[Congressional Record Volume 155, Number 16 (Tuesday, January 27, 2009)]
[Senate]
[Pages S881-S885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   CHILDREN'S HEALTH INSURANCE PROGRAM REAUTHORIZATION ACT OF 2009--
                               Continued

  The PRESIDING OFFICER. The Senator from Ohio.


                           Economic Recovery

  Mr. BROWN. Mr. President, the severity of this economic crisis 
requires the Federal Government to respond quickly and forcefully. The 
economic recovery proposal we are considering has two key objectives: 
stimulating the economy and creating jobs. Congress currently is 
negotiating where the funds will be spent--on infrastructure projects, 
on health care and safety net programs, on developing alternative 
energy for the 21st century economy. As we decide how to spend these 
tax dollars, it is imperative we consider where to spend them or, 
rather, on whom. These funds must create American jobs. To do that, we 
must ensure that Federal funds are used to buy American services and 
American products.
  Our economy is suffering from the highest unemployment rate in more 
than a decade and a half. In 2008, we lost 2.6 million jobs, the 
largest job losses in 1 year in more than six decades. Our unemployment 
rate jumped to 7.2 percent. We all know that number doesn't tell the 
real story, the real human story. The more accurate measure of 
joblessness, the unemployed and the underemployed, or workers whose 
hours have been cut, is almost 14 percent. More than 533,000 jobs were 
eliminated in December. Yesterday, some of America's strongest, most 
prestigious companies announced more than 55,000 job cuts in 1 day. 
Among them was General Motors, which announced it would cut a shift at 
its Lordstown plant in Mahoning County in northeast Ohio. As President 
Obama said:

       These are not just numbers on a page. There are families 
     and communities behind every job.

  Communities such as Moraine and Chillicothe and Canton understand 
what happens when there is a major layoff. They don't need to hear the 
new job numbers. They understand it when small businesses close and 
diners empty out.
  Manufacturing jobs keep American communities strong, and the steepest 
job losses are occurring in manufacturing. Nearly one in four 
manufacturing jobs has simply vanished since 2000, and 40,000 factories 
have closed in the last 10 years. Last year, manufacturing accounted 
for nearly a third of all lost jobs, while factory orders plummeted to 
record lows. Inventories are piling up because no one is buying. This 
leads to production cuts and then massive job losses that we will 
likely see more of this year. President Obama said it is likely going 
to get worse in 2009 before it gets better.
  A loss of manufacturing is about more than jobs; it is about the loss 
of the Nation's middle class. I want to lay out what exactly the 
benefits of manufacturing are to this Nation.
  Many of us represent large manufacturing workforces. All of us 
represent some manufacturing, some in more States than others. We all 
recognize or all should recognize the importance of manufacturing to 
our national security and to our domestic security--for families, 
neighborhoods, communities, for the Nation.
  Let me cite the benefits of manufacturing:
  No. 1, these jobs pay better on average than others.
  No. 2, manufacturing jobs have a stronger multiplier effect, 
supporting as many as five other jobs. For instance, an auto assembly 
plant obviously creates other jobs--suppliers and tool and die shops 
and machine shops and parts manufacturers, and all that those jobs 
create. Manufacturers are large taxpayers supporting vital public 
services and schools in communities across the Nation.
  No. 3, if you have a large industrial plant in a school district, 
that school district gets an awful lot of help in local property tax 
dollars from the manufacturing plant.
  No. 4, American manufacturers are on the cutting edge of new 
technologies in the clean energy economy of tomorrow.
  No. 5, if we are to end our dependence on foreign oil, we need to do 
more manufacturing here rather than allowing it to go offshore, 
especially in alternative energy.
  No. 6, our national security depends on a strong defense industrial 
base to supply troops and protect our national interests.

[[Page S882]]

  Without a bold economic recovery plan that makes manufacturing a 
priority, the job losses will continue throughout this year and into 
next.
  ``Buy American,'' established in 1933 by President Roosevelt, 
requires that Federal purchasers prefer U.S. products. In other words, 
if the product is made in the United States at a decent price, then 
Federal purchasers must buy those products. But over the years, waivers 
of those preferences have been abused to create giant loopholes in 
``Buy American.'' In other words, when we should be buying American, we 
are often buying Chinese or from some country in the European Union or 
Mexico. U.S. tax dollars whenever possible should go to create U.S. 
jobs. It is pretty simple. It is something people at home simply don't 
understand--nor do I--why we, as a country, as a government, don't use 
our tax dollars to create American jobs.
  I am concerned about the lack of transparency in the waiver process 
and how that can lead to lost business, lost jobs, lost work, the 
actual steel, iron, cement, and other materials coming from overseas 
and not creating jobs in our country.
  The Obama administration's stated goal is to make the biggest 
investment in the Nation's infrastructure since President Eisenhower 
created the Interstate Highway System more than 50 years ago. Imagine 
all this infrastructure, steel, concrete, all the materials we are 
going to buy with tax dollars, what it will matter if these products 
are made in the United States and not somewhere else. That is what we 
did mostly with the Interstate Highway System 50 years ago.
  So when we are building infrastructure, whether it is water or sewer 
lines in Denver or whether it is a bridge in Minneapolis, this ``Buy 
American'' provision says we should be buying American and creating 
jobs here.
  We have a responsibility to taxpayers to ensure that these dollars 
are creating jobs. Inclusion of ``Buy American'' requirements in the 
recovery proposal would be the most effective way to ensure that tax 
dollars are spent in the United States to create jobs. We have a 
responsibility to give American manufacturers the opportunity to bid on 
the steel and the iron and the other products that will be in demand 
from these massive investments in our infrastructure.
  We have ``Buy American'' provisions in Federal statutes that provide 
that preference to use domestic materials, such as steel and other 
products and components, in federally funded highway and transit 
projects for State and local authorities. These need to be applied to 
the maximum extent possible as we try to revive the economy, as we move 
the Obama stimulus package through the Chamber.
  Just last week, the Government Accountability Office reported on the 
benefits of Buy American policies. This is what the GAO said:

       The types of potential benefits to this program include 
     protecting domestic employment through national 
     infrastructure improvements that can stimulate economic 
     activity and create jobs. . . .

  This recovery proposal is about creating direct jobs with taxpayer 
dollars and then spin-off jobs with taxpayer dollars.
  Let me be clear. This is not about stopping or slowing international 
trade. It is about using provisions in U.S. law consistent with our 
international obligations that allow for a preference for domestically 
produced goods financed by our U.S. taxpayer dollars.
  Only if we do this will the recovery effort have the impact our towns 
and cities so desperately need. Why spend tens of billions--no, 
hundreds of billions--of dollars for infrastructure if we are not going 
to spend that money on American made products to create jobs directly 
and the spin-off jobs that come from that manufacturing?
  American taxpayers deserve no less. Congress must act in good faith 
to create the most jobs here, especially in manufacturing. Enforcing 
the Buy America requirements already on the books and, to the extent we 
can, applying them to this stimulus bill is simply the right thing to 
do.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I rise tonight to speak of the Children's 
Health Insurance Program and the debate we are having in the Senate.
  I appreciate what my colleague from Ohio just spoke of, the 
tremendous trauma that has been caused across the country with this 
terrible recession so many families are living through. I appreciate 
the fact he reminded us about what has been happening in our States and 
our communities as a result of this economic horror that so many 
families are living through. That horror and that trauma will only be 
increased in the months and years ahead if we do not pass this 
children's health insurance legislation. I think it is directly related 
to what we are talking about here when it comes to the terrible 
recession so many families are living through.
  So I want to speak about the bill and deal with some of the questions 
that have been raised about the bill. But in particular, I want to, 
first, step back from the bill, from the debate, even step back for a 
few minutes from the program itself, to reflect on what the reality is 
for families.
  I think when we speak of families and children's health insurance we 
speak and we think mostly about parents and the relationship they have 
to their children and what they want for their children. They, of 
course, want their children to succeed in life. They have hopes and 
dreams for their children. But, of course, for a parent, and especially 
for a mother, who is often providing most of the care for a child, her 
initial hopes, her initial fears, her concerns at the beginning of that 
child's life are very basic: Will that child be born healthy? Will that 
child grow and develop as he or she should?
  I was thinking back to 2007 when we were having this debate at that 
time, thinking of the love of a mother and what she can provide for a 
child, especially a very young child. That mother can provide all of 
the protection she can muster for that child, she can envelop or 
embrace that child with protection and love and nurturing and all the 
wonderful things that a mother--a parent but especially a mother--can 
provide for a child. But there are some things that no matter what that 
mother does, no matter how much she loves her son or her daughter, 
there are some things she cannot provide on her own. She cannot provide 
health insurance on her own. She cannot provide medical care if she is 
not trained in that profession as a doctor or a nurse.
  So there are a lot of mothers out there who have children they worry 
about every day of the week. They go to bed worrying what if that child 
has a problem in the middle of the night or some kind of a health care 
challenge in the middle of the day, what will happen to that child?
  So when we are thinking about this debate and this issue, we should 
think about the love of a mother and what she can and cannot provide. 
That is one of the reasons why as a country we come together to solve 
problems such as this. We know an individual person cannot build a 
road, so we come together and provide public resources to build a road. 
We know one person or one family cannot provide law enforcement 
protection, so we all contribute to that. The same is true on health 
care. No matter how much that mother loves her child, she cannot on her 
own provide health insurance.
  So what did we do? We created a program which in my State of 
Pennsylvania is called the Children's Health Insurance Program--CHIP 
for short. The program ``name'' is kind of redundant because the last 
word of the acronym is ``Program.'' But the CHIP Program then developed 
into a national program, as the Presiding Officer knows from his time 
in the House of Representatives, the so-called SCHIP, State Children's 
Health Insurance Program. That is what the debate is about.
  What did we do? We created a program which now covers 6.7 million 
American children, most of whom, probably the overwhelming majority of 
whom would not have any health insurance coverage because, as we know, 
these are families who are above the income levels for Medicaid but 
they are often below or outside the category of families who have 
employer-sponsored health insurance. So they are in that gap: lower 
middle or middle-income families, in many cases. So we have covered 6.7 
million children. That is wonderful. The only problem is there are 
millions more who are not covered.

[[Page S883]]

  This bill--strip away all the debate, all of the back and forth, all 
of the fighting about this--at its core, just as it did a couple years 
ago, is to provide health insurance to more than 4 million additional 
children. So 6.7 million, roughly, and you add 4.1 million, that is 
what you are talking about.
  So we have the program in the legislation now to cover more than 10.5 
million American children. Few, if any, generations of Americans who 
have served in a legislative body could say they cast a vote to cover 
that many children. It is a tremendous opportunity for a child, for 
their family, for the community and neighborhood they live in, for 
their State, and for their country now and in the next months and years 
ahead, but it is also important to all of us down the road.
  Who would you want to hire 20 years from now? A child we invested in? 
A child who had health care in the dawn of his or her life? A child who 
had early learning opportunities? A child who had a good healthy start 
in life? I think as an employer you would want to hire a person who had 
that investment. They are bound to be more productive. So there is a 
long-term workforce argument. But even if that argument was not there, 
this is the right thing to do for the obvious reasons.
  Now, what are we talking about? We are talking about health care and 
benefits. There is a long list of benefits I won't go through. We have 
charts we have all pointed to, and we will continue to do that.
  But just consider one aspect of the benefits, one that I focus on 
because I think it is crucial to the life of a child and crucial to 
their--I should say, not just crucial, determinative of the kind of 
future they are going to have or not have, and that is well-child 
visits. One of the benefits that is covered in Pennsylvania is that in 
the first year of the life of that child he or she will get six well-
child visits. Every child in America should have that opportunity. 
Every family should have the peace of mind to know that if all does not 
go well, at least their child has health insurance, and in the first 
year of their life they have been to the doctor at least six times, and 
they have been to the dentist and any other specialty they can get to 
and that the benefits cover.
  So if we want to just focus on one benefit of the children's health 
insurance: a kid gets to the doctor six times in a year--pretty 
important. I am not a doctor, but we all know the benefit, as parents 
and as legislators from our work.
  Another aspect of this legislation that does not get a lot of 
attention: When people hear about a government-inspired initiative, or 
a program in this case, that is partially paid for with public dollars, 
we often hear about: Well, that is just for communities where people 
are low income, but they are covered by Medicaid, so why do we need to 
help them? It does not help people kind of across the length and 
breadth of the country. It is somehow targeted to one group and, 
therefore, it is not good for everyone.
  Well, I just made the case about the workforce long term. But one 
aspect of this issue in terms of a group of children who are often not 
in the headlines but benefit directly and are reliant upon the 
Children's Health Insurance Program and the Medicaid Program for 
children is that a lot of poorer families with children are in rural 
areas--people who live in rural areas across the State of Pennsylvania 
and across the country.
  In my State of Pennsylvania, when you get outside of Philadelphia and 
Pittsburgh and Erie and Harrisburg--a couple of major urban areas--we 
are a very rural State. We have literally millions of people who live 
in the demographic category that we refer to as rural areas. Those 
children--one-third of them--rely upon either the Children's Health 
Insurance Program or the Medicaid Program. So it helps a high 
percentage of rural children.
  In the midst of this economy, when those rural communities in 
Pennsylvania and across the country have been disproportionately 
adversely impacted by high energy costs, including everything from 
gasoline to home heating oil, to all kinds of other energy costs, when 
they have also been hit hard by the downturn in the economy--job losses 
are rampant in rural communities--when you factor in those realities 
with the dependence or reliance they have on this program, it is 
critically important we provide as much in the way of resources as we 
can and outreach to get those children enrolled in rural areas, as well 
as in our urban and even suburban communities.
  I want to conclude with a recitation of some myths and facts, some of 
which we have heard on the floor in the debate over the last couple 
days. I will do just one, two, three, four--about four or five myths.
  Myth No. 1, the children's health insurance bill reduces 
documentation requirements, allowing illegal immigrants to receive 
benefits. That is the myth.
  Here are the facts.
  Fact No. 1: Under current law, only individuals applying for Medicaid 
are subject to the citizenship documentation requirements. This bill 
actually extends those requirements to the Children's Health Insurance 
Program, requiring documentation in CHIP just like documentation is 
required in the Medicaid Program. You would never know that by some of 
the debate here.
  Fact No. 2 about this documentation issue: Because the requirements 
have resulted in the widespread denial of coverage to many citizens, 
the children's health insurance bill also gives States a new way to 
prove citizenship through matching Social Security Administration 
records. So that is further help on documentation.
  Fact No. 3 under this section: These citizen documentation provisions 
are the same as they were in the children's health insurance bill 
passed in the Senate overwhelmingly--overwhelming--with bipartisan 
support in 2007. So it is the same. So for those who are creating the 
myth that somehow it is new, that is not true.
  Myth No. 2: The bill ends the mandatory 5-year waiting period for 
legal immigrants to receive benefits--opening the program to abuse by 
illegal immigrants. It is another myth.
  Fact No. 1 under this myth: The bill allows but does not require--it 
allows but does not require--States to cover legal immigrant children 
without forcing them to wait 5 years for coverage. Why should a child 
who is a legal immigrant or why should a pregnant woman in the same 
circumstance--why should they have to wait 5 years? Does that make any 
sense at all? Does that make any of us safer or does that make our 
country better to have vulnerable people wait to get these benefits, 
especially when 23 States are doing this now? By listening to the 
debate, you would think this is some new concept that just fell out of 
the sky. Twenty-three States right now are doing this. So what does 
this bill do? It allows States to cover legal immigrant children 
without forcing them to wait 5 years for coverage.
  Only immigrant children here legally--legally--are eligible for the 
benefits provided by Medicaid and the Children's Health Insurance 
Program. So if anyone uses the word ``illegal'' in this context, you 
know automatically they are deliberately attempting to mislead people.
  Children and pregnant women who will now be eligible must document 
their immigration status. State Medicaid agencies use the Bureau of 
Citizenship and Immigration Services' automated SAVE system to verify 
the immigration status of legal immigrants applying for Medicaid. So 
that is a protection that is built into this bill.

  The next myth: This bill will allow children from families making 
over $80,000 per year to receive coverage while poor children are still 
not enrolled.
  That is another myth. This bill would extend coverage to 4 million 
more low-income children and help struggling families in this time of 
economic downturn. The CHIP bill prioritizes enrolling low-income 
children by establishing a performance-based system to reward States 
for enrolling low-income kids while giving them new tools to do so. So 
we incentivize States to go out and enroll more children, which is a 
worthy thing to do, and critically important.
  Under the bill, States would be allowed to designate CHIP funds to 
help families afford private coverage afforded by employers or other 
sources.
  Finally, under this section, the bill maintains provisions to reduce 
the Federal match rate for the cost of covering children above 300 
percent of the Federal poverty level.

[[Page S884]]

  Let me get to two more myths, and I will conclude.
  The next myth: The revenue stream to pay for the Children's Health 
Insurance Program with tobacco tax is unsteady and will not be able to 
fund the program in the future, increasing the burden on taxpayers.
  That is the myth. We have heard that a lot. The fact is, according to 
the nonpartisan Congressional Budget Office, the proposed $31.5 billion 
in spending will be fully paid for by the fee increase to tobacco 
products over the authorized 5-year timeframe.
  Finally, this myth: Democrats have made unilateral changes to CHIP, 
which has jeopardized the bipartisan support of the previous version 
passed by the Senate.
  Fact: The CHIP legislation introduced this year is almost identical 
to the legislation in 2007 which received broad bipartisan support in 
the House and the Senate. Two prior bipartisan efforts were blocked by 
President Bush when he vetoed the legislation.
  Providing health care for children is not a Democratic or Republican 
issue. We know that. It is a moral issue and one that all Senators 
should support. The few unresolved policy disagreements were put to a 
vote in the committee. So we have had a committee vote as well.
  So I would conclude tonight with where I began. What is the Senate 
going to do when faced with the question, the stark and fundamental 
question: Are we going to act this week to cover 4.1 million more 
children? It is up or down.
  There have been a lot of discussions about so-called immigration 
issues which I think have been misleading. A lot of the debate is about 
numbers. But we are either going to act to do this, to cover 4 million 
kids, or not.
  Finally, what will the Senate do this week to speak to that one 
mother and to say to her: We understand a little bit--a little bit--
about what you are going through, and we understand that with all of 
the love you surround your son or daughter with, we know you cannot 
provide them health insurance on your own. We are going to help you 
because we have the program that has been in place for 15 years, which 
is one of the best pieces of legislation this body or the other body 
ever voted on; we know how to help you, and we are going to do 
everything we can to help you. We know this economy is especially tough 
on that mother and that family. We are going to act to help you through 
this difficult period in your life so that you can have the peace of 
mind to know that your son or daughter at least--at least--is covered 
by health insurance and can get six visits to the doctor in a year. 
That is not asking too much of all of us and of the American people, to 
show some degree of understanding and some degree of solidarity with 
that mother and her children.
  Thank you, Mr. President. I yield the floor and note the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. 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. DURBIN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         ERIC HOLDER NOMINATION

  Mr. DURBIN. Mr. President, I rise in support of the nomination of 
Eric Holder to be Attorney General of the United States. As a member of 
the Judiciary Committee, I have given especially close consideration to 
this nomination. I met privately with Eric Holder, reviewed his record, 
listened to his sworn testimony, and I have come to the conclusion that 
he will be an outstanding Attorney General.
  On January 15 and 16, the Judiciary Committee held a hearing on Mr. 
Holder's nomination where he was asked many questions from the 
committee members on both sides of the aisle. He stayed until every 
member of the committee had asked every question they wished. Then, 
following the hearing, Mr. Holder responded to literally hundreds of 
written followup questions from members of the committee.
  Last week, the Judiciary Committee was scheduled to vote on his 
nomination. Despite a lengthy 2-day hearing which included multiple 
outside witnesses and Mr. Holder's timely response to the questions, 
the Republicans asked to postpone the committee's vote on Mr. Holder's 
nomination. That is their right under the Senate rules, but it is 
disappointing that despite Mr. Holder's full cooperation, we have been 
unable to move forward on this nomination to this point. As a result, 
the crucial position of Attorney General remains unfilled and the Obama 
administration's national security team is incomplete.
  Due to the delay, the committee will now vote on Mr. Holder's 
nomination as early as tomorrow. I urge my colleagues on both sides of 
the aisle to support the nomination so we can have new leadership in 
place at the Justice Department.
  I believe Eric Holder has the experience, independence, and 
commitment to the rule of law to reform the Justice Department. He will 
be one of the most qualified Attorneys General, having previously 
served as Deputy Attorney General, U.S. attorney, judge, and a career 
Justice Department attorney. Mr. Holder will need to bring all of that 
experience to bear to restore the integrity of the Department which has 
descended to a sad state today.
  However, it is more than just experience that he will bring. The 
Attorney General is the people's lawyer, not the President's lawyer, so 
he or she needs to have the backbone on occasion, if necessary, to 
stand up for what is right, even if it means disagreeing with the 
President.
  I have had many differences of opinion with John Ashcroft, our former 
Attorney General under the previous President, but there was a moment 
in history when he was literally in an intensive care unit and asserted 
his authority as Attorney General to say no to the President. It took 
courage. It took commitment. It took professionalism. We should expect 
nothing less of those who serve in that capacity.
  There can be little doubt about Eric Holder's willingness to say no 
to the President. He has demonstrated a lot of independence throughout 
his career. As Deputy Attorney General, he recommended expanding the 
Starr investigation into the Monica Lewinsky affair, and he recommended 
the appointment of a special prosecutor to investigate a member of 
President Clinton's Cabinet. He has been involved in the investigation 
and prosecution of Members of Congress in both political parties.
  The testimony of former FBI Director Louie Freeh, in support of Mr. 
Holder, is a good indication of his independence. No one would accuse 
Mr. Freeh of being a partisan Democrat. He was a strong supporter of 
former New York mayor Rudy Giuliani and also of John McCain's efforts 
when he ran for President. He has been a vocal critic of former 
President Clinton. Mr. Freeh included his decisions to pardon Marc Rich 
and offer commutation to the FALN as things he disagreed with. But Mr. 
Freeh enthusiastically supports Mr. Holder's nomination. Here is what 
he said:

       The Attorney General is not the President's lawyer. . . .  
     the President has a White House counsel for those purposes. 
     And I know that Eric Holder understands the difference. I 
     think he would be very quickly able to say no to the 
     President if he disagreed with him. And I think that's the 
     confidence and trust we need in that position.

  Mr. Holder is also supported by dozens of other prominent Republican 
lawyers, such as former Attorney General William Barr and former Deputy 
Attorney General Jim Comey, a man who, incidentally, distinguished 
himself during the previous administration in his service at the 
Justice Department.
  President Obama respects Eric Holder's independence. At his hearing, 
Mr. Holder testified about a conversation he had with the President 
after he accepted the offer. The President said:

       Eric, you've got to understand you have to be different. 
     You know, we have a pretty good relationship. That's probably 
     going to change as a result of you taking this position. I 
     don't want you to do anything that you don't feel comfortable 
     doing.

  What a refreshing exchange. It gives me hope that the Attorney 
General, if it is Eric Holder, in this Justice Department will chart a 
new and important course for this Nation.
  In addition to Mr. Holder's experience and independence, there is 
little

[[Page S885]]

doubt about his commitment to the rule of law. I voted against the two 
previous Attorneys General because of their involvement in one issue: 
torture.
  As White House Counsel, Alberto Gonzales was an architect in the Bush 
administration's policy on interrogation, a policy which has come into 
criticism not only in the United States but around the world. His 
successor, Michael Mukasey, refused to repudiate torture techniques 
such as waterboarding. That was unfortunate because Mr. Mukasey really 
brought a stellar resume to the job, but that really was a bone in my 
throat that I couldn't get beyond, and I voted against his nomination.
  Now, during his confirmation hearing, Eric Holder gave a much 
different response. When asked directly, he said: ``Waterboarding is 
torture.''
  Those three words resonated throughout the committee room and across 
the Nation among many Americans who had been concerned about this 
important issue and literally gave a message to the world that there 
was a new day dawning in Washington.
  I also asked Mr. Holder the same question I asked Attorneys General 
Gonzalez and Mukasey: Does he agree with the Judge Advocates General, 
the four highest ranking military lawyers, that the following 
interrogation techniques violate the Geneva Conventions: painful stress 
position, threatening detainees with dogs, forced nudity, or mock 
execution. Mr. Holder said:

       The Judge Advocate General Corps are in fact correct that 
     those techniques violate Common Article 3 of the Geneva 
     Conventions.

  Some of my colleagues on the other side of the aisle have suggested 
that Eric Holder's opposition to torture will somehow lead to a witch 
hunt against former Bush officials. Frankly, this seems like a weak 
excuse to delay the confirmation of a well-qualified nominee.
  Here are the facts: President Obama and Eric Holder made it clear 
that while no one is above the law, the administration is going to move 
forward, not back. The goal to investigate the Bush administration does 
not come from the Obama administration but from others such as retired 
major general Antonio Taguba, who led the U.S. Army's official 
investigation into the Abu Ghraib prison scandal.
  Here is what General Taguba recently said:

       The Commander in Chief and those under him authorized a 
     systematic regime of torture. . . . there is no longer any 
     doubt as to whether the [Bush] administration has committed 
     war crimes.

  In the words of General Taguba:

       The only question that remains to be answered is whether 
     those who ordered the use of torture will be held to account.

  Indeed, the facts are troubling. Former President Bush and former 
Vice President Cheney have acknowledged authorizing the use of 
waterboarding which the United States had previously prosecuted as a 
war crime. Susan Crawford, the Bush administration official who ran the 
Guantanamo military commissions, said that the so-called 20th 9/11 
hijacker cannot be prosecuted because ``his treatment met the legal 
definition of torture.''
  Now it appears some Republicans are holding up Eric Holder's 
nomination because of the problems of the previous administration. A 
headline in the Washington Post this last Sunday highlighted the irony. 
It said: ``Bush Doctrine Stalls Holder Confirmation.'' Apparently, some 
Republicans are opposing Eric Holder because of their concern that 
former Bush administration officials may be prosecuted for committing 
war crimes.
  Here is what the junior Senator from Texas said:

       I want some assurances that we're not going to be engaging 
     in witch hunts.

  But Mr. Holder has made it clear in his testimony there will be no 
witch hunts. He testified:

       We will follow the evidence, the facts, the law, and let 
     that take us where it should. But I think President-elect 
     Obama has said it well. We don't want to criminalize policy 
     differences that might exist between the outgoing 
     administration and the administration that is about to take 
     over.

  The junior Senator from Texas also expressed concerns about Eric 
Holder's ``intentions . . . with regard to intelligence personnel who 
were operating in good faith based upon their understanding of what the 
law was.'' But Mr. Holder has made his intentions clear. He testified:

       It is, and should be, exceedingly difficult to prosecute 
     those who carry out policies in a reasonable and good faith 
     belief that they are lawful based on assurances from the 
     Department of Justice itself.

  What more would you expect a man aspiring to be Attorney General to 
say? It certainly would be inappropriate to seek an advance commitment 
from any nominee for Attorney General that they will definitely not 
investigate allegations of potential criminal activity. No responsible 
Attorney General would ever say that, nor should that person be 
confirmed if they made that statement.
  Senator Lindsey Graham, another Republican member of the Judiciary 
Committee, recognizes that fact. Senator Graham, also a military lawyer 
still serving, said:

       Making a commitment that we'll never prosecute someone is 
     probably not the right way to proceed.

  He went on to say:

       I don't expect [Holder] to rule it in or rule it out. In 
     individual cases if there's allegations of mistreatment, 
     judges can handle that and you can determine what course to 
     take.

  I think Senator Lindsey Graham has hit the nail on the head. I hope 
no one will use this false specter of a witch hunt as an excuse to 
oppose a fine nominee.
  I say to my colleagues, if you have an objection to Eric Holder based 
on his qualifications, vote against him. But don't oppose him because 
the previous administration may have been guilty of wrongdoing which 
may lead to a prosecution. There are too many hypotheticals in that 
position. In fact, these misdeeds are the reasons we need Eric Holder's 
leadership.
  Here is what President Obama has said about the need to reform the 
Justice Department:

       It's time that we had a Department of Justice that upholds 
     the rule of law and American values, instead of finding ways 
     to enable a President to subvert them. No more political 
     parsing or legal loopholes.

  I think Eric Holder is the right person to fill the vision of 
President Obama. After 8 years of a Justice Department that too many 
times put politics before principle, we now have a chance to confirm a 
nominee with strong bipartisan support who can restore the Department 
to its rightful role as guardian of our fundamental rights.
  I urge my colleagues to support Eric Holder's nomination.


                            Amendment No. 39

  Mr. DURBIN. Mr. President, I ask unanimous consent that the pending 
Baucus amendment No. 39 be agreed to, the motion to reconsider be laid 
upon the table, and the bill, as thus amended, be considered as 
original text for the purpose of further amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent that when the 
Senate resumes consideration of H.R. 2 on Wednesday, the time until 11 
a.m. be for debate with respect to McConnell, et al., amendment No. 40, 
with the time equally divided and controlled between the majority and 
Republican leaders or their designees; that no amendments be in order 
to the amendment prior to a vote in relation to the amendment; that at 
11 a.m. the Senate proceed to vote in relation to the McConnell 
amendment, No. 40; provided further, if the McConnell amendment is 
agreed to, the bill, as thus amended, be considered as original text 
for the purpose of further amendments.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________