Congressional Record, Volume 154 Issue 107 (Thursday, June 26, 2008)

[Congressional Record Volume 154, Number 107 (Thursday, June 26, 2008)]
[Senate]
[Pages S6177-S6207]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED

The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to H.R. 6304,
which the clerk will report.
The legislative clerk read as follows:

Motion to proceed to Calendar No. 827, H.R. 6304, an Act to
amend the Foreign Intelligence Surveillance Act of 1978 to
establish a procedure for authorizing certain acquisitions of
foreign intelligence, and for other purposes.

The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I thank our leaders for getting us on this
very important bill.
As we have discussed before, the failure to modernize and authorize
the Foreign Intelligence Surveillance Act last summer has caused
serious gaps in our intelligence capability.
When the Protect America Act that was introduced by our Republican
leader, Senator McConnell, and me last year finally passed, we put the
intelligence community back in the business of intercepting critical
intelligence communications from foreign terrorists talking to each
other about possible activities in the United States, or against our
troops and our allies elsewhere, and obviously any of those who were
threatening the United States.
I can tell you, without going into detail, that the foreign
intelligence collection from these has been about the most valuable
piece of information we have with respect to terrorist intent. So I
appreciate the fact that this body is ready to move forward.
I hope we will have a way forward to get it done by the time we leave
for the Fourth of July recess. It is critical we get this done
promptly. If we go into late July or even into August without getting
it done, serious consequences will start to impact our ability to
collect intelligence.
Again, I thank our minority leader, Senator McConnell, for his kind
words, especially about my very capable staff who have worked very
hard, not only to help put this bill together, but we have briefed
Members of both sides of the aisle, their staffs. We have spent a lot
of time doing that.
Of course, as I outlined yesterday, we spent a very long 2\1/2\
months working with the House. As I indicated, the bill this body
passed, the FISA amendments, we passed 68 to 29 in February with the
good, strong support of the chairman of the committee, Senator
Rockefeller. We worked on a bipartisan basis. We worked with and
listened to the intelligence community to do several things that were
critical.
No. 1, we wished to make sure there was protection for the privacy
and constitutional rights of Americans and U.S. persons here and
abroad. For the first time, we included that. We also needed to protect
the telephone companies or carriers who have participated in the
terrorist surveillance program under the lawful orders issued by the
President, under his constitutional authority in article II, an act in
good faith by those carriers.
We provided that immunity, or retroactive liability protection, more
accurately, that was critical to ensuring that they can continue to
participate. They are loyal American citizens, and they wanted to be
able to help. But when frivolous lawsuits, seeking billions of dollars
in damages, are filed against them, whether they participated or not,
and there is no assurance that any telephone company so sued has
participated. They cannot use a defense that they did not participate.
They have to have protection.
We built in that protection in a way that was acceptable to both
sides in this body in the FISA amendments and also satisfied the
concerns of the majority party in the House, which, as Leader McConnell
said, had the votes, if they had wished to pass our FISA amendments.
We believe this new bill we are considering, H.R. 6304, which passed
the House with a strong majority vote of 293 to 129 last Friday, should
be passed here.
As with the Senate's original FISA bill passed several months ago,
the compromise that is before us required a little give-and-take from
all sides. But, in essence, what we have before us today is basically
the Senate bill all over again.
I am aware that some on the far left wish to paint this as some
radical new legislation. But if you read the language, it is not
different. The press picked up on this straight away last week and kept
asking me to help them find the purported ``big changes'' in this bill
that no one can find. I have not been much help to them because the
answer is, there is not much that is significantly different, save some
cosmetic fixes that were requested by the majority party in the House.
For example, I am pleased that the strong retroactive liability
protections that the Senate bill offered are still in place, and our
vital intelligence sources and methods will be safeguarded. I am
pleased this compromise preserves the ability of the intelligence
community to collect foreign intelligence quickly and in exigent
circumstances without any prior court review.
I am also pleased the 2012 sunset, 3 years longer than the sunset
previously offered in any House bill, will give our intelligence
collectors and those parties we need to have cooperate with us the
certainty they need in the tools they use to keep us safe.
I am confident the few changes we made to the Senate bill in H.R.
6304 will in no way diminish the intelligence community's ability to
target terrorists overseas, and the Director of National Intelligence
and the Attorney General agreed. That had to be the test. They worked
with us. They made compromises. When we had a proposal for additional
protections for Americans, they agreed. But we had to work out the
language to make sure we provided protections without destroying the
basic integrity of the bill.
I believe we did that. We did that with the Senate bill, and we did
it again with the minor changes the House wanted to make.
Let me address, for the time being, the banner issue of the
legislation, which is Congress's affirmation that the telecom providers
that may have assisted the Government after 9/11 should have the
frivolous lawsuits against them dismissed.
I am confident in the standard of review in title II of the bill on
which we agreed with Congressman Hoyer and Congressman Blunt, his
counterpart in the House, namely, a ``substantial evidence'' standard,
which will ensure that those companies that assisted the Government
following the September 11 terrorist attacks obtain the civil
retroactive liability protection they deserve.

[[Page S6178]]

Unlike the amendment we defeated in the Senate that asked for the
court to determine whether the providers acted in ``good faith,'' we
affirm in this legislation, as we did in the previous Senate bill, that
the providers did act in good faith, and that the lawsuits shall be
dismissed unless the judge finds that the Attorney General's actions
were not ``supported by substantial evidence.''
The focus is on the Attorney General's certification to the court,
not the actions of the providers. We know the providers operated in
good faith, and they deserve liability protection. We are allowing,
however, the court to review the Attorney General's role in that.
Another way to describe it is that we have essentially provided the
district court with an appellate standard of review, just as we did in
the Senate bill. Congress affirms in this legislation that the lawsuits
will be dismissed, but then we give the district court an opportunity
to change that outcome if the judge determines the Attorney General's
certification was not supported by ``substantial evidence'' based on
the information the Attorney General will provide to the court. So the
intent of Congress is clear: the companies deserve liability
protections. That principle has been approved overwhelmingly on a
bipartisan basis in both the Senate when we adopted our bill in
February and the House when it adopted its bill last Friday.
Also, there are clear limits on what documents the court may review
and the extent to which parties may participate in legal arguments.
Because of these important limitations, I am confident that neither the
standard of review nor the court processes will jeopardize liability
protections or our intelligence sources and methods. Thus, Congress is
again positively reaffirming that these companies should have the
lawsuits dismissed.
Mr. President, for the record, I thank publicly these providers--and
they know who they are--who came to our Nation's defense in a time of
national peril. Thank you for ensuring that our Government could keep
Americans safe. Thank you for withstanding years of frivolous lawsuits
that you did not deserve. But, unfortunately, that has been your
penalty for your patriotism. You are a big factor in why America has
not been hit with another terrorist attack since September 11, 2001.
You helped keep us safe for nearly 7 years since that terrible day, and
you did so without legal relief. I thank you, and those who stand with
me today thank you. The least we can do in Congress is to provide you
with the legal protections you so rightly deserve.
Now, some Senators would like to strip the providers' civil liability
protections in the bill. Some believe the thanks these providers
deserve should come in the form of billions of dollars of penalties
through frivolous lawsuits that threaten their business reputation.
Having reviewed the underlying authorities, the certifications, as one
who has practiced a little bit of law in this area, I can tell you
there is no way they could or should be held liable for any monetary
damages, much less the billions of dollars irrationally requested in
the lawsuits.
What these lawsuits do is seek to undermine our program by laying out
who participates in it. By getting at the details of the program, we
would provide those who seek to do us harm with information on how we
collect the information on them that is needed to prevent their
attacks. Just as important, bringing them, dragging them through the
mud of trials in court would simply assure that their business
reputation would be severely damaged in the United States and
potentially obliterated abroad. In addition, there is a real likelihood
that terrorist activities or other extremists would turn on and attack
their property or even their personnel.
I believe seeking to strip liability protection is void of any mature
understanding of the threats this Nation faces. That sort of
shortsighted pandering to far-left political interest groups endangers
our citizens and pays back patriotic service with politically motivated
penalty.
I do not join with those who want to treat those who responded to our
call for help with disregard and disrespect. I thank the providers for
responding to the call, and I will join many others in passing this
legislation who will be thanking them with their vote on this important
national security legislation.
For those who want to challenge the program, note that we did not ban
civil suits against the Government or against any officer of the
Government. And criminal suits--if there are any criminal penalties--
are not banned. They could be instituted by the appropriate
jurisdictions with law enforcement responsibility.
So, Mr. President, there are lots of other points to consider, and
when we get on the bill I will be happy to join in discussing any
further questions that are raised.
Again, I thank my staff, I thank Senator Rockefeller and his team for
having passed the FISA bill. I am very grateful to Mr. Hoyer, the
majority leader in the House, whose efforts were essential to passing
this bill and bringing it to us. We have thanks also for the ranking
member of the House Intelligence Committee, Peter Hoekstra, who worked
with us day in and day out on all of the changes that were requested.
Lamar Smith, the ranking member of the House Judiciary Committee, he
and his staff and his team worked with us throughout.
We have before us not a perfect piece of legislation--I do not think
on this Earth we will ever see a perfect piece of legislation. But for
the challenges we had to go through and the compromises we had to make,
this is the best possible product we can produce that has already
gained an overwhelming bipartisan majority in the House. I hope it will
also get the same kind of response in the Senate.
Our intelligence community deserves it. The citizens of the United
States deserve not only their rights protected, but they need and
deserve the protection this act will give them from further attacks
like 9/11.
Mr. President, I do not see anyone seeking the floor, so I suggest
the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. Mr. President, if I could, I would like to be recognized
for 15 minutes to speak on the FISA legislation.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. Mr. President, the Senate is taking up a matter that I
think is very important to the American people and our national
security, and that is to pass the compromise reached by the House and
the administration regarding the FISA program.
I want to briefly lay out my view of how the law works in this area.
The initial approach by the Bush administration that there was no
requirement to comply with the FISA statute, the Foreign Intelligence
Surveillance Act, because of inherent authority of the Executive in a
time of war I didn't agree with, quite frankly. The idea that an
American would be travailed by an agency of our Government if that
American citizen was suspected of being involved with the enemy--a
fifth column movement, for lack of a better term--and there would be no
court review was unacceptable to me.
If an American citizen is suspected of collaborating with the enemy,
I think there is a requirement for the Government to have its homework
checked, have a judge authorize further surveillance in a kind of
balanced approach. Once there is a reasonable belief that an American
citizen may be involved with enemy forces, that becomes a crime of
treason, potentially.
I do think it is appropriate for Congress to pass a statute that
would say when an American citizen is suspected of being involved with
an enemy force, taking up arms against the United States--uniformed or
not--the FISA statute applies. The inherent authority of the Executive
to conduct surveillance in a time of war is limited, or can be limited
by the other branches of Government.
Having said that, this idea that at a time of war you need a warrant
to surveil the enemy, when no American citizen is involved, is crazy.
We have

[[Page S6179]]

never in any other war gone to a judge and said: We are listening to
enemy forces--for instance, two suspected members of al-Qaida, non-
American citizens--and we need a warrant. You don't need that. That is
inherent in the ability to conduct military operations, to monitor the
enemy.
Those who want to basically criminalize the war, I disagree in equal
measure. We are at war, and there is an effort by our intelligence
agencies out there to monitor phone calls and other electronic
communications of a very vicious enemy that is intent on attacking us
again. That program has been shut down because of this dispute.
We have finally found a compromise which would allow the program to
move forward, protecting American citizens who may be suspected of
being involved with enemy forces, and also allowing the Commander in
Chief and our military intelligence community to aggressively monitor
networks out there that wish us harm. In this global world in which we
live, the technology that is available to the enemy is different than
it was in 1978. So we have modernized FISA and made it possible for our
intelligence community to be able to keep up with the different
technologies that enemy forces may be using to communicate.
I can assure the American people that this program has been of
enormous benefit, the terrorist surveillance program. It has allowed us
to stay ahead of enemy activity, and with terrorism you do not deter
them by threatening them with death. That is something they welcome.
Other enemies in the past have been deterred from attacking America
because they know an overwhelming response will come their way. In the
Cold War, it was called mutually assured destruction. With terrorist
organizations that would gladly forfeit the lives of mentally
handicapped young people, and others, you have no idea what they are up
to, and you just try to isolate them the best you can. Finding out what
they are up to and following their movements is essential because you
have to preempt them before they are able to attack.
We have a compromise that has come from the House to the Senate that
I can live with. The sticking point was the role our telecommunications
companies played in the terrorist surveillance program. It is my
understanding that the Attorney General--the chief law enforcement
officer of the land--and the Department of Justice gave a letter to the
telecom companies involved, saying: Your cooperation with our
intelligence communities and military surveillance program is legal and
appropriate, and we need your help because a phone call made in
Afghanistan, because of the global economy in which we live, may be
routed through an American system here, and the two people talking are
not citizens, but there may be a telecommunications involvement in
terms of routing of the phone call, and we need assistance from the
telecom companies to be able to track the technology that exists today
that is being used by the enemies of the country.

The idea that somebody would want to sue them because they broke the
law, after they have been told by the Department of Justice and the
Attorney General their help was needed and it was lawful for them to
help, misses the point.
What are we trying to do as a country? Are we trying to avoid the
fact that we are at war by talking about lawsuits that undermine the
ability of our country to protect itself? I am very much for civil
liberties. I don't want any American, as I said before, to be followed
by an agency of our Government, suspecting they are cooperating with
al-Qaida or another terrorist group, and not have the Government's work
looked at by a judge. I would not want that to happen to anybody. If
you think anybody who is an American citizen is helping the enemy, you
ought to be able to go to a judge and get a warrant. But this idea of
having the American telecommunications companies, which were
cooperating with the Government in a fashion to help our forces and our
intelligence community stay ahead of an enemy, be subject to a civil
lawsuit is riduculous. That is not the appropriate remedy.
If we allow these companies who have been asked by their Government,
through the chief law enforcement officer of the land, to participate
in the program--if we ask them to participate and then sue them, who is
going to help us in the future? This is pretty basic stuff for me. If
we do not protect these companies from lawsuits that are existing out
there, when they were willing to help the Government--if we don't give
them protection, nobody in the future is going to come and help us. We
need all the help we can get. We need help from banks,
telecommunications companies, and we need help from all kinds of
different corners of the private sector to beat this enemy. We are all
in it together.
The terrorists use banks to funnel money. Well, the banks can help us
if we suspect that an account exists that is being used by a terrorist
organization. We should be able to track that down. We are all in this
together.
The private sector plays a role in the war on terrorism. Every
citizen can play a role in the war on terrorism by being vigilant. We
finally reached a deal that would allow the program to be reauthorized,
protecting civil liberty and telling the telecommunications companies
that helped us: You are not going to get sued.
To my dear friend, Senator Specter--his solution is to let the
lawsuits come forward but shield the companies by having the Government
take legal responsibility and be subject to being sued. That is not the
right answer either. Our Government wasn't doing a bad thing. Our
Government was doing a good thing. Our Government was trying to find
out what enemies of this Nation were up to before it was too late.
We have had a lot of warnings in the past that were ignored. How many
times do we have to deal with this terrorist problem through the law
enforcement model to only wake up and find out that we were wrong? The
law enforcement model will not work. The law enforcement model punishes
people after they commit the crime. We are at war. Our goal is to keep
them from attacking us. The military model is the one we should pursue.
In every other war, the private sector itself has helped the Government
defeat the enemies of this country.
When Senator Obama says he would like this provision taken out of the
bill--protection for telecommunications companies from lawsuits--that
he would like that taken out of the bill, what he is telling the
Senate, the House, and the country is that this deal will fall apart.
If we took this provision out, there would be no deal. People like me
would not allow this process to go forward--and we had to give some.
There was a give on the part of the administration and people like
myself. There are some programs that I think are inherent to fighting
the war that now have to be reviewed by the court. But that was a
compromise.
So for Senator Obama to come and say that he would take this
provision out is saying that he does not believe in a bipartisan deal
on the subject matter in question. The left has gone nuts over there--
the hard left. They think this is totally unacceptable. So, apparently,
he is going to tell them: I don't support this. I am sure that is what
they want to hear. But I say to my colleague, deals require giving and
taking. It requires sometimes telling your friends what they don't want
to hear. This is an example, in my opinion, of trying to tell your
friends what they want to hear and positioning yourself in a way to
look good with the public in general.
That is not leadership. Leadership requires the common good to trump
special interests. It requires political leaders to turn to their
allies at times and say: No, your suggestion cannot win the day because
if I give you what you are insisting on having, there will be no
movement forward.
Senator Obama is willing to give the left what they want. The
consequence of that would be that the deal would fall apart because
many people like me believe if you allow these companies to be sued for
helping their country, then nobody will come forward in the future to
help their country from the private sector.
In this war, we are going to need support from the private sector,
not only in telecommunications but in banking and other areas. So I
hope the amendment to strike the retroactive immunity for
telecommunications companies will be defeated because, if it is

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passed, the deal fails, the movement forward stops, and America is
harmed. I am here to support the deal.
Understand that I didn't get all I wanted, but America will be safer
if we can get this program reauthorized. Our civil liberties will be
better protected, and the ability to understand what our enemies are up
to will be greatly enhanced. Every day that we move forward as a nation
with this program being compromised is a day that the enemy has an
advantage over us. We know what happens if this enemy is not dealt with
firmly and quickly. They are lethal, they are committed, and they will
do anything to harm our way of life.
We have an opportunity to come together as Republicans and Democrats
and move forward on a surveillance program that is vital to our
national security, and those who want to undo this deal because of
special interest pressure are not exercising the leadership the
American people need in a time of war.
With that, I yield the floor.
The PRESIDING OFFICER (Mr. Brown). The Senator from Washington is
recognized.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business for 10 minutes and that the time be counted against
the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.

Refueling Tankers

Mrs. MURRAY. Mr. President, 4 months ago when the Air Force announced
that Airbus, not Boeing, would supply the next generation of aerial
refueling tankers, Air Force acquisition officials declared that the
contest had been fair, open, and transparent. They said they made no
mistakes, and they boasted that the decision could withstand any level
of scrutiny.
The Government Accountability Office called all of that into question
in a 67-page decision that shows the Air Force competition was unfairly
skewed toward Airbus from the very beginning.
The decision, responding to Boeing's protest of the Air Force
competition, was damning. The GAO described the contest as
``unreasonable,'' ``improper,'' and ``misleading.'' It found that the
Air Force significantly overestimated the cost of the Boeing tanker,
that it misled Boeing while helping Airbus, and that the Air Force
selected Airbus even though the company failed to meet key requirements
of the contract. It concluded that:

But for these errors, we believe that Boeing would have had
a substantial chance of being selected for the award.

It is unclear at this point whether those errors were due to
incompetence or to impropriety. But one thing is definite: This contest
was anything but fair or transparent.
I want to know how the Air Force got this so wrong. I have already
asked for a meeting with Defense Secretary Gates so he can tell me how
the Pentagon plans to respond. I will make it clear that the Air Force
cannot go forward with this contract and that I expect it to follow the
GAO's recommendations. The Air Force must return to the original
request for the proposal, rebid the contract, and get this right.
The difference between what the Air Force said about the acquisition
process and the GAO's findings are startling.
On February 29, Sue Payton, who is the Air Force's Assistant
Secretary for Acquisition, said at a DOD news briefing:

We have been extremely open and transparent. We have had a
very thorough review of what we're doing. We've got it
nailed.

A week later, she told the House Appropriations Subcommittee on
Defense:

The Air Force followed a carefully structured source
selection process, designed to provide transparency, maintain
integrity, and ensure a fair competition.

And throughout the last 4 months, Air Force officials have insisted
that they selected the cheapest plane that best met their criteria and
that they made no mistakes.
The GAO's decision paints a very different picture of the contest
and, as I said, it raises serious questions about how the Air Force
conducted this competition. The GAO found the Air Force made a number
of errors that unfairly helped Airbus and hurt Boeing. The GAO found
that the Air Force changed direction midstream about which criteria
were more important. It did not give Boeing credit for providing a more
capable plane according to the Air Force description of what it wanted.
Yet it gave Airbus extra credit for offering amenities for which it did
not even ask.
The GAO found that the Air Force ``treated the firms unequally'' by
helping Airbus at Boeing's expense. The GAO found that the Air Force
misled Boeing about whether it had fully met the requirements in the
RFP, all the while keeping up conversations with Airbus and giving it
the correct information.
The GAO said the Air Force deliberately and unreasonably increased
Boeing's estimated costs. When the mistake was corrected, it was
discovered that the Airbus A330 actually cost tens of millions of
dollars more than the Boeing 767. The GAO said the Air Force accepted
Airbus's proposals, even though Airbus could not meet two key contract
requirements. First, Airbus refused to provide long-term maintenance,
as was specified in the RFP, even after the Air Force asked for it
repeatedly. Second, the Air Force could not provide that Airbus could
refuel all of the military's aircraft according to procedure.
Let me say that again. The Air Force selected the Airbus A330 even
though Airbus refused to agree to a key term in the contract and even
though the Air Force failed to show that the A330 was even capable of
refueling our military's aircraft by the books.
These are serious findings. No matter how one looks at it, this
competition was anything but transparent. Even though the Air Force
declared its contest was fair, it appears it had its thumb on the
scales for Airbus all along.
But the last findings could be the most damaging of all of them. If
Airbus cannot actually prove its tanker can do the job or that it will
fulfill its obligations, how can it possibly be awarded that contract?
Today the Air Force is contemplating what to do next. As I said, I
think the answer is clear. This contract should be rebid. I agree with
those who have said we need to get these planes into the hands of our
air men and women as fast as possible. I represent Fairchild Air Force
Base in Washington State. Those air men and women fly those refueling
tankers. I know how important this decision is to them.
This was not an acceptable acquisition process, and it would be
unconscionable to go forward with this selection without first
addressing the questions that were raised by the GAO's decision. In
order to do that, we must have a competition that is not overshadowed
by questions of ethics or competence, and we have to get the right
plane.
These tankers we are talking about refuel planes and aircraft from
every single branch of our military. They are the backbone of our
global military strength. We need a competition where the criteria are
clear, where the participants can earn credit that is spelled out in
the contract and there is no extra credit that is awarded unfairly, and
we need a fair evaluation of all the costs.
We need to go back and start with a clean slate, hold a truly
transparent competition that does our air men and women justice. That
is what our American taxpayers expect, and our American servicemembers
deserve nothing less.
I yield the floor. 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. ROCKEFELLER. 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. ROCKEFELLER. Mr. President, I am going to talk a little about the
FISA amendment and the protection of civil liberties of Americans. Some
people who are concerned about this bill don't recognize that there
have been enormous changes made that specifically speak to civil
liberties, and so I would like to talk about that. I wish to take the
time to explain how the negotiators of the FISA bill have taken great
care in protecting the constitutional right of privacy of American

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citizens in crafting this agreement, which was a heavily discussed and
worked over matter.
The FISA Amendments Act of 2008 includes strong protections of civil
liberties of Americans while still allowing the Government to collect
the foreign intelligence it needs to protect the country, literally.
Maintaining this balance between civil liberties for Americans and
protecting our Nation against foreign attack was obviously my utmost
priority, as well as Senator Bond's, during the lengthy negotiation
process that produced what I think is historic legislation in
modernizing FISA for the first time in 30 years.
The FISA bill protects Americans in a lot of ways by ensuring FISA
Court involvement in any aspect of the new procedure for targeting
foreigners outside the United States that could involve U.S. persons.
It does so in four significant ways:
First, the bill requires the FISA Court to approve procedures used to
determine whether the foreign target of the surveillance is outside of
the United States. The court's assessment of the adequacy of these
procedures will ensure that the new authorities cannot be used for
domestic surveillance.
Second, the bill requires the court to approve the procedures used to
address any incidental acquisition, retention, or dissemination of U.S.
person information. These procedures protect the privacy of any
Americans who might be in contact with a foreign target.
Third, by explicitly asking the court to assess whether the
procedures comply with the fourth amendment, the bill requires the
court to determine whether the privacy interests of U.S. persons are,
in fact, adequately protected.
Finally, the bill requires the court to approve targeting and
minimization before collection begins, in most instances. The court
would be required to review and approve the procedures at least
annually. This is called prior approval, and it was something that was
not welcomed by some, but through the negotiation process, the prior
approval process was incorporated in the bill, and it means that the
court has to approve targeting and minimization before collection. The
Director of National Intelligence and the Attorney General would only
be able to proceed prior to a court order if emergency circumstances
exist but for a period of time no greater than 7 days before being
required to seek the approval of the court and no more than 30 days
while the court is considering the request. Sometimes, but very rarely,
emergencies do take place.
The FISA bill also provides unprecedented new privacy protections for
Americans abroad. This may be the most important part. For the first
time, Americans traveling or working abroad are entitled to the same
protection from surveillance and search that they would have if they
were in the United States. There are 4 million Americans at any given
moment who are outside of the United States, which is equal to the
total population of our Nation when it was founded. The requirement is
that the Government obtain a court order prior to targeting them for
any foreign intelligence collection. So they get the same type of
protection as does anybody in the United States. That is a first.
Before, the Attorney General could pretty much just say: We want to
target these people overseas, and there was no court involved, there
was no approval process involved legally. Now that cannot happen. So
they are protected, indeed, the same as anybody in the United States.
The bill requires the court to make an individual determination of
probable cause before a U.S. person overseas may be targeted for any
electronic surveillance or other foreign intelligence collection. Each
court order is valid for no longer than 90 days. This is an important
new protection that has never before been in place.
Apart from the court review I have detailed, the FISA bill also
protects the privacy interests of Americans through other provisions.
The bill prohibits the new procedure for targeting foreigners outside
the United States from being used to target anyone inside the United
States or from being used to acquire entirely domestic communication.
The way it is now--and it is called reverse targeting--within the
United States, you take out of the air some communication of somebody
overseas who may be contacting somebody in the United States, and that
potentially puts the U.S. person at risk. That is reverse targeting. So
there is a prohibition now which explicitly includes reverse targeting,
where the purpose of targeting somebody outside the United States is to
target somebody in the United States. I know it is complicated, but it
is important.

Because of the importance of the prohibitions in the bill, the bill
requires the Attorney General to adopt guidelines that ensure that the
Government obtains individual court orders when required and does not
engage in any prohibited conduct, such as reverse targeting, which, in
effect, disappears from the lexicon of telecommunication collection.
The bill also requires the Attorney General and the Director of
National Intelligence to certify to the FISA Court, under oath, that
the acquisition complies with the prohibitions in the bill and that the
procedures and guidelines are consistent with the requirements of the
fourth amendment.
To ensure there are no unintended consequences relating to when a
warrant must be obtained under FISA or how information obtained using
FISA can be used, the bill does not change the definition of
``electronic surveillance'' in FISA. It is left exactly as it is.
People say: Well, why is that? Everything has changed. Well, there can
be legislative authorizations to make changes, but only if those
legislative authorizations are made can there be changes in electronic
surveillance. So the definition remains the same--a good, solid base.
The bill requires extensive reporting to Congress about the
implementation of the new provisions, compliance with the prohibitions
in the bill--that is important; we have not had that--and the impact of
the new provisions on U.S. persons.
The bill sunsets on December 31, 2012, a date which ensures that the
reauthorization of the FISA bill will be addressed, in fact, by the
next administration.
In addition to protecting the civil liberties of Americans in the new
procedures, the bill seeks to prevent any future circumvention of FISA
and to ensure that Congress has a complete set of facts about the
President's surveillance program.
Well, one might question: How does that happen? In title III of the
FISA bill that is before us, we direct the inspectors general of
relevant agencies--and that is a whole bunch of intelligence agencies--
to complete a comprehensive review of the President's warrantless
surveillance program. Then, within a year, the inspectors general must
submit an unclassified report to Congress, with a classified annex, if
necessary. This IG review provides an important vehicle for ensuring
that a comprehensive set of facts about the President's program is
available to Congress and, to the extent the classification permits, to
the American public itself.
A comprehensive review of the President's program is particularly
important given the possibility the courts will dismiss ongoing
litigation due to title II. It also ensures that accountability for the
program will be directed at the Government, where it belongs.
To ensure that the Government never again relies on an inapplicable
statute to argue that warrantless wiretapping is permissible, the bill
strengthens the requirements that FISA and specific chapters of title
XVIII are the exclusive means by which electronic surveillance and
criminal law interceptions may be conducted. The act provides that in
addition to the specifically listed statutes, only an express statutory
authorization passed by the Congress for surveillance or interception
may constitute an additional exclusive means for that surveillance or
for that interception. It is a very strong protection against abuse.
Finally, the bill clarifies that criminal and civil penalties can be
imposed for any electronic surveillance that is not conducted in
accordance with FISA or the specifically listed criminal intercept
laws.
In summary, the FISA bill has a multitude of statutory provisions
that provide the judicial and congressional oversight that is essential
to protecting the civil liberties of all Americans, both here and
abroad. They were

[[Page S6182]]

not protected abroad. They are now. The House did not pass this bill
because they believed there was an insufficiency of civil liberty
protections--and they may have been right. So we hammered these out in
long meetings in which the White House, all the intelligence agencies,
and the leadership--Republican and Democratic--of the House and the
Senate were there.
It is a much stronger bill. People will argue that people like me
talk about a balance between being able to collect--which is the only
way you are going to know if you are going to be attacked--or civil
liberties. So people tend to go all the way this way or all the way
that way, not recognizing or not being willing to accept that there can
be a balance. We have created that balance in our bill. I am proud of
that. It is one of the many reasons I am for the bill.
I yield the floor.
The PRESIDING OFFICER. The senior Senator from Alaska is recognized.

HONORING ELLADEAN HAYS BITTNER

Mr. STEVENS. Mr. President, I never thought I would have this
occasion, but I want to speak today to honor the life of a great woman,
my mother-in-law, Elladean Hays Bittner.
Ellie was born February 1, 1919, in Phoenix during the great flu
pandemic. She often remarked on why she had no birth certificate--the
hospital did not expect her to survive.
Ellie grew up and worked on her family's ranch in Arizona. She
studied home economics at the University of Arizona, graduating in
1939. During college, she rode with the U.S. Army cavalry and was
chosen to be a member of the Mortar Board, a national honor society.
Ellie married William-Bill-Edward Bittner in 1944 in Arizona. They
honeymooned to Alaska, traveling by Alaska steamship and train to
Anchorage to meet her in-laws. In 1950, Ellie moved to Alaska with Bill
and their children, Catherine--my wife, William, and Judith. Ellie
worked for the Anchorage school district, teaching home ec. She started
a boys' cooking class and an early childhood education program.
Governor Hickel appointed Ellie to a position with the Alaska
Department of Education. She traveled extensively, interviewing women
in remote villages and towns and published a study that was a pioneer
effort to identify economic opportunities for women.
Ellie and Bill were very active in Alaska, entertaining frequently at
their downtown log house in Anchorage and flying all over the territory
in their Cessna 180 with their children.
The family began splitting their time between Alaska and Arizona in
the 1970s and Ellie returned to ranching. She established the ``Quien
Sabe'' outfit, which she was featured with in 2002 at the Cowgirl
Museum and Hall of Fame, and is included in ``Hard Twist'', a book on
western ranching women. Ellie remained active in ranching until her
death.
She was a great lady. She passed away on June 10 in our hometown of
Anchorage, AK, surrounded by her family. I had the honor to be with her
for part of that time. I speak for all of us and many more when I say
this. There is a hole in our lives that will never quite be filled.
Ellie left us with wonderful memories. Through these, she will live on.
Every time I hear Willie Nelson I am going to remember Ellie. She
loved Willie Nelson. I think the only difference she had with Willie is
she hoped her children, her babies, would grow up to be cowboys.

Leave of Absence

Mr. President, I ask unanimous consent I be excused from attendance
of the Senate following today's session, until the first vote in July.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.

Honoring William Sheffield

Mr. STEVENS. Mr. President, I rise today to pay tribute, on his 80th
birthday, to a great American and a great Alaskan, Governor Bill
Sheffield. My friend Bill Sheffield was the Democratic Governor of
Alaska from 1982-86, which was just a short episode in a lifetime of
service to Alaska both in government and in the private sector.
Governor Sheffield came to Alaska in 1953, the same year I moved to
our great State, to handle television sales for Sears and Roebuck. His
exceptional intellect and work ethic were easily recognized. Quickly,
he took leadership positions in the Chamber of Commerce and other
business groups in Alaska, eventually becoming president of the Alaska
State Chamber of Commerce and, in 2006, being awarded the Lifetime
Achievement Award in Business by the Alaska Business Monthly. By 1960,
he had entered the hotel industry by purchasing his first hotel in
Anchorage. The day before the Good Friday Earthquake in 1964, Bill
Sheffield had just opened a new hotel, but it would take more than that
earthquake to stop Bill. His hotel business continued to grow until he
owned 16 hotels throughout Alaska and the Yukon Territory.
As Governor, Bill Sheffield was focused on ``Bringing the State
Together,'' the theme of his campaign. His reputation as a problem-
solver and his pledge to unite Alaskans resulted in a landslide
victory. Governor Sheffield's experience as a businessman served him
and Alaskans well during his time in the Governor's Office. His efforts
reduced excessive spending in State government and helped save Alaska's
natural resources for the use of all Alaskans for generations yet to
come.
After leaving government, Governor Sheffield continued his service to
Alaskans, taking seats on several private and nonprofit boards of
directors. Currently, he is the director of the Port of Anchorage,
where he has developed a master plan for expansion of the port through
2014. Governor Sheffield's vision for this expansion of the State of
Alaska's largest port will not only serve Anchorage, but nearly the
entire geographic area and population of our State. Mr. President, over
90 percent of the goods that come into my State come through the Port
of Anchorage. Furthermore, this expansion will serve the national
defense needs of the United States by providing vital transportation
support and access to four major military installations in Alaska,
including the Stryker Brigade at Fort Wainwright. I am proud to have
supported the port expansion project and I am proud of Governor
Sheffield and the work he is doing for Alaska and all of the United
States.
Governor Sheffield's continuing service does not end with the Port of
Anchorage. Additionally, he is a trustee of Alaska Pacific University,
a member of the advisory board of ENSTAR Natural Gas, a charter member
of Commonwealth North, past chairman of the Federal Salary Council and
a member of the board of directors of the Alaska Railroad and formerly
the railroad's president & CEO. As Governor, Bill Sheffield was
instrumental in saving the Alaska Railroad, purchasing it from the
Federal Government and then providing the necessary investment in
Alaska's infrastructure to assist in our development. In recognition of
his service to the railroad and to the State of Alaska, the Alaska
Railroad Depot at the Anchorage International Airport was named after
Governor Sheffield in 1999.
Most importantly to Alaskans, Bill is also a skilled fisherman and
avid outdoorsman. A love of bush Alaska runs through every aspect of
this man. I know firsthand of his love for the bush areas of our home
State. He and I have enjoyed many days together out on the water
whether fishing for salmon on the Kenai River or elsewhere in Alaska.
In this Chamber today, we see a lot of partisan fighting. One of the
greatest qualities of my friend Bill Sheffield is the ability to get
past the labels of Democrat and Republican. Bill Sheffield is a
lifelong Democrat. While he was the Governor of Alaska and I was here
in Washington as Senator, we always found a way to work together. As
Governor, Bill Sheffield was able to identify what needed to be done
for the greater good of Alaska. More importantly, he pushed aside the
partisanship, went ahead and did what needed to be done for Alaskans.
In both business and government, Governor Sheffield is a leader and a
doer. He is a fine example for all of us. I am honored to count Bill
Sheffield a friend and I hope the entire Senate will join me in wishing
him a happy 80th birthday. Happy birthday, Billy.
Ms. MURKOWSKI. Mr. President, it is with great honor and respect that
today I acknowledge the 80th birthday of a great friend and leader in
Alaska. Governor William ``Bill'' Sheffield has

[[Page S6183]]

been a leader in business and government for most of the 55 years he
has lived in Alaska. He served as Governor from 1982 to 1986, following
a business career in which he built a company that became one of the
largest private employers in Alaska and the Yukon Territory.
Governor Sheffield came to Alaska in 1953 as a regional sales
representative for Sears Roebuck in charge of television sales and
service. He became one of the top salesmen in the nation during the
1950s and began his leadership in business groups such as the Jaycees
and the Chamber of Commerce. In 1960, he purchased an Anchorage hotel,
and founded Sheffield Enterprises. In 1964, literally the day before
the great Alaska earthquake of March 27, 1964, he opened a new hotel in
Anchorage. This began an expansion that eventually saw his company grow
to 16 hotels with 750 employees. He sold the company in 1987 to Holland
America Line-westours, one of the major players in Alaska's growing
tourism market. While in business, Sheffield served as president of the
Alaska State Chamber of Commerce and the Alaska Visitors Association.
As a candidate for Governor in 1982, Bill Sheffield's theme was
``bringing the state together'', a reference to a pair of divisive
ballot initiatives that same year. His message of inclusion and
cooperation helped him win the governorship in a landslide. Governor
Sheffield then turned his attention to curbing the runaway growth in
State government, promoting efficient business-style management of
public works projects and saving more of Alaska's energy revenues for
future generations.
Currently, Governor Sheffield serves as port director of the Port of
Anchorage, where he oversees a critical and all-encompassing port
expansion. The port is a military strategic port and serves 80 percent
of Alaskans with 90 percent of their goods. He is also a trustee of
Alaska Pacific University, a member of the advisory board of ENSTAR
Natural Gas, and a charter member of Commonwealth North, one of
Alaska's leading public affairs forum. He is the past chairman of the
Federal Salary Council; recently he received the Lifetime Achievement
Award in Business from the Alaska Business Monthly; the former
president and CEO of the Alaska Railroad Corporation and now serves on
its board of directors. In recognition of his service to the railroad
and to the State of Alaska, the Alaska Railroad Depot at the Ted
Stevens International Airport was named in his honor in 1999.
Governor Sheffield has always believed that wisdom comes with the
experience of making your own payroll. He credits his success in
business and government from having the experience of workers depending
on him alone for their paycheck.
Lastly, Bill Sheffield, a lifelong Democrat, is one of the best
examples of someone who puts partisanship aside, rolls up their sleeves
and works with anyone who is also dedicated to achieving important
goals for the greater good. Whether in business, politics, education or
many other endeavors that have benefited so many people, he is a leader
and example for all of us.
I would also be remiss if I didn't mention that Bill is an excellent
duck hunter, fisherman and avid outdoorsman. Mr. President, I am proud
to call Bill Sheffield a friend and I hope the entire Congress will
join me in wishing him well on the 80th anniversary of his birth. Happy
Birthday, Bill.
Mr. President, 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. BROWN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
Mr. BROWN. Mr. President, I ask unanimous consent to speak for up to
10 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Student Aid

Mr. BROWN. Mr. President, as I travel my State, I have held close to
100 roundtables of 15, 20 people gathered together as a cross section
of the community in some 65 or 70 Ohio counties.
I hear more and more people talking about how difficult it is for
middle-class kids, for kids from working families, especially for
first-generation and potential first-generation students being able to
go to college.
We have made some progress in the Senate in the 15, 16, 17 months
since the Presiding Officer and I and others have been in this body.
One was the College Cost Reduction Act, an investment in America's
students. It was a promise that I and my other freshman colleagues
campaigned on 2 years ago. We have delivered.
The increases in student aid that are beginning to go into effect
next week are a downpayment of America's future prosperity, on its
future competitiveness. This investment could not have come at a better
time. With college costs at an alltime high, neither student aid nor
family incomes have been able to keep up.
In my home State of Ohio, between 2001 and 2006, the cost of
attending college increased 53 percent at 4-year public colleges and
universities, and almost 30 percent at 4-year private colleges, 53
percent at public universities, close to 30 percent at 4-year private
schools.
During this same period, the median household income in Ohio
increased only 3 percent. In the 2004-2005 school year, 66 percent of
students graduating from 4-year institutions in my State graduated with
student loan debt. The average debt was $20,000.
This bill will help students manage the debt they are incurring and
give them more options after they leave school. One of the most
important provisions of the bill is a new income-based repayment
program that will allow students to pay their debt as a percentage of
their income. This initiative, along with the Public Service Loan
Forgiveness Program, will help students manage their debt and allow
them to pursue careers in public service without fear of student loan
payments they simply cannot afford.
In April, I held a Health, Education, Labor, & Pensions Committee
public hearing at Ohio State University to discuss student debt issues.
One of the witnesses we heard from was a young woman from Cincinnati
whose distraught mother wrote me about the crippling debt her daughter
had accrued trying to pay for college.
She testified she never believed an education could cost so much and
how she worried about how she was going to help her family and advance
her career now that she was saddled with so much student loan debt.
As I said, as I travel the State, I hear stories such as these from
students and parents who tell me it is becoming harder and harder to
afford a college education for those Ohioans, for millions of others
across this country. This bill will finally provide some much-needed
relief. I would add that as Governor Strickland, the new Governor of
the State who has been in office some 17 months or so, has frozen
tuition at public universities, which has made a big difference,
obviously, in the affordability of college. And coupled with what the
State is trying to do now in Ohio, after the State did very little to
rein in college costs, coupled with what we are doing here, it will
make a big difference, particularly for first-generation students, but
for all people who want to go to college whose parents do not make
quite enough for them to be able to afford it. This is a major step, a
positive step, in changing the direction of our country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.

Medicare Advantage

Mr. DURBIN. Mr. President, pending before the Senate is an important
measure about compensating medical providers who treat Medicare
patients. Medicare patients, of course, are the elderly and the
disabled. This program that was started over 40 years ago reaches 40
million Americans. It is an important lifesaver. It is a lifeline for
many people who have reached a point where they can no longer afford to
pay for their own major medical bills. Many of these people are on
fixed incomes. Many of these folks have no health insurance, other than
Medicare. They are desperate to find the kind of care they need.

[[Page S6184]]

Medicare, a program that was once criticized as being too much
government and socialism, has turned out to be one of the most valuable
programs the Federal Government offers. For 40 million Americans, it
means they have the peace of mind that when they are sick, there is a
place to go and someone to pay for it, that they will not sacrifice
their savings and everything they have because of a medical
catastrophe. There is a suggestion of cutting the compensation to
Medicare providers by 10 percent. The fear is, if we cut that pay to
these Medicare providers, fewer doctors will take Medicare patients;
they will decide that the economic benefits are with other patients who
might be paying more through private health insurance or even out of
their own pockets.
We have a deadline. On July 1, this 10-percent cut goes into place.
We have been trying, week after week, month after month, to pass in the
Senate a provision that will protect these Medicare providers from this
proposed cut of 10 percent. Imagine, if you will, that seniors who have
doctors' appointments in the first or second week of July call to find
that the appointments have been canceled because their doctor no longer
takes Medicare patients. I don't want that to happen in Illinois. I
don't think it should happen anywhere across this country.
A bill comes through the House of Representatives which proposes that
we stop this 10-percent cut and make sure Medicare does not suffer this
change and that the Medicare beneficiaries are not disadvantaged. The
vote was called earlier this week in the House of Representatives. The
final vote was 355 to 59. By a margin of 5, or 6 to 1, a bipartisan
vote in the House of Representatives, they voted to take care of this
problem and do it now before the July 1 deadline kicks in. The bill
that passed in the House is supported by physicians, consumer groups,
pharmacists, hospitals, and many others. Who opposes this bill? Two
groups. I should say two entities--the health insurance industry and
the White House. Why? Because the bill provides for savings from
private fee-for-service Medicare plans. In other words, the additional
10 percent that is going to be paid to these Medicare providers, part
of it at least is offset by saying that private health insurance
companies are going to receive less in reimbursement for treating
Medicare patients.
Why should they receive less, you ask? Because the so-called Medicare
Advantage plans, private health insurance plans providing benefits that
look a lot like Medicare, charge more than the Medicare plan, 12 to 13
percent more. Those aren't figures dreamed up by Congress. They come to
us from the executive branch of Government. We suggested some savings
in the amount of money paid to private health insurance companies and
the resistance comes, obviously, from those companies, the White House,
and this morning from the Republican side of the aisle. They refuse to
let us cut any reimbursement to the private health insurance companies
that charge more for the same services that Medicare is providing.
So we have reached an impasse. It is an impasse that has to be broken
to the benefit of Medicare beneficiaries. I think we should be guided
in breaking it by what happened in the House of Representatives by a
vote of 355 to 59. Private fee-for-service plans are paid more than
what it costs to treat the same Medicare patient in the traditional
Medicare Program. We are paying these private insurance companies more
than the ordinary Medicare reimbursement.
For some on the other side of the aisle, this is all well and good.
They want to privatize Medicare. They want to end this so-called
Government health insurance plan. I am not one of those. After more
than 40 years of success in Medicare, I don't want to see this program
go away. This program has been a lifeline when all else has failed.
Medicare Advantage plans, those private health insurance company plans
I talked about, cost taxpayers, on average, 13 percent more than
Medicare for the same benefits. Private fee-for-service Medicare
Advantage costs even more, 19 percent. This payment disparity gives
private fee-for-service plans a competitive advantage over traditional
Medicare. In other words, they can offer a little bit more, some bells
and whistles, and they charge dramatically more when it comes to
billing taxpayers and the Government for their services. We are trying
to trim that back a bit.
The howls and screams from the other side of the aisle come because
they want to protect these private health insurance companies. These
unjustified higher payments are fueling large increases in enrollment
in these types of plans that charge more because they offer a little
bit more here and there. Even CMS has been concerned about the
marketing practices of these private fee-for-service plans. Understand,
these private health insurance companies, trying to enroll Medicare
beneficiaries into their private health insurance alternative to
Medicare, are going door to door, using telephone, mail, soliciting
many seniors. Some of them are misled. Some of them are confused by the
solicitations. There is outright fraud taking place. There have been
numerous reports of sales agents using strong-arm tactics to enroll
Medicare beneficiaries in these plans without the beneficiaries
understanding how the plans differ from traditional Medicare.
Yesterday, the Government Accountability Office released a report
that shows that private Medicare Advantage plans spent less on medical
care than they report to the CMS which, in turn, earned them $1.14
billion in additional profits over what was expected. This is money
going directly into the pockets of the insurance industry, not for the
health benefits of Medicare patients. This report confirms the deal
that was offered to Medicare beneficiaries and American taxpayers by
these private plans is even worse than we thought. Yet today, on the
Republican side of the aisle, they are objecting to this fix in
Medicare to protect these private health insurance plans that have been
found over and over again to charge too much, to be abusive in their
marketing and, frankly, to provide less medical care than they
promised.
In this report, for the first time in the history of the Medicare
Advantage Program, GAO compared the private plans' projected spending
on medical care and profit margins with their actual profit margins and
spending on medical care. They found that in 2005, the Medicare
Advantage plans projected spending 90.2 percent of total costs on
medical services but actually spent 85.7 percent. By spending less on
helping Medicare patients, these plans increased their profits. That is
what it is all about--giving the Medicare patients as little as
possible.
These private health insurance plans are big winners when it comes to
making money but at the expense of medical care for the Medicare
patients. These are the same companies Republicans are trying to
protect by objecting to our fixing this Medicare reimbursement problem.
It is a shame we are putting the health of America's seniors on the
line for the profit of a handful of private insurance companies. The
Bush administration is disguising the truth. They claim the Medicare
Advantage plans are helping, when they aren't doing a good job. This
GAO report is more evidence of waste and abuse in this program,
evidence which those who object to our moving forward refuse to even
read or acknowledge. The changes in this bill are modest. They are
nowhere close to payment cuts the House approved earlier this year.
What Republicans and the White House are objecting to is taking away
another special advantage that private fee-for-service plans have been
given, the ability to deem a doctor or hospital as part of its
necessary work. This bill merely requires private fee-for-service to
enter into contracts with health care providers, as all other private
Medicare plans already do. This reform is good for patients, good for
health care providers, and good for taxpayers.
The overwhelming vote in the House for this bill shows Congress will
no longer allow the Bush administration, as it is packing to leave town
over the next 6 months, to protect the health insurance industry at the
expense of Americans, our families, and Medicare beneficiaries.
I urge my colleagues, support the Medicare Program, make sure
Medicare providers are adequately funded. Don't stand in defense of
private health insurance at the expense of this valuable program.

[[Page S6185]]

I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.

Unanimous Consent Request--H.R. 2264

Mr. KOHL. Mr. President, I rise today to ask unanimous consent that
the Senate take up the No Oil Producing and Exporting Cartel Act,
NOPEC. This legislation will authorize our Government, for the first
time, to take action against the illegal conduct of the OPEC oil
cartel. It is time for the U.S. Government to fight back on the price
of oil and hold OPEC accountable when it acts illegally. Our amendment
will hold OPEC member nations to account under U.S. antitrust law when
they agree to limit supply or fix price in violation of the most basic
principles of free competition.
NOPEC will allow the Attorney General to file suit against nations or
other entities that participate in a conspiracy to limit the supply, or
fix the price, of oil. In addition, it will specify that the doctrines
of sovereign immunity and act of state do not exempt nations that
participate in oil cartels from basic antitrust law. This legislation
will not create any private right of action nor require any action by
the Attorney General, it will simply give the administration the option
to bring an antitrust action against OPEC member nations. Passage of
this legislation will mean that OPEC member nations will face the
possibility of real and substantial antitrust sanctions should they
persist in their illegal conduct.
I have introduced this legislation in each Congress since 2000. This
legislation passed the full Senate by a vote of 70 to 23 last June as
an amendment to the energy bill before being stripped from that bill in
the conference committee. The identical House version of NOPEC passed
the other body as stand alone legislation in May 2007 by an
overwhelming 345 to 72 vote. It is now time for us to at last pass this
legislation into law and give our Nation a long needed tool to
counteract this pernicious and anticonsumer conspiracy.
As we consider the causes of rising gas prices--now exceeding the
once unthinkable $4 per gallon level, up 74 percent since the beginning
of last year--one fact has remained conistent--any move downwards in
price ends as soon as OPEC decides to cut production. And whIle the
OPEC nations enjoy their riches, the average American consumer suffers
every time he or she visits the gas pump or pays a home heating bill.
The Federal Trade Commission has estimated that 85 percent of the
variability in the cost of gasoline is the result of changes in the
cost of crude oil.
The most fundamental principle of a free market is that competitors
cannot be permitted to conspire to limit supply or fix price. There can
be no free market without this foundation. And we should not permit any
nation to flout this fundamental principle.
Mr. President, the suffering of consumers across the Nation in the
last few years has made me more certain than ever that this legislation
is necessary. When I first introduced this legislation in June 2000,
the worldwide price of crude oil was $29 per barrel. It has now more
than quadrupled. How much longer must consumers wait for us to take
action? I believe we need to take action now.
I ask unanimous consent that the Senate proceed to the consideration
of Calendar No. 169, H.R. 2264, at a time to be determined by the
majority leader, following consultation with the Republican leader, and
that the bill be considered under the following limitations: that no
amendments be in order to the bill; that there be 2 hours of debate,
with time equally divided and controlled between the leaders or their
designees; that upon the use or yielding back of the time, the Senate
proceed to vote on passage of the bill without further intervening
action or debate.
The PRESIDING OFFICER. Is there objection?
Mr. DOMENICI. I object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Nevada.

Clean Energy

Mr. ENSIGN. Mr. President, in the last few days, we have been talking
about the housing bill. Last night I got to speak as I had the day
before about an amendment I have been trying to get onto the housing
bill. I would like to speak about the importance of that amendment,
once again.
This country is facing high energy costs right now, with gasoline
over $4 a gallon. Home heating oil is being affected by the price of
energy. Natural gas prices have gone up by over 70 percent. It is
affecting literally every single family and business in the United
States. We need to have a broad-based approach to finding all the
sources of American energy we can possibly find to help make us less
dependent on Middle Eastern oil and other energy supplies coming from
outside the United States. It is important for our national security,
and it is also important for our economic security.
The amendment I wanted to offer to the housing bill deals with
alternative renewable energies. These are energies such as solar, wind,
geothermal, and many others. This amendment is identical to a bill
Senator Maria Cantwell, a Democrat, and myself worked on together. In
total, 45 Members have cosponsored this bill. We actually offered this
legislation as an amendment to housing bill the last time that bill was
on the Senate floor in April.
At that time, our amendment passed with 88 yea votes and only 8 nay
votes. Rarely does something around this body pass 88 to 8 in such a
bipartisan fashion in these partisan days. We should take advantage of
that bipartisanship and do something right for the American people.
Not only do we want more American energy, but whenever we can, we
should certainly try to incentivize bringing more green energy to the
United States. That is the reason we introduced this bill, and it is
the reason there was such a strong vote on it.
There have been a couple of objections as to why we should not
include this amendment on the housing bill. It has been said that this
amendment has nothing to do with housing. I would beg to differ. First
of all, the stronger the economy, the more people will be able to
afford to buy and retain homes. This renewable energy tax bill
literally will produce probably 100,000 to 200,000 jobs in the United
States and billions of dollars worth of investment in the United
States. When people have jobs, there is a better chance they can afford
homes.
Second, there are many provisions in our renewable energy tax bill
that directly relate to housing. My amendment provides incentives to
expand energy efficiency in new homes, existing homes, and appliances
used in homes. For example, if you want to invest in solar energy in
your home, if you want to help the country out by taking some of
your electricity demand off of the power grid and actually produce your
own electricity with solar energy in your home, we have tax credits to
encourage this activity. If somebody is building a more energy-
efficient home, we have tax credits in there to do that. In addition,
we encourage the production of more energy-efficient appliances for
your home. So this amendment is directly related to housing.

One of the other provisions the managers of this bill--and especially
the Democratic leadership--do not want this amendment attached to the
housing bill is that it is ``not paid for.'' Well, there are already
$2.4 billion in tax-related items that are not paid contained in this
housing bill. I will not go into the details because they are fairly
complicated, but know there is almost $2.4 billion in unpaid-for tax
incentives in this bill.
The Democratic manager of this bill said the Democrats in the House
of Representatives would not go for our particular renewable tax credit
legislation because it was not paid for, that there were too many
Democrats in the House of Representatives who would object to it. Well,
how do they expect $2.4 billion in other tax incentives that are not
paid for to be accepted over there and then argue that ours would not
be accepted as well? So I think we should do absolutely everything we
can at this time--with high energy prices on gasoline, home heating
oil, and natural gas going up in the United States--we should do
everything we can to get Senator Cantwell's and my amendment on
renewable energy tax credits put onto this housing bill.
Another reason it is important to have this amendment on this bill,
instead of waiting for another bill in the future, is that a lot of the
contracts and the financing of renewable energy projects--whether they
are solar, geothermal, wind, or any of the other

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clean energy we have in the United States--it is critical for the
financing of these projects that we have predictability and we get the
Clean Energy Tax Stimulus amendment done as soon as possible. For each
quarter that passes--and the Senator from Washington has spoken
eloquently about this--that is more projects that do not get financed.
Projects will not always be financed in the future if they have lost
their financing now. Investors lose confidence.
So we need to have predictability, and we need to enact my amendment
soon as possible. The housing bill, everybody around here knows, is
going to be one of the few bills that will be signed into law this
year. So we need to have the renewable energy tax credits on a bill
that is going to be signed into law. If we actually care about
advancing use of renewable energy in this country, if we care about
jobs in the renewable energy sector of our economy, then we need to
have this amendment passed into law.
The Democratic leader has already said he is going to pull the bill
and we are going to come back to the housing legislation after the
Fourth of July break. I encourage all Americans to contact their
Senators and Representatives in the House, and let their voices be
heard that this is an important issue to them. Write in, e-mail--do all
the types of things that are necessary to participate in our democratic
process, to say yes to renewable energy, to say yes to jobs in America.
Let's put this amendment on the housing bill when we get back after
the Fourth of July recess. Let's do it as quickly as possible. Let's
get the House of Representatives to cooperate with us on something that
is good for America. I happen to be a Republican Senator but this is a
bipartisan issue. In fact, this should be nonpartisan. This should be
something that is done forgetting about whether you are a Republican or
Democrat. Let's do something that is good for America. Let's do more of
that around this place, and I think we will all be better off for it.
I conclude by imploring my colleagues: Think about this during the
break. Think about what is at stake with the tens and tens of thousands
of jobs, the billions of dollars in investment in renewables, and the
chance that we can do something good for America and bring more green
energy, more clean energy to the United States.
Mr. President, I yield the floor and 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. BROWN. 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. BROWN. Mr. President, I ask unanimous consent to speak as in
morning business for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

Paul Laurence Dunbar

Mr. BROWN. Mr. President, I rise today to honor the birth of Paul
Lawrence Dunbar.
It was the African-American poet Maya Angelou who made the verse ``I
know why the caged bird sings'' widely famous, but it was Paul Laurence
Dunbar from Dayton, OH, who penned that powerful poem more than a
century ago. That seems to be the true story of Paul Lawrence Dunbar,
as a trailblazer who paved the way for later generations of African-
American poets and writers.
While academics continue to debate Dunbar's stature in the pantheon
of American poets, there is wide agreement that he is a seminal figure
in African-American literature, the first to achieve national--and some
would argue international--recognition among African Americans.
Paul Lawrence Dunbar was born into meager circumstances in Dayton,
OH. His birthday we honor tomorrow on June 27, 1872. He was the son of
former slaves who escaped to freedom. He was raised by his mother
Matilda, who had little to give him in terms of material wealth. Her
job as a washer woman provided little more than food and clothing for
Paul and his four brothers and sisters. Instead, she instilled in him
something much greater. Paul's mother taught him the arts of song and
storytelling and instilled in her son a lasting love of poetry and
literature. Because of his mother, the poet fell in love with the power
of words at a very early age, some accounts having him reciting and
writing poetry as early as age 6. This love for literature grew over
the years as his mother encouraged him to read and reinforced the
importance of school.
By the time young Paul reached high school, he was the only African
American in his class at Dayton Central High. While he faced so many
difficulties because of his race, he achieved so much during this time
in his life. In the face of prejudice, he became a member of the
debating society, editor of the school paper, and president of the
school's literary society. Working with his classmates and his friends
in Dayton, Orville and Wilbur Wright, Paul Laurence Dunbar published an
African-American newsletter. All the while, he helped support himself
by working as an elevator operator in Dayton's Callahan Building.
Dunbar's birthday, June 27, came to be a very important day for the
poet, as it was on that day when his abilities to write were first
showcased in his hometown and then many years later again on his
birthday when he received national recognition--it was June 27, 1892,
when giving the opening welcome before the Western Writers Conference
at the Dayton Opera House.
As the story goes, Paul was asked by his teacher Helen Truesdell only
days before to give the opening remarks. He was nervous not only about
writing the remarks but also about enough time away from his job as an
elevator operator to give them.
As Jean Gould describes in her book, ``That Dunbar Boy":

Speaking to the Western Writers Conference afforded Paul
his first opportunity to be heard by writers beyond the
Dayton region, a special birthday gift that began the
launching and the cementing of his writing career. His
welcoming address received a burst of eager applause as he
bowed and made a dash for the backstage exit of the Opera
House--he was due back at the Callahan Building as the
elevator operator in just 10 minutes!

This experience for Paul underscored his love of writing and his
desire to make it his career. Soon after, he published his first book
of poems, ``Oak and Ivy.''
It was on June 27, 1896, that William Dean Howells, a prominent
literary critic of the times, published a column in Harper's Weekly
enthusiastically praising Dunbar's second book, ``Majors and Minors.''
Howell stated:

There has come to me from the hand of a friend, very
unofficially, a little book of verses, dateless, placeless,
without a publisher, which has greatly interested me.

So that established Dunbar as a national literary figure. From there,
he went on to write four collected volumes of short stories, four
novels, three published plays, lyrics for 12 songs, 15 books of poetry,
400 published poems, 200 unpublished poems, uncounted essays on social
and racial topics in periodicals and newspapers in a career of less
than 13 years.
Literary critics to this day continue to debate Paul Lawrence Dunbar.
It has been argued that the author should be considered one of the
earliest crusaders for equal rights and that his work belongs in the
long tradition of protest writing. Other critics argue against this
sort of designation--a controversy that speaks to the complexity and
richness of his writing.
There is no debate that Paul Lawrence Dunbar and his works have
enriched the history and character of his hometown, Dayton; his State--
my State--Ohio; and our great country. Paul Lawrence Dunbar is known
throughout the world for his literary genius. He is recognized as a man
of humanity and integrity and determination, thus becoming the first
African American to be accepted by the discipline of American
literature.
Tomorrow, actually, is the date of his birth, but I stand today to
honor this Ohioan and his work.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KERRY. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. The Senate is postcloture on the motion to
proceed to the FISA bill.
Mr. KERRY. Mr. President, I ask unanimous consent to speak as in
morning business.

[[Page S6187]]

The PRESIDING OFFICER. Without objection, it is so ordered.

Zimbabwe Elections

Mr. KERRY. Mr. President, we are known happily as the world's
greatest deliberative body and the world's greatest democracy. There
are times when I have been here when we have indeed lived up to that
reputation, and it has been exciting and rewarding. We also are blessed
to serve in an institution where very frequently we extol the virtues
of our commitment to spreading freedom around the globe. We take that
seriously. I don't think there is a Senator here who doesn't believe in
our responsibility to do that and who isn't proud of America's role in
being able to do that in many parts of the world where we have made a
difference.
However, in recent days here in Washington, the news earlier this
week that Morgan Tsvangirai, the leader of Zimbabwe's main opposition
party, was forced to withdraw from a runoff election that was scheduled
for tomorrow, that news was regrettably met by an absence of the kind
of outrage that it demands and, frankly, by an absence of action of any
kind in the global community.
It is important for the Senate, in my judgment, to forcefully condemn
a shockingly brutal campaign, an overt, visible for everybody to see,
disdainful, arrogant campaign of violence and intimidation that has
been launched by President Robert Mugabe and his henchmen which
rendered free and fair elections in Zimbabwe impossible.
Morgan Tsvangirai's courageous decision not to put his supporters at
further risk in an election that Mugabe explicitly said he would not
respect if he did not win ought to be a wake-up call for the world and
especially to the African leaders who have the most influence over
Zimbabwe.
Action is long overdue. For months now, Mugabe's thugs have savaged
opposition politicians, civil society activists, and anyone else who
dared to dream of a peaceful end to his rein of terror. Villagers have
literally been handed bullets by soldiers and told to choose between
democracy or their lives.
Since the initial balloting in March, the MDC--the Movement for
Democracy--believes that at least 86 of its supporters have been
killed, over 10,000 have been injured, 2,000 unlawfully detained, and
200,000 have fled their homes. In fact, the details of this campaign of
violence and intimidation are even more horrifying than the statistics
convey. Women have been burned to death. Young men have been tortured
and dismembered, and the elderly have been savagely beaten.
In fact, it is hard to imagine a campaign of political murder as
brazen and visible to everybody as the one that has been unleashed on
unarmed innocents, with a sense of complete inability to be touched by
any civil forces outside. Mugabe very matter of factly stated last
week:

We are not going to give up our country because of a mere X
on a ballot. How can a ballpoint pen fight with a gun?

I believe someone with that kind of attitude--willing to strip away
democracy that all of the African nations, European nations, civilized
nations of the world, and United Nations have agreed is the right of
the people of Zimbabwe--that kind of attitude deserves the outrage and
action that it asks for.
We know that even if Tsvangirai had not withdrawn, there was a
unanimous consensus that Mugabe would have stolen the election by
simply rigging the ballots. Once again, this unapologetic dictator
telegraphed his intentions, saying that only God, not the voters of
Zimbabwe, could remove him from office.
Democracy in Zimbabwe is not the only casualty of the news this week.
Every bit as damaged, frankly, is the moral authority of the
international community. Make no mistake, Mugabe is thumbing his nose
at the international community. Daring them, with a sense of complete
impunity, he is inviolable in whatever thuggery he wants to engage in.
That is because he has heard the world say ``never again'' again and
again. Then he has watched the world engage in collective hand-wringing
as mass atrocities unfold and nothing happens, just like the last time.
Well, this can't be allowed to continue. Until recently, there was
little hope of vigorous international response. But Tsvangirai's
selfless act of courage hopefully now can act as a catalyst for change.
On Monday, the United Nations Security Council, including China and
Russia, issued its first condemnation of violence, acknowledging it
would be impossible for a free and fair election to take place. A day
later, some of Africa's influential leaders called Mugabe out for the
savagery of his intentions in this free election process. That has now
made it, thankfully, more difficult for him to try to disguise the
violence as a struggle against postcolonial bullying. Yesterday, that
international community demanded that he postpone the runoff elections
and negotiate with Tsvangirai.
Just yesterday, on his 90th birthday, Nelson Mandela lent his voice
of moral authority to condemn what he called the ``tragic failure of
leadership in our neighboring Zimbabwe.'' Those are strong words, and I
think obviously those words--coming from Nelson Mandela, the former
President of South Africa and really founding President of their
democracy today--those words diminish Mugabe's legitimacy.
Obviously, words aren't going to save Zimbabwe's people. The
international community needs to take action, and it needs to take
action that sends the regime in Zimbabwe a simple, unequivocal message:
Mugabe must go. If he thinks only God can remove him and shows such
extraordinary disrespect for the people of his country, clearly the
international community has a responsibility to make it impossible for
him to do anything else but go.
The Senate passed a resolution that I submitted in late April, but,
frankly, resolutions don't get the job done. They indicate an intent, a
desire by the Senate, perhaps; they indicate that we are taking notice
of what is happening. But this is now a matter of life and death. It is
also a matter of the credibility of the international community.
If words such as ``never again'' with respect to a holocaust mean
something or if the lessons of Bosnia, Herzegovina, and the other
disruptions that we have seen in other parts of the world mean
anything, then we have to do whatever is necessary to be able to bring
about a timely end to the violence and a peaceful transition to
democracy.
The U.N. Security Council needs to impose, immediately, quickly,
targeted sanctions on Mugabe. It needs to impose them on his cronies
and his family. It needs to make it clear to them that they cannot do
what they are doing with impunity. Freezing bank accounts and imposing
further travel restrictions are punishments that may lead those around
Mugabe to begin to reassess their own self-interests, without doing
harm to the people who have already had harm done to them by this
dictatorship.
The real leverage and legitimacy to motivate, mediate, and monitor a
negotiated solution lies in the heart of Africa itself. The Southern
Africa Development Community and the African Union have, frankly, too
often been willing to sit on the sidelines. They need to play a
sustained and active role in resolving this crisis in a way that
respects the will of Zimbabwe's people. They need to do that now with
the help of the European Community, ourselves, and the U.N. itself.
If Mugabe refuses to step down, both the Southern African Development
Community and the African Union should suspend Zimbabwe's membership
immediately and consider applying their own sanctions. I met the other
day with the ambassadors from Botswana in South Africa and Zambia, and
they agreed that if Mugabe stays now in a situation where he has
nullified unilaterally the ability to have an election, he is, in fact,
an unconstitutional leader of the country. Under the charter of the
African Union, the Constitution, they would be completely within their
rights--in fact, it would be imperative that they move to isolate him
because he no longer would be a legal leader of that country.
The United States and the European Union need to stand squarely
alongside African governments in withdrawing recognition from the
illegitimate Mugabe regime and impose additional sanctions targeting
his criminal cabal. Until recently, a few African leaders have proven
to be an obstacle to the crisis. South Africa's President Thabo

[[Page S6188]]

Mbeki is perhaps the most prominent example, sadly. I think many people
had a much higher expectation of President Mbeki. I have known him and
worked with him. I regret that in this situation Mr. Mbeki has chosen
to ignore the warnings of his predecessor and icon and of others. It
has been some time now that the world has been waiting for Thabo Mbeki
in South Africa to weigh in squarely with respect to Zimbabwe's future.
I believe President Mbeki is going to be judged by history for his
response to this crisis. As the leader of the region's powerhouse in
the southern African community, the development community's mediator in
this crisis, President Mbeki still has an opportunity to turn up the
heat on Mugabe, while also helping facilitate a respectable way out.
The world cannot afford for President Mbeki to remain out of step
with other countries in the region, not to mention his own political
party, in condoning Mugabe's brutality. If he chooses to continue on
this ineffectual path, then President Mbeki will remain, in fact,
complicit in the tragic events in Zimbabwe and risk isolating himself
internationally, as well as in his own country. If Mugabe surrenders
and a genuinely democratic government, committed to implementing the
needed economic and political reforms, is formed, Zimbabwe's new leader
will be left to pick up the pieces of an economy that has been run into
the ground by Mugabe.
Annual inflation is reportedly running at over 150,000 percent.
Unemployment stands at over 80 percent. Hunger grips 4 million people.
An estimated 3,500 people die each week from hunger, disease, and other
causes related to grinding poverty. The United States and the
international community must be prepared to provide a comprehensive,
economic, and political recovery package that will help the people
recover from so many years of abuse and neglect.
Right now, our most urgent challenge is to protect the innocent
people in Zimbabwe who have been devastated by violence, starvation or
inadequate access to essential care and services. We need to do that by
pushing Africa's leaders to restore and expand humanitarian aid,
deploying a civil protection force to prevent attacks, help victims,
and pursue vicious criminals. Matching words with action is a great
challenge of this body, the Senate, and particularly it is the
responsibility of this administration. This is a test for our
collective moral authority, our willingness to lead with our values,
and a test of whether we are going to send the strong, necessary
message to the people of Zimbabwe, and indeed the people in all of
Africa, that we support their aspirations for a free and democratic
country.
We are losing lives almost every single day in Iraq. We are spending
$12 billion a month. We invaded that country, purportedly, to bring
them democracy. We support other countries in the Middle East--Lebanon
and others--that are struggling to have democracy. We can't be
regionally selective about where the virtues of democracy make a
difference. In Africa, where for too long people have been neglected,
even abandoned--and too many times they believe the rest of the world
doesn't care--this is an opportunity for us to send a different kind of
message and make a different kind of difference. I hope they will know
that the free world will stand with the aspirations of those who are
willing to risk their lives to have a better future and to actually
give meaning, through our support, for free elections and democracy
everywhere in the world.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.

Winning in Afghanistan

Mr. CASEY. Mr. President, today, I rise to convey my growing
concern--and I think the American people share this concern--on an
issue that the three major television networks' evening newscasts
devoted just 46 minutes of coverage to so far this year: The war in
Afghanistan.
The White House has become distracted and weighed down by the war in
Iraq. It has knowingly ignored dealing with the real threats that
endanger American interests. It is time now to refocus our efforts and
concentrate on the real front in the war on terror, and it is time to
get serious about winning in Afghanistan.
The United States has one overarching priority when it comes to this
region: to ensure that al-Qaida or any other terrorist group does not
gain the sanctuary it requires to plot, plan, or train for another
terrorist attack on American soil or against our allies.
However, despite some 62,000 NATO troops in Afghanistan, including
approximately 34,000 American forces, and more than 140,000 Afghan
troops and police, Taliban and al-Qaida forces have regrouped and
become stronger over the past 2 years. Finding sanctuary in the
southern and eastern parts of the country and along the border with
Pakistan, Taliban and pro-al-Qaida forces are threatening to undermine
hard-fought international efforts to bring stability and peace to
Afghanistan.
The assessment from our top experts in the field is bleak. Retired
General James L. Jones, who until the summer of 2006 served as the
supreme allied commander of NATO, found in one report that:

NATO is not winning in Afghanistan. . . Afghanistan remains
a failing state. It could become a failed state.

2007 was the deadliest year since the fall of the Taliban, with over
6,000 people killed. Violence continues in 2008. Secretary Gates
reported in May that for the first time, more coalition troops were
killed in a month's fighting in Afghanistan than in Iraq.
As of this week, at least 451 members of the U.S. military have died
in Afghanistan, including at least 20 from my home State of
Pennsylvania. Overall, violence has risen 27 percent in Afghanistan in
the past year, with a 39-percent increase in attacks in the eastern
region--where most U.S. troops operate--and a 60-percent surge in
Helmand province, where the Taliban resurgence has been the greatest.
Suicide bombings rose to 140 in 2007, compared with 5 between 2001 and
2005.
The news in recent days has also been especially troubling. Over the
weekend, militants operating in sanctuaries in Pakistan launched rocket
and artillery attacks into Afghanistan killing four Afghan civilians,
including two children. NATO forces, whose patience has been repeatedly
tested by escalating insurgent violence along the Afghan-Pakistani
border, have since retaliated by shelling guerrillas along the
Pakistani border.
Last week, hundreds of NATO and Afghan forces engaged in one of their
biggest battles in years against approximately 400 Taliban fighters in
Kandahar. These fighters had bombed the main city jail and freed
hundreds of their comrades. One report says that those who have been
freed are among the most dangerous.
These setbacks emerged as the Government Accountability Office, GAO,
released its latest report concluding that despite spending $16.5
billion, the Pentagon and State Department still lack a ``sustainable
strategy'' for developing the Afghan National Security Forces. Only two
of the Afghan Army's 105 units are fully capable of fulfilling their
mission. No police unit is fully capable. Today, I sent a letter to
Secretary Gates and Secretary Rice asking for answers on why our
progress in building Afghanistan's security forces is so stunted.
I ask unanimous consent that this letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

June 26, 2008.
Hon. Robert M. Gates,
Secretary, Department of Defense,
Washington, DC.
Hon. Condoleezza Rice,
Secretary, Department of State,
Washington, DC.
Secretary Rice and Secretary Gates: I read with great
concern the U.S. Government Accountability Office's (GAO)
June 2008 report on the Afghan National Security Forces
(ANSF). Despite investing approximately $16.5 billion to
train and equip the Afghan army and police forces over the
past six years, I am alarmed to learn that the United States
still lacks a comprehensive interagency plan to build the
Afghan army and police. More troubling is the fact that only
two of 105 army units and zero police units are considered
fully capable of conducting their primary mission. I am
writing you today to ask a simple question: why are we so
behind in this fundamental task?
Building sustainable peace requires having a national army
and local police that can provide and maintain security once
international forces leave. In the case of Afghanistan, this
is especially crucial as terrorists could easily reestablish
a safe haven. I recognize and appreciate that building
capable

[[Page S6189]]

and effective security forces is a difficult and complex
undertaking, especially given the well-documented challenges
we face in Afghanistan. However, this task must remain an
urgent priority at the highest levels of this Administration.
The security services, especially the local uniformed police,
are the face of the Afghan Government and will determine the
fate of security in Afghanistan.
I have several specific concerns regarding our efforts to
build and sustain the Afghan National Security Forces.
First, the costs for maintaining the security forces are
estimated at approximately $2 billion per year. Given the
Afghan government's limited financial capacity, are these
costs sustainable or will the international community be
supporting the Afghan army and police for the foreseeable
future?
Why is the United States' timeline for completion of a
fully capable Afghan police force (2012) different from the
benchmark used by the Afghan government and the international
community (2010)?
How are we effectively evaluating the capability of the
army and the police? How are the Defense Department's
``capability milestones'' being evaluated? Too often, we are
overly concerned with quantitative indices (i.e. number of
troops, weapons, uniforms, etc.) rather than taking a
qualitative approach. The United Nations Police (UNPOL) has
begun developing a Rule of Law Index (ROLIX) to help
qualitatively measure the progress of security sector
institutions in their work to establish the rule of law that
may be of great value here.
The importance of civilian mentors in building the Afghan
security forces cannot be overstated. As the GAO has stated,
international peacekeeping efforts in Bosnia, Kosovo, and
East Timor have shown that field-based training of local
police by international police mentors is critical to the
success of establishing professional police forces. Why is
there still such a shortage of police mentors? How will this
be remedied?
Equipment shortages plague both the Afghan army and police.
Combined Security Transition Command--Afghanistan (CSTC-A)
officials have stated that equipment shortages are due to
competing U.S. priorities in Iraq. Why are the Afghan
security forces facing such massive equipment shortages? Why
is this not a major priority for the U.S. government?
I look forward to reading your report to Congress on our
efforts to assist the Government of Afghanistan in increasing
the size and capability of the Afghan Security Forces,
including assessments of key criteria for measuring the
capabilities and readiness of the Afghan Security Forces. I
cannot overemphasize how important it is that we get this
right and not squander any further opportunities to help
build these basic institutions in Afghanistan. The security
of the Afghan and American people depends on it.

Mr. CASEY. The problems plaguing Afghanistan are well documented: a
resurgence of pro-Taliban forces, a burgeoning narcotics trade, rampant
government corruption, insufficient resources for reconstruction,
stalled development, fragile political and security institutions, and
sheer, mind-numbing poverty. I spent a day in Kabul last month, where I
had the good fortune of visiting with the chairman of the Armed
Services Committee, Senator Levin, and even during this short amount of
time, the magnitude of the challenges we face there was clear.
But what I also discovered is that despite these awesome challenges,
there is a strong spirit amongst Afghans and coalition troops to
persevere in the face of overwhelming odds. Afghans do not want the
Taliban to come back. They may be disappointed by the results of
President Karzai's government and broken promises by the international
community. But they have been fighting for over 30 years for peace and
stability. And they are not going to stop now. Not when they are this
close to achieving those goals.
So it is now up to us to demonstrate true global leadership and
finish what we started in 2001. This means, as the Afghanistan Study
Group so aptly said, replacing the ``light'' footprint approach this
administration has taken with respect to Afghanistan with the ``right''
footprint approach.
There is a common sentiment here in Washington that what is needed
the most in Afghanistan is resources. If only we had more money, more
troops, and more trainers on the ground, we would see more positive
results.
It is true that we need to devote more resources to Afghanistan. That
is why I was pleased to see that the recent international donors
conference in Paris secured about $20 billion in commitments from more
than 60 countries and international institutions, including a previous
pledge of $10.2 billion from the United States. And that is why I
applaud Secretary Gates' and Secretary Rice's repeated efforts in
Brussels and other European capitals to secure additional Allied troops
for the coalition in Afghanistan, troops that are free to wage combat
where they are needed. We do need more to accomplish our mission.
But I do not want to engage in the transatlantic blame-game of which
country could be doing more because it glosses over the underlying
fault lines that have plagued our strategy in Afghanistan from day one.
Ultimately, the real problem is not just one of troops or money or
resources.
Rather, our mission in Afghanistan is in jeopardy because we still
have not defined our long-term U.S. strategic objective in Afghanistan
and, by implication, across South Asia.
We have not linked our relevant military security operations to a
political strategy, and, most importantly, we have not made a long-term
strategic commitment to Afghanistan in the eyes of the Afghan people.
We have decoupled Pakistan from Afghanistan instead of formulating a
strategy that would address the inherent and historic relationship
between the two nations.
It is time to reformulate our basic fundamentals on how to approach
this war. First and foremost, any strategy for turning the tide in
Afghanistan must incorporate what is happening in Pakistan. To date,
this administration has not fully appreciated Pakistan's security
paranoia and the duplicity it has generated. Fueled by a credible fear
that the U.S. will once again leave Pakistan in the lurch, as it did in
the seventies and nineties, credible evidence exists that Pakistani
security forces have renewed their ties to the Taliban to preserve
their options.
We must redraw our map of this war to include the border region
between Afghanistan and Pakistan. U.S. Army COL Thomas Lynch, a leading
Afghan expert, has declared:

The future of Afghanistan can be lost in Afghanistan, but
it can only be won in Pakistan.

GEN Dan McNeill, who briefed both Senator Levin and me when we were
in Afghanistan--he recently left after 16 months of service commanding
NATO's international security force--warned that success in Afghanistan
would be impossible without a more robust military campaign against
insurgent havens in Pakistan.
Second, we must take advantage of the opportunity to work with Afghan
security forces. They remain nascent and fragile at this moment, but
they have significant potential with the proper investment of training,
manpower, and equipment. As our military leaders in Afghanistan told me
last month, the Afghan army is made up of proud soldiers who want to
fight for their nation and who have a can-do spirit. But we must
provide them the tools they need.
We cannot underestimate the importance of properly training the
Afghan security forces. Last week, a GAO report said:

Without capable and self-sustaining Afghan army and police
forces, terrorists could again create a safe haven in
Afghanistan and jeopardize efforts by the United States and
international community to develop the country.

In particular, as Senator Levin and I recommended upon our return
from Afghanistan, we need to assist the Afghan army to take over
responsibility for border security functions in the territory adjoining
Pakistan. Today, a lightly armed Afghan border police patrols this
vital region, and this border police remains underequipped and
underarmed. This is unacceptable. The United States and NATO allies
should work together with the Afghan army to assume that critical
national security function.
Finally, our strategy in both Afghanistan and Pakistan must focus on
sustained development assistance. Former U.S. commander, GEN Karl
Eikenberry, used to say, ``The Taliban begins where the roads end.''
Despite a massive influx of money into Afghanistan, we are not moving
quickly enough to demonstrate to the Afghan people concrete results
that improve their lives--building roads, schools, and hospitals.
We need to decouple our military activities from reconstruction
assistance and bring our development experts from the U.S. Agency for
International Development to the table where they belong. Our
development approach thus far has overrelied on private contractors
whose goals, missions, and timelines do not correspond with our own.

[[Page S6190]]

I have one more paragraph. We have to recognize that this battle
against extremism is not going to be won in 2 or 4 or 10 years. It is
not going to be won on the military battlefield. It is a generational
challenge, a battle for the ages that will require significant
resources in basic human development. Extremists exploit poverty,
ignorance, and anger. The task before us is to defuse the igniters of
that anger before they explode in the form of another failed state in
Afghanistan or a terrorist attack in the United States.
We have a great history in this country of helping rebuild societies
from ashes. It is time for a new Marshall Plan for Afghanistan, one
that links the necessary resources with the right institutional
expertise. It is time for us to do what we do best in the world.
In concluding, I go back to the work of the 9/11 Commission. In
analyzing the many unexplored connections that led to that fateful day,
September 11, 2001, the independent, bipartisan 9/11 Commission found:

The most important failure was one of imagination. We do
not believe leaders understood the gravity of the threat.

That is what was said after 9/11. The same can be said today. Our
brave men and women, the troops and diplomats who serve every day in
Afghanistan get the picture. They see what this administration chooses
to ignore. Failure in Afghanistan is not an option. Our national
security, the safety of our families here, depends on what we do in
Afghanistan, and preventing another terrorist attack here depends on
what happens in Afghanistan and all of South Asia. We cannot fail in
Afghanistan.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.

Food vs. Fuel

Mr. GRASSLEY. Mr. President, for the past few weeks, I have been
leading an effort to dispel the myths surrounding the impact of
biofuels policies on our food prices. You may remember that back on May
15, I came to the Senate floor to announce to my colleagues that the
campaign to smear ethanol is a well-funded and seemingly well-
coordinated campaign. It is being led by none other than the Grocery
Manufacturers Association.
In the weeks since that floor statement, I have been using every
opportunity I can to beat back this smear campaign and inject the facts
into the debate.
Biofuels are being scapegoated for rising wheat prices, even though
the 2007 crop was the largest planted in 4 years. Biofuels are being
blamed for the increased price of products such as rice and bananas,
which have no correlation to corn production or our biofuels policies.
According to economists across the administration, biofuels have
caused a tiny fraction of the increase in global and domestic food
prices. They are also responsible for only a small portion of even the
increase in the price of corn.
The fact is, the increased cost of oil is the biggest driver behind
the increased price of food. In other words, energy and how energy fits
into the food chain and the dramatic increase in the price of oil to
$130, $140 a barrel is the biggest driver in the increased price of
food.
But we also have drought in wheat-producing countries, such as
Australia last year, adding to this increase. We have also had
increased demand by the middle class of China and India for meats in
their diet to a greater extent than ever before. Yet the grocery
manufacturers and their association have focused the entire effort on
ethanol. They see ethanol and renewable fuels as the root cause and
most vulnerable to their attack.
Even with oil at $135 a barrel, they see their victory in undermining
biofuels policies. It is important to note that biofuels are actually
working to lower the price of gasoline at the pump. In fact, in Iowa,
you can buy gasoline with biofuels in it for about 13 cents a gallon
cheaper than you can 100 percent gasoline.
So while high energy costs are driving increases in food prices, the
grocery manufacturers would have you believe that the solution is less
energy supply. That is counterintuitive.
The Grocery Manufacturers Association does not seem to care much
about facts. Their criticism and talking points are not based on sound
science, sound economics, or even common sense.
While biofuels are easy to blame, it is intellectually dishonest to
make these claims. But maybe intellectual dishonesty does not make any
difference to the Grocery Manufacturers Association.
They have indicated that they fully support advanced biofuels from
biomass rather than food crops, and maybe with ethanol we think of that
as cellulosic ethanol, and of course, we are all supportive of efforts
to promote the next generation of biofuels. But undercutting the
current industry is not the way to get fuels into that second
generation coming from biomass instead of from grain.
Those who are determined to pull the rug out from under today's
biofuels should know that the next generation will not exist if the
current generation is undermined.
I hope the Grocery Manufacturers Association has taken notice that I
am not going to sit quietly while they try to undermine 30 years of
public policy. In other words, 30 years ago, we decided in this
Congress we needed more emphasis on renewable fuels because God only
made so much fossil fuel. So you have to get to what you are going to
do postpetroleum, and it is renewables. Of course, conservation is the
other part of that as well.
So 30 years ago, we started out with incentives for biofuels. It is
still not a mature industry, but it is maturing very quickly. If you
cut the legs out from under that industry right now and the agriculture
that supports it and the jobs in rural America that do the work, you
are not going to have the next generation.
I sometimes think, even though I blame the Grocery Manufacturers
Association because they announced this campaign of scapegoating
ethanol, that somehow it is not just the Grocery Manufacturers
Association. I cannot help but think that big oil is back there
applauding everything the grocery manufacturers are doing.
Until now, in fact, the only significant opposition to developing
renewable fuels over the past 30 years has come from big oil. I was not
afraid to stand up to big oil over the last 30 years, and I am not
going to stand by while the Grocery Manufacturers Association, with
their smear tactics, destroy what the American people have been calling
for--an industry so we can produce renewable fuels. And because of our
national defense, the stakes are too high.
The Grocery Manufacturers Association's efforts, if successful, will
raise prices at the pump in Iowa. I said 13 cents higher if you have
100 percent gasoline instead of 10 percent ethanol and 90 percent
gasoline. And in the process, we would be increasing our dependence on
foreign oil. Why not keep the money in the United States instead of
spending $130 a barrel and sending it over to the Arabs where they will
allow terrorists to train against us? Is risking our national and
economic security worth the bottom line of a few multimillion-dollar
food companies? Don't be fooled. Their campaign is not altruistic. It
came directly from their mouths that this campaign is about their
``bottom line.''
Where is the outrage? American consumers need to know that a few big
food companies are jeopardizing our efforts toward energy independence
so that they can raise the price of food and increase their profits.
They want to do away with this industry and, in the process, as Iowa
State University tells us, without ethanol, gasoline would be on
average about 30 cents higher per gallon. If the increased price of
energy goes up, and energy is the cause for about one-third of the
increase in the cost of food, then obviously food is going to go yet
higher.
We are on a path, from the standpoint of national security and
economic security, to reduce our dependence on oil from the likes of
Venezuela and Iran. The Grocery Manufacturers Association wants to put
the brakes on our efforts toward energy independence. They apparently
prefer putting our economic security in the hands of crazy people, such
as the President of Venezuela and the President of Iran, rather than
putting their economic security in the hands of American farmers
growing renewable fuels.

The Grocery Manufacturers Association, through their president and
CEO, Cal Dooley, requested to have a meeting with me to discuss the
impact of

[[Page S6191]]

food-to-fuel policies. Given the association's objectives to
``obliterate whatever intellectual justification might still exist for
their corn-based ethanol among policy elites''--and that is what their
public relations firm said about ethanol--I was pleased to accept
former Congressman Dooley's efforts to talk to me about it.
U.S. Secretary of Agriculture Ed Schafer was also kind enough to
accept my offer to participate in that meeting. However, I thought to
have a meaningful discussion on their campaign to smear ethanol and my
justification for renewable fuels, and so I requested the attendance of
chief executives of 15 of the GMA's member companies. I thought it
would be important for the CEOs of these companies, who are members of
the association, to speak for themselves about the impact biofuel
policies are having on their businesses. The companies themselves are
in a much better position to explain why they believe the anti-ethanol
campaign they have underwritten would be warranted. So I invited the
CEOs of Campbell's Soup, Del Monte Foods, Lakeside Foods, Sarah Lee,
Dean Foods, Hormel Foods, Procter & Gamble, Kellogg's, Land O'Lakes,
ConAgra Foods, General Mills, Kraft, Ralston Foods, Cargill, and Archer
Daniels Midland to come to the meeting. I expected to have many of the
CEOs jump at the opportunity to tell me I am wrong. I thought I would
hear firsthand how the increase in corn prices was affecting the bottom
line of General Mills or Kellogg's or Kraft.
Many of the CEOs I invited are members of that trade association's
board of directors. Naturally, I expected the CEOs to want to defend
their association's campaigns and its tactics. Unfortunately, that is
not what I got. Only one CEO--Chris Policinski of Land O'Lakes--agreed
to attend, and Cargill offered a senior executive in place of their
CEO. But of 15 companies, only one CEO thought it was worth their time
to come to Washington and visit with me and Secretary of Agriculture
Schafer about their trade association's campaign to smear ethanol. So I
had no choice but to cancel the meeting.
They have hired a high-priced public relations firm to coordinate
their campaign. One would assume they believe in the policies they are
promoting. So why wouldn't they take advantage of this opportunity to
convince Secretary Schafer and me that we have it all wrong? This is
clearly a high priority for them. They seem to have invested a great
deal in it, and a lot of dollars in it. Why wouldn't they attend the
meeting? Don't they believe in what they are doing?
It appears all they want to do is to give a thumbs-up to their trade
association's hiring of expensive PR firms to do their dirty work,
instead of entering into real dialog with those of us who feel strongly
that this country needs a policy of renewable energy, and more
renewable energy every day.
I don't know whether GMA encouraged these CEOs not to attend. My
colleagues might find it amusing, however, that two companies declined
my invitation with a form letter. The letter from Mr. Conant, CEO of
Campbell's, and the letter from Mr. Mackay, CEO of Kellogg's, used the
same text declining my invitation. Now isn't that something? CEOs of
two major companies coming up with exactly the same words in letters
signed by them to decline. I don't know who wrote it first, but I might
expect CEOs of such primary companies to be a little more original in
their communication with me. It makes one wonder who wrote the letter.
Mr. President, I ask unanimous consent to have printed in the Record
at the end of my remarks these two letters.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. GRASSLEY. Mr. President, I am going to keep pounding home the
facts behind the relationship between food prices and biofuels, because
it is not supported by economics, it is not supported by common sense,
and it is not supported by sound science. The fact is, biofuels are
increasing our national security, biofuels are helping our balance of
trade, and they are reducing our dependence on Middle East oil and the
whims of big oil. Every barrel we use of biofuels is $135 not going to
some foreign land where they train terrorists to kill Americans.
So it is time we cleared the air, it is time we looked at the facts,
and it is time we recognize, once again, that everything about our
domestic renewable fuel industry is good, good, good. I emphasize it is
good for the environment--less CO2 in the air--it is good
for good jobs in rural America, because a lot of these ethanol
refineries are in rural America, where we never thought we would have
good-paying jobs, and a lot of these refineries respond to another
problem--we don't have enough oil refineries in this country. In a
sense, every ethanol plant, every biofuels plant is a refinery. It is
good for our national security, which I think I have made very clear,
and it is good for agriculture. It is good that we don't have
Government supporting surplus grains. We are not having taxpayers'
money go out to farmers. Farmers are getting their money from the
marketplace now that prices are higher.
So I don't know how many times I have to say it, but there are no
negatives about biofuels and everything about them is good, good, good.

Exhibit 1

Campbell Soup Company,

Camden, NJ, June 18, 2008.
Hon. Charles Grassley,
U.S. Senate,
Washington, DC.
Dear Senator: Thank you for your invitation to meet
regarding the relationship between US biofuels policies and
their impact on commodity and food prices. Regrettably, I am
unable to attend.
In my stead, however, the Grocery Manufacturers Association
and a number of other organizations with similar concerns
plan to participate. I also unders1and GMA will extend to you
an invitation to attend the November meeting of the GMA Board
of Directors, where we can have a full and productive
discussion regarding our nation's energy policy.
As you know, GMA is working with many farm organizations,
including the National Turkey Federation, the National
Chicken Council, and the National Cattleman's Beef
Association, to improve our federal food-to-fuel policies by
accelerating the development of biofuels made from crop
wastes and other energy feedstocks. Many experts have
concluded that cellulosic biofuels hold enormous promise and
will not pit our energy needs against the needs of food
companies, livestock farmers and consumers. The Campbell Soup
Company strongly supports biofuel policies that boost the
income of farmers and simultaneously meet the needs of food
companies and consumers.
In light of growing prices for corn and other commodities,
we support policies that will reduce the use of food and feed
crops to produce fuels. Although there are many factors
contributing to rising commodity prices, federal policies
that divert one-third of the U.S. corn crop is the only
factor legislators have the power to change. Recent studies
by the World Bank, the United Nations, and America's leading
agricultural think tanks have linked rising commodity prices
to these federal food-to-fuel policies.
Again, I thank you for your kind invitation to join you and
Secretary Schaffer to discuss these concerns and regret that
I am unable to attend. If appropriate, I would be happy to
offer Kelly Johnston, Campbell's Vice President--Government
Affairs, whom you know, to represent our company. The
Campbell Soup Company looks forward to working with you and
all interested parties to craft sensible and sustainable
energy policy.
Sincerely,
D.R. Conant,
President and Chief Executive Officer.
____

Kellogg Company,

Battle Creek, MI, June 17, 2008.
Charles E. Grassley
U.S. Senator,
Washington, DC.
Dear Senator Grassley: Kellogg Company strongly supports
biofuel policies that boost the income of farmers and
simultaneously meet the needs of food companies and
consumers. I sincerely appreciate your invitation to meet
regarding these policies on June 24th, Regrettably, I am
unable to attend.
In my stead, however, the Grocery Manufacturers Association
and a number of other organizations with similar concerns
plan to participate. I also understand GMA will extend to you
an invitation to attend the November meeting of the GMA Board
of Directors, where we can have a full and productive
discussion regarding our nation's energy policy.
As you know, GMA is working with many farm organizations,
including the National Turkey Federation, the National
Chicken Council, and the National Cattleman's Beef
Association, to improve our federal food-to-fuel policies by
accelerating the development of biofuels made from crop
wastes and other energy feedstocks. Many experts have
concluded that cellulosic biofuels hold enormous promise and
will not pit our energy needs against the needs of food
companies, livestock farmers and consumers.
In light of growing prices for corn and other commodities,
we support policies that

[[Page S6192]]

will reduce the use of food and feed crops to produce fuels.
Although there are many factors contributing to rising
commodity prices, federal policies that divert one-third of
the U.S. corn crop is the only factor legislators have the
power to change. Recent studies by the World Bank, the United
Nations, and America's leading agricultural think tanks have
linked rising commodity prices to these federal food-to-fuel
policies.
Again, I thank you for your kind invitation to join you and
Secretary Schaffer to discuss these concerns and regret that
I am unable to attend. Kellogg Company looks forward to
working with you and all interested parties to craft sensible
and sustainable energy policy.
Sincerely,

A.D. David MacKay,

President,
Chief Executive Officer.

Mr. GRASSLEY. Mr. President, I yield the floor, and 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. MURKOWSKI. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the time until 2:15 is under the control of
the junior Senator from Alaska or her designee.
The Senator from Alaska.

Alaskan Statehood

Ms. MURKOWSKI. Mr. President, today is an opportunity for us in the
next 45 minutes to talk about a celebration. We have had some pretty
serious business under discussion here on the Senate Floor, and today I
and my colleague, Senator Stevens, joined by others, rise to celebrate
the 50th anniversary of the Senate passage of the Alaska Statehood Act,
the act which eventually conveyed statehood upon the great State of
Alaska after a fight for equal rights and representation that lasted
literally decades.
After a long and contentious battle, both in Congress and across the
country, the Senate passed the Alaska Statehood Act 50 years ago, on
June 30, by a vote of 64 to 20. The act was signed into law 7 days
later by President Eisenhower, and Alaska officially became a State on
January 3, 1959. This was the headline in the Anchorage Daily News
announcing, ``We're In.'' Our territorial Governor, Mike Stepovich,
President Eisenhower, and Secretary Seaton are in this photo that we
look to in our State's very young history with great fondness.
This year across the State, there will be celebrations all over put
on by communities, by clubs, by businesses, by the State government. To
help kick off this celebration, I would like to briefly remember a
little bit of the history of a very rough journey toward statehood.
The territory of Alaska was bought from Russia in 1867. I know many
students, when they are looking at their history books, learn that it
was dubbed ``Seward's Folly.'' It was World War II and the Cold War
that really transformed the face of Alaska, however. Having a
strategically critical location for both wars, Alaska saw a large
increase in Federal money and population in the 1930s and the 1940s.
While the aspiration for statehood had existed for many years and
though Alaska had a delegate to Congress since 1906, it was during this
time period that a serious and motivated and modern statehood movement
rose up and captured the attention of Alaskans across the State.
The Alaska Statehood Committee was formed in 1949. This committee of
11 Alaskans was bipartisan. No more than six could belong to the same
party, and at least two members had to come from each of the four
judicial districts Alaska had at the time. They were given the task of
publicizing and educating the public on statehood, both in Alaska and
nationally, as well as framing a State constitution.
As early as 1946, though, 3 years before the Statehood Committee was
formed, there was a large majority of Americans who were already very
supportive of Alaskan statehood. A Gallup Poll that year indicated that
64 percent of Americans were in favor of statehood, with only 12
percent opposed. The percentage of supportive Americans grew to 81
percent by 1950. But even then, nearly a decade still remained in what
became a bitter battle against special interests.
The wealthy salmon canning industry was the primary lobbying group
that opposed statehood at the time. The salmon canners would put fish
traps at the mouth of some of Alaska's largest rivers, and they caught
nearly 30 percent of Alaska's salmon every year, sending the yearly
salmon catch plummeting from 924 million pounds to 360 million pounds
over a 20-year period. Alaska was in a tough spot. They were powerless
to resist. With 99 percent of the territory's land owned by the Federal
Government and with very little control over resource policy, the
industry was pretty much free to devastate one of the State's most
valuable renewable resources, and that was our Alaskan salmon.
This desire for a say in our own affairs only grew the intense desire
of Alaskans to attain statehood for themselves. The newspaper the New
York Journal-American summed up the situation this way:

Alaska wants statehood with the fervor men and women give
to a transcendent cause. An overwhelming number of men and
women voters in the United States want statehood for Alaska.
This Nation needs Alaskan statehood to advance her defense,
sustain her security, and discharge her deep moral
obligation.

In 1950, after years of thwarted attempts to bring an Alaska
statehood bill to the floor of either Chamber of Congress despite the
strong support of President Truman, a bill actually got a floor vote.
It passed the House of Representatives, but it failed over here in the
Senate.
Frustrated by repeated legislative defeats, Alaskans decided to write
a State constitution. This was done in 1955. We decided to do it to
show the country that we were politically mature and genuinely ready
for statehood.

After a 75-day Constitutional Convention at the University of Alaska
Fairbanks, a constitution was adopted by the delegates and ratified by
Alaskans. It was later described by the National Municipal League as
``one of the best, if not the best state constitutions ever written.''
The way it dealt with natural resources was particularly distinctive
and ingenious. The State's natural resources were viewed as a public
trust and were required to be developed for ``maximum use consistent
with the public interest [and] for the maximum benefit of its people.''
Development based on ``sustainable yield'' was constitutionally
mandated. To this day, the State continues to operate on this principle
in our fisheries, minerals, fossil fuel development, and our timber.
One example of the results of this policy is that Alaska is the only
region in the United States that has no overfished fish stocks.
Two years after the constitution was ratified and 50 years ago, on
May 28, the House of Representatives voted on the bill that would
eventually confer statehood upon Alaska. The bill passed the House 210
to 166. The Senate passed it 64 to 20, and then President Eisenhower
signed it into law. Over 15 years passed between April 2, 1943, when
the first bill was introduced, and June 30, 1958, when the final bill
was passed. We were officially a State on January 3, 1959.
I have been perusing the Congressional Record to kind of get a sense
of the Senate debate at the time, the debate that preceded Alaska's
entry into the American Union. I am a born and raised Alaskan. I have
found the record absolutely fascinating. It includes enthusiastic and
very passionate arguments in favor of statehood but also countered by
lawmakers who saw Alaska's entry into the Union as being a huge
mistake. There is even an occasional Communist threat reference, a
reminder that this debate occurred against the backdrop of the Cold
War.
Some of the arguments against statehood included the fact that Alaska
was not contiguous with the rest of the United States; Alaska was not
sufficiently developed economically or politically to be ready for
statehood. There was also a reference to the fact that Alaska doesn't
produce enough agriculture.
There were provisions granting Federal land to the State. They
alleged it was a huge Federal giveaway, but keep in mind that the
Federal Government still owns over half of the State of Alaska. But
really the argument centered around the concern that Alaska would be a
huge burden on the Federal Government financially.

[[Page S6193]]

Senator Richard Neuberger of Oregon, who was a supporter and was
presiding over the Senate during the historic Alaska statehood rollcall
vote, said that Alaska statehood would afford the United States the
opportunity to show that ``we practice what we preach.''
Neuberger said:

For decades we have preached democracy to the rest of the
world, yet we have denied full self-government to our vast
outposts to the north, despite many assurances that such
would not be the case.

He continued on by saying:

The voice of America may talk of democracy, but its message
will ring hollowly through the rest of the Free World if
America fails to practice democracy. In the crucible of world
opinion, we shall be tested by deeds and not words. Statehood
for Alaska will be a tangible deed.

Among Alaska's greatest friends in the Senate were both Senators from
Washington State, Henry ``Scoop'' Jackson and Warren Magnuson. Jackson
told his colleagues that the time was ``past due'' for the admission of
Alaska to the Union, while Magnuson said it in another way. He said:

Alaska has sat impatiently in the anteroom of history for
42 years.

These comments represent only a fraction of the Alaska statehood
debate which began years before the last frontier became the 49th
State, but still they offer some valuable perspective on the challenges
and obstacles our forefathers faced on the road to statehood.
A few of my colleagues will be joining us over the next half hour or
so to help remember and reenact the debate that occurred 50 years ago.
I am grateful for their willingness to join me in celebrating our 50th
anniversary of the 49th star on the flag.
I mentioned that Alaska has been referred to as ``Seward's Folly.'' I
don't think many people know that we also were referred to as
``Icebergia,'' obviously a reference to the colder environment up
there. But Alaska has since made incredibly significant contributions
to our great Nation. I do not think anyone considers Alaska a folly. We
provide 55 percent of America's seafood, we attracted 1.5 million
tourists last summer to the State, and we have been a stable domestic
supplier of U.S. oil needs for the past 30 years.
Alaska is proud to be ``the Great Land'' in the greatest Nation in
the world. I am privileged to represent its people here in the United
States.
With that, I yield the floor to my senior colleague, Senator Stevens.
The PRESIDING OFFICER (Mr. Salazar). The senior Senator from Alaska
is recognized.
Mr. STEVENS. I believe I have been allocated 20 minutes to speak.
The PRESIDING OFFICER. There is no previous order.
Mr. STEVENS. Mr. President, that photograph brings back many memories
to me. The gentleman on the right was my employer at the time, the
Secretary of Interior, Fred Seaton. As a matter of fact, I was standing
right behind him at the time that photograph was taken.
I remember the debate here on the floor of the Senate on the Alaska
statehood bill. On the day the vote was taken, I was standing up where
those people are right now in the Press Gallery. That was unheard of,
but I was standing beside my good friend who was the editor of the
Fairbanks Daily News-Miner, C.W. ``Bill'' Snedden. He had bought this
newspaper. He purchased it a few years before we got statehood, and he
turned its policy around to support statehood.
One of the things he created was a cartoon they put on the front page
of the paper every day. It was a small thing down at the bottom. This
was Sourdough Jack. Sourdough Jack had wise sayings every day. This one
day he published this, it was:

All of the valid arguments against Alaska statehood are
listed in full on pages 2, 3, and 4.

All blank. That was the attitude of Alaskans. There really was no
valid opposition to our becoming a State.
However, I think the Senate should know what the Senate did then and
the role of the Senate in Alaska becoming a State--and Hawaii, too,
later the same year.
Our delegate at that time in the House of Representatives, Democrat
Bob Bartlett, discovered an old rule in the House that permitted
matters of constitutional import to be taken to the floor of the House
and worked on solely by the Committee of the Whole of the House,
bypassing the Rules Committee. So after having tried since 1913 into
1958 to get statehood, our delegate made the motion to bypass the Rules
Committee. With a vote of the House, they approved going right to the
floor with the Alaska statehood bill. That was an achievement no one
could even have expected. But it showed the power of the press at that
time. The American press took up the cudgel, they took up the sword to
have both Alaska and Hawaii become States. It was really great to see
Hearst and Luce and so many of the leaders of the newspaper profession
joined together to urge the American people to swell up and demand
these bills be passed.
As the bill passed the House and came over here, there was a great
problem because the Rules Committee chairman made it very plain that if
there was an attempt to have a conference committee on this bill
admitting Alaska to the Union, he would see to it that it would never
see the light of day in the House. So our job at that time was to get
the statehood bill passed by the Senate without one single change--not
a comma, no paragraphs, nothing altered, and nothing changed.
I think the Senate today would appreciate that problem because those
were the days of the true filibusters. Those were the days before the
current rule on cloture. At that time, it took two-thirds to stop
debate. It was something to behold, sitting in the gallery as I did, to
see the power of Senator Scoop Jackson on the one hand and Senator
Norris Cotton on the other--Norris Cotton being a Republican from New
Hampshire, Scoop Jackson being a Democrat from Washington--guide that
bill through the Senate and overcome the filibuster that was led by my
late good friend Strom Thurmond.
It is a total tribute to the democracy we represent that this
enormous act of admitting a State--there had not been another State
admitted since Arizona had been admitted in 1913. Here we were in a
post-World War II period, when part of the momentum for our getting
statehood was, in fact, the people who had served in the Armed Forces
and were stationed in Hawaii or in Alaska--many of them had been
stationed in the territories and went back to the territories after
they were released from service after we won World War II.
But this day, the day the Senate finally passed this bill, was a
unique one.
The galleries were full. That is one reason I was up in the press
gallery rather than over in the normal gallery for visitors. But, very
clearly, we knew it was going to be a difficult day for us. We had
counted votes and all of the rest trying to predict what was going to
happen. But when it happened, I want the Senate to know, this was
something significant that happened. The people in that photograph,
except for the President, gathered right out in the reception room of
the Senate. Then we went to--Republican and Democratic alike--members
and people from the gallery, we went to the then-chapel of the Senate,
and we offered a prayer to thank the people who had given us this new
right.
It was one of the most significant days that I can remember in my
life. I am proud of my colleague who has brought upon the Senate the
idea of having some remembrance here of what went on in those days. Our
State has become a State. We have developed our economy to be one of
the great producers of natural resources. Many people have challenged
that, and we are currently blocked in exploring the Outer Continental
Shelf off our State. Two-thirds of the Continental Shelf of the United
States is off our State.
Every well so far that has been tried has been blocked. We have been
blocked now for 25 years at getting the right. We thought we achieved
it in the 1980 act which set aside 1.5 million acres of the Arctic for
oil and gas exploration and development.
I hope we will come to a time where we will realize the errors of our
past and we will find that the day will come when the Arctic Coastal
Plain will be opened. Once it is, the Alaska oil pipeline, which was
built to carry 2.1 million barrels a day--it is carrying less than
700,000 barrels a day now--will be full. Because we know from 3-D
seismic and from the well that was drilled,

[[Page S6194]]

there is no question that there is oil on the Coastal Plain that some
people call ANWR. But the development of that plain will bring us, both
the Federal Government and the State, billions of dollars that we want
to dedicate to the development of renewable and alternative resources.
For instance, we have half the coal of the United States. We should
have mine-mouth conversion for coal gasification, coal liquefaction.
We have those magnificent five military bases in our State. They all
need lots of energy. We have to find some way to assure they will have
energy for our national defense. I think we are proceeding to the point
that the American people know what we must have; that is, we must have
the right to proceed to develop our resources.
Fred Seaton, whose picture was photographed there as the Secretary of
the Interior, was an appointed Senator from the State of Nebraska. He
made only one statement on the floor of the Senate. He was absolutely
convinced that Alaska should become a State.
Let me read a portion of what he said:

Alaska is as deserving of statehood, and as ready for
statehood, and as greatly in need of statehood, to come into
her own, as were any of the present States when it was their
turn before the bar of the Senate.
Let us deal with the American citizens in Alaska no less
generously in this manner than were our forbearers dealt with
in their respective territories. Alaska, like all other
States will keep the faith and carry the grand old United
States tradition. Alaska's star has for too long been denied
its rightful place on the glorious flag of the United States
of America.

We, as Alaskans, are proud of what we have done. From the days we
became a part of the United States in 1867 when Secretary Seward led
the negotiations to buy the Territory of Alaska from Russia for a mere
2 cents an acre, we have contributed substantially to the income, the
resources, and to the well-being of our people.
We are the northern territory for the defense of this country. Our
national missile defense site at Fort Greely, AK, has the capability of
defending the whole United States, 360 degrees around, from Maine to
Florida, from the tip of California to the tip of Alaska. That national
missile defense site defends America.
We have committed ourselves to support those in uniform who defend
this country and defend our way of life. So I think this is a wonderful
thing to celebrate, the fact that the Senate took the action it did in
approving the basic approach of the House to take the initiative to
bring Alaska into the Union.
We were followed by our great and dear friends from Hawaii. And many
people wonder why we are so close, those of us from Hawaii and Alaska.
We represent offshore States. When we got here, many of the laws that
applied to the 48 States did not apply to us. The effect of our working
together has been that Hawaii has four Senators and Alaska has four
Senators because we have a lot in common. We do not vote together on
issues of national issues, that is not a position. But when it comes to
the rights of our States, we have shown what can happen in the Congress
of the United States when two delegations say: We are together. And as
new States, we deserve to be recognized and treated as equal partners
in this Union.
I am proud to speak of the alliance that we have with Senators Inouye
and Akaka--that has been achieved in my almost 40 years here.
As I have said, Mr. President, for many days in June of 1958 I
watched from the gallery as the Senate debated and finally passed the
Alaska Statehood Act. That vote marked the end of our long and
difficult road to self-determination.
Alaska was my home. I had been U.S. Attorney in Fairbanks. Working in
Washington as Assistant to the Secretary of the Interior, Fred Seaton,
I became involved in the battle for statehood.
Some Americans believed Alaska was too remote and too politically
immature to become a full partner in the Union.
Alaskans worked tirelessly to show the American people and Congress
that the Union would benefit from Alaskan statehood. My friends, Bill
Snedden, publisher of the Fairbanks Daily News Miner, and Bob Atwood,
publisher of the Anchorage Times, wrote to almost every paper in the
U.S. setting forth our positions for statehood and requesting support
for our efforts.
Alaskans reached out to their friends and family in the lower 48
asking them to write their Senators requesting they support statehood.
Fifty-five men and women met at our constitutional convention in
Fairbanks and devoted themselves to creating what has been called ``the
best state constitution ever written,'' proving Alaskans had the
political maturity to join our union.
I worked with the Secretary of the Interior, Fred Seaton, and members
of the Eisenhower administration to explain the President's support of
Alaska being a State.
Six years earlier Secretary Seaton had been a Senator from Nebraska.
He served for only 1 year being appointed to fill the vacancy caused by
the death of Senator Wherry. In his first address to this body, Senator
Seaton spoke strongly in support of statehood for Alaska, recalling the
doubts and objections raised when his own State of Nebraska was
struggling for statehood.
Senator Seaton said:

Alaska is as deserving of statehood, and as ready for
statehood, and as greatly in need of statehood, to come into
her own, as were any of the present States when it was their
turn before the bar of the Senate.
Let us deal with the American citizens in Alaska no less
generously in this matter than were our forbearers dealt with
in their respective territories. Alaska, like all the other
States, will keep the faith and carry on the grand old United
States tradition. Alaska's star has for too long been denied
its rightful place on the glorious flag of the United States
of America.

Our delegate to the House of Representatives, Bob Bartlett and our
``Tennessee Plan'' Senators and Representatives, and Alaskan pioneers
Ernest Gruening, Bill Egan and Ralph Rivers met with Members of
Congress to convince them to support Alaska statehood.
After the House passed our statehood bill on May 28, 1958, opponents
in the Senate tried to stop the bill by attaching controversial,
unrelated amendments.
Our good friend from Washington, Senator Henry ``Scoop'' Jackson led
a bipartisan effort to fend off changes to the bill.
In the 6 days of debate prior to the vote, Senators carefully weighed
the prospect of granting statehood to Alaska.
Alaskans are proud of all we have accomplished in the 50 years since
that historic vote.
Through responsible development of our vast natural resources we are
working to build a strong and vibrant economy.
Prudhoe Bay and the 800 mile Trans-Alaska Pipeline, completed in
1977, have delivered more than 15 billion barrels of oil to the
American economy.
In 2007 alone, Alaska's mining industry contributed an export value
of $1.1 billion to the national economy.
Through science-based management, our fisheries have been protected
and rehabilitated. Because of our success, Alaska's fisheries
management principles are now used as models for fisheries across the
country. Today half our Nation's total domestic seafood production
comes from Alaska.
Modern water and sewer facilities and health care clinics are now
located in most rural Alaskan communities. Through these and other
projects and development of our natural resources, Alaskans are
creating educational and job opportunities in the most remote corners
of our state.
Alaskans proved our strategic military value to the Nation during
WWII when our Territorial Guard provided a first line of defense and
protected the terminus of the lend lease Aerial Bridge at Fairbanks.
Today Alaskans welcome and support the men and women of the 1st of
the 25th Stryker Brigade Combat Team based in Fairbanks, the 4th of the
25th Airborne Brigade Combat Team based in Anchorage and the 11th Air
Force based at Elmendorf.
They, and our Alaska National Guard, have served our Nation bravely
in Afghanistan and Iraq and around the world. Our strong tradition of
service has resulted in more veterans per capita living in Alaska than
in any other State.
While Alaskans have much to celebrate on our 50th anniversary of
statehood, we continue working to accomplish more.

[[Page S6195]]

The Alaska Natural Gas Pipeline will deliver 4 billion cubic feet of
domestically produced natural gas each day to homes and businesses
throughout the United States. Our pipeline will also create 400,000 new
jobs nationwide.
Continued development of Alaska's resources, including oil and gas
development on the arctic coastal plain and our outer continental
shelf, could also help deliver the energy needed to power our Nation's
economy.
Recent estimates show that the arctic coastal plain alone could
deliver 1.5 million barrels of oil a day to market and contribute
billions of dollars in corporate income tax revenues and royalties to
the U.S. Treasury.
Alaskans began our journey to statehood in 1867 when the Secretary of
State William Seward advocated for the purchase of the territory from
Russia for a mere 2 cents an acre. At the time the decision was
ridiculed as ``Seward's folly.''
Alaskans have worked hard to realize the full potential of our land
and our people. There is no doubt Alaskans have lived up to the faith
the Senate showed in us 50 years ago when it voted to grant us
statehood. Alaskans have earned the name of our State, ``the Great
Land.''
Ms. MURKOWSKI. Mr. President, I want to thank my senior colleague for
his comments. It is rare that we have an opportunity to speak from such
personal knowledge about the battle for statehood.
As he spoke, I imagined Senator Stevens sitting up there in the
galley watching this debate anxiously as the future of Alaska was being
decided. So it is an honor to work with him representing the people of
Alaska. But for him to be able to share this historical perspective is
wonderful. Our neighbors to the south in Washington have worked with us
on so many different issues over the years.
As I mentioned in my comments, Senator Jackson and Senator Magnuson
were big advocates for statehood for the State of Alaska.
I am delighted that our colleague, Senator Murray, has agreed to join
us in talking about Alaska's statehood.
The PRESIDING OFFICER. The Senator from Washington.
Mrs. MURRAY. ``Mr. President, let us vote for the 49th star in the
flag.'' Those were the words from the great Senator from the State of
Washington, Warren Magnuson, spoken on this floor in 1958, just before
this body finally agreed to make Alaska one of the United States.
Today, I am very pleased to join our colleagues from the north in
Alaska to say a warm congratulations to the people of Alaska on this
50th anniversary of their statehood. Alaska's statehood, as you heard,
was controversial a half century ago. But I think time has proven that
the United States is a greater Nation thanks to the Land of the
Midnight Sun.
As Senator Murkowski has said, Washington State's Senators, Warren
Magnuson and Henry Jackson, were some of Alaska's greatest friends.
Their advocacy helped to sway this Senate that Alaskans were ready to
join the Union. Today I want to give you a flavor of that debate at the
time and their role in it.
Back in 1958, Alaska's statehood had already been an issue for 42
years, and legislation to make it a State had been introduced in every
Congress since 1943.
As Senator Jackson said in one speech that led up to that final vote
that Congress had held 11 hearings, two of them in Alaska, and others
here in Washington, DC. And more than 4,000 pages of testimony had been
published.
``It was time to put the issue to rest,'' he argued, and I quote:

There can be no doubt that the record is complete. Our
objective is statehood. It can be achieved now.

Those were the words of Senator Jackson back then. And as the debate
continued, Senators Magnuson and Jackson were confident that Alaska was
ready.
Senator Magnuson argued that with 180,000 citizens, Alaska had more
residents than Missouri, Kansas, Arkansas, Alabama, Nevada, Idaho, and
21 other States when they were admitted into the Union. He pointed out
to this body that Alaska was strategically located between the United
States and the Soviet Union and that it was home to two important
military bases at the time right when the Cold War was escalating.
He dismissed the argument that Alaska could not support itself as a
State because that argument had not held up when it was used for his
own State of Washington.
He said:

Alaskans feel confident that they can lick this problem as
they have met and solved others. I say, we should give them
that opportunity.

So in Senator Magnuson's mind, the controversy was very similar to a
family argument about whether a child was ready to leave home. He said:

These United States, like fearful parents, can waver
further in indecision, and allow our lack of confidence to
undermine Alaskans and say, ``You will be ready for statehood
someday, but not now.'' Or we can be proud of Alaskans'
determination to strike out for their true independence
through their own real self government.

``The United States should follow through the second course,''
Magnuson said.
He said:

The territory feels entitled to sit and deliberate with
us--be one of us. Alaska wants to work out her own future,
just as each of the other 48 partners in our nation have been
allowed to do. Alaska's hopes, aspirations, and quiet self-
confidence are understandable. She knows that her resources,
her people, and their combined potential spell a brilliant
future.
Alaska has sat impatiently in the anteroom of history for
42 years. Alaska should be a State.

I am very proud of the role Washington's two Senators played in this
debate at the time. Alaska's road to statehood was long and it was
hard. But Alaskans are some of the toughest people around. They fought
for their rights. They did not give up. And they prevailed.
So as they celebrate across their State I wish them a happy and a
successful future. I want to close by once more quoting Senator
Magnuson's words to the people of Alaska.
He said:

We approve and commend your vision, understand and believe
your hopes, know that your mission and goal can and will be
reached, so good luck and godspeed.
Mr. CRAPO. Mr. President, I am honored to stand and speak today on
the occasion of the 50th anniversary of the legislation establishing
Alaska as our 49th State. I continue a tradition of sorts: A former
Idaho Senator, Frank Church, stood in this same chamber 50 years ago,
May 5, 1958, to be exact, to call for Alaska's statehood.
Let me begin, if I may, with the words Senator Church recited that
day:

Wild and wide are my borders,
Stern as death is my sway,
And I will wait for the men who will win me--
And I will not be won in a day;
And I will not be won by weaklings,
Subtle, suave and mild,
But by men with the hearts of Vikings
And the simple faith of a child;
Desperate, strong and restless,
Unthrottled by fear or defeat,
Them I will guild with my treasure,
Them I will glut with my meat.
Send me the best of your breeding,
Lend me your chosen ones,
Them I will take to my bosom,
Them I will call my sons.

These lines come from a poem entitled, ``The Law of the Yukon,'' and
were written by Robert W. Service, a Canadian poet who traveled north,
caught up in the fever of the Klondike Gold Rush. The poem was inspired
by the majesty of the land of the Northwest Territories and the Alaska
territory, and for Senator Church set the stage for an impassioned,
intricately argued plea for Alaska's statehood.
Senator Church spoke that day of taxation without representation. He
referenced the treaty by which the United States acquired Alaska which
said that the inhabitants of the Territory ``shall be admitted to the
enjoyment of all the rights, advantages and immunities of citizens of
the United States, and shall be maintained and protected in the free
enjoyment of their liberty.'' Senator Church asked this body the
question: ``Can it be that ours, too, will be the error of the Roman
senate, which sapped the vitality and strength from the Roman Republic,
refusing to extend the right of franchise, until government became a
mockery, empty of empty of principle . . .?''
Fortunately for the United States in this matter, right prevailed
that year, and those calling for Alaska's statehood were vindicated in
their tireless quest.

[[Page S6196]]

The admission of Alaska into the Union represents a rejection of the
status quo, a manifestation of the very American tendency to look
beyond what is to what could be, and Alaska has exceeded all
expectations. That historic 1958 debate about Alaska's statehood
mentions things familiar today which remain the backbone of Alaska's
economy and, by extension, are integral to the U.S. economy, salmon,
oil and natural gas to name a few. Alaska enriched our inventory of
public land immeasurably: forests rich in wildlife; the majestic
mountains of the Denali and the breathtaking flanks and soaring peak of
Mount McKinley; glaciers of incredible beauty; rivers teeming with
salmon; and bays and harbors with orcas and other ocean wildlife.
Alaska holds beauty and riches beyond measure above and below the land,
rivers and oceans.
Periodically, the U.S. Senate does something that, in the words of
Senator Church that year, falls outside the realm of meeting exigencies
of the present. When the Senate bestowed statehood upon Alaska 50 years
ago this week, it grasped the brief shining moment history had granted
it and looked beyond partisan politics to do something great and
glorious for the good of our Nation.
I appreciate the Senator from Alaska's invitation to speak during
this auspicious time in Alaska's history. I am proud of the role of
Idaho lawmakers in the history of Alaska's statehood, particularly
Senator Church, and also Congresswoman Gracie Pfost who also supported
Alaska's statehood that year. In fact, an editorial in the Fairbanks
News-Miner on May 6, 1958 called Senator Church ``one of Alaska's
greatest champions in Congress.''
Idaho and Alaska will always have much in common. Both western Rocky
Mountain States, we face similar land use, wildlife and natural
resource issues and we both celebrate the staggering beauty of our
land. While Idaho does have the largest amount of wilderness area in
the continental United States, it is dwarfed, of course, by Alaska
which has the largest amount of Federal land of any State. Idaho and
Alaska lawmakers can be proud of half a century of working together for
the good of our States, our constituents and the mountain west.
Congratulations, Senator Murkowski and Senator Stevens, on the
birthday of your great State.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Ms. MURKOWSKI. Mr. President, I thank my colleague from the State of
Idaho. As he indicated, Senator Church was a great leader in the
statehood fight. Idaho and Alaska have long since maintained that good
relationship from five decades ago. I also recognize the comments of
Senator Murray from Washington. The relationship our two States have
had throughout the years through trade and commerce has provided issues
on which we have worked jointly. Again, I thank them for taking the
time to help Alaska commemorate its 50th anniversary celebration.
I will tell my colleagues, as the first Senator serving in the Senate
to ever have been born in the State of Alaska--I was actually born just
a little bit before statehood, born in the territory--I am fiercely
passionate about my State. My mother was born in the community of Nome
in the early 1930s, at a time when Alaska was pretty rough and tumble.
My family on both sides was involved in the issues that led to
statehood. I am very proud of how we as a State have advanced over
these 50 years. To be able to recognize that progress and then look
forward with anticipation as we forge the next 50 years, a State that
has so much to offer this country, not only our natural resources but
the ingenuity and resourcefulness of our people, the fact that our
Alaska Natives per capita serve at record numbers in our military,
providing for the defense of this country, we are full participants in
this great Nation. Even though our geography separates us, there is a
sense of patriotism and love for this country that does not go without
recognition.
I am honored to stand before the Senate today to celebrate the battle
that led to statehood and the recognition of decades of good work.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, I ask unanimous consent to print in the
Record the names of distinguished young Alaskans who have been
permitted to be on the floor today to witness the celebration of our
50th anniversary.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Senator Murkowski's Interns and Their Hometowns

Brian O'Leary--Kodiak, Rochelle Hanscom--Fairbanks, Nychele
Fischetti--Anchorage, Taryn Moore--Anchorage, Lyndsey Haas--
Petersburg, Kristen Coan--Palmer, Wes Stephel--Soldotna,
Haleigh Zueger--Unalaska, Kelsey Eagle--Sitka, Samantha
Novak--Anchorage, Cameron Piscoya--Nome, and Alexis Krell--
Wasilla.

Senator Stevens' Interns and Their Hometowns

Bennett Clare--Nikiski, Castillo Serame--Anchorage, Choi
Claire--Anchorage, Downey Michael--Anchorage, Hein Dyle--
Juneau, Horstkoetter Paul--Anchorage, Johnsen, Jakob--
Fairbanks, Lettow Jaimee--Wasilla, Malmberg Cort--Kodiak,
Syversen Karmel--Anchorage, Alguire Coleman--Ketchikan, Eby
Eryn--Anchorage, Gilman Rebecca--Kenai, Joynt Marshall--
Wasilla, Kazmierczak Jessica--Salcha, Mallipudi Andres--
Anchorage, Oh Samuel--Wasilla, Osterman Thomas--Kasilof, and
Welch Alisha--Bethel.

The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I wonder if I could add a word to my two
distinguished colleagues. I have had the good fortune--and it is good
fortune--to have visited every State in the United States and the
territories in my nearly 82 years of wonderful life that the good Lord
has given me. I would think every American would deem, every American
who has a feeling for the outside and the magnificent beauty of nature,
that their education would not be complete unless they visit Alaska and
see with their own eyes and breathe the air, see the water, all the
magnificent beauty. I have enjoyed a number of trips to Alaska, largely
sponsored by my dear friend Senator Stevens, through the years. We have
been there together many times, many times in connection with the U.S.
military, which finds a wonderful home in Alaska. Alaskans have taken
such good care of them.
But you have a great strength. Those of us in the Senate are proud to
serve with two fine Senators from the great State of Alaska.
Mr. President, I ask at this point in time if I could address the
FISA bill. Is that the pending business or may I ask to speak on that
business now?
The PRESIDING OFFICER. The Senate is postcloture on the motion to
proceed to the FISA bill.
Mr. WARNER. So it is appropriate at this time to deliver remarks with
regard to that bill?
The PRESIDING OFFICER. The Senator is correct.
Mr. WARNER. I thank the Chair.
Mr. President, this is one of the most important subjects I have had
the privilege of addressing in my 30-some years in the Senate. I and
many others will rise in connection with this bill in support of the
FISA Amendments Act. It is a critical piece of legislation for
America's present and future security. It achieves an important balance
between protecting civil liberties and ensuring that our dedicated
intelligence professionals have the capabilities they need to protect
this Nation.
Currently, Admiral McConnell is Director of our intelligence system.
I have had the privilege of knowing him for over 30 years, working with
him. We are fortunate that he and General Hayden and many others are
carrying the torch for our Nation's intelligence. They have worked very
hard on this piece of legislation, as has my dear colleague from
Missouri, Senator Bond. I am on the Intelligence Committee. He has done
a splendid job in negotiating the conference--hopefully, what will be a
settlement. He was supported by our chairman, Senator Rockefeller. It
has been a team, with the two of them achieving the juncture we are at
now in the consideration of this bill.
The bill ensures that the intelligence capabilities provided by the
Protect America Act, enacted in August of 2007, remain sealed in
statute. I cannot overemphasize how important that is to ensuring our
Nation's security. I wish to underscore, once again, the importance of
legal protection for the telecommunications carriers that have
voluntarily--underline voluntarily--come

[[Page S6197]]

forth for the private sector and have assisted our Government with the
terrorist surveillance program, commonly referred to as TSP, which was
originated and authorized by the President under appropriate sections,
in my judgment, of the Constitution, particularly article II.
I wish to emphasize that I was privileged to be Secretary of the Navy
in the period of the 1970s, when the All-Volunteer Force was conceived.
That force of young men and women, each of whom raised their hands and
said, I volunteer to serve in uniform, is not unlike the issue today
with elements of corporate America, the private sector, who have come
forward to volunteer to assist this Government in performing the
intelligence responsibilities undertaken which guarantee the freedoms
and safety we enjoy every day here at home. The extensive evidence made
available to the Senate Intelligence Committee shows that carriers that
participated in this program relied upon our Government's assurances
that their actions were legal, authorized by the President, and in the
best interests of the security of our Nation.
In brief, our Government provided the carriers with essential
assurances, and the carriers responded to our Government's request for
help. These carriers must be protected from costly and damaging
lawsuits. Such lawsuits could end the current level of participation in
the vital intelligence programs by these carriers and will likely deter
other companies and private citizens who might like to step forward and
volunteer in helping us protect ourselves by virtue of the essential
intelligence we must monitor and collect every day. After all, these
carriers are corporations in most instances, if not all. They are
beholden, the executives of these corporations, to the stockholders.
That is the system of free enterprise we have in the United States.
Consequently, they, on behalf of their stockholders--and the
stockholders could be the pension funds, could be a stock held by any
number of people and entities in our system of Government--are coming
forth simply asking for codification of assurances having been given by
the Government so they can go back to their stockholders and explain
that: We are doing this to protect America. We now have, by virtue of
the actions of the Congress, signed and sealed by the President, the
law that will protect your interests in this country from lawsuits
which have no foundation in law.
I would like to share a ``Dear Colleague'' letter which all Members
of our Chamber some months ago received from the esteemed chairman and
vice chairman of the Intelligence Committee, Senators Rockefeller and
Bond.
I ask unanimous consent that the full text of the letter be printed
in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WARNER. The letter discussed the Senate Intelligence Committee's
extensive and bipartisan review of the TSP, which included dozens of
briefings, hearings, and interviews, as well as extensive document
reviews. As a result of this more than 10-month comprehensive
examination, the committee concluded--and I quote what was written and
published to our colleagues by the committee--

Irrespective of one's opinion of the President's reliance
on Article II authority to justify the TSP, those companies
that assisted with the TSP did so in good faith and based
upon the written--

I repeat: ``written representations''--

from the highest levels of government that the program was
lawful. The Committee's bill reported out on a strong,
bipartisan vote of 13-2--

I wish to repeat that. That is a strong vote. I have served on the
Intelligence Committee. This is my third tour of duty, you might say,
given that we have, under our leadership, stipulated periods to serve.
That is a big, strong vote. At one time, I was ranking member, as is
Mr. Bond, of that committee, and that is about as strong a vote as you
can get among the diversity of the wonderful people who have,
throughout my years in the Senate, served on that committee.

[That vote] reflects our determination that companies that
cooperated with the government in good faith should be
protected from time-consuming and expensive litigation. It is
a matter of fundamental fairness.

End quote by the committee.
Another item which played a key role in my thinking about the issue
was a thoughtful article published in a newspaper by private citizens
with past distinguished careers in public service relating to
intelligence. The first is Benjamin Civiletti, U.S. Attorney General
under President Jimmy Carter; followed by Dick Thornburgh, U.S.
Attorney General under President George Herbert Walker Bush; and Judge
William Webster, a very distinguished gentleman I have known personally
for many years, former Director of the CIA and former Director of the
Federal Bureau of Investigation.
Now, there are three diverse public servants, with different
political backgrounds, but they came together for the common purpose of
trying to strengthen America's intelligence system. The article,
entitled ``Surveillance Sanity,'' appeared in the October 31, 2007,
edition of the Wall Street Journal. I have spoken on the floor
previously about this article and their contribution, but because of
its direct relevance to the issue we are now deliberating on and
hopefully will vote on today, I ask unanimous consent that a copy of
the article be printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. WARNER. Let me share with you some of their thoughts. Regarding
the Intelligence Committee's carefully crafted and limited liability
provision, which is very similar to the provision in the bill currently
before us, these three distinguished public servants--now private
citizens--said:

We agree with the Committee. Dragging phone companies
through protracted litigation would not only be unfair, but
it would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be
uncertainty or level risk.

Unfortunately, our committee has already heard testimony that without
such protections, some companies believe they can no longer continue
their cooperation and assistance to our American Government,
particularly the intelligence sections.
Messrs. Civiletti, Thornburgh, and Webster also wrote:

The government alone cannot protect us from the threats we
face today. We must have the help of all of our citizens.
There will be times when the lives of thousands of Americans
will depend on whether corporations such as airlines or banks
are willing to lend assistance. If we do not treat them
fairly when they respond to assurances from the highest
levels of the government that their help is legal and
essential for saving lives, then we will be radically
reducing our society's capacity to defend itself.

That is very strong language, very clear language. I urge my
colleagues, once again, to look at their article.
As the Senate considers this bill, it should reject any amendments
which would put the carriers and their millions of shareholders in
legal limbo, waiting while the Government litigates unrelated
constitutional claims. Lawsuits against the companies would likely
continue in the interim which would: have negative ramifications on our
intelligence sources and methods; likely harm the business reputations
of these companies; and cause the companies to reconsider their
participation--or worse--cause them to terminate their cooperation in
the future.
The Senate Intelligence Committee, by a vote of 13 to 2, stated its
belief that the carriers acted in good faith and that they deserve to
be protected.
Clearly the issue of whether the President acted within his
constitutional authority in authorizing the TSP can and should be
addressed in a separate context from this bill.
Even the exclusive means provision in this bill favored by my
Democratic colleagues in the House and Senate acknowledges the
President's constitutional authority in stating that certifications to
companies for assistance shall identify the statutory provision on
which the certification is based, ``if a certification . . . is based
on statutory authority.'' This clearly indicates that the certification
could be based on the President's constitutional authority.
But, even if one did not agree that the President acted within his
Article II powers, why would anyone want to punish the carriers for
something the Government called on them to do and assured them was
legal?

[[Page S6198]]

Individuals who believe that the Government violated the civil
liberties can pursue legal action against the Government, and the bill
before us does nothing to limit that legal recourse.
As stated so eloquently by Messrs. Civiletti, Thornburg, and Webster,
I quote the following:

Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. . . . Because a
private person cannot have all the information necessary to
assess the propriety of the government's actions, he must be
able to rely on official assurances about need and legality.

I strongly believe that the President did act within his Article II
executive branch authority in authorizing this program. Even the
exclusive means provision in this bill favored by my Democratic
Colleagues in the House and Senate acknowledges the President's
constitutional authority in stating that certifications to companies
for assistance shall identify the statutory provision on which the
certification is based ``if a certification . . . is based on statutory
authority.'' This clearly indicates the certification could be based on
the President's constitutional authority.
But even if one did not agree that the President acted--acted--within
the confines of the U.S. Constitution--particularly article II outlines
the executive branch's power under the President--why would anyone want
to punish the carriers for something the Government called on them to
do and assured them was legal? Individuals who believe the Government
violated their civil liberties can pursue legal action against the
Government, and the bill before us does nothing--I repeat: does
nothing--to prohibit a citizen to bring that legal recourse against
their Government, the U.S. Government.
As stated so eloquently in the Messrs. Civiletti, Thornburgh, and
Webster document, I further quote:

I agree with the conclusions of these three eminent private citizens.
I would like to also call your attention to an important letter sent
last week--June 19, 2008--to Senate and House leadership from the
Attorney General of the United States and the Director of National
Intelligence--that is GEN Michael Mukasey and ADM Michael McConnell--
two distinguished public servants now serving America.
Mr. President, I also ask unanimous consent that this letter be
printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 3.)
Mr. WARNER. These gentlemen said:

[P]roviding this liability protection is critical to the
Nation's security.

They confirmed that the intelligence community cannot obtain the
intelligence it needs without--I repeat, without--the assistance from
these carriers, companies, and other segments of the private sector.
They noted:

It is critical that any long-term FISA modernization
legislation contain an effective liability protection
provision.

It should be clear from this letter that the Director of National
Intelligence and the Attorney General of the United States could not
support the bill without explicit retroactive legal protection for the
carriers and other segments of the private sector.
It is for these reasons that I urge my colleagues to support H.R.
6304, the FISA Amendments Act, as passed by the House, and to vote
against any amendments that intend to strip out or alter the critical
civil liability provision or any other section of the bill that is
essential to our intelligence community.
Mr. President, I yield the floor.

Exhibit 1

U.S. Senate,

Select Committee on Intelligence,

Washington, DC, February 1, 2008.
Dear Colleagues: The FISA Amendments Act, S. 2248, provides
limited and narrowly-drawn retroactive civil liability
protection to those telecommunication companies that
allegedly assisted the government with the President's
Terrorist Surveillance Program (TSP). An amendment has been
offered to this Act to strike these liability protections in
favor of ``substitution,'' a legal mechanism for replacing
the companies in the ongoing TSP litigation with the
government.
The Senate Intelligence Committee conducted a comprehensive
and bipartisan review of the President's TSP, including the
issue of carrier liability. The Committee reviewed numerous
documents, including the Department of Justice legal opinions
and the letters from the government to the companies. The
Committee held a number of briefings and hearings involving
government and company officials. The Committee also visited
the National Security Agency to see firsthand how the TSP
worked.
As a result of this extensive review, the Committee
concluded that, irrespective of one's opinion of the
President's reliance on Article II authority to justify the
TSP, those companies that assisted with the TSP did so in
good faith and based upon the written representations from
the highest levels of government that the program was lawful.
The Committee's bill, reported out on a strong, bipartisan
vote of 13-2, reflects our determination that companies that
cooperated with the government in good faith should be
protected from time-consuming and expensive litigation. It is
a matter of fundamental fairness. The Committee rejected the
broad immunity proposal sought by the Administration. Our
limited immunity provision only covers assistance provided
from September 11th to when the TSP was put under court
authorization in January of last year. It does not provide
protection from criminal prosecution or extend protections to
government officials. Any litigation against government
officials will continue.
In concluding that civil liability protection for those
companies was appropriate, the Committee recognized that
allowing the current litigation to continue could: (1)
compromise our intelligence sources and methods through
ongoing discovery and other litigation proceedings; (2)
result in significant loss of business reputation or
financial loss for those companies that participated in good
faith; (3) jeopardize the personal safety of overseas
employees of these companies if it becomes known that the
companies assisted the government in fighting terrorism; (4)
put taxpayers' dollars at risk for dubious legal claims; and
(5) lead to reluctance by these and other companies to
cooperate with legitimate requests for assistance in the
future.
The substitution amendment sponsored by Senators Specter
and Whitehouse does not alleviate any of these concerns. Even
if the companies are removed directly from the litigation,
discovery would still be allowed to proceed against them. In
short, the conduct of the companies would continue to be
litigated, raising significant concerns that their identities
or details about their assistance will be disclosed. Given
the essential role that our private partners play in
intelligence collection, we believe that this is simply too
great a risk to our national security.
We believe, therefore, that the ongoing litigation against
the telecommunication companies should be brought to an
immediate close and that the Intelligence Committee's
bipartisan determination of good faith should stand. We urge
you to support the Intelligence Committee's bill and oppose
any effort to modify or strike its civil liability provision.
Sincerely,
John D. Rockefeller IV,
Chairman.
Christopher S. Bond,
Vice Chairman.

Exhibit 2

[From the Wall Street Journal, Oct. 31, 2007]

Surveillance Sanity

(By Benjamin Civiletti, Dick Thornburgh and William Webster)

Following the terrorist attacks of Sept. 11, 2001,
President Bush authorized the National Security Agency to
target al Qaeda communications into and out of the country.
Mr. Bush concluded that this was essential for protecting the
country, that using the Foreign Intelligence Surveillance Act
would not permit the necessary speed and agility, and that he
had the constitutional power to authorize such surveillance
without court orders to defend the country.
Since the program became public in 2006, Congress has been
asserting appropriate oversight. Few of those who learned the
details of the program have criticized its necessity.
Instead, critics argued that if the president found FISA
inadequate, he should have gone to Congress and gotten the
changes necessary to allow the program to proceed under court
orders. That process is now underway. The administration has
brought the program under FISA, and the Senate Intelligence
Committee recently reported out a bill with a strong
bipartisan majority of 13-2, that would make the changes to
FISA needed for the program to continue. This bill is now
being considered by the Senate Judiciary Committee.
Public disclosure of the NSA program also brought a flood
of class-action lawsuits seeking to impose massive liability
on phone companies for allegedly answering the government's
call for help. The Intelligence Committee has reviewed the
program and has concluded that the companies deserve targeted
protection from these suits. The protection would extend only
to activities

[[Page S6199]]

undertaken after 9/11 until the beginning of 2007, authorized
by the president to defend the country from further terrorist
attack, and pursuant to written assurances from the
government that the activities were both authorized by the
president and legal.
We agree with the committee. Dragging phone companies
through protracted litigation would not only be unfair, but
it would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be
uncertainty or legal risk.
The government alone cannot protect us from the threats we
face today. We must have the help of all our citizens. There
will be times when the lives of thousands of Americans will
depend on whether corporations such as airlines or banks are
willing to lend assistance. If we do not treat companies
fairly when they respond to assurances from the highest
levels of the government that their help is legal and
essential for saving lives, then we will be radically
reducing our society's capacity to defend itself.
This concern is particularly acute for our nation's
telecommunications companies. America's front line of defense
against terrorist attack is communications intelligence.
When Americans put their loved ones on planes, send their
children to school, or ride through tunnels and over
bridges, they are counting on the ``early warning'' system
of communications intelligence for their safety.
Communications technology has become so complex that our
country needs the voluntary cooperation of the companies.
Without it, our intelligence efforts will be gravely
damaged.
Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. From its
earliest days, the common law recognized that when a public
official calls on a citizen to help protect the community in
an emergency, the person has a duty to help and should be
immune from being hauled into court unless it was clear
beyond doubt that the public official was acting illegally.
Because a private person cannot have all the information
necessary to assess the propriety of the government's
actions, he must be able to rely on official assurances about
need and legality. Immunity is designed to avoid the burden
of protracted litigation, because the prospect of such
litigation itself is enough to deter citizens from providing
critically needed assistance.
As the Intelligence Committee found, the companies clearly
acted in ``good faith.'' The situation is one in which
immunity has traditionally been applied, and thus protection
from this litigation is justified.
First, the circumstances clearly showed that there was a
bona fide threat to ``national security.'' We had suffered
the most devastating attacks in our history, and Congress had
declared the attacks ``continue to pose an unusual and
extraordinary threat'' to the country. It would have been
entirely reasonable for the companies to credit government
representations that the nation faced grave and immediate
threat and that their help was needed to protect American
lives.
Second, the bill's protections only apply if assistance was
given in response to the president's personal authorization,
communicated in writing along with assurances of legality.
That is more than is required by FISA, which contains a safe-
harbor authorizing assistance based solely on a certification
by the attorney general, his designee, or a host of more
junior law enforcement officials that no warrant is required.
Third, the ultimate legal issue--whether the president was
acting within his constitutional powers--is not the kind of
question a private party can definitively determine. The
companies were not in a position to say that the government
was definitely wrong.
Prior to FISA's 1978 enactment, numerous federal courts
took it for granted that the president has constitutional
power to conduct warrantless surveillance to protect the
nation's security. In 2002, the FISA Court of Review, while
not dealing directly with the NSA program, stated that FISA
could not limit the president's constitutional powers. Given
this, it cannot be said that the companies acted in bad faith
in relying on the government's assurances of legality.
For hundreds of years our legal system has operated under
the premise that, in a public emergency, we want private
citizens to respond to the government's call for help unless
the citizen knows for sure that the government is acting
illegally. If Congress does not act now, it would be
basically saying that private citizens should only help when
they are absolutely certain that all the government's actions
are legal. Given the threats we face in today's world, this
would be a perilous policy.

Exhibit 3

June 19, 2008.
Hon. Nancy Pelosi, Speaker,
House of Representatives,
Washington, DC.
Dear Madam Speaker: This letter presents the views of the
Administration on the Foreign Intelligence Surveillance Act
of 1978 (``FISA'') Amendments Act of 2008 (H.R. 6304). The
bill would modernize FISA to reflect changes in
communications technology since the Act was first passed 30
years ago. The amendments would provide the Intelligence
Community with the tools it needs to collect the foreign
intelligence necessary to secure our Nation while protecting
the civil liberties of Americans. The bill would also provide
the necessary legal protections for those companies sued
because they are believed to have helped the Government
prevent terrorist attacks in the aftermath of September 11.
Because this bill accomplishes these two goals essential to
any effort to modernize FISA, we strongly support passage of
this bill and will recommend that the President sign it.
Last August, Congress took an important step toward
modernizing FISA by enacting the Protect America Act of 2007.
That Act allowed us temporarily to close intelligence gaps by
enabling our intelligence professionals to collect, without
having to first obtain a court order, foreign intelligence
information from targets overseas. The Act has enabled us to
gather significant intelligence critical to protecting our
Nation. It has also been implemented in a responsible way,
subject to extensive executive, congressional, and judicial
oversight in order to protect the country in a manner
consistent with safeguarding Americans' civil liberties.
Since passage of the Act, the Administration has worked
closely with Congress to address the need for longterm FISA
modernization. This joint effort has involved compromises on
both sides, but we believe that it has resulted in a strong
bill that will place the Nation's foreign intelligence effort
in this area on a firm, long-term foundation. Below, we have
set forth our views on certain important provisions of H.R.
6304.

Title I--Foreign Intelligence Surveillance

Title I of H.R. 6304 contains key authorities that would
ensure that our intelligence agencies have the tools they
need to collect vital foreign intelligence information and
would provide significant safeguards for the civil liberties
of Americans.
Court Approval. With respect to authorizations for foreign
intelligence surveillance directed at foreign targets outside
the United States, the bill provides that the Foreign
Intelligence Surveillance Court (FISC) would review
certifications made by the Attorney General and the Director
of National Intelligence relating to these acquisitions, the
reasonableness of the procedures used by the Intelligence
Community to ensure the targets are overseas, and the
minimization procedures used to protect the privacy
of Americans. The scope of the FISC's review is carefully
and rightly crafted to focus on aspects of the acquisition
that may affect the privacy rights of Americans so as not
to confer quasi-constitutional rights on foreign
terrorists and other foreign intelligence targets outside
the United States.
We have been clear that any satisfactory bill could not
require individual court orders to target non-United States
persons outside the United States, nor could a bill establish
a court-approval mechanism that would cause the Intelligence
Community to lose valuable foreign intelligence while
awaiting such approval. H.R. 6304 would do neither and would
retain for the Intelligence Community the speed and agility
that it needs to protect the Nation. The bill would establish
a schedule for court approval of certifications and
procedures relating to renewals of existing acquisition
authority. A critical feature of the H.R. 6304 would allow
existing acquisitions, which were the subject of court review
under the Protect America Act or will be the subject of such
review under the H.R. 6304, to continue pending court review.
With respect to new acquisitions, absent exigent
circumstances, Court review of new procedures and
certifications would take place before the Government begins
the acquisition. The exigent circumstances exception is
critical to allowing the Intelligence Community to respond
swiftly to changing circumstances when the Attorney General
and the Director of National Intelligence determine that
intelligence may be lost or not timely acquired. Such exigent
circumstances could arise in certain situations where an
unexpected gap has opened in our intelligence collection
efforts. Taken together, these provisions would enable the
Intelligence Community to keep closed the intelligence gaps
that existed before the passage of the Protect America Act
and ensure that it will have the opportunity to collect
critical foreign intelligence information in the future.
Exclusive means. H.R. 6304 contains an exclusive means
provision that goes beyond the exclusive means provision that
was passed as part of FISA. As we have previously stated, we
believe that the provision will complicate the ability of
Congress to pass, in an emergency situation, a law to
authorize immediate collection of communications in the
aftermath of an attack or in response to a grave threat to
the national security. Unlike other versions of this
provision, however, the one in this bill would not restrict
the authority of the Government to conduct necessary
surveillance for intelligence and law enforcement purposes in
a way that would harm national security.
Oversight and Protections for the Civil Liberties of
Americans. H.R. 6304 contains numerous provisions that
protect the civil liberties of Americans and allow for
extensive executive, congressional, and judicial oversight of
the use of the authorities. The bill would require the
Attorney General and the Director of National Intelligence to
conduct semiannual assessments of compliance with targeting
procedures and minimization procedures and to submit those
assessments to the FISC and to Congress. The FISC and
Congress would also receive annual reviews relating to those
acquisitions prepared by the heads of agencies that use the
authorities

[[Page S6200]]

contained in the bill. Congress would receive reviews from
the Inspectors General of these agencies and of the
Department of Justice regarding compliance with the
provisions of the bill. In addition, the bill would require
the Attorney General to submit to Congress a report at
least semiannually concerning the implementation of the
authorities provided by the bill and would expand the
categories of FISA-related court documents that the
Government must provide to the congressional intelligence
and judiciary committees.
Title I also includes provisions that would protect the
civil liberties of Americans. For instance, the bill would
require for the first time that a court order be obtained to
conduct foreign intelligence surveillance outside the United
States of an American abroad. Historically, Executive Branch
procedures guided the conduct of surveillance of a U.S.
person overseas, such as when a U.S. person acts as an agent
of a foreign power, e.g., spying on behalf of a foreign
government. Given the complexity of extending judicial review
to activities outside the United States, these provisions
were carefully crafted with Congress to ensure that such
review can be accomplished while preserving the necessary
flexibility for intelligence operations. Other provisions of
the bill address concerns that some voiced about the Protect
America Act, such as clarifying that the Government cannot
``reverse target'' without a court order and requiring that
the Attorney General establish guidelines to prevent this
from occurring. We believe that, taken together, these
provisions will allow for ample oversight of the use of these
new authorities and ensure that the privacy and civil
liberties of Americans are well protected.

II. Title II--Protections for Electronic Communications Service
Providers

Title II of the bill contains, among other provisions,
vital protections for electronic communications service
providers who assist the Intelligence Community's efforts to
protect the Nation from terrorism and other foreign
intelligence threats. Title II would provide liability
protection related to future assistance while ensuring the
protection of sources and methods. Importantly, the bill
would also provide the necessary legal protection for those
companies who are sued only because they are believed to have
helped the Government with communications intelligence
activities in the aftermath of September 11, 2001.
The framework contained in the bill for obtaining
retroactive liability protection is narrowly tailored. An
action must be dismissed if the Attorney General certifies to
the district court in which the action is pending that
either: (i) the electronic communications service provider
did not provide the assistance; or (ii) the assistance was
provided in the wake of the September 11 attack and was the
subject of a written request or series of requests from a
senior Government official indicating that the activity was
authorized by the President and determined to be lawful. The
district court would be required to review this certification
before dismissing the action, and the provision allows for
the participation of the parties to the lawsuit in a manner
consistent with the protection of classified information. The
liability protection provision does not extend to the
Government or to Government officials and it does not
immunize any criminal conduct.
Providing this liability protection is critical to the
Nation's security. As the Senate Select Committee on
Intelligence recognized, ``the intelligence community cannot
obtain the intelligence it needs without assistance from
these companies.'' That committee also recognized that
companies in the future may be less willing to assist
the Government if they face the threat of private lawsuits
each time they are believed to have provided assistance.
Finally, allowing litigation over these matters risks the
disclosure of highly classified information regarding
intelligence sources and methods. As we have stated on
many occasions, it is critical that any long-term FISA
modernization legislation contain an effective liability
protection provision. H.R. 6304 contains just such a
provision and for this reason, as well as those expressed
with respect to Title I above, we strongly support its
passage.

III. Title III--Review of Previous Actions

Title III would require the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, and of certain elements of the Intelligence
Community to review certain communications surveillance
activities, including the Terrorist Surveillance Program
described by the President. Although improvements have been
made over prior versions of this provision, we believe, as we
have written before, that it is unnecessary in light of the
Inspector General reviews previously completed, those already
underway, and the congressional intelligence and judiciary
committee oversight already conducted. Nevertheless, we do
not believe that, as currently drafted, the provision would
create unacceptable operational concerns. The bill contains
important provisions to make clear that such reviews should
not duplicate reviews already conducted by Inspectors
General.

IV. Title IV--other Provisions

Title IV contains important provisions that will ensure
that the transition between the current authorities and the
authorities provided in this bill will not have a detrimental
effect on intelligence operations.
Title IV also states that the authorities in the bill
sunset at the end 2012. We have long favored permanent
modernization of FISA. The Intelligence Community operates
more effectively when the rules governing our intelligence
professionals' ability to track our enemies are firmly
established. Stability of law also allows the Intelligence
Community to invest resources appropriately. Congress has
extensively debated and considered the need to modernize FISA
since 2006, a process that has involved numerous hearings,
briefings, and floor debates. The process has been valuable
and necessary, but it has also involved the discussion in
open settings of extraordinary information dealing with
sensitive intelligence operations. Every time we repeat this
process it risks exposing our intelligence sources and
methods to our adversaries. Although we would prefer that
H.R. 6304 contain no sunset, a sunset in 2012 is
significantly longer than others that were proposed and it is
long enough to avoid impairing the effectiveness of
intelligence operations.
Thank you for the opportunity to present our views on this
crucial bill. We reiterate our sincere appreciation to the
Congress for working with us on H.R. 6304, a long-term FISA
modernization bill that will strengthen the Nation's
intelligence capabilities while respecting and protecting the
constitutional rights of Americans. We strongly support its
prompt passage.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.

The PRESIDING OFFICER. The Senator from Michigan.
Ms. STABENOW. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. STABENOW. Thank you, Mr. President.

Medicare Improvements for Patients and Providers Act

We are at a critical point today for 44 million Medicare
beneficiaries--seniors, people with disabilities--and the physicians,
the health care providers, who serve them. We are at a critical point.
I am very hopeful we are not going to see this number go up--the
number of filibusters that have been done on the other side of the
aisle. I am very hopeful this number is not going to go from 78 to 79
over the Medicare legislation that is in front of us.
We have already seen a filibuster in a successful effort to stop the
Medicare bill that would make sure that the 10-percent cut for
physicians does not take place and that other preventative and other
access issues are addressed. That is already part of these 78
filibusters. We have already seen the Medicare bill filibustered.
But today we are hopeful, based on the wonderful bipartisan vote of
355 Members of the House of Representatives, that as we come back with
their bill that was passed--and I should mention, based on the bill
that was crafted by Senator Baucus; and I wish to give him tremendous
credit for all the hard work he has done; and I am proud to be a member
of the Finance Committee, as the distinguished Presiding Officer is--
but the House, based on the work of the Senate, as well, has passed,
with 355 votes, on a bipartisan basis, a bill to make sure 44 million
seniors and people with disabilities do not find themselves worse off
as it relates to being able to get a doctor or being able to get the
care they need.
So we are at a crossroads right now. The time is up. As of next
Tuesday, July 1, a cut will take effect if we do not act. On top of
that, we will not see the other beneficial parts of this bill take
effect for our seniors, for people with disabilities, for their
families. So we are now at a point where it is decisionmaking time. The
House has acted. It is my understanding they will, in fact, be
adjourning at the end of today, and we will be in a situation to either
act, based on a strong bipartisan vote and a tremendous amount of work
that has been done in the Senate, or we will see devastating
consequences in the Medicare system.
I do not want to see this number go from 78 to 79 because of a
filibuster on a critically important Medicare bill. That is what we are
talking about. This legislation itself is good public policy. That is
why it received the 355 votes that it did, because it not only stops
the cut, the 10-percent cut that is scheduled to take place next
Tuesday, July 1--which, by the way, is the result of a fatally flawed
sustainable growth rate formula, which I have talked about many times
on this floor--we have to change the way what is called

[[Page S6201]]

the SGR is set up in terms of physician payments--this would not only
stop a major cut for physicians that translates into cuts in service
for Medicare beneficiaries, but it also does some other very important
things that relate to increasing service.
First, let me say that if the cut were to take effect, we are talking
about in Michigan alone losing $540 million--$540 million--for the care
of seniors and people with disabilities over the next 18 months--only
18 months, $540 million, if we do not act before next Tuesday.
Right now, as to the 20,000 M.D.s and D.O.s in Michigan who provide
high-quality care to 1.4 million seniors and people with disabilities
and the over 90,000 TRICARE beneficiaries--our men and women in the
military--we would see cutbacks in their staffing, in their ability to
provide service.
I have heard so many stories from physicians' practices about what
all of this means. At a time when more and more people are going into
Medicare, as our country is aging, we do not need to see cutbacks that
mean there are fewer physicians available to treat our senior citizens
and people with disabilities. That is what that means. That is what
this will mean if we do not act.
Additionally, the bill provides important and meaningful protections.
We are looking at increasing help for low-income seniors, low-income
individuals on Medicare who will be able to get additional assistance.
It also improves coordination in a number of areas and addresses what
we call mental health parity--being able to make sure that mental
health services are treated in the same way as public health services.
This is something we have gone on record to address in this body in a
bipartisan basis on more than one occasion. In this Medicare bill, we
address discrepancies between mental health services and physical
health services, all of which are the same thing, in my mind. This is a
continuum of care in terms of health care. But that is addressed in
this bill and has very strong support.
The bill also addresses very important investments in technology for
the future--investments that won't take place, such as electronic
medical records that will not be developed if, in fact, we see huge
cuts in Medicare, rather than investing in the future and investing in
technology.
The legislation in front of us would do two things in the area of
technology. We would provide additional opportunities for telehealth--
more providers, more facilities that would be able to use and be
reimbursed for telehealth--and we focus on e-prescribing, which is the
first stage of health information technology, bringing it into the 21st
century in terms of our health care system and technology.
I am very proud of Michigan. We have been one of the leaders in both
of these areas. In telehealth, in the upper peninsula of Michigan, we
have had 15 counties that have been connected through the health care
system. We have had the opportunity to see how well telemedicine works
for all of our seniors, for people with disabilities, for families in
general in the UP, as well as in northern Michigan and all around
Michigan, including our rural communities, as well as in many of our
urban communities. Telehealth is very important and it is expanded in
this Medicare bill with more access to care.
We also address the first building block of health information
technology, and that is e-prescribing. There are incentives for
physicians to use e-prescribing and there is accountability in that
arena. This is another area I have to say that I am proud of my State
of Michigan for, because we have spent a lot of time and effort, and we
have gotten real results for people, in terms of saving lives and
saving money as it relates to e-prescribing. We have a group called the
Southeastern Michigan E-prescribing Initiative, our auto industry, the
United Auto Workers, BlueCross and BlueShield, and many of our
businesses and providers have come together and found extraordinary
results.
One of the things that I think is so important about e-prescribing is
when you have an e-prescribing system, an electronic system where your
current medicines can then be compared with any new prescription that
the physician wishes to write, they are finding very important safety
and quality results. For instance, 423,000 prescriptions that were
originally written by physicians were changed or canceled by the doctor
once they received very important information about potential allergic
reactions or some other interaction with the other medicines their
patient was on. So this is very important information that is
available. We also know that 39 percent of the time, the physician,
given more information, changed the prescription to save the patient
and the employer money; being able to offer the option of more generic
drugs. So there are huge benefits to e-prescribing. On top of that, you
can read the physician's handwriting, and I say that lovingly to all of
my physician friends.
But we are in a situation now where we have a bill in front of us
that not only stops cuts that would be devastating but looks to the
future in terms of electronic e-prescribing, in terms of telehealth,
preventive services, helping low-income seniors and people with
disabilities, being able to provide mental health parity; a number of
areas that while they overall are low in cost are huge in benefit in
terms of savings lives. In fact, there are many places in this bill
where we are talking about saving dollars at the same time we are
saving lives.
I am also very pleased with the fact that the bill addresses a number
of health disparities that face those who receive Medicare based on the
legislation I have introduced with, in fact, all of the women Members
of the Senate--all 16 women Members. We have cosponsored the HEART for
Women Act, which begins to gather gender and race data to determine
gaps in coverage around heart disease. We are now using similar
language in the Medicare bill to collect more data for researchers
about disparities around health treatments and so on.
The bottom line is this is a must-pass bill, and we need to pass it
now. Time is running out. In fact, in my mind, time has run out. It is
now time to act today. When our leader, Senator Reid, who is very
committed to this legislation, committed to Medicare, came to the floor
and asked for unanimous consent to be able to take up the Medicare
bill, there were objections again. I am very concerned that those
objections are going to be leading to another filibuster, another
filibuster vote coming in the next day or few days.
I hope colleagues are aware that the American Medical Association
strongly supports this bill and has been actively involved in promoting
the bill and urging all of us to support the bill. The AARP, a leading
seniors' organization, has endorsed the House bill as well. I will read
a portion of their letter. AARP's letter notes:

Our members have also stressed strong interest in knowing
how their elected officials vote on key issues that affect
older Americans. Given the importance of the Medicare
legislation, we will be informing them how their Senators
vote on this legislation when it comes to the Senate floor.

There is great concern among people around the country watching and
waiting. People are asking what is taking us so long and why haven't we
acted. We have legislation that we worked through on a bipartisan basis
here in the Senate, and it has now passed by 355 votes in the House of
Representatives. You can't get much better than that vote. This bill
has now come over to us and it is time for us to act.
I thank again Chairman Baucus for his leadership and his hard work. I
also thank my good friends in the House, Chairman Rangel and Chairman
Dingell, for their work on behalf of Medicare beneficiaries and
physicians. I stand squarely behind this bill. I was proud to introduce
legislation a number of months back to address the question of
physician payment and the need to change the process and the way this
is done fundamentally. I am so pleased that the bill in front of us
mirrors the 18-month bill I introduced and adds to it some critically
important changes, critically important incentives to modernize the
system with telehealth and more access to health care, modernize the
system as it relates to electronic prescribing, and does more to make
sure our low-income seniors receive the help they need, and makes sure
that we are, in fact, providing a more equitable system where mental
health and physical health payments and services are looked at in the
same kind of way. This is very important. Focusing more on prevention
is very important.

[[Page S6202]]

The bottom line is we have 44 million Americans who rely on Medicare
every day. Medicare is a great American success story. It passed in
1965. It is a great American success story that has brought healthier
lives through better medical care as well as opportunities for longer
lives for millions and millions of Americans. Access to those services
is jeopardized seriously if we do not pass this bill. The ability to
expand on services and prevention is also in jeopardy if we do not pass
this bill.
I am hopeful we will come together, as our House colleagues have
done, and stand on a bipartisan basis in support of our providers, our
health care providers and, most importantly, those men and women who
are counting on us to keep the Medicare system strong for the future. I
am hopeful we will not see another filibuster stopping us from
addressing the important issues of Medicare. This needs to be done
today.
Mr. President, I yield the floor and suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SESSIONS. 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.
Mr. SESSIONS. Mr. President, I ask unanimous consent to speak as in
morning business for a few minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.

Tanker Aircraft Competition

Mr. SESSIONS. Mr. President, we heard a good bit recently and there
has been some discussion in the Senate about the competition for the
tanker aircraft that was decided by the Air Force in favor of the
Northrop Grumman team.
The Government Accountability Office team of lawyers--not
technicians--conducted a review of the procedures utilized in that
selection process, in light of 111 objections filed by the losing
Boeing team. They concluded that eight objections were merited against
the procedural conduct of the competition by the Air Force. Now the
ball is back in the lap of the Air Force to review those objections and
to take appropriate steps to make sure this is a fair and just
competition.
I will just say that I was committed in the beginning and throughout
this process that it should be a nonpolitical decision, a decision made
by the U.S. Air Force based on the criteria set out in law, based on
the fact that the Congress, after an attempt had been made to carry out
a sole-source lease agreement for the Boeing aircraft--after that was
rejected and after great embarrassment to the Air Force and Boeing, we
ordered that a bid take place.
I want my colleagues to understand the posture we are in. At the end
of the bid process, the Air Force concluded this:

While [the] KC-767 offers significant capabilities, the
overall tanker/airlift mission is best supported by the KC-
30.

The Northrop team.
They go on to say:

[The] KC-30 solution is superior in the core capabilities
of fuel capacity/offload, airlift efficiency, and cargo/
passenger/aeromedical carriage.

On the most important factors, the core capabilities, they found that
the Northrop team's aircraft was superior.
GAO did not overrule those findings. In fact, the contrary is the
case. What GAO said was in this very long, complex RFP request for
proposal--and legal requirements of bidding processes, the Air Force
made some errors. Mr. President, 111 complaints were raised against the
Air Force, but 8 were found to be worthy of objection.
In the course of GAO's evaluation of the procedural conduct of the
bid process, they reached these conclusions that I think have been
overlooked as people have discussed this issue. For example, the GAO
stated and did not dispute this:

Northrop Grumman's proposed aircraft exceeded to a greater
degree than Boeing's aircraft a key performance parameter
objective to exceed the RFP's identified fuel offload to the
receiver aircraft versus the unrefueled radius range of the
tanker.

In other words, GAO concluded and agreed that the KC-45 is more
capable at refueling than the Boeing aircraft, which is what the Air
Force found. They did not object to that point.
In addition to carrying more fuel, which clearly the Northrop team's
aircraft does, the GAO also agreed with the Air Force's professional
conclusion that it would be easier--and this is important--it would be
easier for pilots to refuel their jet fighters, for example, from the
Northrop KC-45. This is an important issue.
The GAO said:

Boeing also protests the Air Force's conclusion in the
aerial refueling area that Northrop Grumman's proposed larger
boom envelope--

The spread of the refueling booms--

proposed larger boom envelope offered a meaningful benefit to
the Air Force. From our review of the record, including
hearing testimony on this issue, we do not find a basis to
object to the Air Force's judgment that Northrop Grumman had
offered a larger boom envelope and that this offer provided
measurable benefit.

Further, the GAO also supported the Air Force's conclusion that
Northrop's KC-45 was a better airlifter.
GAO said:

Boeing also challenges the Air Force's evaluation judgment
in the airlift area that Northrop Grumman's proposed aircraft
offered superior cargo, passenger, and aeromedical evacuation
capability than did Boeing's aircraft. From our review of the
record, including the hearing testimony, we see no basis to
conclude that the Air Force's evaluation that Northrop
Grumman's aircraft was more advantageous in the airlift area
is unreasonable.

That is a big issue. Every combatant commander with whom I have
talked and who has had to move troops, cargo, personnel, and equipment
to the battlefield knows the critical need for as much airlift
capability as they can have. These refueling tankers can also serve as
a cargo aircraft and a troop movement aircraft. Clearly, the Northrop
Grumman aircraft is more advantageous, according to the Air Force's
professional finding. And that was approved by the GAO's analysis.
The GAO also found and upheld the Air Force's holding that Northrop
Grumman had a higher ``fleet effectiveness'' rating. Fleet
effectiveness--also called IFARA--reflects ``the quantity of an
offeror's aircraft that would be required to perform the scenarios in
relation to the number of KC-135R aircraft that would have been
required.'' Put simply, to boil that down, the Air Force judged that
one Northrop plane could do more refueling more efficiently than one
Boeing plane. And the GAO upheld that finding.

GAO found no fault with the Air Force's conclusion that Boeing's
proposal was more risky in certain areas and that their past
performance on similar contracts was ``marginal.''
The GAO said:

We find from our review of the record no basis to object to
the Air Force's past performance evaluation, under which both
firms' past performance received a satisfactory confidence
rating. We also find no basis to question the SSA's judgment
that, despite equal confidence ratings that the firms
received under this factor overall, Northrop Grumman's higher
``satisfactory confidence'' rating, as compared to Boeing's
``little confidence'' rating, under the program management
area, was a reasonable discriminator. The Air Force evaluated
Boeing's past performance as marginal in this area . . . We
have no basis, on this record, to find the Air Force's
judgment unreasonable.

What that means is they evaluated how well both of the bidders,
Northrop Grumman and Boeing, have performed in other contracts in the
past and found that Boeing's record was less sound. They were less
reliable in performing the contract once they had been awarded it, and
they gave extra points for that. That was affirmed by the GAO.
Amidst all the discussion of procedure and KKPs, RFPs, and dotted i's
and crossed t's, what did the GAO say in this matter? They said the Air
Force picked a plane that could carry and offload more fuel more
efficiently and in a more desirable way for the pilots. They also found
that the plane's secondary mission, airlift, that can be very critical
in a national emergency when we have to move cargo and personnel
rapidly around the world would be accomplished more effectively by the
Northrop aircraft. Finally, GAO agreed that the Northrop plane was
lower risk and that Boeing had marginal past performance.
So as we allow this process to proceed, as it should, as we expect
the Air Force to take seriously the matters raised by the GAO, we will
adhere to one overriding principle; that is, Congress ordered that the
Air Force conduct a bid of which would be the best

[[Page S6203]]

aircraft. This bid process was conducted by the Air Force as we as
Members of Congress directed. I, as a lawyer, am not capable of flying
an aircraft. Nor am I capable of analyzing aerodynamics and validating
how much weight or wingspan or how much boom coverage is needed to
safely refuel multiple aircraft at one time. I cannot fully evaluate
how valuable the ability to carry large amounts of fuel is as compared
to an aircraft that carries less, but the Air Force is. What we need to
do is make sure the Air Force does its job and selects the best
aircraft. I strongly object to any attempt to politicize this process.
Finally, I note that this aircraft would be constructed in Alabama,
my home State. It is not going to be built around the world in some
foreign land. It is a team headed by Northrop Grumman, also the EADS
team. It will be an aircraft constructed in our country, with tens of
thousands of jobs created in our country.
I thank the Chair for the opportunity to share these remarks. I hope
my colleagues will allow this process to proceed in a professional,
lawful way and respect and honor the professional decision of the Air
Force, which will have to live with this choice of tanker for perhaps
another 50 years, like the current tanker.
I yield the floor.
The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Oklahoma is
recognized.
Mr. INHOFE. Madam President, so that we can lock in a couple of
things, I ask unanimous consent to speak as in morning business, and
then I would be followed by the junior Senator from Pennsylvania.
The PRESIDING OFFICER. Without objection, it is so ordered.

Zimbabwe

Mr. INHOFE. Madam President, I thank the junior Senator from
Pennsylvania for allowing me to go ahead of him on something I think is
very significant and something with which I am sure he agrees.
Today, I want to call attention to a place that has been lost in the
sea of many other conflicts and crises plaguing our world--Zimbabwe, a
country slightly bigger than the State of Montana which sits in the
southeastern portion of Africa. It has faced and continues to face
difficult challenges and untold sufferings caused by an authoritarian
and corrupt leader, Robert Mugabe.
After fighting a long battle and civil war, Zimbabwe gained
independence in 1980 from the white Rhodesians. Independence came with
an envisioned sense of hope. Everyone thought good things were going to
happen, and the President that was elected was a man named Robert
Mugabe. But the honeymoon quickly ended with the realization that newly
elected President Mugabe had fought the war to gain personal power and
control rather than to provide freedom and democracy for its people.
In the 1990s, the country continued to weaken under the self-centered
leadership of Mugabe. As the Book of Proverbs--Solomon--tells us:
``Where there is no vision, the people perish.'' That is what is
happening in Zimbabwe.
Robert Mugabe failed to provide a vision for his country, focusing
solely upon himself and his ability to remain in power. The people of
Zimbabwe have suffered dramatically as a consequence.
In a country that once showed evidence of steady economic growth--a
country, I recall, that was considered one of the wealthiest countries
in Africa; that was considered to be the bread basket of Africa--it has
now been named the world's fastest shrinking economy.
In 2007, inflation rose above 8,000 percent. Unemployment is
estimated at 80 percent, and 80 percent of the population lives on less
than $2 a day. Mugabe's leadership has been such a disgrace. Throughout
almost 30 years of his leadership, nearly 28 years, he has worked to
tighten his rein over the nation by intimidation, violence, and
oppression.
In 2002, the Government initiated a farmland redistribution program
which resulted in 400,000 farmers losing their homes and livelihood.
The program resulted in scandal and embarrassment to Mugabe when
investigations revealed that more than 300 farms were intended for his
senior officials and ministers rather than for resettlement. In other
words, these were payoffs to his political friends.
In 2005, Mugabe initiated one of the most inexcusable incidents of
his Presidency. Operation Murambatsvina--or translated, Operation Clean
Out the Filth--was a demolition project the Government claimed was
designed to reduce crime in the major city. It resulted in an estimated
700,000 Zimbabweans losing their homes. Twenty percent of the
population has been reported as affected by the demolitions.
Many people thought this was a political move aimed at squashing any
potential protests or uprisings against the regime and displacing the
opposition party base. Not only has Mugabe's actions displayed his
blatant disregard for the well-being of his people, but he has also
expressed this in his own words. In August of 2006, after a violent
crackdown on a peaceful protest by the Zimbabwean union, Mugabe said he
had warned, prior to the incident, that security forces ``will pull the
trigger'' against the protesters.
Mugabe said this:

Some people are now crying foul that they were assaulted.
Yes, you get a beating. When the police say move, move, if
you don't move, you invite the police to use force.

Many believe that the farmland redistribution and Operation Clean Out
the Filth contributed drastically to the poverty affecting the
Zimbabweans. The Government has accused food aid agencies of using food
to turn Zimbabwe away from Mugabe's ruling party, and, in turn,
continues to maintain tight control of food distributions.
The totalitarian regime has, not surprisingly, placed a very
significant emphasis on their military and security forces. In 2006,
the Government reportedly spent more than $20 million--that is 20
million U.S. dollars--to purchase new cars for police, military, and
intelligence officers. In a dying economy, it is stunning that Zimbabwe
is able to buy high-priced military articles, to include their recent
purchase of fighter jets from China costing more than $240 million.
As you know, Madam President, China has an increasing influence on
the continent of Africa, but their relationship and long support of
Mugabe's ZANU-PF Party is concerning. China is currently Zimbabwe's
largest investor and second largest trading partner. As most Western
countries, including the United States, enforce an arms embargo against
the country, China continues to sell defense articles to the regime.
Most recently, South Africa refused to let a Chinese cargo ship unload
because it was carrying more than 70 tons of small arms destined for
Zimbabwe.
China has also played a significant role in diplomacy in Zimbabwe.
China was Mugabe's key supporter through the international outrage in
response to Operation Clean Out the Filth. China worked to quiet the
U.N. condemnation of the incident and is now expected to veto any
proposed action by the Security Council to punish Mugabe's
administration--which, of course, they can do under the rules of the
United Nations. China's persistent support and supply to Mugabe's
regime demonstrates their indifference to the violence, oppression, and
potential civil war looming in the country.
On March 29, 2008, Zimbabwe held Presidential elections along with
parliamentary and local elections. I am very familiar with this, Madam
President, because I was there when it happened. I was actually in
Tanzania, and we were watching very carefully, with all the countries,
all hoping that they would have an honest election. Sure enough, Mugabe
lost. The incumbent President Mugabe ran for the ZANU-PF Party, and a
man named Morgan Tsvangirai for the Movement for Democratic Change
Party.
The election process was tainted with intimidation of voters and
violence against the opposition party and supporters of the opposition.
Political rallies were banned. The opposition party's secretary general
was jailed, denied bail, tried for treason, and may face the death
penalty. There are also reports that the regime is restricting access
to food in opposition areas, threatening already hungry people to
either vote for Mugabe or to starve.
The results of the race, finally released in May, indicated that the
MDC opposition leader won the election but didn't quite reach the 50
percent, so

[[Page S6204]]

there was a runoff that was scheduled for Friday--that is this Friday,
the 27th. Sadly, this week, the opposition leader, because of threats
on his life, pulled out of the race and refused to take part in what he
calls ``a sham of an election process.'' He said he cannot ask
Zimbabweans to vote ``when that vote could cost them their lives.'' He
has taken refuge now in the Embassy of the Netherlands.
Mugabe has clearly stolen the election, and the outlook for true
reform for democracy for the people of Zimbabwe looks very bleak at
this time.
As I have traveled across the continent--and I have traveled across
Africa more than any other Member probably in the history of America--I
have seen wonderful things happening on the continent. Whether it is
Rwanda, Burundi, Tanzania, Uganda, Ghana, Benin, or Cote d'Ivoire, in
these countries wonderful things are happening. They are making great
strides everywhere except Zimbabwe. While Mugabe leads Zimbabwe away
from reaching its full potential, there are other leaders on the
continent who have chosen a vision of democracy, freedom, and progress
in their countries. And while not perfect, each is making improvements
and taking strides to improve democratic practices and exercising the
free political will.
Mugabe will never allow his people to decide the next phase and
direction of their country. I think we should call on the African
leaders, which I have done personally in Africa--many of whom are my
friends and brothers--and leaders all over the world to do what we can
to help the people of Zimbabwe.
I have to say, Madam President, and I speak firsthand because I was
there when this happened, that Zimbabwe was once the bread basket of
sub-Sahara Africa, and I have seen Zimbabwe now, the most devastated of
all the 52 countries of the continent of Africa.
With that, I yield the floor, and again I thank my friend from
Pennsylvania for allowing me to go before his presentation.
The PRESIDING OFFICER. The Senator from Illinois is recognized.
Mr. DURBIN. Madam President, the Senator from Pennsylvania is now,
under previous consent, going to be recognized, and it is my
understanding as well that the Senator from Rhode Island, Senator
Whitehouse, would like to follow him. I ask unanimous consent that
following both Senator Casey and Senator Whitehouse that I be
recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania is recognized.

Rising Gas Prices

Mr. CASEY. Madam President, I rise today to talk about a problem so
many of our families are facing and so many of our businesses, and that
is the problem of rising gas prices. Unfortunately, we have seen an
increase of at least $1 at the pump in just 1 year.
Like a lot of my colleagues in the Senate, I just received a letter
from a woman in Pennsylvania, 86 years old, from Bucks County, PA, and
she talked about, in her letter, the Great Depression, when she was
describing how people had nothing and how worried she is about our
current economic crisis, especially in light of these gas prices. She
reminds us that, just as in the Great Depression, we need to have
commonsense solutions to dig ourselves out of the economic trauma so
many families face.
Today, whether it is on gas prices, the cost of health care, or the
mortgage foreclosure crisis that has gripped the country, we do need
commonsense solutions. We don't need more gimmicks, we don't need more
partisan bickering, we need commonsense solutions. And those solutions
on gas prices are not a magic wand. No piece of legislation in the
Senate will bring down gas prices immediately. We know that. Anyone who
says otherwise is not speaking the truth. But there are things that we
can do to at least begin the process, or go down that road, I should
say, of bringing those prices down.
We have to move in a direction that focuses on short-term solutions
as well as long-term--short term and long term. We will talk about
those in a couple of moments, but, in particular, I think we should
focus on one problem where I think there is even some bipartisan
agreement on, and that is speculation in the oil futures market. We
have never seen it like it is now, where profiteers from places in this
country but also from around the world, literally make money, in some
cases millions of dollars, every time that price of gasoline goes up.
So we have to bring some discipline and some accountability and some
transparency to the marketplace. And speculation is one area where we
need to have legislation. That would help more short term than long
term.
How about big oil? They have a role to play. By one estimate, the
five biggest oil companies, over 5 years, have seen their profits go up
by five times. I don't think there are many families in America who
have seen their bottom line, their family income, go up by five times
over 5 years, and big oil has seen that. Just since 2001, their profits
have increased over $600 billion. Now, if their profits are going up at
that rate since 2001, and if the price of gasoline under this
administration went up from $1.46 or $1.47 to $4--and on top of all
that, in addition to those oil company profits, the previous Congress
gave them $17 billion in tax breaks--something is wrong. This is beyond
inequitable; it is just bad policy. It is not working.
What we are seeing is the status quo. We keep giving oil companies
tax breaks hoping their hearts are big enough to help us and it will
all work out, but that hasn't happened, and it will never happen in
light of what we have seen in recent history. So it is about time for
big oil to do what President Kennedy implored us to do many years ago,
and that is to do something for their country at this time of record
profits for them and pain at the pump and this economic squeeze that so
many families and small businesses face.
What can we do? A couple of things. First, we could enact legislation
such as the legislation I proposed in 2007, way back in the spring of
2007. My bill was the Energy Security and Oil Company Accountability
Act. It would do basically two things. I will describe it very quickly.
First, end those tax breaks for big oil. They have gotten enough and
we have not seen any results for those tax breaks. End those breaks and
other credits our Government gave them and use those savings to our
Government not just to sit there, but use those savings to invest in
research and development on alternative fuels and the infrastructure we
need to bring alternative fuels to the marketplace and to help us with
our energy challenges. That is No. 1: End the breaks.
No. 2, under my legislation, impose a windfall profits tax on big oil
and use that savings to redirect those dollars for relief for our
families, especially low-income families who are trying to make ends
meet. They are trying to pay for health care, they are trying to pay
for a mortgage, trying to pay for higher education, and on top of that
they are paying $4 or more at the pump. It is time oil companies helped
us in this process.
My legislation would do those two things. I was happy the major part
of my legislation from 2007 made its way into what Democrats in the
Senate proposed a couple of weeks ago, legislation that was blocked and
obstructed by the Republicans in the Senate. The Consumer First Energy
Act would do a number of things. I will describe that quickly.
First, getting back to our point about speculation, this legislation,
the Consumer First Energy Act, would finally at long last do something
about market speculation. Why should we sit back and say: Gas prices
are too high; it is too bad; there is nothing we can do about it.
There is something we can do about it. One part of the solution, one
part of the commonsense approach--and I think my colleagues on the
other side would agree with this for the most part--is we should bring
more transparency to these transactions. This raw speculation is all
over the world, but it is even here in America, where profiteers are
making money while the price of gasoline goes up for our families. They
are literally trading in the dark.
You know the old expression that sunlight is the best disinfectant to
corruption--which is one of the best ways to describe what is happening
here. To

[[Page S6205]]

take the corruption out of that marketplace, we need to apply some
sunlight to those transactions. If the transactions are OK and people
want to make a lot of money, why shouldn't we have information about
those transactions? Apply some sunlight and transparency to those
transactions. If people are going to make money, they ought to do it in
the light of day, not under cover of darkness. If it is so good to do
and they want to make money, these profiteers, and do well in the
marketplace, we ought to require them to have more stake in the
transaction, more skin in the game, so their margins, what they have to
put down, should be a much higher number. If they want to make money,
we want more transparency on those transactions and we want them to put
down more money. If they do that, they will have the opportunity to
make money.
The first thing this legislation does is crack down on speculation.
The legislation the Senate Democrats offered, the Consumer First Energy
Act, also made it very clear that, at long last, in American law, price
gouging is illegal. It is at best murky right now. We have to be very
clear about what price gouging is and what it is not, and make it
illegal.
The other thing this legislation did was adopt the idea I had, and
many others had--I am not the only one--on the issue of the windfall
profits tax, saying to oil companies: You can have profits; there is
nothing wrong with that; but if you are going to have record profits
while American families do not have their income going up, you have to
help us. You have to do, as I said before, something for your country,
Mr. Oilman, Mr. Oil Company. You have to do something to help your
country.
If you are diversifying and helping us reduce our dependence on
foreign oil, if you are giving us options to reduce our dependence and
have a long-term energy strategy, then maybe the profits tax on your
company wouldn't be as high. But if you are going to turn a blind eye
to this problem and say you are going to make record profits and not
help, we are going to impose a tax on you and make sure you are doing
your share--especially when the oil companies have made $600 billion
since 2001.
There are other parts of the Consumer First Energy Act I will not go
into in the interest of time. But there are things we can do. These are
short-term strategies. But the long-term solution here we know is
committing ourselves to future of energy independence. That means
investing dollars, using the Tax Code, using incentives to do what
Americans do best. When Americans have an opportunity to use their
brainpower and their innovation and their ingenuity to help on a
problem, we have to make sure our Government is backing them up.

We are not doing nearly enough to invest in the new technologies--
whether it is clean coal technology or whether it is investing in
biofuels, all kinds of alternatives, and renewable sources of energy.
Our Government is not doing enough to incentivize the marketplace to
come up with a solution long term so we do not face this problem in the
future.
Before I conclude, I want to address a couple of arguments. One of
the arguments we hear time and again is about drilling. Over and over
we hear about drilling from some people here in Washington, some people
here in this body. I do not think many people believe the basic
argument that we can drill our way to energy independence. No one
believes that. But the argument is made over and over again. I think in
the interests of putting facts on the table, we ought to put a few on
the table right now. Here are some facts important in this debate about
``we can just drill our way out and all our problems will go away with
lower gas prices.''
Fact No. 1, the percent of America's recoverable oil reserves already
open for drilling--79 percent.
Fact No. 2, America has 3 percent of the world's oil reserves. That
is not nearly enough to impact world oil prices. We have 3 percent of
the reserves, yet we consume 25 percent of the world's oil. There is no
way, no matter what we do on drilling, that we can drill our way out of
this.
Fact No. 3, oil companies already have access to 45.5 million acres
of Federal land to drill for oil and natural gas. They should tell us
why they are not drilling in those areas.
Oil companies, fact No. 4, are only drilling on 21 percent of the
leases they currently have offshore in Federal waters. Why is that, Mr.
Oil Company? Why are you not drilling on more than 21 percent?
The last fact: Oil companies have refused to invest in refining
capacity. They have lost 4 percent of refining capacity since 2001.
Since 2001--remember those profits I talked about? Since you were
making, oil companies, $600 billion in profits since 2001, why did you
lose 4 percent of refining capacity? Why are you crying crocodile tears
right now that you need more land when you have all those acres?
These are questions the oil companies should answer. These are facts
that are not making their way into the debate.
I think we have not a magic wand to propose, but we have short-term
relief we can provide and long-term strategies to reduce our dependence
on foreign oil; to literally not just commit ourselves to an energy
future that is good for our families and for our country but is about
national security in the end. Unless we can do that over time, and
unless we commit ourselves to these strategies, we are not only going
to be dependent on other countries for our oil but we will be less and
less safe because of that dependence.
I think it is critically important that we take action instead of
blocking legislation, as happened earlier this month on so many of
these short- and long-term solutions.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Madam President, before I discuss for a moment the
Foreign Intelligence Surveillance Act, I applaud my colleague, the
distinguished Senator from Pennsylvania, for his remarks. In the year
and a half we have served together in this body, he has stood out as a
powerful advocate for consumers, particularly Pennsylvania consumers.
He has always had a very thoughtful, helpful, and productive approach
to the solutions he has put forward and espoused. It is an honor for me
to follow him on the Senate floor here.
On the question of the Foreign Intelligence Surveillance Act, I will
talk about the immunity question for telecoms at another time. It is
not yet clear what amendment will be allowed to be offered. I thought I
would talk about two other issues at this point. The first is the
process that has got us here. I do wish to pay particular tribute to
the chairman of the Senate Select Committee on Intelligence, Jay
Rockefeller, for how steadfast he has been in pushing through this
process.
We in the Senate have also been done a great service by our
colleagues in the House of Representatives, who stood fast against the
Bush administration efforts to stampede this legislation through
without proper negotiation and without the basic process of back and
forth that ordinarily improves legislation. It has made for a better
piece of legislation. It also makes for a notable contrast with what
happened a year ago, when we first took up this legislation.
I wish to talk for a minute about that because it was a very
disappointing episode, I believe, in the Senate's history, and it is
one I wish to make sure we chronicle because it should not be repeated.
In order to understand what I am going to say, it will be important
to remember the schedule at the time. I have just replicated July of
2007, and the early days of August here. The first time the big sort of
stampede push began, for me at least, was when the Director of National
Intelligence, Admiral McConnell, met with me on July 11 in the secure
confines of the Senate Intelligence Committee to tell me what he
wanted. There had been a big FISA bill that had everything but the
kitchen sink in it. It was clearly going no place. He realized he would
have to focus on what he wanted, and he said three things. These are
from my notes of that meeting.
No. 1, we need to compel the telecoms to help us; No. 2, we need to
get foreign-to-foreign conversations, not Americans, foreign-to-foreign
conversations without having to go to the FISA Court; and No. 3, we
need a warrant if we are going to wiretap Americans. We accept that.

[[Page S6206]]

So I said to him: That is fine, but you do not have any legislation.
We are suspicious of what is going to be in this legislation when it
shows up, so the sooner you can get it written and the sooner you can
get it to us the better, because the devil is going to be in the
details and we need a chance to look it over. That was on July 11.
The draft legislation was circulated on July 27. It was circulated,
at least to me, by mail, so I didn't get it on July 27. I got it over
the weekend, the following Monday, on July 30. The Friday from Monday
delivery stunt is one we have seen before. But what concerned me was
that once that legislation was delivered, the Bush administration began
to whip up everything they could do to try to panic Americans about
what was going on.
On July 28, that Saturday, President Bush gave a radio address,
saying:

Our intelligence community warns that under the current
statute we are missing a significant amount of foreign
intelligence that we should be collecting to protect our
country. Congress needs to act immediately to pass this bill
so that our national security professionals can close
intelligence gaps and provide critical warning time for our
country.

He asked us to work together to pass FISA modernization now, before
we leave town, and said our national security depends on it. That is
what he said here.
The Senate promptly picked up the chorus with one of my colleagues
saying we would be deaf during August to discussions of threats being
carried on by al-Qaida and others seeking to do us harm if we did not
pass the legislation.
Another colleague said:

This is a time when the Director of National Intelligence
and the Secretary of the Department of Homeland Security have
said it is a high threat month and it is imperative for
national security that we adopt this now.

Another one of our colleagues said:

Make no mistake, inaction on our part needlessly subjects
every American to increased danger. We need to act.

Those are just several high points of a real campaign to try to drive
this issue by public fear.
Well, here is what concerned me. If, when the President spoke on July
28, national security was that vitally affected by the speed of this
legislation; if every day that went by we were missing intelligence,
because of an intelligence gap, of al-Qaida plots that were being
developed then and there to attack us; if that were true also on the
3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and
all the way through here when they circulated the draft on July 27?
Here is what they sent us. This. It is 12 pages. That is it. Double
spaced. I could write 12 pages of legislation double spaced in 17 hours
if our national security depended upon it. It would not take me 17
days. So when it takes them 17 days to write 12 pages of legislation
and then deliver it on the Monday before we recess and suddenly there
is an explosion of concern about immediate al-Qaida attacks that are
being planned that we need to get into, something does not add up. I
believe the result was what I call the August stampede, and as a result
we passed, bluntly, a very poor piece of legislation, the so-called
Protect America Act.
This piece of legislation does a number of very good things to repair
some of the damage in the Protect America Act.
The first is protection for Americans when we travel abroad.
Americans travel a lot now. They travel on business, they travel on
vacation. It is a lot more expensive now given the Bush
administration's oil prices, but people still travel a lot. The rule
had been, under the Protect America Act, that if you were traveling
abroad, you had no statutory or judicial protection of your privacy,
none whatsoever. They could listen to your telephone calls, they could
take your BlackBerrys, e-mails, anything--it was open season. There
were no statutory or judicial protections for Americans once they set
foot outside of the country. The only protection was an executive
order, 12333, which said that if the Attorney General determined that
you as an American were an agent of a foreign power, then they could
listen, then they could surveil, then they could intercept, but only if
the Attorney General made that determination. So there was a
protection, but it was only an executive order--nothing statutory,
nothing judicial. Then we looked into the opinions that underlie the
Bush warrantless wiretapping program, and here is what I found.
The flaw in the Protect America Act is that it contained no
statutory, no judicial protections for Americans once they were
traveling abroad and put them at the mercy of the executive branch of
Government to be wiretapped at will, protected only by an Executive
order. Our discovery, in the course of looking at the classified legal
opinions that supported the warrantless wiretapping program, we
discovered this rule that had been inserted by the Office of Legal
Counsel:

An executive order cannot limit a President. There is no
constitutional requirement for a President to issue a new
executive order whenever he wishes to depart from the terms
of a previous executive order. Rather than violate an
executive order, the President has instead modified or waived
it.

Well, as a theory, I think that is, frankly, deeply flawed legally.
In my examination of Attorney General nominee Mukasey, I asked him
what the force of an Executive order was. He answered me saying:

Should an executive order apply to the President and he
determines that the order be modified, the appropriate course
would be for him to issue a new order, or amend the prior
order.

I think that is not only the correct but the obvious solution. But we
were left in a situation in which an American traveling abroad, without
statutory protection, without judicial protection, and with the only
protection from the executive being a protection that the President
cannot be limited by and that he can ignore at will--frankly, that was
no protection at all.
So we worked very hard in the committee--and it has persisted through
the entire lengthy process we have been involved in--to make sure that
an American, whether you are in the United States or traveling abroad,
has the protection of a judicial order before your Government can
wiretap you. And that has been achieved. That has been an important
achievement.
A second achievement has been in the area of minimization. I know the
Presiding Officer was a prosecutor in Minnesota. I have run wiretap
investigations as a U.S. attorney, I have run wiretap investigations as
an attorney general, and I have seen firsthand how important
minimization is to a wiretap investigation.
Minimization is what happens when you have the authority to wiretap
somebody, but because you have the authority to wiretap one person,
they could be talking to somebody else who is not part of the criminal
or national security activity involved, and if that proves to be the
case, you have to minimize that to protect the rights of the third
person they are talking to. In the old days, the FBI agents would
literally sit there with their earmuffs on listening and flip the
switch on and off to see whether the conversation was still an innocent
conversation or related to some criminal matter.
Now it is more complex, but those minimization procedures did not
previously have any judicial oversight. They only were required to be
filed. Under this bill, the Attorney General shall adopt minimization
procedures. It is mandatory. But more than that, the Foreign
Intelligence Surveillance Court is given authority to review those
minimization procedures; specifically, to determine whether those
procedures meet the statutory standards we require for minimization
procedures. So that is particularly important.
Finally, this statute for the first time recognizes ``the inherent
authority of the FISA Court to determine or enforce compliance with an
order or a rule of such court.'' So they not only get the minimization
procedures, they get to approve the minimization procedures. If it is
determined that the executive branch isn't following them, they can
check for compliance, and they can enforce the procedure. That is a
substantial, additional improvement that brings this in line with the
traditions of wiretap surveillance within the United States.
Another significant improvement has been in the area of exclusivity.
FISA has always said that ``it shall be the exclusive means by which
electronic surveillance . . . and the interception of domestic wire,
oral, and electric communications may be conducted.''
That was clearly the intent of Congress, as courts, including in the

[[Page S6207]]

Andonian decision, have agreed. However, we have a problem again with
the Office of Legal Counsel. The Office of Legal Counsel said this:

Unless made a clear statement in the Foreign Intelligence
Surveillance Act that it sought to restrict presidential
authority to conduct wireless searches in the national
security area--which it has not--then the statute must be
construed to avoid a reading.

I don't know how you get ``which it has not'' out of the clear
language of the Foreign Intelligence Surveillance Act saying this is
the exclusive means. But once we found out that in these classified
opinions the Office of Legal counsel had suggested this language right
here either didn't exist or didn't mean anything, it had to be solved.
Thanks to the leadership of Senator Feinstein, in particular, there has
been great energy put into improving the exclusivity provision. I think
it is now an exclusivity provision that would defeat this type of,
frankly, improbable legal analysis and clearly define that it is
Congress's intent in the FISA statute to take every possible avenue it
can to limit executive surveillance activities to those that are
performed within the statutory authority of this particular
legislation.
The last thing is reverse targeting. There has been considerable
concern about allowing the Government to identify a foreigner who is in
touch with Americans regularly and target that foreigner with the
reverse targeting purpose to actually pick up the conversations of the
American and dodge the requirement for a warrant for judicial review
vis-a-vis the American. There are strong provisions in here that
require that regulations and procedures be developed to prevent that.
I hope to be able to discuss the statute further, as we get to the
discussion about immunity. But I will conclude by summarizing that the
process we went through to get to this piece of legislation,
particularly article I of this bill, was a very proud moment for this
Senate and for this caucus, for Chairman Rockefeller. It has been
infinitely better than the degraded process we went through last August
in the atmosphere of stampede. I think the quality of the underlying
legislation shows it. I hope as we continue to work together in the
Senate on other issues, we continue to follow the process that took
place with respect to this iteration of the FISA bill, and we never go
back to the kind of hectic, imprudent stampede we were put through last
August. Second, the elements of article I are improved. This is, in
article I, a bill we can we very proud of. We will have our dispute
about the immunity provisions. I will have my thoughts on that for
later. But there is much that has been accomplished and great credit is
due particularly to Chairman Rockefeller for those accomplishments.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________