[Congressional Record (Bound Edition), Volume 153 (2007), Part 4]
[Senate]
[Pages 5670-5711]
[From the U.S. Government Publishing Office, www.gpo.gov]




              IMPROVING AMERICA'S SECURITY ACT--Continued


                           Amendment No. 286

  Mr. SPECTER. Madam President, I have sought recognition to debate 
amendment No. 286, which would reverse the provision in the Military 
Tribunal Act which has limited the jurisdiction of the Federal courts 
in habeas corpus proceedings.
  The essential question at issue is whether the combatant status 
review tribunals are adequate and effective to test the legality of a 
person's detention.
  What we are dealing with here is an examination of the issue as to 
whether the procedures are fundamentally fair. Congress should repeal 
the provisions of the Military Commissions Act which limit Federal 
court jurisdiction on habeas corpus.
  The decision by the court of appeals, I submit, will be overturned by 
the Supreme Court of the United States because of Circuit Court's 
ruling that the Rasul case dealt only with the statutory provisions on 
habeas corpus. The Circuit Court ignored the binding language of Rasul, 
which said that the habeas corpus rights were grounded in common law in 
effect in 1789 and were, in fact, part of the Constitution. Where 
habeas corpus is a right in the Constitution, and it is such a right 
because the Constitution expressly states that habeas corpus shall not 
be suspended except in cases of invasion or rebellion--and no one 
contends that there is either invasion or rebellion at issue-- Congress 
cannot legislate a derogation of that constitutional right. Any act of 
Congress is obviously trumped by a

[[Page 5671]]

constitutional provision. Where you have habeas corpus in effect in 
1789 and the constitutional provision prohibiting its suspension, the 
legislation passed in the Military Commission Act I think ultimately 
will be determined by the Supreme Court to be unconstitutional, pretty 
clearly on the face of the opinion of the Court articulated by Justice 
Stevens.
  The Congress ought to reverse the provision of the Military 
Commission Act which strikes or limits Federal court jurisdiction on 
habeas corpus because the provisions--the way the detainees are being 
dealt with, simply stated, is not fundamentally fair. It does not 
comport with due process of law, and due process is a right even 
without specific enumeration in the Constitution.
  The order establishing the Combat Status Review Tribunal provides as 
follows:

       For purposes of this order, the term ``enemy combatant'' 
     shall mean an individual who was a part of or supported 
     Taliban or al-Qaida forces or associated forces that are 
     engaged in hostilities against the United States or its 
     coalition partners. This includes any person who has 
     committed a belligerent act or who has directly supported 
     hostilities in aid of enemy forces.

  The fact is that people are detained as enemy combatants without any 
showing of those basic requirements.
  The next section of the order establishing the Combatant Status 
Review Tribunal provides:

       All detainees shall be notified--

  Skipping some language--

       of the right to seek a writ of habeas corpus in the courts 
     of the United States.

  I have not seen any reference to this provision in any of the 
adjudications, and I found this on the very extensive research which my 
staff and I have undertaken to prepare for this debate. But there you 
have it. The order itself setting up the Combat Status Review Tribunal 
says that the detainees have the right to seek a writ of habeas corpus. 
The Secretary of Defense has the authority to establish the rules, and 
he has established the rule which gives the detainee the right to seek 
a writ of habeas corpus. That ought to end the argument right there.
  Let's proceed further to see, in fact, what happens when these 
matters are taken before the Combat Status Review Tribunal. We have the 
opinion of U.S. District Judge Green in a case captioned, ``In Re: 
Guantanamo Detainee Cases,'' in which Judge Green writes as follows:

       The inherent lack of fairness of the CSRT's consideration 
     of classified information not disclosed to the detainee is 
     perhaps most vividly illustrated in the following 
     unclassified colloquy which was taken from a case not 
     presently before this judge which exemplifies the practical 
     and severe disadvantages faced by all Guantanamo prisoners. 
     [I read] a list of allegations forming the basis for the 
     detention of Mustafa Ait Idir, a petitioner in Boumediene v. 
     Bush case--

  And that parenthetically is the case decided by the Court of Appeals 
for the third circuit.
  This is what Judge Green goes on to point out in her opinion in the 
Federal Reporter:

       While living in Bosnia, the detainee associated with a 
     known al-Qaida operative.
       In response, the following exchange occurred:
       Detainee: Give me his name.
       Tribunal President: I do not know.
       Detainee: How can I respond to this?

  Skipping some irrelevant language, the detainee goes on to say:

       I asked the interrogators to tell me who this person was. 
     Then I could tell you if I might have known this person, but 
     not if this person is a terrorist. Maybe I knew this person 
     as a friend. Maybe it was a person that worked with me. Maybe 
     it was a person that was on my team, but I do not know if 
     this person is Bosnian, Indian, or whatever. If you can tell 
     me the name, then I can respond and defend myself against 
     this accusation.
       Tribunal President: We are asking you the questions and we 
     need you to respond to what is in the unclassified summary.

  Skipping some irrelevant materials, the detainee then goes on to say:

       But I was hoping you had evidence that you could give me. 
     If I was in your place--and I apologize in advance for these 
     words--but if a supervisor came to me and showed me 
     accusations like these, I would take these accusations and I 
     would hit him in the face with them. Sorry about that.

  Then, parenthetically, Judge Green's opinion notes that ``Everyone in 
the tribunal laughs.''

       Tribunal President: Well, we had to laugh, but that is OK.

  A little later in the opinion--

       The detainee says: What should be done is you should give 
     me evidence regarding these accusations, because I am not 
     able to give you any evidence. I can just tell you no, and 
     that is it.

  Then Judge Green goes on to say:

       The laughter reflected in the transcript is understandable. 
     And this exchange might have been truly humorous had the 
     consequences of the detainee's enemy combatant status not 
     been so terribly serious, and the detainee's criticism of the 
     process had not been so piercingly accurate.

  Well, this case illustrates the fact that the provisions in 
Guantanamo on the detainee status review tribunal is a laughing stock. 
It hardly comports with what the Secretary of Defense said was 
required: that there has to be evidence that the individual supported 
Taliban or al-Qaida forces or committed a belligerent act.
  The Judiciary Committee held a hearing and one of our witnesses was a 
distinguished attorney, Thomas Sullivan, who made available a series of 
cases before the Combat Status Review Tribunal. This is one 
illustrative case involving a man named ``Abdul-Hadi al Siba.'' I take 
this from the extract of what the witness provided:

       The Combat Status Review Tribunal stated that al Siba was 
     charged with being captured in crossing the border into 
     Pakistan with having volunteered for a charity that was 
     funded by al-Qaida. That is all that is in the summary.

  Again, this hardly comports with the standard by the Department of 
Defense itself that there is supposed to be evidence which would show 
the detainee was engaged in hostilities against the United States or 
committed belligerent acts.
  The provisions of the Department of Defense establishing the Combat 
Status Review Tribunals is fundamentally unfair under the most basic 
principle of Anglo-Saxon American jurisprudence. The rules are:

       Preponderance of evidence shall be the standard used in 
     reaching the determination, but there shall be a rebuttable 
     presumption in favor of the government's evidence.

  That is the most extraordinary standard which I have ever seen, and 
it is bedrock Americana that people are presumed innocent. But instead, 
when a detainee faces a Combat Status Review Tribunal, the presumption 
is that he is guilty. That hardly comports with a standard of 
fundamental fairness or due process.
  The rules promulgated by the Department of Defense call for a 
preponderance of evidence, so even if there is a presumption of guilt, 
the standards do require some evidence. But that was not present in the 
case cited by Judge Green, not present in the cases cited by Thomas 
Sullivan at our Judiciary Committee hearing.
  Madam President, I ask unanimous consent that the summary of other 
cases provided by Mr. Sullivan be included in the Record at the 
conclusion of my presentation.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. SPECTER. The standards which have been established, which would, 
under some circumstances, permit a substitute procedure for habeas 
corpus were articulated by the Supreme Court of the United States in 
the case of Swain v. Pressley. In that case, the Supreme Court said 
there could be a collateral remedy which is neither inadequate nor 
ineffective to test the legality of a person's contention.
  But the collateral remedy which was present in Swain v. Pressley is a 
far cry from the provisions of the Combat Status Review Tribunal.
  What the Supreme Court was dealing with in the Swain case was habeas 
corpus before a State court as opposed to habeas corpus before a 
Federal court. In Swain, the Supreme Court said that the ``relief 
available in the Superior Court is neither ineffective nor inadequate 
simply because the judges of that court do not have life tenure.''
  So here we have a State court functioning under the rules of habeas 
corpus and the Supreme Court says that is an equivalent of Federal 
court habeas

[[Page 5672]]

corpus because State court judges can make that determination and the 
only difference is that the State court judges do not have wide tenure.
  In Swain, the Supreme Court went on to say:

       It is a settled view that elected judges of our State 
     courts are fully competent to decide Federal constitutional 
     issues.

  So there you have the constitutional issue decided. But the only 
difference is that it is a State court. Well, that has absolutely no 
resemblance to the combat status review tribune. It hardly qualifies as 
an adequate substitute.
  I want to proceed now to the issues that were articulated by the 
Supreme Court of the United States in Rasul, where I believe it is very 
clear cut that there is the ignoring of the language of the Supreme 
Court, and a constitutional right and a right that was in effect in 
common law in 1789 will certainly be utilized by the Supreme Court in 
dealing with the circuit court opinion, which is directly inconsistent 
with the language of Justice Stevens. This is what Justice Stevens said 
in the Rasul case, speaking for the Court:

       Application of the habeas corpus statute to persons 
     detained at the base [referring to the Guantanamo base] is 
     consistent with the historical reach of the writ of habeas 
     corpus. At common law courts exercise habeas corpus over the 
     claims of aliens detained within the sovereign territory of 
     the realm, as well as the claims of persons detained in the 
     so-called ``exempt jurisdictions'' where ordinary writs did 
     not run, and all other dominions under the sovereign's 
     control. As Lord Mansfield wrote in 1759, even if a territory 
     was ``no part of the realm'', there was ``no doubt'' as to 
     the Court's power to issue writs of habeas corpus if a 
     territory was under the subjection of the crown.

  The Supreme Court had already held in the trilogy of cases in 2004 
that the United States Government controlled Guantanamo Bay, so it was 
within the jurisdiction of the United States.
  Justice Stevens goes on to point out that:

       Later cases confirmed the reach of the writ depended not on 
     formal notions of territorial sovereignty, but rather on the 
     practical question of ``the extent and nature of the 
     jurisdiction or dominion exercised in fact by the crown.''

  There again is the reference to the undeniable fact that the United 
States controls Guantanamo and it is under United States dominion. The 
court of appeals concluded that the language about the existence of the 
writ when the Constitution was adopted and the constitutional right of 
habeas corpus was not resolved by Rasul, because the specific holding 
in Rasul was on the statutory provisions of section 2241.
  The Stevens opinion says:

       We therefore hold that section 2241 confers on the district 
     court jurisdiction to hear petitioner's habeas corpus 
     challenges to the legality of their detention at Guantanamo 
     naval base.

  Now, the circuit court said that, well, is a holding based upon the 
statute, but its limitation does not apply to a constitutional right or 
the reach of the writ in effect in common law in 1789. How can it be 
that the Supreme Court would say Guantanamo Bay is under United States 
jurisdiction for the statutory right but outside of the jurisdiction 
for the constitutional right? It stands the English language on its 
head.
  There have been a number of situations where--especially in the fifth 
circuit--on death penalty cases the circuit has, in effect, ignored 
what the Supreme Court has had to say. It has been a highly critical 
Supreme Court which has then come to review those decisions. I suggest 
that that would be the response when the Supreme Court comes to review 
the circuit court opinion which ignores the plain language of the 
Supreme Court of the United States.
  In dissent, Justice Scalia recognized the fact that the case of 
Johnson v. Eisentrager had been overruled. The court of appeals relies 
upon Johnson v. Eisentrager to hold that there is no jurisdiction over 
Guantanamo Bay. But this is what Justice Scalia, in dissent, had to say 
about the overruling of Johnson v. Eisentrager. He called it 
``overturning of settled law.''
  But the court of appeals did not view it as such. So when this case 
comes before the Supreme Court, I think it is patently obvious that the 
language of the Court will require reversal of the circuit court 
decision.
  I have been asked if I will yield for a unanimous consent request by 
Senator Lieberman, and I will do so.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that when the 
time allocated to the Senator from Pennsylvania expires at 1, the 
Senator from Minnesota be recognized for 10 minutes and, after that, 
the Senator from Delaware be recognized for whatever amount of time he 
needs until 1:30, when Senators Collins and McCaskill have 15 minutes 
equally divided.
  The PRESIDING OFFICER (Mr. Menendez). Is there objection?
  Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, the failure of the Court of Appeals for 
the District of Columbia to recognize the settled principles was the 
subject of an analysis by the distinguished constitutional scholar Adam 
Liptak in the New York Times yesterday. It is worth notice. The 
analysis said that:

     what the Supreme Court says goes. Usually. But in a defiant 
     decision 2 weeks ago, a Federal Court of Appeals in 
     Washington conceded that it was ignoring parts of the 2004 
     Supreme Court decision on the rights of a man held at 
     Guantanamo Bay, Cuba. That can make the Supreme Court testy 
     and it may help the detainees.

  The analysis goes on to paraphrase the powerful dissent of Judge 
Judith Rogers, who said her colleagues were thumbing their noses at the 
Supreme Court. Liptak notes that:

       [Rogers stated that her colleagues] ``were ignoring the 
     Supreme Court's well-considered and binding dictum'' 
     concerning the historical roots and geographical scope of the 
     prisoner's basic rights and she cited the case from her own 
     court that said that such statements ``generally must be 
     treated as authoritative.''

  The analysis goes on to say that:

     almost 3 years ago, the Supreme Court ruled in Rasul that the 
     detainees possessed an ancient and fundamental right, the 
     right to challenge the justice of their confinement in court 
     by filing petitions for writs of habeas corpus.
       In a crucial aside, in Rasul, Justice John Paul Stevens, 
     writing for the majority, said this right was not just a 
     result of a law passed by Congress but was grounded in the 
     Constitution. ``Application of the habeas statute to persons 
     detained in the base,'' he wrote, ``is consistent with the 
     historical reach of habeas corpus.''

  Well, that lays it out in a pretty conclusive way that when the Court 
rules on a statute but says that the same right is embodied in the 
Constitution, Congress cannot pass a law which trumps the 
constitutional provision, as articulated by the Supreme Court of the 
United States.
  The Liptak analysis goes on to note this:

       If that is a right, a new law pushed by the Bush 
     administration's Military Commissions Act could not have cut 
     off detainees' rights to habeas corpus. In a footnote, the 
     appeals court basically acknowledges that. But it ruled that 
     the Supreme Court's historical analysis was wrong and that 
     Justice Stevens' dictum could be ignored.

  In the analysis commenting on the Johnson v. Eisentrager case, Liptak 
noted as follows:

       All of the points which were relied upon by the circuit 
     court, as Justice Stevens wrote in Rasul, counted in favor of 
     the Guantanamo detainees. ``They were not nationals of 
     countries at war with the United States''--

  Which was the case in Eisentrager--

       They have not been engaged in plotted acts of aggression 
     against the United States. They have never been afforded 
     access to any tribunal, much less charged with and convicted 
     of wrongdoing, and for more than 2 years they have been in 
     prison in territory over which the United States exercises 
     exclusive jurisdiction and control.

  Well, this is a fairly brief analysis in the time which I have. But 
the essence of it boils down to this: The Supreme Court--Justice 
Stevens speaking for a majority--has ruled that the Federal habeas 
corpus statute covers Guantanamo, that the rights were violated, and 
that the statute carries out the constitutional law and the scope of 
the writ in 1789, when the Constitution was adopted. And the Court of 
Appeals for the Third Circuit, in order to uphold the act, says the 
holding by Justice Stevens was only to a statute--and it is true 
Congress can change the statute--but ignores the plain language of 
Justice Stevens speaking for a majority of the Court that it is a 
constitutional right.
  That cannot be changed by an act of Congress, and the Supreme Court 
will

[[Page 5673]]

tell the court of appeals that when they get the case. Aside from the 
issue of constitutionality, which will be decided by the Court, as to 
the procedures that are in effect in these combat status review 
tribunals, they do not measure up to the requirements of fundamental 
fairness. They do not honor what the Department of Defense laid down as 
the basic rule that detainees are entitled to ``the right to seek a 
writ of habeas corpus in the courts of the United States.''
  That ought to be the end of it because the Secretary of Defense was 
given the responsibility to decide what the rules were, and he said one 
of the rules is that these detainees can go to court. That is what an 
act of Congress has taken away, and that is what ought to be reversed.
  Then if we take a look at what has to happen in these proceedings 
before the Combat Status Review Tribunal, the term ``enemy combatant,'' 
which would qualify for detention, means an individual who was part of 
or supporting the Taliban or al-Qaida forces or has committed a 
belligerent act or has directly supported hostilities in aid of enemy 
forces.
  The individual in the court of appeals case cited by Judge Green, 
which I read at length, was only supposed to have talked to somebody 
from al-Qaida, and they couldn't even produce the identity of the 
individual, which hardly measures up to the Department of Defense's 
standard. It is just absolutely ludicrous. Then for the Department of 
Defense provisions to say that there is a presumption of guilt just 
turns American justice on its head. Even with a presumption of guilt, 
the requirements are that there be evidence, and there is none in the 
case cited by Judge Green and by Mr. Sullivan.
  This is just the beginning of the argument. We will have other 
Senators come to oppose.
  Let me advise my colleagues that there will be a portion of the 
debate conducted in Room S-407, which is the room where we can discuss 
classified information, because Senator Leahy and I have been reviewing 
the rendition in the Arar case, and we have found that there was a 
determination that Arar had a status--which I cannot discuss in this 
Chamber but can discuss only in S-407--which would warrant sending him 
to Syria. Arar was a Canadian citizen who came to the United States and 
was detained for questioning at an airport in New York City when he 
wanted simply to transit and go to Canada. He was questioned by the 
FBI.
  It has been well noted that the FBI does not agree with the other 
interrogation practices which have been undertaken by the Government.
  After that questioning, which was reportedly extensive, Arar was then 
sent to Syria. He came back and has filed suit alleging that he was 
tortured and subjected to brutal treatment.
  The Canadian officials have considered the issue at length and have 
published a three-volume set. It is a good visual for people to see, if 
anybody is watching on C-SPAN2.
  This is volume 1 of the report relating to Maher Arar, this is volume 
2 on the report relating to Maher Arar, and this is the analysis and 
recommendation. After undertaking this kind of an analysis, the 
Canadian Government apologized to Arar and paid him about $10 million, 
but the U.S. Government continues to say that it was justified in 
sending Arar to Syria, where he was beaten.
  These matters relating to rendition, I submit, are directly relevant 
to our consideration of whether the Federal courts need to be involved 
in determining the legality of Guantanamo detainees because this 
Government, in the war on terrorism--and there is no doubt about the 
importance of our war on terrorism and the necessity for effective law 
enforcement. I led the Judiciary Committee to the reauthorization of 
the PATRIOT Act, which gives law enforcement extensive authority. But 
there are laws against torture. There are international covenants 
against torture. The submission of rendition is something that is going 
to have to come under some judicial supervision.
  I am considering now legislation which would require Federal 
authorities to go to court to establish probable cause and a basis for 
rendition before any American citizen or before anyone ought to be sent 
to a foreign country.
  We have the allegations of the plaintiff in a case decided last week 
by the Fourth Circuit who was sent to Egypt and alleged that he was 
tortured there. The Fourth Circuit has held that the case cannot be 
pursued because of a state secrets doctrine. That is a matter which is 
going to be reviewed on oversight by the Judiciary Committee.
  We have 25 CIA agents under indictment now in Italy, and we have 13 
CIA agents now under indictment in Germany. The international response 
is that the United States is undertaking a rendition in a way which is 
unsatisfactory to basic standards of decency and fairness.
  The Judiciary Committee has held hearings on Guantanamo. I visited 
Guantanamo. Not to have those detainees have the right of habeas corpus 
and Federal court review is totally at variance with the very basic 
tenets of Anglo-Saxon and American jurisprudence.
  I cannot say anything more about Arar, but it can be discussed in S-
407, which is the room we go to when we have matters to discuss which 
are classified. I believe it is a very compelling case that there needs 
to be judicial intervention or needs to be a lot more oversight than 
there has been on these matters.
  I might say, it is like pulling teeth to get the Department of 
Justice to make any information available. It takes a long time to have 
access to the classified material, and then the material is 
insufficient to come to a conclusion. In the Arar case, we have a 
request pending and don't know what the result will be. But we do know 
Canada made an exhaustive analysis of Arar and what he had done, and I 
think I can say this: The materials in the classified documents relate 
to information substantially obtained from Canadian authorities, and 
Canada has made the inquiry and has apologized and paid some $10 
million.
  I yield the floor.

                               Exhibit 1

Summaries of CSRT Examples Cited by Tom Sullivan at September 25, 2006 
                              SJC Hearing


                          Abdul-Hadi Al Siba'a

       Al Siba'a is 34 year old Saudi Arabian who was taken into 
     custody in Pakistan in December 2001. He had no weapon or 
     ammunition when he was captured. The Combatant Status Review 
     Tribunal stated that Al Siba'a was charged with being 
     captured in crossing the border into Pakistan and with having 
     volunteered for a charity that was funded by Al-Qaida.
       Al Siba'i repeatedly contended that he is a police officer 
     in the Riyadh police department who was on a leave of absence 
     in August 2001 to assist in building schools and a mosque in 
     Afghanistan. He has presented his passport and his airline 
     ticket. He has offered to have the Riyadh Police Department 
     verify his employment and the nature of his leave of absence. 
     Those requests were refused by the tribunal ``because an 
     employer has no knowledge of what their employees do when 
     they are on leave.''
       After five years of detention, the government released Al 
     Sibai'i from Guantanamo Bay, and he returned to his home in 
     Saudi Arabia.


                            Unnamed Detainee

       One detainee, who is not named in the declassified 
     documents from the CSRT, is a Muslim man from Germany. This 
     detainee is charged with having a close association with an 
     individual who later engaged in a suicide bombing.
       The detainee had no memory of any association with a person 
     who was a suicide bomber. In order to understand the nature 
     of the charges against him, the detainee asked what evidence 
     the tribunal had to show that he was involved with a suicide 
     bomber.
       The tribunal responded that they could not answer that 
     question and that ``anything remaining concerning [the 
     suicide bomber who the detainee was allegedly associated 
     with] is in the classified session.'' While the detainee 
     continued to be cooperative and answer the questions posed to 
     him by the CSRT, the Tribunal never provided him with an 
     explanation of the questions that it asked regarding his 
     associations with other individuals and organizations.


                              ``Mustafa''

       Arrested in Sarajevo, Bosnia, but originally of Algerian 
     descent. Accused of being a member of the Islamic Armed 
     Group, which was plotting to bomb the American Embassy in 
     Sarajevo. Asked about his relationship to Abu Zubayda, whom 
     he denied knowing.

[[Page 5674]]

       Mustafa was arrested and searched by ``international police 
     from the United Nations.'' Was told that if the Bosnians no 
     longer wanted him in their country, he would be welcome to 
     return to Algeria.
       Asked his interrogator at GTMO, ``why, and if there were 
     any accusations or evidence against me. The interrogator said 
     to me that they would find something, meaning I could not be 
     released from Cuba without them finding some accusation 
     against me. I could not have been held in Cuba in prison for 
     three years, then all of a sudden be found innocent and 
     released.''


                           Abdur Sayed Rahman

       Born in Pishin, Pakistan. Charged with being a member of 
     the Taliban, which he denied.
       Although there were two exhibits read into evidence against 
     him, he was unable to view the evidence. Additionally, the 
     detainee denied having been at the place of his capture in 
     Pakistan at the alleged time of his capture. The government 
     could not verify with him the time of his capture.

  Mr. SPECTER. In the absence of any other Senator seeking recognition, 
I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SPECTER. 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. SPECTER. Mr. President, I have a couple supplemental comments I 
would like to make.
  The requirement established by the Department of Defense that a 
detainee shall be notified ``of their right to seek a writ of habeas 
corpus in the courts of the United States'' was given to all the 
detainees. So they have had it and relied upon it. I suggest that while 
not legally the same, that any change in that policy is really in the 
nature of ex post facto, which is changing a rule and establishing 
criminal liability after the fact, which is prohibited by the 
Constitution. It isn't quite that, but it has the same flavor, and it 
is the nature, also, of a bill of attainder, which is legislation that 
establishes guilt as opposed to a judicial proceeding. What we have had 
here, in effect, is legislation which has changed what the Department 
of Defense said the rights of the individuals would be.
  I wish to cite, in addition, a quotation from Justice O'Connor in the 
Hamdi v. Rumsfeld case, talking about combat status review boards, in 
which she said:

       Any process in which the executive's factual assertions go 
     wholly unchallenged or simply presumed correct without any 
     opportunity for the alleged combatant to demonstrate 
     otherwise falls constitutionally short.

  Justice O'Connor restates in shorthand the traditional presumption of 
innocence which is turned on its head by the DOD regulations and says 
as a matter of Supreme Court ruling that without any opportunity to 
defend, those presumed conclusions can't stand.
  We saw the case of Judge Green, we saw the case cited by the witness 
before the Judiciary Committee, all of which shows the basic unfairness 
of what is going on in Guantanamo. The only way to correct it is 
through the traditional habeas corpus rights in Federal court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.


                          Veterans Health Care

  Ms. KLOBUCHAR. Mr. President, I rise today to pay tribute to our 
brave soldiers fighting overseas and in particular the nearly 3,000 
Minnesota National Guard members who recently had their stays extended 
in Iraq. I wish to speak about our duty to these soldiers for their 
sacrifices on behalf of our Nation. It is an issue that must transcend 
partisanship.
  Whether one supports the President's escalation or opposes it, as I 
do, there is one point on which we can agree: We must support the 
soldiers on the battlefield, and when they return home, we must give 
them the support they need.
  In the past 4 years, American military service personnel and their 
families have endured challenges and stressful conditions that are 
unprecedented in recent history, including unrelenting operational 
demands and recurring deployments in combat zones.
  Mr. President, 1.5 million American service men and women have served 
in Iraq and Afghanistan. These wars are creating new generations of 
veterans who need their country to stand with them. Many of the 
soldiers fighting in Iraq and Afghanistan are doing it not only to 
serve their country but also to provide for their families.
  One of these soldiers was Army SGT William ``B.J.'' Beardsley, who 
lived in Minnesota. Sergeant Beardsley joined the Army just after high 
school and completed one term of service. But when his wife Stacy 
encountered medical ailments, Sergeant Beardsley decided to reenlist, 
in part so that his health insurance would cover the medical treatment 
his wife required.
  His personal sacrifice to family and country allowed his wife to 
successfully undergo surgery. Tragically, the day Stacy left the 
hospital, Sergeant Beardsley was killed by a roadside bomb in Iraq.
  I have always believed that when we ask our young men and women to 
fight and die for this Nation, we make a promise that we will give them 
all the resources they need to do their job and when they return home, 
we will take care of them and their families. Sergeant Beardsley will 
not be coming home, but for too many of his fellow soldiers in Iraq and 
Afghanistan who do return, our promise to take care of them has 
repeatedly been broken.
  As a nation, we have an obligation to wrap our arms around the people 
who serve us and who have sacrificed for us. Today, our veterans need 
us more than ever. While the President pushes ahead with his surge of 
additional troops into Iraq's civil war, at home we are already 
experiencing a vastly larger surge of returning soldiers, many of them 
citizen soldiers from the National Guard and Reserves.
  More than 3,000 have returned having made the ultimate sacrifice, 
leaving behind grieving families and communities. Tens of thousands 
have come home physically wounded. Tens of thousands more return 
suffering from post-traumatic stress, depression, and substance abuse 
as a result of their service. These are men and women who have served 
our country on the front lines, but on returning home too many have 
found themselves shunted to the end of the line, left waiting to get 
the health care they need, left waiting to receive the benefits they 
have earned and, as the shocking revelations from Walter Reed show us, 
some have been left waiting in the most squalid of conditions. We are 
now learning this is not an isolated incident.
  In Minnesota, one of those left waiting was Jonathan Schulze. 
Jonathan, from Stewart, MN, was a 25-year-old marine who had fought in 
Iraq and earned two Purple Hearts. He told his parents that 16 men in 
his unit had died in 2 days of battle. When he returned home in 2005, 
the war did not leave him. He suffered flashbacks and panic attacks. He 
started drinking heavily to stave off nightmares. According to VA 
Secretary Jim Nicholson, Jonathan was seen by the VA 46 times in 
Minneapolis and St. Cloud, MN, but this was not enough. In January, 
this young war veteran hanged himself.
  We now learn that the VA Medical Center in St. Cloud has 15 acute 
inpatient psychiatric beds, while a decade ago there were 198 beds. 
That means the number of acute psychiatric beds available for veterans 
there has declined by more than 90 percent in the past decade. It is as 
if nobody even realized that we have been at war for the past 4 years 
and that tens of thousands of Minnesotans have returned from combat, 
with many more to come.
  Our veterans didn't stand in long waiting lines when they were called 
up or volunteered to serve our Nation. So why are we asking them to 
stand in line now for medical care?
  As a former prosecutor, there is a saying that ``justice delayed is 
justice denied.'' I would add that, for our veterans, ``health care 
delayed is health care denied,'' and that, too, is an injustice. We 
need to do better, much better, and we can.
  In fact, we know what needs to be done. First, we need to stop 
shortchanging our veterans during the budget process. Just as this 
administration

[[Page 5675]]

sent our soldiers into battle without a plan for victory, it also 
failed to develop a plan to address their needs once they got home. The 
administration shockingly underestimated the number of veterans who 
would require medical care.
  In its fiscal year 2005 budget request, the Department of Defense 
estimated that they would have to provide care for 23,500 veterans from 
Iraq and Afghanistan. In reality, more than four times that number 
required assistance. Last year, the Pentagon underestimated the number 
of veterans seeking care by 87,000.
  The Department of Veterans Affairs operates the largest medical 
system in the Nation. It has a reputation for high-quality care, with 
many talented, dedicated doctors, nurses, and other staff. The VA's 
resources, however, are now severely strained. The waiting list and 
delays get longer. The shortages are especially severe in mental health 
care. Last year, the VA underestimated the number of new post-traumatic 
cases by five times.
  For the past several years, this administration has submitted a 
budget request for the VA that significantly underfunded the needs of 
America's 25 million veterans. This is from the same administration 
that each year asks Congress to authorize tens of billions of dollars 
for projects in Iraq. I was pleased that the continuing resolution, 
passed a few weeks ago, increased funding for the VA by $3.5 billion 
over fiscal year 2006 levels. However, this should only be the 
beginning of a renewed commitment to our service men and women, both on 
the front lines and on the home front.
  When the President's budget comes to the Senate floor later this 
month, I will join my like-minded colleagues in pressing for a 
substantial increase in VA funding.
  Second, we need to start treating our National Guard and Reserves 
like the soldiers they are. Up to 40 percent of the troops fighting in 
Iraq have been National Guard members and reservists. Minnesotans know 
all too well the burden being placed on our Guard forces. The National 
Guard was not built to serve as an Active-Duty force for prolonged 
periods of time. Yet that is exactly what we are requiring them to do. 
Guard funding and benefits have not gone up correspondingly to match 
its increased duties.
  Meanwhile, the Pentagon is stripping Guard units of their equipment 
in order to make up for shortages in supply. States rely on the 
presence of a strong and well-equipped Guard in order to respond to 
domestic emergencies. Department of Defense policies have weakened the 
Guard to the point that a recent commission found that 88 percent of 
Guard units in the United States cannot meet preparedness levels.
  It is time we recognize the elevated position and importance of the 
National Guard to our national security. As a member of the National 
Guard Caucus, I support the National Guard Empowerment Act, which will 
promote the commander of the National Guard to a four-star general and 
make him a member of the Joint Chiefs of Staff. It will also grant the 
Guard more responsibility over coordinating Federal and local agencies 
during emergencies.
  We must also upgrade Guard members from their perceived status as 
second class veterans in other areas, including health care, pension 
plans, education, and reintegration programs. We need to do a better 
job of integrating our returning veterans back into our communities 
when they return. This is particularly hard for National Guard members 
when they do not have a base to go home to and have to go to literally 
thousands of communities and small towns across this country.
  In Minnesota, we are proud to have created the Beyond the Yellow 
Ribbon Program, which provides counseling and support to National Guard 
members and their families. Across my State right now, the National 
Guard is sponsoring a unique series of Family Reintegration Academies. 
Several weeks ago, I had the honor of attending one of these academies 
in Alexandria, MN. This pilot reintegration program has helped ease the 
transition for soldiers and their families, and it has gotten fabulous 
reviews from the participating families.
  What works in Minnesota can work in every State across the Nation. As 
we enter this appropriations process, I will be working with my 
colleagues to insist that the Federal budget include funding for 
reintegration programs for Guard members and reservists.
  Third, we need to improve health care for all of our soldiers. The 
problems found at Walter Reed are all too common at veterans hospitals 
and centers nationwide. I have joined my colleagues in legislation that 
will begin to solve the personnel and building shortages at Walter Reed 
Hospital and similar centers across the Nation. I also will join the 
Democratic leadership in the Senate in their HEROES plan to provide 
more oversight to veterans affairs and develop legislation to address 
these problems.
  One of the most glaring needs in veterans health care today is 
funding for research and treatment of poly-
traumatic injuries. As Bob Woodruff of ABC News showed us so vividly 
last week, with his own example and that of many other wounded 
soldiers, brain trauma has become a signature injury of this war in 
Iraq.
  Minnesota is home to one of the VA's systems four polytrauma 
rehabilitation centers. The others are in Palo Alto, Richmond, and 
Tampa. These centers were created in recognition of the large number of 
service members sustaining multiple severe injuries as a result of 
explosions and blasts. These centers provide a full array of inpatient 
and outpatient services, with specialized programs for traumatic brain 
injuries, spinal cord injury, blind rehabilitation, and post-traumatic 
stress disorder.
  I have visited the VA polytrauma brain center in Minneapolis. We need 
more of these centers and more research into the permanent effects of 
brain trauma caused by explosions on the battlefield. Our current VA 
infrastructure is not equipped to deal with these injuries and to care 
for brain-injured vets once they leave these specialized centers and 
return home. This must be a priority.
  Another issue that is only beginning to receive sufficient attention 
is the proliferation of mental health disorders among veterans. 
According to a Veterans' Health Administration report, roughly one-
third of Iraq and Afghanistan veterans who sought care through the VA 
were diagnosed with potential symptoms of post-traumatic stress, drug 
abuse, or other mental disorders.
  The Joshua Omvig Suicide Prevention Act, introduced by my colleagues 
from Iowa, will help ensure 24-hour access to mental health care for 
veterans deemed at risk for suicide. It will create VA programs to help 
veterans cope with post-traumatic stress disorder and other mental 
illnesses that too often lead them to take their own lives. Nearly 
1,000 veterans who receive care from the VA commit suicide each year. 
It is too late for Jonathan Schulze, but it is not too late for the 
many other suffering soldiers who are at risk for suicide.
  In the coming weeks and months, I hope to engage my colleagues to 
cooperate on new legislation that will increase the funding and 
commitment to veterans mental health services. In past years, veterans, 
such as my father, could count on the fact that their Government would 
stand by them. After World War II, our Government did just that, 
adopting the GI bill to provide health, housing, and educational 
benefits that gave returning veterans the help they needed to heal, to 
raise families, and to prosper.
  At a time when we are spending billions on the reconstruction of 
Iraq, funding for health care for veterans is far below what is needed. 
Those are the wrong priorities for our country. We cannot abandon the 
brave soldiers who fought for us once they return.
  In his Second Inaugural, President Lincoln reminded the American 
people that in war we must strive to ``bind up the Nation's wounds, to 
care for him who shall have borne the battle and for his widow and his 
orphan.'' Today, Americans are again called to bind up our Nation's 
wounds and to care for

[[Page 5676]]

those who have borne the battle, as well as their families who have 
shouldered their own sacrifice.
  Let us live up to this solemn obligation to bring our troops home 
safely and to honor our returning soldiers and their families by giving 
them the care and the benefits they have earned.
  Mr. President, I yield the floor.


       Amendments Nos. 383 and 384, En Bloc, to Amendment No. 275

  Mr. BIDEN. Mr. President, I send to the desk two amendments. I am 
only going to speak to one, but I would like to send both to the desk 
so I have them offered. One is an amendment relating to funding of the 
homeland security effort, and the other is one relating to the ability 
for cities and States to reroute hazardous waste around their major 
metropolitan areas.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The legislative clerk read as follows:

       The Senator from Delaware [Mr. Biden] proposes amendments 
     numbered 383 and 384, en bloc, to Amendment No. 275.

  Mr. BIDEN. Mr. President, I ask unanimous consent that the reading of 
the amendments be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments (Nos. 383 and 384) are as follows:


                           amendment no. 383

  (Purpose: To require the Secretary of Homeland Security to develop 
regulations regarding the transportation of high hazard materials, and 
                          for other purposes)

       On page 361, after line 20, add the following:

             Subtitle D--Transport of High Hazard Materials

     SEC. 1391. REGULATIONS FOR TRANSPORT OF HIGH HAZARD 
                   MATERIALS.

       (a) Definition of High Threat Corridor.--In this section, 
     the term ``high threat corridor'' means a geographic area 
     that has been designated by the Secretary as particularly 
     vulnerable to damage from the release of high hazard 
     materials, including--
       (1) areas important to national security;
       (2) areas that terrorists may be particularly likely to 
     attack; or
       (3) any other area designated by the Secretary.
       (b) Purposes of Regulations.--The regulations issued under 
     this section shall establish a national, risk-based policy 
     for high hazard materials being transported or stored. To the 
     extent the Secretary determines appropriate, the regulations 
     issued under this section shall be consistent with other 
     Federal, State, and local regulations and international 
     agreements relating to shipping or storing high hazard 
     materials.
       (c) Issuance of Regulations.--Not later than 90 days after 
     the date of enactment of this Act, the Secretary shall issue 
     interim regulations and, after notice and opportunity for 
     public comment final resolutions, concerning the shipment and 
     storage of high hazard materials.
       (d) Requirements.--The regulations issued under this 
     section shall--
       (1) except as provided in subsection (e), provide that any 
     rail shipment containing high hazard materials be rerouted 
     around any high threat corridor;
       (2) establish standards for the Secretary to grant 
     exceptions to the rerouting requirement under paragraph (1).
       (e) Transportation and Storage of High Hazard Materials 
     Through High Threat Corridor.--
       (1) In general.--The standards for the Secretary to grant 
     exceptions under subsection (d)(4) shall require a finding by 
     the Secretary that--
       (A) the shipment originates or the point of destination is 
     in the high threat corridor;
       (B) there is no practicable alternative route;
       (C) there is an unanticipated, temporary emergency that 
     threatens the lives of persons or property in the high threat 
     corridor;
       (D) there would be no harm to persons or property beyond 
     the owners or operator of the railroad in the event of a 
     successful terrorist attack on the shipment; or
       (E) rerouting would increase the likelihood of a terrorist 
     attack on the shipment.
       (2) Practical alternate routes.--Ownership of the tracks or 
     facilities shall not be considered by the Secretary in 
     determining whether there is a practical alternate route 
     under paragraph (1).
       (3) Grant of exception.--If the Secretary grants an 
     exception under subsection (d)(4)--
       (B) the Secretary shall notify Federal, State, and local 
     law enforcement and first responder agencies (including, if 
     applicable, transit, railroad, or port authority agencies) 
     within the high threat corridor.

                           amendment no. 384

  (Purpose: To establish a Homeland Security and Neighborhood Safety 
Trust Fund and refocus Federal priorities toward securing the Homeland, 
                        and for other purposes)

       At the end, add the following:

     SEC. 1505. HOMELAND SECURITY TRUST FUND.

       (a) Definitions.--In this section:
       (1) Trust fund.--The term ``Trust Fund'' means the Homeland 
     Security and Neighborhood Safety Trust Fund established under 
     subsection (b).
       (2) Commission.--The term ``Commission'' means the National 
     Commission on Terrorist Attacks upon the United States, 
     established under title VI of the Intelligence Authorization 
     Act for Fiscal Year 2003 (Public Law 107-306; 6 U.S.C. 101 
     note).
       (b) Homeland Security and Neighborhood Safety Trust Fund.--
       (1) Establishment of trust fund.--There is established in 
     the Treasury of the United States a trust fund to be known as 
     the ``Homeland Security and Neighborhood Safety Trust Fund'', 
     consisting of such amounts as may be appropriated or credited 
     to the Trust Fund.
       (2) Rules regarding transfers to and management of trust 
     fund.--For purposes of this section, rules similar to the 
     rules of sections 9601 and 9602 of the Internal Revenue Code 
     of 1986 shall apply.
       (3) Distribution of amounts in trust fund.--Amounts in the 
     Trust Fund shall be available, as provided by appropriation 
     Acts, for making expenditures for fiscal years 2008 through 
     2012 to meet those obligations of the United States incurred 
     which are authorized under subsection (d) for such fiscal 
     years.
       (4) Sense of the senate.--It is the sense of the Senate 
     that the Committee on Finance of the Senate should report to 
     the Senate not later than 30 days after the date of the 
     enactment of this Act legislation which--
       (A) increases revenues to the Treasury in the amount of 
     $53,300,000,000 during taxable years 2008 through 2012 by 
     reducing scheduled and existing income tax reductions enacted 
     since taxable year 2001 with respect to the taxable incomes 
     of taxpayers in excess of $1,000,000, and
       (B) appropriates an amount equal to such revenues to the 
     Homeland Security and Neighborhood Safety Trust Fund.
       (c) Preventing Terror Attacks on the Homeland.--
       (1) Authorization of appropriations for supporting law 
     enforcement.--There are authorized to be appropriated from 
     the Trust Fund--
       (A) $1,150,000,000 for each of the fiscal years 2008 
     through 2012 for the Office of Community Oriented Policing 
     Services for grants to State, local, and tribal law 
     enforcement to hire officers, purchase technology, conduct 
     training, and to develop local counterterrorism units;
       (B) $900,000,000 for each of the fiscal years 2008 through 
     2012 for the Justice Assistance Grant; and
       (C) $500,000,000 for each of the fiscal years 2008 through 
     2012 for the Law Enforcement Terrorism Prevention Grant 
     Program.
       (2) Authorization of appropriations for responding to 
     terrorist attacks and natural disasters.--There are 
     authorized to be appropriated from the Trust Fund--
       (A) $500,000,000 for each of fiscal years 2008 through 2012 
     for the Federal Emergency Management Agency for Fire Act 
     Grants; and
       (B) $500,000,000 for each of fiscal years 2008 through 2012 
     for the Federal Emergency Management Agency for SAFER Grants.
       (d) Authorization of Appropriations for Additional 
     Activities for Homeland Security.--There are authorized to be 
     appropriated from the Trust Fund such sums as necessary for--
       (1) the implementation of all the recommendations of the 
     Commission, including the provisions of this section;
       (2) fully funding the grant programs authorized under this 
     bill, including the State Homeland Security Grant Program, 
     the Urban Area Security Initiative, the Emergency Management 
     Performance Grant Program, the Emergency Communications and 
     Interoperability Grant Programs, rail and transit security 
     grants and any other grant program administered by the 
     Department;
       (3) improving airline passenger screening and cargo 
     scanning;
       (4) improving information sharing and communications 
     interoperability;
       (5) supporting State and local government law enforcement 
     and first responders, including enhancing communications 
     interoperability and information sharing;
       (6) enhancing the inspection and promoting 100 percent 
     scanning of cargo containers destined for ports in the United 
     States and to ensure screening of domestic air cargo;
       (7) protecting critical infrastructure and other high 
     threat targets such as passenger rail, freight rail, and 
     transit systems, chemical and nuclear plants;
       (8) enhancing the preparedness of the public health sector 
     to prevent and respond to acts of biological and nuclear 
     terrorism;
       (9) the development of scanning technologies to detect 
     dangerous substances at United States ports of entry; and
       (10) other high risk targets of interest, including 
     nonprofit organizations and in the private sector.

  Mr. BIDEN. Mr. President, with regard to the first amendment, No. 
383, which I am not going to take time to speak to today, is an 
amendment that allows cities and States to reroute hazardous material 
around their cities. In

[[Page 5677]]

a nutshell, and I know no one knows this better than the Chair, and I 
mean that sincerely, these are 90-ton chlorine gas tank cars that go 
rolling through Newark on their way down through the corridor into my 
State and across my State.
  I once asked, not too long ago, the Naval Research Institute to give 
me an analysis of what would happen if one of those were to blow up in 
a metropolitan area. They said that 100,000 people would die--100,000 
people would die. Yet this administration has opposed and we have not 
committed to allowing cities to reroute this hazardous material around 
their major metropolitan areas.
  That is one amendment which I will come back to at another time.
  At this moment I want to now speak to an amendment that is much 
broader, Amendment No. 384.
  We often say that September 11 changed everything. Well, it changed 
everything except it didn't change our behavior. It changed everything 
except when we look at the budget of this administration in the last 6 
years, or 4 years since then, and if we look at our tax policy since 
then, we look at what hasn't changed.
  My dad used to have an expression, Mr. President. You probably heard 
me say it before: Show me your budget, I will tell you what you value.
  Tax cut after tax cut, overwhelmingly tilted to those who were at the 
highest end of the tax bracket, is what this outfit has valued. The 
truth is, we seem not to value protecting our cities, our homeland. The 
truth is, as the Presiding Officer knows better than anyone, living on 
the east coast in a State such as mine, only much larger, you know what 
the costs of the 9/11 Commission recommendations are. You know how few 
dollars we have spent implementing the recommendations. Literally from 
your home county, you could see the buildings collapse, the World Trade 
Center towers collapse. Thousands of people from your State were 
significantly affected, many were killed.
  We all ripped out our hair about how this was so terrible; we were 
going to not let this happen again. We went out there and took a real 
good look at what needed to be done when the 9/11 Commission came 
along. Precious little was done. Yet during the same period of time we 
made sure to help people earning more than a million dollars a year. I 
am not picking on them. I am happy. I hope my grandkids make over a 
million dollars a year. I hope everybody in America can. I have no 
problem with anybody making hundreds of millions of dollars.
  One of the things we forget on the Senate floor is that those folks 
are just as patriotic as poor folks. Those folks are just as patriotic 
as middle-class folks. They didn't ask for these massive tax cuts. They 
are prepared to give some of them back in order to make the country 
more safe, but we don't ask anything of them. So what happens? Just for 
this year, for households making more than $1 million a year, to put 
this in perspective, they are going to get a tax cut of $45 million. If 
you look at it from 2008 to 2017, that aggregate tax cut, if you are at 
an income where you make more than a million dollars a year, is going 
to be $739 billion. Households with incomes of that magnitude obviously 
take a big chunk of what are the fiscal priorities of this Nation.
  We just had a long discussion here about the grant programs and how 
we allocate funding to the various States. We debated that. But it is 
like rearranging the deck chairs on the Titanic unless there is actual 
money dedicated to provide for these needs. What we have not done is we 
have not ensured a funding source. We have not provided the money 
needed to implement the 9/11 Commission recommendations.
  I say to my colleagues that we have money to fund these programs. 
When I raised this last year and I talked about how much money was 
needed, as my friend from New Jersey has, they said: Oh, we can't 
afford it.
  Give me have a break. We can't afford it? We can afford over $700 
billion in tax cuts for people making over $1 million a year, and we 
can't afford it? I will point out that it comes to about a $50 billion 
price tag over 5 years to implement all the 9/11 Commission Report. 
Can't afford it?
  Let me point out that the Congressional Budget Office recently 
released a study indicating H.R. 1, the House counterpart to this bill, 
will cost $21 billion, but the Senate bill we have here only costs $17 
billion. There are a few comprehensive estimates of what all the 9/11 
recommendations would cost, but I did what you did, I say to the 
Presiding Officer, and what others did--I went to a bunch of very smart 
people. I have been involved in this, as you have, from day one. We 
went in and costed it out, what it would cost for the main 
recommendations of the 9/11 Commission. The truth is, we are easily 
able to fund it. It is a lot more than that; it is $50 billion over 5 
years, roughly.
  In addition we are not prepared in terms of homeland security 
relating to local cops, sheriffs--local police. If there is going to be 
somebody who is trying to put sarin gas into a complex in your State or 
mine, it is not going to be some brave special forces soldier in 
fatigues wearing night-vision goggles who is going to figure this thing 
out; it is going to be a local cop riding behind the arena and seeing 
someone getting out of a dumpster. If we are going to break up these 
rings, it is going to be intelligence, but also it will be a local cop 
walking a beat in Newark, NJ, or Wilmington, DE--or Newark, DE. ``By 
the way, those three apartments that have been vacant for the last 7 
years, there are lights on in the window.''
  What have we done? We slashed spending for local law enforcement. We 
slashed it $2.1 billion a year since this President has become 
President.
  Show me your budget, I will tell you what you value. It is a little 
bit like taking care of veterans. Show me your budget, I will tell you 
what you value.
  In addition, the study by the U.S. Conference of Mayors found that 75 
percent of the cities in America do not have interoperable 
communications--75 percent. This is a disgrace. What do we need? We had 
Hurricane Katrina, we had 9/11--what else do we need to demonstrate 
that it is useful to have a local cop be able to speak to the National 
Guard that is called in, to be able to have somebody in the command 
center who can talk to everybody? Yet 75 percent of the cities do not 
have interoperable communications capability--one of the strongest 
recommendations made by the 9/11 Commission.
  As I said, while there is not a comprehensive assessment, I have 
spent a lot of time talking to experts and found that roughly for an 
additional $10.3 billion a year, we can implement all of the 9/11 
recommendations--all of them, including provisions in this title--and 
do other commonsense things we know will make us more safe, such as 
reinvesting in local police.
  The bottom line is this: If we simply commit to taking back a small 
fraction of the cuts for those making over $1 million a year, we can 
pay for all the security upgrades we need. Here is how it would work. 
My amendment simply puts the Senate on record calling for the Finance 
Committee to report legislation to provide $53 billion in funding for 
homeland security to be placed in the homeland security trust fund. It 
is called a Homeland Security and Neighborhood Safety Trust Fund. From 
this trust fund, we require that spending be dedicated toward 
initiatives and grant programs authorized in this legislation, 
including the Urban Area Security Initiative, the State Homeland 
Security Grant Program, emergency management performance grants, and 
rail and transit security grants. It would reinstate the COPS Program, 
the FIRE Act grants, SAFER grants, and the Justice Assistance grants, 
which provide essential support to State and local police, allowing 
them to coordinate with the Federal Government. It would be funding 
enhancements in interoperable communications, improve port security, 
including working toward 100 percent scanning of cargo containers, and 
upgrade and better prepare the Nation's public health sector to respond 
to acts of bioterrorism and nuclear terrorism.

[[Page 5678]]

  I ask all my colleagues in earshot of my voice, go to the largest 
cities in your States and go to the emergency rooms in your hospitals. 
Ask how many times they have to close down their hospitals. They send 
out to all the ambulance drivers in the entire region that would be 
serviced by them a statement saying: We can't take any more today. What 
in God's name are we doing to prepare these hospitals and 
infrastructure for a terrorist attack?
  We also have to upgrade and develop new scanning technology to detect 
dangerous substances. That is what this money would be allowed to be 
used for.
  When I introduced this legislation last year and got a vote, I 
explained how I would allocate the $10.3 billion. I put $1 billion in 
here for interoperability, I put in $1 billion to promote 100 percent 
cargo container scanning, $500 million to bolster the public health 
infrastructure, and $100 million to improve government-wide information 
sharing. In order to leave what should be left--I took out these 
specific allocations in order to give to my colleagues on the 
Appropriations Committee and the Homeland Security Committee more 
discretion on how to spend the additional money in the outyears. I 
withheld the specifics. It is just an order to the relevant committees 
to come up with how to spend that money.
  Any way you slice it, this will leave the most fortunate among us 
still very fortunate but will take, from over $736 billion, $52 
billion. No one in this Chamber can tell me that there is anyone out 
there who is going to say that is not fair. No one can tell me that 
will have a scintilla of a negative impact on the economy. No one can 
argue, I respectfully suggest--and I invite them to do it--that, in 
fact, these things are not needed, what I am talking about here. These 
were all talked about by various Senators.
  The numbers are clear. Those who need the least help are getting the 
most from the current tax cuts, and those fortunate Americans are twice 
blessed. They are blessed by our efforts in this bill, and they are 
blessed by the fact that they are doing very well through their own 
hard work.
  I have said before, of the many opportunities squandered since 9/11, 
the most tragic opportunity squandered by this administration is the 
failure to call our country together, to give all of us a part to play 
in response to the new threats we face, not just middle-class folks who 
are sending their husbands, wives, sons, and daughters to Iraq and 
Afghanistan to try to protect us.
  But despite the rhetoric that calls upon the proud recollections of 
our national purpose in conflicts such as World War II and the Cold 
War, on this floor there has been an incredible vacuum of leadership. 
Those Presidents asked something of the American people. What has been 
asked except forfeit commitments to health care, education, and energy 
security? And where does that burden fall? It falls on working women 
and men.
  Let me just say as my time begins to expire that I know those who are 
very well off. I know they are willing to do this. I had an opportunity 
to speak to a group of 50 people advertised to me as among the most 
wealthy people in the nation. It was a group of investors. I spoke 
before them, and I said to them that this is what I wanted to do. I 
said: Does anybody in here disagree with that? It was advertised to me 
that a significant portion of these people were actually billionaires. 
When I raised that question, there was silence in the room, and finally 
one guy honestly put his hand up.
  He said: I am not too sure I am. I am not too sure you won't go out 
and waste the money.
  I said: Will you support it if I come forward and do what I did in 
the crime bill I wrote years ago, I drafted years ago--set up a trust 
fund, and the money we take from this tax cut to get this $50 billion-
plus will be put into a trust fund, and it can only be used for 
homeland security and neighborhood safety? Would you support it then?
  I got an ovation, literally an ovation, mostly a standing ovation, I 
say to you, Mr. President, from these extremely wealthy people. The 
wealthy are ready to commit just as the middle class and poor are.
  Mr. President, I end where I began. As my dad used to say, don't tell 
me what you value, show me your budget. Don't anyone on this floor 
presume to tell me, in the years I have spent here, that this country 
cannot afford to spend, over the next 5 years, $10.2 billion a year to 
make this Nation safer. Please don't anyone suggest that it is not 
possible to pay for this when, in fact, you have a tax policy that is 
so out of whack that even the people who are benefiting the most from 
it are willing to contribute to our national security. If we ask the 
sons and daughters, husbands and wives, mothers and fathers in each of 
our towns and cities to send their children, their husbands and wives 
to protect us abroad, we sure in the devil can ask the people making 
over $1 million a year--a total tax break of over $736 billion over the 
next several years--to contribute $10.2 billion a year out of that tax 
cut. I am confident they are ready. They just need to be asked.
  I hope, when the appropriate time comes, my colleagues will favorably 
consider my amendment.
  I yield the floor.


                      Amendments Nos. 316 and 342

  The PRESIDING OFFICER. Under the previous order, there will be 15 
minutes of debate equally divided on amendments Nos. 316 and 342 
offered by Senators McCaskill and Collins.
  Who yields time?
  The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, if the Chair would inform me when I 
have used 3 minutes because I want to yield my remaining time.
  There have been so many things said about this amendment that are not 
true. I want to make sure my colleagues understand how many things are 
being said that are not true.
  There is one truth everyone needs to embrace. That is, we are only 
trying to give to the screening officers at airports the same worker 
protections that we give so many of our men and women in uniform who 
are helping with our national security and safety. As I drove up this 
morning to the Capitol, I was greeted by Capitol police officers. Does 
anyone doubt those Capitol police officers would do whatever is 
necessary to try to protect us? Of course not. But yet those same 
arguments are being used to try to discourage people from supporting 
this amendment, that somehow if these workers are part of some 
collective bargaining agreement, they will no longer be there at a 
moment's notice to do whatever they are asked to secure our safety and 
security.
  As I said previously, how many Americans bought the NYPD shirts and 
hats and the New York fire department shirts and hats after 9/11? Those 
firefighters in New York who went into that burning building losing 
their lives in the process, running into danger rather than away from 
it, all were working under a collective bargaining agreement. Does 
anyone doubt that they hesitated responding to an emergency because 
they have basic worker protections? The notion is very un-American and, 
frankly, it is mildly insulting to the men and women serving as 
officers in our airports today.
  The Border Patrol, same protections; Customs officials, same 
protections; most of the employees in Homeland Security, the civilian 
employees of the Department of Defense, FEMA employees, all of whom 
have to respond to emergencies, all have these same basic worker 
protections.
  My amendment says they cannot collectively bargain for higher pay. My 
amendment spells out clearly that the Secretary of Homeland Security 
and the Director of TSA have complete authority to mandate what these 
workers do in times of an emergency. At the same time it is going to 
allow us to professionalize this workforce. This part of the Federal 
Government suffers from incredible turnover, as high as 50 percent. 
That is a turnover rate that would be unacceptable in the private 
sector. It is inefficient. It is expensive. We are not getting the kind 
of experienced screeners who know what to look for and when to look for 
it based on their experience, not because of some job training program.

[[Page 5679]]

  This amendment will provide those basic protections. It will 
professionalize the workforce. In the long run, it will make us all 
safer.
  I urge colleagues to support the McCaskill amendment. I yield the 
remainder of my time to Senator Kennedy.
  Mr. KENNEDY. Mr. President, how much time remains for both sides?
  The PRESIDING OFFICER. Senator McCaskill has 4 minutes remaining, and 
Senator Collins has 7\1/2\ minutes remaining.
  Mr. KENNEDY. Mr. President, I ask the Chair to remind me when there 
is 1 minute remaining.
  First, I commend the good Senator for offering this amendment. It is 
important to understand what it does not do. It does not provide a 
right to strike, a right to bargain over pay. It does not prevent TSA 
from responding to emergencies, and it does not prevent TSA from 
responding to new threats. This amendment does none of that, even 
though it has been distorted and misrepresented.
  As the good Senator has pointed out, what are the existing attrition 
rates today? Look at the different security agencies, Immigration and 
Customs correctional officers, Secret Service and Border Patrol, and 
Transportation Security. This is the national security threat, the idea 
that the TSA has this kind of turnover. That is the nature of the 
threat, having to get new people after new people after new people, 
because workers don't have a right to speak and don't have the right to 
bring their grievances.
  What is the result? Even in this agency we find out in terms of lost 
time and the injury rate, this agency leads the pack. What does it 
show? It shows it is poorly administered and the workers are not being 
treated fairly or are not treated with respect.
  The McCaskill amendment is simple in what it does. The Border Patrol 
agents have these kinds of protections. FEMA has these protections. 
Immigration and Customs have these protections. Unless we have the 
McCaskill amendment, we will not have the range of these protections 
for Transportation Security Administration workers. The others have it 
but not TSA.
  What does the other side have against working men and women? How 
insulting, that these men and women will not put the security of the 
United States first. At the time of 9/11, under the Defense Department, 
they moved hundreds and thousands of civilians all around the country. 
They were all under collective bargaining agreements. Not one grievance 
was filed, not a single one. These men and women understood their duty. 
They understood the threat. They were patriotic Americans. What is it 
about the other side that questions that these are men and women of 
dignity who will do their job when this Nation is threatened? What is 
it about? It certainly wasn't there at 9/11 when their brothers and 
sisters who work for the Department of Defense agency were moved all 
around. They were prepared to do everything they were asked to do.
  The PRESIDING OFFICER. The Senator has 1 minute remaining.
  Mr. KENNEDY. Finally, as the good Senator has pointed out, as the 
smoke was coming out of the buildings in New York, when we saw the 
collapse of the first buildings and men and women under collective 
bargaining agreements were asked to go into those fiery infernos, no 
one was talking about collective bargaining agreements. They were 
talking about doing their duty to the United States. Let us permit 
these workers to do their duty. Let's give them these protections. 
Let's give them the kind of respect and dignity the McCaskill amendment 
gives them.
  I reserve whatever time remains.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Maine.
  Ms. COLLINS. Mr. President, it is very clear to me that we can take 
significant steps today to give TSA employees more protections, and 
that is what the amendment I and several others have proposed would do. 
It would bring TSA employees under the Whistleblowers Protection Act, 
and it would allow them to appeal any adverse employment action such as 
a firing or demotion to an independent agency, the Merit Systems 
Protection Board. These are rights I believe TSA employees should have. 
They are rights that are similar to those enjoyed by other Federal 
employees. But what we are trying to do is strike a balance between 
giving the employees all of the standard collective bargaining rights 
and the security needs of the TSA.
  The TSA security needs are not hypothetical. TSA has shared with us, 
in a highly classified briefing, details of when they have had to 
change the employee work conditions or assignments or duties. This 
isn't just a hypothetical need. It is one we saw last summer be put in 
place in the wake of a bombing plot that, fortunately, was thwarted. 
These are needs that came into play in the response to Hurricane 
Katrina. What I have suggested in my amendment is that we take major 
steps to afford more employee rights and protections to the TSA 
personnel, but we do so in a way that maintains the flexibility TSA has 
told us, both in classified session and in public hearings, they need 
to help safeguard our country.
  The amendment I have proposed also includes other protections for the 
employees. It makes very clear that they can join a union. There are 
several TSOs who have joined a union in order for representation, if 
there is an adverse employment action.
  Another provision of the bill recognizes this is not the final word 
on the issue but asks for TSA and the GAO to take a look at the 
personnel system for TSA and report back to us in a year's time about 
whether there should be other changes made to improve the system.
  The amendment also provides for a pay-for-performance system which 
has been successfully implemented at TSA. We want to codify that.
  I don't think this is an all-or-nothing debate. We can take some 
significant steps today. Secretary Chertoff has sent a letter on behalf 
of the administration that comments on the alternative proposal put 
forth by my friend from Missouri, Senator McCaskill. I do have a lot of 
admiration for my friend and colleague, but I think my other colleagues 
should be aware that the Department says that ``this amendment 
regrettably does not provide a workable solution. Indeed, in some 
respects it would make it even more difficult for the . . . (TSA) to 
manage its workforce than would section 803 [in the underlying bill.]''
  I want to make sure my colleagues are aware that the Department of 
Homeland Security believes the underlying bill, the language authored 
by the Senator from Connecticut, is preferable to the language offered 
by the Senator from Missouri.
  I ask unanimous consent that the entire letter from Secretary 
Chertoff be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              Department of Homeland Security,

                                    Washington, DC, March 6, 2007.
     Hon. Susan M. Collins,
     Committee on Homeland Security and Governmental Affairs, U.S. 
         Senate, Washington, DC.
       Dear Senator Collins: On behalf of the Administration, I 
     would like to comment on the amendment proposed by Senator 
     McCaskill (SA 316 to SA 315). We appreciate Senator 
     McCaskill's effort to resolve the problems created by section 
     803 of S. 4, but this amendment regrettably does not provide 
     a workable solution. Indeed, in some respects it would make 
     it even more difficult for the Transportation Security 
     Administration (TSA) to manage its workforce than would 
     section 803--particularly managing its Transportation 
     Security Officers (TSO), who serve on the front lines to 
     secure our nation's civil aviation system.
       Most notably, SA 316 could actually expand the 
     opportunities to bargain collectively beyond what is 
     contemplated by section 803 of the underlying bill. The 
     amendment casts doubt on whether bargaining over employee 
     compensation and benefits is prohibited, as it is under 
     current law and section 803. The amendment also does not 
     differentiate between mandatory and permissive subjects of 
     bargaining, or set terms for bargaining over procedures and 
     appropriate arrangements related to changes in conditions of 
     employment. Given the scope of section 111(d) of the Aviation 
     and Transportation Security Act (P.L. 107-7), these issues 
     will likely become the subject of litigation.

[[Page 5680]]

     Therefore, the amendment could require TSA management to 
     bargain to impasse over matters that no other federal agency 
     engaged in security is required to address. Furthermore, the 
     very definition of ``pay'' could become the subject of time-
     consuming litigation.
       The amendment also promises to impede the quick and fair 
     resolution of grievances and other workplace disputes for the 
     thousands of TSOs. Although the Administrator of TSA 
     purportedly would not be required to bargain over responses 
     to emergencies or imminent threats, it is inevitable that 
     protracted litigation will ensue over the meaning of these 
     terms. Moreover, the very definition of ``emergencies, newly 
     imminent threats, or intelligence indicating a newly imminent 
     emergency risk'' could be subject to collective bargaining 
     and subsequent litigation. The resolution of these issues 
     might rest with an arbitrator with no direct knowledge of 
     intelligence, risk and threat assessment, and transportation 
     security. This would place the performance of TSA's security 
     mission in the hands of someone who neither has the expertise 
     needed to make these decisions nor is accountable for them.
       The amendment also fails to alleviate the adverse impact 
     that collective bargaining would have on TSA's day-to-day 
     security operations. TSA is responsible for providing and 
     managing complex, on-site security systems at more than 450 
     commercial airports, which collectively screen approximately 
     two million passengers a day for thousands of commercial 
     flights. Collective bargaining would limit TSA's management 
     flexibility, which is an indispensable element of this 
     system. TSA must be able to react nimbly, not only to the 
     ever-evolving security threats that confront our Nation, but 
     also to changing air carrier schedules, weather disruptions, 
     and special events that draw large numbers of passengers to 
     particular airports. TSA also needs flexibility to screen not 
     only passengers and their checked baggage, but also air 
     cargo, airport employees, and contractors working at 
     airports. Simply put, collective bargaining remains 
     incompatible with the successful performance of TSA's vital 
     security mission.
       In addition, the amendment would prevent TSA from 
     effectively disciplining employees who break the law. The 
     amendment would trigger Title 5's procedural requirements for 
     taking adverse actions against employees, including the 30-
     day notice provision set forth in Chapter 75. This would 
     eliminate all accelerated adverse action proceedings, even 
     those based on clear and convincing evidence of theft, drug 
     possession or usage, and workplace violence. TSA currently 
     responds to such conduct by ensuring that the employees who 
     commit these violations are removed from the payroll in as 
     few as three days. The amendment also would call into 
     question TSA's ability to remove poor performers. Curtailing 
     any of these procedures would severely compromise TSA's 
     ability to guarantee a safe workplace and assure the 
     traveling public of the uniformly high caliber of its TSO 
     workforce. Ironically, it would also create a situation in 
     which non-TSO employees could be removed from the payroll 
     much more rapidly than TSO employees who directly affect 
     security and customer service and interact daily with the 
     American public on a large scale.
       Nor do the amendment's proposed restrictions on TSO 
     activities provide much comfort. The amendment states 
     explicitly that TSOs could not bargain over pay, but that is 
     no different from current law or section 803 of S. 4. 
     Moreover, the amendment specifically prohibits the right of 
     screeners to strike, but federal law already proscribes such 
     actions by each and every member of the federal workforce. 
     These provisions offer no more protection to the traveling 
     public than is found in existing law.
       Ultimately, the amendment is unnecessary in light of the 
     significant innovative programs that TSA has implemented to 
     provide for a high performing workforce. These steps include: 
     (1) a comprehensive Model Workplace program; (2) an Office of 
     Occupational Safety, Health, and Environment; (3) a Nurse 
     Care Management program to eliminate or reduce workplace 
     injuries; (4) National Advisory Councils that provide the TSO 
     workforce with direct access to the Administrator and senior 
     management on all issues concerning security and workforce 
     conditions; (5) procedures for Alternative Dispute 
     Resolution; (6) whistleblower protection through a formal 
     agreement with the Office of Special Counsel; (7) a Disputes 
     Resolution Board to provide additional review of workplace 
     grievances; and (8) an extensive on-line training program to 
     provide not only refresher training for TSOs and other TSA 
     employees, but also the bases for career advancement. The 
     recognition of these programs in a modified amendment would 
     provide an appropriate framework to resolve the ongoing 
     issues with section 803 and SA 316. I look forward to working 
     with the Members on this most critical matter.
       In the final analysis, the changes that SA 316 would make 
     to section 803 of S. 4 do not resolve the concerns expressed 
     in the Statement of Administration Policy dated February 28, 
     2007. As such, if section 803 is enacted in its current 
     format, or as amended by SA 316, the President's senior 
     advisors would continue to recommend that he veto the bill.
       An identical letter was sent to Chairman Lieberman.
           Sincerely,
                                                 Michael Chertoff,
                                                        Secretary.

  Ms. COLLINS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, there is no question that unions have 
these rights for TSO agents. This is a commonsense approach. What is 
not common sense is to put in jeopardy every traveling American for the 
sake of paying back a raw political debt. That is what this debate is 
about. Do we jeopardize safety, do we jeopardize the flexibility, do we 
jeopardize the fine work that has come from an incentivized system that 
has very low turnover now compared to the rest of the industry, that 
has a bonus system for great performance, a performance-based system, 
to give them what they need and not jeopardize the traveling American 
public? The McCaskill amendment actually hurts our flexibility and our 
security.
  As a matter of fact, we had a hearing after this bill was on the 
floor, wherein Mr. Hawley and Mr. Gage came before us and talked about 
union representation of the TSO officers. Very revealing statements 
were said, especially by Mr. Gage. When we raised concerns about 
flexibility during emergencies and complicated issues that required 
absolute flexibility to move people around at all times, it was the 
testimony of Mr. Hawley who said they have to plan, that they are in an 
emergency all the time, which means they have to have the flexibility 
all the time. Mr. Gage's response to that was: These are sometimes 
bogus emergency situations.
  Well, the reason we have had such an effective airline screening 
program is because we call everything an emergency and plan for it as 
an emergency, so we never have an emergency.
  This amendment will gut the flexibility of the TSA in doing the very 
thing we have asked them to do; that is, protect us and have an 
institution that is viable, responsive, and nimble to protect us, 
without having to have a shop steward ask them what we can do and when 
we can do it.
  Now, the McCaskill amendment says we will let you do that in an 
emergency, but the fact is, we are in an emergency mode all the time. 
So whatever contract we might have signed is not going to have any 
bearing anyway. So the contrast for the American public on this vote--
and we know this is going to be a party-line vote. Even those Members 
who want to vote the other way have been told not to vote the other 
way. We know this is a party-line vote about paying back, so Mr. Gage 
and his associates can have 40,000 people a month pay $30 a month to 
put $12 million to $17 million in the coffers of the employees union. 
That is what this is about.
  This is not about security for this country and flexibility with the 
TSA. I urge a vote against the McCaskill amendment and a vote for the 
Collins amendment.
  I yield the floor.
  The PRESIDING OFFICER. All time on this amendment has expired.
  The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I ask for the yeas and nays on my 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to amendment No. 316, as modified.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from South Dakota (Mr. 
Johnson) is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 51, nays 48, as follows:

                      [Rollcall Vote No. 64 Leg.]

                                YEAS--51

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold

[[Page 5681]]


     Feinstein
     Harkin
     Inouye
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Specter
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--48

     Alexander
     Allard
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Roberts
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--1

       
     Johnson
       
  The amendment (No. 316), as modified, was agreed to.
  Mr. LIEBERMAN. Mr. President, I move to reconsider the vote.
  Mr. NELSON of Nebraska. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 342

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided on amendment No. 342.
  Who yields time? The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, this is an attempt to find middle ground 
on a very difficult issue. The amendment that I and my colleagues offer 
the Senate would provide TSA employees with the right to appeal to the 
Merit Systems Protection Board any adverse action taken against them. 
Those rights would be identical to the rights that other Federal 
employees have. It would give them the protections of the 
Whistleblowers Protection Act. It recognizes that TSA employees have 
the right to join a union, and it calls for us to revisit this issue in 
a year by having a report from TSA and the GAO.
  I think this helps give more rights and employment protections to TSA 
employees without impeding the necessary flexibility that TSA needs to 
have for our security.
  I urge support of the amendment.
  The ACTING PRESIDENT pro tempore. The Senate will be in order. The 
Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, this is one of those rare occasions 
when the Senator from Maine and I disagree. I appreciate the fact that 
Senator Collins is trying to find a middle ground in this contentious 
debate. She gives the Transportation Screening Officers at TSA some 
employee rights but not the right to collectively bargain, which most 
employees in the Department of Homeland Security, and throughout our 
Government has. Presumably, the contention is that the right to 
collective bargaining would interfere with the security responsibility 
of the agencies, but TSA in the underlying bill and under Senator 
McCaskill's amendment would have absolute authority to take whatever 
actions are needed to carry out its mission in an emergency without 
bargaining with any units, without even considering any collective 
bargaining agreement.
  The fact is that Federal security forces generally have the right to 
collectively bargain: Border Patrol agents, immigration officers, 
Customs, Federal Protective Services, and the U.S. Capitol Police. 
Those collective bargaining rights do not interfere with their 
protection of our security, nor would those rights for TSOs at TSA.
  Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The question is on agreeing to amendment No. 342. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from South Dakota (Mr. 
Johnson) is necessarily absent.
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 47, nays 52, as follows:

                      [Rollcall Vote No. 65 Leg.]

                                YEAS--47

     Alexander
     Allard
     Bennett
     Bond
     Brownback
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Roberts
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--52

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Bunning
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Specter
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--1

       
     Johnson
       
  The amendment (No. 342) was rejected.
  Mr. LIEBERMAN. I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                             Change of Vote

  Mr. CORNYN. Mr. President, on rollcall vote 65, I voted ``nay,'' but 
it was my intention to vote ``yea.'' Therefore, I ask unanimous consent 
that I be permitted to change my vote, since it will not affect the 
outcome.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. I thank the Chair.
  (The foregoing tally has been changed to reflect the above order.)
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I rise to offer a unanimous consent 
request for the order of the speakers to follow. It would be, Senator 
Bunning of Kentucky be recognized for 5 minutes to call up an amendment 
and then set it aside; that Senator Schumer of New York then be 
recognized for up to 5 minutes to call up three amendments and set them 
aside; that Senator Kerry of Massachusetts be recognized for up to 10 
minutes to offer a tribute to former Senator Tom Eagleton; that Senator 
Graham of South Carolina be recognized for up to 15 minutes to speak on 
an amendment; that Senator Wyden and Senator Bond be recognized for up 
to 10 minutes to call up an amendment; that Senator Kyl be recognized 
for up to 5 minutes; and, finally, that Senator Landrieu be recognized 
for up to 10 minutes to do a tribute.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. LIEBERMAN. Excuse me. Is Senator Kyl for 5 minutes or 15 minutes? 
I said 5 minutes only because it is on my piece of paper as 5, but it 
is 15 minutes we want to give to Senator Kyl.
  The ACTING PRESIDENT pro tempore. The Senator from Maine.
  Ms. COLLINS. Mr. President, I do object at this time because we have 
not seen this agreement. It has not been discussed with the manager or 
the staff on this side. I do object, and I suggest the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. Objection is heard. Without 
objection, the clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BUNNING. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  Ms. COLLINS. Mr. President, I object.
  The ACTING PRESIDENT pro tempore. Objection is heard. The clerk will 
continue with the call of the roll.

[[Page 5682]]

  The assistant legislative clerk proceeded to call the roll.
  Ms. COLLINS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Ms. COLLINS. Mr. President, I am just going to make a brief statement 
before the Senator from Connecticut propounds the unanimous consent 
request. Now that I have seen the unanimous consent request, I am not 
going to object to it, but I do want to comment briefly on the two 
votes that we have just taken on the issue of the TSA employees.
  I think those votes were extremely unfortunate because everyone in 
this Chamber knows that the President is going to veto this important 
bill if the provisions remain in the bill as the Senate just voted.
  If that happens, it means the TSA employees will not receive the 
additional protections and rights that I advocated for in the amendment 
that I presented to the Senate. They will be back to a situation where 
they cannot appeal adverse employment actions to an independent agency, 
the Merit Systems Protection Board. They will be back in the situation 
where they cannot be protected by the Whistleblower Protection Act.
  It is unfortunate that the votes we have just taken will actually set 
back the cause of providing employee protections that the TSA screeners 
should have.
  I want to make sure that my colleagues are aware of what the 
practical implications and what the results will be of the votes just 
taken because there are clearly sufficient votes in this Chamber to 
sustain the President's veto, and I think it is very unfortunate that 
we are not going to be able to proceed to give these employees rights 
they deserve, rights they should have, and rights that would not impair 
our security.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I express my regrets to Senator Collins 
that she had not seen this list. I thought she had. We don't like to do 
it that way. It is a bipartisan list, as it turns out. I am going to 
propound a unanimous consent request again and do it in summary fashion 
without mentioning the topics again.
  I ask unanimous consent that the order of speakers be as follows: 
Senator Bunning for 5 minutes; Senator Schumer for 5 minutes; Senator 
Kerry for 10 minutes; Senator Graham for 15 minutes; Senator Wyden and 
Senator Bond to share 10 minutes; Senator Kyl for 15 minutes; and 
Senator Landrieu for 10 minutes. In each case, it is up to that amount. 
I know the Senate would be grateful if the Senators choose not to use 
the full amount of time.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. ALLARD. Mr. President, I would like to have permission to 
alternate between Republicans and Democrats. If I could be lined up to 
speak after--who was the first Democrat after Senator Bunning? Senator 
Schumer. If I may be allowed to speak next, I would appreciate it. I 
was lined up to speak at 2 o'clock originally, but we had the vote at 2 
o'clock and, obviously, that has been slid out now. If the Senator from 
Connecticut can move me in there, I would appreciate it. We have always 
alternated between Republicans and Democrats.
  Mr. LIEBERMAN. We have Republicans and Democrats running together. It 
is a totally nonpartisan list.
  Mr. ALLARD. All right. I was set up to speak at 2 o'clock, and then 
we had the vote at 2 o'clock.
  Mr. LIEBERMAN. There was no order for the Senator from Colorado to 
speak. How much time would the Senator like?
  Mr. ALLARD. Mr. President, 10 minutes. Senator Cornyn and I want to 
engage in a colloquy, and then I have a few comments. We just need 10 
minutes.
  Mr. LIEBERMANN. Mr. President, I amend the request for the Senator 
from Colorado, Mr. Allard, to have 10 minutes after Senator Schumer's 
10 minutes.
  Mr. ALLARD. I thank the Senator.
  The ACTING PRESIDENT pro tempore. Is there objection to the request, 
as modified? Without objection, it is so ordered.
  Under the unanimous consent agreement, the Senator from Kentucky is 
recognized.


                 Amendment No. 334 to Amendment No. 275

  Mr. BUNNING. Mr. President, I call up amendment No. 334 and ask for 
its immediate consideration.
  The ACTING PRESIDENT pro tempore. Is there objection to setting aside 
the pending amendment? Without objection, it is so ordered. The clerk 
will report the amendment.
  The assistant legislative clerk read as follows:

       The Senator from Kentucky [Mr. Bunning] proposes an 
     amendment numbered 334 to amendment No. 275.

  Mr. BUNNING. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

    (Purpose: To amend title 49, United States Code, to modify the 
         authorities relating to Federal flight deck officers)

       At the appropriate place, insert the following:

     SEC. ___. FEDERAL FLIGHT DECK OFFICERS.

       (a) In General.--Section 44921(a) of title 49, United 
     States Code, is amended to read as follows:
       ``(a) Establishment.--The Secretary of Homeland Security 
     shall establish the Federal flight deck officer program to 
     deputize eligible pilots as Federal law enforcement officers 
     to defend against acts of criminal violence or air piracy. 
     Such an officer shall be known as a `Federal flight deck 
     officer'.''.
       (b) Authority To Carry Firearms.--Section 44921(f) of title 
     49, United States Code, is amended to read as follows:
       ``(f) Authority To Carry Firearms.--
       ``(1) In general.--The Secretary shall authorize a Federal 
     flight deck officer to carry a firearm on the officer's 
     person. Notwithstanding subsection (c)(1), the officer may 
     purchase a firearm and carry that firearm in accordance with 
     this section if the firearm is of a type that may be used 
     under the program.
       ``(2) Preemption.--Notwithstanding any other provision of 
     Federal, State, or local law, a Federal flight deck officer 
     may carry a firearm in any State and from one State to 
     another State.
       ``(3) Carrying firearms outside united states.--
       ``(A) In general.--When operating to, from, or within the 
     jurisdiction of a foreign government where an agreement 
     allowing a Federal flight deck officer to carry or possess a 
     firearm is not in effect, a Federal flight deck officer shall 
     be designated as a Federal air marshal for the purposes of 
     complying with international weapons carriage regulations and 
     existing agreements with foreign governments. Nothing in this 
     paragraph shall be construed to allow Federal flight deck 
     officers to receive any other benefit of being so designated.
       ``(B) Requirement to negotiate agreements.--The Secretary 
     of State shall negotiate agreements with foreign governments 
     as necessary to allow Federal flight deck officers to carry 
     and possess firearms within the jurisdictions of such foreign 
     governments for protection of international flights against 
     hijackings or other terrorist acts. Any such agreements shall 
     provide Federal flight deck officers the same rights and 
     privileges accorded Federal air marshals by such foreign 
     governments.
       ``(4) Description of authority and procedures.--The 
     authority of a Federal flight deck officer to carry a firearm 
     shall be identical to such authority granted to any other 
     Federal law enforcement officer under Federal law. The 
     operating procedures applicable to a Federal flight deck 
     officer relating to carrying such firearm shall be no more 
     restrictive than the restrictions for carrying a firearm that 
     are generally imposed on any other Federal law enforcement 
     officer who has statutory authority to carry a firearm.
       ``(5) Locked devices.--
       ``(A) No requirement to use.--A Federal flight deck officer 
     may not be required to carry or transport a firearm in a 
     locked bag, box, or container.
       ``(B) Requirement to provide.--Upon request of a Federal 
     flight deck officer, the Secretary shall provide a secure 
     locking device or other appropriate container for storage of 
     a firearm by the Federal flight deck officer.''.
       (c) Due Process.--Section 44921 of title 49, United States 
     Code, is amended by adding at the end the follow new 
     subsection:
       ``(l) Due Process.--Not later than 90 days after the date 
     of enactment of the Improving America's Security Act of 2007, 
     the Secretary shall establish procedures for the appeal of 
     adverse decisions or actions. Such procedures shall provide 
     timely notice of the action or decision, including specific 
     reasons for the action or decision.''.

[[Page 5683]]

       (d) Identification and Screening.--Section 44921 of title 
     49, United States Code, as amended by subsection (c), is 
     further amended by adding at the end the following new 
     subsections:
       ``(m) Credentials.--The Secretary shall issue to each 
     Federal flight deck officer standard Federal law enforcement 
     credentials, including a distinctive metal badge, that are 
     similar to the credentials issued to other Federal law 
     enforcement officers.
       ``(n) Security Inspections.--A Federal flight deck officer 
     may not be subject to greater routine security inspection or 
     screening protocols at or in the vicinity of an airport than 
     the protocols that apply to other Federal law enforcement 
     officers.''.
       (e) Reports to Congress.--Section 44921 of title 49, United 
     States Code, as amended by subsections (c) and (d), is 
     further amended by adding at the end the following new 
     subsection:
       ``(o) Reports to Congress.--
       ``(1) Reports on program.--Not less often than once every 6 
     months, the Secretary, in consultation with the Secretary of 
     State, shall report to Congress on the progress that the 
     Secretary of State has made in implementing international 
     agreements to permit Federal flight deck officers to carry 
     firearms on board an aircraft operating within the 
     jurisdiction of a foreign country.
       ``(2) Report on training.--Not later than 90 days after the 
     date of enactment of the Improving America's Security Act of 
     2007, the Secretary shall report to Congress on the issues 
     raised with respect to training in Department of Homeland 
     Security Office of Inspector General report OIG-07-14 that 
     includes proposals to address the issues raised in such 
     report.''.
       (f) Conforming and Other Amendments.--Section 44921 of 
     title 49, United States Code, as amended by sections (c), 
     (d), and (e), is further amended--
       (1) by striking ``Under Secretary'' each place it appears 
     and inserting ``Secretary''; and
       (2) by striking subparagraph (G) of subsection (b)(3).

  Mr. BUNNING. Mr. President, this amendment makes changes in the 
implementation of the Federal Flight Deck Officer Program, commonly 
referred to as the Armed Pilot Program, to require the Department of 
Homeland Security to implement the package and program as Congress 
originally intended.
  Four years after Congress created this program, the Department of 
Homeland Security continues to drag its heels on providing flight deck 
officers, commonly known as FFDOs, or armed pilots, with the necessary 
tools to prevent another September 11-type attack.
  My amendment will ensure that all armed pilots can truly act as a 
real defense against hijacking on commercial flights.
  This amendment would end the ridiculous practice of forcing armed 
pilots to carry their guns in lockboxes and would allow them to carry 
the guns on their body where the gun is easily reachable and more 
discrete to carry.
  No other Federal law enforcement officer is forced to carry a firearm 
in a lockbox, and Federal law enforcement officials agree that carriage 
on the body of an officer is the best way for law enforcement officials 
to carry a firearm to ensure that the threat can be stopped in the 
safest way possible.
  In addition to putting more armed pilots in the skies, this amendment 
would also put armed pilots on international flights.
  The current law for the Armed Pilot Program allows pilots on these 
flights, but so far the State Department has been slow on entering into 
negotiations with other countries to allow this to occur.
  My amendment requires the State Department to negotiate agreements 
with other governments to get armed pilots on international flights. 
Over the last few years, many international flights have been canceled 
because of terrorist threats.
  This amendment will also allow armed pilots to protect the flights of 
U.S. airlines and free up air marshals so they can be put on targeted 
foreign flights that we know terrorists are targeting.
  This amendment also provides for the issuance of a metal badge for 
armed pilots so they can easily be identified in a crisis situation.
  It is important to make sure that these pilots have a means to 
identify themselves so that air marshals and other passengers know who 
they are and that they are lawfully carrying a firearm.
  It also requires TSA to give armed pilots the same screening 
protocols other Federal law enforcement officers have so that the 
terrorists cannot easily identify them at security checkpoints.
  Under current TSA requirements, all armed pilots must be screened 
publicly in plain view of everyone at the security checkpoint, as 
opposed to Federal law enforcement officers who are screened behind 
closed doors.
  Finally, this amendment would give pilots basic due process. It 
requires the Department of Homeland Security to establish procedures to 
give notice and appeal rights when making any decision against the 
pilots. Currently, the pilots have no recourse.
  I believe these changes that update the law governing the Federal 
Flight Deck Officer Program are vital and are needed to ensure that 
this voluntary program runs as it was intended to run and would 
encourage more pilots to enter into it.
  I have spoken many times in the past on the merits of this program 
and the need for it. It has saddened me that I must once again be 
forced to ask TSA to start implementing this program as it was 
originally intended. Once again, we must be forcing TSA's hand to get 
enough pilots armed to actually create a strong defense against 
terrorists in the air. We currently have the opportunity to speed this 
program up and force TSA to do what Congress intended by adopting my 
amendment.
  I urge my colleagues to join me in passing this amendment.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from New York is recognized for up to 5 minutes.


Amendments Nos. 367, as Modified, and 366 En Bloc, to Amendment No. 275

  Mr. SCHUMER. Mr. President, I wish to congratulate the managers of 
the bill. We have made good progress on this bill, something that has 
taken far too long to accomplish since the Commission's report.
  Next, I would like to offer two amendments to this bill, which I 
filed in an attempt to strengthen certain provisions. The committee 
versions of the bill make significant strides in several areas of 
security, including improving truck security, and I offer a modified 
version of No. 367 and the original, No. 366. Two amendments.
  The ACTING PRESIDENT pro tempore. Without objection, the clerk will 
report the amendments.
  The legislative clerk read as follows:

       The Senator from New York [Mr. Schumer] proposes amendment 
     number 367, as modified, and amendment number 366, en bloc, 
     to amendment No. 275.

  Mr. SCHUMER. Mr. President, I ask unanimous consent that the reading 
of the amendments be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendments (Nos. 367, as modified, and 366) are as follows:


                     AMENDMENT NO. 367, AS MODIFIED

       On page 303, strike line 12 and all that follows through 
     page 305, line 18, and insert the following:
     of Transportation, shall develop a program to facilitate the 
     tracking of motor carrier shipments of high hazard materials, 
     as defined in this title, and to equip vehicles used in such 
     shipments with technology that provides--
       (A) frequent or continuous communications;
       (B) vehicle position location and tracking capabilities; 
     and
       (C) a feature that allows a driver of such vehicles to 
     broadcast an emergency message.
       (2) Considerations.--In developing the program required by 
     paragraph (1), the Secretary shall--
       (A) consult with the Secretary of Transportation to 
     coordinate the program with any ongoing or planned efforts 
     for motor carrier or high hazardous materials tracking at the 
     Department of Transportation;
       (B) take into consideration the recommendations and 
     findings of the report on the Hazardous Material Safety and 
     Security Operation Field Test released by the Federal Motor 
     Carrier Safety Administration on November 11, 2004; and
       (C) evaluate--
       (i) any new information related to the cost and benefits of 
     deploying and utilizing tracking technology for motor 
     carriers transporting high hazard materials not included in 
     the Hazardous Material Safety and Security Operation Field 
     Test Report released by

[[Page 5684]]

     the Federal Motor Carrier Safety Administration on November 
     11, 2004;
       (ii) the ability of tracking technology to resist tampering 
     and disabling;
       (iii) the capability of tracking technology to collect, 
     display, and store information regarding the movement of 
     shipments of high hazard materials by commercial motor 
     vehicles;
       (iv) the appropriate range of contact intervals between the 
     tracking technology and a commercial motor vehicle 
     transporting high hazard materials;
       (v) technology that allows the installation by a motor 
     carrier of concealed electronic devices on commercial motor 
     vehicles that can be activated by law enforcement authorities 
     to disable the vehicle and alert emergency response resources 
     to locate and recover high hazard materials in the event of 
     loss or theft of such materials; and
       (vi) whether installation of the technology described in 
     clause (v) should be incorporated into the program required 
     by paragraph (1).
       (b) Regulations.--Not later than 1 year after the date of 
     the enactment of this Act, the Secretary, through the 
     Transportation Security Administration, shall promulgate 
     regulations to carry out the provisions of subsection (a).
       (c) Funding.--There are authorized to be appropriated to 
     the Secretary to carry out this section, $7,000,000 for each 
     of fiscal years 2008, 2009, and 2010, of which--
       (1) $3,000,000 per year may be used for equipment; and
       (2) $1,000,000 per year may be used for operations.


                           Amendment No. 366

     (Purpose: To restrict the authority of the Nuclear Regulatory 
   Commission to issue a license authoring the export to a recipient 
   country of highly enriched uranium for medical isotope production)

       At the appropriate place, insert the following:

     SEC. __. MEDICAL ISOTOPE PRODUCTION.

       Section 134 b. of the Atomic Energy Act of 1954 (42 U.S.C. 
     2160d(b)) is amended--
       (1) in paragraph (1), by striking subparagraph (D);
       (2) by striking paragraph (2);
       (3) in paragraph (3), by striking ``paragraph (2)'' and 
     inserting ``this section'';
       (4) in paragraph (4)--
       (A) in subparagraph (A)(iv), by striking ``cost 
     differential in medical isotope production in the reactors 
     and target processing facilities if the products'' and 
     inserting ``cost differential of radiopharmaceuticals to 
     patients if the radiopharmaceuticals''; and
       (B) by striking subparagraph (B) and inserting the 
     following:
       ``(B) Feasibility.--For the purpose of this subsection, the 
     use of low enriched uranium to produce medical isotopes shall 
     be determined to be feasible if it could be accomplished 
     without a large percentage increase in the cost of 
     radiopharmaceuticals to patients.'';
       (5) in paragraph (5), by striking ``(4)(B)(iii)'' and 
     inserting ``(4)(B)'';
       (6) in paragraph (6), by striking ``(4)(B)(iii)'' and 
     inserting ``(4)(B)''; and
       (7) in paragraph (7), by striking ``subsection'' and 
     inserting ``section for highly enriched uranium for medical 
     isotope production''.

  Mr. SCHUMER. Mr. President, I offer the first amendment, No. 367, to 
make the provision in the underlying committee bill even stronger with 
a new program to address trucks carrying high-hazard materials. Every 
day there are trucks that carry high-HAZMAT materials. If a truck is 
hijacked by a terrorist, it could spell disaster. We need to take 
action to prevent this from happening, and that is why my amendment 
will create a system not only to track these high-hazard trucks but to 
take action to stop a truck in its tracks by shutting down its engine 
if it strays off course.
  This has worked in other countries. My amendment will require the 
Department of Transportation and TSA to work together to create a 
system to track these trucks, as well as respond accordingly if there 
is a problem. Every one of these trucks must submit a predetermined 
route to the TSA. If a truck strays from its plan, and we will know 
this by tracking its movements, which GSA allows, TSA is automatically 
alerted and the system quickly responds.
  As I said, we know a system such as this can work. It has been 
implemented in other countries. Hazardous material in trucks is one of 
the issues we have not dealt with sufficiently since 9/11. I look 
forward to the committee's receptiveness to this amendment and to 
working with the chair and ranking member to see if we can adopt this 
amendment. This is an important step.
  The second amendment I offer, No. 366, along with my colleague, 
Senator Kyl, will restore export restrictions on highly enriched 
uranium to reduce risks of terrorists obtaining this material to make 
nuclear weapons. Highly enriched uranium, HEU, can be used to make 
actual nuclear weapons, such as that dropped on Hiroshima, not just 
dirty bombs.
  Until 2005, U.S. law restricted exports of bomb-grade uranium. 
However, this antiterrorism policy was undercut by an ill-considered 
amendment to the Energy Policy Act that eliminated these restrictions. 
By increasing the amount of HEU in circulation around the world, the 
Energy bill created an unacceptable risk by heightening the possibility 
that weapons-grade uranium could be lost or stolen and fall into the 
hands of terrorists with known nuclear ambitions. What made this 
language so astonishing is that it created much more risk without 
absolutely any reward by claiming to fix a problem that didn't exist.
  The reality of this situation is that terrorists don't care if the 
weapons-grade uranium they try to get their hands on was meant for 
medical or military use. We know all they care about is how they can 
use it to attack our Nation and our way of life. If we have learned 
anything since September 11, it is we must take every step to ensure 
terrorists can never lay their hands on the materials they would need 
to launch an attack of mass destruction against the United States.
  I urge my colleagues to support both these amendments. I hope we can 
work with the committee to get them accepted.
  Mr. President, with that, in deference to my colleagues, I yield the 
remainder of my time.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Colorado is recognized for up to 10 minutes.


                           Amendment No. 272

  Mr. ALLARD. Mr. President, I rise today to speak in support of my 
amendment No. 272 to the Improving America's Security Act, and I 
believe it will do that, improve America's security.
  We have a rampant problem of identity theft in this country. Identity 
theft not only affects innocent victims, it poses a security threat to 
our country. As the 9/11 Commission put it: ``Fraud in identification 
documents is no longer just a problem of theft.''
  We have long been aware that failure to protect the integrity of the 
SSN has enormous financial consequences for the Government, the people, 
and the business community. We now know that shortcomings in the SSN 
issuance process can have far graver consequences than previously 
imagined. The difficult lessons of September 11, 2001 have taught us 
that SSA can no longer afford to operate from a ``business as usual'' 
perspective. Whatever the cost, whatever the sacrifice, we must protect 
the number that has become our national identifier; the number that is 
the key to social, legal, and financial assimilation in this country.
  We recognize SSA alone cannot resolve the monumental issues 
surrounding homeland security. Efforts to make our Nation safer will 
involve new or expanded initiatives by almost every segment of our 
population, including State and local governments, private industry, 
nongovernmental organizations, and citizens. However, we also recognize 
that, in endeavoring to protect our homeland, no Government system or 
policy should be ignored. As such, SSA, as a Federal agency and public 
servant, must resolve to review its systems and processes for 
opportunities to prevent the possibility that anyone might commit or 
camouflage criminal activities against the United States. We believe 
SSN integrity is a link in our homeland security goal that must be 
strengthened.
  The 9/11 Commission went on to note: `` . . . all but one of the 9/11 
hijackers acquired some form of U.S. identification document, some by 
fraud.''
  I have here an inspector general's report, inspector general for the 
Social Security Administration, and he is talking about the integrity 
of the Social Security number. He says an important link in homeland 
security is the Social Security number. To specifically quote him, he 
says:


[[Page 5685]]

       The difficult lessons of September 11, 2001, has taught us 
     that the Social Security Administration can no longer afford 
     to operate from a business-as-usual perspective. Whatever the 
     cost, whatever the sacrifice, we must protect the number that 
     has become our national identifier, the number that is the 
     key to social, legal, and financial assimilation in this 
     country.

  He went on to say in his report:

       We believe the Social Security number integrity is a link 
     in our homeland security goal that must be strengthened.

  For every case of identity theft, there is a thief. We have to ask 
ourselves: Why would someone want to steal somebody else's identity? 
After all, every person has an identity of their own. Why would 
somebody be so dissatisfied with their own identity that they deem it 
necessary to steal from another? The answer to that question is simple: 
They have something to hide. For many, the fact they are trying to hide 
is that they are in this country illegally. Whether someone is here 
illegally in pursuit of work or to carry out the work of an 
international terrorist organization remains anyone's guess.
  What we do know, however, is that there are clear signs of when an 
identity has been stolen. One obvious sign is when multiple people are 
using the same Social Security number. By law, every Social Security 
number has only one true owner. It follows, if 10 people are using the 
same Social Security number, 9 of them are thieves: 9 of them have 
something to hide.
  One common use of Social Security numbers is for reporting earnings. 
And where are earnings reported? Earnings are reported to the Social 
Security Administration. That means that when multiple people are 
reporting to the Social Security Administration using the same Social 
Security number, the Social Security Administration has information in 
its possession relating to the crime of identity theft.
  What does the Social Security Administration do? Absolutely nothing. 
It is prohibited from sharing their information with others in our own 
Federal Government, such as the Secretary of Homeland Security.
  I believe it is an example of what the 9/11 Commission described as, 
and I quote from the Commission:

       The pervasive problem of managing and sharing information 
     across a large and unwieldy government that had been built in 
     a different era to confront different dangers.

  In January of this year, a bipartisan group of Senators and I met 
with Secretary Chertoff on this very issue. Secretary Chertoff 
explained that, under current law, Government agencies are prevented 
from sharing information with one another that, if shared, could expose 
cases of identity theft.
  My amendment tears down the wall that prevents the sharing of 
existing information among Government agencies and permits the 
Commissioner of Social Security to share information with the Secretary 
of Homeland Security where such information is likely to assist in 
discovering identity theft, Social Security number misuse or violations 
of immigration law.
  Specifically, it requires the Commissioner to inform the Secretary of 
Homeland Security upon discovery of a Social Security account number 
being used with multiple names or where an individual has more than one 
person reporting earnings for him or her during a single tax year.
  It seems logical that we would already be doing this, but we are not. 
In the meantime, we are effectively enabling thieves to continue to 
perpetrate the crime of identity theft.
  In addition to the national security implications, for every case of 
identity theft there is an innocent victim.
  Innocent victims like Connecticut resident John Harrison who had his 
active duty military ID and Social Security number stolen. The thief 
ran up an over $260,000 debt and opened 61 credit or bank accounts in 
the victim's name. Meanwhile the victim lost his job and the military 
decreased his retirement pay because Phillips had run up a debt owed to 
the U.S. Government.
  Connecticut resident John Harrison is not alone, In fact, for the 
seventh year in a row, with nearly 250,000 complaints, identity theft 
is the No. 1 complaint received by the FTC from Connecticut residents. 
Likewise, for the State of Maine, 2006 marked the seventh year in a row 
that identity theft complaints topped the Federal Trade Commission's 
Annual ``List of Top Consumer Complaints.''
  Even my home State of Colorado is no stranger to identity theft. With 
4,535 victims in 2005, we are ranked 5th in identity theft--behind only 
Arizona, Nevada, California, and Texas.
  For instance, an 84-year-old Grand Junction woman was deemed 
ineligible for Federal housing assistance because her Social Security 
number was being used at a variety of jobs in Denver, making her income 
too high to qualify.
  Unfortunately, for the victims of identity theft, by the time the 
identity theft is discovered, the damage has already been done. Yet 
when the Social Security Administration has reason to believe that a 
Social Security number is being used fraudulently, they are prevented 
from sharing it with the Department of Homeland Security. Withholding 
this information effectively enables thieves to continue to perpetrate 
the crime of identity theft against innocent victims.
  By simply sharing information related to the fraudulent use of Social 
Security numbers among Government agencies, cases of identity theft 
could be discovered much sooner. Victims of identity theft deserve to 
have this existing information acted on, and my amendment allows this.
  Senator Cornyn, who is on the floor with me, was at the meeting where 
Secretary Chertoff explained the problems with the Social Security 
numbers and DHS not being notified so that they could take law 
enforcement actions against such acts as a terrorist threat.
  I wonder if Senator Cornyn would give me his impression.
  Mr. CORNYN. Mr. President, will the Senator yield for a question?
  Mr. ALLARD. I will be glad to yield.
  Mr. CORNYN. Would the Senator from Colorado tell us what portion of 
the population is sort of disproportionately affected by this identity 
theft, particularly when it involves Social Security numbers?
  Mr. ALLARD. A large portion of the population that is affected by the 
Social Security theft identification is the older population, those 
individuals on Social Security. The impact it is going to have on them 
is immediate in some cases because they are qualifying for a certain 
amount of Social Security based on the income that may be coming. If 
somebody else is using their Social Security number, that exceeds, 
perhaps, what allowances they may have to qualify for the Social 
Security benefits. If an individual has a job, then the effect is felt 
much later on.
  The retired individuals of this country are most dramatically 
affected in this regard.
  Mr. CORNYN. Mr. President, I ask the Senator from Colorado whether he 
is aware that the Federal Trade Commission has identified the top 10 
States where identity theft is the biggest problem and that they have 
ranked Arizona as No. 1; and Nevada, the State represented by the 
majority leader; California; and Texas, No.4; and then Colorado at No. 
5.
  Is the Senator aware that the Federal Trade Commission has ranked 
those States as the top five States where identity theft is the biggest 
problem.
  Mr. ALLARD. I thank the Senator from Texas for his question, and, 
yes, I am very much aware of that. Those States are disproportionately 
affected because of the overpopulation they have within their 
boundaries.
  Mr. CORNYN. Is the Senator from Colorado aware there are those who 
will purchase bogus documents on the black market--basically for 
purposes of evading and breaking our immigration laws so they can 
purport to be someone whom they are not--and whether this, in his 
opinion, represents a security risk to the United States.
  Mr. ALLARD. That is one of the problems we are facing today and one 
of the problems that Secretary Chertoff of Homeland Security pointed 
out. It is vital that we be able to identify duplicate uses of Social 
Security numbers because a number of the terrorists that were here on 
9/11, attacking this country, were here under

[[Page 5686]]

fraudulent IDs. It is an important aspect of law enforcement, and 
particularly homeland security, to be able to carry on their 
responsibilities.
  Mr. CORNYN. Finally, Mr. President, I would like to ask the Senator 
whether this isn't exactly the kind of stovepipe or wall that the 9/11 
Commission talked about when it comes to information sharing between 
law enforcement and intelligence agencies. Isn't this exactly the same 
kind of information sharing they found so important to protecting the 
security of our Nation?
  Mr. ALLARD. Well, it is the very thing the 9/11 Commission was 
pointing out that is a problem with protecting the citizens of this 
country, the stovepiping of information among the various agencies and 
where there is no passing of information back and forth.
  This is a classic example where one agency, in this case the Social 
Security Administration, has a number, and they know it is being used 
more than once throughout the country, yet nobody gets notified; it 
stays within the Social Security Administration. Even those law 
enforcement agencies within Homeland Security cannot get that 
information to act on it.
  Secretary Chertoff said an important part of being able to carry out 
our function to ensure the security of this country is to get that 
information. Yet right now, the law explicitly prohibits the Social 
Security Administration from sharing that information with Homeland 
Security.
  I think it is a problem that needs to be corrected, and the sooner we 
can correct that, the better.
  Mr. CORNYN. I thank the Senator, and I support his amendment.
  Mr. ALLARD. Mr. President, let me summarize my comments by saying I 
think it is important, in ensuring the security of this country, that 
we pass this amendment. Without the sharing of that information between 
the various agencies, it is going to be possible for anybody who comes 
into this country illegally, terrorists especially, to stay within this 
country and operate in a way where they are not discovered. We want to 
have law enforcement become aware of the presence of somebody here 
illegally, particularly if they are a terrorist. If their intention is 
to either destroy a building or to lay a bomb out somewhere, they are a 
real threat to this country.
  I urge my colleagues to join me in supporting this amendment.
  The PRESIDING OFFICER (Mr. Sanders). The Senator from Massachusetts 
is recognized for 10 minutes.
  (The remarks of Mr. Kerry are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I ask unanimous consent to set aside the 
earlier unanimous consent request so I can offer the Wyden-Bond 
amendment at this time.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 348 to Amendment No. 275

  Mr. WYDEN. Mr. President, I offer this amendment with the 
distinguished vice chairman of the Senate Select Committee on 
Intelligence. I thank him for the many hours he and his staff have put 
in, working with me on this amendment.
  The purpose of the legislation before the Senate today is 
straightforward: to apply what has been learned from one of the 
greatest tragedies in American life in order to better protect the 
American people in the days ahead. One of the tragic lessons of 9/11 is 
what we do not know can hurt us, and hurt us badly.
  Because of the outstanding work of the 9/11 Commission, extensive 
information about what went wrong has been made public. The national 
security community has learned from a number of its mistakes, and today 
is taking concrete steps to make sure what happened on September 11, 
2001, does not happen again. There has been a variety of reports that 
have been issued, critical to our understanding of what happened that 
tragic day. The bipartisan 2002 Joint Congressional Inquiry, on which I 
was privileged to serve, is one example, as well as the Department of 
Justice's report on FBI accountability.
  There is one essential report that has remained classified. Nearly 2 
years ago, the CIA inspector general submitted a report detailing CIA 
accountability in the runup to the 9/11 attacks. I am sure that some 
may and will consider a number of the inspector general's findings 
unsettling, perhaps embarrassing, but the report is of high quality and 
it is comprehensive. The CIA inspector general has provided this 
country with an important perspective on one of the defining moments in 
American history, and I believe the public has a right to know what 
went wrong at the CIA, so we can make sure those mistakes are not 
repeated.
  I have spent more than a year working on a bipartisan basis with our 
friend from Missouri, the previous chairman of the Senate Intelligence 
Committee, Senator Roberts, to make an unclassified version of this 
report available to the public. I have repeatedly asked the 
intelligence community to redact any sensitive national security 
information in the report's executive summary so that it could be 
declassified. I have been joined in these efforts, in addition to the 
assistance Senator Bond has provided, by the current chairman, Senator 
Rockefeller. I have already mentioned the help of Chairman Roberts for 
some substantial length of time.
  Multiple CIA Directors, as well as the former Director of National 
Intelligence, regrettably have not been willing to cooperate. Why the 
leaders of the CIA have been so reluctant to cooperate is not clear to 
me. Neither former Director Goss nor Director Hayden nor Ambassador 
Negroponte have ever provided a valid reason for keeping the report, 
the entire report, classified. In fact, there is no good reason why the 
CIA cannot declassify this report. The executive summary is concise, 
and it contains little information about CIA sources and methods. It 
could be redacted and released quickly. That information is in the 
interests of the American people.
  The amendment, the bipartisan amendment we offer today, would require 
the Director of the CIA to declassify the executive summary of the 
inspector general's report on 9/11, removing only that information 
which must be redacted to protect this country's national security. The 
amendment requires the Director do this within 30 days. I think anyone 
who has read the report would agree that this is more than enough time.
  I am pleased that the bipartisan leadership of the Senate 
Intelligence Committee, Senator Rockefeller and Senator Bond, join me 
as cosponsors of the legislation.
  The American people have a right to know what is in this report. Some 
of the findings may be unpleasant, others may be a source of pride, but 
at the end of the day the American people have a right to know about 
how the Central Intelligence Agency performed at a critical moment in 
this country's history. We need that information made public so as to 
ensure that there is true accountability. September 11, 2001, is part 
of this country's history. To hide the truth from the American people 
is unacceptable.
  I urge the adoption of this amendment.
  I see my friend from Missouri and thank him again for his patience 
during the many hours our staffs have been working on a bipartisan 
basis.
  Mr. President, I ask unanimous consent to call up the amendment at 
this time.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
set aside.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from Oregon [Mr. Wyden], for himself, Mr. Bond, 
     and Mr. Rockefeller, proposes an amendment numbered 348 to 
     amendment No. 275.

  Mr. WYDEN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

[[Page 5687]]



 (Purpose: To require that a redacted version of the Executive Summary 
   of the Office of Inspector General Report on Central Intelligence 
 Agency Accountability Regarding Findings and Conclusions of the Joint 
  Inquiry into Intelligence Community Activities Before and After the 
   Terrorist Attacks of September 11, 2001 is made available to the 
                                public)

       At the appropriate place, insert the following:

     SEC. ___. AVAILABILITY OF THE EXECUTIVE SUMMARY OF THE REPORT 
                   ON CENTRAL INTELLIGENCE AGENCY ACCOUNTABILITY 
                   REGARDING THE TERRORIST ATTACKS OF SEPTEMBER 
                   11, 2001.

       (a) Public Availability.--Not later than 30 days after the 
     date of the enactment of this Act, the Director of the 
     Central Intelligence Agency shall prepare and make available 
     to the public a version of the Executive Summary of the 
     report entitled the ``Office of Inspector General Report on 
     Central Intelligence Agency Accountability Regarding Findings 
     and Conclusions of the Joint Inquiry into Intelligence 
     Community Activities Before and After the Terrorist Attacks 
     of September 11, 2001'' issued in June 2005 that is 
     declassified to the maximum extent possible, consistent with 
     national security.
       (b) Report to Congress.--The Director of the Central 
     Intelligence Agency shall submit to Congress a classified 
     annex to the redacted Executive Summary made available under 
     subsection (a) that explains the reason that any redacted 
     material in the Executive Summary was withheld from the 
     public.

  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my good friend from Oregon for his 
persistence in pursuing something we both agree should and must be 
disclosed and made public, to the extent it can consistent with 
national security. Accountability for one's actions is something most 
of us are taught from childhood. It is rooted not only in religious 
teachings but also in the tenets of government at the Federal, State, 
and local levels.
  For those of us in public service, whether we be in an elected 
capacity or appointed position or some form of service directly related 
to the security of our Nation, we should know we must expect to be held 
accountable for our actions. When we serve the people and if we expect 
the rewards of doing good deeds, just as surely we should face the 
negative consequences of actions which do not turn out well.
  In addition, the public, to the maximum extent possible consistent 
with national security, should have made available to it the findings 
and the conclusions of the Government's own agencies with regard to 
accountability.
  As my colleague from Oregon has stated, in June of 2005 the Office of 
Inspector General of the Central Intelligence Agency published a report 
concerning the conduct of intelligence activities prior to September 
11, 2001, and afterward. To this date, that report remains classified. 
The amendment Senator Wyden and I propose requires the CIA to make as 
much of that report public as is possible, consistent with protecting 
the sensitive sources and methods relating to our national security.
  The Senator from Oregon has referred to the 9/11 Commission, the 
joint congressional inquiry. Our Senate Select Committee on 
Intelligence spent 2 very intense years, 2003 and 2004, doing an 
extensive investigation of what the intelligence was, how it was 
formulated, what the problems were, and we found that there were 
tremendous holes in it. So much of what would be found in the inspector 
general's report has already been stated. But I think to make the 
record clear and complete, so that we may ensure that all of the 
agencies working on national intelligence have the ability to learn 
from the mistakes--and we in our role as the oversight committee will 
use the information in this report and on this floor, if need be--to 
point out how we can make our intelligence better.
  In an age where the war on terrorism has been brought to us by 
radical Islamic groups who continue to threaten us, good intelligence 
is the only defense we have adequate to the threat we face. It is 
important that we get it right.
  Now, it is not pleasant to air some of these mistakes. We all make 
mistakes, but we better learn from them or we are destined to commit 
them again.
  I thank my colleague from Oregon.
  Mr. President, I ask unanimous consent to temporarily set aside this 
amendment so that I may offer a Rockefeller-Bond amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 389 to Amendment No. 275

  Mr. BOND. I send to the desk an amendment and ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Missouri [Mr. Bond], for himself and Mr. 
     Rockefeller, proposes an amendment numbered 389 to amendment 
     No. 275.

  Mr. BOND. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The amendment is as follows:

  (Purpose: To provide the sense of the Senate that the Committee on 
Homeland Security and Governmental Affairs and the Select Committee on 
       Intelligence of the Senate should submit a report on the 
  recommendations of the 9/11 Commission with respect to intelligence 
        reform and congressional intelligence oversight reform)

       At the appropriate place, insert the following:

     SEC. __. SENSE OF THE SENATE REGARDING A REPORT ON THE 9/11 
                   COMMISSION RECOMMENDATIONS WITH RESPECT TO 
                   INTELLIGENCE REFORM AND CONGRESSIONAL 
                   INTELLIGENCE OVERSIGHT REFORM.

       (a) Findings.--Congress makes the following findings:
       (1) The National Commission on Terrorist Attacks Upon the 
     United States (referred to in this section as the ``9/11 
     Commission'') conducted a lengthy review of the facts and 
     circumstances relating to the terrorist attacks of September 
     11, 2001, including those relating to the intelligence 
     community, law enforcement agencies, and the role of 
     congressional oversight and resource allocation.
       (2) In its final report, the 9/11 Commission found that--
       (A) congressional oversight of the intelligence activities 
     of the United States is dysfunctional;
       (B) under the rules of the Senate and the House of 
     Representatives in effect at the time the report was 
     completed, the committees of Congress charged with oversight 
     of the intelligence activities lacked the power, influence, 
     and sustained capability to meet the daunting challenges 
     faced by the intelligence community of the United States;
       (C) as long as such oversight is governed by such rules of 
     the Senate and the House of Representatives, the people of 
     the United States will not get the security they want and 
     need;
       (D) a strong, stable, and capable congressional committee 
     structure is needed to give the intelligence community of the 
     United States appropriate oversight, support, and leadership; 
     and
       (E) the reforms recommended by the 9/11 Commission in its 
     final report will not succeed if congressional oversight of 
     the intelligence community in the United States is not 
     changed.
       (3) The 9/11 Commission recommended structural changes to 
     Congress to improve the oversight of intelligence activities.
       (4) Congress has enacted some of the recommendations made 
     by the 9/11 Commission and is considering implementing 
     additional recommendations of the 9/11 Commission.
       (5) The Senate adopted Senate Resolution 445 in the 108th 
     Congress to address some of the oversight recommendations of 
     the 9/11 Commission by abolishing term limits for the members 
     of the Select Committee on Intelligence, clarifying 
     jurisdiction for intelligence-related nominations, and 
     streamlining procedures for the referral of intelligence-
     related legislation, but other aspects of the 9/11 Commission 
     recommendations regarding oversight have not been 
     implemented.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that the Committee on Homeland Security and Governmental 
     Affairs and the Select Committee on Intelligence of the 
     Senate each, or jointly, should--
       (1) undertake a review of the recommendations made in the 
     final report of the 9/11 Commission with respect to 
     intelligence reform and congressional intelligence oversight 
     reform;
       (2) review and consider any other suggestions, options, or 
     recommendations for improving intelligence oversight; and
       (3) not later than December 21, 2007, submit to the Senate 
     a report that includes the recommendations of the Committee, 
     if any, for carrying out such reforms.

  Mr. BOND. Mr. President, I thank the Chair, and I ask that the 
postponed recognition of the distinguished Senator from South Carolina 
now be instituted. I express my gratitude to him for allowing us to go 
forward with the intervening amendment.
  The PRESIDING OFFICER. The Senator from South Carolina.

[[Page 5688]]




                           Amendment No. 286

  Mr. GRAHAM. Mr. President, I would like to thank Senator Lieberman 
for working me into the line here. What I am rising to talk about is a 
very important issue for how we conduct this war, for how the law works 
in a time of war, for the values Americans would like to embrace when 
we are under siege as a nation, and try to give my explanation to what 
Senator Specter's amendment would do and why I oppose it so vehemently.
  To give a little background and history of this issue, at least from 
my perspective--and I would ask every Senator to look at this very 
closely because this is a very important concept we are talking about--
the Guantanamo military installation to house enemy combatants, people 
determined by our military to be enemy prisoners of war out of uniform, 
meeting the Geneva Convention's definition of an enemy combatant--the 
administration chose Guantanamo as the jailing site. There were 
prisoners there who brought actions in our Federal court, arguing that 
their confinement needed to be reviewed by Federal courts. The 
administration took the position that Guantanamo was outside the United 
States. They lost. I think the administration should have lost. To me, 
Guantanamo, because of the lease and the relationship the U.S. military 
has to that installation, is clearly part of the infrastructure of the 
United States.
  The reason they made the argument is it is a long-held concept in law 
that habeas rights do not apply to people overseas, that our 
constitutional provisions granting to American citizens the right to 
bring a habeas petition when they are confined does not apply 
extraterritorially. The administration lost on the argument that 
Guantanamo was outside the United States, and the Federal court said: 
Okay, it is within the United States.
  What habeas rights would attach to someone at Guantanamo Bay? Here is 
where Senator Specter and I dramatically differ. Senator Specter reads 
the Rasul case to say that someone confined at Guantanamo who is a 
noncitizen enemy combatant has a constitutional right under our 
Constitution to petition Federal courts, to have a district court judge 
review their confinement. I think that is completely wrong.
  The D.C. Court of Appeals recently held in a 2-1 decision that people 
detained at Guantanamo Bay do not have constitutional rights under our 
Constitution to petition for habeas.
  Rasul was about 2241, section 2241 of the U.S. Code, a congressional 
enactment that creates statutory habeas rights. That statute has been 
amended in many different forms--restricting habeas, granting habeas, 
allowing States appellate procedures postconviction relief to be 
substitutes for habeas.
  The Supreme Court said: Since Congress has not spoken as to whether 
detainees at Guantanamo will be covered by 2241, we are going to allow 
a case to go forward under that statute until Congress tells us 
otherwise.
  It was Justice O'Connor who was suggesting to the Congress we need to 
speak. The administration at the time of the Rasul case had no 
infrastructure in place to give due process to someone who is accused 
of being an enemy combatant. Justice O'Connor, in another case--I don't 
remember the name now--said: What you need to look at is Army 
Regulation 190-1, which is a procedure to guide military members how to 
determine who an enemy prisoner may be from a civilian who is an 
innocent person involved in war. So what the military did, after the 
second Supreme Court case, was come up with a Combat Status Review 
Tribunal. Now the Combat Status Review Tribunal is the due process 
right given to suspected enemy combatants.
  To me, 9/11 was an act of war. It was also a crime, but it was an act 
of war. I believe the people housed at Guantanamo Bay are warriors, not 
common criminals. They will be afforded the due process rights of 
wartime law of armed conflict, not domestic criminal law.
  What is the law of armed conflict when it comes to status? Article V 
of the Geneva Convention says that if there is a question of status, 
the country which houses the person, is in charge of the person, will 
conduct a competent tribunal. A ``competent tribunal'' all over the 
world is a military proceeding where the military of that country will 
determine if the person in front of them is a civilian, uniformed 
person, or enemy combatant.
  The Combat Status Review Tribunal is well beyond the due process 
requirement of the Geneva Conventions. What happens at the Combat 
Status Review Tribunal, first of all, is that the enemy suspect 
prisoner will go before a panel of three military officers trained in 
who presents a military threat--an intelligence officer, a combat 
officer, and a legal officer. I think tomorrow or Friday, the 14 high-
value detainees who have been in CIA custody will go through this 
process.
  The question for this Congress is, Do we want the military to make 
the initial decision on who an enemy prisoner is based on what a 
military threat is to our country and the expertise the military has in 
determining if this person is an enemy prisoner, enemy combatant, or do 
we want to give that to a district court judge who has absolutely no 
training?
  Enemy prisoners during World War II were not allowed to file habeas 
petitions and come into our Federal courts and sue the military during 
a time of war to be released. Chief Justice Jackson said: Wait a 
minute. This is not our job. We are not trained for this. If we allow 
enemy prisoners detained by our military during a time of war to have 
access to our Federal courts, Federal judges are taking over a job the 
military is trained for and we are not trained for.
  Here is what Justice Jackson said in the Eisentrager case:

       We are cited to no instance where a court, in this or any 
     other country where the writ is known, has issued it on 
     behalf of an alien enemy who, at no relevant time and in no 
     stage of his captivity, has been within its territorial 
     jurisdiction.

  Nothing in the text of this Constitution extends such a right nor 
does anything in our statute.
  So the Eisentrager case in 1950 clearly said habeas does not apply to 
enemy prisoners. I cannot find the language--it talks about why it is a 
bad idea--but it is forthcoming. So as early as 1950, the courts 
rejected enemy prisoner petitions in the Federal court.
  Now, the question for Congress is, after 9/11--5 years later--do we 
as a Congress want to confer onto people classified by our military to 
be enemy combatants a Federal court right never known in the law of 
armed conflict at any other time in our history? Do we want to be the 
first Congress in the history of the United States to take away from 
our military the ability to determine who a military threat is and make 
literally a Federal court trial out of that decision?
  There had been 160 habeas petitions filed before we acted last year. 
Let me tell you, they have sued our own military for everything 
imaginable: the quality of the food, DVD access, not enough exercise, 
judge-supervised interrogation. Some of the people who have brought 
these cases are accused of killing Americans in the most brutal way.
  One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on 
behalf of enemy combatants held at Guantanamo Bay, publicly stated:

       The litigation [for the United States]. . . . It's huge. We 
     have over one hundred lawyers now from big and small firms 
     working to represent these detainees. Every time an attorney 
     goes down there, it makes it that much harder [for the U.S. 
     military] to do what they're doing. You can't run an 
     interrogation . . . with attorneys. What are they going to do 
     now that we're getting court orders to get more lawyers down 
     there?

  It is clear that it does--according to one of the lawyers 
representing detainees--make it very difficult for the military to do 
their job when it comes to intelligence gathering. I will have an 
unclassified summary to put into the Record at the end of my time that 
talks about the information gained at Guantanamo Bay.
  But here is what Justice Jackson said would be the real big mistake 
for the Federal courts if you start granting habeas petitions and give 
enemy prisoners a right to sue our own people about their status in a 
time of war:


[[Page 5689]]

       The writ, since it is held to be a matter of right, would 
     be equally available to enemies during active hostilities as 
     in the present twilight between war and peace. Such trials 
     would hamper the war effort and bring aid and comfort to the 
     enemy. They would diminish the prestige of our commanders, 
     not only with enemies but with wavering neutrals. It would be 
     difficult to devise more effective fettering of a field 
     commander than to allow the very enemies he is ordered to 
     reduce to submission to call him to account in his own civil 
     courts and divert his efforts and attention from the military 
     offensive abroad to the legal defensive at home. Nor is it 
     unlikely that the result of such enemy litigiousness would be 
     a conflict between judicial and military opinion highly 
     comforting to enemies of the United States.

  Was he prophetic? These 160 cases have created a nightmare for the 
military at Guantanamo Bay. Medical malpractice suits have been filed, 
$100 million money-damage lawsuits have been filed. It has been a legal 
nightmare.
  So what I am trying to persuade the Congress to do is not grant in 
statute a right never given to any other enemy prisoner during any 
other war, because it is dangerous to do so.
  What did we do to accommodate the unique needs of this war, a war 
potentially without end? For the first time in the history of our 
country, we are allowing Federal courts to review whether a person has 
been properly classified as an enemy prisoner. Once the military 
decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/
11, can you imagine 5 years after 9/11 the Congress would open up any 
Federal courtroom that a lawyer could shop to find--whatever judge the 
lawyer could find in the country--and allow Shaikh Mohammed to sue our 
own military about his status, creating a nightmare zoo courtroom 
trial, bringing people from all over the world to determine his status, 
where the judge would have a say, not the military? That would be a 
mistake of monumental proportions.
  What will happen is Shaikh Mohammed, in a classified setting, will 
have evidence presented by the Government to show he is an enemy 
combatant. He will have a chance to rebut that. When his case has been 
decided, he will have an automatic right of appeal to the DC Circuit 
Court of Appeals, where the DC Circuit Court of Appeals will look at 
the military decision in question and find out whether two things 
occurred. Were the due process rights given Shaikh Mohammed and other 
enemy combatant suspects consistent with our own Constitution? 
Secondly, was the evidence introduced sufficient to support the finding 
he is an enemy combatant?
  That is the proper role for a judge. That is what judges are trained 
to do. It would be a monumental mistake to allow a habeas petition to 
be filed, where literally you could go to any court in the land and 
have a full-blown trial, calling people off the battlefield to make the 
case that this person was an enemy prisoner and give that 
decisionmaking ability to a judge not trained in who is a military 
threat to our country and take it away from the military.
  That is why I am so passionate about this issue. I do believe in due 
process at a time of war. I have been a military lawyer for well over 
20 years. I believe our country should adhere to the Geneva 
Conventions, that we should be a standard-bearer for what is right. But 
we should not cripple our military's ability to defend us in a way that 
makes absolutely no sense.
  We should not put Federal judges on the frontlines in deciding who is 
a threat to this country, when the military is trained to do that. Let 
the judges look over the military's shoulder and in a proper way, 
consistent with their training.
  Now, what is going to happen? The case is going to go to the Supreme 
Court soon. If I am wrong, I will take the floor and say so. Senator 
Specter has a belief there is a constitutional right to habeas. I do 
not believe that. But if the Court holds so, then I would be wrong. I 
would argue that the DC Circuit Court of Appeals is an adequate 
substitute for habeas, but that will be up to the Court.
  All I am asking is to allow the work product of last year that has 
gone before the DC Circuit Court of Appeals that has been upheld to go 
through the system. I will gladly sit down with Senators Specter and 
Levin to see if we can work on better due process rights for people 
accused of being an enemy combatant. I think we can do that as a 
Congress without turning that decision over to Federal judges. It is a 
very dangerous thing we are proposing to do, to take away from the 
military to determine who a threat is and to give it to a Federal 
judge.
  Finally, I would like to say: I know this is a war without end. Two 
hundred-and-something people have been released from Guantanamo Bay 
because they get an annual review board to look at their status anew. 
We do not want to keep people who have been misidentified who are not a 
threat. But we do not have the choice of ``try them or let them go.'' 
This is a war, and we can keep warriors off the battlefield as long as 
they are a threat. When it comes time to determine who should bear that 
risk, who should bear the risk of letting someone go at Guantanamo 
Bay--the innocent civilian populations of the world who have been a 
victim of people out of uniform wreaking havoc or the people who 
started this whole mess to begin with--if you are going to proportion 
risk, I think it should fall on the people who created the problem to 
begin with.
  Twelve people have been released from Guantanamo Bay under the annual 
review process of the 200-and-something. Twelve have gone back to the 
battle. Three have been killed. So you make mistakes both ways. I don't 
want to hold one person down there who should not be held, but I don't 
want to let anybody go who is a threat to our country because we are at 
war.
  Due process rights attach to people in war, but we cannot criminalize 
what has been an act of war beginning on September 11, 2001. The people 
down there will have their day in court. They will have a chance to 
have a say about who they are and what the facts are. But I do believe 
there are people down at Guantanamo Bay who are warriors. If they ever 
got out, they would try to kill us again.
  Mr. LIEBERMAN. Mr. President, will my friend from South Carolina 
yield for a question?
  Mr. GRAHAM. Yes, sir.
  Mr. LIEBERMAN. I appreciate the Senator's remarks. I know the Senator 
from South Carolina has a background in military law, so he speaks with 
some authority on these questions.
  What interests me in this discussion is the rights of citizens as 
opposed to noncitizens. I wanted to ask my friend, first, am I right 
that you are not arguing against the principle that an American 
citizen, even one alleged to be an enemy combatant, does have habeas 
corpus rights?
  Mr. GRAHAM. The Senator is absolutely right; any American citizen. 
The Padilla case is the best example you could give. Padilla was 
charged as an enemy combatant, a U.S. citizen. It is true American 
citizens in the past have been held indefinitely as enemy combatants. 
But I do believe they should have access to our courts as a member of 
citizenship. And they would have a constitutional right to seek relief 
from a Federal judge to determine whether the military or law 
enforcement officers make that decision. We are talking about people in 
the same status as the Germans and the Japanese. There was a reason the 
thousands of enemy prisoners housed in the United States never had 
access to our Federal courts. It is what Justice Jackson was saying. 
The Federal judiciary would make a mockery of the military's ability to 
run the war if you turned every military decision into a Federal court 
trial as to who an enemy prisoner is. Justice Jackson, in the most 
eloquent fashion, told us what could come if you conferred these rights 
on enemy prisoners.
  Here is what is odd. If I am a lawful combatant, if I am captured 
tomorrow as a member of the uniformed services of the United States, I 
do not have any rights under the Geneva Conventions to go to the host 
country's judiciary. We are creating, for unlawful combatants, enemy 
combatants, a right greater than someone who is captured as a lawful 
combatant.
  Under the Geneva Conventions, there is no right to go to a court in 
any land

[[Page 5690]]

to ask to be released. But in America, if you are an unlawful 
combatant, we are giving you your day in Federal court, after the 
military acts, which I think is an accommodation for the fact that this 
war is different. It is not lost upon this Senator this war is 
different. There will be no signing on the ``Missouri.'' I do not know 
when this war is going to end. I do not want an enemy combatant 
decision to be a de facto life sentence without robust due process. But 
I do believe, if the choice is between letting them go or having them 
die in jail, if they are still a threat, let them die in jail.
  I do believe every enemy prisoner is not a war criminal, and the 
choice for the country is not ``let them go or try them.'' Because that 
is a false choice in the law of armed conflict. It would not serve us 
well to say that every American captured in the next war is a war 
criminal because they are performing their duties. You only confer war 
criminal status on someone who goes outside the law of armed conflict. 
So we are making some decisions for the ages.
  I am all for due process. I am all for scrutiny and transparency 
because I want my country to win the war not changing whom we are. But 
I do not want us to fundamentally change the relationship between the 
military and military threats. Our judges have a role to play. The 
Congress has a role to play. The military has a role to play. Keep 
everybody in their lanes, and this will work.
  Mr. LIEBERMAN. I thank my friend.
  So I take his answer to say also--correct me if I am wrong--that the 
existing statute, including the MCA--which is the subject of the 
lawsuits we have been describing that are pending--the existing statute 
does not alter the right of American citizens who are alleged to be 
enemy combatants to use habeas corpus rights?
  Mr. GRAHAM. The Senator is correct in two fashions. It says no 
military commission can try an American citizen. A military commission 
at Guantanamo Bay cannot, as a matter of law, try an American citizen, 
even if they are an enemy combatant. Someone from America could join 
al-Qaida, but they are going to be tried in our Federal courts if they 
are caught.
  What we are trying to do is have a military commission consistent 
with the Uniformed Code of Military Justice to try people. The 
difference between now and Nuremberg, I say to the Senator, is the war 
is still ongoing. The reason we are not going to release all the 
information as to why Shaikh Mohammed is an enemy combatant is because 
that is very sensitive information. We will give a summary to the 
public. And the courts will get to review that decision in full in a 
classified setting. But I cannot stress to you enough we are at war.
  The last time we had a Federal trial where somebody tried to blow up 
the World Trade Center in the early 1990s, some of the information in 
that courtroom setting that had to be released wound up in a cave in 
Afghanistan. I will talk about that later. We are trying to balance the 
need to be safe and the obligations we have under the law of armed 
conflict. I think we have struck a good balance. If I am wrong, the 
Supreme Court will tell me. Please, just to my fellow Senators, let 
this case go to the Supreme Court, see what they say, and we can fix it 
if we need to. That is all I am asking.
  Mr. LIEBERMAN. Again, I thank my friend. So in furthering what this 
discussion is about, it is whether non-American citizens seized in the 
war on terrorism and alleged to be enemy combatants should have habeas 
corpus rights under our Constitution?
  Mr. GRAHAM. I am the biggest advocate that an American citizen such 
as Mr. Padilla should be tried in Federal court. The man who was caught 
working with the Taliban in Afghanistan was in Federal court. Moussaoui 
was in Federal court because we didn't have the Military Commissions 
Act. An American citizen will be tried in Federal court with all the 
rights of an American citizen available to them.
  Mr. LIEBERMAN. Let me ask this final question. This is the part of 
this discussion that I struggle with, which is what is the appropriate 
status in the context in which we are talking about permanent lawful 
residents of the United States.
  In other words, if I understand what the Military Commissions Act--
again, correct me if I am wrong--says, is that a permanent, lawful 
resident of the United States who is apprehended as part of the war on 
terrorism and alleged to be an enemy combatant does not have a right of 
habeas, or a right to have a case heard in Federal court. That concerns 
me. This is what I want to ask my friend from South Carolina who has 
had experience with this to clarify, as to whether that may be--if I 
can use the term a ``denial'' of equal protection--to say a permanent, 
lawful resident of the United States cannot have the same rights in 
these cases that a citizen of the United States has.
  Mr. GRAHAM. Well, that is a very good question, and I think that is 
something we actually need to sit down and look at, that situation 
where you are not a citizen, but you are here on a legal status. I 
would be, quite frankly, very comfortable to clarify that, if anyone 
ever finds themselves in that category, to say, no, you are going to 
have all the rights of an American citizen.
  What I am trying to do is make sure that we don't change 200 years of 
history. The people who assassinated President Lincoln, within 30 days 
they were caught, tried, and executed in a military commission format. 
We have had American civilians tried in military commissions in times 
of war, but they were reviewed by our Federal courts. Some of the 
German saboteurs who landed during World War II, I think one or two of 
them actually were American citizens who left to go back to Germany to 
aid the enemy. They got tried by military commissions, and the Supreme 
Court reviewed their case.
  What I am saying is that an enemy prisoner, a noncitizen, since time 
began in our country and in every other country, has been treated under 
the law of armed conflict, not domestic statutes. That is a distinction 
of great significance, and we don't need--the due process rights these 
enemy combatants, noncitizens, have are greater than the Geneva 
Conventions require, and every enemy combatant had their day in Federal 
court but in a way consistent with what judges are trained to do.
  I don't believe it is in our national interests during ongoing 
hostilities to take away from the military the ability to classify who 
they believe to be a threat, what status that person has acquired based 
on their activities. I do believe the courts can look at every case and 
see: Was due process afforded? Did the evidence support the finding? 
That, to me, is the magic combination, and habeas destroys that 
combination.
  Mr. LIEBERMAN. I thank the Senator from South Carolina. This, to me, 
has been a very helpful exchange. I would like to continue the 
discussion on the distinct question of what the habeas rights of 
permanent lawful residents of the United States should be.
  Mr. GRAHAM. It is a great area to discuss. I thank the Senator. I 
yield the floor.
  Mr. LIEBERMAN. I thank the Chair, and I yield the floor.
  Mr. SPECTER. Mr. President, I ask my colleague from South Carolina if 
he would be willing to respond to a few questions.
  Mr. GRAHAM. I would be honored to respond to my friend from 
Pennsylvania.
  Mr. SPECTER. I will begin with the subject matter brought up by the 
Senator from Connecticut about the status of aliens. I would note that 
in the Rasul case, the Supreme Court, Justice Stevens speaking for a 
majority, answered this categorically:

       Aliens held at the base, like American citizens, are 
     entitled to invoke the Federal courts' section 2241 
     authority--

  Which is the habeas corpus statute.
  So the court has dealt with that conclusively in Rasul much the same 
way that Justice O'Connor did speaking for plurality in an earlier 
case.
  Addressing the question to the Senator from South Carolina, earlier 
today I noted the order establishing Combat Status Review Tribunals, 
and it provided that:


[[Page 5691]]

       All detainees shall be notified--

  Leaving out some irrelevant material--

     of the right to seek a writ of habeas corpus in the courts of 
     the United States.

  Is the Senator familiar with that provision?
  Mr. GRAHAM. No, sir, I am not.
  Mr. SPECTER. Well, I hadn't been until a few days ago. But this is 
the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated 
July 7, 2004, to the Secretary of the Navy.
  The Senator from South Carolina made the argument that the judges 
were not appropriate to make determinations of reviewing the orders or 
the conclusions of the Combat Status Review Tribunal. How would the 
Senator from South Carolina account for the acquiescence by the--
  Mr. GRAHAM. I have been told that the order the Senator is talking 
about was implemented in the Rasul decision, and it would be a correct 
statement of Mr. Wolfowitz to make.

       Rasul said that habeas rights attached to Guantanamo Bay 
     detainees until Congress says otherwise, and that is the 
     difference we have. I read Rasul to say, since Congress 
     hasn't spoken under 2241, Guantanamo Bay is within U.S. 
     jurisdiction and the statute would apply to anybody held at 
     Guantanamo Bay. It is not an overseas location. Until 
     Congress speaks, under 2241 you will have the right.

  Congress has spoken. We spoke last year. We took 2241 and changed it. 
We excluded noncitizens and any prisoners from the habeas rights under 
2241 and, quite honestly, that issue has gone to the D.C. Circuit Court 
of Appeals, and we won last week.
  Mr. SPECTER. Well, the question about the Department of Defense 
agreeing to allow habeas corpus rights was not taken up by the Circuit 
Court for the District of Columbia and the Detainee Treatment Act. 
Congress gave the Department of Defense the right to establish the 
rules, and that is one of the rules. Wait a minute. The question hasn't 
come yet.
  Mr. GRAHAM. OK.
  Mr. SPECTER. Is it fair to change the rules in the middle of the 
process after the Department of Defense has stated that they think it 
is appropriate for a Federal court--they specifically talk about courts 
of the United States--to make a determination under habeas corpus to 
see if the definition which they set for enemy combatants has been 
followed. They have specified that there has to be evidence. To the 
definition of what or who is an enemy combatant:

       An individual who was part of or supporting the Taliban or 
     al-Qaida forces, or associated forces that are engaged in 
     hostilities against the United States or its coalition 
     partners. This includes any person who has committed a 
     belligerent act or has directly supported hostilities in aid 
     of enemy armed forces.

  Now, the Department of Defense who promulgated this order concluded 
that it was within the purview of the Federal courts, and that is 
really a judicial function to determine whether the definition for 
enemy combatant has been achieved, isn't it?
  Mr. GRAHAM. If I may respond, I think it is not remotely fair to say 
that the Department of Defense has conceded that habeas corpus rights 
should be given to detainees at Guantanamo Bay. Once Rasul was decided 
and the Government lost, that it was outside the jurisdiction of the 
United States, the Rasul case said: Until Congress acts, you will have 
a habeas right. The administration has come to me and other Members of 
this body since that decision and has been begging us to address 2241. 
The Supreme Court, in three separate decisions, has said Congress needs 
to get involved. The administration's theory was, there is no room for 
Congress in the courts.
  Here is where the Senator and I have been partners. I have always 
believed the executive branch has to collaborate with the Congress, and 
they have been hard-headed about this and they wound up losing in 
court. They lost on whether it was outside the United States. Once the 
court ruled 2241 applied, the DOD had no other choice but to tell 
people: This is a statutory right. They were telling people at 
Guantanamo Bay: This is your statutory right. They were coming to me 
and other Senators saying: Please change 2241 because it is hampering 
the war effort.
  That is exactly where we find ourselves. We took the input of the 
administration, we voted last year, we stripped habeas from 2241 where 
district court judges could make military decisions, and we are 
replaced in the appeals process where Federal courts do look at what 
the military does after they have decided. I think not only did the 
D.C. Circuit Court of Appeals uphold that as a proper thing to do but 
the Supreme Court will also.
  So my belief is that it was our decision as Congress as to whether to 
give these enemy prisoners habeas rights, unlike any other war. We 
decided with Rasul we didn't want to do that. I think it is the best 
decision we have ever made. If you had asked this Congress on September 
30, 2001: Would you want to create a Federal court action for any al-
Qaida member caught to go into Federal court and bring lawsuits against 
our own troops alleging not enough exercise, bad DVD access, you name 
it, we would have said no. That would have been crazy. Why would we 
want to give this group of people who are trying to kill us all rights 
that we didn't give the Japanese and the Nazis who were trying to kill 
us all?
  So now we find ourselves in Congress filling in the gap that the 
court found. The Congress has spoken. We told the courts, D.C. Circuit 
Court of Appeals: No habeas rights under 2241. We substituted another 
procedure that I think makes sense, and the court found out that we did 
it in a constitutional manner, and I think we are going to win at the 
Supreme Court.
  But having said that, if there are other ways to improve due process 
where the Congress can make this CSRT process better, count me in. But 
I am not going to sit on the sidelines and watch the Federal courts do 
something they are not trained to do before Congress blesses it. If the 
Senator is right that the Supreme Court says apart from 2241 an enemy 
prisoner, noncitizen, has a constitutional right to habeas, then I 
would be wrong. I would argue that our procedures under the D.C. 
Circuit Court of Appeals method of going to challenge the military is 
an adequate substitute. But I am firmly convinced that our courts are 
going to say there is no constitutional right for these prisoners, like 
there was none for Japanese and German prisoners, and that Congress has 
made a good decision to take the Federal courts and put them behind the 
military, not in front of the military.
  Mr. SPECTER. Well, if I may respond, when the Supreme Court said 
Congress should act, they were saying that Congress should legislate on 
how a military commission should be tried. But moving to your argument 
about the issue of constitutional right, how could it be that if the 
Constitution says that the right of habeas corpus can be suspended only 
in the event of invasion or insurrection? How can it be argued that 
there is no constitutional right?
  That is the argument that the Attorney General made in the Judiciary 
Committee hearing. Where the Constitution explicitly says the 
constitutional right of habeas corpus can be suspended only in invasion 
or insurrection, and no one says that either of those factors is 
present here, isn't that a flat-out statement that there is a 
constitutional right?
  Mr. GRAHAM. All I can tell my colleague is that issue went up to the 
D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly 
as you can say it that there is no constitutional right for a 
noncitizen enemy prisoner classified as such by our military during 
hostilities to come into our Federal courts. Just like Justice Jackson 
said in 1950, that would be a disaster. I just can't believe any 
Federal court is going to say that Sheikh Mohammed, the mastermind of 
9/11, who is an al-Qaida member, gets more rights than the Nazis. I 
just don't believe they are going to do that. If I am wrong, I will 
come to the floor of the Senate and say I am wrong. But I think I am 
right. The D.C. Circuit Court of Appeals agrees with me, and I believe 
we are going to win at the Supreme Court, if

[[Page 5692]]

we can let these judges look at something without changing it every 30 
days.
  Let's give this a shot and see what happens. We will know soon. I 
apologize, but I have to go.
  Mr. SPECTER. Wait just a minute. Make your answers a little more 
responsive and brief, and I won't keep you too long. I will keep you 
just a few more minutes.
  The Court of Appeals for the District of Columbia said that the 
Supreme Court, speaking explicitly through Justice Stevens, only dealt 
with a holding on the statute.
  They classified it as dictum when they said there was a 
constitutional right. Let me move on quickly to a couple of other 
points.
  As to the adequacy of proceedings in the combat status review 
tribunals, you have the case involving In re: Guantanamo, which I cited 
this morning, where Judge Green dealt with the precise case in the 
District of Columbia Circuit Court, the Boumediene case, which had a 
procedure where the detainee was charged with talking to somebody who 
was from al-Qaida, and he asked who it was and they could not identify 
the person. There was laughter in the courtroom, and Judge Green said 
it is understandable that there was laughter in the courtroom because 
nothing had been established.
  I ask a very simple, direct question, and maybe you can even answer 
it yes or no. Was that a fair proceeding?
  Mr. GRAHAM. I can tell you that the Court will soon tell us. If I can 
give you what I think is the right answer, the combat status review 
tribunal, as to whether they provided adequate due process is on appeal 
now to the Supreme Court. The Supreme Court will soon tell us not just 
about war crimes legislation but about the CSRT provisions and whether 
they are constitutional.
  I argue we are going to win on that one because 190-1 of the Army 
manual was the model that set up the combat status review tribunal. 
What right does a person have under the Geneva Conventions, in a time 
of war, when it comes to the question of status? Article 5 says 
competent tribunals--and all over the world that competent tribunal is 
not a Federal judge or the equivalent in another country, it is a 
military tribunal. If the Court rules the combat status review tribunal 
doesn't afford due process, I will sit down with you and others to make 
it comply to the Court's decision. I have no desire to take somebody 
from any part of the world and put them at Guantanamo Bay if they 
should not be there. That doesn't make America better or stronger. I do 
believe, contrary to the laughter in the courtroom, that the people 
best able to determine whether an enemy prisoner is a threat to our 
country or, in fact, an enemy prisoner is not some circuit judge or 
district court judge anywhere in America who was never trained in this, 
but military officers who are trained in making those decisions. They 
are the ones I trust. They have done it in every other war; they should 
do it in this war. I am willing to have their work product looked at by 
the Federal courts, and that is going on right now. We will soon know 
the answer to that question. Are CSRTs constitutional? If not, we will 
fix them.
  I hate to leave. I have enjoyed this debate.
  Mr. SPECTER. I have one more thing. I take your last extended 
statement to be a ``no,'' am I right?
  Mr. GRAHAM. I believe they will be constitutional. If you think there 
has been a miscarriage of justice in any case, that will go to court. 
If you think something happened in the CSRT that is laughable, then the 
Federal court is going to get to look at every case. I can assure you 
and every other American that every decision made by the military on 
Guantanamo Bay will work its way to the Federal court, and our judges 
will look at the record and the process, and they will tell us in 
individual cases and as a group whether this works. Give them a chance 
to do it.
  With that, I have to leave.
  Mr. SPECTER. One last question. I still take that to be a ``no.'' It 
was not a complex question. Do you think it is fair where the 
Department of Defense sets the rules, contrary to your assertion, that 
they think Federal judges can decide whether the evidence establishes 
the standard for an enemy combatant, do you think it is as fair under 
American justice to have a presumption of guilt?
  Mr. GRAHAM. No. This is an administrative hearing. The enemy 
combatant status determination is not a criminal decision. It is, in an 
armed conflict, an administrative decision where the procedure is set 
up. I will get you the regulation and we will introduce it, but it is 
article 5 on steroids. It has presumptions, rebuttable presumptions, 
and you have an annual review board on what should be determined to be 
a enemy combatant. You have a new hearing every year on whether new 
evidence came in, whether you are still a threat to the country, and 
whether you have intelligence value. Two hundred people have been 
released at Guantanamo Bay because they have gone through the process 
and the military determined they are no longer a threat. Twelve of the 
two hundred have gone back to killing Americans.
  There is no perfect system. We are trying to be fair. God knows we 
want to be fair, but I tell you what, in close calls between letting 
someone go who the military thinks is a member of al-Qaida and killing 
other Americans and innocent people, I am going to make sure they stay 
in jail and let the judges determine if we have done it fairly. I will 
not sit on the sidelines and open the gates to people who have been 
caught in the process of aiding the enemy or becoming the enemy just 
because we are trying to create new rules for this war that we have 
never had in any other war because some people don't like Bush. Bush 
made a lot of mistakes, but this war is going to go on long after Bush 
is gone.
  If you let these people out of jail, at least 12 of them are going to 
come back and kill you.
  With that, I must leave. We will continue the debate.
  Mr. SPECTER. Let me say, in conclusion, that bombast and oratory and 
repetition cannot undercut a few very basic facts. One is that the 
Department of Defense established a rule to give Guantanamo detainees 
the right of habeas corpus. They set out a standard as to what would 
constitute being an enemy combatant. These are rules, when they call 
for evidence, that judges are equipped to decide. When there is a 
rebuttable presumption of guilt, undercutting the basic principle of 
America, the presumption of innocence, that is basically unfair.
  When you talk about the decision by the Court of Appeals for the 
District of Columbia, where they limited the Supreme Court opinion to a 
narrow holding on the statute, although the court then went on to say 
there was a constitutional right, that will not pass muster when it 
comes back to the Supreme Court. It is fallacious to the utmost to 
argue that there is no constitutional right to habeas corpus, when the 
Constitution explicitly says the right of habeas corpus may be 
suspended only in time of invasion or rebellion. It simply cannot be 
contended rationally that there is no constitutional right to habeas 
corpus.
  I am as concerned as the Senator from South Carolina about protecting 
America. I led the fight to reauthorize the PATRIOT Act. But the 
question is, is there some reason to hold the detainees? In the case 
that went to the District of Columbia Circuit Court of Appeals, you had 
the District Court looking at the information--it wasn't evidence--
which was that the detainee had a conversation with an al-Qaida member, 
but they could not identify him. The proceeding was a laughingstock. 
That is the detainee in the District of Columbia Circuit Court case 
which is going to the Supreme Court.
  I don't think this Congress ought to wait or punt to the Supreme 
Court. We passed a statute which takes away Federal court jurisdiction 
to make the simple determination: Is there a reason to hold them? We 
ought not to let that stand.
  I ask unanimous consent that a letter dated today, received by 
Senator Leahy and myself, be printed in the

[[Page 5693]]

Record. It sets forth eloquently the reasons why habeas corpus for 
detainees should be reinstated by the Congress. It is signed by RADM 
Don Guter, who was the Navy's Judge Advocate General; RADM John Hutson, 
the Navy's Judge Advocate General at an earlier period; BG David 
Brahms, who was the Marine Corps senior legal adviser from 1983 until 
1988; and BG James Cullen, who was the chief judge of the U.S. Army 
Court of Criminal Appeals.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     March 7, 2007
     Hon. Patrick Leahy, Chairman,
     Hon. Arlen Specter, Ranking Member,
     Senate Committee on the Judiciary, United States Senate 
         Washington, DC.
       Dear Chairman Leahy and Senator Specter: We strongly 
     support your legislation to restore habeas corpus for 
     detainees in US custody. We hope that it quickly becomes law.
       Known as the ``Great Writ,'' habeas corpus is the legal 
     proceeding that allows individuals a chance to contest the 
     legality of their detention. It has a long pedigree in Anglo 
     Saxon jurisprudence, dating back to 13th Century England when 
     it established the principle that even Kings are bound by the 
     rule of law. Our Founding Fathers enshrined the writ in the 
     Constitution, describing it as one of the essential 
     components of a free nation.
       In discarding habeas corpus, we are jettisoning one of the 
     core principles of our nation precisely when we should be 
     showcasing to the world our respect for the rule of law and 
     basic rights. These are the characteristics that make our 
     nation great. These are the values our men and women in 
     uniform are fighting to preserve.
       Abiding by these principles is critical to defeating 
     terrorist enemies. The U.S. Army's Counterinsurgency Manual, 
     which outlines our strategy against non-traditional foes like 
     al Qaeda, makes clear that victory depends on building the 
     support of local populations where our enemies operate 
     through the legitimate exercise of our power. The Manual 
     states: ``Respect for preexisting and impersonal legal rules 
     can provide the key to gaining widespread and enduring 
     societal support. . . . Illegitimate actions,'' including 
     ``unlawful detention, torture, and punishment without trial . 
     . . are self-defeating, even against insurgents who conceal 
     themselves amid non-combatants and flout the law.'' Our 
     enemies have used our detention of prisoners without trial or 
     access to courts to undermine the legitimacy of our actions 
     and to build support for their despicable cause.
       It is certainly true that prisoners of war have never been 
     given access to courts to challenge their detention. But the 
     United States does have a history of providing access to 
     courts to those who have not been granted POW status and are 
     instead being held as unlawful combatants, as are the 
     detainees in this conflict. See., e.g., Ex Parte Quirin, 317 
     U.S. 1 (1942) (rejecting the claim that the Court could not 
     review the habeas claim of enemy aliens held for law of war 
     violations).
       POWs are combatants held according to internationally 
     prescribed rules, and are released at the end of the war in 
     which they fought. In a traditional war, it is generally easy 
     to determine who is a combatant and governed by these special 
     rules. But the war we are fighting today is different. 
     Detainees held at Guantanamo Bay were captured in 14 
     countries around the world, including places as far away from 
     any traditional battlefield as Thailand, Gambia, and Russia. 
     Some were sold to the United States by bounty hunters. Our 
     enemies blend into the civilian population, making the 
     practice of identifying them more difficult. For all these 
     reasons, the possibility of making mistakes is much higher 
     than in a traditional conflict. In such a situation, it is 
     incumbent on our nation to ensure that there is an 
     independent review of the decision to detain.
       The denial of habeas corpus also threatens to harm our 
     national interests by placing American civilians at risk. 
     Imagine if an enemy of the United States arrested an American 
     citizen--a nurse or interpreter or employee of a military 
     contractor--because they once provided assistance to our 
     armed forces, and held that American without charge or 
     opportunity to challenge their detention in court. We would 
     be outraged, and rightly so. Yet, this is the precedent we 
     are setting by holding without charge those deemed to have 
     aided the enemy and denying them access to a court that could 
     review the basis of their detention.
       A judicial check on the decision to detain is in the best 
     tradition of the United States--a tradition that ensures 
     accountability, accuracy, and credibility. Restoring habeas 
     corpus will help ensure that we are detaining the right 
     people and showcase to the world our respect for the rule of 
     law and the values that distinguish America from our enemies.
       We hope that Congress will act quickly to pass this 
     legislation.
           Sincerely,
     Rear Admiral Don Guter, USN (Ret.)
     Rear Admiral John D. Hutson, USN (Ret.)
     Brigadier General David M. Brahms, USMC (Ret.)
     Brigadier General James P. Cullen, USA (Ret.).

  Mr. SPECTER. I yield the floor.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from New 
Hampshire.
  Mr. SUNUNU. Madam President, I rise to speak for a few minutes on the 
topic that was being covered by Senators Specter, Graham, Lieberman, 
and others, and that is the right of detainees--in particular, 
detainees at Guantanamo Bay--to petition the court system through what 
we refer to as habeas corpus and question the specific details that 
have led to their confinement, to their definition or status as an 
enemy combatant.
  This is an important issue. Naturally people get excited when they 
are debating this issue. Senator Graham is no exception. But one thing 
that he mentioned I think must be addressed, and that is this is about 
letting people out of jail, letting people go free who might attack the 
United States at a later date. I feel very strongly that this isn't 
about letting people out of jail, and it isn't even necessarily about 
letting people object to the conditions of their confinement, because I 
believe Congress can and should address the habeas issue without 
necessarily allowing any frivolous petition regarding conditions to go 
forward. But it is about the rights of these individuals to question 
the determination that they are an enemy combatant.
  The U.S. military or other forces operating on behalf of our 
coalitions overseas have captured and detained individuals and 
determined that they are enemy combatants and, therefore, they can be 
detained indefinitely on the basis of that determination.
  The situations that arose in previous conflicts were also brought up. 
What about similar situations in the Second World War, the First World 
War, or other engagements of the U.S. military in our past? I rise 
today, most importantly, to emphasize that there is a significant 
difference between this war and those conflicts. There are differences 
in some very important ways that make this right or this ability to 
petition against your definition as an enemy combatant very important.
  First, this is not a war where we have troops lined up or engaged on 
a battlefield in uniform. These are very different combatants, very 
different enemies we face, by that definition, not always easily 
recognized and sometimes incredibly difficult to recognize those who 
are planning to kill U.S. citizens or our allies around the world. They 
are not on a specific battlefield and certainly not in uniform.
  Second, these enemy combatants--and there are many thousands of enemy 
combatants the United States faces around the world--could be almost 
anywhere in the world. It makes this very different than past 
conflicts. They could be here in the United States, they could be in 
Pakistan, they could be in Somalia, they could be in Kenya, they could 
be in Germany, they could be in Spain, or they could be in the United 
Kingdom. As a result, we could have an individual in any one of these 
countries captured, detained, and placed into our incarceration in 
Guantanamo Bay or another facility and designate them as an enemy 
combatant.
  That is highly unusual when compared to past conflicts or past 
battles and, I think, as a result could naturally cause significant 
problems in relations with other military organizations that are 
supporting our efforts, other countries' diplomatic affairs, all of 
which are important to our success in this effort.
  So because these are individuals who could be captured and detained 
from anywhere around the world, we have to take extra consideration to 
make sure they are dealt with in a straightforward way that respects 
principles of due process.
  Third, a third important distinction in this conflict is because of 
the nature of the conflict, these individuals could be held 
indefinitely without any clear

[[Page 5694]]

prospect of being released through the processes that would often bring 
a conclusion to hostilities, negotiation, a cease-fire, or surrender.
  We all recognize this conflict is very different in that regard. When 
constituents back home in New Hampshire ask me, When is this struggle 
against terrorism going to end? You certainly can't give a definitive 
answer in terms of time, but you also are very hard pressed to give a 
definitive answer in terms of specific objectives--when we capture this 
individual, when we destroy this organization, when we bring stability 
to this part of the world that is traditionally encouraged or fermented 
jihadists. So we have for these individuals--many of whom are evil 
individuals who have plotted and planned against the United States and 
our allies around the world--indeterminate, unlimited detention at the 
hands of the United States.
  Given those differences that set this conflict apart from past 
military conflicts in our history, I think it is in keeping with our 
standards of due process to ensure that when someone finds themselves 
indefinitely held by the United States in this conflict, they can at a 
minimum petition, object to their status or the determination of their 
status as an enemy combatant, and at least argue on appeal the facts of 
the case, make an argument as to why they should not be classified as 
an enemy combatant.
  Senator Specter and others made the argument when we were considering 
the Detainee Treatment Act that this ought to be done in the D.C. 
Circuit Court of Appeals. I think the exact time, place, and manner of 
this appeal can and should be determined by an act of Congress. But I 
think what is most important is that we not simply say because 
commanders on the battlefield decided--when I use the word 
``battlefield,'' I mean in this modern sense--commanders somewhere in 
the field, somewhere around the world, after you were arrested or 
detained or captured, decided you were an enemy combatant, that we are 
going to let that determination stand without appeal, without 
objection, without petition.
  At the very least, again, it is consistent with the principles of due 
process that are so important to this country that we give that 
detainee at least one opportunity to object in a court to the specifics 
that led to him being determined an enemy combatant.
  This is an important issue, but I think it is not just important 
because it affects our security, which we all want to protect to the 
greatest extent possible, but because it speaks to our own citizens and 
it speaks to people around the world as to what kind of a society we 
are and what principles we hold to be dearest.
  This is an issue that deserves thorough debate in the Senate. I look 
forward to hearing more from both sides and working with Senator 
Specter to try to move forward a process that addresses these concerns, 
that doesn't necessarily have to grant all rights and all privileges 
accorded to every U.S. citizen to those who are determined to be enemy 
combatants, but at least gives them the fundamental right to challenge 
that determination which could and, in many cases, should lead to their 
indefinite incarceration at Guantanamo Bay.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, while the Senator from New Hampshire is 
still on the floor, I thank him and commend him for his statement 
directly to the issues. He has articulated them very well. It is a 
different circumstance and what we are looking at is the issue of 
indefinite detention and some process where there has to be some reason 
given for the detention. It doesn't haven't to comply with the 
technical Rules of Evidence, although the Department of Defense 
regulation calls for evidence, and evidence is a work of art 
comprehending competency of items to establish a fact. But without 
moving into the full range of evidence for some reason to hold them--
and I agree with the Senator from New Hampshire that we are not looking 
for a remedy to test living conditions or to test food or test a wide 
variety of items that may be comprehended in other habeas corpus 
situations, but just detention--that is all--just detention.
  I am agreeable to modifying the amendment to specifying just 
detention. The Senator from New Hampshire raises a valid point that 
there may be other Senators--he estimates as many as 10--who are 
inclined to support an amendment which directed itself only at 
detention.
  There is the right of modification. I am going to talk to more of my 
colleagues to see if that would produce a significantly different 
result.
  I thank the Senator from New Hampshire.
  I yield the floor, and in the absence of any Senator seeking 
recognition suggest the absence of a quorum.
  The PRESIDING OFFICER. Will the Senator withhold his request?
  Mr. SPECTER. Yes.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Madam President, I come to the floor this afternoon to 
rise in support of the Specter-Leahy amendment, No. 286, which I hope 
we will have an opportunity to consider very shortly.
  This amendment, which Senator Specter has addressed on the floor 
during the course of the day, is long overdue.
  Last fall, Congress enacted a deeply flawed law called the Military 
Commissions Act. The law gives any President the power to imprison 
people indefinitely without charging them with any crime. It takes away 
fundamental due process as protected by the Constitutionally-protected 
right of habeas corpus. It allows our Government to continue to hold 
hundreds of prisoners for years without ever charging them with any 
wrongdoing.
  I was one of 34 Senators who voted against the creation of this 
Military Commissions Act. I hope this year that Congress will begin to 
undo the damage to fundamental American values that was done by this 
legislation.
  The amendment offered by the Senator from Pennsylvania and the 
Senator from Vermont, the Specter-Leahy amendment, is an excellent 
place to start. This amendment would repeal the provision of the 
Military Commissions Act that eliminated habeas corpus for detainees.
  Habeas corpus is the legal name for a procedure that allows a 
prisoner to challenge their detention in court. It is a basic 
protection against unlawful imprisonment. It is one of the bedrock 
principles that separates America from many other countries around the 
world.
  Over 700 lawyers from the Chicago area sent me a letter last year 
strongly opposing the elimination of habeas corpus for detainees. Here 
is how they explained the importance of this basic fundamental right, 
and I quote:

       The right of habeas corpus was enshrined in the 
     Constitution by our Founding Fathers as the means by which 
     anyone who is detained by the Executive may challenge the 
     lawfulness of his detention. It is a vital part of our system 
     of checks and balances and an important safeguard against 
     mistakes which can be made even by the best intentioned 
     government officials.

  Why is this administration so interested in protecting itself from 
the judicial review of our courts? Because the courts have repeatedly 
ruled that the administration's policies have violated the law and our 
constitution.
  After the September 11 terrorist attacks, the administration 
unilaterally created a new detention policy for America. They claimed 
the right to seize anyone, including an American citizen in the United 
States, and to hold them until the end of the war on terrorism, 
whenever that might be.
  They claimed that even an American citizen who is detained has no 
rights. That means no right to challenge their detention, no right to 
see the evidence against them, no right to even know why they are being 
held. In fact, an administration lawyer claimed in court that detainees 
would have no right to challenge their detention even if they were 
being tortured or summarily executed.
  Using their new detention policy, the administration has detained 
thousands of individuals in secret detention centers around the world. 
Only time will

[[Page 5695]]

lead to the complete disclosure of what they have done. The most well-
known, Guantanamo Bay, is only one of those centers. Many have been 
captured in Afghanistan and Iraq, and people who never raised arms 
against us have been taken prisoner far from the battlefield, in places 
such as Bosnia and Thailand.
  Who are the detainees in Guantanamo Bay? Well, back in 2002 then 
Defense Secretary Rumsfeld described them, and I use his words, ``the 
hardest of the hard core.'' He went on to call them, ``among the most 
dangerous, best trained, vicious killers on the face of the earth.'' 
Those are the words of Secretary Rumsfeld.
  Well, I went to Guantanamo last July. There were some 400 detainees 
being held. There have been many others who have gone through that 
camp. Hundreds of people have been detained at Guantanamo, many for 
years, without ever being charged, and then were released.
  Imagine, if you will, that you were scooped up by some government 
official, transported a thousand miles away to this rock in the middle 
of the Caribbean, this high-temperature, high-pressure location, and 
then held literally for years without ever being charged with any 
wrongdoing.
  Every American would agree with what I am about to say. Every 
dangerous person should be arrested and detained to protect America 
from terrorism. When we have good cause to believe that a person 
threatens our country, I believe it is our right, when it comes to our 
basic security, to detain that person and to hold that person as long 
as they are a threat to our country. In this case, however, hundreds of 
individuals were taken from their homes, their businesses, their 
families, their countries, and transported to Guantanamo, and held 
without charges, sometimes for years, before they were released.
  According to media reports, military sources indicate that many of 
the detainees had no connection to al-Qaida or the Taliban and were 
sent to Guantanamo over the objections of intelligence personnel who 
ultimately recommended they be released. It was a mistake. They never 
should have been held. They should not have been detained. Years were 
taken off their lives, while the image of Guantanamo has been created 
across the world.
  One military officer said:

       We are basically condemning these guys to long-term 
     imprisonment. If they weren't terrorists before, they 
     certainly could be now.

  That quote comes from one of our military officials.
  Based on a review of the Defense Department's own documents, Seton 
Hall University Law School reported that only 5 percent, 1 out of 20, 
of the detainees at Guantanamo were captured by U.S. forces, while 86 
percent were taken into custody by Pakistani or Northern Alliance 
forces at a time when the United States was paying huge amounts of 
money for the capture of any suspected Arab terrorist.
  The Defense Department's own documents revealed that the large 
majority of detainees never participated in any combat against the 
United States on a battlefield, and only 8 percent, that is fewer than 
1 out of 10, of those being detained were even classified as al-Qaida 
fighters.
  In 2004, in the landmark decision of Rasul v. Bush, the Supreme Court 
rejected this administration's indefinite detention policy. The Court 
held that detainees at Guantanamo have the right to habeas corpus to 
challenge their detentions in Federal court. The Court held that the 
detainees' claims that they were detained for over 2 years without any 
charge against them and without any access to counsel, and I quote the 
Court, ``unquestionably described custody in violation of the 
Constitution, or laws or treaties of the United States.''
  That is why the amendment being offered by the Senator from 
Pennsylvania and the Senator from Vermont is so critically important. 
What we have enshrined in the Military Commissions Act is a violation 
of the fundamental values of our country.
  As I have said before, and will repeat, anyone who is a danger to 
this country should be stopped, detained, arrested, and imprisoned, if 
necessary, before they harm anyone in our country. Those who are 
detained should be detained for cause. There should be a reason. There 
should be a charge against them. They should have the most fundamental 
access to justice, which we preach around the world; that they can 
defend themselves, know what they are being charged with, see the 
evidence being used against them, and have the right to counsel so that 
they can express their innocence in the most effective way.
  How did the administration react to the Supreme Court decision in 
2004? Instead of changing its policies to comply with the Constitution, 
the law, they came to the Republican-controlled Congress at that time 
and demanded that habeas corpus for detainees be eliminated.
  This isn't about the rights of suspected terrorists. It is about who 
we are as Americans. Eliminating habeas corpus is not true to our 
values. Sadly, it creates an image of America that causes problems even 
for our troops in the field.
  Recently, I went on a trip to South America with Senator Harry Reid, 
our majority leader in the Senate, and we talked to leaders in 
countries in South America. I can recall one leader saying that he 
wanted the United States to remove a base from his country. He said: We 
don't want to have another Guantanamo here in our sovereign country.
  Guantanamo has become an image which needs to change. Even the 
President has called for the closing of Guantanamo. Yet what the 
Congress has done is to not only keep Guantanamo in business but to 
keep it in business with rules that are inconsistent with our 
Constitution and our fundamental values.
  Tom Sullivan is a friend of mine and a prominent attorney in Chicago. 
He was a former U.S. attorney, a lead prosecutor for our Government in 
that area. He served in the Army during the Korean war.
  For nothing, on a pro bono basis, Tom Sullivan has taken on cases of 
several Guantanamo detainees. He has practiced law for more than 50 
years. He believes, even as a former professional prosecutor, that 
habeas corpus is a fundamental bedrock of America's legal system 
because it represents the only recourse available when the Government 
has made a mistake, detained a person and charged them with something 
of which they are not guilty.
  ADM John Hutson, another man I have come to know and respect, was a 
Navy Judge Advocate for 28 years. Last year, he testified in the Senate 
Judiciary Committee hearing on the Military Commissions Act. Here is 
what Admiral Hutson, former Navy Judge Advocate, had to say about 
eliminating habeas corpus, and I quote:

       It is inconsistent with our own history and tradition to 
     take this action. If we diminish or tarnish our values, those 
     values that the Founders fought for and memorialized in the 
     Constitution and have been carefully preserved in the blood 
     and honor of succeeding generations, then we will have lost a 
     major battle in the war on terror.

  Admiral Hutson concluded:

       We don't need to do this. America is too strong. Our system 
     of justice is too sacred to tinker with in this way.

  He also testified that eliminating habeas corpus really puts our own 
soldiers at risk. Remember, John Hutson has given his life to our 
country's military, and here is what he said:

       If we fail to provide a reasonable judicial avenue to 
     consider detention, other countries will feel justified in 
     doing exactly the same thing. It is our troops who are in 
     harm's way and deserve judicial protections. In future wars, 
     we will want to ensure that our troops or those of our allies 
     are treated in a manner similar to how we treat our enemies. 
     We are now setting the standard for that treatment.

  I have heard arguments on the Senate floor: Oh, it is going to glut 
the courts of America if the 400 detainees at Guantanamo have some 
rights, if they have an opportunity to question the charges that have 
been brought against them, if they can use habeas corpus. I do not 
believe that is true and even if it was it is a small price to pay, a 
small price for America to pay to respect the most fundamental right 
that we believe to be part of our system of justice.

[[Page 5696]]

  Will there be abuses? Well, I am sure there will be. There have been 
in virtually all the laws we have enacted. But we will be able to say 
at the end of the day that even in the midst of a war on terror, even 
as we feared what might happen tomorrow in the wake of 9/11, that 
America never lost its way in terms of its fundamental values and 
principles.
  The Military Commissions Act, which passed this Senate, unfortunately 
is a step in the wrong direction. I fully support the Specter-Leahy 
amendment. We should honor American values and protect our brave men 
and women in uniform by restoring the right of habeas corpus, and I 
urge my colleagues to support this amendment.
  Madam President, I ask unanimous consent that my name be added as a 
cosponsor to that amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I thank the Chair, and I yield the floor.
  Mr. SPECTER. Madam President, while the Senator from Illinois is 
still on the Senate floor, I want to thank him for those eloquent 
remarks going right to the core of the issue, the importance of 
protecting America from terrorists and at the same time a balance in 
protecting Americans' constitutional rights.
  When he refers to Tom Sullivan, the very distinguished Chicago 
attorney, I might note that Mr. Sullivan testified at a Judiciary 
Committee hearing and brought forth a number of examples, which I put 
into the Record earlier today, where it is recited in some detail 
people who were detained at Guantanamo for very long periods of time. 
One specifically commented about crossed the border, was supposed to 
have been associated with someone from al-Qaida, no reason for keeping 
him was given, no evidence to that effect, but was kept for 5 years and 
then released.
  Let me express a concern I have, which I discussed earlier with the 
Senator from Illinois, and that is I am concerned that this amendment 
will not receive a vote. Last year, the Senate voted on a 51-to-48 
vote, to include language in the Military Commissions Act that limited 
Federal court habeas jurisdiction. I have suggested that there be a 
cloture petition filed on this bill, if we are going to vote on cloture 
later this week on the underlying bill, and that would be a case where 
we might vote on cloture on this amendment. I would structure it in 
that fashion only as a way to get a vote so that people will have to 
take a position, and I simply wanted to make reference to that.
  Madam President, I yield the floor.


                           Amendment No. 312

  Mr. McCONNELL. Madam President, I offered an amendment on behalf of 
Senator Cornyn on Friday, and I now ask for the regular order with 
respect to amendment No. 312.
  The PRESIDING OFFICER. The amendment is now pending.


                     Amendment No. 312, as Modified

  Mr. McCONNELL. I send a modification to the desk.
  The PRESIDING OFFICER. The amendment is so modified.
  The amendment, as modified, is as follows:
       On page 389, after line 13, add the following:

     SEC. 15__. TERRORISM OFFENSES; VISA REVOCATIONS; DETENTION OF 
                   ALIENS.

       (a) Recruitment of Persons to Participate in Terrorism.--
       (1) In general.--Chapter 113B of title 18, United States 
     Code, is amended by inserting after section 2332b the 
     following:

     ``Sec. 2332c. Recruitment of persons to participate in 
       terrorism.

       ``(a) Offenses.--
       ``(1) In general.--It shall be unlawful to employ, solicit, 
     induce, command, or cause another person to commit an act of 
     domestic terrorism or international terrorism or a Federal 
     crime of terrorism, with the intent that the person commit 
     such act or crime of terrorism
       ``(2) Attempt and conspiracy.--It shall be unlawful to 
     attempt or conspire to commit an offense under paragraph (1).
       ``(b) Penalties.--Any person who violates subsection (a)--
       ``(1) in the case of an attempt or conspiracy, shall be 
     fined under this title, imprisoned not more than 10 years, or 
     both;
       ``(2) if death of an individual results, shall be fined 
     under this title, punished by death or imprisoned for any 
     term of years or for life, or both;
       ``(3) if serious bodily injury to any individual results, 
     shall be fined under this title, imprisoned not less than 10 
     years nor more than 25 years, or both; and
       ``(4) in any other case, shall be fined under this title, 
     imprisoned not more than 10 years, or both.
       ``(c) Rule of Construction.--Nothing in this section shall 
     be construed or applied so as to abridge the exercise of 
     rights guaranteed under the first amendment to the 
     Constitution of the United States.
       ``(d) Lack of Consummated Terrorist Act Not a Defense.--It 
     is not a defense under this section that the act of domestic 
     terrorism or international terrorism or Federal crime of 
     terrorism that is the object of the employment, solicitation, 
     inducement, commanding, or causing has not been done.
       ``(e) Definitions.--In this section--
       ``(1) the term `Federal crime of terrorism' has the meaning 
     given that term in section 2332b of this title; and
       ``(2) the term `serious bodily injury' has the meaning 
     given that term in section 1365 of this title.''.
       (2) Technical and conforming amendments.--The table of 
     sections at the beginning of chapter 113B of title 18, United 
     States Code, is amended by inserting after section 2332b the 
     following:

``2332c. Recruitment of persons to participate in terrorism.''.

       (b) Judicial Review of Visa Revocation.--
       (1) In general.--Section 221(i) of the Immigration and 
     Nationality Act (8 U.S.C. 1201(i)) is amended by striking 
     ``There shall be no means of judicial review'' and all that 
     follows and inserting the following: ``Notwithstanding any 
     other provision of law, including section 2241 of title 28, 
     United States Code, or any other habeas corpus provision, and 
     sections 1361 and 1651 of such title, a revocation under this 
     subsection may not be reviewed by any court, and no court 
     shall have jurisdiction to hear any claim arising from, or 
     any challenge to, such a revocation.''.
       (2) Effective date.--The amendment made by paragraph (1) 
     shall take effect on the date of enactment of this Act and 
     shall apply to visas issued before, on, or after such date.
       (c) Detention of Aliens.--
       (1) Detention of deportable aliens to protect public 
     safety.--
       (A) In general.--Section 241(a) of the Immigration and 
     Nationality Act (8 U.S.C. 1231(a)) is amended--
       (i) by striking ``Attorney General'' each place it appears, 
     except for the first reference in paragraph (4)(B)(i), and 
     inserting ``Secretary of Homeland Security'';
       (ii) in paragraph (1)--

       (I) by amending clause (ii) of subparagraph (B) to read as 
     follows:

       ``(ii) If a court, the Board of Immigration Appeals, or an 
     immigration judge orders a stay of the removal of the alien, 
     the date the stay of removal is no longer in effect.'';

       (II) by adding at the end of subparagraph (B), the 
     following flush text:

     ``If, at that time, the alien is not in the custody of the 
     Secretary of Homeland Security (under the authority of this 
     Act), the Secretary shall take the alien into custody for 
     removal, and the removal period shall not begin until the 
     alien is taken into such custody. If the Secretary transfers 
     custody of the alien during the removal period pursuant to 
     law to another Federal agency or a State or local government 
     agency in connection with the official duties of such agency, 
     the removal period shall be tolled, and shall begin anew on 
     the date of the alien's return to the custody of the 
     Secretary subject to clause (ii).''; and

       (III) by amending subparagraph (C) to read as follows:

       ``(C) Suspension of period.--The removal period shall be 
     extended beyond a period of 90 days and the alien may remain 
     in detention during such extended period if the alien fails 
     or refuses to make all reasonable efforts to comply with the 
     removal order, or to fully cooperate with the Secretary's 
     efforts to establish the alien's identity and carry out the 
     removal order, including making timely application in good 
     faith for travel or other documents necessary to the alien's 
     departure, or conspires or acts to prevent the alien's 
     removal subject to an order of removal.'';
       (iii) in paragraph (2), by adding at the end the following 
     new sentence: ``If a court, the Board of Immigration Appeals, 
     or an immigration judge orders a stay of removal of an alien 
     who is subject to an administratively final order of removal, 
     the Secretary of Homeland Security in the exercise of 
     discretion may detain the alien during the pendency of such 
     stay of removal.'';
       (iv) in paragraph (3), by amending subparagraph (D) to read 
     as follows:
       ``(D) to obey reasonable restrictions on the alien's 
     conduct or activities, or to perform affirmative acts, that 
     the Secretary of Homeland Security prescribes for the alien, 
     in order to prevent the alien from absconding, for the 
     protection of the community, or for other purposes related to 
     the enforcement of the immigration laws.'';
       (v) in paragraph (6), by striking ``removal period and, if 
     released,'' and inserting ``removal period, in the discretion 
     of the Secretary of Homeland Security, without any 
     limitations other than those specified in this

[[Page 5697]]

     section, until the alien is removed. If an alien is released, 
     the alien''; and
       (vi) by redesignating paragraph (7) as paragraph (10) and 
     inserting after paragraph (6) the following new paragraphs:
       ``(7) Parole.--If an alien detained pursuant to paragraph 
     (6) is an applicant for admission, the Secretary of Homeland 
     Security, in the Secretary's discretion, may parole the alien 
     under section 212(d)(5) and may provide, notwithstanding 
     section 212(d)(5), that the alien shall not be returned to 
     custody unless either the alien violates the conditions of 
     his parole or his removal becomes reasonably foreseeable, 
     provided that in no circumstance shall such alien be 
     considered admitted.
       ``(8) Additional rules for detention or release of certain 
     aliens who have made an entry.--The following procedures 
     apply only with respect to an alien who has effected an entry 
     into the United States. These procedures do not apply to any 
     other alien detained pursuant to paragraph (6).
       ``(A) Establishment of a detention review process for 
     aliens who fully cooperate with removal.--For an alien who 
     has made all reasonable efforts to comply with a removal 
     order and to cooperate fully with the Secretary of Homeland 
     Security's efforts to establish the alien's identity and 
     carry out the removal order, including making timely 
     application in good faith for travel or other documents 
     necessary to the alien's departure, and has not conspired or 
     acted to prevent removal, the Secretary of Homeland Security 
     shall establish an administrative review process to determine 
     whether the alien should be detained or released on 
     conditions. The Secretary shall make a determination whether 
     to release an alien after the removal period in accordance 
     with paragraph (1)(B). The determination shall include 
     consideration of any evidence submitted by the alien, and may 
     include consideration of any other evidence, including any 
     information or assistance provided by the Department of State 
     or other Federal agency and any other information available 
     to the Secretary pertaining to the ability to remove the 
     alien.
       ``(B) Authority to detain beyond the removal period.--
       ``(i) In general.--The Secretary of Homeland Security, in 
     the exercise of discretion, without any limitations other 
     than those specified in this section, may continue to detain 
     an alien for 90 days beyond the removal period (including any 
     extension of the removal period as provided in subsection 
     (a)(1)(C)).
       ``(ii) Length of detention.--The Secretary, in the exercise 
     of discretion, without any limitations other than those 
     specified in this section, may continue to detain an alien 
     beyond the 90 days, as authorized in clause (i)--

       ``(I) until the alien is removed, if the Secretary 
     determines that there is a significant likelihood that the 
     alien--

       ``(aa) will be removed in the reasonably foreseeable 
     future; or
       ``(bb) would be removed in the reasonably foreseeable 
     future, or would have been removed, but for the alien's 
     failure or refusal to make all reasonable efforts to comply 
     with the removal order, or to cooperate fully with the 
     Secretary's efforts to establish the alien's identity and 
     carry out the removal order, including making timely 
     application in good faith for travel or other documents 
     necessary to the alien's departure, or conspiracies or acts 
     to prevent removal;

       ``(II) until the alien is removed, if the Secretary 
     certifies in writing--

       ``(aa) in consultation with the Secretary of Health and 
     Human Services, that the alien has a highly contagious 
     disease that poses a threat to public safety;
       ``(bb) after receipt of a written recommendation from the 
     Secretary of State, that release of the alien is likely to 
     have serious adverse foreign policy consequences for the 
     United States;
       ``(cc) based on information available to the Secretary of 
     Homeland Security (including classified, sensitive, or 
     national security information, and without regard to the 
     grounds upon which the alien was ordered removed), that there 
     is reason to believe that the release of the alien would 
     threaten the national security of the United States; or
       ``(dd) that the release of the alien will threaten the 
     safety of the community or any person, conditions of release 
     cannot reasonably be expected to ensure the safety of the 
     community or any person, and either--
       ``(AA) the alien has been convicted of one or more 
     aggravated felonies as defined in section 101(a)(43)(A), one 
     or more crimes identified by the Secretary of Homeland 
     Security by regulation, or one or more attempts or 
     conspiracies to commit any such aggravated felonies or such 
     identified crimes, provided that the aggregate term of 
     imprisonment for such attempts or conspiracies is at least 5 
     years; or
       ``(BB) the alien has committed one or more crimes of 
     violence (as defined in section 16 of title 18, United States 
     Code, but not including a purely political offense) and, 
     because of a mental condition or personality disorder and 
     behavior associated with that condition or disorder, the 
     alien is likely to engage in acts of violence in the future; 
     or
       ``(ee) that the release of the alien will threaten the 
     safety of the community or any person, conditions of release 
     cannot reasonably be expected to ensure the safety of the 
     community or any person, and the alien has been convicted of 
     at least one aggravated felony as defined in section 
     101(a)(43); and

       ``(III) pending a determination under subclause (II), so 
     long as the Secretary has initiated the administrative review 
     process not later than 30 days after the expiration of the 
     removal period (including any extension of the removal period 
     as provided in subsection (a)(1)(C)).

       ``(C) Renewal and delegation of certification.--
       ``(i) Renewal.--The Secretary of Homeland Security may 
     renew a certification under subparagraph (B)(ii)(II) every 6 
     months without limitation, after providing an opportunity for 
     the alien to request reconsideration of the certification and 
     to submit documents or other evidence in support of that 
     request. If the Secretary does not renew a certification, the 
     Secretary may not continue to detain the alien under 
     subparagraph (B)(ii)(II).
       ``(ii) Delegation.--Notwithstanding section 103 of this 
     Act, the Secretary of Homeland Security may not delegate the 
     authority to make or renew a certification described in item 
     (bb), (cc), or (ee) of subparagraph (B)(ii)(II) to an 
     official below the level of the Assistant Secretary for 
     Immigration and Customs Enforcement.
       ``(iii) Hearing.--The Secretary of Homeland Security may 
     request that the Attorney General or his designee provide for 
     a hearing to make the determination described in clause 
     (dd)(BB) of subparagraph (B)(ii)(II).
       ``(D) Release on conditions.--If it is determined that an 
     alien should be released from detention, the Secretary of 
     Homeland Security, in the exercise of discretion, may impose 
     conditions on release as provided in paragraph (3).
       ``(E) Redetention.--The Secretary of Homeland Security, in 
     the exercise of discretion, without any limitations other 
     than those specified in this section, may again detain any 
     alien subject to a final removal order who is released from 
     custody if the alien fails to comply with the conditions of 
     release or to continue to satisfy the conditions described in 
     subparagraph (A), or if, upon reconsideration, the Secretary 
     determines that the alien can be detained under subparagraph 
     (B). Paragraphs (6) through (8) shall apply to any alien 
     returned to custody pursuant to this subparagraph, as if the 
     removal period terminated on the day of the redetention.
       ``(F) Certain aliens who effected entry.--If an alien has 
     effected an entry but has neither been lawfully admitted nor 
     physically present in the United States continuously for the 
     2-year period immediately prior to the commencement of 
     removal proceedings under this Act or deportation proceedings 
     against the alien, the Secretary of Homeland Security in the 
     exercise of discretion may decide not to apply paragraph (8) 
     and detain the alien without any limitations except those 
     which the Secretary shall adopt by regulation.
       ``(9) Judicial review.--Without regard to the place of 
     confinement, judicial review of any action or decision 
     pursuant to paragraph (6), (7), or (8) shall be available 
     exclusively in habeas corpus proceedings instituted in the 
     United States District Court for the District of Columbia, 
     and only if the alien has exhausted all administrative 
     remedies (statutory and regulatory) available to the alien as 
     of right.''.
       (B) Detention of aliens during removal proceedings.--
       (i) In general.--Section 235 of the Immigration and 
     Nationality Act (8 U.S.C. 1225) is amended by adding at the 
     end the following new subsections:
       ``(e) Length of Detention.--
       ``(1) In general.--With regard to the length of detention, 
     an alien may be detained under this section, without 
     limitation, until the alien is subject to an administratively 
     final order of removal.
       ``(2) Effect on detention under section 241.--The length of 
     detention under this section shall not affect the validity of 
     any detention under section 241 of this Act.
       ``(f) Judicial Review.--Without regard to the place of 
     confinement, judicial review of any action or decision made 
     pursuant to subsection (e) shall be available exclusively in 
     a habeas corpus proceeding instituted in the United States 
     District Court for the District of Columbia and only if the 
     alien has exhausted all administrative remedies (statutory 
     and nonstatutory) available to the alien as of right.''.
       (ii) Conforming amendments.--Section 236 of the Immigration 
     and Nationality Act (8 U.S.C. 1226) is amended--

       (I) by inserting at the end of subsection (e) the 
     following: ``Without regard to the place of confinement, 
     judicial review of any action or decision made pursuant to 
     section 235(f) shall be available exclusively in a habeas 
     corpus proceeding instituted in the United States District 
     Court for the District of Columbia, and only if the alien has 
     exhausted all administrative remedies (statutory and 
     nonstatutory) available to the alien as of right.''; and
       (II) by adding at the end the following new subsection:

       ``(f) Length of Detention.--

[[Page 5698]]

       ``(1) In general.--With regard to the length of detention, 
     an alien may be detained under this section, without 
     limitation, until the alien is subject to an administratively 
     final order of removal.
       ``(2) Effect on detention under section 241.--The length of 
     detention under this section shall not affect the validity of 
     any detention under section 241 of this Act.''.
       (C) Severability.--If any of the provisions of this 
     paragraph or any amendment by this paragraph, or the 
     application of any such provision to any person or 
     circumstance, is held to be invalid for any reason, the 
     remainder of this paragraph and of amendments made by this 
     paragraph, and the application of the provisions and of the 
     amendments made by this paragraph to any other person or 
     circumstance shall not be affected by such holding.
       (D) Effective dates.--
       (i) Amendments made by subparagraph (A).--The amendments 
     made by subparagraph (A) shall take effect on the date of 
     enactment of this Act, and section 241 of the Immigration and 
     Nationality Act, as amended, shall apply to--

       (I) all aliens subject to a final administrative removal, 
     deportation, or exclusion order that was issued before, on, 
     or after the date of enactment of this Act; and
       (II) acts and conditions occurring or existing before, on, 
     or after the date of enactment of this Act.

       (ii) Amendments made by subparagraph (B).--The amendments 
     made by subparagraph (B) shall take effect on the date of 
     enactment of this Act, and sections 235 and 236 of the 
     Immigration and Nationality Act, as amended, shall apply to 
     any alien in detention under provisions of such sections on 
     or after the date of enactment of this Act.
       (2) Criminal detention of aliens to protect public 
     safety.--
       (A) In general.--Section 3142(e) of title 18, United States 
     Code, is amended to read as follows:
       ``(e) Detention.--If, after a hearing pursuant to the 
     provisions of subsection (f), the judicial officer finds that 
     no condition or combination of conditions will reasonably 
     assure the appearance of the person as required and the 
     safety of any other person and the community, such judicial 
     officer shall order the detention of the person before trial.
       ``(1) Presumption arising from offenses described in 
     subsection (f)(1).--In a case described in subsection (f)(1) 
     of this section, a rebuttable presumption arises that no 
     condition or combination of conditions will reasonably assure 
     the safety of any other person and the community if such 
     judicial officer finds that--
       ``(A) the person has been convicted of a Federal offense 
     that is described in subsection (f)(1), or of a State or 
     local offense that would have been an offense described in 
     subsection (f)(1) if a circumstance giving rise to Federal 
     jurisdiction had existed;
       ``(B) the offense described in subparagraph (A) was 
     committed while the person was on release pending trial for a 
     Federal, State, or local offense; and
       ``(C) a period of not more than 5 years has elapsed since 
     the date of conviction or the release of the person from 
     imprisonment, for the offense described in subparagraph (A), 
     whichever is later.
       ``(2) Presumption arising from other offenses involving 
     illegal substances, firearms, violence, or minors.--Subject 
     to rebuttal by the person, it shall be presumed that no 
     condition or combination of conditions will reasonably assure 
     the appearance of the person as required and the safety of 
     the community if the judicial officer finds that there is 
     probable cause to believe that the person committed an 
     offense for which a maximum term of imprisonment of 10 years 
     or more is prescribed in the Controlled Substances Act (21 
     U.S.C. 801 et seq.), the Controlled Substances Import and 
     Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 
     46, an offense under section 924(c), 956(a), or 2332b of this 
     title, or an offense listed in section 2332b(g)(5)(B) of this 
     title for which a maximum term of imprisonment of 10 years or 
     more is prescribed, or an offense involving a minor victim 
     under section 1201, 1591, 2241, 2242, 2244(a)(1), 2245, 2251, 
     2251A, 2252(a)(1), 2252(a)(2), 2252(a)(3), 2252A(a)(1), 
     2252A(a)(2), 2252A(a)(3), 2252A(a)(4), 2260, 2421, 2422, 
     2423, or 2425 of this title.
       ``(3) Presumption arising from offenses relating to 
     immigration law.--Subject to rebuttal by the person, it shall 
     be presumed that no condition or combination of conditions 
     will reasonably assure the appearance of the person as 
     required if the judicial officer finds that there is probable 
     cause to believe that the person is an alien and that the 
     person--
       ``(A) has no lawful immigration status in the United 
     States;
       ``(B) is the subject of a final order of removal; or
       ``(C) has committed a felony offense under section 
     842(i)(5), 911, 922(g)(5), 1015, 1028, 1028A, 1425, or 1426 
     of this title, or any section of chapters 75 and 77 of this 
     title, or section 243, 274, 275, 276, 277, or 278 of the 
     Immigration and Nationality Act (8 U.S.C. 1253, 1324, 1325, 
     1326, 1327, and 1328).''.
       (B) Immigration status as factor in determining conditions 
     of release.--Section 3142(g)(3) of title 18, United States 
     Code, is amended--
       (i) in subparagraph (A), by striking ``and'' at the end; 
     and
       (ii) by adding at the end the following new subparagraph:
       ``(C) the person's immigration status; and''.
       (d) Prevention and Deterrence of Terrorist Suicide Bombings 
     and Terrorist Murders, Kidnapping, and Sexual Assaults.--
       (1) Offense of rewarding or facilitating international 
     terrorist acts.--
       (A) In general.--Chapter 113B of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 2339E. Providing material support to international 
       terrorism

       ``(a) Definitions.--In this section:
       ``(1) The term `facility of interstate or foreign commerce' 
     has the same meaning as in section 1958(b)(2).
       ``(2) The term `international terrorism' has the same 
     meaning as in section 2331.
       ``(3) The term `material support or resources' has the same 
     meaning as in section 2339A(b).
       ``(4) The term `perpetrator of an act' includes any person 
     who--
       ``(A) commits the act;
       ``(B) aids, abets, counsels, commands, induces, or procures 
     its commission; or
       ``(C) attempts, plots, or conspires to commit the act.
       ``(5) The term `serious bodily injury' has the same meaning 
     as in section 1365.
       ``(b) Prohibition.--Whoever, in a circumstance described in 
     subsection (c), provides, or attempts or conspires to 
     provide, material support or resources to the perpetrator of 
     an act of international terrorism, or to a family member or 
     other person associated with such perpetrator, with the 
     intent to facilitate, reward, or encourage that act or other 
     acts of international terrorism, shall be fined under this 
     title, imprisoned not more than 25 years, or both, and, if 
     death results, shall be imprisoned for any term of years or 
     for life.
       ``(c) Jurisdictional Bases.--A circumstance referred to in 
     subsection (b) is that--
       ``(1) the offense occurs in or affects interstate or 
     foreign commerce;
       ``(2) the offense involves the use of the mails or a 
     facility of interstate or foreign commerce;
       ``(3) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that affects 
     interstate or foreign commerce or would have affected 
     interstate or foreign commerce had it been consummated;
       ``(4) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that violates the 
     criminal laws of the United States;
       ``(5) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that is designed 
     to influence the policy or affect the conduct of the United 
     States Government;
       ``(6) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that occurs in 
     part within the United States and is designed to influence 
     the policy or affect the conduct of a foreign government;
       ``(7) an offender intends to facilitate, reward, or 
     encourage an act of international terrorism that causes or is 
     designed to cause death or serious bodily injury to a 
     national of the United States while that national is outside 
     the United States, or substantial damage to the property of a 
     legal entity organized under the laws of the United States 
     (including any of its States, districts, commonwealths, 
     territories, or possessions) while that property is outside 
     of the United States;
       ``(8) the offense occurs in whole or in part within the 
     United States, and an offender intends to facilitate, reward 
     or encourage an act of international terrorism that is 
     designed to influence the policy or affect the conduct of a 
     foreign government; or
       ``(9) the offense occurs in whole or in part outside of the 
     United States, and an offender is a national of the United 
     States, a stateless person whose habitual residence is in the 
     United States, or a legal entity organized under the laws of 
     the United States (including any of its States, districts, 
     commonwealths, territories, or possessions).''.
       (B) Technical and conforming amendments.--
       (i) Table of sections.--The table of sections at the 
     beginning of chapter 113B of title 18, United States Code, is 
     amended by adding at the end the following:

``2339D. Receiving military-type training from a foreign terrorist 
              organization.
``2339E. Providing material support to international terrorism.''.

       (ii) Other amendment.--Section 2332b(g)(5)(B)(i) of title 
     18, United States Code, is amended by inserting ``2339E 
     (relating to providing material support to international 
     terrorism),'' before ``or 2340A (relating to torture)''.
       (2) Increased penalties for providing material support to 
     terrorists.--
       (A) Providing material support to designated foreign 
     terrorist organizations.--Section 2339B(a) of title 18, 
     United

[[Page 5699]]

     States Code, is amended by striking ``15 years'' and 
     inserting ``25 years''.
       (B) Providing material support or resources in aid of a 
     terrorist crime.--Section 2339A(a) of title 18, United States 
     Code, is amended by striking ``15 years'' and inserting ``40 
     years''.
       (C) Receiving military-type training from a foreign 
     terrorist organization.--Section 2339D(a) of title 18, United 
     States Code, is amended by striking ``ten years'' and 
     inserting ``15 years''.
       (D) Addition of attempts and conspiracies to an offense 
     relating to military training.--Section 2339D(a) of title 18, 
     United States Code, is amended by inserting ``, or attempts 
     or conspires to receive,'' after ``receives''.
       (3) Denial of federal benefits to convicted terrorists.--
       (A) In general.--Chapter 113B of title 18, United States 
     Code, as amended by this subsection, is amended by adding at 
     the end the following:

     ``Sec. 2339F. Denial of Federal benefits to terrorists

       ``(a) In General.--Any individual who is convicted of a 
     Federal crime of terrorism (as defined in section 2332b(g)) 
     shall, as provided by the court on motion of the Government, 
     be ineligible for any or all Federal benefits for any term of 
     years or for life.
       ``(b) Federal Benefit Defined.--In this section, `Federal 
     benefit' has the meaning given that term in section 421(d) of 
     the Controlled Substances Act (21 U.S.C. 862(d)).''.
       (B) Technical and conforming amendment.--The table of 
     sections at the beginning of chapter 113B of title 18, United 
     States Code, as amended by this subsection, is amended by 
     adding at the end the following:

``2339F. Denial of Federal benefits to terrorists.''.
       (4) Addition of attempts or conspiracies to offense of 
     terrorist murder.--Section 2332(a) of title 18, United States 
     Code, is amended--
       (A) by inserting ``, or attempts or conspires to kill,'' 
     after ``Whoever kills''; and
       (B) in paragraph (2), by striking ``ten years'' and 
     inserting ``30 years''.
       (5) Addition of offense of terrorist kidnapping.--Section 
     2332(b) of title 18, United States Code, is amended to read 
     as follows:
       ``(b) Kidnapping.--Whoever outside the United States 
     unlawfully seizes, confines, inveigles, decoys, kidnaps, 
     abducts, or carries away, or attempts or conspires to seize, 
     confine, inveigle, decoy, kidnap, abduct or carry away, a 
     national of the United States, shall be fined under this 
     title, imprisoned for any term of years or for life, or 
     both.''.
       (6) Addition of sexual assault to definition of offense of 
     terrorist assault.--Section 2332(c) of title 18, United 
     States Code, is amended--
       (A) in paragraph (1), by inserting ``(as defined in section 
     1365, including any conduct that, if the conduct occurred in 
     the special maritime and territorial jurisdiction of the 
     United States, would violate section 2241 or 2242)'' after 
     ``injury'';
       (B) in paragraph (2), by inserting ``(as defined in section 
     1365, including any conduct that, if the conduct occurred in 
     the special maritime and territorial jurisdiction of the 
     United States, would violate section 2241 or 2242)'' after 
     ``injury''; and
       (C) in the matter following paragraph (2), by striking 
     ``ten years'' and inserting ``40 years''.
       (e) Improvements to the Terrorist Hoax Statute.--
       (1) Hoax statute.--Section 1038 of title 18, United States 
     Code, is amended--
       (A) in subsection (a)--
       (i) in paragraph (1), after ``title 49,'' by inserting ``or 
     any other offense listed under section 2332b(g)(5)(B) of this 
     title,''; and
       (ii) in paragraph (2)--

       (I) in subparagraph (A), by striking ``5 years'' and 
     inserting ``10 years''; and
       (II) in subparagraph (B), by striking ``20 years'' and 
     inserting ``25 years''; and

       (B) by amending subsection (b) to read as follows:
       ``(b) Civil Action.--
       ``(1) In general.--Whoever engages in any conduct with 
     intent to convey false or misleading information under 
     circumstances where such information may reasonably be 
     believed and where such information indicates that an 
     activity has taken, is taking, or will take place that would 
     constitute an offense listed under subsection (a)(1) is 
     liable in a civil action to any party incurring expenses 
     incident to any emergency or investigative response to that 
     conduct, for those expenses.
       ``(2) Effect of conduct.--
       ``(A) In general.--A person described in subparagraph (B) 
     is liable in a civil action to any party described in 
     subparagraph (B)(ii) for any expenses that are incurred by 
     that party--
       ``(i) incident to any emergency or investigative response 
     to any conduct described in subparagraph (B)(i); and
       ``(ii) after the person that engaged in that conduct should 
     have informed that party of the actual nature of the 
     activity.
       ``(B) Applicability.--A person described in this 
     subparagraph is any person that--
       ``(i) engages in any conduct that has the effect of 
     conveying false or misleading information under circumstances 
     where such information may reasonably be believed and where 
     such information indicates that an activity has taken, is 
     taking, or will take place that would constitute an offense 
     listed under subsection (a)(1);
       ``(ii) receives notice that another party believes that the 
     information indicates that such an activity has taken, is 
     taking, or will take place; and
       ``(iii) after receiving such notice, fails to promptly and 
     reasonably inform any party described in subparagraph (B) of 
     the actual nature of the activity.''.
       (2) Threatening communications.--
       (A) Mailed within the united states.--Section 876 of title 
     18, United States Code, is amended by adding at the end 
     thereof the following new subsection:
       ``(e) For purposes of this section, the term `addressed to 
     any other person' includes an individual (other than the 
     sender), a corporation or other legal person, and a 
     government or agency or component thereof.''.
       (B) Mailed to a foreign country.--Section 877 of title 18, 
     United States Code, is amended by adding at the end thereof 
     the following new paragraph:
       ``For purposes of this section, the term `addressed to any 
     person' includes an individual, a corporation or other legal 
     person, and a government or agency or component thereof.''.


                             Cloture Motion

  Mr. McCONNELL. Madam President, this modification is a series of 
revisions relating to terrorism, and in a moment I will describe those 
provisions. The majority leader has indicated that he will file a 
cloture motion tonight in order to bring the bill to a close because we 
have been unable to get an agreement to vote on several of these 
terrorist-related amendments. I am prepared to file a cloture motion on 
this amendment and, therefore, I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on pending 
     amendment No. 312, as modified, to amendment No. 275 to 
     Calendar No. 57, S. 4, a bill to make the United States more 
     secure by implementing unfinished recommendations of the 9/11 
     Commission to fight the war on terror more effectively, to 
     improve homeland security, and for other purposes.
         John Cornyn, Jon Kyl, Mike Crapo, John Ensign, Saxby 
           Chambliss, Judd Gregg, Richard Burr, Jim Bunning, Sam 
           Brownback, Mitch McConnell, Craig Thomas, Tom Coburn, 
           Wayne Allard, Jim DeMint, John Thune, Pat Roberts, 
           Lindsey Graham.

  Mr. McCONNELL. Madam President, just by way of explanation, this 
modified amendment aims to improve our national security in five areas. 
For the first time, it will make it a crime to recruit people to commit 
terrorist acts on American soil. For the first time, it would allow for 
the immediate deportation of suspected terrorists whose visas have been 
revoked for terrorism-related activities. For the first time, it would 
prevent the release of dangerous illegal immigrants whose home 
countries actually don't want them back. For the first time, it would 
make it a crime to reward the families of suicide bombers, and it would 
increase the penalty for those who torment the families of our service 
men and women by calling their families and falsely claiming that their 
loved ones have been killed in the field of battle. It contains five 
provisions that would make our homeland more secure by penalizing 
recruiters, deporting terrorist suspects, keeping dangerous criminals 
behind bars, and protecting the families of our troops.
  Voting on this amendment will not slow down the bill. We are not 
interested in doing that. We will gladly agree to vitiate cloture in 
exchange for a unanimous consent vote on this amendment or, if cloture 
is invoked, we will agree to yield back the 30 hours of postcloture 
time in order to move ahead.
  The war against terrorism requires that we adapt our methods to 
emerging threats, and that is precisely what these new and vital 
provisions would allow us to do.
  Let me conclude by saying we believe these amendments are definitely 
related to the bill. We had hoped to be able to get an agreement to 
have this amendment considered. So far, that has not occurred, but we 
want to reiterate we have no desire to slow down

[[Page 5700]]

the passage of the bill. That is why I felt compelled to file cloture 
at this time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, I am very sympathetic to the concerns 
of the Republican leader about trying to move forward with some votes. 
I do wish he had discussed his approach with the managers of this bill 
since he has taken us completely by surprise on the Senate floor, but I 
think he has raised an important issue, that our Members deserve to 
have votes on the important issues that are before us. If we are going 
to complete action on this bill by the end of the week, we need to 
start voting. We need to start disposing of these amendments, whether 
they are adopted or rejected or withdrawn. So I am sympathetic to the 
frustration of the Republican leader over this matter. We do need to 
move forward and have votes.
  I do wish he had discussed his intentions with the managers of the 
bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Madam President, I appreciate the comments of the Senator 
from Maine, the distinguished ranking member of the Homeland Security 
and Governmental Affairs Committee. In response, I would point out that 
these amendments, which are now consolidated in this modification, 
actually have been pending now for some time but we have been 
unsuccessful in persuading the majority to give us an opportunity for 
an up-or-down vote on them.
  The bill we are debating is entitled ``A Bill to Make the United 
States More Secure By Implementing Unfinished Recommendations of the 9/
11 Commission to Fight the War on Terror More Effectively, to Improve 
Homeland Security, and for other purposes.'' I can't think of any 
amendment that would be more appropriate to accomplishing the stated 
goal of this particular legislation than the one I have pending now.
  The distinguished Republican leader has summarized, I think very 
well, what is contained in this modification. But just so none of my 
colleagues are confused, these are not new matters. This modification 
simply represents a consolidation of several amendments that are 
pending on the floor and have been pending for some time, but which 
have been refused an opportunity to have a full and fair debate 
followed by an up-or-down vote by the majority.
  We all know it has been more than 5 years since September 11. And, 
there remains some unfinished business that needs to be addressed by 
this legislation, and my amendment will do just that.
  One of the things left to do is to target terrorist recruiting. The 
FBI and other agencies have made it clear that al-Qaida and other 
terrorist organizations are intent on attacking our country again and 
are busy recruiting those who wish to join them. We know al-Qaida is a 
patient enemy, waiting years to attack--sometimes embedding into 
society and appearing to be a part of the regular population until, but 
at a time of their choosing, rising out of their sleeper cells to 
attack innocent civilians to accomplish their goals.
  According to congressional testimony, terrorists and terrorist 
sympathizers are actively in the process of recruiting terrorists 
within the United States. So we are not just talking about a wholly 
foreign enemy that would attack us from abroad; we are talking about 
people being recruited to carry out terrorist attacks here in the 
United States. Of course their goal is to find individuals who do not 
fit the traditional terrorist model, who can operate freely in our 
country, and who are willing to engage in these heinous acts. 
Recruiting these type of individuals, those who blend easily into our 
society, provides al-Qaida an operational advantage.
  This is not an academic discussion. Let me just use one example to 
demonstrate this reality. Intelligence materials related to Khalid 
Shaikh Mohammed, the so-called mastermind of the 9/11 plot, show that 
he was running terrorist cells within the United States. These 
documents show that al-Qaida's goal was to recruit U.S. citizens and 
other westerners so they could move freely within our country, so they 
would be unlikely to be identified and stopped at our border's edge or 
in our airports or land-based ports before they carry out their 
attacks. These terrorist recruiters have targeted mosques, prisons, and 
universities throughout the United States where they could identify and 
recruit people who might be sympathetic to their jihadist message and 
then persuade these individuals to join their organization.
  Unbelievably, we currently have no statute in place that is designed 
to punish those who recruit people to commit terrorist acts. This 
amendment includes a provision that would remedy this serious gap in 
our law. It simply provides that it is against the law to recruit or, 
in the words of the amendment, ``to employ, solicit, induce, command or 
cause'' any person to commit an act of domestic terrorism, 
international terrorism, or a Federal crime of terrorism, and any 
person convicted of this would face serious punishment.
  This amendment also provides that anyone committing this crime should 
be punished for up to 10 years in the Federal penitentiary. If a death 
results in connection with this crime, he or she can be punished by 
death or a term of years or for life; if serious bodily injury to any 
individual results, then a punishment of no less than 10 years or more 
than 25 years is available to the judge.
  This is a commonsense measure, designed to fill a serious gap in our 
Criminal Code that, frankly, should not continue to exist more than 5 
years after September 11. This fits exactly with the stated purpose of 
this legislation, and I hope our colleagues will vote in favor of this 
amendment.
  Two other provisions in this amendment that again represent 
amendments that have been previously filed and are pending but which I 
have now included in this consolidated amendment. One includes a remedy 
to a problem created by a Supreme Court decision in 2001, the Zadvydas 
case, which held that dangerous criminal aliens must be released after 
an expiration of 6 months if there is no likelihood that their home 
country would take them back in the near future, even if their home 
country will not take them. This means that they have to be released 
into the general population of the United States, free to re-commit 
serious crimes.
  In other words, what the Supreme Court said is that Congress had not 
specifically authorized the Department of Homeland Security to hold 
dangerous criminal aliens whose home country will not take them back 
for longer than 6 months pending their deportation or repatriation to 
their home country. This amendment remedies that decision. In fact, the 
Supreme Court invited the Congress to revisit this decision, since it 
is purely a statutory holding.
  Specifically, this amendment would allow DHS to protect the American 
people from dangerous criminal aliens until their removal proceedings 
are completed. It allows the Department of Homeland Security to detain 
criminal aliens after a final order of removal and beyond the 90-day 
removal period if removal is likely to occur in the foreseeable future 
or for national security and public safety grounds. It preserves the 
right of the alien to seek review of continued detention through habeas 
proceedings after exhaustion of administrative remedies. And to be 
clear, my amendment does preserve the right of the affected alien to 
seek administrative and judicial review of these decisions. But, the 
amendment makes clear that it is intended to fill an important gap by 
authorizing DHS to protect the American people from the willy-nilly 
release of dangerous criminal aliens after 6 months. This situation has 
occurred and will continue to occur and it is important for Congress to 
step up and to fix this problem created by the interpretation of this 
statute in 2001 by the U.S. Supreme Court.
  The last element of this consolidated amendment that I want to 
mention has

[[Page 5701]]

to do with material support for suicide bombers and other terrorists. 
We hear too often the difficulty in identifying and stopping suicide 
bombers before they can carry out their deadly attacks. One incentive 
to those who decide to carry out these attacks is financial rewards 
promised to the families of suicide bombers who are assured that their 
families will be paid and cared for after they commit their heinous 
acts. This provision would ban the payment of financial rewards or 
other material support to the families of suicide bombers such as 
Assad, a known terrorist who has enticed people to engage in these 
attacks, with a promise to pay their families up to $25,000, if my 
memory serves me correctly, as a reward. This provision would ban the 
payment of these types of financial rewards and dry up a real incentive 
used to induce or facilitate carrying out of a terrorist attack and 
send to prison those who do so.
  I would add that this amendment also increases the punishments for 
those convicted of providing material support. The Department of 
Justice has told us that the material support statute is one of the 
most important anti-terror tools in their tool box, and it is only 
right and appropriate that we use this opportunity to strengthen the 9/
11 bill with this important improvement to such an effective statute.
  In conclusion, this amendment provides real anti-terror and anti-
crime tools to the 9/11 bill and will ensure, as the preface of this 
bill states, that it will finish the unfinished business of the 9/11 
Commission and of the Nation, making us more secure, 5 years-plus since 
the dastardly attacks of 9/11.
  I yield the floor.


                             Change of Vote

  Mr. COBURN. Mr. President, on rollcall vote 62, I voted ``yea'', it 
was my intention to vote ``nay''. I ask unanimous consent that I be 
permitted to change my vote since it will not affect the outcome.
  The PRESIDING OFFICER (Mr. Obama). Without objection, it is so 
ordered.


                           Amendment No. 345

  Mr. INOUYE. Mr. President, I rise in opposition to amendment No. 345, 
which was submitted by Senator Coburn of Oklahoma. This amendment 
diverts funds that Congress has designated to be obligated before 
October 1 of this year through the Department of Commerce 
Interoperability Grant Program into a yet-to-be created Homeland 
Security grant program.
  This amendment is offered at the same time the President is proposing 
to decrease funding for State and local preparedness grants and 
firefighter assistance grants from the enacted fiscal year 2007 levels 
by $1.2 billion.
  To make matters worse, the amendment delays the obligation of $1 
billion in interoperability grants by up to 3 years. In the President's 
2008 budget proposal, the administration reduces State and local 
programs by $840 million and assistance to firefighter grants by $362 
million.
  The transfer of the $1 billion the Federal Communications Commission 
will raise as part of the digital television spectrum auction to the 
Department of Homeland Security will mask the technical decrease in the 
budget request. In the end, it means less money for the first 
responders, which I believe is bad for national security.
  It is important to remember that as part of the Deficit Reduction Act 
of 2005, Congress created the $1 billion fund in the Department of 
Commerce to support State and local first responders in their efforts 
to talk with one another in times of emergency. The interoperability 
subtitle in this act expands upon prior action taken in the Deficit 
Reduction Act of 2005 and provides additional guidance to the Commerce 
Department.
  The provision which I introduced with Senators Stevens, Kerry, Smith, 
and Snowe was reported out of the committee with unanimous support of 
the Members. The Commerce Department grant program is intended to jump-
start the efforts of the administration to address a key 9/11 
Commission concern--interoperability.
  The Department of Homeland Security has been and continues to be too 
slow to act, and the Coburn amendment would only exacerbate the 
problem. If the Coburn amendment were to pass, it would first decrease 
grants to first responders this fiscal year by $700 million; eliminate 
the $100 million fund for strategic reserves of communications 
equipment, designed to be rapidly deployed in the event of a major 
disaster; and, third, eliminate the all-hazards approach that considers 
the likelihood of natural disasters as well as terrorist attacks that 
the Commerce Department would use making interoperability grants. 
Contrary to the Senator's assertion, the Commerce Department 
Interoperability Grant Program is complementary to and not duplicative 
of the DHS grant program.
  First, the Department of Commerce will award all $1 billion in grants 
by September 30 of this year, while the DHS program as currently 
constructed is not authorized until fiscal year 2008, and is still 
subject to appropriations.
  This money is needed now and should be in addition to the regular 
appropriation process, not awarded over the next 3 years as a 
substitute for appropriations funding. Second, the program allows the 
Administrator of the National Telecommunications and Information 
Administration to direct up to $100 million of these funds for the 
creation of State and Federal strategic technology reserves of 
communications equipment that can be readily deployed in the event that 
terrestrial networks fail in times of disaster.
  Should this occur--it did occur in Katrina--there is no comparable 
program created in the DHS grant program. The strategic reserve program 
is a necessary initiative that has not been prioritized by the DHS to 
date.
  Recently, an independent panel created by Federal Communications 
Commission Chairman Kevin Martin to review the impact of Hurricane 
Katrina on communications networks noted the impact that limited pre-
positioning of communications equipment had in slowing the recovery 
process. As a result, the program will help to ensure that our focus on 
interoperability also considers the importance of communications 
redundancy and resiliency as well.
  Third, in addition to minimum funding allocations, the Department of 
Commerce Interoperability Grant Program would further require that 
prioritization of those funds be based upon an all-hazards approach 
that recognizes the critical need for effective emergency communication 
and response to natural disasters such as tsunamis, earthquakes, 
hurricanes, and tornados, in addition to terrorist attacks.
  While the DHS program being created would consider natural disasters 
as one of the many factors in awarding of grants, the Department of 
Commerce Interoperability Grant Program's all-hazards approach places a 
high priority on funding States based on the threats they face from 
natural catastrophes as well as terrorist attacks.
  We have heard two contradicting arguments to support the elimination 
of the Department of Commerce grant program. The author claims both 
that the DHS is doing all of the administrative work for the Department 
of Commerce grant program, and that there is a risk of double-dipping 
because the DHS will not know who is receiving the Department of 
Commerce grants. Both claims cannot be right and, in fact, neither is 
true. The NTIA and the DHS have been working together for months to 
craft an agreement under which the two agencies will disburse the $1 
billion raised from the DTV spectrum auction.
  On February 16, 2007, the DHS and the NTIA entered into a memorandum 
of understanding covering the administration of the grant program. 
While the DHS will play a large role in administering the grants, the 
NTIA will work with the DHS to establish the grant procedures, which 
will ensure that an all-hazards approach is followed and that a 
strategic reserve equipment program is developed.
  The interoperability subtitle further ensures that the grants funded 
are consistent with the Federal grant guidance established by the 
SAFECOM Program within the DHS. As a result, the DHS will be fully 
aware of who is getting grants and for what purposes. At

[[Page 5702]]

the same time, the NTIA will maintain a leadership role in guiding the 
interoperability grant program. The NTIA has a long history of 
addressing interoperable communications issues, and it is vital that 
the administration help guide the DHS's work.
  Since its creation, the NTIA has served as the principal 
telecommunications policy adviser to the Secretary of Commerce and the 
President and manages the Federal Government's use of the radio 
spectrum. According to Assistant Secretary Kneuer, the Administrator of 
the NTIA, the ``intersection of telecommunications policy and spectrum 
management has been the key focus of the NTIA, including public safety 
communications and interoperability issues.''
  In this capacity, the NTIA has historically played an important role 
in assisting public safety personnel and improving communications 
interoperability and recognizing that effective solutions involve 
attention to issues of spectrum and government coordination as well as 
funding. Its work more than a decade ago in creating the Public Safety 
Wireless Advisory Committee, formed by the FCC and the NTIA pursuant to 
Congress's direction, framed this issue in this way:

       At the most basic level, radio-based voice communications 
     allow dispatchers to direct mobile units to the scene of a 
     crime and allow firefighters to coordinate and to warn each 
     other of impending danger at fires. Radio systems are also 
     vital for providing logistics and command support during 
     major emergencies and disasters such as earthquakes, riots, 
     or plane crashes. . . .
       In an era where technology can bring news, current events, 
     and entertainment such as the Olympics to the farthest 
     reaches of the world, many police officers, firefighters, and 
     emergency medical service personnel working in the same city 
     cannot communicate with each other. Congested and fragmented 
     spectral resources, inadequate funding for technology 
     upgrades, and a wide variety of governmental and 
     institutional obstacles result in a critical situation which, 
     if not addressed expeditiously, will ultimately compromise 
     the ability of Public Safety officials to protect life and 
     property.

  The Coburn amendment would disrupt the MOU, upset the work the NTIA 
and the DHS have undertaken, and delay the awarding of interoperability 
grants.
  Finally, the NTIA's administration of the grant program will not only 
help to integrate the disparate elements that must be part of effective 
interoperability solutions but will also ensure greater program 
transparency and oversight. Given the myriad of different grant 
programs administered by the Department of Homeland Security, it is 
critical that these funds--specifically allocated by Congress to speed 
up our efforts to improve communications interoperability for first 
responders--not get lost in the shuffle of other disaster and 
nondisaster grants. As a result, the provisions not only devote the 
NTIA's attention to the success of this program but also require the 
inspector general of the Department of Commerce to annually review the 
administration of this program.
  In sum, the Department of Commerce interoperability grant program 
improves the Nation's security. Senator Coburn's amendment would delay 
the awarding of needed interoperability grants and disrupts months of 
work by the NTIA and the DHS. Therefore, I urge my colleagues to vote 
against the Coburn amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, since 2001, we have heard a growing cry 
from public safety officials that police, firefighters, and emergency 
medical response personnel throughout the country need help to achieve 
interoperability in today's communications world.
  Sadly, this problem actually predated September 11. More than a 
decade ago, the FCC and the National Telecommunications and Information 
Administration formed the Public Safety Wireless Advisory Committee to 
examine the communications needs of first responders and public safety 
officials. That report called for more spectrum, technological 
solutions, and more funding, and was filed 5 years to the day before 
the tragedy of 9/11. It called for those improvements to save lives on 
a daily basis. These solutions are not geared just for the huge 
disasters but are also geared for the everyday tragedies that can be 
avoided with better communications and better interoperability.
  Thanks to the work of the last Congress, public safety stands ready 
to finally receive the help that the FCC and NTIA called for more than 
10 years ago.
  Last year, the Congress set a hard date for broadcasters to turn over 
24 megahertz of spectrum to public safety for communications and 
interoperability. Right now, the FCC is examining proposals to maximize 
the broadband potential of that spectrum, which will bring great new 
services and capabilities to policemen, firefighters, and other 
emergency personnel. In addition, Congress created a $1 billion 
interoperability grant program with the funds that will be received 
from the auctioning off of the rest of the spectrum recovered from 
broadcasters. That program originated out of our Senate Commerce 
Committee. The Department of Commerce and Department of Homeland 
Security have signed a memorandum of understanding to work together in 
this regard.
  Additionally, at the very end of the Congress last year, we 
accelerated the granting of the awards as part of what was called the 
Call Home Act. Therefore, by law, the interoperability grants which are 
available must be awarded by September 30, 2007. Public safety has been 
waiting for a very long time for these funds, and they finally have a 
date-certain when the interoperability grants will be awarded.
  Having worked with the FCC and the NTIA over the last decade, our 
Senate Commerce Committee has watched as the public safety 
communications market has evolved, and we have heard about a number of 
technological solutions that may address both near-term and long-term 
interoperability needs. Internet protocol systems can be used as 
bridges between otherwise incompatible communications systems now. 
Strategic technological reserves can be created to quickly replace 
infrastructure that is destroyed in large-scale disasters. Hurricanes 
Katrina and Rita demonstrated the need for portable wireless systems 
that are readily deployed when a disaster destroys the existing 
communications infrastructure. Standards development and dedicated 
interoperability channels facilitate planning and incident management 
between agencies.
  All of these solutions can be achieved now and are provided for by 
the provisions of the Commerce Committee's interoperability provisions. 
Unfortunately, the amendment of my friend, the Senator from Oklahoma, 
would delay all of these solutions. That would be unfortunate for 
public safety and very harmful to the public.
  The Homeland Security Committee has created its own interoperability 
program that is separate from the Commerce $1 billion program. However, 
that program is a separate one. It is focused on the long term, after 
additional planning is done, and would still be several years away from 
even awarding grants, let alone implementing them.
  It is time we finally deliver on our promises to the police, 
firefighters, and emergency medical personnel. Those around the country 
really believe us, and we believe we can deliver the technological 
reserves and interoperability communications that will help first 
responders now by moving forward with the $1 billion public safety 
grant program, administered by NTIA. We really should not wait any 
longer. We cannot plan indefinitely. It has been over 10 years, as I 
have said. These solutions take time to implement. We should move 
forward on these programs now. With the Commerce program, public safety 
will be able to move forward with real solutions and begin addressing 
the problems that have plagued our Nation's first responders for too 
long.
  We are able to come across some really interesting innovations, too. 
Through the NTIA's program, it is possible to use communications 
concepts and bring about interoperability without a large expenditure 
for new equipment. This first $1 billion will stretch

[[Page 5703]]

real far if it is used on the plans of the NTIA. If it is delayed--
unfortunately, I think that is what the amendment of the Senator from 
Oklahoma would do. It will really put us in the position where we 
cannot implement what has been done now.
  These people--first responders--have been planning now for 3 years to 
get this money, and it is going to be paid out this year under the 
program we have already enacted into law.
  I urge my friend from Oklahoma: Don't delay that $1 billion. I 
understand there may be some concerns about the $3 billion in this 
bill. Even that, though, is money that will be planned--it will be 
several years before it will be made available. The money we have, the 
$1 billion that is already provided by law, is available as soon as it 
comes in. I think it will go a long way to meeting the immediate needs 
of first responders.
  So I hope the Senator will not really persevere with his amendment. I 
understand his concerns, and we share the concerns of the use of money. 
I do believe, if you study the technology now, it is possible to put 
together--we have one program where the National Guard has a mobile 
unit that is equipped with interoperability concepts that came about 
through software. Using the software on that vehicle, they can bring 
about interoperability with any system anyone uses in the first-
responder era today.
  If we move forward on those things we can do now, immediately, with 
interoperability--brought about through the use of technology--it will 
save us a lot of money in the long run. I believe this $1 billion will 
demonstrate we can do this, make this interoperability capability 
available to our first responders at a lot less money than other people 
believe. I think this $1 billion is needed, and it will go a long way.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, first of all, let me compliment the 
chairman and ranking member for their foresight in making sure we have 
the capability to have interoperability, with the wisdom of taking 
spectrum and putting it specifically for that.
  I want to answer several of the questions that have been raised 
because they are somewhat peculiar to me.
  But before I do that, Mr. President, I ask unanimous consent that 
Senator Kyl be added as a cosponsor to this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COBURN. Mr. President, I say to the Senator, I would also like to 
note that one of the members of your committee, who was instrumental in 
bringing this interoperability grant program to the floor, is also a 
cosponsor of my amendment, realizing we do not need both programs and 
that they need to be combined.
  Now, what does DHS tell us about the present grant program? Here is 
what they tell us. And I say to the American public, you ask yourself 
if you want your Government to run this way. What they say is: We can 
meet the September 30 deadline, and we may be able to tell you who is 
going to get grants, but we are not going to be able to tell you, 
anywhere close, how much money they are going to get. So they can tell 
them who will get the grants because that is what the law says, but 
they will never have the capability, for several months thereafter, to 
know how much money they are going to get. So nobody is going to buy 
anything until the actual grants are going to be awarded.
  Let's clear up the difference between the Departments of Commerce and 
Homeland Security. No. 1, Homeland Security has the authority for 
interoperable communications. I do not care where this grant program 
is, quite frankly. I do not care if it is at Homeland Security or at 
Commerce. I do not care. But what I do know is, out of that $1 billion, 
the only thing the Department of Commerce is going to keep is $12 
million with which to use to announce the grants. That is what they 
have told us. So $988 million out of that--the rest of that money--is 
going to go for grants, administered by, controlled by, run by Homeland 
Security.
  So if the problem with my amendment is that the money isn't going to 
get out there to do it, Homeland Security has already said the money 
isn't going to get out there to do it. Commerce has already said the 
money isn't going to get out there to do it. We know who will get 
money, but the money won't get out there regardless of what they have 
said, because they just came to an understanding of the agreement 3 
weeks ago on administering this money.
  I think it is very wise what the chairman and ranking member have 
done in terms of allocating resources. As a matter of fact, I applaud 
them for that. I think it is wise to dedicate resources to certain 
things when we sell spectrum. I would tell my colleagues most Americans 
would say: You are going to give grant money, but you don't know how 
much you are going to give and you are not going to give it on the 
basis of competition in allocation of those resources because you have 
a date to meet that doesn't fit with fiscal responsibility. It doesn't 
fit with the best outcome or the ability to follow up to see what 
happened with the money. So we do have a date in the law by which they 
have to do it. But how are they going to do it, because the date in 
there is wrong. They are liable to give the wrong people too much money 
and the right people not enough, because we are telling them what they 
have to do.
  The second thing--let me put up a chart. These programs are 
identical, even though you claim they are not. Let me show my 
colleagues how they are identical. Under the PSIC grant programs, they 
are State and regional planning; under the DHS program, they are State 
and regional planning. Under the system design and engineering, PSIC; 
same thing under DHS. System procurement and installation; same thing 
under DHS. Technical assistance, the same. Implementing a strategic 
technology reserve is the only difference, but guess where it is made 
up. ``Other appropriate uses as determined by the administrator of 
FEMA.'' Do you think they are not going to put in that reserve there? 
They certainly are. They are going to do it.
  So there is no difference in the grant programs whatsoever, other 
than the deadline, which isn't going to be followed anyway. Like I say, 
I don't care if this is at Homeland Security or Commerce, I would as 
soon it be at Commerce in terms of the spectrum.
  But the fact is the American people shouldn't have to pay for the 
administration of two separate programs running parallel with two 
separate sets of requirements to Congress. We ought to get them 
together. We ought to figure out how we do it so we have one grant, and 
if, in fact, we need $4.3 billion. The problem is, we don't know how 
much money we need. We are throwing money at it.
  The second question I would ask is if this program belongs at 
Commerce, why Commerce agreed to give 99.9 percent of it to FEMA and to 
the Department of Homeland Security. They don't think it belongs there.
  The other point I would make in rebuttal to the Senator from Hawaii 
is this amendment doesn't decrease funding at all. This takes $3.3 
billion and an amount greater than $1 billion and combines it so the 
same amount of money is there, except it is going to make the money be 
spent better. It is going to allow us the time to do it.
  I agree we need to get money out to our primary responders. This 
isn't about trying to hold that up. I am not trying to do that. But the 
Department of Homeland Security has already said the money isn't going 
to go out by your day. There isn't one application right now at the 
Department of Homeland Security for this money. We all know how 
Washington works. They haven't even written the requirements for the 
grant applications yet, which will take another 90 to 120 days. So we 
have a laudable goal that is not going to be accomplished, and if it is 
going to be accomplished, it will be accomplished in a very inefficient 
and wasteful way, which the American people don't deserve.
  I think this is a very good chance for us to talk about what is wrong 
with us in the Congress. We are working at

[[Page 5704]]

cross purposes. We have one committee working here and one committee 
working here, rather than solving those problems for the best interests 
of our country. I want Hawaii to have everything it needs in terms of 
tsunami prevention, in terms of interoperability. I know there are 
special requirements in the State of Alaska because line of sight can't 
be used and much of our emergency frequencies require some of that. I 
believe we can take care of those problems and combine these grant 
programs in a way that the American taxpayer gets value, in a way where 
we can measure the accountability of what we do, in a way in which we 
can have transparency for the dollars we get in reauctioning the 
spectrum, and plus the other $3.4 billion that is going to come out in 
terms of appropriated funds for these other grant programs. The 
American people want that. They deserve that.
  To me, this isn't about a turf battle of control. To me, this 
amendment is about common sense for the American public to combine two 
programs into one so we spend less money, and we don't duplicate things 
and we don't duplicate efforts.
  I understand and appreciate very much the long service of Senator 
Inouye and Senator Stevens and their commitment to making sure these 
things are coming through. I am not trying to be a fly in the ointment 
to mess up what are very good-intended results, but I am a realist. The 
very things my colleagues have asked to happen in the Budget Act that 
was passed are not going to happen. Homeland Security has said that. So 
if those things aren't going to happen, and if the fears of what isn't 
going to happen can be allayed, can we not figure out a way to put 
these programs together where the American people get the best value, 
and also as a part of my amendment which says: Can we look to the 
private sector to not just give us interoperability in Hawaii among 
National Guard and first responders, but how about between California 
and Arizona, or Texas and Oklahoma, or Maryland and New York, if they 
need Maryland first responders there, which has not been addressed in 
any of the legislation that has been put forward. There is great 
technology out there. There are great companies out there that could do 
that.
  Again, without desiring to interfere or upset, I believe the 
application of some pretty commonsense principles ought to be applied 
to these two grant programs. I am willing to discuss with the chairman 
and the ranking member how to do this a different way. I am raising it 
on the floor because I think the taxpayer is not getting good value, 
and I think we ought to talk about that.
  The National Taxpayer Union endorses this amendment. The Citizens 
Against Government Waste endorses this amendment. Your very own 
committee member, who was one of the first people to say we should have 
auctioned spectrum for first responders, is a cosponsor of this 
amendment. So I am willing to defer to what the ranking member and the 
chairman of this committee want to do, but I think we ought to stick it 
out here until we can work a way for the American people to get better 
value, better clarity, better transparency, and better accountability 
for these funds.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  Mr. STEVENS. Mr. President, I think the Senate should be sure of what 
the Coburn amendment does. In the first place, it repeals the section 
of the Call Home Act that was enacted in the last Congress that makes 
this $1 billion available to NTIA immediately upon receipt. Secondly, 
it says the payments that are made under that $1 billion allocation 
must be made under the terms of section 1809 of the Homeland Security 
Act of 2002. Then it has this section, subsection (c) on page 2 of the 
amendment, which limits the awards under that section to $300,000 in 
2007, $350,000 in 2008, and $350,000 in 2009. Existing law makes that 
$1 billion available as of September 30 of this year.
  So the Senator is not only changing the manner in which the money can 
be used as opposed to what we enacted in the last Congress, but he is 
putting limitations on the grants that can be made out of the $1 
billion so that only $300 million is available this year--$300 million 
for the whole Nation to meet the immediate needs for interoperability.
  We had before our committee the so-called siren call proposal to take 
over the whole of the spectrum and turn it over to a trust and let that 
trust sell some of this so they could make even more money available in 
the first year. We have spoken about that, and it is a no-brainer to do 
that. That would create a trust that is equivalent to compete with the 
FCC on the sale of the first spectrum and it would reduce the money 
that is coming in on the first sale, so we could get enough money to 
pay the $1 billion. But the $1 billion has been promised to these first 
responders as of September 30 under the memorandum of agreement between 
Homeland Security and the NTIA. It can be administered and it will be 
administered. It will be used for a whole series of things. But again, 
I emphasize, it can be used for software, for systems to make current 
systems interoperable without buying a whole bunch of new equipment, 
wherever it is made, whether it is made in Oklahoma or California. It 
is not going to be made in Hawaii or Alaska, I can tell you that.
  But as a practical matter, what we are interested in is making every 
entity in the country that is involved with interoperability problems 
to be able to make an application for these grants immediately after 
September 30. The Senator from Oklahoma would limit that in this fiscal 
year to $300,000. By the way, none of it is even going to be available 
until September 30. So it is one of those things that is sort of 
difficult to understand. We can't have much available in fiscal year 
2007. We can have money available this year, in the calendar year 2007, 
under the existing law.
  I urge the Senate not to repeal existing law, to make this money 
available. It is in a memorandum of understanding between these two 
agencies. We are not trying to usurp the functions of Homeland 
Security. We are trying to meet the needs of communications. That is 
our job. We have done our job. The existing law will make $1 billion 
available as of September 30. I do not think it should be repealed.
  The PRESIDING OFFICER. The Senator from Hawaii is recognized.
  Mr. INOUYE. Mr. President, listening very carefully to the statement 
of the Senator from Oklahoma, one might get the impression that this 
measure was submitted by the Senators from Alaska and Hawaii to benefit 
our two States. Hawaii and Alaska are not even mentioned in this 
amendment. What we want is a National Interoperability Grant Program. 
It may be of interest that the State of Hawaii is almost completely 
interoperable, but we want all other States to have that benefit. So 
this is not one of these earmarked measures, I can assure my 
colleagues.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. First, let me sincerely apologize to the Senator from 
Hawaii if he took my words to mean that. I did not mean that. I 
referred to his words in terms of tsunami. I have no inference 
whatsoever that this has any parochial interest of either the Senator 
from Hawaii or the Senator from Alaska. But it is interesting that the 
debate doesn't ever come back to the fact of whether we have two 
programs; it is all about the money. The fact is the money will not get 
out there. Homeland Security has already said that.
  Now, the reason the $350 million--not thousand--was chosen is because 
at the same time this happened, you are going to have another $1 
billion come through in--the fiscal year is going to be over this year 
on September 30 of 2007. The worst problem that happens in our Federal 
Government today is the indiscriminate, rushed issuing of grants, of 
throwing money at something, rather than a measured response of grants.
  These aren't competitive grants, I would remind the people who are 
listening to this debate. There is no competition for this money. You 
don't have

[[Page 5705]]

to compete by saying you have a greater need than somebody else or you 
have a greater risk than somebody else. This is money that is going to 
go out, period. It is not based on competition for the greatest need or 
the greatest risk.
  The last thing we need to be doing is having a grant program that is 
rushed so we are not making sure the money is well spent. In the last 2 
years we have discovered $200 billion of waste, fraud, abuse, or 
duplication in the discretionary budget of the Federal Government--$200 
billion. We would have enough money to pay for the war, pay for 
expanding the military in this country, and cutting our deficit in half 
if we would do our job in terms of eliminating duplication, fraud, 
abuse, and waste.
  What this amendment is about is let's don't waste any of this $1 
billion these two gentlemen have so wisely put for one great purpose.
  So that is my intention today, I assure the Senators from Alaska and 
Hawaii. We all know how homeland security works. We have seen all too 
well some of the failings and lack of efficiency and lack of 
responsiveness in that agency. To now assume the other side of that, 
that that is going to happen overnight because we have mandated by 
law--if it does, it will be a very poor choice of the use of this 
money.
  I thank the Senator from Hawaii and the Senator from Alaska for their 
debate on this issue. My goal was to have a debate about whether we 
should have two programs and whether we should waste money. It is not 
about the debate of whether we need to have 911 interoperability and 
the functionality that needs to be there in all the States. But we 
should look at the whole as well as the individual. I compliment them 
on finding a funding stream that doesn't add to our children's debt. 
Unfortunately, we have not done that in this bill with the other 
grants, which I think is a mistake.
  My hope is we will be able to have a vote on this amendment before we 
go to cloture--or even after cloture--because it is germane, and we can 
defend the germaneness of this amendment.
  With that, I yield the floor.
  Mr. STEVENS. Mr. President, I intend to make a motion to table. I 
have discussed it with the leader. I think he would like to have that 
vote take place at 6:15. Would the majority floor staff confirm that.
  Mr. INOUYE. I think that would be appropriate.
  Mr. STEVENS. Mr. President, temporarily, I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. LANDRIEU. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. LANDRIEU. While the Senator from Alaska is checking on the other 
amendment, I ask unanimous consent to speak on another amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Louisiana is recognized.


                           Amendment No. 295

  Ms. LANDRIEU. Mr. President, I understand the Senator from Alaska is 
working out a vote on the amendment that was just discussed. I wished 
to come to the floor to talk about the Landrieu amendment that is 
pending on this bill and to also say I have been joined in this 
amendment by Senators Stevens, Lieberman, Kennedy, Obama, Martinez, and 
Vitter, and others may join as we push forward on this amendment to the 
underlying bill.
  This amendment has to do with a waiver provision, to waive the 10-
percent match that is normally required when a disaster strikes a 
community--and for good reason. We have required in the past for the 
local governments, based on their capacity to pay for part of the 
recovery, to put up anywhere from 25 percent to 10 percent. But on 
occasion, we have waived the 10-percent or the 25-percent requirement 
when it becomes apparent that the disaster is so overwhelming, the 
ability for these communities to repay is virtually impossible. That 
has been done over 38 times in the past. Most recently, it was done 
with Hurricane Andrew. That was a terrible storm. It doesn't look like 
it on this graph, but Hurricane Andrew, believe me, for the people in 
Homestead, FL, was the end of the world. Literally, their town was 
crushed.
  Prior to Katrina and Rita, that storm was the costliest storm, 
causing $40 billion in damage to parts of Florida. Unfortunately for 
Florida, they have been hard hit ever since. But for discussion 
purposes, this is $139 per capita--a terrible storm but not a lot of 
money per capita. The World Trade Tower attack was a terrible tragedy 
in our Nation, which is why this bill is being discussed; the damage 
was $390 per capita. Mr. President, look and see what the Katrina and 
Rita double whammy and subsequent breaking of the levees cost per 
capita in Louisiana--$6,700. It is literally off the chart.
  This has been part of the problem in Washington--not you, Mr. 
President, because you came down and Senator Lieberman came down and 
the Senator from Alaska came down and walked the neighborhoods, so you 
understand it. But this is literally off the chart--what is happening 
in terms of the amount of disaster recovery going on in Louisiana and 
Mississippi, along the gulf coast.
  The Landrieu amendment seeks to waive the 10-percent match so that 
the billion dollars would then be available to go to infrastructure 
projects. But almost as important as the extra money that could be 
applied to the disaster recovery itself, 95 percent of the red tape 
would be eliminated because, under the current program, there are three 
or four different reviews, different regulations between HUD and FEMA. 
All of the administrative efforts we have made to date have been for 
naught because nothing has been waived. So the solution is this 
amendment.
  I am going to ask this body to vote on this amendment, on this 
waiver. The amazing thing about this is that because the President has 
the option to do this now, there is no cost to this amendment; it 
scores at a zero. I know it is counterintuitive, but the score on this 
amendment is zero. There can be no point of order raised against it. It 
doesn't technically cost anything. Because of that and the obvious 
merits of the waiver, which were done in this case and done 38 other 
times, we are asking for it to be done for Hurricanes Katrina and Rita, 
for Mississippi and Louisiana, and also for Hurricane Wilma, which is 
caught up in this general disaster as well.
  I thank those who have cosponsored this amendment with me. I thank 
Senator Stevens for being able to let me speak as he decides on votes 
for the pending amendment. I am going to ask the leadership to schedule 
a vote because it is most certainly justified and could be done 
administratively but has not been. Congress has a responsibility to 
act, to do what is right, fair and helpful and to eliminate the red 
tape in our communities, in my case, from St. Bernard Parish to Cameron 
Parish, from Biloxi and Pascagoula, all the way over to places in south 
Texas that are still hurting and deserve to have this waiver so they 
can spend money not on red tape but on roads, bridges, houses, and 
schools that need to be rebuilt so America's energy coast can get back 
to work.
  Katrina and Rita were the first and third costliest disasters in 
American history, but Louisiana and other states impacted by these 
storms have not received a similar waiver.
  Unfortunately for State and local governments in Louisiana, 10 
percent translates into more than $1 billion dollars that must be sent 
back to Washington.
  Louisiana has over 23,000 Project Worksheets pending, and Mississippi 
has over 10,000.
  Some people have suggested that the States provide this matching 
funding on behalf of the local governments.
  Let me explain why that will not work.
  All of the State's money for assistance to local governments exists 
in the form of Community Development Block Grants.

[[Page 5706]]

  FEMA's Public Assistance Program and HUD's CDBG Program have separate 
accounting requirements and separate environmental assessment 
requirements.
  For the State to apply funding from this source for every single 
project would require approximately $20,000 per project. That 
translates into nearly half-a-billion dollars wasted on administrative 
paperwork.
  The State has asked for a single set of standards, but FEMA would not 
agree to this.
  The State has asked permission to provide a single payment to cover 
the 10 percent match, after adding its share of all the pending 
projects, but FEMA would not allow this either.
  This Global Match would save thousands of man-hours and hundreds of 
millions of dollars.
  Louisiana has not been able to cut through the red tape though, and 
has been told it must waste this money on duplicative bureaucratic 
procedures.
  This money could be reinvested into housing, infrastructure, and 
economic development, in order to bring families, communities, and 
businesses back to life in the Gulf region.
  Gulf coast States lost their tax base after properties were destroyed 
all over the region. The hurricanes claimed over 275,000 homes and 
20,000 businesses.
  Progress is being made but many challenges remain.
  In communities where the damage was most severe, the struggle 
continues to rebuild economic infrastructure and restore vitality. 
Local governments have had to lay off thousands of employees, and pay 
those who remain with money they receive from Federal loans.
  I would like to briefly talk about the situation in several of these 
communities.
  Cameron Parish in Southwest Louisiana is home to 9,681 people.
  It was the site of landfall for Hurricane Rita on September 24, 2005, 
and the eye of the storm passed directly over it.
  Winds exceeding 110 miles per hour pounded the parish for more than 
24 hours, and storm surges 15 to 20 feet high submerged it completely.
  The Cameron Parish School Board has reported that 100 percent of its 
facilities need repairs, and 62 percent were totally destroyed.
  Only two public buildings, the Parish courthouse and the District 
Attorney's office were left standing. Both are in need of extensive 
repairs.
  Other buildings destroyed include: 5 fire stations, 4 community 
recreation centers, 4 public libraries, 3 parish maintenance barns, 2 
parish multi-purpose buildings, ``Courthouse Circle,'' Cameron Parish 
Police Jury Annex Building, Cameron Parish Sheriff's Department 
Investigative Office, The Cameron Parish Health Unit, Cameron Parish 
School Board Office, Cameron Parish Mosquito Control Barn, and the 
Waterworks district 10 office.
  Katrina produced a category 5 surge and winds in excess of 125 miles 
per hour when it made landfall in St. Bernard Parish.
  As the storm surge traveled across Lake Borgne and up the Mississippi 
River Gulf Outlet, MRGO, it overtopped the levee along the northern 
edge of the urbanized area of St. Bernard Parish, and broke through the 
levee on the Industrial Canal in New Orleans' Lower 9th Ward.
  Water from both levee breaks flooded most of the parish inside to 
depths of up to 14 feet. Flood waters remained for approximately 3 
weeks.
  Most structures outside the hurricane levee protection systems have 
been entirely destroyed and removed by the storm surge, estimated to be 
between 20 and 30 feet.
  A flood-related breach of a nearby refinery's oil tank released about 
1 million gallons of crude oil, further damaging approximately 1,800 
homes and polluting area canals.
  Fishing communities in the eastern areas of the parish were 
destroyed.
  Less than a month after Katrina, an 8-foot storm surge from Hurricane 
Rita breached recently repaired levees, and again caused widespread 
flooding in the parish.
  In all, 127 St. Bernard citizens died, about 68,000 people were 
displaced, and 100 percent of the parish housing stock, over 25,000 
units, was either destroyed or damaged so severely that it became 
uninhabitable.
  All parish businesses and government buildings, and most utility 
systems, were also destroyed. Damaged levees, decimated wetlands, and 
the still-open MRGO have left the parish vulnerable to future storms.
  Prior to Katrina, there were approximately 25,123 occupied housing 
units in St. Bernard Parish, consisting mostly of single family homes 
and apartments.
  After the storms, the entire housing stock of the parish was 
submerged under storm water, for nearly 3 weeks in many areas. Many 
homes in the parish are damaged beyond repair and may need to be 
demolished.
  By the time the waters receded, more than 80 percent of the housing 
stock had been damaged.
  It makes very little sense to require communities to put up this 
match in their current financial condition. Doing so will only serve to 
delay rebuilding across the region.
  If we fail to act, we abandon Federal precedent, and we allow FEMA to 
continue wasting hundreds of millions of taxpayer dollars on 
duplication and waste.
  I remind my colleagues that these hurricanes caused the greatest 
natural disaster in the history of this country. I ask only that we 
offer the same treatment to victims along the Gulf coast that we have 
offered victims on 32 other occasion.
  Unfortunately for the State and local governments in Louisiana, 10 
percent translates into more than $1 billion that must be sent back to 
Washington. Louisiana has over 23,000 project worksheets pending, and 
Mississippi has over 10,000. Some people have suggested that the States 
provide this matching funding on behalf of the local governments. There 
are several reasons why that will not work.
  All of the State's money for assistance to local governments exists 
in the form of Community Development Block Grants.
  FEMA's Public Assistance Program and HUD's CDBG Program have separate 
accounting requirements, separate non-discrimination requirements, and 
separate environmental assessment requirements.
  For the State to apply funding from CDBG for every single project, 
would require approximately $20,000 per project. That translates into 
nearly half-a-billion dollars wasted on administrative paperwork.
  The State has asked for a single set of standards, but FEMA would not 
agree to this. The State has asked permission to provide a single 
payment to cover 10 percent match, after adding its share of all the 
pending projects, but FEMA would not allow this either. This Global 
Match would have saved thousands of man-hours and hundreds of millions 
of dollars, Louisiana has not been able to cut through the red tape 
though, and has been told it must waste this money on duplicative 
bureaucratic procedures.
  This money could be reinvested into housing, infrastructure, and 
economic development, in order to bring families, communities, and 
businesses back to life in the Gulf region. It makes very little sense 
to require communities to put up this match in their current financial 
condition. Doing so will only serve to delay rebuilding across the 
region. These hurricanes caused the greatest natural disaster in the 
history of this country.
  This amendment offers the same treatment to victims along the Gulf 
coast, that we have offered disaster victims on 32 other occasions. If 
we fail to act, we will have abandoned federal precedent in the midst 
of our county's worst disaster, and we will allow FEMA to continue 
wasting hundreds of millions of taxpayer dollars on unnecessary 
duplication and waste.
  I ask unanimous consent that a letter to the President be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page 5707]]




                                                  U.S. Senate,

                                 Washington, DC, February 9, 2007.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: As you are aware, FEMA regulations call 
     for a ten percent match for every dollar made available 
     through FEMA's public assistance program in connection with 
     the effort to recover from Hurricanes Katrina and Rita. We 
     understand that requiring states to match federal expenditure 
     helps to encourage states to spend program funds more wisely. 
     However, given the magnitude of this disaster and the 
     extremely difficult circumstances that Louisiana and many 
     Gulf Coast communities now face, we believe that the most 
     appropriate step for the Federal government is to waive the 
     match requirement in this case.
       While the people of Louisiana are grateful to the nation 
     for the help that they have received, the State still 
     confronts a massive shortfall between the dollars that have 
     come in from all sources and the real costs of recovery, a 
     shortfall that the state estimates to be $40 billion. The $1 
     billion in matching funds that Louisiana could be required to 
     send to the Federal government could be better spent on 
     rental assistance, mental health, school infrastructure and a 
     variety of other needs that have fallen through the cracks of 
     the Stafford Act.
       Although FEMA regulations encourage the President to 
     require a 10 percent match for the PA program, the Stafford 
     Act clearly gives the President the discretion to waive this 
     matching requirement. To be certain, this is not a request 
     without precedent or beyond the scope of the Federal 
     government's earlier decisions. Since 1985, FEMA has granted 
     waivers on the state match for public assistance in 32 
     different disasters. Yet having been battered by the first 
     and third worst hurricanes in United States history, 
     Louisiana must still meet the match requirement.
       Per capita cost is the usual determinant regarding the need 
     for a match. Louisiana's cost per capita was approximately 
     $6,700. This is contrasted with two earlier cases where the 
     state match was waived. In New York, after September 11th, 
     the cost per capita was $390.00. In Florida, after Hurricane 
     Andrew, the cost per capita was $139.00. These numbers, taken 
     alone, illustrate the unprecedented level of damage that 
     Louisiana has suffered and the massive scale of the challenge 
     before us. However, taken with the realities that are evident 
     when you visit the Gulf Coast and speak to state and local 
     officials, it is clear that your decision to waive this 
     requirement is not only prudent, but vital to the recovery 
     effort.
       In short, basic equity and previous precedent argues that 
     Louisiana's state match be waived. We appreciate your 
     attention to this matter, and look forward to your 
     assistance.
       With sincere regards,
           Sincerely,
     Harry Reid,
       U.S. Senator.
     Mary L. Landrieu,
       U.S. Senator.
     Joseph I. Lieberman,
       U.S. Senator.

  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  Mr. STEVENS. Mr. President, I make a motion to table the Coburn 
amendment No. 345 and ask unanimous consent that the vote commence at 
6:15 this evening.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                 Amendment No. 299 to Amendment No. 275

  Mr. STEVENS. Mr. President, I ask unanimous consent that the pending 
amendment be set aside so I may call up amendment No. 299.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Alaska [Mr. Stevens], for himself, and 
     Mrs. Clinton, and Mr. Inouye proposes an amendment numbered 
     299 to amendment No. 275.

  Mr. STEVENS. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To authorize NTIA to borrow against anticipated receipts of 
 the Digital Television Transition and Public Safety Fund to initiate 
    migration to a national IP-enabled emergency network capable of 
      receiving and responding to all citizen activated emergency 
                            communications)

       At the end of the amendment, insert the following:

                      TITLE XIV--911 MODERNIZATION

     SEC. 1401. SHORT TITLE.

       This title may be cited as the ``911 Modernization Act''.

     SEC. 1402. FUNDING FOR PROGRAM.

       Section 3011 of Public Law 109-171 (47 U.S.C. 309 note) is 
     amended--
       (1) by striking ``The'' and inserting:
       ``(a) In General.--The''; and
       (2) by adding at the end the following:
       ``(b) Credit.--The Assistant Secretary may borrow from the 
     Treasury, upon enactment of this provision, such sums as 
     necessary, but not to exceed $43,500,000 to implement this 
     section. The Assistant Secretary shall reimburse the 
     Treasury, without interest, as funds are deposited into the 
     Digital Television Transition and Public Safety Fund.''.

     SEC. 1403. NTIA COORDINATION OF E-911 IMPLEMENTATION.

       Section 158(b)(4) of the National Telecommunications and 
     Information Administration Organization Act (47 U.S.C. 
     942(b)(4)) is amended by adding at the end thereof the 
     following: ``Within 180 days after the date of enactment of 
     the 911 Modernization Act, the Assistant Secretary and the 
     Administrator shall jointly issue regulations updating the 
     criteria to provide priority for public safety answering 
     points not capable, as of the date of enactment of that Act, 
     of receiving 911 calls.''.

  Mr. STEVENS. This amendment has been cosponsored by Senators Clinton, 
Inouye, Smith, Snowe, and Hutchison.
  Mr. President, 911 calls provide the first line of defense in the 
safety of our citizens and is critical to public safety personnel.
  Technological advances now allow 911 calls to provide more 
information, such as the caller's location and telephone number. In too 
many parts of the country, the public safety community doesn't have the 
technology needed to receive location or other information. They need 
funding help to upgrade their equipment so this is possible.
  Congress previously allocated $43.5 million as part of the Deficit 
Reduction Act of 2005 for E-911 grants, so the 911 system can be 
upgraded. However, as it currently stands, the grants cannot be awarded 
until after the digital television proceedings are completed.
  Our amendment would add the 911 Modernization Act, S. 93, to this 
bill, which passed unanimously out of the Commerce Committee several 
weeks ago.
  This would allow the National Telecommunications and Information 
Administration to borrow $43.5 million from the Treasury to fund the 
Enhance 911 Act Grant Program in advance of the spectrum auction. 
Because these funds are only advanced, the CBO has informed us that 
this amendment does not score.
  The National Emergency Number Association that focuses on 911 
recently announced that more than 20 percent of the country doesn't 
have enhanced 911 capability. That 20 percent is in rural America and 
covers 50 percent of the counties of our country.
  There is a matching fund requirement in the underlying law to ensure 
that this money is spent wisely by public safety entities that are 
committed to improve the 911 calling capability of the citizens. This 
means that local governments must match under the law, and this enables 
us to know there is local support for the activities that would be 
financed by this money.
  The amendment has the support of the Association of Public Safety 
Communications Officers International and the National Emergency 
Numbering Association. I will submit a letter from these two premier 
911 public safety organizations for the Record. With this borrowing 
authority, the NTIA could get the money out to the public safety 
community now. The funds will be replaced, and enhanced 911 calls can 
begin saving lives in more of rural America. This is absolutely 
essential. Again, 50 percent of our counties do not have the ability to 
move forward unless this money is made available. Borrowing the money 
now, so it will be repaid out of the spectrum auction, is the best way 
to proceed.
  I ask unanimous consent that the letter I mentioned be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 February 5, 2007.
     Hon. Daniel Inouye,
     Chairman, Committee on Commerce, Science, and Transportation, 
         U.S. Senate, Washington, DC.
     Hon. Ted Stevens,
     Vice-Chairman, Committee on Commerce, Science, and 
         Transportation, U.S. Senate, Washington, DC.
       Dear Chairman Inouye and Vice-Chairman Stevens: As you 
     know, the 9-1-1 system is the connection to the public for 
     daily emergencies and also plays a vital role in

[[Page 5708]]

     more significant homeland security events, from reporting on 
     a potential outbreak to hazardous materials spills. In fact, 
     as the connection to the general public, 9-1-1 centers are 
     likely to be the first to know of a developing homeland 
     security event. Thus, it is imperative that our 9-1-1 system 
     be adequately funded to ensure that all Americans have access 
     to a 9-1-1 system that is fully prepared to respond to 
     requests for help in every situation.
       Congress took steps to address the funding needs of 9-1-1 
     by passing the ENHANCE 911 Act of 2004. Unfortunately, no 
     appropriations were provided for grants in the 109th 
     Congress. However, thanks to your leadership, the Deficit 
     Reduction Act of 2005 (P.L. 109-171) did include a provision 
     that requires $43.5 million in spectrum auction proceeds to 
     be allocated for grants to Public Safety Answering Points 
     (PSAPs) authorized by the ENHANCE 911 Act. Currently, those 
     grant funds will not be available until sometime in late 2008 
     or 2009 after auction revenues are deposited into the 
     Treasury.
       Obtaining funding for this grant program as soon as 
     possible is critical to allow underfunded PSAPs to obtain the 
     resources they need to upgrade their wireless E9-1-1 
     capabilities and for necessary staffing and training needs. 
     Currently, nearly half of the counties in the United States 
     do not contain a PSAP with the ability to precisely locate 
     wireless 9-1-1 calls. Therefore, we were pleased with the 
     introduction of the 911 Modernization Act (S. 93) by Vice-
     Chairman Stevens which would provide NTIA with advanced 
     borrowing authority for the $43.5 million provided in the 
     Deficit Reduction Act and make those funds immediately 
     available for grants. We strongly support ensuring that 
     immediate funding is provided for 9-1-1 and hope your offices 
     will work together to make this legislation, and 9-1-1 
     funding in general, a priority.
       In addition to the 911 Modernization Act, it is also 
     imperative that Congress provide sufficient funding to NHTSA 
     and NTIA in the FY 2008 budget for ENHANCE 911 Act grants and 
     for the administration of the 9-1-1 Implementation and 
     Coordination Office (ICO). Providing this funding will ensure 
     that the potential of the ENHANCE 911 Act to greatly improve 
     9-1-1 service is fully realized. Thank you for your continued 
     leadership on 9-1-1 and emergency communications issues and 
     we look forward to continue working with you and your staff 
     on these and other important issues.
           Sincerely,
     Jason Barbour,
       President, NENA.
     Wanda McCarley,
       President, APCO International.

  Mr. STEVENS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. LANDRIEU. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Cantwell). Without objection, it is so 
ordered.
  (The remarks of Ms. Landrieu are printed in today's Record under 
``Morning Business.'')
  Ms. LANDRIEU. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. LANDRIEU. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Amendment No. 295, as Modified

  Ms. LANDRIEU. Madam President, I send to the desk a modification to 
my amendment.
  Ms. COLLINS. Madam President, I have no objection to the 
modification.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment, as modified, is as follows:

       At the end of title XV, add the following:

     SEC. ____. FEDERAL SHARE FOR ASSISTANCE RELATING TO HURRICANE 
                   KATRINA OF 2005 OR HURRICANE RITA OF 2005.

       (a) In General.--Notwithstanding any other provision of 
     law, the Federal share of any assistance provided under 
     section 406 of the Robert T. Stafford Disaster Relief and 
     Emergency Assistance Act (42 U.S.C. 5172) because of 
     Hurricane Katrina of 2005 or Hurricane Rita of 2005 or 
     Hurricane Wilma of 2005 shall be 100 percent.
       (b) Effective Date.--This section shall apply to any 
     assistance provided under section 406 of the Robert T. 
     Stafford Disaster Relief and Emergency Assistance Act (42 
     U.S.C. 5172) on or after August 28, 2005.

  Ms. COLLINS. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. COLLINS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Madam President, what is the pending business?
  The PRESIDING OFFICER. Under the previous order, a vote now occurs on 
the motion to table the Coburn amendment, No. 345.
  Ms. COLLINS. Madam President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the motion.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) and 
the Senator from South Dakota (Mr. Johnson) are necessarily absent.
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from Idaho (Mr. Crapo) and the Senator from Arizona (Mr. Kyl).
  The PRESIDING OFFICER. Are there any other Senators in the chamber 
desiring to vote?
  The result was announced--yeas 71, nays 25, as follows:

                      [Rollcall Vote No. 66 Leg.]

                                YEAS--71

     Akaka
     Baucus
     Bayh
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Bunning
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Cochran
     Conrad
     Craig
     Dodd
     Domenici
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gregg
     Hagel
     Harkin
     Hatch
     Hutchison
     Inouye
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     McCaskill
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--25

     Alexander
     Allard
     Brownback
     Burr
     Chambliss
     Coburn
     Coleman
     Collins
     Corker
     Cornyn
     DeMint
     Dole
     Ensign
     Enzi
     Graham
     Grassley
     Inhofe
     Isakson
     Lugar
     Martinez
     McCain
     McConnell
     Sessions
     Thomas
     Thune

                             NOT VOTING--4

     Biden
     Crapo
     Johnson
     Kyl
  The motion was agreed to.
  Mr. DURBIN. Madam President, I move to reconsider the vote, and I 
move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The Senator from Iowa is recognized. Mr. 
Grassley. Madam President, I rise to offer amendment No. 386.
  Mr. LIEBERMAN. Madam President, I object. If I may explain with 
respect to the Senator from Iowa?
  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Madam President, the Senator from Iowa has, in the 
normal course of Senate proceedings, asked unanimous consent to set 
aside the pending amendment to offer an amendment of his own. I am 
objecting to that. I want to explain why.
  We now have 50 amendments pending. We have a group of amendments 
Senators Collins and I have agreed on and are willing to offer by 
consent, but at least two Senators are objecting to us doing that until 
there is an agreement to vote on amendments that they want a vote on.
  We have a very important bill that has a sense of urgency to it, the 
9/11 legislation. Therefore, as the manager of the bill on this side--
and, incidentally, I will add that cloture was filed, surprisingly, on 
four of the amendments. We have come to a point where the bill as 
reported out of our committee on a nonpartisan vote is ready to go. But 
these 50 amendments are

[[Page 5709]]

stopping it from getting to a conference with the House.
  Until we have an agreement across party lines as to how we are going 
to proceed, I am going to, respectfully, with no prejudice to my friend 
from Iowa, object to setting aside the pending amendment, which is the 
Stevens amendment, No. 299. That would be for anyone else who would 
want to offer an amendment at this time, until there is an agreement on 
how we are going to proceed to get this urgent bill passed, hopefully, 
by the end of the week.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Iowa.


                           amendment no. 386

  Mr. GRASSLEY. Madam President, I would like to offer another 
amendment to S. 4 that seeks to strengthen our Nation's homeland 
security by closing a loophole in our securities laws. My amendment 
would amend section 203(b)(3) of the Investment Advisers Act of 1940 
and would narrow an exemption from registration for certain investment 
advisers. There is a homeland security element to this fix because it 
can sometimes be important to know who is managing large sums of money 
for wealthy foreign investors. For example, it was recently reported 
that a Boston-based private equity firm, Overland Capital Group, Inc, 
is under investigation by the IRS and DOJ counterterrorism division. 
Such firms, which manage hundreds of millions of dollars for wealthy 
investors in total secrecy, ought to have to at least register with the 
SEC.
  Currently, section 203(b)(3) of the Investment Advisers Act provides 
a statutory exemption from registration for any investment adviser who 
had fewer than 15 clients in the preceding 12-month period and who does 
not hold himself out to the public as an investment adviser. This 
amendment would narrow this exemption, which is currently used by 
large, private pooled investment vehicles, commonly referred to as 
hedge funds. These hedge funds use this section of the securities laws 
to avoid registering with the Securities and Exchange Commission--SEC.
  Much has been reported during the last few years regarding hedge 
funds and the market power they yield because of the large amounts of 
capital they invest. In fact, some estimates are that these pooled 
investment vehicles are trading nearly 30 percent of the daily trades 
in U.S. financial markets. The power this amount of volume has is not 
some passing fad, but instead represents a new element in our financial 
markets. Congress needs to ensure that we know who is running these 
large vehicles to ensure the security of those markets.
  The failure of Amaranth and the increasing interest in hedge funds as 
investment vehicles for public pension money means that this is not 
just a high stakes game for the super rich. It affects regular 
investors. Indeed, it affects the markets as a whole. My recent 
oversight of the SEC has convinced me that the Commission and the Self-
Regulatory Organizations--SROs--need much more information about the 
activities of hedge funds in order to protect the markets from 
institutional insider trading and other potential abuses. This is one 
small and simple step toward greater transparency--to require that 
hedge funds register and tell the regulators who they are. This is not 
a burden, but rather a simple, common sense requirement for 
organizations that wield hundreds of billions of dollars in market 
power every day. The SEC has already attempted to do this by 
regulation.
  Congress needs to act because of a decision made last year by a 
Federal appeals court, the D.C. Circuit Court of Appeals. In 2006, the 
D.C. Circuit Court of Appeals overturned a SEC administrative rule that 
required registration of hedge funds. This decision effectively ended 
all registration of hedge funds with the SEC.
  My amendment would narrow the statutory exemption from registration 
and bring much needed transparency to hedge funds. The amendment would 
authorize the SEC to require investment advisers to register unless the 
adviser: No. 1, had $50 million or less in assets under management, No. 
2, had fewer than 15 clients, No. 3, did not hold himself out to the 
public as an investment adviser, and No. 4, managed the assets of fewer 
than 15 investors, regardless of whether the investors participate 
directly or through a pooled investment vehicle, such as a hedge fund.
  This amendment is a first step in ensuring that the SEC has the 
needed statutory authority to do what it attempted to do for the last 2 
years. I urge my colleagues to support this amendment as we work to 
protect investors large and small.
  I am not surprised by the objection today. For the record, I want 
everyone to know that this morning when I said I intended to offer this 
amendment, my phones started ringing off the hook. Lots of powerful 
people don't want to see an amendment like this, but Americans want 
their Government to know who is running these funds.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. 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. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Casey). Without objection, it is so 
ordered.
  Mr. INHOFE. Mr. President, today, I wish to speak to my amendment No. 
381 that seeks to improve the U.S.'s national security through 
increasing our ability to fuel our country from domestic resources.
  Americans are familiar with the violence, terrorism, and instability 
in the Middle East. But forms of that instability are spreading around 
the world, including to our own backyard.
  This chart by the Energy Information Agency summarizes some of the 
energy security hot spots around the world. Since September 2005 when 
this chart was made, U.S. security interests have gotten even worse in 
some regions. On February 26, Venezuelan President Hugo Chavez 
nationalized U.S. oil interests--the motivation for the Soviet-style 
move was to improve Venezuelan strategic interests.
  Adding insult to injury, while signing an agreement allowing Chinese 
companies to explore in Venezuela, Mr. Chavez stated that, ``We have 
been producing and exporting oil for more than 100 years but they have 
been years of dependence on the United States. Now we are free and we 
make our resources available to the great country of China.''
  China has recognized that energy is a true security interest and has 
inked deals with Russia and OPEC, along with Castro's Cuba.
  The fact is that our national security is linked with our energy 
security. Yet even if we were to stop importing oil from the Middle 
East tomorrow our national security interests would still be at risk.
  And we are not alone.
  European Union countries as a whole import 50 percent of their energy 
needs, a figure expected to rise to 70 percent by 2030. A significant 
and increasing volume of those imports come from Russia.
  In December 2005, Russia decided to turn off the gas to Ukraine, 
affecting imports into Italy, Austria, Germany, Poland, and Slovakia. A 
similar dispute between Russia and Belarus affected Germany's oil 
imports.
  According to the Congressional Research Service, global energy demand 
is expected to rise by nearly 60 percent over the next 20 years.
  In order to meet motorists' demands today and tomorrow and the global 
struggle for energy security, I am introducing the Domestic Fuels 
Security Act.
  The Domestic Fuels Security Act lays out a coordinated plan to 
increase the production of critical clean transportation fuels for 
today and tomorrow in four significant ways.
  First, the amendment provides a coordinated process whereby the 
Federal Government--at the option of a Governor and in consultation 
with local governments--would be required to assist the State in the 
permitting process for domestic fuels facilities. These would include 
coal-to-liquids plants,

[[Page 5710]]

modern refineries, and biorefineries. And this voluntary, coordinated, 
from-the-grassroots-up process would do so without waiving any 
environmental law.
  Second, the amendment would look to the future and conduct a full 
environmental review of fuel derived from coal.
  The U.S. has 27 percent of the world's coal supply--the largest in 
the world--nearly 250 billion tons of recoverable reserves. It is 
critical that we learn to use what we have and do so in an 
environmentally responsible way.
  Third, the amendment seeks to spur a viable coal-to-liquids industry 
in a comprehensive way. In order for a new fuels industry--to develop 
three components are required--upfront costs to design and build, a 
site to do it, and a market to sell the product.
  The amendment provides loan guarantees and loans for the startup 
costs. It provides incentives to some of the most economically 
distressed communities--Indian tribes and those affected by BRAC--to 
consider locating a facility in their backyard through Economic 
Development Administration grants. Last, the amendment requires the 
Department of Defense to study the national security benefits of having 
a domestic coal-to-liquids, CTL, fuels industry to comprehensively 
assess a new market.
  I have to give credit to my colleagues, Senators Bunning, Obama, 
Lugar, Pryor, Murkowski, Bond, Thomas, Craig, Martinez, Enzi, and 
Landrieu, who together had introduced a bill with similar language. I 
am hopeful that they will join me in moving this amendment.
  We can all agree that increasing domestic energy security is a vital 
objective. Yet it also provides good jobs.
  According to the Illinois Department of Commerce and Economic 
Opportunity, a CTL plant, with an output of 10,000 barrels per day, can 
support 200 direct jobs onsite, at least 150 jobs at the supporting 
coal mine, and 2,800 indirect jobs throughout the region. During 
construction, another 1,500 temporary jobs will be created.
  Fourth, cellulosic biomass ethanol--renewable fuel from energy crops 
like switchgrass--is a popular concept but faces financial barriers. 
Recently, the Federal Government has released some initial money to 
help develop the industry, but more could be done.
  In order to entice private sector investment, it is important for the 
collective fuels industry and motorists to know what our renewable 
resource base is, as well as traditional fuels. This amendment requires 
the Securities and Exchange Commission to convene a task force to 
assess how we should modernize our reserves--both traditional and 
renewable for cellulosic biomass ethanol feedstocks.
  Energy security, job security, American security--please join me in 
passing the Domestic Fuels Security Act.
  Mr. President, I ask unanimous consent to have printed in the Record 
the chart to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     OIL AND NATURAL GAS HOTSPOTS FACTSHEET
----------------------------------------------------------------------------------------------------------------
                                        Petroleum     Petroleum
                                         Prod'n        Prod'n        U.S. Imports       Strategic Importance/
           Country/Region             (2004) ('000  (2010) ('000    (Jan-Mar '05)              Threats
                                         bbl/d)        bbl/d)      ('000 bbl/d) \1\
----------------------------------------------------------------------------------------------------------------
Iran................................         4,100         4,000                  0  Even though no direct
                                                                                      imports to US, still
                                                                                      exports 2.5 million bbl/d
                                                                                      to world markets.
Iraq................................         2,025         3,700                516  April 2003-May 2005--236
                                                                                      attacks on Iraqi
                                                                                      Infrastructure.
Libya...............................         1,600         2,000                 32  Newly restored diplomatic
                                                                                      relations, Western IOCs
                                                                                      not awarded contracts in
                                                                                      2nd EPSA round.
Nigeria.............................         2,500         2,600              1,071  High rate of violent crime,
                                                                                      large income disparity,
                                                                                      tribal/ethnic conflict and
                                                                                      protests have repeatedly
                                                                                      suspended oil exports.
Russia..............................         9,300        11,100                419  2nd only to S.A. in oil
                                                                                      production, Yukos affair
                                                                                      has bred uncertain
                                                                                      investment climate.
Saudi Arabia........................        10,400        13,200              1,614  Long term stability of Al-
                                                                                      Saud family, Western oil
                                                                                      workers subject to
                                                                                      attacks.
Sudan...............................           344          530*                  0  Darfur crisis & N-S
                                                                                      conflict threatens
                                                                                      government stability,
                                                                                      security of oil transport.
Venezuela...........................         2,900         3,700              1,579  Large exporter to U.S.,
                                                                                      President Chavez
                                                                                      frequently threatens to
                                                                                      divert those exports,
                                                                                      nationalize resource base.
Algeria.............................         1,900         2,000                414  Armed militants have
                                                                                      confronted gov't forces.
Bolivia.............................            40           45*                  0  Large reserves of NG (24
                                                                                      (Tcf)), exports may be
                                                                                      delayed due to
                                                                                      controversial new laws
                                                                                      unfriendly to foreigners.
Caspian Sea.........................         1,800   2,400-5,900                  0  BTC opened, many ethnic
                                                                                      conflicts, high
                                                                                      expectations or future oil
                                                                                      production, no maritime
                                                                                      border Agt.
Caucasus Region 2...................    negligible    negligible                  0  Strategic transit area for
                                                                                      NG and oil pipelines.
Colombia............................           551          450*                110  Destabilizing force in S.
                                                                                      America, oil exports
                                                                                      subject to attack by
                                                                                      protesters, armed
                                                                                      militants.
Ecuador.............................           535          850*                315  Unstable politically,
                                                                                      protests threaten oil
                                                                                      export.
Indonesia...........................           900         1,500                  0  No longer a net exporter,
                                                                                      separatist movements,
                                                                                      Peacekeeping forces in
                                                                                      place, Violence threat to
                                                                                      Strait of Malacca.
----------------------------------------------------------------------------------------------------------------

                           9/11 Health Issues

  Mrs. CLINTON. Mr. President, more than 5 years after the 9/11 
attacks, the number of victims continues to rise because of the lasting 
health impacts experienced by far too many of those who selflessly 
responded to this disaster in 2001. On that day, and in the following 
months, thousands worked and lived by the Ground Zero site, amidst the 
dust, smog, and toxic mix of debris. And now we are seeing those 
workers, responders, and residents become sick from what they were 
exposed to on 9/11 and the following months. I believe we have a moral 
obligation to take care of those suffering from 9/11-related illnesses.
  The work of Senator Harkin, Senator Byrd, Senator Specter, and all of 
their colleagues on the Senate Appropriations Committee has been 
invaluable in securing funding to address many of the health issues 
that have appeared following 9/11. In December 2001, we learned that 
hundreds of firefighters were on medical leave because of injuries 
related to 9/11 issues, and the Appropriations Committee responded by 
allocating $12 million for medical monitoring activities so that we 
could track and study the health impacts associated with the rescue and 
response efforts at the World Trade Center. Thousands of individuals 
signed up for this program, and in Congress, we worked to meet the 
demand by appropriating an additional $90 million to monitor other 
workers and volunteers who were at Ground Zero and Fresh Kills.
  Through this work, we learned that many of those who were exposed are 
now experiencing significant health problems from this exposure--people 
who were in the prime of their life before 9/11 now suffering from 
asthma, sinusitis, reactive airway disease, and mental health issues. 
So in December 2005, I worked with Senator Harkin and other 
appropriators, as well as my colleagues in the New York Congressional 
Delegation, to secure an additional $75 million in funding that would 
for the first time provide Federal funding for treatment to help those 
who were disabled by these attacks get the care that they needed.
  Sadly, we are once again running out of funding to take care of the 
heroes who never questioned their responsibility on 9/11 and are now 
paying a terrible price. While the President has proposed providing 
additional funding for treatment in the fiscal year 2008 budget, we 
must act sooner to provide sufficient funds to ensure treatments 
through the rest of the current fiscal year.
  That is why I introduced an amendment to the 9/11 bill we are 
considering today to divert $3.6 million in funding--originally part of 
that $20 billion secured for New York in the wake of 
9/11 that the administration proposed to cut in its fiscal year 2008 
budget. At a time when treatment needs are so urgent, I believe that we 
need to ensure that dollars that were intended for 9/11 needs can be 
used to address the mounting health crisis that we are facing as a 
direct result of these attacks. I believe it is important to raise 
awareness of the fact that these programs--programs that are helping 
tens of thousands of first responders in New York and around the 
Nation--are in danger of having to turn patients away.
  I am extremely grateful for what we have been able to accomplish with 
the

[[Page 5711]]

support of Senator Harkin and other appropriators. They have shown that 
they consider it our national responsibility to care for those who did 
our country proud in the hours, days, weeks, and months following that 
horrific attack. I am also proud that I will be working with my 
colleagues on the Senate Health, Education, Labor and Pensions 
Committee, including Senators Kennedy, Enzi, and Harkin, to develop a 
lasting solution to address these health care needs. But while we are 
working on those solutions, we must ensure that these programs continue 
to operate.
  Mr. HARKIN. I thank my good friend and colleague, Senator Clinton, 
for her kind remarks. The terrorist attacks of 9/11 took place nearly 
1,000 miles from Iowa. But the attacks on the World Trade Center and 
the Pentagon were really an attack on the heart of America. Iowans 
answered the call of service and came to the aid of those affected by 
these attacks. The Musco Lighting Company from Muscatine donated 
lighting equipment to assist the World Trade Center recovery efforts. 
Quad-Cities fire departments collected more than $75,000 for the 
Uniformed Fighter Association's 9/11 Disaster Relief Fund.
  And just as Iowans and other Americans responded to the calls for 
help, I am proud that the Appropriations Committee has worked step by 
step with the New York delegation to address the many desperate needs 
that arose from 9/11. I was proud to work with Senator Clinton, Senator 
Byrd, and my colleagues on the Appropriations Committee to secure $20 
billion immediately after 9/11 to help both short and longer term 
recovery efforts at Ground Zero, the Pentagon, and Shanksville, PA. The 
funding for tracking health outcomes is a particular concern to myself 
and Senator Specter. This funding has been used to monitor not only the 
brave responders and recovery workers who live in New York, but also 
all who responded from around the country, including more than 35 from 
Iowa.
  I thank you for your leadership on this issue and I look forward to 
working with you on the upcoming emergency supplemental appropriations 
bill to maintain the current monitoring and treatment program for 9/11 
responders and recovery workers.
  Mrs. CLINTON. I thank the Senator. On behalf of the thousands of 
firefighters, police officers, rescue workers, residents, students, and 
others who are suffering from 9/11-related illnesses, I look forward to 
working with you on the upcoming emergency supplemental appropriations 
legislation to ensure that those who are sick can receive the care they 
need. With this commitment, I will withdraw my amendment to this 
legislation.

                          ____________________