[Congressional Record Volume 155, Number 164 (Thursday, November 5, 2009)]
[Senate]
[Pages S11145-S11172]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


 COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS ACT, 
                             2010--Resumed

  The PRESIDING OFFICER. Under the previous order, the motion to 
proceed to the motion to reconsider the vote by which cloture was not 
invoked on the committee-reported substitute to H.R. 2847 is agreed to, 
and the motion to reconsider that vote is agreed to.
  Under the previous order, there will be 40 minutes of debate equally 
divided and controlled as follows: 20 minutes under the control of the 
Senator from Louisiana and 20 minutes total under the control of the 
Senator from Maryland, Ms. Mikulski, and the Senator from Alabama, Mr. 
Shelby.
  Ms. MIKULSKI. Mr. President, very shortly, we will vote on cloture on 
the CJS bill. As the chairperson of the committee, I wish to say that 
we want to finish this today so we can move forward with the blessing 
and the business of funding--Mr. President, I have to yield the floor a 
moment. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, reclaiming my time as the manager of the 
bill, I wish to bring to my colleagues' attention that at 12:25 p.m. 
today, we are going to vote on cloture of the Commerce-Justice-Science 
appropriations bill. We wish to finish this bill today. When I say 
``we,'' I mean Senator Shelby, my ranking member, and myself.
  This bill is the result of a rigorous bipartisan effort to fund the 
Department of Justice, including the FBI and DEA, the Commerce 
Department, and major science agencies that propel our country in the 
area of innovation and technology development, such as the National 
Science Foundation and the National Space Agency.
  We want the Senate to be able to deal with this and then move on to 
other business.
  After the cloture vote, it is our intention to dispose of any pending 
amendments that are germane to the bill. This bill has been public 
since June. It has been on the floor already for 4 days and over 20 
hours. Senators have had ample time to draft and call up their 
amendments. Senator Shelby and I hope to be able to move through the 
amendments in a well-paced but brisk fashion.
  We hope our colleagues will cooperate and have any decisions relating 
to the funding of these important agencies be decided on robust debate 
and the merits of the argument rather than delay and dither, delay and 
dither, delay-and-dither tactics of the other side. We don't want to 
delay. We don't want to dither. We want to proceed, debate germane 
amendments, and bring our bill to a prompt closure.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent that when the 
Senate resumes consideration of H.R. 2847, that it be in order for me 
to offer amendment No. 2676, which is filed at the desk.
  The PRESIDING OFFICER. Is there objection?
  Ms. MIKULSKI. I object, Mr. President. The intention is to vote on 
cloture and dispose of pending germane amendments. The Senator's 
amendment is not pending, so I do object, with all courtesy because of 
my respect for the Senator.
  The PRESIDING OFFICER. Objection is heard.
  Mr. CHAMBLISS. Mr. President, I obviously am very disappointed to see 
my colleagues on the other side of the aisle object to my amendment. It 
is a pretty simple, straightforward amendment.
  We have voted several different times when appropriations bills have 
been on the Senate floor over the last couple of weeks, wherein the 
folks on the other side of the aisle insist on allowing the transfer of 
prisoners from Guantanamo Bay to the United States for trial. My 
amendment prohibits that. I simply think it is not appropriate to bring 
battlefield combatants into article III trials inside the United States 
for any number of procedural reasons relative to the treatment of 
Guantanamo Bay prisoners within our Federal courts. But even beyond 
that, the potential for the release of those enemy combatants, once 
they arrive on U.S. soil, certainly is increased.
  This is not the way we need to be treating enemy combatants. Those 
men who are at Gitmo are the meanest, nastiest killers in the world. 
Every single one of them wakes up every day thinking of ways they can 
kill and harm Americans, both our soldiers as well as individuals. Some 
of them were involved in the planning and the carrying out of the 
September 11 attacks. Others were arrested on the battlefield in Iraq 
and are at Guantanamo. We are not equipped nor have we ever in our 
history dealt with trials in article III courts of any enemy combatant 
arrested on the battlefield. The FBI has not investigated cases prior 
to arrest. These folks were not given Miranda warnings because our 
soldiers captured these individuals with AK-47s in their hands with 
which they were shooting at our men. These are not the types of 
individuals that our criminal courts are designed to handle or can 
feasibly handle.
  I am disappointed we are not going to get a vote on this amendment. I 
will continue to raise this issue as long as we possibly can between 
now and the time that Guantanamo Bay is scheduled to be closed and, 
from a practical standpoint, until it is closed, if that ever does 
happen. We have the courts at Guantanamo Bay equipped to handle and try 
these individuals before military tribunals. Those tribunals have been 
established, just reauthorized. We are capable of handling the trials 
at Guantanamo Bay, and that is where they should take place.
  I want to make sure the time I utilized is charged against Senator 
Vitter, which has been agreed to by the Senator.
  The PRESIDING OFFICER. It will be so charged.
  The Senator from South Carolina.
  Mr. DeMINT. Mr. President, I appreciate the Senator from Georgia 
attempting to get a very important amendment on the floor. I wish to 
also propound a unanimous-consent request for a related amendment, 
related to the terrorists in Guantanamo Bay.
  This week, I was advised by the officials at the Air Force and Navy 
base in Charleston----
  Ms. MIKULSKI. Will the Senator yield for a question?
  Mr. DeMINT. I will in a second.
  Yes, I will yield.
  Ms. MIKULSKI. Is the Senator offering an amendment or giving a speech 
about the desire to offer an amendment?
  Mr. DeMINT. Mr. President, I desire to offer an amendment, and I will 
propound a unanimous-consent request to allow my amendment to be 
considered postcloture. I have a request. I will get to the request in 
a moment. I wish to give a few seconds of background.
  We know this is not an idle threat because inquiries have been made 
in Charleston for moving detainees from Guantanamo Bay to minimum 
security brigs in Charleston.
  I ask unanimous consent that when the Senate resumes consideration of 
H.R. 2847, it be in order for me to offer an amendment preventing the 
transfer of known terrorists at Guantanamo to U.S. soil.
  The PRESIDING OFFICER. Is there objection?
  Ms. MIKULSKI. Mr. President, I object to the amendment. The intention 
is to vote on cloture and dispose of pending germane amendments. The 
Senator's amendment is not pending, so I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DeMINT. Mr. President, this amendment has been filed as a second 
degree. It makes no sense at this point for us to not have a short 
debate about moving the most dangerous people in the world to American 
soil. It is appropriate for us to allow at least a small amount of 
time, as we rush these bills through, to talk about the issues that are 
important to Americans.
  I am obviously disappointed that we will not allow the discussion of 
my amendment or the amendment of the Senator from Georgia or others who 
are trying to get this issue in front of

[[Page S11146]]

this body for discussion. It does not mean you cannot vote it down. But 
not to allow a debate is certainly discouraging at this point.
  I appreciate Senator Vitter giving us a few minutes.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burris). The Senator from Louisiana.


                           Amendment No. 2644

  Mr. VITTER. Mr. President, I rise again in strong support of my 
amendment No. 2644 to the Commerce-Justice-Science appropriations bill. 
It is coauthored by the distinguished Senator Bennett from Utah, and it 
is strongly supported by many other Members.
  There has been a lot said about this amendment, most of it 
inaccurate, so let me step back and start with what the amendment says. 
It is pretty simple, pretty straightforward when you actually read it.
  The amendment simply requires the census that we are set to take next 
year to ask whether the respondent is a citizen. The amendment does not 
do anything but that. It simply says: The census should ask folks if 
they are citizens. It is very straightforward.
  We should count every person in the United States. The census should 
include everyone, but in so doing, I am encouraging, and my amendment 
would require, that the census ask if an individual is a citizen.
  Compared to that statement of policy, that simple goal, it is 
absolutely mind-boggling to me some of the statements that have been 
made about it. First, the distinguished majority leader Senator Reid 
admitted in several conference calls and statements to the press that 
he is trying to invoke cloture on this bill specifically to block out 
any vote, any discussion of the Vitter amendment.
  Secondly, in saying that, the majority leader called my amendment 
``anti-immigrant.'' I honestly don't see how any reasonable person can 
say that when we take a census and we simply ask whether the respondent 
is a citizen or a noncitizen--and plenty of noncitizens are here 
legally--that is anti-immigrant.
  Third, and perhaps most outrageously, Senator Reid said my effort is 
akin to the activities in the 1950s and 1960s to intimidate Black 
citizens and try to get them to stay away from voting in the voting 
booth. I take personal offense to that. I think there is no reasonable 
comparison, and I ask Senator Reid to apologize to me for that 
outrageous statement on the Senate floor.
  As I said, what the amendment does is simple. It says that the census 
should ask whether a respondent is a citizen or not. Why is that 
important? Well, for at least two reasons. First of all, the census is 
an enormously important tool we in Congress are supposed to use--
information and statistics--as we tackle any number of significant 
issues and Federal programs. Certainly it is a very significant and 
important issue that we deal with the immigration problem and the issue 
of illegal immigration. And certainly it is useful to know, if we are 
going to spend $14 billion to do a census, who within that number are 
citizens and who within that number are noncitizens.
  Secondly, and even more important, the top thing the census is used 
for, the first thing the census is used for is to reapportion the U.S. 
House of Representatives, to determine after each census is done how 
many U.S. House Members each State gets. The current plan is to count 
everybody and not ask whether a person is a citizen or a noncitizen. So 
the current plan is to reapportion House seats using that overall 
number--using both citizens and noncitizens in the mix. I think that is 
wrong. I think that is contrary to the whole intent of the Constitution 
and the establishment of Congress as a democratic institution to 
represent citizens. I believe only citizens should be in that 
particular calculation for the reapportionment of the U.S. House of 
Representatives.
  This is a significant issue for many States, including my State of 
Louisiana. It has a very big and direct and concrete impact on 
Louisiana and certain other States. It comes down to this: If the 
census is done next year and reapportionment happens using everybody--
citizens and noncitizens--Louisiana is going to lose a seat in the U.S. 
House of Representatives. We will lose one-seventh of our standing 
there, our representation there, our clout. If the census was done and 
only the number of citizens was used to determine reapportionment, 
Louisiana would not lose that House seat. We would retain seven seats. 
So that has a very big and direct impact on my State of Louisiana.
  I would also point out that it will have the same impact in seven 
other States: North Carolina, South Carolina, Oregon, Pennsylvania, 
Mississippi, Michigan, Iowa, and Indiana--excuse me, eight other 
States. So a total of nine States are in this position, Louisiana being 
one of them. So it is a very significant issue that directly impacts 
many citizens and many States.
  So I urge all of my colleagues to support getting a vote on the 
Vitter amendment by denying cloture on the Commerce-Justice-Science 
appropriations bill. However you may vote, this is an important issue, 
and however you may vote, we need a full debate and a vote. In 
particular, I would urge my colleagues from North Carolina, South 
Carolina, Oregon, Pennsylvania, Mississippi, Michigan, Iowa, Indiana, 
and, of course, Louisiana to vote no on cloture so we can examine this 
very significant issue and so we can have a vote on the Vitter-Bennett 
amendment.
  There has been discussion in at least two areas that I wish to 
quickly address. One is some discussion in the press, including from my 
distinguished colleague from Louisiana, Senator Landrieu, who has 
indicated that what I just laid out in terms of the impact on 
reapportionment isn't true. Well, I think every expert who has looked 
at this, every demographer who has looked at this agrees with what I 
just said, that this factor is the difference between Louisiana losing 
a House seat or not and these other States losing a House seat or not.
  I would point out three experts, but there are many others. Dr. 
Elliott Stonecipher, demographer from Louisiana, has been leading the 
charge on this issue. I compliment him for his tenacity and his hard 
work. But there are others as well. In an October 27, 2009, New York 
Times article, my numbers were again confirmed by Andrew Beverage, 
professor of sociology at Queens College, New York. He did an 
independent analysis and said exactly the same thing, that, yes, this 
issue of whether we use citizens and noncitizens in reapportionment 
does make that huge difference for those States. And last week, my 
analysis and my numbers were confirmed yet again by an independent and 
well-respected demographic expert--again in my State of Louisiana--Greg 
Rigamer with GCR and Associates. And that is very significant.
  Secondly, I wish to briefly address this cost issue. It is 
interesting that in this debate, the other side has been flailing 
around for an argument against my amendment, though nobody has argued--
or nobody whom I have heard--that reapportionment should be done 
counting citizens and noncitizens, and that is more consistent with the 
notion of Congress being the representative body of citizens of the 
United States. So folks on the other side are wildly flailing around 
for some argument, and the one they have come across is cost: Oh my 
goodness, the census would have to incur additional cost to add this to 
the form.
  Well, it is certainly true that it would cost some more. I can't give 
you a precise dollar figure, but it would cost something more. It is 
certainly true it would have been better for this to have been caught 
and debated earlier rather than later. Unfortunately, the committee of 
jurisdiction, the Committee on Homeland Security and Governmental 
Affairs, which reviews the census forms, did not bring this issue up in 
a significant way. I agree with that. I don't agree with this wild 
figure that it would cost $1 billion.
  Let me point out a couple of things. First of all, the cost of the 
census has ballooned from the last census. The last census was $3.4 
billion; this census is going to be $14 billion. So the first thing I 
would say, quite honestly, is that it is pretty ironic for an agency 
that has had a budget balloon from $3.4 billion in the last census to 
$14 billion this census to say they can't squeeze in that question, 
that they can't do it right for $14 billion.

[[Page S11147]]

  Secondly, quite frankly, the Census Bureau has a horrendous record in 
terms of cost estimates. When they threw out this very large, very 
round figure of it costing an additional $1 billion, I called them and 
said: OK, can you give us the rationale for that, the background on 
that cost estimate? After 3 weeks of asking for the data behind that $1 
billion claim, they sent us one piece of paper with 10 bullet points on 
it, all very general statements and suggestions, with a final bottom 
line being a nice even round figure of $1 billion--very unimpressive, 
in my opinion, in terms of any precise accounting for $1 billion.
  I would also draw everyone's attention to an October 7, 2009, GAO 
report delivered to the Subcommittee on Federal Financial Management, 
Government Information, Federal Services, and International Security. 
It was about the census. In that report, the GAO said:

       Given the Bureau's past difficulties in developing credible 
     and accurate cost estimates, we are concerned about the 
     reliability of the figures that were used to support the 2010 
     budget.

  In another example, the Office of the Inspector General filed a 
report in 2008 about the census. In that report, the office inspected a 
particular cost estimate from the Census Bureau that came up to $494 
million for a certain portion of their activity, and they said: We 
think this is a wildly inflated figure, and we can immediately identify 
cost savings that bring it down to $348 million--a significant savings 
of almost $150 million. When the Census Bureau was confronted with 
that, they had to agree and they had to adopt the lower figure.
  So, Mr. President, the bottom line is simple: We do a census every 10 
years. It is a very important event. We need to do it right, and to do 
it right, we need a full debate and a vote on this central question 
embodied by the Vitter-Bennett amendment. So I urge all of my 
colleagues to vote no on cloture of the Commerce-Justice-Science 
appropriations bill to demand a reasonable debate and vote on the 
Vitter-Bennett amendment. This is an important question, and we simply 
shouldn't forge ahead. Americans have a fundamental problem with not 
even asking the citizenship question and therefore forging ahead with a 
plan to reapportion the entire U.S. House of Representatives by putting 
noncitizens in the mix, when the whole notion of our representative 
democracy and of Congress is to represent the citizens of the country.
  I urge my colleagues to support that position, and I thank my 
colleagues who have done so thus so far. In particular, I urge my 
colleagues from North Carolina, South Carolina, Oregon, Pennsylvania, 
Mississippi, Michigan, Iowa, Indiana, and certainly Louisiana to stand 
up for their States, to stand up for their interests, to stand up for 
their clout and their representation in the U.S. House of 
Representatives.
  With that, Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I object to the Senator's amendment, and 
I object to the arguments he has made.
  First of all, we adopt cloture so that we can proceed on amendments 
that are germane. Second, in terms of the inaccurate accusation that we 
are plowing ahead and forging forward, we were on this bill for 4 days, 
with over 20 hours of debate. There was plenty of time to talk about 
this amendment, and I was here and ready to engage.
  The other thing is that there have been other times--since my bill 
was pulled from the floor--called morning business, when a Senator 
could talk for any length of time on any topic he or she wants. Yet 
silence, silence, silence. So don't use the cloture vote as a way to 
say there wasn't enough time.
  Now let's go to being asleep at the switch. Two accusations were 
made--the ballooning of the census cost. Well, one of the reasons and 
the main reason the cost is exploding is that the party in power prior 
to 2008 was asleep at the switch with the census. They completely 
dropped the ball on the new technology for being able to go door to 
door to get a count. It turned into a big techno-boondoggle. It finally 
took the Secretary of Commerce to uncover that under that rock was 
another rock, and under that rock were a lot of buckets of 
malfunctioning microchips. So we had to bail out Secretary Gutierrez 
and the census because of the techno-boondoggle because the other party 
was asleep at the switch in maintaining strict quality controls.
  Now let's go to the asking of another question. The Senator from 
Louisiana says he wants to stand up for his State. I agree, we have to 
stand up for the States, but the time to stand up was in April of 2007. 
Did you know that the Census is mandated by law to submit the 
questionnaires to Congress--and they did? So for 1 year, from April 1, 
2007, to the close of the review by Congress 1 year later, April 2008, 
there was plenty of time to say: We don't like the questionnaire; we 
want to add a citizenship question. That was the time and the place. 
When you are going to stand up for your State, stand up at the right 
time to make a difference and not try to amend the law in a way that is 
going to create administrative havoc.

  We can debate the merits of the question, but I am here as an 
appropriator on the process. The Census Bureau did meet its statutory 
responsibility. It submitted the questionnaire to the Congress on April 
1, 2007. It did not come by stealth in the night, it was not written in 
invisible ink, it was written in English here for all to see--and also 
in other languages we could test and use--to say: Do you, Congress, 
like this questionnaire? Do you have any comments? For all those who 
want to stand up, that was the time to do it and the time to make a 
change.
  Let's talk about the consequences. It will delay the census so we 
could essentially not meet our constitutional mandate of having the 
census done in a timely way. No. 2, it will cost, if we did not do it, 
another $1 billion and wreak, again, administrative havoc.
  Let's go into this whole claim about citizens and noncitizens. The 
census already tracks the number of citizens and noncitzens through a 
separate survey. We could talk about what this will mean in 
reapportionment and so on. Those questions are for debates that lie 
with the Judiciary Committee.
  We are not going to vote up or down on the Vitter amendment, we are 
going to vote on cloture. Why is cloture important? So we do not have 
distracting amendments that are better offered on the appropriate 
substance of the bill. We have to fund the State, Commerce, Justice, 
Science agencies. The FBI needs us to fund this agency. The Marshals 
Service needs us to fund this agency. Federal law enforcement, our 
Federal prisons--you might not like whom the Obama administration puts 
in Federal prisons, but we need Federal prisons. So we need to pass 
cloture so we can dispose of germane amendments and move democracy 
forward.
  Mr. President, how much time do I have?
  The PRESIDING OFFICER. The Senator from Maryland has 7\1/2\ minutes 
remaining.
  Ms. MIKULSKI. I wish to reserve my time. Did the Senator from Kansas 
have a question?
  Mr. ROBERTS. I would be delighted to respond to my good friend from 
Maryland. I am in a position to yield back all the minority's time. We 
have no more speakers.
  Ms. MIKULSKI. Mr. President, we are not prepared to yield back any 
time. I reserve the remainder of my time.
  Mr. ROBERTS. Will the distinguished Senator yield?
  Ms. MIKULSKI. Certainly.
  Mr. ROBERTS. Today, the U.S. Marine Corps is celebrating its 
birthday. As I speak, the Commandant of the Marine Corps, the Drum and 
Bugle Corps and various and assorted marines are over in the Russell 
Building. I am to cut the cake, and I am getting into deeper and deeper 
trouble if we delay the ceremonies to the degree they could be delayed. 
If somebody wants to talk, obviously, you have 7 minutes, but I 
appreciate any consideration you might be able to give us.
  Ms. MIKULSKI. That is one heck of an argument, I respond to the 
Senator from Kansas. I have great admiration for the Marine Corps. If 
the Semper Fi guys call and you need to cut the cake, I will certainly 
be willing to cooperate.
  Seriously, our congratulations to the U.S. Marine Corps on their 
birthday. We value them for what they have done in their most recent 
conflicts and their incredible history. They are truly Semper Fi. In 
the spirit of what I hope will be the comity of the day, the civility 
of

[[Page S11148]]

the day, we yield back our time in order to permit the vote.
  Mr. ROBERTS. I tell the Senator Semper Fi, and on behalf of the 
minority, I yield back all our time.


                             Cloture Motion

  The PRESIDING OFFICER. All time has expired. Under the previous 
order, pursuant to rule XXII, the Chair lays before the Senate the 
pending cloture motion, which the clerk will report.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the committee-
     reported substitute amendment to H.R. 2847, the Departments 
     of Commerce, Justice and Science and Related Agencies 
     Appropriations Act of Fiscal Year 2010.
         Harry Reid, Barbara A. Mikulski, Barbara Boxer, Robert 
           Menendez, Charles E. Schumer, Patty Murray, Tom Harkin, 
           Patrick J. Leahy, Roland W. Burris, Mark Begich, Ben 
           Nelson, Daniel K. Inouye, Debbie Stabenow, Bernard 
           Sanders, Dianne Feinstein, John F. Kerry, Edward E. 
           Kaufman.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on the 
committee-reported substitute amendment to H.R. 2847, the Departments 
of Commerce, Justice, and Science, and Related Agencies Appropriations 
Act of 2010 shall be brought to a close?
  The yeas are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 60, nays 39, as follows:

                      [Rollcall Vote No. 335 Leg.]

                                YEAS--60

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--39

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lugar
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Wicker

                             NOT VOTING--1

       
     McCain
       
  The PRESIDING OFFICER. On this vote, the yeas are 60, the nays are 
39. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  The clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 2847) making appropriations for the 
     Departments of Commerce, Justice, and Science, and Related 
     Agencies for the fiscal year ending September 30, 2010, and 
     for other purposes.

  Pending:

       Vitter/Bennett amendment No. 2644, to provide that none of 
     the funds made available in this act may be used for 
     collection of census data that does not include a question 
     regarding status of United States citizenship.
       Johanns amendment No. 2393, prohibiting the use of funds to 
     fund the Association of Community Organizations for Reform 
     Now (ACORN).
       Levin/Coburn amendment No. 2627, to ensure adequate 
     resources for resolving thousands of offshore tax cases 
     involving hidden accounts at offshore financial institutions.
       Durbin modified amendment No. 2647, to require the 
     Comptroller General to review and audit Federal funds 
     received by ACORN.
       Begich/Murkowski amendment No. 2646, to allow tribes 
     located inside certain boroughs in Alaska to receive Federal 
     funds for their activities.
       Ensign modified amendment No. 2648, to provide additional 
     funds for the State Criminal Alien Assistance Program by 
     reducing corporate welfare programs.
       Shelby/Feinstein amendment No. 2625, to provide danger pay 
     to Federal agents stationed in dangerous foreign field 
     offices.
       Leahy amendment No. 2642, to include nonprofit and 
     volunteer ground and air ambulance crew members and first 
     responders for certain benefits.
       Graham amendment No. 2669, to prohibit the use of funds for 
     the prosecution in article III courts of the United States of 
     individuals involved in the September 11, 2001, terrorist 
     attacks.
       Coburn amendment No. 2631, to redirect funding of the 
     National Science Foundation toward practical scientific 
     research.
       Coburn amendment No. 2632, to require public disclosure of 
     certain reports.
       Coburn amendment No. 2667, to reduce waste and abuse at the 
     Department of Commerce.

  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. I ask for the regular order.
  Mr. NELSON of Florida. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. I ask unanimous consent that the order for the 
quorum be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. Mr. President, the Food and Drug 
Administration is proposing a rule that will basically eliminate raw 
oysters from the Gulf of Mexico. There have been 15 people in the past 
year who have died from a bacterial infection that comes out of raw 
oysters. But what has been discovered is that the people had a 
preexisting condition prior to eating the oysters that made their 
immune system wear down so they were much more susceptible. In a 
sweeping administrative executive branch decision trying to correct a 
problem, they are suddenly proposing that they are going to stop the 
rest of America eating raw oysters from the Gulf of Mexico. This is 
like saying: If you have a food allergy to peanuts, we are going to ban 
you eating peanuts unless you cook them.
  There is a thriving industry along the coast of America, particularly 
the gulf coast, that has a delicacy known as raw oysters that people 
enjoy. Apalachicola oysters, the creme de la creme, are shipped all 
over the world. And in some of the fanciest restaurants you get 
Apalachicola oysters on the half shell. The Food and Drug 
Administration is about to basically ban raw oysters from the Gulf of 
Mexico. Some of us in the Senate are going to try not to let it happen.
  Senator Landrieu and I, who both have some interest in this because 
it affects our States, are filing a bill today that would utilize the 
appropriations means of not letting an appropriation be enacted or used 
for the purpose of the FDA implementing such a rule that would 
basically ban raw oysters from the Gulf of Mexico. This is trying to 
kill a gnat with a sledgehammer. If people were, because of a 
preexisting condition, already subject to coming down with an illness, 
there is simply no sense. This is government run amok. This is 
government out of control. This is government trying to kill a gnat 
with a sledgehammer. We are not going to let it happen.
  I inform the Senate today that we are filing this legislation.
  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. FRANKEN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRANKEN. I ask unanimous consent to speak as in morning business 
for up to 5 minutes and that the time be charged postcloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Franken pertaining to the introduction of S. 2734 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. FRANKEN. Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.

[[Page S11149]]

  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. 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. NELSON of Florida. Mr. President, I wish to be recognized as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. Mr. President, it goes without saying that 
NASA, the National Aeronautics and Space Administration, is at a 
crossroads. It is an agency that has been starved of funds, so it finds 
itself in the position that its human-rated capable vehicle, the space 
shuttle, will be ceasing to fly after six more flights that will 
continue to build the space station and equip it.
  This last flight will probably not be until the first quarter of 
2011. But the crossroads NASA is facing is because it has been starved 
of funds over the course of the last half a dozen years, it will not 
have a new human-rated vehicle to take our crews to the International 
Space Station. As a matter of fact, there is a great deal of 
consternation and conflict within NASA itself as to what that vehicle 
should be. So the President, recognizing this earlier when he appointed 
the new NASA Administrator, GEN Charlie Bolden, set up a blue ribbon 
panel headed by Norman Augustine.
  They have now reported, and the strong inference of their extensive 
and detailed report is that the vehicle that was planned to fly but was 
obviously going to be delayed because it hadn't been developed quickly 
enough, the Ares I--by the way, the same vehicle that had a very 
successful test flight a week ago--the strong inference of the 
Augustine Commission Report is that the Ares I would not even be ready 
to fly astronauts until the year 2017. Its sole purpose would be, 
according to the Augustine Commission Report, to get astronauts to and 
from the space station, and that would be, in the Augustine report's 
inference, too late. So they are recommending, or at least the strong 
inference of the recommendation in the Augustine report, is that 
commercial vehicles be developed to take cargo and crew to the 
International Space Station. The Augustine Commission Report is 
suggesting the space station certainly should be kept alive until the 
year 2020, but to now start to reap some of the science from the 
experiments that just now the space station is getting equipped to be 
able to do, in the nodule that is now designated as a national 
laboratory on the International Space Station.
  If what I have said sounds confusing, indeed it is. That is why NASA 
is at a crossroads. NASA is even more at a crossroads because NASA 
can't do anything unless it gets some serious new additional money, and 
that is the strong recommendation of the Augustine Commission Report. 
What they are saying is that NASA should have $1 billion extra over the 
President's request in this fiscal year, the fiscal year that started 
October 1 known as fiscal year 2010, and that the next fiscal year it 
should have an additional $2 billion over the President's baseline 
recommendation in the budget, and that thereafter, for the decade, it 
should have an additional $3 billion per year to fill out the decade so 
that NASA can do what it does best.
  What does it do best? It explores the unknown. It explores the 
heavens. What should that architecture be? I don't think our Senate 
committee can decide that. I don't think the White House can decide 
that, but the White House can give direction and our committee can give 
direction to NASA to go figure it out: Figure out what that 
architecture is to do what NASA does best, which is explore the 
heavens. That direction is certainly recommended in the Augustine 
Commission Report as: Get out of low Earth orbit. Expand out into the 
cosmos, with humans, to explore.
  So what I am hoping the President of the United States, Barack Obama, 
is going to do, now that he has received the Augustine Commission 
Report--it is my hope, it is my plea to the President that he will take 
their recommendations seriously and that he will do three things. 
First, even in the midst of an economic recession, when the budgets are 
very constrained and tight, he will say that a part of America we are 
not going to give up is our role as explorers and that he will commit 
to recommend in his budgets the additional money as recommended by the 
Augustine Commission, and in this first year, this fiscal year we are 
in now, fiscal year 2010, that is a lot easier because you can get that 
additional $1 billion out of the unused money in the stimulus bill. But 
it gets tougher as we get on down the line. That is the first thing.
  The second thing the President should say to his administrator of 
NASA, General Bolden, is convene the guys and determine the 
architecture of how we should go about and what is the mission we are 
going to explore. I can tell my colleagues that this Senator thinks the 
goal should be to go to Mars. It may not be to the surface of Mars; it 
may be first to Phobos, one of the moons of Mars; we would have to 
spend so much less energy in getting down to the surface of that moon 
because of the gravitational pull instead of going all the way to the 
surface of Mars. The science that we could gain from that would be 
extraordinary.
  Therefore, the President's direction, I would hope, to NASA would be: 
Figure out the architecture. Does that mean we are going to take the 
Ares I and make it into an Ares V?
  Is that going to be the heavy lift vehicle to get the hardware up to 
expand out into the cosmos, be it to Phobos, be it to an astroid, be it 
to the Moon? My hope is that the President would give that direction: 
Figure out that architecture and what are the steps along to the goal 
of getting to Mars. That would be the second thing.
  The third thing I hope the President would do is give direction to 
NASA that since NASA is at this crossroads and since there is going to 
be disruption in the workforce because there is not another human-rated 
rocket ready after the space shuttle is shut down, then you have to 
help the workforce. You have to move work around among the NASA 
centers. You have to bring in new kinds of research and development, of 
which NASA is a good example of an R&D agency.
  It is through the direction of those three things that I think we can 
get NASA out of this fix it finds itself in at this crossroads point. 
Give the direction, No. 1, for the additional funding that NASA needs; 
No. 2, direct NASA to produce that architecture for exploring the 
heavens; and No. 3, take care of the workforce in the meantime.
  Mr. President, I yield the floor and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KAUFMAN. 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. KAUFMAN. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 20 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KAUFMAN. Mr. President, I rise today because I am deeply 
concerned that just over 1 year since the collapse of Lehman Brothers, 
a failure that helped send us to the brink of depression, Wall Street 
is essentially unchanged. Congress and the SEC have not enacted any 
reform, and the American people remain at risk of another financial 
debacle--not just because the same practices that led to the crisis 14 
months ago are continuing but from new practices that are leading to 
new problems and new systemic risks.
  Last year, the financial world almost came to an end. Yet most of 
Wall Street then believed that no government review or additional 
regulation was necessary--right up until the moment government had to 
step in and save it.
  We had been assured that the system was sound. We were assured that a 
host of checks and balances were in place that would suffice. We were 
assured that companies have to report their financial holdings with 
full disclosure and transparency. We were assured that accountants have 
to verify those assets. We were assured that due diligence is conducted 
on every deal and transaction. We were assured that boards of directors 
have a fiduciary duty to undertake prudent risk management. We were 
sure that management wanted their companies to thrive

[[Page S11150]]

over the long term. Most important, we were assured that regulatory 
bodies and law enforcement agencies are in place to police the system. 
But those safeguards did not prevent the disaster.
  In the past 10 years or more, one of the most important safeguards--
the regulators--had simply given up on the importance of regulation. We 
believed and they believed that markets could police themselves, they 
would self-regulate, and so in effect we pulled the regulators off the 
field.
  We now know the confluence of events that led to the disaster, and 
there is blame enough to go around. We failed to regulate the 
derivatives market. Government-backed agencies, such as Fannie Mae and 
Freddie Mac, pushed to make housing available for greater numbers of 
people; unscrupulous mortgage brokers pushed subprime mortgages at 
every opportunity; and investment bankers pooled and securitized those 
subprime mortgages by the trillions of dollars and sold them like 
hotcakes. Rating agencies, left unmonitored by the SEC, incredibly 
stamped these pools with AAA ratings.
  The SEC, which changed the capital-to-leverage ratio level for 
investment banks from 30-and-50-to-1, allowed these banks to buy huge 
pools of these soon-to-be toxic assets, and investment banks wrote 
credit default swaps and then hedged those risks without any central 
clearinghouse, without any understanding of who was writing how much or 
what it all meant--all of this, incredible to believe, without any 
regulation or oversight.
  This chart conveys that banks were involved in high-risk return 
investments that were largely unregulated. Then, crash--the housing 
bubble burst and a disaster of truly monumental proportions struck. 
Americans lost $20 trillion in housing and equity value during the 
ensuing financial meltdown. The economy lurched into free fall, and the 
GDP shrunk by a staggering percentage not seen since the 1950s.
  What happened next? The American taxpayer, the deep-pocket lender of 
last resort, had to ride to the rescue. We can barely even count the 
trillions of dollars in taxpayer money that have gone into bailing out 
the banks, AIG, and a number of other financial institutions. That is 
not including the billions of taxpayer dollars we had to spend to 
stimulate the economy.
  We must never let this happen again. Yet here we are 1 year later, 
with no immediate crisis at hand, and we are falling back into 
complacency. The credit default swap market remains unregulated. The 
credit rating agencies have not yet been reformed. The banks are back 
to their old habits--paying out billions of dollars in bonuses for 
employees who are still engaged in high-risk, high-reward practices.
  What is the great lesson we should have learned from the financial 
disaster of 2008? When markets develop rapidly and change dramatically, 
when they are not regulated, and when they are not fully transparent, 
it can lead to financial disaster. That is what happened in the credit 
default swap market--rapid and dramatic change in the market, no 
regulation, and opaqueness, which equaled disaster. This must never 
happen again.
  I look forward to working with my colleagues to regulate the 
derivatives markets, to ensure that credit default swaps are traded on 
an exchange or at least cleared through a central clearinghouse with 
appropriate safeguards enforced, and to enact meaningful financial 
regulatory reforms.
  At the same time, we need to be looking carefully to see if these 
three deadly ingredients--rapid technological development, lack of 
transparency, and a lack of regulation--are appearing again in other 
markets. There is no question in my mind that in today's stock markets, 
those three disastrous ingredients do exist.
  Due to rapid technological advances in computerized trading, stock 
markets have changed dramatically in recent years. They have become so 
highly fragmented that they are opaque--beyond the scope of effective 
surveillance--and our regulators have failed to keep pace.
  The facts speak for themselves. We have gone from an era dominated by 
a duopoly of the New York Stock Exchange and Nasdaq to a highly 
fragmented market of more than 60 trading centers.
  Dark pools, which allow confidential trading away from the public 
eye, have flourished, growing from 1.5 percent to 12 percent of market 
trades in under 5 years.
  Competition for orders is intense and increasingly problematic. Flash 
orders, liquidity rebates, direct access granted to hedge funds by the 
exchanges, dark pools, indications of interest, and payment for order 
flow are each a consequence of these 60 centers all competing for 
market share.
  Moreover, in just a few short years, high-frequency trading, which 
feeds everywhere on small price differences in the many fragmented 
trading venues, has skyrocketed from 30 percent to 70 percent of the 
daily volume.
  Indeed, the chief executive of one of the country's biggest block 
trading dark pools was quoted 2 weeks ago as saying that the amount of 
money devoted to high-frequency trading could ``quintuple between this 
year and next.''
  Let's put the last chart back up for a second. Again, we have learned 
that if you have rapid and dramatic change, opaqueness, and no 
effective regulation, which is exactly what exists in the high 
frequency trading markets, we have a disaster. We should look at this 
in terms of high-frequency trading. We have no effective regulation in 
these markets.
  Last week, Rick Ketchum, the chairman and CEO of the Financial 
Industry Regulatory Authority--the self-regulatory body governing 
broker-dealers--gave a very thoughtful and candid speech, which I 
applaud. In it, Mr. Ketchum admitted that we have inadequate regulatory 
market surveillance.
  His candor was refreshing but also ominous:

       There is much more to be done in the areas of front-
     running, manipulation, abusive short selling, and just having 
     a better understanding of who is moving the markets and why.

  Mr. Ketchum went on to say:

       [T]here are impediments to regulatory effectiveness that 
     are not terribly well understood and potentially damaging to 
     the integrity of the markets . . . The decline of the primary 
     market concept, where there was a single price discovery 
     market whose on-site regulator saw 90-plus percent of the 
     trading activity, has obviously become a reality. In its 
     place are now two or three or maybe four regulators all 
     looking at an incomplete picture of the market--

  And this is important--

     and knowing full well that this fractured approach does not 
     work.

  At the same time that we have no effective regulatory surveillance, 
we have also learned about potential manipulation by high-frequency 
traders.
  Last week, the Senate Banking Subcommittee for Securities, Insurance, 
and Investment held a hearing on a wide range of important market 
structure issues. At the hearing, Mr. James Brigagliano, co-acting 
director of the Division of Trading and Markets, testified that the 
Commission intends to do a ``deep dive'' into high-frequency trading 
issues due to concerns that some high-frequency programs may enable 
possible front-running and manipulation.
  Mr. Brigagliano's testimony about his concerns was troubling:

       . . . if there are traders taking position and then 
     generating momentum through high frequency trading that would 
     benefit those positions, that could be manipulation which 
     would concern us. If there was momentum trading designed--or 
     that actually exacerbated intra-day volatility--that might 
     concern us because it could cause investors to get a worse 
     price. And the other item I mentioned was if there were 
     liquidity detection strategies that enabled high frequency 
     traders to front-run pension funds and mutual funds, that 
     also would concern us.

  Reinforcing the case for quick action, several panelists acknowledged 
that it is a daily occurrence for dark pools to exclude certain 
possible high-frequency manipulators. For example, Robert Gasser, 
president and CEO of Investment Technology Group, asserted that 
surveillance is a ``big challenge'' and that improving market 
surveillance must be a regulatory priority.
  He said:

       I can tell you that there are some frictional trades going 
     on out there that clearly look as if they are testing the 
     boundaries of liquidity provision versus market manipulation.

  But none of the panelists, when asked, felt responsible to report any 
of their suspicions of manipulative activity to the SEC. That is up to 
the regulators and their surveillance to stop, they believe.

[[Page S11151]]

  Finally, at the end of the hearing, Subcommittee Chairman Reed asked 
about the reported arrest of a Goldman Sachs employee who allegedly had 
stolen code from Goldman used for their high-frequency trading 
programs.
  A Federal prosecutor, arguing that the judge should set a high bail, 
said he had been told that with this software, there was the danger 
that a knowledgeable person could manipulate the markets in unfair 
ways.
  The SEC has said it intends to issue a concept release to launch a 
study of high-frequency trading. According to news reports, this will 
happen next year. I do not believe next year is soon enough. We need 
the SEC to begin its study immediately. Where is the sense of urgency?
  Our stock markets are also opaque. Again, I refer to Chairman 
Ketchum's speech:

       There are impediments to regulatory effectiveness that are 
     not terribly well understood and potentially damaging to the 
     integrity of the markets.

  He went on to say:

       We need more information on the entities that move 
     markets--the high frequency traders and hedge funds that are 
     not registered. Right now, we are looking through a 
     translucent veil, and only seeing the registered firms, and 
     that gives us an incomplete--if not inaccurate--picture of 
     the markets.

  Senator Schumer echoed this theme at last week's hearing. He said:

       Market surveillance should be consolidated across all 
     trading venues to eliminate the information gaps and 
     coordination problems that make surveillance across all the 
     markets virtually impossible today.

  Let me repeat: `` . . . market surveillance across all the markets 
virtually impossible today.'' I totally agree with that, and none of 
the industry witnesses disagreed with Senator Schumer. That is why the 
SEC must not let months go by without taking meaningful action. We need 
the Commission to report now on what it should be doing sooner to 
discover and stop any such high-frequency manipulation.
  Where is the sense of urgency?
  We must also act urgently because high-frequency trading poses a 
systemic risk. Both industry experts and SEC Commissioners have 
recognized this threat. One industry expert has warned about high-
frequency malfunctions:

       The next LongTerm Capital meltdown would happen--

  And get this--

     in a five-minute time period . . .

  ``The next LongTerm Capital meltdown would happen in a five-minute 
time period.''

       At 1,000 shares per order and an average price of $20 per 
     share, $2.4 billion of improper trades could be executed in 
     [a] short timeframe.

  This is a real problem. We have unregulated entities--hedge funds--
using high-frequency trading programs, interacting directly with the 
exchanges.
  As Chairman Reed said at last week's hearing, nothing requires that 
these people even be located within the United States. Known as 
``sponsored access,'' hedge funds use the name of a broker-dealer to 
gain direct trading access to the exchange but do not have to comply 
with any of the broker-dealer rules or risk checks.
  SEC Commissioner Elisse Walter has recognized this threat:

       [Sponsored access] presents a variety of unique risks and 
     concerns, particularly when trading firms have unfiltered 
     access to the markets. These risks could affect several 
     market participants and potentially threaten the stability of 
     the markets.

  Let me repeat that:

       These risks could affect several marketing participants and 
     potentially threaten the stability of the markets.

  This is from a member of the SEC. Even those on Wall Street 
responsible for overseeing their firms' high-frequency programs are not 
up to speed on the risks involved, according to a recent study 
conducted by 7city Learning. In a survey of quantitative analysts who 
design and implement high-frequency trading algorithms, two-thirds 
asserted their supervisors ``do not understand the work they do.''
  And though the quants and risk managers played a central role 
exacerbating last year's financial crisis, 86 percent of those surveyed 
indicated their supervisor's ``level of understanding of the job of a 
quant is the same or worse than it was a year ago,'' and 70 percent 
said the same thing about their institutions as a whole.
  I agree with the market expert and 7city director Paul Wilmott who 
said:

       These numbers are alarming. They indicate that even with 
     the events of the past year, financial institutions are still 
     not taking the importance of financial education seriously.

  Let me repeat that.

       . . . They indicate that even with the events of the past 
     year, financial institutions are still not taking the 
     importance of financial education seriously.

  Where is the urgency? Time is of the essence. We must act now.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Chair.
  (The remarks of Mr. Specter pertaining to the submission of S. Res. 
339 are printed in today's Record under ``Submission of Concurrent and 
Senate Resolutions.'')
  Mr. SPECTER. I thank the Chair, and I yield the floor.
  Ms. MIKULSKI. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Brown). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, our colleague from Pennsylvania, Senator 
Specter, just gave an eloquent speech on why the Supreme Court should 
be televised and how it would provide greater openness and transparency 
were decisions being made in the public's eye. I think that argument 
was very interesting. But there is one institution that is absolutely 
on television already, and that is the Congress of the United States. 
Through C-SPAN, what goes on in this Chamber and often in the committee 
rooms goes out all over America. We get phone calls, in many instances, 
from the C-SPAN watchers. I think it is an outstanding tool.
  Someone watching what is going on all day would wonder: What are they 
doing? We have kind of lost sight, given some of the amendments that 
were offered, of just what is the pending business on the floor of the 
Senate today. As the person who chairs the Appropriations Subcommittee 
on Commerce, Justice and Science, I would like to remind the American 
people watching, and my colleagues, what is the pending business.
  The pending business is how should we best fund those important 
agencies at the Commerce Department that promote trade and scientific 
innovation; also the Justice Department, rendering impartial justice, 
enforcing the laws that are on the books; to important science 
agencies, such as the American space program. What the appropriations 
bill does is it determines what goes in the Federal checkbook to fund 
these programs.
  I am very proud of the way we, in our subcommittee, have worked on a 
bipartisan basis to bring a bill to the Senate floor that we believe 
reflects national priorities. I have worked hand in hand with my 
ranking member, the Republican Senator from Alabama, Mr. Shelby, and we 
wrote good legislation.
  What do we like about it? First of all, what we like about it is that 
we want to promote innovation and competition in our society. We are in 
a terrible economic mess. Our economy is rocking and rolling. The fact 
is, we still do not have jobs. What about these jobs? What do we do? I 
want to talk about the role of the Commerce Department in coming up 
with new ideas, making sure we have innovation from the government. 
Innovation is important because it is the new ideas that create the new 
products that create the new jobs.
  I note the Presiding Officer is from the State of Ohio. There, as in 
my State, manufacturing has been very hard hit. Many of the traditional 
ways of life are not there. We have to look ahead to what is promoting 
innovation-friendly government. Right there in the Commerce Department 
is the Bureau of Industry and Security, which makes sure we are able to 
provide exports of our technology. We have the Patent and Trademark 
Office, which is guardian of our intellectual property around the 
world. It protects ideas and those who come up with inventions as 
private property, the hallmark of capitalism--the ability to own 
private

[[Page S11152]]

property and benefit from the fruits of your labor in an open and 
competitive marketplace. We would fund that.
  When you come up with new products, you also have to have standards 
so a yardstick is the same in the United States as in any other 
country--or the metric system. What the National Institute of Standards 
does is it sets standards for products that will enable the private 
sector to compete among themselves and around the world. I am proud of 
them. They are located in Maryland, but even if they were located in 
Utah or Wyoming I would be proud of them because it is there that they 
set the standards which help set the pace for America to compete.
  Much is said about our arms race, but one of the races we have been 
in is the race for America's future. One of the agencies that is the 
greatest inventor of technology has been the National Space Agency. We 
have all been thrilled to watch our astronauts go into space. Many of 
us, particularly this summer, were excited about the bold and 
courageous astronauts because they were able to retrofit Hubble with 
new batteries and a new camera so we could do the scientific work 
needed to send Hubble on its final journey. It is at the National Space 
Agency, though, that so much invention of new technology occurs.
  As someone who has spoken out so much for women's health, and also 
the desire to prevent breast cancer, one of the things I am proud of is 
out of NASA's x-ray technology we have been able to develop other 
products for the civilian population, such as digital mammography.
  A few months ago I broke my ankle and then wore a boot that looked 
like a space boot. It looked like a space boot because it maybe was--
well, not mine. I would love to wear a space boot worn by Sally Ride or 
one of the great women astronauts. But the fact is, it is because of 
the technology that was developed to protect our astronauts that we now 
know how to protect us on Earth. This is what we are talking about.
  Should we fund these agencies? Should we be able to make public 
investments that lead to private sector jobs? While we are fighting 
over should we have this prisoner over at Gitmo or other kinds of 
provocative social questions, we have a duty to promote those agencies 
that promote private sector jobs.
  The other area I am very proud of in this bill is our support of law 
enforcement. Yes, we support Federal law enforcement, our FBI, our 
Marshal Service, as well as our Bureau of Alcohol, Tobacco, Firearms 
and Explosives. But I am also proud that we support that thin blue line 
of local law enforcement. For many of our communities, mayors and 
county executives are stretched to the limit. Sometimes people who 
commit crimes are better armed and have the latest technology, more 
than our cops on the beat. Through a program called the Byrne grants 
they are able to apply for Federal funds to be able to modernize 
themselves.
  We don't want to hold up the funding. We want this bill to go ahead. 
We want things to happen. That is what this bill is. We have worked 
hard. Senator Shelby and I held hearings, we held meetings, we met with 
local law enforcement.
  We took the time to meet with people who have been victims, battered 
women. We fund the Violence Against Women Act. Do you know, since Joe 
Biden created that program, over 1 million people have called on the 
hotline; that we have protected over 1 million women from being abused 
and maybe even facing violence of such a degree that it threatened 
their lives?
  This is not only about spending. These are about public investments 
that protect our communities and protect American jobs. I hope my 
colleagues will come and agree to complete discussion on their 
amendments so we can complete votes and bring this to a close so we can 
go to a conference with the House.
  I note the Senator from Louisiana is on the Senate floor. I want to 
single her out, as they say in the colloquial: Do a shout-out. The 
Senator is well known for her work on adoption, and I salute her for 
that. Also, international adoption, making sure the laws are made and 
making sure, as people seek international adoption, there is not the 
exploitation of those children. We work with that in our bill. We also 
make sure we protect missing and exploited children in their own 
country.
  You know, we see horrific, ghoulish, and grisly things done to young 
people who have been picked up. But thanks to the Adam Walsh Act, the 
Missing Children and Exploitation Act, we are stopping that. We have 
tough laws now against sexual predators and a way to keep them off the 
streets and to keep them registered. We have the money in the Federal 
checkbook to do that.
  I really like this subcommittee because it does protect American 
jobs. It does protect American communities. It does protect the 
American people. I hope that today we can conclude our debate on the 
five pending amendments, move to a vote and try to get our country and 
our economy back again.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. I ask unanimous consent that the Senator from Louisiana 
be recognized for 3 minutes and then I follow with the 30 minutes I had 
allotted.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. LANDRIEU. Mr. President, I appreciate the comments from our 
leader, Senator Mikulski from Maryland, who does a magnificent job as a 
member of the Appropriations Committee, and particularly in this area 
she feels passionate about. I look forward to continuing to work with 
her in all sorts of criminal justice areas, particularly as it relates 
to the protection of children. I thank her for those comments.
  I thank the Senator for giving me a chance to speak very briefly, to 
do two things: one, to give a statement on an amendment that was 
proposed on this bill by Senator Vitter, that related to adding a 
question to the Census. I have submitted a letter on this to him 
personally.
  Senator Vitter contends that the founding fathers only believed that 
citizens should be counted by Census officials for the purposes of 
congressional apportionment.
  He argues that the inclusion of noncitizens in the census will result 
in Louisiana losing a congressional seat since the population of States 
like California and Texas could be inflated by millions of illegal 
immigrants, making their population growth relatively greater than 
ours.
  Should noncitizens be included in the calculation that determines the 
allocation of seats in the House of Representatives? I believe that the 
answer is no.
  But merely adding a question to the Census will not fix that. That 
change requires an amendment to the Constitution, which states: 
``Representatives shall be apportioned among the several States 
according to their respective numbers, counting the whole number of 
persons in each State''.
  I think that the Constitution is clear. But my staff has checked with 
the Nation's foremost constitutional scholars at Yale, Stanford, and 
UCLA to name a few. They have checked with scholars from the political 
right and scholars from the political left. So far, every single 
scholar agrees: If you want to exclude noncitizens you must amend the 
Constitution.
  Professor Eugene Volokh, a well-regarded constitutional law scholar 
at UCLA, and a staunch conservative, has written publicly that the 
notion would be unconstitutional.
  Were the founders wrong to create the formula for congressional 
apportionment in that way? That is a very serious question for all 50 
States, but it is far from the most important challenge confronting 
Louisiana today.
  The fact is that if Louisiana does not bolster law enforcement, our 
communities will not be safe enough to attract new residents. If we do 
not improve our failing public schools, families will not want to call 
Louisiana home, and businesses would not have the employment base that 
will grow our economy.
  The truth is that our State has seen more outward migration than any 
other in the Union. Only Louisiana and North Dakota lost population 
this decade, and Louisiana's population was reduced by a much higher 
degree.
  Illegal immigration is a very serious problem. but it is not 
responsible for Louisiana's loss of representation. Andrew Beveridge, a 
sociologist at Queens

[[Page S11153]]

College and the Graduate Center of the City University of New york, has 
shown that even if all illegal immigrants were excluded, Louisiana 
would still lose a seat.
  Here is our real problem: Decades of stagnant economic growth drove 
many Louisianians elsewhere, and that was before Hurricanes Katrina, 
Rita, Gustav and Ike severely impacted our populous coastal 
communities.
  Demonstrating that Louisiana means business when it comes to 
reforming our schools and our police departments and our basic 
infrastructure takes serious work. That is the work that I engage in 
every day.
  Blaming immigrants for our problems does not take much effort, but it 
will not make our State a better place to live either.
  Secondly, quickly, since Puerto Rico does not have a Senator, as it 
is still a territory and not a State, I wanted to take the opportunity 
to express to the people of Puerto Rico our sadness about a terrible 
explosion that happened recently, on October 24. It occurred at one of 
their major refineries.
  This came to my attention for two reasons. One, we also have a lot of 
refineries in Louisiana, so we are sensitive that accidents such as 
this can happen, but also as the Chair of the Subcommittee on Disaster 
Response, I wanted to talk a minute about this. The fire burned for 24 
hours. It destroyed 22 of the 40 storage tanks. Thankfully and 
amazingly, no one was killed.
  I come to the floor to congratulate the local officials, the 
Governor, the FEMA representatives, the law enforcement that responded 
to this horrific disaster. Some 1,500 people were evacuated, 596 people 
were sheltered outside of the impacted area. There were 130 
firefighters and National Guard troops who worked to bring the inferno 
under control. The good news is that they did.
  The purpose of this comment for the Record is to say that training 
and preparedness help. The Members of this body, both Democrats and 
Republicans, supported additional funding in last year's bill for FEMA 
for local training. Congress recognized the importance of training. 
Since 2007 we have appropriated over $250 million each year in grants. 
The post-Katrina emergency management reform gave FEMA regional 
administrators specific responsibility for coordinating that training.
  I am encouraged that FEMA seems to have learned some of the lessons 
from Hurricane Katrina and also from September 11, which is now several 
years behind us, but nonetheless still on our minds. So I wanted to say 
that training, the appropriate amount of investment in training, works. 
Again, no one was killed.
  I want to give credit to FEMA and the Governor of Puerto Rico, Luis 
Fortuno, for their quick action in keeping people safe, in responding 
to this situation. Hopefully we will continue to refine our processes, 
make our disaster response even better for disasters such as this. For 
hurricanes, for earthquakes, or for anything else that comes our way, 
we will be ready and able to respond.
  I yield the floor and I thank the Senator from Oklahoma for being 
gracious with his time.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I am going to spend about 20 minutes 
talking about amendments I have that are germane and we will be voting 
on. But they are small amendments. There is nothing big here. They are 
amendments that are designed to make a point.
  We ran, by a factor of two, the largest deficit in the history of 
this country. Of the money we spent in the 2009 fiscal year, we 
borrowed 43 percent of it: 43 cents out of every dollar we expended, 43 
cents we borrowed from our children and our grandchildren.
  We have before us a bill, the Commerce-Justice-Science bill, that 
will go up almost 13 percent, 12.6 percent this year, on the back of a 
15.5-percent increase last year. The latest inflation numbers are 
deflation, a minus four-tenths of 1 percent.
  The question America has to ask itself, after we pass $800 billion of 
stimulus spending for which this agency got billions which are not 
reflected in any of these increases, is how is it that when we can 
spend $1.4 trillion we do not have, we can come to the floor and 
continue to have double-digit increases in almost everything we pass?
  It does not take a lot of math to figure out that if we keep doing 
what we are doing, in 4\1/2\ years the size of the Federal Government 
doubles. If you do this for another 4 years, we will double the size of 
the Federal Government. So there is absolutely no fiscal restraint 
within the appropriations bills that are going through this body with 
the exception of one, and that is the Defense Department, probably the 
one that is most important to us in terms of our national security, in 
terms of where there is no question we have waste but where we need to 
make sure that we are prepared for the challenges that face us.
  If you look at what we passed through the body, and you look at 2008, 
2009, you go 10, 9.9, 9.4, 13.0, 13.3, 14.1, 15.7--that was last year--
and now we are going to go 5.7, 7.2, 1.4, 12.6, 22.5, 16.2, and 12.6.
  Not only are we on an unsustainable course as far as mandatory 
programs such as Social Security and Medicare--by the way, we have now 
borrowed from Social Security, stolen from Social Security, $2.4 
trillion which we do not even recognize we owe. We do not put it on our 
balance sheet. We have stolen $758 billion from the Medicare trust 
fund, which we do not even recognize. So we borrowed $3 trillion from 
funds that were supposed to be there for our seniors and our retirees 
which our children--not us; our children and our grandchildren--will 
have to repay.
  I saw this the other day on the Internet. It speaks a million words 
to me. Here is a little girl, a toddler with a pacifier in her mouth. 
She has got a sign hanging around her neck. She says: I am already 
$38,375 in debt and I only own a doll house.
  The problem with that is that she way understates what she is in debt 
for. That is just the recognized external debt. That does not count 
what we borrowed internally from our grandchildren. It does not count 
the unfunded liabilities she through her lifetime will never get any 
benefit from but will pay because we have stolen the benefit for us, 
without being good stewards of the money that has been given to us.
  If you go through this and you look at it, by the time she is 40, she 
will be responsible for the $1,119,000 worth of debt we have 
accumulated for payments for Medicare, Social Security, and Medicaid 
that she got absolutely zero benefit from.
  Then if you think about a $1 million debt for a little girl like this 
and what it costs, what the interest is to fund that debt, if you just 
said 6 percent, she has got to make $60,000 first to pay the interest 
on that debt before she pays any taxes, her share of the taxes, and 
before she has the capability to have a home and have children and have 
a college education, own a car. We are absolutely, with bills such as 
this, strangling her. We are strangling her.
  I am reminded what one of our Founders said, and it is so important. 
I love the Senator from Maryland. She said we had plenty of money in 
the checkbook to do this. We do not have plenty of money in the 
checkbook to do this. What we have is an unlimited credit card that we 
keep putting into the machine and saying, we will take the money and 
our kids will pay later. That is what we are doing.
  Thomas Jefferson said, ``I predict future happiness for Americans if 
they can prevent the government from wasting the labors of the people 
under the pretense of taking care of them.''
  When we are seeing 12.6 and 15 percent increases in the nonmandatory 
side, the non-Social Security, the non-Medicare, the non-Medicaid side 
of the budget, we have fallen into the trap Thomas Jefferson was 
worried about.
  I know my colleagues are sick of me talking about this. But you know 
what, the American people are not sick of us talking about it. They get 
it. They realize that we refuse to make hard choices. Every one of them 
is making hard choices today with their families about their future 
based on their income. Yet we have the gall to bring to the floor 
double-digit spending at a time when people, 10 percent of Americans, 
are out of work, seeking work, another 5 percent have given up, and we 
are saying, that is fine if we have a 12-percent increase. It is fine. 
No problem. There is plenty of money in the checking account.

[[Page S11154]]

  There is no money in the checking account. We are perilously close to 
having our foreign policy dictated to us by those who own our bonds, 
people outside of this country. The time to start changing that is now.
  I have two little amendments, and one is very instructive. The 
political science community is hot and bothered because I would dare to 
say that maybe in a time of $1.4 trillion deficits, maybe at a time 
when we have 10 percent unemployment, maybe at a time when we are at 
the worst financial condition we have ever been in our country's 
history, maybe we ought not spend money asking the questions why 
politicians give vague answers, or how we can do tele-townhall meetings 
and raise our numbers. Maybe we ought not to spend this money on those 
kinds of things right now.
  You see, it is instructive because those who are getting from the 
Federal Government now do not care about their grandchildren. What they 
want is what they are getting now. Give me now; it doesn't matter what 
happens to the rest of the generations that follow us.
  So we have the political science community all in an uproar, not 
because I am against the study of political science but because I think 
now is not the time to spend money on that. Now is the time to spend 
money we absolutely have to spend, on things which are absolute 
necessities, as every family in America is making those decisions 
today. We do not have the courage to do it because it offends 
individual interest groups that are getting money from the Federal 
Government for a priority that is much less than the defense of this 
country, protecting people, securing the future, taking care of their 
health care, and making sure we have law and order.
  You see, Alexander Tyler warned of this as he studied why republics 
fail. He said, ``All republics fail.'' They fail because when people 
learn they can vote themselves money from the public treasury, all of 
the other priorities go out the window. They become totally self-
focused, self-centered on what is in it for them, with no long-range 
vision, only parochial vision, no vision for the country as a whole, 
but only what is good for them. It is called self-centeredness. It is 
called selfishness. And we perpetuate it in this body by bringing bills 
to the floor that are resistant to amendments that say: Maybe this is 
not a priority right now.
  I would bet if you polled the American public and said, we are going 
to run another $1.4 trillion deficit this year, we probably would not 
want to spend $12 million telling politicians how to stay elected. We 
probably would not.
  The fact is, it is major universities that get this small amount of 
money are in debt in excess of $50 billion.
  They have plenty of money to fund this if they wanted, but they don't 
do it because they are getting from the person who is out of work. They 
are getting from the person who didn't get that job because the economy 
is on its back, because we are borrowing $1.4 trillion and competing 
with the capital that is required to create a job. It is just a small 
amount of money. It by itself won't make any difference. But supporting 
this amendment will build on confidence with the American people that 
says, he is right, we ought to be about priorities.
  We ought to be about doing what is most important first and cutting 
out what is least important because the times call for discipline so we 
don't further hamstring the generation of children to which this young 
lady belongs. If you take $5 or $6 million and do it once, pretty soon, 
if you have done it 10 times, you have $60 million. You do it another 
10 times, you have $600 million. Pretty soon, we have billions of 
dollars we are not spending because it is low priority and we are not 
borrowing it against our children. All of a sudden, the value of the 
dollar starts to rise. Confidence around the world in the dollar starts 
increasing. Competition for capital by the Federal Government competing 
in the private sector for the capital goes down. The cost of capital 
goes down. Credit flows and job opportunities are created. We don't 
connect that because we have always done it that way. We have a budget 
allocation. As long as we are under that budget allocation, everything 
is fine.
  Where is the leadership in our country today that says we are going 
to model a leadership that we know the American people expect of us--
make hard choices, take the heat to eliminate things that are lower 
priority so that we can preserve the priority of this child and those 
of her generation? The fact is, that leadership is nonexistent. There 
is no reason for anyone to doubt why confidence in the Congress is at 
alltime lows. We are not realists. We are not listening.
  The message out there, the No. 1 concern with fear isn't health care; 
it is economic. Am I going to have a job tomorrow? Am I going to be 
able to pay my bills? Will I be able to pay my mortgage? There are 
thousands of items in every appropriations bill just like this one, 
just like that amendment that we could eliminate tomorrow. It might 
create some small hardship but nothing compared to the hardship we are 
transferring to the following generation.
  I have no doubt of the outcome of the votes on my amendments. I 
understand we are a resistant, recalcitrant body that refuses to 
recognize the will and direction of the American people in terms of 
commonsense priorities. I understand that. But what we must understand 
is, they are awake now, they are listening, and they are watching. It 
is time to respond to the desires of the American people and stop 
responding to the special interests of those who are getting money from 
the Federal Government that are low priority in terms of what really 
counts and really matters for our future.
  I have one other amendment we will be voting on that transfers money 
to increase the money at the inspector general. It will not slow down 
the conversion of the Hoover Building at all. We have been told that. 
But it will help to make good government.
  Part of our problem in government is about 10 percent of everything 
we do is pure waste, pure fraud, or pure duplication. If we are going 
to invest dollars in something, we ought to invest in the transparency 
and accountability mechanisms we have already set up.
  I find myself encouraged by the attitude of the American people, yet 
discouraged by the attitude of my colleagues. Nobody wants to take and 
make the hard choices, the hard choices that say we are going to get 
heat if we start prioritizing. The easiest is to do nothing. The 
easiest is to continue to let the programs run whether they are high 
priority or not. That is easy. But America is having a rumble right 
now. The ground is shaking. The American people are paying attention. 
They are going to watch votes just like this one. Then we are going to 
be called to account as to, why won't you make priority choices, why 
won't you take the heat.
  If there ought to be any political science study done, it is, why are 
Members of Congress such cowards? That is the thing we ought to study. 
We ought to study why we refuse to do the right thing because it puts 
our job at risk. We ought to be doing the right thing when it does put 
our job at risk and when it doesn't.
  I will finish up by reminding us of what our oath is. Our oath never 
mentions our State. Our oath never mentions our special interest. Our 
oath never mentions our campaign contributors. What our oath mentions 
is that we are Senators of the United States--not from Oklahoma, not 
from Delaware, not from Maryland, not from Ohio. We are Senators of the 
United States; we just happen to be from those places. Our oath is to 
the long-term best interest of the country, never a parochial interest.
  As you go through these bills, what you see are parochial interests 
trumping the long-term best interests of the country. That is not to 
demean the fine job the Senator from Maryland has done. She came in 
with the number that was given her. There is no question that she 
probably made some tough choices as she did that. But we haven't made 
enough. This kind of increase in this kind of bill is absurd. It is 
obscene. It is obscene at a time when the average family's income is 
declining, their ability to have the freedom to make choices, relaxed 
choices about what they do versus very stern choices about what is a 
necessity. We have not gotten the message.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.

[[Page S11155]]

                           Amendment No. 2669

  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I rise to speak on behalf of amendment No. 2669 that 
has been offered by Senator Graham, with Senators Webb, McCain, and 
myself as cosponsors. It is a pending amendment.
  The purpose of this amendment is quite straightforward. It would 
prevent the use of any funds made available to the Department of 
Justice by this appropriations bill from being used to prosecute any 
individual suspected of involvement in the 9/11/01 attacks against the 
United States in an article III court--that means essentially a regular 
Federal court created pursuant to article III of our Constitution.
  Why would we feel we need to do such a thing? It is because the 
current protocol governing the disposition of cases referred for 
possible prosecution of detainees currently held at Guantanamo Bay, 
Cuba, the current protocol of the U.S. Department of Justice governing 
the referral of these detainees from Guantanamo Bay, says as follows:

       No. 2, Factors for Determination of Prosecution. There is a 
     presumption that, where feasible, referred cases will be 
     prosecuted in an Article III court in keeping with 
     traditional principles of federal prosecution.

  It is because we who are sponsoring this amendment think there is a 
fundamental error of judgment--in fact, in its way, an act of 
injustice--that these individuals, suspected terrorists being held at 
Guantanamo Bay, Cuba, suspected in this case, according to our 
amendment, of having been involved in the attacks of 9/11 on the United 
States which resulted in the deaths of almost 3,000 people, that these 
individuals would be tried in a regular U.S. Federal court as if they 
were accused of violating our criminal laws. They are not common 
criminals or uncommon criminals; they are suspected of being war 
criminals. As such, they should not be brought to prosecution in a 
traditional Federal court along with other accused criminals.
  Citizens of the United States have all the right to the protections 
of our Constitution in the Federal courts, article III courts of the 
United States. These are suspected terrorist war criminals who are not 
entitled to all the protections of our Constitution and whose 
prosecution should not be confused with a normal criminal law 
prosecution. They are war criminals. They ought to be tried according 
to all the rules that prevail for war criminals, including, of course, 
the Geneva Conventions.
  This Congress has established a tradition and improved in recent 
times a system of military commissions, a system adopted by both Houses 
of Congress, signed into law by the President, which provides standards 
of due process and fairness in the trial of suspected war criminals, 
not just in compliance with the Geneva Conventions and the Supreme 
Court of the United States but well above the standards that have been 
required by both the Supreme Court and the Geneva Conventions.
  Those who are accused of committing the heinous, cowardly acts of 
intentionally targeting unsuspecting, defenseless civilians in an act 
of war as part of a larger declared war of Islamic extremists against, 
frankly, anybody who is not like them--the most numerous victims of 
these Islamic terrorists around the world are fellow Muslims who don't 
agree with their extremism. They have killed many people of other 
religions. When they struck us in the United States on 9/11, they 
killed an extraordinary classically American diverse group of people. 
The only reason they were targeted was that they were in the United 
States. The terrorists, these people who are suspected of being 
terrorists participating in and aiding the attacks of 9/11, are war 
criminals, not common criminals. They should, therefore, be tried by a 
military commission system, which goes back as long as the 
Revolutionary War in the United States. There is a proud and fair 
tradition. We have upgraded and strengthened all the due process and 
legal protections of them after 9/11. So why would we take these war 
criminals, suspected war criminals, and bring them into the criminal 
courts of the United States and give them the rights of the 
Constitution. I don't understand.
  Every Member of the Senate received a letter today from quite a large 
number of families of the victims of 9/11, 140-plus at last writing. I 
want to read briefly from the letter. The letter is in support of the 
amendment Senators Graham, Webb, McCain, and I have offered.

       The American people were rightly outraged by this act of 
     war. Whether the cause was retribution or simple recognition 
     of our common humanity, the words ``Never Forget'' were 
     invoked in tearful or angry rectitude, defiantly written in 
     the dust of Ground Zero or humbly penned on makeshift 
     memorials all across this land.
       The country was united in its determination that these acts 
     should not go unmarked and unpunished.
       Eight long years have passed since that dark and terrible 
     day.

  Remember, Mr. President, this is written by people who lost dear ones 
on 9/11.
  They continue:

       Sadly, some have forgotten the promises we made to those 
     whose lives were taken in such a cruel and vicious manner.
       We have not forgotten. We are the husbands and wives, 
     mothers and fathers, sons, daughters, sisters, brothers and 
     other family members of the victims of these depraved and 
     barbaric attacks, and we feel a profound obligation to ensure 
     that justice is done on their behalf.

  They continue:

       It is incomprehensible to us that Members of the United 
     States Congress would propose that the same men who today 
     refer to the murder of our loved ones as a ``blessed day'' 
     and who targeted the United States Capitol for the same kind 
     of destruction that was wrought in New York, Virginia and 
     Pennsylvania, should be the beneficiaries of a social compact 
     of which they are not a part, do not recognize, and which 
     they seek to destroy: the United States Constitution.

  So they say:

       We adamantly oppose prosecuting the 9/11 conspirators in 
     Article III courts, which would provide them with the very 
     rights that may make it possible for them to escape the 
     justice which they so richly deserve. We believe that 
     military commissions . . . are the appropriate legal forum 
     for the individuals who declared war on America.

  Mr. President, I know there will be further debate on this amendment, 
but I ask my colleagues to join in this. We are doing it not just 
because of the protocol I cited at the beginning but because of stories 
that are emanating that perhaps as early as next week, the Department 
of Justice will announce they are going to bring Khalid Shaikh 
Mohammed, the man who planned the 9/11 attacks, who is in our custody, 
to trial in a Federal court. This man is, from all that I know, one of 
the devils of history, an evil man who wrought terrible destruction and 
suffering on our country, and he ought to be given due process, but he 
ought to be given due process in a forum reserved for suspected war 
criminals, and that is the military commissions.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The senior Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, I thank my friend and colleague, Senator 
Lieberman. Along with Senator Graham and Senator Webb, we are strongly 
supporting this amendment.
  Senator Lieberman made reference to a letter that has currently been 
signed by 214 9/11 family members. Mr. President, I ask unanimous 
consent that this letter be printed in the Record, along with an 
article from the Wall Street Journal dated October 19, 2009, entitled 
``Civilian Courts Are No Place To Try Terrorists'' by Michael B. 
Mukasey, the former Attorney General of the United States of America.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 November 5, 2009.
     U.S. Senate,
     The U.S. Capitol,
     Washington, DC.
       Dear Senators: On September 11, 2001, the entire world 
     watched as 19 men hijacked four commercial airliners, 
     attacking passengers and killing crew members, and then 
     turned the fully-fueled planes into missiles, flying them 
     into the World Trade Center twin towers, the Pentagon and a 
     field in Shanksville, Pennsylvania. 3,000 of our fellow human 
     beings died in two hours. The nation's commercial aviation 
     system ground to a halt. Lower Manhattan was turned into a 
     war zone, shutting down the New York Stock Exchange for days 
     and causing tens of thousands of residents and workers to be 
     displaced. In nine months, an estimated 50,000 rescue and 
     recovery workers willingly exposed themselves to toxic 
     conditions to dig out the ravaged remains of their fellow 
     citizens buried in 1.8 million tons of twisted steel and 
     concrete.
       The American people were rightly outraged by this act of 
     war. Whether the cause was retribution or simple recognition 
     of our

[[Page S11156]]

     common humanity, the words ``Never Forget'' were invoked in 
     tearful or angry rectitude, defiantly written in the dust of 
     Ground Zero or humbly penned on makeshift memorials erected 
     all across the land. The country was united in its 
     determination that these acts should not go unmarked and 
     unpunished.
       Eight long years have passed since that dark and terrible 
     day. Sadly, some have forgotten the promises we made to those 
     whose lives were taken in such a cruel and vicious manner.
       We have not forgotten. We are the husbands and wives, 
     mothers and fathers, sons, daughters, sisters, brothers and 
     other family members of the victims of these depraved and 
     barbaric attacks, and we feel a profound obligation to ensure 
     that justice is done on their behalf. It is incomprehensible 
     to us that members of the United States Congress would 
     propose that the same men who today refer to the murder of 
     our loved ones as a ``blessed day'' and who targeted the 
     United States Capitol for the same kind of destruction that 
     was wrought in New York, Virginia and Pennsylvania, should be 
     the beneficiaries of a social compact of which they are not a 
     part, do not recognize, and which they seek to destroy: the 
     United States Constitution.
       We adamantly oppose prosecuting the 9/11 conspirators in 
     Article III courts, which would provide them with the very 
     rights that may make it possible for them to escape the 
     justice which they so richly deserve. We believe that 
     military commissions, which have a long and honorable history 
     in this country dating back to the Revolutionary War, are the 
     appropriate legal forum for the individuals who declared war 
     on America. With utter disdain for all norms of decency and 
     humanity, and in defiance of the laws of warfare accepted by 
     all civilized nations, these individuals targeted tens of 
     thousands of civilian non-combatants, brutally killing 3,000 
     men, women and children, injuring thousands more, and 
     terrorizing millions.
       We support Senate Amendment 2669 (pursuant to H.R. 2847, 
     the Commerce, Justice, Science Appropriations Act of 2010), 
     ``prohibiting the use of funds for the prosecution in Article 
     III courts of the United States of individuals involved in 
     the September 11, 2001 terrorist attacks.'' We urge its 
     passage by all those members of the United States Senate who 
     stood on the senate floor eight years ago and declared that 
     the perpetrators of these attacks would answer to the 
     American people. The American people will not understand why 
     those same senators now vote to allow our cherished federal 
     courts to be manipulated and used as a stage by the 
     ``mastermind of 9/11'' and his co-conspirators to condemn 
     this nation and rally their fellow terrorists the world over. 
     As one New York City police detective, who lost 60 fellow 
     officers on 9/11, told members of the Department of Justice's 
     Detainee Policy Task Force at a meeting last June, ``You 
     people are out of touch. You need to hear the locker room 
     conversations of the people who patrol your streets and fight 
     your wars.''
       The President of the United States has stated that military 
     commissions, promulgated by congressional legislation and 
     recently reformed with even greater protections for 
     defendants, are a legal and appropriate forum to try 
     individuals captured pursuant the 2001 Authorization for the 
     Use of Military Force Act, passed by Congress in response to 
     the attack on America. Nevertheless, on May 21, 2009, 
     President Obama announced a new policy that Al-Qaeda 
     terrorists should be tried in Article III courts ``whenever 
     feasible.''
       We strongly object to the President creating a two-tier 
     system of justice for terrorists in which those responsible 
     for the death of thousands on 9/11 will be treated as common 
     criminals and afforded the kind of platinum due process 
     accorded American citizens, yet members of Al Qaeda who 
     aspire to kill Americans but who do not yet have blood on 
     their hands, will be treated as war criminals. The President 
     offers no explanation or justification for this 
     contradiction, even as he readily acknowledges that the 
     9/11 conspirators, now designated ``unprivileged enemy 
     belligerents,'' are appropriately accused of war crimes. We 
     believe that this two-tier system, in which war criminals 
     receive more due process protections than would-be war 
     criminals, will be mocked and rejected in the court of world 
     opinion as an ill-conceived contrivance aimed, not at 
     justice, but at the appearance of moral authority.
       The public has a right to know that prosecuting the 9/11 
     conspirators in federal courts will result in a plethora of 
     legal and procedural problems that will severely limit or 
     even jeopardize the successful prosecution of their cases. 
     Ordinary criminal trials do not allow for the exigencies 
     associated with combatants captured in war, in which evidence 
     is not collected with CSI-type chain-of-custody standards. 
     None of the 9/11 conspirators were given the Miranda warnings 
     mandated in Article III courts. Prosecutors contend that the 
     lengthy, self-incriminating tutorials Khalid Sheikh Mohammed 
     and others gave to CIA interrogators about 9/11 and other 
     terrorist operations--called ``pivotal for the war against 
     Al-Qaeda'' in a recently released, declassified 2005 CIA 
     report--may be excluded in federal trials. Further, unlike 
     military commissions, all of the 9/11 cases will be 
     vulnerable in federal court to defense motions that their 
     prosecutions violate the Speedy Trial Act. Indeed, the judge 
     presiding in the case of Ahmed Ghailani, accused of 
     participating in the 1998 bombing of the American Embassy in 
     Kenya, killing 212 people, has asked for that issue to be 
     briefed by the defense. Ghailani was indicted in 1998, 
     captured in Pakistan in 2004, and held at Guantanamo Bay 
     until 2009.
       Additionally, federal rules risk that classified evidence 
     protected in military commissions would be exposed in 
     criminal trials, revealing intelligence sources and methods 
     and compromising foreign partners, who will be unwilling to 
     join with the United States in future secret or covert 
     operations if doing so will risk exposure in the dangerous 
     and hostile communities where they operate. This poses a 
     clear and present danger to the public. The safety and 
     security of the American people is the President's and 
     Congress's highest duty.
       Former Attorney General Michael Mukasey recently wrote in 
     the Wall Street Journal that ``the challenges of terrorism 
     trials are overwhelming.'' Mr. Mukasey, formerly a federal 
     judge in the Southern District of New York, presided over the 
     multi-defendant terrorism prosecution of Sheikh Omar Abel 
     Rahman, the cell that attacked the World Trade Center in 1993 
     and conspired to attack other New York landmarks. In addition 
     to the evidentiary problems cited above, he expressed concern 
     about courthouse and jail facility security, the need for 
     anonymous jurors to be escorted under armed guard, the 
     enormous costs associated with the use of U.S. marshals 
     necessarily deployed from other jurisdictions, and the danger 
     to the community which, he says, will become a target for 
     homegrown terrorist sympathizers or embedded Al Qaeda cells.
       Finally, there is the sickening prospect of men like Khalid 
     Sheikh Mohammed being brought to the federal courthouse in 
     Lower Manhattan, or the courthouse in Alexandria, Virginia, 
     just a few blocks away from the scene of carnage eight years 
     ago, being given a Constitutionally mandated platform upon 
     which he can mock his victims, exult in the suffering of 
     their families, condemn the judge and his own lawyers, and 
     rally his followers to continue jihad against the men and 
     women of the U.S. military, fighting and dying in the sands 
     of Iraq and the mountains of Afghanistan on behalf of us all.
       There is no guarantee that Mr. Mohammed and his co-
     conspirators will plead guilty, as in the case of Zacarias 
     Moussaoui, whose prosecution nevertheless took four years, 
     and who is currently attempting to recant that plea. Their 
     attorneys will be given wide latitude to mount a defense that 
     turns the trial into a shameful circus aimed at vilifying 
     agents of the CIA for alleged acts of ``torture,'' casting 
     the American government and our valiant military as a force 
     of evil instead of a force for good in places of the Muslim 
     World where Al Qaeda and the Taliban are waging a brutal war 
     against them and the local populations. For the families of 
     those who died on September 11, the most obscene aspect of 
     giving Constitutional protections to those who planned the 
     attacks with the intent of inflicting maximum terror on their 
     victims in the last moments of their lives will be the 
     opportunities this affords defense lawyers to cast their 
     clients as victims.
       Khalid Sheikh Mohammed and his co-conspirators are asking 
     to plead guilty, now, before a duly-constituted military 
     commission. We respectfully ask members of Congress, why 
     don't we let them?
           Respectfully submitted,
     (214 Family Members).
                                  ____


             [From the Wall Street Journal, Oct. 19, 2009]

             Civilian Courts Are No Place To Try Terrorists

                        (By Michael B. Mukasey)

       The Obama administration has said it intends to try several 
     of the prisoners now detained at Guantanamo Bay in civilian 
     courts in this country. This would include Khalid Sheikh 
     Mohammed, the mastermind of the Sept. 11, 2001 terrorist 
     attacks, and other detainees allegedly involved. The Justice 
     Department claims that our courts are well suited to the 
     task.
       Based on my experience trying such cases, and what I saw as 
     attorney general, they aren't. That is not to say that 
     civilian courts cannot ever handle terrorist prosecutions, 
     but rather that their role in a war on terror--to use an 
     unfashionably harsh phrase--should be, as the term ``war'' 
     would suggest, a supporting and not a principal role.
       The challenges of a terrorism trial are overwhelming. To 
     maintain the security of the courthouse and the jail 
     facilities where defendants are housed, deputy U.S. marshals 
     must be recruited from other jurisdictions; jurors must be 
     selected anonymously and escorted to and from the courthouse 
     under armed guard; and judges who preside over such cases 
     often need protection as well. All such measures burden an 
     already overloaded justice system and interfere with the 
     handling of other cases, both criminal and civil.
       Moreover, there is every reason to believe that the places 
     of both trial and confinement for such defendants would 
     become attractive targets for others intent on creating 
     mayhem, whether it be terrorists intent on inflicting 
     casualties on the local population, or lawyers intent on 
     filing waves of lawsuits over issues as diverse as whether 
     those captured in combat must be charged with crimes or 
     released, or the conditions of confinement for all prisoners, 
     whether convicted or not.
       Even after conviction, the issue is not whether a maximum-
     security prison can hold these defendants; of course it can. 
     But

[[Page S11157]]

     their presence even inside the walls, as proselytizers if 
     nothing else, is itself a danger. The recent arrest of U.S. 
     citizen Michael Finton, a convert to Islam proselytized in 
     prison and charged with planning to blow up a building in 
     Springfield, Ill., is only the latest example of that 
     problem.
       Moreover, the rules for conducting criminal trials in 
     federal courts have been fashioned to prosecute conventional 
     crimes by conventional criminals. Defendants are granted 
     access to information relating to their case that might be 
     useful in meeting the charges and shaping a defense, without 
     regard to the wider impact such information might have. That 
     can provide a cornucopia of valuable information to 
     terrorists, both those in custody and those at large.
       Thus, in the multidefendant terrorism prosecution of Sheik 
     Omar Abdel Rahman and others that I presided over in 1995 in 
     federal district court in Manhattan, the government was 
     required to disclose, as it is routinely in conspiracy cases, 
     the identity of all known co-conspirators, regardless of 
     whether they are charged as defendants. One of those 
     coconspirators, relatively obscure in 1995, was Osama bin 
     Laden. It was later learned that soon after the 
     government's disclosure the list of unindicted co-
     conspirators had made its way to bin Laden in Khartoum, 
     Sudan, where he then resided. He was able to learn not 
     only that the government was aware of him, but also who 
     else the government was aware of.
       It is not simply the disclosure of information under 
     discovery rules that can be useful to terrorists. The 
     testimony in a public trial, particularly under the probing 
     of appropriately diligent defense counsel, can elicit 
     evidence about means and methods of evidence collection that 
     have nothing to do with the underlying issues in the case, 
     but which can be used to press government witnesses to either 
     disclose information they would prefer to keep confidential 
     or make it appear that they are concealing facts. The 
     alternative is to lengthen criminal trials beyond what is 
     tolerable by vetting topics in closed sessions before they 
     can be presented in open ones.
       In June, Attorney General Eric Holder announced the 
     transfer of Ahmed Ghailani to this country from Guantanamo. 
     Mr. Ghailani was indicted in connection with the 1998 bombing 
     of U.S. Embassies in Kenya and Tanzania. He was captured in 
     2004, after others had already been tried here for that 
     bombing.
       Mr. Ghailani was to be tried before a military commission 
     for that and other war crimes committed afterward, but when 
     the Obama administration elected to close Guantanamo, the 
     existing indictment against Mr. Ghailani in New York 
     apparently seemed to offer an attractive alternative. It may 
     be as well that prosecuting Mr. Ghailani in an already 
     pending case in New York was seen as an opportunity to 
     illustrate how readily those at Guantanamo might be 
     prosecuted in civilian courts. After all, as Mr. Holder said 
     in his June announcement, four defendants were ``successfully 
     prosecuted'' in that case.
       It is certainly true that four defendants already were 
     tried and sentenced in that case. But the proceedings were 
     far from exemplary. The jury declined to impose the death 
     penalty, which requires unanimity, when one juror disclosed 
     at the end of the trial that he could not impose the death 
     penalty--even though he had sworn previously that he could. 
     Despite his disclosure, the juror was permitted to serve and 
     render a verdict.
       Mr. Holder failed to mention it, but there was also a fifth 
     defendant in the case, Mamdouh Mahmud Salim. He never 
     participated in the trial. Why? Because, before it began, in 
     a foiled attempt to escape a maximum security prison, he 
     sharpened a plastic comb into a weapon and drove it through 
     the eye and into the brain of Louis Pepe, a 42-year-old 
     Bureau of Prisons guard. Mr. Pepe was blinded in one eye and 
     rendered nearly unable to speak.
       Salim was prosecuted separately for that crime and found 
     guilty of attempted murder. There are many words one might 
     use to describe how these events unfolded; ``successfully'' 
     is not among them.
       The very length of Mr. Ghailani's detention prior to being 
     brought here for prosecution presents difficult issues. The 
     Speedy Trial Act requires that those charged be tried within 
     a relatively  short time after they are charged or captured, 
     whichever comes last. Even if the pending charge against 
     Mr. Ghailani is not dismissed for violation of that 
     statute, he may well seek access to what the government 
     knows of his activities after the embassy bombings, even 
     if those activities are not charged in the pending 
     indictment. Such disclosures could seriously compromise 
     sources and methods of intelligence gathering.
       Finally, the government (for undisclosed reasons) has 
     chosen not to seek the death penalty against Mr. Ghailani, 
     even though that penalty was sought, albeit unsuccessfully, 
     against those who stood trial earlier. The embassy bombings 
     killed more than 200 people.
       Although the jury in the earlier case declined to sentence 
     the defendants to death, that determination does not bind a 
     future jury. However, when the government determines not to 
     seek the death penalty against a defendant charged with 
     complicity in the murder of hundreds, that potentially 
     distorts every future capital case the government prosecutes. 
     Put simply, once the government decides not to seek the death 
     penalty against a defendant charged with mass murder, how can 
     it justify seeking the death penalty against anyone charged 
     with murder--however atrocious--on a smaller scale?
       Even a successful prosecution of Mr. Ghailani, with none of 
     the possible obstacles described earlier, would offer no 
     example of how the cases against other Guantanamo detainees 
     can be handled. The embassy bombing case was investigated for 
     prosecution in a court, with all of the safeguards in 
     handling evidence and securing witnesses that attend such a 
     prosecution. By contrast, the charges against other detainees 
     have not been so investigated.
       It was anticipated that if those detainees were to be tried 
     at all, it would be before a military commission where the 
     touchstone for admissibility of evidence was simply relevance 
     and apparent reliability. Thus, the circumstances of their 
     capture on the battlefield could be described by affidavit if 
     necessary, without bringing to court the particular soldier 
     or unit that effected the capture, so long as the affidavit 
     and surrounding circumstances appeared reliable. No such 
     procedure would be permitted in an ordinary civilian court.
       Moreover, it appears likely that certain charges could not 
     be presented in a civilian court because the proof that would 
     have to be offered could, if publicly disclosed, compromise 
     sources and methods of intelligence gathering. The military 
     commissions regimen established for use at Guantanamo was 
     designed with such considerations in mind. It provided a way 
     of handling classified information so as to make it available 
     to a defendant's counsel while preserving confidentiality. 
     The courtroom facility at Guantanamo was constructed, at a 
     cost of millions of dollars, specifically to accommodate the 
     handling of classified information and the heightened 
     security needs of a trial of such defendants.
       Nevertheless, critics of Guantanamo seem to believe that if 
     we put our vaunted civilian justice system on display in 
     these cases, then we will reap benefits in the coin of world 
     opinion, and perhaps even in that part of the world that 
     wishes us ill. Of course, we did just that after the first 
     World Trade Center bombing, after the plot to blow up 
     airliners over the Pacific, and after the embassy bombings in 
     Kenya and Tanzania.
       In return, we got the 9/11 attacks and the murder of nearly 
     3,000 innocents. True, this won us a great deal of goodwill 
     abroad--people around the globe lined up for blocks outside 
     our embassies to sign the condolence books. That is the kind 
     of goodwill we can do without.

  Mr. McCAIN. Mr. President, I urge my colleagues, who will be made 
aware of a letter from Mr. Holder and Secretary Gates, who are urging 
defeat of this amendment, to look at the views of the previous Attorney 
General of the United States, which are diametrically opposed.
  The 9/11 families say--and I am sure they represent all of the 9/11 
families--

       We adamantly oppose prosecuting the 9/11 conspirators in 
     Article III courts, which would provide them with the very 
     rights that may make it possible for them to escape the 
     justice which they so richly deserve. We believe that 
     military commissions, which have a long and honorable history 
     in this country dating back to the Revolutionary War, are the 
     appropriate legal forum for the individuals who declared war 
     on America. With utter disdain for all norms of decency and 
     humanity, and in defiance of the laws of warfare accepted by 
     all civilized nations, these individuals targeted tens of 
     thousands of civilian non-combatants, brutally killing 3,000 
     men, women and children, injuring thousands more, and 
     terrorizing millions.

  I would be glad to respond to a question from the Senator from 
Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Arizona. I would 
ask the Senator if he would be kind enough to ask unanimous consent 
that I could follow him, speaking after his remarks.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the Senator 
from Illinois follow me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, these are the 9/11 families. All Americans 
were impacted by 9/11, the 9/11 families in the most tragic fashion. 
This is a very strong letter from them concerning the strong desire 
that these 9/11 conspirators not be tried in article III courts but be 
tried according to the military commissions.
  The 9/11 victims experienced an act of war against the United States, 
carried out not on some distant shore but in our communities on the 
very symbols of our national power. Because it involved attacks on 
innocent civilians and innocent civilian targets, it is a war crime. It 
is a war crime that was committed by the 9/11 terrorists. It is 
important that we call things what they are and not gloss over the 
essence of these events, even though they occurred 8 years ago.
  In response to the attacks, the Congress quickly and overwhelmingly 
passed the Authorization for Use of

[[Page S11158]]

Military Force giving the President the authority to ``use all 
necessary and appropriate force against those nations, organizations, 
or persons he determines planned, authorized, committed, or aided the 
terrorist attacks that occurred on September 11, 2001. . . .'' The 
Senate passed this legislation unanimously.
  The Authorization for Use of Military Force recognized the true 
nature of these attacks and committed the entire resources of the 
United States to our self-defense in light of the grave threat to our 
national security and foreign policy. The United States does not go to 
war over a domestic criminal act, nor should it. It was clearly 
understood at that time that far more was at stake. We sent our sons 
and daughters off to war, where they have been bravely risking their 
lives and futures on our behalf for the last 8 years.
  Given the facts and history of the 
9/11 attacks, we should not deal with the treachery and barbarism of 
the slaughter of thousands of innocent civilians as a matter of law 
enforcement in the ordinary sense. To do so would belittle the events 
that transpired, the symbolism and purpose of the attacks, the huge 
number of lives that were lost, and the threat posed to the United 
States--which continues in the caves and sanctuaries of al-Qaida to 
this day.
  During my life, I have been a warrior, although that seems a long 
time ago now. I have some experience in the reality of combat and the 
suffering it brings. I know something of the law of war, having fought 
constrained by it and having lived through it, with the help of my 
comrades and my faith, times when my former enemy felt unconstrained by 
it.
  No, the attacks of 9/11 were not a crime; they were a war crime. 
Together with my colleagues in Congress, I have worked closely with the 
President to provide a means to address war crimes committed against 
this country in a war crimes tribunal--the Military Commissions Act of 
2009. It was designed specifically for this purpose. It should be used 
not to mete out a guilty verdict and sentence that could not be 
achieved in Federal criminal court but to call things what they are, to 
be unshakable in our resolve to respond to the unprecedented attacks of 
9/11 consistent with the Authorization for Use of Military Force and to 
tell this and any future enemy that when they attack our innocent 
civilians at home, we will not be sending the police after them to make 
an arrest.
  By denying funds to the Department of Justice to prosecute these 
horrendous crimes in article III courts, I do not mean these outrages 
against our country and its citizens should go unpunished. In fact, I 
have long argued that justice in these cases was long overdue and that 
prosecutions should be pursued as expeditiously as possible. Rather, my 
support for this amendment is based on my unshakable view that these 
events were acts of war and war crimes and that the proper forum for 
bringing the war criminals to justice is a military tribunal consistent 
with longstanding traditions in this country that date back to George 
Washington's Continental Army during the founding of the Republic.
  For that reason, I urge my colleagues to support this amendment so 
that the prosecution of war crimes will take place in the traditional 
and long-accepted forum of a military tribunal, as the Congress 
overwhelmingly enacted in 2006 and which the National Defense 
Authorization Act for 2010 amended and improved in a statute that was 
enacted into law by President Obama just days ago.
  Again, I hope we will, as we have in the past, listen to the families 
of 9/11. From the trauma and sorrow of the tragedy they experienced in 
the loss of their families, they became a force. They became a force 
that without them we would have never had the 9/11 Commission, we would 
have never been able to make the reforms that arguably have made our 
Nation much safer.
  Now, today, the families are standing up and saying: Try these war 
criminals according to war crimes which they committed--the heinous 
acts of 9/11, which I know Americans will never forget.
  Mr. President, I hope we will vote in favor of the amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I have great respect for my colleagues 
from Arizona and Connecticut, but I respectfully disagree with them on 
this amendment.
  If this amendment passes, it will say that the only people in the 
world who cannot be tried in the courts of America for crimes of 
terrorism are those who are accused of terrorism on 9/11. Think about 
that for a moment. The argument is being made that we should say to the 
President and Attorney General that when they plot their strategy to go 
after the men and women responsible for 9/11, we will prohibit them, by 
the language of this amendment, from considering the prosecution of 
these terrorists in the courts of America.
  What are the odds of prosecuting a terrorist successfully in the 
courts of America, our criminal courts, as opposed to military 
commissions, commissions that have been created by law, argued before 
the Supreme Court, debated at great length? What are the odds of a 
successful prosecution of a terrorist in the courts of our land as 
opposed to a military commission? I can tell you what the odds are. 
They are 65 to 1 in favor of prosecution in our courts. Mr. President, 
195 terrorists have been prosecuted in our courts since 9/11. Three 
have been prosecuted by military commissions. But the offerers of this 
amendment want to tie the hands of our Department of Justice and tell 
them: You cannot spend a penny, not one cent, to pursue the prosecution 
of a terrorist in an American court.
  Who disagrees with this amendment? It is not just this Senator from 
Illinois. It would be our Secretary of Defense, Robert Gates, and our 
Attorney General, Eric Holder. Here is what they said in a letter to 
all Members of the Senate about this amendment:

       We write to oppose the amendment proposed by Senator Graham 
     (on behalf of himself and Senators McCain and Lieberman). . . 
     . This amendment would prohibit the use of Department of 
     Justice funds ``to commence or continue the prosecution in an 
     Article III court of the United States of an individual 
     suspected of planning, authorizing, organizing, committing, 
     or aiding the attacks on the United States and its citizens 
     that occurred on September 11, 2001.''

  They go on to say:

       As you know, both the Department of Justice and the 
     Department of Defense have responsibility for prosecuting 
     alleged terrorists. Pursuant to a joint prosecution protocol, 
     our departments are currently engaged in a careful case-by-
     case evaluation of the cases of Guantanamo detainees who have 
     been referred for possible prosecution, to determine whether 
     they should be prosecuted in an Article III, court or by 
     military commission. We are confident that the forum 
     selection decisions that are made pursuant to this process 
     will best serve our national security interests.
       We believe it would be unwise, and would set a dangerous 
     precedent, for Congress to restrict the discretion of either 
     department to fund particular prosecutions. The exercise of 
     prosecutorial discretion has always been and should remain an 
     Executive Branch function. We must be in a position to use 
     every lawful instrument of national power--including both 
     courts and military commissions--to ensure that terrorists 
     are brought to justice and can no longer threaten American 
     lives.
       For these reasons, we respectfully request that you oppose 
     this amendment.

  This amendment would hinder President Obama's efforts to combat 
terrorism. That is why the Secretary of Defense and the Attorney 
General have written to each one of us urging us to vote no.
  The Graham amendment would be an unprecedented intrusion into the 
authority of the executive branch of our government to combat 
terrorism.
  There is a great argument. For 8 long years, Republicans argued it 
was inappropriate to interfere in any way with President Bush's 
Commander in Chief authority. Time and again, we were told by our 
Republican colleagues that it is inappropriate and even 
unconstitutional for Congress to ask basic questions about the Bush 
administration's policies on issues such as Iraq, Guantanamo, torture, 
or warrantless wiretapping. Time and again, we were told that Congress 
should defer to the Defense Department's expertise.
  Let me give one example. On September 19, 2007, the author of this 
amendment, Senator Graham, said, and I quote:

       The last thing we need in any war is to have the ability of 
     535 people who are worried about the next election to be able 
     to micromanage how you fight the war. This is not only 
     micromanagement, this is a constitutional shift of power.


[[Page S11159]]


  Just 2 years later, a different President of a different party, and 
my Republican colleagues have a different view. My colleagues think 
Congress should not defer to that very same Defense Secretary, Robert 
Gates, and they think it is not only appropriate but urgent for 
Congress to tie the hands of this administration, making it more 
difficult to bring terrorists to justice. Clearly, there is a double 
standard at work.
  Some of my Republican colleagues argue that Federal courts are not 
well suited to prosecute terrorists, and terrorists should only be 
prosecuted by military commissions. But look at the facts. Since 9/11, 
195 terrorists have been convicted in Federal courts. Three have been 
convicted by military commissions. Again, the odds are 65 to 1 that if 
we want to find a terrorist guilty and be incarcerated for endangering 
or killing Americans, it is better to go to a regular court in America 
than to a military commission. That is the record since 9/11.
  According to the Justice Department, since January 1 of this year, 
more than 30 terrorists have been successfully prosecuted or sentenced 
in Federal courts. I would like to ask my colleagues behind this 
amendment and their inspiration, the Wall Street Journal: Was this a 
mistake, taking accused terrorists into our courts and successfully 
prosecuting them under the laws of America?
  Clearly, it was not. The Department of Justice made the right 
decision effectively prosecuting these individuals and, equally 
important, showing to the world we would take these people accused of 
terrorism into the very same system of justice that applies to every 
one of us as American citizens, hold them to the same standards of 
proof, give them the rights that are accorded to them in our court 
system, and come to a just verdict.
  That is an important message. It is a message which says we can treat 
these individuals in our judicial system in a fair way and come to a 
fair conclusion and find justice, and we did--195 times since 9/11, 30 
times just this year.
  Recently, the administration transferred Ahmed Ghailani to the United 
States to prosecute him for involvement in the 1998 bombings of our 
Embassies in Kenya and Tanzania. Those bombings killed 224 people, 
including 12 Americans. My colleagues on the other side of the aisle 
have been very critical of this administration's decision to bring this 
man to justice in the courts of America. One of them, a House 
Republican Member from Virginia, Eric Cantor, said, and I quote:

       We have no judicial precedence for the conviction of 
     someone like this.

  That is from Congressman Cantor. Unfortunately, the Congressman is 
wrong. There are many precedents for convicting terrorists in U.S. 
courts. I will name a few: Ramzi Yousef, the mastermind of the 1993 
World Trade Center bombing; Omar Abdel Rahman, the so-called Blind 
Sheikh; Richard Reid, the Shoe Bomber; Zacarias Moussaoui; Ted 
Kaczynski, the Unabomber; and Terry Nichols, the Oklahoma City 
coconspirator. They were all accused of terrorism. Some were citizens 
of the United States, some not. All were tried in the same article III 
courts which this amendment would prohibit--would prohibit--our 
President and Attorney General from using.
  In fact, there is precedent for convicting terrorists who were 
involved in the bombing of U.S. Embassies in Tanzania and Kenya, the 
same attack in which Ahmed Ghailani was allegedly involved. In 2001, 
four men were sentenced to life without parole at the Federal 
courthouse in Lower Manhattan, the same court in which Mr. Ghailani 
will be tried. To argue that we cannot successfully prosecute a 
terrorist in American courts is to ignore the truth and ignore history.
  Susan Hirsch lost her husband in the Kenya Embassy bombing. She 
testified at the sentencing hearing for the four terrorists who were 
convicted in 2001. Mrs. Hirsch said she supports the Obama 
administration's decision to prosecute Ahmed Ghailani for that same 
bombing that took the life of her husband. She said, and I quote:

       I am relieved we are finally moving forward. It is really, 
     really important to me that anyone we have in custody accused 
     of acts related to the deaths of my husband and others be 
     held accountable for what they have done.

  Mrs. Hirsch also said she believes it is safe to try Ahmed Ghailani 
in a Federal court. I quote her again: ``I have some trust in the New 
York Police Department'' based on her experience at the 2001 trial.
  Listen to what she said about the critics of this administration: 
``They're just raising fear and alarm.'' This is from the widow of a 
terrorist bombing where the terrorists have been brought to justice in 
the courts of our land.
  I agree with Susan Hirsch. I have faith in the New York Police 
Department. I have faith in our law enforcement agencies, I have faith 
in our courts, and I have faith in our system of justice.
  We know how to prosecute terrorists, and we know how to hold them 
safely. We have living proof in 195 prosecutions since 9/11 and 350 
convicted terrorists being held today in America's jails across the 
United States.
  The Graham amendment is not about whether military commissions are 
superior to Federal courts. The amendment doesn't just express a 
preference for one over the other. The amendment expressly prohibits 
this administration and the Department of Justice from trying a 
terrorist in a Federal court.
  The truth is, President Obama may choose to try the 9/11 terrorists 
in military commissions. That should be the President's decision. If it 
is his decision that it is in the interests of the security of the 
United States or in a successful prosecution to turn to a military 
commission over a regular Federal court in America, that should be the 
President's decision, the decision of his Attorney General, the 
decision of the prosecutors, not the decision of Members of the Senate 
who do not know the facts of the case and don't know the likelihood of 
prosecution.

  Defense Secretary Gates and Attorney General Holder have developed a 
joint protocol to determine whether individual cases should be tried in 
Federal courts or commissions. The President worked closely with 
Congress to reform the military commissions so he would have another 
lawful tool to use in the fight against terrorism. The two lead 
cosponsors of the amendment before us, Senator McCain and Senator 
Graham, who is on the Senate floor, were very involved in that effort, 
as was Senator Levin of Michigan, the chairman of our Armed Services 
Committee. They sat down to rewrite the rules for military commissions 
because, frankly, we haven't had a great deal of success with 
prosecutions of terrorists with military commissions. Only three cases 
have gone before the Supreme Court, raising issues about military 
commissions, the standard of justice, due process, and fairness.
  Now there is a new effort by President Obama, with the bipartisan 
help of Members of the Senate. So I am not standing here in criticism 
of the use of military commissions, but I am standing here taking 
exception to the point of view that we should preclude prosecutions in 
any other forum than military commissions of the terrorists of 
9/11. President Obama may very well choose to try Khalid Sheikh 
Mohammad and other terrorists in military commissions. That should be 
his choice. Let him choose the forum, the most effective forum to 
pursue justice and to protect America from future acts of terrorism.
  In their letter to Senators Reid and McConnell, Secretary Gates and 
Attorney General Holder said it well, and I quote them again:

       We must be in a position to use every lawful instrument of 
     national power, including both courts and military 
     commissions, to ensure that terrorists are brought to justice 
     and can no longer threaten American lives.

  The decision may be reached at some future date by the 
administration, with the concurrence of the Secretary of Defense and 
the Attorney General, that it is a better forum to move to military 
commissions for a variety of reasons. They could be issues of national 
security. They could be issues of evidence.
  But do we want to take away from them with this pending amendment the 
right to make that decision? Why would Congress choose to take away one 
of these lawful instruments from the President, our Commander in Chief? 
Don't we want the President to have the use of every lawful tool to 
bring these terrorists to justice?
  One word in closing. I have the greatest respect for the families of 
9/11.

[[Page S11160]]

Those who have spoken out on behalf of this amendment, I respect them 
greatly. They have been a force in America since the untimely and 
tragic deaths of members of their families. They forced on the previous 
administration a dramatic investigation of 9/11 and where our 
government had failed and what we could do to improve things. They have 
become a voice and a force in so many other respects since that awful 
day of 9/11. But they don't speak with one voice on this issue. Many 
support the pending amendment; others see it differently.
  Susan Hirsch, whose husband was lost in a terrorism bombing in 
Africa, clearly sees it differently than these survivors of 9/11. With 
the greatest respect for those who support this amendment, I would say 
there are others who see this in a much different light.
  I urge my colleagues to reject the Graham amendment. It is an 
unprecedented effort to interfere with the executive branch's 
prosecutorial discretion and President Obama's genuine efforts to 
combat terrorism.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I appreciate Senator Levin allowing me to 
speak now. I know we are going back and forth. I appreciate that.
  To my friend, Senator Durbin, it is my honest desire that as we move 
forward with what to do with Guantanamo Bay, we can find some 
bipartisanship and close the facility. I am one of the few Republicans 
who expressed that thought, simply because I have listened enough to 
our commanders to know--General Petreaus, Admiral Mullen, and others--
that Guantanamo Bay has become a symbol for recruitment and propaganda 
usage against American forces in the war on terror.
  It is probably the best run jail in the world right now, to those of 
us who have been down there. To the ground forces, I wish to 
acknowledge your patriotism and your service. It is a tough place to do 
duty because there are some pretty tough characters down there.
  At the end of the day, I have tried to be helpful where I could, and 
I will tell you in a little detail why I am offering this amendment. 
But my hope was that when President Obama was elected, we could find a 
way to reform Guantanamo Bay policy, detainee policy, because I have 
been a military lawyer for 25 years. I do understand detainee policy 
affects the war effort. If we mess it up, if we abuse detainees, we can 
turn populations against us that will be helpful in winning the war.
  One of the great things that happened in World War II is that we had 
over 400,000 German prisoners, Japanese prisoners housed in the United 
States. We took 40,000 hard-core Nazis from the British and put them in 
American military jails in the United States. So this idea that we 
can't find a place for 200 detainees in America, I don't agree with. We 
have done that before. These people are not 10 feet tall. They are 
definitely dangerous, but as a nation I believe we could start over.
  By closing Guantanamo Bay in a logical, rational way, we would be 
improving our ability to effect the outcome of the war in the Mideast 
because we would be taking a tool away from the enemy.
  President Obama and Senator McCain both, when they were candidates, 
agreed with the idea of closing Guantanamo Bay and reforming 
interrogation policy.
  To most Americans, it is kind of: Why are we worried about what we do 
with these guys, because they would cut our heads off. You are 
absolutely right. It is not lost upon me or any other military member 
out there that the enemy we are dealing with knows no boundaries and 
they are barbarians and brutal.
  The question is not about them but about us. The fact that we are a 
civilized people is not a liability, it is an asset. So when you 
capture a member of al-Qaida, I have always believed it becomes about 
us, not them. We need interrogation techniques that will allow us to 
get good intelligence and make the country safe. We need to understand 
we are at war, and the people we are dealing with are some of the 
hardest, meanest people known since the Nazis.
  But if you try to say, in the same breath, that anything goes to get 
that information, it will come back to haunt you. So some of the 
interrogation techniques we have used that come from the Inquisition 
got us some information, but I can assure you it has created a problem. 
Ask anybody in the Mideast who has to deal with America. They will tell 
you this has been a problem. You don't need to do that to protect this 
country. You can have interrogation techniques that get you good 
information but also adhere to all your laws.
  As to the trials, some people wonder: Why do we care about this? They 
wouldn't give us a trial. You are absolutely right. The fact that our 
country will give the worst terrorist in the world a trial with a 
defense attorney, for free; a judge who is going to base his decision 
on facts and law and not prejudice; a jury, where the press can show up 
and watch the trial; and the ability to appeal the result, makes us 
stronger, not weaker. So count me in for starting over with Guantanamo 
Bay, with a new legal process that recognizes we have had abuses in the 
past and we are going to chart a new course.
  Regarding the Military Commission Act that just passed the Congress, 
I wish to say publicly that Senator Levin was a great partner to work 
with. The military commission system we have in place today has been 
reformed. I think it is a model justice system that I will put up 
against any in the world, including the International Criminal Court at 
the Hague, in terms of due process rights for detainees. It also 
recognizes we are at war. This military commission system, while 
transparent, with the ability to appeal all verdicts to the civilian 
system, has safeguards built in it to recognize we are at war and how 
you handle evidence and access the evidence and intelligence sources 
are built into that military system that are not built into civilian 
courts.
  Since this country was founded, we have historically used military 
commissions as a venue to try suspected war criminals caught on 
battlefields. Why have I brought forth this amendment? I have been told 
by too many people, with reliable access, that the administration is 
planning on trying Khalid Shaikh Mohammed--the mastermind of 9/11, the 
perpetrator of the attacks against our country in Washington, 
Pennsylvania, and New York--in Federal court in the lower district of 
Manhattan. If that is true, you have lost me as a partner.
  Why do I say that? It would be the biggest mistake we could possibly 
make, in my view, since 9/11. We would be giving constitutional rights 
to the mastermind of 9/11, as if he were any average, everyday criminal 
American citizen. We would be basically saying to the mastermind of 9/
11, and to the world at large, that 9/11 was a criminal act, not an act 
of war.
  I do believe in prosecutorial discretion and executive branch 
discretion. I introduced this amendment reluctantly but with all the 
passion and persuasion I can muster to tell my colleagues: Act now, so 
we will get this right later. Congress said we are not going to fund 
the closing of Gitmo. Well, is Congress meddling in the ability of the 
Commander in Chief to run a military jail? Hell, yes, because we don't 
know what the plan is. We have an independent duty as Members of 
Congress to make sure there is balance. This Nation is at war. It is OK 
for us to speak up. As a matter of fact, it has been too much passing--
too many passes during the Bush administration, where Congress sort of 
sat back and watched things happen. Don't watch this happen. Get on the 
record now, before it is too late, to tell the President we are not 
going to sit by as a body and watch the mastermind of 9/11 go into 
civilian court and criminalize this war. If he goes to Federal court, 
here is what awaits: a chaos zoo trial.
  Yes, we have taken people into Federal court before for acts of 
terrorism. We took the Blind Sheik--the first guy to try to blow up the 
World Trade Center--and put him in civilian court. We treated these 
people as common criminals. What a mistake we made. What if we had 
treated them as warriors rather than a guy who robbed a liquor store? 
Where would we have been in 2001 if we had the foresight in the 1990s 
to recognize that we are at war and these people are not some foreign 
criminal cartel; they are warriors bent on our destruction who have 
been planning for

[[Page S11161]]

years to attack this country and are planning, as I speak, to attack us 
again?
  We are not fighting crime. We are fighting a war. The war is not 
over. What happened in the Blind Sheik trial? Because it was a civilian 
court, built around trying common criminals, the court didn't have the 
protections military commissions will have to protect this Nation's 
secrets and classified information. As a result of that trial, the 
unindicted coconspirator list was provided to the defense as part of 
discovery in a Federal civilian criminal court. That unindicted 
coconspirator list was an intelligence coup for the enemy. It went from 
the defense counsel, to the defendant, to the Mideast. Al-Qaida was 
able to understand, from that trial, whom we were looking at and whom 
we had our eye on.
  During the 1990s, we tried to treat these terrorist warriors as just 
some other form of crime. It was a mistake. Don't repeat it. If you 
take Khalid Shaikh Mohammed, the mastermind of 9/11, and put him in 
Federal civilian court, you will have learned nothing from the 1990s. 
You will have sent the wrong signal to the terrorists and to our own 
people.
  Judge Mukasey, who presided over the Blind Sheik trial, wrote an op-
ed piece about how big a mistake it would be to put the 9/11 
coconspirators into Federal court. He went into great detail about the 
problems you would have trying these people in a civilian court. He 
became our Attorney General. So if you don't listen to me, listen to 
the judge who presided over the trial in the 1990s.
  I don't know what they are going to do in the Obama administration. 
If I believed they were going to do something other than take Khalid 
Shaikh Mohammed to Federal court in New York, I would not introduce 
this amendment. I know this is not a cavalier thing to do. I have taken 
some grief for trying to help the President form new policies with 
Guantanamo Bay and reject the arguments made by some of my dear friends 
that these people are too dangerous to bring to the United States. We 
can find a way to bring them to the United States; we just have to be 
smart about it.
  To our military men and women who will be administering the 
commission, my biggest fear has always been that the military 
commission system will become a second-class justice system. Nothing 
could be further from the truth. The men and women who administer 
justice in the military commission system are the same judge advocates 
and jurors who administer justice to our own troops. The Judge Advocate 
General of the Navy said the new military commission system is such 
that he would not hesitate to have one of our own tried in it.
  We will gain nothing, in terms of improving our image, by sending the 
mastermind of 9/11 to a New York civilian court, giving him the same 
constitutional rights as anybody listening to me in America who is a 
citizen. The military commission system will be transparent. He will 
have his say in court. He will have the ability to appeal a conviction 
to our civilian judges. He will be defended by a military lawyer--or 
private attorney, if he wants to be. He will be presumed innocent until 
found guilty. It will be required by the ``beyond a reasonable doubt'' 
standard for him to be found guilty of anything.
  For those who are wondering about military commissions, I can tell 
you the bill we have produced I will put up against any system in the 
world. To those who think it is no big deal to send Khalid Shaikh 
Mohammed to Federal court, I could not disagree with you more. What you 
will have done is set in motion the dynamic that led to criminalizing 
the war in the 1990s. You will have lost focus, yet again. You will 
have been lured into the sense that we are not at war, that these are 
just a bunch of bad people committing crimes. The day we take the 
mastermind of 9/11 and put him in Federal court, who the hell are you 
going to try in the military commission? How can you tell that detainee 
you are an enemy combatant, you are a bad guy? You are at war, but the 
guy who planned the whole thing is just a common criminal. What a 
mistake we would make.
  It is imperative this Nation have a legal system that recognizes we 
are at war and that we have rules to protect this country's national 
security balance against the interests and the rights of the accused 
detainee. The military commission forum has created that balance. It is 
a system built around war, a system built around the rules of military 
law, a system that recognizes the difference between a common criminal 
and a warrior, a system that understands military intelligence is 
different than common evidence. If we do not use that system for the 
guy who planned 9/11, we will all regret it.
  My amendment is limited in scope. It is a chance for you, as a Member 
of the Senate, to speak up about what you would like to see happen as 
this Nation moves forward and our desire to correct past mistakes and 
defend this Nation, which is still at war this very day. It is a chance 
for you to have a say, on behalf of your constituents, as to how they 
would like to see this Nation defend itself.
  I argue that most Americans--not just the 9/11 families--would be 
very concerned to learn that the man who planned the attacks that 
killed 3,000 of our fellow citizens--who would do it again tomorrow--is 
going to be treated the same as any other criminal. No good will come 
from that. You will have compromised the military commission system 
beyond repair. You will have adopted the law enforcement model that 
failed us before, and we will not be a better people.
  I, along with Senator Levin, was at Guantanamo Bay the day Khalid 
Shaikh Mohammed appeared before the Combat Status Review Tribunal. We 
were in the next room. We listened on a monitor. You could see him and 
could hear the chains rattle next door when he went through great 
detail about 9/11 and all the other acts of terrorism he planned 
against our country.
  I never will forget when he told the military judge that he was a 
high-ranking commander in the al-Qaida military organization and he 
appreciated being referred to as a military commander. Some would say: 
You don't want to elevate this guy. What I would say is you want to 
understand who he is. If you think he is a common criminal, no 
different than any other person who wants to hurt people, you have made 
a mistake.
  Khalid Shaikh Mohammed is bent on our destruction. He did not attack 
us for financial gain. He attacked us because he hates us. He is every 
bit as dangerous as the Nazis. These people we are fighting are very 
dangerous people. I am insistent they get a trial consistent with our 
values, that they do not get railroaded, that they get a chance to 
defend themselves. The media will see how the trial unfolds and you can 
see most of it, if not all of it. But I am also insistent that we not 
take our eye off the ball. It has been a long time since we have been 
attacked. For a lot of people--those who were on the front lines of 9/
11--they relive it every night. It replays itself over and over every 
night of their lives.
  For the rest of us, please do not lose sight of the fact that this 
country is engaged in an armed conflict with an enemy that knows no 
boundaries, has no allegiance to anything beyond their radical 
religion, and is conspiring to attack us as I speak.
  When we try them, we need to understand that the trial itself is part 
of the war effort. How we do the trial can make us safer or it can make 
us weaker. If we criminalize this war, it would take the man who 
planned the attacks of 9/11 and put him in civilian court. It is going 
to be impossible with a straight face to take somebody under him and 
put him in a military court. And the day you put him back in civilian 
court, you are going to create the problems Judge Mukasey warned us 
against. You are going to have evidence compromised and you are going 
to regret it.
  I hope to continue to work with the administration to find a way to 
close Guantanamo Bay, to create a transparent legal system that will 
allow every detainee their day in court, due process rights they 
deserve based on our law, not based on what they have done but based on 
who we are as a people.
  The 20th hijacker said this in Federal court--the victims were 
allowed to testify about the impact of 9/11. They had a U.S. Navy 
officer talking about being at the Pentagon and the impact on her

[[Page S11162]]

life and on her friends. During the testimony, the officer started to 
cry. Here is what the defendant said, Moussaoui, the 20th hijacker:

       I think it was disgusting for a military person to pretend 
     that they should not be killed as an act of war. She is 
     military.

  It was a Navy female officer.

       She should expect that the people who are at war with her 
     will try to kill her.

  This is the 20th hijacker in civilian court:

       I will never, I will never cry because an American bombed 
     my camp.

  If you have any doubt that we are at war, the one thing you ought to 
be certain of, they have no doubt that they are at war with us.
  The one thing the men and women who go off to fight this war should 
expect of their government and of their Congress is to watch their back 
the best we can. We would be doing those men and women a great 
disservice if we put the mastermind of 9/11, who killed the friends of 
this Navy officer, in a civilian court that could lead to compromising 
events that would make their job harder. We would be doing them a 
disservice to act on our end as if we are not at war.
  Mr. President, I say to my colleagues, they have a chance to speak. 
They have a chance to be on the record for their constituents to send a 
signal that needs to be sent before it is too late. Here is what I ask 
them to say with their vote: I believe we are at war and that the legal 
system we are going to use to try people who attacked this country and 
killed 3,000 American citizens should be a military legal system, 
consistent with us being at war. I will not, with my vote, go back to 
the law enforcement model that jeopardized our national security back 
in the nineties. I will insist that these detainees have a full and 
fair trial and that they be treated appropriately. But I will not, with 
my vote, take the mastermind of 9/11, the man who planned the attacks, 
who would do it tomorrow, and give him the same constitutional rights 
as an average, everyday American in a legal system that is not built 
around being at war.
  If they will say that, we will get a good outcome. If they 
equivocate, we are slowly but surely going to create a legal hodgepodge 
that will come back to haunt us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, the amendment that has been sponsored by 
Senators Graham, McCain, Lieberman, and Webb is wrong and it is 
unnecessary. It would, as Senator Graham said, prohibit the prosecution 
of any individual suspected of involvement with the September 11 
attacks against the United States from being tried in our article III 
courts.
  The idea that we cannot try a terrorist and mass murderer in our 
courts is beneath the dignity of this great country. Timothy McVeigh 
was one of the greatest mass murderers this Nation has ever known and 
we had no difficulty trying him and convicting him and executing him 
using our laws and our article III courts.
  The real intent of this amendment is clear, to ensure that the 
detainees held at Guantanamo Bay, some who have been held for years 
without charge, can only be tried by military commissions.
  As a former prosecutor, I find it deeply troubling that the Senate 
would be asked to prohibit the administration from trying even 
dangerous terrorists in our Federal courts. These Senators should not 
use an amendment that politicizes decisions about significant 
prosecutions as a backdoor to require the use of military commissions.
  The administration has worked hard to revise the military commissions 
to make sure that they meet constitutional standards. However, their 
use has been plagued with problems and repeatedly overturned by a 
conservative Supreme Court.
  In contrast, our Federal courts have a long and distinguished history 
of successfully prosecuting even the most atrocious violent acts, and 
they are respected throughout the world. When we use our Federal 
courts, the rest of the world recognizes that we are following over 200 
years of judicial history of the United States of America. We earn 
respect for doing so.
  The administration strongly opposes this amendment. In a letter to 
the Senate leadership the Secretary of Defense, Robert Gates, and the 
Attorney General of the United States, Eric Holder, warn that this 
amendment would ``set a dangerous precedent'' by directing the 
Executive Branch's prosecutorial determination.
  They also point out this amendment would prohibit them from being 
able to ``use every lawful instrument of national power . . . to ensure 
that terrorists are brought to justice and can no longer threaten 
American lives.''
  If we really want to stop terrorists, if we really want to make sure 
they pay for their crime, why would we block off any of the avenues 
available to us? Two senior administration officials, individuals 
directly responsible for the disposition of these detainees, are 
telling us not to tie their hands in the fight against terrorism. This 
Senator is listening to them, and I believe all Senators should listen 
to them.
  There has been an outpouring of opposition against this amendment 
including by numerous human rights groups such as Human Rights First, 
the National Institute of Military Justice, Constitution Project and 
Amnesty International.
  We have also seen a strong public declaration in support of trying 
terrorism offenses in Federal courts, signed by a bipartisan group of 
former Members of Congress, high-ranking military officials and judges.
  The Senate Judiciary Committee has held several hearings on the issue 
of how best to handle detainees. Experts and judges across the 
political spectrum have agreed that our criminal justice system can 
handle this challenge and indeed has handled it many times already.
  We are a nation that fought hard to have a strong, independent 
judiciary, with a history of excellence. Do we now want to say to the 
world that in spite of all of our power, our history, our strong 
judiciary, that we are not up to trying those who struck us in our 
traditional federal courts? I think we should say just the opposite, 
that we can and will prosecute these people in a way that will gain the 
respect of the whole world and protect our nation. Republican 
luminaries, such as General Colin Powell, have agreed with this idea.
  In fact, one of the things we tend to forget is since January of this 
year alone, over 30 terrorism suspects have been successfully 
prosecuted or sentenced in Federal courts. Those federal courts have 
sentenced individuals directly implicated by this amendment, such as 
Zacarias Moussaoui.
  If this amendment were law Moussaoui, the so called ``20th hijacker'' 
who was directly involved in the planning of September 11, would not 
have been convicted by our federal courts and sentenced to life in 
prison. This amendment takes away one of the greatest tools we have to 
protect our national security--the ability to prosecute suspects in 
Federal court. Instead, as the Justice Department has said in its 
opposition to it, the Graham amendment would make it more likely that 
terrorists will escape justice.
  I believe as strongly as all Americans do that we should take all 
steps possible to prevent terrorism, and we must ensure severe 
punishment for those who do us harm. As a former prosecutor, I have 
made certain that perpetrators of violent crime receive serious 
punishment. I also believe strongly that we can ensure our safety and 
security, and bring terrorists to justice, in ways that are consistent 
with the laws and the values that make us a great democracy.
  The administration has said where possible they will try individuals 
in Federal courts. When we unnecessarily preempt that option, we are 
saying we do not trust the legal system on which we have relied for so 
long. All that does is give more ammunition to our enemies. It further 
hurts our standing around the world, a standing which has already 
suffered so much from the stain of Guantanamo Bay. Worse still it sends 
the message to other countries that they do not have to use traditional 
legal regimes with established protections for defendants if they are 
prosecuting American soldiers or civilians.

[[Page S11163]]

  Just as partisan Republicans were wrong in trying to hold up the 
confirmation of Attorney General Holder to extort a pledge from him 
that he would not exercise independent prosecutorial judgment--
something I have never seen done before in 35 years here--it is also 
wrong to force an amendment politicizing prosecutions in the Commerce-
Justice-Science appropriations bill. I opposed the effort by some 
Republican Senators who wanted the Nation's chief prosecutor to agree 
in advance to turn a blind eye to possible lawbreaking before even 
investigating whether it occurred. Republicans asked for such a pledge, 
a commitment that no prosecutor should give. To his credit, Eric Holder 
didn't give that pledge.
  Passing a far-reaching amendment that takes away a powerful tool from 
the Justice Department in bringing terrorists to justice and usurps the 
Attorney General's constitutional responsibilities is not the path 
forward. All administrations should be able to decide who to prosecute 
and where they should be prosecuted. This amendment denies us the 
benefit of using not only our Federal courts, with their successful 
track record convicting terrorists, but also from using our Federal 
laws, which are arguably more expansive and better suited for use in 
terrorism cases than the narrower set of charges that can be brought in 
a military commission. We should not tie the hands of our law 
enforcement in their efforts to secure our national security. Any 
former prosecutor, any lawyer and any citizen should know it is not the 
decision of or an appropriate role for the United States Senate.
  It is time to act on our principles and our constitutional system. 
Those we believe to be guilty of heinous crimes should be tried, and 
when convicted, punished severely. Where the administration decides to 
try them in Federal courts, our courts and our prisons are more than up 
to the task. I agree with the Justice Department that this amendment 
``would ensure that the only individuals in the world who could not be 
prosecuted under the criminal terrorist offenses Congress has enacted 
would be those who are responsible for the most devastating terrorist 
acts in U.S. history.'' That means that the only people in the world 
who could not be prosecuted under our terrorism laws are the people who 
committed the most devastating terrorist acts against us. That is Alice 
in Wonderland justice. It makes no sense to have tough terrorism laws, 
to have the best judicial system in the world and then, when terrorist 
acts are committed against us, to simply ignore that system and decide 
we cannot use it to prosecute those acts. It makes no sense.
  Let us put aside heated and distorted rhetoric and support the 
President in his efforts to truly make our country safe and strong and 
a republic worthy of the history and values that have always made 
America great.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Michigan.
  Mr. LEVIN. Madam President, I very much oppose the Graham amendment, 
and I want to take a few moments to explain why.
  It has been argued that we are at war. Indeed, we are. I can't think 
of anything clearer, that any of us in this country understands than we 
are at war. And being at war, it totally mystifies me why we would deny 
ourselves one of the tools that we could use against people who are 
attacking us, who have attacked us, who will attack us, who will kill 
us, who kill innocent people. Why would we deny ourselves one of the 
tools which are available to try these people, to lock them up, or 
execute them and throw away the key? Why we would, by law, say this 
particular group of people can't be tried in a Federal court, that they 
can only be tried in a military commission, when we have tried so many 
terrorists in court, convicted them and executed them, is something I 
do not understand.
  I believe we ought to not only throw the book at these people, but I 
think we ought to throw both books at these people. Why limit ourselves 
to one book--the book that sets the procedures for military 
commissions? Why do we deny ourselves the opportunity, if it is more 
effective--for whatever reasons the Justice Department determines it is 
more effective--to prosecute in a Federal court? Why would we deny them 
that?
  In fact, under this amendment, they could not even continue the 
prosecution they had begun. The language of the amendment says either 
``to commence or continue the prosecution in an Article III court.'' So 
the question isn't whether these are the most dangerous people around--
they are.
  I also went down to Guantanamo. I went with Senator Graham, and we 
watched the proceeding against Khalid Shaikh Mohammed. I want us to use 
all of the tools. I want them all to be available. I want the Justice 
Department to be able to determine which is more effective, and not for 
us to decide in a political setting, in a legislative setting, that 
they cannot use one of the tools which has been proven to be effective 
against dozens of terrorists.
  What about the law of war? What about war crimes? The argument is 
these are war crimes. As far as I am concerned, they are crimes; they 
are war crimes--both. War crimes can be prosecuted in an article III 
court. Let me repeat that because the argument is these are war crimes. 
War crimes can be prosecuted in an article III court under our laws 
that we adopted about 10 or 15 years ago. So Khalid Shaikh Mohammed 
needs to be given justice. He needs to be dealt with as strongly as we 
possibly can and as effectively as we possibly can. I believe he was 
the mastermind of 9/11. I don't think there is a Member of this body 
that would not want to see him dealt with as strongly as can possibly 
be done. But I don't know why we would tell the Justice Department that 
they only can consider one of the two tools that they could use against 
him; that they only can consider the military commissions but they 
can't consider article III courts.
  I have been deeply involved in rewriting the military commissions 
law. That law, when we first wrote it, was defective, and I argued 
against it because it was defective. This body adopted it. That is the 
way things work. The majority decided to go with it. It was not usable. 
So we took a major step in the last few months to revise the military 
commissions law. I helped to lead that effort, and I know how important 
it is. But it was never our intent to make that the exclusive remedy 
for people who would attack us or attack this country. We want that 
remedy to be available if that is the most effective remedy. But there 
is nothing in that law that we wrote, or intended, that said this would 
displace article III courts if the Justice Department decided the most 
effective place to try an alleged terrorist was an article III court.
  Are we actually, on the floor of the Senate, going to decide which 
terrorists should be tried in article III courts and which ones should 
be tried in military commission courts? Why would we tie the hands of 
the Justice Department in that way?
  I know Senator Graham feels very strongly these should be tried in 
front of military commissions, and if he were the Justice Department, 
or if he were the Attorney General, he may make that decision, assuming 
he knows all the facts that go into the decision. He may make that 
decision, and he could strongly recommend it to the Justice Department. 
But why would we decide to displace the discretion of the Justice 
Department is a mystery to me. I find it unacceptable.
  More importantly, the Attorney General and the Secretary of Defense 
find it unacceptable. They have urged us not to do this. They have 
written our leaders--Senator Reid and Senator McConnell--opposing the 
Graham amendment.
  They say in their letter that there is a joint prosecution protocol, 
and the departments are ``currently engaged in a careful case-by-case 
evaluation of the cases of Guantanamo detainees who have been referred 
for possible prosecution, to determine whether they should be 
prosecuted in an Article III court or by military commission. We are 
confident that the forum selection decisions that are made pursuant to 
this process will best serve our national security interests.''
  That is the Attorney General of the United States and the Secretary 
of Defense. Can we truly say in the Senate that we are going to 
displace that process which will determine what is the

[[Page S11164]]

most effective way to prosecute these people? Can we and should we do 
that? I hope not.
  They end their letter of October 30 by saying the following:

       The exercise of prosecutorial discretion has always been 
     and should remain an Executive Branch function. We must be in 
     a position to use every lawful instrument of national power--
     including both courts and military commissions--to ensure 
     that terrorists are brought to justice and can no longer 
     threaten American lives.

  If we adopt the Graham amendment, we are saying no; we are only going 
to use one instrument of national power. We are not going to consider 
both instruments of national power, and that is truly not only limiting 
our options but tying one of our hands behind our back in the essential 
prosecution of these people.
  Madam President, Zacarias Moussaoui, the so-called 20th hijacker, was 
convicted in Federal court in May of 2006 for conspiring to hijack 
aircraft and crash them into the World Trade Center. He was quoted by 
Senator Graham as saying that ``we are at war with you people.'' I 
don't have the slightest doubt that he means it and if he were ever 
released he would go back to war.
  But I also have no doubt about something else. He was saying this in 
a Federal court, after being convicted in a Federal court of the 
terrorist acts that he perpetrated. He is now in a supermax facility in 
Florence, CO. He is serving life imprisonment without parole. If the 
Graham amendment had been in place at the time that Moussaoui was being 
prosecuted--indeed, if the Graham amendment had come in the middle of 
that prosecution--the prosecution would have had to have been 
suspended.
  This amendment, if it is adopted, is going to make it more difficult 
to bring some of the 9/11 terrorists to justice. Let me share some of 
the reasons this possibility exists.
  A court could decide that one of the 9/11 detainees does not meet the 
test, under the military commissions law, of being an ``unprivileged 
enemy belligerent.'' In particular, a court could decide that one of 
the 9/11 alleged terrorists did not participate in a ``hostility'' and 
therefore was not subject--a belligerent subject to the laws of war. So 
we are saying to the Justice Department: If you see the possibility 
that someone could be let out or somebody could be found not guilty 
based on that kind of a technicality, we are not going to let you go 
and try that person in a Federal court. You must try that person where 
that person could escape justice based on a technicality.
  Why would we want to do that? How can we possibly sit here and reach 
a judgment on all of the possible factual situations which might allow 
one of these people to escape justice? We cannot do that. That is what 
prosecutors are for. That is what a Justice Department is for. We 
should be giving them tools, not denying them tools. We should be 
handing them every possible tool we can give them to prosecute these 
people instead of saying you can't use this tool or you can't use that 
tool.
  A court could decide that the crimes committed by one of the 9/11 
detainees is not justiciable under the Military Commissions Act. So 
therefore we are going to say you have to prosecute him there anyway? A 
court could decide that an offense under the Military Commissions Act 
cannot be retroactively applied to an offense that took place before 
the enactment of the act. In our language, they can be tried even 
though it is a retroactive application. What happens if that occurs and 
then a court comes along, a court of appeals following a military 
commission, and says: No, you can't do that. Why would we not want the 
Justice Department to be able to weigh all of these possible escape 
loopholes that a defendant could use and decide that they have a better 
chance of convicting somebody and making that conviction stick if they 
proceed in an article III court?
  Maybe the procedural rights which we have written into our Military 
Commissions Act, which is now law--maybe a court will determine they 
are not adequate. Maybe they will throw out the entire process despite 
our best efforts to correct what we had previously done. We should not 
presume the outcome of the judicial process and throw away legal tools 
that may be needed to bring the 9/11 terrorists to justice. We should 
not be tying the hands of our prosecutors against these people.
  Prosecutorial discretion is one of the cornerstones of the American 
judicial system. It is wrong for us to be limiting that discretion by 
directing cases to a particular forum. It denies our prosecutors the 
ability to choose the forum that is best suited to a successful outcome 
in the case. The mechanism of cutting off funds for a prosecution, 
which is what this amendment does because Congress believes that a 
prosecution should take place in one forum or another, would set a 
terrible precedent. We should not be intervening in that kind of 
decision through the appropriations act.
  The determination of the proper forum for the trial of 9/11 
terrorists should be made by the professional prosecutors based on the 
circumstances of the case and their judgment as to where is the best 
chance to gain a successful prosecution. We should not decide where 
these cases are going to be tried. I don't believe we should presume 
they will be tried in one place or another.
  There is a process underway, including both the Defense Department 
and the Justice Department, to make a determination as to which will be 
the most effective place to try these terrorists. So that is the 
appropriate process, and we ought to let it continue without this kind 
of intervention by the Senate.
  Before I yield the floor and suggest the absence of a quorum, I ask 
unanimous consent to have printed in the Record the letter from the 
Attorney General and the Secretary of Defense to Senators Reid and 
McConnell.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 October 30, 2009.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate, Washington, DC.
       Dear Senators Reid and McConnell: We write to oppose the 
     amendment proposed by Senator Graham (on behalf of himself 
     and Senators McCain and Lieberman) to H.R. 2847, the 
     Commerce, Justice, Science, and Related Agencies 
     Appropriations Act of 2010. This amendment would prohibit the 
     use of Department of Justice funds ``to commence or continue 
     the prosecution in an Article III court of the United States 
     of an individual suspected of planning, authorizing, 
     organizing, committing, or aiding the attacks on the United 
     States and its citizens that occurred on September 11, 
     2001.''
       As you know, both the Department of Justice (in Article III 
     courts) and the Department of Defense (in military 
     commissions, reformed under the 2010 National Defense 
     Authorization Act) have responsibility for prosecuting 
     alleged terrorists. Pursuant to a joint prosecution protocol, 
     our departments are currently engaged in a careful case-by-
     case evaluation of the cases of Guantanamo detainees who have 
     been referred for possible prosecution, to determine whether 
     they should be prosecuted in an Article III court or by 
     military commission. We are confident that the forum 
     selection decisions that are made pursuant to this process 
     will best serve our national security interests.
       We believe that it would be unwise, and would set a 
     dangerous precedent, for Congress to restrict the discretion 
     of either department to fund particular prosecutions. The 
     exercise of prosecutorial discretion has always been and 
     should remain an Executive Branch function. We must be in a 
     position to use every lawful instrument of national power--
     including both courts and military commissions--to ensure 
     that terrorists are brought to justice and can no longer 
     threaten American lives.
       For these reasons, we respectfully request that you oppose 
     this amendment.
     Robert M. Gates,
       Secretary of Defense.
     Eric H. Holder, Jr.,
       Attorney General.

  Mr. LEVIN. 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. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Madam President, most Americans recognize that our 
continued success in preventing another terrorist attack on U.S. soil 
depends on our ability as a Nation to remain vigilant and clear-eyed 
about the nature of the threats we face at home and abroad.
  Some threats come in the form of terror cells in distant countries. 
Others

[[Page S11165]]

come from people plotting attacks within our own borders.
  And still others can come from a failure to recognize the distinction 
between everyday crimes and war crimes.
  This last category of threat is extremely serious but sometimes 
overlooked--and that is why Senators Graham, Lieberman, and McCain have 
offered an amendment to the Commerce, Justice and Science 
appropriations bill that would reassure the American people that the 
Senate has not taken its eye off the ball.
  The amendment is simple and straightforward. It explicitly prohibits 
any of the terrorists who were involved in the September 11, 2001, 
attacks from appearing for trial in a civilian U.S. courtroom. Instead, 
it would require the government to use military commissions; that is, 
the courts proper to war, for trying these men.
  By requiring the government to use military commissions, the 
supporters of this amendment are reaffirming two things: First, that 
these men should have a fair trial.
  And second, we are reaffirming what American history has always 
showed; namely, that war crimes and common crimes are to be tried 
differently--and that military courts are the proper forum for 
prosecuting terrorists.
  Some might argue that terrorists like Zacarias Moussaoui, one of the 
9/11 conspirators, are not enemy combatants--that they are somehow on 
the same level as a convenience store stick-up man. But listen to the 
words of Moussaoui himself. He disagrees.
  Asked if he regretted his part in the September 11 attacks, Moussaoui 
said: ``I just wish it will happen on the 12th, the 13th, the 14th, the 
15th, the 16th, the 17th, and [on and on].'' He went on to explain how 
happy he was to learn of the deaths of American service men and women 
in the Pentagon on 9/11. And then he mocked an officer for weeping 
about the loss of men under her command, saying:

       I think it was disgusting for a military person to pretend 
     that they should not be killed as an act of war. She is 
     military. She should expect that people who are at war with 
     her will try to kill her. I will never cry because an 
     American bombed my camp.

  There is no question Moussaoui himself believes he is an enemy 
combatant engaged in a war against us.
  The Senate has also made itself clear on this question. Congress 
created the military commissions system 3 years ago, on a bipartisan 
basis, precisely to deal with prosecutions of al-Qaida terrorists 
consistent with U.S. national security, with the expectation that they 
would be used for that purpose.
  The Senate reaffirmed this view 2 years ago when it voted 94-3 
against transferring detainees from Guantanamo stateside, including the 
9/11 planners.
  We reaffirmed it again earlier this year when we voted 90-6 against 
using any funds from the war supplemental to transfer any of the 
Guantanamo detainees to the United States.
  And just this summer the Senate reaffirmed that military commissions 
are the proper forum for bringing enemy combatants to justice when we 
approved without objection an amendment to that effect as part of the 
Defense authorization bill.
  Further, our past experiences with terror trials in civilian courts 
have clearly been shown to undermine our national security. During the 
trial of Ramzi Yousef, the mastermind of the first Trade Center 
bombing, we saw how a small bit of testimony about a cell phone battery 
was enough to tip off terrorists that one of their key communication 
links had been compromised.
  We saw how the public prosecution of the Blind Sheikh, Abdel Rahman, 
inadvertently provided a rich source of intelligence to Osama bin Laden 
ahead of the 9/11 attacks. And in that case, we remember that Rahman's 
lawyer was convicted of smuggling orders to his terrorist disciples.
  We also saw how the trial of Zacarias Moussaoui resulted in the leak 
of sensitive information.
  And we saw how the trials of the East African Embassy bombers 
compromised intelligence methods to the benefit of Osama bin Laden.
  The administration calls these prosecutions ``successful.'' But given 
the loss of sensitive information that resulted, former Federal judge 
and Attorney General Michael Mukasey has noted ``there are many words 
one might use to describe how these events unfolded; `successfully' is 
not among them.''
  Trying terror suspects in civilian courts is also a giant headache 
for communities; just look at the experience of Alexandria, VA, during 
the Moussaoui trial. As I have pointed out before, parts of Alexandria 
became a virtual encampment every time Moussaoui was moved to the 
courthouse. Those were the problems we saw in Northern Virginia when 
just one terrorist was tried in civilian court. What will happen to 
Alexandria, New York City, or other cities if several terrorists are 
tried there? You can imagine.
  It is because of dangers and difficulties like these that we 
established military commissions in the first place. The administration 
has now rewritten the military commission procedures precisely to its 
liking. If we can't expect the very people who masterminded the 9/11 
attacks and went to war with us to fall within the jurisdiction of 
these military courts, then who can we expect to fall within the 
jurisdiction of these military courts?
  The American people have made themselves clear on this issue. They do 
not want Guantanamo terrorists brought to the U.S., and they certainly 
do not want the men who planned the 9/11 attacks on America to be tried 
in civilian courts--risking national security and civic disruption in 
the process.
  Congress created military commissions for a reason. But if the 
administration fails to use military commissions for self-avowed 
combatants like Khalid Sheikh Mohammed, then it is wasting this time-
honored and essential tool in the war on terror.
  I would ask the opponents of the Graham amendment the following: what 
material benefit is derived by bringing avowed foreign combatants like 
KSM into a civilian court and giving them all the rights and privileges 
of a U.S. citizen; and why should we further delay justice for the 
families of the victims of 9/11?
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WEBB. Madam President, I rise with some regret because I am in a 
contradiction with our President and with many members of my own 
caucus. I am a cosponsor of the Graham amendment. I have no regrets 
about cosponsoring the amendment. I do regret that I am in 
contradiction with a number of my colleagues on this side.
  I believe this is an appropriate amendment. I believe it is the best 
way for us to move forward and bring a solution with respect to those 
who are detained in Guantanamo.
  I would start by saying I have consistently argued that the 
appropriate venue for trying perpetrators of international terrorism 
who are, in fact, enemy combatants is a military tribunal. One of my 
primary focuses in my time in the Senate has been to work toward a 
fairer and more efficient criminal justice system in the United States.
  As all my colleagues know, we have an enormous backlog in many court 
systems right now. Prisons are overcrowded. We have 2.3 million people 
in prison right now, 7 million people inside the criminal justice 
system. The process of trying enemy combatants in our already 
overburdened domestic courts, on the one hand, is not necessary and, on 
the other, would introduce major logjams and work against our goals of 
improving our criminal justice system.
  As someone who served in the military, has spent 5 years in the 
Pentagon, and is privileged to serve in this body, I would like to say, 
in my view, the Guantanamo Bay detainee situation is challenging, it is 
complicated, it involves balancing an entire host of considerations, 
including national security, constitutional due process requirements, 
international law, procedural and practical considerations, and the 
responsibilities and authority of all three branches of government.
  Given the complicated nature of this situation, I believe it is very 
important for us to move forward with a careful and considered 
approach. These are among the considerations we should be looking at: 
First, the Supreme Court has reviewed this issue a number of times and, 
in several cases, has given clear guidance on due process requirements.

[[Page S11166]]

  Second, taking into consideration these Supreme Court's decisions, 
Congress enacted new procedures for military tribunals. These new 
pressures, which were included in the recently passed Defense 
authorization bill, contain safeguards that protect detainees' due 
process and habeas rights.
  President Obama, as a Senator, took part in the creation of these new 
procedures. President Obama signed these new procedures into law. 
Additionally, the facilities for properly holding and trying dangerous 
detainees who are, in fact in many cases, enemy combatants, exist at 
the cost of approximately millions of dollars in Guantanamo.
  The Guantanamo debate has, in my view, improperly focused on place 
versus process over the past couple of years. The most important factor 
has been to improve the process as we consider these different cases, 
not simply whether this was Guantanamo or anywhere else.
  Removing our detainees from Guantanamo to the United States is not 
going to solve the problem. The improved processes we have put in place 
is one of the key factors in addressing the problem.
  The people we are seeking to prosecute--I think it needs to be said 
again and again--are enemy combatants. They were apprehended during a 
time of war, while hostilities are still ongoing. Prosecuting these 
individuals in domestic courts gives rise to a host of problematic 
issues which are basically unnecessary because of the availability now 
of properly constituted military tribunals.
  The problems with trying alleged detainees in domestic courts 
include: procedural, constitutional, and evidentiary rules in place to 
protect civilian criminal defendants in our country. These protections 
would require the production of classified materials. It could require 
military and intelligence officers to be called from other duties, in 
some cases from the battlefield, to testify.
  This could lead to the exposure of sensitive material or, 
alternatively, to acquittal of enemy combatants who are guilty of these 
crimes. In the U.S. legal system, when a defendant is acquitted he goes 
free. In this complex scenario, it is unclear what will happen in our 
domestic judicial system if one of those enemy combatants is actually 
acquitted.
  This mixing of the legal and military paradigms, I believe, would 
confuse our criminal justice system without a real upside. The burden 
of trying enemy combatants in a domestic court is overwhelming. Other 
people have mentioned this. There is an issue, of course, of 
maintaining security for the courtroom and for the jail facilities: the 
additional security burdens to the U.S. Marshals Service and to local 
police services, the security and procedural complexities would tie up 
our court system at a time when we need to move criminal cases forward.
  I think it is very important for the understanding of this body, that 
while this amendment only applies to six detainees at Guantanamo Bay, 
it is long past time that we work to reach a consensus on how and where 
all these detainees are going to be tried and/or held. The 
administration has consistently talked about three different categories 
of detainees: Those who have been found not to be a threat to the 
United States and can be released and a number of them have; those who 
are a threat and can be prosecuted, which takes up most of our 
discussion, but, importantly, a third group is those who we have reason 
to believe will continue to be a threat to the United States, but we 
may not have sufficient admissible evidence to bring them to trial. 
That is the category that is the most troubling when we start talking 
about moving these detainees from Guantanamo Bay to the United States.
  Every Member of this body should be concerned with the implications 
of confining such individuals indefinitely inside the United States 
without due process. I took the time, after a number of discussions, 
including a long discussion with the President about this, to read the 
Hamdi case, the Supreme Court case that deals with indefinite detention 
of detainees.
  There is a conundrum here, if you think about the reality of what we 
are doing. If you bring these people into the United States and do not 
try them, you are going to put them in a civilian prison. There are 
only two possibilities here: either as legally here in the United 
States they have to be given a speedy trial or, as enemy combatants, we 
do not have to give them a speedy trial until the end of hostilities. 
How do we define the end of hostilities? We are simply going to be 
importing a problem, affecting about 50 people at Guantanamo, from 
Guantanamo into the United States.
  Again, it is not the place, it is the process. Ten years from now, 
fifteen years from now we don't want to find ourselves saying: There is 
an individual in a super-max prison somewhere in Illinois who has never 
been charged with a crime.
  Why do we need to bring that into our system? Why do we need to bring 
that into our country? We have to commit ourselves to examining that 
issue in detail and figure out a way to move forward. I am committed to 
working with the administration. I have said this to the President in 
the past and to Members of this body, we need to move forward and 
develop a final trial and detention plan.
  But the bottom line is, we are a nation at war. The Supreme Court has 
outlined due process rights for detainees. Guantanamo Bay is the 
appropriate facility for holding the enemy belligerents, particularly 
since we just passed these improvements in the Military Commissions 
Act. I hope this body will think seriously about the implications of 
bringing large numbers of Guantanamo Bay detainees into the United 
States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. DeMINT. I see the Senator from Rhode Island.
  Mr. WHITEHOUSE. Madam President, I will be speaking for only 4 or 5 
minutes. I see Senator DeMint. I ask unanimous consent that I follow 
him. But I will be considerably briefer than Senator Webb.
  Mr. DeMINT. I would be happy to let the Senator from Rhode Island go 
first, as long as I can follow him.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. I appreciate the Senator's courtesy. I wish to take a 
different view than our distinguished colleague from Virginia. He comes 
from a military background and he views this from that lens. I come 
from a prosecutor's and lawyer's background. I see it through a 
different lens.
  I take exception to a number of the concerns the distinguished 
Senator from Virginia elucidated. My concern is, the balancing of those 
concerns and the determination as to on which side, military 
commissions or traditional law enforcement prosecution, the government 
should come down on is one that should not be a legislative 
determination.
  We have executive officials who are very capable of making this 
determination. It is at the soul of prosecutorial discretion to decide 
whom to charge, what to charge, and in what forum to bring the charge. 
I think we are in the wrong location, trying to inject ourselves as the 
legislative branch of government into the executive determination as to 
where a case should be brought.
  It may very well be that a great number of these cases should indeed 
be brought in military commissions. But I do not think it is up to us 
as Members of the Senate to force the executive branch's hands.
  A second point is, we have had very bad luck with these military 
commissions so far. Many believe the procedures for those commissions 
did not afford adequate process to the accused, and, as a result, the 
perceived legitimacy of the commissions was undermined. That is the 
finding of the Detention Policy Task Force.
  Some of those shortcomings have been improved upon recently. But we 
are in a stage, at this point, in which article III courts--the Federal 
American courts--have handled 119 terrorism cases with 289 defendants. 
Of those, 75 cases are still pending in our courts, but 195 defendants 
have been convicted. Our conviction rate has been 91 percent.
  Our Bureau of Prisons currently holds 355 terrorists in its 
facilities, by it is own estimation, 216 international

[[Page S11167]]

terrorists, and 139 domestic terrorists. So regular, traditional 
American law enforcement, prosecution by the Department of Justice, is 
a tried-and-true vehicle for prosecuting and punishing terrorists.
  By contrast, the Gitmo military tribunals have convicted three 
detainees. After all those years of trouble and effort, 289 defendants 
convicted in our criminal courts, three in our military commissions.
  So I submit there may be very good logic for those military 
commissions, but it is not a wise decision and not properly our 
decision to force the hand of the executive branch of government and 
close down the side of the war on terrorism that has been most 
effective at incarcerating and punishing our terrorist enemies.
  I yield the floor and, again, thank the Senator for his courtesy.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. DeMINT. I thank the Chair.
  Madam President, I wish to associate myself with Leader McConnell and 
thank him for his leadership on the Guantanamo Bay issue. I know as the 
President looks to close this facility which costs the American 
taxpayers $275 million, people around the country, including in my own 
State of South Carolina, are concerned that we will now move some of 
the world's most dangerous people into a civilian area that is not 
designed for this type of security threat. I appreciate the leadership 
of Senator McConnell in trying to bring some rational thinking.


                                Honduras

  I wish to take a break from the discussion of Guantanamo Bay and the 
appropriations bills to discuss briefly the situation in Honduras. 
Honduras is one of America's best allies in this hemisphere. For the 
last 4 months they have been involved in a constitutional crisis. I 
have been very critical of the administration's handling of the 
Honduras situation. In fact, I have held two nominees, one to Latin 
America and one to Brazil, in order to shine a spotlight on the 
situation and get this administration and this Congress to focus on 
what I consider very bad policy toward a very close friend of the 
United States.
  While I have been critical, it is important, when the administration 
changes its view and puts things on the right course, to thank 
Secretary Clinton, Secretary Tom Shannon for their work in Honduras. I 
also wish to talk a little bit about the situation.
  As part of my talk, I want Senator Reid to know it is my intent to 
release my holds on the nominees so they can move forward, now that I 
believe the administration has set a good course for our allies in 
Honduras.
  Let me take a few minutes to go through the background of the 
situation. Not many people have paid much attention to it. Over 4 
months ago, I believe our administration rushed to judgment in 
declaring the removal of President Zelaya from office as a military 
coup. All branches of the Honduran Government agreed that he should 
have been removed. The congress, the electoral tribunal, the attorney 
general, the supreme court, all institutions of democracy in Honduras, 
agreed the president had violated the constitution and the law and 
needed to be removed from office. For weeks leading up to his arrest, 
President Manuel Zelaya defied his nation's laws and attempted to 
illegally rewrite the Honduran constitution so he could remain in 
office past his term. That probably sounds familiar because that is the 
same course Hugo Chavez has taken in Venezuela and Ortega in Nicaragua. 
We know about the Castros, of course. It is a pandemic in Latin America 
that democracies elect leaders who change the constitution and become 
dictators. Zelaya was on the same course until the democratic 
institutions in Honduras stopped him short.
  He attempted to force a national vote to allow himself to stay in 
office. He went so far as to lead a violent mob to try to retrieve 
ballots printed in Venezuela that had been confiscated by the Honduran 
authorities so he could not have the national referendum he wanted. As 
I mentioned before, every Honduran institution supported his removal 
because of his open defiance of the laws and the constitution. The 
people of Honduras have struggled too long to have their hard-won 
democracy stolen from them by a would-be dictator. The Honduran 
Government had little choice but to act in accordance with the Honduran 
constitution and their own rule of law. They had to remove Zelaya from 
office to protect their democracy.
  Since June, the Law Library of Congress made public a thorough report 
defending the actions undertaken by the Honduran institutions in 
contradicting the claims made by the Obama administration. Our own 
State Department said they have secret legal memos of their own 
supporting their actions, but they have refused our request to release 
them and have kept them hidden from the public. Instead of siding with 
the Honduran people, the administration decided to put their full 
support behind Mr. Zelaya, who is a close ally of Hugo Chavez and who 
the State Department even said had undertaken provocative actions that 
led to his removal. Despite this admission, the Obama administration 
has waged a war directly against the Honduran people by denying visas, 
terminating aid, and refusing to acknowledge that free and fair 
elections would solve the problems in Honduras.
  The Presidential election is on schedule for November 29. It has been 
scheduled that way since 1982, when their constitution was put in 
place. Under Honduras's one-term-limit requirement, Zelaya could not 
have sought reelection anyway. The current president, Roberto 
Micheletti, whom I just got off the phone with, was installed after 
Zelaya's removal per the constitution. He is not on the ballot either. 
He is not seeking power in Honduras. The Presidential candidates were 
nominated in primaries over a year ago, and all of them, including 
Zelaya's former vice president, expect these elections to be free and 
fair and transparent, as has every other Honduran election for almost a 
generation. I have been terribly disappointed with the administration's 
policies on Honduras and have consistently argued that the upcoming 
November 29 elections are the only way out of this mess. We as a nation 
have to send a signal that we will recognize these elections.
  I personally visited Honduras last month and was satisfied as to the 
legitimacy of the interim government of Micheletti and as to the 
legitimacy of the long-scheduled Presidential elections that will be 
held later this month. I am happy to report that after many months, 
Secretary Clinton and Assistant Secretary Shannon have led the Obama 
administration back in the right direction. I met yesterday with 
Assistant Secretary of State of Latin America Tom Shannon and spoke 
today with Secretary Clinton. I can report that we now appear to be on 
the right track. Both Assistant Secretary Shannon and Secretary Clinton 
assured me that notwithstanding any previous statements by 
administration officials, the United States will recognize the November 
29 Honduran election, regardless of whether the Honduras Government 
votes to reinstate Zelaya. They have made it clear the administration 
will recognize the elections, regardless of whether the Honduran 
Congress votes on the Zelaya reinstatement before or after the November 
29 election.
  The independence, transparency, and fairness of those elections has 
never been in doubt. Thanks to the reversal of the Obama 
administration, the new government sworn into office next January can 
expect the full support of the United States and, I hope, the entire 
international community.
  I applaud the administration. I am thankful they have ended their 
focus on whom I consider a would-be dictator and are now standing 
firmly with the Honduran people and for a Honduran solution to the 
problem. Today starts a major step forward for the cause of freedom and 
democracy for the western hemisphere, for the United States, and 
especially for the brave people of Honduras. They are proving that 
despite crushing hardships and impossible odds, freedom and democracy 
can succeed anywhere people are willing to fight for it. The 
condemnation heaped on the free people of Honduras these last several 
months never had to happen. The Obama administration erred in its 
assessment of the situation in Honduras because of a rush to judgment 
based on bad information. We have all learned a lesson about 
distinguishing friends from foes and the

[[Page S11168]]

paramount importance of constitutional democracy to international 
stability.
  For months I have made it clear I would continue to object to two 
State Department nominations until the United States reversed its 
flawed Honduras policy. My goal has been to get this administration to 
recognize the November 29 elections. Now that this has happened, I will 
keep my part of the bargain and release these holds. I will notify 
Senator Reid that these nominations can move ahead on his schedule. It 
is no secret that I have been critical of the administration on their 
handling of these issues. But I take this opportunity today to thank 
Secretary Clinton and Assistant Secretary Shannon for reengaging the 
Honduran Government and working out a solution that President 
Micheletti and the government in Honduras, as well as the Honduran 
people, feel is fair.
  There are still a number of concerns. As I talked to President 
Micheletti moments ago, he is concerned that the Organization of 
American States continues to support deposed President Zelaya and is 
organizing, along with Zelaya, a lot of mischief related to the 
upcoming elections, encouraging people to take to the streets and 
violence. I hope the State Department and the Obama administration, 
along with Congress, will continue to support the Honduran people and 
make sure the Organization of American States and any other country 
will support the agreement that has been signed by the people in 
Honduras and that we have agreed to.
  I am thankful for the opportunity to speak on this issue, to bring it 
to the attention of this Congress and the American people. I look 
forward to releasing the holds on these nominations and continue to 
follow the situation closely, particularly the November 29 elections, 
as Honduras continues as a free and democratic nation.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Whitehouse). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, as the chairman of the Commerce, 
Justice, Science Committee, I ask unanimous consent that all 
postcloture time be yielded back, except the 10 minutes specified for 
debate as noted in this agreement; that the Senate now resume the 
Coburn amendments Nos. 2631 and 2667, and that prior to the votes in 
relation to each amendment in the order listed, there be 2 minutes of 
debate, equally divided and controlled in the usual form; that upon the 
use or yielding back of time, the Senate proceed to vote in relation to 
the amendments; that upon the disposition of the Coburn amendments, the 
Senate resume consideration of the Graham amendment No. 2669, and that 
prior to a vote in relation to the amendment, there be 4 minutes of 
debate, equally divided and controlled between Senators Graham and 
Leahy or their designees; that upon the use or yielding back of time, 
the Senate proceed to vote in relation to the amendment; that upon 
disposition of the Graham amendment, the Senate then resume the Ensign 
amendment No. 2648, as modified; that there be 2 minutes of debate, 
equally divided and controlled in the usual form, prior to a vote in 
relation to the amendment; that upon disposition of the Ensign 
amendment, the Senate resume the Johanns amendment No. 2393; that the 
amendment be agreed to and the motion to reconsider be laid upon the 
table, with no amendments in order to the aforementioned amendments; 
that no further amendments be in order; that the substitute amendment, 
as amended, be agreed to, the bill, as amended, be read a third time, 
and the Senate then proceed to vote on passage of the bill; that upon 
passage, the Senate insist on its amendment, request a conference with 
the House on the disagreeing votes of the two Houses, and that the 
Chair be authorized to appoint conferees, with the subcommittee plus 
Senators Byrd and Cochran appointed as conferees; that if a point of 
order is raised and sustained against the substitute amendment, then it 
be in order for a new substitute to be offered, minus the offending 
provisions but including any amendments previously agreed to; that the 
new substitute be considered and agreed to, no further amendments be in 
order, the bill, as amended, be read a third time, with the provisions 
of this agreement after adoption of the original substitute amendment 
remaining in effect; and that the cloture motion on the bill be 
withdrawn; and that the order commence after the remarks of Senator 
Chambliss.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


            Unanimous-Consent Agreement--Executive Calendar

  Ms. MIKULSKI. Mr. President, as in executive session, I ask unanimous 
consent that upon disposition of H.R. 2847, the Senate proceed to 
executive session and immediately proceed to vote on confirmation of 
the nomination of Calendar No. 462, and that upon confirmation, the 
motion to reconsider be considered made and laid upon the table; that 
no further motions be in order, the President be immediately notified 
of the Senate's action, and the Senate then resume legislative session.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Alabama.


                           Amendment No. 2669

  Mr. SESSIONS. Mr. President, I would like to speak, briefly, in 
support of Senator Graham's amendment dealing with the trial of 9/11 
terrorists in Federal court. It, in effect, would prohibit the 
administration from doing that by denying funding for any such trials.
  This is a very important matter. One of the things we learned when 9/
11 occurred was that this country had made a mistake in treating people 
who are at war with the United States, who attempt to destroy the 
United States, as normal criminals and that they should be tried in 
court.
  We learned the only effective way to deal with persons such as that 
is to treat them as prisoners of war or unlawful combatants, who are 
people who violate the rules of war--and all these individuals do, 
basically, with the way they conduct themselves. So we would try them 
according to military commissions. The Constitution makes reference to 
military commissions. They can be tried fairly in that method without 
all the rules and procedures we cherish so highly in Federal courts for 
the trials of normal crimes that people are accused of in this country.
  I spoke about al-Marri just last week, who came to the United States 
on September 10. He had met bin Laden. He had been to a training camp 
in Afghanistan. He had a goal, pretty clearly, to participate in an 
attack on the United States. He seemed to be a part of that entire 
effort. He came 1 day before 9/11. He was tried by a Federal judge who 
apparently gave a conviction but sentenced him to, in effect, 7 years. 
He had training in bomb making and that kind of thing. He had done 
other acts that indicated an intent to kill American people, innocent 
civilians, in a surreptitious way, contrary to the laws of war. So as a 
result of that, I think he should have been tried by a military 
commission, and he was not.
  As one of the professors said in commenting on this case, it raises 
questions about the ability of our normal Federal court system to try 
these people who may be subject to having the courthouse attacked in an 
attempt to free them. Jurors may feel threatened because they are 
willing to kill to promote their agenda--or their allies are. 
Courthouses have to be armed with guards all around and with people on 
top of the courthouse to protect the courthouse throughout the trial.
  They can be tried effectively by military commissions. So Senator 
Graham is serving the national interest in raising this issue. It is 
not a little bitty matter. It is correct. He has a good idea about it. 
He has focused it narrowly on the 9/11 issue and on those who 
participated in that attack. I think that is at least what we should do 
today.
  We need to have a sincere analysis of the determination by this 
administration to try more and more cases in Federal court when they 
have been

[[Page S11169]]

captured by the military. In fact, they say there is a presumption in 
their commission report to date that they would be tried in Federal 
courts rather than military commissions. I think that is very dangerous 
because military people do not give them Miranda warnings when they are 
arrested. They do not do the kinds of things that are necessary to 
maintain change of custody or to admit evidence into trials in a way we 
would normally do. These kinds of procedures could cause a trial to be 
extremely difficult. They could bring witnesses from the battlefield 
and the like.
  It is not the way, I am aware, any country tries people who are at 
war with them--any country. All countries provide for military 
commissions against unlawful combatants.
  I see my friend, Senator Chambliss, in the Chamber. I know he wants 
to speak on this issue.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise in strong support of the Graham 
amendment, and I wish to echo the sentiments expressed by my friend 
from Alabama, who, like me, has had extensive experience in trying 
cases for many years.
  In this country, over our 225-plus years, we have been involved in 
many different military conflicts. In each of those conflicts, dating 
back to the early years, there have always been prisoners captured, and 
we have always had a procedure whereby we incarcerated and ultimately 
tried those individuals who were captured on the battlefield.
  The process of how we operate from an article III criminal standpoint 
relative to criminals in America who commit offenses against the United 
States of America is one thing. The process we have always used to deal 
with those individuals whom we capture on the battlefield has been 
entirely different and all for the right reasons.
  I know there are those who have gotten up here over the past several 
weeks and months as we have talked about this issue from time to time, 
and I have had any number of amendments on this issue and have spoken 
on the floor numerous times about it. It is important for the 
protection and security of the American people to keep all these 
individuals whom we capture on the battlefield, who are incarcerated at 
Guantanamo, outside America. We have the mechanics set up to try them. 
We have a very safe place for them to be incarcerated. That is, 
frankly, where they ought to stay until some method can be worked out 
to deal with them, to have them housed somewhere outside the United 
States.
  Unfortunately, the President has made a commitment to close 
Guantanamo by January 22, without ever having a plan in place as to how 
he was going to deal with them. What we are talking about doing is 
making sure, because folks on the other side of the aisle have already 
said: We want to bring the prisoners from Guantanamo to American soil, 
we try them there. Ultimately, I guess they are saying: We want to 
house them in American prisons. I think that is wrong.
  This amendment, though, is even narrower than that. That is why it is 
so important. This amendment says: We are going to take the meanest of 
these individuals, who get up every day thinking of ways to kill and 
harm Americans, and make sure they never come to American soil for 
trial and are never subjected to the process that is developed in 
article III courts for average, ordinary criminals who are tried every 
single day in America.
  Khalid Shaikh Mohammed is the admitted mastermind of September 11. He 
is one of the individuals who today is housed at Guantanamo Bay. He is 
one of the individuals who is going to be directly affected by this 
amendment. Does Khalid Shaikh Mohammed want justice? No. Khalid Shaikh 
Mohammed wants a platform. He wants a platform on which to exude his 
arrogance and his hatred of America and his hatred of Americans, as 
exhibited by the plan he put in place to fly airplanes into the 
Pentagon, the World Trade Center, and another entity that was probably 
the U.S. Capitol. That airplane, ultimately, crashed in Pennsylvania.
  There were over 3,000 victims on September 11. It is my understanding 
family members of those victims have written letters and made phone 
calls urging the passage of this amendment. They are an indication of 
the strong feeling that prevails all across America relative to how we 
deal with these individuals who, particularly--particularly--intended 
and did, in fact, carry out an attack against America, an atrocious 
attack that took the lives of over 3,000 people.
  I commend Senator Graham for even thinking of the idea of narrowing 
this amendment to include just those individuals who participated in 
the September 11 attack. I would rather broaden it to include all those 
who are housed at Guantanamo. I defy anyone to stand and say that 
trying any of those individuals who are housed at Guantanamo, who were 
captured on the battlefield, in an article III court in the United 
States would be similar to some other terrorists we have tried in this 
country. That is wrong. We have never tried anybody who was arrested on 
the battlefield in an article III court in the United States.
  So Senator Graham's amendment is very appropriate. It ought to be 
passed. It ought to be passed with a large margin. A vote against this 
amendment is simply a vote to give Khalid Shaikh Mohammed that platform 
he wants to have to talk about why he hates America and about 
everything that is wrong with America. That is not what we ought to be 
doing in this body today or at any other time.
  I urge a positive and affirmative vote on the Graham amendment.
  I yield back, Mr. President.


                           Amendment No. 2631

  Ms. MIKULSKI. Mr. President, what is the pending amendment?
  The PRESIDING OFFICER. Coburn amendment No. 2631 is the pending 
amendment.
  Ms. MIKULSKI. Mr. President, I vigorously and unabashedly oppose the 
Coburn amendment. It eliminates not only the dollars from the science 
program at the National Science Foundation, it specifically targets the 
$9 million cut in the area of funding for research by political 
scientists.
  The very first American woman to win the Nobel Prize for economics 
ever has received 28 awards from the National Science Foundation, the 
science program offered to political science professors. It shows what 
groundbreaking work can be done.
  This amendment is an attack on science. It is an attack on academia. 
We need full funding to keep America innovative, and I urge my 
colleagues to vote no on this amendment.
  Mr. President, I yield back the remainder of our time, and I ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays are ordered.
  The PRESIDING OFFICER. Who yields time in favor of the amendment?
  Is there objection to yielding back all time?
  Without objection, all time is yielded back.
  The question is on agreeing to the amendment.
  The yeas and nays have been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Louisiana (Ms. Landrieu) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 36, nays 62, as follows:

                      [Rollcall Vote No. 336 Leg.]

                                YEAS--36

     Barrasso
     Baucus
     Bayh
     Bennett
     Brownback
     Bunning
     Chambliss
     Coburn
     Corker
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     LeMieux
     Lugar
     McCain
     McCaskill
     McConnell
     Murkowski
     Nelson (NE)
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Voinovich
     Webb
     Wicker

                                NAYS--62

     Akaka
     Alexander
     Begich
     Bennet
     Bingaman
     Bond
     Boxer
     Brown
     Burr
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Cornyn
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken

[[Page S11170]]


     Gillibrand
     Gregg
     Hagan
     Harkin
     Inouye
     Johanns
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Whitehouse
     Wyden

                             NOT VOTING--2

     Byrd
     Landrieu
       
  The amendment (No. 2631) was rejected.
  Mr. REID. Mr. President, I ask unanimous consent that all succeeding 
votes in the tranche of votes--and I think there are five--be 10 
minutes in duration.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, people are anxious to finish tonight. If 
everybody will try to stay close and not wander around, we can wrap 
these up.
  I yield at this time to the Senator from Texas, Kay Bailey Hutchison.


                           MOMENT of Silence

  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that this body 
have a moment of silence in memory of 11 great soldiers at Fort Hood, 
TX, who have been shot down this afternoon at the base at a processing 
center where they were being prepared to be deployed to Iraq and 
Afghanistan. In addition, the person who was the main shooter has also 
been killed. Over 30 of our great personnel are also injured and being 
treated as we speak.
  When I spoke to the general a few minutes ago, the base, Fort Hood, 
was still in lockdown to make sure they have checked every possibility 
that there would be no more shootings. I know all of us love our 
military and appreciate everything they do. For them to have to suffer 
even more tragedy like this, as they are on their way to protect our 
freedom, is unthinkable.
  I ask unanimous consent that all of us show how deeply we care about 
them right now on the floor of the Senate.
  The PRESIDING OFFICER. Without objection, a moment of silence will 
commence.
  [Moment of Silence.]
  Mrs. HUTCHISON. Mr. President, I thank Senators very much.


                           Amendment No. 2667

  The PRESIDING OFFICER. There will now be 2 minutes of debate equally 
divided in relation to the Coburn amendment No. 2667. Who yields time?
  The Senator from Oklahoma.
  Mr. COBURN. Mr. President, this is a straightforward amendment that 
actually increases the funding for the IG. One of our weaknesses is 
waste, fraud, and abuse. According to GSA, this will not affect the 
renovations whatsoever at the Hoover Building. We are simply 
transferring funds.
  I understand a point of order is going to be made against this 
amendment. But if my colleagues want control and have accurate work 
done by our IGs, we need to fund them appropriately, and this amendment 
is intended to do that.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I share the concerns of the Senator from 
Oklahoma about oversight at the Department of Commerce. That is why the 
bill already funds the inspector general at $25.8 million, the same as 
the President's request. There is an additional $6 million furnished 
through the stimulus.
  This amendment does cut the Hoover Building and it would only delay 
the renovations to meet basic health and safety standards. I oppose the 
amendment. The amendment would cause the CJS bill to exceed its 
allocation. Therefore, I make a point of order that the amendment 
violates section 302(f) of the Congressional Budget Act of 1974.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I move to waive the applicable section of 
the Budget Act with respect to my amendment, and I ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
is necessarily absent.
  The PRESIDING OFFICER (Mr. Begich). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 42, nays 57, as follows:

                      [Rollcall Vote No. 337 Leg.]

                                YEAS--42

     Alexander
     Barrasso
     Baucus
     Bayh
     Bennett
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Feingold
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Wicker

                                NAYS--57

     Akaka
     Begich
     Bennet
     Bingaman
     Bond
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--1

       
     Byrd
       
  The PRESIDING OFFICER. On this vote, the yeas are 42, the nays are 
57. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is not agreed to. The point of order is 
sustained, and the amendment fails.
  Mrs. BOXER. Mr. President, I move to reconsider the vote.
  Mrs. MURRAY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 2669

  The PRESIDING OFFICER. There is now 4 minutes equally divided before 
the vote on the Graham amendment, No. 2669.
  The Senator from South Carolina.
  Mr. GRAHAM. Colleagues, we are about to take a vote. It is a tough 
vote, and I regret we are having to do this, but at the end of the day, 
I have a view that this country is at war. I think most of you share 
it. Our civilian court system serves us well, but we have had a long 
history of having military commission trials when the Nation is at war. 
The military commission bill which this Congress wrote is reformed. It 
is new, it is transparent, and it is something I am proud of.
  This amendment says that the six coconspirators who planned 9/11--
Khalid Shaikh Mohammed at the top of the list--will not be tried in 
Federal court because the day you do that, you will criminalize this 
war.
  In the first attack on the World Trade Center, the Blind Sheik was 
tried in Federal court, and the unindicted coconspirators list wound up 
in the hands of al-Qaida.
  Military commissions are designed to administer justice in a fair and 
transparent way, but they know and understand we are at war. Our 
civilian courts are not designed to deal with war criminals; the 
military system is.
  Khalid Shaikh Mohammed, the mastermind of 9/11, didn't rob a liquor 
store; he didn't commit a crime under domestic criminal law; he took 
this Nation to war and he killed 3,000 of our citizens. He needs to 
have justice rendered in the system that recognizes we are at war.
  Please support this idea of not criminalizing the war the second time 
around.
  The PRESIDING OFFICER. Who yields time?
  Mr. REED. Mr. President, we all recognize the severity of this issue 
and the passion the Senator from South Carolina brings to the issue. 
But since 9/11, we have tried 195 terrorists in article III courts; we 
have tried 3 in military commissions. I think we have recognized that 
our courts are durable enough to stand up to the issues of the 
culpability of these individuals and the magnitude of their actions. 
Secretary Gates and Attorney General Holder have asked for the option 
to use article

[[Page S11171]]

III courts or military commissions. We are preserving that if we reject 
the Graham amendment.
  Let me say something else. Our enemies see themselves as jihadists--
holy warriors. They don't object to being tried in military commissions 
because they see themselves as combatant warriors. They are criminals. 
They committed murder. The sooner we can convince the world that these 
aren't holy warriors, that they are criminals, the sooner we will take 
an advantage in this battle of ideas between those people and the 
system of laws and justice that we represent and try to protect and 
defend.
  So I recognize the sincerity and the passion of the Senator, but I 
would urge a vote against this amendment, and I move to table the 
amendment.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM. To my dear friend, this is the biggest issue of the day: 
Are they criminals? Are they warriors? Does it matter? These people are 
not criminals, they are warriors, and they need to be dealt with in a 
legal system that recognizes that.
  And to the 214 9/11 families who support my amendment, I understand 
that the people who killed your family members are at war with us. I 
hope the Senate will understand that so we don't have another.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Rhode Island.
  Mr. REED. Mr. President, do I have time remaining?
  The PRESIDING OFFICER. Twenty-five seconds.
  Mr. REED. Mr. President, this present statute that is on the books 
gives the Secretary of Defense the opportunity to recommend and the 
Attorney General the opportunity to prosecute in either an article III 
court or a military tribunal. I think that choice should be maintained.
  I would urge that we defeat this amendment.
  I move to table the amendment.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. REID. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 54, nays 45, as follows:

                      [Rollcall Vote No. 338 Leg.]

                                YEAS--54

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Warner
     Whitehouse
     Wyden

                                NAYS--45

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Cantwell
     Chambliss
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     LeMieux
     Lieberman
     Lincoln
     Lugar
     McCain
     McConnell
     Murkowski
     Pryor
     Risch
     Roberts
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Voinovich
     Webb
     Wicker

                             NOT VOTING--1

       
     Byrd
       
  The motion was agreed to.
  Mrs. MURRAY. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                    Amendment No. 2648, as Modified

  The PRESIDING OFFICER. There is now 2 minutes equally divided with 
respect to the Ensign amendment, No. 2648. The Senator from Nevada is 
recognized.
  Mr. ENSIGN. Mr. President, my amendment is very simple. It would add 
$172 million to the State Criminal Alien Assistance Program. This 
program provides payment to States that incur correctional officer 
salary costs for incarcerating undocumented criminal aliens for at 
least one felony or two misdemeanor convictions. This amendment is 
offset by simply an across-the-board decrease in spending, so it is 
budget neutral.
  I believe this is an important amendment. It is especially important 
if you are in one of the Southwestern States or border States. Local 
law enforcement in those states incur a lot of expenses; those 
associated with illegal immigrants, especially those who are criminals. 
I urge my colleagues to support this amendment and match what the House 
of Representatives did when they passed this amendment by a vote of 405 
to 1. Let's go along with the House of Representatives and make sure 
our local law enforcement has the resources they need to fight those 
who are here illegally and committing serious crimes.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SHELBY. Mr. President, I rise in opposition to the Ensign 
amendment. The State Criminal Alien Assistance Program, a program that 
was not requested by this nor the previous administration, is currently 
overfunded in this bill at $228 million. With the Ensign amendment, we 
are being asked to add $172 million to a program that barely touches 
most of our States. Since 2004, five States have received 71 percent of 
the $2.1 billion in funding for this program.
  Let me say that again, 71 percent, or $1.5 billion of the amount for 
this program since 2004, has gone to five States. This can hardly be 
called a national program.
  In 2008, during the CJS Senate floor debate a year ago, this 
amendment was tabled and rejected by a vote of 68 to 25. I strongly 
oppose this amendment and urge my colleagues to vote against this 
amendment.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, I support every comment made by my 
ranking member. I believe this amendment will cause the CJS bill to 
exceed its allocation, therefore I make a point of order the amendment 
violates section 302(f) of the Congressional Budget Act of 1974.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. To clear up a couple of facts, first of all, not every 
State has the same problem with illegal immigrants that other States 
do.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. ENSIGN. I move to waive the applicable sections of the Budget Act 
with respect to my amendment and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 32, nays 67, as follows:

                      [Rollcall Vote No. 339 Leg.]

                                YEAS--32

     Barrasso
     Baucus
     Bingaman
     Boxer
     Brownback
     Burr
     Chambliss
     Coburn
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Feinstein
     Graham
     Grassley
     Hagan
     Hatch
     Hutchison
     Isakson
     Johanns
     Kyl
     LeMieux
     McCain
     McConnell
     Nelson (NE)
     Reid
     Risch
     Roberts
     Tester
     Thune
     Wicker

                                NAYS--67

     Akaka
     Alexander
     Bayh
     Begich
     Bennet
     Bennett
     Bond
     Brown
     Bunning
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feingold
     Franken
     Gillibrand

[[Page S11172]]


     Gregg
     Harkin
     Inhofe
     Inouye
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--1

       
     Byrd
       
  The PRESIDING OFFICER. On this vote, the yeas are 32, the nays are 
67. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is not agreed to, the point of order is 
sustained, and the amendment falls.


                           Amendment No. 2393

  The question is on agreeing to amendment No. 2393.
  The amendment (No. 2393) was agreed to.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that it be in 
order to make a point of order against the remaining amendments.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. I make a point of order en bloc that amendments Nos. 
2644, 2627, 2646, 2625, 2642, and 2632 are either not germane 
postcloture or violate rule XVI.
  The PRESIDING OFFICER. The points of order are well taken. The 
amendments fall.


                    Amendment No. 2647, As Modified

  Ms. MIKULSKI. Mr. President, not withstanding the order regarding the 
passage of H.R. 2847, I now ask unanimous consent that amendment No. 
2647, as modified, be agreed to and the motion to reconsider be laid 
upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 2647), as modified, was agreed to.


       Effects of Research and Development and Energy on the GDP

  Mr. BINGAMAN. Speaking through the Chair to the manager of the 
Commerce-Justice-Science bill, I would like to ask if she is aware that 
the President's fiscal year 2010 budget for the Bureau of Economic 
Analysis contained two important initiatives to measure the impact that 
research and development as well as energy has on the gross domestic 
product?
  Ms. MIKULSKI. Yes, I am aware of these two important initiatives I 
know from the COMPETES Act, which I was integrally involved in with the 
Senator, that one of the more important policy questions is what effect 
research and development has on gross domestic product. There are many 
estimates that it is substantial and it is an important question for 
Congress to consider.
  Mr. BINGAMAN. As chairman of the Energy and Natural Resources 
Committee, I would also like to point out another initiative by the 
Bureau in the fiscal year 2010 budget on the effect of energy 
consumption on the gross domestic product. I believe that such 
macroeconomic information will be critical as we develop a 
comprehensive energy policy that is currently before the Congress.
  Ms. MIKULSKI. Yes, I am aware of the initiative and it is important 
we understand how the recent prices increases for the energy we use 
affects the overall gross domestic product.
  Mr. BINGAMAN. I would like to ask the manager if during conference 
with the House consideration can be given to help start these two 
initiatives so that we in Congress can begin to understand how these 
two important parameters affect our gross domestic product.
  Ms. MIKULSKI. I thank Senator Bingaman. I will work with the House 
and Senate conferees to give these two important initiatives the 
consideration they deserve.

                          ____________________