Congressional Record, Volume 153 Issue 39 (Wednesday, March 7, 2007)

[Congressional Record Volume 153, Number 39 (Wednesday, March 7, 2007)]
[Senate]
[Pages S2749-S2788]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

IMPROVING AMERICA'S SECURITY ACT--Continued

Amendment No. 286

Mr. SPECTER. Madam President, I have sought recognition to debate
amendment No. 286, which would reverse the provision in the Military
Tribunal Act which has limited the jurisdiction of the Federal courts
in habeas corpus proceedings.
The essential question at issue is whether the combatant status
review tribunals are adequate and effective to test the legality of a
person's detention.
What we are dealing with here is an examination of the issue as to
whether the procedures are fundamentally fair. Congress should repeal
the provisions of the Military Commissions Act which limit Federal
court jurisdiction on habeas corpus.
The decision by the court of appeals, I submit, will be overturned by
the Supreme Court of the United States because of Circuit Court's
ruling that the Rasul case dealt only with the statutory provisions on
habeas corpus. The Circuit Court ignored the binding language of Rasul,
which said that the habeas corpus rights were grounded in common law in
effect in 1789 and were, in fact, part of the Constitution. Where
habeas corpus is a right in the Constitution, and it is such a right
because the Constitution expressly states that habeas corpus shall not
be suspended except in cases of invasion or rebellion--and no one
contends that there is either invasion or rebellion at issue--

[[Page S2750]]

Congress cannot legislate a derogation of that constitutional right.
Any act of Congress is obviously trumped by a constitutional provision.
Where you have habeas corpus in effect in 1789 and the constitutional
provision prohibiting its suspension, the legislation passed in the
Military Commission Act I think ultimately will be determined by the
Supreme Court to be unconstitutional, pretty clearly on the face of the
opinion of the Court articulated by Justice Stevens.

The Congress ought to reverse the provision of the Military
Commission Act which strikes or limits Federal court jurisdiction on
habeas corpus because the provisions--the way the detainees are being
dealt with, simply stated, is not fundamentally fair. It does not
comport with due process of law, and due process is a right even
without specific enumeration in the Constitution.
The order establishing the Combat Status Review Tribunal provides as
follows:

For purposes of this order, the term ``enemy combatant''
shall mean an individual who was a part of or supported
Taliban or al-Qaida forces or associated forces that are
engaged in hostilities against the United States or its
coalition partners. This includes any person who has
committed a belligerent act or who has directly supported
hostilities in aid of enemy forces.

The fact is that people are detained as enemy combatants without any
showing of those basic requirements.
The next section of the order establishing the Combatant Status
Review Tribunal provides:

All detainees shall be notified--

Skipping some language--

of the right to seek a writ of habeas corpus in the courts
of the United States.

I have not seen any reference to this provision in any of the
adjudications, and I found this on the very extensive research which my
staff and I have undertaken to prepare for this debate. But there you
have it. The order itself setting up the Combat Status Review Tribunal
says that the detainees have the right to seek a writ of habeas corpus.
The Secretary of Defense has the authority to establish the rules, and
he has established the rule which gives the detainee the right to seek
a writ of habeas corpus. That ought to end the argument right there.
Let's proceed further to see, in fact, what happens when these
matters are taken before the Combat Status Review Tribunal. We have the
opinion of U.S. District Judge Green in a case captioned, ``In Re:
Guantanamo Detainee Cases,'' in which Judge Green writes as follows:

The inherent lack of fairness of the CSRT's consideration
of classified information not disclosed to the detainee is
perhaps most vividly illustrated in the following
unclassified colloquy which was taken from a case not
presently before this judge which exemplifies the practical
and severe disadvantages faced by all Guantanamo prisoners.
[I read] a list of allegations forming the basis for the
detention of Mustafa Ait Idir, a petitioner in Boumediene v.
Bush case--

And that parenthetically is the case decided by the Court of Appeals
for the third circuit.
This is what Judge Green goes on to point out in her opinion in the
Federal Reporter:

While living in Bosnia, the detainee associated with a
known al-Qaida operative.
In response, the following exchange occurred:
Detainee: Give me his name.
Tribunal President: I do not know.
Detainee: How can I respond to this?

Skipping some irrelevant language, the detainee goes on to say:

I asked the interrogators to tell me who this person was.
Then I could tell you if I might have known this person, but
not if this person is a terrorist. Maybe I knew this person
as a friend. Maybe it was a person that worked with me. Maybe
it was a person that was on my team, but I do not know if
this person is Bosnian, Indian, or whatever. If you can tell
me the name, then I can respond and defend myself against
this accusation.
Tribunal President: We are asking you the questions and we
need you to respond to what is in the unclassified summary.

Skipping some irrelevant materials, the detainee then goes on to say:

But I was hoping you had evidence that you could give me.
If I was in your place--and I apologize in advance for these
words--but if a supervisor came to me and showed me
accusations like these, I would take these accusations and I
would hit him in the face with them. Sorry about that.

Then, parenthetically, Judge Green's opinion notes that ``Everyone in
the tribunal laughs.''

Tribunal President: Well, we had to laugh, but that is OK.

A little later in the opinion--

The detainee says: What should be done is you should give
me evidence regarding these accusations, because I am not
able to give you any evidence. I can just tell you no, and
that is it.

Then Judge Green goes on to say:

The laughter reflected in the transcript is understandable.
And this exchange might have been truly humorous had the
consequences of the detainee's enemy combatant status not
been so terribly serious, and the detainee's criticism of the
process had not been so piercingly accurate.

Well, this case illustrates the fact that the provisions in
Guantanamo on the detainee status review tribunal is a laughing stock.
It hardly comports with what the Secretary of Defense said was
required: that there has to be evidence that the individual supported
Taliban or al-Qaida forces or committed a belligerent act.
The Judiciary Committee held a hearing and one of our witnesses was a
distinguished attorney, Thomas Sullivan, who made available a series of
cases before the Combat Status Review Tribunal. This is one
illustrative case involving a man named ``Abdul-Hadi al Siba.'' I take
this from the extract of what the witness provided:

The Combat Status Review Tribunal stated that al Siba was
charged with being captured in crossing the border into
Pakistan with having volunteered for a charity that was
funded by al-Qaida. That is all that is in the summary.

Again, this hardly comports with the standard by the Department of
Defense itself that there is supposed to be evidence which would show
the detainee was engaged in hostilities against the United States or
committed belligerent acts.
The provisions of the Department of Defense establishing the Combat
Status Review Tribunals is fundamentally unfair under the most basic
principle of Anglo-Saxon American jurisprudence. The rules are:

Preponderance of evidence shall be the standard used in
reaching the determination, but there shall be a rebuttable
presumption in favor of the government's evidence.

That is the most extraordinary standard which I have ever seen, and
it is bedrock Americana that people are presumed innocent. But instead,
when a detainee faces a Combat Status Review Tribunal, the presumption
is that he is guilty. That hardly comports with a standard of
fundamental fairness or due process.
The rules promulgated by the Department of Defense call for a
preponderance of evidence, so even if there is a presumption of guilt,
the standards do require some evidence. But that was not present in the
case cited by Judge Green, not present in the cases cited by Thomas
Sullivan at our Judiciary Committee hearing.
Madam President, I ask unanimous consent that the summary of other
cases provided by Mr. Sullivan be included in the Record at the
conclusion of my presentation.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. SPECTER. The standards which have been established, which would,
under some circumstances, permit a substitute procedure for habeas
corpus were articulated by the Supreme Court of the United States in
the case of Swain v. Pressley. In that case, the Supreme Court said
there could be a collateral remedy which is neither inadequate nor
ineffective to test the legality of a person's contention.
But the collateral remedy which was present in Swain v. Pressley is a
far cry from the provisions of the Combat Status Review Tribunal.
What the Supreme Court was dealing with in the Swain case was habeas
corpus before a State court as opposed to habeas corpus before a
Federal court. In Swain, the Supreme Court said that the ``relief
available in the Superior Court is neither ineffective nor inadequate
simply because the judges of that court do not have life tenure.''
So here we have a State court functioning under the rules of habeas
corpus and the Supreme Court says that is an equivalent of Federal
court habeas corpus because State court judges can make that
determination and the only difference is that the State court judges do
not have wide tenure.
In Swain, the Supreme Court went on to say:

It is a settled view that elected judges of our State
courts are fully competent to decide Federal constitutional
issues.

[[Page S2751]]

So there you have the constitutional issue decided. But the only
difference is that it is a State court. Well, that has absolutely no
resemblance to the combat status review tribune. It hardly qualifies as
an adequate substitute.
I want to proceed now to the issues that were articulated by the
Supreme Court of the United States in Rasul, where I believe it is very
clear cut that there is the ignoring of the language of the Supreme
Court, and a constitutional right and a right that was in effect in
common law in 1789 will certainly be utilized by the Supreme Court in
dealing with the circuit court opinion, which is directly inconsistent
with the language of Justice Stevens. This is what Justice Stevens said
in the Rasul case, speaking for the Court:

Application of the habeas corpus statute to persons
detained at the base [referring to the Guantanamo base] is
consistent with the historical reach of the writ of habeas
corpus. At common law courts exercise habeas corpus over the
claims of aliens detained within the sovereign territory of
the realm, as well as the claims of persons detained in the
so-called ``exempt jurisdictions'' where ordinary writs did
not run, and all other dominions under the sovereign's
control. As Lord Mansfield wrote in 1759, even if a territory
was ``no part of the realm'', there was ``no doubt'' as to
the Court's power to issue writs of habeas corpus if a
territory was under the subjection of the crown.

The Supreme Court had already held in the trilogy of cases in 2004
that the United States Government controlled Guantanamo Bay, so it was
within the jurisdiction of the United States.
Justice Stevens goes on to point out that:

Later cases confirmed the reach of the writ depended not on
formal notions of territorial sovereignty, but rather on the
practical question of ``the extent and nature of the
jurisdiction or dominion exercised in fact by the crown.''

There again is the reference to the undeniable fact that the United
States controls Guantanamo and it is under United States dominion. The
court of appeals concluded that the language about the existence of the
writ when the Constitution was adopted and the constitutional right of
habeas corpus was not resolved by Rasul, because the specific holding
in Rasul was on the statutory provisions of section 2241.
The Stevens opinion says:

We therefore hold that section 2241 confers on the district
court jurisdiction to hear petitioner's habeas corpus
challenges to the legality of their detention at Guantanamo
naval base.

Now, the circuit court said that, well, is a holding based upon the
statute, but its limitation does not apply to a constitutional right or
the reach of the writ in effect in common law in 1789. How can it be
that the Supreme Court would say Guantanamo Bay is under United States
jurisdiction for the statutory right but outside of the jurisdiction
for the constitutional right? It stands the English language on its
head.
There have been a number of situations where--especially in the fifth
circuit--on death penalty cases the circuit has, in effect, ignored
what the Supreme Court has had to say. It has been a highly critical
Supreme Court which has then come to review those decisions. I suggest
that that would be the response when the Supreme Court comes to review
the circuit court opinion which ignores the plain language of the
Supreme Court of the United States.
In dissent, Justice Scalia recognized the fact that the case of
Johnson v. Eisentrager had been overruled. The court of appeals relies
upon Johnson v. Eisentrager to hold that there is no jurisdiction over
Guantanamo Bay. But this is what Justice Scalia, in dissent, had to say
about the overruling of Johnson v. Eisentrager. He called it
``overturning of settled law.''
But the court of appeals did not view it as such. So when this case
comes before the Supreme Court, I think it is patently obvious that the
language of the Court will require reversal of the circuit court
decision.
I have been asked if I will yield for a unanimous consent request by
Senator Lieberman, and I will do so.
Mr. LIEBERMAN. Mr. President, I ask unanimous consent that when the
time allocated to the Senator from Pennsylvania expires at 1, the
Senator from Minnesota be recognized for 10 minutes and, after that,
the Senator from Delaware be recognized for whatever amount of time he
needs until 1:30, when Senators Collins and McCaskill have 15 minutes
equally divided.
The PRESIDING OFFICER (Mr. Menendez). Is there objection?
Without objection, it is so ordered.
Mr. SPECTER. Mr. President, the failure of the Court of Appeals for
the District of Columbia to recognize the settled principles was the
subject of an analysis by the distinguished constitutional scholar Adam
Liptak in the New York Times yesterday. It is worth notice. The
analysis said that:

what the Supreme Court says goes. Usually. But in a defiant
decision 2 weeks ago, a Federal Court of Appeals in
Washington conceded that it was ignoring parts of the 2004
Supreme Court decision on the rights of a man held at
Guantanamo Bay, Cuba. That can make the Supreme Court testy
and it may help the detainees.

The analysis goes on to paraphrase the powerful dissent of Judge
Judith Rogers, who said her colleagues were thumbing their noses at the
Supreme Court. Liptak notes that:

[Rogers stated that her colleagues] ``were ignoring the
Supreme Court's well-considered and binding dictum''
concerning the historical roots and geographical scope of the
prisoner's basic rights and she cited the case from her own
court that said that such statements ``generally must be
treated as authoritative.''

The analysis goes on to say that:

almost 3 years ago, the Supreme Court ruled in Rasul that the
detainees possessed an ancient and fundamental right, the
right to challenge the justice of their confinement in court
by filing petitions for writs of habeas corpus.
In a crucial aside, in Rasul, Justice John Paul Stevens,
writing for the majority, said this right was not just a
result of a law passed by Congress but was grounded in the
Constitution. ``Application of the habeas statute to persons
detained in the base,'' he wrote, ``is consistent with the
historical reach of habeas corpus.''

Well, that lays it out in a pretty conclusive way that when the Court
rules on a statute but says that the same right is embodied in the
Constitution, Congress cannot pass a law which trumps the
constitutional provision, as articulated by the Supreme Court of the
United States.
The Liptak analysis goes on to note this:

If that is a right, a new law pushed by the Bush
administration's Military Commissions Act could not have cut
off detainees' rights to habeas corpus. In a footnote, the
appeals court basically acknowledges that. But it ruled that
the Supreme Court's historical analysis was wrong and that
Justice Stevens' dictum could be ignored.

In the analysis commenting on the Johnson v. Eisentrager case, Liptak
noted as follows:

All of the points which were relied upon by the circuit
court, as Justice Stevens wrote in Rasul, counted in favor of
the Guantanamo detainees. ``They were not nationals of
countries at war with the United States''--

Which was the case in Eisentrager--

They have not been engaged in plotted acts of aggression
against the United States. They have never been afforded
access to any tribunal, much less charged with and convicted
of wrongdoing, and for more than 2 years they have been in
prison in territory over which the United States exercises
exclusive jurisdiction and control.

Well, this is a fairly brief analysis in the time which I have. But
the essence of it boils down to this: The Supreme Court--Justice
Stevens speaking for a majority--has ruled that the Federal habeas
corpus statute covers Guantanamo, that the rights were violated, and
that the statute carries out the constitutional law and the scope of
the writ in 1789, when the Constitution was adopted. And the Court of
Appeals for the Third Circuit, in order to uphold the act, says the
holding by Justice Stevens was only to a statute--and it is true
Congress can change the statute--but ignores the plain language of
Justice Stevens speaking for a majority of the Court that it is a
constitutional right.
That cannot be changed by an act of Congress, and the Supreme Court
will tell the court of appeals that when they get the case. Aside from
the issue of constitutionality, which will be decided by the Court, as
to the procedures that are in effect in these combat status review
tribunals, they do not measure up to the requirements of fundamental
fairness. They do not honor what the Department of Defense laid down as
the basic rule that detainees are entitled to ``the right to seek a
writ of habeas corpus in the courts of the United States.''
That ought to be the end of it because the Secretary of Defense was
given the responsibility to decide what

[[Page S2752]]

the rules were, and he said one of the rules is that these detainees
can go to court. That is what an act of Congress has taken away, and
that is what ought to be reversed.
Then if we take a look at what has to happen in these proceedings
before the Combat Status Review Tribunal, the term ``enemy combatant,''
which would qualify for detention, means an individual who was part of
or supporting the Taliban or al-Qaida forces or has committed a
belligerent act or has directly supported hostilities in aid of enemy
forces.
The individual in the court of appeals case cited by Judge Green,
which I read at length, was only supposed to have talked to somebody
from al-Qaida, and they couldn't even produce the identity of the
individual, which hardly measures up to the Department of Defense's
standard. It is just absolutely ludicrous. Then for the Department of
Defense provisions to say that there is a presumption of guilt just
turns American justice on its head. Even with a presumption of guilt,
the requirements are that there be evidence, and there is none in the
case cited by Judge Green and by Mr. Sullivan.
This is just the beginning of the argument. We will have other
Senators come to oppose.
Let me advise my colleagues that there will be a portion of the
debate conducted in Room S-407, which is the room where we can discuss
classified information, because Senator Leahy and I have been reviewing
the rendition in the Arar case, and we have found that there was a
determination that Arar had a status--which I cannot discuss in this
Chamber but can discuss only in S-407--which would warrant sending him
to Syria. Arar was a Canadian citizen who came to the United States and
was detained for questioning at an airport in New York City when he
wanted simply to transit and go to Canada. He was questioned by the
FBI.
It has been well noted that the FBI does not agree with the other
interrogation practices which have been undertaken by the Government.
After that questioning, which was reportedly extensive, Arar was then
sent to Syria. He came back and has filed suit alleging that he was
tortured and subjected to brutal treatment.
The Canadian officials have considered the issue at length and have
published a three-volume set. It is a good visual for people to see, if
anybody is watching on C-SPAN2.
This is volume 1 of the report relating to Maher Arar, this is volume
2 on the report relating to Maher Arar, and this is the analysis and
recommendation. After undertaking this kind of an analysis, the
Canadian Government apologized to Arar and paid him about $10 million,
but the U.S. Government continues to say that it was justified in
sending Arar to Syria, where he was beaten.
These matters relating to rendition, I submit, are directly relevant
to our consideration of whether the Federal courts need to be involved
in determining the legality of Guantanamo detainees because this
Government, in the war on terrorism--and there is no doubt about the
importance of our war on terrorism and the necessity for effective law
enforcement. I led the Judiciary Committee to the reauthorization of
the PATRIOT Act, which gives law enforcement extensive authority. But
there are laws against torture. There are international covenants
against torture. The submission of rendition is something that is going
to have to come under some judicial supervision.
I am considering now legislation which would require Federal
authorities to go to court to establish probable cause and a basis for
rendition before any American citizen or before anyone ought to be sent
to a foreign country.
We have the allegations of the plaintiff in a case decided last week
by the Fourth Circuit who was sent to Egypt and alleged that he was
tortured there. The Fourth Circuit has held that the case cannot be
pursued because of a state secrets doctrine. That is a matter which is
going to be reviewed on oversight by the Judiciary Committee.
We have 25 CIA agents under indictment now in Italy, and we have 13
CIA agents now under indictment in Germany. The international response
is that the United States is undertaking a rendition in a way which is
unsatisfactory to basic standards of decency and fairness.
The Judiciary Committee has held hearings on Guantanamo. I visited
Guantanamo. Not to have those detainees have the right of habeas corpus
and Federal court review is totally at variance with the very basic
tenets of Anglo-Saxon and American jurisprudence.
I cannot say anything more about Arar, but it can be discussed in S-
407, which is the room we go to when we have matters to discuss which
are classified. I believe it is a very compelling case that there needs
to be judicial intervention or needs to be a lot more oversight than
there has been on these matters.
I might say, it is like pulling teeth to get the Department of
Justice to make any information available. It takes a long time to have
access to the classified material, and then the material is
insufficient to come to a conclusion. In the Arar case, we have a
request pending and don't know what the result will be. But we do know
Canada made an exhaustive analysis of Arar and what he had done, and I
think I can say this: The materials in the classified documents relate
to information substantially obtained from Canadian authorities, and
Canada has made the inquiry and has apologized and paid some $10
million.
I yield the floor.

Exhibit 1

Summaries of CSRT Examples Cited by Tom Sullivan at September 25, 2006
SJC Hearing

Abdul-Hadi Al Siba'a

Al Siba'a is 34 year old Saudi Arabian who was taken into
custody in Pakistan in December 2001. He had no weapon or
ammunition when he was captured. The Combatant Status Review
Tribunal stated that Al Siba'a was charged with being
captured in crossing the border into Pakistan and with having
volunteered for a charity that was funded by Al-Qaida.
Al Siba'i repeatedly contended that he is a police officer
in the Riyadh police department who was on a leave of absence
in August 2001 to assist in building schools and a mosque in
Afghanistan. He has presented his passport and his airline
ticket. He has offered to have the Riyadh Police Department
verify his employment and the nature of his leave of absence.
Those requests were refused by the tribunal ``because an
employer has no knowledge of what their employees do when
they are on leave.''
After five years of detention, the government released Al
Sibai'i from Guantanamo Bay, and he returned to his home in
Saudi Arabia.

Unnamed Detainee

One detainee, who is not named in the declassified
documents from the CSRT, is a Muslim man from Germany. This
detainee is charged with having a close association with an
individual who later engaged in a suicide bombing.
The detainee had no memory of any association with a person
who was a suicide bomber. In order to understand the nature
of the charges against him, the detainee asked what evidence
the tribunal had to show that he was involved with a suicide
bomber.
The tribunal responded that they could not answer that
question and that ``anything remaining concerning [the
suicide bomber who the detainee was allegedly associated
with] is in the classified session.'' While the detainee
continued to be cooperative and answer the questions posed to
him by the CSRT, the Tribunal never provided him with an
explanation of the questions that it asked regarding his
associations with other individuals and organizations.

``Mustafa''

Arrested in Sarajevo, Bosnia, but originally of Algerian
descent. Accused of being a member of the Islamic Armed
Group, which was plotting to bomb the American Embassy in
Sarajevo. Asked about his relationship to Abu Zubayda, whom
he denied knowing.
Mustafa was arrested and searched by ``international police
from the United Nations.'' Was told that if the Bosnians no
longer wanted him in their country, he would be welcome to
return to Algeria.
Asked his interrogator at GTMO, ``why, and if there were
any accusations or evidence against me. The interrogator said
to me that they would find something, meaning I could not be
released from Cuba without them finding some accusation
against me. I could not have been held in Cuba in prison for
three years, then all of a sudden be found innocent and
released.''

[[Page S2753]]

Abdur Sayed Rahman

Born in Pishin, Pakistan. Charged with being a member of
the Taliban, which he denied.
Although there were two exhibits read into evidence against
him, he was unable to view the evidence. Additionally, the
detainee denied having been at the place of his capture in
Pakistan at the alleged time of his capture. The government
could not verify with him the time of his capture.

Mr. SPECTER. In the absence of any other Senator seeking recognition,
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SPECTER. 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. SPECTER. Mr. President, I have a couple supplemental comments I
would like to make.
The requirement established by the Department of Defense that a
detainee shall be notified ``of their right to seek a writ of habeas
corpus in the courts of the United States'' was given to all the
detainees. So they have had it and relied upon it. I suggest that while
not legally the same, that any change in that policy is really in the
nature of ex post facto, which is changing a rule and establishing
criminal liability after the fact, which is prohibited by the
Constitution. It isn't quite that, but it has the same flavor, and it
is the nature, also, of a bill of attainder, which is legislation that
establishes guilt as opposed to a judicial proceeding. What we have had
here, in effect, is legislation which has changed what the Department
of Defense said the rights of the individuals would be.
I wish to cite, in addition, a quotation from Justice O'Connor in the
Hamdi v. Rumsfeld case, talking about combat status review boards, in
which she said:

Any process in which the executive's factual assertions go
wholly unchallenged or simply presumed correct without any
opportunity for the alleged combatant to demonstrate
otherwise falls constitutionally short.

Justice O'Connor restates in shorthand the traditional presumption of
innocence which is turned on its head by the DOD regulations and says
as a matter of Supreme Court ruling that without any opportunity to
defend, those presumed conclusions can't stand.
We saw the case of Judge Green, we saw the case cited by the witness
before the Judiciary Committee, all of which shows the basic unfairness
of what is going on in Guantanamo. The only way to correct it is
through the traditional habeas corpus rights in Federal court.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.

Veterans Health Care

Ms. KLOBUCHAR. Mr. President, I rise today to pay tribute to our
brave soldiers fighting overseas and in particular the nearly 3,000
Minnesota National Guard members who recently had their stays extended
in Iraq. I wish to speak about our duty to these soldiers for their
sacrifices on behalf of our Nation. It is an issue that must transcend
partisanship.
Whether one supports the President's escalation or opposes it, as I
do, there is one point on which we can agree: We must support the
soldiers on the battlefield, and when they return home, we must give
them the support they need.
In the past 4 years, American military service personnel and their
families have endured challenges and stressful conditions that are
unprecedented in recent history, including unrelenting operational
demands and recurring deployments in combat zones.
Mr. President, 1.5 million American service men and women have served
in Iraq and Afghanistan. These wars are creating new generations of
veterans who need their country to stand with them. Many of the
soldiers fighting in Iraq and Afghanistan are doing it not only to
serve their country but also to provide for their families.
One of these soldiers was Army SGT William ``B.J.'' Beardsley, who
lived in Minnesota. Sergeant Beardsley joined the Army just after high
school and completed one term of service. But when his wife Stacy
encountered medical ailments, Sergeant Beardsley decided to reenlist,
in part so that his health insurance would cover the medical treatment
his wife required.
His personal sacrifice to family and country allowed his wife to
successfully undergo surgery. Tragically, the day Stacy left the
hospital, Sergeant Beardsley was killed by a roadside bomb in Iraq.
I have always believed that when we ask our young men and women to
fight and die for this Nation, we make a promise that we will give them
all the resources they need to do their job and when they return home,
we will take care of them and their families. Sergeant Beardsley will
not be coming home, but for too many of his fellow soldiers in Iraq and
Afghanistan who do return, our promise to take care of them has
repeatedly been broken.
As a nation, we have an obligation to wrap our arms around the people
who serve us and who have sacrificed for us. Today, our veterans need
us more than ever. While the President pushes ahead with his surge of
additional troops into Iraq's civil war, at home we are already
experiencing a vastly larger surge of returning soldiers, many of them
citizen soldiers from the National Guard and Reserves.
More than 3,000 have returned having made the ultimate sacrifice,
leaving behind grieving families and communities. Tens of thousands
have come home physically wounded. Tens of thousands more return
suffering from post-traumatic stress, depression, and substance abuse
as a result of their service. These are men and women who have served
our country on the front lines, but on returning home too many have
found themselves shunted to the end of the line, left waiting to get
the health care they need, left waiting to receive the benefits they
have earned and, as the shocking revelations from Walter Reed show us,
some have been left waiting in the most squalid of conditions. We are
now learning this is not an isolated incident.
In Minnesota, one of those left waiting was Jonathan Schulze.
Jonathan, from Stewart, MN, was a 25-year-old marine who had fought in
Iraq and earned two Purple Hearts. He told his parents that 16 men in
his unit had died in 2 days of battle. When he returned home in 2005,
the war did not leave him. He suffered flashbacks and panic attacks. He
started drinking heavily to stave off nightmares. According to VA
Secretary Jim Nicholson, Jonathan was seen by the VA 46 times in
Minneapolis and St. Cloud, MN, but this was not enough. In January,
this young war veteran hanged himself.
We now learn that the VA Medical Center in St. Cloud has 15 acute
inpatient psychiatric beds, while a decade ago there were 198 beds.
That means the number of acute psychiatric beds available for veterans
there has declined by more than 90 percent in the past decade. It is as
if nobody even realized that we have been at war for the past 4 years
and that tens of thousands of Minnesotans have returned from combat,
with many more to come.
Our veterans didn't stand in long waiting lines when they were called
up or volunteered to serve our Nation. So why are we asking them to
stand in line now for medical care?
As a former prosecutor, there is a saying that ``justice delayed is
justice denied.'' I would add that, for our veterans, ``health care
delayed is health care denied,'' and that, too, is an injustice. We
need to do better, much better, and we can.
In fact, we know what needs to be done. First, we need to stop
shortchanging our veterans during the budget process. Just as this
administration sent our soldiers into battle without a plan for
victory, it also failed to develop a plan to address their needs once
they got home. The administration shockingly underestimated the number
of veterans who would require medical care.
In its fiscal year 2005 budget request, the Department of Defense
estimated

[[Page S2754]]

that they would have to provide care for 23,500 veterans from Iraq and
Afghanistan. In reality, more than four times that number required
assistance. Last year, the Pentagon underestimated the number of
veterans seeking care by 87,000.
The Department of Veterans Affairs operates the largest medical
system in the Nation. It has a reputation for high-quality care, with
many talented, dedicated doctors, nurses, and other staff. The VA's
resources, however, are now severely strained. The waiting list and
delays get longer. The shortages are especially severe in mental health
care. Last year, the VA underestimated the number of new post-traumatic
cases by five times.
For the past several years, this administration has submitted a
budget request for the VA that significantly underfunded the needs of
America's 25 million veterans. This is from the same administration
that each year asks Congress to authorize tens of billions of dollars
for projects in Iraq. I was pleased that the continuing resolution,
passed a few weeks ago, increased funding for the VA by $3.5 billion
over fiscal year 2006 levels. However, this should only be the
beginning of a renewed commitment to our service men and women, both on
the front lines and on the home front.
When the President's budget comes to the Senate floor later this
month, I will join my like-minded colleagues in pressing for a
substantial increase in VA funding.
Second, we need to start treating our National Guard and Reserves
like the soldiers they are. Up to 40 percent of the troops fighting in
Iraq have been National Guard members and reservists. Minnesotans know
all too well the burden being placed on our Guard forces. The National
Guard was not built to serve as an Active-Duty force for prolonged
periods of time. Yet that is exactly what we are requiring them to do.
Guard funding and benefits have not gone up correspondingly to match
its increased duties.
Meanwhile, the Pentagon is stripping Guard units of their equipment
in order to make up for shortages in supply. States rely on the
presence of a strong and well-equipped Guard in order to respond to
domestic emergencies. Department of Defense policies have weakened the
Guard to the point that a recent commission found that 88 percent of
Guard units in the United States cannot meet preparedness levels.
It is time we recognize the elevated position and importance of the
National Guard to our national security. As a member of the National
Guard Caucus, I support the National Guard Empowerment Act, which will
promote the commander of the National Guard to a four-star general and
make him a member of the Joint Chiefs of Staff. It will also grant the
Guard more responsibility over coordinating Federal and local agencies
during emergencies.
We must also upgrade Guard members from their perceived status as
second class veterans in other areas, including health care, pension
plans, education, and reintegration programs. We need to do a better
job of integrating our returning veterans back into our communities
when they return. This is particularly hard for National Guard members
when they do not have a base to go home to and have to go to literally
thousands of communities and small towns across this country.

In Minnesota, we are proud to have created the Beyond the Yellow
Ribbon Program, which provides counseling and support to National Guard
members and their families. Across my State right now, the National
Guard is sponsoring a unique series of Family Reintegration Academies.
Several weeks ago, I had the honor of attending one of these academies
in Alexandria, MN. This pilot reintegration program has helped ease the
transition for soldiers and their families, and it has gotten fabulous
reviews from the participating families.
What works in Minnesota can work in every State across the Nation. As
we enter this appropriations process, I will be working with my
colleagues to insist that the Federal budget include funding for
reintegration programs for Guard members and reservists.
Third, we need to improve health care for all of our soldiers. The
problems found at Walter Reed are all too common at veterans hospitals
and centers nationwide. I have joined my colleagues in legislation that
will begin to solve the personnel and building shortages at Walter Reed
Hospital and similar centers across the Nation. I also will join the
Democratic leadership in the Senate in their HEROES plan to provide
more oversight to veterans affairs and develop legislation to address
these problems.
One of the most glaring needs in veterans health care today is
funding for research and treatment of poly-
traumatic injuries. As Bob Woodruff of ABC News showed us so vividly
last week, with his own example and that of many other wounded
soldiers, brain trauma has become a signature injury of this war in
Iraq.
Minnesota is home to one of the VA's systems four polytrauma
rehabilitation centers. The others are in Palo Alto, Richmond, and
Tampa. These centers were created in recognition of the large number of
service members sustaining multiple severe injuries as a result of
explosions and blasts. These centers provide a full array of inpatient
and outpatient services, with specialized programs for traumatic brain
injuries, spinal cord injury, blind rehabilitation, and post-traumatic
stress disorder.
I have visited the VA polytrauma brain center in Minneapolis. We need
more of these centers and more research into the permanent effects of
brain trauma caused by explosions on the battlefield. Our current VA
infrastructure is not equipped to deal with these injuries and to care
for brain-injured vets once they leave these specialized centers and
return home. This must be a priority.
Another issue that is only beginning to receive sufficient attention
is the proliferation of mental health disorders among veterans.
According to a Veterans' Health Administration report, roughly one-
third of Iraq and Afghanistan veterans who sought care through the VA
were diagnosed with potential symptoms of post-traumatic stress, drug
abuse, or other mental disorders.
The Joshua Omvig Suicide Prevention Act, introduced by my colleagues
from Iowa, will help ensure 24-hour access to mental health care for
veterans deemed at risk for suicide. It will create VA programs to help
veterans cope with post-traumatic stress disorder and other mental
illnesses that too often lead them to take their own lives. Nearly
1,000 veterans who receive care from the VA commit suicide each year.
It is too late for Jonathan Schulze, but it is not too late for the
many other suffering soldiers who are at risk for suicide.
In the coming weeks and months, I hope to engage my colleagues to
cooperate on new legislation that will increase the funding and
commitment to veterans mental health services. In past years, veterans,
such as my father, could count on the fact that their Government would
stand by them. After World War II, our Government did just that,
adopting the GI bill to provide health, housing, and educational
benefits that gave returning veterans the help they needed to heal, to
raise families, and to prosper.
At a time when we are spending billions on the reconstruction of
Iraq, funding for health care for veterans is far below what is needed.
Those are the wrong priorities for our country. We cannot abandon the
brave soldiers who fought for us once they return.
In his Second Inaugural, President Lincoln reminded the American
people that in war we must strive to ``bind up the Nation's wounds, to
care for him who shall have borne the battle and for his widow and his
orphan.'' Today, Americans are again called to bind up our Nation's
wounds and to care for those who have borne the battle, as well as
their families who have shouldered their own sacrifice.
Let us live up to this solemn obligation to bring our troops home
safely and to honor our returning soldiers and their families by giving
them the care and the benefits they have earned.
Mr. President, I yield the floor.

Amendments Nos. 383 and 384, En Bloc, to Amendment No. 275

Mr. BIDEN. Mr. President, I send to the desk two amendments. I am
only going to speak to one, but I would like to send both to the desk
so I have them offered. One is an amendment relating to funding of the
homeland security effort, and the other is one relating to

[[Page S2755]]

the ability for cities and States to reroute hazardous waste around
their major metropolitan areas.
The PRESIDING OFFICER. Without objection, the clerk will report.
The legislative clerk read as follows:

The Senator from Delaware [Mr. Biden] proposes amendments
numbered 383 and 384, en bloc, to Amendment No. 275.

Mr. BIDEN. Mr. President, I ask unanimous consent that the reading of
the amendments be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments (Nos. 383 and 384) are as follows:

amendment no. 383

(Purpose: To require the Secretary of Homeland Security to develop
regulations regarding the transportation of high hazard materials, and
for other purposes)

On page 361, after line 20, add the following:

Subtitle D--Transport of High Hazard Materials

SEC. 1391. REGULATIONS FOR TRANSPORT OF HIGH HAZARD
MATERIALS.

(a) Definition of High Threat Corridor.--In this section,
the term ``high threat corridor'' means a geographic area
that has been designated by the Secretary as particularly
vulnerable to damage from the release of high hazard
materials, including--
(1) areas important to national security;
(2) areas that terrorists may be particularly likely to
attack; or
(3) any other area designated by the Secretary.
(b) Purposes of Regulations.--The regulations issued under
this section shall establish a national, risk-based policy
for high hazard materials being transported or stored. To the
extent the Secretary determines appropriate, the regulations
issued under this section shall be consistent with other
Federal, State, and local regulations and international
agreements relating to shipping or storing high hazard
materials.
(c) Issuance of Regulations.--Not later than 90 days after
the date of enactment of this Act, the Secretary shall issue
interim regulations and, after notice and opportunity for
public comment final resolutions, concerning the shipment and
storage of high hazard materials.
(d) Requirements.--The regulations issued under this
section shall--
(1) except as provided in subsection (e), provide that any
rail shipment containing high hazard materials be rerouted
around any high threat corridor;
(2) establish standards for the Secretary to grant
exceptions to the rerouting requirement under paragraph (1).
(e) Transportation and Storage of High Hazard Materials
Through High Threat Corridor.--
(1) In general.--The standards for the Secretary to grant
exceptions under subsection (d)(4) shall require a finding by
the Secretary that--
(A) the shipment originates or the point of destination is
in the high threat corridor;
(B) there is no practicable alternative route;
(C) there is an unanticipated, temporary emergency that
threatens the lives of persons or property in the high threat
corridor;
(D) there would be no harm to persons or property beyond
the owners or operator of the railroad in the event of a
successful terrorist attack on the shipment; or
(E) rerouting would increase the likelihood of a terrorist
attack on the shipment.
(2) Practical alternate routes.--Ownership of the tracks or
facilities shall not be considered by the Secretary in
determining whether there is a practical alternate route
under paragraph (1).
(3) Grant of exception.--If the Secretary grants an
exception under subsection (d)(4)--
(B) the Secretary shall notify Federal, State, and local
law enforcement and first responder agencies (including, if
applicable, transit, railroad, or port authority agencies)
within the high threat corridor.

amendment no. 384

(Purpose: To establish a Homeland Security and Neighborhood Safety
Trust Fund and refocus Federal priorities toward securing the Homeland,
and for other purposes)

At the end, add the following:

SEC. 1505. HOMELAND SECURITY TRUST FUND.

(a) Definitions.--In this section:
(1) Trust fund.--The term ``Trust Fund'' means the Homeland
Security and Neighborhood Safety Trust Fund established under
subsection (b).
(2) Commission.--The term ``Commission'' means the National
Commission on Terrorist Attacks upon the United States,
established under title VI of the Intelligence Authorization
Act for Fiscal Year 2003 (Public Law 107-306; 6 U.S.C. 101
note).
(b) Homeland Security and Neighborhood Safety Trust Fund.--
(1) Establishment of trust fund.--There is established in
the Treasury of the United States a trust fund to be known as
the ``Homeland Security and Neighborhood Safety Trust Fund'',
consisting of such amounts as may be appropriated or credited
to the Trust Fund.
(2) Rules regarding transfers to and management of trust
fund.--For purposes of this section, rules similar to the
rules of sections 9601 and 9602 of the Internal Revenue Code
of 1986 shall apply.
(3) Distribution of amounts in trust fund.--Amounts in the
Trust Fund shall be available, as provided by appropriation
Acts, for making expenditures for fiscal years 2008 through
2012 to meet those obligations of the United States incurred
which are authorized under subsection (d) for such fiscal
years.
(4) Sense of the senate.--It is the sense of the Senate
that the Committee on Finance of the Senate should report to
the Senate not later than 30 days after the date of the
enactment of this Act legislation which--
(A) increases revenues to the Treasury in the amount of
$53,300,000,000 during taxable years 2008 through 2012 by
reducing scheduled and existing income tax reductions enacted
since taxable year 2001 with respect to the taxable incomes
of taxpayers in excess of $1,000,000, and
(B) appropriates an amount equal to such revenues to the
Homeland Security and Neighborhood Safety Trust Fund.
(c) Preventing Terror Attacks on the Homeland.--
(1) Authorization of appropriations for supporting law
enforcement.--There are authorized to be appropriated from
the Trust Fund--
(A) $1,150,000,000 for each of the fiscal years 2008
through 2012 for the Office of Community Oriented Policing
Services for grants to State, local, and tribal law
enforcement to hire officers, purchase technology, conduct
training, and to develop local counterterrorism units;
(B) $900,000,000 for each of the fiscal years 2008 through
2012 for the Justice Assistance Grant; and
(C) $500,000,000 for each of the fiscal years 2008 through
2012 for the Law Enforcement Terrorism Prevention Grant
Program.
(2) Authorization of appropriations for responding to
terrorist attacks and natural disasters.--There are
authorized to be appropriated from the Trust Fund--
(A) $500,000,000 for each of fiscal years 2008 through 2012
for the Federal Emergency Management Agency for Fire Act
Grants; and
(B) $500,000,000 for each of fiscal years 2008 through 2012
for the Federal Emergency Management Agency for SAFER Grants.
(d) Authorization of Appropriations for Additional
Activities for Homeland Security.--There are authorized to be
appropriated from the Trust Fund such sums as necessary for--
(1) the implementation of all the recommendations of the
Commission, including the provisions of this section;
(2) fully funding the grant programs authorized under this
bill, including the State Homeland Security Grant Program,
the Urban Area Security Initiative, the Emergency Management
Performance Grant Program, the Emergency Communications and
Interoperability Grant Programs, rail and transit security
grants and any other grant program administered by the
Department;
(3) improving airline passenger screening and cargo
scanning;
(4) improving information sharing and communications
interoperability;
(5) supporting State and local government law enforcement
and first responders, including enhancing communications
interoperability and information sharing;
(6) enhancing the inspection and promoting 100 percent
scanning of cargo containers destined for ports in the United
States and to ensure screening of domestic air cargo;
(7) protecting critical infrastructure and other high
threat targets such as passenger rail, freight rail, and
transit systems, chemical and nuclear plants;
(8) enhancing the preparedness of the public health sector
to prevent and respond to acts of biological and nuclear
terrorism;
(9) the development of scanning technologies to detect
dangerous substances at United States ports of entry; and
(10) other high risk targets of interest, including
nonprofit organizations and in the private sector.

Mr. BIDEN. Mr. President, with regard to the first amendment, No.
383, which I am not going to take time to speak to today, is an
amendment that allows cities and States to reroute hazardous material
around their cities. In a nutshell, and I know no one knows this better
than the Chair, and I mean that sincerely, these are 90-ton chlorine
gas tank cars that go rolling through Newark on their way down through
the corridor into my State and across my State.
I once asked, not too long ago, the Naval Research Institute to give
me an analysis of what would happen if one of those were to blow up in
a metropolitan area. They said that 100,000 people would die--100,000
people would die. Yet this administration has opposed and we have not
committed to allowing cities to reroute this hazardous material around
their major metropolitan areas.
That is one amendment which I will come back to at another time.
At this moment I want to now speak to an amendment that is much
broader, Amendment No. 384.
We often say that September 11 changed everything. Well, it changed
everything except it didn't change our behavior. It changed everything
except

[[Page S2756]]

when we look at the budget of this administration in the last 6 years,
or 4 years since then, and if we look at our tax policy since then, we
look at what hasn't changed.
My dad used to have an expression, Mr. President. You probably heard
me say it before: Show me your budget, I will tell you what you value.
Tax cut after tax cut, overwhelmingly tilted to those who were at the
highest end of the tax bracket, is what this outfit has valued. The
truth is, we seem not to value protecting our cities, our homeland. The
truth is, as the Presiding Officer knows better than anyone, living on
the east coast in a State such as mine, only much larger, you know what
the costs of the 9/11 Commission recommendations are. You know how few
dollars we have spent implementing the recommendations. Literally from
your home county, you could see the buildings collapse, the World Trade
Center towers collapse. Thousands of people from your State were
significantly affected, many were killed.
We all ripped out our hair about how this was so terrible; we were
going to not let this happen again. We went out there and took a real
good look at what needed to be done when the 9/11 Commission came
along. Precious little was done. Yet during the same period of time we
made sure to help people earning more than a million dollars a year. I
am not picking on them. I am happy. I hope my grandkids make over a
million dollars a year. I hope everybody in America can. I have no
problem with anybody making hundreds of millions of dollars.
One of the things we forget on the Senate floor is that those folks
are just as patriotic as poor folks. Those folks are just as patriotic
as middle-class folks. They didn't ask for these massive tax cuts. They
are prepared to give some of them back in order to make the country
more safe, but we don't ask anything of them. So what happens? Just for
this year, for households making more than $1 million a year, to put
this in perspective, they are going to get a tax cut of $45 million. If
you look at it from 2008 to 2017, that aggregate tax cut, if you are at
an income where you make more than a million dollars a year, is going
to be $739 billion. Households with incomes of that magnitude obviously
take a big chunk of what are the fiscal priorities of this Nation.
We just had a long discussion here about the grant programs and how
we allocate funding to the various States. We debated that. But it is
like rearranging the deck chairs on the Titanic unless there is actual
money dedicated to provide for these needs. What we have not done is we
have not ensured a funding source. We have not provided the money
needed to implement the 9/11 Commission recommendations.
I say to my colleagues that we have money to fund these programs.
When I raised this last year and I talked about how much money was
needed, as my friend from New Jersey has, they said: Oh, we can't
afford it.
Give me have a break. We can't afford it? We can afford over $700
billion in tax cuts for people making over $1 million a year, and we
can't afford it? I will point out that it comes to about a $50 billion
price tag over 5 years to implement all the 9/11 Commission Report.
Can't afford it?
Let me point out that the Congressional Budget Office recently
released a study indicating H.R. 1, the House counterpart to this bill,
will cost $21 billion, but the Senate bill we have here only costs $17
billion. There are a few comprehensive estimates of what all the 9/
11 recommendations would cost, but I did what you did, I say to the
Presiding Officer, and what others did--I went to a bunch of very smart
people. I have been involved in this, as you have, from day one. We
went in and costed it out, what it would cost for the main
recommendations of the 9/11 Commission. The truth is, we are easily
able to fund it. It is a lot more than that; it is $50 billion over 5
years, roughly.

In addition we are not prepared in terms of homeland security
relating to local cops, sheriffs--local police. If there is going to be
somebody who is trying to put sarin gas into a complex in your State or
mine, it is not going to be some brave special forces soldier in
fatigues wearing night-vision goggles who is going to figure this thing
out; it is going to be a local cop riding behind the arena and seeing
someone getting out of a dumpster. If we are going to break up these
rings, it is going to be intelligence, but also it will be a local cop
walking a beat in Newark, NJ, or Wilmington, DE--or Newark, DE. ``By
the way, those three apartments that have been vacant for the last 7
years, there are lights on in the window.''
What have we done? We slashed spending for local law enforcement. We
slashed it $2.1 billion a year since this President has become
President.
Show me your budget, I will tell you what you value. It is a little
bit like taking care of veterans. Show me your budget, I will tell you
what you value.
In addition, the study by the U.S. Conference of Mayors found that 75
percent of the cities in America do not have interoperable
communications--75 percent. This is a disgrace. What do we need? We had
Hurricane Katrina, we had 9/11--what else do we need to demonstrate
that it is useful to have a local cop be able to speak to the National
Guard that is called in, to be able to have somebody in the command
center who can talk to everybody? Yet 75 percent of the cities do not
have interoperable communications capability--one of the strongest
recommendations made by the 9/11 Commission.
As I said, while there is not a comprehensive assessment, I have
spent a lot of time talking to experts and found that roughly for an
additional $10.3 billion a year, we can implement all of the 9/11
recommendations--all of them, including provisions in this title--and
do other commonsense things we know will make us more safe, such as
reinvesting in local police.
The bottom line is this: If we simply commit to taking back a small
fraction of the cuts for those making over $1 million a year, we can
pay for all the security upgrades we need. Here is how it would work.
My amendment simply puts the Senate on record calling for the Finance
Committee to report legislation to provide $53 billion in funding for
homeland security to be placed in the homeland security trust fund. It
is called a Homeland Security and Neighborhood Safety Trust Fund. From
this trust fund, we require that spending be dedicated toward
initiatives and grant programs authorized in this legislation,
including the Urban Area Security Initiative, the State Homeland
Security Grant Program, emergency management performance grants, and
rail and transit security grants. It would reinstate the COPS Program,
the FIRE Act grants, SAFER grants, and the Justice Assistance grants,
which provide essential support to State and local police, allowing
them to coordinate with the Federal Government. It would be funding
enhancements in interoperable communications, improve port security,
including working toward 100 percent scanning of cargo containers, and
upgrade and better prepare the Nation's public health sector to respond
to acts of bioterrorism and nuclear terrorism.
I ask all my colleagues in earshot of my voice, go to the largest
cities in your States and go to the emergency rooms in your hospitals.
Ask how many times they have to close down their hospitals. They send
out to all the ambulance drivers in the entire region that would be
serviced by them a statement saying: We can't take any more today. What
in God's name are we doing to prepare these hospitals and
infrastructure for a terrorist attack?
We also have to upgrade and develop new scanning technology to detect
dangerous substances. That is what this money would be allowed to be
used for.
When I introduced this legislation last year and got a vote, I
explained how I would allocate the $10.3 billion. I put $1 billion in
here for interoperability, I put in $1 billion to promote 100 percent
cargo container scanning, $500 million to bolster the public health
infrastructure, and $100 million to improve government-wide information
sharing. In order to leave what should be left--I took out these
specific allocations in order to give to my colleagues on the
Appropriations Committee and the Homeland Security Committee more
discretion on how to spend the additional money in the outyears. I
withheld the specifics. It is just an order to the relevant committees
to come up with how to spend that money.

[[Page S2757]]

Any way you slice it, this will leave the most fortunate among us
still very fortunate but will take, from over $736 billion, $52
billion. No one in this Chamber can tell me that there is anyone out
there who is going to say that is not fair. No one can tell me that
will have a scintilla of a negative impact on the economy. No one can
argue, I respectfully suggest--and I invite them to do it--that, in
fact, these things are not needed, what I am talking about here. These
were all talked about by various Senators.
The numbers are clear. Those who need the least help are getting the
most from the current tax cuts, and those fortunate Americans are twice
blessed. They are blessed by our efforts in this bill, and they are
blessed by the fact that they are doing very well through their own
hard work.
I have said before, of the many opportunities squandered since 9/11,
the most tragic opportunity squandered by this administration is the
failure to call our country together, to give all of us a part to play
in response to the new threats we face, not just middle-class folks who
are sending their husbands, wives, sons, and daughters to Iraq and
Afghanistan to try to protect us.
But despite the rhetoric that calls upon the proud recollections of
our national purpose in conflicts such as World War II and the Cold
War, on this floor there has been an incredible vacuum of leadership.
Those Presidents asked something of the American people. What has been
asked except forfeit commitments to health care, education, and energy
security? And where does that burden fall? It falls on working women
and men.
Let me just say as my time begins to expire that I know those who are
very well off. I know they are willing to do this. I had an opportunity
to speak to a group of 50 people advertised to me as among the most
wealthy people in the nation. It was a group of investors. I spoke
before them, and I said to them that this is what I wanted to do. I
said: Does anybody in here disagree with that? It was advertised to me
that a significant portion of these people were actually billionaires.
When I raised that question, there was silence in the room, and finally
one guy honestly put his hand up.

He said: I am not too sure I am. I am not too sure you won't go out
and waste the money.
I said: Will you support it if I come forward and do what I did in
the crime bill I wrote years ago, I drafted years ago--set up a trust
fund, and the money we take from this tax cut to get this $50 billion-
plus will be put into a trust fund, and it can only be used for
homeland security and neighborhood safety? Would you support it then?
I got an ovation, literally an ovation, mostly a standing ovation, I
say to you, Mr. President, from these extremely wealthy people. The
wealthy are ready to commit just as the middle class and poor are.
Mr. President, I end where I began. As my dad used to say, don't tell
me what you value, show me your budget. Don't anyone on this floor
presume to tell me, in the years I have spent here, that this country
cannot afford to spend, over the next 5 years, $10.2 billion a year to
make this Nation safer. Please don't anyone suggest that it is not
possible to pay for this when, in fact, you have a tax policy that is
so out of whack that even the people who are benefiting the most from
it are willing to contribute to our national security. If we ask the
sons and daughters, husbands and wives, mothers and fathers in each of
our towns and cities to send their children, their husbands and wives
to protect us abroad, we sure in the devil can ask the people making
over $1 million a year--a total tax break of over $736 billion over the
next several years--to contribute $10.2 billion a year out of that tax
cut. I am confident they are ready. They just need to be asked.
I hope, when the appropriate time comes, my colleagues will favorably
consider my amendment.
I yield the floor.

Amendments Nos. 316 and 342

The PRESIDING OFFICER. Under the previous order, there will be 15
minutes of debate equally divided on amendments Nos. 316 and 342
offered by Senators McCaskill and Collins.
Who yields time?
The Senator from Missouri.
Mrs. McCASKILL. Mr. President, if the Chair would inform me when I
have used 3 minutes because I want to yield my remaining time.
There have been so many things said about this amendment that are not
true. I want to make sure my colleagues understand how many things are
being said that are not true.
There is one truth everyone needs to embrace. That is, we are only
trying to give to the screening officers at airports the same worker
protections that we give so many of our men and women in uniform who
are helping with our national security and safety. As I drove up this
morning to the Capitol, I was greeted by Capitol police officers. Does
anyone doubt those Capitol police officers would do whatever is
necessary to try to protect us? Of course not. But yet those same
arguments are being used to try to discourage people from supporting
this amendment, that somehow if these workers are part of some
collective bargaining agreement, they will no longer be there at a
moment's notice to do whatever they are asked to secure our safety and
security.
As I said previously, how many Americans bought the NYPD shirts and
hats and the New York fire department shirts and hats after 9/11? Those
firefighters in New York who went into that burning building losing
their lives in the process, running into danger rather than away from
it, all were working under a collective bargaining agreement. Does
anyone doubt that they hesitated responding to an emergency because
they have basic worker protections? The notion is very un-American and,
frankly, it is mildly insulting to the men and women serving as
officers in our airports today.
The Border Patrol, same protections; Customs officials, same
protections; most of the employees in Homeland Security, the civilian
employees of the Department of Defense, FEMA employees, all of whom
have to respond to emergencies, all have these same basic worker
protections.
My amendment says they cannot collectively bargain for higher pay. My
amendment spells out clearly that the Secretary of Homeland Security
and the Director of TSA have complete authority to mandate what these
workers do in times of an emergency. At the same time it is going to
allow us to professionalize this workforce. This part of the Federal
Government suffers from incredible turnover, as high as 50 percent.
That is a turnover rate that would be unacceptable in the private
sector. It is inefficient. It is expensive. We are not getting the kind
of experienced screeners who know what to look for and when to look for
it based on their experience, not because of some job training program.
This amendment will provide those basic protections. It will
professionalize the workforce. In the long run, it will make us all
safer.
I urge colleagues to support the McCaskill amendment. I yield the
remainder of my time to Senator Kennedy.
Mr. KENNEDY. Mr. President, how much time remains for both sides?
The PRESIDING OFFICER. Senator McCaskill has 4 minutes remaining, and
Senator Collins has 7\1/2\ minutes remaining.
Mr. KENNEDY. Mr. President, I ask the Chair to remind me when there
is 1 minute remaining.
First, I commend the good Senator for offering this amendment. It is
important to understand what it does not do. It does not provide a
right to strike, a right to bargain over pay. It does not prevent TSA
from responding to emergencies, and it does not prevent TSA from
responding to new threats. This amendment does none of that, even
though it has been distorted and misrepresented.
As the good Senator has pointed out, what are the existing attrition
rates today? Look at the different security agencies, Immigration and
Customs correctional officers, Secret Service and Border Patrol, and
Transportation Security. This is the national security threat, the idea
that the TSA has this kind of turnover. That is the nature of the
threat, having to get new people after new people after new people,
because workers don't have a right to speak and don't have the right to
bring their grievances.
What is the result? Even in this agency we find out in terms of lost
time and the injury rate, this agency leads the pack. What does it
show? It shows it is

[[Page S2758]]

poorly administered and the workers are not being treated fairly or are
not treated with respect.
The McCaskill amendment is simple in what it does. The Border Patrol
agents have these kinds of protections. FEMA has these protections.
Immigration and Customs have these protections. Unless we have the
McCaskill amendment, we will not have the range of these protections
for Transportation Security Administration workers. The others have it
but not TSA.

What does the other side have against working men and women? How
insulting, that these men and women will not put the security of the
United States first. At the time of 9/11, under the Defense Department,
they moved hundreds and thousands of civilians all around the country.
They were all under collective bargaining agreements. Not one grievance
was filed, not a single one. These men and women understood their duty.
They understood the threat. They were patriotic Americans. What is it
about the other side that questions that these are men and women of
dignity who will do their job when this Nation is threatened? What is
it about? It certainly wasn't there at 9/11 when their brothers and
sisters who work for the Department of Defense agency were moved all
around. They were prepared to do everything they were asked to do.
The PRESIDING OFFICER. The Senator has 1 minute remaining.
Mr. KENNEDY. Finally, as the good Senator has pointed out, as the
smoke was coming out of the buildings in New York, when we saw the
collapse of the first buildings and men and women under collective
bargaining agreements were asked to go into those fiery infernos, no
one was talking about collective bargaining agreements. They were
talking about doing their duty to the United States. Let us permit
these workers to do their duty. Let's give them these protections.
Let's give them the kind of respect and dignity the McCaskill amendment
gives them.
I reserve whatever time remains.
The PRESIDING OFFICER. Who yields time?
The Senator from Maine.
Ms. COLLINS. Mr. President, it is very clear to me that we can take
significant steps today to give TSA employees more protections, and
that is what the amendment I and several others have proposed would do.
It would bring TSA employees under the Whistleblowers Protection Act,
and it would allow them to appeal any adverse employment action such as
a firing or demotion to an independent agency, the Merit Systems
Protection Board. These are rights I believe TSA employees should have.
They are rights that are similar to those enjoyed by other Federal
employees. But what we are trying to do is strike a balance between
giving the employees all of the standard collective bargaining rights
and the security needs of the TSA.
The TSA security needs are not hypothetical. TSA has shared with us,
in a highly classified briefing, details of when they have had to
change the employee work conditions or assignments or duties. This
isn't just a hypothetical need. It is one we saw last summer be put in
place in the wake of a bombing plot that, fortunately, was thwarted.
These are needs that came into play in the response to Hurricane
Katrina. What I have suggested in my amendment is that we take major
steps to afford more employee rights and protections to the TSA
personnel, but we do so in a way that maintains the flexibility TSA has
told us, both in classified session and in public hearings, they need
to help safeguard our country.
The amendment I have proposed also includes other protections for the
employees. It makes very clear that they can join a union. There are
several TSOs who have joined a union in order for representation, if
there is an adverse employment action.
Another provision of the bill recognizes this is not the final word
on the issue but asks for TSA and the GAO to take a look at the
personnel system for TSA and report back to us in a year's time about
whether there should be other changes made to improve the system.
The amendment also provides for a pay-for-performance system which
has been successfully implemented at TSA. We want to codify that.
I don't think this is an all-or-nothing debate. We can take some
significant steps today. Secretary Chertoff has sent a letter on behalf
of the administration that comments on the alternative proposal put
forth by my friend from Missouri, Senator McCaskill. I do have a lot of
admiration for my friend and colleague, but I think my other colleagues
should be aware that the Department says that ``this amendment
regrettably does not provide a workable solution. Indeed, in some
respects it would make it even more difficult for the . . . (TSA) to
manage its workforce than would section 803 [in the underlying bill.]''
I want to make sure my colleagues are aware that the Department of
Homeland Security believes the underlying bill, the language authored
by the Senator from Connecticut, is preferable to the language offered
by the Senator from Missouri.
I ask unanimous consent that the entire letter from Secretary
Chertoff be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Department of Homeland Security,

Washington, DC, March 6, 2007.
Hon. Susan M. Collins,
Committee on Homeland Security and Governmental Affairs, U.S.
Senate, Washington, DC.
Dear Senator Collins: On behalf of the Administration, I
would like to comment on the amendment proposed by Senator
McCaskill (SA 316 to SA 315). We appreciate Senator
McCaskill's effort to resolve the problems created by section
803 of S. 4, but this amendment regrettably does not provide
a workable solution. Indeed, in some respects it would make
it even more difficult for the Transportation Security
Administration (TSA) to manage its workforce than would
section 803--particularly managing its Transportation
Security Officers (TSO), who serve on the front lines to
secure our nation's civil aviation system.
Most notably, SA 316 could actually expand the
opportunities to bargain collectively beyond what is
contemplated by section 803 of the underlying bill. The
amendment casts doubt on whether bargaining over employee
compensation and benefits is prohibited, as it is under
current law and section 803. The amendment also does not
differentiate between mandatory and permissive subjects of
bargaining, or set terms for bargaining over procedures and
appropriate arrangements related to changes in conditions of
employment. Given the scope of section 111(d) of the Aviation
and Transportation Security Act (P.L. 107-7), these issues
will likely become the subject of litigation. Therefore, the
amendment could require TSA management to bargain to impasse
over matters that no other federal agency engaged in security
is required to address. Furthermore, the very definition of
``pay'' could become the subject of time-consuming
litigation.
The amendment also promises to impede the quick and fair
resolution of grievances and other workplace disputes for the
thousands of TSOs. Although the Administrator of TSA
purportedly would not be required to bargain over responses
to emergencies or imminent threats, it is inevitable that
protracted litigation will ensue over the meaning of these
terms. Moreover, the very definition of ``emergencies, newly
imminent threats, or intelligence indicating a newly imminent
emergency risk'' could be subject to collective bargaining
and subsequent litigation. The resolution of these issues
might rest with an arbitrator with no direct knowledge of
intelligence, risk and threat assessment, and transportation
security. This would place the performance of TSA's security
mission in the hands of someone who neither has the expertise
needed to make these decisions nor is accountable for
them.
The amendment also fails to alleviate the adverse impact
that collective bargaining would have on TSA's day-to-day
security operations. TSA is responsible for providing and
managing complex, on-site security systems at more than 450
commercial airports, which collectively screen approximately
two million passengers a day for thousands of commercial
flights. Collective bargaining would limit TSA's management
flexibility, which is an indispensable element of this
system. TSA must be able to react nimbly, not only to the
ever-evolving security threats that confront our Nation, but
also to changing air carrier schedules, weather disruptions,
and special events that draw large numbers of passengers to
particular airports. TSA also needs flexibility to screen not
only passengers and their checked baggage, but also air
cargo, airport employees, and contractors working at
airports. Simply put, collective bargaining remains
incompatible with the successful performance of TSA's vital
security mission.
In addition, the amendment would prevent TSA from
effectively disciplining employees who break the law. The
amendment would trigger Title 5's procedural requirements for
taking adverse actions against employees, including the 30-
day notice provision set forth in Chapter 75. This would
eliminate all accelerated adverse action proceedings, even
those based on clear and convincing evidence of theft, drug
possession or usage, and workplace violence. TSA currently
responds to

[[Page S2759]]

such conduct by ensuring that the employees who commit these
violations are removed from the payroll in as few as three
days. The amendment also would call into question TSA's
ability to remove poor performers. Curtailing any of these
procedures would severely compromise TSA's ability to
guarantee a safe workplace and assure the traveling public of
the uniformly high caliber of its TSO workforce. Ironically,
it would also create a situation in which non-TSO employees
could be removed from the payroll much more rapidly than TSO
employees who directly affect security and customer service
and interact daily with the American public on a large scale.
Nor do the amendment's proposed restrictions on TSO
activities provide much comfort. The amendment states
explicitly that TSOs could not bargain over pay, but that is
no different from current law or section 803 of S. 4.
Moreover, the amendment specifically prohibits the right of
screeners to strike, but federal law already proscribes such
actions by each and every member of the federal workforce.
These provisions offer no more protection to the traveling
public than is found in existing law.
Ultimately, the amendment is unnecessary in light of the
significant innovative programs that TSA has implemented to
provide for a high performing workforce. These steps include:
(1) a comprehensive Model Workplace program; (2) an Office of
Occupational Safety, Health, and Environment; (3) a Nurse
Care Management program to eliminate or reduce workplace
injuries; (4) National Advisory Councils that provide the TSO
workforce with direct access to the Administrator and senior
management on all issues concerning security and workforce
conditions; (5) procedures for Alternative Dispute
Resolution; (6) whistleblower protection through a formal
agreement with the Office of Special Counsel; (7) a Disputes
Resolution Board to provide additional review of workplace
grievances; and (8) an extensive on-line training program to
provide not only refresher training for TSOs and other TSA
employees, but also the bases for career advancement. The
recognition of these programs in a modified amendment would
provide an appropriate framework to resolve the ongoing
issues with section 803 and SA 316. I look forward to working
with the Members on this most critical matter.
In the final analysis, the changes that SA 316 would make
to section 803 of S. 4 do not resolve the concerns expressed
in the Statement of Administration Policy dated February 28,
2007. As such, if section 803 is enacted in its current
format, or as amended by SA 316, the President's senior
advisors would continue to recommend that he veto the bill.
An identical letter was sent to Chairman Lieberman.
Sincerely,
Michael Chertoff,
Secretary.

Ms. COLLINS. I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, there is no question that unions have
these rights for TSO agents. This is a commonsense approach. What is
not common sense is to put in jeopardy every traveling American for the
sake of paying back a raw political debt. That is what this debate is
about. Do we jeopardize safety, do we jeopardize the flexibility, do we
jeopardize the fine work that has come from an incentivized system that
has very low turnover now compared to the rest of the industry, that
has a bonus system for great performance, a performance-based system,
to give them what they need and not jeopardize the traveling American
public? The McCaskill amendment actually hurts our flexibility and our
security.
As a matter of fact, we had a hearing after this bill was on the
floor, wherein Mr. Hawley and Mr. Gage came before us and talked about
union representation of the TSO officers. Very revealing statements
were said, especially by Mr. Gage. When we raised concerns about
flexibility during emergencies and complicated issues that required
absolute flexibility to move people around at all times, it was the
testimony of Mr. Hawley who said they have to plan, that they are in an
emergency all the time, which means they have to have the flexibility
all the time. Mr. Gage's response to that was: These are sometimes
bogus emergency situations.
Well, the reason we have had such an effective airline screening
program is because we call everything an emergency and plan for it as
an emergency, so we never have an emergency.
This amendment will gut the flexibility of the TSA in doing the very
thing we have asked them to do; that is, protect us and have an
institution that is viable, responsive, and nimble to protect us,
without having to have a shop steward ask them what we can do and when
we can do it.
Now, the McCaskill amendment says we will let you do that in an
emergency, but the fact is, we are in an emergency mode all the time.
So whatever contract we might have signed is not going to have any
bearing anyway. So the contrast for the American public on this vote--
and we know this is going to be a party-line vote. Even those Members
who want to vote the other way have been told not to vote the other
way. We know this is a party-line vote about paying back, so Mr. Gage
and his associates can have 40,000 people a month pay $30 a month to
put $12 million to $17 million in the coffers of the employees union.
That is what this is about.
This is not about security for this country and flexibility with the
TSA. I urge a vote against the McCaskill amendment and a vote for the
Collins amendment.
I yield the floor.
The PRESIDING OFFICER. All time on this amendment has expired.
The Senator from Missouri.
Mrs. McCASKILL. Mr. President, I ask for the yeas and nays on my
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to amendment No. 316, as modified.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from South Dakota (Mr.
Johnson) is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 51, nays 48, as follows:

[Rollcall Vote No. 64 Leg.]

YEAS--51

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden

NAYS--48

Alexander
Allard
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Roberts
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thomas
Thune
Vitter
Voinovich
Warner

NOT VOTING--1

Johnson

The amendment (No. 316), as modified, was agreed to.
Mr. LIEBERMAN. Mr. President, I move to reconsider the vote.
Mr. NELSON of Nebraska. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 342

The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate equally divided on amendment No. 342.
Who yields time? The Senator from Maine is recognized.
Ms. COLLINS. Mr. President, this is an attempt to find middle ground
on a very difficult issue. The amendment that I and my colleagues offer
the Senate would provide TSA employees with the right to appeal to the
Merit Systems Protection Board any adverse action taken against them.
Those rights would be identical to the rights that other Federal
employees have. It would give them the protections of the
Whistleblowers Protection Act. It recognizes that TSA employees have
the right to join a union, and it calls for us to revisit this issue in
a year by having a report from TSA and the GAO.
I think this helps give more rights and employment protections to TSA
employees without impeding the necessary flexibility that TSA needs to
have for our security.
I urge support of the amendment.
The ACTING PRESIDENT pro tempore. The Senate will be in order. The
Senator from Connecticut is recognized.
Mr. LIEBERMAN. Mr. President, this is one of those rare occasions
when the

[[Page S2760]]

Senator from Maine and I disagree. I appreciate the fact that Senator
Collins is trying to find a middle ground in this contentious debate.
She gives the Transportation Screening Officers at TSA some employee
rights but not the right to collectively bargain, which most employees
in the Department of Homeland Security, and throughout our Government
has. Presumably, the contention is that the right to collective
bargaining would interfere with the security responsibility of the
agencies, but TSA in the underlying bill and under Senator McCaskill's
amendment would have absolute authority to take whatever actions are
needed to carry out its mission in an emergency without bargaining with
any units, without even considering any collective bargaining
agreement.
The fact is that Federal security forces generally have the right to
collectively bargain: Border Patrol agents, immigration officers,
Customs, Federal Protective Services, and the U.S. Capitol Police.
Those collective bargaining rights do not interfere with their
protection of our security, nor would those rights for TSOs at TSA.
Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
is a sufficient second.
The question is on agreeing to amendment No. 342. The clerk will call
the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from South Dakota (Mr.
Johnson) is necessarily absent.
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 47, nays 52, as follows:

[Rollcall Vote No. 65 Leg.]

YEAS--47

Alexander
Allard
Bennett
Bond
Brownback
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Roberts
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thomas
Thune
Vitter
Voinovich
Warner

NAYS--52

Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Bunning
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden

NOT VOTING--1

Johnson

The amendment (No. 342) was rejected.
Mr. LIEBERMAN. I move to reconsider the vote.
Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Change of Vote

Mr. CORNYN. Mr. President, on rollcall vote 65, I voted ``nay,'' but
it was my intention to vote ``yea.'' Therefore, I ask unanimous consent
that I be permitted to change my vote, since it will not affect the
outcome.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORNYN. I thank the Chair.
(The foregoing tally has been changed to reflect the above order.)
The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to offer a unanimous consent
request for the order of the speakers to follow. It would be, Senator
Bunning of Kentucky be recognized for 5 minutes to call up an amendment
and then set it aside; that Senator Schumer of New York then be
recognized for up to 5 minutes to call up three amendments and set them
aside; that Senator Kerry of Massachusetts be recognized for up to 10
minutes to offer a tribute to former Senator Tom Eagleton; that Senator
Graham of South Carolina be recognized for up to 15 minutes to speak on
an amendment; that Senator Wyden and Senator Bond be recognized for up
to 10 minutes to call up an amendment; that Senator Kyl be recognized
for up to 5 minutes; and, finally, that Senator Landrieu be recognized
for up to 10 minutes to do a tribute.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. LIEBERMAN. Excuse me. Is Senator Kyl for 5 minutes or 15 minutes?
I said 5 minutes only because it is on my piece of paper as 5, but it
is 15 minutes we want to give to Senator Kyl.
The ACTING PRESIDENT pro tempore. The Senator from Maine.
Ms. COLLINS. Mr. President, I do object at this time because we have
not seen this agreement. It has not been discussed with the manager or
the staff on this side. I do object, and I suggest the absence of a
quorum.
The ACTING PRESIDENT pro tempore. Objection is heard. Without
objection, the clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BUNNING. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
Ms. COLLINS. Mr. President, I object.
The ACTING PRESIDENT pro tempore. Objection is heard. The clerk will
continue with the call of the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. COLLINS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Ms. COLLINS. Mr. President, I am just going to make a brief statement
before the Senator from Connecticut propounds the unanimous consent
request. Now that I have seen the unanimous consent request, I am not
going to object to it, but I do want to comment briefly on the two
votes that we have just taken on the issue of the TSA employees.
I think those votes were extremely unfortunate because everyone in
this Chamber knows that the President is going to veto this important
bill if the provisions remain in the bill as the Senate just voted.
If that happens, it means the TSA employees will not receive the
additional protections and rights that I advocated for in the amendment
that I presented to the Senate. They will be back to a situation where
they cannot appeal adverse employment actions to an independent agency,
the Merit Systems Protection Board. They will be back in the situation
where they cannot be protected by the Whistleblower Protection Act.
It is unfortunate that the votes we have just taken will actually set
back the cause of providing employee protections that the TSA screeners
should have.
I want to make sure that my colleagues are aware of what the
practical implications and what the results will be of the votes just
taken because there are clearly sufficient votes in this Chamber to
sustain the President's veto, and I think it is very unfortunate that
we are not going to be able to proceed to give these employees rights
they deserve, rights they should have, and rights that would not impair
our security.
I thank the Chair.
The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I express my regrets to Senator Collins
that she had not seen this list. I thought she had. We don't like to do
it that way. It is a bipartisan list, as it turns out. I am going to
propound a unanimous consent request again and do it in summary fashion
without mentioning the topics again.
I ask unanimous consent that the order of speakers be as follows:
Senator Bunning for 5 minutes; Senator Schumer for 5 minutes; Senator
Kerry for 10 minutes; Senator Graham for 15 minutes; Senator Wyden and
Senator Bond to share 10 minutes; Senator Kyl for 15 minutes; and
Senator Landrieu for 10 minutes. In each case, it is up to that amount.
I know the Senate would be grateful if the Senators choose not to use
the full amount of time.
The ACTING PRESIDENT pro tempore. Is there objection?

[[Page S2761]]

Mr. ALLARD. Mr. President, I would like to have permission to
alternate between Republicans and Democrats. If I could be lined up to
speak after--who was the first Democrat after Senator Bunning? Senator
Schumer. If I may be allowed to speak next, I would appreciate it. I
was lined up to speak at 2 o'clock originally, but we had the vote at 2
o'clock and, obviously, that has been slid out now. If the Senator from
Connecticut can move me in there, I would appreciate it. We have always
alternated between Republicans and Democrats.
Mr. LIEBERMAN. We have Republicans and Democrats running together. It
is a totally nonpartisan list.
Mr. ALLARD. All right. I was set up to speak at 2 o'clock, and then
we had the vote at 2 o'clock.
Mr. LIEBERMAN. There was no order for the Senator from Colorado to
speak. How much time would the Senator like?
Mr. ALLARD. Mr. President, 10 minutes. Senator Cornyn and I want to
engage in a colloquy, and then I have a few comments. We just need 10
minutes.
Mr. LIEBERMANN. Mr. President, I amend the request for the Senator
from Colorado, Mr. Allard, to have 10 minutes after Senator Schumer's
10 minutes.
Mr. ALLARD. I thank the Senator.
The ACTING PRESIDENT pro tempore. Is there objection to the request,
as modified? Without objection, it is so ordered.
Under the unanimous consent agreement, the Senator from Kentucky is
recognized.

Amendment No. 334 to Amendment No. 275

Mr. BUNNING. Mr. President, I call up amendment No. 334 and ask for
its immediate consideration.
The ACTING PRESIDENT pro tempore. Is there objection to setting aside
the pending amendment? Without objection, it is so ordered. The clerk
will report the amendment.
The assistant legislative clerk read as follows:

The Senator from Kentucky [Mr. Bunning] proposes an
amendment numbered 334 to amendment No. 275.

Mr. BUNNING. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:

(Purpose: To amend title 49, United States Code, to modify the
authorities relating to Federal flight deck officers)

At the appropriate place, insert the following:

SEC. ___. FEDERAL FLIGHT DECK OFFICERS.

(a) In General.--Section 44921(a) of title 49, United
States Code, is amended to read as follows:
``(a) Establishment.--The Secretary of Homeland Security
shall establish the Federal flight deck officer program to
deputize eligible pilots as Federal law enforcement officers
to defend against acts of criminal violence or air piracy.
Such an officer shall be known as a `Federal flight deck
officer'.''.
(b) Authority To Carry Firearms.--Section 44921(f) of title
49, United States Code, is amended to read as follows:
``(f) Authority To Carry Firearms.--
``(1) In general.--The Secretary shall authorize a Federal
flight deck officer to carry a firearm on the officer's
person. Notwithstanding subsection (c)(1), the officer may
purchase a firearm and carry that firearm in accordance with
this section if the firearm is of a type that may be used
under the program.
``(2) Preemption.--Notwithstanding any other provision of
Federal, State, or local law, a Federal flight deck officer
may carry a firearm in any State and from one State to
another State.
``(3) Carrying firearms outside united states.--
``(A) In general.--When operating to, from, or within the
jurisdiction of a foreign government where an agreement
allowing a Federal flight deck officer to carry or possess a
firearm is not in effect, a Federal flight deck officer shall
be designated as a Federal air marshal for the purposes of
complying with international weapons carriage regulations and
existing agreements with foreign governments. Nothing in this
paragraph shall be construed to allow Federal flight deck
officers to receive any other benefit of being so designated.
``(B) Requirement to negotiate agreements.--The Secretary
of State shall negotiate agreements with foreign governments
as necessary to allow Federal flight deck officers to carry
and possess firearms within the jurisdictions of such foreign
governments for protection of international flights against
hijackings or other terrorist acts. Any such agreements shall
provide Federal flight deck officers the same rights and
privileges accorded Federal air marshals by such foreign
governments.
``(4) Description of authority and procedures.--The
authority of a Federal flight deck officer to carry a firearm
shall be identical to such authority granted to any other
Federal law enforcement officer under Federal law. The
operating procedures applicable to a Federal flight deck
officer relating to carrying such firearm shall be no more
restrictive than the restrictions for carrying a firearm that
are generally imposed on any other Federal law enforcement
officer who has statutory authority to carry a firearm.
``(5) Locked devices.--
``(A) No requirement to use.--A Federal flight deck officer
may not be required to carry or transport a firearm in a
locked bag, box, or container.
``(B) Requirement to provide.--Upon request of a Federal
flight deck officer, the Secretary shall provide a secure
locking device or other appropriate container for storage of
a firearm by the Federal flight deck officer.''.
(c) Due Process.--Section 44921 of title 49, United States
Code, is amended by adding at the end the follow new
subsection:
``(l) Due Process.--Not later than 90 days after the date
of enactment of the Improving America's Security Act of 2007,
the Secretary shall establish procedures for the appeal of
adverse decisions or actions. Such procedures shall provide
timely notice of the action or decision, including specific
reasons for the action or decision.''.
(d) Identification and Screening.--Section 44921 of title
49, United States Code, as amended by subsection (c), is
further amended by adding at the end the following new
subsections:
``(m) Credentials.--The Secretary shall issue to each
Federal flight deck officer standard Federal law enforcement
credentials, including a distinctive metal badge, that are
similar to the credentials issued to other Federal law
enforcement officers.
``(n) Security Inspections.--A Federal flight deck officer
may not be subject to greater routine security inspection or
screening protocols at or in the vicinity of an airport than
the protocols that apply to other Federal law enforcement
officers.''.
(e) Reports to Congress.--Section 44921 of title 49, United
States Code, as amended by subsections (c) and (d), is
further amended by adding at the end the following new
subsection:
``(o) Reports to Congress.--
``(1) Reports on program.--Not less often than once every 6
months, the Secretary, in consultation with the Secretary of
State, shall report to Congress on the progress that the
Secretary of State has made in implementing international
agreements to permit Federal flight deck officers to carry
firearms on board an aircraft operating within the
jurisdiction of a foreign country.
``(2) Report on training.--Not later than 90 days after the
date of enactment of the Improving America's Security Act of
2007, the Secretary shall report to Congress on the issues
raised with respect to training in Department of Homeland
Security Office of Inspector General report OIG-07-14 that
includes proposals to address the issues raised in such
report.''.
(f) Conforming and Other Amendments.--Section 44921 of
title 49, United States Code, as amended by sections (c),
(d), and (e), is further amended--
(1) by striking ``Under Secretary'' each place it appears
and inserting ``Secretary''; and
(2) by striking subparagraph (G) of subsection (b)(3).

Mr. BUNNING. Mr. President, this amendment makes changes in the
implementation of the Federal Flight Deck Officer Program, commonly
referred to as the Armed Pilot Program, to require the Department of
Homeland Security to implement the package and program as Congress
originally intended.
Four years after Congress created this program, the Department of
Homeland Security continues to drag its heels on providing flight deck
officers, commonly known as FFDOs, or armed pilots, with the necessary
tools to prevent another September 11-type attack.
My amendment will ensure that all armed pilots can truly act as a
real defense against hijacking on commercial flights.
This amendment would end the ridiculous practice of forcing armed
pilots to carry their guns in lockboxes and would allow them to carry
the guns on their body where the gun is easily reachable and more
discrete to carry.
No other Federal law enforcement officer is forced to carry a firearm
in a lockbox, and Federal law enforcement officials agree that carriage
on the body of an officer is the best way for law enforcement officials
to carry a firearm to ensure that the threat can be stopped in the
safest way possible.
In addition to putting more armed pilots in the skies, this amendment
would also put armed pilots on international flights.
The current law for the Armed Pilot Program allows pilots on these
flights, but so far the State Department has been slow on entering into
negotiations

[[Page S2762]]

with other countries to allow this to occur.
My amendment requires the State Department to negotiate agreements
with other governments to get armed pilots on international flights.
Over the last few years, many international flights have been canceled
because of terrorist threats.
This amendment will also allow armed pilots to protect the flights of
U.S. airlines and free up air marshals so they can be put on targeted
foreign flights that we know terrorists are targeting.
This amendment also provides for the issuance of a metal badge for
armed pilots so they can easily be identified in a crisis situation.
It is important to make sure that these pilots have a means to
identify themselves so that air marshals and other passengers know who
they are and that they are lawfully carrying a firearm.
It also requires TSA to give armed pilots the same screening
protocols other Federal law enforcement officers have so that the
terrorists cannot easily identify them at security checkpoints.
Under current TSA requirements, all armed pilots must be screened
publicly in plain view of everyone at the security checkpoint, as
opposed to Federal law enforcement officers who are screened behind
closed doors.
Finally, this amendment would give pilots basic due process. It
requires the Department of Homeland Security to establish procedures to
give notice and appeal rights when making any decision against the
pilots. Currently, the pilots have no recourse.
I believe these changes that update the law governing the Federal
Flight Deck Officer Program are vital and are needed to ensure that
this voluntary program runs as it was intended to run and would
encourage more pilots to enter into it.
I have spoken many times in the past on the merits of this program
and the need for it. It has saddened me that I must once again be
forced to ask TSA to start implementing this program as it was
originally intended. Once again, we must be forcing TSA's hand to get
enough pilots armed to actually create a strong defense against
terrorists in the air. We currently have the opportunity to speed this
program up and force TSA to do what Congress intended by adopting my
amendment.

I urge my colleagues to join me in passing this amendment.
I thank the Chair.
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senator from New York is recognized for up to 5 minutes.

Amendments Nos. 367, as Modified, and 366 En Bloc, to Amendment No. 275

Mr. SCHUMER. Mr. President, I wish to congratulate the managers of
the bill. We have made good progress on this bill, something that has
taken far too long to accomplish since the Commission's report.
Next, I would like to offer two amendments to this bill, which I
filed in an attempt to strengthen certain provisions. The committee
versions of the bill make significant strides in several areas of
security, including improving truck security, and I offer a modified
version of No. 367 and the original, No. 366. Two amendments.
The ACTING PRESIDENT pro tempore. Without objection, the clerk will
report the amendments.
The legislative clerk read as follows:

The Senator from New York [Mr. Schumer] proposes amendment
number 367, as modified, and amendment number 366, en bloc,
to amendment No. 275.

Mr. SCHUMER. Mr. President, I ask unanimous consent that the reading
of the amendments be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendments (Nos. 367, as modified, and 366) are as follows:

AMENDMENT NO. 367, AS MODIFIED

On page 303, strike line 12 and all that follows through
page 305, line 18, and insert the following:
of Transportation, shall develop a program to facilitate the
tracking of motor carrier shipments of high hazard materials,
as defined in this title, and to equip vehicles used in such
shipments with technology that provides--
(A) frequent or continuous communications;
(B) vehicle position location and tracking capabilities;
and
(C) a feature that allows a driver of such vehicles to
broadcast an emergency message.
(2) Considerations.--In developing the program required by
paragraph (1), the Secretary shall--
(A) consult with the Secretary of Transportation to
coordinate the program with any ongoing or planned efforts
for motor carrier or high hazardous materials tracking at the
Department of Transportation;
(B) take into consideration the recommendations and
findings of the report on the Hazardous Material Safety and
Security Operation Field Test released by the Federal Motor
Carrier Safety Administration on November 11, 2004; and
(C) evaluate--
(i) any new information related to the cost and benefits of
deploying and utilizing tracking technology for motor
carriers transporting high hazard materials not included in
the Hazardous Material Safety and Security Operation Field
Test Report released by the Federal Motor Carrier Safety
Administration on November 11, 2004;
(ii) the ability of tracking technology to resist tampering
and disabling;
(iii) the capability of tracking technology to collect,
display, and store information regarding the movement of
shipments of high hazard materials by commercial motor
vehicles;
(iv) the appropriate range of contact intervals between the
tracking technology and a commercial motor vehicle
transporting high hazard materials;
(v) technology that allows the installation by a motor
carrier of concealed electronic devices on commercial motor
vehicles that can be activated by law enforcement authorities
to disable the vehicle and alert emergency response resources
to locate and recover high hazard materials in the event of
loss or theft of such materials; and
(vi) whether installation of the technology described in
clause (v) should be incorporated into the program required
by paragraph (1).
(b) Regulations.--Not later than 1 year after the date of
the enactment of this Act, the Secretary, through the
Transportation Security Administration, shall promulgate
regulations to carry out the provisions of subsection (a).
(c) Funding.--There are authorized to be appropriated to
the Secretary to carry out this section, $7,000,000 for each
of fiscal years 2008, 2009, and 2010, of which--
(1) $3,000,000 per year may be used for equipment; and
(2) $1,000,000 per year may be used for operations.

Amendment No. 366

(Purpose: To restrict the authority of the Nuclear Regulatory
Commission to issue a license authoring the export to a recipient
country of highly enriched uranium for medical isotope production)

At the appropriate place, insert the following:

SEC. __. MEDICAL ISOTOPE PRODUCTION.

Section 134 b. of the Atomic Energy Act of 1954 (42 U.S.C.
2160d(b)) is amended--
(1) in paragraph (1), by striking subparagraph (D);
(2) by striking paragraph (2);
(3) in paragraph (3), by striking ``paragraph (2)'' and
inserting ``this section'';
(4) in paragraph (4)--
(A) in subparagraph (A)(iv), by striking ``cost
differential in medical isotope production in the reactors
and target processing facilities if the products'' and
inserting ``cost differential of radiopharmaceuticals to
patients if the radiopharmaceuticals''; and
(B) by striking subparagraph (B) and inserting the
following:
``(B) Feasibility.--For the purpose of this subsection, the
use of low enriched uranium to produce medical isotopes shall
be determined to be feasible if it could be accomplished
without a large percentage increase in the cost of
radiopharmaceuticals to patients.'';
(5) in paragraph (5), by striking ``(4)(B)(iii)'' and
inserting ``(4)(B)'';
(6) in paragraph (6), by striking ``(4)(B)(iii)'' and
inserting ``(4)(B)''; and
(7) in paragraph (7), by striking ``subsection'' and
inserting ``section for highly enriched uranium for medical
isotope production''.

Mr. SCHUMER. Mr. President, I offer the first amendment, No. 367, to
make the provision in the underlying committee bill even stronger with
a new program to address trucks carrying high-hazard materials. Every
day there are trucks that carry high-HAZMAT materials. If a truck is
hijacked by a terrorist, it could spell disaster. We need to take
action to prevent this from happening, and that is why my amendment
will create a system not only to track these high-hazard trucks but to
take action to stop a truck in its tracks by shutting down its engine
if it strays off course.
This has worked in other countries. My amendment will require the
Department of Transportation and TSA to work together to create a
system to track these trucks, as well as respond accordingly if there
is a problem. Every one of these trucks must submit a predetermined
route to the TSA. If a truck strays from its plan, and we will know
this by tracking its movements,

[[Page S2763]]

which GSA allows, TSA is automatically alerted and the system quickly
responds.
As I said, we know a system such as this can work. It has been
implemented in other countries. Hazardous material in trucks is one of
the issues we have not dealt with sufficiently since 9/11. I look
forward to the committee's receptiveness to this amendment and to
working with the chair and ranking member to see if we can adopt this
amendment. This is an important step.
The second amendment I offer, No. 366, along with my colleague,
Senator Kyl, will restore export restrictions on highly enriched
uranium to reduce risks of terrorists obtaining this material to make
nuclear weapons. Highly enriched uranium, HEU, can be used to make
actual nuclear weapons, such as that dropped on Hiroshima, not just
dirty bombs.
Until 2005, U.S. law restricted exports of bomb-grade uranium.
However, this antiterrorism policy was undercut by an ill-considered
amendment to the Energy Policy Act that eliminated these restrictions.
By increasing the amount of HEU in circulation around the world, the
Energy bill created an unacceptable risk by heightening the possibility
that weapons-grade uranium could be lost or stolen and fall into the
hands of terrorists with known nuclear ambitions. What made this
language so astonishing is that it created much more risk without
absolutely any reward by claiming to fix a problem that didn't exist.
The reality of this situation is that terrorists don't care if the
weapons-grade uranium they try to get their hands on was meant for
medical or military use. We know all they care about is how they can
use it to attack our Nation and our way of life. If we have learned
anything since September 11, it is we must take every step to ensure
terrorists can never lay their hands on the materials they would need
to launch an attack of mass destruction against the United States.
I urge my colleagues to support both these amendments. I hope we can
work with the committee to get them accepted.
Mr. President, with that, in deference to my colleagues, I yield the
remainder of my time.
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senator from Colorado is recognized for up to 10 minutes.

Amendment No. 272

Mr. ALLARD. Mr. President, I rise today to speak in support of my
amendment No. 272 to the Improving America's Security Act, and I
believe it will do that, improve America's security.
We have a rampant problem of identity theft in this country. Identity
theft not only affects innocent victims, it poses a security threat to
our country. As the 9/11 Commission put it: ``Fraud in identification
documents is no longer just a problem of theft.''
We have long been aware that failure to protect the integrity of the
SSN has enormous financial consequences for the Government, the people,
and the business community. We now know that shortcomings in the SSN
issuance process can have far graver consequences than previously
imagined. The difficult lessons of September 11, 2001 have taught us
that SSA can no longer afford to operate from a ``business as usual''
perspective. Whatever the cost, whatever the sacrifice, we must protect
the number that has become our national identifier; the number that is
the key to social, legal, and financial assimilation in this country.
We recognize SSA alone cannot resolve the monumental issues
surrounding homeland security. Efforts to make our Nation safer will
involve new or expanded initiatives by almost every segment of our
population, including State and local governments, private industry,
nongovernmental organizations, and citizens. However, we also recognize
that, in endeavoring to protect our homeland, no Government system or
policy should be ignored. As such, SSA, as a Federal agency and public
servant, must resolve to review its systems and processes for
opportunities to prevent the possibility that anyone might commit or
camouflage criminal activities against the United States. We believe
SSN integrity is a link in our homeland security goal that must be
strengthened.
The 9/11 Commission went on to note: `` . . . all but one of the 9/11
hijackers acquired some form of U.S. identification document, some by
fraud.''
I have here an inspector general's report, inspector general for the
Social Security Administration, and he is talking about the integrity
of the Social Security number. He says an important link in homeland
security is the Social Security number. To specifically quote him, he
says:

The difficult lessons of September 11, 2001, has taught us
that the Social Security Administration can no longer afford
to operate from a business-as-usual perspective. Whatever the
cost, whatever the sacrifice, we must protect the number that
has become our national identifier, the number that is the
key to social, legal, and financial assimilation in this
country.

He went on to say in his report:

We believe the Social Security number integrity is a link
in our homeland security goal that must be strengthened.

For every case of identity theft, there is a thief. We have to ask
ourselves: Why would someone want to steal somebody else's identity?
After all, every person has an identity of their own. Why would
somebody be so dissatisfied with their own identity that they deem it
necessary to steal from another? The answer to that question is simple:
They have something to hide. For many, the fact they are trying to hide
is that they are in this country illegally. Whether someone is here
illegally in pursuit of work or to carry out the work of an
international terrorist organization remains anyone's guess.
What we do know, however, is that there are clear signs of when an
identity has been stolen. One obvious sign is when multiple people are
using the same Social Security number. By law, every Social Security
number has only one true owner. It follows, if 10 people are using the
same Social Security number, 9 of them are thieves: 9 of them have
something to hide.
One common use of Social Security numbers is for reporting earnings.
And where are earnings reported? Earnings are reported to the Social
Security Administration. That means that when multiple people are
reporting to the Social Security Administration using the same Social
Security number, the Social Security Administration has information in
its possession relating to the crime of identity theft.
What does the Social Security Administration do? Absolutely nothing.
It is prohibited from sharing their information with others in our own
Federal Government, such as the Secretary of Homeland Security.
I believe it is an example of what the 9/11 Commission described as,
and I quote from the Commission:

The pervasive problem of managing and sharing information
across a large and unwieldy government that had been built in
a different era to confront different dangers.

In January of this year, a bipartisan group of Senators and I met
with Secretary Chertoff on this very issue. Secretary Chertoff
explained that, under current law, Government agencies are prevented
from sharing information with one another that, if shared, could expose
cases of identity theft.
My amendment tears down the wall that prevents the sharing of
existing information among Government agencies and permits the
Commissioner of Social Security to share information with the Secretary
of Homeland Security where such information is likely to assist in
discovering identity theft, Social Security number misuse or violations
of immigration law.
Specifically, it requires the Commissioner to inform the Secretary of
Homeland Security upon discovery of a Social Security account number
being used with multiple names or where an individual has more than one
person reporting earnings for him or her during a single tax year.
It seems logical that we would already be doing this, but we are not.
In the meantime, we are effectively enabling thieves to continue to
perpetrate the crime of identity theft.
In addition to the national security implications, for every case of
identity theft there is an innocent victim.
Innocent victims like Connecticut resident John Harrison who had his
active duty military ID and Social Security number stolen. The thief
ran up an over $260,000 debt and opened 61 credit or bank accounts in
the victim's name. Meanwhile the victim lost his job and the military
decreased his retirement

[[Page S2764]]

pay because Phillips had run up a debt owed to the U.S. Government.
Connecticut resident John Harrison is not alone, In fact, for the
seventh year in a row, with nearly 250,000 complaints, identity theft
is the No. 1 complaint received by the FTC from Connecticut residents.
Likewise, for the State of Maine, 2006 marked the seventh year in a row
that identity theft complaints topped the Federal Trade Commission's
Annual ``List of Top Consumer Complaints.''
Even my home State of Colorado is no stranger to identity theft. With
4,535 victims in 2005, we are ranked 5th in identity theft--behind only
Arizona, Nevada, California, and Texas.
For instance, an 84-year-old Grand Junction woman was deemed
ineligible for Federal housing assistance because her Social Security
number was being used at a variety of jobs in Denver, making her income
too high to qualify.
Unfortunately, for the victims of identity theft, by the time the
identity theft is discovered, the damage has already been done. Yet
when the Social Security Administration has reason to believe that a
Social Security number is being used fraudulently, they are prevented
from sharing it with the Department of Homeland Security. Withholding
this information effectively enables thieves to continue to perpetrate
the crime of identity theft against innocent victims.
By simply sharing information related to the fraudulent use of Social
Security numbers among Government agencies, cases of identity theft
could be discovered much sooner. Victims of identity theft deserve to
have this existing information acted on, and my amendment allows this.
Senator Cornyn, who is on the floor with me, was at the meeting where
Secretary Chertoff explained the problems with the Social Security
numbers and DHS not being notified so that they could take law
enforcement actions against such acts as a terrorist threat.
I wonder if Senator Cornyn would give me his impression.
Mr. CORNYN. Mr. President, will the Senator yield for a question?
Mr. ALLARD. I will be glad to yield.
Mr. CORNYN. Would the Senator from Colorado tell us what portion of
the population is sort of disproportionately affected by this identity
theft, particularly when it involves Social Security numbers?
Mr. ALLARD. A large portion of the population that is affected by the
Social Security theft identification is the older population, those
individuals on Social Security. The impact it is going to have on them
is immediate in some cases because they are qualifying for a certain
amount of Social Security based on the income that may be coming. If
somebody else is using their Social Security number, that exceeds,
perhaps, what allowances they may have to qualify for the Social
Security benefits. If an individual has a job, then the effect is felt
much later on.
The retired individuals of this country are most dramatically
affected in this regard.
Mr. CORNYN. Mr. President, I ask the Senator from Colorado whether he
is aware that the Federal Trade Commission has identified the top 10
States where identity theft is the biggest problem and that they have
ranked Arizona as No. 1; and Nevada, the State represented by the
majority leader; California; and Texas, No.4; and then Colorado at No.
5.
Is the Senator aware that the Federal Trade Commission has ranked
those States as the top five States where identity theft is the biggest
problem.
Mr. ALLARD. I thank the Senator from Texas for his question, and,
yes, I am very much aware of that. Those States are disproportionately
affected because of the overpopulation they have within their
boundaries.
Mr. CORNYN. Is the Senator from Colorado aware there are those who
will purchase bogus documents on the black market--basically for
purposes of evading and breaking our immigration laws so they can
purport to be someone whom they are not--and whether this, in his
opinion, represents a security risk to the United States.
Mr. ALLARD. That is one of the problems we are facing today and one
of the problems that Secretary Chertoff of Homeland Security pointed
out. It is vital that we be able to identify duplicate uses of Social
Security numbers because a number of the terrorists that were here on
9/11, attacking this country, were here under fraudulent IDs. It is an
important aspect of law enforcement, and particularly homeland
security, to be able to carry on their responsibilities.
Mr. CORNYN. Finally, Mr. President, I would like to ask the Senator
whether this isn't exactly the kind of stovepipe or wall that the 9/11
Commission talked about when it comes to information sharing between
law enforcement and intelligence agencies. Isn't this exactly the same
kind of information sharing they found so important to protecting the
security of our Nation?
Mr. ALLARD. Well, it is the very thing the 9/11 Commission was
pointing out that is a problem with protecting the citizens of this
country, the stovepiping of information among the various agencies and
where there is no passing of information back and forth.
This is a classic example where one agency, in this case the Social
Security Administration, has a number, and they know it is being used
more than once throughout the country, yet nobody gets notified; it
stays within the Social Security Administration. Even those law
enforcement agencies within Homeland Security cannot get that
information to act on it.
Secretary Chertoff said an important part of being able to carry out
our function to ensure the security of this country is to get that
information. Yet right now, the law explicitly prohibits the Social
Security Administration from sharing that information with Homeland
Security.
I think it is a problem that needs to be corrected, and the sooner we
can correct that, the better.
Mr. CORNYN. I thank the Senator, and I support his amendment.
Mr. ALLARD. Mr. President, let me summarize my comments by saying I
think it is important, in ensuring the security of this country, that
we pass this amendment. Without the sharing of that information between
the various agencies, it is going to be possible for anybody who comes
into this country illegally, terrorists especially, to stay within this
country and operate in a way where they are not discovered. We want to
have law enforcement become aware of the presence of somebody here
illegally, particularly if they are a terrorist. If their intention is
to either destroy a building or to lay a bomb out somewhere, they are a
real threat to this country.
I urge my colleagues to join me in supporting this amendment.
The PRESIDING OFFICER (Mr. Sanders). The Senator from Massachusetts
is recognized for 10 minutes.
(The remarks of Mr. Kerry are printed in today's Record under
``Morning Business.'')
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Mr. President, I ask unanimous consent to set aside the
earlier unanimous consent request so I can offer the Wyden-Bond
amendment at this time.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 348 to Amendment No. 275

Mr. WYDEN. Mr. President, I offer this amendment with the
distinguished vice chairman of the Senate Select Committee on
Intelligence. I thank him for the many hours he and his staff have put
in, working with me on this amendment.
The purpose of the legislation before the Senate today is
straightforward: to apply what has been learned from one of the
greatest tragedies in American life in order to better protect the
American people in the days ahead. One of the tragic lessons of 9/11 is
what we do not know can hurt us, and hurt us badly.
Because of the outstanding work of the 9/11 Commission, extensive
information about what went wrong has been made public. The national
security community has learned from a number of its mistakes, and today
is taking concrete steps to make sure what happened on September 11,
2001, does not happen again. There has been a variety of reports that
have been issued, critical to our understanding of what happened that
tragic day. The bipartisan 2002 Joint Congressional Inquiry, on which I
was privileged to serve, is one example, as well as the Department of
Justice's report on FBI accountability.
There is one essential report that has remained classified. Nearly 2
years ago,

[[Page S2765]]

the CIA inspector general submitted a report detailing CIA
accountability in the runup to the 9/11 attacks. I am sure that some
may and will consider a number of the inspector general's findings
unsettling, perhaps embarrassing, but the report is of high quality and
it is comprehensive. The CIA inspector general has provided this
country with an important perspective on one of the defining moments in
American history, and I believe the public has a right to know what
went wrong at the CIA, so we can make sure those mistakes are not
repeated.
I have spent more than a year working on a bipartisan basis with our
friend from Missouri, the previous chairman of the Senate Intelligence
Committee, Senator Roberts, to make an unclassified version of this
report available to the public. I have repeatedly asked the
intelligence community to redact any sensitive national security
information in the report's executive summary so that it could be
declassified. I have been joined in these efforts, in addition to the
assistance Senator Bond has provided, by the current chairman, Senator
Rockefeller. I have already mentioned the help of Chairman Roberts for
some substantial length of time.
Multiple CIA Directors, as well as the former Director of National
Intelligence, regrettably have not been willing to cooperate. Why the
leaders of the CIA have been so reluctant to cooperate is not clear to
me. Neither former Director Goss nor Director Hayden nor Ambassador
Negroponte have ever provided a valid reason for keeping the report,
the entire report, classified. In fact, there is no good reason why the
CIA cannot declassify this report. The executive summary is concise,
and it contains little information about CIA sources and methods. It
could be redacted and released quickly. That information is in the
interests of the American people.
The amendment, the bipartisan amendment we offer today, would require
the Director of the CIA to declassify the executive summary of the
inspector general's report on 9/11, removing only that information
which must be redacted to protect this country's national security. The
amendment requires the Director do this within 30 days. I think anyone
who has read the report would agree that this is more than enough time.
I am pleased that the bipartisan leadership of the Senate
Intelligence Committee, Senator Rockefeller and Senator Bond, join me
as cosponsors of the legislation.
The American people have a right to know what is in this report. Some
of the findings may be unpleasant, others may be a source of pride, but
at the end of the day the American people have a right to know about
how the Central Intelligence Agency performed at a critical moment in
this country's history. We need that information made public so as to
ensure that there is true accountability. September 11, 2001, is part
of this country's history. To hide the truth from the American people
is unacceptable.
I urge the adoption of this amendment.
I see my friend from Missouri and thank him again for his patience
during the many hours our staffs have been working on a bipartisan
basis.
Mr. President, I ask unanimous consent to call up the amendment at
this time.
The PRESIDING OFFICER. Without objection, the pending amendment is
set aside.
The clerk will report.
The bill clerk read as follows:

The Senator from Oregon Mr. [Wyden], for himself, Mr. Bond,
and Mr. Rockefeller, proposes an amendment numbered 348 to
amendment No. 275.

Mr. WYDEN. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To require that a redacted version of the Executive Summary
of the Office of Inspector General Report on Central Intelligence
Agency Accountability Regarding Findings and Conclusions of the Joint
Inquiry into Intelligence Community Activities Before and After the
Terrorist Attacks of September 11, 2001 is made available to the
public)

At the appropriate place, insert the following:

SEC. ___. AVAILABILITY OF THE EXECUTIVE SUMMARY OF THE REPORT
ON CENTRAL INTELLIGENCE AGENCY ACCOUNTABILITY
REGARDING THE TERRORIST ATTACKS OF SEPTEMBER
11, 2001.

(a) Public Availability.--Not later than 30 days after the
date of the enactment of this Act, the Director of the
Central Intelligence Agency shall prepare and make available
to the public a version of the Executive Summary of the
report entitled the ``Office of Inspector General Report on
Central Intelligence Agency Accountability Regarding Findings
and Conclusions of the Joint Inquiry into Intelligence
Community Activities Before and After the Terrorist Attacks
of September 11, 2001'' issued in June 2005 that is
declassified to the maximum extent possible, consistent with
national security.
(b) Report to Congress.--The Director of the Central
Intelligence Agency shall submit to Congress a classified
annex to the redacted Executive Summary made available under
subsection (a) that explains the reason that any redacted
material in the Executive Summary was withheld from the
public.

The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I thank my good friend from Oregon for his
persistence in pursuing something we both agree should and must be
disclosed and made public, to the extent it can consistent with
national security. Accountability for one's actions is something most
of us are taught from childhood. It is rooted not only in religious
teachings but also in the tenets of government at the Federal, State,
and local levels.
For those of us in public service, whether we be in an elected
capacity or appointed position or some form of service directly related
to the security of our Nation, we should know we must expect to be held
accountable for our actions. When we serve the people and if we expect
the rewards of doing good deeds, just as surely we should face the
negative consequences of actions which do not turn out well.
In addition, the public, to the maximum extent possible consistent
with national security, should have made available to it the findings
and the conclusions of the Government's own agencies with regard to
accountability.
As my colleague from Oregon has stated, in June of 2005 the Office of
Inspector General of the Central Intelligence Agency published a report
concerning the conduct of intelligence activities prior to September
11, 2001, and afterward. To this date, that report remains classified.
The amendment Senator Wyden and I propose requires the CIA to make as
much of that report public as is possible, consistent with protecting
the sensitive sources and methods relating to our national security.
The Senator from Oregon has referred to the 9/11 Commission, the
joint congressional inquiry. Our Senate Select Committee on
Intelligence spent 2 very intense years, 2003 and 2004, doing an
extensive investigation of what the intelligence was, how it was
formulated, what the problems were, and we found that there were
tremendous holes in it. So much of what would be found in the inspector
general's report has already been stated. But I think to make the
record clear and complete, so that we may ensure that all of the
agencies working on national intelligence have the ability to learn
from the mistakes--and we in our role as the oversight committee will
use the information in this report and on this floor, if need be--to
point out how we can make our intelligence better.
In an age where the war on terrorism has been brought to us by
radical Islamic groups who continue to threaten us, good intelligence
is the only defense we have adequate to the threat we face. It is
important that we get it right.
Now, it is not pleasant to air some of these mistakes. We all make
mistakes, but we better learn from them or we are destined to commit
them again.
I thank my colleague from Oregon.
Mr. President, I ask unanimous consent to temporarily set aside this
amendment so that I may offer a Rockefeller-Bond amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 389 to Amendment No. 275

Mr. BOND. I send to the desk an amendment and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Missouri [Mr. Bond], for himself and Mr.
Rockefeller, proposes an amendment numbered 389 to amendment
No. 275.

[[Page S2766]]

Mr. BOND. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The amendment is as follows:

(Purpose: To provide the sense of the Senate that the Committee on
Homeland Security and Governmental Affairs and the Select Committee on
Intelligence of the Senate should submit a report on the
recommendations of the 9/11 Commission with respect to intelligence
reform and congressional intelligence oversight reform)

At the appropriate place, insert the following:

SEC. __. SENSE OF THE SENATE REGARDING A REPORT ON THE 9/11
COMMISSION RECOMMENDATIONS WITH RESPECT TO
INTELLIGENCE REFORM AND CONGRESSIONAL
INTELLIGENCE OVERSIGHT REFORM.

(a) Findings.--Congress makes the following findings:
(1) The National Commission on Terrorist Attacks Upon the
United States (referred to in this section as the ``9/11
Commission'') conducted a lengthy review of the facts and
circumstances relating to the terrorist attacks of September
11, 2001, including those relating to the intelligence
community, law enforcement agencies, and the role of
congressional oversight and resource allocation.
(2) In its final report, the 9/11 Commission found that--
(A) congressional oversight of the intelligence activities
of the United States is dysfunctional;
(B) under the rules of the Senate and the House of
Representatives in effect at the time the report was
completed, the committees of Congress charged with oversight
of the intelligence activities lacked the power, influence,
and sustained capability to meet the daunting challenges
faced by the intelligence community of the United States;
(C) as long as such oversight is governed by such rules of
the Senate and the House of Representatives, the people of
the United States will not get the security they want and
need;
(D) a strong, stable, and capable congressional committee
structure is needed to give the intelligence community of the
United States appropriate oversight, support, and leadership;
and
(E) the reforms recommended by the 9/11 Commission in its
final report will not succeed if congressional oversight of
the intelligence community in the United States is not
changed.
(3) The 9/11 Commission recommended structural changes to
Congress to improve the oversight of intelligence activities.
(4) Congress has enacted some of the recommendations made
by the 9/11 Commission and is considering implementing
additional recommendations of the 9/11 Commission.
(5) The Senate adopted Senate Resolution 445 in the 108th
Congress to address some of the oversight recommendations of
the 9/11 Commission by abolishing term limits for the members
of the Select Committee on Intelligence, clarifying
jurisdiction for intelligence-related nominations, and
streamlining procedures for the referral of intelligence-
related legislation, but other aspects of the 9/11 Commission
recommendations regarding oversight have not been
implemented.
(b) Sense of the Senate.--It is the sense of the Senate
that the Committee on Homeland Security and Governmental
Affairs and the Select Committee on Intelligence of the
Senate each, or jointly, should--
(1) undertake a review of the recommendations made in the
final report of the 9/11 Commission with respect to
intelligence reform and congressional intelligence oversight
reform;
(2) review and consider any other suggestions, options, or
recommendations for improving intelligence oversight; and
(3) not later than December 21, 2007, submit to the Senate
a report that includes the recommendations of the Committee,
if any, for carrying out such reforms.

Mr. BOND. Mr. President, I thank the Chair, and I ask that the
postponed recognition of the distinguished Senator from South Carolina
now be instituted. I express my gratitude to him for allowing us to go
forward with the intervening amendment.
The PRESIDING OFFICER. The Senator from South Carolina.

Amendment No. 286

Mr. GRAHAM. Mr. President, I would like to thank Senator Lieberman
for working me into the line here. What I am rising to talk about is a
very important issue for how we conduct this war, for how the law works
in a time of war, for the values Americans would like to embrace when
we are under siege as a nation, and try to give my explanation to what
Senator Specter's amendment would do and why I oppose it so vehemently.
To give a little background and history of this issue, at least from
my perspective--and I would ask every Senator to look at this very
closely because this is a very important concept we are talking about--
the Guantanamo military installation to house enemy combatants, people
determined by our military to be enemy prisoners of war out of uniform,
meeting the Geneva Convention's definition of an enemy combatant--the
administration chose Guantanamo as the jailing site. There were
prisoners there who brought actions in our Federal court, arguing that
their confinement needed to be reviewed by Federal courts. The
administration took the position that Guantanamo was outside the United
States. They lost. I think the administration should have lost. To me,
Guantanamo, because of the lease and the relationship the U.S. military
has to that installation, is clearly part of the infrastructure of the
United States.
The reason they made the argument is it is a long-held concept in law
that habeas rights do not apply to people overseas, that our
constitutional provisions granting to American citizens the right to
bring a habeas petition when they are confined does not apply
extraterritorially. The administration lost on the argument that
Guantanamo was outside the United States, and the Federal court said:
Okay, it is within the United States.
What habeas rights would attach to someone at Guantanamo Bay? Here is
where Senator Specter and I dramatically differ. Senator Specter reads
the Rasul case to say that someone confined at Guantanamo who is a
noncitizen enemy combatant has a constitutional right under our
Constitution to petition Federal courts, to have a district court judge
review their confinement. I think that is completely wrong.
The D.C. Court of Appeals recently held in a 2-1 decision that people
detained at Guantanamo Bay do not have constitutional rights under our
Constitution to petition for habeas.
Rasul was about 2241, section 2241 of the U.S. Code, a congressional
enactment that creates statutory habeas rights. That statute has been
amended in many different forms--restricting habeas, granting habeas,
allowing States appellate procedures postconviction relief to be
substitutes for habeas.
The Supreme Court said: Since Congress has not spoken as to whether
detainees at Guantanamo will be covered by 2241, we are going to allow
a case to go forward under that statute until Congress tells us
otherwise.
It was Justice O'Connor who was suggesting to the Congress we need to
speak. The administration at the time of the Rasul case had no
infrastructure in place to give due process to someone who is accused
of being an enemy combatant. Justice O'Connor, in another case--I don't
remember the name now--said: What you need to look at is Army
Regulation 190-1, which is a procedure to guide military members how to
determine who an enemy prisoner may be from a civilian who is an
innocent person involved in war. So what the military did, after the
second Supreme Court case, was come up with a Combat Status Review
Tribunal. Now the Combat Status Review Tribunal is the due process
right given to suspected enemy combatants.
To me, 9/11 was an act of war. It was also a crime, but it was an act
of war. I believe the people housed at Guantanamo Bay are warriors, not
common criminals. They will be afforded the due process rights of
wartime law of armed conflict, not domestic criminal law.
What is the law of armed conflict when it comes to status? Article V
of the Geneva Convention says that if there is a question of status,
the country which houses the person, is in charge of the person, will
conduct a competent tribunal. A ``competent tribunal'' all over the
world is a military proceeding where the military of that country will
determine if the person in front of them is a civilian, uniformed
person, or enemy combatant.
The Combat Status Review Tribunal is well beyond the due process
requirement of the Geneva Conventions. What happens at the Combat
Status Review Tribunal, first of all, is that the enemy suspect
prisoner will go before a panel of three military officers trained in
who presents a military threat--an intelligence officer, a combat
officer, and a legal officer. I think tomorrow or Friday, the 14 high-
value detainees who have been in CIA custody will go through this
process.
The question for this Congress is, Do we want the military to make
the initial decision on who an enemy prisoner is based on what a
military threat is to our country and the expertise the military has in
determining if this person

[[Page S2767]]

is an enemy prisoner, enemy combatant, or do we want to give that to a
district court judge who has absolutely no training?
Enemy prisoners during World War II were not allowed to file habeas
petitions and come into our Federal courts and sue the military during
a time of war to be released. Chief Justice Jackson said: Wait a
minute. This is not our job. We are not trained for this. If we allow
enemy prisoners detained by our military during a time of war to have
access to our Federal courts, Federal judges are taking over a job the
military is trained for and we are not trained for.
Here is what Justice Jackson said in the Eisentrager case:

We are cited to no instance where a court, in this or any
other country where the writ is known, has issued it on
behalf of an alien enemy who, at no relevant time and in no
stage of his captivity, has been within its territorial
jurisdiction.

Nothing in the text of this Constitution extends such a right nor
does anything in our statute.
So the Eisentrager case in 1950 clearly said habeas does not apply to
enemy prisoners. I cannot find the language--it talks about why it is a
bad idea--but it is forthcoming. So as early as 1950, the courts
rejected enemy prisoner petitions in the Federal court.
Now, the question for Congress is, after 9/11--5 years later--do we
as a Congress want to confer onto people classified by our military to
be enemy combatants a Federal court right never known in the law of
armed conflict at any other time in our history? Do we want to be the
first Congress in the history of the United States to take away from
our military the ability to determine who a military threat is and make
literally a Federal court trial out of that decision?
There had been 160 habeas petitions filed before we acted last year.
Let me tell you, they have sued our own military for everything
imaginable: the quality of the food, DVD access, not enough exercise,
judge-supervised interrogation. Some of the people who have brought
these cases are accused of killing Americans in the most brutal way.
One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on
behalf of enemy combatants held at Guantanamo Bay, publicly stated:

The litigation [for the United States]. . . . It's huge. We
have over one hundred lawyers now from big and small firms
working to represent these detainees. Every time an attorney
goes down there, it makes it that much harder [for the U.S.
military] to do what they're doing. You can't run an
interrogation . . . with attorneys. What are they going to do
now that we're getting court orders to get more lawyers down
there?

It is clear that it does--according to one of the lawyers
representing detainees--make it very difficult for the military to do
their job when it comes to intelligence gathering. I will have an
unclassified summary to put into the Record at the end of my time that
talks about the information gained at Guantanamo Bay.
But here is what Justice Jackson said would be the real big mistake
for the Federal courts if you start granting habeas petitions and give
enemy prisoners a right to sue our own people about their status in a
time of war:

The writ, since it is held to be a matter of right, would
be equally available to enemies during active hostilities as
in the present twilight between war and peace. Such trials
would hamper the war effort and bring aid and comfort to the
enemy. They would diminish the prestige of our commanders,
not only with enemies but with wavering neutrals. It would be
difficult to devise more effective fettering of a field
commander than to allow the very enemies he is ordered to
reduce to submission to call him to account in his own civil
courts and divert his efforts and attention from the military
offensive abroad to the legal defensive at home. Nor is it
unlikely that the result of such enemy litigiousness would be
a conflict between judicial and military opinion highly
comforting to enemies of the United States.

Was he prophetic? These 160 cases have created a nightmare for the
military at Guantanamo Bay. Medical malpractice suits have been filed,
$100 million money-damage lawsuits have been filed. It has been a legal
nightmare.
So what I am trying to persuade the Congress to do is not grant in
statute a right never given to any other enemy prisoner during any
other war, because it is dangerous to do so.
What did we do to accommodate the unique needs of this war, a war
potentially without end? For the first time in the history of our
country, we are allowing Federal courts to review whether a person has
been properly classified as an enemy prisoner. Once the military
decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/
11, can you imagine 5 years after 9/11 the Congress would open up any
Federal courtroom that a lawyer could shop to find--whatever judge the
lawyer could find in the country--and allow Shaikh Mohammed to sue our
own military about his status, creating a nightmare zoo courtroom
trial, bringing people from all over the world to determine his status,
where the judge would have a say, not the military? That would be a
mistake of monumental proportions.
What will happen is Shaikh Mohammed, in a classified setting, will
have evidence presented by the Government to show he is an enemy
combatant. He will have a chance to rebut that. When his case has been
decided, he will have an automatic right of appeal to the DC Circuit
Court of Appeals, where the DC Circuit Court of Appeals will look at
the military decision in question and find out whether two things
occurred. Were the due process rights given Shaikh Mohammed and other
enemy combatant suspects consistent with our own Constitution?
Secondly, was the evidence introduced sufficient to support the finding
he is an enemy combatant?
That is the proper role for a judge. That is what judges are trained
to do. It would be a monumental mistake to allow a habeas petition to
be filed, where literally you could go to any court in the land and
have a full-blown trial, calling people off the battlefield to make the
case that this person was an enemy prisoner and give that
decisionmaking ability to a judge not trained in who is a military
threat to our country and take it away from the military.

That is why I am so passionate about this issue. I do believe in due
process at a time of war. I have been a military lawyer for well over
20 years. I believe our country should adhere to the Geneva
Conventions, that we should be a standard-bearer for what is right. But
we should not cripple our military's ability to defend us in a way that
makes absolutely no sense.
We should not put Federal judges on the frontlines in deciding who is
a threat to this country, when the military is trained to do that. Let
the judges look over the military's shoulder and in a proper way,
consistent with their training.
Now, what is going to happen? The case is going to go to the Supreme
Court soon. If I am wrong, I will take the floor and say so. Senator
Specter has a belief there is a constitutional right to habeas. I do
not believe that. But if the Court holds so, then I would be wrong. I
would argue that the DC Circuit Court of Appeals is an adequate
substitute for habeas, but that will be up to the Court.
All I am asking is to allow the work product of last year that has
gone before the DC Circuit Court of Appeals that has been upheld to go
through the system. I will gladly sit down with Senators Specter and
Levin to see if we can work on better due process rights for people
accused of being an enemy combatant. I think we can do that as a
Congress without turning that decision over to Federal judges. It is a
very dangerous thing we are proposing to do, to take away from the
military to determine who a threat is and to give it to a Federal
judge.
Finally, I would like to say: I know this is a war without end. Two
hundred-and-something people have been released from Guantanamo Bay
because they get an annual review board to look at their status anew.
We do not want to keep people who have been misidentified who are not a
threat. But we do not have the choice of ``try them or let them go.''
This is a war, and we can keep warriors off the battlefield as long as
they are a threat. When it comes time to determine who should bear that
risk, who should bear the risk of letting someone go at Guantanamo
Bay--the innocent civilian populations of the world who have been a
victim of people out of uniform wreaking havoc or the people who
started this whole mess to begin with--if you are going to proportion
risk, I think it should fall on the people who created the problem to
begin with.

[[Page S2768]]

Twelve people have been released from Guantanamo Bay under the annual
review process of the 200-and-something. Twelve have gone back to the
battle. Three have been killed. So you make mistakes both ways. I don't
want to hold one person down there who should not be held, but I don't
want to let anybody go who is a threat to our country because we are at
war.
Due process rights attach to people in war, but we cannot criminalize
what has been an act of war beginning on September 11, 2001. The people
down there will have their day in court. They will have a chance to
have a say about who they are and what the facts are. But I do believe
there are people down at Guantanamo Bay who are warriors. If they ever
got out, they would try to kill us again.
Mr. LIEBERMAN. Mr. President, will my friend from South Carolina
yield for a question?
Mr. GRAHAM. Yes, sir.
Mr. LIEBERMAN. I appreciate the Senator's remarks. I know the Senator
from South Carolina has a background in military law, so he speaks with
some authority on these questions.
What interests me in this discussion is the rights of citizens as
opposed to noncitizens. I wanted to ask my friend, first, am I right
that you are not arguing against the principle that an American
citizen, even one alleged to be an enemy combatant, does have habeas
corpus rights?
Mr. GRAHAM. The Senator is absolutely right; any American citizen.
The Padilla case is the best example you could give. Padilla was
charged as an enemy combatant, a U.S. citizen. It is true American
citizens in the past have been held indefinitely as enemy combatants.
But I do believe they should have access to our courts as a member of
citizenship. And they would have a constitutional right to seek relief
from a Federal judge to determine whether the military or law
enforcement officers make that decision. We are talking about people in
the same status as the Germans and the Japanese. There was a reason the
thousands of enemy prisoners housed in the United States never had
access to our Federal courts. It is what Justice Jackson was saying.
The Federal judiciary would make a mockery of the military's ability to
run the war if you turned every military decision into a Federal court
trial as to who an enemy prisoner is. Justice Jackson, in the most
eloquent fashion, told us what could come if you conferred these rights
on enemy prisoners.
Here is what is odd. If I am a lawful combatant, if I am captured
tomorrow as a member of the uniformed services of the United States, I
do not have any rights under the Geneva Conventions to go to the host
country's judiciary. We are creating, for unlawful combatants, enemy
combatants, a right greater than someone who is captured as a lawful
combatant.
Under the Geneva Conventions, there is no right to go to a court in
any land to ask to be released. But in America, if you are an unlawful
combatant, we are giving you your day in Federal court, after the
military acts, which I think is an accommodation for the fact that this
war is different. It is not lost upon this Senator this war is
different. There will be no signing on the ``Missouri.'' I do not know
when this war is going to end. I do not want an enemy combatant
decision to be a de facto life sentence without robust due process. But
I do believe, if the choice is between letting them go or having them
die in jail, if they are still a threat, let them die in jail.
I do believe every enemy prisoner is not a war criminal, and the
choice for the country is not ``let them go or try them.'' Because that
is a false choice in the law of armed conflict. It would not serve us
well to say that every American captured in the next war is a war
criminal because they are performing their duties. You only confer war
criminal status on someone who goes outside the law of armed conflict.
So we are making some decisions for the ages.
I am all for due process. I am all for scrutiny and transparency
because I want my country to win the war not changing whom we are. But
I do not want us to fundamentally change the relationship between the
military and military threats. Our judges have a role to play. The
Congress has a role to play. The military has a role to play. Keep
everybody in their lanes, and this will work.
Mr. LIEBERMAN. I thank my friend.
So I take his answer to say also--correct me if I am wrong--that the
existing statute, including the MCA--which is the subject of the
lawsuits we have been describing that are pending--the existing statute
does not alter the right of American citizens who are alleged to be
enemy combatants to use habeas corpus rights?
Mr. GRAHAM. The Senator is correct in two fashions. It says no
military commission can try an American citizen. A military commission
at Guantanamo Bay cannot, as a matter of law, try an American citizen,
even if they are an enemy combatant. Someone from America could join
al-Qaida, but they are going to be tried in our Federal courts if they
are caught.
What we are trying to do is have a military commission consistent
with the Uniformed Code of Military Justice to try people. The
difference between now and Nuremberg, I say to the Senator, is the war
is still ongoing. The reason we are not going to release all the
information as to why Shaikh Mohammed is an enemy combatant is because
that is very sensitive information. We will give a summary to the
public. And the courts will get to review that decision in full in a
classified setting. But I cannot stress to you enough we are at war.
The last time we had a Federal trial where somebody tried to blow up
the World Trade Center in the early 1990s, some of the information in
that courtroom setting that had to be released wound up in a cave in
Afghanistan. I will talk about that later. We are trying to balance the
need to be safe and the obligations we have under the law of armed
conflict. I think we have struck a good balance. If I am wrong, the
Supreme Court will tell me. Please, just to my fellow Senators, let
this case go to the Supreme Court, see what they say, and we can fix it
if we need to. That is all I am asking.

Mr. LIEBERMAN. Again, I thank my friend. So in furthering what this
discussion is about, it is whether non-American citizens seized in the
war on terrorism and alleged to be enemy combatants should have habeas
corpus rights under our Constitution?
Mr. GRAHAM. I am the biggest advocate that an American citizen such
as Mr. Padilla should be tried in Federal court. The man who was caught
working with the Taliban in Afghanistan was in Federal court. Moussaoui
was in Federal court because we didn't have the Military Commissions
Act. An American citizen will be tried in Federal court with all the
rights of an American citizen available to them.
Mr. LIEBERMAN. Let me ask this final question. This is the part of
this discussion that I struggle with, which is what is the appropriate
status in the context in which we are talking about permanent lawful
residents of the United States.
In other words, if I understand what the Military Commissions Act--
again, correct me if I am wrong--says, is that a permanent, lawful
resident of the United States who is apprehended as part of the war on
terrorism and alleged to be an enemy combatant does not have a right of
habeas, or a right to have a case heard in Federal court. That concerns
me. This is what I want to ask my friend from South Carolina who has
had experience with this to clarify, as to whether that may be--if I
can use the term a ``denial'' of equal protection--to say a permanent,
lawful resident of the United States cannot have the same rights in
these cases that a citizen of the United States has.
Mr. GRAHAM. Well, that is a very good question, and I think that is
something we actually need to sit down and look at, that situation
where you are not a citizen, but you are here on a legal status. I
would be, quite frankly, very comfortable to clarify that, if anyone
ever finds themselves in that category, to say, no, you are going to
have all the rights of an American citizen.
What I am trying to do is make sure that we don't change 200 years of
history. The people who assassinated President Lincoln, within 30 days
they were caught, tried, and executed in a military commission format.
We have had American civilians tried in military commissions in times
of war, but they were reviewed by our Federal courts. Some of the
German saboteurs who landed during World War II, I

[[Page S2769]]

think one or two of them actually were American citizens who left to go
back to Germany to aid the enemy. They got tried by military
commissions, and the Supreme Court reviewed their case.
What I am saying is that an enemy prisoner, a noncitizen, since time
began in our country and in every other country, has been treated under
the law of armed conflict, not domestic statutes. That is a distinction
of great significance, and we don't need--the due process rights these
enemy combatants, noncitizens, have are greater than the Geneva
Conventions require, and every enemy combatant had their day in Federal
court but in a way consistent with what judges are trained to do.
I don't believe it is in our national interests during ongoing
hostilities to take away from the military the ability to classify who
they believe to be a threat, what status that person has acquired based
on their activities. I do believe the courts can look at every case and
see: Was due process afforded? Did the evidence support the finding?
That, to me, is the magic combination, and habeas destroys that
combination.
Mr. LIEBERMAN. I thank the Senator from South Carolina. This, to me,
has been a very helpful exchange. I would like to continue the
discussion on the distinct question of what the habeas rights of
permanent lawful residents of the United States should be.
Mr. GRAHAM. It is a great area to discuss. I thank the Senator. I
yield the floor.
Mr. LIEBERMAN. I thank the Chair, and I yield the floor.
Mr. SPECTER. Mr. President, I ask my colleague from South Carolina if
he would be willing to respond to a few questions.
Mr. GRAHAM. I would be honored to respond to my friend from
Pennsylvania.
Mr. SPECTER. I will begin with the subject matter brought up by the
Senator from Connecticut about the status of aliens. I would note that
in the Rasul case, the Supreme Court, Justice Stevens speaking for a
majority, answered this categorically:

Aliens held at the base, like American citizens, are
entitled to invoke the Federal courts' section 2241
authority--

Which is the habeas corpus statute.
So the court has dealt with that conclusively in Rasul much the same
way that Justice O'Connor did speaking for plurality in an earlier
case.
Addressing the question to the Senator from South Carolina, earlier
today I noted the order establishing Combat Status Review Tribunals,
and it provided that:

All detainees shall be notified--

Leaving out some irrelevant material--

of the right to seek a writ of habeas corpus in the courts of
the United States.

Is the Senator familiar with that provision?
Mr. GRAHAM. No, sir, I am not.
Mr. SPECTER. Well, I hadn't been until a few days ago. But this is
the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated
July 7, 2004, to the Secretary of the Navy.
The Senator from South Carolina made the argument that the judges
were not appropriate to make determinations of reviewing the orders or
the conclusions of the Combat Status Review Tribunal. How would the
Senator from South Carolina account for the acquiescence by the--
Mr. GRAHAM. I have been told that the order the Senator is talking
about was implemented in the Rasul decision, and it would be a correct
statement of Mr. Wolfowitz to make.

Rasul said that habeas rights attached to Guantanamo Bay
detainees until Congress says otherwise, and that is the
difference we have. I read Rasul to say, since Congress
hasn't spoken under 2241, Guantanamo Bay is within U.S.
jurisdiction and the statute would apply to anybody held
at Guantanamo Bay. It is not an overseas location. Until
Congress speaks, under 2241 you will have the right.

Congress has spoken. We spoke last year. We took 2241 and changed it.
We excluded noncitizens and any prisoners from the habeas rights under
2241 and, quite honestly, that issue has gone to the D.C. Circuit Court
of Appeals, and we won last week.
Mr. SPECTER. Well, the question about the Department of Defense
agreeing to allow habeas corpus rights was not taken up by the Circuit
Court for the District of Columbia and the Detainee Treatment Act.
Congress gave the Department of Defense the right to establish the
rules, and that is one of the rules. Wait a minute. The question hasn't
come yet.
Mr. GRAHAM. OK.
Mr. SPECTER. Is it fair to change the rules in the middle of the
process after the Department of Defense has stated that they think it
is appropriate for a Federal court--they specifically talk about courts
of the United States--to make a determination under habeas corpus to
see if the definition which they set for enemy combatants has been
followed. They have specified that there has to be evidence. To the
definition of what or who is an enemy combatant:

An individual who was part of or supporting the Taliban or
al-Qaida forces, or associated forces that are engaged in
hostilities against the United States or its coalition
partners. This includes any person who has committed a
belligerent act or has directly supported hostilities in aid
of enemy armed forces.

Now, the Department of Defense who promulgated this order concluded
that it was within the purview of the Federal courts, and that is
really a judicial function to determine whether the definition for
enemy combatant has been achieved, isn't it?
Mr. GRAHAM. If I may respond, I think it is not remotely fair to say
that the Department of Defense has conceded that habeas corpus rights
should be given to detainees at Guantanamo Bay. Once Rasul was decided
and the Government lost, that it was outside the jurisdiction of the
United States, the Rasul case said: Until Congress acts, you will have
a habeas right. The administration has come to me and other Members of
this body since that decision and has been begging us to address 2241.
The Supreme Court, in three separate decisions, has said Congress needs
to get involved. The administration's theory was, there is no room for
Congress in the courts.
Here is where the Senator and I have been partners. I have always
believed the executive branch has to collaborate with the Congress, and
they have been hard-headed about this and they wound up losing in
court. They lost on whether it was outside the United States. Once the
court ruled 2241 applied, the DOD had no other choice but to tell
people: This is a statutory right. They were telling people at
Guantanamo Bay: This is your statutory right. They were coming to me
and other Senators saying: Please change 2241 because it is hampering
the war effort.
That is exactly where we find ourselves. We took the input of the
administration, we voted last year, we stripped habeas from 2241 where
district court judges could make military decisions, and we are
replaced in the appeals process where Federal courts do look at what
the military does after they have decided. I think not only did the
D.C. Circuit Court of Appeals uphold that as a proper thing to do but
the Supreme Court will also.
So my belief is that it was our decision as Congress as to whether to
give these enemy prisoners habeas rights, unlike any other war. We
decided with Rasul we didn't want to do that. I think it is the best
decision we have ever made. If you had asked this Congress on September
30, 2001: Would you want to create a Federal court action for any al-
Qaida member caught to go into Federal court and bring lawsuits against
our own troops alleging not enough exercise, bad DVD access, you name
it, we would have said no. That would have been crazy. Why would we
want to give this group of people who are trying to kill us all rights
that we didn't give the Japanese and the Nazis who were trying to kill
us all?
So now we find ourselves in Congress filling in the gap that the
court found. The Congress has spoken. We told the courts, D.C. Circuit
Court of Appeals: No habeas rights under 2241. We substituted another
procedure that I think makes sense, and the court found out that we did
it in a constitutional manner, and I think we are going to win at the
Supreme Court.
But having said that, if there are other ways to improve due process
where the Congress can make this CSRT process better, count me in. But
I am not going to sit on the sidelines and watch the Federal courts do
something they are not trained to do before Congress blesses it. If the
Senator is

[[Page S2770]]

right that the Supreme Court says apart from 2241 an enemy prisoner,
noncitizen, has a constitutional right to habeas, then I would be
wrong. I would argue that our procedures under the D.C. Circuit Court
of Appeals method of going to challenge the military is an adequate
substitute. But I am firmly convinced that our courts are going to say
there is no constitutional right for these prisoners, like there was
none for Japanese and German prisoners, and that Congress has made a
good decision to take the Federal courts and put them behind the
military, not in front of the military.
Mr. SPECTER. Well, if I may respond, when the Supreme Court said
Congress should act, they were saying that Congress should legislate on
how a military commission should be tried. But moving to your argument
about the issue of constitutional right, how could it be that if the
Constitution says that the right of habeas corpus can be suspended only
in the event of invasion or insurrection? How can it be argued that
there is no constitutional right?
That is the argument that the Attorney General made in the Judiciary
Committee hearing. Where the Constitution explicitly says the
constitutional right of habeas corpus can be suspended only in invasion
or insurrection, and no one says that either of those factors is
present here, isn't that a flat-out statement that there is a
constitutional right?
Mr. GRAHAM. All I can tell my colleague is that issue went up to the
D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly
as you can say it that there is no constitutional right for a
noncitizen enemy prisoner classified as such by our military during
hostilities to come into our Federal courts. Just like Justice Jackson
said in 1950, that would be a disaster. I just can't believe any
Federal court is going to say that Sheikh Mohammed, the mastermind of
9/11, who is an al-Qaida member, gets more rights than the Nazis. I
just don't believe they are going to do that. If I am wrong, I will
come to the floor of the Senate and say I am wrong. But I think I am
right. The D.C. Circuit Court of Appeals agrees with me, and I believe
we are going to win at the Supreme Court, if we can let these judges
look at something without changing it every 30 days.
Let's give this a shot and see what happens. We will know soon. I
apologize, but I have to go.
Mr. SPECTER. Wait just a minute. Make your answers a little more
responsive and brief, and I won't keep you too long. I will keep you
just a few more minutes.
The Court of Appeals for the District of Columbia said that the
Supreme Court, speaking explicitly through Justice Stevens, only dealt
with a holding on the statute.
They classified it as dictum when they said there was a
constitutional right. Let me move on quickly to a couple of other
points.
As to the adequacy of proceedings in the combat status review
tribunals, you have the case involving In re: Guantanamo, which I cited
this morning, where Judge Green dealt with the precise case in the
District of Columbia Circuit Court, the Boumediene case, which had a
procedure where the detainee was charged with talking to somebody who
was from al-Qaida, and he asked who it was and they could not identify
the person. There was laughter in the courtroom, and Judge Green said
it is understandable that there was laughter in the courtroom because
nothing had been established.
I ask a very simple, direct question, and maybe you can even answer
it yes or no. Was that a fair proceeding?
Mr. GRAHAM. I can tell you that the Court will soon tell us. If I can
give you what I think is the right answer, the combat status review
tribunal, as to whether they provided adequate due process is on appeal
now to the Supreme Court. The Supreme Court will soon tell us not just
about war crimes legislation but about the CSRT provisions and whether
they are constitutional.
I argue we are going to win on that one because 190-1 of the Army
manual was the model that set up the combat status review tribunal.
What right does a person have under the Geneva Conventions, in a time
of war, when it comes to the question of status? Article 5 says
competent tribunals--and all over the world that competent tribunal is
not a Federal judge or the equivalent in another country, it is a
military tribunal. If the Court rules the combat status review tribunal
doesn't afford due process, I will sit down with you and others to make
it comply to the Court's decision. I have no desire to take somebody
from any part of the world and put them at Guantanamo Bay if they
should not be there. That doesn't make America better or stronger. I do
believe, contrary to the laughter in the courtroom, that the people
best able to determine whether an enemy prisoner is a threat to our
country or, in fact, an enemy prisoner is not some circuit judge or
district court judge anywhere in America who was never trained in this,
but military officers who are trained in making those decisions. They
are the ones I trust. They have done it in every other war; they should
do it in this war. I am willing to have their work product looked at by
the Federal courts, and that is going on right now. We will soon know
the answer to that question. Are CSRTs constitutional? If not, we will
fix them.
I hate to leave. I have enjoyed this debate.
Mr. SPECTER. I have one more thing. I take your last extended
statement to be a ``no,'' am I right?
Mr. GRAHAM. I believe they will be constitutional. If you think there
has been a miscarriage of justice in any case, that will go to court.
If you think something happened in the CSRT that is laughable, then the
Federal court is going to get to look at every case. I can assure you
and every other American that every decision made by the military on
Guantanamo Bay will work its way to the Federal court, and our judges
will look at the record and the process, and they will tell us in
individual cases and as a group whether this works. Give them a chance
to do it.
With that, I have to leave.
Mr. SPECTER. One last question. I still take that to be a ``no.'' It
was not a complex question. Do you think it is fair where the
Department of Defense sets the rules, contrary to your assertion, that
they think Federal judges can decide whether the evidence establishes
the standard for an enemy combatant, do you think it is as fair under
American justice to have a presumption of guilt?
Mr. GRAHAM. No. This is an administrative hearing. The enemy
combatant status determination is not a criminal decision. It is, in an
armed conflict, an administrative decision where the procedure is set
up. I will get you the regulation and we will introduce it, but it is
article 5 on steroids. It has presumptions, rebuttable presumptions,
and you have an annual review board on what should be determined to be
a enemy combatant. You have a new hearing every year on whether new
evidence came in, whether you are still a threat to the country, and
whether you have intelligence value. Two hundred people have been
released at Guantanamo Bay because they have gone through the process
and the military determined they are no longer a threat. Twelve of the
two hundred have gone back to killing Americans.
There is no perfect system. We are trying to be fair. God knows we
want to be fair, but I tell you what, in close calls between letting
someone go who the military thinks is a member of al-Qaida and killing
other Americans and innocent people, I am going to make sure they stay
in jail and let the judges determine if we have done it fairly. I will
not sit on the sidelines and open the gates to people who have been
caught in the process of aiding the enemy or becoming the enemy just
because we are trying to create new rules for this war that we have
never had in any other war because some people don't like Bush. Bush
made a lot of mistakes, but this war is going to go on long after Bush
is gone.
If you let these people out of jail, at least 12 of them are going to
come back and kill you.
With that, I must leave. We will continue the debate.
Mr. SPECTER. Let me say, in conclusion, that bombast and oratory and
repetition cannot undercut a few very basic facts. One is that the
Department of Defense established a rule to give Guantanamo detainees
the right of habeas corpus. They set out a standard as

[[Page S2771]]

to what would constitute being an enemy combatant. These are rules,
when they call for evidence, that judges are equipped to decide. When
there is a rebuttable presumption of guilt, undercutting the basic
principle of America, the presumption of innocence, that is basically
unfair.

When you talk about the decision by the Court of Appeals for the
District of Columbia, where they limited the Supreme Court opinion to a
narrow holding on the statute, although the court then went on to say
there was a constitutional right, that will not pass muster when it
comes back to the Supreme Court. It is fallacious to the utmost to
argue that there is no constitutional right to habeas corpus, when the
Constitution explicitly says the right of habeas corpus may be
suspended only in time of invasion or rebellion. It simply cannot be
contended rationally that there is no constitutional right to habeas
corpus.
I am as concerned as the Senator from South Carolina about protecting
America. I led the fight to reauthorize the PATRIOT Act. But the
question is, is there some reason to hold the detainees? In the case
that went to the District of Columbia Circuit Court of Appeals, you had
the District Court looking at the information--it wasn't evidence--
which was that the detainee had a conversation with an al-Qaida member,
but they could not identify him. The proceeding was a laughingstock.
That is the detainee in the District of Columbia Circuit Court case
which is going to the Supreme Court.
I don't think this Congress ought to wait or punt to the Supreme
Court. We passed a statute which takes away Federal court jurisdiction
to make the simple determination: Is there a reason to hold them? We
ought not to let that stand.
I ask unanimous consent that a letter dated today, received by
Senator Leahy and myself, be printed in the Record. It sets forth
eloquently the reasons why habeas corpus for detainees should be
reinstated by the Congress. It is signed by RADM Don Guter, who was the
Navy's Judge Advocate General; RADM John Hutson, the Navy's Judge
Advocate General at an earlier period; BG David Brahms, who was the
Marine Corps senior legal adviser from 1983 until 1988; and BG James
Cullen, who was the chief judge of the U.S. Army Court of Criminal
Appeals.
There being no objection, the material was ordered to be printed in
the Record, as follows:

March 7, 2007
Hon. Patrick Leahy, Chairman,
Hon. Arlen Specter, Ranking Member,
Senate Committee on the Judiciary, United States Senate
Washington, DC.
Dear Chairman Leahy and Senator Specter: We strongly
support your legislation to restore habeas corpus for
detainees in US custody. We hope that it quickly becomes law.
Known as the ``Great Writ,'' habeas corpus is the legal
proceeding that allows individuals a chance to contest the
legality of their detention. It has a long pedigree in Anglo
Saxon jurisprudence, dating back to 13th Century England when
it established the principle that even Kings are bound by the
rule of law. Our Founding Fathers enshrined the writ in the
Constitution, describing it as one of the essential
components of a free nation.
In discarding habeas corpus, we are jettisoning one of the
core principles of our nation precisely when we should be
showcasing to the world our respect for the rule of law and
basic rights. These are the characteristics that make our
nation great. These are the values our men and women in
uniform are fighting to preserve.
Abiding by these principles is critical to defeating
terrorist enemies. The U.S. Army's Counterinsurgency Manual,
which outlines our strategy against non-traditional foes like
al Qaeda, makes clear that victory depends on building the
support of local populations where our enemies operate
through the legitimate exercise of our power. The Manual
states: ``Respect for preexisting and impersonal legal rules
can provide the key to gaining widespread and enduring
societal support. . . . Illegitimate actions,'' including
``unlawful detention, torture, and punishment without trial .
. . are self-defeating, even against insurgents who conceal
themselves amid non-combatants and flout the law.'' Our
enemies have used our detention of prisoners without trial or
access to courts to undermine the legitimacy of our actions
and to build support for their despicable cause.
It is certainly true that prisoners of war have never been
given access to courts to challenge their detention. But the
United States does have a history of providing access to
courts to those who have not been granted POW status and are
instead being held as unlawful combatants, as are the
detainees in this conflict. See., e.g., Ex Parte Quirin, 317
U.S. 1 (1942) (rejecting the claim that the Court could not
review the habeas claim of enemy aliens held for law of war
violations).
POWs are combatants held according to internationally
prescribed rules, and are released at the end of the war in
which they fought. In a traditional war, it is generally easy
to determine who is a combatant and governed by these special
rules. But the war we are fighting today is different.
Detainees held at Guantanamo Bay were captured in 14
countries around the world, including places as far away from
any traditional battlefield as Thailand, Gambia, and Russia.
Some were sold to the United States by bounty hunters. Our
enemies blend into the civilian population, making the
practice of identifying them more difficult. For all these
reasons, the possibility of making mistakes is much higher
than in a traditional conflict. In such a situation, it is
incumbent on our nation to ensure that there is an
independent review of the decision to detain.
The denial of habeas corpus also threatens to harm our
national interests by placing American civilians at risk.
Imagine if an enemy of the United States arrested an American
citizen--a nurse or interpreter or employee of a military
contractor--because they once provided assistance to our
armed forces, and held that American without charge or
opportunity to challenge their detention in court. We would
be outraged, and rightly so. Yet, this is the precedent we
are setting by holding without charge those deemed to have
aided the enemy and denying them access to a court that could
review the basis of their detention.
A judicial check on the decision to detain is in the best
tradition of the United States--a tradition that ensures
accountability, accuracy, and credibility. Restoring habeas
corpus will help ensure that we are detaining the right
people and showcase to the world our respect for the rule of
law and the values that distinguish America from our enemies.
We hope that Congress will act quickly to pass this
legislation.
Sincerely,
Rear Admiral Don Guter, USN (Ret.)
Rear Admiral John D. Hutson, USN (Ret.)
Brigadier General David M. Brahms, USMC (Ret.)
Brigadier General James P. Cullen, USA (Ret.).

Mr. SPECTER. I yield the floor.
The PRESIDING OFFICER (Mrs. McCaskill). The Senator from New
Hampshire.
Mr. SUNUNU. Madam President, I rise to speak for a few minutes on the
topic that was being covered by Senators Specter, Graham, Lieberman,
and others, and that is the right of detainees--in particular,
detainees at Guantanamo Bay--to petition the court system through what
we refer to as habeas corpus and question the specific details that
have led to their confinement, to their definition or status as an
enemy combatant.
This is an important issue. Naturally people get excited when they
are debating this issue. Senator Graham is no exception. But one thing
that he mentioned I think must be addressed, and that is this is about
letting people out of jail, letting people go free who might attack the
United States at a later date. I feel very strongly that this isn't
about letting people out of jail, and it isn't even necessarily about
letting people object to the conditions of their confinement, because I
believe Congress can and should address the habeas issue without
necessarily allowing any frivolous petition regarding conditions to go
forward. But it is about the rights of these individuals to question
the determination that they are an enemy combatant.
The U.S. military or other forces operating on behalf of our
coalitions overseas have captured and detained individuals and
determined that they are enemy combatants and, therefore, they can be
detained indefinitely on the basis of that determination.
The situations that arose in previous conflicts were also brought up.
What about similar situations in the Second World War, the First World
War, or other engagements of the U.S. military in our past? I rise
today, most importantly, to emphasize that there is a significant
difference between this war and those conflicts. There are differences
in some very important ways that make this right or this ability to
petition against your definition as an enemy combatant very important.
First, this is not a war where we have troops lined up or engaged on
a battlefield in uniform. These are very different combatants, very
different enemies we face, by that definition, not always easily
recognized and sometimes incredibly difficult to recognize

[[Page S2772]]

those who are planning to kill U.S. citizens or our allies around the
world. They are not on a specific battlefield and certainly not in
uniform.
Second, these enemy combatants--and there are many thousands of enemy
combatants the United States faces around the world--could be almost
anywhere in the world. It makes this very different than past
conflicts. They could be here in the United States, they could be in
Pakistan, they could be in Somalia, they could be in Kenya, they could
be in Germany, they could be in Spain, or they could be in the United
Kingdom. As a result, we could have an individual in any one of these
countries captured, detained, and placed into our incarceration in
Guantanamo Bay or another facility and designate them as an enemy
combatant.
That is highly unusual when compared to past conflicts or past
battles and, I think, as a result could naturally cause significant
problems in relations with other military organizations that are
supporting our efforts, other countries' diplomatic affairs, all of
which are important to our success in this effort.
So because these are individuals who could be captured and detained
from anywhere around the world, we have to take extra consideration to
make sure they are dealt with in a straightforward way that respects
principles of due process.
Third, a third important distinction in this conflict is because of
the nature of the conflict, these individuals could be held
indefinitely without any clear prospect of being released through the
processes that would often bring a conclusion to hostilities,
negotiation, a cease-fire, or surrender.
We all recognize this conflict is very different in that regard. When
constituents back home in New Hampshire ask me, When is this struggle
against terrorism going to end? You certainly can't give a definitive
answer in terms of time, but you also are very hard pressed to give a
definitive answer in terms of specific objectives--when we capture this
individual, when we destroy this organization, when we bring stability
to this part of the world that is traditionally encouraged or fermented
jihadists. So we have for these individuals--many of whom are evil
individuals who have plotted and planned against the United States and
our allies around the world--indeterminate, unlimited detention at the
hands of the United States.
Given those differences that set this conflict apart from past
military conflicts in our history, I think it is in keeping with our
standards of due process to ensure that when someone finds themselves
indefinitely held by the United States in this conflict, they can at a
minimum petition, object to their status or the determination of their
status as an enemy combatant, and at least argue on appeal the facts of
the case, make an argument as to why they should not be classified as
an enemy combatant.
Senator Specter and others made the argument when we were considering
the Detainee Treatment Act that this ought to be done in the D.C.
Circuit Court of Appeals. I think the exact time, place, and manner of
this appeal can and should be determined by an act of Congress. But I
think what is most important is that we not simply say because
commanders on the battlefield decided--when I use the word
``battlefield,'' I mean in this modern sense--commanders somewhere in
the field, somewhere around the world, after you were arrested or
detained or captured, decided you were an enemy combatant, that we are
going to let that determination stand without appeal, without
objection, without petition.
At the very least, again, it is consistent with the principles of due
process that are so important to this country that we give that
detainee at least one opportunity to object in a court to the specifics
that led to him being determined an enemy combatant.
This is an important issue, but I think it is not just important
because it affects our security, which we all want to protect to the
greatest extent possible, but because it speaks to our own citizens and
it speaks to people around the world as to what kind of a society we
are and what principles we hold to be dearest.
This is an issue that deserves thorough debate in the Senate. I look
forward to hearing more from both sides and working with Senator
Specter to try to move forward a process that addresses these concerns,
that doesn't necessarily have to grant all rights and all privileges
accorded to every U.S. citizen to those who are determined to be enemy
combatants, but at least gives them the fundamental right to challenge
that determination which could and, in many cases, should lead to their
indefinite incarceration at Guantanamo Bay.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, while the Senator from New Hampshire is
still on the floor, I thank him and commend him for his statement
directly to the issues. He has articulated them very well. It is a
different circumstance and what we are looking at is the issue of
indefinite detention and some process where there has to be some reason
given for the detention. It doesn't haven't to comply with the
technical Rules of Evidence, although the Department of Defense
regulation calls for evidence, and evidence is a work of art
comprehending competency of items to establish a fact. But without
moving into the full range of evidence for some reason to hold them--
and I agree with the Senator from New Hampshire that we are not looking
for a remedy to test living conditions or to test food or test a wide
variety of items that may be comprehended in other habeas corpus
situations, but just detention--that is all--just detention.
I am agreeable to modifying the amendment to specifying just
detention. The Senator from New Hampshire raises a valid point that
there may be other Senators--he estimates as many as 10--who are
inclined to support an amendment which directed itself only at
detention.
There is the right of modification. I am going to talk to more of my
colleagues to see if that would produce a significantly different
result.
I thank the Senator from New Hampshire.
I yield the floor, and in the absence of any Senator seeking
recognition suggest the absence of a quorum.
The PRESIDING OFFICER. Will the Senator withhold his request?
Mr. SPECTER. Yes.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Madam President, I come to the floor this afternoon to
rise in support of the Specter-Leahy amendment, No. 286, which I hope
we will have an opportunity to consider very shortly.
This amendment, which Senator Specter has addressed on the floor
during the course of the day, is long overdue.
Last fall, Congress enacted a deeply flawed law called the Military
Commissions Act. The law gives any President the power to imprison
people indefinitely without charging them with any crime. It takes away
fundamental due process as protected by the Constitutionally-protected
right of habeas corpus. It allows our Government to continue to hold
hundreds of prisoners for years without ever charging them with any
wrongdoing.
I was one of 34 Senators who voted against the creation of this
Military Commissions Act. I hope this year that Congress will begin to
undo the damage to fundamental American values that was done by this
legislation.
The amendment offered by the Senator from Pennsylvania and the
Senator from Vermont, the Specter-Leahy amendment, is an excellent
place to start. This amendment would repeal the provision of the
Military Commissions Act that eliminated habeas corpus for detainees.
Habeas corpus is the legal name for a procedure that allows a
prisoner to challenge their detention in court. It is a basic
protection against unlawful imprisonment. It is one of the bedrock
principles that separates America from many other countries around the
world.
Over 700 lawyers from the Chicago area sent me a letter last year
strongly opposing the elimination of habeas corpus for detainees. Here
is how they explained the importance of this basic fundamental right,
and I quote:

The right of habeas corpus was enshrined in the
Constitution by our Founding Fathers as the means by which
anyone who is detained by the Executive may challenge the

[[Page S2773]]

lawfulness of his detention. It is a vital part of our system
of checks and balances and an important safeguard against
mistakes which can be made even by the best intentioned
government officials.

Why is this administration so interested in protecting itself from
the judicial review of our courts? Because the courts have repeatedly
ruled that the administration's policies have violated the law and our
constitution.
After the September 11 terrorist attacks, the administration
unilaterally created a new detention policy for America. They claimed
the right to seize anyone, including an American citizen in the United
States, and to hold them until the end of the war on terrorism,
whenever that might be.
They claimed that even an American citizen who is detained has no
rights. That means no right to challenge their detention, no right to
see the evidence against them, no right to even know why they are being
held. In fact, an administration lawyer claimed in court that detainees
would have no right to challenge their detention even if they were
being tortured or summarily executed.
Using their new detention policy, the administration has detained
thousands of individuals in secret detention centers around the world.
Only time will lead to the complete disclosure of what they have done.
The most well-known, Guantanamo Bay, is only one of those centers. Many
have been captured in Afghanistan and Iraq, and people who never raised
arms against us have been taken prisoner far from the battlefield, in
places such as Bosnia and Thailand.
Who are the detainees in Guantanamo Bay? Well, back in 2002 then
Defense Secretary Rumsfeld described them, and I use his words, ``the
hardest of the hard core.'' He went on to call them, ``among the most
dangerous, best trained, vicious killers on the face of the earth.''
Those are the words of Secretary Rumsfeld.
Well, I went to Guantanamo last July. There were some 400 detainees
being held. There have been many others who have gone through that
camp. Hundreds of people have been detained at Guantanamo, many for
years, without ever being charged, and then were released.
Imagine, if you will, that you were scooped up by some government
official, transported a thousand miles away to this rock in the middle
of the Caribbean, this high-temperature, high-pressure location, and
then held literally for years without ever being charged with any
wrongdoing.
Every American would agree with what I am about to say. Every
dangerous person should be arrested and detained to protect America
from terrorism. When we have good cause to believe that a person
threatens our country, I believe it is our right, when it comes to our
basic security, to detain that person and to hold that person as long
as they are a threat to our country. In this case, however, hundreds of
individuals were taken from their homes, their businesses, their
families, their countries, and transported to Guantanamo, and held
without charges, sometimes for years, before they were released.
According to media reports, military sources indicate that many of
the detainees had no connection to al-Qaida or the Taliban and were
sent to Guantanamo over the objections of intelligence personnel who
ultimately recommended they be released. It was a mistake. They never
should have been held. They should not have been detained. Years were
taken off their lives, while the image of Guantanamo has been created
across the world.
One military officer said:

We are basically condemning these guys to long-term
imprisonment. If they weren't terrorists before, they
certainly could be now.

That quote comes from one of our military officials.
Based on a review of the Defense Department's own documents, Seton
Hall University Law School reported that only 5 percent, 1 out of 20,
of the detainees at Guantanamo were captured by U.S. forces, while 86
percent were taken into custody by Pakistani or Northern Alliance
forces at a time when the United States was paying huge amounts of
money for the capture of any suspected Arab terrorist.
The Defense Department's own documents revealed that the large
majority of detainees never participated in any combat against the
United States on a battlefield, and only 8 percent, that is fewer than
1 out of 10, of those being detained were even classified as al-Qaida
fighters.
In 2004, in the landmark decision of Rasul v. Bush, the Supreme Court
rejected this administration's indefinite detention policy. The Court
held that detainees at Guantanamo have the right to habeas corpus to
challenge their detentions in Federal court. The Court held that the
detainees' claims that they were detained for over 2 years without any
charge against them and without any access to counsel, and I quote the
Court, ``unquestionably described custody in violation of the
Constitution, or laws or treaties of the United States.''
That is why the amendment being offered by the Senator from
Pennsylvania and the Senator from Vermont is so critically important.
What we have enshrined in the Military Commissions Act is a violation
of the fundamental values of our country.
As I have said before, and will repeat, anyone who is a danger to
this country should be stopped, detained, arrested, and imprisoned, if
necessary, before they harm anyone in our country. Those who are
detained should be detained for cause. There should be a reason. There
should be a charge against them. They should have the most fundamental
access to justice, which we preach around the world; that they can
defend themselves, know what they are being charged with, see the
evidence being used against them, and have the right to counsel so that
they can express their innocence in the most effective way.
How did the administration react to the Supreme Court decision in
2004? Instead of changing its policies to comply with the Constitution,
the law, they came to the Republican-controlled Congress at that time
and demanded that habeas corpus for detainees be eliminated.
This isn't about the rights of suspected terrorists. It is about who
we are as Americans. Eliminating habeas corpus is not true to our
values. Sadly, it creates an image of America that causes problems even
for our troops in the field.
Recently, I went on a trip to South America with Senator Harry Reid,
our majority leader in the Senate, and we talked to leaders in
countries in South America. I can recall one leader saying that he
wanted the United States to remove a base from his country. He said: We
don't want to have another Guantanamo here in our sovereign country.
Guantanamo has become an image which needs to change. Even the
President has called for the closing of Guantanamo. Yet what the
Congress has done is to not only keep Guantanamo in business but to
keep it in business with rules that are inconsistent with our
Constitution and our fundamental values.
Tom Sullivan is a friend of mine and a prominent attorney in Chicago.
He was a former U.S. attorney, a lead prosecutor for our Government in
that area. He served in the Army during the Korean war.
For nothing, on a pro bono basis, Tom Sullivan has taken on cases of
several Guantanamo detainees. He has practiced law for more than 50
years. He believes, even as a former professional prosecutor, that
habeas corpus is a fundamental bedrock of America's legal system
because it represents the only recourse available when the Government
has made a mistake, detained a person and charged them with something
of which they are not guilty.
ADM John Hutson, another man I have come to know and respect, was a
Navy Judge Advocate for 28 years. Last year, he testified in the Senate
Judiciary Committee hearing on the Military Commissions Act. Here is
what Admiral Hutson, former Navy Judge Advocate, had to say about
eliminating habeas corpus, and I quote:

It is inconsistent with our own history and tradition to
take this action. If we diminish or tarnish our values, those
values that the Founders fought for and memorialized in the
Constitution and have been carefully preserved in the blood
and honor of succeeding generations, then we will have lost a
major battle in the war on terror.

Admiral Hutson concluded:

We don't need to do this. America is too strong. Our system
of justice is too sacred to tinker with in this way.

He also testified that eliminating habeas corpus really puts our own
soldiers at risk. Remember, John Hutson

[[Page S2774]]

has given his life to our country's military, and here is what he said:

If we fail to provide a reasonable judicial avenue to
consider detention, other countries will feel justified in
doing exactly the same thing. It is our troops who are in
harm's way and deserve judicial protections. In future wars,
we will want to ensure that our troops or those of our allies
are treated in a manner similar to how we treat our enemies.
We are now setting the standard for that treatment.

I have heard arguments on the Senate floor: Oh, it is going to glut
the courts of America if the 400 detainees at Guantanamo have some
rights, if they have an opportunity to question the charges that have
been brought against them, if they can use habeas corpus. I do not
believe that is true and even if it was it is a small price to pay, a
small price for America to pay to respect the most fundamental right
that we believe to be part of our system of justice.
Will there be abuses? Well, I am sure there will be. There have been
in virtually all the laws we have enacted. But we will be able to say
at the end of the day that even in the midst of a war on terror, even
as we feared what might happen tomorrow in the wake of 9/11, that
America never lost its way in terms of its fundamental values and
principles.
The Military Commissions Act, which passed this Senate, unfortunately
is a step in the wrong direction. I fully support the Specter-Leahy
amendment. We should honor American values and protect our brave men
and women in uniform by restoring the right of habeas corpus, and I
urge my colleagues to support this amendment.
Madam President, I ask unanimous consent that my name be added as a
cosponsor to that amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. I thank the Chair, and I yield the floor.
Mr. SPECTER. Madam President, while the Senator from Illinois is
still on the Senate floor, I want to thank him for those eloquent
remarks going right to the core of the issue, the importance of
protecting America from terrorists and at the same time a balance in
protecting Americans' constitutional rights.
When he refers to Tom Sullivan, the very distinguished Chicago
attorney, I might note that Mr. Sullivan testified at a Judiciary
Committee hearing and brought forth a number of examples, which I put
into the Record earlier today, where it is recited in some detail
people who were detained at Guantanamo for very long periods of time.
One specifically commented about crossed the border, was supposed to
have been associated with someone from al-Qaida, no reason for keeping
him was given, no evidence to that effect, but was kept for 5 years and
then released.
Let me express a concern I have, which I discussed earlier with the
Senator from Illinois, and that is I am concerned that this amendment
will not receive a vote. Last year, the Senate voted on a 51-to-48
vote, to include language in the Military Commissions Act that limited
Federal court habeas jurisdiction. I have suggested that there be a
cloture petition filed on this bill, if we are going to vote on cloture
later this week on the underlying bill, and that would be a case where
we might vote on cloture on this amendment. I would structure it in
that fashion only as a way to get a vote so that people will have to
take a position, and I simply wanted to make reference to that.
Madam President, I yield the floor.

Amendment No. 312

Mr. McCONNELL. Madam President, I offered an amendment on behalf of
Senator Cornyn on Friday, and I now ask for the regular order with
respect to amendment No. 312.
The PRESIDING OFFICER. The amendment is now pending.

Amendment No. 312, as Modified

Mr. McCONNELL. I send a modification to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The amendment, as modified, is as follows:
On page 389, after line 13, add the following:

SEC. 15__. TERRORISM OFFENSES; VISA REVOCATIONS; DETENTION OF
ALIENS.

(a) Recruitment of Persons to Participate in Terrorism.--
(1) In general.--Chapter 113B of title 18, United States
Code, is amended by inserting after section 2332b the
following:

``Sec. 2332c. Recruitment of persons to participate in
terrorism.

``(a) Offenses.--
``(1) In general.--It shall be unlawful to employ, solicit,
induce, command, or cause another person to commit an act of
domestic terrorism or international terrorism or a Federal
crime of terrorism, with the intent that the person commit
such act or crime of terrorism
``(2) Attempt and conspiracy.--It shall be unlawful to
attempt or conspire to commit an offense under paragraph (1).
``(b) Penalties.--Any person who violates subsection (a)--
``(1) in the case of an attempt or conspiracy, shall be
fined under this title, imprisoned not more than 10 years, or
both;
``(2) if death of an individual results, shall be fined
under this title, punished by death or imprisoned for any
term of years or for life, or both;
``(3) if serious bodily injury to any individual results,
shall be fined under this title, imprisoned not less than 10
years nor more than 25 years, or both; and
``(4) in any other case, shall be fined under this title,
imprisoned not more than 10 years, or both.
``(c) Rule of Construction.--Nothing in this section shall
be construed or applied so as to abridge the exercise of
rights guaranteed under the first amendment to the
Constitution of the United States.
``(d) Lack of Consummated Terrorist Act Not a Defense.--It
is not a defense under this section that the act of domestic
terrorism or international terrorism or Federal crime of
terrorism that is the object of the employment, solicitation,
inducement, commanding, or causing has not been done.
``(e) Definitions.--In this section--
``(1) the term `Federal crime of terrorism' has the meaning
given that term in section 2332b of this title; and
``(2) the term `serious bodily injury' has the meaning
given that term in section 1365 of this title.''.
(2) Technical and conforming amendments.--The table of
sections at the beginning of chapter 113B of title 18, United
States Code, is amended by inserting after section 2332b the
following:

``2332c. Recruitment of persons to participate in terrorism.''.

(b) Judicial Review of Visa Revocation.--
(1) In general.--Section 221(i) of the Immigration and
Nationality Act (8 U.S.C. 1201(i)) is amended by striking
``There shall be no means of judicial review'' and all that
follows and inserting the following: ``Notwithstanding any
other provision of law, including section 2241 of title 28,
United States Code, or any other habeas corpus provision, and
sections 1361 and 1651 of such title, a revocation under this
subsection may not be reviewed by any court, and no court
shall have jurisdiction to hear any claim arising from, or
any challenge to, such a revocation.''.
(2) Effective date.--The amendment made by paragraph (1)
shall take effect on the date of enactment of this Act and
shall apply to visas issued before, on, or after such date.
(c) Detention of Aliens.--
(1) Detention of deportable aliens to protect public
safety.--
(A) In general.--Section 241(a) of the Immigration and
Nationality Act (8 U.S.C. 1231(a)) is amended--
(i) by striking ``Attorney General'' each place it appears,
except for the first reference in paragraph (4)(B)(i), and
inserting ``Secretary of Homeland Security'';
(ii) in paragraph (1)--

(I) by amending clause (ii) of subparagraph (B) to read as
follows:

``(ii) If a court, the Board of Immigration Appeals, or an
immigration judge orders a stay of the removal of the alien,
the date the stay of removal is no longer in effect.'';

(II) by adding at the end of subparagraph (B), the
following flush text:

``If, at that time, the alien is not in the custody of the
Secretary of Homeland Security (under the authority of this
Act), the Secretary shall take the alien into custody for
removal, and the removal period shall not begin until the
alien is taken into such custody. If the Secretary transfers
custody of the alien during the removal period pursuant to
law to another Federal agency or a State or local government
agency in connection with the official duties of such agency,
the removal period shall be tolled, and shall begin anew on
the date of the alien's return to the custody of the
Secretary subject to clause (ii).''; and

(III) by amending subparagraph (C) to read as follows:

``(C) Suspension of period.--The removal period shall be
extended beyond a period of 90 days and the alien may remain
in detention during such extended period if the alien fails
or refuses to make all reasonable efforts to comply with the
removal order, or to fully cooperate with the Secretary's
efforts to establish the alien's identity and carry out the
removal order, including making timely application in good
faith for travel or other documents necessary to the alien's
departure, or conspires or acts to prevent the alien's
removal subject to an order of removal.'';
(iii) in paragraph (2), by adding at the end the following
new sentence: ``If a court, the Board of Immigration Appeals,
or an immigration judge orders a stay of removal of an alien
who is subject to an administratively final order of removal,
the Secretary of Homeland Security in the exercise of
discretion may detain the alien during the pendency of such
stay of removal.'';

[[Page S2775]]

(iv) in paragraph (3), by amending subparagraph (D) to read
as follows:
``(D) to obey reasonable restrictions on the alien's
conduct or activities, or to perform affirmative acts, that
the Secretary of Homeland Security prescribes for the alien,
in order to prevent the alien from absconding, for the
protection of the community, or for other purposes related to
the enforcement of the immigration laws.'';
(v) in paragraph (6), by striking ``removal period and, if
released,'' and inserting ``removal period, in the discretion
of the Secretary of Homeland Security, without any
limitations other than those specified in this section, until
the alien is removed. If an alien is released, the alien'';
and
(vi) by redesignating paragraph (7) as paragraph (10) and
inserting after paragraph (6) the following new paragraphs:
``(7) Parole.--If an alien detained pursuant to paragraph
(6) is an applicant for admission, the Secretary of Homeland
Security, in the Secretary's discretion, may parole the alien
under section 212(d)(5) and may provide, notwithstanding
section 212(d)(5), that the alien shall not be returned to
custody unless either the alien violates the conditions of
his parole or his removal becomes reasonably foreseeable,
provided that in no circumstance shall such alien be
considered admitted.
``(8) Additional rules for detention or release of certain
aliens who have made an entry.--The following procedures
apply only with respect to an alien who has effected an entry
into the United States. These procedures do not apply to any
other alien detained pursuant to paragraph (6).
``(A) Establishment of a detention review process for
aliens who fully cooperate with removal.--For an alien who
has made all reasonable efforts to comply with a removal
order and to cooperate fully with the Secretary of Homeland
Security's efforts to establish the alien's identity and
carry out the removal order, including making timely
application in good faith for travel or other documents
necessary to the alien's departure, and has not conspired or
acted to prevent removal, the Secretary of Homeland Security
shall establish an administrative review process to determine
whether the alien should be detained or released on
conditions. The Secretary shall make a determination whether
to release an alien after the removal period in accordance
with paragraph (1)(B). The determination shall include
consideration of any evidence submitted by the alien, and may
include consideration of any other evidence, including any
information or assistance provided by the Department of State
or other Federal agency and any other information available
to the Secretary pertaining to the ability to remove the
alien.
``(B) Authority to detain beyond the removal period.--
``(i) In general.--The Secretary of Homeland Security, in
the exercise of discretion, without any limitations other
than those specified in this section, may continue to detain
an alien for 90 days beyond the removal period (including any
extension of the removal period as provided in subsection
(a)(1)(C)).
``(ii) Length of detention.--The Secretary, in the exercise
of discretion, without any limitations other than those
specified in this section, may continue to detain an alien
beyond the 90 days, as authorized in clause (i)--

``(I) until the alien is removed, if the Secretary
determines that there is a significant likelihood that the
alien--

``(aa) will be removed in the reasonably foreseeable
future; or
``(bb) would be removed in the reasonably foreseeable
future, or would have been removed, but for the alien's
failure or refusal to make all reasonable efforts to comply
with the removal order, or to cooperate fully with the
Secretary's efforts to establish the alien's identity and
carry out the removal order, including making timely
application in good faith for travel or other documents
necessary to the alien's departure, or conspiracies or acts
to prevent removal;

``(II) until the alien is removed, if the Secretary
certifies in writing--

``(aa) in consultation with the Secretary of Health and
Human Services, that the alien has a highly contagious
disease that poses a threat to public safety;
``(bb) after receipt of a written recommendation from the
Secretary of State, that release of the alien is likely to
have serious adverse foreign policy consequences for the
United States;
``(cc) based on information available to the Secretary of
Homeland Security (including classified, sensitive, or
national security information, and without regard to the
grounds upon which the alien was ordered removed), that there
is reason to believe that the release of the alien would
threaten the national security of the United States; or
``(dd) that the release of the alien will threaten the
safety of the community or any person, conditions of release
cannot reasonably be expected to ensure the safety of the
community or any person, and either--
``(AA) the alien has been convicted of one or more
aggravated felonies as defined in section 101(a)(43)(A), one
or more crimes identified by the Secretary of Homeland
Security by regulation, or one or more attempts or
conspiracies to commit any such aggravated felonies or such
identified crimes, provided that the aggregate term of
imprisonment for such attempts or conspiracies is at least 5
years; or
``(BB) the alien has committed one or more crimes of
violence (as defined in section 16 of title 18, United States
Code, but not including a purely political offense) and,
because of a mental condition or personality disorder and
behavior associated with that condition or disorder, the
alien is likely to engage in acts of violence in the future;
or
``(ee) that the release of the alien will threaten the
safety of the community or any person, conditions of release
cannot reasonably be expected to ensure the safety of the
community or any person, and the alien has been convicted of
at least one aggravated felony as defined in section
101(a)(43); and

``(III) pending a determination under subclause (II), so
long as the Secretary has initiated the administrative review
process not later than 30 days after the expiration of the
removal period (including any extension of the removal period
as provided in subsection (a)(1)(C)).

``(C) Renewal and delegation of certification.--
``(i) Renewal.--The Secretary of Homeland Security may
renew a certification under subparagraph (B)(ii)(II) every 6
months without limitation, after providing an opportunity for
the alien to request reconsideration of the certification and
to submit documents or other evidence in support of that
request. If the Secretary does not renew a certification, the
Secretary may not continue to detain the alien under
subparagraph (B)(ii)(II).
``(ii) Delegation.--Notwithstanding section 103 of this
Act, the Secretary of Homeland Security may not delegate the
authority to make or renew a certification described in item
(bb), (cc), or (ee) of subparagraph (B)(ii)(II) to an
official below the level of the Assistant Secretary for
Immigration and Customs Enforcement.
``(iii) Hearing.--The Secretary of Homeland Security may
request that the Attorney General or his designee provide for
a hearing to make the determination described in clause
(dd)(BB) of subparagraph (B)(ii)(II).
``(D) Release on conditions.--If it is determined that an
alien should be released from detention, the Secretary of
Homeland Security, in the exercise of discretion, may impose
conditions on release as provided in paragraph (3).
``(E) Redetention.--The Secretary of Homeland Security, in
the exercise of discretion, without any limitations other
than those specified in this section, may again detain any
alien subject to a final removal order who is released from
custody if the alien fails to comply with the conditions of
release or to continue to satisfy the conditions described in
subparagraph (A), or if, upon reconsideration, the Secretary
determines that the alien can be detained under subparagraph
(B). Paragraphs (6) through (8) shall apply to any alien
returned to custody pursuant to this subparagraph, as if the
removal period terminated on the day of the redetention.
``(F) Certain aliens who effected entry.--If an alien has
effected an entry but has neither been lawfully admitted nor
physically present in the United States continuously for the
2-year period immediately prior to the commencement of
removal proceedings under this Act or deportation proceedings
against the alien, the Secretary of Homeland Security in the
exercise of discretion may decide not to apply paragraph (8)
and detain the alien without any limitations except those
which the Secretary shall adopt by regulation.
``(9) Judicial review.--Without regard to the place of
confinement, judicial review of any action or decision
pursuant to paragraph (6), (7), or (8) shall be available
exclusively in habeas corpus proceedings instituted in the
United States District Court for the District of Columbia,
and only if the alien has exhausted all administrative
remedies (statutory and regulatory) available to the alien as
of right.''.
(B) Detention of aliens during removal proceedings.--
(i) In general.--Section 235 of the Immigration and
Nationality Act (8 U.S.C. 1225) is amended by adding at the
end the following new subsections:
``(e) Length of Detention.--
``(1) In general.--With regard to the length of detention,
an alien may be detained under this section, without
limitation, until the alien is subject to an administratively
final order of removal.
``(2) Effect on detention under section 241.--The length of
detention under this section shall not affect the validity of
any detention under section 241 of this Act.
``(f) Judicial Review.--Without regard to the place of
confinement, judicial review of any action or decision made
pursuant to subsection (e) shall be available exclusively in
a habeas corpus proceeding instituted in the United States
District Court for the District of Columbia and only if the
alien has exhausted all administrative remedies (statutory
and nonstatutory) available to the alien as of right.''.
(ii) Conforming amendments.--Section 236 of the Immigration
and Nationality Act (8 U.S.C. 1226) is amended--

(I) by inserting at the end of subsection (e) the
following: ``Without regard to the place of confinement,
judicial review of any action or decision made pursuant to
section 235(f) shall be available exclusively in a habeas
corpus proceeding instituted in the United States District
Court for the District of Columbia, and only if the alien has
exhausted all administrative remedies (statutory and

[[Page S2776]]

nonstatutory) available to the alien as of right.''; and
(II) by adding at the end the following new subsection:

``(f) Length of Detention.--
``(1) In general.--With regard to the length of detention,
an alien may be detained under this section, without
limitation, until the alien is subject to an administratively
final order of removal.
``(2) Effect on detention under section 241.--The length of
detention under this section shall not affect the validity of
any detention under section 241 of this Act.''.
(C) Severability.--If any of the provisions of this
paragraph or any amendment by this paragraph, or the
application of any such provision to any person or
circumstance, is held to be invalid for any reason, the
remainder of this paragraph and of amendments made by this
paragraph, and the application of the provisions and of the
amendments made by this paragraph to any other person or
circumstance shall not be affected by such holding.
(D) Effective dates.--
(i) Amendments made by subparagraph (A).--The amendments
made by subparagraph (A) shall take effect on the date of
enactment of this Act, and section 241 of the Immigration and
Nationality Act, as amended, shall apply to--

(I) all aliens subject to a final administrative removal,
deportation, or exclusion order that was issued before, on,
or after the date of enactment of this Act; and
(II) acts and conditions occurring or existing before, on,
or after the date of enactment of this Act.

(ii) Amendments made by subparagraph (B).--The amendments
made by subparagraph (B) shall take effect on the date of
enactment of this Act, and sections 235 and 236 of the
Immigration and Nationality Act, as amended, shall apply to
any alien in detention under provisions of such sections on
or after the date of enactment of this Act.
(2) Criminal detention of aliens to protect public
safety.--
(A) In general.--Section 3142(e) of title 18, United States
Code, is amended to read as follows:
``(e) Detention.--If, after a hearing pursuant to the
provisions of subsection (f), the judicial officer finds that
no condition or combination of conditions will reasonably
assure the appearance of the person as required and the
safety of any other person and the community, such judicial
officer shall order the detention of the person before trial.
``(1) Presumption arising from offenses described in
subsection (f)(1).--In a case described in subsection (f)(1)
of this section, a rebuttable presumption arises that no
condition or combination of conditions will reasonably assure
the safety of any other person and the community if such
judicial officer finds that--
``(A) the person has been convicted of a Federal offense
that is described in subsection (f)(1), or of a State or
local offense that would have been an offense described in
subsection (f)(1) if a circumstance giving rise to Federal
jurisdiction had existed;
``(B) the offense described in subparagraph (A) was
committed while the person was on release pending trial for a
Federal, State, or local offense; and
``(C) a period of not more than 5 years has elapsed since
the date of conviction or the release of the person from
imprisonment, for the offense described in subparagraph (A),
whichever is later.
``(2) Presumption arising from other offenses involving
illegal substances, firearms, violence, or minors.--Subject
to rebuttal by the person, it shall be presumed that no
condition or combination of conditions will reasonably assure
the appearance of the person as required and the safety of
the community if the judicial officer finds that there is
probable cause to believe that the person committed an
offense for which a maximum term of imprisonment of 10 years
or more is prescribed in the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title
46, an offense under section 924(c), 956(a), or 2332b of this
title, or an offense listed in section 2332b(g)(5)(B) of this
title for which a maximum term of imprisonment of 10 years or
more is prescribed, or an offense involving a minor victim
under section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251,
2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1),
2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422,
2423, or 2425 of this title.
``(3) Presumption arising from offenses relating to
immigration law.--Subject to rebuttal by the person, it shall
be presumed that no condition or combination of conditions
will reasonably assure the appearance of the person as
required if the judicial officer finds that there is probable
cause to believe that the person is an alien and that the
person--
``(A) has no lawful immigration status in the United
States;
``(B) is the subject of a final order of removal; or
``(C) has committed a felony offense under section
842(i)(5), 911, 922(g)(5), 1015, 1028, 1028A, 1425, or 1426
of this title, or any section of chapters 75 and 77 of this
title, or section 243, 274, 275, 276, 277, or 278 of the
Immigration and Nationality Act (8 U.S.C. 1253, 1324, 1325,
1326, 1327, and 1328).''.
(B) Immigration status as factor in determining conditions
of release.--Section 3142(g)(3) of title 18, United States
Code, is amended--
(i) in subparagraph (A), by striking ``and'' at the end;
and
(ii) by adding at the end the following new subparagraph:
``(C) the person's immigration status; and''.
(d) Prevention and Deterrence of Terrorist Suicide Bombings
and Terrorist Murders, Kidnapping, and Sexual Assaults.--
(1) Offense of rewarding or facilitating international
terrorist acts.--
(A) In general.--Chapter 113B of title 18, United States
Code, is amended by adding at the end the following:

``Sec. 2339E. Providing material support to international
terrorism

``(a) Definitions.--In this section:
``(1) The term `facility of interstate or foreign commerce'
has the same meaning as in section 1958(b)(2).
``(2) The term `international terrorism' has the same
meaning as in section 2331.
``(3) The term `material support or resources' has the same
meaning as in section 2339A(b).
``(4) The term `perpetrator of an act' includes any person
who--
``(A) commits the act;
``(B) aids, abets, counsels, commands, induces, or procures
its commission; or
``(C) attempts, plots, or conspires to commit the act.
``(5) The term `serious bodily injury' has the same meaning
as in section 1365.
``(b) Prohibition.--Whoever, in a circumstance described in
subsection (c), provides, or attempts or conspires to
provide, material support or resources to the perpetrator of
an act of international terrorism, or to a family member or
other person associated with such perpetrator, with the
intent to facilitate, reward, or encourage that act or other
acts of international terrorism, shall be fined under this
title, imprisoned not more than 25 years, or both, and, if
death results, shall be imprisoned for any term of years or
for life.
``(c) Jurisdictional Bases.--A circumstance referred to in
subsection (b) is that--
``(1) the offense occurs in or affects interstate or
foreign commerce;
``(2) the offense involves the use of the mails or a
facility of interstate or foreign commerce;
``(3) an offender intends to facilitate, reward, or
encourage an act of international terrorism that affects
interstate or foreign commerce or would have affected
interstate or foreign commerce had it been consummated;
``(4) an offender intends to facilitate, reward, or
encourage an act of international terrorism that violates the
criminal laws of the United States;
``(5) an offender intends to facilitate, reward, or
encourage an act of international terrorism that is designed
to influence the policy or affect the conduct of the United
States Government;
``(6) an offender intends to facilitate, reward, or
encourage an act of international terrorism that occurs in
part within the United States and is designed to influence
the policy or affect the conduct of a foreign government;
``(7) an offender intends to facilitate, reward, or
encourage an act of international terrorism that causes or is
designed to cause death or serious bodily injury to a
national of the United States while that national is outside
the United States, or substantial damage to the property of a
legal entity organized under the laws of the United States
(including any of its States, districts, commonwealths,
territories, or possessions) while that property is outside
of the United States;
``(8) the offense occurs in whole or in part within the
United States, and an offender intends to facilitate, reward
or encourage an act of international terrorism that is
designed to influence the policy or affect the conduct of a
foreign government; or
``(9) the offense occurs in whole or in part outside of the
United States, and an offender is a national of the United
States, a stateless person whose habitual residence is in the
United States, or a legal entity organized under the laws of
the United States (including any of its States, districts,
commonwealths, territories, or possessions).''.
(B) Technical and conforming amendments.--
(i) Table of sections.--The table of sections at the
beginning of chapter 113B of title 18, United States Code, is
amended by adding at the end the following:

``2339D. Receiving military-type training from a foreign terrorist
organization.
``2339E. Providing material support to international terrorism.''.

(ii) Other amendment.--Section 2332b(g)(5)(B)(i) of title
18, United States Code, is amended by inserting ``2339E
(relating to providing material support to international
terrorism),'' before ``or 2340A (relating to torture)''.
(2) Increased penalties for providing material support to
terrorists.--
(A) Providing material support to designated foreign
terrorist organizations.--Section 2339B(a) of title 18,
United States Code, is amended by striking ``15 years'' and
inserting ``25 years''.
(B) Providing material support or resources in aid of a
terrorist crime.--Section 2339A(a) of title 18, United States
Code,

[[Page S2777]]

is amended by striking ``15 years'' and inserting ``40
years''.
(C) Receiving military-type training from a foreign
terrorist organization.--Section 2339D(a) of title 18, United
States Code, is amended by striking ``ten years'' and
inserting ``15 years''.
(D) Addition of attempts and conspiracies to an offense
relating to military training.--Section 2339D(a) of title 18,
United States Code, is amended by inserting ``, or attempts
or conspires to receive,'' after ``receives''.
(3) Denial of federal benefits to convicted terrorists.--
(A) In general.--Chapter 113B of title 18, United States
Code, as amended by this subsection, is amended by adding at
the end the following:

``Sec. 2339F. Denial of Federal benefits to terrorists

``(a) In General.--Any individual who is convicted of a
Federal crime of terrorism (as defined in section 2332b(g))
shall, as provided by the court on motion of the Government,
be ineligible for any or all Federal benefits for any term of
years or for life.
``(b) Federal Benefit Defined.--In this section, `Federal
benefit' has the meaning given that term in section 421(d) of
the Controlled Substances Act (21 U.S.C. 862(d)).''.
(B) Technical and conforming amendment.--The table of
sections at the beginning of chapter 113B of title 18, United
States Code, as amended by this subsection, is amended by
adding at the end the following:

``2339F. Denial of Federal benefits to terrorists.''.
(4) Addition of attempts or conspiracies to offense of
terrorist murder.--Section 2332(a) of title 18, United States
Code, is amended--
(A) by inserting ``, or attempts or conspires to kill,''
after ``Whoever kills''; and
(B) in paragraph (2), by striking ``ten years'' and
inserting ``30 years''.
(5) Addition of offense of terrorist kidnapping.--Section
2332(b) of title 18, United States Code, is amended to read
as follows:
``(b) Kidnapping.--Whoever outside the United States
unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away, or attempts or conspires to seize,
confine, inveigle, decoy, kidnap, abduct or carry away, a
national of the United States, shall be fined under this
title, imprisoned for any term of years or for life, or
both.''.
(6) Addition of sexual assault to definition of offense of
terrorist assault.--Section 2332(c) of title 18, United
States Code, is amended--
(A) in paragraph (1), by inserting ``(as defined in section
1365, including any conduct that, if the conduct occurred in
the special maritime and territorial jurisdiction of the
United States, would violate section 2241 or 2242)'' after
``injury'';
(B) in paragraph (2), by inserting ``(as defined in section
1365, including any conduct that, if the conduct occurred in
the special maritime and territorial jurisdiction of the
United States, would violate section 2241 or 2242)'' after
``injury''; and
(C) in the matter following paragraph (2), by striking
``ten years'' and inserting ``40 years''.
(e) Improvements to the Terrorist Hoax Statute.--
(1) Hoax statute.--Section 1038 of title 18, United States
Code, is amended--
(A) in subsection (a)--
(i) in paragraph (1), after ``title 49,'' by inserting ``or
any other offense listed under section 2332b(g)(5)(B) of this
title,''; and
(ii) in paragraph (2)--

(I) in subparagraph (A), by striking ``5 years'' and
inserting ``10 years''; and
(II) in subparagraph (B), by striking ``20 years'' and
inserting ``25 years''; and

(B) by amending subsection (b) to read as follows:
``(b) Civil Action.--
``(1) In general.--Whoever engages in any conduct with
intent to convey false or misleading information under
circumstances where such information may reasonably be
believed and where such information indicates that an
activity has taken, is taking, or will take place that would
constitute an offense listed under subsection (a)(1) is
liable in a civil action to any party incurring expenses
incident to any emergency or investigative response to that
conduct, for those expenses.
``(2) Effect of conduct.--
``(A) In general.--A person described in subparagraph (B)
is liable in a civil action to any party described in
subparagraph (B)(ii) for any expenses that are incurred by
that party--
``(i) incident to any emergency or investigative response
to any conduct described in subparagraph (B)(i); and
``(ii) after the person that engaged in that conduct should
have informed that party of the actual nature of the
activity.
``(B) Applicability.--A person described in this
subparagraph is any person that--
``(i) engages in any conduct that has the effect of
conveying false or misleading information under circumstances
where such information may reasonably be believed and where
such information indicates that an activity has taken, is
taking, or will take place that would constitute an offense
listed under subsection (a)(1);
``(ii) receives notice that another party believes that the
information indicates that such an activity has taken, is
taking, or will take place; and
``(iii) after receiving such notice, fails to promptly and
reasonably inform any party described in subparagraph (B) of
the actual nature of the activity.''.
(2) Threatening communications.--
(A) Mailed within the united states.--Section 876 of title
18, United States Code, is amended by adding at the end
thereof the following new subsection:
``(e) For purposes of this section, the term `addressed to
any other person' includes an individual (other than the
sender), a corporation or other legal person, and a
government or agency or component thereof.''.
(B) Mailed to a foreign country.--Section 877 of title 18,
United States Code, is amended by adding at the end thereof
the following new paragraph:
``For purposes of this section, the term `addressed to any
person' includes an individual, a corporation or other legal
person, and a government or agency or component thereof.''.

Cloture Motion

Mr. McCONNELL. Madam President, this modification is a series of
revisions relating to terrorism, and in a moment I will describe those
provisions. The majority leader has indicated that he will file a
cloture motion tonight in order to bring the bill to a close because we
have been unable to get an agreement to vote on several of these
terrorist-related amendments. I am prepared to file a cloture motion on
this amendment and, therefore, 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 pending
amendment No. 312, as modified, to amendment No. 275 to
Calendar No. 57, S. 4, a bill to make the United States more
secure by implementing unfinished recommendations of the 9/11
Commission to fight the war on terror more effectively, to
improve homeland security, and for other purposes.
John Cornyn, Jon Kyl, Mike Crapo, John Ensign, Saxby
Chambliss, Judd Gregg, Richard Burr, Jim Bunning, Sam
Brownback, Mitch McConnell, Craig Thomas, Tom Coburn,
Wayne Allard, Jim DeMint, John Thune, Pat Roberts,
Lindsey Graham.

Mr. McCONNELL. Madam President, just by way of explanation, this
modified amendment aims to improve our national security in five areas.
For the first time, it will make it a crime to recruit people to commit
terrorist acts on American soil. For the first time, it would allow for
the immediate deportation of suspected terrorists whose visas have been
revoked for terrorism-related activities. For the first time, it would
prevent the release of dangerous illegal immigrants whose home
countries actually don't want them back. For the first time, it would
make it a crime to reward the families of suicide bombers, and it would
increase the penalty for those who torment the families of our service
men and women by calling their families and falsely claiming that their
loved ones have been killed in the field of battle. It contains five
provisions that would make our homeland more secure by penalizing
recruiters, deporting terrorist suspects, keeping dangerous criminals
behind bars, and protecting the families of our troops.
Voting on this amendment will not slow down the bill. We are not
interested in doing that. We will gladly agree to vitiate cloture in
exchange for a unanimous consent vote on this amendment or, if cloture
is invoked, we will agree to yield back the 30 hours of postcloture
time in order to move ahead.
The war against terrorism requires that we adapt our methods to
emerging threats, and that is precisely what these new and vital
provisions would allow us to do.
Let me conclude by saying we believe these amendments are definitely
related to the bill. We had hoped to be able to get an agreement to
have this amendment considered. So far, that has not occurred, but we
want to reiterate we have no desire to slow down the passage of the
bill. That is why I felt compelled to file cloture at this time.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. Madam President, I am very sympathetic to the concerns
of the Republican leader about trying to move forward with some votes.
I do wish he had discussed his approach with the managers of this bill
since he

[[Page S2778]]

has taken us completely by surprise on the Senate floor, but I think he
has raised an important issue, that our Members deserve to have votes
on the important issues that are before us. If we are going to complete
action on this bill by the end of the week, we need to start voting. We
need to start disposing of these amendments, whether they are adopted
or rejected or withdrawn. So I am sympathetic to the frustration of the
Republican leader over this matter. We do need to move forward and have
votes.
I do wish he had discussed his intentions with the managers of the
bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Madam President, I appreciate the comments of the Senator
from Maine, the distinguished ranking member of the Homeland Security
and Governmental Affairs Committee. In response, I would point out that
these amendments, which are now consolidated in this modification,
actually have been pending now for some time but we have been
unsuccessful in persuading the majority to give us an opportunity for
an up-or-down vote on them.
The bill we are debating is entitled ``A Bill to Make the United
States More Secure By Implementing Unfinished Recommendations of the 9/
11 Commission to Fight the War on Terror More Effectively, to Improve
Homeland Security, and for other purposes.'' I can't think of any
amendment that would be more appropriate to accomplishing the stated
goal of this particular legislation than the one I have pending now.
The distinguished Republican leader has summarized, I think very
well, what is contained in this modification. But just so none of my
colleagues are confused, these are not new matters. This modification
simply represents a consolidation of several amendments that are
pending on the floor and have been pending for some time, but which
have been refused an opportunity to have a full and fair debate
followed by an up-or-down vote by the majority.
We all know it has been more than 5 years since September 11. And,
there remains some unfinished business that needs to be addressed by
this legislation, and my amendment will do just that.
One of the things left to do is to target terrorist recruiting. The
FBI and other agencies have made it clear that al-Qaida and other
terrorist organizations are intent on attacking our country again and
are busy recruiting those who wish to join them. We know al-Qaida is a
patient enemy, waiting years to attack--sometimes embedding into
society and appearing to be a part of the regular population until, but
at a time of their choosing, rising out of their sleeper cells to
attack innocent civilians to accomplish their goals.

According to congressional testimony, terrorists and terrorist
sympathizers are actively in the process of recruiting terrorists
within the United States. So we are not just talking about a wholly
foreign enemy that would attack us from abroad; we are talking about
people being recruited to carry out terrorist attacks here in the
United States. Of course their goal is to find individuals who do not
fit the traditional terrorist model, who can operate freely in our
country, and who are willing to engage in these heinous acts.
Recruiting these type of individuals, those who blend easily into our
society, provides al-Qaida an operational advantage.
This is not an academic discussion. Let me just use one example to
demonstrate this reality. Intelligence materials related to Khalid
Shaikh Mohammed, the so-called mastermind of the 9/11 plot, show that
he was running terrorist cells within the United States. These
documents show that al-Qaida's goal was to recruit U.S. citizens and
other westerners so they could move freely within our country, so they
would be unlikely to be identified and stopped at our border's edge or
in our airports or land-based ports before they carry out their
attacks. These terrorist recruiters have targeted mosques, prisons, and
universities throughout the United States where they could identify and
recruit people who might be sympathetic to their jihadist message and
then persuade these individuals to join their organization.
Unbelievably, we currently have no statute in place that is designed
to punish those who recruit people to commit terrorist acts. This
amendment includes a provision that would remedy this serious gap in
our law. It simply provides that it is against the law to recruit or,
in the words of the amendment, ``to employ, solicit, induce, command or
cause'' any person to commit an act of domestic terrorism,
international terrorism, or a Federal crime of terrorism, and any
person convicted of this would face serious punishment.
This amendment also provides that anyone committing this crime should
be punished for up to 10 years in the Federal penitentiary. If a death
results in connection with this crime, he or she can be punished by
death or a term of years or for life; if serious bodily injury to any
individual results, then a punishment of no less than 10 years or more
than 25 years is available to the judge.
This is a commonsense measure, designed to fill a serious gap in our
Criminal Code that, frankly, should not continue to exist more than 5
years after September 11. This fits exactly with the stated purpose of
this legislation, and I hope our colleagues will vote in favor of this
amendment.
Two other provisions in this amendment that again represent
amendments that have been previously filed and are pending but which I
have now included in this consolidated amendment. One includes a remedy
to a problem created by a Supreme Court decision in 2001, the Zadvydas
case, which held that dangerous criminal aliens must be released after
an expiration of 6 months if there is no likelihood that their home
country would take them back in the near future, even if their home
country will not take them. This means that they have to be released
into the general population of the United States, free to re-commit
serious crimes.
In other words, what the Supreme Court said is that Congress had not
specifically authorized the Department of Homeland Security to hold
dangerous criminal aliens whose home country will not take them back
for longer than 6 months pending their deportation or repatriation to
their home country. This amendment remedies that decision. In fact, the
Supreme Court invited the Congress to revisit this decision, since it
is purely a statutory holding.
Specifically, this amendment would allow DHS to protect the American
people from dangerous criminal aliens until their removal proceedings
are completed. It allows the Department of Homeland Security to detain
criminal aliens after a final order of removal and beyond the 90-day
removal period if removal is likely to occur in the foreseeable future
or for national security and public safety grounds. It preserves the
right of the alien to seek review of continued detention through habeas
proceedings after exhaustion of administrative remedies. And to be
clear, my amendment does preserve the right of the affected alien to
seek administrative and judicial review of these decisions. But, the
amendment makes clear that it is intended to fill an important gap by
authorizing DHS to protect the American people from the willy-nilly
release of dangerous criminal aliens after 6 months. This situation has
occurred and will continue to occur and it is important for Congress to
step up and to fix this problem created by the interpretation of this
statute in 2001 by the U.S. Supreme Court.
The last element of this consolidated amendment that I want to
mention has to do with material support for suicide bombers and other
terrorists. We hear too often the difficulty in identifying and
stopping suicide bombers before they can carry out their deadly
attacks. One incentive to those who decide to carry out these attacks
is financial rewards promised to the families of suicide bombers who
are assured that their families will be paid and cared for after they
commit their heinous acts. This provision would ban the payment of
financial rewards or other material support to the families of suicide
bombers such as Assad, a known terrorist who has enticed people to
engage in these attacks, with a promise to pay their families up to
$25,000, if my memory serves me correctly, as a reward. This provision
would ban the

[[Page S2779]]

payment of these types of financial rewards and dry up a real incentive
used to induce or facilitate carrying out of a terrorist attack and
send to prison those who do so.
I would add that this amendment also increases the punishments for
those convicted of providing material support. The Department of
Justice has told us that the material support statute is one of the
most important anti-terror tools in their tool box, and it is only
right and appropriate that we use this opportunity to strengthen the 9/
11 bill with this important improvement to such an effective statute.
In conclusion, this amendment provides real anti-terror and anti-
crime tools to the 9/11 bill and will ensure, as the preface of this
bill states, that it will finish the unfinished business of the 9/11
Commission and of the Nation, making us more secure, 5 years-plus since
the dastardly attacks of 9/11.
I yield the floor.

Change of Vote

Mr. COBURN. Mr. President, on rollcall vote 62, I voted ``yea'', it
was my intention to vote ``nay''. I ask unanimous consent that I be
permitted to change my vote since it will not affect the outcome.
The PRESIDING OFFICER (Mr. Obama). Without objection, it is so
ordered.

Amendment No. 345

Mr. INOUYE. Mr. President, I rise in opposition to amendment No. 345,
which was submitted by Senator Coburn of Oklahoma. This amendment
diverts funds that Congress has designated to be obligated before
October 1 of this year through the Department of Commerce
Interoperability Grant Program into a yet-to-be created Homeland
Security grant program.
This amendment is offered at the same time the President is proposing
to decrease funding for State and local preparedness grants and
firefighter assistance grants from the enacted fiscal year 2007 levels
by $1.2 billion.
To make matters worse, the amendment delays the obligation of $1
billion in interoperability grants by up to 3 years. In the President's
2008 budget proposal, the administration reduces State and local
programs by $840 million and assistance to firefighter grants by $362
million.
The transfer of the $1 billion the Federal Communications Commission
will raise as part of the digital television spectrum auction to the
Department of Homeland Security will mask the technical decrease in the
budget request. In the end, it means less money for the first
responders, which I believe is bad for national security.
It is important to remember that as part of the Deficit Reduction Act
of 2005, Congress created the $1 billion fund in the Department of
Commerce to support State and local first responders in their efforts
to talk with one another in times of emergency. The interoperability
subtitle in this act expands upon prior action taken in the Deficit
Reduction Act of 2005 and provides additional guidance to the Commerce
Department.
The provision which I introduced with Senators Stevens, Kerry, Smith,
and Snowe was reported out of the committee with unanimous support of
the Members. The Commerce Department grant program is intended to jump-
start the efforts of the administration to address a key 9/11
Commission concern--interoperability.
The Department of Homeland Security has been and continues to be too
slow to act, and the Coburn amendment would only exacerbate the
problem. If the Coburn amendment were to pass, it would first decrease
grants to first responders this fiscal year by $700 million; eliminate
the $100 million fund for strategic reserves of communications
equipment, designed to be rapidly deployed in the event of a major
disaster; and, third, eliminate the all-hazards approach that considers
the likelihood of natural disasters as well as terrorist attacks that
the Commerce Department would use making interoperability grants.
Contrary to the Senator's assertion, the Commerce Department
Interoperability Grant Program is complementary to and not duplicative
of the DHS grant program.
First, the Department of Commerce will award all $1 billion in grants
by September 30 of this year, while the DHS program as currently
constructed is not authorized until fiscal year 2008, and is still
subject to appropriations.
This money is needed now and should be in addition to the regular
appropriation process, not awarded over the next 3 years as a
substitute for appropriations funding. Second, the program allows the
Administrator of the National Telecommunications and Information
Administration to direct up to $100 million of these funds for the
creation of State and Federal strategic technology reserves of
communications equipment that can be readily deployed in the event that
terrestrial networks fail in times of disaster.

Should this occur--it did occur in Katrina--there is no comparable
program created in the DHS grant program. The strategic reserve program
is a necessary initiative that has not been prioritized by the DHS to
date.
Recently, an independent panel created by Federal Communications
Commission Chairman Kevin Martin to review the impact of Hurricane
Katrina on communications networks noted the impact that limited pre-
positioning of communications equipment had in slowing the recovery
process. As a result, the program will help to ensure that our focus on
interoperability also considers the importance of communications
redundancy and resiliency as well.
Third, in addition to minimum funding allocations, the Department of
Commerce Interoperability Grant Program would further require that
prioritization of those funds be based upon an all-hazards approach
that recognizes the critical need for effective emergency communication
and response to natural disasters such as tsunamis, earthquakes,
hurricanes, and tornados, in addition to terrorist attacks.
While the DHS program being created would consider natural disasters
as one of the many factors in awarding of grants, the Department of
Commerce Interoperability Grant Program's all-hazards approach places a
high priority on funding States based on the threats they face from
natural catastrophes as well as terrorist attacks.
We have heard two contradicting arguments to support the elimination
of the Department of Commerce grant program. The author claims both
that the DHS is doing all of the administrative work for the Department
of Commerce grant program, and that there is a risk of double-dipping
because the DHS will not know who is receiving the Department of
Commerce grants. Both claims cannot be right and, in fact, neither is
true. The NTIA and the DHS have been working together for months to
craft an agreement under which the two agencies will disburse the $1
billion raised from the DTV spectrum auction.
On February 16, 2007, the DHS and the NTIA entered into a memorandum
of understanding covering the administration of the grant program.
While the DHS will play a large role in administering the grants, the
NTIA will work with the DHS to establish the grant procedures, which
will ensure that an all-hazards approach is followed and that a
strategic reserve equipment program is developed.
The interoperability subtitle further ensures that the grants funded
are consistent with the Federal grant guidance established by the
SAFECOM Program within the DHS. As a result, the DHS will be fully
aware of who is getting grants and for what purposes. At the same time,
the NTIA will maintain a leadership role in guiding the
interoperability grant program. The NTIA has a long history of
addressing interoperable communications issues, and it is vital that
the administration help guide the DHS's work.
Since its creation, the NTIA has served as the principal
telecommunications policy adviser to the Secretary of Commerce and the
President and manages the Federal Government's use of the radio
spectrum. According to Assistant Secretary Kneuer, the Administrator of
the NTIA, the ``intersection of telecommunications policy and spectrum
management has been the key focus of the NTIA, including public safety
communications and interoperability issues.''
In this capacity, the NTIA has historically played an important role
in assisting public safety personnel and improving communications
interoperability and recognizing that effective solutions involve
attention to issues of spectrum and government coordination as well as
funding. Its work more than

[[Page S2780]]

a decade ago in creating the Public Safety Wireless Advisory Committee,
formed by the FCC and the NTIA pursuant to Congress's direction, framed
this issue in this way:

At the most basic level, radio-based voice communications
allow dispatchers to direct mobile units to the scene of a
crime and allow firefighters to coordinate and to warn each
other of impending danger at fires. Radio systems are also
vital for providing logistics and command support during
major emergencies and disasters such as earthquakes, riots,
or plane crashes. . . .
In an era where technology can bring news, current events,
and entertainment such as the Olympics to the farthest
reaches of the world, many police officers, firefighters, and
emergency medical service personnel working in the same city
cannot communicate with each other. Congested and fragmented
spectral resources, inadequate funding for technology
upgrades, and a wide variety of governmental and
institutional obstacles result in a critical situation which,
if not addressed expeditiously, will ultimately compromise
the ability of Public Safety officials to protect life and
property.

The Coburn amendment would disrupt the MOU, upset the work the NTIA
and the DHS have undertaken, and delay the awarding of interoperability
grants.
Finally, the NTIA's administration of the grant program will not only
help to integrate the disparate elements that must be part of effective
interoperability solutions but will also ensure greater program
transparency and oversight. Given the myriad of different grant
programs administered by the Department of Homeland Security, it is
critical that these funds--specifically allocated by Congress to speed
up our efforts to improve communications interoperability for first
responders--not get lost in the shuffle of other disaster and
nondisaster grants. As a result, the provisions not only devote the
NTIA's attention to the success of this program but also require the
inspector general of the Department of Commerce to annually review the
administration of this program.
In sum, the Department of Commerce interoperability grant program
improves the Nation's security. Senator Coburn's amendment would delay
the awarding of needed interoperability grants and disrupts months of
work by the NTIA and the DHS. Therefore, I urge my colleagues to vote
against the Coburn amendment.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, since 2001, we have heard a growing cry
from public safety officials that police, firefighters, and emergency
medical response personnel throughout the country need help to achieve
interoperability in today's communications world.
Sadly, this problem actually predated September 11. More than a
decade ago, the FCC and the National Telecommunications and Information
Administration formed the Public Safety Wireless Advisory Committee to
examine the communications needs of first responders and public safety
officials. That report called for more spectrum, technological
solutions, and more funding, and was filed 5 years to the day before
the tragedy of 9/11. It called for those improvements to save lives on
a daily basis. These solutions are not geared just for the huge
disasters but are also geared for the everyday tragedies that can be
avoided with better communications and better interoperability.
Thanks to the work of the last Congress, public safety stands ready
to finally receive the help that the FCC and NTIA called for more than
10 years ago.
Last year, the Congress set a hard date for broadcasters to turn over
24 megahertz of spectrum to public safety for communications and
interoperability. Right now, the FCC is examining proposals to maximize
the broadband potential of that spectrum, which will bring great new
services and capabilities to policemen, firefighters, and other
emergency personnel. In addition, Congress created a $1 billion
interoperability grant program with the funds that will be received
from the auctioning off of the rest of the spectrum recovered from
broadcasters. That program originated out of our Senate Commerce
Committee. The Department of Commerce and Department of Homeland
Security have signed a memorandum of understanding to work together in
this regard.

Additionally, at the very end of the Congress last year, we
accelerated the granting of the awards as part of what was called the
Call Home Act. Therefore, by law, the interoperability grants which are
available must be awarded by September 30, 2007. Public safety has been
waiting for a very long time for these funds, and they finally have a
date-certain when the interoperability grants will be awarded.
Having worked with the FCC and the NTIA over the last decade, our
Senate Commerce Committee has watched as the public safety
communications market has evolved, and we have heard about a number of
technological solutions that may address both near-term and long-term
interoperability needs. Internet protocol systems can be used as
bridges between otherwise incompatible communications systems now.
Strategic technological reserves can be created to quickly replace
infrastructure that is destroyed in large-scale disasters. Hurricanes
Katrina and Rita demonstrated the need for portable wireless systems
that are readily deployed when a disaster destroys the existing
communications infrastructure. Standards development and dedicated
interoperability channels facilitate planning and incident management
between agencies.
All of these solutions can be achieved now and are provided for by
the provisions of the Commerce Committee's interoperability provisions.
Unfortunately, the amendment of my friend, the Senator from Oklahoma,
would delay all of these solutions. That would be unfortunate for
public safety and very harmful to the public.
The Homeland Security Committee has created its own interoperability
program that is separate from the Commerce $1 billion program. However,
that program is a separate one. It is focused on the long term, after
additional planning is done, and would still be several years away from
even awarding grants, let alone implementing them.
It is time we finally deliver on our promises to the police,
firefighters, and emergency medical personnel. Those around the country
really believe us, and we believe we can deliver the technological
reserves and interoperability communications that will help first
responders now by moving forward with the $1 billion public safety
grant program, administered by NTIA. We really should not wait any
longer. We cannot plan indefinitely. It has been over 10 years, as I
have said. These solutions take time to implement. We should move
forward on these programs now. With the Commerce program, public safety
will be able to move forward with real solutions and begin addressing
the problems that have plagued our Nation's first responders for too
long.
We are able to come across some really interesting innovations, too.
Through the NTIA's program, it is possible to use communications
concepts and bring about interoperability without a large expenditure
for new equipment. This first $1 billion will stretch real far if it is
used on the plans of the NTIA. If it is delayed--unfortunately, I think
that is what the amendment of the Senator from Oklahoma would do. It
will really put us in the position where we cannot implement what has
been done now.
These people--first responders--have been planning now for 3 years to
get this money, and it is going to be paid out this year under the
program we have already enacted into law.
I urge my friend from Oklahoma: Don't delay that $1 billion. I
understand there may be some concerns about the $3 billion in this
bill. Even that, though, is money that will be planned--it will be
several years before it will be made available. The money we have, the
$1 billion that is already provided by law, is available as soon as it
comes in. I think it will go a long way to meeting the immediate needs
of first responders.
So I hope the Senator will not really persevere with his amendment. I
understand his concerns, and we share the concerns of the use of money.
I do believe, if you study the technology now, it is possible to put
together--we have one program where the National Guard has a mobile
unit that is equipped with interoperability concepts that came about
through software. Using the software on that vehicle, they can bring
about interoperability with any system anyone uses in the first-
responder era today.
If we move forward on those things we can do now, immediately, with
interoperability--brought about through the use of technology--it will
save us a lot of money in the long run. I believe this $1 billion will
demonstrate we can do this, make this interoperability capability
available to our first responders at a lot less money than other people
believe. I think this $1 billion is needed, and it will go a long way.
The PRESIDING OFFICER. The Senator from Oklahoma.

[[Page S2781]]

Mr. COBURN. Mr. President, first of all, let me compliment the
chairman and ranking member for their foresight in making sure we have
the capability to have interoperability, with the wisdom of taking
spectrum and putting it specifically for that.
I want to answer several of the questions that have been raised
because they are somewhat peculiar to me.
But before I do that, Mr. President, I ask unanimous consent that
Senator Kyl be added as a cosponsor to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. Mr. President, I say to the Senator, I would also like to
note that one of the members of your committee, who was instrumental in
bringing this interoperability grant program to the floor, is also a
cosponsor of my amendment, realizing we do not need both programs and
that they need to be combined.
Now, what does DHS tell us about the present grant program? Here is
what they tell us. And I say to the American public, you ask yourself
if you want your Government to run this way. What they say is: We can
meet the September 30 deadline, and we may be able to tell you who is
going to get grants, but we are not going to be able to tell you,
anywhere close, how much money they are going to get. So they can tell
them who will get the grants because that is what the law says, but
they will never have the capability, for several months thereafter, to
know how much money they are going to get. So nobody is going to buy
anything until the actual grants are going to be awarded.
Let's clear up the difference between the Departments of Commerce and
Homeland Security. No. 1, Homeland Security has the authority for
interoperable communications. I do not care where this grant program
is, quite frankly. I do not care if it is at Homeland Security or at
Commerce. I do not care. But what I do know is, out of that $1 billion,
the only thing the Department of Commerce is going to keep is $12
million with which to use to announce the grants. That is what they
have told us. So $988 million out of that--the rest of that money--is
going to go for grants, administered by, controlled by, run by Homeland
Security.
So if the problem with my amendment is that the money isn't going to
get out there to do it, Homeland Security has already said the money
isn't going to get out there to do it. Commerce has already said the
money isn't going to get out there to do it. We know who will get
money, but the money won't get out there regardless of what they have
said, because they just came to an understanding of the agreement 3
weeks ago on administering this money.
I think it is very wise what the chairman and ranking member have
done in terms of allocating resources. As a matter of fact, I applaud
them for that. I think it is wise to dedicate resources to certain
things when we sell spectrum. I would tell my colleagues most Americans
would say: You are going to give grant money, but you don't know how
much you are going to give and you are not going to give it on the
basis of competition in allocation of those resources because you have
a date to meet that doesn't fit with fiscal responsibility. It doesn't
fit with the best outcome or the ability to follow up to see what
happened with the money. So we do have a date in the law by which they
have to do it. But how are they going to do it, because the date in
there is wrong. They are liable to give the wrong people too much money
and the right people not enough, because we are telling them what they
have to do.
The second thing--let me put up a chart. These programs are
identical, even though you claim they are not. Let me show my
colleagues how they are identical. Under the PSIC grant programs, they
are State and regional planning; under the DHS program, they are State
and regional planning. Under the system design and engineering, PSIC;
same thing under DHS. System procurement and installation; same thing
under DHS. Technical assistance, the same. Implementing a strategic
technology reserve is the only difference, but guess where it is made
up. ``Other appropriate uses as determined by the administrator of
FEMA.'' Do you think they are not going to put in that reserve there?
They certainly are. They are going to do it.
So there is no difference in the grant programs whatsoever, other
than the deadline, which isn't going to be followed anyway. Like I say,
I don't care if this is at Homeland Security or Commerce, I would as
soon it be at Commerce in terms of the spectrum.
But the fact is the American people shouldn't have to pay for the
administration of two separate programs running parallel with two
separate sets of requirements to Congress. We ought to get them
together. We ought to figure out how we do it so we have one grant, and
if, in fact, we need $4.3 billion. The problem is, we don't know how
much money we need. We are throwing money at it.
The second question I would ask is if this program belongs at
Commerce, why Commerce agreed to give 99.9 percent of it to FEMA and to
the Department of Homeland Security. They don't think it belongs there.
The other point I would make in rebuttal to the Senator from Hawaii
is this amendment doesn't decrease funding at all. This takes $3.3
billion and an amount greater than $1 billion and combines it so the
same amount of money is there, except it is going to make the money be
spent better. It is going to allow us the time to do it.
I agree we need to get money out to our primary responders. This
isn't about trying to hold that up. I am not trying to do that. But the
Department of Homeland Security has already said the money isn't going
to go out by your day. There isn't one application right now at the
Department of Homeland Security for this money. We all know how
Washington works. They haven't even written the requirements for the
grant applications yet, which will take another 90 to 120 days. So we
have a laudable goal that is not going to be accomplished, and if it is
going to be accomplished, it will be accomplished in a very inefficient
and wasteful way, which the American people don't deserve.
I think this is a very good chance for us to talk about what is wrong
with us in the Congress. We are working at cross purposes. We have one
committee working here and one committee working here, rather than
solving those problems for the best interests of our country. I want
Hawaii to have everything it needs in terms of tsunami prevention, in
terms of interoperability. I know there are special requirements in the
State of Alaska because line of sight can't be used and much of our
emergency frequencies require some of that. I believe we can take care
of those problems and combine these grant programs in a way that the
American taxpayer gets value, in a way where we can measure the
accountability of what we do, in a way in which we can have
transparency for the dollars we get in reauctioning the spectrum, and
plus the other $3.4 billion that is going to come out in terms of
appropriated funds for these other grant programs. The American people
want that. They deserve that.
To me, this isn't about a turf battle of control. To me, this
amendment is about common sense for the American public to combine two
programs into one so we spend less money, and we don't duplicate things
and we don't duplicate efforts.
I understand and appreciate very much the long service of Senator
Inouye and Senator Stevens and their commitment to making sure these
things are coming through. I am not trying to be a fly in the ointment
to mess up what are very good-intended results, but I am a realist. The
very things my colleagues have asked to happen in the Budget Act that
was passed are not going to happen. Homeland Security has said that. So
if those things aren't going to happen, and if the fears of what isn't
going to happen can be allayed, can we not figure out a way to put
these programs together where the American people get the best value,
and also as a part of my amendment which says: Can we look to the
private sector to not just give us interoperability in Hawaii among
National Guard and first responders, but how about between California
and Arizona, or Texas and Oklahoma, or Maryland and New York, if they
need Maryland first responders there, which has not been addressed in
any of the legislation that has been put forward. There is great
technology out there. There are great companies out there that could do
that.

[[Page S2782]]

Again, without desiring to interfere or upset, I believe the
application of some pretty commonsense principles ought to be applied
to these two grant programs. I am willing to discuss with the chairman
and the ranking member how to do this a different way. I am raising it
on the floor because I think the taxpayer is not getting good value,
and I think we ought to talk about that.
The National Taxpayer Union endorses this amendment. The Citizens
Against Government Waste endorses this amendment. Your very own
committee member, who was one of the first people to say we should have
auctioned spectrum for first responders, is a cosponsor of this
amendment. So I am willing to defer to what the ranking member and the
chairman of this committee want to do, but I think we ought to stick it
out here until we can work a way for the American people to get better
value, better clarity, better transparency, and better accountability
for these funds.

I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
Mr. STEVENS. Mr. President, I think the Senate should be sure of what
the Coburn amendment does. In the first place, it repeals the section
of the Call Home Act that was enacted in the last Congress that makes
this $1 billion available to NTIA immediately upon receipt. Secondly,
it says the payments that are made under that $1 billion allocation
must be made under the terms of section 1809 of the Homeland Security
Act of 2002. Then it has this section, subsection (c) on page 2 of the
amendment, which limits the awards under that section to $300,000 in
2007, $350,000 in 2008, and $350,000 in 2009. Existing law makes that
$1 billion available as of September 30 of this year.
So the Senator is not only changing the manner in which the money can
be used as opposed to what we enacted in the last Congress, but he is
putting limitations on the grants that can be made out of the $1
billion so that only $300 million is available this year--$300 million
for the whole Nation to meet the immediate needs for interoperability.
We had before our committee the so-called siren call proposal to take
over the whole of the spectrum and turn it over to a trust and let that
trust sell some of this so they could make even more money available in
the first year. We have spoken about that, and it is a no-brainer to do
that. That would create a trust that is equivalent to compete with the
FCC on the sale of the first spectrum and it would reduce the money
that is coming in on the first sale, so we could get enough money to
pay the $1 billion. But the $1 billion has been promised to these first
responders as of September 30 under the memorandum of agreement between
Homeland Security and the NTIA. It can be administered and it will be
administered. It will be used for a whole series of things. But again,
I emphasize, it can be used for software, for systems to make current
systems interoperable without buying a whole bunch of new equipment,
wherever it is made, whether it is made in Oklahoma or California. It
is not going to be made in Hawaii or Alaska, I can tell you that.
But as a practical matter, what we are interested in is making every
entity in the country that is involved with interoperability problems
to be able to make an application for these grants immediately after
September 30. The Senator from Oklahoma would limit that in this fiscal
year to $300,000. By the way, none of it is even going to be available
until September 30. So it is one of those things that is sort of
difficult to understand. We can't have much available in fiscal year
2007. We can have money available this year, in the calendar year 2007,
under the existing law.
I urge the Senate not to repeal existing law, to make this money
available. It is in a memorandum of understanding between these two
agencies. We are not trying to usurp the functions of Homeland
Security. We are trying to meet the needs of communications. That is
our job. We have done our job. The existing law will make $1 billion
available as of September 30. I do not think it should be repealed.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. INOUYE. Mr. President, listening very carefully to the statement
of the Senator from Oklahoma, one might get the impression that this
measure was submitted by the Senators from Alaska and Hawaii to benefit
our two States. Hawaii and Alaska are not even mentioned in this
amendment. What we want is a National Interoperability Grant Program.
It may be of interest that the State of Hawaii is almost completely
interoperable, but we want all other States to have that benefit. So
this is not one of these earmarked measures, I can assure my
colleagues.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
Mr. COBURN. First, let me sincerely apologize to the Senator from
Hawaii if he took my words to mean that. I did not mean that. I
referred to his words in terms of tsunami. I have no inference
whatsoever that this has any parochial interest of either the Senator
from Hawaii or the Senator from Alaska. But it is interesting that the
debate doesn't ever come back to the fact of whether we have two
programs; it is all about the money. The fact is the money will not get
out there. Homeland Security has already said that.
Now, the reason the $350 million--not thousand--was chosen is because
at the same time this happened, you are going to have another $1
billion come through in--the fiscal year is going to be over this year
on September 30 of 2007. The worst problem that happens in our Federal
Government today is the indiscriminate, rushed issuing of grants, of
throwing money at something, rather than a measured response of grants.
These aren't competitive grants, I would remind the people who are
listening to this debate. There is no competition for this money. You
don't have to compete by saying you have a greater need than somebody
else or you have a greater risk than somebody else. This is money that
is going to go out, period. It is not based on competition for the
greatest need or the greatest risk.
The last thing we need to be doing is having a grant program that is
rushed so we are not making sure the money is well spent. In the last 2
years we have discovered $200 billion of waste, fraud, abuse, or
duplication in the discretionary budget of the Federal Government--$200
billion. We would have enough money to pay for the war, pay for
expanding the military in this country, and cutting our deficit in half
if we would do our job in terms of eliminating duplication, fraud,
abuse, and waste.
What this amendment is about is let's don't waste any of this $1
billion these two gentlemen have so wisely put for one great purpose.
So that is my intention today, I assure the Senators from Alaska and
Hawaii. We all know how homeland security works. We have seen all too
well some of the failings and lack of efficiency and lack of
responsiveness in that agency. To now assume the other side of that,
that that is going to happen overnight because we have mandated by
law--if it does, it will be a very poor choice of the use of this
money.
I thank the Senator from Hawaii and the Senator from Alaska for their
debate on this issue. My goal was to have a debate about whether we
should have two programs and whether we should waste money. It is not
about the debate of whether we need to have 911 interoperability and
the functionality that needs to be there in all the States. But we
should look at the whole as well as the individual. I compliment them
on finding a funding stream that doesn't add to our children's debt.
Unfortunately, we have not done that in this bill with the other
grants, which I think is a mistake.
My hope is we will be able to have a vote on this amendment before we
go to cloture--or even after cloture--because it is germane, and we can
defend the germaneness of this amendment.
With that, I yield the floor.
Mr. STEVENS. Mr. President, I intend to make a motion to table. I
have discussed it with the leader. I think he would like to have that
vote take place at 6:15. Would the majority floor staff confirm that.
Mr. INOUYE. I think that would be appropriate.
Mr. STEVENS. Mr. President, temporarily, I suggest the absence of a
quorum.

[[Page S2783]]

The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. LANDRIEU. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. LANDRIEU. While the Senator from Alaska is checking on the other
amendment, I ask unanimous consent to speak on another amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Louisiana is recognized.

Amendment No. 295

Ms. LANDRIEU. Mr. President, I understand the Senator from Alaska is
working out a vote on the amendment that was just discussed. I wished
to come to the floor to talk about the Landrieu amendment that is
pending on this bill and to also say I have been joined in this
amendment by Senators Stevens, Lieberman, Kennedy, Obama, Martinez, and
Vitter, and others may join as we push forward on this amendment to the
underlying bill.
This amendment has to do with a waiver provision, to waive the 10-
percent match that is normally required when a disaster strikes a
community--and for good reason. We have required in the past for the
local governments, based on their capacity to pay for part of the
recovery, to put up anywhere from 25 percent to 10 percent. But on
occasion, we have waived the 10-percent or the 25-percent requirement
when it becomes apparent that the disaster is so overwhelming, the
ability for these communities to repay is virtually impossible. That
has been done over 38 times in the past. Most recently, it was done
with Hurricane Andrew. That was a terrible storm. It doesn't look like
it on this graph, but Hurricane Andrew, believe me, for the people in
Homestead, FL, was the end of the world. Literally, their town was
crushed.
Prior to Katrina and Rita, that storm was the costliest storm,
causing $40 billion in damage to parts of Florida. Unfortunately for
Florida, they have been hard hit ever since. But for discussion
purposes, this is $139 per capita--a terrible storm but not a lot of
money per capita. The World Trade Tower attack was a terrible tragedy
in our Nation, which is why this bill is being discussed; the damage
was $390 per capita. Mr. President, look and see what the Katrina and
Rita double whammy and subsequent breaking of the levees cost per
capita in Louisiana--$6,700. It is literally off the chart.
This has been part of the problem in Washington--not you, Mr.
President, because you came down and Senator Lieberman came down and
the Senator from Alaska came down and walked the neighborhoods, so you
understand it. But this is literally off the chart--what is happening
in terms of the amount of disaster recovery going on in Louisiana and
Mississippi, along the gulf coast.
The Landrieu amendment seeks to waive the 10-percent match so that
the billion dollars would then be available to go to infrastructure
projects. But almost as important as the extra money that could be
applied to the disaster recovery itself, 95 percent of the red tape
would be eliminated because, under the current program, there are three
or four different reviews, different regulations between HUD and FEMA.
All of the administrative efforts we have made to date have been for
naught because nothing has been waived. So the solution is this
amendment.
I am going to ask this body to vote on this amendment, on this
waiver. The amazing thing about this is that because the President has
the option to do this now, there is no cost to this amendment; it
scores at a zero. I know it is counterintuitive, but the score on this
amendment is zero. There can be no point of order raised against it. It
doesn't technically cost anything. Because of that and the obvious
merits of the waiver, which were done in this case and done 38 other
times, we are asking for it to be done for Hurricanes Katrina and Rita,
for Mississippi and Louisiana, and also for Hurricane Wilma, which is
caught up in this general disaster as well.
I thank those who have cosponsored this amendment with me. I thank
Senator Stevens for being able to let me speak as he decides on votes
for the pending amendment. I am going to ask the leadership to schedule
a vote because it is most certainly justified and could be done
administratively but has not been. Congress has a responsibility to
act, to do what is right, fair and helpful and to eliminate the red
tape in our communities, in my case, from St. Bernard Parish to Cameron
Parish, from Biloxi and Pascagoula, all the way over to places in south
Texas that are still hurting and deserve to have this waiver so they
can spend money not on red tape but on roads, bridges, houses, and
schools that need to be rebuilt so America's energy coast can get back
to work.
Katrina and Rita were the first and third costliest disasters in
American history, but Louisiana and other states impacted by these
storms have not received a similar waiver.
Unfortunately for State and local governments in Louisiana, 10
percent translates into more than $1 billion dollars that must be sent
back to Washington.
Louisiana has over 23,000 Project Worksheets pending, and Mississippi
has over 10,000.
Some people have suggested that the States provide this matching
funding on behalf of the local governments.
Let me explain why that will not work.
All of the State's money for assistance to local governments exists
in the form of Community Development Block Grants.
FEMA's Public Assistance Program and HUD's CDBG Program have separate
accounting requirements and separate environmental assessment
requirements.
For the State to apply funding from this source for every single
project would require approximately $20,000 per project. That
translates into nearly half-a-billion dollars wasted on administrative
paperwork.
The State has asked for a single set of standards, but FEMA would not
agree to this.
The State has asked permission to provide a single payment to cover
the 10 percent match, after adding its share of all the pending
projects, but FEMA would not allow this either.
This Global Match would save thousands of man-hours and hundreds of
millions of dollars.
Louisiana has not been able to cut through the red tape though, and
has been told it must waste this money on duplicative bureaucratic
procedures.
This money could be reinvested into housing, infrastructure, and
economic development, in order to bring families, communities, and
businesses back to life in the Gulf region.
Gulf coast States lost their tax base after properties were destroyed
all over the region. The hurricanes claimed over 275,000 homes and
20,000 businesses.
Progress is being made but many challenges remain.
In communities where the damage was most severe, the struggle
continues to rebuild economic infrastructure and restore vitality.
Local governments have had to lay off thousands of employees, and pay
those who remain with money they receive from Federal loans.
I would like to briefly talk about the situation in several of these
communities.
Cameron Parish in Southwest Louisiana is home to 9,681 people.
It was the site of landfall for Hurricane Rita on September 24, 2005,
and the eye of the storm passed directly over it.
Winds exceeding 110 miles per hour pounded the parish for more than
24 hours, and storm surges 15 to 20 feet high submerged it completely.
The Cameron Parish School Board has reported that 100 percent of its
facilities need repairs, and 62 percent were totally destroyed.
Only two public buildings, the Parish courthouse and the District
Attorney's office were left standing. Both are in need of extensive
repairs.
Other buildings destroyed include: 5 fire stations, 4 community
recreation centers, 4 public libraries, 3 parish maintenance barns, 2
parish multi-purpose buildings, ``Courthouse Circle,'' Cameron Parish
Police Jury Annex Building, Cameron Parish Sheriff's Department
Investigative Office, The Cameron Parish Health Unit, Cameron Parish
School Board Office, Cameron Parish Mosquito Control Barn, and the
Waterworks district 10 office.

[[Page S2784]]

Katrina produced a category 5 surge and winds in excess of 125 miles
per hour when it made landfall in St. Bernard Parish.
As the storm surge traveled across Lake Borgne and up the Mississippi
River Gulf Outlet, MRGO, it overtopped the levee along the northern
edge of the urbanized area of St. Bernard Parish, and broke through the
levee on the Industrial Canal in New Orleans' Lower 9th Ward.
Water from both levee breaks flooded most of the parish inside to
depths of up to 14 feet. Flood waters remained for approximately 3
weeks.
Most structures outside the hurricane levee protection systems have
been entirely destroyed and removed by the storm surge, estimated to be
between 20 and 30 feet.
A flood-related breach of a nearby refinery's oil tank released about
1 million gallons of crude oil, further damaging approximately 1,800
homes and polluting area canals.
Fishing communities in the eastern areas of the parish were
destroyed.
Less than a month after Katrina, an 8-foot storm surge from Hurricane
Rita breached recently repaired levees, and again caused widespread
flooding in the parish.
In all, 127 St. Bernard citizens died, about 68,000 people were
displaced, and 100 percent of the parish housing stock, over 25,000
units, was either destroyed or damaged so severely that it became
uninhabitable.
All parish businesses and government buildings, and most utility
systems, were also destroyed. Damaged levees, decimated wetlands, and
the still-open MRGO have left the parish vulnerable to future storms.
Prior to Katrina, there were approximately 25,123 occupied housing
units in St. Bernard Parish, consisting mostly of single family homes
and apartments.
After the storms, the entire housing stock of the parish was
submerged under storm water, for nearly 3 weeks in many areas. Many
homes in the parish are damaged beyond repair and may need to be
demolished.
By the time the waters receded, more than 80 percent of the housing
stock had been damaged.
It makes very little sense to require communities to put up this
match in their current financial condition. Doing so will only serve to
delay rebuilding across the region.
If we fail to act, we abandon Federal precedent, and we allow FEMA to
continue wasting hundreds of millions of taxpayer dollars on
duplication and waste.
I remind my colleagues that these hurricanes caused the greatest
natural disaster in the history of this country. I ask only that we
offer the same treatment to victims along the Gulf coast that we have
offered victims on 32 other occasion.
Unfortunately for the State and local governments in Louisiana, 10
percent translates into more than $1 billion that must be sent back to
Washington. Louisiana has over 23,000 project worksheets pending, and
Mississippi has over 10,000. Some people have suggested that the States
provide this matching funding on behalf of the local governments. There
are several reasons why that will not work.
All of the State's money for assistance to local governments exists
in the form of Community Development Block Grants.
FEMA's Public Assistance Program and HUD's CDBG Program have separate
accounting requirements, separate non-discrimination requirements, and
separate environmental assessment requirements.
For the State to apply funding from CDBG for every single project,
would require approximately $20,000 per project. That translates into
nearly half-a-billion dollars wasted on administrative paperwork.
The State has asked for a single set of standards, but FEMA would not
agree to this. The State has asked permission to provide a single
payment to cover 10 percent match, after adding its share of all the
pending projects, but FEMA would not allow this either. This Global
Match would have saved thousands of man-hours and hundreds of millions
of dollars, Louisiana has not been able to cut through the red tape
though, and has been told it must waste this money on duplicative
bureaucratic procedures.
This money could be reinvested into housing, infrastructure, and
economic development, in order to bring families, communities, and
businesses back to life in the Gulf region. It makes very little sense
to require communities to put up this match in their current financial
condition. Doing so will only serve to delay rebuilding across the
region. These hurricanes caused the greatest natural disaster in the
history of this country.
This amendment offers the same treatment to victims along the Gulf
coast, that we have offered disaster victims on 32 other occasions. If
we fail to act, we will have abandoned federal precedent in the midst
of our county's worst disaster, and we will allow FEMA to continue
wasting hundreds of millions of taxpayer dollars on unnecessary
duplication and waste.
I ask unanimous consent that a letter to the President be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Washington, DC, February 9, 2007.
The President,
The White House,
Washington, DC.
Dear Mr. President: As you are aware, FEMA regulations call
for a ten percent match for every dollar made available
through FEMA's public assistance program in connection with
the effort to recover from Hurricanes Katrina and Rita. We
understand that requiring states to match federal expenditure
helps to encourage states to spend program funds more wisely.
However, given the magnitude of this disaster and the
extremely difficult circumstances that Louisiana and many
Gulf Coast communities now face, we believe that the most
appropriate step for the Federal government is to waive the
match requirement in this case.
While the people of Louisiana are grateful to the nation
for the help that they have received, the State still
confronts a massive shortfall between the dollars that have
come in from all sources and the real costs of recovery, a
shortfall that the state estimates to be $40 billion. The $1
billion in matching funds that Louisiana could be required to
send to the Federal government could be better spent on
rental assistance, mental health, school infrastructure and a
variety of other needs that have fallen through the cracks of
the Stafford Act.
Although FEMA regulations encourage the President to
require a 10 percent match for the PA program, the Stafford
Act clearly gives the President the discretion to waive this
matching requirement. To be certain, this is not a request
without precedent or beyond the scope of the Federal
government's earlier decisions. Since 1985, FEMA has granted
waivers on the state match for public assistance in 32
different disasters. Yet having been battered by the first
and third worst hurricanes in United States history,
Louisiana must still meet the match requirement.
Per capita cost is the usual determinant regarding the need
for a match. Louisiana's cost per capita was approximately
$6,700. This is contrasted with two earlier cases where the
state match was waived. In New York, after September 11th,
the cost per capita was $390.00. In Florida, after Hurricane
Andrew, the cost per capita was $139.00. These numbers, taken
alone, illustrate the unprecedented level of damage that
Louisiana has suffered and the massive scale of the challenge
before us. However, taken with the realities that are evident
when you visit the Gulf Coast and speak to state and local
officials, it is clear that your decision to waive this
requirement is not only prudent, but vital to the recovery
effort.
In short, basic equity and previous precedent argues that
Louisiana's state match be waived. We appreciate your
attention to this matter, and look forward to your
assistance.
With sincere regards,
Sincerely,
Harry Reid,
U.S. Senator.
Mary L. Landrieu,
U.S. Senator.
Joseph I. Lieberman,
U.S. Senator.

The PRESIDING OFFICER. The Senator from Alaska is recognized.
Mr. STEVENS. Mr. President, I make a motion to table the Coburn
amendment No. 345 and ask unanimous consent that the vote commence at
6:15 this evening.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.

Amendment No. 299 to Amendment No. 275

Mr. STEVENS. Mr. President, I ask unanimous consent that the pending
amendment be set aside so I may call up amendment No. 299.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:

The Senator from Alaska [Mr. Stevens], for himself, and
Mrs. Clinton, and Mr. Inouye proposes an amendment numbered
299 to amendment No. 275.

[[Page S2785]]

Mr. STEVENS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

(Purpose: To authorize NTIA to borrow against anticipated receipts of
the Digital Television Transition and Public Safety Fund to initiate
migration to a national IP-enabled emergency network capable of
receiving and responding to all citizen activated emergency
communications)

At the end of the amendment, insert the following:

TITLE XIV--911 MODERNIZATION

SEC. 1401. SHORT TITLE.

This title may be cited as the ``911 Modernization Act''.

SEC. 1402. FUNDING FOR PROGRAM.

Section 3011 of Public Law 109-171 (47 U.S.C. 309 note) is
amended--
(1) by striking ``The'' and inserting:
``(a) In General.--The''; and
(2) by adding at the end the following:
``(b) Credit.--The Assistant Secretary may borrow from the
Treasury, upon enactment of this provision, such sums as
necessary, but not to exceed $43,500,000 to implement this
section. The Assistant Secretary shall reimburse the
Treasury, without interest, as funds are deposited into the
Digital Television Transition and Public Safety Fund.''.

SEC. 1403. NTIA COORDINATION OF E-911 IMPLEMENTATION.

Section 158(b)(4) of the National Telecommunications and
Information Administration Organization Act (47 U.S.C.
942(b)(4)) is amended by adding at the end thereof the
following: ``Within 180 days after the date of enactment of
the 911 Modernization Act, the Assistant Secretary and the
Administrator shall jointly issue regulations updating the
criteria to provide priority for public safety answering
points not capable, as of the date of enactment of that Act,
of receiving 911 calls.''.

Mr. STEVENS. This amendment has been cosponsored by Senators Clinton,
Inouye, Smith, Snowe, and Hutchison.
Mr. President, 911 calls provide the first line of defense in the
safety of our citizens and is critical to public safety personnel.
Technological advances now allow 911 calls to provide more
information, such as the caller's location and telephone number. In too
many parts of the country, the public safety community doesn't have the
technology needed to receive location or other information. They need
funding help to upgrade their equipment so this is possible.
Congress previously allocated $43.5 million as part of the Deficit
Reduction Act of 2005 for E-911 grants, so the 911 system can be
upgraded. However, as it currently stands, the grants cannot be awarded
until after the digital television proceedings are completed.
Our amendment would add the 911 Modernization Act, S. 93, to this
bill, which passed unanimously out of the Commerce Committee several
weeks ago.
This would allow the National Telecommunications and Information
Administration to borrow $43.5 million from the Treasury to fund the
Enhance 911 Act Grant Program in advance of the spectrum auction.
Because these funds are only advanced, the CBO has informed us that
this amendment does not score.
The National Emergency Number Association that focuses on 911
recently announced that more than 20 percent of the country doesn't
have enhanced 911 capability. That 20 percent is in rural America and
covers 50 percent of the counties of our country.
There is a matching fund requirement in the underlying law to ensure
that this money is spent wisely by public safety entities that are
committed to improve the 911 calling capability of the citizens. This
means that local governments must match under the law, and this enables
us to know there is local support for the activities that would be
financed by this money.
The amendment has the support of the Association of Public Safety
Communications Officers International and the National Emergency
Numbering Association. I will submit a letter from these two premier
911 public safety organizations for the Record. With this borrowing
authority, the NTIA could get the money out to the public safety
community now. The funds will be replaced, and enhanced 911 calls can
begin saving lives in more of rural America. This is absolutely
essential. Again, 50 percent of our counties do not have the ability to
move forward unless this money is made available. Borrowing the money
now, so it will be repaid out of the spectrum auction, is the best way
to proceed.
I ask unanimous consent that the letter I mentioned be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

February 5, 2007.
Hon. Daniel Inouye,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Hon. Ted Stevens,
Vice-Chairman, Committee on Commerce, Science, and
Transportation, U.S. Senate, Washington, DC.
Dear Chairman Inouye and Vice-Chairman Stevens: As you
know, the 9-1-1 system is the connection to the public for
daily emergencies and also plays a vital role in more
significant homeland security events, from reporting on a
potential outbreak to hazardous materials spills. In fact, as
the connection to the general public, 9-1-1 centers are
likely to be the first to know of a developing homeland
security event. Thus, it is imperative that our 9-1-1 system
be adequately funded to ensure that all Americans have access
to a 9-1-1 system that is fully prepared to respond to
requests for help in every situation.
Congress took steps to address the funding needs of 9-1-1
by passing the ENHANCE 911 Act of 2004. Unfortunately, no
appropriations were provided for grants in the 109th
Congress. However, thanks to your leadership, the Deficit
Reduction Act of 2005 (P.L. 109-171) did include a provision
that requires $43.5 million in spectrum auction proceeds to
be allocated for grants to Public Safety Answering Points
(PSAPs) authorized by the ENHANCE 911 Act. Currently, those
grant funds will not be available until sometime in late 2008
or 2009 after auction revenues are deposited into the
Treasury.
Obtaining funding for this grant program as soon as
possible is critical to allow underfunded PSAPs to obtain the
resources they need to upgrade their wireless E9-1-1
capabilities and for necessary staffing and training needs.
Currently, nearly half of the counties in the United States
do not contain a PSAP with the ability to precisely locate
wireless 9-1-1 calls. Therefore, we were pleased with the
introduction of the 911 Modernization Act (S. 93) by Vice-
Chairman Stevens which would provide NTIA with advanced
borrowing authority for the $43.5 million provided in the
Deficit Reduction Act and make those funds immediately
available for grants. We strongly support ensuring that
immediate funding is provided for 9-1-1 and hope your offices
will work together to make this legislation, and 9-1-1
funding in general, a priority.
In addition to the 911 Modernization Act, it is also
imperative that Congress provide sufficient funding to NHTSA
and NTIA in the FY 2008 budget for ENHANCE 911 Act grants and
for the administration of the 9-1-1 Implementation and
Coordination Office (ICO). Providing this funding will ensure
that the potential of the ENHANCE 911 Act to greatly improve
9-1-1 service is fully realized. Thank you for your continued
leadership on 9-1-1 and emergency communications issues and
we look forward to continue working with you and your staff
on these and other important issues.
Sincerely,
Jason Barbour,
President, NENA.
Wanda McCarley,
President, APCO International.

Mr. STEVENS. 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.
Ms. LANDRIEU. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Cantwell). Without objection, it is so
ordered.
(The remarks of Ms. Landrieu are printed in today's Record under
``Morning Business.'')
Ms. LANDRIEU. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. LANDRIEU. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 295, as Modified

Ms. LANDRIEU. Madam President, I send to the desk a modification to
my amendment.
Ms. COLLINS. Madam President, I have no objection to the
modification.
The PRESIDING OFFICER. Without objection, the amendment is so
modified.
The amendment, as modified, is as follows:

At the end of title XV, add the following:

SEC. ____. FEDERAL SHARE FOR ASSISTANCE RELATING TO HURRICANE
KATRINA OF 2005 OR HURRICANE RITA OF 2005.

(a) In General.--Notwithstanding any other provision of
law, the Federal share of

[[Page S2786]]

any assistance provided under section 406 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5172) because of Hurricane Katrina of 2005 or
Hurricane Rita of 2005 or Hurricane Wilma of 2005 shall be
100 percent.
(b) Effective Date.--This section shall apply to any
assistance provided under section 406 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5172) on or after August 28, 2005.

Ms. COLLINS. Madam 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.
Ms. COLLINS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. COLLINS. Madam President, what is the pending business?
The PRESIDING OFFICER. Under the previous order, a vote now occurs on
the motion to table the Coburn amendment, No. 345.
Ms. COLLINS. Madam President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to the motion.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) and
the Senator from South Dakota (Mr. Johnson) are necessarily absent.
Mr. LOTT. The following Senators are necessarily absent: the Senator
from Idaho (Mr. Crapo) and the Senator from Arizona (Mr. Kyl).
The PRESIDING OFFICER. Are there any other Senators in the chamber
desiring to vote?
The result was announced--yeas 71, nays 25, as follows:

[Rollcall Vote No. 66 Leg.]

YEAS--71

Akaka
Baucus
Bayh
Bennett
Bingaman
Bond
Boxer
Brown
Bunning
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Cochran
Conrad
Craig
Dodd
Domenici
Dorgan
Durbin
Feingold
Feinstein
Gregg
Hagel
Harkin
Hatch
Hutchison
Inouye
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lott
McCaskill
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Sanders
Schumer
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Vitter
Voinovich
Warner
Webb
Whitehouse
Wyden

NAYS--25

Alexander
Allard
Brownback
Burr
Chambliss
Coburn
Coleman
Collins
Corker
Cornyn
DeMint
Dole
Ensign
Enzi
Graham
Grassley
Inhofe
Isakson
Lugar
Martinez
McCain
McConnell
Sessions
Thomas
Thune

NOT VOTING--4

Biden
Crapo
Johnson
Kyl
The motion was agreed to.
Mr. DURBIN. Madam President, I move to reconsider the vote, and I
move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Iowa is recognized. Mr.
Grassley. Madam President, I rise to offer amendment No. 386.
Mr. LIEBERMAN. Madam President, I object. If I may explain with
respect to the Senator from Iowa?
The PRESIDING OFFICER. The Senate will be in order.
The Senator from Connecticut is recognized.
Mr. LIEBERMAN. Madam President, the Senator from Iowa has, in the
normal course of Senate proceedings, asked unanimous consent to set
aside the pending amendment to offer an amendment of his own. I am
objecting to that. I want to explain why.
We now have 50 amendments pending. We have a group of amendments
Senators Collins and I have agreed on and are willing to offer by
consent, but at least two Senators are objecting to us doing that until
there is an agreement to vote on amendments that they want a vote on.
We have a very important bill that has a sense of urgency to it, the
9/11 legislation. Therefore, as the manager of the bill on this side--
and, incidentally, I will add that cloture was filed, surprisingly, on
four of the amendments. We have come to a point where the bill as
reported out of our committee on a nonpartisan vote is ready to go. But
these 50 amendments are stopping it from getting to a conference with
the House.
Until we have an agreement across party lines as to how we are going
to proceed, I am going to, respectfully, with no prejudice to my friend
from Iowa, object to setting aside the pending amendment, which is the
Stevens amendment, No. 299. That would be for anyone else who would
want to offer an amendment at this time, until there is an agreement on
how we are going to proceed to get this urgent bill passed, hopefully,
by the end of the week.
The PRESIDING OFFICER. Objection is heard.
The Senator from Iowa.

amendment no. 386

Mr. GRASSLEY. Madam President, I would like to offer another
amendment to S. 4 that seeks to strengthen our Nation's homeland
security by closing a loophole in our securities laws. My amendment
would amend section 203(b)(3) of the Investment Advisers Act of 1940
and would narrow an exemption from registration for certain investment
advisers. There is a homeland security element to this fix because it
can sometimes be important to know who is managing large sums of money
for wealthy foreign investors. For example, it was recently reported
that a Boston-based private equity firm, Overland Capital Group, Inc,
is under investigation by the IRS and DOJ counterterrorism division.
Such firms, which manage hundreds of millions of dollars for wealthy
investors in total secrecy, ought to have to at least register with the
SEC.
Currently, section 203(b)(3) of the Investment Advisers Act provides
a statutory exemption from registration for any investment adviser who
had fewer than 15 clients in the preceding 12-month period and who does
not hold himself out to the public as an investment adviser. This
amendment would narrow this exemption, which is currently used by
large, private pooled investment vehicles, commonly referred to as
hedge funds. These hedge funds use this section of the securities laws
to avoid registering with the Securities and Exchange Commission--SEC.
Much has been reported during the last few years regarding hedge
funds and the market power they yield because of the large amounts of
capital they invest. In fact, some estimates are that these pooled
investment vehicles are trading nearly 30 percent of the daily trades
in U.S. financial markets. The power this amount of volume has is not
some passing fad, but instead represents a new element in our financial
markets. Congress needs to ensure that we know who is running these
large vehicles to ensure the security of those markets.
The failure of Amaranth and the increasing interest in hedge funds as
investment vehicles for public pension money means that this is not
just a high stakes game for the super rich. It affects regular
investors. Indeed, it affects the markets as a whole. My recent
oversight of the SEC has convinced me that the Commission and the Self-
Regulatory Organizations--SROs--need much more information about the
activities of hedge funds in order to protect the markets from
institutional insider trading and other potential abuses. This is one
small and simple step toward greater transparency--to require that
hedge funds register and tell the regulators who they are. This is not
a burden, but rather a simple, common sense requirement for
organizations that wield hundreds of billions of dollars in market
power every day. The SEC has already attempted to do this by
regulation.
Congress needs to act because of a decision made last year by a
Federal appeals court, the D.C. Circuit Court of Appeals. In 2006, the
D.C. Circuit Court of Appeals overturned a SEC administrative rule that
required registration of hedge funds. This decision effectively ended
all registration of hedge funds with the SEC.
My amendment would narrow the statutory exemption from registration
and bring much needed transparency to hedge funds. The amendment would
authorize the SEC to require investment

[[Page S2787]]

advisers to register unless the adviser: No. 1, had $50 million or less
in assets under management, No. 2, had fewer than 15 clients, No. 3,
did not hold himself out to the public as an investment adviser, and
No. 4, managed the assets of fewer than 15 investors, regardless of
whether the investors participate directly or through a pooled
investment vehicle, such as a hedge fund.
This amendment is a first step in ensuring that the SEC has the
needed statutory authority to do what it attempted to do for the last 2
years. I urge my colleagues to support this amendment as we work to
protect investors large and small.
I am not surprised by the objection today. For the record, I want
everyone to know that this morning when I said I intended to offer this
amendment, my phones started ringing off the hook. Lots of powerful
people don't want to see an amendment like this, but Americans want
their Government to know who is running these funds.
The PRESIDING OFFICER. The Senator from Maine.
Ms. COLLINS. 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. LIEBERMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Casey). Without objection, it is so
ordered.
Mr. INHOFE. Mr. President, today, I wish to speak to my amendment No.
381 that seeks to improve the U.S.'s national security through
increasing our ability to fuel our country from domestic resources.
Americans are familiar with the violence, terrorism, and instability
in the Middle East. But forms of that instability are spreading around
the world, including to our own backyard.
This chart by the Energy Information Agency summarizes some of the
energy security hot spots around the world. Since September 2005 when
this chart was made, U.S. security interests have gotten even worse in
some regions. On February 26, Venezuelan President Hugo Chavez
nationalized U.S. oil interests--the motivation for the Soviet-style
move was to improve Venezuelan strategic interests.
Adding insult to injury, while signing an agreement allowing Chinese
companies to explore in Venezuela, Mr. Chavez stated that, ``We have
been producing and exporting oil for more than 100 years but they have
been years of dependence on the United States. Now we are free and we
make our resources available to the great country of China.''
China has recognized that energy is a true security interest and has
inked deals with Russia and OPEC, along with Castro's Cuba.
The fact is that our national security is linked with our energy
security. Yet even if we were to stop importing oil from the Middle
East tomorrow our national security interests would still be at risk.
And we are not alone.
European Union countries as a whole import 50 percent of their energy
needs, a figure expected to rise to 70 percent by 2030. A significant
and increasing volume of those imports come from Russia.
In December 2005, Russia decided to turn off the gas to Ukraine,
affecting imports into Italy, Austria, Germany, Poland, and Slovakia. A
similar dispute between Russia and Belarus affected Germany's oil
imports.
According to the Congressional Research Service, global energy demand
is expected to rise by nearly 60 percent over the next 20 years.
In order to meet motorists' demands today and tomorrow and the global
struggle for energy security, I am introducing the Domestic Fuels
Security Act.
The Domestic Fuels Security Act lays out a coordinated plan to
increase the production of critical clean transportation fuels for
today and tomorrow in four significant ways.
First, the amendment provides a coordinated process whereby the
Federal Government--at the option of a Governor and in consultation
with local governments--would be required to assist the State in the
permitting process for domestic fuels facilities. These would include
coal-to-liquids plants, modern refineries, and biorefineries. And this
voluntary, coordinated, from-the-grassroots-up process would do so
without waiving any environmental law.
Second, the amendment would look to the future and conduct a full
environmental review of fuel derived from coal.
The U.S. has 27 percent of the world's coal supply--the largest in
the world--nearly 250 billion tons of recoverable reserves. It is
critical that we learn to use what we have and do so in an
environmentally responsible way.
Third, the amendment seeks to spur a viable coal-to-liquids industry
in a comprehensive way. In order for a new fuels industry--to develop
three components are required--upfront costs to design and build, a
site to do it, and a market to sell the product.
The amendment provides loan guarantees and loans for the startup
costs. It provides incentives to some of the most economically
distressed communities--Indian tribes and those affected by BRAC--to
consider locating a facility in their backyard through Economic
Development Administration grants. Last, the amendment requires the
Department of Defense to study the national security benefits of having
a domestic coal-to-liquids, CTL, fuels industry to comprehensively
assess a new market.
I have to give credit to my colleagues, Senators Bunning, Obama,
Lugar, Pryor, Murkowski, Bond, Thomas, Craig, Martinez, Enzi, and
Landrieu, who together had introduced a bill with similar language. I
am hopeful that they will join me in moving this amendment.
We can all agree that increasing domestic energy security is a vital
objective. Yet it also provides good jobs.
According to the Illinois Department of Commerce and Economic
Opportunity, a CTL plant, with an output of 10,000 barrels per day, can
support 200 direct jobs onsite, at least 150 jobs at the supporting
coal mine, and 2,800 indirect jobs throughout the region. During
construction, another 1,500 temporary jobs will be created.
Fourth, cellulosic biomass ethanol--renewable fuel from energy crops
like switchgrass--is a popular concept but faces financial barriers.
Recently, the Federal Government has released some initial money to
help develop the industry, but more could be done.
In order to entice private sector investment, it is important for the
collective fuels industry and motorists to know what our renewable
resource base is, as well as traditional fuels. This amendment requires
the Securities and Exchange Commission to convene a task force to
assess how we should modernize our reserves--both traditional and
renewable for cellulosic biomass ethanol feedstocks.
Energy security, job security, American security--please join me in
passing the Domestic Fuels Security Act.
Mr. President, I ask unanimous consent to have printed in the Record
the chart to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:

OIL AND NATURAL GAS HOTSPOTS FACTSHEET
----------------------------------------------------------------------------------------------------------------
Petroleum Petroleum U.S. Imports (Jan-
Prod'n Prod'n Mar '05)('000 bbl/ Strategic Importance/
Country/Region (2004) ('000 (2010) ('000 d) \1\ Threats
bbl/d) bbl/d)
----------------------------------------------------------------------------------------------------------------
Iran................................ 4,100 4,000 0 Even though no direct
imports to US, still
exports 2.5 million bbl/d
to world markets.
Iraq................................ 2,025 3,700 516 April 2003-May 2005--236
attacks on Iraqi
Infrastructure.
Libya............................... 1,600 2,000 32 Newly restored diplomatic
relations, Western IOCs
not awarded contracts in
2nd EPSA round.
Nigeria............................. 2,500 2,600 1,071 High rate of violent crime,
large income disparity,
tribal/ethnic conflict and
protests have repeatedly
suspended oil exports.
Russia.............................. 9,300 11,100 419 2nd only to S.A. in oil
production, Yukos affair
has bred uncertain
investment climate.
Saudi Arabia........................ 10,400 13,200 1,614 Long Term stability of Al-
Saud family, Western oil
workers subject to
attacks.
Sudan............................... 344 530* 0 Darfur crisis & N-S
conflict threatens
government stability,
security of oil transport.

[[Page S2788]]

Venezuela........................... 2,900 3,700 1,579 Large exporter to U.S.,
President Chavez
frequently threatens to
divert those exports,
nationalize resource base.
Algeria............................. 1,900 2,000 414 Armed militants have
confronted gov't forces.
Bolivia............................. 40 45* 0 Large reserves of NG (24
(Tcf)), exports may be
delayed due to
controversial new laws
unfriendly to foreigners.
Caspian Sea......................... 1,800 2,400-5,900 0 BTC opened, many ethnic
conflicts, high
expectations or future oil
production, no maritime
border Agt.
Caucasus Region 2................... negligible negligible 0 Strategic transit area for
NG and oil pipelines.
Colombia............................ 551 450* 110 Destabilizing force in S.
America, oil exports
subject to attack by
protesters, armed
militants.
Ecuador............................. 535 850* 315 Unstable politically,
protests threaten oil
export.
Indonesia........................... 900 1,500 0 No longer a net exporter,
separatist movements,
Peacekeeping forces in
place, Violence threat to
Strait of Malacca.
----------------------------------------------------------------------------------------------------------------

9/11 Health Issues

Mrs. CLINTON. Mr. President, more than 5 years after the 9/11
attacks, the number of victims continues to rise because of the lasting
health impacts experienced by far too many of those who selflessly
responded to this disaster in 2001. On that day, and in the following
months, thousands worked and lived by the Ground Zero site, amidst the
dust, smog, and toxic mix of debris. And now we are seeing those
workers, responders, and residents become sick from what they were
exposed to on 9/11 and the following months. I believe we have a moral
obligation to take care of those suffering from 9/11-related illnesses.
The work of Senator Harkin, Senator Byrd, Senator Specter, and all of
their colleagues on the Senate Appropriations Committee has been
invaluable in securing funding to address many of the health issues
that have appeared following 9/11. In December 2001, we learned that
hundreds of firefighters were on medical leave because of injuries
related to 9/11 issues, and the Appropriations Committee responded by
allocating $12 million for medical monitoring activities so that we
could track and study the health impacts associated with the rescue and
response efforts at the World Trade Center. Thousands of individuals
signed up for this program, and in Congress, we worked to meet the
demand by appropriating an additional $90 million to monitor other
workers and volunteers who were at Ground Zero and Fresh Kills.
Through this work, we learned that many of those who were exposed are
now experiencing significant health problems from this exposure--people
who were in the prime of their life before 9/11 now suffering from
asthma, sinusitis, reactive airway disease, and mental health issues.
So in December 2005, I worked with Senator Harkin and other
appropriators, as well as my colleagues in the New York Congressional
Delegation, to secure an additional $75 million in funding that would
for the first time provide Federal funding for treatment to help those
who were disabled by these attacks get the care that they needed.
Sadly, we are once again running out of funding to take care of the
heroes who never questioned their responsibility on 9/11 and are now
paying a terrible price. While the President has proposed providing
additional funding for treatment in the fiscal year 2008 budget, we
must act sooner to provide sufficient funds to ensure treatments
through the rest of the current fiscal year.
That is why I introduced an amendment to the 9/11 bill we are
considering today to divert $3.6 million in funding--originally part of
that $20 billion secured for New York in the wake of
9/11 that the administration proposed to cut in its fiscal year 2008
budget. At a time when treatment needs are so urgent, I believe that we
need to ensure that dollars that were intended for 9/11 needs can be
used to address the mounting health crisis that we are facing as a
direct result of these attacks. I believe it is important to raise
awareness of the fact that these programs--programs that are helping
tens of thousands of first responders in New York and around the
Nation--are in danger of having to turn patients away.
I am extremely grateful for what we have been able to accomplish with
the support of Senator Harkin and other appropriators. They have shown
that they consider it our national responsibility to care for those who
did our country proud in the hours, days, weeks, and months following
that horrific attack. I am also proud that I will be working with my
colleagues on the Senate Health, Education, Labor and Pensions
Committee, including Senators Kennedy, Enzi, and Harkin, to develop a
lasting solution to address these health care needs. But while we are
working on those solutions, we must ensure that these programs continue
to operate.
Mr. HARKIN. I thank my good friend and colleague, Senator Clinton,
for her kind remarks. The terrorist attacks of 9/11 took place nearly
1,000 miles from Iowa. But the attacks on the World Trade Center and
the Pentagon were really an attack on the heart of America. Iowans
answered the call of service and came to the aid of those affected by
these attacks. The Musco Lighting Company from Muscatine donated
lighting equipment to assist the World Trade Center recovery efforts.
Quad-Cities fire departments collected more than $75,000 for the
Uniformed Fighter Association's 9/11 Disaster Relief Fund.
And just as Iowans and other Americans responded to the calls for
help, I am proud that the Appropriations Committee has worked step by
step with the New York delegation to address the many desperate needs
that arose from 9/11. I was proud to work with Senator Clinton, Senator
Byrd, and my colleagues on the Appropriations Committee to secure $20
billion immediately after 9/11 to help both short and longer term
recovery efforts at Ground Zero, the Pentagon, and Shanksville, PA. The
funding for tracking health outcomes is a particular concern to myself
and Senator Specter. This funding has been used to monitor not only the
brave responders and recovery workers who live in New York, but also
all who responded from around the country, including more than 35 from
Iowa.
I thank you for your leadership on this issue and I look forward to
working with you on the upcoming emergency supplemental appropriations
bill to maintain the current monitoring and treatment program for 9/11
responders and recovery workers.
Mrs. CLINTON. I thank the Senator. On behalf of the thousands of
firefighters, police officers, rescue workers, residents, students, and
others who are suffering from 9/11-related illnesses, I look forward to
working with you on the upcoming emergency supplemental appropriations
legislation to ensure that those who are sick can receive the care they
need. With this commitment, I will withdraw my amendment to this
legislation.

____________________