Congressional Record, Volume 152 Issue 80 (Tuesday, June 20, 2006)

[Congressional Record Volume 152, Number 80 (Tuesday, June 20, 2006)]
[Senate]
[Pages S6113-S6147]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2007--Continued

The PRESIDING OFFICER. The distinguished Senator from Virginia is
recognized.
Mr. WARNER. Mr. President, the pending business is the DOD
authorization bill and most specifically the amendments by Senator
McConnell and Senator Bill Nelson of Florida. The McConnell amendment
is to be voted on first, followed by a vote on the second amendment. Am
I correct?
The PRESIDING OFFICER. That is correct.

Amendment No. 4272, as modified

Mr. WARNER. I shall address the McConnell amendment.
First, the amendments have a great likeness. But I felt, in working
with the distinguished Senator from Kentucky, that his amendment--I ask
unanimous consent that I be a cosponsor of that amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. I believe very strongly that a second amendment was
needed because of what we have been working toward--the United States
and its coalition partners--from the very beginning, and that is to
provide the Iraqi people with a sovereign nation in which they can
exercise the full range of authorities and responsibilities of a
sovereign nation. Therefore, they went about a series of elections.
Every Member of this Chamber recognizes the courage of the Iraqi people
in three elections. Then there was the formation of a permanent
government, a unity government. Having achieved that, they are now
beginning to exercise the full responsibilities of a sovereign nation.
I was concerned that we, as a legislative body of our Nation, not
indicate that we are infringing on their rights of sovereignty.
This whole issue of amnesty is an important one. I do not, in any
measure, suggest it is not important. But I think we have to observe
that they are a sovereign nation. How they go about it should largely
be within the confines of their own wisdom and goals because our whole
future is dependent on this Government and the people of Iraq taking
back their country such that our forces can come back home. Whatever
that Government does that is constructive toward reaching that goal I
want to support. So in working on this amendment, I, working with the
distinguished Senator from Kentucky, drafted one or two provisions with
him which state as follows:

It is the sense of Congress that the goal of the United
States and our Coalition partners has been to empower the
Iraqi Nation with full sovereignty thereby recognizing their
freedom to exercise that sovereignty. Through successive
elections and difficult political agreements the unity
government is now in place exercising that sovereignty. We
must respect that exercise of that sovereignty in accordance
with their own wisdom;
History records that governments derived of free elections
should not grant amnesty to those who have committed war
crimes or terrorist acts, and; [further]
The United States should continue with the historic
tradition of diplomatically, economically, and in a
humanitarian manner assisting nations and the people whom
have fought once a conflict is concluded.

Mr. McCONNELL. Will the Senator from Virginia yield for a question?
Mr. WARNER. I am happy to yield the floor, if the Senator so desires.
Mr. McCONNELL. If the Senator will yield for a question, I say to my
friend from Virginia: Is the Senator from Kentucky correct that the
genesis of the Nelson amendment is a newspaper story quoting a lower
level Government official, since dismissed by the Iraqi Government for
suggesting that forces who may have killed American or Iraqi troops
would be given amnesty? Is it not correct, I ask my friend from
Virginia, chairman of the Armed Services Committee, that that lower
level official has since been dismissed from the Iraqi Government?
Mr. WARNER. Mr. President, he was fired.

[[Page S6114]]

Mr. McCONNELL. He was fired. Is it not the case, I ask my friend, the
chairman of the Armed Services Committee, that the National Security
Adviser, Steve Hadley, if you will, of the Iraqi Government, stated
shortly thereafter what the policy of the Iraqi Government was?
Mr. WARNER. Mr. President, the Senator is exactly correct.
Mr. McCONNELL. Is the Senator from Kentucky not correct that the
policy of the Iraqi Government is not to do exactly what we have been
having this discussion about on the Senate floor for lo these several
days?
Mr. WARNER. That is correct. Based on my discussions with Senator
Nelson, he in good faith read those reports and felt very strongly, as
I think many of us do, about the issue of amnesty and came forward with
that amendment. Then, we purposely delayed final action on these two
amendments last week, such that in the intervening time there would be
further clarification. I do believe there has been some further
clarification of this matter. I can address that in the context of a
communication from the Department of State, I say to my good friend
from Kentucky. I was able to obtain this information, which hopefully
will be forthcoming momentarily, stating just that: The Iraqi
Government understands precisely what the situation is, that an error
was made and they have put in place I think adequate corrections.
Mr. McCONNELL. So I ask one final question of my friend from
Virginia. Since the Nelson amendment basically addresses a nonexistent
problem and the McConnell amendment simply asserts what we already know
to be the policy of the Iraqi Government, that it would likely be a
good idea for the Senate to go on record as supporting both of these
amendments at this juncture?
Mr. WARNER. Mr. President, I think, certainly in my judgment, that
would be an acceptable situation because there is clarity in the
amendment of the Senator from Kentucky about a point that is very
important to me; i.e, sovereignty, exercise of that. With no disrespect
to the Senator from Florida, I believed his amendment as originally
drafted, and the intent, was to reach across the ocean and have the
U.S.A. reach into the Government and try to dictate what was to be
done. So I believe the Senator is correct in that, and I join him in
that suggestion to our colleagues.
Mr. NELSON of Florida. Will the Senator yield?
Mr. McCONNELL. Mr. President, is the Senator yielding the floor?
Mr. WARNER. Yes, of course.
The PRESIDING OFFICER (Mr. Voinovich). The Senator from Kentucky.
Mr. McCONNELL. Let me add, briefly, as I hear the distinguished
chairman of the Armed Services Committee, at this juncture the
appropriate thing for the Senate to do would be to vote for both of
these amendments. It has been made perfectly clear, by statements by
the National Security Adviser of the new Iraqi Government, that it is
not the policy of the Iraqi Government to grant amnesty to those who
killed American soldiers.
I hope we can move past this reaction to some lower level Iraqi
official, since fired from the Iraqi Government, over his ill-advised
and basically untrue suggestions about what the policy of the Iraqi
Government would be toward those who may have killed American soldiers.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Florida.
Mr. NELSON of Florida. Mr. President, to answer your question--
parliamentary inquiry: Under the previous order, I understand 15
minutes were allocated to the majority and 15 minutes to the minority.
So under the previous order, is that how the Senator from Florida is
being recognized?
The PRESIDING OFFICER. Yes.
Mr. NELSON of Florida. It is true, in the understanding of this
Senator, what the distinguished chairman of the Senate Armed Services
Committee has said. Over the course of the weekend, as he represented
it to this Senator, that he wanted to wait and see what further
clarification has happened on this matter since there was such a
disturbance about the language put forth on the amendment by this
Senator from Florida. Indeed, over the course of the weekend, a number
of additional things have occurred that have made it quite clear what
very likely is the policy of the Government of Iraq. This Senator
quotes from the Los Angeles Times publication over the weekend:

The Iraqi government has crafted a far-reaching amnesty
plan for insurgents.

It goes on to say:

The amnesty plan, which apparently would include insurgents
alleged to have staged attacks against Americans and Iraqis.
. . .

That doesn't sound to me like the Government of Iraq is disclaiming
this, that this is not their policy. To the contrary. The Senator from
Florida is quite appreciative of the majority whip when he says they
are going to support the amendment of the Senator from Florida. I would
certainly hope so, given the fact of the tragedy that has been revealed
today. I quote directly from CNN:

The bodies of two U.S. soldiers found in Iraq Monday night
were mutilated and booby trapped, military sources said
Tuesday.

If you turned on the television in the course of the last couple of
hours, you have heard described in gruesome terms the condition that
the bodies of these two young Americans were found in, which was
unrecognizable because of the mutilation.
Is this the kind of stuff that we in any way, in setting forth the
sense of the Congress, want in any way, any misunderstanding of what
the sense of the Congress is, that the policy of the Iraqi Government
should not be to grant amnesty to those who would do harm to Americans,
and have done harm, as witnessed by this most recent tragic example of
how people treat prisoners of war?
Sadly, I think the facts speak for themselves. Sadly, we could have
dispensed with this at the hour of 2 o'clock on Thursday, after this
Senator had offered his amendment. Yet we went on for 2 hours on that
day and subsequently the next day. It brings us to the following
Tuesday, now, with the comments that have been made, saying that the
majority will accept this Senator's amendment.
I am grateful to the majority, and I think the majority has come to
the right place. I thank you for recognizing this is the statement that
should be the policy, as enunciated by the sense of the Congress.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, I was one of those last week who spoke to
this amendment by the Senator from Florida. I know now the Senator from
Kentucky, the distinguished majority whip, has introduced another
amendment and has suggested perhaps it would be appropriate to vote for
both of them, since what in effect was a misstatement by a low-level
Government employee in Iraq has now been clarified, making it crystal
clear that it is not the policy of the new Government in Iraq to grant
amnesty to those who have killed Americans.
But I have to scratch my head a little bit and wonder why it is we
are having this debate. We are on the Defense authorization bill, an
enormously important bill that is being shepherded on the Senate floor
by the distinguished chairman, for the last time as chairman--at least
this will be the last time he will serve as chairman because of term
limits on that committee. But we are essentially having a debate over a
nonissue, and we are being asked now to send a message to the new Iraqi
Government that you are going to be admonished, in effect, because of
some of the missteps of a low-level Government employee.
I am really confused about the message our friends on the other side
of the aisle are trying to send our allies in Iraq. On the one hand, we
have amendments that are offered suggesting that we leave them in 6
months' time and bring all of our troops home, and whatever happens as
a result of that, well, it is not our problem anymore; it is their
problem. On the other hand, amendments like these suggest that anytime
a low-level government employee misstates the facts and has to be then
corrected, and that person is then disciplined through dismissal, do we
in essence want to pick a fight where there is no fight and where it is
clear what the policy of the new Iraqi Government is?
I think we should give this new Iraqi Government at least the benefit
of the

[[Page S6115]]

doubt that some would give to Saddam Hussein. There are some who come
to the Senate floor and say, no, it was a terrible mistake for us to
ever go into Iraq notwithstanding the fact that we know that Saddam
Hussein was a mass murderer. I, along with other of my colleagues, have
stood on the edge of mass gravesites where at least 400,000 Iraqis lie
dead by the hands of this mass murderer Saddam Hussein.
We know the record is clear that al-Qaida in the form of Zarqawi, who
was killed just last week, was in Iraq more than 2 years before the
United States and our coalition partners took out Saddam Hussein. There
are those who said no, no, no. Iraq has no less linkage whatsoever to
international terrorism, and now we know the facts are that the worst
al-Qaida operative of all, the head of al-Qaida in Iraq, was in fact in
Baghdad and was in Iraq more than a year before Saddam Hussein was
deposed.
So I guess I am confused by those who would say, no, let's leave the
Iraqis on their own, wish them luck, but so much for the loss of lives
and lost treasure invested in trying to help the Iraqi people free
themselves from this terrible tyrant and get on their own feet and
create a stable democracy in Iraq. But then, on the other hand, when
this new democracy that has done miraculous things over the last few
years has ratified their new constitution and created a unity
government and have now finally gotten their permanent government in
place, that when a low-level figure makes an unauthorized, incorrect
statement, for which he has been disciplined, we want to come to the
Senate floor and offer amendments admonishing our friends, the Iraqi
Government. They are our allies in what has now become the central
front in the global war on terror.
If we don't finish the job and support our Iraqi allies in any way we
can as they continue this fight against al-Qaida, against other foreign
fighters, against insurgents who want to destabilize the government and
put Saddam Hussein back in power, if we don't do everything we can to
support them militarily and rhetorically provide them any assistance we
can, then we are going to be in a less safe condition because we know
that any power vacuum that would be created in Iraq would easily be
filled as it was in Afghanistan by the likes of Osama bin Laden and
others.
I appreciate the fact that there are those who say, Well, we ought to
just vote for both of these amendments. But I really think we are
heading down a bad road here by slapping the Iraqi Government on the
wrists for what clearly was a misstatement of a low-level government
employee for which he has been disciplined and which has now been very
much clarified that it is not the policy of the Iraqi Government to
provide amnesty for those who have killed Americans in that country.
I yield the floor.
Mr. WARNER. President, first, the distinguished Senator from Florida
referred to a Los Angeles Times article. I think that article should be
placed in the Record following the colloquy between myself and the
distinguished Senator from Florida and the Senator from Texas.
Also, I am not sure that we should make decisions here based on one
report of one newspaper. I am not impugning the Times; it is an
outstanding newspaper. But we just do not have any corroboration of
some of the statements.
I point out they refer to the amnesty plan which currently would
include insurgents alleged to have staged attacks against Americans and
Iraqis.
The second sentence down is the reconciliation plan which is expected
to be formally announced soon. So that plan is in the making. There is
still some formulation of policy going on.
It is for that reason that I believe a strong vote on both of these
amendments sends a subtle message about our concern. Let us assume for
the moment that that plan has not been made formal.
I inquired of the Department of State as to whether or not anything
had transpired over the weekend. There was one meeting between Prime
Minister Maliki and the charges d'affaires of the American Embassy. The
charges d'affaires reported back to the Department of State.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. WARNER. Has the 15 minutes allocated to the Senator from Virginia
expired?
I ask unanimous consent that both sides be extended 5 minutes in this
debate.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. It was stated that there was a meeting between the
charges d'affaires at the U.S. Embassy and Prime Minister Maliki on 17
June. Prime Minister Maliki affirmed that any future amnesty would not
differentiate between those who killed Iraqis and those who killed
coalition forces. None of these people would be pardoned.
Second, Prime Minister Maliki confirmed that there should not be a
concern that his reconciliation plan would prohibit Multinational
Forces-Iraqi--MNFI--operations or impose a timeline for future Iraqi
support of the MNFI, the point being that they are looking at this
situation.
I think that these two amendments will send not a message that
invades or impairs their exercise of the right of sovereignty but
expresses the concern on behalf of all.
The distinguished Senator mentioned the tragic loss of our two
servicepersons. It has not, to the best of my knowledge, been confirmed
officially, but nevertheless earlier media reports the tragic killing
and mutilation of these two brave American soldiers, which is just an
example of the ferocity of this conflict that we are experiencing over
there and the enormous risks being taken by the men and women of our
Armed Forces.
So I think the message sent by both of these amendments is a timely
one.
I urge Senators to vote for both.
I yield the floor.
Mr. NELSON of Florida. Mr. President, will the distinguished Senator
yield for a clarification?
Mr. WARNER. If I might on the Senator's time because ours is down to
about 1 minute.
Mr. NELSON of Florida. Mr. President, I commend the Senator for his
concern. He knows my affection for him as chairman of the committee.
Indeed, CNN is reporting that it is even worse than we had described
out here on the destruction of the two soldiers. CNN sources said the
two men had suffered ``severe trauma.''
My question to the distinguished chairman of the Armed Services
Committee is, in evaluating the McConnell amendment, I am confused by
the language under the sense of Congress, paragraph 1, the last
sentence in the paragraph. I quote: ``We''--meaning the United States--
``must respect the exercise of the sovereignty''--meaning of Iraq--``in
accordance with their own wisdom.''
The Senator from Florida asks the chairman of the committee: Would we
respect their sovereignty if their wisdom said it was their policy to
have amnesty against those who would kill Americans?
Mr. WARNER. Mr. President, I think we should visit that issue only if
in fact at some point in time that position is made official. The
purpose of that language--and I accept full responsibility for that
language--is I feel fervently that the ability for us to conclude our
operation with our coalition partners in Iraq and to bring our troops
home is predicated on the strength of the sovereignty exercised by this
government.
The Senator knows full well as do others in this Chamber that there
is a high disrespect, unfortunately, among many Iraqis for the United
States and its government. If there are any of our fingerprints that we
are trying to dictate to that sovereign nation how they must make
decisions, I fear it could impede the progress to bring our forces
home. That is why that is in there.
Mr. NELSON of Florida. I respect that. This Senator respects the
goals that the Senator from Virginia is stating but I am looking at the
four corners of the McConnell amendment to wonder if this is something
that the Senate wants to vote for when, in fact, in the sense of
Congress that is expressed in the McConnell amendment starting on page
2 at line 15 and ending on page 3 at line 9, there is not any statement
in the sense of Congress with regard to the policy of not supporting
the Iraqi Government if it gives amnesty to people who kill Americans.

[[Page S6116]]

Mr. WARNER. Mr. President, I may call the Senator's attention to page
1 of the McConnell-Warner amendment. It says:

Sense of the Congress commending the government of Iraq for
affirming its position of no amnesty for terrorists who
attack United States Armed Forces.

Could that be any clearer?
Mr. NELSON of Florida. That is in the findings as set forth on page 1
but not in the sense of Congress. Is it the Senator's feeling that the
McConnell amendment clarifies the language that says with respect to
the exercise of sovereignty we must respect the exercise of sovereignty
in accordance with their own wisdom? Does that clarify it?
Mr. WARNER. Mr. President, I am certain that working on the predicate
that they are a sovereign nation, they can make decisions. There will
be decisions which are inconsistent with the views that we hold in this
country. How do we enforce our views without interfering with their
sovereignty?
First, let them speak with absolute clarity to this. The McConnell
amendment--and the Senator keeps saying within the four corners. Look
at corner No. 1. The introductory has very clear and expressed language
against the policy.
Will there be times that we disagree with their exercise of
sovereignty and their own wisdom? Yes. But if we are to obtain what we
hope is our goal of giving that nation its sovereign right, we cannot
be dictating to them how they reach their final decision.
Mr. LEVIN. Mr. President, will the Senator yield for a question?
Is it not true that the Senator from Florida would fully agree that
we want them to have sovereignty and we don't want to dictate to them
what to do, but that his point is, is it not, that we still should
strongly urge them not to exercise their sovereignty in a way which
provides amnesty in advance since we are in the middle of a war with
people who kill American troops? Is that not true? We can urge them
without violating their sovereignty. Would the Senator not agree?
Mr. NELSON of Florida. The Senator is exactly correct. The amendment
by this Senator, for which the majority has already said that they are
urging a vote, will further give specific action; that is, that the
President of the United States should immediately notify the Government
of Iraq that the Government of the United States opposes granting
amnesty to persons who have attacked members of the Armed Forces of the
United States? So we clearly set it out in the amendment offered by
this Senator.

We want to have time for Senator Menendez to speak. How many minutes
does this Senator have remaining?
The PRESIDING OFFICER. There is 7\1/2\ minutes remaining.
Mr. NELSON of Florida. I yield 5 minutes to the Senator from New
Jersey.
Mr. MENENDEZ. Mr. President, I thank my colleague from Florida for
both yielding time and for the amendment he has offered which I am
proud to cosponsor with him.
I am astonished at some of the debate in the Senate. We are twisting
and turning not to take a simple position on behalf of the men and
women who serve in the uniform of the United States in Iraq and to send
a message elsewhere in the world. What is that simple position? It is
the sense of Congress that the Government of Iraq should not grant
amnesty to persons known to have attacked, killed, or wounded members
of the Armed Forces of the United States. What is so difficult, what is
so wrong about sending that message?
I heard some of our colleagues say that this is a nonexistent
problem. If it wasn't for Senator Nelson's amendment, we would not have
had the clarifications that have been forthcoming. I would like to see
the Prime Minister of Iraq say that formally, in public, as the
position of the Government of Iraq.
Then I hear some of our colleagues saying that we have to respect the
Iraqis and their sovereignty. This administration has been telling the
Iraqis from day one what they want them to do in a variety of ways.
They have been telling them how they have to form their government, how
inclusive that government has to be. They have had a whole checklist of
things they have been telling the Iraqis they want them to do. And now,
when it comes time to defend the men and women of the United States in
the Armed Forces by simply sending a sense of the Senate that we want
to urge the Government of Iraq not to include in any amnesty plan those
who have committed murders of U.S. soldiers or who have injured them,
we cannot actually pass a sense of the Senate that says that? This is a
nonexistent problem?
Let me state how nonexistent it is and how important it is to send
this message. We woke up to the very sad story of two missing soldiers
who were found dead, PFC Kristian Menchaca and PFC Thomas L. Tucker.
Let me tell the Senate what Private First Class Menchaca's uncle said:

Don't think that it's just two more soldiers. Don't
negotiate anything. They [the killers] didn't. They didn't
negotiate it with my nephew. They didn't negotiate it with
Tucker.

And we are concerned about Iraqi sovereignty when we have been
telling the Iraqis what we want them to do, but we are so concerned
about Iraqi sovereignty that we won't send a sense of the Senate to
make it clear for this and any other future Iraqi Government that it is
the Senate position that they should not consider amnesty for those
ultimately who have committed the crime of killing American troops?
That is beyond my comprehension.
It seems to me the reality is we need to make a very clear statement
today, a clear and unequivocal statement of what the position of the
United States is as it relates to the protection of our soldiers and
our view that no amnesty program should exist now or in the future that
puts the lives of American soldiers in a position to be bargained for,
negotiated for, and given amnesty for. The only way to send that very
clear, unequivocal message is to support Senator Nelson's amendment.
To suggest we are so concerned about their sovereignty and their
wisdom to the extent we would send a message that you can leave
American soldiers in harm's way--and yes, we will respect your
sovereignty. To the extent we won't do anything about you, ultimately,
considering an amnesty plan that would allow the lives of U.S. soldiers
to be the subject of forgiveness, that is not what I believe the
American people want to see. That is certainly not honoring the lives
of those who gave their lives on behalf of their country or honoring
their families. Only Senator Nelson's amendment does that.
It should be strong. It should be bipartisan. It should be unanimous.
I yield back the remainder of my time to Senator Nelson.
Mr. NELSON of Florida. Mr. President, how many minutes remain for the
majority and minority?
The PRESIDING OFFICER. There is 2\1/2\ minutes remaining, and the
Senator from Virginia has 1\1/2\ minutes remaining.
Mr. NELSON of Florida. Mr. President, we are bringing this in for
landing. I ask the distinguished chairman of the committee, had there
been discussions on the floor during this debate about the
clarification of the McConnell amendment by the words ``in accordance
with their own wisdom''?
Mr. WARNER. Mr. President, I say to my friend at this point in time
that we believe the amendment speaks for itself. The first section of
the amendment cites a sense of the Congress commending the Government
of Iraq for affirming its position of no amnesty for terrorists who
attack U.S. Armed Forces. What could be clearer than that? That sets
the tone and the thrust for the entire amendment.
I have said to my colleagues, it seems to me, in the spirit of
comity, we have had a good debate, we have seen some further
clarification of this issue in the time that has evolved since Thursday
and today; secondly, assuming time is a measure of accuracy, this
policy is undergoing evaluation in Iraq right now.
These two amendments, side by side, receiving a strong vote of the
Senate, should suffice in the mission the Senator from Florida set out
on and on which I join him.
Mr. NELSON of Florida. Mr. President, in light of the fact that this
Senator only had 2 minutes to close, I ask unanimous consent that each
side have 1 additional minute.
Mr. THOMAS. I object.
The PRESIDING OFFICER. The objection is heard.
Mr. NELSON of Florida. An objection is heard to a closing in which I
just

[[Page S6117]]

granted part of my time to the Senator from Virginia, the chairman of
the Senate Committee on Armed Services?
Mr. THOMAS. Some of us have other things to do.
Mr. NELSON of Florida. I am quite surprised. Sadly, on a day in which
two more Americans have been mutilated, sadly, on a day in which the
CNN story is quoting a claim posted on a Web site that our soldiers
were slaughtered ``in accordance to God's will,'' and given the fact
that it is pretty clear the amendment of this Senator sets forth the
policy that it is the sense of the Congress that the Government of Iraq
should not grant amnesty to persons who kill Americans, I think it is
self-evident.
I thank the Senator for sharing these thoughts.
Mr. WARNER. I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the question is on agreeing to the
McConnell amendment.
Mr. COCHRAN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Alabama (Mr. Shelby).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) is necessarily absent.
The PRESIDING OFFICER (Mr. Coleman). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 64, nays 34, as follows:

[Rollcall Vote No. 177 Leg.]

YEAS--64

Alexander
Allard
Allen
Baucus
Bennett
Bingaman
Bond
Brownback
Bunning
Burns
Burr
Cantwell
Chafee
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Cornyn
Craig
Crapo
DeMint
DeWine
Dodd
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Harkin
Hatch
Hutchison
Inhofe
Isakson
Jeffords
Kerry
Kyl
Landrieu
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Pryor
Roberts
Santorum
Sessions
Smith
Snowe
Specter
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner

NAYS--34

Akaka
Bayh
Biden
Boxer
Byrd
Carper
Clinton
Dayton
Dorgan
Durbin
Feingold
Feinstein
Inouye
Johnson
Kennedy
Kohl
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Reed
Reid
Salazar
Sarbanes
Schumer
Stabenow
Wyden

NOT VOTING--2

Rockefeller
Shelby

The amendment (No. 4272), as modified, was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 4265

Mr. WARNER. Are the yeas and nays ordered on the Nelson amendment?
The PRESIDING OFFICER. No.
Mr. WARNER. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. LEVIN. Mr. President, parliamentary inquiry: Are we now voting on
the Nelson-Menendez amendment?
The PRESIDING OFFICER. Yes.
Mr. LEVIN. I thank the Chair.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. McCONNELL. The following Senator was necessarily absent: the
Senator from Alabama (Mr. Shelby).
Mr. DURBIN. I announce that the Senator from West Virginia (Mr.
Rockefeller) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 79, nays 19, as follows:

[Rollcall Vote No. 178 Leg.]

YEAS--79

Akaka
Alexander
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Brownback
Burr
Byrd
Cantwell
Carper
Chafee
Chambliss
Clinton
Coleman
Collins
Conrad
Craig
Crapo
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Ensign
Feingold
Feinstein
Frist
Grassley
Gregg
Harkin
Hatch
Hutchison
Inouye
Isakson
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Martinez
McConnell
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Salazar
Santorum
Sarbanes
Schumer
Smith
Snowe
Specter
Stabenow
Sununu
Talent
Thune
Vitter
Voinovich
Wyden

NAYS--19

Allard
Bond
Bunning
Burns
Coburn
Cochran
Cornyn
DeMint
Enzi
Graham
Hagel
Inhofe
Kyl
Lott
McCain
Sessions
Stevens
Thomas
Warner

NOT VOTING--2

Rockefeller
Shelby

The amendment (No. 4265) was agreed to.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendments Nos. 4308, 4299, 4349, 4271, 4226, 4350, 4351, 4352, 4353,
4354, 4213, 4210, 4300, 4209, 4215 as Modified, 4355, 4356, 4217 as
Modified, 4357, 4358, 4359, and 4360, En Bloc

Mr. WARNER. Mr. President, the two managers have been working with
Members. We have reconciled a series of amendments, and I believe at
this point in time I will make the following statement: I have sent a
series of amendments to the desk which have been cleared by myself and
the ranking member. I ask, therefore, unanimous consent that the Senate
consider these amendments en bloc, the amendments be agreed to, and
motions to reconsider be laid on the table. Finally, I ask that any
statements relating to any of these individual amendments be printed at
this point in the Record.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Mr. President, reserving the right to object, and I will
not object because the amendments have been cleared on our side, I
would suggest that if we have a moment here, after the UC is accepted,
we read the list of the amendments so people will know their amendments
are in here. But if the leaders are ready to send us forward on our
next mission, then I would withdraw that suggestion.
Mr. WARNER. Mr. President, we first ask that you act on the unanimous
consent request.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The amendments were agreed to, as follows:

AMENDMENT NO. 4308

(Purpose: To provide for expansion of the Junior Reserve Officers'
Training Corps program)

At the end of subtitle B of title III, add the following:

SEC. __. EXPANSION OF JUNIOR RESERVE OFFICERS' TRAINING CORPS
PROGRAM.

(a) In General.--The Secretaries of the military
departments shall take appropriate actions to increase the
number of secondary educational institutions at which a unit
of the Junior Reserve Officers' Training Corps is organized
under chapter 102 of title 10, United States Code.
(b) Expansion Targets.--In increasing under subsection (a)
the number of secondary educational institutions at which a
unit of the Junior Reserve Officers' Training Corps is
organized, the Secretaries of the military departments shall
seek to organize units at an additional number of
institutions as follows:
(1) In the case of Army units, 15 institutions.

[[Page S6118]]

(2) In the case of Navy units, 10 institutions.
(3) In the case of Marine Corps units, 15 institutions.
(4) In the case of Air Force units, 10 institutions.

AMENDMENT NO. 4299

(Purpose: To require a report on the feasibility of establishing a
scholarship or fellowship program to educate future nuclear engineers
at the postsecondary and postgraduate levels)

At the end of subtitle B of title XXXI, add the following:

SEC. 3121. EDUCATION OF FUTURE NUCLEAR ENGINEERS.

(a) Findings.--Congress makes the following findings:
(1) The Department of Defense and the United States depend
on the specialized expertise of nuclear engineers who support
the development and sustainment of technologies including
naval reactors, strategic weapons, and nuclear power plants.
(2) Experts estimate that over 25 percent of the
approximately 58,000 workers in the nuclear power industry in
the United States will be eligible to retire within 5 years,
representing both a huge loss of institutional memory and a
potential national security crisis.
(3) This shortfall of workers is exacerbated by reductions
to the University Reactor Infrastructure and Education
Assistance program, which trains civilian nuclear scientists
and engineers. The defense and civilian nuclear industries
are interdependent on a limited number of educational
institutions to produce their workforce. A reduction in
nuclear scientists and engineers trained in the civilian
sector may result in a further loss of qualified personnel
for defense-related research and engineering.
(4) The Department of Defense's successful Science, Math
and Research for Transformation (SMART) scholarship-for-
service program serves as a good model for a targeted
scholarship or fellowship program designed to educate future
scientists at the postsecondary and postgraduate levels.
(b) Report on Education of Future Nuclear Engineers.--
(1) Study.--The Secretary of Energy shall study the
feasibility and merit of establishing a targeted scholarship
or fellowship program to educate future nuclear engineers at
the postsecondary and postgraduate levels.
(2) Report required.--The President shall submit to the
congressional defense committees, together with the budget
request submitted for fiscal year 2008, a report on the study
conducted by the Secretary of Energy under paragraph (1).

AMENDMENT NO. 4349

(Purpose: To require a National Academy of Sciences study on human
exposure to contaminated drinking water at Camp Lejeune, North
Carolina)

At the end of subtitle D of title III, add the following:

SEC. 352. NATIONAL ACADEMY OF SCIENCES STUDY ON HUMAN
EXPOSURE TO CONTAMINATED DRINKING WATER AT CAMP
LEJEUNE, NORTH CAROLINA.

(a) Study Required.--
(1) In general.--Not later than 60 days after the date of
the enactment of this Act, the Secretary of Navy shall enter
into an agreement with the National Academy of Sciences to
conduct a comprehensive review and evaluation of the
available scientific and medical evidence regarding
associations between pre-natal, child, and adult exposure to
drinking water contaminated with trichloroethylene (TCE) and
tetrachloroethylene (PCE) at Camp Lejeune, North Carolina, as
well as other pre-natal, child, and adult exposures to levels
of trichloroethylene and tetrachloroethylene similar to those
experienced at Camp Lejeune, and birth defects or diseases
and any other adverse health effects.
(2) Elements.--In conducting the review and evaluation, the
Academy shall review and summarize the scientific and medical
evidence and assess the strength of that evidence in
establishing a link or association between exposure to
trichloroethylene and tetrachloroethylene and each birth
defect or disease suspected to be associated with such
exposure. For each birth defect or disease reviewed, the
Academy shall determine, to the extent practicable with
available scientific and medical data, whether--
(A) a statistical association with such contaminant
exposures exists; and
(B) there exist plausible biological mechanisms or other
evidence of a causal relationship between contaminant
exposures and the birth defect or disease.
(3) Scope of review.--In conducting the review and
evaluation, the Academy shall include a review and evaluation
of--
(A) the toxicologic and epidemiologic literature on adverse
health effects of trichloroethylene and tetrachloroethylene,
including epidemiologic and risk assessment reports from
government agencies;
(B) recent literature reviews by the National Research
Council, Institute of Medicine, and other groups;
(C) the completed and on-going Agency for Toxic Substances
Disease Registry (ATSDR) studies on potential
trichloroethylene and tetrachloroethylene exposure at Camp
Lejeune; and
(D) published meta-analyses.
(4) Peer review.--The Academy shall obtain the peer review
of the report prepared as a result of the review and
evaluation under applicable Academy procedures.
(5) Submittal.--The Academy shall submit the report
prepared as a result of the review and evaluation to the
Secretary and Congress not later than 18 months after
entering into the agreement for the review and evaluation
under paragraph (1).
(b) Notice on Exposure.--
(1) Notice required.--Upon completion of the current
epidemiological study by the Agency for Toxic Substances
Disease Registry, known as the Exposure to Volatile Organic
Compounds in Drinking Water and Specific Birth Defects and
Childhood Cancers, United States Marine Corps Base Camp
Lejeune, North Carolina, the Commandant of the Marine Corps
shall take appropriate actions, including the use of national
media such as newspapers, television, and the Internet, to
notify former Camp Lejeune residents and employees who may
have been exposed to drinking water impacted by
trichloroethylene and tetrachloroethylene of the results of
the study.
(2) Elements.--The information provided by the Commandant
of the Marine Corps under paragraph (1) shall be prepared in
conjunction with the Agency for Toxic Substances Disease
Registry and shall include a description of sources of
additional information relating to such exposure, including,
but not be limited to, the following:
(A) A description of the events resulting in exposure to
contaminated drinking water at Camp Lejeune.
(B) A description of the duration and extent of the
contamination of drinking water at Camp Lejeune.
(C) The known and suspected health effects of exposure to
the drinking water impacted by trichloroethylene and
tetrachloroethylene at Camp Lejeune.

AMENDMENT NO. 4271

(Purpose: To enhance the authorities and responsibilities of the
National Guard Bureau)

At the end of title IX, add the following:

Subtitle D--National Guard Bureau Matters

SEC. 931. SHORT TITLE.

This title may be cited as the ``National Defense
Enhancement and National Guard Empowerment Act of 2006''.

SEC. 9322. EXPANDED AUTHORITY OF CHIEF OF THE NATIONAL GUARD
BUREAU AND EXPANDED FUNCTIONS OF THE NATIONAL
GUARD BUREAU.

(a) Expanded Authority.--
(1) In general.--Subsection (a) of section 10501 of title
10, United States Code, is amended by striking ``joint bureau
of the Department of the Army and the Department of the Air
Force'' and inserting ``joint activity of the Department of
Defense''.
(2) Purpose.--Subsection (b) of such section is amended by
striking ``between'' and all that follows and inserting
``between--
``(1)(A) the Secretary of Defense, the Joint Chiefs of
Staff, and the commanders of the combatant commands for the
United States, and (B) the Department of the Army and the
Department of the Air Force; and
``(2) the several States.''.
(b) Enhancements of Position of Chief of the National Guard
Bureau.--
(1) Advisory function on national guard matters.--
Subsection (c) of section 10502 of title 10, United States
Code, is amended by inserting ``to the Secretary of Defense,
to the Chairman of the Joint Chiefs of Staff,'' after
``principal advisor''.
(2) Grade.--Subsection (e) of such section, as redesignated
by paragraph (2)(A)(i) of this subsection, is further amended
by striking ``lieutenant general'' and inserting ``general''.
(3) Annual report to congress on validated requirements.--
Section 10504 of such title is amended by adding at the end
the following new subsection:
``(c) Annual Report on Validated Requirements.--Not later
than December 31 each year, the Chief of the National Guard
Bureau shall submit to Congress a report on the requirements
validated under section 10503a(b)(1) of this title during the
preceding fiscal year.''.
(c) Enhancement of Functions of National Guard Bureau.--
(1) Development of charter.--Section 10503 of title 10,
United States Code, is amended--
(A) in the matter preceding paragraph (1), by striking
``The Secretary of the Army and the Secretary of the Air
Force shall jointly develop'' and inserting ``The Secretary
of Defense, in consultation with the Secretary of the Army
and the Secretary of the Air Force, shall develop''; and
(B) in paragraph (12), by striking ``the Secretaries'' and
inserting ``the Secretary of Defense''.
(2) Additional general functions.--Such section is further
amended--
(A) by redesignating paragraph (12), as amended by
paragraph (1)(B) of this subsection, as paragraph (13); and
(B) by inserting after paragraph (11) the following new
paragraph (12):
``(12) Facilitating and coordinating with other Federal
agencies, and with the several States, the use of National
Guard personnel and resources for and in contingency
operations, military operations other than war, natural
disasters, support of civil authorities, and other
circumstances.''.
(3) Military assistance for civil authorities.--Chapter
1011 of such title is further amended by inserting after
section 10503 the following new section:

[[Page S6119]]

``Sec. 10503a. Functions of National Guard Bureau: military
assistance to civil authorities

``(a) Identification of Additional Necessary Assistance.--
The Chief of the National Guard Bureau shall--
``(1) identify gaps between Federal and State capabilities
to prepare for and respond to emergencies; and
``(2) make recommendations to the Secretary of Defense on
programs and activities of the National Guard for military
assistance to civil authorities to address such gaps.
``(b) Scope of Responsibilities.--In meeting the
requirements of subsection (a), the Chief of the National
Guard Bureau shall, in coordination with the Adjutant
Generals of the States, have responsibilities as follows:
``(1) To validate the requirements of the several States
and Territories with respect to military assistance to civil
authorities.
``(2) To develop doctrine and training requirements
relating to the provision of military assistance to civil
authorities.
``(3) To administer amounts provided the National Guard for
the provision of military assistance to civil authorities.
``(4) To carry out any other responsibility relating to the
provision of military assistance to civil authorities as the
Secretary of Defense shall specify.
``(c) Assistance.--The Chairman of the Joint Chiefs of
Staff shall assist the Chief of the National Guard Bureau in
carrying out activities under this section.
``(d) Consultation.--The Chief of the National Guard Bureau
shall carry out activities under this section in consultation
with the Secretary of the Army and the Secretary of the Air
Force.''.
(4) Limitation on increase in personnel of national guard
bureau.--The Secretary of Defense shall, to the extent
practicable, ensure that no additional personnel are assigned
to the National Guard Bureau in order to address
administrative or other requirements arising out of the
amendments made by this subsection.
(d) Conforming and Clerical Amendments.--
(1) Conforming amendment.--The heading of section 10503 of
such title is amended to read as follows:

``Sec. 10503. Functions of National Guard Bureau: charter''.

(2) Clerical amendment.--The table of sections at the
beginning of chapter 1011 of such title is amended by
striking the item relating to section 10503 and inserting the
following new items:
``10503. Functions of National Guard Bureau: charter.
``10503a. Functions of National Guard Bureau: military assistance to
civil authorities.''.

SEC. 933. REQUIREMENT THAT POSITION OF DEPUTY COMMANDER OF
THE UNITED STATES NORTHERN COMMAND BE FILLED BY
A QUALIFIED NATIONAL GUARD OFFICER.

(a) In General.--The position of Deputy Commander of the
United States Northern Command shall be filled by a qualified
officer of the National Guard who is eligible for promotion
to the grade of lieutenant general.
(b) Purpose.--The purpose of the requirement in subsection
(a) is to ensure that information received from the National
Guard Bureau regarding the operation of the National Guard of
the several States is integrated into the plans and
operations of the United States Northern Command.

AMENDMENT NO. 4226

(Purpose: To clarify the applicability of the Uniform Code of Military
Justice during a time of war)

At the end of subtitle C of title V, add the following:

SEC. 552. CLARIFICATION OF APPLICATION OF UNIFORM CODE OF
MILITARY JUSTICE DURING A TIME OF WAR.

Paragraph (10) of section 802(a) of title 10, United States
Code (article 2(a) of the Uniform Code of Military Justice),
is amended by striking ``war'' and inserting ``declared war
or a contingency operation''.

AMENDMENT NO. 4350

(Purpose: To modify authorities relating to the composition and
appointment of members of the United States Marine Band and the United
States Marine Drum and Bugle Corps)

At the end of subtitle A of title IX, add the following:

SEC. 903. UNITED STATES MARINE BAND AND UNITED STATES MARINE
DRUM AND BUGLE CORPS.

(a) In General.--Section 6222 of title 10, United States
Code, is amended to read as follows:

``Sec. 6222. United States Marine Band; United States Marine
Drum and Bugle Corps: composition; appointment and
promotion of members

``(a) United States Marine Band.--The band of the Marine
Corps shall be composed of one director, two assistant
directors, and other personnel in such numbers and grades as
the Secretary of the Navy determines to be necessary.
``(b) United States Marine Drum and Bugle Corps.--The drum
and bugle corps of the Marine Corps shall be composed of one
commanding officer and other personnel in such numbers and
grades as the Secretary of the Navy determines to be
necessary.
``(c) Appointment and Promotion.--(1) The Secretary of the
Navy shall prescribe regulations for the appointment and
promotion of members of the Marine Band and members of the
Marine Drum and Bugle Corps.
``(2) The President may from time to time appoint members
of the Marine Band and members of the Marine Drum and Bugle
Corps to grades not above the grade of captain. The authority
of the President to make appointments under this paragraph
may be delegated only to the Secretary of Defense.
``(3) The President, by and with the advice and consent of
the Senate, may from time to time appoint any member of the
Marine Band or of the Marine Drum and Bugle Corps to a grade
above the grade of captain.
``(d) Retirement.--Unless otherwise entitled to higher
retired grade and retired pay, a member of the Marine Band or
Marine Drum and Bugle Corps who holds, or has held, an
appointment under this section is entitled, when retired, to
be retired in, and with retired pay based on, the highest
grade held under this section in which the Secretary of the
Navy determines that such member served satisfactorily.
``(e) Revocation of Appointment.--The Secretary of the Navy
may revoke any appointment of a member of the Marine Band or
Marine Drum and Bugle Corps. When a member's appointment to a
commissioned grade terminates under this subsection, such
member is entitled, at the option of such member--
``(1) to be discharged from the Marine Corps; or
``(2) to revert to the grade and status such member held at
the time of appointment under this section.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 565 of such title is amended by striking
the item relating to section 6222 and inserting the following
new item:
``6222. United States Marine Band; United States Marine Drum and Bugle
Corps: composition; appointment and promotion of
members.''.

Amendment No. 4351

(The amendment is printed in today's Record under ``Text of
Amendments.'')

AMENDMENT NO. 4352

(Purpose: To authorize the temporary use of the National Guard to
provide support for border security along the southern land border of
the United States)

At the end of subtitle E of title X, add the following:

SEC. 1044. TEMPORARY NATIONAL GUARD SUPPORT FOR SECURING THE
SOUTHERN LAND BORDER OF THE UNITED STATES.

(a) Authority To Provide Assistance.--(1) With the approval
of the Secretary of Defense, the Governor of a State may
order any units or personnel of the National Guard of such
State to annual training duty under section 502(a) of title
32, United States Code, to carry out in any State along the
Southern land border of the United States the activities
authorized in subsection (b) for the purpose of securing such
border. Such duty shall not exceed 21 days in any year.
(2) With the approval of the Secretary of Defense, the
Governor of a State may order any units or personnel of the
National Guard of such State to perform duty under section
502(f) of title 32, United States Code, to provide command,
control, and continuity of support for units and personnel
performing annual training duty under paragraph (1).
(b) Authorized Activities.--The activities authorized by
this subsection are the following:
(1) Ground surveillance activities.
(2) Airborne surveillance activities.
(3) Logistical support.
(4) Provision of translation services and training.
(5) Provision of administrative support services.
(6) Provision of technical training services.
(7) Provision of emergency medical assistance and services.
(8) Provision of communications services.
(9) Rescue of aliens in peril.
(10) Construction of roadways, patrol roads, fences,
barriers, and other facilities to secure the southern land
border of the United States.
(11) Ground and air transportation.
(c) Cooperative Agreements.--Units and personnel of the
National Guard of a State may perform activities in another
State under subsection (a) only pursuant to the terms of an
emergency management assistance compact or other cooperative
arrangement entered into between the Governors of such States
for purposes of this section, and only with the approval of
the Secretary of Defense.
(d) Coordination of Assistance.--The Secretary of Homeland
Security shall, in consultation with the Secretary of Defense
and the Governors of the States concerned, coordinate the
performance of activities under this section by units and
personnel of the National Guard.
(e) Annual Training.--Annual training duty performed by
members of the National Guard under this section shall be
appropriate for the units and individual members concerned,
taking into account the types of units and military
occupational specialties of individual members performing
such duty.
(f) Prohibition on Direct Participation in Law
Enforcement.--Activities carried out under this section shall
not include the direct participation of a member of the
National Guard in a search, seizure, arrest, or similar
activity.
(g) Duration of Authority.--The authority of this section
shall expire on January 1, 2009.
(h) Definitions.--In this section:

[[Page S6120]]

(1) The term ``Governor of a State'' means, in the case of
the District of Columbia, the Commanding General of the
National Guard of the District of Columbia.
(2) The term ``State'' means each of the several States and
the District of Columbia, the Commonwealth of Puerto Rico,
Guam, and the Virgin Islands.
(3) The term ``State along the southern land border of the
United States'' means each of the following:
(A) The State of Arizona.
(B) The State of California.
(C) The State of New Mexico.
(D) The State of Texas.

AMENDMENT NO. 4353

(Purpose: To ensure government performance of critical acquisition
functions)

At the end of subtitle A of title VIII, add the following:

SEC. 812. GOVERNMENT PERFORMANCE OF CRITICAL ACQUISITION
FUNCTIONS.

(a) Government Performance of Functions.--
(1) In general.--Section 2383 of title 10, United States
Code is amended--
(A) by redesignating subsection (b) as subsection (c); and
(B) by inserting after subsection (a) the following new
subsection (b):
``(b) Government Performance of Critical Acquisition
Functions.--The head of an agency shall ensure that, at a
minimum, for each major defense acquisition program and each
major automated information system program, each of the
following positions is performed by a properly qualified
full-time Federal military or civilian employee:
``(1) Program manager.
``(2) Deputy program manager.
``(3) Chief engineer.
``(4) Systems engineer.
``(5) Cost estimator.
(2) Definitional matters.--Subsection (c) of such section,
as redesignated by paragraph (1)(A) of this subsection, is
further amended by adding at the end the following new
paragraphs:
``(5) The term `major defense acquisition program' has the
meaning given such term in section 2430(a) of this title.
``(6) The term `major automated information system program'
has the meaning given such term in section 2445a(a) of this
title.''.
(b) Effective Date and Phase-in.--
(1) Effective date.--The amendments made by subsection (a)
shall take effect on the date that is one year after the date
of enactment of this Act.
(2) Temporary waver.--During the two years period beginning
on the effective date specified in paragraph (1), the head of
an agency may waive the requirement in subsection (b) of
section 2383 of title 10, United States Code, as amended by
subsection (a) of this section, with regard to a specific
function on a particular program upon a written determination
by the head of the agency that a properly qualified full-time
Federal military or civilian employee cannot reasonably be
made available to perform such function.

AMENDMENT NO. 4354

(Purpose: To require a report on technologies designed to neutralize or
defeat the threat to military rotary wing aircraft posed by portable
air defense systems and rocket propelled grenades)

At the end of subtitle G of title X, add the following:

SEC. 1066. REPORT ON TECHNOLOGIES FOR NEUTRALIZING OR
DEFEATING THREATS TO MILITARY ROTARY WING
AIRCRAFT FROM PORTABLE AIR DEFENSE SYSTEMS AND
ROCKET PROPELLED GRENADES.

(a) In General.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense shall
submit to Congress a report on technologies for neutralizing
or defeating threats to military rotary wing aircraft posed
by portable air defense systems and rocket propelled grenades
that are being researched, developed, employed, or considered
by the United States Government or the North Atlantic Treaty
Organization.
(b) Content.--The report required under subsection (a)
shall include--
(1) an assessment of the expected value and utility of the
technologies, particularly with respect to--
(A) the saving of lives;
(B) the ability to reduce the vulnerability of aircraft;
and
(C) the enhancement of the ability of aircraft and their
crews to accomplish assigned missions;
(2) an assessment of the potential costs of developing and
deploying such technologies;
(3) a description of efforts undertaken to develop such
technologies, including--
(A) non-lethal counter measures;
(B) lasers and other systems designed to dazzle, impede, or
obscure threatening weapon or their users;
(C) direct fire response systems;
(D) directed energy weapons; and
(E) passive and active systems; and
(4) a description of any impediments to the development of
such technologies, such as legal restrictions under the law
of war, treaty restrictions under the Protocol on Blinding
Lasers, and political obstacles such as the reluctance of
other allied countries to pursue such technologies.

AMENDMENT NO. 4213

(Purpose: To provide for a review of the legal status of the Junior
Reserve Officers' Training Corps program)

At the end of subtitle D of title V, add the following:

SEC. 569. REVIEW OF LEGAL STATUS OF JUNIOR ROTC PROGRAM.

(a) Review.--The Secretary of Defense shall conduct a
review of the 1976 legal opinion issued by the General
Counsel of the Department of Defense regarding instruction of
non-host unit students participating in Junior Reserve
Officers' Training Corps programs. The review shall consider
whether changes to law after the issuance of that opinion
allow in certain circumstances for the arrangement for
assignment of instructors that provides for the travel of an
instructor from one educational institution to another once
during the regular school day for the purposes of the Junior
Reserve Officers' Training Corps program as an authorized
arrangement that enhances administrative efficiency in the
management of the program. If the Secretary, as a result of
the review, determines that such authority is not available,
the Secretary should also consider whether such authority
should be available and whether there should be authority to
waive the restrictions under certain circumstances.
(b) Report.--The Secretary shall submit to the Committee on
Armed Services of the Senate and the Committee on Armed
Services of the House of Representatives a report containing
the results of the review not later than 180 days after the
date of the enactment of this Act.
(c) Interim Authority.--A current institution that has more
than 70 students and is providing support to another
educational institutional with more than 70 students and has
been providing for the assignment of instructors from one
school to the other may continue to provide such support
until 180 days following receipt of the report under
subsection (b).

AMENDMENT NO. 4210

(Purpose: Expressing the sense of the Senate on notice to Congress of
the recognition of members of the Armed Forces for extraordinary acts
of heroism, bravery, and achievement)

At the end of subtitle F of title V, add the following:

SEC. 587. SENSE OF SENATE ON NOTICE TO CONGRESS OF
RECOGNITION OF MEMBERS OF THE ARMED FORCES FOR
EXTRAORDINARY ACTS OF BRAVERY, HEROISM, AND
ACHIEVEMENT.

It is the sense of the Senate that the Secretary of Defense
or the Secretary of the military department concerned should,
upon awarding a medal to a member of the Armed Forces or
otherwise commending or recognizing a member of the Armed
Forces for an act of extraordinary heroism, bravery,
achievement, or other distinction, notify the Committee on
Armed Services of the Senate and House of Representatives,
the Senators from the State in which such member resides, and
the Member of the House of Representatives from the district
in which such member resides of such extraordinary award,
commendation, or recognition.

AMENDMENT NO. 4300

(Purpose: Relating to multi-spectral imaging capabilities)

At the end of subtitle D of title I, add the following:

SEC. 147. MULTI-SPECTRAL IMAGING CAPABILITIES.

(a) Findings.--The Senate makes the following findings:
(1) The budget of the President for fiscal year 2007, as
submitted to Congress under section 1105(a) of title 31,
United States Code, and the current Future-Years Defense
Program adopts an Air Force plan to retire the remaining
fleet of U-2 aircraft by 2011.
(2) This retirement would eliminate the multi-spectral
capability provided by the electro-optical/infrared (EO/IR)
Senior Year Electro-optical Reconnaissance System (SYERS-2)
high-altitude imaging system.
(3) The system referred to in paragraph (2) provides high-
resolution, long-range, day-and-night image intelligence.
(4) The infrared capabilities of the system referred to in
paragraph (2) can defeat enemy efforts to use camouflage or
concealment, as well as provide images through poor
visibility and smoke.
(5) Although the Air Force has previously recognized the
military value of Senior Year Electro-optical Reconnaissance
System sensors, the Air Force has no plans to migrate this
capability to any platform remaining in the fleet.
(6) The Air Force could integrate such capabilities onto
the Global Hawk platform to retain this capability for
combatant commanders.
(7) The Nation risks a loss of an important intelligence
gathering capability if this capability is not transferred to
another platform.
(b) Sense of Senate.--It is the sense of the Senate that
the Air Force should investigate ways to retain the multi-
spectral imaging capabilities provided by the Senior Year
Electro-optical Reconnaissance System high-altitude imaging
system after the retirement of the U-2 aircraft fleet.
(c) Report Requirement.--The Secretary of the Air Force
shall submit to the congressional defense committees, at the
same time the budget of the President for fiscal year 2008 is
submitted to Congress under section 1105(a) of title 31,
United States Code, a plan for migrating the capabilities
provided by the Senior Year Electro-optical Reconnaissance
System high-altitude imaging system from the U-2 aircraft to
the Global Hawk

[[Page S6121]]

platform before the retirement of the U-2 aircraft fleet in
2011.

AMENDMENT NO. 4209

(Purpose: To commend the men and women of the Armed Forces of the
United States in Iraq for their on-going service to the United States)

At the the end of subtitle I of title X, insert the
following:

SEC. 1084. SENSE OF CONGRESS REGARDING THE MEN AND WOMEN OF
THE ARMED FORCES OF THE UNITED STATES IN IRAQ.

(a) Findings.--Congress makes the following findings:
(1) In 2003, members of the Armed Forces of the United
States successfully liberated the people of Iraq from the
tyrannical regime of Saddam Hussein.
(2) Members of the Armed Forces of the United States have
bravely risked their lives everyday over the last 3 years to
protect the people of Iraq from terror attacks by Al Qaeda
and other extremist organizations.
(3) Members of the Armed Forces of the United States have
conducted dozens of operations with coalition forces to
track, apprehend, and eliminate terrorists in Iraq.
(4) Members of the Armed Forces of the United States have
helped sustain political progress in Iraq by assisting the
people of Iraq as they exercised their right to choose their
leaders and draft their own constitution.
(5) Members of the Armed Forces of the United States have
taught over 150,000 soldiers of Iraq to respect civilian
authority, conduct counter-insurgency operations, provide
meaningful security, and protect the people of Iraq from
terror attacks.
(6) Members of the Armed Forces of the United States have
built new schools, hospitals, and public works throughout
Iraq.
(7) Members of the Armed Forces of the United States have
helped rebuild Iraq's dilapidated energy sector.
(8) Members of the Armed Forces of the United States have
restored electrical power and sewage waste treatment for the
people of Iraq.
(9) Members of the Armed Forces of the United States have
established lasting and productive relationships with local
leaders in Iraq and secured the support of a majority of the
populace of Iraq.
(10) Members of the Armed Forces of the United States have
courageously endured sophisticated terror tactics, including
deadly car-bombs, sniper attacks, and improvised explosive
devices.
(11) Members of the Armed Forces of the United States have
paid a high cost in order to defeat the terrorists, defend
innocent civilians, and protect democracy from those who
desire the return of oppression and extremism to Iraq.
(12) Members of the Armed Forces of the United States have
performed their duty in Iraq with an unflagging commitment to
the highest ideals and traditions of the United States and
the Armed Forces.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the men and women in uniform of the Armed Forces of the
United States in Iraq should be commended for their on-going
service to the United States, their commitment to the ideals
of the United States, and their determination to win the
Global War on Terrorism;
(2) gratitude should be expressed to the families of the
Armed Forces of the United States, especially those families
who have lost loved ones in Operational Iraqi Freedom; and
(3) the people of the United States should honor those who
have paid the ultimate sacrifice and assist those families
who have loved ones in the Armed Forces of the United States
deployed overseas.

Amendment no. 4215

(Purpose: To provide for 2 programs to authorize the use of leave by
cargivers for family members of certain individuals performing military
service, and for other purposes)

At the appropriate place, insert the following:

SEC. __ PROGRAMS FOR USE OF LEAVE BY CAREGIVERS FOR FAMILY
MEMBERS OF INDIVIDUALS PERFORMING CERTAIN
MILITARY SERVICE.

(a) Federal Employees Program.--
(1) Definitions.--In this subsection:
(A) Caregiver.--The term ``caregiver'' means an individual
who--
(i) is an employee;
(ii) is at least 21 years of age; and
(iii) is capable of self care and care of children or other
dependent family members of a qualified member of the Armed
Forces.
(B) Covered period of service.--The term ``covered period
of service'' means any period of service performed by an
employee as a caregiver while the individual who designated
the caregiver under paragraph (3) remains a qualified member
of the Armed Forces.
(C) Employee.--The term ``employee'' has the meaning given
under section 6331 of title 5, United States Code.
(D) Family member.--The term ``family member'' includes--
(i) individuals for whom the qualified member of the Armed
Forces provides medical, financial, and logistical support
(such as housing, food, clothing, or transportation); and
(ii) children under the age of 19 years, elderly adults,
persons with disabilities, and other persons who are unable
to care for themselves in the absence of the qualified member
of the Armed Forces.
(E) Qualified member of the armed forces.--The term
``qualified member of the Armed Forces'' means--
(i) a member of a reserve component of the Armed Forces as
described under section 10101 of title 10, United States
Code, who has received notice to report to, or is serving on,
active duty in the Armed Forces in support of a contingency
operation as defined under section 101(a)(13) of title 10,
United States Code; or
(ii) a member of the Armed Forces on active duty who is
eligible for hostile fire or imminent danger special pay
under section 310 of title 37, United States Code.
(2) Establishment of program.--The Office of Personnel
Management shall establish a program to authorize a caregiver
to--
(A) use any sick leave of that caregiver during a covered
period of service in the same manner and to the same extent
as annual leave is used; and
(B) use any leave available to that caregiver under
subchapter III or IV of chapter 63 of title 5, United States
Code, during a covered period of service as though that
covered period of service is a medical emergency.
(3) Designation of caregiver.--
(A) In general.--A qualified member of the Armed Forces
shall submit a written designation of the individual who is
the caregiver for any family member of that member of the
Armed Forces during a covered period of service to the
employing agency and the Office of Personnel Management.
(B) Designation of spouse.--Notwithstanding paragraph
(1)(A)(ii), an individual less than 21 years of age may be
designated as a caregiver if that individual is the spouse of
the qualified member of the Armed Forces making the
designation.
(4) Use of caregiver leave.--Leave may only be used under
this subsection for purposes directly relating to, or
resulting from, the designation of an employee as a
caregiver.
(5) Regulations.--Not later than 120 days after the date of
enactment of this Act, the Office of Personnel Management
shall prescribe regulations to carry out this subsection.
(6) Termination.--The program under this subsection shall
terminate on December 31, 2007.
(b) Voluntary Private Sector Leave Program.--
(1) Definitions.--
(A) Caregiver.--The term ``caregiver'' means an individual
who--
(i) is an employee;
(ii) is at least 21 years of age; and
(iii) is capable of self care and care of children or other
dependent family members of a qualified member of the Armed
Forces.
(B) Covered period of service.--The term ``covered period
of service'' means any period of service performed by an
employee as a caregiver while the individual who designated
the caregiver under paragraph (4) remains a qualified member
of the Armed Forces.
(C) Employee.--The term ``employee'' means an employee of a
business entity participating in the program under this
subsection.
(D) Family member.--The term ``family member'' includes--
(i) individuals for whom the qualified member of the Armed
Forces provides medical, financial, and logistical support
(such as housing, food, clothing, or transportation); and
(ii) children under the age of 19 years, elderly adults,
persons with disabilities, and other persons who are unable
to care for themselves in the absence of the qualified member
of the Armed Forces.
(E) Qualified member of the armed forces.--The term
``qualified member of the Armed Forces'' means--
(i) a member of a reserve component of the Armed Forces as
described under section 10101 of title 10, United States
Code, who has received notice to report to, or is serving on,
active duty in the Armed Forces in support of a contingency
operation as defined under section 101(a)(13) of title 10,
United States Code; or
(ii) a member of the Armed Forces on active duty who is
eligible for hostile fire or imminent danger special pay
under section 310 of title 37, United States Code.
(2) Establishment of program.--
(A) In general.--The Secretary of Labor may establish a
program to authorize employees of business entities described
under paragraph (3) to use sick leave, or any other leave
available to an employee, during a covered period of service
in the same manner and to the same extent as annual leave (or
its equivalent) is used.
(B) Exception.--Subparagraph (A) shall not apply to leave
made available under the Family and Medical Leave Act of 1993
(29 U.S.C. 2601 et seq.).
(3) Voluntary business participation.--The Secretary of
Labor may solicit business entities to voluntarily
participate in the program under this subsection.
(4) Designation of caregiver.--
(A) In general.--A qualified member of the Armed Forces
shall submit a written designation of the individual who is
the caregiver for any family member of that member of the
Armed Forces during a covered period of service to the
employing business entity.
(B) Designation of spouse.--Notwithstanding paragraph
(1)(A)(ii), an individual less than 21 years of age may be
designated

[[Page S6122]]

as a caregiver if that individual is the spouse of the
qualified member of the Armed Forces making the designation.
(5) Use of caregiver leave.--Leave may only be used under
this subsection for purposes directly relating to, or
resulting from, the designation of an employee as a
caregiver.
(6) Regulations.--Not later than 120 days after the date of
enactment of this Act, the Secretary of Labor may prescribe
regulations to carry out this subsection.
(7) Termination.--The program under this subsection shall
terminate on December 31, 2007.
(c) GAO Report.--Not later than June 30, 2007, the
Government Accountability Office shall submit a report to
Congress on the programs under subsections (a) and (b) that
includes--
(1) an evaluation of the success of each program; and
(2) recommendations for the continuance or termination of
each program.

Amendment no. 4355

(Purpose: To modify the increase in the fiscal year 2006 general
transfer authority)

On page 380, line 18, strike ``$3,750,000,000'' and insert
``$5,000,000,000''.

Amendment no. 4356

(Purpose: To authorize additional emergency supplemental appropriations
for fiscal year 2006)

Strike section 1002 and insert the following:

SEC. 1002. AUTHORIZATION OF ADDITIONAL EMERGENCY SUPPLEMENTAL
APPROPRIATIONS FOR FISCAL YEAR 2006.

(a) Iraq, Afghanistan, and the Global War on Terror.--
Amounts authorized to be appropriated to the Department of
Defense for fiscal year 2006 in the National Defense
Authorization Act for Fiscal Year 2006 (Public Law 109-163)
are hereby adjusted, with respect to any such authorized
amount, by the amount by which appropriations pursuant to
such authorization are increased by a supplemental
appropriation, or decreased by a rescission, or both, or are
increased by a transfer of funds, pursuant to title I of the
Emergency Supplemental Appropriations Act for Defense, the
Global War on Terror, and Hurricane Recovery, 2006 (Public
Law 109-234).
(b) Hurricane Disaster Relief and Recovery.--Amounts
authorized to be appropriated to the Department of Defense
for fiscal year 2006 in the National Defense Authorization
Act for Fiscal Year 2006 are hereby adjusted, with respect to
any such authorized amount, by the amount by which
appropriations pursuant to such authorization are increased
by a supplemental appropriation, or decreased by a
rescission, or both, or are increased by a transfer of funds,
pursuant to title II of the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and
Hurricane Recovery, 2006.
(c) Border Security.--Amounts authorized to be appropriated
to the Department of Defense for fiscal year 2006 in the
National Defense Authorization Act for Fiscal Year 2006 are
hereby adjusted, with respect to any such authorized amount,
by the amount by which appropriations pursuant to such
authorization are increased by a supplemental appropriation,
or decreased by a rescission, or both, or are increased by a
transfer of funds, pursuant to title V of the Emergency
Supplemental Appropriations Act for Defense, the Global War
on Terror, and Hurricane Recovery, 2006.

Amendment no. 4217

(Purpose: To require a report on the future aerial training airspace
requirements of the Department of Defense)

At the end of subtitle D of title III, add the following:

SEC. 352. REPORT ON AERIAL TRAINING AIRSPACE REQUIREMENTS OF
THE DEPARTMENT OF DEFENSE.

(a) Findings.--Congress makes the following findings:
(1) Access to and use of available and unfettered aerial
training airspace is critical for preserving aircrew
warfighting proficiency and the ability to test, evaluate,
and improve capabilities of both personnel and equipment
within the most realistic training environments possible.
(2) The growth of civilian and commercial aviation traffic
and the rapid expansion of commercial and general air traffic
lanes across the continental Unites States has left few
remaining areas of the country available for realistic air
combat training or expansion of existing training areas.
(3) Many Military Operating Areas (MOAs) originally
established in what was once open and uncongested airspace
are now encroached upon by a heavy volume of commercial and
general air traffic, making training more difficult and
potentially hazardous.
(4) Some aerial training areas in the upper great plains,
western States, and Gulf coast remain largely free from
encroachment and available for increased use, expansion, and
preservation for the future.
(b) Sense of Congress.--It is the sense of Congress that
the Department of Defense should--
(1) establish a policy to identify military aerial training
areas that are projected to remain viable and free from
encroachment well into the 21st century;
(2) determine aerial training airspace requirements to meet
future training and airspace requirements of current and next
generation military aircraft; and
(3) undertake all necessary actions in a timely manner,
including coordination with the Federal Aviation
Administration, to preserve, and if necessary, expand those
areas of airspace to meet present and future training
requirements.
(c) Report.--Not later than 120 days after the date of the
enactment of this Act, the Secretary of Defense shall submit
to the congressional defense committees a report setting
forth a proposed plan to preserve and, if necessary, expand
available aerial training airspace to meet the projected
needs of the Department of Defense for such airspace through
2025.

Amendment no. 4357

(Purpose: To establish a goal of the Department of Defense relating to
the use of renewable energy to meet electricity needs)

At the end of subtitle B of title XXVIII, add the
following:

SEC. 2828. USE OF RENEWABLE ENERGY TO MEET ELECTRICITY NEEDS.

It shall be the goal of the Department of Defense to ensure
that the Department--
(1) produces or procures not less than 25 percent of the
total quantity of electric energy it consumes within its
facilities and in its activities during fiscal year 2025 and
each fiscal year thereafter from renewable energy sources (as
defined in section 203(b) of the Energy Policy Act of 2005
(42 U.S.C. 15852(b)); and
(2) produces or procures such renewable energy when it is
life-cycle cost effective to do so (as defined in section 708
of Executive Order 13123 (42 U.S.C. 8251 note; relating to
greening the Government through efficient energy
management)).

Amendment no. 4358

(Purpose: To modify the limitation on availability of funds for
Department of Defense participation in multinational military centers
of excellence)

On page 463, beginning on line 8, strike ``paragraph (1) in
fiscal year 2007 for the expenses and costs'' and insert
``paragraph (1)(A) in fiscal year 2007 for the expenses''.

Amendment no. 4359

(Purpose: To require a report on actions to reduce the consumption of
petroleum-based fuel by the Department of Defense)

At the end of subtitle D of title III, add the following:

SEC. 352. REPORT ON ACTIONS TO REDUCE DEPARTMENT OF DEFENSE
CONSUMPTION OF PETROLEUM-BASED FUEL.

(a) Report Required.--Not later than one year after the
date of the enactment of this Act, the Secretary of Defense
shall submit to the Committees on Armed Services of the
Senate and the House of Representatives a report on the
actions taken, and to be taken, by the Department of Defense
to reduce the consumption by the Department of petroleum-
based fuel.
(b) Elements.--The report shall include the status of
implementation by the Department of the requirements of the
following:
(1) The Energy Policy Act of 2005 (Public Law 109-58).
(2) The Energy Policy Act of 1992. (Public Law 102-486)
(3) Executive Order 13123.
(4) Executive Order 13149.
(5) Any other law, regulation, or directive relating to the
consumption by the Department of petroleum-based fuel.

Amendment no. 4360

(Purpose: To require a report assessing the desirability and
feasibility of conducting joint officer promotion selection boards)

At the end of part II of subtitle A of title V, add the
following:

SEC. 521. REPORT ON JOINT OFFICER PROMOTION BOARDS.

(a) Report Required.--Not later than June 1, 2007, the
Secretary of Defense shall submit to the Committee on Armed
Services of the Senate and House of Representatives a report
on the desirability and feasibility of conducting joint
officer promotion selection boards.
(b) Elements.--The report under subsection (a) shall
include--
(1) a discussion of the limitations in existing officer
career paths and promotion procedures that might warrant the
conduct of joint officer promotion selection boards;
(2) an identification of the requirements for officers for
which joint officer promotion selection boards would be
advantageous;
(3) recommendations on methods to demonstrate how joint
officer promotion selection boards might be structured, and
an evaluation of the feasibility of such methods; and
(4) any proposals for legislative action that the Secretary
considers appropriate.
Mr. JEFFORDS. Mr. President, I am pleased that my amendment to
support military families was accepted today by the Senate by unanimous
consent to S. 2766, the National Defense Authorization Act of fiscal
year 2007. Let me begin by thanking my good friend, the Senator from
Wisconsin, Mr. Feingold, who joined me last year in introducing the
legislation upon which this amendment is based, S. 1888, the Military
Family Support Act. His advocacy for this issue and for the families of
our men and women in uniform is greatly appreciated. I would also like
to recognize Senator Dayton, Senator Lautenberg, and Senator Murray for
their support for this amendment. Of course, the Senate and our Nation
benefit greatly from the leadership on national defense issues of the
Senator from Virginia, Mr. Warner, chairman of the

[[Page S6123]]

Senate Armed Services Committee, and the Senator from Michigan, Mr.
Levin. I thank them both and their staff for their assistance with this
amendment.
I would also like to acknowledge the cooperation of Senate Homeland
Security and Government Affairs Committee Chairwoman Collins and
Ranking Member Lieberman and the expertise of their staff. They were
very helpful in the process that has led to this amendment, and I
appreciate their assistance.
At about this time last year, I was contacted by a group of
Vermonters who were trying to help their coworkers with family members
serving in Iraq as part of the Vermont National Guard. I was impressed
by the generosity of Vermonters who wanted to do all they could to help
ease the strains of military deployments felt by their friends and
neighbors. I was also reminded of how a family's day-to-day life is
disrupted by a deployment of a loved one overseas.
This amendment calls for two pilot programs to help with family
disruptions due to an overseas deployment. The first pilot program,
administered by the Office of Personnel Management, OPM, would
authorize Federal employees who have been designated by a member of the
Armed Forces as ``caregivers'', as defined by the Department of
Defense, DOD, to use their leave in a more flexible manner. No new
leave would be given to any employees. This amendment simply makes
leave already available more useful during stressful times for military
families. The second pilot program allows the Department of Labor, DOL,
to solicit businesses to voluntarily take part in a program to offer
more accommodating leave to their employees. This amendment does not
include in its scope the Family Medical Leave Act, FMLA, and it does
not require any private sector entity to participate.
Mr. President, in closing, this amendment aims to make life a little
easier for those who are already giving so much to our country and to
their communities.
Mr. WARNER. Mr. President, I move to reconsider the vote.
Mr. LEVIN. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. WARNER. Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Martinez). The Senator from Wyoming.
Mr. ENZI. Mr. President, I ask unanimous consent that the pending
amendment be set aside and this amendment be sent to the desk.
The PRESIDING OFFICER. Is there objection?
Mr. LEVIN. Mr. President, reserving the right to object, I am
wondering whether we have an order here where we are alternating and,
if so, what the situation is.
Mr. WARNER. Mr. President, I would respond that we have concluded all
the work at the moment. I believe our leaders are working out a
procedure by which the minimum wage amendments are being addressed.
Mr. LEVIN. I wonder, as the alternative now comes to us, whether we
could let Senator Harkin first go before Senator Enzi. On the other
hand, if it is your turn in rotation, then we would have no objection.
Mr. WARNER. Mr. President, at this moment I think there has been a
request to go off of our bill. Is that the request of the Senator from
Wyoming?
Mr. ENZI. No, Mr. President. Senator Kennedy filed an amendment that
dealt with the minimum wage. I actually won't send mine to the desk
right now, but I would like to comment on that right now.
Mr. WARNER. The Senator is quite correct, quite correct. We will
remain on the bill for the purpose of debate on such amendments
relative to minimum wage that may be brought forward, correct. Senator
Kennedy's is at the desk and you wish to speak to it?
Mr. ENZI. That is correct. Of course, I am going to ask that he
withdraw that amendment and I do not propose my amendment because they
don't have to do with the Department of Defense authorization.
The PRESIDING OFFICER. Does the Senator request to set aside the
pending amendment?
Mr. ENZI. The Senator withdraws his request to do that but requests
the floor.
The PRESIDING OFFICER. The Senator has the floor.
Mr. ENZI. Mr. President, I know that some people who are following
this debate might be wondering how the minimum wage relates to
legislation that authorizes national security programs in the
Department of Defense and the Department of Energy for the next year,
and that is certainly a valid question. The answer is: It doesn't.
The underlying legislation the Senate has been considering for over a
week is of tremendous importance to our national security. The bill is
bipartisan and was reported out of committee unanimously. As those of
us who chair committees know, it isn't easy to obtain unanimous
bipartisan support for legislation. Chairman Warner and Ranking Member
Levin worked hard to achieve this feat because the subject of the bill
is so critically important. Now I believe we owe it to them, as well as
to our constituents and every American, to give this national security
legislation swift consideration so that it can become law.
The amendment offered by Senator Kennedy has the opposite effect. It
will slow this bill down because it is an entirely different subject
than the underlying bill. It will take up valuable debate time that
should be spent on the bill's national security provisions. Should it
be adopted, the Kennedy amendment would become a thorny issue for the
conference committee, and that will further slow down the bill's
enactment.
Even more frustrating, the issue Senator Kennedy is raising has been
considered and voted on by the Senate four times already in this
Congress. We voted on the majority and minority plans to raise the
minimum wage twice. We voted on the two of them in March, and we voted
on them in November. Now, both times, no proposal succeeded.
Amendments offered by the Senate must comply with certain budget
rules which, as a member of the Budget Committee, I fully support.
Amendments that constitute an unfunded mandate are subject to a point
of order which can only be waived with a vote of 60 Senators. Not 1 of
the 4 minimum wage amendments has received 60 votes in the Senate this
Congress. Yet here we are again, facing the same situation, using up
time on the Defense bill. The outcome is likely to be the same as it
was the last four times we voted. Knowing this, I find it difficult to
understand why those on the other side of the aisle want to bring it up
again on this critically important national security bill.
Let us not misuse the time we should be spending debating our
national security priorities for the next year by repeating votes that
already occurred four times in this Congress. Instead, let's focus on
how we should prepare for the many threats we face as a nation. The
good men and women who work for the Department of Defense and the
Department of Energy need our authorization and our guidance to move
forward with their activities that keep us safe. We have always done it
before we do the appropriations on those budgets. We should not let
them down. We should not let the American people down.
I urge my colleagues on the other side of the aisle not to divert
this debate on to an entirely unrelated matter, the outcome of which is
clearly determinable. So I urge my colleague, Senator Kennedy, to
withdraw his amendment. I would add that if he does not, I am plenty
willing to have the debate again. We want to have the American public
making as much money as possible.
I would rise in opposition to the amendment offered by Senator
Kennedy that would increase the Federal minimum wage to $7.25 over 26
months, which amounts to a 41-percent increase. My amendment would
raise the minimum wage by $1.10 in two 55-cent steps over 18 months.
But, more important than the numbers, only my amendment recognizes the
enormous burdens a mandate such as this would place on the backs of
America's small businesses.
The Senator from Massachusetts has previously referred to the
economic effect of the minimum wage proposal as a drop in the bucket in
the national payroll. Comments such as this are

[[Page S6124]]

precisely why small business owners across the Nation believe that
Washington, DC, politicians do not understand their needs. We must
always bear in mind that these are the people who create jobs that
provide an increasing percentage of employment for all workers,
including those entering the workforce for the first time and those who
most need to acquire job skills. Those businesses train people with no
skills. We are not talking minimum wage; we are talking minimum skills.
And a lot of the small businesses that employ people at a minimum wage
hire them at a minimum wage with no skills. As they get skills, which
in many of those businesses occur in the first month they are hired,
they go above the minimum wage to other levels, and as quickly as they
learn other skills, they get paid more money or they go elsewhere,
which is another option.
It is particularly offensive to those employers doing that training
to suggest that a 41-percent increase in their labor costs amounts to a
drop in the bucket. A 41-percent increase in labor costs forces a small
businessperson to face difficult choices such as whether to increase
prices, which they usually can't do or face a potential loss of
customers because they raise the price, or whether to reduce spending
on health insurance coverage or other benefits for their employees or,
the worst of all possibilities, to terminate employees. These choices
are far more significant than a drop in the bucket.
Apart from its failure to mitigate the cost of this mandate for small
businesses, Senator Kennedy's amendment also fails to address the root
of the problem for our lowest paid workers. Congress, by simply
imposing an artificial wage increase, will not meaningfully address the
real issue of the lowest paid workers. Regardless of the size of any
wage increase Congress might impose, the reality is that yesterday's
lowest paid worker, assuming he or she still has any job, will continue
to be tomorrow's lowest paid worker as well. There is a spiral effect
to these increases when we do them because everybody all up the chain
has to have an increase to stay ahead of those with no skills. There
are even union agreements that are tied to raises in the minimum wage,
which is probably a bigger reason we debate the minimum wage on such a
frequent basis around here.
But if everybody gets a raise, something has to happen to cover the
cost of that raise. As I mentioned, you either eliminate employees so
that you are increasing productivity to handle the same thing or you
are raising the price. If you raise the price, you create inflation. If
you create inflation, what they were able to buy for minimum wage today
they can't afford for tomorrow's minimum wage because the price went
up. So a false economy of just demanding by Congress that everybody do
this really doesn't affect the economy the way we think it will. The
way that you do that is advancement on the job and earned wage growth.
Earned wage growth cannot be legislated. We do a disservice to all
concerned, most especially the chronic low-wage worker, to suggest that
a Federal wage mandate is the answer.

What we need to focus on is not an artificially imposed number but
the acquisition and improvement of job and job-related skills. In this
context we should recognize that only 68 percent of the students
entering the ninth grade 4 years ago--68 percent of the students
entering the ninth grade 4 years ago are expected to graduate this
year. Do you know what kind of a job you get if you don't graduate from
high school? Well, 68 percent of the kids who entered 4 years ago--not
all of them--are going to graduate. For minority students this number
hovers around 50 percent. In addition, we continue to experience a
dropout rate of 11 percent a year. These noncompletion and dropout
rates and the poor earning capacity that comes with them cannot be
fixed by a Federal minimum wage policy.
I was in a retail store the other day. I noticed some of the skills
have deteriorated to the point where the person at the cash register
can't figure out the dollars themselves. I remember when cash registers
in stores didn't tell you how much change you had to give the person.
You had to figure it out, and kids and adults did that. But there are
errors with that, so modern machines took up the disadvantage that was
caused by that and we now have cash registers that figure the change
for you.
But watch out if you ever change the way you give them the money
after they figured it on the computer cash register.
Have you ever had a bill for $10.81 and you gave the clerk $11 and
then you gave them a penny? That is no skills, if they can't figure out
they owe you the 20 cents. No skills. That is what the retailers out
there are training people on--basic, rudimentary things for having a
job. We don't fix those by legislating.
If we are going to meaningfully address the issue of low-wage workers
we have to acknowledge that you do not do that by simply passing a wage
law. If that were the case, we could pass a law that made the minimum
wage $20 or $50 or $100 an hour. It is just not that simple. In my own
State of Wyoming, Governor Freudenthal, a Democrat, this year, in
speaking about legislation to raise the minimum wage from the current
$5.15, noted that the real question is how do you enable a worker to
become more qualified and thereby able to earn a higher wage? He noted:

How do you make the individual more valuable in the
marketplace and demand a higher wage? It's not simply how do
you pass a law.

As I mentioned, the Governor of Wyoming is a Democrat, one who
understands the reality of this issue in the workplace and the job
market. Low wages may be the effect; low job skills are the cause.
Raising the minimum wage does absolutely nothing to enhance job skills
for low-wage workers. In fact, to the extent it makes entry into the
workforce more difficult, and increases low-skilled unemployment, as a
minimum wage hike without economic relief for small business will
unquestionably do, it will have precisely the opposite effect.
If we are able to approach this debate in a candid and constructive
way, we need to acknowledge certain basic principles of economics.
First of all, wages do not cause sales. Sales are needed to produce
revenue. And wages don't cause revenue. Revenue drives wages.
Wages can cause productivity, but the productivity has to come first
to be able to afford the wages. Wages have to be paid for.
Skills, however, operate differently than wages do. Skills do create
sales. Sales do produce revenue. Skills do create productivity. And
here is the most important part--skills get compensated with higher
wages or else the employee goes somewhere else to get true higher wages
to compensate for their increased skills. There is a relationship
between skill and how much you make. Dropouts will not make as much as
college graduates. Dropouts will not make as much as someone who has
been to a technical school. Dropouts will have minimum skills.
Some people who finish school have minimum skills. I know my dad,
once, when he was interviewing a person, said the person told him he
had 5 years' experience. My dad, after questioning him, said:
Unfortunately, he had 1 month of experience 60 times.
Wage increases without increased sales or higher productivity, which
are a result of more skills, have to be paid for with higher prices.
Higher prices wipe out wage increases. Better skills, not artificial
wage increases, produce true net gains in income.
We also need to focus on the goal that the minimum wage should be for
all workers and what it is for most, which is a starting point in an
individual's lifelong working career if they are not skilled.
Let me say that again. We need to focus on the goal that minimum wage
should be for workers who need a starting point in an individual's
lifelong working career because they are not skilled. If viewed as a
starting point, it is clear the focus needs to be far less on where an
individual begins in his or her work career and far more on how an
individual can progress--get jobs that have the potential for increase,
get jobs that teach skills. They are available.
I always have to mention this. Right now in Wyoming, which is the
least populated State in the Nation, we have a huge shortage of
workers. There is a huge shortage of workers. Are these good jobs? Yes,
they are good jobs.

[[Page S6125]]

They are in the coal mines. We ship a third of the Nation's coal out of
my county. It is clean coal and it is open-pit mining. We use huge
trucks. You could only fit two trucks in this whole room and that would
be a pretty tight squeeze. The top of it would probably touch the top
of the roof. They are big trucks. We are having trouble getting drivers
for the trucks.
The only requirement for being a driver on one of these trucks is to
be able to drive and have a clean drug record--be able to pass a drug
test. When you drive one of these trucks, once you get up to elevation
and get in the driver's chair, there are antivibration seats, power
steering, air-conditioned cabs. That great big vehicle is easy to
drive.
What do you get paid for driving it? The starting salary is about
$60,000, and they train you, provided you have this clean drug record--
$60,000 a year. We are having trouble getting people to come to Wyoming
to work for $60,000 a year. So it isn't always minimum wage that
drives these things. Skills are important, but you can even get the
skills if you look for the jobs that pay well.

They may be nontraditional jobs. We have a lot of women who are
driving coal haul trucks. They can do it very capably and probably with
fewer accidents than the men.
The truth is, real wage growth happens every day. It is not the
function of Government to mandate it. It is the direct result of an
individual becoming more skilled and therefore more valuable to his or
her employer. As a former small business owner, I know these entry-
level jobs are a gateway to the workforce and an opportunity for
workers to begin to acquire the skills and experience they need. These
entry-level jobs can open the door for better jobs and better lives for
low-skilled workers--if we give them the tools they need to succeed.
We have a great example in Cheyenne, WY. Workers entering the job
market were given the tools and the opportunity to reach the American
dream. We have a man there named Mr. Jack Preiss, and he is the owner
of eight McDonald's in Wyoming. We often talk about McDonald's and
minimum wage.
I want to tell you he has had three employees who started working at
McDonald's at minimum wage who now own a total of 20 McDonald's
restaurants. They own them. This type of wage progression and success
should be the norm for workers across the country. However, there are a
small percentage of workers who have not acquired the necessary work-
based skills and for whom stagnation at the lower tier wage is a longer
term proposition. The answer for these workers, however, is not to
simply raise the lower wage rung. Rather, these individuals have to
acquire the training, experience, and skills that will lead to
meaningful and lasting wage growth. Our policies ought to be directed
at that end.
We have to equip our workers with the skills they need to compete in
a technology-driven global economy. It is estimated that 60 percent of
tomorrow's jobs will require skills that only 20 percent of today's
workers possess.
It is also estimated that graduating students will likely change
careers 14 times in their lives. You didn't hear me say change jobs 14
times in their lives. That is easy. I said change careers 14 times in
their lives.
Here is the important part of that statistic. The world is changing
so fast that 10 of those jobs don't even exist today. They are going to
have 14 career changes, 10 of which are for jobs that don't even exist
today. We have to do a better job of educating and training our youth
to be able to take the kind of jobs we are going to have.
We need a system in place that can support a lifetime of education,
training, and retraining of our workers. The end result will be the
attainment of skills that will provide meaningful wage growth. As
legislators, our efforts are better focused on ensuring that the tools
and opportunities for training and enhancing skills over a worker's
lifetime are available and fully utilized--more available and fully
utilized than we are in imposing an artificial wage increase that fails
to address the real issues and in the process does more harm than good.
Skills and experience, not an artificial wage hike, will lead to
lasting wage security for American workers.
As chairman of the Health, Education, Labor and Pensions Committee,
one of my priorities is reauthorizing and improving the Nation's job
training system that was created by the Workforce Investment Act. This
law would help provide American workers with the skills they will need,
new skills to compete in a global economy. Those are ones that will
lead to real, not artificial wage increases.
Last Congress--this is 3 years ago--I was denied the appointment of a
conference committee to resolve the differences with the House on this
important bill by some of the very people who are proposing this
minimum wage increase. This Congress, this important bill has faced the
same obstruction. In November of last year we reported this legislation
out of the HELP Committee by unanimous voice vote. Yet it continues to
languish, unavailable for debate on the floor of this Congress, with no
progress being made and little hope for action in this Congress if such
obstruction continues. This bill would train an estimated 900,000
people a year to higher skilled jobs--900,000 people a year could be on
a better career path, could have more skills. That would be a real
improvement for chronic low-wage workers.
It makes little sense to me that some of the same people who denied
the opportunity in the last Congress to enact real improvement now
think a redetermination of the lowest wage will magically change
everyone's life. If we truly want to change and improve the lives of
our lowest paid workers, we must pass the Workforce Investment Act.
Let's be clear about what a minimum wage hike will and will not do.
First, we must realize that large increases in the minimum wage will
hurt low-income, low-skilled individuals. Mandated hikes in the minimum
wage do not cure poverty, and they clearly do not create jobs. The
Congressional Budget Office has said:

Most economists would agree that an increase in the minimum
wage rate would cause firms to employ fewer low-wage workers
or employ them for fewer hours.

That is a CBO estimate from October 18, 1999.
What every student who has ever taken an economics course knows is
that if you increase the cost of something--in this case a minimum wage
job--you decrease the demand for those jobs. Misleading political
rhetoric cannot change the basic principle of supply and demand. The
majority of economists continue to affirm the job-killing nature of the
mandated wage increases. A recent poll concluded that 77 percent or
nearly 17,000 economists believe that a minimum wage hike causes job
loss.
It is kind of a spiral that we get into.
We simply cannot assume that a business that employs 50 minimum wage
workers before the wage increase is enacted will still employ 50
minimum wage workers, whether the business is in Washington, Wyoming,
or Massachusetts. Employers can't absorb an increase in their cost
without a corresponding decrease in the number of jobs or benefits they
can provide workers. We know there are losers when we raise the minimum
wage. But who are the individuals who will benefit?
Minimum wage earners who support a family solely based on the wage
are actually pretty few and far between. Fully 85 percent of the
minimum wage earners live with their parents, have a working spouse, or
are living alone without children.
Of the minimum wage earners, 41 percent live with a parent or
relative, 23 percent are single or the sole breadwinner of the
household with no children, and 21 percent live with another wage
earner.
All are low-skilled workers or brandnew employees. In a shoe store
you might have the lowest-skilled people unpacking the shoes. By the
time they can check inventory and correctly put it on the shelf so they
can find the size when the customers come in, they get a raise. If they
can actually wait on a customer--that is kind of the goal in most
businesses, to be able to wait on a customer--that is another level of
wage increase. The better they do waiting on customers--which is the
important part in the business--the more they get paid.
Research shows that the poor targeting and other unintended
consequences of the minimum wage make

[[Page S6126]]

it a terribly ineffective approach to reducing poverty in America--the
intended purpose of the policy. In fact, two Stanford University
economists concluded that a minimum wage increase is paid for by higher
prices that hurt poor families the most.
A 2001 study conducted by Stanford University economists found that
only one in four of the poorest 20 percent of families would benefit
from an increase in the minimum wage. The way to truly improve the
wages and salaries of these American workers is through education and
training--not an artificial wage increase.
With these realities in mind, I will offer an amendment, unless
Senator Kennedy wishes to withdraw his amendment. We can go on with the
Defense debate. There must be serious discussion on that possibility.
So I will allow that to go on and make a few more comments.
But I am considering offering an amendment that recognizes the true
cost of the minimum wage increase on American workers and businesses,
and particularly small businesses.
My amendment includes a minimum wage increase of $1.10, and it also
addresses other needs for reform and the needs of small businesses that
create the most jobs in this country. Therefore, my amendment is
protective of economic growth and job creation.
Let me turn to a brief review of the provisions that would be
contained in my amendment. In doing so, we must bear in mind that small
businesses continue to be the engine that drives our economy and the
greatest single source of job creation. Any wage increase imposed on
small businesses poses difficulties for that business owner and, more
importantly, for his or her employees.
My amendment recognizes this reality and provides a necessary measure
of relief for these small business employers.
My amendment would make the following changes that are critical,
particularly for small business. The first one is updating the small
business exemption.
Having owned a small business in Wyoming, I can speak from personal
experience about how difficult any minimum wage increase is for small
businesses at the low end of the scale level and job growth.
Small businesses generate 70 percent of new jobs. Since the negative
impact of a minimum wage increase will affect small businesses most
directly, we have proposed addressing the small business threshold
which is set under current law at $.5 million. If the original small
business threshold enacted in the 1960s--that is when we came up with
this arbitrary number, in the 1960s--if it were to be adjusted for
inflation, it would amount to over $.5 million.
The small business threshold was last adjusted 15 years ago. In those
ensuing years since the national minimum wage rate has been hiked, the
economy has undergone a dramatic change, and the way work is done in
this country has changed forever.
The pending amendment raises that threshold for small business
determination to $1 million to reflect these changes.
My amendment also incorporates bipartisan technical corrections that
were originally proposed in 1990 by then Small Business Committee
Chairman Dale Bumpers, Democrat from Arkansas, and cosponsored over the
years by Senator Reid, now the Democratic leader, Senator Harkin,
Senator Pryor, Senator Mikulski, Senator Baucus, Senator Kohl, and
others. Those Senators can attest to the Department of Labor's
disregard of the will of Congress and interpreted the existing small
business threshold to have little or no meaning. The Labor Department
would make a Federal case out of the most trivial paperwork infraction
by the smallest small business because of what it interpreted as a
loophole in the law.
Some would say that the 1989 bill to hike the minimum wage and the
small business threshold was inartfully drafted and permitted this
result. Others say the Department is misreading the clear language of
the statute.
Regardless, the fact is that a threshold enacted by Congress is not
providing the balance and fairness that was intended. This amendment
corrects the problem by stating clearly that the wage and overtime
provisions of the Fair Labor Standards Act apply to employees working
for enterprises engaged in commerce or engaged in the production of
goods for commerce. My amendment also applies those wage and hour
worker safeguards to home-work situations.
Second, ensuring procedural fairness for small business: This next
provision is just common sense and good government legislation.
Surely, we can all agree that small business owners--the individuals
who do the most to drive our economy forward--deserve a break the first
time they make an honest paperwork mistake when no one is hurt and the
mistake was corrected.
Let me say that again.
Surely, we can all agree that small business owners-- the individuals
who do the most to drive our economy forward--deserve a break the first
time they make an honest paperwork mistake where no one is hurt and the
mistake is corrected.

Small business owners told me over and over again how hard they try
to comply with all the rules and regulations imposed on them, mostly by
the Federal Government. As a former owner of small business myself, I
know what they mean. Yes, for all that work, a government inspector can
fine a small business owner for paperwork violations alone, even if the
business has a completely spotless record and the employer immediately
corrects the unintentional mistake. Even the best intentioned employer
can get caught in the myriad of burdensome paperwork requirements
imposed on them by the Federal Government. And I will even go so far as
to say a lot of times the paperwork isn't clear, because I have filled
out a lot of those documents.
To comply with the Paperwork Reduction Act, sometimes we use
something for insurance that deals with health, and the questions can't
be the same.
So there are a lot of possibilities unless you follow the manual very
closely. And small businesses don't have time to do that because they
are trying to make a living for themselves and their employees.
There are a lot of opportunities out there which the Federal
Government gives them to make paperwork mistakes that really don't
affect anybody. But if we have enough people working in the Federal
bureaucracy to check and see if all the t's are crossed and all the i's
are dotted, we can find some mistakes, particularly if that person only
has to concentrate on one document. The small business owner has dozens
that he has to comply with.
The owners of small businesses are not asking to be excused from any
obligations or regulations, but they feel they deserve a break if they
previously complied perfectly with the law. Small business men and
women who are first-time violators of paperwork reduction deserve some
protection.
The third part of the bill would provide regulatory relief for small
businesses.
As any increase in the minimum wage places burdens on small
employers, it is only fair to simultaneously address the ongoing
problem of agencies not fully complying with the congressional
directive contained in the Small Business Regulatory Enforcement Act.
That is a mouthful.
Under the law, agencies are required to publish small entity
compliance guidelines for those rules that require a regulatory
flexibility analysis. Unfortunately, agencies have either ignored this
requirement or when they tried to comply have not done so fully or
carefully.
My amendment does this by including specific provisions that the
Government Accountability Office has suggested to improve the clarity
of the requirement.
The fourth thing it would do is remove the barriers to flexible time
arrangements.
My amendment includes legislation that could have a monumental impact
on the lives of thousands of working men and women and families in
America.
This legislation would give employees greater flexibility in meeting
and balancing the demands of their work and family.
We came up with an idea like this, and it is real important to pay
attention to it. We stole it from the Federal

[[Page S6127]]

Government. The Federal Government imposes this on agencies. The
Federal Government says you are going to give the employees
flexibility.
The first time I ever heard of this was in Wyoming. Some people in
Wyoming are married to people that work for the government, probably
not nearly as strange as out here. Out here, I think a lot of people
who work in government are married to people who work in government.
But out there, a lot of people who are working in government are
married to people who aren't working in government.
We give this benefit to government employees--being able to have a
little flex in their time. But we prohibit it in the private sector. We
say you cannot do this even though we let the government folks do this.
There, it would be a bad idea for your employees. We don't want you to
have any flexibility. We know both the Federal employee and the private
employee would like to watch their kids play soccer. The private
employee better have his soccer schedule done so he doesn't need any
flextime. But the government worker ought to be able to take it
whenever they feel like it and trade it around.
We give the Federal Government the kind of flex I am talking about in
this bill. Particularly in a family where the private employee is
married to a government employee, they do not understand why they
cannot have the same right as the government employee. They can bank a
few hours and have a little longer weekend the next weekend, all in the
same pay period. Their spouse can do it. They can have a little longer
weekend. They can go use the boat over the longer weekend, but for the
one that works for private industry it would be illegal. You cannot do
that.
Just try and explain that to a family. That is how I first found out
about this problem. I had a mother who wanted to be able to do the same
thing as her husband. Her husband worked for the State government. He
could do it. He could bank hours. But if it is a private sector, no,
that would be stealing overtime from people. Why would it be stealing
overtime in the private sector when it is not stealing overtime in the
government sector? I don't understand that.
You will hear more, if we debate these things, and if we decide we
are going to impose it on the Department of Defense and the Department
of Energy authorization. If we decide we are going to impose that,
comments will be on this flextime provision. Most of it will be on this
because it is kind of a red herring that you can throw up and say, We
do not trust business. Yes, we trust government but we don't trust
business. You will hear that as the main part of this debate.
That is why I have spent a little time concentrating on it here.
This legislation would give employees in the private sector
flexibility like in the government sector in meeting and balancing the
demands of work and family.
Whatever we do, remember that part--only asking for private business
what we give to government employees. Let me give some of the latest
statistics: 70 percent of employees do not think there is a healthy
balance between their work and their personal life; 70 percent of
employees say family is their most important priority.

The family time provision in my amendment addresses these concerns
head on. It gives employees the option of flexing their schedule over a
2-week period. In other words, employees would have 10 flexible hours
they can work in 1 week in order to have 10 hours off in the next week.
Flexible work arrangements have been available in the Federal
Government for over two decades. Have we had any arguments about them?
No, they have been a great idea. They have been accepted and desired
and used. But don't let the private sector have that. Because it works
in one place doesn't mean it might work in another place. Let's
continue to discriminate against private business. That is what we are
saying when we do not allow the flextime.
This program has been so successful that in 1994 President Clinton
issued an Executive order extending it to parts of the Federal
Government that had not yet benefited from the program. President
Clinton said:

[The] broad use of flexible arrangements to enable Federal
employees to better balance their work and family
responsibilities can increase employee effectiveness and job
satisfaction while decreasing turnover rates and absenteeism.

It would allow the Federal employees to better balance their work and
family responsibilities--that sounds good to me--and it can increase
employee effectiveness and job satisfaction while decreasing turnover
rates and absenteeism. That sounds pretty good, too.
Let's see now. We tried it for over two decades and decided to extend
it to all Federal Government, so it has to be a good idea. Would we
pass on a bad idea to the Federal Government? Would they stand for it
if we did? No. So why can't we give it to the private sector? Why do we
say: Private sector, you are just not as good as Government employees.
You do not deserve the same breaks we give Government employees.
As I mentioned, this will be the bulk of the debate on this
particular issue, the flextime part. It could have been a lot more
inclusive. Actually, the Federal Government gets to do more than what I
have stated, but we are definitely not going to allow that. We are
putting this down to a very small minimum to see if we can get any
movement on it at all.
As I said, we have voted on this before, and the answer is, Heck, no,
we will not give the private sector that kind of a privilege. We don't
care what the Federal Government gets to do, you can't treat the
private sector decently. No, they didn't say that, I said that.
I could not agree more with what President Clinton said when he did
his Executive order. I am saying now we need to extend this same
privilege to the private sector workers. It would allow employees to
better balance their work and family responsibilities, it can increase
employee effectiveness and job satisfaction, while decreasing turnover
rates and absenteeism. That was President Clinton talking about this
kind of provision for the public sector. I am saying, if it is that
great, we ought to do it for the private sector, too.
We know this legislation is not a total solution. We know there are
many other provisions under the 65-year-old Fair Labor Standards Act
that need our attention, but the flexible time provision is an
important part of the solution. It gives employees a choice, the same
choice Federal workers have.
The fifth part of this would extend the restaurant employee tip
credit. A major employer of entry-level workers is the fast food
service industry. Another part of it is the regular food service
industry. The regular food service industry relies on what is known as
the tip credit, which allows an employer to apply a portion of an
employee's tip income against the employer's obligation to pay the
minimum wage.
Currently, Federal law requires a cash wage of at least $2.13 an hour
for tipped employees and allows an employer to take a tip credit of up
to $3.02 of the current minimum wage. To protect tipped employees,
current law provides that a tip credit cannot reduce an employee's
wages below the required minimum wage. Employees report tips to their
employers, ensuring an adequate amount of tips are earned.
Seven states--Alaska, California, Minnesota, Montana, Nevada, Oregon,
and Washington--do not allow a tip credit; however, requiring raises
for all hourly employees when States increase the minimum wage. The
lack of a tip credit requires these employers to give raises to their
most highly compensated employees, the tipped staff. If you are working
in a nice restaurant, the tips will be more than the salary. Nontipped
employees in these businesses are negatively impacted by the mandated
flow of scarce labor dollars to the tipped position. In addition,
employers are put at a competitive disadvantage with the colleagues in
the rest of the country who can allocate employee compensation in a
more equitable manner.
My amendment expands the tip credit to nontip credit States,
consistent with the initial establishment of the credit under the Fair
Labor Standards Act, anticipating the increase in minimum wage.
The sixth provision is small business tax relief. If we are going to
impose greater burdens on small business, we should give them some tax
relief at the same time. My amendment extends small business expensing
by 1 year.

[[Page S6128]]

Simplify cash accounting methods. I am the only accountant in the
Senate, so I probably ought to explain what cash accounting is. That
could be a huge debate all by itself. It means that the business can
actually use the dollars coming in as part of the accounting as opposed
to anticipated dollars that would be coming in. It works off the actual
cash flow rather than some of the accrual methods that we use. I will
not go into that. Accounting is important, but it often puts people to
sleep. It would simplify cash accounting methods and provide restaurant
depreciation relief.
All of these tax provisions are fully offset in the bill. That means
they are paid for. That means there is some way of covering the cost of
them so that it isn't the general budget.
In total, the additional provisions in my amendment are intended to
mitigate the small business impact of a $1.10 increase in the minimum
wage so people can keep their jobs. I share the view of many of my
colleagues that if we are going to impose such a mandate on the Federal
level, we must do our best to soften the blow. This may be the best we
can do today, but I entreat all of my colleagues to look at the true
root of the problem for minimum wage workers. That is the acquisition
of job-based skills: more skills, more money.

We all share the same goals, which is to help American workers find
and keep good-paying jobs and to keep the best paying jobs in this
country. Real job skills, not artificial wage levels, should be our
focus. Education, training, and job experience are the solution for
low-wage workers. We have to pass the Workforce Investment Act that
will train those 900,000 people a year to higher skill jobs.
In terms of education and training, we need to move forward on that
kind of meaningful legislation that will lead to increased wages and
better jobs that we all want for our Nation's workers.
In terms of job experience, we must always remember that businesses,
particularly small businesses, create the jobs and provide the gateway
to the working world for the vast majority of low-wage workers.
If we do not balance a minimum wage increase with economic relief for
the small businesses, we will stifle job creation and shut the
employment door on the very individuals we are trying to help.
I urge my colleagues to oppose the amendment offered by Senator
Kennedy and, if we continue to have the debate and I submit my
amendment, to support my amendment. Both raise the minimum wage. One
covers the cost of the minimum wage so that it would not drive down the
number of people employed in this country.
We have been trying to increase employment. We want those people
starting with minimum skills to work their way up the ladder to owning
the business. That can happen in America. That can happen if we give
them an incentive to learn to improve their skills and we don't impose
false security of mandated higher wages that drive a spiral upward and
eliminate jobs. Elimination of jobs is not the answer. Training people
to higher skills so they can demand more money or go to work somewhere
else is the answer.
If we are going to have this debate on the Department of Defense
bill, I would be happy to submit my amendment to have it voted on,
along with Senator Kennedy's amendment. We have done that before. We
know what the results will be, I suspect. Both of them will be subject
to a point of order. We usually agree not to go for the point of order
but just order the vote and have the 60-vote threshold we have always
had. We would be willing to do that, but a more appropriate time to
debate this would be another time on another bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, the issue we are talking about, my good
friend and the chairman of the Committee on Human Resources is talking
about, and that I have talked about earlier, is whether we were going
to have an opportunity in the Senate to take a few minutes to consider
an increase in the minimum wage for the lowest paid workers in America.
I had offered that as an amendment on the Defense authorization bill.
One might ask: Why are we doing this on the Defense authorization
bill? The answer to that is we would not have another opportunity to do
it on any other bill until the recessing of the Senate.
In my opening remarks when I offered that amendment, I indicated to
the chairman of the Committee on Armed Services that we would be glad
to work out a time for consideration that would not interfere with the
general debate and discussion of the issues on the Defense
authorization bill, but we have been unable to get that at this
particular time. Therefore, we are talking about this issue at this
time.
The Senator from Wyoming asked why is this relevant to the Defense
authorization. I think the answer is rather compelling. That is, when
we think of why the service men and women are fighting in Iraq and
Afghanistan, and around the world, they are fighting for American
values, American principles. Part of American values and principles is
economic fairness, not the exploitation of poor workers in the United
States of America. That is why it is relevant.
We are talking about the ideals and the values of the United States
of America. We are talking about family values. We are talking about
what people at the lowest rung of the economic ladder are going to get
paid.
I bet some of these individuals who will be affected by the minimum
wage are over in Iraq now fighting. They are wondering, why in the
world are we taking up time when we have not increased the minimum wage
in the last 9 years and we have taken the time to see six pay increases
for the Senate? They are saying: Why aren't you providing that increase
for the minimum wage for these workers? That is what we are talking
about.
Can anyone imagine that? We are going to get another pay COLA
increase next week. We have increased our own salaries $30,000 over the
period of the last 9 years. And how much have we given to an increase
in the minimum wage? Zero.
We have, I daresay, men and women who are serving in Iraq whose
parents are probably earning the minimum wage. We are talking about
getting an increase to $7.25 an hour.
This issue never used to be a partisan issue. I regret it has turned
out to be a partisan issue. We have been unable to get our Republican
friends to give us an opportunity to vote on an increase in the minimum
wage. We are caught in this situation because we cannot get an up-or-
down vote on the increase in the minimum wage.
Since the time of the initiation of the minimum wage, going back to
Franklin Roosevelt, Harry Truman, Dwight Eisenhower, Republican, all
had an increase in the minimum wage. Richard Nixon, an increase in the
minimum wage. George Bush, an increase in the minimum wage. But we do
not have anything after Bill Clinton and the increase in the minimum
wage. Nine years is the longest period in history for no increase of
the minimum wage. If the Senator would let us have an up-or-down vote,
we will take a very short time period. We are interested in taking a
short time. We only received the Republican alternative about an hour
and a half ago. We still don't know what the scoring is on it. The
initial statement we have heard is that it is pretty much the same as
it was a year ago, and that basically cuts overtime pay. It also
undermines the States' opportunities to deal with problems on the tip
credit. It also eliminates worker protections under the Fair Labor
Standards Act. That is a fine option that is going to be out. That is
what we have gotten in the last hour or so.

If I had the attention of my friend from Wyoming, the managers of the
bill are here, I would ask unanimous consent that upon completion of
the Defense bill, the Senate turn to the minimum wage bill, the text of
which is my amendment, that the Enzi amendment be in order, that there
be 4 hours of debate equally divided, and then we would go to a vote.
Mr. WARNER. Mr. President, I would have to object.
Mr. KENNEDY. I have heard the objection. We have had complaints about
my offering the minimum wage amendment on this legislation. Then what
do we do? We say: OK, let's let this go through. But just give us an
opportunity to consider an increase in the minimum wage on the floor of
the Senate with a very short time limitation.

[[Page S6129]]

And we can't get agreement on that. There you go. That is what this is
all about.
I must say the idea that this isn't appropriate, if we could have
gotten an option to go ahead and have the individual bill for an
increase in the minimum wage, have an opportunity to vote on both the
Senator's amendment and our amendment, let's have that and let's go
back to the good old days where a majority would carry. That is fine
with me. That would be fine with me. I will just take a half an hour on
our side. Surely, the Senate can find time to give a half an hour to
the issue of increasing the minimum wage for workers. One half hour,
let's see where the Senate goes, whoever gets more than 50 votes. That
used to be the way around here. But not now. We hear complaining about
bringing up the minimum wage on this bill, and they still are going to
have to get 60 votes on it because there will be a point of order
raised against this on the budget.
We have heard a great deal before, at the time when my good friend
was talking about his health care bill about wanting to have a debate
on his health care bill. Remember that? It wasn't all that long ago.
Let's have a good up-or-down debate. Let's have a vote. What is it,
denying the opportunity for people to have this debate?
Well, we would be more than glad to have this legislation. You can
have on your side a half an hour. We will take a half an hour. Let the
chips fall where they may. If the leader wants to come out and make
that, we have offered similar to that. There has been objection to it,
but it is a reflection of our good faith.
From an early reading of the amendment of the Senator from Wyoming,
they would raise the minimum wage by $1.10. Would the Senator tell me
what the cost of the Enzi amendment is? What is the cost? Do we have a
budget point of order?
Could I address the Senator from Wyoming? If he could tell me what
the budget cost of his amendment would be? While he is doing so, I will
mention a couple of other points.
His amendment would raise the minimum wage by $1.10 instead of by
$2.10, which our bill does. It cuts overtime, and it also reduces
benefits so only 1.8 million workers would be covered. That is 4.8
million fewer than my amendment. Theirs is $1.10 an hour instead of
$2.10, and there are 4.8 million fewer than my amendment. Then it also
cuts overtime pay. It ends Federal labor standards coverage for over 10
million workers. By raising the gross income of the companies that will
be covered, they will eliminate 10 million workers. They will be
eliminated from any kind of minimum wage or fair labor standards
protections.
Then it basically overturns State actions that are dealing with what
they call the wage tip credit which States vary about how they do it.
But the Enzi amendment puts a cap on that. The States now, for example,
can have a higher minimum wage than we have. We haven't preempted the
States because it has always been a flooring. Some States believe that
those who depend on tips ought to be given a somewhat additional break.
We are talking about people who make $5.15 an hour, maybe make $6 or $7
in tips, and you are trying to nickel-and-dime them on that with the
Enzi amendment, preempt the States.
I hope my colleagues have a chance to read through this overnight
because we are preempting the States that have reached a different
conclusion with regard to tip credit. The Enzi amendment says that is
going to be out.
That is quite a mouthful. People understand those issues pretty well.
They are very important. I don't know whether we have an answer. I will
be glad to hear it later on. Could the Senator give me what the budget
cost for his amendment would be?
Mr. ENZI. I would like to be able to do that. I don't have the
numbers that I need to have. I appreciate the question, but I can't
give you an answer yet.

Mr. KENNEDY. Well, I imagine we will get them later in the afternoon
or get them on tomorrow. Could the Senator indicate when we might
anticipate those? The reason this is important is because we are
talking about 50 pages of tax issues in the Enzi amendment. Therefore,
there is a cost to it. It does seem to me that prior to the time that
we have a vote, we ought to know what those particular costs are. We
have on the one hand the issues that are directly related to the
minimum wage, and then we have the costs in terms of an addition to the
deficit.
I don't know whether the Senator could tell us that we are going to
get it later this evening. If you can give us the assurance, if you
think we will have it this evening, that is fine; otherwise, whatever
help the Senator could provide, I would be grateful.
Mr. ENZI. In answer to the question, Mr. President, I can't tell how
long it will take for the Joint Tax Committee to have the new numbers.
But I can tell you, I didn't know that the Senator was going to offer
his amendment until yesterday. The estimated revenue effects that we
have are from the one that we did and voted on last year which shows
over a 10-year period that all costs are covered with a slight surplus.
Mr. KENNEDY. I am not sure that I completely understood the Senator's
response in terms of the cost. What is the cost of the first, second,
third, fourth, or fifth year? We will try and get that, if we could.
I point out to my colleagues, the amendment I offer is 2\1/2\ pages.
The Enzi amendment is 71\1/2\ pages, 50 of which are tax provisions. It
does seem to me if we were debating, look, ours is $2.10, yours is
$1.10, let's go at it. Let the Senate make a judgment. But it isn't
that. We have 50 pages in here of tax provisions that are going to
evidently be called incentives on the one hand but to others they are
going to increase the deficit on the other hand. I am not exactly sure
what those are. Then we are not only being questioned about that, but
we also know that we have in that proposal a cut of overtime pay and
the ending of Federal Labor Standards Act coverage for 10 million
workers and basically a preemption of States that want to treat the tip
credit in the way that they want, which is quite a proposal. I would
hope that we would have a chance, which I expect we will, to at least
examine it over the evening.
This chart says the $1.10 increase leaves 4.8 million workers behind,
the difference between the Enzi proposal and the way ours is drafted.
I wanted to address a couple of the issues the Senator has pointed
out with regard to small business. This chart shows results of a Gallup
Poll of May 2006: 86 percent of small business owners say the minimum
wage does not affect their business. The question was: How does the
minimum wage affect your business? Eighty-six percent said no effect; 8
percent, negative effect; positive effect, 5 percent; no opinion, the
rest.
So it is kind of interesting, we have sort of gone beyond this point
in terms of where the small business community is. They have a pretty
good understanding of what happens. What we have found out with the
increase, for example, on the living wage, you take the most dramatic
example is the neighboring city of Baltimore. When they increased it to
a living wage, what happened? First of all, they had less turnover. It
was less costly on the city in terms of training new workers.
Secondly, they increased their productivity. They got less
individuals who stayed home on sick leave because people began to take
a greater pride in their work. Why? Because they were being treated
with greater respect. And finally, the overall cost of the program,
even though they increased it to about $11.50--I am not sure, I think
it is even above that; they were one of the first with a living wage--
they found out that the workers were working harder, took greater pride
in their work, and there was greater productivity, a greater increase
in morale, and their overall costs have actually gone down.
States with higher minimum wages create more small businesses. I was
listening to the Senator talk about the burden on small businesses. I
just showed a recent Gallup Poll of small businesses which was in May
of this year. Here are the 10 States plus DC with minimum wages higher
than $5.15, and overall growth of small business is 5.4 percent. Forty
States have a minimum wage of $5.15, and there is 4.2 percent growth.
The States with the higher increase in the minimum wage saw an increase
in the total numbers.
Study after study finds raising the minimum wage does not cause job
loss.

[[Page S6130]]

This is by David Card and Alan Krueger, from Princeton's reanalysis of
the effect of the New Jersey minimum wage increase on the fast food
industry and representative payroll data, 1998. The increase in the
minimum wage probably had no effect on total employment and possibly
had a small positive effect. Four different tests of the two increases
on employment impact fail to find any systematic, significant job loss
associated with the 1996-1997 increases, Economic Policy Institute.
Detailed studies of California's last two decades, the State-increased
minimum wage legislation, consistently no employment for workers.
This chart shows the increases in 1996. It is too bad we have to go
back so far, but we haven't had an increase in the minimum wage. Here
is the increase in the minimum wage to $4.75. I think it was $3.45
prior to that time. We went to $4.75. This is total job growth after we
had the increase in the minimum wage. Then we increased to it $5.15.
This is a chart that shows the total job growth in the United States
during that period. This idea about the impact on jobs is interesting,
but it has been refuted time and time again.
This chart shows that the last minimum wage increase did not increase
unemployment. These are the figures on unemployment.
The last increase to $5.15 actually shows the unemployment going down
over the period of the years, from 1997 until 2000. It doesn't have the
most recent figures. But it is a pretty good indication of what was
happening during that time. So we find that the States which have a
higher increase in the minimum wage are expanding in small business.
Eighty-six percent of small business, according to the Gallup poll,
said it doesn't have any effect, in terms of employment. The national
review about what has happened the last two times we raised the minimum
wage was that it had virtually no impact in terms of the employment
issue.
Finally, inflation. That issue is always another canard that is
pointed out. They say if you raise the minimum wage, we are going to
cause inflation. Look at what we are doing, Mr. President. Increasing
the minimum wage to $7.25 is vital to these workers, but it is a drop
in the bucket to the national payroll. All Americans combined earned
$5.4 trillion a year. A minimum wage increase to $7.25 would be less
than one-fifth of 1 percent of the national payroll. There it is. No
inflation, no adverse impact on unemployment. Small business feels that
it doesn't impact or affect them. The studies show that small
businesses have grown in States where they have had an increase in the
minimum wage.
These are the economic arguments, but most of all, as we have said
day in and day out, this is a fairness issue. These are men and women
who work hard and play by the rules and take a sense of pride in their
work. They work as teachers aides, in nursing homes, cleaning up the
great buildings of American commerce, and they work hard and try to do
a decent job. More often than not they have two and sometimes three
other jobs. Primarily, they are women. As I have pointed out, it is a
women's issue. Primarily, those women have children. It is a children
and a women's issue. It is a family issue. It is a family value issue
and a civil rights issue because so many of the workers are men and
women of color. And fairness, fairness. You don't have an economic
argument against increasing it to $7.25, and you don't have an argument
that is relevant to decency and fairness in opposing this kind of
increase.
Americans understand fairness, they understand decency, and they
understand the importance of hard-working Americans who are playing by
the rules. A job in America should get you out of poverty, not keep you
in it. And the alternative to our increase in the minimum wage will
keep you in poverty. We can do better as a country, and we will.
I see my friend from New Jersey who desires to address the Senate on
the minimum wage. I hope he will have an opportunity to do that for as
long as he likes.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. MENENDEZ. Mr. President, I am proud to join Senator Kennedy in
his call to increase the minimum wage to $7.25 and to cosponsor this
amendment. In my mind, this amendment is not just about wages, it is
not just about fairness; it is about dignity. Certainly, there could
not be any finer advocate for our Nation's workers than my colleague
from Massachusetts, who has pushed relentlessly to get this body to act
and provide that opportunity for dignity and to provide a long, overdue
increase in the Federal minimum wage.
Yet despite his efforts, despite coming to this floor time and time
again to call for a simple yet critical wage increase, this body has
not heeded his calls. Despite the fact that some 7 million American
workers are struggling to keep their heads above water, this body has
chosen inaction.
That is a disgrace.
I think it is shameful that Members of this body have walked away
time and again when given the chance to provide hard-working Americans
with what is at the core of the work ethic we hold as a Nation--fair
pay for a hard day's work.
We are not talking about a giveaway or a free ride; we are simply
talking about a fair and decent wage that ensures those working their
hardest make enough to get by. To be honest, workers making the Federal
minimum wage today don't make enough to get by. The average worker
earning the minimum wage and working 40 hours a week, 52 weeks a year,
to support a family of three will only earn $10,700 on the current
minimum wage. That is $6,000 below the Federal poverty line for a
family of three.
No family can afford to live on those wages, especially not a family
in a high-cost State such as New Jersey. In New Jersey, which has the
highest median income in the Nation and one of the highest average rent
costs in the country, $5.15 an hour is simply not enough to get by.
People in New Jersey know that. Leaders in New Jersey know that, and
that is why our State acted to increase the minimum wage to $6.15 last
October. Raising the minimum wage to $7.25, as this bill would do,
would benefit an estimated nearly 200,000 New Jerseyans.
I am proud that New Jersey has been a leader for increasing the
minimum wage. I heard Senator Kennedy's reference to some studies about
it. In fact, we are lifting people up in the process. New Jersey's move
to be a leader, rather than wait for the Federal Government to lead the
way, is providing a better standard of living for New Jerseyans.
We need leadership now in Washington. While Congress refuses to act,
millions of workers across the country are being left behind. Nine
years is far too long for those workers to wait. Nine years is too long
for those who work around the clock, hoping to save a little extra for
groceries, so they can buy school supplies or clothes for their
children or for those who are saving so one day they can live in a
place that they are proud to call home.
Mr. President, that is what this amendment is about. It is about more
than just wages. It is about providing a decent and fair standard of
living for those who share in the dream of America, as every other
worker in this country. It is for those who work their hearts out every
day so that they may provide a better life for their families. It is so
that children in this country never have to know what it feels like
never to have enough.

Increasing the minimum wage would give more than 7 million children
of minimum wage earners a chance for a better life.
As the son of poor immigrants, hard-working parents who worked day in
and day out as a carpenter and a seamstress in a factory, I knew what
it was not to have enough. My parents didn't have time to fight for
better wages. They were working hard to achieve the American dream.
Similar to so many before them, my parents saw hard work as a path to a
better life for themselves and their children. That continues to be the
story for so many hard-working Americans.
But unless wages rise to keep up with the rising costs, to meet the
realities facing working families, that dream will be out of reach for
millions of minimum wage earners, who earn a wage that is worth less
than it was nearly 30 years ago.
Now, I ask how the Members of Congress, who get a cost-of-living
adjustment, can at the same time say to those people in this country
working at the minimum wage--even after you

[[Page S6131]]

work 40 hours a week, 52 weeks a year, which puts you at the poverty
level--Members of Congress get an increase in the cost of living, but
they cannot vote after 9 years to give those hard-working minimum wage
workers the first increase in 9 years.
Every day that we stand idle, the minimum wage continues to lose
value, our Nation's workers fall further and further behind. We have to
give working families the chance to work their way out of poverty. We
want Americans to be self-sufficient. Yet when we have individuals who
get up every day and do some of the hardest work that our country has
to offer--and it is honest work and decent work, but it is hard work--
every day they get up and go to work--and they cannot afford to be ill
because most of them don't get health care. If they don't go to work
that day, they don't have the resources to take home for their
families. Can we not say as a Nation that we want to honor their work,
that we want to reward their work, so that work becomes the vehicle by
which there is self-sufficiency? That is what we say when we are
unwilling to increase the minimum wage.
The increase we are proposing would put more than $4,000 in the
pockets of these hard-working Americans. This is enough to help a low-
income family afford 2 years of child care, a year and a half in
utility bills or a year of tuition at a public college.
This may be a simple increase for some, but an extra $2.10 an hour
will mean a lot more for the 15 million workers who have been waiting
and waiting and waiting for 9 years for a better wage, a better
standard of living, for hope and opportunity, and for a message that
their work is rewarded.
Mr. President, these workers have waited long enough. They are
waiting for leadership. They are waiting for a Congress that accepts
cost-of-living adjustments to ultimately recognize that they, too, need
an adjustment in their salary. Let's get our priorities straight and
stand up for our Nation's families. Let's show true leadership and
provide these workers across the country what they deserve. Let them
work their way out of poverty. Let's pass this amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. ISAKSON. Mr. President, I want to talk about the amendment of the
Senator from Massachusetts. I want to specifically commend the Senator
for his passion and enthusiasm. But it reminds me of a line in an old
country song: ``You only hurt the ones you love.''
The graphs that we were shown were macro graphs about all economies
and all unemployment in the country. The people on minimum wage, which
this is designed to help, are those at the lowest end of the skill
level and the beginning level of employment.
When the distinguished Senator from New Jersey referred to the 15
million Americans who were on the minimum wage 15 years ago as if they
were still on it today, it was deceiving and misleading. Those are not
the same 15 million people. They are 15 million new people who are
getting a foothold in the joy that is America by beginning on the
ladder of employment.
Former Federal Reserve Chairman Alan Greenspan has repeatedly
cautioned the Congress on this very subject and against raising the
minimum wage for that reason. The Chairman pointed out that such a move
``increases unemployment and, indeed, prevents people who are at the
early stages of their careers from getting a foothold in the ladder of
promotions.''
The Federal Government can dictate what anybody pays anybody, but we
cannot dictate who is hired. If we raise the component cost of
employment--as the bill of the Senator from Massachusetts would--29
percent, it stands to reason that you put at risk 29 percent of those
who are employed at the lowest level. What happens is that people seek
a more efficient worker at the detriment of the least skilled and the
least qualified.
One year after the first minimum wage was established, Franklin
Roosevelt's own Department of Labor made the following observation:

In a number of instances, there have been reports that
workers who had been receiving less than [the new minimum
wage] had been laid off, and replaced by more efficient
workers.

The marketplace will drive employment, and when we in Government
infuse ourselves into an issue and make an arbitrary adjustment, then
the marketplace will make the adjustment for the business community and
the more efficient worker will be employed.
When the distinguished Senator from Massachusetts referred to the
tremendous job growth and creation between the next-to-the-last
increase in the minimum wage and the last increase in the minimum wage,
again it was a macro graph. The fact is that while employment
skyrocketed during the dot-com era, those were high-technology, high-
end jobs. The reality was that, as a result of the Congressionally-
mandated increase in the minimum wage, technology replaced a lot of
those minimum wage, low-skilled jobs, and actually unemployment
increased at the lowest end. It is only right to compare apples to
apples and oranges to oranges.
It is interesting that researchers at the University of Wisconsin did
a study not too long ago to determine what the minimum wage did to
welfare mothers, that I give you, Mr. President, as an example. The
study revealed that welfare mothers in States that raised their
respective minimum wages remained on public assistance 44 percent
longer than those in States where the minimum wage was not raised,
making the point I made earlier; that is, getting a foothold on the
ladder of success in America means getting in the employment chain. And
the more we put pressure on how much it costs to bring someone into
that chain, the more it punishes or penalizes someone who is not in it.
There is another deception which goes on in this argument, and that
is that everybody who is on the low end of the chain and a minimum wage
earner is at the bottom of the scale in life.
President Clinton's first Labor Secretary, Robert Reich, once
observed ``most minimum wage workers aren't poor.'' He is right. Today,
according to data from the U.S. Census Bureau, the average family
income of a minimum wage worker is above $43,000 a year--well above the
national average. There are reasons for that.
Accordingly, minimum wage increases are inefficiently targeted to
help poor workers since fully 85 percent of minimum wage earners live
with their parents, have a working spouse, or are living alone without
children. In fact, when Congress last raised the minimum wage in 1997,
only 17 percent of the benefits of that increase went to families
living below the poverty level. For comparison, over 33 percent of the
benefits went to the richest two-fifths of all families, which is
another secret to raising the minimum wage.
It is not just at the lowest end of employment or the beginning
level, but there are contracts in America that are indexed to the
minimum wage. If the United States of America and this Congress force
an increase in the minimum wage, then it very well could trigger, in a
labor contract, in a labor organization with a company, an automatic
increase in the pay scale for people far and above the minimum wage.
Once again, it has an arbitrary effect on the marketplace that the
marketplace will adjust, and when it adjusts, someone will lose a job
or find it harder to get a job.
The University of Georgia in my home State recently did a study. The
economist who did that study was Joseph J. Sabia, a Ph.D. graduate in
economics from none less than Cornell University. He used Government
data from January of 1979 until December of 2004. This is a 25-year
longitudinal study, and in sum, Dr. Sabia found that a 10-percent
increase in the minimum wages causes a nine-tenths of 1 percent to a
1.1 percent decrease in retail employment, and an eight-tenths of 1
percent to a 1.2 percent decrease in small business employment. Dr.
Sabia's research confirmed yet again that low-skilled workers is the
group that is most likely to be most negatively impacted by the minimum
wage hike.
The study also reiterated minimum wage hikes are not an effective
means of reducing poverty among working poor because most minimum wage
workers are second or third earners in a family--teens or dependents--
and most workers in poor households earn more than the minimum wage.
But the best study I refer to most often is the study I conducted
during 33

[[Page S6132]]

years in the private sector employing hundreds of individuals in a real
estate company. I knew what competitive marketplace factors were, and I
knew how, when we brought people in--and I had some jobs in my company
that were at the lower end, minimum wage to start. They may have been
in maintenance, may have been in building upkeep, may have been
operators on the night desk. But I always found myself being pressured
by the market, not the Government, to raise the wage of the good worker
because the good workers, as they improved and gained their self-
confidence, shopped around.
In most of the years I worked, we were in the type of economy we are
today. We were in full employment where you are competing for the best
and the brightest. Those who are motivated, those who enter the system,
those who are at minimum wage to start with will quickly rise as they
gain skills, confidence, and self-esteem.
If we think an arbitrary, mandatory 29-percent increase in somebody's
wages is going to solve poverty, improve their self-esteem or, in fact,
solve the problem the Senator from Massachusetts intends it to solve,
we are wrong. Instead, it is probably going to deny about 29 percent of
those starting at that level an opportunity early on. It probably, as
President Roosevelt's Administration found in 1939, is going to cause
some people to actually lose their jobs. And worst of all, it is a
feel-good amendment whose intention ends up having the absolute
opposite result.
I care deeply for everybody in my State, everybody in this country,
and for everybody entering the workplace. I believe the minimum wage is
appropriate, but I believe to take a time of full employment, a time of
a vibrant economy, a time when study after study indicates the exact
opposite of what the distinguished Senator said, would be sending the
absolute worst signal.
I believe in the empowerment of our workers, not in the slavery of
our workers. I don't believe Government should arbitrarily try to fix
something that, in fact, the marketplace fixes day in and day out 365
days a year.
I urge my colleagues in the Senate to not try to fix something that
is not broken. I will oppose the Kennedy amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, our friend and colleague, the Senator
from Connecticut, Mr. Dodd, is looking forward to addressing the Senate
in just a minute or two.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I wish to review for the Senate what has
been happening to many families in this country over recent years
regarding the important growth of poverty and its relationship to the
minimum wage. It has a very direct relationship. The figures are rather
startling. It is appropriate, when we are talking about an increase in
the minimum wage, that we have some fuller understanding about the
growth of poverty in our Nation over recent years.
Mr. President, 5.4 million more Americans are in poverty. We had 31.6
million in 2000, and now there are 37 million. There is a 5.4-million
greater number of Americans living in poverty in the United States. Of
those 5.4 million, 2.5 million are children.
It is interesting, when we talk about an increase in the minimum
wage, if we look at the countries of Western Europe--take Great
Britain, for example, which has the second most powerful economy in
Western Europe. In October, they will increase the minimum wage, and it
will go to $9.80 an hour. Listen to Gordon Brown, the Chancellor of the
Exchequer, and the pride that he takes as a public servant, Chancellor
of the Exchequer--effectively our Secretary of Treasury and the head of
OMB combined--in having lifted 2 million children out of poverty over
the last 6 years. We have put 2.5 million children into poverty in the
last 5 years.
There are 5 million more Americans who are on the verge of hunger.
These figures are from Food Security in the United States, USDA. These
are not figures from those of us who are supporting an increase in the
minimum wage. These are the figures. We have 5 million more Americans
who are feeling the pangs of hunger, and the great percentage of those
are children, again.
What is consistent in the last 5 years? No increase in the minimum
wage, the growth of the number of people in poverty, the growth of the
problems of hunger. We have Americans struggling to survive in this
current economy, the Bush economy. Too many Americans are living in
poverty: 1 in every 10 families; nearly 1 out of every 5 children in
this country; 1 out of every 5 Hispanic Americans, and 1 out of every 4
African Americans.
This is interesting. It shows the extraordinary growth of poverty,
particularly child poverty, in the failure to increase the minimum
wage. So one says: What does that really have to do with the minimum
wage no longer lifting a family out of poverty?
In 1965, 1970, 1975, for a period of some 20 years, we had a minimum
wage that was above or at the poverty level. Republicans and Democrats
did this for 20 years, and now we are seeing an absolute collapse.
There was a little blip with the increase in the minimum wage, and now
we are down to an alltime low, some $5,888 or less. We know that in the
last 9 years, the increase to $5.15 is buying about 15 to 20 percent
less. It is not only $5.15 an hour, the purchasing of that $5.15 per
hour is less.
The United States has the highest child poverty rate of the
industrialized world. Here it is. Of all the industrial nations of the
world, we have the highest poverty rate. That obviously has something
to do with what their parents are being paid. Not completely; there are
other programs in these countries that are directed toward children.
The Presiding Officer, a former Secretary of Education, is familiar
with what a number of these countries do in terms of trying to assist
and providing special allowances for children in a number of ways.
Nonetheless, what comes out of it is the fact that we have the highest
child poverty rate of any industrial nation in the world. The fact that
we have not had an increase in the minimum wage is directly related to
that.

Again, if you look over at this chart here, the States with the
highest child poverty have the lowest minimum wages, with the exception
of Pennsylvania, and that is a State with 20 percent greater child
poverty than the national average but has a higher minimum wage. But
the rest are basically States with lower minimum wages, a direct tie-in
with the minimum wage and poverty and child poverty.
We have a chance to do something about child poverty and about
poverty in this country, and we can do it in a way that is not going to
endanger inflation or provide increasing unemployment or threaten the
small business community.
As we have gone through this, we have seen those arguments which have
been raised and which were raised again this afternoon by my good
friends from Wyoming and Georgia. They are arguments I have listened to
for the last number of years I have been in the Senate. The fact is
that when we have had an increase in the minimum wage, no one has ever
said: Let's go back, let's go back, although we are going to be faced
with an alternative tomorrow to my increase in the minimum wage that
will take us back, will eliminate the coverage, eliminate overtime for
a number of workers, and that is unfortunate.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, earlier today we went through a good deal
of the history of the minimum wage, and we also went into the growth of
poverty, particularly for children and

[[Page S6133]]

for those who receive the minimum wage. I wish to read a couple of
real-life stories because I think it is always useful to understand
that besides the graphs we have been able to show and the statistics we
have been able to show on these charts, we also show in real terms what
is happening to a lot of our fellow citizens, our fellow Americans.
This is a story from the Sacramento Bee, and I ask unanimous consent
that it be printed in the Record in its entirety. This is June 18,
2006, last Sunday:

Monique Garcia earned minimum wage for most of a decade
before becoming homeless. She washed dishes, swept floors,
collected parking tickets, worked cash registers, staffed
drive-through windows, and flipped burgers. Despite that, two
months ago, the 26-year-old single mom found herself with too
little money for rent and no place to go.
She moved with her 7-year-old daughter and 5-year-old son
into St. John's, a family shelter tucked into an industrial
corner of Sacramento. They share a room with another minimum-
wage worker and her two young children. Garcia and her
roommate trade off, one watching the kids while the other
works.
It's hard, you've got a family to support and minimum wage
isn't it, Garcia said last week.

There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Sacramento Bee, June 18, 2006]

Life on $6.75 an Hour: When Ends Don't Meet

(By Jocelyn Wiener)

Monique Garcia, a single mother living on minimum wage,
ended up homeless.
As the gulf between what they earn and what they owe
continues to grow, many of the region's minimum-wage workers
have turned to food banks for sustenance. Some, like Garcia,
have moved into homeless shelters or cars for housing.
These workers welcome Gov. Arnold Schwarzenegger's proposal
to hike the minimum wage by a dollar, to $7.75 an hour. They
cheer a separate plan proposed by state legislators--and
supported by many labor groups--that would ensure the minimum
wage increases each year to keep pace with inflation. About
1.4 million of the state's lowest-paid workers would be
affected.
California's minimum wage is lower than that of more than
half a dozen states, but is higher than the federal minimum
of $5.15 an hour. Washington state has the highest minimum at
$7.63 an hour, and it is indexed to inflation.
California's Industrial Welfare Commission is scheduled to
consider the proposals early next month. Many business groups
oppose a minimum wage increase because it could force
increases for higher-paid employees, as well, and might cause
some small businesses to close.
According to a report published earlier this year by the
California Budget Project, a nonprofit group that conducts
economic and policy analysis to benefit the poor, the
purchasing power of the minimum wage has dropped $0.88 since
2002, a decline of 11.5 percent.
Advocates for the working poor say earnings have slipped so
far out of sync with the cost of living that the proposals
are unlikely to remedy families' deep financial distress.
Barring a drastic policy change, they say workers like Garcia
will continue to struggle mightily under the ballooning costs
of health care, transportation, child care and housing.
``I hope I am wrong,'' said Ralph Gonzalez, a social worker
with the Sacramento County Department of Human Assistance.
``I hope with the increase of the minimum wage we can get it.
But with all my years of experience, I really doubt it. I
really do.''
Another California Budget Project report, this one released
in September 2005, estimated that a single adult in the
Sacramento region needed to earn about $11.61 an hour, or
$24,151 a year, to cover housing, utilities, transportation,
food, health care, taxes and miscellaneous expenses. They
calculated that a single parent raising two children, such as
Garcia, would need to earn $24.17 an hour, or $50,272
annually, to cover basic expenses.
Minimum-wage earners patch together strategies to make ends
meet: some cram into one bedroom apartments shared by
multiple families. Many work two or three jobs. They run up
debt to pay medical bills, buy clothing at rummage sales and
visit food banks when there's nothing left to eat. Many
teeter on the edge of homelessness until, like Garcia, they
fall off.
Garcia has round brown eyes, a long ponytail and the names
of her children, Yesenia and Joshua, tattooed over her heart.
Until last week, she worked about 15 hours a week at Round
Table Pizza. Now she's applying at Del Taco and Wal-Mart and
a discount store. She's worked full-time in the past and
would like more hours, but recently hasn't been able to get
them. She's afraid to take a second job because her absence
already is hard on her children. For the same reason, she
finds it difficult to complete the coursework she needs for a
GED, virtually a requisite for most better-paying jobs.
That leaves her with about $190 every two weeks, after
taxes, she said. Even with a $300 monthly check from
Temporary Assistance for Needy Families for her 7-year-old
daughter, and a monthly $300 in food stamps, she doesn't have
enough to rent an apartment.
To even consider an application, most landlords want her to
earn at least double the rent. The cheapest one-bedroom she's
seen is in North Highlands, for $400.
John Foley, executive director of Sacramento Self Help
Housing, said most landlords in Sacramento actually require
tenants to make 2.7 times the rent. Most refuse to rent to
people with any history of evictions or bad credit.
``It's legal to have those criteria,'' he said. ``But, of
course, they really crunch the poor.''
He said it is especially disconcerting that workers in
Sacramento cannot afford rent, because the region is
relatively affordable compared with much of the rest of the
state.
``We ought to be able to fix it here,'' he said. ``That's
what's so shameful.''
Health care costs, which increase more than 7 percent each
year across the country, also pinch the working poor. Some
workers, like Garcia, receive Medi-Cal. But, for a whole host
of reasons, many others are ineligible for government
programs.
Marina Aguilar, an uninsured Der Wienerschnitzel worker,
knows intimately the burden of medical bills. She says her
husband, an asthmatic, was admitted to a local hospital
overnight after a severe attack two years ago. He was
uninsured, and the bill for his short stay came to $5,000.
For two years, Aguilar says, she and her husband--who lays
tile for a living--have paid $100 every month on that bill.
So far, they've paid more than $2,000, but they still owe
about $4,000 because of interest.
Aguilar, a 37-year-old mother of three, earns minimum wage
working 30 to 35 hours a week. Her husband is now insured,
but she is not covered by his plan. Last month, her doctor
told her there was something in her breast that needed to be
biopsied. The biopsy alone would cost $5,000. Her mother,
grandmother, great-grandmother and sister all had cancer; the
risk is clear.
``I'm worried, because if I have cancer, cancer spreads
very quickly,'' she said in Spanish as she sat in her sister-
in-law's lace-curtained home across the street from the
Sacramento Food Bank.
Aguilar would like to use the money she earns to buy things
for her 10-, 15- and 19-year-old daughters and 3-year-old
grandson. She'd like to take the younger ones to Chuck E.
Cheese's, maybe even on a vacation someday. She's never been
on a vacation.
Low-wage work can seem, to many workers, to be a whirlpool
from which they can never escape. Gonzalez, of the Sacramento
County Department of Human Assistance, has another name for
it: Catch-22.
Homeless people don't have alarm clocks or easily
accessible showers, he said. So those workers who are
sleeping in their cars, or under a bridge, often lose their
jobs because they can't be presentable for work. Those who
are not homeless may need to ride a bus several hours to get
to work on time. They may not be able to afford the high cost
of child care. Few services exist to help them, Gonzalez
said.
At nearly age 60, Epitacio Leon has spent 43 years watering
and tilling and picking the state's agricultural fields. His
face is baked dark from decades in the sun, his fingernails
are caked with earth, his bottom teeth are missing. His most
recent raise, from $6.75 to $7 an hour, represents the
highest wage he's ever earned.
Leon rises at 4 every morning in the tiny trailer where he
lives alone. He eats breakfast, then catches a ride to the
fields with another worker. By 6 a.m. he is working,
irrigating tomato and sunflower fields near Woodland. He
works for 12 hours, then comes home exhausted. He drinks a
few beers and goes to bed.
``I'm old already,'' he said in Spanish as he sat in his
niece's Woodland home last week. ``I'm tired of working
already.''
If he retires now, he said, he wouldn't get enough money
from the government to pay his bills.
The sounds and smells of his great-niece's high school
graduation barbecue floated into the living room. Always
working, never saving, Leon didn't have a family of his own.
But he visits his niece's family on evenings and weekends and
special occasions, and finds pleasure in playing the role of
great-uncle.
On the evening of the graduation party, his 10-year-old
great-nephew walked into the living room. Leon teased him a
little, then asked him to bring him a beer. Then he stopped
him.
``Let me see whether I have a peso,'' he said, fishing in
his pocket. He pulled out a $1 and a $10 bill. He deliberated
a moment before handing the boy the $10.
The boy beamed. Leon smiled a little.
It would be nice to retire some day, he said. But it won't
be next year, and probably not the year after that.
The Cost of Living:
$5.15 federal minimum hourly wage.
$6.75 California's minimum hourly wage.
$7.63 Washington state's minimum hourly wage, the highest
in the nation and indexed for inflation.
$11.61 hourly wage a single adult in the Sacramento region
needs to cover basic living expenses.
$24.17 hourly wage a single parent raising two children in
this region needs to cover basic living expenses.

[[Page S6134]]

Mr. KENNEDY. The stories continue along. This is happening out in
Sacramento.
Here is a story about, for all intents and purposes, Christie:

Christie did a job that this labor-hungry economy could not
do without. Every morning she drove her battered '86
Volkswagen from her apartment in public housing to the YWCA's
child care center in Akron, OH, where she spent the day
watching over little children so their parents could go to
work. Without her and thousands like her across the country,
there would have been fewer people able to fill the jobs that
fueled America's prosperity. Without her patience and warmth,
children could have been harmed as well, for she was more
than a babysitter. She gave the youngsters an emotionally
safe place, taught and mothered them, and sometimes even
rescued them from abuse at home.
For those valuable services, she received a check for about
$330 every two weeks. She could not afford to put her own two
children in the day care center where she worked.

She is looking out for children, and she is unable to provide the
childcare for herself.
Carolyn Payne did everything right but still can't find a job with
decent wages.

She had earned a college diploma, albeit a two-year
associate's degree. And she had gone from a homeless shelter
into her own house, although it was mostly owned by a bank.
The third objective, ``a good-paying job,'' as she put it,
still eluded her. Back in the mid-1970s, she earned $6 an
hour in a Vermont factory that made plastic cigarette
lighters and cases for Gillette razors. In 2000, she earned
$6.80 an hour stocking shelves and working cash registers at
a vast Wal-Mart superstore in New Hampshire.
``And that's sad,'' she said.

She just can't make it and is in a homeless shelter. These people,
our brothers and sisters of America who want to work, want to provide
for their families, will do hard and difficult work. Carolyn Payne
should have a greater sense of hope in the richest and the most
powerful country in the world. We will give them that if we increase
the minimum wage.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I am going to describe what I understand
is in the amendment which is being offered by Senator Enzi. I think it
is important that we have a chance over the evening--because it looks
less likely that we are going to be completing this debate tonight. We
have others who are on their way over here. But I am going to review
this and try to get through it, and then if I have misstated it, I hope
I will be corrected.
In the last 9 years, while costs have been rising, the minimum wage
has been stuck at $5.15 an hour; that is, $10,712 a year, $6,000 below
the poverty line for a family of three. Since 1997, the minimum wage
has lost 20 percent of its value. The Enzi proposal is a $1.10
increase--far short of making up for this lost value. It won't even
make up for the lost value of the purchasing power of the existing
minimum wage. It leaves behind 4.8 million workers who would be covered
by the Democratic proposal because it only raises the wages of 1.8
million workers.
The raise to $5.15 was historically low, lower than any but for one
increase in the 1960s. In fact, before the 1997 increase, the minimum
wage had fallen to its lowest level since 1960. So we can't allow such
a low increase for hard-working minimum wage workers.
Eighty percent of the 14.9 million Americans who would be affected by
the minimum wage are adults, and more than a third are the sole
breadwinners in their families. Minimum wage workers have waited 9
years. They deserve one that is fair.
On the issue about the 10 million Americans who will lose the minimum
wage in overtime protection, first, the Bush administration and
Republican leadership in Congress stripped away overtime protection
from 6 million Americans. That has already taken place. That has
already taken place. They have done that through rules and regulations.
Now they want to deny over 10 million more workers, minimum wage
workers, overtime pay by eliminating the fair labor standards coverage
entirely. Do you see what I mean? If you eliminate the coverage of the
Fair Labor Standards Act, you eliminate the protections for overtime
pay.
Currently, all employees who work for employers who are engaged in
interstate commerce, have gross annual sales of at least $500,000, are
guaranteed the minimum wage and overtime pay. But even in businesses
that have less than $500,000 in annual sales, employees still have
individual minimum wage and overtime coverage if they are engaged in
interstate commerce. The Enzi amendment would raise the $500,000 annual
sales to $1 million and eliminate the fair labor standards coverage for
workers who are engaged in interstate commerce. No more overtime for
those individuals--10 million.
Raising the annual business threshold to $1 million and eliminating
the individual coverage would force greater numbers of hard-working
Americans, retail workers, security guards, garment workers,
waitresses, and their families into poverty. Raising the annual
threshold and eliminating individual coverage would allow businesses to
pay their workers less than the Federal minimum wage and require them
to work longer hours without overtime pay.
So, on the one hand, you get the $1.10 increase for 1.8 million,
which will not even cover the lost value of the $5.15 since the last 9
years. Then you eliminate the overtime protections for these workers as
well. Because the Fair Labor Standards Act guarantees overtime and
equal pay for women and men, this exemption jeopardizes these rights
for over 10 million workers.
The gross annual sales threshold was created as a way to determine
that employers were engaged in interstate commerce, not as a way to
exempt workers from minimum wage and overtime protection. Doubling the
annual sales threshold and eliminating individual coverage would take
away those protections for over 10 million workers, contradicting the
long-term intent of the Congress to expand the Fair Labor Standards
Act.
For over 60 years Congress has repeatedly amended the Fair Labor
Standards Act to provide more protection, more minimum wage and more
overtime protection--not less. This will be the first time we will see
the significant reduction rather than an expansion.
Instead of trying to exclude over 10 million workers from the
guarantee of a minimum wage, we should be trying to raise it. It has
been more than 9 years. Americans have waited long enough.
This chart indicates raising the business exemption reverses a
tradition of extending worker rights.
Congress amended the business exemption in 1961, 1967, 1969 and 1989,
each time to afford more employees minimum wage and overtime
protections. The current $500,000 exemption was established
deliberately to cover more employees. By raising the exemption, the
Republican proposal would reduce the protection for the first time.
That is very important.
I want to cover the last two points. I see the Senator from
Connecticut here.
Under the Republican proposal, workers opt into the flextime system,
but once they do, they do not control their own schedules. They work a
50-hour workweek when their employer tells them to, not when they
choose to.
Under the current system, workers would get overtime for those extra
10 hours a week. Under the Republican proposal, they would not.
The Republicans claim the proposal would give the parent time to see
a child's soccer game or attend a child's school play. They, in
reality, don't get that freedom. They just get paid less for working a
longer workweek.
Public sector workers also have greater protection from being coerced
to agree to flextime if they don't want it. Pubic employees generally
have the protection of a union contract as well as the constitutional
due process protections afforded them in the Civil Service, although
this administration is trying to undermine those due process rights as
well. Public employees can challenge abuses of flextime within the
context of those protections, whereas most public employees cannot.
As then-Governor Ashcroft explained in 1985, when the Senate was
considering whether to permit flextime in the public sector:

[[Page S6135]]

State and local governments are qualitatively different in
structure and function from private business. Public
employees serve under exceptional circumstance, the most
significant characteristic of which is the protection public
servants enjoy because they work in government.

I am also going to add to the statement an analysis on the tip credit
that would show how this effectively preempts the State from being able
to make a judgment on this. This is a one-size-fits-all. It is ``the
Federal Government knows best.''
If we pass it here, we preempt what Massachusetts can do, what
Connecticut can do, what Georgia can do. It doesn't seem to me to be
the wise course of action. We permit States to make their own judgment
to increase the minimum wage because that is what it is, a minimum. It
is a bottom. But this proposal is going to interfere with the States'
wage policy in other ways.
I yield the floor.
The PRESIDING OFFICER (Mr. Chambliss). The Senator from Connecticut.
Mr. DODD. Mr. President, let me begin, if I may, by once again
commending our colleague from Massachusetts for his leadership on this
issue. Over the years, no one has been a stronger champion, a louder
voice, a stronger voice on behalf of the most disadvantaged in our
society than the senior Senator from Massachusetts. Once again he is
proving that point with this amendment he has offered. Frankly, as I
recall in years past, increases in the minimum wage were the ones that
were endorsed by both parties. I am old enough to remember when an
increase in the minimum wage would have occurred in far less time than
9 or 10 years.
Nearly a decade has elapsed since the last increase. I am sure my
colleague from Massachusetts can tell me on the average, it was
probably every 2 or 3 or 4 years that the increase would occur. When it
did, when the proposal was offered and it was worked out between the
two parties, it went through almost unanimously if not unanimously. But
here we are. This is an indication of what has happened in our beloved
country over the last number of years.
Nearly 37 million of our fellow citizens, including 13 million
children are currently living at or below the poverty level in the
United States. Yet we somehow cannot find ways among ourselves here to
reach a consensus to increase the minimum wage to $7.25 over the next 2
years--a $2.10 increase.
I find that rather shocking. I suppose it is an indication of what
has happened to the body politic in this country, that you cannot find
common ground to make a difference in the lives of almost 40 million of
our fellow citizens.
These Americans are struggling out there every single day and as I
mentioned earlier, 13 million of them are totally defenseless--our
children. Certainly, while Members of Congress may find it odd, the
average citizen out there, even those who are making way beyond the
minimum wage, were they here tonight in this Chamber, would tell you
how difficult it is to meet the rising cost of living--food, housing,
clothing--not to mention soaring energy costs. Yet in the midst of all
of that, we find it impossible to provide an increase, after nearly a
decade, of $2.10 per hour for these families in our country.

Mr. KENNEDY. Will the Senator yield for a moment?
Mr. DODD. I am happy to yield to my colleague from Massachusetts.
Mr. KENNEDY. As all of us know, the Senator has been the chairman of
the Children's Caucus here in the Senate. He is the author of the
Family and Medical Leave legislation. He worked 5 years to get that
legislation passed. It has been a great success. There were extensive
hearings in our committee over the course of the years on children and
children's needs, children's education.
Does he agree with me that we have seen this remarkable growth of
child poverty in the last 5 years? The Senator has just mentioned this.
I just want to underline it. In the strongest economy of the world, we
are seeing a significant growth in child poverty and child hunger in
this Nation, and we have seen, as the Senator pointed out, the virtual
lack of increase in the minimum wage and the reduction of purchasing
power.
Does the Senator join with me in recognizing what we have seen? The
U.K., which is the second strongest economy in Europe, will be going to
$9.80 an hour in December. Gordon Brown takes pride in the fact that
they have raised 1.8 million children out of poverty in the U.K. over
the period of the last 5 years. In Ireland it is $9.60, and they have
raised hundreds of thousands of children out of poverty.
Does the Senator agree with me that the fact of the failure of
increasing the minimum wage has had an extremely negative impact on the
well-being of children in our country, resulting in the fact that there
are hundreds of thousands, even millions more children who are living
in poverty because we have failed to do that?
Mr. DODD. Mr. President, I say to my colleague, if he will yield
back, I couldn't agree with him more. This is one of the great myths
about the minimum wage increase. You will hear over and over again; in
fact, we have heard it here already today: If you increase the minimum
wage, this hurts business. This makes it more difficult to hire people,
to employ people.
I found it rather interesting that in surveys done among the business
community, particularly the small business community, 86 percent of
small business owners do not think the minimum wage affects their
business.
The Senator from Massachusetts is absolutely correct that raising
children out of poverty is directly related to the ability of their
parents to provide for them.
Again, it should not take lecturing here to my colleagues in this
great body to make the case, in the 21st century, that we are going to
have to have the best prepared, best educated, healthiest generation we
can produce if we are going to remain competitive in a global economy.
When you have 13 million of your children growing up in poverty, how
are these children going to effectively compete? How are they going to
be well educated? How are they going to be healthy enough not only to
be good parents themselves, but good workers, and good citizens?
It seems axiomatic. It should be understood on its face. If we
continue on the road we are traveling, with the number of children in
our country growing up in poverty increasing, it is going to make it
more difficult for our country to compete in the 21st century.
There is a graph here which I know the Senator has seen, but it makes
the case of what is happening. The United States has the highest child
poverty rate in the industrialized world: Denmark, Sweden, France, the
Netherlands, Germany, Spain, Japan, Canada, U.K., Italy. All of these
countries, major competitors in the world, do a far better job seeing
to it that their children are better prepared to meet those challenges.
Our future is lagging behind when a substantial number of children
are growing up, in our great country, in poverty. This is through no
fault of their own. It is through the accident of birth, being born
into a family where their parents are struggling to earn a decent wage
and make ends meet. These are working families, by the way. These are
not families collecting subsistence or some kind of charity. They are
out there working, earning an income that does not allow them to meet
the basic necessities of life.
Mr. KENNEDY. Will the Senator yield?
Mr. DODD. I am glad to yield to my colleague.
Mr. KENNEDY. The Senator has given just an excellent statement about
what happens to children when they live in poverty. I was wondering if
the Senator would comment about the growth of hunger over the last 5
years. There are 5 million more of these people now, according to the
USDA, and more than 20 percent of these are children. Five million more
Americans are hungry or on the verge of hunger.
I wonder, I ask someone who chaired the Children's Caucus, I ask
about the fact that children are increasingly pressured in terms of the
issue of hunger, what does this do to a child in terms of a child's
development?
Let me add one addendum. I believe the Senator may remember what
happened, I think it was in Philadelphia, where they expanded the
school lunch program to include a school breakfast program. They found
out that the grades of the children all went up noticeably--I think it
was somewhat

[[Page S6136]]

close to 10 percent. In any event, it was clearly noticed, as they
found out, when children have decent nutrition, their performance--in
terms of educationally, culturally, socially, and from a discipline
point of view--is very importantly impacted. I wonder if the Senator
would tell us from his own experience what he knows about this.
Mr. DODD. I thank my colleague for bringing up this chart to
emphasize the point. I think these numbers are from the Department of
Agriculture.
Again, the Senator is making an excellent point. If you have a hard
time understanding what the Senator from Massachusetts is saying or the
Senator from Connecticut, ask any teacher. Ask any teacher in this
country, particularly at the elementary school level, what sort of
academic performance, what sort of attention spans you have with a
child who has received adequate nutrition, a decent meal, compared to
those who have not. You will hear anecdote after anecdote of what
happens with children who do not have proper nutrition--not to mention
the growing health care problems that can emerge.
This is just good, sound investment policy. If you really care about
the future of your country, if you really care about whether or not our
Nation's children are going to be able to perform adequately in this
century, then clearly making sure that they have the basic essentials
is, again, so obvious that it should not require a debate on the floor
of the Senate to make the point.
Mr. KENNEDY. Will the Senator yield for one more question?
Mr. DODD. Yes.
Mr. KENNEDY. Now we find out there is increasing hunger, and now we
know it affects more than one million children.
Can the Senator tell us what he knows about Americans and their
degree of support to relieve the hunger of children? It is truly
overwhelming, is it not?
Mr. DODD. It is not surprising but it is worthy of being repeated.
Ninety-four percent of our fellow citizens across this country,
regardless of geography and economic circumstance, of gender,
ethnicity, whatever the differences may be, agree with the following
quotation: People who work should be able to feed their families.
Ninety-four percent subscribe to that notion.
The Senator from Massachusetts is talking about working families. Our
fellow citizens believe that if you are a working family, you should be
able to make enough money to feed your family.
This is the United States of America. This is not some Third or
Fourth World country we are talking about. Yet with 37 million of our
fellow citizens, adults and children, unable to meet the requirements
of basic food and nutrition, it ought to stun everyone in our country.
What we are trying to do is make it possible for these people who are
working hard to be able to provide for their families. That is all we
are talking about.
I point out to colleagues who have offered an alternative to this
proposal, that a $1.10 per hour increase to $6.25 per hour over the
next 2 years, means that millions of children would be left behind.
What the Senator from Massachusetts is offering--with a bipartisan
group of support, we hope--is a $2.10 per hour increase to provide for
the needs of working families. What the Senator from Massachusetts has
laid out I couldn't agree more with him. If you are truly interested in
making a difference in this country, that extra $1 per hour could make
a huge difference in the ability of these families to make ends meet.
Among full-time, year-round workers, poverty has increased by 50
percent since the 1970s. Minimum wage employees working 40 hours a
week, 52 weeks a year are earning $10,700 a year. That is almost $6,000
below the Federal poverty guidelines of $16,600 for a family of three--
$6,000 less than you ought to be able to have if you are going to meet
the poverty guidelines.
Here we are in the 21st century, and the minimum wage is losing its
value as well. Since the minimum wage was last raised nearly 10 years
ago, its real value has eroded by 20 percent. Minimum wage workers have
already lost all of the gains from the 1996-1997 increase.
Today, the real value of the minimum wage is more than $4 below what
it was in 1968. To have the purchasing power it had in 1968, the
minimum wage would have to be more than $9.25 per hour--not the $5.15
we are currently at.
I want to make a point as well about what the impact of this minimum
wage increase would have on the lives of working families.
Nearly 15 million Americans would benefit from the minimum wage
increase to $7.25 per hour. That is 6.6 million people directly
affected in a positive way and another 8.3 million affected indirectly.
Almost 60 percent of these workers are women, and 40 percent are people
of color. Eighty percent of those who would benefit are adult workers,
not teenagers seeking pocket change, as some have said, and more than a
third of these are adults are the sole providers for their families.
Again, we are talking about an increase to $7.25 per hour, which is
still hardly enough to make ends meet when you consider the cost of
food, clothing, housing, not to mention the skyrocketing cost of energy
that has hit everybody in this country. We all know how hard it is to
provide for our families.
If you raise the minimum wage to $7.25 per hour, it would mean an
additional $4,400 a year. That additional money would be enough for a
low-income family of three to buy 15 months of groceries which they
couldn't otherwise get, 19 months of utilities which they would not
otherwise be able to afford, 8 months of rent, over 2 years of health
care, 20 months of child care, 30 months of college tuition at a public
2-year college. Consider those numbers--20 months of child care that
these working families need if they are going to keep their jobs and
keep their children safe, not to mention 30 months of college tuition.
It may not seem like much, but it is important.
In 10 years, the person earning minimum wage has received no pay
increases, unless they have been lucky enough to live in a State that
increased the minimum wage.
But for most of our fellow citizens, that has not been the case. And
we now have nearly 40 million of our fellow citizens living at or below
the poverty level.
I repeat this because I know my colleagues care so much about it. To
have 13 million of our children in this country who, except by accident
of birth, have found themselves living under these circumstances and
having to survive at that level is unacceptable.
This is the United States of America. We ought to be doing far
better.
To find out, as we recently pointed out on the chart, that almost
every other industrialized country in Western Europe is doing far
better by their children, far better by their minimum wage workers,
ought to be a source of collective embarrassment for this great country
of ours.
I don't think I have to make this case too often. We know how
difficult it is going to be to compete in the 21st century. If we don't
have a generation coming along that is well educated and well prepared
to meet the challenges of the 21st century, it is going to be hard for
Americans to remain strong and competitive.
You just have to read about what is happening in our major
competitive countries. We take great pride in 60,000 high school
students in this country who competed last year in the science fair, a
great number. Compare that with 6 million who competed in the same
science fair in the People's Republic of China last year.
That is the challenge of the 21st century.
With 13 million kids in this country going without getting a decent
meal every day, we are going to have a real problem on our hands if you
do not begin to address that.
I feel strongly about this and I wish we could reach agreement
quickly. I remember the days when the minimum wage increase was done by
a voice vote. We worked out the differences and sat down and
negotiated, and it was passed unanimously on a record vote or a voice
vote. How sad it is that we have come to this, where nearly a decade
later we are sitting here arguing with each other about whether 15
million of our fellow citizens could get a bump of $2.10 per hour up to
$7.25 an hour.

[[Page S6137]]

This ought to be something we can all agree on and not engage in this
kind of acrimonious debate.
I want to point out, as well, that there are other provisions that
will be offered by the majority that are very troublesome to me,
including a fundamental change in the overtime pay schedule that I
think is very unfair to people. This goes beyond the minimum wage
worker. Here we have always provided that if you work more than a 40-
hour week in that week, then you get time and a half. That has been
Federal law. We are now saying we are going to apply a 2-week standard.
An employer could have you work 50 hours in 1 week and 30 hours in the
next. That is 80 hours, but for the 10 hours more in the first week,
you don't get the additional pay.
That is unfair to a lot of people in this country. If you work an
additional 10 hours in a week, that can be hard labor, and you ought to
get time and a half. The law requires it. That would be a $3,000 per
year pay cut for a median income worker and an $800 pay cut for minimum
wage workers. That additional 10 hours of overtime pay could make a big
difference.
I don't know why the majority decided to add that provision. It seems
to me that is unduly harsh to an awful lot of people.
We talked about the poverty level working with the minimum wage. I am
talking about people who are above the poverty level but are struggling
and don't have to be making $16,000 or $10,000 to be struggling in this
country. You could be making $40,000, $50,000 or $60,000 a year. If you
are a family of four, you may very well be struggling, considering the
cost-of-living increases that have gone on. For that man or woman who
works an additional 10 hours a week, 10 hours away from their families
after putting in 8 hours a day, 5 days a week, that additional 10 hours
can be hard. And to say I am not going to give time and a half for
those 10 hours I think is unfair to those people.
If that ends up being adopted, I think it is a great step back as
well.
I hope we will adopt the proposal that the Senator from Massachusetts
has offered. I commend him, once again, for making a strong case.
Again, on behalf of 13 million children in this country, and million
of people who are out there struggling tonight to take care of their
families, to raise good families, I urge adoption of the amendment
being proposed by our colleague from Massachusetts. I hope it will be
adopted by our colleagues when voted on tomorrow. It is an important
contribution. Nine years is too long to wait for an increase in the
minimum wage.
I yield the floor.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WARNER. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. Mr. President, on behalf of the leadership, I make this
unanimous consent request.
I ask unanimous consent that the first amendment, No. 4323, be
withdrawn; provided further that Senator Enzi be recognized in order to
offer a first-degree amendment relating to the minimum wage; provided
further that the Senate then resume debate at 9:30 a.m. on Wednesday
and that there be 1\1/2\ hours of debate equally divided between the
chairman and ranking member of the HELP Committee or their designees. I
further ask unanimous consent that at the use or yielding back of time,
the Senate proceed to a vote on Kennedy amendment No. 4322, to be
followed by a vote on the Enzi amendment, with no amendments to the
amendments in order; provided further, if either amendment does not get
60 votes in the affirmative, then that amendment would be automatically
withdrawn.

I further ask unanimous consent that following those votes, Senator
Levin be recognized in order to offer amendment number No. 4320 related
to Iraq. There will be 5 hours equally divided in relation to that
amendment, and following that debate, the amendment be set aside and
Senator Kerry be recognized to offer his amendment related to Iraq.
Mr. DODD. Reserving the right to object, I express my appreciation to
the Senator from Virginia and the Senator from Michigan. I have an
amendment I am considering offering dealing with Guantanamo Bay.
I inquire as to whether there is an opportunity to work that out?
Mr. WARNER. I simply say, I understood the Senator has that
amendment. I have asked colleagues on this side to be here. They are
now present.
The Senator indicated you would lay it down now for the purpose of
introducing the amendment, having a colloquy on the amendment, and the
time for the voting would be established by the leadership at some
point in the future.
Mr. DODD. I thank the chairman.
Mr. WARNER. The Senator is now ready to proceed.
Mr. DODD. I wanted to make sure in the discussion there was a space
for that.
Mr. HARKIN. Reserving the right to object, I am here to speak on the
minimum wage amendment.
Are we going off of that?
Mr. REID. We will vote on it in the morning.
Mr. HARKIN. OK.
Mr. LEVIN. Reserving the right to object, is it my understanding that
there would be no amendments allowed to my amendment?
Mr. REID. If the Senator will yield, we just got a call that some
Senator objects to this.
Mr. WARNER. I didn't hear what the distinguished Democratic leader
said.
Mr. REID. A Senator just called objecting to this request.
The PRESIDING OFFICER. Is there an objection to the unanimous consent
proposed by the Senator from Virginia?
Mr. LEVIN. There is an objection, apparently, which we just received
in the cloakroom.
Although I support it, we have to object.
The PRESIDING OFFICER. The objection is heard.
The Senator from Iowa.
Mr. HARKIN. Mr. President, last March in the bankruptcy reform bill,
the Senate debated the minimum wage with Senator Kennedy offering an
amendment to increase the minimum wage over a 2-year period to $7.25.
That amendment failed on a largely party-line vote, 46 to 49. Again,
last October, another Kennedy amendment to increase the minimum wage
over a 2-year period, to $6.25, again failed on a largely party-line
vote, 47 to 48.
Both votes ignored the fact that 37 million Americans, many holding
down full-time jobs, are living in poverty.
Here we are again. This week we again debate an amendment offered by
Senator Kennedy, me, and many others, to increase the minimum wage. I
hope this time the outcome will be different. Indeed, with 37 million
Americans living in poverty, almost 13 percent of our population, we
have to have a different outcome. We have to raise the minimum wage.
Poverty is increasing sharply among the working poor. The new Census
Bureau numbers show over the last year alone, the number of Americans
who work but live in poverty increased by 563,000. The number of
Americans who work but live in poverty increased by half a million.
A job ought to lift people out of poverty not keep them in poverty.
But that is what we have today--more and more Americans working, yet
more and more Americans falling into poverty who are working. A job
ought to lift you out of poverty. It offends our basic sense of
fairness to know there are many Americans who work full time, play by
the rules, and still live in poverty.
Millions of Americans find themselves doing this, including 13
million children. That is why it is absurd, beyond reason, hard to
explain to the average person why the minimum wage has been stuck at
$5.15 an hour for the last 9 years.
How would any Senator like to have the same salary that he or she got
9 years ago? Seven times in the last 9 years we have raised our
salaries. We have adjusted upward to account for the increased cost of
living. Yes, over the same time, we have callously allowed the income
of workers earning the minimum wage to languish, lose value every year,
as inflation has gone up and they stay the same. It is incredible we
would raise our salaries seven

[[Page S6138]]

times in 9 years and never raise the minimum wage.
The amendment offered by Senator Kennedy and me and others to raise
the minimum wage to $7.25 is, as I said, long overdue. Prior to last
March, it had been 5 years since we last had a vote on the minimum
wage. It has now been 9 years since we last raised the minimum wage.
To have the same purchasing power, for example, if we took the year
1968, the minimum wage today would have to be more than $9.26 an hour.
Minimum wage workers earn a paltry $10,712 a year total, almost $16,600
below the Federal poverty guidelines for a family of three.
This chart shows the salary of a full-time minimum wage worker to be
$10,712. The average family health care premium in 2005 was $10,880.
Right now, 35 percent of minimum wage workers in America are the sole
support of their families. These are not just teenagers. Some may be
teenagers; more often than not it is a single, working mother. They can
work hard all year at the minimum wage--and they do work hard, if you
have ever seen anyone do that kind of work--and they cannot even buy a
health care premium.

As I said, the salary for full-time minimum wage workers is $10,712;
the average cost of a health care premium, $10,880. They could not even
afford to buy health care, let alone pay rent, buy food, pay for
heating, buy gas for the car to get back and forth to work.
As I said, there is a lot of misperception about who gets the minimum
wage. We hear it is teenagers, part-time workers flipping hamburgers.
Here are the facts: 35 percent earning the minimum wage are the sole
breadwinners of their families; 61 percent are women; almost a third of
those women are raising children; 76 percent of the women who would
directly benefit from an increase are over the age of 20. Among
families with children, and a low-wage worker who would be affected by
an increase, the affected worker contributes half of the family's
earnings. Those are the facts.
A decent minimum wage is critical to moving people from welfare to
work. I thought that is what we wanted to do. Since the Clinton
Welfare-to-Work Program in 1996, we reduced the number of welfare cases
by half. But so many of the people who moved off of welfare did not
move out of poverty. Why? Because at the current minimum wage, it is
not a living wage, it is a poverty wage.
An increase to $7.25 would make a dramatic difference. It would add
$4,370 in income. That is real value to a family living in poverty.
Nearly 7.5 million workers would benefit from a minimum wage increase.
In my home State of Iowa, 87,500 workers would benefit from the
increase, more than 6 percent of our workforce.
In urging the passage of the first minimum wage legislation,
President Franklin Roosevelt once said:

No business which depends for existence on paying less than
living wages to its workers has any right to continue in this
country.

Imagine that. He went on to say:

By living wages, I mean more than bare subsistence levels.
I mean the wages of a decent living.

He had it right. We can do it better. Gas prices are up 70 percent,
health insurance is up 33 percent, college tuition is up 35 percent,
housing is up 36 percent, and wages are up 1 percent. Minimum wage is
up nothing, not even 1 percent.
During the same period, private sector executive salaries have risen
dramatically. Right now, the average CEO in America makes $11.8 million
a year--the average worker is earning $27,460 a year--431 times what
the average worker makes. Imagine being a minimum wage worker making
$10,000.
Mr. REID. Would the Senator yield for a unanimous consent request?
Mr. HARKIN. As long as I get the floor back.
Mr. REID. I ask that the Senator, when we finish, be permitted to
resume the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I would like to ask the unanimous consent
request made by the Senator from Virginia a few minutes ago be agreed
to.
The PRESIDING OFFICER. Is there objection?
Mr. WARNER. Mr. President, I presume that the request is as read and
that there have been no changes, and we will then have the sequence of
recognition of Senators Levin and Kerry; and I add to it that
thereafter the Senator from Virginia would be recognized for the
purpose of submitting whatever amendment.
I ask for recognition for the purpose of offering the amendment from
our side on whatever subject that comes up at that time at the
conclusion of these two.
Mr. LEVIN. Reserving the right to object, I assume there would be
adequate time that we would be allowed to consider an amendment of the
Senator from Virginia? As I understand, the Senator was talking about a
possible amendment on Iraq.
Mr. WARNER. I said it could be on anything.
Mr. LEVIN. Could be on Iraq.
Mr. WARNER. We have been going back and forth.
Mr. LEVIN. Is the Senator offering the amendment he is referring to
postcloture?
Mr. KERRY. Mr. President, if I could inquire, I agree with the
minority manager of the bill, there is a question about what the
amendment might be about. If it comes precloture or postcloture,
postcloture it makes no difference. If it is precloture and it is about
Iraq, I think the Senator from Michigan and others would then have an
interest in being able to respond to whatever that amendment is.
I say to the distinguished manager, the Senator from Virginia--and it
is his right, and we are very happy to have him acknowledge that right
to put that amendment in--we would want to have time, obviously, to
debate it and respond to it, conceivably.
The question is whether it is precloture or postcloture. I ask the
Presiding Officer if the Senator from Virginia intends to offer
whatever amendment he does immediately after cloture or precloture?
Mr. WARNER. Mr. President, I withdraw that and ask unanimous consent
that we approve the request as read earlier.
Mr. LEVIN. Reserving the right to object, when we were discussing
this last, I asked whether or not the manager, the chairman, would make
it clear that my amendment is not subject to amendment.
Mr. WARNER. Mr. President, we are perfectly willing to make that
eminently clear.
Mr. LEVIN. And also if the Senator would agree that the Kerry
amendment--
Mr. WARNER. We have not seen his amendment.
Mr. LEVIN. Then the request is that the unanimous consent request be
amended so that my amendment which is on file will not be subject to
amendment.
The PRESIDING OFFICER. Is there objection to the modification of the
unanimous consent request of the Senator from Virginia that the Levin
amendment not be amendable? Without objection, the request is so
modified.
Mr. WARNER. Has the Chair ruled on the underlying UC request?
The PRESIDING OFFICER. Is there objection to the request as modified?
Mr. DODD. Reserving the right to object, I know we have had a
discussion with the distinguished chairman of the committee. Senator
Bingaman and I are interested in offering amendments at the appropriate
time precloture on the Guantanamo situation. I am wondering if we could
allocate an hour before the cloture motion is filed to raise that
amendment and then have a vote on it, either one or two of those
amendments.
Mr. WARNER. Mr. President, I have been trying to get the minimum wage
put aside so that you could move. And you are going to argue tonight
your amendment; is that correct?
Mr. DODD. I say to my colleague--
Mr. WARNER. And Senator Bingaman likewise. I think he has an
amendment pending at the desk.
Mr. LEVIN. It has not been filed.
Mr. WARNER. But he has spoken to it.
Mr. LEVIN. That is correct.
Mr. WARNER. What is the desire? I have to ask my colleagues, we are
trying as best we can to accommodate all interested parties. The
amendments are coming from this side. It is really incumbent on you all
to try and reconcile how you wish to proceed. We are about to lock up
the two significant amendments of the Senator from

[[Page S6139]]

Michigan and the Senator from Massachusetts. I recognize you have had
that amendment. You asked to bring it up tonight. I have assembled a
group of my colleagues to debate the amendment. What is the pleasure?
Mr. REID. Mr. President, if the Senator from Virginia would yield--
Mr. WARNER. Yes.
Mr. REID.--the problem we have is, the Senator from Connecticut wants
to have his amendment heard prior to cloture. The problem is, there has
not been a motion for cloture filed yet. If the cloture motion is filed
tonight, then under the rules, an hour after we come in on Thursday,
cloture would be voted on. That being the case, under the proposed
unanimous consent agreement we have here, there is going to be a lot of
hours used up prior to Thursday morning at 9 or 10, whenever we come in
here. I think there are a lot of people who want to offer amendments,
but unless they are germane amendments, there would be no guarantee
that there would be a vote on them, other than the two here. We have
had assurances that the Levin and the Kerry amendment, even though
there would be a problem with cloture, they would allow a vote on that.
I think realistically, it would be hard for anyone to guarantee a vote
prior to cloture to the Senator from Connecticut.
Mr. WARNER. Mr. President, we had understood that the debate would be
held tonight. We were willing to have a vote on Gitmo tomorrow right
after the minimum wage. There it is.
Mr. REID. That would certainly be long before cloture and the debate
would be finished tonight, and we could slow up Senators Levin and
Kerry by more than 20 minutes.
Mr. DODD. If we could agree to a vote on one or two amendments on the
Gitmo situation and allow us the opportunity to debate this evening or
possibly an hour tomorrow morning before the vote, that would
accommodate us completely. If we could accommodate that request, then
we can go forward. That is the request we would like to make.
Mr. REID. I respectfully request, I have spent nearly all of the day
trying to work something out on these two amendments. Senator Levin and
Senator Kerry can speak for themselves. I am not sure they want another
hour. We can finish the debate on yours tonight and vote on it in the
morning with 15 or 20 minutes evenly divided. Maybe something like that
could be worked out, but I don't think there is an hour left. If these
two men debate tomorrow night, we aren't going to finish this thing
until some time late tomorrow night at best.
The PRESIDING OFFICER. Is there objection to the request of the
Senator from Virginia?
Mr. REID. I would simply say this--and I appreciate very much the
Senator from Iowa being so courteous--everyone is in agreement that we
are going to try to work something out so that you and Senator Bingaman
can get a vote on your amendment tomorrow morning. It is just a
question of how we do it timewise.
Mr. DODD. Is that the understanding, that that would be the case?
Mr. WARNER. We will try and do our very best.
The PRESIDING OFFICER. Is there objection to the request, as
modified?
Without objection, it is so ordered.
The Senator from Iowa has the floor.
Mr. WARNER. If the Senator would yield just for a moment, I would
like to ask my two colleagues, for the knowledge of my two colleagues
on this side, how soon may we start the debate on the Guantanamo
amendments?
Mr. DODD. Why don't we say around 7 o'clock. Say at 7 o'clock.
Mr. WARNER. We will certainly accommodate the Senator from Iowa. I
have two colleagues who withdrew from their schedules to come over here
tonight because we were told that we would start this debate.
Mr. DODD. I would say at 7 p.m.
Mr. WARNER. All right, 7 p.m.
Mr. HARKIN. Mr. President, the average CEO in America today makes
$11.8 million a year. The average salaried worker makes $27,460 a year.
That is 431 times what the average worker makes. That is the average
worker. Take a minimum wage worker at $10,600 a year. The average CEO
makes a thousand times more a year, a thousand times more than a
minimum wage worker. So you can see the disparity has gotten out of
hand.
In the wake of Katrina, in a speech in New Orleans, President Bush
proclaimed:

We should confront poverty with bold action.

We are just trying to raise the minimum wage for the first time in 9
years, and we can't even do that. We can have tax reductions for the
wealthy on and on and on; they seem to be sacrosanct, untouchable; but
we can't raise the minimum wage. The working poor have to do with $5.15
an hour. This is unconscionable. We have to do something about it.
Have Members of the Senate all joined the Neiman Marcus crowd? Have
we become so totally insulated from the realities of real life for the
people who work and shop at Wal-Mart and K-Mart, Dollar stores, who
pinch their pennies, who go to the grocery store and spend the time
looking for the best bargains, have we become so insulated from them
that we can't see the need to raise the minimum wage from $5.15 an
hour?
Poverty has doubled since the late 1970s among full-time, year-round
workers from about 1.3 million to more than 2.6 million. Every day the
minimum wage is not increased, it continues to lose value and workers
fall further and further behind.
Here is what is happening today. That is why I say there is a misery
index out there, a working class misery index. This shows it.
Productivity keeps going up. People are working longer, working harder.
They are producing more. Productivity is up 166 percent since 1960.
Look what has happened to the real minimum wage. It is down 23 percent.
This is what the average person feels: My gas prices have gone up. My
rent has gone up. I can never afford to send my kid to college. College
tuition has gone up. Health care premiums are skyrocketing. I am
working harder, longer. I am producing more, and I am getting less.
That is what I call a working class misery index in America. And what
have we done? We raised our salaries 7 times in the last 9 years. We
have tax break after tax break after tax break for the privileged few
in America.
Just a couple weeks ago there was an attempt on the floor to
completely wipe out the estate tax, estate taxes paid by only 3
families out of every 1,000 in America. Three out of every 1,000
families pay any estate taxes. They are the wealthiest in our country.
We had an amendment to the bill by the other side to completely
eliminate it. Thankfully, we didn't do that.
But now when we want to raise the minimum wage just a paltry two
dollars and something cents an hour, we can't do that? Where is the
fairness? Where is the fairness for the American worker? No wonder the
average American's esteem of Congress has gone down--along, I might
add, with the President's, because the President is not up here asking
for a minimum wage increase either.
No wonder people don't think we are doing anything. We raise our
salaries 7 times in 9 years. We have tax breaks for the wealthy. We
have tax breaks for big business. We want to do away with estate taxes
for the wealthiest few. But we won't raise the minimum wage.
It all leads us to conclude that when it comes to the issues of
poverty and the working poor, the American public should watch what we
do, not what we say.
I will bet every Senator here can give wonderful talks about work,
the value of work and more jobs and creating jobs and the economy is up
and isn't everything wonderful. Yes, if you are a CEO, it is wonderful.
If you are a CEO, it is pretty darn nice. If you are making $150,000,
$160,000 a year, $170,000, as we are here, things are pretty nice. But
if you are a minimum wage worker, things aren't very pretty. Things
aren't pretty at all. You are not saving anything. You are barely able
to scrape by. Your kids are probably not getting the best food and
nutrition. They are probably not going to be able to manage to go to
college. You don't have health care so you go to the emergency room
when you get sick so you don't have any preventative care. Your kids
are probably not getting the vaccinations and the checkups they need.
They are probably not getting the dental care they need.
I am not talking about ``poor people living in poverty who aren't
working.''

[[Page S6140]]

I am talking about poor people who go to work every single day. You see
them. We all see them. We all see them. You go into stores and see the
people working behind the counters. Check on the people who are working
in day-care centers, people in Head Start centers, people cleaning
houses, cleaning our office buildings. Yes, and a lot of people are
working, flipping burgers and stuff like that, making the minimum wage.
But they are the sole breadwinner of their family.
We see them every day and yet we pass by, we just pass on by. Let's
not pass on by here. Let's stop and think, act accordingly, and reach
down and say to those people who are working hard every day that it is
time to give you a raise, too--not just corporate CEOs or Members of
Congress, but let's give at least a $2.10 increase to the people who
make the minimum wage. It will be good for American workers and for our
economy. It is long overdue, and it is the right thing to do.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Wyoming is recognized.

Amendment No. 4376

Mr. ENZI. Mr. President, I send my amendment to the desk for the
debate to be done in the morning.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk:

The Senator from Wyoming [Mr. Enzi] proposes an amendment
numbered 4376.

Mr. ENZI. Mr. President, I ask unanimous consent that further reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
The PRESIDING OFFICER. The Senator from Virginia is recognized.
Mr. WARNER. Mr. President, my understanding is that we will have two
amendments introduced by the other side with regard to Guantanamo. They
will be debated tonight. We are going to work toward making certain
they get a vote on those amendments. I ask my ranking member.
Mr. LEVIN. Mr. President, I thank the Senator from Virginia. We thank
the Senator for his unvaried hospitality and good nature on these kinds
of difficulties. We appreciate his determination to try to find the
opportunity for a Guantanamo amendment or amendments. They are trying
now, I believe, to figure out--I think it is going to be offered at 7
p.m. I guess they will be here to offer that amendment at 7 o'clock.
Mr. WARNER. Mr. President, in the interim, seeing no Senator desiring
to address the Senate, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. Mr. President, I want to speak, if I may, regarding a
proposal by Senator Bingaman concerning Guantanamo Bay and the
disposition of detainees. I understand he introduced an amendment
yesterday. I have the summary of it. If I mischaracterize it or if it
is changed in any way, I apologize. I will try to give an overview
based on what I know, with the understanding that if it changed, I
stand corrected.
Senator Bingaman, from what I understand, has an amendment that would
require the United States to either charge, repatriate or release
individuals held at Guantanamo Bay within 180 days of the enactment of
the Defense authorization bill, and if for some reason the Government
fails to comply within that timeframe, the Department of Defense would
have to report back to Congress to tell us why. It provides further
that charges could be filed in U.S. District Court, a military tribunal
court or military commission or an international tribunal against
detainees.
If I may, I will express my concerns about this amendment. No. 1, the
detainees at Guantanamo Bay are being held as enemy combatants. That is
a concept that has been part of our law for quite a while. The Supreme
Court has several enemy combatant case holdings. That is someone who is
involved in hostilities but not in the normal course of combat. They
don't wear uniforms. They are not supported by a particular State. They
are fighting, in this case, for a terrorism cause that doesn't have a
country of origin. They are irregular combatants.
For many years in the military law, a regular combatant or enemy
combatant has been considered a person outside of the protection of the
Geneva Convention because that is an international treaty designed to
protect lawful combatants and have procedures that every signatory
country will abide by. A lawful combatant is someone who represents a
State, wears a uniform, and operates within the rules of international
military law.
Al-Qaida, by their very definition, because they don't wear uniforms
and represent a particular country, are irregular enemy combatants. The
people at Guantanamo Bay have been captured in various parts of the
world by the U.S. military or were turned over to them as being
suspected of being involved in the war on terror. There are 500-
something people down there now; over 200 have been released. Senator
Bingaman's amendment would require the Government to release them all
or charge them.

The reason I believe that is not good public policy is because enemy
combatants--you don't have to choose between trying them and letting
them go. A prisoner of war is not required to be released until the
hostilities are over. We have had Members of the Congress who were
enemy prisoners during Vietnam and were incarcerated 5, 6 or 7 years,
until the Vietnam war came to an end.
This amendment, in an odd way, would allow enemy combatants to be
released before hostilities are over, which is something not afforded
to a prisoner of war. But a traditional prisoner of war is not subject
to being tried as a war criminal for the mere status of being involved
with the opposing force.
I believe strongly that it is not advisable for this country to say
as a matter of policy that every enemy combatant or unlawful combatant
per se is a war criminal. Military trials or commissions should be
conducted for people who are part of the enemy force who have violated
the law of armed conflict. There are about 20-something people, I
believe, facing military commission charges at Guantanamo Bay and
haven't been tried yet because of Federal court proceedings affecting
the outcome of the military commission status. This amendment would
require the United States to make a choice that no other country has
ever had to make: try them or let them go.
The truth is that some of them deserve to be tried as war criminals.
Some of them deserve to be taken off the battlefield until they are no
longer a threat to our country and our coalition forces. And to have to
let them go or try them is a choice the country should not have to
make.
Who is at Guantanamo Bay? There have been some high-profile stories
about individuals who were sent there who may not have been involved in
enemy combatant activities. Unfortunately, those things happen. You can
get someone in your custody based on some bad information and, over
time, find out you made a mistake. And 200-something people have been
released under the current procedure. What is that procedure? The
Geneva Convention says if there is a question as to whether a person is
a POW, a prisoner of war, or an unlawful enemy combatant, the host
country, the country in custody of that individual, must have a
competent tribunal to make that decision.
As far as I know--and correct me if I am wrong--the decision as to
whether a person is an enemy combatant is a military decision. We don't
have civilian trials. The Geneva Convention doesn't require a civilian
judicial determination to be made. The determination of whether you are
a POW who is entitled to the Geneva Convention protection, an enemy
combatant or an innocent individual, is left up to the military. I
argue that that is the way it should be, with due process rights.
The problem with this war is that we don't know when it is going to
be over because there will be no surrender ceremony. I am sensitive to
that. I understand the Senator's concerns, and that is legitimate. The
process at Guantanamo Bay now, as I understand it, is

[[Page S6141]]

when somebody is sent there, a combat status review tribunal will
review their case, a military intelligence officer, and a military
lawyer will look at the case and determine if the individual before
them is an enemy combatant or meets the definition of an unlawful
irregular enemy combatant. The host country where the person comes from
can intervene on their behalf. Evidence is collected. They don't have a
lawyer, but they have a representative. Every year, that person's
status is reviewed. An annual review looks at whether the person still
has intelligence value, whether they are a threat to the United States
or has anything changed about their initial status determination.
Under an amendment passed that was authored by Senator Levin and
myself, every Guantanamo Bay detainee now will have a chance to appeal
their case to the Court of Appeals for the District of Columbia, and a
Federal court of appeals at the District of Columbia will review the
combat status review tribunal's action in that case to see if it was
proper. So now we have civilian courts looking over the initial
military determination. When it comes to military commissions and
people being tried as war criminals, we have the presumption of
innocence and the right to a lawyer, which is a very similar tribunal
to international tribunals, very similar to the UCMJ but different in
some regards.
So the idea that we need to let the prisoners go or try them all, I
think it would be a very bad policy decision to make because some of
them can be dangerous, can be a threat to our country if released or
they could have intelligence value but don't fall within the definition
of war criminal. To say that every enemy combatant is going to be tried
as a war criminal is not good policy because you are beginning to
change the way the rules have worked for a very long time.
We have had 200-something people released. About a dozen of them have
gone back to the fight, unfortunately. So there have been mistakes at
Guantanamo Bay by putting people in prison that were not properly
classified. There have been mistakes about releasing people that we
thought were not dangerous but turned out to be so.
I have a summary of statements made by individuals who have been
released from Guantanamo Bay but went back to the fight. I ask
unanimous consent that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

SELECTED STATEMENTS FROM DETAINEES

Statements made by detainees provide valuable insights into
the mindset of these terrorists and the continuing threat
they pose to the United States and the rest of the world.
A detainee who has assaulted GTMO guards on numerous
occasions and crafted a weapon in his cell, stated that he
can either go back home and kill as many Americans as he
possibly can, or he can leave here in a box; either way it's
the same to him.
A detainee with ties to UBL, the Taliban, and Chechen
mujahideen leadership figures told another detainee, ``Their
day is coming. One day I will enjoy sucking their blood,
although their blood is bitter, undrinkable . . .''
During an interview with U.S. military interrogators this
same detainee then stated that he would lead his tribe in
exacting revenge against the Saudi Arabian and U.S.
governments. ``I will arrange for the kidnapping and
execution of U.S. citizens living in Saudi Arabia. Small
groups of four or five U.S. citizens will be kidnapped, held,
and executed. They will have their heads cut off.''
After being informed of the Tribunal process, the detainee
replied, ``Not only am I thinking about threatening the
American public, but the whole world.''
A detainee who has been identified as a UBL bodyguard,
stated, ``It would be okay for UBL to kill Jewish persons.
There is no need to ask for forgiveness for killing a Jew.
The Jewish people kill Muslims in Palestine so it's okay to
kill Jews. Israel should not exist and be removed from
Palestine.''
A detainee who has been identified as UBL's ``spiritual
advisor'' and a relative of a fighter who attacked U.S.
Marines on Failaka Island, Kuwait on October 8, 2002, stated,
``I pray everyday against the United States.'' This detainee
repeatedly stated, ``The United States government is
criminals.''
A detainee and self-confessed al Qaida member who produced
an al Qaida recruitment video stated, ``. . . the people who
died on 9/11/2001 were not innocent because they paid taxes
and participated in the government that fosters repression of
Palestinians.'' He also stated, ``. . . his group will shake
up the U.S. and countries who follow the U.S.'' and that,
``it is not the quantity of power, but the quality of power,
that will win in the end.''
A detainee who has assaulted GTMO guards on over 30
occasions, has made gestures of killing a guard and
threatened to break a guard's arm.

* * * * *

Mr. GRAHAM. Mr. President, one of them is Mullah Shazada who was
released from Guantanamo Bay on May 8, 2003. He assumed control of
Taliban operations in southern Afghanistan. His activities reported
including the organization and execution of a jail break in Kandahar.
Abdullah Mahsud was released in 2004. He became the militant leader
of the Mahsud tribe in southern Waziristan. We learned he had been
associated with the Taliban since his teens and has been described as
an al-Qaida facilitator. In mid-October 2004, he directed the
kidnapping of two Chinese engineers in Pakistan. During a Pakistani
rescue attempt, the kidnappers shot one of the hostages.
Mohammed Ismail was one of two juveniles held at Guantanamo Bay. He
was released in 2004. During a press interview after his release, he
thanked the United States for providing him education opportunities in
Guantanamo Bay and stated he would look for work after visiting his
relatives. He was recaptured 4 months later in May 2004 participating
in an attack on U.S. forces near Kandahar. At the time of his
recapture, Ismail carried a letter confirming his status as a Taliban
member in good standing.
Abdul Rahman Noor, after being released in July 2003, has
participated in hostile actions against U.S. forces near Kandahar. He
was later identified as the person in a 2001 al-Jazerra interview
described a mujhadeen defensive position claiming to have downed an
airplane.
The reason I mention these individuals is that mistakes have been
made in letting people go. Once the military tribunal reviewed these
individual cases, they made a determination the person was no longer a
danger to the United States and possessed no additional intelligence
value. They were wrong.
These people and several others went back to the fight, and at least
one of the people involved killed an American medic.
The process we have at Guantanamo Bay is reform in a manner that I
think is consistent with American values. This body, in an overwhelming
vote, indicated to the Department of Defense that their interrogation
techniques needed to be standardized and put in the Army Field Manual.
That is a work in process.
This body, in an overwhelming vote, gave every detainee at Guantanamo
Bay a right to petition their status to Federal court for Federal court
review.
We have due process rights in place for detainees at Guantanamo Bay
that I think are unprecedented in the rules of armed conflict and are
based on the fact that this is a war without a definable end.
But the amendment before us by my good friend from New Mexico would
require this country to release the detainees en masse or repatriate
them or charge them. The problem with repatriation is that one of the
problems with closing Guantanamo Bay is, where do we put these people?
We have had case after case where the detainee was eligible to be
released but did not want to go back to their host country for fear of
reprisal. The idea that we can take the 460 prisoners and open the
gates of the prison and say, Go back, is going to be a problem because
a lot of them have no place to go or won't be taken back.
Another problem is that if we release these people en masse, some of
them will become our worst nightmare. Information about statements made
by detainees--I have another document here, where they openly avow a
desire to get back into the fight and to kill Americans and to continue
the war on terrorism.
Simply stated, the people at Guantanamo Bay, in my opinion, are
people who need to be looked at every year in terms of their status and
whether they have intelligence value and whether they present a danger.
And that decision can be reviewed by civilian authorities.
They are not people for whom we should open the door and say, Leave
or be charged, because the truth of the matter is that there are people
down

[[Page S6142]]

there who are enemy combatants who have not engaged in conduct that
would fit a traditional definition of a war crime.
I just don't think we need to make that choice. We need to make sure
that every detainee has adequately been processed, that our country is
accountable for their treatment, that our country is accountable for
their legal status, and that we have a way to prove to the world and to
our own public that the detainees are being confined within the rules
of armed conflict and treated properly.
This amendment would set in motion, I believe, forces that would come
back to haunt us. Mr. President, I say to my good friend from New
Mexico, I understand his concerns about Guantanamo Bay and the image
problems that it has created, but I would argue that the reforms in
which we have engaged have been real. We are not getting much credit
for those reforms, but we are just going to have to understand as a
nation that every critic of this country's policy doesn't have to make
the decisions we do.
The criticism coming from abroad about Guantanamo Bay is part of
democracies being able to speak openly, but they are not coming to
South Carolina. If we let them go, they are not coming to South
Carolina. I will do everything I can to keep these people from coming
into my home State. And I doubt we want them to go to Mexico, and I
doubt they are going to go to Connecticut.
I do not want to intermingle them with our military prison population
because these people represent the hardest of the hard.
I hope we can reform Guantanamo Bay and that one day it will be
closed because the needs of the war on terrorism have been met. And I
do hope that those who are war criminals in the truest fashion will be
tried at Guantanamo Bay by military commission and those who are not
war criminals will be held until they are no longer a danger. I do not
believe it is advisable for this country to make a choice as a nation
that no other nation has ever had to make before, and that is turning
loose someone who is caught on a battlefield engaged in hostilities
against our own people or try them all as war criminals. That has never
happened before, and it shouldn't happen here.
I yield the floor.
The PRESIDING OFFICER (Mr. Thune). The Senator from Kentucky.
Mr. McCONNELL. Mr. President, we now have an agreement for a couple
of votes in the morning relative to the minimum wage amendments which
have been discussed this afternoon. Tomorrow we will also proceed to
debate the Iraq-related amendments offered by Senator Levin and Senator
Kerry.
Mr. President, at this point, on behalf of the leader, I am prepared
to send a cloture motion to the desk, but I do want to make the
following point before sending the cloture motion to the desk. This
does not--I repeat, does not--preclude us from working toward further
agreement to set up votes on these amendments prior to cloture. In
fact, we anticipate having votes on both of those amendments prior to
cloture. We are looking forward to the debate on both amendments.
Almost everyone on this side is interested in speaking to the
appropriateness of adopting those amendments, and, as I said, we do not
intend for cloture to shut out in any way votes on the Kerry and Levin
amendments.

Cloture Motion

Having said that, Mr. President, I send a cloture motion to the desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The assistant legislative clerk read as follows:

Cloture Motion

We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on S. 2766, the
National Defense Authorization Act for Fiscal Year 2007.
Bill Frist, John Warner, John E. Sununu, Jim Bunning,
George Allen, Lamar Alexander, Craig Thomas, Kay Bailey
Hutchison, Chuck Hagel, Ted Stevens,
Judd Gregg, Robert F. Bennett, Thad Cochran, Pat Roberts,
Pete Domenici, Jim Inhofe, Jeff Sessions.

Mr. McCONNELL. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, I wish to speak briefly in response to
the comments of my colleague and friend from South Carolina, Senator
Graham, about the amendment which I intend to offer at an appropriate
time on the Defense authorization bill.
I say, in all respect to the Senator from South Carolina, he has
totally misread the amendment. He has totally mischaracterized it. This
amendment does not, as he said, require the Government to either
release everyone at Guantanamo or charge those individuals.
It is very clear in the amendment. It starts out by saying, ``Except
as provided in subsection (b),'' and then it goes on to say:

Not later than 180 days after the date of enactment of the
law, an alien who is detained by the Secretary of Defense
shall, consistent with applicable law, be charged or
repatriated or released.

But then obviously the exception is what we start out with there. It
says the exception under paragraph (b) is that with respect to an alien
described in the first section, subsection (a), who is not charged or
repatriated or released within this 180 days, the Secretary of Defense
shall submit to the appropriate committees of the Congress a detailed
report as to each such alien that includes, and then it specifies the
information that needs to be included.
Essentially, it says the Department of Defense shall go ahead and
charge these individuals with criminal activity or it shall repatriate
them to their home country, an appropriate country, or it shall release
them, or it shall give us a report and explain what its plans are with
regard to these individuals and why it is not taking one of the
previous actions. That is not the characterization or the description
that the Senator from South Carolina just went through.
This amendment does not require that any enemy combatant be released.
It is clear in its language that it does not require that. It does not
require the release of people ``en masse,'' which was the language the
Senator from South Carolina used. It does not require us to release
people who are then believed to have the motivation of getting, as the
Senator from South Carolina said, back into the fight.
This does not in any way restrict what the Department of Defense
does. It just says the Department of Defense has various options, but
we are going to begin to understand what action the Department of
Defense is taking with these individuals.
It can charge them with a crime, it can repatriate them to their home
country, it can release them, or it can tell us, the Congress, the
appropriate committees of the Congress, what it intends to do and what
action and what factors cause it to not want to take one of those
previous actions. That is a very straightforward amendment.
I think anyone who is opposed to that amendment basically says we,
the Congress, have no responsibility for oversight, the appropriate
committees of the Congress have no responsibility to concern themselves
with what is being done with these prisoners at Guantanamo, and I think
that is a very unfortunate message for us to send.
The amendment goes on to provide that in the report to the
appropriate committees of the Congress, if the Department of Defense
wishes to submit part or all of that in classified form, it can do so.
To the extent it is not required to be in classified form, it would, of
course, be a public report.
This is a very modest amendment. In fact, the criticism I have heard
from people who have generally been aware that I might offer this
amendment is: Why does this amendment give the Department of Defense an
out? It says with regard to each of these individuals, either charge
them with a crime, repatriate them, release them, or tell us what your
other plan is, if you have some other plan that you believe is required
under the circumstance. That is the very least that this Congress
should be doing with regard to these individuals.

I, frankly, do not want to ask this Congress to resolve the question
of the legality of what is going on at Guantanamo. Some of that is
being determined in the courts, as it should be determined in the
courts. But, clearly,

[[Page S6143]]

this Congress has some oversight responsibility. This Congress should
be insisting that the Department of Defense specify what action it
intends to take, go ahead with whatever action it intends to take in
the next 180 days, and at the end of that time report to the Congress
as to any detainee for whom it does not intend to go ahead or for whom
it has not gone ahead and brought charges against or decided to
repatriate or decided to release.
So let me just stop with that. I am glad to discuss the amendment
further, but I know that my colleague from Connecticut who has a
separate amendment dealing with Guantanamo wishes to speak and describe
his amendment, and I also see that my colleague from Alabama is on the
Senate floor and wishes to speak perhaps on the same issue as well.
So, Mr. President, at this point I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Mr. President, I have been to Guantanamo twice, and I
have seen the work of our military personnel, the good morale they have
under difficult conditions, their determination to provide every decent
and right request and treatment to the prisoners who are there. I have
seen areas where they are detained, the religious freedom that they
give them, including a Koran and prayer rugs and things that they have
requested, the exercise that they obtain. It is, I believe, in all
respects a very fine prison that treats people in a decent way.
But as the Senator from South Carolina noted, these individuals are
prisoners of war, and prisoners of war are not given trials. In the
history of the United States of America, we do not give prisoners of
war trials. They are detained until the conflict is over.
What about those who have gone beyond just being a combatant against
the United States but have become an unlawful combatant, violating all
the rules of warfare and are therefore apprehended and detained? Should
they be given more rights than a properly uniformed and properly lawful
combatant is given who is detained by an enemy? I think not. I would
suggest these are matters that are within the parameters of the U.S.
military to handle. They have no desire to maintain a single prisoner
any longer than they have to. They have released several hundred
already, and 15 of those have been rearrested on the battlefield where
they are presumably attempting to fight the United States of America
and our soldiers and our allies around the world.
So I would say to my colleagues, these are not academic questions.
They are matters of real life and death and must be carefully thought
through. Under the circumstances we are now dealing with regarding
prisoners in Guantanamo, we don't need to micro-manage the military. I
would agree with Senator Bingaman that his amendment at first glance
says that they must be charged with a crime, filed in an appropriate
Federal district court of the United States or a military tribunal or
an international criminal tribunal or repatriated to the country of
origin or some other country. That is a mandate. The amendment goes on
to say: But with respect to those who are not so charged, the
Department of Defense must submit a report saying why they haven't been
charged and when they will be handled in this matter. So I think in
conflict, as Senator Graham has detailed, it goes to the historic
manner by which any nation, and in particular the United States,
handles prisoners of war.
Again, I have seen the conduct at Guantanamo. I think it is an
appropriate facility considering the danger that these individuals
pose. It is an appropriate location. It makes it very difficult for
them to break free and kill other people. The Department of Defense
actually is continuing to improve it. They give the prisoners first-
rate meals, first-rate medical care. Until the three suicides we saw
recently, not a single prisoner had died in Guantanamo of any kind of
causes, natural or otherwise.
So I believe this amendment is not necessary. I think it would have
the effect of restricting the power of the executive branch to carry
out this war on terrorism and manage the military's treatment of
prisoners. The Department of Defense wants to get rid of them. They
have tried to repatriate numbers of them. But some of them are just
dangerous and must be detained.
I would ask, how would a prosecutor prove a case? Some would say we
will just give them a trial. What if they were captured in the
mountains of Afghanistan and maybe the soldier who captured them was
later killed, or maybe he was reassigned to Korea or some other place?
It is not so easy to have trials of prisoners of war, and that is why
it has never been done and why I think the amendment, which is
carefully drafted and attempts to avoid some of the worst criticisms
that might be made of it, is, nevertheless, a step too far, and I
believe we should reject it.
I just want to point out a number of things that are important about
how careful our military is, unlike what happens when American military
prisoners are captured, apparently, as we saw today, the horror of
being captured, tortured and killed by the al-Qaida forces in Iraq, who
are just brutal in their treatment of American prisoners. We give the
prisoners at Guantanamo a combatant status review tribunal--a tribunal
consisting of three people, the Department of Defense Combatant Status
Review Tribunal process pursuant to a Supreme Court plurality opinion
in Hamdi. Hamdi dealt with due process for American citizens. The
process created was applied to all foreign nationals detained at
Guantanamo and went beyond the process referred to by the Supreme Court
of the United States. It went beyond that.

The Combatant Status Review Tribunal provides a venue for detainees
to personally challenge their status as enemy combatants. They were
given that opportunity. As of January 22, 2005, the Department of
Defense had completed 558 CSRTs. Of the 558 hearings that were
conducted, the enemy combatant status of 520 detainees was confirmed,
and 38 detainees were found to be no longer meeting the criteria to be
designated as enemy combatants.
The Administrative Review Board is another process the Department of
Defense has implemented. This administrative review process makes an
annual assessment of whether there is continued reason to believe that
the enemy combatant poses a threat to the United States or its allies,
or whether there are factors bearing upon the need or the continued
detention, including the enemy combatant's intelligence value, in the
global war on terror. That is what this board does every year for every
prisoner.
Based on this assessment, the Administrative Review Board can
recommend that individuals should be released or should be transferred
with conditions or should continue to be detained. Allowing detained
enemy fighters to be heard and potentially released or transferred
while hostilities are ongoing, as they are this very minute in Iraq and
Afghanistan, is a historic and unprecedented step. We have never done
that before in war.
The first year, the Administrative Review Board resulted in 330
continue-to-detain decisions, 119 transfer decisions, and 14 release
decisions. So these are not rubber stamps. The Department of Defense is
attempting to move people out, to transfer them, or release the people
they can justify releasing. But remember, 15 of those former prisoners
at Guantanamo, who have been released, have later been detained and
captured on the battlefield seeking to fight America.
The second year of the Administrative Review Board process, in this
annual process, resulted thus far in 12 continue-to-detain decisions, 6
transfer decisions, and no release decisions. That is as of June 20 of
this year.
So the Department of Defense has created a system that goes beyond
what this Nation has ever utilized in time of war to deal with an
attempt to release persons who have been captured as prisoners of war
fighting the United States of America. They didn't do that for German
prisoners. They didn't do it for Japanese prisoners. They didn't do it
for North Korean prisoners. They didn't do it for Vietnamese prisoners.
These are unprecedented steps. I think it is more than is required, but
it is a generous step for the United States to take, and I certainly
support that.
Mr. President, as of May of 2006, 287 detainees have departed
Guantanamo,

[[Page S6144]]

192 have been released, 95 have been transferred to other governments,
including Albania, Afghanistan, Australia, Bahrain, Belgium, Denmark,
France, Great Britain, Kuwait, Morocco, Pakistan, Russia, Saudi Arabia,
Spain, Sweden, and Uganda. We would like to release them all, if we
could.
But the President of the United States took an oath to protect the
people of the United States from attack by enemies. If he releases
prisoners who we believe will have any reasonable basis to continue to
attempt to kill American citizens or American soldiers, he is derelict
in his duty. This is not some game he is playing. This is not some
academic process that the generals who are supervising this are
involved in or the Administrative Review Board members or the Combatant
Status Review Tribunals are dealing with. They can't make a mistake. If
they make a mistake, somebody could die.
I know the operations at Guantanamo have raised complaints from some
of our allies, specifically a complaint from one British official. I am
so proud of the support the British government and population has shown
to the United States, but I have to tell you, I don't know what the man
expected us to do. Did he want us to release all 500 of them? Is that
what he would want? Is that what the other people on our editorial
boards like to write about? We should just release them? Well, maybe
Great Britain would like to take them. Maybe the United Kingdom would
like to take them and house them in their jails. Would they really?
Would they release them? Would they want to release them on their
subways or on their buses or on their trains in London?
Three prisoners just committed suicide last week at Guantanamo, and
amazingly, we had newspapers in this great Nation that purport to be
wise and thoughtful pandering to those seeking to close Guantanamo by
suggesting that they are somehow killing themselves because they are
depressed.
One of these was an active member of the Taliban forces who fought
against the United States. One was a recognized leader in al-Qaida--
they are from Yemen and Saudi Arabia and other places. I believe two
were from Saudi Arabia and one was from Yemen. Do we want to release
prisoners like these?
They hanged themselves. I suggest, with all sincerity, that these
three prisoners did not commit suicide together, the same day, because
they got depressed over mistreatment. Most of them have gained weight
and have been well treated, well fed, and given superb medical care.
That is not why they committed suicide. They committed suicide as a
continuation of their commitment to jihad and to prepare to commit
suicide to further jihad.
If they had a bomb with which they could have blown themselves up and
others, Americans or other people, they would have done that. They
absolutely would have done that. But because they were in our custody
and couldn't get hold of a bomb and wrap it around their body and kill
men, women and children on buses or trains or something like that. The
only thing they could do was kill themselves in hopes they would have
editorials around the world, editorials in New York City and
Washington, DC, have Senators and Congressmen on the floor of the House
and the Senate saying how badly we are treating these prisoners of war,
these unlawful combatants, and suggesting they all ought to be turned
loose and how this is America's fault.
The fact that these three prisoners, clearly terrorists, committed
suicide the same day is absolute proof that they were threats to
innocent people and to the United States of America. It is proof that
they had that threat capability. If they had been released, do you
think they would have just gone nicely back home to work a job in Yemen
or work on a pipeline in Saudi Arabia? No, they are committed
jihadists. They are terrorists. That is why they were in Guantanamo. I
am glad they hadn't been released like some of the others and I am glad
that those like them are still being detained there. They are not
entitled to trial.
I don't know what we will do with Guantanamo. The President said he
would like to close it. I guess it would make some people happy around
the world. Maybe they would get off his back. But somebody has to do
something with them. I will tell you one thing, we can't release them
all. Do we release them any better if they are brought back to the
United States? Do we release them any better if we take them over to
London or Madrid? I submit not. We have them in a safe place. They are
being well taken care of. We have invested a lot of the taxpayers'
money in making that facility at Guantanamo a good facility, a safe
facility. I don't know why we would want to move them, other than just
to make people feel better and stop fussing.
But we are going to continue to apprehend people. When we went out
after the bombing of Zarqawi and did these raids in 17 different spots
and they arrested quite a number of people, what are they going to do
with them? Turn them loose?
When I was in Iraq recently, I heard about two brothers who were
known bomb makers. Can you imagine someone a greater target of the
United States military than a skilled bomb maker who is making bombs
that kill American soldiers on a regular basis? They caught them and
they thought they had enough proof. But the military decided they
didn't. Or the court or somebody did, and they turned them loose.
I am telling you, those military personnel and the civilians that
worked with them to help build that case and to identify these bombers
were really heartbroken. It was very painful for them to have to
release somebody whom they believed had been responsible for killing
innocent civilians in Iraq and American soldiers. But we didn't have
enough proof, apparently, and we let them go.
We don't need to keep pushing the military, pushing that you have to
have proof beyond a reasonable doubt like you have to before you can
lock up an American citizen--let's not put that kind of burden on our
military.
I think this Guantanamo matter is greatly overblown. We fail to
realize just how dangerous some of the prisoners are. Hopefully, we can
sift through them and find some more who are not dangerous and they can
be released. Hopefully, we can send them back to foreign countries. But
you know, when you send them back to a foreign country, things don't
always work out right. You turn around and 6 months later, 2 years
later, they are released. Or sometimes we have Members of the Senate
who have made speeches and complained because, if we send them back to
their home countries, the home countries realize they are terrorists,
maybe even applied those tactics against their country, and they
mistreat them. Now we are blamed for some treatment by a foreign
government where we sent these prisoners.
We were aggressive in interviewing prisoners at the outset of opening
Guantanamo. We had a very good briefing last time I was there where the
people said they really reduced the intensity of interrogations. In the
weeks and days following September 11 when we thought and had every
reason to believe that there were cells probably operating all over
this country, the military and our intelligence people were aggressive
in asking questions of them and pursuing interrogations. They did not
torture them. I do not believe there has been a single allegation that
has been substantiated of any torture at Guantanamo. But people took it
farther and said the military was too harsh with these prisoners. So
for a whole lot of reasons we don't pursue those tactics as strongly
today.
The standards are very lax in that regard--or strong in the sense
that prisoners are not stressed and not abused in any way as they are
being interrogated. In fact, just the opposite is the case.
Occasionally, it is odd, after time goes by, somebody begins to talk.
Some people never talk.
I appreciate the interest of my colleagues in wanting to run the
cleanest prison system we possibly can, to comply with the highest
ideals of the United States. I believe if they went there and examined
what was going on they would conclude, with me, that the prisoners are
being treated well, that they are being given every help and dietary
and religious values that they need. We should continue to do that.

Sometime in the future we will have to wrestle with how we are going
to handle them and maybe we can continue to repatriate them to the
countries of origin. Maybe some actually

[[Page S6145]]

ought to be tried and executed. Others simply need to be detained until
the war is over. That is just the way it is, and that is the way it has
always been.
Mr. President, I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DODD. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. I appreciate the comments of others about Guantanamo Bay
and the individuals who are being held here. I listened to the
discussion earlier between the Senator from South Carolina, Mr. Graham,
and my colleague from New Mexico, Senator Bingaman, and Senator
Sessions from Alabama, who discussed the issue of those who are being
detained in Guantanamo and the very facility itself.
I had thought about offering an amendment on this matter, but it is
getting confusing, with the number of amendments being offered tomorrow
and the length of debate. Senator Bingaman is offering an amendment
which I think is worthy of consideration. I may withhold the amendment
I intended to offer until a later time, on another matter, when there
is more of an opportunity to have debate. There is at best only a
limited amount of time we may get tomorrow for discussion. I have been
told I might have only a few minutes.
I regret that. I wish we had more time to offer this amendment. But I
think in the interests of my colleagues here, given the seriousness of
the issue, it probably deserves more time. So, I will reserve offering
that amendment until another time when we have more of an opportunity
to discuss it.
Let me, if I can, discuss some issues that have been raised here this
evening that I think are important. I have listened to my colleagues
talk about, first of all, the individuals being held in Guantanamo. We
talk about people here, some of whom clearly have the very worst
intentions for the United States. Some of these individuals have
attacked our soldiers, attacked innocent citizens, and pose serious
threats. There is no debate about that. We are not arguing about
whether or not that is true for many of these people.
There may, obviously, be some exceptions that fall out of that
category--individuals who have been improperly retained or restrained
and sent to Guantanamo or elsewhere. That certainly may be the case.
But there is no question that many of these individuals are people to
worry about. That is not the issue.
The issue is: We are a nation of laws. We say this all the time. It
is something about which we take great pride. We have celebrated it
over and over again. It is one of the distinguishing features of this
great country of ours. We proved that we are a nation of laws
categorically 60 years ago this very year when, in a different set of
circumstances, the United States, along with our allies, some of whom
reluctantly joined us in this effort, held a series of trials in a
place called Nuremberg. We made the decision at Nuremberg that the
defendants in those trials--these thugs, these people who had murdered
11 million innocents, 6 million Jews because of their religion, not to
mention the millions more who lost their lives as a result of the Nazi
war effort--would be afforded a trial instead of just being summarily
executed. Winston Churchill advocated summary execution, and many
others did as well. Why would you possibly give these defendants, it
was asked--these thugs that I have mentioned, who carried out the
orders of Adolph Hitler--why would you give them a trial? Why would
they get a lawyer? Why would they be allowed to present evidence in a
court of law?
It was the conclusion of the United States, under the leadership of
people like Justice Robert Jackson, that the rule of law should be
paramount. Justice Jackson and others argued very strongly that it was
going to be critically important that the United States and others join
in showing the world that there is a difference between these
fascists--who had summarily executed people merely because of their
ethnicity or religion--and this great country of ours.
In fact, Nuremberg was an interesting choice for the venue of those
trials. In a sense, the Nazis chose Nuremberg. The Nuremberg Laws
created a legal justification for every atrocity they committed, and so
having a trial at Nuremberg, trying the very people who perpetrated
these crimes, was somehow a fitting coincidence.
I speak about this because as a child growing up I heard night after
night my father, who was the Executive Trial Counsel under Robert
Jackson at Nuremberg, speak of these days. I was 1 year old in the
summer of 1945 when my father left for a few short weeks merely to be
an interrogator of these defendants at Nuremberg. He ended up replacing
Judge Story as Executive Trial Counsel under Robert Jackson, and spent
a year and a half trying a number of defendants at Nuremberg. He wrote
my mother every single day 15 to 20-page letters describing in great
detail his views and thoughts about the defendants and our allies in
that effort, the Russians, the British, the French. He had some choice
thoughts about a number of those people who were at Nuremberg. And he
talked to his children growing up over the years about what happened at
Nuremberg.
There was a great debate. In fact, half of the Supreme Court argued
against Robert Jackson even going. There were colleagues here who
argued that it was ex post facto juris prudence--that we had no right
to go back and create a body of law to try the defendants at Nuremberg.
My father and others argued strenuously that the natural law should
require that individuals who had committed such crimes--who had
committed summary executions based on religion or ethnicity--that these
people should be taken to task for what they had done, but also,
critically, be afforded rights--the right to a fair trial, the right to
have legal representation.
Imagine--people like Goering and von Ribbentrop and Keitel and Speer
and others--actually be given a lawyer to represent them in a trial, so
that they could stand up and make a case for themselves, as Goering did
for days on end at Nuremberg.
Obviously, the facts are different here. At Nuremberg, the war was
over. There was a different set of circumstances. I would be the first
to acknowledge it.
That is not the comparison I am trying to draw. The comparison I am
trying to draw here is about the rule of law.
We can characterize these individuals at Guantanamo in words that
none of us are going to terribly argue about. But I come back to the
point that those who were at Nuremberg, who made the case for the trial
such as I described, need to be heard again today, 60 years later.
We are a nation of laws. We are different. We are not like these
people who are being held at Guantanamo. The rule of law is something
we cherish in this country, even to the point where we are willing to
stand up and defend the rights of people who do things we find
abhorrent.
Whenever I talk to students about the Bill of Rights and the first
amendment, I tell them that it doesn't just protect their rights when
they say something I agree with. It is important also to protect those
individuals who stand up and say something I totally disagree with or
find obnoxious, to put it mildly.
That is the rule of law. That is what makes us different. That is
what distinguishes us.
What has happened already is that there is confusion. Are these
prisoners of war? If they are, obviously the Geneva Conventions
prevail. If they are not prisoners of war but enemy combatants, the
Supreme Court has ruled already that they have certain rights, that
they have a right to appeal that status. Yet, we find that a
substantial number of these people are being held without any
definition of who they are, what their status is legally, whether or
not they are POWs, enemy combatants, or something else.
When Senator Bingaman offers his language here to get some clarity,
why is that important? I think it is important because we are, again, a
nation of laws. We determine that people ought to be given one status
or another. We need some clarity as to who these individuals are and
how they are going to be dealt with.
Why do I say that? First, because we ought to care, particularly in
this a

[[Page S6146]]

body, the U.S. Senate, that the rule of law is defended. But second,
and not unimportant, is the question of how we are being perceived in
the fight against terrorism--something that requires international
cooperation. It is critically important that the United States not only
lead on this issue but that other nations around the world and their
citizenry following us, join us, if you will, in this effort.
Today, as I speak about this issue--unfortunate symbols are
important. Guantanamo has become a symbol of things that have gone
wrong without clarity, without definition, and that lack of clarity is
hurting our cause.
As we try to build a coalition, it is crucial that we win support for
what we are trying to achieve. Without allies in this effort, we will
never ever win this war on terrorism. It is a transnational problem
that insists upon a transnational response.
It is critically important that we understand the necessity of
building the kind of relationships that are going to be absolutely
critical if we are going to succeed in this effort, as I believe we
must. We have no choice but to succeed in this effort.
But to disregard the feelings or sentiments of others on whom we must
support and depend in the future, if we are going to succeed in this
effort, is something that ought not to be lost on the membership of
this institution.
I am deeply concerned about the direction we are heading here, one
that is lacking clarity, any clarity at all, in dealing with these
individuals that are being held. What is their status? Is it one thing
or do we need a determination of that.
The administration I think bears the responsibility to come forward
and say what the status is. Just saying we are going to hold people
without some clarity is not good enough. If you want to hold them,
fine. Decide what they are. Are they prisoners of war? If they are,
then that is one set of circumstances. If they are not prisoners of war
but enemy combatants, that is a different set of criteria that applies.
But the rule of law must apply.
The criticism we are receiving here is that again we just do not have
any definition. This ought not be an issue that divides us and people
trying to inflame the passions of others: Who cares more about
terrorism or who is willing to stand up and fight against terrorism
more than anyone else. That is not the issue. The issue is the rule of
law which joins people of different political persuasions but of like
mind about insisting that the rule of law be applied. That has never
divided us. When we move that important criteria, that important
definition of who we are as Americans--the rule of law--and engage in
this sort of demagogic debate about who cares more about terrorism, or
you don't care about terrorism at all, if you are only willing to talk
about the rule of law, that somehow makes you weak on this issue, that
you lack the kind of conviction and spine when it comes to dealing with
terrorists because you start talking about the rule of law, how strong
an American are you, if you only get up and talk about the rule of law?
We have all learned painfully when you begin to disregard the rule of
law because you don't like the individuals that you want to apply it
to, it comes back to hurt all of us.
Those who made the case more than 50 years ago at another place in
another set of circumstances but facing the same criticism--the
emotional response was certainly warranted. The Nazis brutalized
people, incinerated millions, and certainly lit passions that said, Why
would you ever give that kind of individual a lawyer and a right to
present a case? And you can understand the emotions that people felt at
the time--to give them the right to present a case? Did they ever give
any of their victims a right to present a case in the incinerators of
Buchenwald or Dachau? They never did. Why should we do it now?
Because people stood up and said we are different than they are. That
is why we insist upon the rule of law.
Today, we need to remind ourselves--conservative, liberals,
centrists--who we are. The rule of law unites us. It ought not divide
us when we have these debates and discussions.
Guantanamo has unfortunately become a symbol of things that need to
change.
The President himself, to his credit, a week or so ago in a press
conference on June 14, acknowledged that fact. He said:

No question, Guantanamo sends . . . a signal to some of our
friends . . . provides an excuse, for example, to say, ``The
United States is not upholding the values that they're trying
to encourage other countries to adhere to.'' He also stated
clearly that he ``would like to close Guantanamo.''

That was the President of the United States. I am not making a case
on my own. He recognizes what is happening with the symbol of
Guantanamo, and how difficult it is to build the kind of relationships
that are critical if we are going to succeed as we must in this war
against terrorism.
I am not going to be offering an amendment. I think there is not
adequate time to debate and discuss these things at this late hour in
the evening. But I will find an opportunity at the appropriate time to
raise the issue.
I hope we can build a broad, bipartisan consensus on these points. We
ought not have division over the rule of law; to get clarification
about how we talk about POWs, enemy combatants, and what the status of
these people is because different sets of rules apply. Having no status
at all and not fitting into one category or another is something that
ought to be unacceptable to all of us.
I think having a facility that has become the symbol of something
which none of us believe we stand for--we know we stand for the rule of
law, we know we believe in that, and we embrace it--is raising serious
reservations and concerns among people who ought to be joining us in
this effort. If that is the case, as General McCaffrey said in talking
about Guantanamo, close it down. He said he would like to close it
down, and others believe as well that we ought to find other venues to
deal with these issues as well as, of course, determining the legal
status of these individuals so we can move on and again build the kind
of coalitions necessary to have a successful coalition to fight the war
on terrorism.
I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I appreciate the eloquent remarks of my
colleague and his sharing of insight into Nuremberg and a number of
thoughts that he shared with us about the rule of law, which I think is
very important.
I note that at Nuremberg they tried and executed quite a number of
people who conducted their war unfairly, in an unlawful way and went
beyond being prisoners of war. They were, in fact, tried for crimes
that they had committed.
I also say to my colleague with great sincerity that we are
respecting the rule of law. These individuals that are caught and held
at Guantanamo, some may qualify as a prisoner of war, many do not. They
are what I have called--others used enemy combatants--unlawful
combatants because they were carrying out combat in an unlawful way.
They did not carry arms openly. They did not wear a uniform. They moved
surreptitiously. They killed randomly women, children--actions that
deny them the status of a lawful combatant and a prisoner of war. They
are then held, if nothing else, certainly with legal protection because
the Geneva Conventions cover people who are lawful combatants, who wage
war for legitimate nations in a legitimate way.
Mr. DODD. Mr. President, if the Senator will yield, it is an
interesting point. Going back, there was a body of law that had emerged
prior to Nuremberg that, in fact, those who advocated that there should
be a trial at Nuremberg relied on a point. But one of the great crimes
that was argued against was crimes against humanity at Nuremberg. Many
argued that this was sort of making it out of whole cloth. I don't
think it was. But that was debated at the time.
The people who my colleague described as committing crimes against
humanity, it clearly seems that those who were not enemy combatants in
the

[[Page S6147]]

traditional definition of that word but engaged in the kind of
brutality against humanity, today there is a codified body of laws that
would certainly make those people subject to international law let
alone our own kind of crimes.
The point I am trying to make is, it just gives it some clarity. What
are they? What is the legal status in that category? If you are a POW,
there is one set of laws that apply. If you are an enemy combatant,
there is a set of laws and regulations that apply. If you are a non-
enemy combatant and have engaged in the very activities my colleague
described, what is the law that applies to those individuals under
those circumstances? There is no status at all being attributed to
these people. They are in limbo. That is what I am concerned about.
Mr. SESSIONS. Mr. President, I certainly respect the Senator's
thoughts about that. I must follow up a little bit.
First, what happened at Nuremberg happened after the war was over.
Mr. DODD. I agree.
Mr. SESSIONS. We held German prisoners in the northern campus of the
University of Alabama where I lived when I was in law school. They had
German prisoners there during World War II.
But what I want to try to reassure my colleague about is that we do
have a proper procedure that is ongoing. For example, we have defined
these as combatants. We give them a combatant status review tribunal
when they come in. They are reviewed in that fashion. They have a
three-judge panel. They actually go beyond the requirements that the
U.S. Supreme Court said in the Hamdi case.
In addition to that, they created an Administrative Review Board
that, on an annual basis, must make an assessment of whether there is
continued reason to believe that the enemy combatant poses a threat to
the United States or its allies, or whether there are other factors
bearing upon the need for the kind of detention, including its enemy
combatant intelligence value in the gulf war on terrorism.
For example, in the first year of those Administrative Review Board
hearings, there were 330 decisions to continue to detain the prisoners,
119 decisions to transfer them to other jurisdictions, other countries
perhaps, or possibly other countries, and 14 release decisions. This
second year, to date, the review board had 12 findings of continued to
detain, 6 transfers, and no release decisions.

At least there is a procedure. In response to criticisms in the
Congress, around the word, in response to the Supreme Court decision,
they have taken it carefully because the military is proud of its
standards. The military wants to do this right. But they have a
responsibility not to release those who should not be released as they
continue to pose a threat to the security of our Nation.
Mr. DODD. If my friend will yield further, I am sure he is a good
lawyer. In the Rasul v. Bush case in 2004, of course, the Supreme Court
ruled ``a state of war is not a blank check for the President,'' and
``enemy combatants have the right to challenge their detention before a
judge or other neutral decisionmaker.''
That took a court case basically going to the highest Court of our
land--I don't know what the ruling was, 5 to 4 or 6 to 3--and they
ruled in that case enemy that combatants have a judicial right to
challenge their status.
All I am saying, I am not trying to determine the outcome, just what
is the status for the people to be detained or moved other places.
Our highest Court has said it is not a blank check, that they have a
right to make a case. I don't want to be seen as perceiving--because I
am saying they have a right to make a case, do I like these people? Am
I trying to befriend them? I am saying the rule of law has to apply.
We are different. That is what makes us different from these people.
These people would never give their victims a right to a judicial
system proceeding as they engage in the kind of activity my colleague
from Alabama properly described.
What makes my colleague from Alabama, and I hope myself and our
colleagues, different is this very point the Supreme Court made. Even
these enemy combatants have the right to make a case before a judge or
other ``neutral decisionmaker,'' that the state of war is not a blank
check for the President. That is the point I am trying to make. I am
not trying to characterize the people in any other way than what my
colleague has described.
The point the Senator and I need to come together on is the rule of
law. That is all I am trying to suggest. I don't have an amendment to
offer, but we have to find this common ground on this issue because it
is who we are. It is what we want the world to know and appreciate what
the United States is. That is really what did so much for us in the
wake of World War II where we became this symbol of nations that rise
above their passions and their emotions.
He is absolutely right on Nuremberg. Several people got limited
sentences, some got off, and many got executed, as they should have,
but it went through a legal process. To read those transcripts, where
people went on and talked as Goering--I am tempted to draw the
comparison of Goering to Saddam Hussein, who talks endlessly. Goering
did almost the same, and there was concern by some that he might have
gotten away had it not been for a very aggressive prosecution.
It was the rule of law, and how proud these people were that showed
the world--and the United States led--we were different.
The fact situations are very different between the end of a conflict
and an ongoing conflict and how you deal with it, but the rule of law
does deserve stronger support than I am afraid we are giving. That is
my concern.
Mr. SESSIONS. I thank the Senator.
I believe care has been taken to comply with the Supreme Court cases.
The Department of Defense has gotten the system in a way that has a
combatant status review tribunal and an administrative review board,
and there have been multiple hearings. The Department is giving these
prisoners--whether they are prisoners of war, lawful or unlawful
combatants who are being detained--the rights to which they are
entitled. I really do believe they have.
That is the only concern I have about the perception that might be
out there, even around the world, that we are acting outside the rule
of law. I do not believe that is so.

____________________