[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]]

-----------------------------------------------------------------------

                        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.




-----------------------------------------------------------------------

                                 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

If the 109th Congress, 1st Session, adjourns sine die on or before 
December 22, 2005, a final issue of the Congressional Record for 
the 109th Congress, 1st Session, will be published on Friday, 
December 30, 2005, in order to permit Members to revise and extend 
their remarks.
All material for insertion must be signed by the Member and 
delivered to the respective offices of the Official Reporters of 
Debates (Room HT-60 or S-123 of the Capitol), Monday through 
Friday, between the hours of 10:00 a.m. and 3:00 p.m. through 
Thursday, December 29. The final issue will be dated Friday, 
December 30, 2005, and will be delivered on Tuesday, January 3, 
2006. Both offices will be closed Monday, December 26, 2005.
None of the material printed in the final issue of the 
Congressional Record may contain subject matter, or relate to any 
event that occurred after the sine die date.
Senators' statements should also be submitted electronically, 
either on a disk to accompany the signed statement, or by e-mail to 
the Official Reporters of Debates at ``[email protected]''.
Members of the House of Representatives' statements may also be 
submitted electronically by e-mail, to accompany the signed 
statement, and formatted according to the instructions for the 
Extensions of Remarks template at http://clerk.house.gov/forms. The 
Official Reporters will transmit to GPO the template formatted 
electronic file only after receipt of, and authentication with, the 
hard copy, and signed manuscript. Deliver statements to the 
Official Reporters in Room HT-60.
Members of Congress desiring to purchase reprints of material 
submitted for inclusion in the Congressional Record may do so by 
contacting the Office of Congressional Publishing Services, at the 
Government Printing Office, on 512-0224, between the hours of 8:00 
a.m. and 4:00 p.m. daily.
By order of the Joint Committee on Printing.
                                                                
TRENT LOTT, Chairman.

[[Page S14242]]

  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

[[Page S14243]]

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

[[Page S14244]]

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

[[Page S14245]]

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

[[Page S14248]]

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

[[Page S14249]]

     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

[[Page S14251]]

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

[[Page S14252]]

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

[[Page S14253]]

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.

                          ____________________