[Congressional Record (Bound Edition), Volume 151 (2005), Part 21]
[Senate]
[Pages 28835-28849]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            THE PATRIOT ACT

  Mrs. FEINSTEIN. Mr. President, I rise today as a 12-year member of 
the Senate Judiciary Committee and a 5-year member of the Senate 
Intelligence Committee. I do so indeed with a very heavy heart. I have 
had, until now, great confidence in America's intelligence activities. 
I have assured people time and time again that what happens at home has 
always been conducted in accordance with the law.
  I played a role in the PATRIOT Act. I moved one of the critical 
amendments having to do with the wall and the FISA court. Today's 
allegations as written in the New York Times really question whether 
this is in fact true. I read it with a heavy heart, yet without knowing 
the full story.
  Let me be clear. Domestic intelligence collection is governed by the 
Foreign Intelligence Surveillance Act, known as FISA. This law sets out 
a careful set of checks and balances that are designed to ensure that 
domestic intelligence collection is conducted in accordance with the 
Constitution, under the supervision of judges and with accountability 
to the Congress of the United States.
  Specifically, FISA allows the Government to wiretap phones or to open 
packages, but only with a showing to a special court--the FISA court--
and after meeting a legal standard that requires that the effort is 
based on probable cause to believe the target is an agent of a foreign 
power.
  Let me cite two sources. The first is a 1978 report by the Senate 
Select Committee on Intelligence. In the report is a comment by the 
then-chairman of that committee, Senator Birch Bayh. He is talking 
about the FISA bill that had just come to the floor in 1978:

       The bill requires a court order for electronic 
     surveillance, defined therein, conducted for foreign 
     intelligence purposes within the United States or targeted 
     against the international communications of particular United 
     States persons who are in the United States. The bill 
     establishes the exclusive means by which such surveillance 
     may be conducted.

  That is the bill, FISA, which was passed in 1978.
  Second, in late 2001 this subject came up again on the Senate 
Intelligence Committee. The Senate Intelligence Committee discussed 
this subject and amended at that time in its authorization bill 
National Security Act section 502, which is the reporting of 
intelligence activities other than covert action.
  Section 502 states:

       To the extent consistent with due regard for the protection 
     from unauthorized disclosure of classified information 
     relating to sensitive intelligence sources and methods or 
     other exceptionally sensitive matters, the Director of 
     Central Intelligence and the heads of all departments, 
     agencies, and other entities of the United States Government 
     involved in intelligence activities shall:
       (1) keep the congressional intelligence committees--

  It doesn't say only the chairman and the vice chairman--

     fully and currently informed of all intelligence activities 
     other than a covert action (as defined in section 503(e)), 
     which are not the responsibility of, are engaged in by, or 
     are carried out for or on behalf of any department, agency, 
     or entity of the United States Government, including any 
     significant anticipated intelligence activity and any 
     significant intelligence failure.
       And (2) furnish the congressional intelligence committees 
     any information or material concerning intelligence 
     activities, other than covert actions, which is within their 
     custody or control, and which is requested by either of the 
     congressional intelligence committees in order to carry out 
     its authorized responsibilities.

  At that time, we had this discussion about just the chairman and the 
vice chairman receiving certain information, and this act was amended, 
and section (b) was added to the National Security Act, called ``form 
and contents of certain reports.'' It was to clarify what the form and 
content of the reporting to the committee would be. And the wording is 
as follows:

       Any report relating to a significant anticipated 
     intelligence activity or a significant intelligence failure 
     that is submitted to the congressional intelligence 
     committees for the purposes of subsection (a)(1) shall be in 
     writing and shall contain the following:
       (1) a concise statement of any fact pertinent to such 
     report;
       (2) an explanation of the significance of the intelligence 
     activity or intelligence failure covered by such report.

  And then section (c) was added, ``standards and procedures for 
certain reports,'' that those standards and procedures would hereby be 
established.
  What has happened is that it has become increasingly used just to 
notify a very few people. There are 535 Members of the Senate and the 
House of Representatives of the United States.
  If the President of the United States is not going to follow the law 
and he simply alerts eight Members, that doesn't mean he doesn't 
violate a law. I repeat, that doesn't mean he doesn't violate a law. 
FISA is the exclusive law in this area, unless there is something I 
missed, and please, someone, if there is, bring it to my attention.
  Section 105(f) of FISA allows for emergency applications where time 
is of the essence. But even in these cases, a judge makes the final 
decision as to whether someone inside the United States of America, a 
citizen or a noncitizen, is going to have their communications 
wiretapped or intercepted. The New York Times reports that in 2004, 
over 1,700 warrants for this kind of wiretapping activity were approved 
by the FISA Court. The fact of the matter is, FISA can grant emergency 
approval for wiretaps within hours and even minutes, if necessary.
  In times of war, FISA section 111 states this:

       Notwithstanding any other law, the President, through the 
     Attorney General, may authorize electronic surveillance 
     without a court order under this title to acquire foreign 
     intelligence information for a period not to exceed 15 
     calendar days following a declaration of war by the Congress.

  I would argue the resolution authorizing use of force was not a 
declaration of war. I read it this morning carefully. It does not 
authorize the President of the United States to do anything other than 
use force. It doesn't say he can wiretap people in the United States of 
America. And apparently, perhaps with some change, but apparently this 
activity has been going on unbeknownst to most of us in this body and 
in the other body now since 2002.
  The newspaper, the New York Times, states that the President 
unilaterally decided to ignore this law and ordered subordinates to 
monitor communications outside of this legal authority.
  In the absence of authority under FISA, Americans up till this point 
have been confident--and we have assured them--that such surveillance 
was prohibited.
  This is made explicit in chapter 119 of title 18 of the criminal code 
which makes it a crime for any person without authorization to 
intentionally intercept any wire, oral, or electronic communication.
  As a member of the Senate Judiciary and Intelligence Committees, I 
have been repeatedly assured by this administration that their efforts 
to combat terrorism were being conducted within the law, specifically 
within the parameters of the Foreign Intelligence Surveillance Act 
which, as I have just

[[Page 28836]]

read, makes no exception other than 15 days following a declaration of 
war.
  We have changed aspects of that law at the request of the 
administration in the USA PATRIOT Act to allow for a more aggressive 
but still lawful defense against terror. So there have been amendments. 
But if this article is accurate, it calls into question the integrity 
and credibility of our Nation's commitment to the rule of law.
  I refreshed myself this morning on the fourth amendment to the Bill 
of Rights of the Constitution of the United States. Here is what it 
says:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable search and 
     seizures, shall not be violated, and no Warrants shall issue, 
     but upon probable cause, supported by Oath or affirmation, 
     and particularly describing the place to be searched, and the 
     persons or things to be seized.

  Clearly an intercept, a wiretap, is a search. It is a common 
interpretation. A wiretap is a search. You are looking for something. 
It is a search. It falls under the fourth amendment.
  Again, the New York Times states that a small number of Senators, as 
I said, were informed of this decision by the President. That doesn't 
diminish the import of this issue, and that certainly doesn't mean that 
the action was within the law or legal.
  What is concerning me, as a member of the Intelligence Committee, is 
if eight people, rather than 535 people, can know there is going to be 
an illegal act and they were told this under an intelligence umbrella--
and therefore, their lips are sealed--does that make the act any less 
culpable? I don't think so.
  The resolution passed after September 11 gave the President specific 
authority to use force, including powers to prevent further terrorist 
acts in the form of force. I would like to read it. I read Public Law 
107-40, 107th Congress:

       Sec. 1. Short title.
       This joint resolution may be cited as the ``Authorization 
     for Use of Military Force''.
       Sec. 2. Authorization for Use of United States Armed 
     Forces.
       (A) In General.--That the President is authorized to use 
     all necessary and appropriate force against those nations, 
     organizations, or persons he determines planned, authorized, 
     committed, or aided the terrorist attacks that occurred on 
     September 11, 2001, or harbored such organizations or 
     persons, in order to prevent any future acts of international 
     terrorism against the United States by such nations, 
     organizations, or persons.

  Then it goes on to say:

       Consistent with section 8(a)(1) of the War Powers 
     Resolution, the Congress declares that this section is 
     intended to constitute specific statutory authorization 
     within the meaning of section 5(b) of the War Powers 
     Resolution.

  This is use of force. It is not use of wiretapping or electronic 
surveillance of American citizens or those without citizenship within 
the confines of the United States. That is the jurisdiction of the FISA 
Court. There is a procedure, and it is timely.
  As a matter of fact, we got into this rather seriously in the 
Judiciary Committee. At the time we wrote the PATRIOT Act, I offered an 
amendment to change what is called ``the wall'' between domestic 
intelligence-gathering agencies and foreign intelligence-gathering 
agencies from a ``primary purpose'' for the collection of foreign 
intelligence to a ``significant purpose.'' We had a major discussion in 
the committee, as is the American way. We were making public policy. We 
discussed what primary purpose meant. We discussed in legal terms what 
significant purpose meant.
  So this was a conscious loosening of a standard in the FISA law to 
permit the communication of one element of Government with the other 
and transfer foreign intelligence information from one element of the 
Government to the other.
  That is the way this is done, by law. We are a government of law. The 
Congress was never asked to give the President the kind of unilateral 
authority that appears to have been exercised.
  Mr. BYRD. Right.
  Mrs. FEINSTEIN. I was heartened when Senator Specter also said that 
he believed that if the New York Times report is true--and the fact 
that they have withheld the story for a year leads me to believe it is 
true, and I have heard no denunciation of it by the administration--
then it is inappropriate, it is a violation of the law.
  How can I go out, how can any Member of this body go out, and say 
that under the PATRIOT Act we protect the rights of American citizens 
if, in fact, the President is not going to be bound by the law, which 
is the FISA court?
  And there are no exceptions to the FISA court.
  So Senator Specter, this morning, as the chairman of the Judiciary 
Committee, announced that he would hold hearings on this matter the 
first thing next year. I truly believe this is the most significant 
thing I have heard in my 12 years. I am so proud of this Government 
because we are governed by the rule of law, and so few countries can 
really claim that. I am so proud that nobody can be picked up in the 
middle of the night and thrown into jail without due process, and that 
they have due process. That is what makes us different. That is why our 
Government is so special, and that is why this Constitution is so 
special. That is why the fourth amendment was added to the Bill of 
Rights--to state clearly that searches and seizures must be carried out 
under the parameter of law, not on the direction of a President 
unilaterally.
  So I believe the door has been opened to a very major investigation 
and set of circumstances. I think people who know me in this body know 
I am not led toward hyperbole, but I cannot stress what happened when I 
read this story. And everything I hold dear about this country, 
everything I pledge my allegiance to in that flag, is this kind of 
protection as provided by the Constitution of the United States and the 
laws we labor to discuss, argue, debate, enact, then pressure the other 
body to pass, and then urge the President to sign. That is our process.
  If the President wanted this authority, he should have come to the 
Intelligence Committee for an amendment to FISA, and he did not. The 
fact that this has been going on since 2002--it is now the end of 2005. 
Maybe 8 people in these 2 bodies in some way, shape, or form may have 
known something about it, but the rest of us on the Intelligence 
Committees did not.
  That is simply unacceptable.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I thank the Senator from California for 
her remarks and associate myself with them. I commend her for taking on 
this vital issue affecting all Americans.
  I ask unanimous consent that the previous order be modified to permit 
Senator Byrd to precede me in speaking order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank the very distinguished Senator from 
Minnesota for his kindness and his courtesy in yielding to me. I want 
to say there is one thing I am sorry about with respect to the Senator 
from Minnesota. He made a bad decision some time ago. I wish he had not 
made it, and I begged him to retract on it and say he would not do it. 
He says he is not going to run again. I am sorry about that. He is one 
of the immortal 23 Senators who voted against that resolution that the 
Senator from California is talking about. I voted against it. I have 
been in the Senate for 47 years, and that is the vote of which I am 
most proud because in voting that way, I stood for this, the 
Constitution of the United States. That Constitution does not give any 
President the power to declare war. It says Congress shall have the 
power to declare war. I voted against that resolution, the best vote I 
have cast in 47 years in this Senate, and I am proud that the Senator 
from Minnesota can carry that tribute with him to the grave. I thank 
him and congratulate him. Again, I thank him for yielding to me.
  Mr. President, I believe in America. Let me say that again. I believe 
in America. I believe in the dream of the Founders and Framers of our 
inspiring Constitution. I believe in the spirit that drove President 
Abraham Lincoln

[[Page 28837]]

to risk all to preserve the Union. I believe in what President Kennedy 
challenged America to be--America, the great experiment of democracy.
  Where the strong are also just and the weak can feel secure, the soul 
and promise of America stands as a beacon, praise God, of freedom and a 
protector of liberty which lights and energizes the people around the 
world. Today, sadly, that beacon is dimmed. This administration's 
America is becoming a place where the strong are arrogant and the weak 
are ignored. Fie on the administration.
  Yes, we hear high-flung language from the White House about bringing 
democracy to a land where democracy has never been. We seem mesmerized 
with glorious rhetoric about justice and liberty, but does the rhetoric 
really match the reality of what our country has become?
  Since the heinous attacks of September 11, I speak of the actions of 
our own Government, actions that have undermined the credibility of 
this great Nation around the world. These actions taken one at a time 
may seem justified, but taken as a whole they form an unsettling 
picture and tell a troubling story. Do we remember the abuses at Abu 
Ghraib? They were explained as an aberration. Do we remember the abuses 
at Guantanamo Bay? They were denied as an exaggeration. Now we read 
about this so-called policy of rendition--what a shame--a policy where 
the U.S. taxpayers are funding secret prisons in foreign lands. What a 
word, ``rendition.'' What a word, ``rendition.'' Shame. It sounds so 
vague, almost harmless. But the practice of rendition is abhorrent.
  Let me say that again. It sounds so vague, almost harmless, but the 
practice of rendition is abhorrent--abhorrent.
  The administration's practice of rendition is an affront, an affront 
to the principles of freedom, the very opposite of principles we claim 
we are trying to transplant to Iraq and to other rogue nations.
  The administration claims that rendition is a valuable weapon in the 
war on terror. But what is the value of having America's CIA sit as 
judge and jury while deciding just who might be a threat to our 
national security? Such determinations receive no review by a court of 
law--none. The CIA simply swings into action, abducts a person from 
some foreign country and flies them off to who knows where, with no 
judicial review of guilt or innocence. A person can be held in secret 
prisons in unnamed countries or even shipped off to yet another country 
to face torture at the hands of the secret police of brutal 
governments.
  Is that what we want? Is this the America that our Founders 
conceived? Is this the America that Nathan Hale died for, when he said 
I only regret that I have but one life to lose for my country? Is this 
the America that he died for? Is this the America that our Founders 
conceived? Is this the America of which millions of people dreamed? Is 
this, I ask the Senate, the beacon of freedom inspiring other nations 
to follow?
  The United States should state clearly and without question that we 
will not torture prisoners and that we will abide by the treaties that 
we signed, because to fail to do so is to lose the very humanity, the 
morality that makes America different, that makes America the hope for 
individual liberty around the world.
  The disgusting, degrading, and damaging practice of rendition should 
cease immediately. Is this what Patrick Henry was talking about--give 
me liberty or give me death? It is not about who they are. ``It's not 
about who they are. It's about who we are.'' Those are the words of my 
colleague Senator John McCain, bless his heart. Senator McCain is a 
senior member of the Senate Armed Services Committee. He is a former 
prisoner of war. He knows what it is all about. And he is exactly 
right. There is no moral high ground in torture. There is no moral high 
ground in the inhumane treatment of prisoners. Our misguided, thuggish 
practice of rendition has put a major blot on American foreign policy.
  Now comes this similarly alarming effort to reauthorize the PATRIOT 
Act, retaining provisions that devastate many of our own citizens' 
civil liberties here at home. What is happening? What is happening to 
our cherished America? Let us stop and look and listen and think. What 
is happening to our cherished America?
  Any question raised about the wisdom of shredding constitutional 
protections of civil liberties with roots that trail back centuries is 
met with the disclaimer that the world has changed and that the 9/11 
attacks are, in effect, a green light. Get that, a green light to trash 
this Constitution, to seize private library records. Hear that.
  Suppose I want to get a book out of the library. Suppose I want to 
read ``Loves Labors Lost.'' The disclaimer that the world has changed 
and that the 9/11 attacks are in effect a green light to trash the 
Constitution, to seize private library records--suppose I want to read 
about ``A Tale of Two Cities.'' They are going to seize those library 
records? To search private property--how about that--without the 
knowledge of the owner? If you want to go in my house without my 
knowledge, without my wife's knowledge, to spy on ordinary citizens 
accused of no crime in a manner is a sick--a sick, s-i-c-k, perversion 
of our system of justice and it must not be allowed.
  Paranoia must not be allowed to chip away at our civil liberties. 
Don't let it happen. The United States of America must not adopt the 
thuggish tactics of our enemies--no. We must not trash the fourth 
amendment because the Senate is being stampeded at the end of a 
congressional session. No.
  Government fishing expeditions with search warrants written by FBI 
agents is not what the Framers had in mind. It is not what Benjamin 
Franklin had in mind. It is not what Morris had in mind. It is not what 
James Wilson had in mind. Spying on ordinary, unsuspecting citizens--
not with that in mind. Without their knowledge? No. That is not what 
the Framers had in mind. Handing the Government unilateral authority to 
keep all evidence secret from a target so that it may never be 
challenged in a court of law is not what the Framers had in mind.
  Yesterday, I believe it was, we heard reports that the military has 
spied on Americans simply because they exercised their right to 
peaceably assemble and to speak their minds. What disgrace. What a 
shame. Today we hear, yes, we hear today that the military is tapping 
phone lines in our own country without the consent of a judge. Can you 
believe that? Here in this country, where liberty is supposed to 
prevail.
  Go and ask that Statue of Liberty. Is that what it stands for?
  No. Labeling civil disobedience and political dissent as domestic 
terrorism is not what the Framers had in mind.
  Read history. What is the matter with us? Have we gone berserk? Read 
history. That is not what they had in mind.
  Our Nation is the most powerful nation in the world. Why? Because our 
Nation was founded on a principle of liberty. Benjamin Franklin said 
``those who would give up essential Liberty, to purchase a little 
temporary Safety, deserve neither Liberty nor Safety.'' Our Founding 
Fathers, intent on addressing the abuses they had suffered at the hands 
of an overzealous government, established--yes, it did--established a 
system of checks and balances, ensuring that there is a separation of 
powers--there is a separation of powers. Read it in the Constitution, 
article I, article II, article III--a separation of powers so that no 
one body may run amok with its agenda. These checks are what safeguards 
freedom for you, Mr. President, and for me and for all others in this 
land. These checks are what safeguard freedom, and the American people 
are looking to us--yes, they are looking through those lenses there, 
they are looking at us, yes. The people out on the broad prairies, out 
on the plains, out in the valleys, out on the great shores, the frozen 
wastes of the North Pole, and, yes, that liberty extends everywhere. 
That American liberty extends everywhere. And nobody may run amok with 
its agenda.
  These checks are what safeguard freedom, and the American people are

[[Page 28838]]

looking to us--you, and me, Senator, you, Senator, and you, Mr. 
President--looking to us now to restore and protect that freedom.
  So many have died protecting those freedoms. And we owe it to those 
brave men and women to deliberate meaningfully and to ultimately 
protect those freedoms that Americans cherish so deeply. The American 
people deserve nothing less.
  Earlier today, the Senate voted to stop a bill that would have 
allowed the abuses of American civil liberties to continue for another 
4 years. Shame. The message of this vote is not just about the PATRIOT 
Act but the message that the Senate can stand up, the Senate can stand 
against an overreaching Executive of any party, any party, any party 
that has sacrificed our liberties and stained our standing before the 
world.
  The PATRIOT Act has gone too far. It has gone too far. Secret 
renditions should be stopped. Torture must be outlawed. Our military 
should not spy on our own people.
  The Senate has spoken. Let us secure our country but not by 
destroying our liberties.
  Thank Almighty God for this Constitution and the Framers who wrote 
it, and the Founders of our Nation who risked their lives and their 
fortunes and their sacred honor. Thank God for checks and balances. 
Thank God for the Senate, and may it always stand for the right.
  I thank all Senators. I again thank the distinguished Senator from 
Minnesota. I want to tell him that I wish he and his family and loved 
ones a merry Christmas, a merry Christmas. I thank him.
  The PRESIDING OFFICER (Mr. Burr). Under the previous order, the 
Senator from Minnesota is recognized.
  Mr. McCAIN. Mr. President, parliamentary inquiry: What is the order?
  The PRESIDING OFFICER. The Senator is notified that there is no order 
after the Senator from Minnesota.
  Mr. McCAIN. I ask my friend to indulge me. I ask unanimous consent I 
follow the Senator from Minnesota.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. McCAIN. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. Mr. President, I want to associate myself with the 
remarks made by the great Senator from West Virginia, and he is a great 
Senator. His 47 years of experience here and wisdom have made him an 
invaluable Member of this body, a leader of this body, an invaluable 
mentor to newcomers such as myself, and his fidelity to the 
Constitution, his understanding of history, his understanding of the 
appropriate relationship of this body, as an independent branch of 
Government, with the executive branch has been patriotic, courageous, 
and right.
  I thank him for his remarks and for his kind words.
  I also want to share the outrage that he expressed, and the previous 
speaker, the distinguished Senator from California expressed, about 
these disclosures. Yet another one today, reading in the New York Times 
about the secret spying on American citizens by the National Security 
Agency, in contravention of law and in contravention of previous policy 
under Presidents, Republican and Democrat.
  That, on top of the revelations about secret torture camps being 
conducted, again extra-illegally, by this administration, to the 
detriment of the great name of the United States of America.
  I see that the outstanding Senator from Arizona is on the floor and 
will follow me with his remarks. To his enormous credit, he has been 
the champion of putting the United States back on track and assuring 
that we set the example, the proper example, for the rest of the world 
in how to conduct itself even under adverse circumstances.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Arizona is recognized.
  (The remarks of Mr. McCain, Mr. Lieberman and Mr. Durbin pertaining 
to the introduction of S. 2128 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')


                                Torture

  Mr. DURBIN. Mr. President, I salute Senator John McCain. He achieved 
something this week which is historic. He achieved an agreement with 
the Bush administration on the issue of torture. That took a lot of 
hard work on his part. He took a 90-9 vote in the Senate with him to 
the White House, meeting with the President's representatives.
  What Senator McCain was seeking is something fundamental. He wanted 
to reaffirm in law the fact that the United States would still stand by 
its word and by its values, that we would not engage in torture even 
though we are in this new age of terrorism and threat to America. He 
said: This is less about the enemy than it is about us, who we are and 
what we stand for.
  I can recall during the debate on this issue, Senator McCain took the 
floor and gave one of the best speeches I have heard in this Chamber, a 
speech only he could give. As a former prisoner of war, a Navy pilot 
shot down over Vietnam, he was a victim of torture. No one else in this 
Chamber, fortunately, can speak to it as he spoke to it. But in 
speaking to it, he reminded us that torture is not American. It is not 
a good means of interrogating prisoners or coming up with information 
to make America safer. There was a lengthy debate about whether his 
provision would be included in the final legislation. Fortunately, the 
White House has agreed to include it.
  I was happy to cosponsor that legislation. I have been raising this 
issue for the last several years. I know how controversial it can be. A 
few months ago I had the spotlight focused on me for some comments made 
at this same desk. But I believe that the issue of torture is one that 
we have to face forthrightly.
  Last week I was traveling in northern Africa and visited with one of 
our ambassadors. He is an ambassador to one of the Muslim nations. We 
talked about the challenges he faces with our involvement in Iraq. He 
said: The controversy about our involvement in Iraq paled in comparison 
to the controversy in his country about America's role when it came to 
torture. He said: It is hard for the Muslim population and Arab 
populations to understand why the United States would abandon a long-
term, multidecade commitment not to engage in torture once they were 
involved in a war involving Arabs and Muslims. He reminded me--and I 
didn't need to be reminded--that we issue a human rights scorecard each 
year from the Department of State. Some of the questions we ask of 
countries around the world are: have you incarcerated someone without 
charges? Are you holding them indefinitely? Are you torturing them? If 
the answers are affirmative, we give them low marks.
  Today, obviously, those countries are asking whether the Americans 
live by the same standards they are imposing on others. John McCain's 
leadership, along with Senator John Warner, chairman of the Armed 
Services Committee, resulted in an important agreement to restate the 
most basic and bedrock principle, that America will not engage in 
torture. We will not engage in cruel, inhuman, and degrading treatment 
of prisoners: First, because it is not American; second, because it 
invites the same treatment on our soldiers and Americans; and third, 
because it doesn't work. We have found time and again, if you torture a 
person they will say anything to make the torture stop. That doesn't 
give you good information to make America safe. Let me salute Senator 
McCain for his leadership.


                       Eavesdropping on Americans

  Mr. President, I am troubled by the reports in the New York Times and 
Washington Post today that this administration, since 9/11, has been 
engaged in a practice which I thought had been clearly prohibited in 
America. That is the eavesdropping on individual American citizens, 
those in America, by major agencies such as the National Security 
Agency. This all started some 30 years ago during President Nixon's 
administration. It was an administration which created an enemies list. 
If your name was on that

[[Page 28839]]

list, be careful; J. Edgar Hoover would be looking into every aspect of 
your life that he could. You might be audited by the Internal Revenue 
Service and you would be carefully watched and monitored.
  We decided that wasn't a good thing for any President to do. We made 
it clear that if you had good reason to eavesdrop on an American in the 
commission of a crime, involvement in terrorist activity, that was one 
thing. But to say you could do it with impunity, without any legal 
approval, that was unacceptable.
  Now we find it has been done for several years and several thousand 
Americans have been the subject of this wiretapping and eavesdropping.
  Mr. President, that is a troubling development. It says that this 
administration has decided when it comes to basic rights of Americans, 
they are above the law, not accountable; they don't have to go through 
the courts, don't have to follow the ordinary judicial process. That is 
something that Congress has to stand up and fight. We have to make it 
clear that even in the age of terrorism, basic freedoms and liberties 
of Americans have to be respected.
  I hope that as soon as we return from this holiday break the 
appropriate committees will initiate investigations, determine what has 
occurred, whether it has gone too far. I sincerely hope, on a 
bipartisan basis, that my colleagues will rally to once again assert 
the fundamentals when it comes to the right of privacy in America. We 
want to be safe in America but not at the cost of our freedom. That, 
unfortunately, has become an issue because of these most recent 
disclosures.
  Mr. SESSIONS. Mr. President, I remain baffled by the failure today to 
move forward with the PATRIOT Act. That piece of legislation is 
exceedingly important. We know for an absolute fact, as Senator Kyl and 
others have pointed out, that terrorist organizations and their 
movements and activities were not properly discovered by law 
enforcement because of a failure to share information and other 
restrictions that fell on those investigators. That has been 
demonstrated with clarity. In fact, some say had we not had the wall 
between the CIA and the FBI and they could actually have shared 
information, we may have even prevented 9/11.
  I say this to my friends in this country. Federal agents follow the 
law. The law said the CIA, which is out dealing with international 
terrorist groups and others who want to harm the United States, and the 
FBI, which is given the responsibility of homeland protection and crime 
enforcement in this country, were not allowed to share information. And 
they did not do so. It was part of a governmental reform. I think the 
Frank Church committee thought they were doing something good, but they 
ended up creating a wall that prohibited the sharing of information 
that made it far more difficult for Federal investigators to do the job 
we pay them to do.
  This afternoon, I saw a lady from New York who was touched by 9/11. 
She wants this bill passed. As a matter of fact, she was shocked that 
it was not. Why is she shocked? It just passed this Senate a few days 
ago 100 to 0, by unanimous consent, not a rollcall vote, but unanimous 
consent, without an objection. It came out of the Senate Judiciary 
Committee, 18 to 0. We have a host of libertarians on that committee--
civil libertarians and libertarians. Chairman Specter is very proud of 
his heritage of civil liberties. All of us take it seriously in that 
committee, and it came out unanimously.
  The bill went to the House, and they passed this very bill that we 
just blocked. The House passed it with a 75-vote majority even though, 
in fact, the House had to recede and give about 80 percent of the 
differences in the House and Senate bill over to the Senate side. The 
Senate bill was clearly the bill that was the model for the legislation 
on which we finally voted.
  So we go over to the House. They have some provisions and we have 
some provisions and there is a good bit of discussion over the issues. 
Finally, a conference report is agreed to. It comes back over here, and 
all of a sudden we face a filibuster.
  The PATRIOT Act will sunset December 31. It will be gone. We will not 
have the provisions that are in it. Those provisions have played a big 
role in helping us protect this country from another attack. Who would 
have thought we would have gone over 4 years since 9/11 without another 
attack on this homeland? I hope no one thinks that success to date--
praise our Creator--has not been driven in large part by effective law 
enforcement activities by the FBI, the CIA, and other agencies that are 
charged with these responsibilities.
  The compromises reached in the conference committee to work out the 
differences between the House and Senate bill, according to Chairman 
Arlen Specter, tilted in favor of the Senate on the disputed provisions 
by about 80 percent. He said there is not a dime's worth of difference 
in terms of whether civil liberties were enhanced or not enhanced in 
the bill that we just voted on and the one that came out of committee 
18 to 0 and passed the Senate unanimously.
  So why would this Senate and the great Democratic Party, except for 
two of its members, vote to block us from an up-or- down vote on this? 
I don't understand. I think it is a serious matter.
  There are provisions in the bill that are important. As I have tried 
to state, as a Federal prosecutor for 15 years nearly, I remain baffled 
by the concerns over the bill. I remain baffled because of the fact 
that every provision in the bill has already been a part of Federal law 
at some point in time and had never been overruled or found 
unconstitutional. But many of the law enforcement capabilities that the 
bill delineates and makes clear and actually creates frameworks for 
already exist in current law.
  I knew from the beginning that there was nothing in the bill that was 
going to be held to be unconstitutional and, indeed, it has not because 
it was written in such a way that we would not violate the 
Constitution, and it would be within the principles of our commitment 
to civil liberties.
  All of us are committed to civil liberties. One of our Senators, Mr. 
Byrd, said we don't need search warrants written by FBI agents. 
Absolutely we don't. We don't want an investigator being able to 
conduct a search of somebody without an independent order of a judge, 
and there is nothing in this bill that does that. We don't change the 
great protection that you have to have a court-approved search warrant, 
for heaven's sake. There is nothing in this bill that comes close to 
that. But these are the kinds of charges that have been made, upsetting 
people and making them think there is something strange or overreaching 
about this legislation. It passed with only one negative vote 4 years 
ago, 90-something to 1.
  We need to get our act together on this bill. I urge my colleagues to 
read the legislation that Senator Specter has so carefully written so 
that anybody can understand what the complaints are, to consider what 
the Department of Justice has said, to listen to the debate, and 
actually read the legislation. I am convinced that if colleagues would 
take a moment to do so, they will find that all of our great liberties 
are protected and, in fact, we didn't give to FBI terrorist 
investigators the same powers an IRS investigator has this very day to 
subpoena bank records that relate to a person who may not have paid 
their income tax. IRS agents can do that on a daily basis.
  I see my colleague. Maybe I have already utilized over 10 minutes. If 
I have, I will be pleased to wrap up and yield the floor. I am over 10 
minutes.
  I feel strongly about this mainly because I am so concerned that 
people have allowed this vote to become a vote on whether one believes 
in civil liberties or whether one believes in law enforcement.
  The bill was written and came out of committee--Senator Leahy 
approved it; he monitored its passage from the beginning--so as not to 
violate the Constitution, not to undermine our liberties, but to make 
sure that Federal investigators who are trying to keep another 9/11 
from happening here have

[[Page 28840]]

the same powers as IRS agents. And, indeed, we didn't even give them 
that much power, in many instances. They still have less in some 
instances.
  We need to get our act together on this legislation. We need to move 
this bill. I don't think it needs to be any weaker. If we come back and 
water it down and pass it, it would be a mistake.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Oregon is recognized.
  Mr. WYDEN. Mr. President, I would like to let the Senator from 
Georgia propound a unanimous consent request first.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I thank the Senator from Oregon. I ask 
unanimous consent that I be recognized to speak following the speech of 
Senator Wyden from Oregon.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Oregon.


                     Stopping Indecent Programming

  Mr. WYDEN. Mr. President, as the session winds down this year, I 
wanted to take a few minutes and bring to the attention of the Senate a 
new development that I think will be of great interest to millions of 
parents and families across the country. As the distinguished President 
of the Senate knows from our service in the other body, parents are 
greatly concerned that their children are bombarded every day with 
obscene, indecent, profane, and violent entertainment on television. 
Parents come up to us as legislators and say: What are you going to do 
to stop this trash? What are you going to do to keep indecent 
programming away from our children's eyes and ears?
  Of course, we all wish for an ideal world where parents would take 
the most direct action, which is simply to turn the television set off. 
That is something that can be done without any Government role. But 
with parents working--and very often both parents working two jobs each 
to try to make ends meet--that is not always possible.
  So as I began to look at how to solve the indecency problem, I asked 
what could the Government do in this area to better protect our kids 
from indecent programming on television? I also asked how to do it in a 
way without a big government bureaucracy program, a one-size-fits-all 
approach or where the Federal Government would regulate the actual 
content of the programs on our television sets.
  As I began the search to try to figure out a responsible approach to 
the problem of indecent programming for children, one of the things I 
found is one of the cable companies and the big television programmers 
have set up a special tier of programming for those people who are 
interested in sports and those people who are interested in movies. I 
looked at it and found that not only had cable companies done this, it 
seemed to be working as well. They found a way to do it that the 
subscribers like and which was profitable. I said to myself, if that 
kind of approach works for sports fans and movie fans, why can we not 
do it for families as well? Why can we not have a special tier of 
programming that is appropriate for children and works for families, 
the way we have special programming for sports and movies?
  So earlier in this session, I introduced the Kid Friendly TV 
Programming Act, which would require all video service providers to 
implement a tier of television programming that is appropriate for 
children. In my bill, a kids' tier is defined as a group of 15 or more 
television stations blocked off in a separate channel area with both 
programming and commercials on it that are purely kid friendly. Parents 
would be able to subscribe to this block of stations separate from 
their regular programming, knowing the programming on their television 
will not carry material that is obscene, indecent, profane, sexual, or 
gratuitously violent. In introducing this legislation, it seemed to hit 
the criteria that were most important to me: more wholesome choices for 
parents and families but not a one-size-fits-all Government mandate. 
The Government would put the focus where it ought to be, which is to 
give parents a block or tier of channels separate from regular 
programming where there would not be material inappropriate for our 
children.
  After I introduced the legislation, Chairman Stevens and the ranking 
minority member Senator Inouye of the Commerce Committee, also made an 
important effort in holding a roundtable discussion on the problem of 
indecency, which provided some very valuable exposure for the issue. I 
want to express my appreciation to both of them for their leadership on 
this matter.
  I also want to express my appreciation to the chairman of the Federal 
Communications Commission, Kevin Martin, who has discussed this issue 
with me on a number of occasions. He gave a great boost to this effort 
several weeks ago at the forum that was held on indecent programming, 
where he came out and said that a kids' tier of programming would be a 
responsible, practical way to make sure our Nation's children had more 
wholesome choices on television.
  This week, spurred on by the legislation, the work of Chairman 
Martin, and the good bipartisan work done by Senator Stevens and 
Senator Inouye, the cable industry took a small step in the right 
direction when six cable companies, including Time Warner and Comcast, 
announced they plan to offer a kids' tier of programming in 2006.
  Having listened for months to arguments that kids' tier is not going 
to be profitable and it is not going to be practical, we saw the 
industry finally come to an understanding that it was time to get 
serious about this problem.
  Yesterday, Time Warner released the details of their kids' tier 
offer. I was pleased to see that their proposal included G-rated 
stations that run child friendly content 24 hours a day. However, it is 
unclear what will be included in the package that parents must purchase 
in order to purchase the kids' tier. Parents still may have to 
subscribe to a tier that includes stations that carry foul language, 
excessive violence, and inappropriate sexual content in order to 
subscribe to the kids' tier.
  That is not what my legislation called for at all. It said we had to 
have alternatives to the kind of inappropriate programming that is out 
there now. But in order to subscribe to Time Warner's kids' tier, 
families might also have to subscribe to service which could include 
inappropriate programming for children.
  I am pleased I can say on the Senate floor that at least some people 
in the industry have recognized the need for a kids' tier of cable 
programming across our country. For a long time, whenever I brought 
this up, they basically said western civilization would end if we have 
this kind of programming that meets the needs of parents and families. 
At least we have seen baby steps to address this issue.
  What is needed is not different than what parents have at the candy-
free checkout lane at the supermarket. Just like parents should not 
have to take their kids past all the candy to check out at the grocery 
store, parents should not be forced to surf through obscene programs in 
order to get to the programs for kids that are appropriate.
  In the days ahead I want to make sure that children across the 
country have an opportunity to have access to this kind of good quality 
programming, that the kids' tier is implemented properly, and that it 
does not depend on which community one is in. While a family in 
Corvallis or Portland in my home State would have a kids' tier 
available to them because they are served by Comcast, a family in 
Pendleton or Hood River would not because they receive their cable 
through a different company. Until all video service providers are 
offering a kids' tier the job will be incomplete.
  My legislation requires that all video service providers institute a 
kids' tier. I want to make sure families get this option. It is my 
intent to watch the developments we have seen in the last couple of 
weeks with respect to Time Warner and Comcast very closely. I am very 
appreciative of what Chairman Martin has done in this area because he 
has given great visibility to the question of improving children's 
programming.

[[Page 28841]]

  I see Senator Pryor is in the Chamber as well. He has done excellent 
work on the Commerce Committee on this issue of indecent programming 
for children.
  If we do not see this kind of tier of kid friendly programming done 
right across this country, I am going to come back to the Senate and 
push for my original legislation. The private sector has taken baby 
steps in the right direction, but there is still a great deal left to 
do. With millions of kids being exposed to indecent, profane, and 
violent programming, it is important to do this job right, and the 
Senate ought to stay at it on a bipartisan basis until it is done.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Georgia is recognized.


                              The Tax Code

  Mr. ISAKSON. Mr. President, today is an anniversary of a day of great 
renown in American history. Two hundred and thirty-two years ago, on 
December 16, 1773, a band of colonists boarded three ships in Boston 
Harbor, dumped the cargo of tea into that harbor, and it became known 
as the Boston Tea Party. It was a protest of taxation without 
representation in that great injustice.
  I rise today on the floor of the Senate to tell you that injustice 
still exists in our tax system, not in taxation without representation 
but in the complexity of our system. Think about it for just a second. 
It takes the average American filing the simplest form, 1040, 13 hours, 
the length of 6 college basketball games, just to fill out our simplest 
form. It takes 3 of 5 Americans the cost of hiring an outside 
accountant to consult with them just to meet the demands of the current 
tax system. It means the Tax Code is now 1,685,000 words long, which is 
exactly 380 times the number of words in the entire Constitution of the 
United States of America. As all of us on the floor of the Senate know, 
in months, 17 million more Americans will be brought under the 
alternative minimum tax, a tax that was allegedly started only to 
address the taxation of a few that now addresses the taxation of the 
many.
  Earlier today, I introduced legislation to deal with this injustice 
and create a mechanism for us to forthrightly come before the people of 
the United States and develop a simpler, fairer, and flatter system of 
taxation. Simply put, we would sunset the current Tax Code on the 
Fourth of July, 2008, and command the Congress to take the next 3 years 
analyzing consumption taxes, progressive taxes, flat taxes, revenues of 
all sorts, and the effect each has on the economy and economic policy, 
and then come back to the American people prior to that date with a 
new, simplified, fairer, flatter tax system, or, if failing to do so, 
the Congress of the United States would then be forced to vote on this 
floor to extend the existing system we have and all the injustice that 
goes with it. Only by creating a deadline, only by being faced with the 
termination and the loss of revenue would this Congress forthrightly 
take the due diligence it needs to have the massive overhaul our system 
needs.
  Today, the United States of America in the 21st century is operating 
under 20th century rules--1,685,000 words written as long as 100 years 
ago, when we are looking forward to a future that is brighter and 
better for all Americans.
  I urge my colleagues in the Senate to join me in cosponsoring this 
legislation and for us to forthrightly set a time when we can truly 
have a second tea party, this one liberating us from the injustice of 
complexity and opening the door for simplicity in the American tax 
system.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.


                            Victory in Iraq

  Mr. McCONNELL. Mr. President, I rise today to speak on Iraq's 
stunning march toward freedom and democracy and America's efforts to 
support her progress. I believe, as does President Bush, that it is 
squarely in our national security interest to help the Iraqis build a 
thriving and healthy democracy. Democracy is the ultimate antidote to 
terrorism.
  We all know for democracy to flourish we must defeat the terrorists 
who still linger in Iraq. The mission facing our country is simple: We 
must defeat them by standing up the pillars of Iraq's democratic 
institutions so that country can become a hinge of freedom in the 
greater Middle East.
  We know the terrorists cannot defeat us on the battlefield; our 
military might is absolutely unmatched. We know they cannot defeat our 
ideas, because when people are given a choice, they will choose liberty 
and democracy over terror and tyranny every time.
  So this debate turns on just one simple question: do we have the will 
to win in Iraq?
  This summer, American intelligence forces intercepted a letter 
written by Ayman al-Zawahiri, one of the leaders of Al Qaeda, to Abu 
Musab al-Zarqawi, the leader of Al Qaeda in Iraq. In his letter, al-
Zawahiri said that al Qaeda's goal was quite clear: ``Expel the 
Americans from Iraq.'' He went on to say this:

     . . . [T]he mujahedeen['s] ongoing mission is to establish an 
     Islamic state, and defend it, and for every generation to 
     hand over the banner to the one after it until the Hour of 
     Resurrection . . . The Americans will exit soon, God willing.

  So the terrorists' intent is plain. They are not only dedicated to 
driving us out of Iraq, they are also dedicated to turning Iraq into a 
breeding ground for terror and anarchy.
  We must not let them succeed. That is why I am so concerned about the 
comments of those who suggest that the battle in Iraq is unwinnable. 
What signal does that send to the terrorists? What signal does it send 
to our troops who are putting it on the line every day in Iraq?
  Here is what Congressman Dennis Kucinich, a leader of the House 
Democrats' ``Out of Iraq Caucus,'' said: ``It is time for a new 
direction in Iraq, and that direction is out.'' It's pretty clear where 
he stands. And he is not an outlier in his party.
  The ``Out of Iraq Caucus'' is composed of about 70 Democratic House 
members. Their goal is America's complete withdrawal from Iraq. 
Personally, I don't think it makes sense to set an arbitrary withdrawal 
date, so the terrorists can circle that date on their calendars and 
wait for us to leave. It seems to me that the better course is to 
determine our troop needs based on military requirements on the ground, 
as determined by our military leaders.
  House Minority Leader Nancy Pelosi herself has endorsed the immediate 
withdrawal of our troops from Iraq, and claims that her position 
represents the majority of her caucus. Leader Pelosi endorsed H.J. Res. 
73, a resolution that states:

       The deployment of United States forces in Iraq, by 
     direction of Congress, is hereby terminated and the forces 
     involved are to be redeployed at the earliest practicable 
     date.

  So that is the position of the House Democratic Leader, Ms. Pelosi.
  Now, the chairman of the Democratic Party, Howard Dean, has said 
recently the United States can't even win in Iraq. He says, ``The idea 
that we're going to win this war is an idea that, unfortunately, is 
just plain wrong.''
  Let me say that again. Howard Dean, the leader of the Democratic 
Party, believes that ``The idea that we're going to win this war is an 
idea that, unfortunately, is just plain wrong.
  That is Howard Dean's assessment of the situation.
  Chairman Dean later tried to qualify his comments about the 
unwinnable nature of the battle in Iraq, but no matter what he says 
now, it still sounds like ``cut and run'' to me. If it is not ``cut and 
run'' it is at least ``cut and jog.''
  Let me be clear. Proponents of immediate withdrawal certainly have 
the right to hold that view, and I believe they do so with patriotism 
in their hearts. But I must respectfully question their judgment.
  Our goal should be to achieve victory in Iraq, not merely to pull out 
based on an arbitrary date on the calendar.
  The fact is, we are already on the road to victory in Iraq. The 
transformation of Iraq from the tyrannical rule of Saddam Hussein to 
freedom and

[[Page 28842]]

democracy in just two and a half years is a remarkable success story.
  It took us 11 years in our country to get from the Declaration of 
Independence to the Constitution. And freedom took another giant step 
forward yesterday with the elections for the first permanent democratic 
government in Iraqi history.
  Of course, the news we have now is still preliminary. But early news 
reports indicate that 11 million Iraqis went to the polls yesterday, 
once again staining their fingers with indelible purple ink to signify 
that they had voted.
  That is an overall turnout rate of over 70 percent, compared to 60 
percent here a year ago, which was a good turnout for us, higher than 
normal--70 percent of them going to the polls, proudly holding up their 
ink-stained fingers, many of them not certain they wouldn't be killed 
by exercising that right to vote. What is there not to admire about 
that, an extraordinary performance on the part of the Iraqi people?
  As I indicated, that turnout rate exceeds that of their previous 
election, the constitutional referendum in October. And the turnout 
rate for that referendum exceeded the rate for the election prior to 
that, for the interim government in January. Most important, turnout 
among Sunnis yesterday appears to have been particularly robust, as 
with each election Sunnis have gotten more involved in the democratic 
process.
  We may not know the results of the elections yet, but we know the 
Iraqi people are the winners. They have repeatedly defied the 
terrorists by voting for democracy over tyranny. Yesterday's elections 
have created a 275-member council of representatives, who will govern 
Iraq with the consent of the people.
  It is odd to me that at such a moment of triumph in that country, 
there are still those who call for America to stop short. Granted, not 
everything in Iraq has gone just as we would have wanted it to.
  Unfortunately, such is the nature of military conflict. We've all 
heard it said that no battle plan survives the first shot. But there 
can be no doubt that tremendous progress has been made. Maybe it would 
be a good idea to review the progress that has been made in Iraq in the 
last two-and-a-half years.
  Back during the Saddam Hussein era--when he was in power from 1979 to 
2003--in that period, over 4,000 political prisoners were summarily 
executed, 50,000 Kurds were killed, 395,000 people were forced to flee 
Iraq, there were no free elections whatsoever, no free newspapers, and 
Hussein, of course, stood above the law.
  What has the situation been since 2003, since the fall of Saddam? 
Iraqis are now innocent until proven guilty, and Saddam himself is 
being given a fair trial, something he gave no one.
  Seventy-five Kurds were elected to the interim Parliament, when 
during Saddam's regime, 50,000 of them were murdered. Over 270,000 
people repatriated, when during Saddam's regime, 395,000 people left 
the country; 9.8 million Iraqis freely voted on the Constitution. There 
are over 100 free newspapers in Iraq. They have a robust free press 
there, and Hussein, as I suggested earlier, is now on trial, being 
given the kind of trial he gave no one.
  So much has improved, much is left to do, but now we are heading in 
the right direction. Iraqis are feeling positive about the direction of 
their country as well. According to an ABC News study, 77 percent of 
Iraqis think the security situation in the country will be better in a 
year. Two-thirds of them expressed confidence in the Iraqi Army and the 
Iraqi police.
  These people are on the ground in Iraq every day. They are living in 
the midst of the war on terror. I think we should give their opinions 
great weight.
  Look at all the progress that has been made. The 24-year reign of 
terror is over, and a new democratic, free Iraq is emerging. Voter 
turnout in their national elections yesterday was reportedly very 
heavy, as I indicated. So Iraqis are optimistic about their future. 
They think the fight against the terrorists is worth fighting. They 
think democracy is worth fighting for.
  We should stand by them and do no less. We need to complete the job, 
and our strategy is to stay and win--not cut and run.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas.


            Tax Relief for Americans in Combat Act Extension

  Mr. PRYOR. Mr. President, I rise today to commend and thank my 
colleagues for including a 1-year extension of the Tax Relief for 
Americans in Combat Act as part of the Gulf Opportunity Zone Act of 
2005. This measure corrects a discrepancy in the Tax Code that 
penalizes certain service men and women serving in combat situations.
  To give my colleagues a bit of history on this, in 2003, I approached 
the distinguished chairman of the Senate Finance Committee, Senator 
Chuck Grassley, and the ranking member of that same committee, Senator 
Max Baucus, and asked them to join me in an effort to get a fresh look 
at the overall picture of how our Tax Code treats our military. I was 
very pleased when they agreed to work with me, and was delighted to 
jointly request an expedited study by the Government Accountability 
Office. It was an honor for me to work with them. I also must say their 
staff have been nothing but a delight to work with throughout this 
process.
  The GAO made their study, and they had some interesting findings.
  One of those findings was especially important and necessitated 
immediate attention. In a nutshell, what they found is service men and 
women who were serving in combat zones and receiving nontaxable combat 
pay were not able to also take advantage of the earned-income tax 
credit and the childcare tax credit. Imagine that. The result was 
thousands of our men and women serving in combat--in places such as 
Iraq, Afghanistan, and other places around the globe--were seeing a 
reduction or the elimination of their earned-income tax credit or child 
tax credit and, in effect, losing money. In other words, the Tax Code 
has the impact of penalizing them for serving in combat.
  The GAO report characterized this as an unintended consequence. I say 
it is plain wrong. I was pleased to introduce legislation to try to fix 
this glitch. Back in 2004 we passed Tax Relief for Americans In Combat 
Act. The bill allowed men and women in uniform serving in combat to 
include combat pay for the purpose of calculating their earned-income 
and child tax credit benefits. In other words, they were able to 
continue receiving their rightful combat pay exclusions while also 
being able to take full advantage of other tax credits. However, what 
we passed in 2004 expires at the end of this year. So I am pleased 
today's action in effect extends the legislation for one more year.
  I thank, again, Senator Max Baucus for his leadership in helping 
extend it for another year. Also, I thank Senators John Kerry and 
Barack Obama for their leadership in taking up the fight when someone 
saw the opportunity to do so, to ensure our men and women in combat are 
fairly treated.
  The urgency of this situation is highlighted especially when you 
focus on our troops whom it affects. We are talking about troops in 
combat for more than 6 months. They are at lower pay grades and tend to 
be married with children. They have little or no savings or spousal 
income. The GAO suggested the amount of tax benefit loss could be up to 
$4,500 for enlisted personnel and $3,200 for officers. That is real 
money. That is make-or-break money for a lot of these people. They are 
already under enormous stress.
  I am glad we could come together in this bipartisan fashion and 
extend this for another year. The bill corrects the problem and lets 
our troops who are risking life and limb for us know that while they 
are away fighting for us, we are in the Senate fighting for them and 
for their families.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.

[[Page 28843]]


  Mr. BURNS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURNS. Mr. President, I inquire of the Chair, are we on the 
PATRIOT Act or what is the order?
  The PRESIDING OFFICER. The Senator is correct, we are currently on 
the PATRIOT Act.
  Mr. BURNS. I ask unanimous consent I be allowed to speak for up to 15 
minutes--and I don't think it will be that much--as if in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                  Iraq

  Mr. BURNS. Mr. President, I heard the words of our assistant leader 
on the majority side and wanted to come to the Senate. These words may 
get lost in the swirl of the times with the holidays, but yesterday was 
truly a historic time not only for the people of Iraq, but a historic 
time for the peace process in the Middle East.
  There was not a doubt in anyone's mind around the world what that was 
about yesterday. They not only elected permanent representation in 
their government that will move on and try to finish their 
constitution, but it was a symbol of a people who voted for peace, 
security, and a new economic future. That is what that was all about 
yesterday.
  I congratulate the people of Iraq who, with a great deal of courage, 
turned out and stood in lines and voted their will. This is what this 
whole exercise has been about.
  I leave a message with not only this Congress but to some who fail to 
see how much hope was on display yesterday: there is hope for the 
future. Now we have little girls going to school in Iraq. Hope for 
families, that they can participate in a republican form of democracy, 
and to change the economic culture of those people who live in Iraq.
  Think of the possibilities. The success in Iraq also has done another 
thing that will change not only Iraq, but it will change the whole 
area. For the first time since World War I there will be a 
transportation and communication corridor that will change the economic 
culture from Tel Aviv to Kuwait City. Think of what that does. It puts 
Amman back on the trade route, so to speak. King Abdullah, the leader 
of Jordan, understands this. And as he looks at that, it puts Amman 
back on the trade route.
  But what about the future? Anyone who has visited Iraq has seen this, 
probably in Baghdad, or wherever. But I will tell you what this farm 
kid has seen on his visit to Iraq. When we were in Mosul we saw dry 
land, farming, good soil. There are two great rivers with irrigation 
systems from both of them. I saw the kind of dirt it takes in which to 
build an economy.
  Let's don't talk about gas or oil. Let's talk about the very industry 
that contributes more to the GDP of any country in the world, and that 
is agriculture. They have the ability to be the breadbasket of the 
Middle East. As you know, most of the Middle East is desert. Most of it 
has soil that is very thin, and there are not many nutrients in it. And 
even where you find those areas where they have it, it is in need of 
water. Water isn't there.
  I looked at the north of Israel one time, and I understood the 
problem there. The problem there has to do with water, the ability to 
irrigate out of the Jordan River. You have two great river systems in 
Iraq.
  The next step in this budding new freedom is the cornerstone of 
freedom, and that is land ownership, making people productive, growing 
renewable resources, providing for your family, but also providing a 
great export out of Iraq and becoming a trading partner with their 
neighbors.
  We cannot change the ethnic culture, nor can we change the Islamic 
culture, but we can change the economic culture to where more people of 
that society participate in the economic well- being of their country. 
Just think of the possibilities and the hope it brings to the next 
generations of those folks.
  If you can find something to export--and I will tell you, I look at 
Jordan. There is a country that is not very wealthy. The only thing 
they have to export is potash, and the world can only use so much 
potash.
  But they understand communications and transportation. So there is 
great hope there now. There is the hope of land ownership, the hope of 
participation in supplying food and fiber not only for their own 
people, but to export to other neighboring countries. That corridor is 
now established with the free movement not only of people, but also 
goods and services.
  That corridor will widen. It will effect the way people do business 
in Syria and the way they do business in Iran. It will change even how 
they do business in Egypt. The Nile Delta, a very fertile delta, now 
will have some competition in the food business.
  Also, it will have possibilities for our country when those economics 
take hold. And it is not going to happen by next week, or next year, or 
maybe not even for the next 5 years. But you are going to see it happen 
because of this taste of freedom, land ownership, independence, and to 
be able to participate in their own government, and, yes, even in their 
own provincial governments.
  So the possibilities of peace and stability and economic advancement 
have never been greater than at any time in history since World War I. 
Yet there will be those who say we should not be there helping freedom-
loving people achieve the same dream, having the same hopes we have for 
our next generation, our children, and our grandchildren.
  Hope is eternal. Now they have a future, a future they have never had 
since almost 100 years ago. And the impact of that will spread 
throughout the Middle East. It will happen. The Presiding Officer comes 
from an agricultural State with land ownership, productivity, and 
exports. My good friend from Iowa, my goodness; they are the 
breadbasket of the world. They can grow more in Iowa with what falls 
out of their pocket accidentally than we can, on purpose, in Montana, I 
will tell you. What a great and blessed State, and the same for the 
State of my friend from Texas, who is on the floor.
  But what makes it operate is land ownership and participation in the 
economy. Then the terrorists have nobody to recruit because there is 
hope.
  Our Marines, our Army, and our Air Force paid a heavy price because 
they, too, believe this legacy of freedom, to be passed on from one 
generation to another, is worth dying for.
  I had a lady say: ``If you wanted to take a poll in Iraq, if you 
polled our military people, that poll would say they don't want to be 
there.''
  I said: Well, if you took a poll in the English Channel on June 6, 
1944, they didn't want to be there either. What was that for? Countries 
had been overrun by a tyrant who brought nothing but tyranny. And they 
were an enemy of this country and our ideals and our principles.
  They have those principles already. But what they have too is hope. 
And we have to nurture that hope because they cannot only feed 
themselves, with their renewables grown from Mother Earth, they can 
become a powerhouse in the Middle East for commerce. Just think of that 
corridor. Just think of the possibilities of changing an economic 
culture that will run from Tel Aviv to Kuwait City, and then you tell 
me: Was it worth it?
  This President understands a vision of hope for freedom-loving people 
everywhere. And what it offers to their citizens is beyond some folks' 
comprehension. Freedom is not free. Hope is not free. There must be 
sacrifice.
  Yesterday, those folks lined up by the droves to take advantage of 
changing their lives, sending a strong message to the rest of the 
world: Terrorists, you are not welcome here anymore.
  That is the greatest enemy terrorists have, when the fires of freedom 
burn in the hearts of a people in a line where they stand, where they 
vote.
  That is the vision I have for the Middle East. It is very clear. It 
is clear that with that reform comes land ownership, irrigation 
systems, dry land farming, and participation in the world of commerce. 
Not only in that, but in goods and services also. Iraqis are a

[[Page 28844]]

very talented people, a people who have that fire of freedom in their 
heart. We wish them well, and we stand beside them as that fledgling 
democracy, that republican form of government, gets its kick-start. And 
it really got a kick-start yesterday. We wish them well. We 
congratulate them for their courage to stand up and be counted.
  I yield the floor.
  Mr. HARKIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


           University of Northern Iowa Panthers Football Team

  Mr. HARKIN. Mr. President, today I am here to congratulate the 
University of Northern Iowa Panthers football team and wish them the 
best of luck as they prepare to take on the Appalachian State 
Mountaineers today at 8 p.m. in Chattanooga, TN, for the 1-AA national 
championship. This is truly a historic occasion, as this marks UNI's 
first appearance in the national championship contest. In addition, UNI 
has the opportunity to be only the second Iowa NCAA school to win a 
national title in football. Central College in Iowa won the 1974 
division III championship.
  This has been a season full of highs and lows for the Panthers. 
Starting the season at 4 and 3, the outlook looked kind of bleak, but 
the team did not get discouraged. They did not give up. Instead, they 
rattled off seven straight wins. As a result of their tenacity and 
determination, the Panthers find themselves tonight in the championship 
game.
  In 5 years, head coach Mark Farley has won 44 games, at least a share 
of three conference championships, and he has led the Panthers to three 
playoff appearances. Under his leadership, the Panthers have again 
become a national power in 1-AA football. And Coach Farley is a 
graduate of UNI. He was a member of the first UNI football team to play 
in the national semifinals. Twenty years later, after 10 playoff 
appearances and 5 semifinal appearances, he has led his alma mater to 
their first championship game.
  Yesterday, the Des Moines Register ran a story titled ``Panther 
Football A to Z.'' The article tells the story of the team's season, 
beginning with the letter A for adversity. As I mentioned, the Panthers 
record stood at 4 to 3, but after seven consecutive wins, which 
included five late-game comebacks, they have earned the trip to 
Chattanooga and the adoration of their fans. Much as linebacker John 
Herman stated in the article:

       Text messages, e-mails, phone calls--it's crazy to see how 
     many people are excited for us to get here.

  The article concludes with the letter Z for zenith by quoting 
athletic director Rick Hartzell, who said:

       There's never been a better time to be a Panther.

  I congratulate the young men, their coaches, and the University of 
Northern Iowa for their tremendous season and wish them the best of 
luck tonight. I will be watching on ESPN2.
  I ask unanimous consent that the text of the Des Moines Register 
article be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. HARKIN. Mr. President, I see my friend, Richard Burr, the 
outstanding Senator from North Carolina, on the floor. North Carolina, 
of course, is the home State of that great school, Appalachian State. I 
know that after their defeat tonight under the paws of the Panthers, it 
will continue to be a great school and a great football team.
  My good friend and I have made a little wager on the game tonight: 
six North Carolina pork chops versus six Iowa pork chops. You see, I 
say to my friend, just as Iowa is No. 1 in pork production, and North 
Carolina is No. 2 in pork production, after tonight, Iowa will be No. 1 
in 1-AA football, and North Carolina will be No. 2 in 1-AA football.
  So, again, I look forward to dining on those great North Carolina 
pork chops. I ask my friend, please, would you throw in some of that 
North Carolina barbecue sauce with them?
  I yield the floor.

                               Exhibit 1

             [From the Des Moines Register, Dec. 14, 2005]

                        Panther Football A to Z

                             (By Rob Gray)

       Chattanooga, TN.--It's hard to describe, let alone explain.
       Northern Iowa's stunning run from NCAA Division I-AA 
     football playoff longshot to championship game participant 
     ends Friday with a first-ever title hanging in the balance. 
     Only Appalachian State stands in the way.
       ``I'm sure after the season's over I'm really going to be 
     kind of in awe, but right now we're trying to get focused on 
     the game, trying not to get caught up in the moment,'' said 
     Panther quarterback Eric Sanders. ``But in the offseason, I 
     know I'm going to reflect and be pretty proud and go like, 
     `Wow. This really did happen.'''
       The No. 7 Panthers' transcendence of high-profile injuries, 
     daunting fourth-quarter deficits and taxing road trips may 
     defy logic, but it can be loosely quantified, or 
     encapsulated, within a quick spin through the alphabet. So 
     it's on to Chattanooga, via the ABCs:
       A is for Adversity. The Panthers (11-3) once stood 4-3, but 
     seven consecutive wins followed, including five late-game 
     comebacks, and overcoming obstacles has kindled adulation.
       ``Text messages, e-mails, phone calls--it's crazy to see 
     how many people are excited for us to get here,'' linebacker 
     John Hermann said.
       B is for Balance. Northern Iowa running back David Horne 
     has rushed for 1,039 yards and 16 touchdowns. Quarterback 
     Eric Sanders has thrown for 2,748 yards and 23 touchdowns.
       C is for Coaching. Mark Farley suffered along with 
     teammates and fellow coaches in five Panther losses in the 
     semifinals. This season, he helped orchestrate a 
     breakthrough. ``We've got the opportunity to represent our 
     school, but also our state,'' Farley said.
       D is for Defensive ends. Appalachian State (11-3) features 
     two standouts at the position. Jason Hunter and Marques 
     Murrell have combined for 22 sacks.
       E is for Extra credit. Northern Iowa kicker Brian Wingert 
     has drilled three consecutive game-winners.
       F is for Finish. The Panthers have outscored foes, 63-14, 
     in the fourth quarter over their seven-game win streak.
       G is for Grounded. Northern Iowa's defense has allowed big 
     games from highly rated quarterbacks Erik Meyer, Ricky Santos 
     and Barrick Nealy in the postseason, but kept them from 
     winning.
       H is for History. Both Northern Iowa and Appalachian State 
     make their first title-game appearances.
       I is for Interception. Matt Tharp's pick of Nealy preserved 
     Friday's 40-37 overtime win at Texas State.
       ``(He) made a good play with a cast on his hand,'' fellow 
     defensive back Tanner Varner said. ``It was just amazing.''
       J is for Jeff Bates. The Indianola senior center eased into 
     the starting role when offensive line anchor John Schabilion 
     suffered a season-ending injury.
       K is for Krystal. Fans traveling to Chattanooga will 
     encounter this southern version of White Castle.
       L is for Linebackers. Northern Iowa's Darin Heideman and 
     Brett Koebcke highlight a defense that gets stingy at 
     precisely the right moment. Koebcke is questionable for 
     Friday, though, with a high ankle sprain.
       M is for Mountaineers. As in Appalachian State's nickname. 
     The team has lost just once to a I-AA opponent this season.
       N is for National. ESPN2 will broadcast a Panthers football 
     game to a coast-to-coast audience for the second consecutive 
     week.
       0 is for Overtime. The Panthers stand 2-0 in overtime 
     games, beating Western Kentucky, 23-20, in double overtime 
     and Texas State. ``We've definitely caught some breaks to be 
     at this point, but you kind of have to to get this far,'' 
     Sanders said.
       P is for Pecan Bowl. Way back in 1964, the Panthers won 
     this Division II bowl game, 19-17, over Lamar Tech at 
     Abilene, Texas.
       Q is for Quarterback(s). As usual, the Panthers will face a 
     good one--whether it be Richie Williams, who could be out 
     with a ruptured ligament, or backup Trey Elder, who led the 
     Mountaineers to last week's 29-23 win over Furman.
       R is for Receivers. Justin Surrency leads the Panthers with 
     seven touchdown catches--including an end-zone grab in four 
     consecutive games. Patrick Hunter and Jamie Goodwin furnish 
     downfield speed. Brian Cutright excels at tight end.
       ``There's no doubt in this team at any time,'' Cutright 
     said. (see item ``A'')
       S is for Kevin Stensrud. The defensive lineman form Lake 
     Mills has battled countless injuries to reach his final game.
       T is for Two-point conversion. Surrency's leaping catch to 
     tie the game at Texas State came amid three defenders. ``I 
     had just enough height on it, and not just enough

[[Page 28845]]

     height on it to get it over the first guy and in between the 
     other two guys,'' Sanders said of the pass.
       U is for Upsets. Northern Iowa has topped three teams this 
     season ranked No. 1 at some point--with two wins on the road.
       V is for Variety. Sanders has hit nine or more receivers in 
     five of the past seven wins.
       W is for Waffle House. This franchise dots the Tennessee 
     landscape like Casey's General Stores in Iowa.
       X is for X-Factor. Jason Breeland provides a spark in the 
     Panther backfield and at wideout.
       Y is for Yards. Expect plenty. The Panthers average 444 
     yards in the playoffs; the Mountaineers average 437.
       Z is for Zenith. As athletic director Rick Hartzell said, 
     there's never been a better time to be a Panther.
       ``For our type of institution, we've got the best athletic 
     program in the country,'' he said.

  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mr. BURR. Mr. President, we will learn tonight that being No. 1 
doesn't mean that you win, and being the largest doesn't mean you are 
the best. In fact, North Carolina pork chops are better than Iowa pork 
chops, and North Carolina football is, in most cases, as good if not 
better than Iowa football.
  I commend the Northern Iowa Panthers. They have had a miraculous 
season. They deserve to be in the championship game based on how they 
performed in the second half of the season.
  Appalachian State was ranked fifth by the Sporting News and fourth by 
ESPN/USA Today in the I-AA polls. Appalachian has a record of 11-3, and 
they have reached the I-AA semifinals now for the third time. They did 
it in 1987, 2000, and now in 2005. But they have never reached the 
championship game until this year.
  This is a magical year for Appalachian State. Over 10,000 of my 
constituents will make the trek today to Chattanooga, TN, for tonight's 
football game. I remind my good friend, Senator Harkin, that almost all 
of the tickets turned back in by the Northern Iowa Panthers were 
purchased by North Carolina constituents who will be at that game.
  Appalachian State advanced to the championship game with a 29-23 
victory over rival Furman University. Appalachian took the lead with 2 
minutes 17 seconds left, with an 11-play, 67-yard drive led by backup 
quarterback Trey Elder, who was filling in for a starting quarterback 
Ritchie Williams. They held off a last-minute threat and picked up a 
fumble by Furman and ran it back to Furman's 1-yard line, where that 
game ended.
  Two of the team's three losses were to I-A teams--Kansas University 
and the tenth-ranked LSU Tigers. The Charlotte Observer named the 
Mountaineers the most successful college football program in the State 
over the past 20 years.
  Among their famous alumni are Dallas Cowboys linebacker Dexter 
Coakley, and former Redskins runningback John Settles.
  Coach Jerry Moore is the winningest coach in Southern Conference 
history, with a string of 16 winning seasons in 17 years, with a record 
of 139-67. This is his 13th playoff appearance as a head coach. Coach 
Moore perfected his coaching skills as an assistant under our colleague 
in the House, Congressman Tom Osborne.
  When Appalachian wins tonight's showdown, it will be the first time a 
university from the State of North Carolina has ever won a national 
football championship.
  Senator Harkin doesn't need to take my word for it or the sports 
reporters or the commentators opining on the success of Coach Moore and 
his Mountaineers. Senator Harkin needs to go no further than his own 
backyard to find someone who can attest to Jerry Moore's ability to 
prepare the Mountaineers for tonight's game. That is because Coach 
Moore counts as one of his closest friends a man synonymous with Iowa 
football--former Hawkeyes head coach, Hayden Fry, with whom Jerry Moore 
started his coaching career at SMU.
  Mr. President, Appalachian State University was started as a teachers 
college in 1899. Its enrollment is slightly over 14,000 students. It is 
the sixth largest State university in our university system in North 
Carolina. It has one of the highest graduation rates of student athlete 
football players in the State, and a few years ago it ranked only 
behind Duke in that distinction.
  I take this opportunity to congratulate the Northern Iowa Panthers. I 
congratulate Chancellor Peacock and Coach Moore but, more importantly, 
these two teams who have reached the final championship game tonight.
  Tonight there will be only winners; there are no losers. Tomorrow 
there will be one loser, and that will be my colleague from Iowa as he 
prepares to send those pork chops to North Carolina.
  With that, I yield the floor.
  Mr. HARKIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Cord Blood Legislation

  Mr. HARKIN. Mr. President, yesterday afternoon, the majority leader 
offered a unanimous consent request to take up and pass, without any 
amendments or any further action, H.R. 2520, a bill to collect cord 
blood for use in therapies for various kinds of blood diseases. I 
objected to that unanimous consent request after quite a bit of talk on 
the floor.
  As I explained yesterday, I support this bill. I am a cosponsor of 
this bill. In fact, I joined with Senator Specter 2 years ago to create 
the National Cord Blood Stem Cell Banking Program by including $10 
million for that purpose in the fiscal year 2004 Labor, Health and 
Human Services, and Education appropriations bill, of which I am 
ranking member. We have been funding that program ever since. So I have 
been in the lead in championing cord blood therapies by getting the 
program funded and keeping it funded.
  Nevertheless, I objected to the unanimous consent request because I 
believe the Senate should take up the cord blood bill at the same time 
we take up H.R. 810, which is the Stem Cell Research Enhancement Act.
  That is what the House did, and that is what the House passed. The 
House approved both these bills on May 24 of this year, and we have 
been waiting and waiting and waiting and waiting in the Senate to do 
the same thing. We keep hearing from the majority leader that he wants 
to bring up H.R. 810. In fact, in what I thought was a very courageous 
speech the majority leader gave on July 29, he said he would vote for 
H.R. 810. But we can't seem to bring it up on the Senate floor.
  Members on the Republican side keep coming up with new bills to try 
to confuse things. They want to vote on five or six or seven bills, 
some of which have absolutely nothing to do with stem cell research.
  So a number of us on both sides of the aisle formed a bipartisan 
group to do what we could to try to bring both these bills, the same 
two the House passed, H.R. 810 and H.R. 2520, and do what the House 
did--bring them up, debate them, and pass them.
  When this unanimous consent request was then offered by the majority 
leader yesterday, I was on the floor. I had not checked with all the 
other people who had been involved in that effort, so I objected 
because I felt strongly that the two ought to be together.
  I said to the majority leader last night that I would take a look at 
it today and go over it with my staff. I have decided, after going over 
it and looking at it, to lift my hold--I can only speak for myself--but 
I have decided to lift my hold on H.R. 2520.
  One of the reasons I am doing so is because, quite frankly, the bill 
doesn't accomplish anything that we are not already doing or about to 
do. In 2002, under the direction of the Appropriations Subcommittee on 
Labor, Health and Human Services, Education and Related Agencies, of 
which I am ranking member and Senator Specter is the chair, the 
registry on bone marrow units had to start including cord blood units 
as well.
  Last year, there was a 24-percent increase in the number of cord 
blood units in the registry. This is because

[[Page 28846]]

Senator Specter and I put this in the bill in 2003. Then, in fiscal 
year 2004, I helped secure $10 million to create the National Cord 
Blood Stem Cell Banking Program. Our subcommittee has appropriated 
$19.8 million in the last 2 years for that effort. That is for the 
banking of cord blood.
  Yesterday, my colleague from Kansas, Senator Brownback, said that 
``more kids will die if we don't take up the cord blood bill.'' That is 
simply not true. Cord blood units are being collected and saving lives 
as we speak today because of the funding that we appropriated through 
the Labor, Health and Human Services, Education appropriations 
subcommittee. Let's be clear, that money is there. We appropriated it. 
It is doing its job right now.
  What will help save lives and help with cord blood is if Republican 
conservatives would stop cutting funding for the National Cord Blood 
Stem Cell Banking Program that we put in a couple of years ago.
  In the Senate version of the fiscal year 2006 Labor-Health and Human 
Services appropriations bill, under the leadership of Senator Specter, 
we included $9.9 million for cord blood banking. To hear the talk last 
night, one would think we didn't have any money. We put $9.9 million in 
the bill. Guess what. The House had zero. The conference committee cut 
our $9.9 million down to $4 million. That means 3,900 fewer units of 
cord blood will be collected under the fiscal year 2006 appropriations 
bill than in last year's bill.
  I would hope my good friend from Kansas will come to the floor and 
implore his colleagues not to go along with the Labor-Health and Human 
Services appropriations bill and get that money back in there, but I 
didn't hear anything said about that.
  The cuts to cord blood banking do not stop at the $4 million level. 
We are told that when the DOD appropriations bill comes back, there 
will be a 1-percent, across-the-board cut for every Federal program. 
First, the cord blood funding is cut from $9.9 million to $4 million. 
Now, it is going to get another 1-percent cut for good measure.
  As I said, if Senators want to do more for cord blood banking, they 
ought to increase the funding, at least not cut it in the Labor-Health 
and Human Services appropriations bill. But it is being cut. It 
shouldn't be cut. We put the money in there. So if my colleagues feel 
strongly about banking cord blood and using that cord blood to save 
lives, they ought to be out here demanding that we not cut it from what 
we put in the Senate bill. But I have not heard one person come on the 
floor and take that up and say: No, we are not going to agree to those 
cuts.
  If Senators want to do more for cord blood banking, they should 
increase the funding, not cut it. But if Senators want to go ahead and 
pass H.R. 2520, fine, I have no problem with that. There is no harm in 
passing language that authorizes work that is already being done by the 
Appropriations Committee. At least Senators who come out and talk at 
least ought to thank Senator Specter for taking the lead on this.
  There is another reason why I am lifting my hold. When we debate H.R. 
810 next year--let me put it this way. The majority leader has kept 
saying he wants to make sure we bring up H.R. 810.
  Senator Hatch from Utah said we are going to bring up H.R. 810. We 
are going to have that debate; we are going to vote on it. Well, when 
we bring it up next year and debate it, it will be crystal clear who 
supports medical research and who does not. The question will be very 
simple: Are my colleagues for stem cell research or are they not?
  Cord blood transplants, while enormously beneficial to people with 
certain blood diseases, are no substitute for embryonic stem cell 
research. Cord blood cannot do a thing for people with Parkinson's, 
ALS, juvenile diabetes, Alzheimer's. These are the things we can 
address with embryonic stem cell research.
  So I wanted to make it very clear today, No. 1, that I have taken off 
my hold on the unanimous consent. They want to bring it out again. 
Secondly, Senator Specter and I have taken steps in the Appropriations 
Committee both to put the money in there but also to set up the 
registry. We have already set up the registry. There was some talk 
yesterday that maybe there is not a registry out there. Of course there 
is a registry. As I said, it went up 24 percent last year.
  H.R. 2520 basically authorizes what we are already doing, anyway. 
That is fine. But I implore my colleagues who are interested in this, 
as I am, come out and talk about the funding. Talk about the 3,900 
fewer babies, young people, who will not get cord blood because of the 
cut in funding from $9.9 million now to less than $4 million. Let us 
hear some talk about that rather than being here and passing an 
authorizing bill, which does not do one single thing more than what we 
are doing already.
  What it does is make sure the funding is there for the registry and 
to collect the cord blood and to bank it so that people and young 
people who have these terrible diseases can get the cord blood to help 
them.
  I hope we do not make these cuts in the Labor-HHS appropriations 
bill. It is there, but we should not cut it. And if they do, I will 
have more to say about it next year when we return in January and 
February. I hope we can bring up H.R. 810, have a good debate on it, 
and let us vote it up or down, as the House did, and send it on to the 
President so we can get on with the vital research that is needed on 
embryonic stem cell research.
  I conclude with this: There are some stories in the paper today--
there were a few yesterday--a front-page story today about a South 
Korean research doctor and the fact that he may have--I do not know all 
the facts--falsified some stem cell lines. There are indications, at 
least in my reading of the medical journal, there is some reason to 
believe he actually did do that, that it was falsified. Then I heard 
some comments such as, well, see, there is the problem with stem cell 
research.
  That points out the necessity for us to authorize it, to have the 
National Institutes of Health supervise it, have jurisdiction over it, 
so that it is done in an ethical way, where we can monitor it and make 
sure we do not have rogue elements riding off doing their own thing, so 
we have standards by which we can measure stem cell research, so we can 
have legitimate, ethical, moral guidelines which researchers can 
follow, and we can know who is doing the legitimate good work and know 
who the outliers are.
  The fact that this story has come out today makes it even more 
imperative that we pass H.R. 810 and we have National Institutes of 
Health jurisdiction oversight over this kind of research.
  I yield the floor.
  Mr. BINGAMAN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant Journal clerk proceeded to call the roll.
  Mr. WYDEN. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  Federal Trade Commission Nominations

  Mr. WYDEN. Mr. President, in the final hours of this session of the 
Senate, the Senate is going to approve two nominees to the Federal 
Trade Commission. I take a few minutes tonight to describe why I want 
to be on record tonight against the nomination of both these 
individuals.
  When it comes to energy, the Federal Trade Commission essentially is 
out of the consumer protection business. Well over a year ago, I 
released a report documenting the Federal Trade Commission's campaign 
of inaction when it comes to protecting our consumers at the gas pumps. 
My report documented how the Federal Trade Commission has refused to 
challenge oil industry mergers the Government Accountability Office 
says would raise gas prices at the pump by 7 cents a gallon alone on 
the west coast.
  My report also documented how the Federal Trade Commission failed to 
act when refineries had been shut down or to stop anticompetitive 
practices such as redlining and zone pricing. Since then nothing has 
changed.

[[Page 28847]]

  Despite what we saw recently--record high prices for consumers, and 
record profits by major oil companies--what we have seen is a record 
level of inaction by the Federal Trade Commission on behalf of energy 
consumers.
  In the last few months, when we saw the price of gasoline soar to an 
all-time record high, the Federal Trade Commission was invisible. As 
far as I can tell, the Federal Trade Commission failed to take any 
action at all in the wake of the hurricanes in the gulf that sent the 
price of gas skyrocketing to over $3 a gallon across the country.
  If you do a Google search on FTC and gasoline prices, nothing at all 
comes up to indicate that the Federal Trade Commission has taken any 
action on behalf of energy consumers. What you do find are statements 
by the Chair of the Federal Trade Commission arguing against giving the 
agency additional authority to protect consumers against price gouging 
at the pump.
  For example, the Federal Trade Commission Chair recently made the 
statement opposing an effort here in the Senate to have a price gouging 
law because ``they are not simple to enforce and they could do more 
harm to consumers.''
  The fact, however, is a number of States do have price gouging laws. 
Two State attorneys general testified at a joint hearing recently here 
in the Senate that these laws are, in fact, beneficial.
  In her testimony before a joint Senate hearing last month, the Chair 
of the Federal Trade Commission, Debra Majoras, described what I 
believe to be an astoundingly serious theory of consumer protection 
when she essentially said there is no need for a Federal price gouging 
law no matter how high the price of gasoline goes. The argument was by 
Ms. Majoras that gasoline price gouging is a local issue even if the 
price gouger is a major multinational oil company.
  FTC officials also testified before the Congress that the agency has 
no authority to stop price gouging by individual companies.
  Despite this clear gap in the agency's authority, the agency has 
refused to say what additional authority it needs to go after price 
gouging, and others have pressed them to do for years.
  There are unquestionable efforts in the private marketplace to 
exploit consumers, and it didn't start with Hurricane Katrina. As the 
Wall Street Journal documented recently, gas prices for much of this 
recent period have increased twice as fast as crude oil prices. 
Clearly, a number of oil companies are not simply passing on higher 
crude oil costs but are also adding substantial increases to the cost 
of gas above and beyond the higher cost of crude oil.
  Since the early 1970s and for much of this year, there has never been 
the kind of disparity between increases in the price of gas and 
increases in the price of crude oil. This was not seen even in the days 
of the long gas lines following the OPEC embargo.
  Over the past 30 years, gasoline prices never rose more than 5 
percent higher in a year than the cost of crude increase. But in the 
past year, gas price increases outpaced crude by 36 percent. After 
Hurricane Katrina, the price difference soared even higher to 68 
percent.
  Further evidence of price gouging could be found in what happened on 
the west coast immediately following Hurricane Katrina, when prices 
surged 15 cents per gallon overnight. For years, oil industry 
officials, the Federal Trade Commission, and others have maintained 
that the west coast was an isolated gasoline market from the rest of 
the country. West coast supplies were not affected by the hurricanes. 
The west coast gets almost none of its gas from the gulf. If the west 
coast was an isolated market, as the oil industry has claimed for 
years, then Katrina was not a justification for jacking up gas prices 
on the west coast immediately after the hurricanes.
  The Federal Trade Commission is the principal consumer protection 
agency in the Government. It is the Federal agency that can and should 
take action when gasoline markets go haywire as they did after the 
hurricanes. But instead of action, what we have repeatedly seen were 
excuses.
  In the past, the Federal Trade Commission often claimed that it was 
studying the problem or monitoring the gasoline markets as an excuse 
for inaction on gas pricing.
  Recently, the Federal Trade Commission's campaign of inaction has 
even extended to the studies that the agency does. The Federal Trade 
Commission chair testified last week that a study of gas price gouging 
that Congress required the FTC to complete by this month would not be 
ready until next spring. In effect, the campaign of inaction is now 
approaching the point of paralysis where the agency won't even deliver 
promptly on commitments that it has made to study the issue.
  The agency has continued its program with inaction on behalf of 
gasoline consumers despite the findings by the Government 
Accountability Office that the agency's policies are raising prices at 
the pump.
  In May of 2004 the Government Accountability Office released a major 
study showing how oil industry mergers and the Federal Trade Commission 
allowed to go through in the 1990s substantially increased 
concentration in the oil industry and increased gas prices for 
consumers by as much as 7 cents per gallon on the west coast.
  Specifically, the Government Accountability Office found that during 
the 1990s the Federal Trade Commission allowed a wave of oil industry 
mergers to proceed, that these mergers had substantially increased 
concentration in the oil industry, and that almost all of the largest 
of the oil industry mega mergers examined by the auditors each had 
increased gasoline prices. Essentially, the Government Accountability 
Office found that the Federal Trade Commission's policies on mergers 
had permitted serial price gouging.
  Two years ago, when current Federal Trade Commission Chair Deborah 
Majoras last came before the Senate for confirmation, I asked a 
response to the report done by the independent government auditor. 
Despite her promise to do so, I have yet to receive any response from 
the Chairman of the Federal Trade Commission.
  The Government Accountability Office is not alone in documenting how 
Government regulators have been missing in action when it comes to 
protecting our consumers at the gas pump. Since 2001, oil industry 
mergers totalling more than $19 billion have gone unchallenged by the 
Federal Trade Commission, according to a recent article in Bloomberg 
News. The article also reported that these unchecked mergers may have 
contributed to the highest gasoline prices in the past 20 years.
  According to the Federal Trade Commission's own records, the agency 
imposed no conditions on 28 of 33 oil mergers since 2001. You can see 
the results of the Federal Trade Commission's inaction at gas stations 
in Oregon and across the country. Nationwide, the Government 
Accountability Office found between 1994 and 2002, gasoline market 
concentration increased in all but four States. As a result of the 
Government's merger policies, 46 States now have gasoline markets with 
moderate or high concentration, compared to only about half that just 
10 years ago.
  The Federal Trade Commission, oil industry officials, and consumer 
groups all agree in these concentrated markets oil companies do not 
need to collude in order to raise prices. The Federal Trade 
Commission's former general counsel, William Kovacic, has said:

       It may be possible in selected markets for individual firms 
     to unilaterally increase prices.

  In other words, the Federal Trade Commission's general counsel 
basically admitted that oil companies in these markets can price gouge 
with impunity. Mr. Kovacic is one of the two nominees for the Federal 
Trade Commission who is now before the Senate.
  Despite all of this evidence that gasoline markets around the country 
have become more concentrated and that in these concentrated markets 
individual

[[Page 28848]]

firms can raise prices and extract monopoly profits, the Federal Trade 
Commission has failed to take effective action to check oil industry 
mergers. In the vast majority of cases, the Federal Trade Commission 
took no action at all.
  The Federal Trade Commission's inaction on oil mergers is once again 
a front burner issue with the recent announcement that ConocoPhillips, 
an oil company formed from a series of mergers the Federal Trade 
Commission allowed, is acquiring Burlington Resources to create one of 
the largest U.S. natural gas producers. Many in the oil and gas 
industry expect this merger announcement will lead to a similar wave of 
consolidation in the natural gas industry. This, in turn, will lead to 
greater consolidation of the industry and fewer choices for consumers.
  In addition to the inaction on merger issues, the Federal Trade 
Commission has also failed to act against proven areas of 
anticompetitive activity. Major oil companies are charging, in some 
instances, dealers' discriminatory ``zone prices'' that make it 
impossible for dealers to compete fairly with company-owned stations or 
even other dealers in the same geographic area. With zone pricing, one 
oil company sells the same gas to its own brand stations at different 
prices. The cost to the oil company of making the gas is the same. In 
many cases, the cost of delivering that gas to the service station is 
the same, but the price the station pays is not the same. And the 
station that pays the higher price is not able to compete, and 
eventually that station goes out of business and there is further 
concentration in that particular community's market.
  Another example of anticompetitive practices that now occur in gas 
markets is a practice known as redlining. This involves oil companies 
making certain areas off limits to independent gas distributors, known 
as jobbers, who bring competition to a particular area. The Federal 
Trade Commission's own investigation of west coast gas markets found 
that the practice of redlining was rampant on the west coast, but the 
Federal Trade Commission concluded that it could only take action to 
stop this anticompetitive practice if the redlining was the result of 
out and out collusion, a standard that is almost impossible to prove.
  In my home State, one courageous gasoline dealer took on the major 
oil companies and won a multimillion-dollar court judgment in a case 
that involved redlining. This dealer gave the evidence that was used to 
win his case in court to the Federal Trade Commission. The Federal 
Trade Commission, the premier consumer protection agency of the Federal 
Government, failed to do anything to help this dealer or to reign in 
the anticompetitive practices at issue.
  In areas other than energy, the Federal Trade Commission, in my view, 
has made a significant contribution to protecting consumers. In other 
areas, the Federal Trade Commission has not hesitated to move 
aggressively on behalf of the consuming public. To give one example, 
the Federal Trade Commission created a Do Not Call Program to prevent 
consumers from being hassled at home. With its Do Not Call Program, the 
agency pushed to protect consumers to the limits of its authority and 
even went beyond what the courts say it had authority to do.
  For some reason, in the case of energy, the Federal Trade Commission 
had a regulatory blind spot. That has been true, I am sad to report, in 
both Democrat and Republican administrations. It is a bipartisan blind 
spot that keeps the agency from looking out for the millions of 
Americans who consume gasoline and gas products every single day.
  The Federal Trade Commission will not even speak out now on behalf of 
consumers getting gouged at the gas pump. The agency will not use its 
bully pulpit to even say that record high gas prices are an issue of 
concern that they will be looking at closely.
  The FTC approach on gas prices is one, in my view, that must change. 
I do not intend to support the business-as-usual approach on energy 
that has been seen too long at the Federal Trade Commission. I have met 
with both the nominees to the Federal Trade Commission, Mr. William 
Kovacic and Mr. Thomas Rosch. I also asked them to provide me their 
views in writing in an effort to find out whether they would push the 
Commission to take a different approach from its long history of 
inaction in this area.
  Unfortunately, neither of these individuals provided me with any 
compelling evidence that they are committed to and will, in fact, work 
aggressively to change the culture of inaction at the Federal Trade 
Commission with respect to consumer protection in the energy field.
  Despite this prior statement about how oil companies with market 
power could gouge with impunity, Mr. Kovacic, the former Trade 
Commission general counsel, failed to identify any new authority the 
Federal Trade Commission needed to close the regulatory gap. On the 
question of whether the Federal Trade Commission needed added authority 
to address mergers in the petroleum industry that the GAO found had 
increased gasoline prices, Mr. Kovacic wrote:

       I do not have any specific preliminary in mind at the 
     moment.

  Mr. Kovacic was more constructive on the question of whether there 
were other ways the FTC's statutory authority might be enhanced. He 
suggested Federal antitrust laws could be enhanced by encouraging 
whistleblowers to reveal illegal conduct by adding qui tam mechanisms 
that allow the whistleblowers to receive a percentage of the funds the 
government recovers from wrongdoers. I certainly agree a qui tam 
mechanism could provide a useful supplement to Government oversight in 
many areas. It is not a substitute for the Federal Trade Commission 
doing its job. And Mr. Kovacic did not identify any way the Federal 
Trade Commission's own approach to the oil industry would change. Given 
the Federal Trade Commission's record, given what they have done in the 
last few years, essentially being AWOL when it comes to energy, Mr. 
Kovacic's proposal essentially amounts to contracting out the Federal 
Trade Commission's enforcement authority in this area.
  Now, I personally believe that the Federal Trade Commission itself 
needs to be an aggressive watchdog, looking out for consumers at the 
gas pump, not passively waiting for an industry whistleblower to come 
forward with smoking-gun evidence before taking action. That is why I 
find, at this point, no evidence that Mr. Kovacic would bring a 
different kind of outlook to the Federal Trade Commission's work in the 
energy field.
  Now, the other nominee, Mr. Rosch, had a more interesting proposal. 
He suggests restoring the Federal Trade Commission's authority to 
challenge unilateral conduct affecting competition, authority that the 
Federal Trade Commission had prior to 1994. That would be a good first 
step toward closing the existing gap in the Agency's regulatory 
authority.
  Had Mr. Rosch ended his letter to me at that point, I would have been 
willing to support his nomination. However, he went on to undercut his 
case when it came to anticompetitive practices in a key area: zone 
pricing. In effect, before taking any action to deal with this 
particularly egregious and anticompetitive practice, Mr. Rosch argued 
for waiting for the outcome of a pending court case and for 
recommendations of the Antitrust Modernization Commission. So he was, 
in effect, saying, as the Federal Trade Commission says again and again 
and again in the energy field, that he wants more time to study, which 
means more delay and more inaction as it relates to protecting 
consumers from anticompetitive practices.
  It is my view that we have had enough delay and enough study when it 
comes to the anticompetitive practices of the oil industry. I do not 
intend to support business as usual at the Agency, and I am not going 
to support business-as-usual nominees to be FTC Commissioners. I intend 
to continue to raise my concerns as long as the Federal Trade 
Commission continues to duck aggressive consumer protection efforts in 
an area that, for reasons that

[[Page 28849]]

I cannot fully explain to the Senate, they are simply unwilling to take 
up.
  This Agency, which is willing to step in in a variety of areas, such 
as ``do not call,'' stretches their authority to the limits and then 
even beyond, for some reason continues to sit on their hands when it 
relates to energy.
  I want things to change at the Agency. I want to see a more 
aggressive approach on behalf of energy consumers. I am not convinced 
that anything will change if Mr. Kovacic or Mr. Rosch is appointed to 
the Federal Trade Commission. Both of these individuals are going to 
get approved by the Senate in the last few hours of this session.
  It is my hope, in wrapping up--I see the Senator from Pennsylvania on 
the floor, who has patiently waited--it is my hope that these two 
individuals, Mr. Rosch and Mr. Kovacic, will prove that I am incorrect 
in the judgments I make tonight. I hope they will be aggressive. I hope 
they will look for opportunities to stand up for the consumer. I hope 
they will change this course of inaction that has been laid out by Ms. 
Majoras. If those two individuals, Mr. Kovacic and Mr. Rosch, take 
those kinds of steps, if they take the kinds of steps I have advocated 
tonight--to stand up for the energy consumer in this country--they will 
have my full support.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
  The assistant journal clerk proceeded to call the roll.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________