[Congressional Record (Bound Edition), Volume 150 (2004), Part 6]
[Senate]
[Pages 7738-7746]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       HONORING OUR ARMED FORCES

  Mr. PRYOR. Mr. President, today I rise to talk about the ongoing war 
in Iraq, but more importantly to recognize a few of those soldiers who 
sometimes get lost in the mounting rolls of casualty listings and to 
speak to the reality of war as seen through the eyes of a State that 
has a long tradition of sending young men and women onto the 
battlefield.
  I have been in every county in my State many times, and I cannot 
think of one county in Arkansas that does not have some sort of war 
memorial. In fact, most of those are at the county courthouse. In fact, 
War Memorial Stadium is in Little Rock; it is where the Razorbacks play 
their games. You can go all over the State and see memorials to men and 
women who have served and died in World War I, World War II, the Korean 
War, Vietnam, and now we are adding memorials for those who have died 
in Iraq. In fact, in some parts of Arkansas, you can visit the graves 
of Revolutionary War soldiers who actually--even though Arkansas wasn't 
even a State or a territory during that time, we have taken those 
graves, honored them, and we are proud that they migrated to the area 
known as Arkansas. We feel connected to the Revolutionary War through 
them.
  Sometimes it is easy to feel disconnected from the war effort. Even 
though there is 24-hour news coverage dominated by visions of our men 
and women in uniform fighting for freedom in Iraq, the pictures, words, 
and stories can have a numbing effect. We start paying attention to 
other matters, and we try to live our daily lives and try to put the 
echoes of war in the background. But sometimes all it takes is one 
event to snap us back, to grab our attention and make us more attuned 
to the conflict we face.
  The tragic events in Iraq in April have brought with it 115 American 
military fatalities; major combat in Fallujah; and a rush of 
kidnapping, bombings, and other insurgent attacks that have terrorized 
not just American soldiers but innocent Iraqis.
  April has also brought our full attention as a Nation back to the war 
in Iraq. Almost a year later, we fully realize there is still work to 
be done militarily and diplomatically, and that our mission is not yet 
accomplished.
  As for the citizens of Arkansas, we have in the past few weeks 
experienced both the joy and pain that is associated with being a 
standard bearer for freedom and democracy. We are a country that has 
and will continue to risk life and limb, not only to protect our 
freedom and liberty but to extend those same opportunities to all 
people in all places. It is something of which we can and should be 
proud. But as we know, it often comes with the most precious sacrifice.
  On April 22, we were fortunate enough to welcome home 106 Army 
National Guard soldiers, members of the 1123rd Transportation Company 
based in Marked Tree, AR, and Blytheville, AR. Also, more than 60 Army 
Reserve soldiers from Company C of the 489th Engineer Battalion 
returned to their home bases in Arkansas last week after spending more 
than a year in Iraq. These units spent more than a year in Iraq helping 
rebuild Iraqi cities, providing protection and logistical support, and 
destroying enemy weapons.
  I commend these men and women for their brave service. Some of them 
were away from their families for far longer than they expected, but 
they are now home, and I, along with all Arkansans and all Americans, 
welcome them back.
  Mr. President, while Arkansans rejoiced in the news of having a 
collection of our men and women return safely, we at the same time 
faced the harsh reality that some of our men and women would pay the 
ultimate sacrifice for freedom.
  On Saturday, April 24, four soldiers, all members of the Arkansas 
Army National Guard's 39th Infantry Brigade, were killed in Taji, Iraq, 
as a result of hostile fire when rockets hit their camp. An additional 
soldier was killed a day later when a roadside bomb detonated near Sadr 
City.
  To let my colleagues know, there are approximately 4,200 troops in 
the 39th Infantry Brigade, including about 2,800 Arkansans from 47 
hometown units. The balance of the troops are from 10 other States.
  The 39th was officially called to active duty last September, and I 
watched their progress as they trained and prepared to fulfill their 
mission.
  In January, I traveled to Fort Hood, TX, to visit troops from the 1st 
Cavalry Division and the 39th Infantry Brigade. During my trip, I 
witnessed demonstrations of topnotch training and cutting-edge 
equipment that will enable these soldiers to successfully carry out 
their mission in Iraq.
  I again visited them at Fort Polk, LA, with other members of 
Arkansas's congressional delegation. I was truly proud of what I 
witnessed. I saw Arkansans who had undergone long days of training and 
preparation and were aware of the dangerous conditions and challenges 
that lay ahead for them in Iraq. However, they remained in high spirits 
and were determined to carry out their mission.
  I am inspired by these men and women, patriots all, who have taken 
determination and commitment to a new level. I know the sacrifice and 
the dedication of the 39th will help bring stability and democracy to 
the streets of Iraq.
  We wished these soldiers well, knowing it was a matter of days before 
they would be sent to Iraq. In March, they were sent over. Since their 
departure, we have all gone to bed with prayers in our minds and hope 
in our hearts that all the members of the 39th would return home 
safely. The events of the past few weeks have prevented this from 
happening, although we remain hopeful.
  I stand here today to extend my deepest sympathies to their families 
and honor them for their commitment and sacrifice. The brave men and 
women who have surrendered their lives this weekend so others might 
enjoy freedom include:
  U.S. Army CPT Arthur ``Bo'' Felder, 36, of Lewisville, AR. He had 
served in the National Guard since 1986, a year after he graduated from 
Lewisville High School. Felder served as a youth director at St. Luke 
Missionary Baptist Church in North Little Rock.
  U.S. Army CWO 3 Patrick Kordsmeier, 49, of North Little Rock, AR, who 
died tending the soldiers injured in the first blast when he was killed 
by a second attack. He was up for retirement before the war in Iraq 
began, but he asked for an extension so he might serve. He was born in 
Little Rock. He reminds me of that phrase in the Bible where it talks 
about there is no greater love than one who lays down his life for a 
friend. That is exactly what he did;
  U.S. Army SSG Stacey Brandon, 35, of Hazen. He was a prison guard for 
the Arkansas Department of Correction and later worked at the Federal 
prison in Forrest City;
  U.S. Army SSG Billy Orton, 41, of Humnoke, AR. His wife and children 
reside in Carlisle, AR, and his mother in Hazen;
  U.S. Army SP Kenneth Melton, 30, of Batesville, AR. Melton was 
traveling as part of a protection team with battalion leaders when a 
roadside bomb exploded, taking his life.
  The events of this past weekend almost double the number of troops my 
State has previously lost during the war in Iraq. Arkansas has lost 
eight soldiers prior to this weekend.
  To put this in perspective, no single day during Vietnam saw as many 
Arkansans killed by hostile fire as this past Saturday. In fact, 
Saturday's events are the bloodiest for Arkansas's soldiers since 
December 2, 1950, when five Arkansans were killed during combat in 
Korea.
  I also honor the other eight soldiers who gave their lives during 
combat in Iraq. They include:
  U.S. Army SFC William Labadie, 45, of Bauxite, AR, who died 2 weeks 
after being deployed. Labadie was also assigned to the 1st Cavalry, 
39th Brigade, Troop E-151 Cavalry, Camp Taji in Kuwait;
  U.S. Army SP Ahmed ``Mel'' Cason, 24, died on April 4 in Baghdad. He 
was assigned to the 2nd Battalion, 5th Cavalry Regiment, 1st Cavalry 
Division in Fort Hood. Cason grew up in McGehee and many of his 
relatives now live in Maumelle, AR;

[[Page 7739]]

  U.S. Army 1LT Adam Mooney, 28, of Cambridge, MD. His helicopter went 
down in the Tigris River in Mosul, Iraq, during a search for a missing 
soldier. His wife now lives in Conway, AR;
  U.S. Army MSG Kevin Morehead, 33, a special forces soldier from 
Little Rock who had previously received a Bronze Star with valor in 
Afghanistan, died on September 12, 2003, from hostile fire in Ramadi, 
Iraq;
  U.S. Army SP Dustin McGaugh, 20, of Derby, KS, died on September 30 
in Balad, Iraq. His mother resides in Tulsa, OK, and his father in 
Springdale, AR. McGaugh grew up in Springdale and joined the Army ROTC 
after he graduated from high school in 2001;
  U.S. Army PFC Jonathan M. Cheatham, 19, of Camden, AR, my father's 
hometown. He was assigned to the 489th Engineer Battalion, U.S. Army 
Reserve, North Little Rock, AR. He was killed while riding in a convoy 
that came under a rocket-propelled grenade attack on July 26 in 
Baghdad;
  U.S. Marine Corps PFC Brandon Smith, 20, of Washington, AR, died 
March 18, 2004, in Qaim, Iraq, on the eve of the anniversary of the 
war. He was trying to help comrades under attack when he was killed by 
mortar fire;
  U.S. Navy Hospital Corpsman Third Class Michael Vann Johnson, Jr., of 
Little Rock, AR. He was the first Arkansan to die during Operation 
Iraqi Freedom. In fact, one of my staff in Little Rock was visiting a 
doctor several days ago and it so happened he started talking to the 
woman who was assisting in the doctor's office, and it was Michael Vann 
Johnson's mother. It happened to be the 1-year anniversary of his death 
in Iraq.
  We have not lost nearly as many as other States, but our loss is just 
as real. The grieving is just as sorrowful, and the fear that there may 
be more coming is just as frightening, but our resolve is just as 
strong.
  This is a very real war for the people of my State. It impacts every 
community. It seems as if everybody in my State knows of someone who 
has served, is serving, or who will serve in Iraq.
  We might not all agree on how we got where we are. We might not all 
agree with all the decisions that have been made by this 
administration. But we stand behind our troops and are truly inspired 
by their dedication. We are proud of our professional soldiers, Guard 
members and reservists who left behind their families and way of life 
to fight in a land that is not theirs for people they do not know.
  The soldiers we have lost will never be forgotten. They, along with 
all our soldiers, will be remembered for their strength and dedication 
in bringing independence to the Iraqi nation, and they will be defined 
as heroes of the 21st century.
  Mr. President, I yield the floor.
  Mrs. MURRAY. Mr. President, I rise today to honor Petty Officer 
Nathan B. Bruckenthal for his service to the United States Coast Guard 
and his commitment to his country. Petty Officer Bruckenthal was killed 
in action in Iraq on April 25, 2004, as he sought to intercept a marine 
vessel attempting to launch a terrorist attack.
  Petty Officer Bruckenthal's death reminds us of the dangerous mission 
that the Coast Guard performs every day, at home and overseas, in 
support of the Nation's defense.
  It is with a deep respect for the Coast Guard and the many valiant 
Americans who serve in the Coast Guard that I come to the floor today 
to pay tribute to the first Coast Guardsmen killed in Iraq. U.S. Coast 
Guard Damage Controlman Third Class Nathan B. Bruckenthal was killed 
along with two U.S. Navy sailors, Petty Officer First Class Michael J. 
Pernaselli and Petty Officer Second Class Christopher E. Watts, trying 
to protect oil terminals off the coast of Iraq. A coordinated suicide 
bombing attack struck members of the coalition Maritime Interception 
Operations team as they attempted to board a small boat that threatened 
the Khawr Al Amay Oil Terminal.
  This tragic loss of the first Coast Guard member killed in battle 
since Vietnam highlights the critical and often overlooked role of 
Coast Guard operations in Operation Iraqi Freedom. At the height of 
combat operations, the Coast Guard had approximately 1,250 personnel 
deployed to Operation Iraqi Freedom for port and coastal security, 
maritime law enforcement, humanitarian aid, maintenance of navigational 
waterways, contingency preparedness for environmental terrorism, and 
training the newly established Iraqi coast guard. Coast Guard support 
to Operation Iraqi Freedom continues today with approximately 300 
people supporting these vital operations.
  Petty Officer Bruckenthal enlisted in the Coast Guard 6 years ago. I 
am proud to say his service included 2 years in western Washington at 
the Coast Guard Station Neah Bay. In addition to protecting the safety 
of lives at sea, he was a dedicated citizen of the Clallum County 
community. Petty Officer Bruckenthal made time to volunteer as a Neah 
Bay fire fighter, an emergency medical technician, a reserve police 
officer, and a coach for the Neah Bay High School. He was known for his 
terrific work with children and his passion for law enforcement.
  As many brave members of our armed forces, Petty Officer Bruckenthal 
was serving on his second tour in Iraq. He served from February 2003 to 
May 2003 in Operation Iraqi Freedom where he received the Armed Forces 
Expeditionary Medal and the Combat Action Ribbon. He returned for a 
second tour in Iraq beginning February 2004. This was an extremely 
difficult and complex mission; particularly trying to distinguish 
between the enemy and the average citizens. Coast Guard is carrying a 
very heavy load in protecting the northern Arabian Gulf and the oil 
fueling stations which are essential to the recovery of the Iraqi 
economy.
  I have long ties to the Coast Guard. In my leadership roles on the 
Transportation and Homeland Security Appropriations Subcommittees, I 
have often noted the tremendous task the Coast Guard faces in terms of 
securing our Nation's ports and cargo terminals. I have applauded their 
efforts in addressing the security issues facing our country's ports. 
The 13th Coast Guard District is known as guardians of the Pacific 
Northwest. They have a presence in 14 locations throughout my State and 
are responsible for monitoring 200 facilities in Washington, including 
60 designated water front facilities that handle oil and hazardous 
materials.
  We know that many fine young American soldiers, sailors and airmen 
have made the ultimate sacrifice in the fight against terrorism and 
terrorists and in Iraq and Afghanistan. I have personally written to 25 
families of service men and women with ties to the State of Washington 
who have died while serving in Operation Iraqi Freedom and Operation 
Enduring Freedom. Now, sadly, a proud member of the Coast Guard has 
joined the list of Americans killed in action in defense of our 
country. We extend our deepest sympathies and respect to Petty Officer 
Bruckenthal's family and friends. We join the Coast Guard family in 
honoring Petty Officer Nathan Bruckenthal. We will remember his brave 
service to the Coast Guard, to our Nation's defense, and to us all.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business, and after my remarks that the Senator 
from New Mexico, Mr. Bingaman, be allowed to speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Environmental Policies

  Mr. SMITH. Mr. President, I am pleased to be addressing a Texan, the 
Presiding Officer, at this moment. I wish to speak about a Texan. I was 
serving in the Senate for 4 years when I got a call from the Governor 
of Texas, George W. Bush, to ask if I would give him some time and 
consider his candidacy for the Presidency of the United States.
  I was privileged to travel to Austin, and an hour's meeting turned 
into a half a day's meeting, as I found in this good man a man of the 
West, a man who understood from whence he came in rural parts of Texas.
  I represent the State of Oregon. I come from the dry side of Oregon, 
a

[[Page 7740]]

side not unlike many parts of Texas. People do not think of Oregon in 
those terms, but many parts of Oregon are arid. My neighbors are people 
who farm the earth, fish the rivers, the ocean, and they harvest timber 
from our mountains.
  I had served for 4 years as a Senator, working with President Clinton 
and his administration, trying to make sense of his Northwest Forest 
Plan, and other proposals of his administration that had an enormous 
effect upon the State of Oregon.
  It was interesting to watch the election results 4 years ago and to 
see the diversity of voting between urban and rural places. 
Overwhelmingly, rural people voted for George W. Bush, as did I because 
I am from a rural place.
  In my first meeting with George W. Bush, I began to discuss the 
issues of the people I serve and who elected me. I could tell in an 
instant that he got it, that he understood. He understood water. He 
understood ranching. He understood farmers.
  Should he be elected, I asked him as he formulated his environmental 
policies to please not forget the people who I thought would vote 
overwhelmingly for him. I asked him to please try to better balance the 
environmental policies of the Federal Government so we did not forget 
our human stewardship as we try to implement our environmental 
stewardship.
  We have just observed the 34th annual Earth Day. I know many in the 
environmental community are assembling an arsenal of millions of 
dollars to run against George W. Bush and suggest that the air has 
gotten dirtier, the water is fouler, and that the earth is more 
imbalanced because of his tenure.
  He has not forgotten those who have elected him. He has not forgotten 
rural people. He has reconsidered and rebalanced some proposals, and 
the air is cleaner, the water is cleaner, and the land is doing fine. 
We have made enormous environmental progress in our country and 
sometimes we do not stop to celebrate all the progress we have made.
  I remember as a boy growing up in Bethesda, MD, one could not safely 
go in the Potomac River because it was so polluted. We can do that 
today because of the EPA, an Agency established by Richard Nixon and 
the Congress. We can do that because of all of the efforts that have 
gone on before.
  I used to be somewhat concerned and frustrated as President Clinton 
would go to Virginia and West Virginia and decry rural poverty, when I 
recognized that much of the poverty occurring in my State was as a 
direct result of Federal policies. It used to be that in the State of 
Oregon, for a long time, we harvested tremendous amounts of timber. We 
had a very vibrant timber industry in our country.
  Indeed, from the Pacific Northwest region alone we would average 
about 4 billion board feet a year. I think President Clinton recognized 
that maybe that was more than was sustainable. He promised the timber 
industry and the people of the forest in Oregon that he would give them 
25 percent of their average harvest--that is 1 billion board feet. We 
have probably harvested 10 percent of that since that promise was made, 
and I have witnessed tens of thousands of family wage jobs evaporate.
  When that happens, it is not just jobs that go away. There are 
problems with alcoholism, spousal abuse, crime, hopelessness, suicide, 
and a loss of dignity. So when one wants to know where a lot of our 
jobs went, they went away because of conscious Federal policy.
  Right now, as we barely utilize our resources in Oregon and in 
America, we are overcutting in Canada. The spotted owl does not know 
the difference. In fact, as we overcut in Canada, we watch our forests 
burn at record rates. George W. Bush, fortunately, true to his word, 
helped with this Senate and the House of Representatives to pass a 
forest health initiative. It is a modest step but it is designed to 
make communities safer, improve environmental health, and to harvest 
timber. All of those things will begin to be enjoyed by the people of 
Oregon again: a better environment and a better economy. Some of those 
jobs can come back.
  I lamented when Michael Kelly, the late columnist, lost his life in 
Iraq. He put the natural resources conflict quite eloquently in a 
column he wrote in 2001. He said that the battle of values over land 
use and environmental policies, while often framed as between man and 
beast, is better understood as between increasingly poor and powerless 
rural voters and increasingly rich and powerful urban and suburban 
voters.
  Kelly went on to note that the Endangered Species Act ``has been 
exploited by environmental groups whose agenda is to force humans out 
of lands they wish to see returned to a pre-human state.''
  For my counterparts in the East, some of whom think all resource 
extraction on public lands should be off limits, I would like to give 
you a sense of how vast the Federal presence is in my State. This 
picture is of an area known as the Biscuit Fire. The Biscuit Fire 
consumed lands larger than the State of Rhode Island, or four times the 
size of the District of Columbia. It destroyed countless acres of 
roadless areas, wilderness, spotted owl habitat, and salmon spawning 
grounds. I ask how that moonscape leaves the environment better. I know 
it left the people worse.
  The Federal Government owns over 50 percent of the State of Oregon, 
which amounts to almost 33 million acres; greater than the total 
acreage of 22 other individual States. So it is safe to say Federal 
land management policies have a significant impact on the people, the 
economy, the environment, and the environmental health of my State.
  I am proud we have a President who understands the implications of 
Federal policies on rural America. This President understands that 
humans are part of the environmental equation, and he is working to 
maintain domestic resource industries and to return strength to rural 
economies.
  So as he gets attacked in this campaign, I hope the people of Oregon 
will understand there is a human side to this equation, and they will 
remember the compassionate conservatism he campaigned on is being 
restored in rural places: a little compassion, a little balance.
  In 2002, President Bush came to Oregon. He saw firsthand the 
destruction and dislocation caused by these catastrophic wildfires. On 
occasion, I was able to share with him the importance of rebalancing 
policies, even as it related to producing electricity. For a long time 
there were serious people in powerful places advocating the demolition 
of hydroelectric power on the Colombia and Snake Rivers. It is the 
product of our prosperity in this country that we have come to a place 
where too many think electricity comes from a light switch, gasoline 
comes from a service station, and timber comes from the local hardware 
store. But all of these things come from rural places, from industries 
that provide us the power and the means to enjoy the American way of 
life. President Bush has had the good sense to resist some of these 
proposals that went too far and, when appropriate, to rebalance them so 
people can have a place again in the environmental equation.
  This President also is strongly committed to species conservation. 
Sometimes that is missed. In fact, it will never be included in the ads 
of environmental organizations, but this President's budget for fiscal 
year 2005 includes $100 million for the Pacific Coastal Salmon Recovery 
Fund, which is a $10 million increase from the year before. The 
combined Federal funding request for Pacific salmon mitigation and 
recovery is over $719 million, and this commitment is paying off. Ten 
years ago a little over 200,000 chinook and 160,000 steelhead returned 
to the Bonneville Dam. But in 2003, nearly a million chinook and 
365,000 steelhead returned to that dam.
  This President has also understood the need for a comprehensive 
national energy policy, and that energy security is vital to our 
national security, to say nothing of our economic security. He has 
championed the research and development of new fuel cell technology 
that would lessen our dependence on imported oil. He has supported 
energy conservation and tax credits for the

[[Page 7741]]

production of electricity from renewable sources.
  As energy prices remain high, and as our economy rebounds, the need 
for a national energy policy will only continue to become more and more 
urgent.
  President Bush is not going to get credit for these things in the ads 
of certain advocacy groups, but I hope the American people will 
remember to credit him for his care for rural people and places, for 
his tangible efforts to restore lost family-wage jobs as it relates to 
fishing, farming, forestry, and energy production. I hope people will 
also remember our air is cleaner, our water is cleaner--we are making 
tremendous progress. While some will say this has been rolled back, or 
that has been changed, it is usually because something has gone too far 
and a little common sense, a little compassionate conservatism was 
needed to be restored to the equation.
  On Earth Day I had wanted to come and say these things to defend the 
President, as he is being attacked so liberally, but time on the floor 
was not allowed that day. So I am here this day to put in this reminder 
and ask the American people to remember: President Bush is a good 
steward. More than that, he is a good man.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Collins). Under the previous order, the 
Senator from New Mexico is recognized.
  Mr. CORNYN. Will the Senator from New Mexico yield for a unanimous 
consent request?
  Mr. BINGAMAN. I am glad to yield.
  Mr. CORNYN. I ask unanimous consent that following the remarks of the 
Senator from New Mexico, I be recognized for such remarks that I may 
make.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Mexico.


                           Amendment No. 3051

  Mr. BINGAMAN. Madam President, I thank my colleague from Oregon for 
his courtesy in reserving my opportunity to speak.
  The pending business before the Senate is the Domenici amendment 
which has been offered to the Internet tax bill. I thought it would be 
useful to try to talk about that legislation and the substance of that 
legislation, at least to some extent this afternoon, before we get to a 
cloture vote tomorrow. This amendment, of course, is the Energy bill. 
For those who have not focused on it, this is the amendment I hold in 
my hand. It is 913 pages. It is called the Energy Policy Act of 2003.
  Unfortunately, not a lot has changed since the beginning of the floor 
debate that we had in the Congress last May, or when we debated the 
energy conference report last November. We have before us proposed 
legislation that I believe does not command the broad public support 
that we need in order to have a national energy policy.
  I would cite three categories of problems with the bill. First, I 
will talk about some of the objectionable provisions in the bill and 
give examples of concerns in that area. Second, I will talk about some 
meritorious provisions which the Senate has previously passed as part 
of the Energy bill that we acted upon in this Congress and in the 
previous Congress but which have been deleted from this bill, which I 
think is a mistake. Finally, I will talk about the legislative thicket 
that we would be wading into if in fact we invoked cloture on this 
amendment.
  First, let me talk about this category of objectionable provisions 
that are contained in the Domenici amendment. There are fairly good 
provisions in the bill as well. Let me say that at the outset. Many of 
those are ones we have included in legislation previously passed in the 
Senate. I do not mean to imply that there are not good provisions in 
the bill. But let me start the list of examples of objectionable 
provisions by talking a little about electricity and the efforts that 
we made in the Senate regarding the regulation of electricity markets.
  The new amendment substantially fails to protect electricity 
consumers from market manipulation, including most of the schemes that 
were used in California by Enron and other companies that were acting 
in the same way that Enron was. It makes illegal only one specific 
practice that was used by Enron, that is round-trip trading. It 
potentially leaves an inference that Congress does not view the other 
schemes as equally problematic.
  The Senate voted last year, 57 to 40, for a broad ban on market 
manipulation. I strongly believe that was the right way for us to vote 
on this issue. I do not understand the rationale for ignoring a past 
strong Senate vote on this subject in an effort to prohibit market 
manipulation.
  The amendment also contains a proposal to shift the cost of 
constructing new transmission from one set of parties in the electric 
utility industry to another. Trying to legislate rate design is 
probably never a good idea. In the form of so-called participant 
funding that is contained in this amendment, it is particularly 
egregious. Its effect would be to create a huge disincentive for the 
construction of new transmission by corporations that are not already 
in a substantial monopoly position in a given region.
  Why should we want to cut down on the number of companies interested 
in building generation and transmission? I fear that is what this 
amendment, as it currently stands, would do. The new amendment repeals 
the Public Utility Holding Company Act. It does so, however, without 
any other provisions being added to ensure that electric or gas mergers 
or acquisitions had to be in the public interest, without any real 
protection for the ability of State public utility commissions to 
protect consumers against cross-subsidization or other abuses.
  If there were such protections, it would be my inclination to support 
the repeal of PUHCA, and I have supported the repeal of PUHCA in the 
past. But I think a world of untrammeled mergers of electric utility 
companies is going to turn out to be bad for electricity consumers.
  The amendment also overreaches, in my view, in the response to the 
standard market design rulemaking. It basically throws into question 
the Federal Energy Regulatory Commission's authority to issue rules of 
general applicability that are other than the standard market design 
rule. If we have another price crisis in this country as we have in 
California, the Federal Energy Regulatory Commission will be unable to 
intervene as it ultimately did in California and in the West. Since 
standard market design is, for all practical purposes, a dead issue at 
this point, I do not see why we are still trying to address it in the 
clumsy way it is addressed in the amendment.
  Let me move on from electricity and the whole issue of oil and gas.
  With respect to the dependence on foreign oil, the bill has some 
problematic provisions, both on the efficiency side and on the supply 
side. One provision in the amendment would increase U.S. gasoline 
demand over the current law by 11 billion gallons by 2020. Given 
today's prices at the pump, that would seem to me to be a step in the 
wrong direction.
  With respect to oil and gas production, the bill mixes up the worthy 
goal of getting more energy development on Indian lands with provisions 
that weaken the National Environmental Policy Act process--the NEPA 
process--with the change in the trust relationship between Indian 
tribes and the Department of the Interior. The trust relationship has 
nothing to do with energy, and the change contemplated by this bill is 
vigorously opposed by several Indian tribes. I do not know why it needs 
to be included in this amendment either.
  The new amendment adds some other new provisions related to the oil 
and gas industry that, in my view, are likely to backfire when they 
actually get implemented. The first of these provides the cost of NEPA 
analyses can be pushed off on oil and gas producers to be recovered by 
them at some future date from their royalty stream to the government, 
if one ever develops from the lease for which the NEPA work was done. 
This is essentially a mandate that producers give the Federal 
Government the equivalent of an interest-free loan with the producers 
paying for something they thought they had already paid for through 
their taxes.

[[Page 7742]]

  If this amendment were to become law, there would be much greater 
pressure to let producers bear the entire cost of preparing the 
Government's NEPA documents with a theoretical cost recovery by them at 
some point in the future. I do not think this is good public policy.
  A second provision that could backfire is the very detailed 
micromanagement of the permit approval process in the Government with 
extremely tight deadlines like a 10-day deadline for agency action. 
This is likely to result in a great deal of paperwork to explain why 
the 10-day limit was exceeded for such permits, and the effort spent on 
generating all of the defensive paperwork will probably come at the 
expense of actually getting permits done.
  What we need and what I have strongly supported is getting more 
resources into the field offices of the Department of the Interior to 
eliminate the backlogs that are there at the present time. That is what 
we should be focused on--not on micromanaging the bureaucratic process.
  With respect to coal, the new amendment waters down the Clean Coal 
Technology Program in some very important ways. It lowers the fraction 
of funds in the program that needs to be spent on the cleanest 
technologies from what we have previously agreed to here in the Senate. 
It also sets up a brand new competing program to the Clean Coal 
Technology Program. Under that program, the Federal Government will 
contribute up to $1.8 billion to the utility industry to help foot the 
bill for off-the-shelf coal and pollution control technology for 
existing coal plants. I don't see how this subsidy makes sense from the 
point of view of energy, or the environment, or our budget situation.
  With respect to renewables, the new amendment authorizes grants to 
burn biomass for energy, but then it fails to protect old-growth 
forests. Under the amendment, old-growth forests could be cut down with 
Federal grants for use as an energy source. I think that is 
objectionable. An imperative for Federal energy policy legislation has 
to be to recognize the ways in which energy use and energy policy is 
intertwined with the environment.
  In this area, the amendment we have before us has some major 
failures. If enacted, it would be the first statute in years to 
substantially roll back environmental protections for our citizens and 
those rollbacks have nothing to do with improving our energy security.
  For example, the amendment loosens ozone attainment standards 
nationwide. To its credit, EPA in the last few weeks has taken 
definitive steps in the opposite direction; that is, for tough 
standards for ozone control. I don't know why we should vote in the 
Senate to undercut the progress the EPA is making. Further changing 
ozone standards is a topic that has never received Senate consideration 
in the past on any energy bill.
  The particular provision I am describing here materialized for the 
first time in one of last year's closed-door conference discussions.
  The conference report also exempts oil and gas construction sites 
from the Clean Water Act, even large sites that have been under 
regulation for years. It contains numerous provisions that are 
inconsistent with a thoughtful environmental review process under NEPA.
  I could go on at some length here pointing out problems in the bill.
  I have a letter I received today from Trout Unlimited and various 
Indian tribes in the Northwest and other outdoor sportsmen's groups--41 
groups in total--that talks about problems they see with the 
hydroelectric provisions in this amendment. It is a letter sent to all 
Senators and I am sure all Senators have received it.
  They say:

       We urge you to oppose cloture on the amendment and support 
     amendments to fix or eliminate the hydro provisions from the 
     energy bill.

  They also go on to say:

       At this point, the adoption of the hydropower title would 
     significantly complicate the implementation of these new 
     rules and would lengthen the licensing process.

  I ask unanimous consent that the letter be printed in the Record 
following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BINGAMAN. Madam President, these are some of the many problems 
contained in the pending amendment. I am sure colleagues will come to 
the floor and mention others they particularly are focused on.
  Let me talk about the second class of problems which consists of the 
good and needed energy policy provisions the amendment leaves out, even 
though those in most cases I am going to discuss are ones we in the 
Senate have passed as part of the Energy bill we sent to conference.
  First of all, the amendment steps backward from the old conference 
report that was brought to the Senate last fall in one important area; 
that is, in renewing the Federal Government's ability to enter into 
emergency savings performance contracts. This is one of the Federal 
Government's primary tools for improving energy efficiency in Federal 
facilities. I don't know why we would not want to include that in any 
energy bill we passed here in the Senate. We have included it in the 
bills we have passed previously.
  Second, the new amendment lacks something that enjoys majority 
support in the Senate; that is, a renewable portfolio standard for 
electricity.
  Along with the tax incentives in the FSC/ETI bill, this measure is 
essential, in my view, in order to give new certainty to the fledgling 
market to allow economies of scale to drive down costs and improve 
manufacturing capacity for renewable energy equipment in the United 
States.
  The Energy Information Agency agrees with this analysis. They have 
come up with their own analysis that shows this renewable portfolio 
standard is effective in getting more renewables into the market beyond 
what tax incentives would do. That would relieve some of the pressure 
on national gas prices over the long term.
  Another problem that is unaddressed in the bill deals with 
distributed generation such as combined heat and power at industrial 
facilities. The amendment does not address the barriers that have been 
erected to uniform interconnection of distributed generation to the 
grid. It is not enough to have the technology; we need to rid ourselves 
of the redtape that is keeping the technology from being used. The 
amendment, unfortunately, does not do that.
  With respect to reducing our dependence on foreign oil, the new 
amendment leaves out another important proposal that has overwhelming 
support in the Senate. That would be the innovative amendment offered 
last year by Senator Landrieu to promote oil savings economy-wide. That 
amendment passed this body 99-1 as part of our debate of an energy 
bill. Again, I see no reason why that should not be included if we are 
going to, in fact, pass an energy bill.
  The new amendment also entirely ducks the important issue of climate 
change. Climate change is closely related to energy policy because the 
two most prominent greenhouse gases--that is, carbon dioxide and 
methane--are largely released due to energy production in use. Every 
study of how to mitigate the possibility of global climate change comes 
up with a list of policy measures which relies heavily on increased 
energy efficiency and new energy production technologies with lower 
greenhouse gas emissions. Because of this connection, much of the 
energy policy and much of the climate change policy has to be discussed 
together. To do one is, by implication, to do the other; to ignore one 
while doing the other is to risk unfortunate and unintended 
consequences.
  The Senate has previously passed energy bills with numerous 
provisions to ensure that we integrate climate change strategy with 
energy policy, develop better climate change science, and that we focus 
on breakthrough technologies with better environmental performance, and 
the United States takes the lead in exporting the clean energy 
technologies we develop. These provisions do not receive even the 
slightest consideration or mention in the amendment that has been put

[[Page 7743]]

forward. Leaving climate change out of the energy legislation is a very 
shortsighted approach, both in terms of energy policy and in terms of 
our overall relations with the rest of the world.
  Finally, let me talk about this third major problem, and that is the 
way we are being asked to go about legislating on energy with this 
cloture vote on this amendment added to the Internet tax bill. This has 
to do with the fact that all of the above problems are encompassed in 
the 913-page amendment. Because it is a second-degree amendment, all 
913 pages are, at the moment, unamendable. It is a take-it-or-leave-it 
proposition for the Senate at this point.
  Let us suppose a cloture is invoked on this second-degree amendment 
and it was then adopted to the first-degree Daschle amendment. At that 
point, Senators who wish to change language currently contained within 
the Domenici amendment could only do so by offering a complete 
substitute amendment for the whole 913-page amendment. Senators who 
wish to add new subject matter, not seeking to change what is currently 
in the Domenici amendment, would do so by offering amendments that 
would be added onto the end of the amendment. But whenever the first 
substitute amendment fixing a problem within the Domenici amendment was 
adopted, no further amendments to the amended Daschle amendment would 
be in order.
  To have further amendment opportunities, Senators would then have to 
agree to adopt the Daschle amendment to the underlying text of S. 150. 
At that point, Senators with new ideas could still add new amendments 
addressing those new ideas but--and this is significant--Senators who 
still want to address problems remaining in the text would have to 
write so-called ``bigger bite'' amendments.
  As an example of what I am talking about, a Senator wishing to change 
something on page 600 of this 913-page amendment would have to write an 
amendment containing part of S. 150 and the first 599 pages of the 
Domenici amendment, and then the Senator would have to make sure the 
amendment made substantive changes both to the text of S. 150 and to 
the Domenici amendment. Successful amendments of this sort could take 
bigger bites that would unwittingly screen out other such amendments 
other Senators might want to offer.
  If this sounds convoluted as a way to do business in the Senate, that 
is because it is. If anyone wants to stand up and say this amendment 
would be fully amendable even if we invoke cloture tomorrow, I guess 
there is some technical argument to the effect that is true, but the 
reality is, all Senators with interests in changing specific problems 
in this 913 pages would find themselves at a considerable and perhaps 
overwhelming disadvantage compared to the normal way we go about 
amending bills in the Senate.
  So for both substantive and procedural reasons, I think proceeding to 
invoke cloture on the Domenici amendment is not the best course of 
action for the Senate. I believe we have better options for enacting 
energy issues in this Congress than this convoluted amendment 
situation. Those options would be to take the most pressing energy 
needs and promising energy opportunities and act directly on those 
without getting mired in the many controversies that are contained in 
this amendment.
  The Senate has already made a start in that direction. Over the past 
few months, the Senate has incorporated both large chunks and smaller 
pieces of the energy conference report into other legislation it has 
either passed or hopefully is going to pass. The prime example, of 
course, is the unanimous agreement to incorporate the Senate's 
bipartisan energy tax package into the FSC/ETI bill. We have also acted 
separately on LIHEAP reauthorization, the Low-Income Home Energy 
Assistance Program reauthorization, putting that in a separate bill, S. 
1786, which passed the Senate on February 12. Other sections of the 
Energy bill were put into the highway bill, which has also passed the 
Senate.
  I have pointed out for some time now that there are a number of 
additional provisions from the conference report that have broad 
bipartisan support that we could act on. Instead of mixing them with 
the Internet tax bill, we ought to separate them and pass them 
individually.
  One such provision, of course, is the legislation related to 
electricity reliability. Congress has been working on this over three 
Congresses now. Senator Cantwell has proposed freestanding legislation 
and has come to the Senate floor twice now and asked unanimous consent 
to pass this bill. Her requests have been denied. I urge my colleagues 
to let this bipartisan bill pass. There is no reason why this much 
needed provision should be held hostage to more controversial energy 
provisions.
  Another noncontroversial energy provision is related to the Alaska 
gas pipeline. The needed fiscal incentives to build the pipeline are 
now in the FSC/ETI bill. That is a great development. Why can't we go 
ahead and pass the provisions to streamline the regulatory approvals 
for the pipeline by unanimous consent? I am not aware of anyone in the 
Senate who objects to doing that.
  A third example where the Senate could act very easily, in my view, 
would be to renew the authority for energy savings performance 
contracts. This is an important energy matter that has broad bipartisan 
support. I pointed that out. As I have also pointed out, it has been 
totally deleted from this amendment.
  I could go on and point to other provisions related to the oil and 
gas industry, to energy efficiency, to research and development, and to 
other topics that are probably also easy enough to pass on a bipartisan 
basis. It does not make sense to take the position that we cannot do 
any single thing related to energy unless we tie it to the resolution 
of every other controversial issue in energy policy. In my view, that 
is counterproductive.
  I hope my colleagues will agree with me that the current amendment 
before the Senate is not the path we should take to move forward.
  I think there has been too much partisanship on energy in this 
Congress. In my view, that is unfortunate. Taking an especially 
partisan approach to formulating the policy has not been a recipe for 
success. I hope the Senate will not proceed forward with this amendment 
and will proceed forward with the underlying Internet tax bill. I do 
not believe this amendment provides the right balance between energy 
supply, energy efficiency, and the protection of the environment. We 
can do better for this Nation by passing the sensible energy provisions 
that are broadly supported in this body, and passing them soon.
  Madam President, I yield the floor.

                               Exhibit 1

Tribal Nations and River Conservationists Call on the Senate To Oppose 
Cloture on Senator Domenici's Second Degree Amendment To Add the Energy 
 Bill (S. 2095) to the Internet Tax Bill--Provisions Harmful to Rivers 
        and Fish Must Be Fixed or Eliminated in the Energy Bill

                                                   April 28, 2004.
       Dear Senator: Last year, the conference committee agreed to 
     profound changes to the Federal Power Act contained in the 
     proposed hydropower title of the Energy Bill. These changes 
     turn 80 years of law on its head by significantly changing 
     Sections 33(b), 4(e), and 18 of the Federal Power Act. Under 
     the new statute, States, Tribes and interested citizens 
     would, for the first time, be afforded inferior status in the 
     process for establishing fish passage and other public land 
     protections on hydropower licenses. Today, Senator Domenici 
     is trying to add the Energy bill, S. 2095, containing these 
     provisions to the Internet Tax Bill. We urge you to oppose 
     cloture on his amendment, and support amendments to fix or 
     eliminate the hydro provisions from the Energy bill.
       Under these provisions, a given license applicant would 
     offer alternative conditions contrary to what the Secretaries 
     of the Interior, Commerce, or Agriculture may have 
     recommended, and provide them with an unfair and exclusive 
     opportunity to specify the level of protection for public 
     lands (including Indian lands) or implementation of fish 
     passage. Perhaps the most disturbing aspect of this language 
     is the establishment of a new administrative appeals process 
     in the form of a ``trial-type'' hearing. Both this new 
     ``hearing'' and the right to require the agencies to accept 
     alternative conditions are available

[[Page 7744]]

     only to dam owners. Other interests already full parties to 
     FERC proceedings, including states, tribes, irrigators, 
     landholders, and environmental are prohibited from gaining 
     party status in this process. To suggest that State and 
     Tribal governments or local citizens should not be able to 
     exercise their role as full parties to hydro licensing when 
     hydropower dam operators proposed alternatives that could 
     damage fisheries and public lands is nothing less than an 
     attack on basic democratic principles.
       Today, there is even less reason to adopt the language from 
     last year's conference. On July 23, 2003, FERC finalized new 
     rules that establish a new licensing process--Integrated 
     Licensing--designed collaboratively by industry, FERC, State 
     and Tribal governments and the public interest community. See 
     ``Hydroelectric Licensing Under the Federal Power Act; Final 
     Rule,'' 68 Fed. Reg. 51069-51143 (August 25, 2003). This new 
     process specifically addresses the longstanding concerns that 
     inadequate interagency coordination has resulted in delays 
     and unnecessary costs in licensing decisions. Under this 
     process, licensees along with the other parties are provided 
     with opportunities to work collaboratively with the 
     conditioning agencies on the development of public land 
     protections and fishways in FERC licensing. The process will 
     run on a strict clock to assure a relicensing decision before 
     expiration of an original license, as the hydropower industry 
     requested. The rules also require FERC to conduct 
     consultation with tribes affected by the licensing. At this 
     point, the adoption of hydropower title would significantly 
     complicate the implementation of these new rules (for 
     example, by requiring Commerce, Agriculture and Interior to 
     undertake their own further rulemakings), and would lengthen 
     the licensing process. Without question, they will add a new 
     layer of red tape to a process that has not even been given a 
     chance to work.
       Yesterday, amendment was offered to the Internet tax 
     legislation on the Senate floor that includes the Hydropower 
     Title. We ask you to vote ``no'' on cloture for Senator 
     Domenici's amendment. We also ask you to oppose any efforts 
     to attach or otherwise pass the hydropower title and its 
     provisions that are so contrary to the interests of State and 
     Tribal governments and local citizens. Let's give these new 
     FERC regulations an opportunity to work.
       We thank you for your continued leadership on this issue to 
     ensure that our nation's rivers remain a public resource for 
     all to use and enjoy.
  The PRESIDING OFFICER. The Senator from Texas is recognized under the 
previous order.
  Mr. CORNYN. Thank you, Madam President.


                          The 9/11 Commission

  Madam President, earlier, I spoke on the importance of the 9/11 
Commission maintaining its credibility given the important mission that 
organization has undertaken to determine, first, a factual record of 
the events leading up to 9/11, and then to make recommendations to 
Congress and various Government agencies on how we can continue to 
protect our homeland against any further terrorist attacks on our own 
soil.
  I spoke about the need of one of the Commissioners, Commissioner 
Jamie Gorelick, to provide information about her knowledge of relevant 
facts. She, of course, was Deputy Attorney General during the Clinton 
administration under Attorney General Janet Reno.
  I also made one other point that I think bears repeating here now; 
that is, this is not about blame. The only person and the only entity 
to blame for the events of 9/11 are al-Qaida and Osama bin Laden. This 
is not about blaming the Clinton administration or the Bush 
administration. This is about getting to the facts. This is about 
getting good recommendations based on all the information and then 
making the American people safer as a result.
  On Monday, Senator Lindsey Graham and I asked the Justice Department 
to produce any documents they may have in their possession relating to 
Jamie Gorelick's involvement in establishing policies preventing the 
sharing of critical terrorism-related information between intelligence 
and law enforcement officials. It is the fact that those have now been 
made public and, indeed, posted on the Department of Justice's Web site 
at www.usdot.gov which brings me back to the Senate floor to briefly 
mention why I think Ms. Gorelick's testimony is even more important to 
explaining what she did as a member of the Justice Department under 
Janet Reno to erect and buttress this wall that has been the subject of 
so much conversation and why it is so much more important that she do 
so because the 9/11 Commission's credibility is at stake.
  Documents posted today on the Justice Department's Web site 
substantially discredit Ms. Gorelick's recent claims that, No. 1, she 
was not substantially involved in the development of the new 
information-sharing policy, and, No. 2, the Department's policies under 
the Clinton-Reno administration enhanced rather than restricted 
information sharing.
  Madam President, these documents--and they are not particularly 
lengthy, but they do raise significant questions about the decision of 
the Commission not to have Ms. Gorelick testify in public. Indeed, the 
only testimony we know she has given has been in secret or in camera, 
to use the technical term. These documents make it even more important 
that we get her explanation for these apparent inconsistencies and 
contradictions.
  Indeed, the document that Attorney General Ashcroft declassified and 
released during the course of his testimony --giving his very powerful 
testimony about the erection and the buttressing of this wall that 
blinded American law enforcement and intelligence agencies from the 
threat of al-Qaida and Osama bin Laden--these new documents reveal, 
indeed, Ms. Gorelick did have a key role in establishing that policy, 
which was ultimately signed off on and approved by Attorney General 
Janet Reno; indeed, that she received and rejected in part and accepted 
in part recommendations made by the U.S. attorney for the Southern 
District of New York with regard to this wall.
  Specifically, Madam President, as you will recall, the first attack 
on American soil that al-Qaida administered was, in all likelihood, the 
World Trade Center bombing in 1993. Indeed, the document that Attorney 
General Ashcroft released pointed out that Mary Jo White, the U.S. 
attorney for the Southern District of New York, was concerned about an 
ongoing criminal investigation ``of certain terrorist acts, including 
the bombing of the World Trade Center,'' and that ``[d]uring the course 
of those investigations significant counterintelligence information 
[had] been developed related to the activities and plans of agents of 
foreign powers operating in [the United States] and overseas, including 
previously unknown connections between separate terrorist groups.''
  Well, in response to some draft proposals for establishing criteria 
for both law enforcement and intelligence, counterterrorism officials, 
Ms. Gorelick noted that the procedures that were adopted at her 
recommendation by the Justice Department under Attorney General Janet 
Reno went beyond what is legally required. Indeed, I spoke earlier 
about the fact that the USA PATRIOT Act brought down that law that had 
been established both by this policy and, indeed, by policies that had 
preceded it.
  But it is important, in these new documents that have just been 
revealed today, in response to my request and Senator Graham's request, 
that there is, indeed, a memorandum by Mary Jo White dated June 13, 
1995, in which she was given an opportunity to respond to the proposed 
procedures that have maintained and buttressed this wall that blinded 
America to this terrible threat.
  Mary Jo White, in part, said--and the documents are on the website so 
anyone who wishes can see the whole document, but she said, in part:

       It is hard to be totally comfortable with instructions to 
     the FBI prohibiting contact with United States Attorney's 
     Offices when such prohibitions are not legally required. . . 
     .

  She goes on to say:

       Our experience has been that the FBI labels of an 
     investigation as intelligence or law enforcement can be quite 
     arbitrary depending upon the personnel involved and that the 
     most effective way to combat terrorism is with as few labels 
     and walls as possible so that wherever permissible, the right 
     and left hands are communicating.

  Indeed, it was this lack of communication, which I think is 
universally acknowledged, that contributed to the blinding of America 
to the threat of terrorism leading up to the events of 9/11. So Ms. 
White made what she called a very modest compromise and some 
recommendations for change to this proposed policy.

[[Page 7745]]

  In the interest of fairness and completeness, let me just say the 
documents reveal there were two memoranda by U.S. Attorney Mary Jo 
White, and they contain recommendations for revisions of the policy, 
and that Ms. Gorelick, through and in cooperation with Michael Vatis, 
Deputy Director of the Executive Office for National Security, accepted 
some of those proposed changes and rejected others.
  But then in these documents, again, which were finally disclosed 
today in response to Senator Graham's and my request, there is a 
handwritten note from Ms. Gorelick that says:

       To the AG--I have reviewed and concur with the Vatis/
     Garland recommendations for the reasons set forth in the 
     Vatis memo. Jamie.

  So it is clear Ms. Gorelick was intimately involved with 
consideration of the arguments, both pro and con, on establishing this 
policy which, according to her own memo, went well beyond what the law 
required. Thus, it becomes even more clear she is a person with 
knowledge of facts that are relevant and indeed essential to the 
decisionmaking process of the 9/11 Commission.
  I wish it stopped there, but it does not. Indeed, it appears these 
new documents contradict or at least require clarification by Ms. 
Gorelick of subsequent statements that she has made on the 9/11 
Commission. For example, in a broadcast on CNN's Wolf Blitzer Reports, 
Wolf Blitzer asked her:

       Did you write this memorandum in 1995 . . .

  By reference, this was the one that was declassified by Attorney 
General Ashcroft that established these procedures building the wall 
and blinding America to this terrible threat.
  He asked:

       Did you write this memorandum in 1995 that helped establish 
     the so-called walls between the FBI and CIA?

  Ms. Gorelick said:

       No. And again, I would refer you back to what others on the 
     commission have said. The wall was a creature of statute. It 
     existed since the mid-1980s. And while it is too lengthy to 
     go into, basically the policy that was put out in the mid 
     1990s, which I didn't sign, wasn't my policy in any way. It 
     was the Attorney General's policy, was ratified by Attorney 
     General Ashcroft's deputy as well on August of 2001.

  In other words, Ms. Gorelick, notwithstanding the fact that her 
initials as Deputy Attorney General appear on the very memos 
considering recommendations, both pro and con, with regard to 
establishing these procedures, in spite of the fact she appears by 
these documents to have been intimately involved in the adoption and 
establishment of these procedures, said: I didn't sign this memorandum 
and it wasn't my policy.
  Well, at the very least it is clear that it was the policy of the 
Attorney General, based on her explicit recommendation, and that she 
consciously adopted in some cases and rejected in others the 
recommendation of the U.S. attorney for the Southern District of New 
York with regard to sharing of information between law enforcement and 
counterintelligence authorities.
  Finally, another example of an apparent contradiction, and maybe one 
that Ms. Gorelick could explain if she would testify in public, as I 
and others have requested, before the Commission, she said in an op-ed 
that appeared in the Washington Post, April 18, 2004, entitled ``The 
Truth About the Wall,'' in giving the various reasons for her side of 
the story in response to the testimony of Attorney General Ashcroft and 
the revelation of this previously classified document:

       Nothing in the 1995 guidelines prevented the sharing of 
     information between criminal and intelligence investigators.

  That appears to directly contradict what is contained in these 
documents. I would imagine if asked to provide her own testimony, Mary 
Jo White, the now retired former U.S. attorney for the Southern 
District of New York, would beg to differ.
  The primary purpose of this is not to cast blame. We know where the 
blame lies. But it is important the 9/11 Commission get an accurate 
record, a historical record of the events leading up to September 11. 
If, in fact, there is a way for Ms. Gorelick to shed some light on this 
subject, indeed, if there is a way for her to clarify or reconcile the 
apparent contradictions between what these newly released records 
demonstrate and her public statements and writings, then she ought to 
be given a chance to do so.
  If she does not avail herself of that opportunity, if the Commission 
refuses to hear from this person in public and to give the American 
people the benefit of this testimony in public in a way that they have 
done with Attorney General Janet Reno and former FBI Director Louis 
Freeh, current FBI Director Robert Mueller, George Tenet, Director of 
Central Intelligence, and Attorney General John Ashcroft, if they 
refuse, if they continue to refuse to avail themselves of this public 
testimony and the opportunity for questions to be asked about these 
apparent contradictions, they will have administered a self-inflicted 
wound. The public will be left, at the conclusion of the 9/11 
Commission, with grave doubts about the impartiality and the judgment 
of the Commissioners who have refused to allow the American people the 
benefit of this relevant and important testimony.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.


                             Internet Taxes

  Mr. WYDEN. Madam President, as we move to conclusion of the debate on 
the question of Internet taxes and votes tomorrow, as has happened so 
often over the last 8 years that we have dealt with this issue, a lot 
of Senators have asked for some examples of how all this would work 
because it is obviously an extraordinarily complicated issue, and the 
terminology is pretty dense. What I wanted to do was give Senators a 
sense of what we are talking about.
  Of course, under the McCain proposal, Senator Allen and I would 
simply say, with respect to Internet access, it is tax free. You have 
already paid for it. It is like buying a carton of milk. You have 
already paid for it once. You should not have to pay for it again when 
you pour it on your cereal. That is essentially what the McCain 
compromise would do.
  The proposal offered by the Senator from Tennessee takes a very 
different kind of tack. I wanted to give a very specific example of how 
it would work and why I am opposed to what he has been advocating. The 
Senator from Tennessee, in his proposal, stipulates that there would be 
no taxes on services used ``to connect a purchaser of Internet access 
to the Internet access provider.''
  That certainly sounds like a laudable goal and something everyone 
should support. But because the Senator from Tennessee nowhere defines 
what the word ``connect'' means, I am of the view that proposal alone 
means that scores of jurisdictions in our country would be able to 
subject a simple message, sent by a Blackberry via DSL, to scores of 
taxes.
  I want to walk through exactly why I believe that. Let us say, for 
purposes of discussing an example, you send a Blackberry message via 
DSL from Providence, RI, to Portland, OR. You type your message in and 
you hit send.
  The first connection--again, I am citing that because it is the 
language of the Alexander proposal--is with a cell tower in Providence. 
This would then be connected to a Verizon local phone line somewhere in 
the Northeast. Then it would be connected to a switch, again somewhere 
on the east coast. The message at that point is connected to AT&T at a 
network in one of their many facilities on the east coast. AT&T would 
then shoot the message across scores of States and connect it at a 
Qwest switch in Portland, in my home State. That Qwest switch then 
connects the message to a cell tower in Portland. And then, finally, it 
connects it to the friend in Portland.
  The way that message is sent could involve as many as 100 different 
connections--the concept that is not defined in the Alexander proposal. 
But depending on how the word ``connect'' is defined--and it is not 
laid out anywhere in the proposal of the Senator from Tennessee--you 
could have hundreds of jurisdictions imposing taxes

[[Page 7746]]

on the one message I have just described as being sent on a Blackberry 
from Providence, RI, to Portland, OR.
  The reason why that is the case is the Alexander proposal states no 
taxes would be applied on services used to connect a purchaser of 
Internet to the Internet access provider. But in the example I just 
gave, what you would have is scores of jurisdictions across the country 
saying they are not the exempted connection. They would say they are 
not the exempted connection, and then they would be off to the races, 
in terms of imposing these special taxes.
  So we are going to have a chance, I think tomorrow, to extend this 
debate a bit longer. I think people are going to be pretty close to 
ecstasy to have this debate wrap up, given how long it has gone. But I 
want to take a minute and try to recap what I think are the central 
kinds of questions.
  From the very beginning, those who have been involved in this effort 
have tried to promote technological neutrality. We have come back again 
and again to say all we would like is to make sure that what happens in 
the offline world is applicable to the online world. We have said it 
does not make sense today to discriminate against the future, which is 
broadband delivered through DSL. Certainly, that would be the case if 
cable gets a free ride and DSL gets hammered.
  I am of the view the message you get today under the Alexander 
proposal--instead of that message, ``you've got mail,'' the message 
will be ``you've got special taxes,'' and you will have those special 
taxes because terms like the one I have described this afternoon are 
not defined.
  As I have talked about in the last couple of days, we have pointed 
out the revenue estimates, which are always so dire in terms of lost 
revenue on the part of the States and localities, and time after time--
and we have debated this in the last 8 years--those revenue projections 
have not come to pass. I know Senators and their staffs right now are 
being bombarded by some officials from State and local governments, 
saying they are going to lose enormous amounts of money, and this is 
going to drain their revenue base, and it will have calamitous 
financial ramifications.
  But as you listen to those projections--and I know they are pouring 
into Senators' offices--we have heard those arguments again and again, 
and they have not come to pass. I point out, for example--and I will 
quote--in 1997, the National Governors Association said the Internet 
Tax Freedom Act ``would cause the virtual collapse of the State and 
local revenue base.''
  The chairman of the Commerce Committee worked with myself and Senator 
Stevens and others, and we passed the legislation. The Governors said 
that revenue base was going to collapse. But in the next year, local 
and State tax revenues were up $7.2 billion. That is one example from 
over the last 8 years and the journey we have had in the debate over 
this legislation.
  The same thing happened in 2001. Those who opposed our legislation 
said: The growth of e-commerce represents a significant threat to State 
and local tax revenues and they might lose tax revenue in the 
neighborhood of $20 billion in 2003.
  According to the National Association of State Budget Officers, State 
sales tax collections rose from $134.5 billion in 2001 to $160 billion 
in 2003, an increase of more than $25 billion in 2 years.
  We heard again and again this would be devastating to mom-and-pop 
stores on Main Streets, and pretty much the Main Streets of Maine and 
Oregon would shrivel up because of the special fix that was provided 
for sales online. Over the entire period this law has been on the 
books, the number of sales online has gone up something like 1.5 
percent. It has been a tiny fraction of our economy.
  The fact is, the major development over the 8 years we have had this 
legislation on the books is we have essentially seen most of our 
businesses go to ``bricks and clicks.'' If you walk on the streets of 
Maine, or the streets of Oregon, our smallest businesses so often are 
able to expand their sales because they have a significant online 
component, and people from all over the world can shop at a small store 
in Maine or Oregon. I think as the Chair will note, these small stores 
don't have big advertising budgets. They cannot send people all over 
the world to market their products. Because of the Internet, they are 
in a position to have a global marketplace. So major development in 
this field, rather than wiping out Main Street stores, has helped them.
  Senator Leahy brought in a small merchant from Vermont who talked to 
us specifically about the extraordinary gains they have been able to 
make as a result of the convenience provided by Internet shopping, 
which will certainly be harmed if the Alexander legislation were to 
pass.
  I imagine we will continue to pummel this subject a bit more 
tomorrow. Having been involved in this issue for 8 years, I think it is 
fair to say the decision the Senate makes on this subject will say a 
whole lot about the future of the Internet. We learned this morning, as 
the chairman of the Commerce Committee pointed out, we are already 
lagging behind in terms of broadband investment. That is the wave of 
the future. I think small towns in Maine and in Oregon--when we talk 
about access, for example, to the Net and new technology, it is not 
going to come about through cable, because cable is going to be very 
reluctant to make those major investments in small towns, such as those 
that the distinguished Presiding Officer represents, and my small 
towns. It is going to come about essentially through broadband, 
delivered via DSL, and the fact is, today, DSL in many jurisdictions is 
singled out for special and discriminatory treatment. If we were to not 
update the law, that would be a trend that would be sure to accelerate.
  So I think this is going to be an extremely important vote tomorrow. 
This is a law that has worked. I will wrap up with this one comment I 
have mentioned to colleagues, as we have talked about this over the 
years. I have not found a single jurisdiction anywhere that can point 
to an example of how they have been hurt by their inability to 
discriminate against the Internet. That is all we have sought to do 
over the last 7 years. We said treat the Internet as you treat the 
offline world. When we started, that was not the case. If you bought a 
paper the traditional way in a number of jurisdictions, you would pay 
no taxes. If you bought the online edition of that very same paper, you 
would pay a tax. That was not technologically neutral. So we passed the 
first Internet tax freedom bill to deal with that kind of example.
  For over more than 5 years, this is a law that has worked. Under the 
McCain compromise that we will vote on tomorrow, we would simply be 
updating that law to incorporate the kinds of technologies that evolved 
over the last few years.
  I wanted to make sure tonight that people understood with a specific 
example of a message that would go from Providence, RI, to Portland, 
OR, how the vagueness in terms of the definitions in the Alexander 
legislation would, in my view, subject a simple message sent by 
BlackBerry via DSL to scores of new taxes. I cannot believe any Senator 
would want that to happen, and that is why I am hopeful we will get 
support for the McCain compromise and be able to move forward to final 
passage of the legislation.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Alexander). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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