'' but fails to provide any money for this fund. We all recognize
that in a public health emergency, we may need to seek whatever
protections we can find to prevent widespread death and disease--but
those who are asked to take these products are told that if they are
injured, their only recourse is to seek compensation from a fund which
currently has no money to award.
I am also gravely concerned by the fact that this provision was
included in the appropriations bill without following the process for
passing legislation used by this Chamber. This authorizing--
authorizing, not appropriating--language was never considered, let
alone agreed to by the Senate. It was never agreed to by the HELP or
Judiciary Committees, which have jurisdiction over this matter. It is a
mockery of the legislative process. I believe that the American people
are ill-served by Congress when controversial and potentially harmful
provisions can simply be inserted without undergoing the open
deliberations and debate that are fundamental to the democratic process
and are designed to protect our citizens from special interests and
back-room dealings. This provision should be stripped from the bill.
Mr. DODD. Mr. President, this week, the Senate considers conference
reports on two pieces of legislation--the Defense Authorization and
Appropriations Acts that are critical to the security of our Nation.
These conference reports contain important measures for keeping our
troops safe and secure, particularly provisions to upgrade body armor
and protective equipment, resources to ramp-up vital construction of
U.S. military ships, aircraft, and ground vehicles, and funding for
research on vital defense technologies of the future.
The conference agreements also promote important quality-of-life
improvements for our troops and their families, including a 3.1 percent
pay raise for all military personnel and increases in compensation for
survivors of military personnel killed since the onset of the wars in
Afghanistan and Iraq.
These two bills could not come before the Senate at a more urgent
time. Our Nation is at war, and our troops desperately need these
resources to complete their missions in Iraq and Afghanistan.
This Congress owes America's fighting men and women its unconditional
support for these critical defense priorities. But this year, the
administration and Members of the majority in Congress have fallen far
short of meeting this responsibility. They have allowed a handful of
powerful special interests to impede the critically important process
of funding our national defense, including America's highest security
priorities. The Republican leadership's decisions to open up the Arctic
National Wildlife Refuge for oil companies' exploitation and to shield
drug and vaccine makers from any accountability have absolutely nothing
to do with national security and have no place in bills like the
defense appropriations conference report. Their willingness to risk
funding for our troops in favor of these parochial priorities is
indefensible.
Let me say a few words about these two specific measures.
I have consistently opposed opening the Arctic National Wildlife
Refuge, ANWR, to oil drilling because I am unconvinced that the small
amount of recoverable oil there outweighs the permanent damage that we
would do to the area and the nearly 200 species of wildlife that live
there. The process entails a web of oil platforms, pipelines,
production facilities, power facilities, support structures, and roads
across the entire area. I strongly believe we need to ensure our
Nation's economic and energy security, but any recoverable oil in the
Refuge would not begin flowing for at least 10 years. What is the
urgency to include this legislation now in a bill it has no business
being part--of especially when the impact of such a measure could be so
remote and so damaging? There is significantly less job creation than
proponents would have us believe, there is minimal
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recoverable oil available, drilling in ANWR would have no impact on
current energy prices or supply or even on our foreign oil dependence,
and it would leave a web of infrastructure that would permanently ruin
the pristine nature of the land and habitat. Moreover, if we took just
a few modest steps to use energy more efficiently--such as properly
inflating vehicle tires or raising engines' fuel efficiency--we would
save more oil than currently exists in the ANWR. It is simply
irresponsible to move forward with this legislation.
Just as irresponsible is an equally non-germane provision shielding
vaccine producers from liability. This language provides sweeping legal
immunity to a few companies, and relieves them of responsibility for
their reckless and negligent actions. Rather than encouraging companies
to make safe and effective medicines, it will provide a perverse
incentive by protecting those companies that make ineffective or
harmful products. That is unwise--not to mention unfair--to companies
that strive for excellence, a number of which are located in
Connecticut. And rather than encouraging Americans to be vaccinated or
to take needed medication, it will discourage them from doing so by
failing to provide even rudimentary compensation for the few who will
inevitably be injured by these products. Make no mistake about it: this
plan fails to protect the American people from the risk of a flu
pandemic or from other biohazards.
Senator Kennedy and I spent the past several months negotiating with
Senators Enzi, Burr, Gregg, Frist, and others on the Health, Education,
Labor, and Pensions Committee to try to reach a bipartisan compromise
on this issue. Senator Kennedy and I made several proposals, modeled on
past Congressional action, to protect manufacturers from frivolous
lawsuits while providing fair and adequate compensation to those who
are injured. Both sides worked in good faith, and we made significant
progress.
Unfortunately, my understanding is that a decision was made by
leaders of the Republican caucus to forego this bipartisan process.
Instead, this nongermane provision was slipped in the final hours of
this session of Congress into the Defense Appropriations Conference
Report. Furthermore, it is my understanding that this language was
inserted after members had agreed to the Conference Report with the
understanding that this language was not included. I am disturbed and
disappointed by this blatant abuse of power and disregard for
Senate procedures. I can only assume that the supporters of this
provision are using this tactic because they know that their plan would
not stand up to public scrutiny and Senate debate.
In terms of some of the germane provisions of this bill, I must also
express my disappointment with the conferees' decisions to weaken
important measures that were actually inserted in the Senate's defense
bills to support and protect our troops. For example, I originally
authored amendments to both of these bills that would ensure that our
troops would be reimbursed for purchasing their own critical safety and
protective gear that the Defense Department failed to provide for use
in Iraq and Afghanistan. The Senate approved this measure without any
dissent, having recognized the administration's inadequate compliance
with current law. After failing to implement a program under a law
enacted last year, the Pentagon only established the reimbursement
initiative as this body considered the new provisions to extend this
benefit to all military personnel deployed to Iraq and Afghanistan.
Most appalling to me is that there remains little evidence that the
Pentagon has acted to ensure that our soldiers, sailors, airmen, and
marines receive the information that they need to take advantage of
this important program. Given that the Defense Department is failing to
meet its commitment to adequately equip our military personnel, the
least that it can do is inform our brave men and women of the
compensation due to them. In the end, I was deeply troubled that the
final version of this legislation did not include adequate language to
address many of the concerns originally raised on this floor just two
months ago. In particular, as part of an agreement worked out with both
Chairmen of the Defense Appropriations Subcommittee and Senate Armed
Services Committee, we had agreed to extend the reimbursement program
to troops who made purchases up until the end of the 2006 fiscal year.
In both final conference reports, this deadline was cut short to April
1, 2006.
In the final analysis of the underlying bills, I can only take solace
in the fact that other critically important measures in these
conference reports could have been weakened even further. We in this
body managed to avert grave problems posed by misplaced priorities by
the administration and the Republican leadership. For example, it is my
understanding that the administration's allies in the House actually
attempted to slip another measure--this time, related to campaign
finance--into the Defense Authorization Act after the conferees had
already signed the conference report--without any hearing or public
review by the appropriate committees of jurisdiction. It was only after
the chairman and ranking member of the Senate Armed Services Committee
intervened that this utter abuse of power was averted.
In another case, the administration and its allies in Congress sought
to thwart the final approval of Senator McCain's amendment that would
set standards for the interrogation of detainees in the custody of the
United States, and prohibit the cruel, inhuman, or degrading treatment
of these detainees. I strongly support Senator McCain's amendment
because it upholds the values on which our country is based, it helps
strengthen the rule of law, and most importantly, it serves to protect
American troops and civilians who are currently serving and living
abroad.
I regret, however, that the Bush administration attempted for so long
to block adoption of this amendment. Indeed, the administration only
accepted it in the face of overwhelming congressional support and in
the wake of international condemnation resulting from allegations of
secret CIA prisons in Europe. While I am certainly pleased that the
McCain amendment was included in this conference report, I hope that
the administration's stonewalling has not undermined the very things
that this amendment aims to protect--American values and American
lives.
In the end, it is our solemn duty as members of this institution to
promote policies that will safeguard America's critical security
interests. That is why I am so deeply offended by the tactics which the
majority used to weaken many of these efforts. After all, most of the
germane provisions of these two Defense-related conference reports will
support our defense needs and protect U.S. military personnel deployed
in harm's way. For example, within these germane provisions, I am
particularly proud that the bills build on Connecticut's unique
strengths in contributing to America's defense needs. From increases in
Black Hawk helicopters to production of a new Virginia Class submarine,
our troops will be better prepared to meet the security challenges of
the 21st century.
Under these bills, the Army and Navy will receive 83 much needed
Black Hawk helicopters to perform a variety of critical missions
including medical evacuations, air assaults, and special operations. In
the shipbuilding accounts, in addition to funding the procurement of
another Virginia submarine, these bills will ensure that the Navy
remains committed to developing new undersea technologies--including
development of new submarine designs--an important element of our
nation's pertinent efforts to maintain undersea dominance as countries
such as China and Russia expand their own submarine fleets.
To address immediate concerns for our soldiers and marines, these
bills finally contribute meaningful resources for countering the most
serious threats facing our troops in Iraq--the so-called improvised
explosive devices or IEDs. Devoting $1 billion to the Joint Improvised
Device Defeat Task Force will help accelerate American development of
new technologies and tactics for detecting, jamming, or de-activating
these roadside bombs which continue to plague U.S. combat operations in
Iraq. In addition, I am truly pleased with the conferees' decision to
add an additional $610 million to the Administration's otherwise slow
attempts at reinforcing American ground vehicles
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in Iraq with state-of-the-art body armor and other protective gear.
This Congress has few higher priorities than the safety and wellbeing
of our troops deployed in harm's way. And I believe these measures
truly are steps in the right direction.
But we must remain dedicated to such critical force protection
measures, particularly as our forces battle insurgents in Iraq and
Afghanistan. The Republican majority's attempts to ensnare these
defense bills with unrelated political schemes gravely threatened our
ability to meet this commitment and amounted to an utter abuse of
power.
The United States is at war. Our troops and the American people
expect that our nation's defense policy will be unfettered by special
interests and untainted by political gamesmanship. I can only hope
that, as we return to Capitol Hill to begin the New Year a few weeks
from today, the leaders of the majority party will resolve to put
national interests over narrow interests.
Mr. LEAHY. When the Department of Defense authorization bill passed
the Senate on November 15, I spoke of my concerns about an amendment
that limits the rights of detainees in U.S. custody at Guantanamo Bay,
Cuba, to file habeas corpus petitions in federal court. That amendment
was modified in conference to further erode these rights, and then
identical text was added to the conference report on Defense
appropriations to ensure that the language was enacted into law in one
bill or the other.
Debates over the treatment of detainees have dominated our
discussions of both the Defense authorization and appropriations bills.
Senator McCain waged a battle with the White House and his own party to
ensure that his amendment requiring the humane treatment of detainees
was retained in the conference reports. I commend Senator McCain and
the members of the Congress who have fought to address these issues.
Despite calls from many of us over recent years, the legislative branch
has not met its obligation of oversight and policymaking in this area.
I am encouraged that more than 18 months after the revelation of
atrocities at Abu Ghraib, we are finally willing to confront this
issue.
The administration fought this provision for months, with the
President vowing to veto any bill that contained it. But after months
of threats and backdoor lobbying, the White House finally recognized
that it could not win with a policy that granted itself the authority
to use torture or cruel and inhumane treatment in interrogations.
Unfortunately, the positive steps we take today in adopting the
McCain amendment are undercut by the modified Graham-Levin amendment in
the conference report. As I just noted, I expressed concerns about the
Graham-Levin text, and voted against it, when it passed the Senate. At
that time, it reflected a modest improvement over an earlier version
offered by Senator Graham. Now, it has come almost full circle, and is
deeply troubling.
The Graham-Levin amendment as it passed the Senate would deny
prisoners that the administration claims are unlawful combatants the
right to challenge their detention in a petition for a writ of habeas
corpus. At no time in the history of this Nation have habeas rights
been permanently cut off from a group of prisoners. Even President
Lincoln's suspension of habeas was temporary. The Supreme Court has
held numerous times that enemy combatants can challenge their
detention. The new version of this text, the text that was added to the
conference report, goes even further. It prohibits any lawsuit against
the United States brought by a Guantanamo detainee for any reason. This
means that while the McCain Amendment requires humane treatment of
detainees, the substituted text of the Graham-Levin Amendment provides
no remedy whatsoever when detainees are mistreated. The result is that
Guantanamo could become the legal black hole that the administration
has long argued it should be. The Supreme Court rejected that argument
in Rasul v. Bush in 2004.
I am also deeply troubled by other provisions added in conference.
The conference report allows a combatant status review tribunal, an
administrative review board, or a similar tribunal to consider
statements obtained as a result of coercive interrogation, so long as
the tribunal assesses the ``probative value'' of the statement. With
the passage of the McCain amendment, I had hoped that the Congress was
finally prepared to acknowledge that statements obtained by coercion
have no value.
A prime example of how abusive interrogation techniques elicit bad
intelligence was reported on December 9, 2005, in The New York Times.
The article states that the ``administration based a crucial prewar
assertion about ties between Iraq and al Qaida on detailed statements
made by a prisoner while in Egyptian custody who later said he had
fabricated them to escape harsh treatment.'' Just last week, at a
speech in Philadelphia, a member of the audience asked the President
why the administration continually seeks to link the 9/11 attacks with
the invasion of Iraq in spite of the fact that Iraq was not involved in
the events of 9/11.
It is beneath the values of this Nation to allow the use of coerced
statements in the trials or review panels conducted on the status of
detainees. It is also beneath us to strip detainees of habeas rights.
Filing a petition for a writ of habeas corpus is often the detainee's
only opportunity to openly challenge the basis for his detention.
Providing detainees this right is not about coddling terrorists. It is
about showing the world that we are a nation of laws and that that we
uphold the principles that we urge other nations to follow. It is about
honoring and respecting the values that are part of our heritage as
Americans and that have shone as a beacon to the rest of the world.
Allowing a detainee to file a habeas petition provides legitimacy to
our detention system and quells speculation that we are holding
innocent people in secret prisons without any right to due process.
Some members of the Senate have argued that these prisoners should be
tried in the military justice system. I think that we could all agree
on such a course if the administration had worked with Congress from
the start and established with our approval procedures that are fair
and consistent with our tradition of military justice. The Graham-Levin
amendment does allow the Court of Appeals for the District of Columbia
to review some of the military commission's final decisions. I am in
favor of Federal court review, but Congress seems to have missed the
critical step of authorizing the administration to use military
commissions. I introduced a bill in the 107th Congress to do just that.
So did Chairman Specter. If the administration wanted to use military
commissions to try detainees, it should have sought and obtained the
explicit authorization of Congress. It did not do so. The system that
has been established by the administration to try individuals held at
Guantanamo does not provide due process or independent review. It is
not a system that reflects our tradition of justice.
Since the Graham-Levin amendment would not retroactively apply to
pending cases, the Supreme Court will still have the opportunity to
determine the legitimacy of the military commissions, as being
litigated in case of Hamdan v. Rumsfeld. If the military commission
process is rejected by the Court, I hope that the administration will
work with Congress to establish a fair system for trying suspects who
are captured in the war on terror. Working in this way, we can restore
the reputation of our Nation for upholding the rule of law.
Everyone in Congress agrees that we must capture and detain terrorist
suspects, but it can and should be done in accord with the laws of war
and in a manner that upholds our commitment to the rule of law. The
Judiciary Committee held a hearing on detainee issues in June. At that
hearing, Senator Graham said that once enemy combatant status has been
conferred upon someone, ``it is almost impossible not to envision that
some form of prosecution would follow.'' He continued, ``We can do this
and be a rule of law nation. We can prove to the world that even among
the worst people in the world, the rule of law is not an inconsistent
concept.'' I agree with Senator Graham, but I strongly believe that in
order to uphold our commitment to the rule of law, we must allow
detainees the right to challenge their detention in Federal court.
[[Page S14246]]
As Chairman Specter noted on the floor last month, there are existing
procedures under habeas corpus that have been upheld by the Supreme
Court that do not invite frivolous claims and that are appropriate. The
Graham-Levin amendment would not only restrict habeas in a manner never
done before in our Nation, but, as the chairman of the Judiciary
Committee said last week, it would open a Pandora's box.
The chairman is right. We must not rush to change a legal right that
predates our Constitution. Creating one exemption to the Great Writ
only invites more. The Judiciary Committee has jurisdiction over habeas
corpus, and it should have the first opportunity to review any proposed
changes carefully and thoroughly. Although congressional action on the
issue of foreign detainees is long overdue, we must not act hastily
when the Great Writ--something that protects us all--is at stake.
I ask unanimous consent to place in the Record an article entitled,
``Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim,'' from the
December 9, 2005, New York Times.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Dec. 9, 2005]
Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim
(By Douglas Jehl)
Washington.--The Bush administration based a crucial prewar
assertion about ties between Iraq and Al Qaeda on detailed
statements made by a prisoner while in Egyptian custody who
later said he had fabricated them to escape harsh treatment,
according to current and former government officials.
The officials said the captive, Ibn al-Shaykh al-Libi,
provided his most specific and elaborate accounts about ties
between Iraq and Al Qaeda only after he was secretly handed
over to Egypt by the United States in January 2002, in a
process known as rendition.
The new disclosure provides the first public evidence that
bad intelligence on Iraq may have resulted partly from the
administration's heavy reliance on third countries to carry
out interrogations of Qaeda members and others detained as
part of American counterterrorism efforts. The Bush
administration used Mr. Libi's accounts as the basis for its
prewar claims, now discredited, that ties between Iraq and Al
Qaeda included training in explosives and chemical weapons.
The fact that Mr. Libi recanted after the American invasion
of Iraq and that intelligence based on his remarks was
withdrawn by the C.I.A. in March 2004 has been public for
more than a year. But American officials had not previously
acknowledged either that Mr. Libi made the false statements
in foreign custody or that Mr. Libi contended that his
statements had been coerced.
A government official said that some intelligence provided
by Mr. Libi about Al Qaeda had been accurate, and that Mr.
Libi's claims that he had been treated harshly in Egyptian
custody had not been corroborated.
A classified Defense Intelligence Agency report issued in
February 2002 that expressed skepticism about Mr. Libi's
credibility on questions related to Iraq and Al Qaeda was
based in part on the knowledge that he was no longer in
American custody when he made the detailed statements, and
that he might have been subjected to harsh treatment, the
officials said. They said the C.I.A.'s decision to withdraw
the intelligence based on Mr. Libi's claims had been made
because of his later assertions, beginning in January 2004,
that he had fabricated them to obtain better treatment from
his captors.
At the time of his capture in Pakistan in late 2001, Mr.
Libi, a Libyan, was the highest-ranking Qaeda leader in
American custody. A Nov. 6 report in The New York Times,
citing the Defense Intelligence Agency document, said he had
made the assertions about ties between Iraq and Al Qaeda
involving illicit weapons while in American custody.
Mr. Libi was indeed initially held by the United States
military in Afghanistan, and was debriefed there by C.I.A.
officers, according to the new account provided by the
current and former government officials. But despite his high
rank, he was transferred to Egypt for further interrogation
in January 2002 because the White House had not yet provided
detailed authorization for the C.I.A. to hold him.
While he made some statements about Iraq and Al Qaeda when
in American custody, the officials said, it was not until
after he was handed over to Egypt that he made the most
specific assertions, which were later used by the Bush
administration as the foundation for its claims that Iraq
trained Qaeda members to use biological and chemical weapons.
Beginning in March 2002, with the capture of al Qaeda
operative named Abu Zubaydah, the C.I.A. adopted a practice
of maintaining custody itself of the highest-ranking
captives, a practice that became the main focus of recent
controversy related to detention of suspected terrorists.
The agency currently holds between two and three dozen
high-ranking terrorist suspects in secret prisons around the
world. Reports that the prisons have included locations in
Eastern Europe have stirred intense discomfort on the
continent and have dogged Secretary of State Condoleezza Rice
during her visit there this week.
Mr. Libi was returned to American custody in February 2003,
when he was transferred to the American detention center in
Guantanamo Bay, Cuba, according to the current and former
government officials. He withdrew his claims about ties
between Iraq and Al Qaeda in January 2004, and his current
location is not known. A C.I.A. spokesman refused Thursday to
comment on Mr. Libi's case. The current and former government
officials who agreed to discuss the case were granted
anonymity because most details surrounding Mr. Libi's case
remain classified.
During his time in Egyptian custody, Mr. Libi was among a
group of what American officials have described as about 150
prisoners sent by the United States from one foreign country
to another since the Sept. 11, 2001 attacks for the purposes
of interrogation. American officials including Ms. Rice have
defended the practice, saying it draws on language and
cultural expertise of American allies, particularly in the
Middle East, and provides an important tool for
interrogation. They have said that the United States carries
out the renditions only after obtaining explicit assurances
from the receiving countries that the prisoners will not be
tortured.
Nabil Fahmy, the Egyptian ambassador to the United States,
said in a telephone interview on Thursday that he had no
specific knowledge of Mr. Libi's case. Mr. Fahmy acknowledged
that some prisoners had been sent to Egypt by mutual
agreement between the United States and Egypt. ``We do
interrogations based on our understanding of the culture,''
Mr. Fahmy said. ``We're not in the business of torturing
anyone.''
In statements before the war, and without mentioning him by
name, President Bush, Vice President Dick Cheney, Colin L.
Powell, then the secretary of state, and other officials
repeatedly cited the information provided by Mr. Libi as
``credible'' evidence that Iraq was training Qaeda members in
the use of explosives and illicit weapons. Among the first
and most prominent assertions was one by Mr. Bush, who said
in a major speech in Cincinnati in October 2002 that ``we've
learned that Iraq has trained Al Qaeda members in bomb making
and poisons and gases.''
The question of why the administration relied so heavily on
the statements by Mr. Libi has long been a subject of
contention. Senator Carl Levin of Michigan, the top Democrat
on the Senate Armed Services Committee, made public last
month unclassified passages from the February 2002 document,
which said it was probable that Mr. Libi ``was intentionally
misleading the debriefers.''
The document showed that the Defense Intelligence Agency
had identified Mr. Libi as a probable fabricator months
before the Bush administration began to use his statements as
the foundation for its claims about ties between Iraq and Al
Qaeda involving illicit weapons.
Mr. Levin has since asked the agency to declassify four
other intelligence reports, three of them from February 2002,
to see if they also expressed skepticism about Mr. Libi's
credibility. On Thursday, a spokesman for Mr. Levin said he
could not comment on the circumstances surrounding Mr. Libi's
detention because the matter was classified.
Mr. LEAHY. Late Sunday night, Republican leadership slipped language
into a lengthy appropriations conference report that will immunize drug
companies against reckless misconduct and will impede our ability to
protect our citizens from the threatened avian flu pandemic. This
provision is a gift to the drug manufacturers and will likely have a
devastating effect on our ability to protect our constituents.
Under the guise of a threatened pandemic, this legislation goes far
beyond the scope of vaccine preparedness and includes language that is
far more sweeping than any language previously passed by the House or
the Senate. Instead of focusing on protecting American families from
avian flu or ensuring that victims of any untested vaccine will be
compensated for their injuries, the provision simply shields drug
companies from any culpability for injuries caused by its actions. The
scope of this immunity is so expansive that once the Secretary of
Health and Human Services has declared a public health emergency even
for a future threat, drug companies would not be held accountable for
any injuries or deaths caused by the drugs they manufacture, including
drugs that are not specifically used in a pandemic context. This is
disgraceful and will deter Americans from taking vaccines and drugs if
we ever experience a health crisis.
The only exception to the broad immunity given to drug companies in
this proposal is the possibility that a victim could prove that the
company
[[Page S14247]]
acted with ``willful misconduct.'' Knowingly committing health
violations would not even suffice to state a claim. Knowing violations
as well as gross negligence would be immunized from accountability.
Even if the drug company acted with the intent to harm people, it would
nevertheless be immune from criminal conduct unless the Attorney
General or Secretary of Health and Human Services initiates an
enforcement action against a drug company that is still pending at the
time a personal claim is filed. That is unbelievable. I question
whether such a role for the Secretary of HHS is even constitutional.
Since when do we in Congress allow a political appointee of the
administration to determine when, and if, someone injured by willful
misconduct can be compensated for their injuries? Professor Erwin
Chemerinsky sent a letter yesterday that outlines his concerns
regarding the constitutionality of the provision and I ask that his
letter be made part of the Record.
Passage of the Defense appropriations bill is of vital importance to
all of us, but the inclusion of provisions that excuse even gross and
deadly negligence on the part of drug companies makes it impossible for
many of us to vote for this bill in good conscience. I urge my
colleagues to strike the unjustified and extraneous provisions from the
Defense appropriations bill in order to act quickly on this important
bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
December 20, 2005.
Dear Senator: I understand that the Congress is considering
legislation that has been denominated as the ``Public
Readiness and Emergency Preparedness Act.'' This legislation
would give the Secretary of Health and Human Services
extraordinary authority to designate a threat or potential
threat to health as constituting a public health emergency
and authorizing the design, development, and implementation
of countermeasures, while providing total immunity for
liability to all those involved in its development and
administration. In addition to according unfettered
discretion to the Secretary to grant complete immunity from
liability, the bill also deprives all courts of jurisdiction
to review those decisions. Sec. (a)(7). I write to alert the
Congress to the serious constitutional issues that the
legislation raises.
First, the bill is of questionable constitutionality
because of its broad, unfettered delegation of legislative
power by Congress to the executive branch of government.
Under the nondelegation doctrine, Congress may provide
another branch of government with authority over a subject
matter, but ``cannot delegate any part of its legislative
power except under the limitation of a prescribed standard.''
United States v. Chicago, M., St. P. & P.R. Co., 282 U.S.
311, 324 (1931). Recently, the Supreme Court endorsed Chief
Justice Taft's description of the doctrine: ``the
Constitution permits only those delegations where Congress
`shall lay down by legislative act an intelligible principle
to which the person or body authorized to [act] is directed
to conform.' '' Clinton v. City of New York, 524 U.S. 417,
484 (1998)(emphasis in original), quoting J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 409 (1928). The breadth
of authority granted the Secretary without workable
guidelines from Congress appears to be the type of
``delegation running riot'' that grants the Secretary a
``roving commission to inquire into evils and upon discovery
correct them'' of the type condemned by Justice Cardozo in
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 553 (1935)(Cardozo, J., concurring).
Second, the bill raises important federalism issues because
it sets up an odd form of federal preemption of state law.
All relevant state laws are preempted. Sec. (a)(8). However,
for the extremely narrow instance of willful (knowing)
misconduct by someone in the stream of commerce for a
countermeasure, the bill establishes that the substantive law
is the law of the state where the injury occurred, unless
preempted. Sec. (e)(2). The sponsors appear to be trying to
have it both ways, which may not be constitutionally
possible. The bill anticipates what is called express
preemption, because the scope of any permissible lawsuits is
changed from a state-based to a federally based cause of
action. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8
(2003).
Usually, that type of ``unusually `powerful' '' preemptive
statute provides a remedy for any plaintiff's claim to the
exclusion of state remedies. Id. at 7 (citation omitted).
Here, rather than displace state law in such instances, the
bill adopts the different individual laws of the various
states, but amends them to include a willful misconduct
standard that can only be invoked if the Secretary or
Attorney General initiates an enforcement action against
those involved in the countermeasure and that action is
either pending at the time a claim is filed or concluded
with some form of punishment ordered.
Such a provision raises two important constitutional
concerns. One problem is that this hybrid form of preemption
looks less like an attempt to create a federal cause of
action than an direct attempt by Congress to amend state law
in violation of Erie Railroad Co. v. Tompkins, 304 U.S. 64
(1938) and basic principles of federalism. Although Congress
may preempt state law under the Supremacy Clause by creating
a different and separate federal rule, see Crosby v. Nat'l
Foreign Trade Counc., 530 U.S. 363, 372 (2000), it may not
directly alter, amend, or negate the content of state law as
state law. That power, the Erie Court declared, ``reserved by
the Constitution to the several States.'' 304 U.S. at 80. It
becomes clear that the bill attempts to amend state law,
rather than preempt it with a federal alternative, when one
realizes that States will retain the power to enact new
applicable laws or amend existing ones with a federal overlay
that such an action may only be commenced in light of a
federal enforcement action and can only succeed when willful
misconduct exists. The type of back and forth authority
between the federal and state governments authorized by the
bill fails to constitute a form of constitutionally
authorized preemption.
The other problem with this provision is that the
unfettered and unreviewable discretion accorded the Secretary
or Attorney General to prosecute an enforcement action as a
prerequisite for any action for willful misconduct violates
the constitutional guarantee of access to justice, secured
under both the First Amendment's Petition Clause and the
Fifth Amendment's Due Process Clause. See Christopher v.
Harbury, 536 U.S. 403, 415 n.12 (2002). In fact, the Court
has repeatedly recognized that ``the right of access to the
courts is an aspect of the First Amendment right to petition
the Government for redress of grievances.'' Bill Johnson's
Restaurants v. NLRB, 461 U.S. 731, 741 (1983), citing
California Motor Transport Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972). First Amendment rights, the Supreme
Court has said in a long line of precedent, cannot be
dependent on the ``unbridled discretion'' of government
officials or agencies. See, e.g., City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 757 (1988). At the same time,
the Due Process Clause guarantees a claimant an opportunity
to be heard ``at a meaningful time and in a meaningful
manner.'' Armstrong v. Manzo, 380 U.S. 545, 552 (1965). The
obstacles placed before a claimant, including the insuperable
one of inaction by the Secretary or Attorney General, raise
significant due process issues. The Supreme Court has
recognized that official inaction cannot prevent a claimant
from being able to go forth with a legitimate lawsuit. See
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). The
proposed bill seems to reverse that constitutional
imperative.
Third, the complete preclusion of judicial review raises
serious constitutional issues. The Act, through Sec. 319F-
3(b)(7), expressly abolishes judicial review of the
Secretary's actions, ordaining that ``[n]o court of the
United States, or of any State, shall have subject matter
jurisdiction,'' i.e., the power, ``to review . . . any action
of the Secretary regarding'' the declaration of emergencies,
as well as the determination of which diseases or threats to
health are covered, which individual citizens are protected,
which geographic areas are covered, when an emergency begins,
how long it lasts, which state laws shall be preempted, and
when or if he shall report to Congress .
The United States Supreme Court has repeatedly stressed
that the preclusion of all judicial review raises ``serious
questions'' concerning separation of powers and due process
of law. See, e.g., Johnson v. Robison, 415 U.S. 361 (1974);
see also, Oestereich v. Selective Service System Local Board
No. 14, 393 U.S. 233 (1968); McNary v. Haitian Refugee
Center, Inc., 498 U.S. 479 (1991); Reno v. Catholic Social
Services, 509 U.S. 43 (1993). Judicial review of government
actions has long regarded as ``an important part of our
constitutional tradition'' and an indispensable feature of
that system, Lehnhausen v. Lake Shore Auto Parts Co., 410
U.S. 356, 365 (1973).
The serious constitutional issues raised by this
legislation deserve a full airing and counsels against any
rush to judgment by the Congress. Whatever the merits of the
bill's purposes, they may only be accomplished by
consideration that assures its constitutionality.
Erwin Chemerinsky.
Mr. DORGAN. Mr. President, the conference report on the Defense
appropriations bill contains $29 billion in disaster relief funding
related to hurricanes Katrina and Rita. As part of that emergency
package, $49 million is being made available to the National Park
Service and the U.S. Fish and Wildlife Service to reimburse cleanup
costs and facility repair and restoration costs arising from the
hurricanes. As the ranking member of the Interior and Related Agencies
Subcommittee, which has jurisdiction over these agencies, I fully
support this appropriation. There are, however, two aspects of the
funding provision which concern me.
First, the $49 million being provided is less than a quarter of the
$220 million in damages suffered by our gulf coast parks and refuges.
But not funding these expenses does not make them go away. What I fear
will end up happening is that every other park and
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every other refuge in the Nation is going to have its 2006 budget
reduced as a way of making up the $170 million Congress is not
providing. Every park superintendent and every refuge manager in this
Nation is struggling to keep up with fixed costs and working to address
the maintenance backlog. Taking more money away from them is simply not
helpful.
Secondly, I strongly disagree with the instructions that are being
given to the National Park Service and the Fish and Wildlife Service
with respect to how these funds are to be spent. The funding in this
bill is provided through each Agency's construction account. Under
Federal law, that is the only purpose for which those funds can be
used. They cannot legally be spent on operational expenses, which are
funded through different accounts. However, the Statement of Managers,
which is the report that accompanies the bill and explains in detail
how all of the appropriated dollars are to be spent, explicitly says
that the money is available for ``un--reimbursed overtime [pay] and
operational costs.''
I think it was a mistake for the administration to forgo asking for
reimbursement of operational expenses. Both agencies have incurred
substantial costs in that area that must be paid for. But the
administration's error should not be compounded by having Congress
encourage a Federal agency to violate the law. We could have very
easily divided the funding between the operational accounts and the
construction accounts, which would have allowed the agencies to
properly and legally repay some of their operational costs. But that
idea was soundly rejected by the majority in the House of
Representatives. And so we are left with a situation where we are
explicitly encouraging Federal agencies to use appropriated dollars for
purposes other than what they were intended. That, Mr. President, is
simply the wrong thing to do.
Mr. KOHL. Mr. President, today I joined many of my colleagues in
opposing cloture on the Defense appropriations bill. Regrettably, I was
forced to try and slow this bill down because language unrelated to our
Nation's defense was inserted into the bill. In a cynical attempt to
authorize drilling in the Arctic National Wildlife Refuge, language
that in the past has been filibustered, was included in the Defense
bill. Using our men and women in the military as a shield, the ANWR
bill was put in the Defense bill in a parliamentary game of chicken.
Supporters of drilling in ANWR believed that if they included this
language in the Defense bill, opponents of drilling in ANWR would never
vote to hold up the Defense bill. They were wrong.
I do not enjoy opposing a Defense bill while we have troops in harm's
way, but the principle at stake here was too important. We will be
sorry if we set the precedent that unpopular provisions can just be
rolled into the bill that funds our defense. In the long run, letting
that cynical strategy proliferate will hurt our country and the
institution of the Senate.
So today, when I opposed cloture, it was not a reflection of my
support of our military. I believe in our men and women in uniform and
believe that this bill should have been passed months ago. Instead, I
opposed cloture because I believe that we should not use the Defense
bill as a Trojan Horse to slip through legislation that would not be
able to survive under the normal rules of the Senate.
Mr. OBAMA. Mr. President, I rise to speak about the bill before us
today.
If any of you are wondering why the American people are so frustrated
with the legislative process, why they believe that politics always
trumps substance and nothing ever gets done in Washington, this is what
they are talking about.
Every single member of this body wants our military to have the
funding and the resources it needs to fight the war in Iraq and the war
on terror. We all agree on that.
Yet somehow an otherwise noncontroversial bill gets bogged down
because some have chosen to use it as a political opportunity to slip
in proposals they couldn't get passed through the normal channels of
debate and deliberation. The idea here is to add anything you want to a
Defense bill, no matter how surprising or controversial, figuring that
it will pass since no one would dare cast a vote against our troops.
They may think this is shrewd politics, but it is terrible policy,
and it is disrespectful to both our brave men and women in the field
and the American people back home.
Now, I have great respect for the Senator from Alaska, and I also
respect his passion towards the ANWR debate, even if I disagree with
his position. But I strongly believe that if he and other ANWR
supporters wish to convince us of that position, they should do so by
arguing the merits of the proposal itself, not by sneaking it into a
bill none of us want to vote against. Not only does that go against the
best traditions of the United States Senate, it goes against the best
expectations of the American people when they sent us here.
Aside from critical defense funding for our troops, there are other
elements of this bill that this country desperately needs to have
passed. There is funding for gulf coast recovery efforts and resources
that will help our Nation prepare for a possible avian flu pandemic. I
am also pleased that Senator McCain's amendment opposing torture, which
was overwhelmingly passed by the Senate, appears in this bill.
Unfortunately, all of this critical funding is being jeopardized by
one Senator's desire to ram through a provision that is personally
important to him. That is not the way Congress should be conducting its
business.
There will be a time and a place for debate on this topic as there
has been before. But now is not that time. Not with 180,000 troops in
harm's way who need important resources and supplies; not with families
from the gulf coast who want a place to go home to; not with the danger
of pandemic influenza threatening our shores. Now is the time to
respect the legislative process and pass a bill that does not play
politics with our troops, so that we can finally return home to our
constituents and let them know that we truly did the people's work.
Mr. President, I want to express my strong support for the
reauthorization of the Department of Defense, DOD, 1207 program. The
1207 program is designed to ensure that the DOD Federal contracting
process does not support or subsidize discrimination. This program must
be extended through September 2009 so that the tremendous progress we
have made in leveling some of the playing ground for Federal
contracting is not lost.
We here in Congress know that there is a long history of keeping out
the little guys in government contracting. In the aftermath of
Hurricane Katrina, minority-owned and economically disadvantaged
companies have had a near impossible time trying to secure some of the
billions of dollars of gulf coast reconstruction contracts. Meanwhile,
big multinational contractors were given no-bid contracts in the weeks
immediately following the hurricane. This double standard is
unfortunately all too common, and it is the duty of Congress to ensure
that this discrimination does not continue.
Ever since the DOD's 1207 program was first adopted in 1986, racial
and ethnic discrimination--both overt and subtle--have continued to
erect significant barriers to minority participation in Federal
contracting, but the 1207 program helps to correct the problems of
discrimination without imposing an undue burden on larger businesses.
Without programs like the 1207 program, many contractors would simply
revert to their old practices, denying contracts to small companies
owned by minorities or the economically disadvantaged. It is clear that
the 1207 program is still needed to monitor and secure the gains made
and perhaps encourage even greater opportunity for these small
businesses.
I am pleased that this bill includes an extension of this important
program. I have a letter from a minority-woman owned business detailing
some of her experiences with the Department of Defense, and I ask that
this letter also be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Elyon International,
Vancouver, WA, December 20, 2005.
Dear Senator, My name is Carmen Nazario. I am a Hispanic
woman business owner and Veteran, working in the Information
Technology industry. I have been in
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business for more than eight years and our company has
successfully completed contracts in the private and public
sector. I personally have worked in this industry as a
practicing professional for over 30 years. My initial entry
into the computer technology profession commenced while
serving in the army during the Vietnam-era war. I graduated
as an honor student from the Adjutant General School on two
different occasions while attending various types of computer
training and continued in that career path after leaving the
military.
I am writing to you because I believe that it is terribly
important that you understand that discrimination is still
pervasive in the contracting markets across this country.
Where I live in Washington State I confront discrimination on
a regular basis as I attempt to run my business and earn a
living.
I understand that Congress is currently reauthorizing the
Department of Defense's 1207 program. This program is of
special interest to me because I have attempted to get work
with the Defense Department over the past several years to no
avail. I feel strongly that discrimination and stereotyping
are part of the reason that it is difficult for me, and for
other minority business owners. to fully participate in our
nation's economy.
I would like to give you some examples of the types of
discrimination I have confronted just in the last few years.
For the past eight years I have engaged tirelessly in
marketing the services of ELYON International. I have
experienced an unfavorable business climate towards a
Hispanic woman professional, both in the public and private
sector in spite of the fact that I have wonderful references
and the clients I have previously supported have been very
happy with our services.
I have been trying to work with Washington State agencies
for over seven years and find it very difficult because
Washington State has no minority procurement goals. Although
we have been on board with various agencies as pre-qualified
vendors by way of the RFP process, I find that the state
tends to award contracts to large firms and companies they
have been working with for years. As an example, I submitted
a well qualified candidate, a minority, who was interviewed
as a finalist but not selected and I found out that the work
was awarded to another company who had an established track
record with the state. (I requested the winning bid.)
Washington State's procurement awards to minority companies
has drastically decreased to less that 1 percent since
implementation of the 1-200 initiative which removed minority
procurement goals from State government purchasing. I find
this discriminatory in the sense that 99 percent of
contracting opportunities are going to non-minority
companies. The state is not distributing its wealth to its
constituents.
This year we submitted a response to a small business set-
aside for Tactical Network Services at Fort Lewis, WA. We had
Microsoft as a sub-contractor and used some of their past
performance as well as ours. Much of the technology for this
response involved Microsoft products. When I requested the
winning vendor information I found out it was awarded to a
newly formed company, service disabled, who had only been in
existence for a few months and whose owners had been
previously employed by the incumbent and were partnering
with BAE who had acquired the incumbent, DigitalNet (a
large company).
Deployable Data Systems, who won the bid, priced it at
$2,468,075 and ours was $2,298.107. Ours was $169,968 lower.
I requested a debriefing but was given bogus reasons and I
also requested a copy of the winning solicitation response
but was denied any further information other than price and
name of company that received the award. I find these actions
totally discriminatory . . . Ft Lewis decision makers knew
all along who they where going to award that contract to.
MBEs are being squeezed out of the supply chain for larger
deals. Many government contracting opportunities have now
been bundled making it only possible for primary suppliers to
respond to these larger long-term contract opportunities. In
the past I have also proposed to establish a working
relationship as a subcontractor to IBM, Anteon, Unisys, Best
Consulting, Anderson Consulting (for GSA contract), DMO,
Emerald Solutions and many other large established computer
technology firms.
A scenario where I proposed to establish a working
relationship as a subcontractor, involved IBM. In September
of 2002 I requested a list of companies planning to bid on
ACES RFP 2002-035-9275, a multi-million dollar RFP, that was
up for re-compete for a maximum period of 10 years (IBM
previously held contract). I contacted Mary Brennan,
Washington's State Department of Social & Health Services RFP
coordinator. She first did not want to release the names of
the companies bidding and I called the DSHS's Office of Equal
Opportunity to express my concern that a 10 year RFP was
being released and I wanted to have an opportunity to contact
vendors bidding and propose subcontracting services as a MWBE
IT vendor. Mary Brennan finally released the information and
I contacted all of the companies planning to bid on this RFP
(there were only three, primarily out of state companies).
IBM was the only one potentially interested in working with
my company. They released an email request for me to provide
information and resumes of candidates with the requirements
that they needed to satisfy. After much effort on my part to
coordindate available candidates and submit their
information, I received an email from Jack Tompkins dated
October 21, with the following message:
``Carmen, I wanted to thank for you responsiveness to our
requests for a WebSphere Administrator and Data Manager. For
now, we have filled the requirements we had for our proposal.
I do not have an immediate need for any of your candidates,
but was pleased to see some promising resumes. As we fill
positions in the future I'll make certain that you are made
aware of our openings.
``Thank again,
``Jack A. Tompkins
``IBM Global Services--State of Washington''
IBM submitted the proposal to the state, but my company was
not included as one of its subcontractors even though I
received very positive feedback. Of course the State of
Washington had no MBE/WBE requirements in the RFP, nor
language encouraging prospective bidders to utilize minority
firms. Because of the scope of work involved with this RFP
and the number of years (ten)--this procurement probably will
hit triple digit multi-million dollar expenditure by the
State of Washington, yet there was no opportunity for
companies such as mine to participate in the state
expenditure. The State of WA ended up awarding this multi-
million dollar contract to IBM in 2003 and the winning bid
had no minority participation. As of today, we have never
been contacted by IBM for any sub-contracting work.
This experience as well as several others I had with large
Defense/Federal vendors has led me to believe that perhaps it
looks good for them on paper to submit information on their
MWBE subcontractor utilization (to comply with minority
goals) but their intent may not be to really give us
subcontract work.
I appreciate the opportunity to share my stories with you.
I know that many, many business owners in similar situations
confront very similar problems. Still, many business owners
are afraid to speak out for fear of losing business or other
types of retaliation. Sadly, discrimination is not yet a part
of the past in the United States. Until it is, it is very
important that you continue to support and enforce programs
intended to level the playing field for women and minority
contractors.
Thank you for your time and attention.
Sincerely,
Carmen Nazario,
President.
Mr. BROWNBACK. Mr. President, I rise to speak to speak on a free-
standing provision in title IV of the pending DOD appropriations bill,
subtitle A, the Hurricane Education Recovery Act, which prohibits
discrimination ``on the basis of . . . sex.'' (Section 107(m)(1)(A)). I
want to ensure that this provision will be applied in an abortion-
neutral manner--such as parallel provisions that have long governed all
educational institutions receiving Federal funds--even though it
contains no explicit clarifying language.
Over two decades ago, Federal regulators and others misused statutory
language against ``discrimination on the basis of sex'' to argue that
procedures, such as abortion, which apply only to women must be treated
like any routine health procedure. To end this misinterpretation,
abortion-neutral language amending title IX of the Education Amendments
of 1972 was enacted as part of the Civil Rights Restoration Act in
1988, 20 U.S.C Sec. 1688. When Congress passed the D.C. School Choice
Incentive Act of 2003 in January, it incorporated this clarification by
reference, Sec. 308(b)(3) of Pub. L. 108-199.
It is therefore important to be clear that nothing in this bill is
designed to change this legal status quo in any way. At a time when
schoolchildren in so many States are in desperate need of temporary
assistance to continue their educations, no one should be seizing upon
this emergency legislation as a vehicle for changing current law on
abortion. Nor should the devastation wrought by Hurricane Katrina and
other disasters be used to justify filing sex discrimination suits
against private and public schools that do not facilitate abortions for
minor children in their charge. I am confident that Congress had no
such intent in crafting this bill and that the U.S. Department of
Education will not construe the bill's provision on discrimination ``on
the basis of sex'' to require any new policy or practice on abortion in
schools.
Mr. NELSON of Florida. Mr. President, while I wholeheartedly support
robust funding for our troops, several measures slipped into the
Defense appropriations bill were totally extraneous to our military
missions. Two such provisions--oil drilling in the Arctic National
Wildlife Refuge and complete liability protection for drug companies
that manufacture vaccines--
[[Page S14250]]
were added to this bill behind closed doors and in the dead of the
night.
If unrelated and unpopular measures can be slipped into our Nation's
military spending bill at the last moment, without being included in
either the House or Senate, open debate on issues and all control over
spending has been lost. Lawmakers behind this move held funding for our
troops hostage to achieve the interests of the oil and drug industries.
Largely for this reason, dozens of Senators voted for more debate on
the Defense appropriations conference report. We hope these unwanted
and extraneous provisions will be removed.
As I have stated, I voted to oppose closing off debate on the Defense
appropriations bill for several reasons--including the bill's insertion
of oil drilling in the Arctic National Wildlife Refuge and liability
protection for drug companies that manufacture vaccines. In addition,
to my opposition to these specific provisions, I believe the disaster
relief provided for in the bill is woefully inadequate for Florida.
Florida was hit by four hurricanes again in 2005. Hurricanes Dennis,
Katrina, Rita and Wilma wreaked havoc in South Florida, the Panhandle
and even parts of central Florida. These storms caused over $2 billion
in agricultural losses. That surpasses the losses from the 2004
hurricane season.
Florida's Agriculture Commissioner, Charles Bronson, said that he has
``never witnessed such extensive devastation to our state's agriculture
sectors as that caused by Hurricane Wilma.''
Despite this devastation, the disaster relief in the Defense
appropriations bill fails to provide any financial relief to the
citrus, sugar, vegetable, tropical fruit or livestock industry.
It is estimated that Florida lost 47 percent of the grapefruit crop
and 15 percent of the orange crop--for a total loss of $180 million.
The vegetable industry took a $311 million hit because the fall and
winter vegetable crops were growing when Wilma hit.
The sugar industry suffered more than $370 million in losses. One-
hundred mile per hour winds not only flattened the cane, but also
caused significant structural damage to critical infrastructure such as
storage bins and the mill.
Literally, millions of Floridians are still struggling due to these
hurricanes; and this bill does little to help them recover.
When this bill goes back to the conference committee, I hope this
disaster relief package can be reworked to provide relief for all those
who suffered damage in this year's hurricanes.
Mr. KERRY. Mr. President, the fiscal year 2006 Defense Appropriations
Act is a vitally important piece of legislation. It funds the
operations of the Department of Defense and, in this particular case,
the wars in Iraq and Afghanistan.
It is disgraceful that this bill was delayed until the end of the
year by an administration that was more interested in lobbying for the
right to torture than in meeting the needs of our troops. Now at this
late hour, it was further delayed by those who sought to take a bill
they knew people would support--funding our troops--and load it up with
favors for special interests. With these issues resolved, I am pleased
this important legislation has finally passed.
The fiscal year 2006 Defense Appropriations Act includes funding for
everything from boots to beans to bullets--everything our Armed Forces
need to keep America safe. This bill funds the national defense program
at $453.28 billion, including $50 billion in emergency appropriations
for on going operations in Iraq and the war on terror.
The legislation funds recent and pending increases in Army end
strength, provides a 3.1 percent pay raise to all members of the U.S.
military, and increases housing allowances.
It funds the readiness programs that maintain our military's ability
to conduct operations around the world, whether that means flying hours
for pilots, steaming days for Navy crews, spare parts, training, or
maintenance.
The legislation funds major acquisition programs in every service--
whether the C-17, PAC-3 missiles, the Army's Stryker, or the Navy's DD-
X program. It also funds $72.1 billion in research development test and
evaluation. That includes future systems--whether air, land, space or
sea systems--as well as important medical research that will bring our
soldiers the most advanced medical treatment on future battlefields.
The future American military, its capabilities, and its personnel are
all funded in this legislation.
The $50 billion emergency appropriation included in this legislation
funds on going operations in Iraq, Afghanistan, and wherever the war on
terror takes American forces. That total includes money for combat pay,
death gratuities, and other allowances. It includes $142.8 million for
body armor and other personal protection equipment and $1.4 billion for
the Joint Improvised Explosive Device Task Force. It funds important
programs to replace lost or damaged helicopters and ground vehicles and
restocks ordinances used in operations. It also includes $1 billion to
meet immediate equipment deficiencies in the National Guard and
Reserves.
The Defense appropriations bill is one of the most important pieces
of legislation the Congress enacts each year. It is always tempting to
some to try to attach riders to it that have nothing to do with the
defense of our country or the courageous Americans who make up the U.S.
military. I am pleased that, at long last, the Senate finally moved
this vital legislation that is so important to our troops.
Mr. President, I know there will be some who criticize this
legislation because of the way it was ultimately enacted. I share those
frustrations. I wish that we could have passed a clean defense
appropriations act 3 or 4 months ago to avoid the challenges we have
seen in the last days. It is regrettable that we did not, but I am
happy that this legislation has finally passed so that our troops
receive the resources they need to protect this country.
Mr. LIEBERMAN. Mr. President, we are in a period of extended debate
to resolve the remaining issues related to the Defense appropriations
bill, so I wanted to take a minute to address the serious avian flu
issue that is before us. While I am concerned that we will need the
full funding request the administration sought, if we approve the avian
flu proposal, we will at least be advancing some $3 billion. I want to
stress the importance of global wild bird surveillance systems as part
of my comprehensive flu plan.
I am pleased that the avian flu provisions include authorizing
language and funds to set up a wild bird surveillance network as well
as other essential elements of avian flu public health preparedness. If
passed by Congress and signed by the President, this will assure that
we have a comprehensive approach to what may become a real world
threat. We do not want to have piecemeal solutions or be simplistically
reactive when it comes to the public's health.
The avian flu provision we have been considering today states that
part of $150 million is designated to carry out global and domestic
disease surveillance, which includes international surveillance to
track influenza strains as a way of focusing limited resources on at-
risk populations. The conferees have pointed out specifically the
importance of migratory bird tracking in predicting the spread of avian
influenza and encourage the CDC to ensure that this important activity
is part of its surveillance activities. I am pleased with this language
that acknowledges a key part of the preparedness puzzle to which,
frankly, few people have given attention--wild bird sentinels and the
intimate connection between animal and human health. We cannot separate
the two.
As we all know, the potential for an influenza pandemic is increasing
as the H5N1 virus has now moved swiftly across Asia, Russia, Turkey,
and now the EU, killing millions of domestic poultry and over 60 humans
to date. History and science tell us that wild birds and movements of
poultry have the potential to spread deadly avian influenza viruses.
The 1918 influenza epidemic that killed an estimated 40 million people
worldwide was an avian-origin viral strain. We must act now to ensure
that this does not happen again. We have the tools to track the
movement of this virus. We just need to increase and strengthen them.
In October, I introduced a bill, S. 1912, to do exactly this. This
month, Representatives DeLauro and Lowey, with the cosponsorship of
Representative Case, introduced an identical bill
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in the House of Representatives, H.R. 4476, to provide funds supporting
an early warning system and real-time data network for global avian
influenza surveillance. Senator Brownback has also been supportive of
these efforts to urge Congress to examine ways to boost our prevention
and preparedness efforts via an international surveillance network.
In fact, the Senate passed appropriations for such an effort in the
Senate Labor-HHS appropriations bill for fiscal year 2006. This was
work from our colleagues Senators Specter and Harkin, who again
realized the importance of fighting the threat of avian flu from
multiple fronts including funds for vaccines and antivirals but also
with the establishment of an international wild bird surveillance
network.
The surveillance network contemplated by the avian flu proposals we
have been considering should be designed to be an early warning and
tracking system to monitor avian viruses and their mutations and
reassortments, as carried by wild birds. The provision would require
expansion the Centers for Disease Control and Prevention's Influenza
Branch's wild bird surveillance program, which currently is small.
Specifically, it is our intent that the Centers for Disease Control and
Prevention's Influenza Branch, CDC, with expertise in analyzing
ornithological and animal samples for infectious diseases, and other
national partners, such as the US Agency for International Development,
USAID, with expertise in working with international partners and
coalitions, would partner with one or more nongovernmental
organizations that meet the following criteria: have extensive global
wildlife health experience in tracking disease in wild birds, including
free-ranging, captive, and wild-bird species using an international and
extensive field program and network with projects in 50 or more
countries to allow for the collection and dissemination of data around
the world; have proven ability in identifying avian influenza,
specifically H5N1 and other infectious diseases, in wild birds; and
have accredited zoological facilities in the United States, with the
capacity to analyze, store, and interpret samples and compile data.
Such tracking allows us to predict the spread of the virus and then
to focus limited resources and prepare communities in the flight path
of wild birds, as the conference report notes. Potential interventions
include providing available antivirals or vaccines to those at-risk,
enhancing biosecurity at poultry farms, and even keeping people indoors
should surveillance information warrant it. By tracking wild birds, as
these provisions require, we may even be able to produce an avian flu
vaccine faster by understanding which variant of avian influenza virus
is the killer. The current H5N1 virus is potentially not the one that
could cause widespread devastation to humans. Again, the conference
report recognizes the importance of tracking viral strains and has
provided the CDC with funding to do so.
Just as we track hurricanes as they begin as a tropical storm, we
must track wild birds and the viral storms they carry over oceans and
continents and share that data with the world.
At least $10 million of the funds available in this proposal in 2006
should be available to the CDC to work with a national partner such as
USAID and one or more eligible NGOs with the expertise and the criteria
previously outlined and other supporting international partners to
establish a strong global wild bird surveillance system.
This proposal would help ensure we have an organized, near real-time,
virtual library that would allow U.S. Government agencies, wildlife
conservation organizations, and public health organizations to track
both the spread of avian viruses and their reassortments and mutations,
which are integral to understanding how a virus might change to permit
human to human transfer.
Ten million dollars is a small sum in comparison to the tens of
billions of dollars required for vaccine research and antiviral
stockpiling. Vaccines and stockpiling are our current focus and we
should be thinking about them--but it is equally important to think
about being prepared for outbreaks and preventing a pandemic from ever
becoming a reality.
As we speak, information is being collected and analyzed all over the
United States and the world. But while we are collecting piles of data,
it is not being stored in the kind of organized manner needed to make
it available for easy study and response. The information we have, I
fear, is scattered like books with no library to contain them and no
librarian to locate them.
Again, I would like to thank leaders in the Senate and the House,
including Senators Specter, Harkin, and Brownback, and Representatives
DeLauro, Lowey, and Case, for their work in preparing our Nation for a
possible pandemic. We must address the treatment, surveillance, and
prevention but, also, critically the global wildfowl surveillance; this
addresses a big gap that is easy to forget about. It is the big bird in
the room.
Wild birds can spread this virus and could potentially carry it to
the United States. I thank and urge my colleagues to continue
supporting flu legislation with essential provisions such as this one,
which surveys wild birds with NGOs who have the international networks
and the capacity to connect all the dots, so when a flu pandemic does
or does not happen, we are better prepared.
Mr. DURBIN. Mr. President, I rise to speak about the Detainee
Treatment Act of 2005, which is included in the Defense Appropriations
conference report.
I will submit a similar statement into the Record for the Defense
authorization conference report because the Detainee Treatment Act of
2005 is also included in the Defense authorization bill.
The Detainee Treatment Act includes two provisions that were adopted
in the Senate version of the Defense Authorization bill: the McCain
Antitorture amendment and the Graham-Levin Detainee amendment.
I was an original cosponsor of the McCain Antitorture amendment. I
have spoken at length about the vital importance of this amendment on
several other occasions. At this time, I simply want to reiterate a
couple of points.
Twice in the last year and a half, I have authored amendments to
affirm our Nation's longstanding position that torture and cruel,
inhuman, or degrading treatment are illegal. Twice, the Senate
unanimously approved my amendments. Both times, the amendments were
killed behind the closed doors of a conference committee--at the
insistence of the Bush administration.
I am pleased that the administration has changed its position. As a
result, it will now be absolutely clear that under U.S. law all U.S.
personnel are prohibited from subjecting any detainee anywhere in the
world to torture or cruel, inhuman, or degrading treatment.
The amendment defines cruel, inhuman, or degrading treatment as any
conduct that would constitute the cruel, unusual, and inhumane
treatment or punishment prohibited by the U.S. Constitution if the
conduct took place in the United States. Under this standard, abusive
treatment that would be unconstitutional in American prisons will not
permissible anywhere in the world.
Let me give you some examples of conduct that is clearly prohibited
by the McCain amendment.
``Waterboarding'' or simulated drowning is a technique that was used
during the Spanish Inquisition. It is clearly a form of torture. It
creates an overwhelming sense of imminent death. It amounts to a clear-
cut threat of death akin to a mock execution, which is expressly called
``mental torture'' in the U.S. Army Field Manual.
Sleep deprivation is another classic form of torture which is
explicitly called ``mental torture'' in the U.S. Army Field Manual. It
has been banned in the United Kingdom and by a unanimous Israeli
Supreme Court, and the U.S. Supreme Court has repeatedly declared it
unconstitutional, once citing a report that called it ``the most
effective form of torture''.
The amendment also clearly bans so-called stress positions or
painful, prolonged forced standing or shackling. Again, the U.S. Army
Field Manual expressly calls these techniques ``physical torture.''
Moreover, one of the most recent Supreme Court cases on the extent of
the prohibitions on ``cruel and unusual'' punishments expressly
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outlawed the use of painful stress positions, denouncing their
``obvious cruelty'' as ``antithetical to human dignity.''
The amendment bans the use of extreme cold, or hypothermia, as an
interrogation tactic. Hypothermia can be deadly. Clearly it is capable
of causing severe and lasting harm, if not death, and consequently is
banned by both the Field Manual and the Constitution.
The amendment bans punching, striking, violently shaking or beating
detainees. Striking prisoners is a criminal offense and clearly
unconstitutional. Moreover, while assaults like slapping and violent
shaking, may not seem as dangerous as beatings, shaking did, in fact,
kill a prisoner in Israel, and the tactic has been banned by the
Israeli Supreme Court. Numerous U.S. Supreme Court cases likewise
prohibited striking prisoners.
The amendment bans the use of dogs in interrogation and the use of
nakedness and sexual humiliation for the purpose of degrading
prisoners.
No reasonable person, given the text of the amendment, the judicial
precedents, and common sense, would consider these techniques to be
permitted. Any U.S. official or employee who receives legal advice to
the contrary should think twice before defying the will of the Congress
on this issue.
The McCain antitorture amendment will make the rules for the
treatment of detainees clear to our troops and will send a signal to
the world about our Nation's commitment to the humane treatment of
detainees.
I want to express again my opposition to the Graham-Levin amendment.
The amendment would essentially eliminate habeas corpus for detainees
at Guantanamo Bay. In so doing, it would apparently overturn the
Supreme Court's landmark decision in Rasul v. Bush.
No one questions the fact that the United States has the power to
hold battlefield combatants for the duration of an armed conflict. That
is a fundamental premise of the law of war.
However, over the objections of then-Secretary of State Colin Powell
and military lawyers, the Bush administration has created a new
detention policy that goes far beyond the traditional law of war. The
administration claims the right to seize anyone, including an American
citizen, anywhere in the world, including in the United States, and to
hold him until the end of the war on terrorism, whenever that may be.
They claim that a person detained in the war on terrorism has no legal
rights. That means no right to a lawyer, no right to see the evidence
against him, and no right to challenge his detention. In fact, the
Government has argued in court that detainees would have no right to
challenge their detentions even if they claimed they were being
tortured or summarily executed.
U.S. military lawyers have called this detention system ``a legal
black hole.''
Defense Secretary Rumsfeld has described the detainees as ``the
hardest of the hard core'' and ``among the most dangerous, best
trained, vicious killers on the face of the Earth.'' However, the
administration now acknowledges that innocent people are held at
Guantanamo Bay. In late 2003, the Pentagon reportedly determined that
15 Chinese Muslims held at Guantanamo are not enemy combatants and were
mistakenly detained. Almost 2 years later, those individuals remain in
Guantanamo Bay.
Last year, in the Rasul decision, the Supreme Court rejected the
administration's detention policy. The Court held that detainees at
Guantanamo have the right to habeas corpus to challenge their
detentions in Federal court. The Court held that the detainees' claims
that they were detained for years without charge and without access to
counsel ``unquestionably describe custody in violation of the
Constitution, or laws or treaties of the United States.''
The Graham amendment would protect the Bush administration's
detention system from legal challenge. It would effectively overturn
the Supreme Court's decision. It would prevent innocent detainees, like
the Chinese Muslims, from challenging their detention.
However, I do want to note some limitations on the scope of the
Graham-Levin amendment.
A critical feature of this legislation is that it is forward looking.
A law purporting to require a Federal court to give up its jurisdiction
over a case that is submitted and awaiting decision would raise grave
constitutional questions. The amendment's jurisdiction-stripping
provisions clearly do not apply to pending cases, including the Hamdan
v. Rumsfeld case, which is currently pending before the Supreme Court.
In accordance with our traditions, this amendment does not apply
retroactively to revoke the jurisdiction of the courts to consider
pending claims invoking the Great Writ of Habeas Corpus challenging
past enemy combatant determinations reached without the safeguards this
amendment requires for future determinations. The amendment alters the
original language introduced by Senator Graham so that those pending
cases are not affected by this provision.
The amendment also does not legislate an exhaustion requirement for
those who have already filed military commission challenges. As such,
nothing in the legislation alters or impacts the jurisdiction or merits
of the Hamdan case.
Nothing in the legislation affirmatively authorizes, or even
recognizes, the legal status of the military commissions at issue in
Hamdan. That is the precise question that the Supreme Court will decide
in the next months. Right now, the military commissions are legal under
a decision of the DC Circuit, and this amendment reflects, but in no
way endorses that present status. It would be a grave mistake for our
allies around the world to think that we are endorsing this system at
Guantanamo Bay--a system that has produced not a single conviction in
the 4 years since the horrible attacks of September 11, 2001.
This provision attempts to address problems that have occurred in the
determinations of the status of people detained by the military at
Guantanamo Bay and elsewhere. It recognizes that the Combatant Status
Review Tribunal, CSRT, procedures applied in the past were inadequate
and must be changed going forward. As the former chief judge of the
U.S. Foreign Intelligence Surveillance Court found, in In Re Guantanamo
Detainee Cases, the past CSRT procedures ``deprive[d] the detainees of
sufficient notice of the factual bases for their detention and den[ied]
them a fair opportunity to challenge their incarceration,'' and allowed
``reliance on statements possibly obtained through torture or other
coercion.'' Her review ``call[ed] into serious question the nature and
thoroughness'' of the past CSRT process. The former CSRT procedures
were not issued by the Secretary of Defense, were not reported to or
approved by Congress, did not provide for final determinations by a
civilian official answerable to Congress, did not provide for the
consideration of new evidence, and did not address the use of
statements possibly obtained through coercion.
To address these problems, this provision requires the Secretary of
Defense to issue new CSRT procedures and report those procedures to the
appropriate committees of Congress; it requires that going forward the
determinations be made by a Designated Civilian Official who is
answerable to Congress; it provides for the periodic review of new
evidence; it provides for future CSRTs to assess whether statements
were derived from coercion and their probative value; and it provides
for review in the D.C. Circuit Court of Appeals for these future CSRT
determinations.
Mr. FEINGOLD. Mr. President, the annual Defense Appropriations bill
is rightly considered a priority most years, and Congress typically
completes its work on this important bill early in the year. This year,
however, progress on this bill was suspended largely because of
Republican political maneuvering. I supported the Senate version of
this bill, but a very different bill emerged from conference. That
conference report was hijacked by the Republican leadership in a
cynical effort to try to pass controversial provisions that have
nothing to do with our defense. By jeopardizing funding for our brave
men and women in uniform, and attempting to circumvent the rules that
govern the Senate, those leaders placed their own narrow interests
above those of the country and this institution.
The most blatant abuse was the insertion into the conference report
of a
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provision that appeared in neither bill to open the Arctic National
Wildlife Refuge to drilling. I have already addressed the Senate twice
this week on why that provision had no place in this conference report
and I am pleased that my colleagues have joined me in sending a clear
message that we will not tolerate attempts to hold vital funding
hostage to unrelated special interest provisions.
While we were successful in removing the Arctic provisions, I remain
very troubled about provisions included in the emergency funds slated
for pandemic influenza preparedness. While I have long advocated for
pandemic influenza preparedness funding, and while I am pleased that
$3.8 billion is provided for this purpose, I am deeply concerned about
the inclusion of far-reaching liability protections for health care
providers and vaccine manufacturers in this conference report. It is an
abuse of the appropriations process to incorporate such sweeping legal
protections into a measure providing funds for the military.
The provisions inserted in the conference report would exempt vaccine
producers from civil liability for injuries caused by vaccines, unless
the health care provider or vaccine manufacturer acted with willful
misconduct. This language is extremely far-reaching. Plaintiffs would
need to prove that the health care providers or vaccine manufacturers
acted intentionally, acted without justification, and disregarded known
or obvious risks that the harm would outweigh the benefit. This will be
extremely difficult for plaintiffs to establish. Furthermore,
disregarding the advice of public health experts, the language fails to
provide meaningful injury compensation provisions to help those injured
by vaccines. These protections for health care providers and vaccine
manufacturers are unparalleled, and it is painfully clear that our
leadership in Congress and in the White House is not listening to the
concerns of first responders, families, or public and global health
experts. They are listening only to the businesses and industries that
would use the threat of pandemic influenza as an opportunity to help
their own profit margins.
Mr. President, I also object to the inclusion of certain provisions
of the Hurricane Education Recovery Act in the Department of Defense
Appropriations bill. More than 370,000 elementary and secondary
students have been displaced as a result of Hurricane Katrina. Schools
across the country, including some in Wisconsin, have opened their
doors to these students. I strongly support efforts to assist the
schools that are welcoming these students as they continue to work to
make this transition and school year go as smoothly as possible.
But I am troubled by key provisions of the legislation. For example,
Section 107 of the Act would allocate Federal funding to go directly
through State agencies to local school districts where displaced
students have enrolled in public or private schools. The local school
districts, which are government agencies, would then be responsible for
issuing direct payments to public and private schools educating
displaced students. Earlier this year, the Senate soundly defeated a
proposal to provide vouchers directly to parents with little in the way
of civil rights protections. The Senate subsequently passed a measure
that, like the measure now before this body, would have passed taxpayer
money to private schools through local public school districts. I had
grave concerns about that provision, and I am even more troubled that
the provisions before us do not include even the modest attempts at
civil rights and other protections that were included in the Senate
passed language. While I believe the supporters of this act are well-
intentioned, I am concerned that Senate passage of this measure would
create a troubling precedent with regard to taxpayer-funded school
vouchers.
I oppose school vouchers because such programs funnel taxpayer money
away from the public schools that this funding is intended to support
and instead direct this funding to private schools that do not have to
adhere to the same Federal, State, and local accountability and civil
rights laws and regulations that apply to public schools. I strongly
support providing assistance to the students and schools that have been
affected by Hurricane Katrina, but we should do so within existing
Federal laws that allow local public school districts to provide
specific educational services--rather than direct funding--to private
schools.
Mr. President, I also object to the across-the-board cut to
discretionary programs, including education programs, that was inserted
in this conference report. The Labor-HHS-Education appropriations bill
already cuts or allows for only nominal increases in funding for
education. This across-the-board cut would magnify the damage done by
that appropriations bill, which awaits final action. If both
the across-the-board cut and the Labor-HHS-Ed appropriations bill are
adopted, total Federal education funding would be cut for the first
time in a decade, Funding would be cut for No Child Left Behind, at a
time that we are still requiring States to comply with testing all
students in reading and math in grades 3-8 for the first time this
school year. Title I funding would be cut for the first time in 13
years, hurting children that are currently eligible to receive Title I
services. The Federal share of special education costs would be cut for
the first time in a decade forcing States and local school districts to
pick up the slack. And I regret that the maximum Pell Grant award would
be frozen for the fourth year in a row at $4,050.
Mr. President, reducing funding for our nation's schools is not the
message we should be sending to our youth. We need to find ways to
provide an excellent K-12 education for all of America's children and
find ways to make college more affordable for young people now and in
the future. Cutting funding for these various programs is not the
answer and this across-the-board cut is particularly regrettable. I
strongly support reducing our budget deficit and have long promoted
measures, such as PAYGO, that would help us toward that goal. But
cutting funding for those most in need is not the solution.
I am pleased that the conference report sends such a strong message
to the administration about the treatment of detainees by adopting the
amendment of the senior Senator from Arizona. The lack of a clear
policy regarding the treatment of detainees has been confusing and
counter-productive. It has left our men and women in uniform in the
lurch with no clear direction about what is and is not permissible.
This failure on the part of the administration has sullied our
reputation as a Nation, and hurt our efforts to promote democracy and
human rights in the Arab and Muslim worlds. I have been proud to
support Senator McCain's amendment on interrogation policy because it
should help to bring back some accountability to the process and
restore our great Nation's reputation as the world's leading advocate
for human rights.
I am disappointed with the mixed messages that the Senate continues
to send to the administration and the country on issues related to the
detainees held at Guantanamo Bay. In addition to the important McCain
amendment on torture, the conference report also includes the Graham
amendment, which remains deeply troubling because of the restrictions
it places on judicial review of detainees held at Guantanamo. However,
it is important to note that the provision is limited in critical ways.
The provision on judicial review of military commissions covers only
``final decisions'' of military commissions, and only governs
challenges brought under that provision. In addition, the language in
Section 1405(e)(2) that prohibits ``any other action against the United
States'' applies only to suits brought relating to an ``aspect of
detention by the Department of Defense.'' Therefore, it is my
understanding that this provision would not affect the ongoing
litigation in Hamdan v. Rumsfeld before the Supreme Court because that
case involves a challenge to trial by military commission, not to an
aspect of a detention, and of course was not brought under this
provision. Furthermore, it is important to make clear that this
provision should not be read to endorse the current system of trial by
military commission for those at Guantanamo Bay. This provision
reflects, but certainly does not endorse, the existing status of those
military commissions, which is that they are currently legal under a
decision of the D.C. Circuit.
[[Page S14254]]
However, the Supreme Court has not yet addressed the legality of such
military commissions, and this amendment should not be read as any
indication that Congress is weighing in on that issue. While I would
have strongly preferred that this amendment not be included in the
conference report, I think it is important to note these limitations on
its practical effect.
In closing, Mr. President, I am pleased that I was able to vote for a
bill to provide our brave men and women in uniform with the funding
they need. But I am disappointed with the long and winding road that it
took to get to this point. I hope that Republican leaders are on notice
that the Senate will not turn a blind eye when they break the rules and
put their own narrow interests above those of the country and the
troops.
The PRESIDING OFFICER. The question is on agreeing to the conference
report. The yeas and nays have been ordered. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senators were necessarily absent: the
Senator from Arizona (Mr. Chafee), the Senator from South Carolina (Mr.
DeMint), the Senator from New Hampshire (Mr. Gregg), and the Senator
from Arizona (Mr. McCain).
Further, if present and voting, the Senator from South Carolina (Mr.
DeMint), would have voted ``yea.''
Mr. DURBIN. I announce that the Senator from New Jersey (Mr.
Corzine), the Senator from Connecticut (Mr. Dodd), and the Senator from
Iowa (Mr. Harkin) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 93, nays 0, as follows:
[Rollcall Vote No. 366 Leg.]
YEAS --93
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Brownback
Bunning
Burns
Burr
Byrd
Cantwell
Carper
Chambliss
Clinton
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
Dayton
DeWine
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feingold
Feinstein
Frist
Graham
Grassley
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
Lugar
Martinez
McConnell
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Santorum
Sarbanes
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
Wyden
NOT VOTING --7
Chafee
Corzine
DeMint
Dodd
Gregg
Harkin
McCain
The conference report was agreed to.
____________________