[Congressional Record Volume 159, Number 33 (Thursday, March 7, 2013)]
[Senate]
[Pages S1241-S1249]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF JOHN OWEN BRENNAN TO BE DIRECTOR OF THE CENTRAL
INTELLIGENCE AGENCY
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to executive session and resume consideration of
the following nomination, which the clerk will report.
The bill clerk read the nomination of John Owen Brennan, of Virginia,
to be Director of the Central Intelligence Agency.
Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. THUNE. 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for the quorum call be rescinded.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. THUNE. Mr. President, I ask unanimous consent that I be allowed
to speak as in morning business for up to 12 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Economic Growth
Mr. THUNE. Mr. President, I come to the floor to speak about spending
and its impact on economic growth. I think it is important Washington
closely considers the true impact Federal spending and our soaring
national debt are having on economic growth.
Over the past few weeks, the White House and the President have been
out campaigning across the country and making statements aimed at
causing fear and anxiety about the sequester. The White House has
painted the sequester--which, keep in mind, amounts to just 2.4 percent
of all Federal spending--as something which would lead to an economic
disaster in this country.
The White House attempts to cause fear and anxiety have fallen flat.
What is more, many of the claims which were made were simply false. In
fact, the critics agree.
Bill Keller wrote in the New York Times: ``The White House spent last
week in full campaign hysteria.''
The Washington Post issued four Pinocchios with regard to false
claims made by Education Secretary Arne Duncan about the sequester's
impact on teachers' jobs.
The National Journal states: ``The White House's strategy to
exaggerate the immediate impact of the cuts has backfired.''
In Politico: ``For all the hype, spin and blame exchanged over the
across-the-board cuts, the reality is they don't mean the sudden
economic collapse of America.''
It is important to see the sequester in its overall context. All the
hype associated with this could be analogous, I suppose, to all the
hype we had yesterday about the weather. Everybody expected we were
going to have the blizzard of 2013, and it never materialized. All of
the predictions with regard to doom and gloom relating to sequester
have also not amounted to very much.
The American people have picked up on that. I think most of them
agree, if you look at public opinion polls, that Washington does need
to tighten its belt. Washington does need to reduce its spending.
Washington needs to lessen the appetite it has to take more of the
American taxpayers' money and spend it on what most taxpayers view to
be not really necessary.
When you talk about a 2.4-percent reduction in overall Federal
spending, most Americans, when they evaluate their own financial
situations, come to the conclusion most of them probably could absorb,
if they had to, a 2.4-percent reduction in their own spending. They
would look at their budgets in very realistic ways. They would
scrutinize and examine where they could find spending which is low
priority, things they could live without. What we have seen here in
Washington from the administration is various heads of agencies and
departments going out and trying to identify the biggest, most high-
profile thing for dramatic effect in an attempt to scare and frighten
the American people.
The American people recognize, and hopefully the administration has
come to the conclusion as well, a 2.4-percent reduction in overall
Federal spending is something we need to absorb here in Washington, DC,
and demonstrate to the American people we are serious about getting
Washington's fiscal house in order.
I have long maintained the sequester is not the best way to rein in
Federal spending. There is a better way to do so. The reductions called
for in the sequester disproportionately impact certain areas of the
budget. We all know about the impact on the national security budget,
which represents only 20 percent of Federal spending but gets 50
percent of the cuts in the sequester.
I would have preferred a different approach. Given the refusal of
President Obama and Senate Democrats to come to the table and find
alternative savings, the sequester has gone into effect. The President
and most Senate Democrats wanted to see an increase in taxes, something
many of us believe would be very harmful to the economy. If you look at
what the President has already received in terms of tax increases since
he has been in office, it amounts to about $1.7 trillion.
If you look at the last 4 years and all the promises which were made
about additional spending, stimulus spending, $1 trillion in additional
stimulus spending back when the President first took office, how that
would impact the economy, we were told it would take unemployment down
below 6 percent. We all know what has happened. We continue to
experience sluggish, slow, anemic growth with chronic high
unemployment, and we continue to pile massive amounts of debt on the
backs of our children and grandchildren.
While the President has been seeking to cause alarm and cast blame
with regard to the sequester, one must question the economic arguments
he is making. The President and his allies in Congress claim he
inherited a bad economy and increased spending is necessary to
stimulate economic growth. President Obama's agenda, since he has been
in office, has been to spend more, tax more, and regulate more.
As I mentioned earlier, over $1.7 trillion in new taxes has been
imposed to be signed into law since he took office. The most recent of
that, the fiscal cliff, was $620 billion on January 1. If you add up
the tax increases in ObamaCare, there is over $1 trillion there. If you
look at the $518 billion in new regulations which have been approved
since the President took office, you may see we put an enormous amount
of cost, burden, new requirements, mandates, and harm to the economy
and the small businesses which create jobs: $1.7 trillion in new taxes,
the $518 billion in new regulations.
What has been the impact of those policies? It is pretty clear
average economic growth under this President has averaged eight-tenths
of 1 percent, .8 percent of the overall share of the economy, GDP. This
is less than 1 percent economic growth, on average, in the 4 years this
President has been in office.
To put it in perspective, if you look at past Presidents when we have
had economic downturns and recessions, President Reagan inherited a bad
economy too. When he came to office, we were faced with a series of
real economic circumstances: high inflation, high interest rates, and
weak growth.
President Reagan put in place policies which were progrowth. He
enacted progrowth tax reform, fewer regulations. The economy grew
nearly three times as fast as it has under President Obama's watch.
The point, very simply, is if you put the right policies in place, if
you make it less difficult and less expensive for our small businesses
and our job creators to create more jobs, there are more jobs and
economic growth. If you make it more difficult, more expensive, and
harder for our small businesses and our job creators to create jobs,
there are fewer jobs, less economic growth, and lower take-home pay for
American families and workers.
If the Obama recovery was as strong as Reagan's, our economy would be
$1.5 trillion larger today, meaning more jobs and more opportunity for
Americans. This is assuming if you were getting a comparable level of
growth in the economy. The fact is President Obama's spending, tax, and
regulatory policies are hamstringing economic recovery, jobs, and
opportunity.
Yesterday the Federal Reserve released the latest edition of its so-
called beige book or more formally known as
[[Page S1242]]
the Summary of Commentary on Current Economic Conditions. The beige
book stated the 2010 health care law is being cited as a reason for
layoffs and a slowdown in hiring.
This report, which examines economic conditions across various
Federal Reserve districts throughout the country, stated: ``Employers
in several districts cited the unknown effects of the Affordable Care
Act as reasons for planned layoffs and reluctance to hire more staff.''
It is clear President Obama's policies are the real threat to our
economy, not the sequester. A 2.4-percent across-the-board reduction in
Federal spending here in Washington, DC, clearly--if you look at the
rate of growth we have seen in spending since the President took office
of over 20 percent in 2009, in the overall scheme of things, is
something which is very reasonable. The American people see this as
reasonable overall.
On the contrary, if you look at policies the President has put in
place, whether this is more stimulus spending, growing government,
higher taxes, more regulations, we are getting a very different picture
of what those policies look like in terms of the impact on our economy.
We have seen negative impacts, high-level spending, and high annual
deficits during the President's first term. As a consequence of these
statistics, there is slower economic growth.
I ask unanimous consent to have printed in the Record an opinion
piece by Michael Boskin, which he wrote earlier in the week. In this
article Mr. Boskin makes the case that spending cuts will actually help
the economy: ``Standard Keynsian models that claim a quick boost from
higher government spending showed the effect quickly turns negative. So
the spending needs to be repeated over and over, like a drug, to keep
the hypothetical positive effect going.''
Mr. Boskin points to an academic study which found returning spending
to pre-crisis, pre-Obama levels--about a 3-percent reduction in
spending as a percentage of our entire GDP--would increase short-term
economic growth because expectations of lower future taxes and debt
lead to higher incomes, more private spending, and investment.
[From the Wall Street Journal, Mar. 4, 2013]
Larger Spending Cuts Would Help the Economy
(By Michael J. Boskin)
President Obama's most recent prescription for economic
growth--more government stimulus spending, new social
programs, higher taxes on upper-income earners, subsidies for
some industries and increased regulation for all of them--is
likely to have the same anemic results as in his first
administration.
Recall: The $825 billion stimulus program did little
economic good at a cost of hundreds of thousands of dollars
per job, even based on the administration's own inflated job
estimates. Cash for Clunkers cost $3 billion merely to shift
car sales forward a few months. The PPIP (Public-Private
Investment Program for Legacy Assets) to buy toxic assets
from the banks to speed lending generated just 3% of the $1
trillion that the program planners anticipated.
And now? Mr. Obama proposes universal preschool ($25
billion per year), ``Fix it First'' repairs to roads and
bridges, plus an infrastructure bank ($50 billion), ``Project
Rebuild,'' refurbishing private properties in cities ($15
billion), endless green-energy subsidies, and a big hike in
the minimum wage. The president and Senate Democrats also
demand that half the spending cuts under sequestration be
replaced with higher taxes.
These proposals are ill-considered. The evidence sadly
suggests the initial improvement in children's cognitive
skills from ``Head Start'' quickly evaporates. Higher minimum
wages increase unemployment among low-skilled workers. A
dozen recent studies in peer-reviewed journals, including one
by the president's former chief economic adviser Christina
Romer, document the negative effects of higher taxes on the
economy.
As for adventures in industrial policy, former Obama
economic adviser Larry Summers wrote a memo in 2009 about the
impending $527 million loan guarantee to Solyndra and other
recipients of government largess. ``The government is a
crappy v.c. [venture capitalist],'' he wrote, in what is also
the best postmortem. In 2010, Harvard economist Edward
Glaeser concluded in the New York Times that infrastructure
is poor stimulus because ``It is impossible to spend quickly
and wisely.'' Federal infrastructure spending should be dealt
with in regular appropriations.
Will more spending today stimulate the economy? Standard
Keynesian models that claim a quick boost from higher
government spending show the effect quickly turns negative.
So the spending needs to be repeated over and over, like a
drug, to keep this hypothetical positive effect going. Japan
tried that to little effect, starting in the 1990s. It now
has the highest debt-to-GDP ratio among the countries of the
Organization for Economic Cooperation and Development--and
that debt is a prime cause, as well as effect, of Japan's
enduring stagnation.
The United States is heading in this wrong direction. Even
if the $110 billion in annual sequestration cuts are allowed
to take place, the Congressional Budget Office projects that
annual federal spending will increase by $2.4 trillion to
$5.9 trillion in a decade. The higher debt implied by this
spending will eventually crowd out investment, as holdings of
government debt replace capital in private portfolios. Lower
tangible capital formation means lower real wages in the
future.
Since World War II, OECD countries that stabilized their
budgets without recession averaged $5-$6 of actual spending
cuts per dollar of tax hikes. Examples include the
Netherlands in the mid-1990s and Sweden in the mid-2000s. In
a paper last year for the Stanford Institute for Economic
Policy Research, Stanford's John Cogan and John Taylor, with
Volker Wieland and Maik Wolters of Frankfurt, Germany's
Goethe University, show that a reduction in federal spending
over several years amounting to 3% of GDP--bringing
noninterest spending down to pre-financial-crisis levels--
will increase short-term GDP.
Why? Because expectations of lower future taxes and debt,
and therefore higher incomes, increase private spending. The
U.S. reduced spending as a share of GDP by 5% from the mid-
1980s to mid-1990s. Canada reduced its spending as share of
GDP by 8% in the mid-'90s and 2000s. In both cases, the
reductions reinforced a period of strong growth.
An economically ``balanced'' deficit-reduction program
today would mean $5 of actual, not hypothetical, spending
cuts per dollar of tax hikes. The fiscal-cliff deal reached
on Jan. 1 instead was scored at $1 of spending cuts for every
$40 of tax hikes.
Keynesian economists urge a delay on spending cuts on the
grounds that they will hurt the struggling economy. Yet at
just one-quarter of 1% of GDP this year, $43 billion of this
year's sequester cuts in an economy with a GDP of more than
$16 trillion is unlikely to be a major macroeconomic event.
Continued delay now leaves a long boom as the only time to
control spending. There was some success in doing this in the
mid-1990s under President Clinton and a Republican Congress.
More commonly the opposite occurs: A boom brings a surge in
tax revenues and politicians are anxious to spread the
spending far and wide.
In any case, the demand by Mr. Obama and Senate Democrats
that any dollar of spending cuts in budget agreements this
spring (to fund the government for the rest of the fiscal
year and when the debt limit again approaches) be matched by
an additional dollar of tax hikes is economically unbalanced
in the extreme. Those who are attempting to gradually slow
the growth of federal spending while minimizing tax hikes
have sound economics on their side.
Mr. THUNE. To wrap up and put this into perspective, Federal spending
has increased nearly 20 percent since 2009. Sequestration, the across-
the-board spending reductions which will occur under the sequester,
amount to a reduction of 2.4 percent out of a $3.5 trillion budget.
Even with the sequester, the government will spend more this year than
it did last year.
I would hope the President would begin to be honest with the American
people about the impact of his tax hikes, his spending, and new
regulations are having on our Nation's economic growth and recovery;
more important, coming to the conclusion and being honest with the
American people about that, change his policies; actually come to a
conclusion based on what we have seen, 4 years of his policies, which
is slow growth, and a .8 percent economic growth on average for the
past 4 years. There is also, as I said before, high unemployment,
chronic unemployment--which is still around that 8-percent level--and
massive amounts of new debt we are piling on the backs of future
generations.
Not only do we need the President, in terms of his rhetoric, to be
honest with the American people, we need him to change his policies and
take an honest look at the relationship between spending and economic
growth. This shows the sequester will not have long-term negative
impacts on the economy. We need to put the Federal Government on a
stable fiscal path in order to create the kind of economic certainty
needed in this country to grow the economy and create jobs.
Less spending by Washington, DC, actually will lead to greater
economic growth, a private economy, more jobs for the American people,
and higher take-home pay.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona.
[[Page S1243]]
Mr. McCAIN. Mr. President, I ask unanimous consent to address the
Senate as if in morning business and ask to be joined in colloquy with
the Senator from South Carolina, Senator Graham.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Drone Program
Mr. McCAIN. Mr. President, I wish to quote from this morning's
editorial in the Wall Street Journal entitled ``Rand Paul's Drone
Rant.'' I wish to read for the edification of my colleagues the
editorial which was in the Wall Street Journal, a credible media
outlet, this morning.
The Wall Street Journal reads:
Give Rand Paul credit for theatrical timing. As the storm
descended on Washington, the Kentucky Republican's old-
fashioned filibuster Wednesday filled the attention void on
Twitter and cable TV. If only his reasoning matched the
showmanship.
Shortly before noon, Senator Paul began talking filibuster
against John Brennan's nomination to lead the CIA. The tactic
is rarely used in the Senate and was last seen in 2010. But
Senator Paul said an ``alarm'' had to be sounded about the
threat to Americans from their own government. He promised to
speak ``until the President says, no, he will not kill you at
a cafe.'' He meant by a military drone. He's apparently
serious, though his argument isn't.
Senator Paul had written the White House to inquire about
the possibility of a drone strike against a U.S. citizen on
American soil. Attorney General Eric Holder replied that the
U.S. hasn't and ``has no intention'' to bomb any specific
territory. Drones are limited to the remotest area of
conflict zones like Pakistan and Yemen. But as a hypothetical
constitutional matter, Mr. Holder acknowledged the President
can authorize the use of lethal military force within U.S.
territory.
This shocked Senator Paul, who invoked the Constitution and
Miranda rights. Under current U.S. policy, Mr. Paul mused on
the floor, Jane Fonda could have been legally killed by a
Hellfire missile during her tour of Communist Hanoi in 1972.
A group of noncombatants sitting in public view in Houston
may soon be pulverized, he declared.
Calm down, Senator. Mr. Holder is right, even if he doesn't
explain the law very well. The U.S. Government cannot
randomly target American citizens on U.S. soil or anywhere
else.
I repeat that: The U.S. Government cannot randomly target American
citizens on U.S. soil or anywhere else.
What it can do under the laws of war is target an ``enemy
combatant'' anywhere at any time, including on U.S. soil.
This includes a U.S. citizen who is also an enemy combatant.
The President can designate such a combatant if he belongs to
an entity--a government, say, or a terrorist network like al-
Qaida--that has taken up arms against the United States as
part of an internationally recognized armed conflict. That
does not include Hanoi Jane.
Such a conflict exists between the U.S. and al-Qaida, so
Mr. Holder is right that the U.S. could have targeted (say)
U.S. citizen Anwar al-Awlaki had he continued to live in
Virginia. The U.S. killed him in Yemen before he could kill
more Americans. But under the law al-Awlaki was no different
than the Nazis who came ashore on Long Island in World War
II, were captured and executed.
The country needs more Senators who care about liberty, but
if Mr. Paul wants to be taken seriously, he needs to do more
than pull political stunts that fire up impressionable
libertarian kids in their college dorms. He needs to know
what he's talking about.
I watched some of that ``debate'' yesterday. I saw colleagues of mine
who know better come to the floor and voice this same concern, which is
totally unfounded. I must say that the use of Jane Fonda's name does
evoke certain memories with me, and I must say she is not my favorite
American, but I also believe that as odious as it was, Ms. Fonda acted
within her constitutional rights. To somehow say that someone who
disagrees with American policy, and even may demonstrate against it, is
somehow a member of an organization which makes that individual an
enemy combatant is simply false. It is simply false.
I believe we need to visit this whole issue of the use of drones--who
uses them, whether the CIA should become their own Air Force, what the
oversight is. The legal and political foundation for this kind of
conflict needs to be reviewed.
Relating to this, let me quote from an article by Jack Goldsmith that
was in the Washington Post on February 5, 2013, entitled: ``U.S. needs
a rulebook for secret warfare.''
The legal foundation rests mostly on laws designed for
another task that government lawyers have interpreted,
without public scrutiny, to meet new challenges. Outside the
surveillance context, Congress as a body has not debated or
approved the means or ends of secret warfare. Because secret
surveillance and targeted strikes, rather than U.S. military
detention, are central to the new warfare, there are no
viable plaintiffs to test the government's authorities in
court. In short, executive-branch decisions since 2001 have
led the Nation to a new type of war against new enemies on a
new battlefield without enough focused national debate,
deliberate congressional approval or real judicial review.
What the government needs is a new framework statute--akin
to the National Security Act of 1947, or the series of
intelligence reforms made after Watergate, or even the 2001
authorization of force--to define the scope of the new war,
the authorities and limitations on presidential power, and
forms of review of the President's actions.
I don't think we should have any doubt there are people both within
the United States of America and outside it who are members of
terrorist organizations and who want to repeat 9/11. All of us thank
God there has not been a repeat of 9/11. Most of the experts I know
will say there has been a certain element of luck--a small element but
still an element of luck, such as the Underwear Bomber and others--that
has prevented a devastating attack on the United States. But to somehow
allege or infer the President of the United States is going to kill
somebody such as Jane Fonda or someone who disagrees with the
government's policies is a stretch of imagination which is, frankly,
ridiculous--ridiculous.
I don't disagree that we need more debate, more discussion, and,
frankly, probably more legislation to make sure America does protect
the rights of all our citizens and to make sure, at the same time, if
someone is an enemy combatant, that enemy combatant has nowhere to
hide--not in a cafe, not anywhere. But to say that somehow, even though
we try to take that person, that we would hit them in a cafe with a
Hellfire missile--well, first of all, there are no drones with Hellfire
missiles anywhere near. They are over in places such as Yemen and
Afghanistan and other places around the world.
We have done a disservice to a lot of Americans by making them
believe that somehow they are in danger from their government. They are
not. But we are in danger--we are in danger--from a dedicated,
longstanding, easily replaceable leadership enemy that is hellbent on
our destruction, and this leads us to having to do things perhaps we
haven't had to do in other more conventional wars.
I don't believe Anwar al-Awlaki should have been protected anywhere
in the world, but that doesn't mean they are going to take him out with
a Hellfire missile. It means we are going to use our best intelligence
to apprehend and debrief these people so we can gain the necessary
intelligence to bring them all to justice.
All I can say is, I don't think what happened yesterday is helpful
for the American people. We need a discussion, as I said, about exactly
how we are going to address this new form of almost interminable
warfare, which is very different from anything we have ever faced in
the past, but somehow to allege the United States of America, our
government, would drop a drone Hellfire missile on Jane Fonda, that
brings the conversation from a serious discussion about U.S. policy to
the realm of the ridiculous.
I would also like to add an additional note. About 42 percent, as I
am told, of the Members of this Senate are here for 6 years or less.
Every time a majority party is in power, they become frustrated with
the exercise of the minority and their rights in the Senate. Back some
years ago, when the Republicans--this side of aisle--were in the
majority, we were going to eliminate the ability to call for 60 votes
on the confirmation of judges. We were able to put that aside. There
was another effort at the beginning of this Senate to do away with 60
votes and go back down to 51, which, in my view, would have destroyed
the Senate.
A lot of us worked very hard--a group of us--for a long time to come
up with some compromises that would allow the Senate to move more
rapidly and efficiently but at the same time preserving the 60-vote
majority requirement on some pieces of legislation. What we saw
yesterday is going to give ammunition to those critics who say the
rules of the Senate are being abused. I hope my colleagues on this side
of the aisle will take that into consideration.
[[Page S1244]]
I note the presence of the Senator from South Carolina. The Senator
from South Carolina, as many of our colleagues know, is a lawyer. He
has been a military lawyer in the Air Force Reserve for over 20 years.
If there is anyone in the Senate who knows about this issue from a
legal and technical standpoint, it is my colleague from South Carolina.
I ask my colleague from South Carolina, is there any way the
President of the United States could just randomly attack someone, with
a drone or a Hellfire missile, without that person being designated an
enemy combatant?
And I don't think, as much as I hate to say it, that applies to Jane
Fonda.
Mr. GRAHAM. I thank my colleague. That is a very good question.
This has been a very lively debate. Senator Paul has a lot of
passion, and that is a great thing. This is an important issue. We
should be talking about it, and I welcome a reasoned discussion. But to
my Republican colleagues, I don't remember any of you coming down here
suggesting that President Bush was going to kill anybody with a drone--
I don't even remember the harshest critics of President Bush from the
Democratic side. They had a drone program back then, so what is it all
of a sudden about this drone program that has gotten every Republican
so spun up? What are we up to here?
I think President Obama has, in many ways, been a very failed
President. I think his executive orders overstep, I think he has
intruded into the congressional arena by Executive order, I think
ObamaCare is a nightmare, and there are 1,000 examples of a failed
Presidency, but there is also some agreement. People are astonished, I
say to the Senator, that President Obama is doing many of the things
President Bush did. I am not astonished. I congratulate him for having
the good judgment to understand we are at war.
To my party, I am a bit disappointed that you no longer apparently
think we are at war. Senator Paul, he is a man unto himself. He has a
view I don't think is a Republican view. I think it is a legitimately
held libertarian view.
Remember, Senator Paul was the one Senator who voted against a
resolution that said the policy of the United States will not be to
contain a nuclear-capable Iran. It was 90 to 1. To his credit, he felt
that would be provocative and it may lead to a military conflict. He
would rather have a nuclear-capable Iran than use military force, and
he said so--to his credit. Ninety of us thought, well, we would like
not to have a military conflict with Iran, but we are not going to
contain a nuclear-capable Iran because it is impossible.
What would happen is that if Iran got a nuclear weapon, the Sunni
Arab States would want a nuclear weapon, and most of us believe they
would share the technology with the terrorists, who would wind up
attacking Israel and the United States. It is not so much that I fear a
missile coming from Iran; I fear, if they got a nuclear weapon or
nuclear technology, they would give it to some terrorist organization--
like they gave IEDs to the Shia militia in Iraq to kill Americans--and
they would wreak havoc on the world.
So we don't believe in letting them have it and trying to contain
them because we believe their association with terrorism is too long
and too deep, that it is too dangerous for Israel and too dangerous for
us. But Senator Paul, to his credit, was OK with that; I just disagree
with him.
As to what he is saying about the drone program, he has come our way
some, and I appreciate that. Before, he had some doubt in his mind as
to whether we should have killed Anwar al-Awlaki in Yemen--an American
citizen who had collaborated with al-Qaida and was actually one of the
military leaders of al-Qaida in Yemen, who had radicalized Major Hasan,
and who had been involved in planning terrorist attacks against U.S.
forces throughout the region.
President Obama was informed through the military intelligence
community channels of Anwar al-Awlaki's existence, all the videos he
made supporting Jihad and killing Americans, and he, as Commander in
Chief, designated this person as an enemy combatant.
Mr. President, you did what you had the authority to do, and I
congratulate you in making that informed decision.
And the process to get on this target list is very rigorous--I think
sometimes almost too rigorous.
But now, apparently, Senator Paul says it is OK to kill him because
we have a photo of him with an RPG on his shoulder. He has moved the
ball. He is saying now that he wants this President to tell him he will
not use a drone to kill an American citizen sitting in a cafe having a
cup of coffee who is not a combatant. I find the question offensive.
As much as I disagree with President Obama, as much as I support past
Presidents, I do not believe that question deserves an answer because,
as Senator McCain said, this President is not going to use a drone
against a noncombatant sitting in a cafe anywhere in the United States,
nor will future Presidents because if they do, they will have committed
an act of murder. Noncombatants, under the law of war, are protected,
not subject to being killed randomly.
So to suggest that the President won't answer that question somehow
legitimizes that the drone program is going to result in being used
against anybody in this room having a cup of coffee cheapens the debate
and is something not worthy of the time it takes to answer.
Mr. McCAIN. May I ask my colleague a question especially on that
subject.
A lot of our friends--particularly Senator Paul and others--pride
themselves on their strict adherence to the Constitution and the
decisions of the U.S. Supreme Court.
Isn't it true that as a result of an attack on Long Island during
World War II, an American citizen--among others--was captured and hung
on American soil, and the U.S. Supreme Court upheld that execution
because that individual was an enemy combatant? Does that establish
without a doubt the fact that these are enemy combatants, and no matter
where they are, they are subject to the same form of justice as the
terrorists in World War II were?
Mr. GRAHAM. It has been a long-held concept in American jurisprudence
that when an American citizen sides with the enemies of our Nation,
they can be captured, held, and treated as an enemy combatant; they
have committed an act of war against our country, not a common crime.
In World War II, German saboteurs landed on Long Island. They had
been planning and training in Germany to blow up a lot of
infrastructure--and some of it was in Chicago. So they had this fairly
elaborate plan to attack us. They came out of a submarine. They landed
on Long Island. And the plan was to have American citizens sympathetic
to the Nazi cause--of German origin, most of them--meet them and
provide them shelter and comfort. Well, the FBI back then broke up that
plot, and they were arrested. The American citizens were tried by
military commission, they were found guilty, and a couple of them were
executed.
Now, there has been a case in the war on terror where an American
citizen was captured in Afghanistan. Our Supreme Court reaffirmed the
proposition that we can hold one of our own as an enemy combatant when
they align themselves with the forces against this country.
This Congress, right after the September 11 attacks, designated
authorization to use military force against al-Qaida and affiliated
groups. So the Congress has given every President since 9/11 the
authority to use military force against al-Qaida and affiliated groups.
And American citizens such as Anwar al-Awlaki and that guy Hamdi who
was captured in Afghanistan have been treated as enemy combatants, and
if President Obama does that, he is doing nothing new or novel.
What would be novel is for us to say that if a terrorist cell came to
the United States, if an al-Qaida cell was operating in the United
States, that is a common crime and the law of war doesn't apply. It
would be the most perverse situation in the world for the Congress to
say that the United States itself is a terrorist safe haven when it
comes to legal rights; that we can blow you up with a drone overseas,
we can capture you in Afghanistan and hold you under the law of war,
but if there is a terrorist cell operating in the
[[Page S1245]]
United States, somehow you are a common criminal and we will read you
your Miranda Rights.
I just have this one question to get Senator McCain's thoughts. I
hope we realize that, hypothetically, there are patriot missile
batteries all over Washington that could interdict an airplane coming
to attack this Capitol or the White House or other vital government
facilities.
I hope the Senator understands--Senator McCain is a fighter pilot--
that there are F-15s and F-16s on 3-minute to 5-minute alert all up and
down the east coast. If there is a vessel coming into the United States
or a plane has been hijacked or a ship has been hijacked that is loaded
with munitions or the threat is real and they have taken over a craft
and are about to attack us, I hope all of us would agree that using
military force in that situation is not only lawful under the
authorization to use military force, it is within the inherent
authority of the Commander in Chief to protect us all.
Mr. McCAIN. And should not be construed as an authority to kill
somebody in a cafe.
Mr. GRAHAM. It should be construed as a reasonable ability to defend
the homeland against a real threat. And the question is, Do you feel
threatened anymore? I do. I think al-Qaida is alive and well.
And to all those who have been fighting this war for a very long
time, multiple tours in Iraq and Afghanistan, who have tried to keep
the war over there so it doesn't come here, to the failed plots that
have been broken up by the CIA and the FBI, God bless you. We have to
be right every time; they only have to be right once.
If you think the homeland is not a desire of al-Qaida, it is
absolutely on the top of their list. They are recruiting American
citizens to their cause, and unfortunately a few will probably go over
to their side. Thank God it will be just a few.
But to take this debate into the absurd is what I object to. We can
have reasonable disagreements about, the regulatory nature of the drone
program should be under the Department of Defense and what kind of
oversight Congress should have. I think that is a really good
discussion, and I would like to work with Senator Durbin and others to
craft--the Detainee Treatment Act was where Congress got involved with
the executive branch to come up with a way to better handle the
detainee issue.
But the one thing I have been consistent about is I believe there is
1 Commander in Chief, not 535, and I believe this Commander in Chief
and all future Commanders in Chief are unique in our Constitution and
have an indispensable role to play when it comes to protecting the
homeland. If we have 535 commanders in chief, then we are going to be
less safe. And if you turn over military decisions to courts, then I
think you have done the ultimate harm to our Nation--you have
criminalized the war. And I don't think our judiciary wants that.
So as much as I disagree with President Obama, I think you have been
responsible in the use of the drone program overseas. I think you have
been thorough in your analysis. I would like to make it more
transparent. I would like to have more oversight.
As to the accusation being leveled against you that if you don't
somehow answer this question, we are to assume you are going to use a
drone--or the administration or future administrations would--to kill
somebody who is a noncombatant--no intelligence to suggest there are
enemy combatants sitting in a cafe hit by a Hellfire missile--I think
it is really off base.
I have this one final thought. If there is an al-Qaida operative U.S.
citizen who is helping the al-Qaida cause in a cafe in the United
States, we don't want to blow up the cafe. We want to go in there and
grab the person for intelligence purposes.
The reason we are using drones in Afghanistan and Pakistan is we
don't have any military presence along the tribal border. The reason we
are having to use drones is we can't capture people. The preference is
to capture them, not to kill them. But there are certain areas where
they operate that the only way we can get to them is through a drone
strike.
Mr. McCAIN. And may I say to my friend that there are scenarios where
there could be an extreme situation where there is a direct threat. We
could draw many scenarios--a bomb-laden, explosive-laden vehicle headed
for a nuclear powerplant--where the President of the United States may
have to use any asset the President has in order to prevent an
impending catastrophic attack on the United States of America. And that
is within the realm of possible scenarios.
So to somehow say that we would kill people in cafes and therefore
drone strikes should never be used under any circumstances I believe is
a distortion of the realities of the threats we face.
As we are speaking, there are people who are plotting to attack the
United States of America. We know that. At the same time, we are ready,
as the Senator said, to discuss, debate, and frame legislation that
brings us up to date with the new kind of war we are in. But to somehow
have a debate and a discussion that we would have killed Jane Fonda
does, in my view, a disservice to the debate and discussion that needs
to be conducted.
Mr. GRAHAM. That is a very good point.
I look forward to a discussion about how to deal with a drone
program. It is just a tactical weapon. It is an air platform without a
pilot.
Now, if there is a truck going toward a military base or nuclear
powerplant, we have a lot of assets to interdict that truck. Maybe you
don't need the F-16. But I guarantee you, if there was a hijacked
aircraft coming to the Capitol, the President of the United States
would be well within his rights to order the Patriot missile battery to
shoot that plane down or have an F-16 shoot it down. And we are ready
for that, by the way.
I would just suggest one thing. The number of Americans killed in the
United States by drones is zero. The number of Americans killed in the
United States by al-Qaida is 2,958. The reason it is not 2 million, 20
million, or 200 million is because they can't get the weapons to kill
that many of us. The only reason it is 2,958 is because their weapons
of choice couldn't kill more. Their next weapon of choice is not going
to be a hijacked airplane up there; it is going to be some nuclear
technology or a chemical weapon, a weapon of mass destruction. That is
why we have to be on our guard.
When you capture someone who is associated with al-Qaida, the best
thing is to hold them for interrogation purposes. We found bin Laden
not through torture, we found bin Laden through a decade of putting the
puzzle together.
Senator Durbin and Senator McCain, both are very effective advocates
that we have to live within our values and that when we capture
somebody, we are going to hold them under the law of war. We are going
to explore the intelligence, but we are going to do it within the laws
that we signed up to, such as the Geneva Conventions, the Convention
Against Torture.
Mr. DURBIN. Will the Senator yield for a question?
Mr. GRAHAM. Absolutely.
Mr. DURBIN. I very briefly thank my colleagues on the other side of
the aisle. It was 12 hours ago when I was standing right here, a lonely
voice among others who were discussing this issue, bringing up the
points the Senator raises. The first is the drone is a weapon. There
are many weapons that can deliver lethal force. We should view this as
an issue of lethal force, not an issue of drones per se--although it
may raise some particular questions in application. It is largely a
question of lethal force.
The second question has been raised by both Senators. What if the
fourth airplane had not been brought down by the passengers? What if
that plane were headed for this Capitol Building and all other planes
had been landed across America under orders of our government and we
knew this plane was the fourth plane in control of the terrorists, what
authority did President Bush have as Commander in Chief at that moment?
I don't think anyone would question he had the authority to use
lethal force to stop the terrorists from using that plane as a fourth
weapon against the United States.
There was no debate last night about that particular point. This
notion--and I am glad this point has been raised--that we are somehow
going to use drones to kill people sipping coffee in
[[Page S1246]]
cafes is ludicrous. It is absurd. It goes beyond the obvious. We need
those people. Bringing those people into our control gives us more
information.
Second, for goodness' sake, the collateral damage of something that
brutish would be awful. So I thank the Senator for putting it in
perspective.
I think Attorney General Holder could have been more artful in his
language yesterday, but at the end of the day, even Senator Cruz
acknowledged he said it would be unconstitutional to use this kind of
lethal force if there weren't an imminent threat pending against the
United States.
Mr. McCAIN. If I may say real quickly, an imminent threat.
MR. DURBIN. Yes.
Mr. McCAIN. We may have to do a little better job of defining that,
but to say imminent threat would then translate into killing somebody
in a cafe is not a mature debate or discussion.
Mr. GRAHAM. If I can add, let me tell the Senator about imminent
threat and military law. In Iraq we had disabled terrorist insurgents.
There was a big debate in the Marine Corps because under military law
when a lawful combatant, a person in uniform, has been disabled and it
does not present an imminent threat, we don't have the ability to shoot
them. OK.
The terrorists in Iraq put IEDs on wounded belligerents, unlawful
enemy combatants. So the Marine Corps wrestled very long and hard with
the rules of engagement. If you come upon somebody who is wounded,
apparently was disabled, under what circumstances could you use lethal
force because they may be booby-trapped.
To the Marine Corps' credit, they came up with a balance between who
we are--we just don't shoot even our enemies who are helpless and
wounded--and the ability for force protection.
Here is what I would say about the circumstance in question. The
process of determining who an enemy combatant is has always been a
military process. It is not a congressional debate. Our committees
don't get a list of names and we vote on whether we think they are
enemy combatants. Courts don't have trials over who is an enemy
combatant. If there is a question about enemy combatant status under
the Geneva Conventions, you are entitled to a single hearing officer
and that is all. In World War II, there were a lot of people captured
in German uniform who claimed they were made to wear the uniform by the
Germans. All of them had a hearing on the battlefield by a single
officer. It has been long held by military law it is a military
decision, not judicial decision or legislative decision, to determine
the enemy of the nation.
So President Obama has taken this far beyond what was envisioned.
This administration has a very elaborate process to determine who
should be determined to be an enemy combatant. I think it is thorough.
I think it has many checks and balances. As much as I disagree with
this President on many issues, I would never dream of taking that right
away from him because he is the same person, the Commander in Chief,
whoever he or she may be in the future, that we give the authority to
order American citizens in battle where they may die. He has the
authority to pick up a phone, Senator McCain, and say you will launch
today, and you may not come back.
I cannot imagine a Congress who is OK with the authority to order an
American citizen in battle--we don't want to take that away from him, I
hope--that is uncomfortable with the same American determining who the
enemy we face may be.
As to American citizens, here is the law. If you collaborate with al-
Qaida or their affiliates and you are engaged in helping the enemy, you
are subject to being captured or killed under the law of war. What is
an imminent threat? The day that you associate yourself with al-Qaida
and become part of their team, everywhere you go and everything you do
presents a threat to the country. So why do we shoot people walking
down the road in Pakistan? They don't have a weapon. There is no
military person in front of them who is threatened. The logic is that
once you join al-Qaida, you are a de facto imminent threat because the
organization you are supporting is a threat.
For someone to suggest we have to let them walk down the road, go
pick up a gun and head toward our soldiers before you can shoot them is
not very healthy for the soldier they are trying to kill and it would
be a total distortion of law as it exists. Back here at home, and I
will conclude----
Mr. DURBIN. If the Senator will allow just one last comment and I
thank him for the statement on the floor--from both my colleagues. The
Judiciary Committee's Subcommittee on the Constitution is going to have
a hearing, it is already scheduled, on this issue of drones. There are
legitimate questions to be raised and answered.
Mr. GRAHAM. There are.
MR. DURBIN. I might add that in my conversations with the President
he welcomes this. He has invited us to come up with a legal
architecture to make certain it is consistent with existing precedent
and military law and other court cases as well as our Constitution. I
think that is a healthy environment for us to have this hearing and
invite all points of view and try to come up with a reasonable
conclusion.
Mr. GRAHAM. I could not welcome that more. It worked with the
Detainee Treatment Act, it worked with the Military Commissions Act. I
think it is the right way to go.
Mr. McCAIN. Madam President, I think that concludes our discussion. I
would agree with the Senator from Illinois and my colleague from South
Carolina that we need hearings. We need to discuss how we conduct
this--the United States, in what appears to be, for all intents and
purposes, an interminable conflict that we are in and we have to adjust
to it. But that conversation should not be talking about drones killing
Jane Fonda and people in cafes. It should be all about what authority
and what checks and balances should exist in order to make it a most
effective ability to combat an enemy that we know will be with us for a
long time.
Mr. GRAHAM. If I could just have 2 minutes of wrapup, I will. To my
fellow citizens, the chance of you being killed by a drone--because you
go to a tea party rally or a moveon.org rally or any other political
rally or you are just chatting on the Internet quietly at home--by your
government through the use of a drone is zero, under this
administration and future administrations. If that day ever happened,
the President of the United States or whomever ordered such an attack
would have committed murder and would be tried. I don't worry about
that.
Here is what I worry about; that al-Qaida, who has killed 2,958 of
us, is going to add to the total if we let our guard down. I will do
everything in my power to protect this President, whom I disagree with
a lot, and future Presidents from having an ill-informed Congress take
over the legitimate authority under the Constitution and the laws of
this land to be the Commander in Chief on behalf of all of us.
As to any American citizen thinking about joining with al-Qaida at
home or abroad: You better think twice because here is what is going to
come your way. If we can capture you, we will. You will be
interrogated. You will go before a Federal judge and one day you will
go before a court and you will have a lot of legal rights, but if you
are found guilty, woe be unto you.
Here is another possibility. If you join with these thugs and these
nuts to attack your homeland and if we have no ability to capture you,
we will kill you and we will do it because you made us. The process of
determining whether you have joined al-Qaida is not going to be some
Federal court trial. It is not going to be a committee meeting in the
Congress. Because if we put those conditions on our ability to defend
ourselves, we cannot act in real time.
Bottom line: I think we are at war. I think we are at war with an
enemy who would kill us all if he could, and every war America has been
in we have recognized the difference between fighting crime and
fighting a war. If you believe, as I do, we are at war, those who aid
our enemies are not going to be treated as if they robbed a liquor
store. They are going to be treated as the military threat they are.
Mr. McCAIN. Madam President, I thank my colleague and also thank the
Senator from Illinois for his engagement. In closing, I would like to
congratulate my friend from South Carolina for his best behavior last
night at dinner. He was on his best manners and everyone was very
impressed.
[[Page S1247]]
I yield the floor.
The PRESIDING OFFICER (Ms. Baldwin). The Senator from Colorado.
Mr. UDALL of Colorado. Madam President, I rise in support of the
nomination of John Brennan to be the next director of the Central
Intelligence Agency. Mr. Brennan earned a bipartisan vote of 12-3 in
the Senate Intelligence Committee, on which I serve. He is clearly
qualified to lead the CIA and deserved that bipartisan vote in
committee. And he deserves confirmation by the full Senate today.
I say that in spite of the difficulties my colleagues and I
encountered in extracting information and commitments throughout the
confirmation process. Our concerns were less about John Brennan himself
and more about the role that the next CIA director needs to play. And
we believe that the information and commitments we finally secured from
him and from the White House are extraordinarily relevant to the role
of any CIA director.
Alongside several of my colleagues, I fought to enhance transparency
and preserve our system of checks and balances. The American people
have the expectation that their government is upholding the principles
of oversight and accountability.
Consistent with our national security, the presumption of
transparency should be the rule, not the exception. The government
should make as much information available to the American public as
possible, while protecting national security.
We have seen during previous administrations the problems that can
arise when even the intelligence committees are left out of the loop:
warrantless wiretapping, extraordinary detention and torture. Ben
Franklin put it well when he said: ``Those who would sacrifice liberty
for security deserve neither.''
Congressional oversight is critical to ensure that we sacrifice
neither, as we pursue a smart, but tough, national security strategy,
especially in this age of new forms of warfare.
This was true over the past several months, as I joined Senator Wyden
and others in pushing hard for access to the legal justification used
by the executive branch to lethally target Americans using drones. The
fact that we had to push so hard, I am sorry to say, no doubt erodes
the government's credibility with the American people. But it also
gives us an opportunity--and a good reason--to maintain and strengthen
our system of checks and balances.
I am glad the Administration met our requests and is giving members
of the Intelligence Committee access to legal opinions on targeting
American citizens. This is an important first step. But there is more
to be done for Congress to understand the limits on the drone program.
Madam President, our government has an obligation to the American
people to face its mistakes transparently, help the public understand
the nature of those mistakes, and then correct them. In this regard,
the next Director of the CIA has an important task.
The specific mistakes I am referring to are outlined in the
Intelligence Committee's 6,000-page report on the CIA's deeply flawed
detention and interrogation program. Acknowledging the flaws of this
program is essential for the CIA's long-term institutional integrity as
well as the legitimacy of ongoing sensitive programs.
I know the Presiding Officer will take a keen interest in this as she
is a strong supporter of civil liberties and protecting our freedoms.
That is why I will hold Mr. Brennan to the promise he made to me at his
confirmation hearing; that is, to correct inaccurate information in the
public record on the CIA's detention and interrogation program. That is
why I will continue to urge him to ensure that the Senate Intelligence
Committee's report on this flawed program is declassified and made
public.
In the committee's confirmation hearing, Mr. Brennan promised to be
an advocate of ensuring the committee has what it needs to do its
functions. I believe Mr. Brennan is that advocate.
I look forward to working with him and the administration with my
goal of protecting our national security while also safeguarding
America's constitutional freedoms and determining the limits of
executive branch powers in this new age of warfare.
I yield the floor.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Madam President, I ask unanimous consent to speak as if
in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Remembering Deamonte Driver
Mr. CARDIN. Mr. President, I come to the floor to note a sad
anniversary. Friday, March 1, marked 6 years since the tragic death of
a 12-year-old Maryland child named Deamonte Driver. I have spoken about
him many times since his passing, which happened just weeks after I
came to the Senate.
The death of any child is tragic; Deamonte's was even more so because
it was entirely preventable. He died from untreated tooth decay. It
started with an infected tooth. Deamonte began to complain about
headaches in early January 2007. By the time he was evaluated at
Children's Hospital's emergency room, the infection had spread to his
brain, and after multiple surgeries and a lengthy hospital stay, he
passed away.
The principal at Deamonte's school, Gina James, remarked, ``Everyone
here was shocked. They couldn't understand how he could have a
toothache and then die. We sometimes give the little kids candy as a
reward; well, for a while they stopped taking it because they would
say, `if I get a cavity, will I die?' ''
Because Deamonte did not get a tooth extraction that would have cost
about $80, he was subjected to extensive brain surgery that eventually
cost more than $250,000. That is more than 3,000 times the cost of an
extraction.
After Deamonte's death, more Americans began to recognize the link
between dental care and overall health that medical researchers have
known for years.
Former Surgeon General C. Everett Koop once said that ``there is no
health without oral health.'' The story of the Driver family has
brought Dr. Koop's lesson home in a painful way.
Children living in poverty have twice as much tooth decay as middle-
and upper-income children, and nearly 40 percent of black children have
untreated tooth decay in their permanent teeth.
This has serious implications for their overall health. Untreated
oral health problems in children can result in attention deficits, poor
school performance, and problems sleeping and eating. And these
problems carry over to adulthood. Improper oral hygiene can increase an
adult's risk of having low birth-weight babies, developing heart
disease, or suffering a stroke.
Employed adults lose more than 164 million hours of work each year
due to dental disease and dental visits, and in 2009 over 830,000
emergency room visits were the result of preventable dental conditions.
Poor oral health is also associated with a number of other diseases,
including diabetes, stroke and respiratory disease. In older adults,
poor oral health is significantly associated with disability and
reduction in mobility.
Medical researchers have discovered the important linkage between
plaque and heart disease, that chewing stimulates brain cell growth,
and that gum disease can signal diabetes, liver ailments and hormone
imbalances. Further, oral research has led to advanced treatments like
gene therapy, which can help patients who have chronic renal failure.
They have also discovered that oral disease is far more prevalent
than you might imagine. In fact, dental decay is the most common
chronic childhood disease in the United States. Dental disease affects
1 in 5 children aged 2 to 4, and more than half of all children have
dental disease by the time they reach second grade. By the age of 17,
approximately 80 percent of young people have had a dental cavity.
The average 50-year-old in the United States has lost 12 teeth, and
by age 65 over one-quarter of Americans have lost all their teeth. More
than 10 percent of the nation's rural population have never visited a
dentist.
These are sobering statistics. But here is the good news: Dental
decay is a dynamic disease process, and not a static problem. Before a
cavity is formed in the tooth, the caries infection can actually be
reversed. That means that we can prevent tooth decay, as long as dental
care is made available and good oral hygiene practices are used.
[[Page S1248]]
Deamonte's story was told around the world. But nowhere did it hit
harder than in his home State of Maryland. I am proud of how the
Maryland Congressional Delegation, Governor Martin O'Malley, and the
Maryland General Assembly have responded to the need for better access
to oral health care.
In 2010 and 2011, the Pew Center on the States named Maryland a
national leader in improving dental access for low-income Marylanders.
We were the only State to meet seven of Pew's eight dental policy
benchmarks, and we ranked first in the nation for oral health. CMS also
invited our State officials to share their story at its national
quality conference in August 2011 and placed Maryland's achievements in
its Best Practices Guide.
I will mention just some of what Maryland has accomplished: In 2010,
our State secured $1.2 million in Federal funding to develop a
statewide Oral Health Literacy Campaign, called ``Healthy Teeth,
Healthy Kids.'' More than 368,000 children and adults in Medicaid
received dental care in 2011; 82,000 more than in 2010. The percentage
of pregnant women receiving dental care in 2011 was 28.4 percent,
compared to 26.6 percent in 2010.
Created by the Robert T. Freeman Dental Society and funded in part by
the State, the Deamonte Driver Mobile Dental Van Project provided
diagnostic and preventive services for over 1,000 Prince George's
County children who live in neighborhoods where otherwise care would be
unavailable to them.
The Kaiser Family Foundation awarded a $200,000 grant to the Maryland
Dental Action Coalition that funded a pilot dental screening program at
a school-based health center in Prince George's County.
The Dental Action Coalition also began granting and reimbursing
primary care providers to apply fluoride varnish for children up to 3
years of age. By June 2012, 385 primary care providers had administered
over 58,000 treatments.
The Maryland Community Health Resources Commission continues to
expand oral health capacity for underserved communities. Since 2008,
the Commission has awarded 20 dental grants totaling $4.6 million.
These grants have funded services to more than 35,000 low-income
children and adults in our State.
I am also very proud of what Congress has done. In the CHIP
Reauthorization Act passed a few months after Deamonte died, we
established a guaranteed oral health benefit for children. With the
leadership of Senators Baucus, Grassley, Rockefeller, Collins, and
former Senator Bingaman, we created grants to the States to improve
oral health education and treatment programs. We also addressed one of
the problems that Deamonte's mother faced in trying to get care for
him--a lack of readily available information about accessible
providers.
For a variety of reasons, it is difficult for Medicaid and CHIP
enrollees to find dental care, and working parents whose children
qualify for those programs are likely to be employed at jobs where they
can't spend 2 hours a day on the phone to find a provider. So HHS must
include on its Insure Kids Now Web site a list of participating
dentists and benefit information for all 50 States and the District of
Columbia.
Also, in 2009, Congress passed the Edward M. Kennedy Serve America
Act. That law created the Healthy Futures Corps, which provides grants
to the States and nonprofit organizations so they can fund national
service in low-income communities. It will allow us to put into action
tools that can help us close the gap in health status--prevention and
health promotion. For too long we have acknowledged health disparities,
studied them, and written reports about them. With the help of the
senior Senator from Maryland, my colleague, Senator Barbara Mikulski,
we added language to that law specifying oral health as an area of
focus.
Now the Healthy Futures Corps can help recruit young people to work
in the dental profession, where they can serve in areas that we have
shortages of providers in urban and rural areas. It will fund the work
of individuals who can help parents find available oral health services
for themselves and their children. It will make a difference in the
lives of the Healthy Futures Corps members who will work in underserved
communities and in the lives and health of those who get improved
access to care. Then in the 2010 Affordable Care Act, we enacted
several landmark provisions designed to improve oral health.
The ACA funds and encourages a number of oral health prevention
activities. First, it directs the CDC to establish a 5-year national
oral health education campaign. This campaign is required to use
science-based strategies and to target children, pregnant women,
parents, the elderly, individuals with disabilities and ethnic and
racial minority populations, including Native Americans.
The ACA also created demonstration grants to study the effectiveness
of research-based oral health programs, which will be used to inform
the public education campaign.
The health care law expands an existing school-based dental sealant
program to each of the 50 States and territories and to Indians, Indian
tribes, tribal organizations and urban Indian organizations. It directs
the CDC to enter into cooperative agreements with State, territorial
and Indian organizations to establish guidance, conduct data collection
and implement science-based programs to improve oral health.
ACA also authorizes HHS to make grants to dental schools, hospitals,
and nonprofits to participate in dental training programs. This funding
can be used to provide financial assistance to program participants,
including dental and dental hygiene students as well as practicing
dentists, and for loan repayment for faculty in dental programs. The
ACA also provides grants for up to 15 demonstration programs to train
alternative dental health providers in underserved communities.
The law authorizes and requires a number of public health initiatives
that should improve access to oral health care, including an $11
billion, 5-year initiative that funds construction, capital
improvements and service expansions at community health centers, where
so many oral health services are provided.
It also establishes a National Health Care Workforce Commission to
serve as a resource to evaluate education and training to determine
whether demand for health care workers is being met, and identify
barriers to improvement. We need that information. That was Senator
Bingaman's provision and it should be funded as soon as possible.
But perhaps the most important provision is a requirement that health
plans cover a set of essential health benefits, EHBs, that includes
pediatric dental care. Beginning January 1, 2014, the law says that
oral health care for children must be part of the essential health
benefits package that must be offered in the new health insurance
exchanges and in the small group and individual insurance markets that
exist outside the exchanges.
When the ACA was passed nearly 3 years ago, I had great hopes that in
a few years, I could stand here on the Senate floor and celebrate all
the progress we had made in bringing affordable dental care to every
child in this nation. I had hoped this would be a day to talk about
what a difference Congress has made in the oral health of America's
children. We celebrated that section of the law, because it meant that
once and for all, oral health would be available to America's children.
It gave many of us hope that we would be able to get every child basic
dental care and begin to erase the epidemic of dental disease that
still affects millions of American children. Now, however, the
affordability of that benefit is at risk.
The ACA includes a Finance Committee provision that allows stand-
alone dental plans to exist in the market. In a colloquy on September
26, 2011, Senators Baucus, Stabenow, and Bingaman engaged in a
colloquy.
They clarified that the intent of the law in allowing stand-alone
dental plans was not to create separate standards but to ensure
competition in the insurance exchanges and allow choice in the
marketplace.
Later, I joined 10 of my colleagues in writing to HHS Secretary
Sebelius, urging her to ensure that all children who receive their
dental coverage through a stand-alone dental plan should have the same
level of consumer protections and cost-sharing as those who get
coverage through a plan that offers integrated benefits.
[[Page S1249]]
Last week, HHS published a final rule on the benefits that creates a
separate out-of-pocket limit for stand-alone dental plans, but only
specifies that the limit be ``reasonable.'' There are two huge problems
with this approach. First, an additional out-of-pocket limit will make
the benefit far less affordable for many families. It was not what
Congress intended. The whole point of adding pediatric dental benefits
to the essential health benefits package was to make certain that oral
health not be considered separate from overall health.
We have been here before. This approach is similar to policies that
were set decades ago for mental health services--separate policies to
cover mental health treatment, separate limits on coverage, and
separate copays. Mental health was treated as second-class health care.
We know now that this was an injustice. It was wrong to treat those
services, and the patients who used them, as second-class. Many of my
colleagues were here in Congress when we fought the battles for mental
health parity. It was a difficult battle, but we won. It seems to me
that this is what we are doing now with dental care, rather than
treating it as part of the Essential Benefits Package, which was our
intent in the Affordable Care Act.
Section 1402(b) of the law also establishes an out-of-pocket limit
for all families and lowers that limit for families with incomes under
400% of the Federal poverty level. By creating a separate limit, HHS is
reducing the number of families who will be able to afford dental
coverage for their children.
Second, the rule has left the determination of what is a
``reasonable'' out-of-pocket limit to each State. With pressure from
insurance companies, a State could decide to provide an out-of-pocket
limit of $1,000 or more per child, which could more than double out-of-
pocket costs for a family with five children.
In the Federally run exchanges, HHS has the authority to set a
``reasonable'' out-of-pocket limit. Last Thursday, in a Finance
Committee hearing, I asked Jon Blum, the CMS Deputy Administrator,
about the idea of segregating dental benefits from health benefits and
increasing cost-sharing. This is what he said: ``Well I think one of
the lessons that we learned within the Medicare program is that when
the care is siloed, our benefits aren't fully integrated. That can
often lead to worse total health care consequences. I can pledge to get
back to you with direct answers to your questions. But I do agree with
your general principle that when benefit design is broken up and care
is not coordinated, that it can often lead to bad quality of care. ``
Later that day, I spoke with CMS acting administrator Marilyn
Tavenner. I asked her to take into account the affordability of a plan
that had separate, high cost-sharing, and she agreed to consider my
views. Less than 24 hours later, CMS released a proposed ``guidance''
to insurers, setting a maximum out-of-pocket limit of $1,000. When I
contacted HHS to ask whether this was a per-family or per-child limit,
the expert in charge of the rule was unable to tell me. They did not
know whether this meant extra costs per year of $1,000 or $5,000 for a
family with five children. This tells me that the affordability of care
was a secondary consideration when this final rule was written.
There are still millions of American children without coverage for
dental care. If we are to make real progress in improving the health of
Americans, we cannot afford to continue giving oral health care second-
class treatment.
The question now is whether the guidance to plans will go forward. It
is contrary to Congressional intent and contrary to the best interests
of American families to allow it to stand. On this sixth anniversary of
the death of Deamonte Driver, let's pledge to do better for our
children.
Madam President, I call to the attention of my colleagues a colloquy
between Senators Bingaman, Stabenow, and Baucus in the Record of
September 26, 2011, at page S5973.
With that, I yield the floor.
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