[Congressional Record (Bound Edition), Volume 153 (2007), Part 4]
[Senate]
[Pages 5827-5855]
[From the U.S. Government Publishing Office, www.gpo.gov]




           IMPROVING AMERICA'S SECURITY ACT OF 2007--Resumed

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of S. 4, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 4) 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.

  Pending:

       Reid amendment No. 275, in the nature of a substitute.

       Sununu amendment No. 291 (to amendment No. 275), to ensure 
     that the emergency communications and interoperability 
     communications grant program does not exclude Internet 
     Protocol-based interoperable solutions.

       Salazar/Lieberman modified amendment No. 290 (to amendment 
     No. 275), to require a quadrennial homeland security review.
       Dorgan/Conrad amendment No. 313 (to amendment No. 275), to 
     require a report to Congress on the hunt for Osama bin Laden, 
     Ayman al-Zawahiri, and the leadership of al-Qaida.
       Landrieu amendment No. 321 (to amendment No. 275), to 
     require the Secretary of Homeland Security to include levees 
     in the list of critical infrastructure sectors.
       Landrieu amendment No. 296 (to amendment No. 275), to 
     permit the cancellation of certain loans under the Robert T. 
     Stafford Disaster Relief and Emergency Assistance Act.
       Landrieu modified amendment No. 295 (to amendment No. 275), 
     to provide adequate funding for local governments harmed by 
     Hurricane Katrina of 2005 or Hurricane Rita of 2005.
       Allard amendment No. 272 (to amendment No. 275), to prevent 
     the fraudulent use of social security account numbers by 
     allowing the sharing of social security data among agencies 
     of the United States for identity theft prevention and 
     immigration enforcement purposes.
       McConnell (for Sessions) amendment No. 305 (to amendment 
     No. 275), to clarify the voluntary inherent authority of 
     States to assist in the enforcement of the immigration laws 
     of the United States and to require the Secretary of Homeland 
     Security to provide information related to aliens found to 
     have violated certain immigration laws to the National Crime 
     Information Center.
       McConnell (for Cornyn) amendment No. 310 (to amendment No. 
     275), to strengthen the Federal Government'?s ability to 
     detain dangerous criminal aliens, including murderers, 
     rapists, and child molesters, until they can be removed from 
     the United States.
       McConnell (for Cornyn) amendment No. 311 (to amendment No. 
     275), to provide for immigration injunction reform.
       McConnell (for Cornyn) modified amendment No. 312 (to 
     amendment No. 275), to prohibit the recruitment of persons to 
     participate in terrorism, to clarify that the revocation of 
     an alien's visa or other documentation is not subject to 
     judicial review, to

[[Page 5828]]

     strengthen the Federal Government's ability to detain 
     dangerous criminal aliens, including murderers, rapists, and 
     child molesters, until they can be removed from the United 
     States, to prohibit the rewarding of suicide bombings and 
     allow adequate punishments for terrorist murders, 
     kidnappings, and sexual assaults.
       McConnell (for Kyl) modified amendment No. 317 (to 
     amendment No. 275), to prohibit the rewarding of suicide 
     bombings and allow adequate punishments for terrorist 
     murders, kidnappings, and sexual assaults.
       McConnell (for Kyl) amendment No. 318 (to amendment No. 
     275), to protect classified information.
       McConnell (for Kyl) amendment No. 319 (to amendment No. 
     275), to provide for relief from (a)(3)(B) immigration bars 
     from the Hmong and other groups who do not pose a threat to 
     the United States, to designate the Taliban as a terrorist 
     organization for immigration purposes.
       McConnell (for Kyl) amendment No. 320 (to amendment No. 
     275), to improve the Classified Information Procedures Act.
       McConnell (for Grassley) amendment No. 300 (to amendment 
     No. 275), to clarify the revocation of an alien's visa or 
     other documentation is not subject to judicial review.
       McConnell (for Grassley) amendment No. 309 (to amendment 
     No. 275), to improve the prohibitions on money laundering.
       Thune amendment No. 308 (to amendment No. 275), to expand 
     and improve the Proliferation Security Initiative while 
     protecting the national security interests of the United 
     States.
       Cardin amendment No. 326 (to amendment No. 275), to provide 
     for a study of modification of area of jurisdiction of Office 
     of National Capital Region Coordination.
       Cardin amendment No. 327 (to amendment No. 275), to reform 
     mutual aid agreements for the National Capital Region.
       Cardin modified amendment No. 328 (to amendment No. 275), 
     to require Amtrak contracts and leases involving the State of 
     Maryland to be governed by the laws of the District of 
     Columbia.
       Schumer/Clinton amendment No. 336 (to amendment No. 275), 
     to prohibit the use of the peer review process in determining 
     the allocation of funds among metropolitan areas applying for 
     grants under the Urban Area Security Initiative.
       Schumer/Clinton amendment No. 337 (to amendment No. 275), 
     to provide for the use of funds in any grant under the 
     Homeland Security Grant Program for personnel costs.
       Coburn amendment No. 325 (to amendment No. 275), to ensure 
     the fiscal integrity of grants awarded by the Department of 
     Homeland Security.
       Sessions amendment No. 347 (to amendment No. 275), to 
     express the sense of the Congress regarding the funding of 
     Senate approved construction of fencing and vehicle barriers 
     along the southwest border of the United States.
       Coburn amendment No. 301 (to amendment No. 275), to 
     prohibit grant recipients under grant programs administered 
     by the Department from expending funds until the Secretary 
     has reported to Congress that risk assessments of all 
     programs and activities have been performed and completed, 
     improper payments have been estimated, and corrective action 
     plans have been developed and reported as required under the 
     Improper Payments Act of 2002 (31 U.S.C. 3321 note).
       Coburn amendment No. 294 (to amendment No. 275), to provide 
     that the provisions of the act shall cease to have any force 
     or effect on and after December 31, 2012, to ensure 
     congressional review and oversight of the Act.
       Lieberman (for Menendez) amendment No. 354 (to amendment 
     No. 275), to improve the security of cargo containers 
     destined for the United States.
       Specter amendment No. 286 (to amendment No. 275), to 
     restore habeas corpus for those detained by the United 
     States.
       Kyl modified amendment No. 357 (to amendment No. 275), to 
     amend the data-mining technology reporting requirement to 
     avoid revealing existing patents, trade secrets, and 
     confidential business processes, and to adopt a narrower 
     definition of data-mining in order to exclude routine 
     computer searches.
       Ensign amendment No. 363 (to amendment No. 275), to 
     establish a Law Enforcement Assistance Force in the 
     Department of Homeland Security to facilitate the 
     contributions of retired law enforcement officers during 
     major disasters.
       Biden amendment No. 383 (to amendment No. 275), to require 
     the Secretary of Homeland Security to develop regulations 
     regarding the transportation of high hazard materials.
       Biden amendment No. 384 (to amendment No. 275), to 
     establish a Homeland Security and Neighborhood Safety Trust 
     Fund and refocus Federal priorities toward securing the 
     homeland.
       Bunning amendment No. 334 (to amendment No. 275), to amend 
     title 49, United States Code, to modify the authorities 
     relating to Federal flight deck officers.
       Schumer modified amendment No. 367 (to amendment No. 275), 
     to require the Administrator of the Transportation Security 
     Administration to establish and implement a program to 
     provide additional safety measures for vehicles that carry 
     high hazardous materials.
       Schumer amendment No. 366 (to amendment No. 275), to 
     restrict the authority of the Nuclear Regulatory Commission 
     to issue a license authorizing the export to a recipient 
     country of highly enriched uranium for medical isotope 
     production.
       Wyden amendment No. 348 (to amendment No. 275), 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.
       Bond/Rockefeller amendment No. 389 (to amendment No. 275), 
     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.
       Stevens amendment No. 299 (to amendment No. 275), 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.


                           Amendment No. 291

  Mr. LIEBERMAN. Mr. President, I now call for the regular order with 
regard to the Sununu amendment, No. 291.
  The PRESIDING OFFICER. The amendment is now pending.
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, that is where we will keep the Senate for some period 
of time as we hope people on both sides can reason together and come to 
some meeting of the minds that will allow us to complete work on the 
more than 50 amendments that are pending and in a state of suspended 
gridlock and, unfortunately, standing in the way of the adoption of the 
9/11 bill that is before us.
  I will repeat that this bill came out of our Homeland Security and 
Governmental Affairs Committee with a nonpartisan vote--16 to nothing 
and 1 abstention. It has matters that are critically important to our 
national security and our homeland security. It would be a shame if its 
passage here and movement to conference with the House, which has 
already passed companion legislation, is held up because of the 
parliamentary and procedural gridlock the Senate is in now.
  I hope my colleagues on both sides can, as I said, reason together to 
break that gridlock so we can complete work on the pending amendments 
and proceed to final passage of this legislation. Pending that, the 
Sununu amendment, No. 291, will remain the pending business.
  Mr. President, I now 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 the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Brown). Without objection, it is so 
ordered.
  Mr. LIEBERMAN. Mr. President, as the Chair knows, and Members of the 
Senate know, the Senate is unfortunately in gridlock at this moment on 
this important bill because of disagreements as to how to handle 
several of the amendments. The trouble is the essential bill that came 
out of our committee, on which the distinguished occupant of the chair 
is a member, is intact. It does a lot to support first responders at 
the local level, to increase information sharing within our Government 
to avoid the failure to connect the dots that preceded 9/11. It is full 
of very important unfinished business that came from the 9/11 
Commission Report.
  Unfortunately, in addition to the 50 amendments pending and the 
refusal of some Senators to grant consent to go on to hold votes on 
amendments on which we actually have bipartisan agreement, yesterday 
the minority leader came to the floor, and in a unique action--it is 
not seen around here too much--filed a cloture motion on four 
amendments that were pending. That will now keep us, barring some break 
and agreement between our

[[Page 5829]]

leaders, in this state of suspended animation until tomorrow when the 
vote is scheduled both on the cloture motion filed by the Republican 
leader and the one on the overall bill to bring us to a conclusion 
filed by Senator Reid, the majority leader. What is very important is 
to focus us back on what this is all about and, hopefully, to shake us 
all up to remember that we are responding to, in this legislation, 5\1/
2\ years after 9/11, the unfinished business of our Nation to protect 
our people from another terrorist attack.
  Obviously, we are building on what we did in the 9/11 Commission 
legislation that passed in 2004, but there is more to do; we all agree. 
I am about to read a letter into the Record. I hope this letter will be 
read by every Member of the Senate and bring us back to what this is 
all about and honestly force us to reason together to get over this 
momentary gridlock to do what is important for our country.
  The letter is addressed to the Republican leader, the Honorable Mitch 
McConnell. It comes from a number of the leaders of groups established 
by family members of victims of 9/11: Carol Ashley, mother of Janice, 
25, member of Voices Of September 11th; Mary Fetchet, mother of Brad, 
24, founding director and president of Voices of September 11th; 
Beverly Eckert, widow of Sean Rooney, 50, member of Families of 
September 11; and Carie Lemack, daughter of Judy Larocque, 50, 
cofounder and president, Families of September 11. Obviously, the names 
I mentioned, the first names and ages, were among those who were killed 
by the terrorists on September 11. This is a letter from these four 
family members of September 11 to Senator McConnell.
  The letter reads as follows:

                                                    March 8, 2007.
     Hon. Mitch McConnell,
     Minority Leader, U.S. Senate,
     Washington, DC.
       Dear Senator McConnell: As family members who lost loved 
     ones on 9/11, we support full implementation of the 9/11 
     Commission recommendations. We are writing out of grave 
     concern that your recent introduction of highly provocative, 
     irrelevant amendments will jeopardize the passage of S. 4. It 
     is inconceivable that anyone in good conscience would 
     consider hindering implementation of the 9/11 Commission 
     recommendations and we strongly disagree with these divisive 
     procedural tactics.
       Just as the Iraq war deserves separate debate, so do each 
     of the amendments you offered. S. 4 should be a clean bill 
     and debate should conclude this week with a straight up and 
     down vote. Each day that passes without implementation of the 
     remaining 9/11 Commission recommendations, the safety and 
     security of our nation is at risk.
       Tactics such as those you are contemplating, aimed at 
     endangering the 9/11 bill, sends a signal to America that 
     partisan politics is alive and well under your leadership. 
     Both parties must work together to pass this critical 
     legislation. We, the undersigned, understand the risk of 
     failure all too well.
           Respectfully,
     Carol Ashley,
       Mother of Janice, 25, Member, VOICES of September 11th.
     Mary Fetchet,
       Mother of Brad, 24, Founding director and President, Voices 
     of September 11th.
     Beverly Eckert,
       Widow of Sean Rooney, 50, member, Families of September 11.
     Carie Lemack,
       Daughter of Judy Larocque, 50, Co-founder and President, 
     Families of September 11.

  This letter should be read by every Member of the Senate, not only 
with regard to the cloture motion that was filed yesterday but, 
frankly, also to some of the normal posturing and game playing that is 
going on by different Members, blocking agreement and moving forward on 
the bill unless their particular amendment is agreed to.
  It is time for us to wake up, focus on what is really important and 
get this bipartisan bill, S. 4, Improving America's Security Act, 
adopted as soon as possible.
  Mr. President, 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. LIEBERMAN. 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. LIEBERMAN. Mr. President, I thank the Chair. While the Senate 
awaits resolution on the parliamentary and, I suppose, political 
gridlock in which we find ourselves, I thought I would say a few words 
to remind my colleagues of the background that led to this particular 
legislation, S. 4, which, I repeat, came out of our Homeland Security 
Committee with a unanimous, nonpartisan vote of 16 to 0 and one 
abstention and is before us now.
  I go back to August 21, 2004. On that day, the 9/11 Commission's 
official mandate as an independent, nonpartisan commission ended, 1 
month after the release of their final report. But the 10 
Commissioners, the 10 citizens who were members of the Commission and 
responsible for its extraordinary work--the findings, the 
recommendations, many of which we adopted in legislation that followed 
in 2004--the 10 Commissioners decided to stay active in the public 
debate over the Commission's recommendations that fall. They made a 
real contribution to continuing to remind us why adopting--certainly 
considering first and then adopting--their recommendations was so 
important. They testified before Congress during the latter half of 
2004 and played a critical role in helping bring about the passage and 
enactment and the signature by the President of the Intelligence Reform 
and Terrorism Prevention Act of 2004.
  The 10 Commissioners understood the importance of keeping the 
spotlight on the implementation of their recommendations. They 
concluded that without their persistent attention, there was a risk 
that we in Washington would lose focus on the difficult challenges that 
had been highlighted in the Commission's report and that we would go on 
to other work--not that, obviously, we would lose our care and concern 
about terrorism. So these 10 Commissioners formed the 9/11 Public 
Discourse Project, an independent nongovernmental group that held a 
number of meetings in 2005 to follow up on the implementation of the 
Commission's recommendations.
  This group, the 9/11 Public Discourse Project, held a series of 
public meetings to which I have referred in 2005 to gauge progress on 
implementation of the legislation that resulted from their initial 
report. In the fall of 2005, later in the year, they issued a series of 
report cards on intelligence, homeland security, and foreign policy 
that graded the Federal Government on its implementation of their 
recommendations.
  On December 5, 2005, these Commissioners, now joined together in what 
they called The Project, issued their final report summarizing their 
grades on the implementation of the 9/11 Commission's 41 
recommendations. I can't say that I agreed with all their grades, but 
they were certainly sobering and should also have been motivating for 
all of us. The Project issued 1 A, 11 Bs, 9 Cs, 12 Ds, 5 Fs, and 2 
incomplete grades. That calculates out to a C-minus average--not 
exactly the type of grades that would make us happy if our kids brought 
them home, and obviously the kinds of grades that should make us not 
only unhappy but agitated and anxious to raise them up when the grades 
deal with our national security, our homeland security.
  The cochairs of the 9/11 Commission who went on to be cochairs of the 
9/11 Public Discourse Project, former New Jersey Governor Thomas Kean 
and former member of the House of Representatives Lee Hamilton, vice-
chair, issued a statement on the release of the report where they 
lamented the progress and its implementation. I quote from the Kean-
Hamilton statement on December 5, 2005. They said:

       We are safer--no terrorist attacks have occurred inside the 
     United States since 9/11--but we are not as safe as we need 
     to be.

  I continue quoting:

       We see some positive changes. But there is so much more to 
     be done. Many obvious steps that the American people assume 
     have been completed have not been. Our leadership is 
     distracted.


[[Page 5830]]


  ``There is so much more to be done,'' Chairman Kean and Vice Chairman 
Hamilton told the Nation that day at the end of 2005. That is why our 
Homeland Security Committee took up the call and why we reported out S. 
4, which is before the Senate today.
  Chairman Kean and Vice Chairman Hamilton went on in their remarks to 
discuss areas that had not been adequately addressed. They focused on 
interoperability for first responders around the country, effective 
screening of visitors to the U.S. against the terrorist watch list, 
homeland security grant allocations, and they bemoaned what they called 
``the lack of urgency about fixing these problems.''
  Their statement then continued:

       Bin Laden and al-Qaida believe it is their duty to kill as 
     many Americans as possible. This very day they are plotting 
     to do us harm.
       On 9/11 they killed nearly 3,000 of our fellow citizens. 
     Many of the steps we recommend would help prevent such a 
     disaster from happening again. We should not need another 
     wake-up call.

  I continue--this is all Kean and Hamilton:

       We believe that the terrorists will strike again. If they 
     do, and these reforms have not been implemented, what will 
     our excuses be? While the terrorists are learning and 
     adapting, our government is still moving at a crawl.

  Tough words from Tom Kean and Lee Hamilton.
  The terrorists are learning and adapting faster than ever. We saw 
evidence of that last August in the United Kingdom when a terrorist 
plot to blow up planes using liquid explosives--those planes heading 
toward the United States--was thankfully disrupted. We see evidence on 
the Internet today which terrorist groups are using increasingly to 
find new recruits, to develop new capabilities, to share information, 
and to propagandize about their latest exploits. They are moving, these 
terrorists, at a rapid pace. We not only must keep up with them, we 
must move ahead of them and move more rapidly than they are.
  Chairman Kean and Vice Chairman Hamilton went on to discuss 
responsibility for addressing this challenge. They said:

       The first purpose of government in the preamble of our 
     Constitution is to ``provide for the common defense.'' We 
     have made clear time and again what we believe needs to be 
     done to make our country safer and more secure: The 
     responsibility for action and leadership rests with Congress 
     and the President.

  Of course, I agree, and I presume every Member of the Senate agrees, 
the responsibility rests with us and with the President. We have a 
choice to make as we debate this bill. We can bear the burden and 
responsibility of action and leadership and carry out the essential 
reforms that will strengthen our Nation's security or we can forego our 
responsibilities and take a chance with the homeland security of our 
country and its people. That is a risk that I know no Member of this 
Chamber wants to take.
  In the final chapter of their book, ``Without Precedent''--that is 
the name of the book, ``Without Precedent''--which recounted their 
experience leading the 9/11 Commission, Tom Kean and Lee Hamilton 
repeat this last statement and conclude with these powerful words:

       We now call upon our elected leaders to come together again 
     with that same sense of urgency and purpose. We call upon 
     Republicans and Democrats to work together to make our 
     country safer and more secure. The American people deserve no 
     less.

  That is from Tom Kean and Lee Hamilton. They are absolutely right. 
They deserve no less. The American people deserve no less.
  So we have come together on our committee, and we are moving very 
rapidly on the Senate floor, beginning last Wednesday through this 
week. We have had some good, healthy debates, disagreements, but 
resolved with votes. The bill as it came out of our committee is in 
strong shape. It would be a tragedy if we let the procedural 
differences, the personal concerns about individual amendments, the 
inability to reason together to stop us from passing this bill and 
passing it urgently. I am confident that we will be able to do it, but 
the sooner the better.
  I thank the Chair.
  Mr. President, I yield the floor. I note the presence of my friend 
and colleague from Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Chair.
  (The remarks of Mr. Specter pertaining to the introduction of S. 813 
and S. 814 are located in today's Record under ``Statements on 
Introduced bills and Joint Resolutions.'')
  Mr. SPECTER. Mr. President, 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 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. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, I note the presence on the floor of our 
colleague from Arizona. I yield the floor to him at this time.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, yesterday afternoon, our colleague Senator 
Specter criticized the decision of the U.S. Court of Appeals for the 
District of Columbia in the Al Odah v. U.S. case. That decision upheld 
the recently enacted Military Commission Act's bar on lawsuits brought 
by enemy combatants held at Guantanamo Bay.
  Senator Specter argued that the Guantanamo detainees have a 
constitutional right to bring these lawsuits, and he predicted that Al 
Odah will be overruled. He based his argument largely on the Supreme 
Court's 2004 decision in Rasul v. Bush. Senator Specter argued that 
Rasul's ruling that habeas extends to Guantanamo Bay was a 
constitutional ruling. Senator Specter based his argument on Rasul's 
discussion of the 18th century common law of habeas corpus. Senator 
Specter also argued that Justice Scalia's opinion in Rasul acknowledged 
that Rasul overruled Johnson v. Eisentrager, the landmark decision 
establishing that captured enemy combatants do not enjoy the privilege 
of litigation.
  I will address each of Senator Specter's argument in turn. At the 
outset, however, I would like to note that last September, Senator 
Specter argued that a passage from the plurality opinion in the 2004 
decision in Hamdi v. Rumsfeld established that all aliens held in the 
United States, regardless of combatant status, are constitutionally 
entitled to seek writs of habeas corpus. In response at that time, I 
argued that Hamdi did not effect such a radical result. I noted that 
the holding of Hamdi clearly only involved U.S. citizens; that the 
notion of extending habeas to aliens based on territorial distinctions 
was inconsistent with the logic of Hamdi; and that Senator Specter's 
reading of Hamdi was inconsistent with basic rules of construction that 
urge against reading groundbreaking new rules into obscure and 
ambiguous passages of opinions.
  I am pleased to see that, today, Senator Specter has not renewed the 
argument that Hamdi extended habeas rights to noncitizen enemy 
soldiers. I will assume that he was persuaded by the force of the 
arguments that I made last September.
  Today, allow me to try to persuade Senator Specter, and the rest of 
my colleagues, that the majority opinion in Rasul v. Bush does not 
require that the constitutional guarantee of habeas corpus be extended 
to alien enemy combatants who are being detained during wartime.
  Section 7 of the Military Commissions Act, like its predecessor, the 
Detainee Treatment Act, is predicated on the continuing validity of 
Johnson v. Eisentrager's constitutional holding, on the unbroken 
common-law tradition of denying the privilege of litigation to captured 
alien enemy soldiers, and on the understanding that the holding in 
Rasul v. Bush was a statutory holding, not a constitutional one.
  Neither Senator Specter, nor anyone else, has been able to cite a 
single case prior to Rasul v. Bush in which any English or American 
court has ever held that captured enemy soldiers who

[[Page 5831]]

are not citizens are entitled to seek the writ of habeas corpus. Not 
one case can be cited that grants the writ to alien enemy soldiers. The 
absence of any such example over the centuries of the history of the 
writ of habeas corpus speaks volumes, and alone should be conclusive of 
the constitutional question. Simply put, when the Constitution was 
adopted, the notion that the common law writ of habeas corpus could be 
employed by alien enemy soldiers was unheard of and it remained unheard 
until June of 2004, when the Supreme Court decided Rasul v. Bush.
  Of course, with 5 votes, the Rasul Court could have grafted a habeas 
right for alien enemy combatants onto the Constitution. I believe that 
to do so would have been deeply irresponsible, and I believe that this 
is clearly not what the court did in Rasul.
  In support of his interpretation of Rasul, Senator Specter argued 
that Justice Scalia's opinion in Rasul noted that the Rasul majority 
overruled Eisentrager, which had denied litigation rights to alien 
enemy combatants. In response, I would first note that Justice Scalia's 
opinion in Rasul was a dissenting opinion. As any lawyer knows, a 
dissenting opinion's characterization of a court's holding is hardly 
authoritative. An argument about what a case means that is based 
primarily on the dissent is inherently a weak argument.
  Moreover, I do not think that Justice Scalia's dissenting opinion in 
Rasul is in any way inconsistent with the notion that Eisentrager's 
constitutional holding remains good law, and that the constitutional 
right of habeas corpus does not extend to alien enemy soldiers. Justice 
Scalia makes clear in his dissent that he is accusing the majority only 
of overruling Eisentrager's statutory holding, not its constitutional 
holding.
  Justice Scalia begins at page 493 of his dissent by quoting the 
following passage from Eisentrager: ``Nothing in the text of the 
Constitution extends such a right''--a right of habeas corpus for war 
prisoners held overseas--``nor does anything in our statutes.'' It is 
Justice Scalia who italicized the absence of a statutory right when 
quoting this passage. He then went on to note:

       Eisentrager's directly-on-point statutory holding makes it 
     exceedingly difficult for the Court to reach the result it 
     desires today. To do so neatly and cleanly, it must either 
     argue that our decision in Braden overruled Eisentrager, or 
     admit that it is overruling Eisentrager.

  In this passage, Justice Scalia does accuse the Rasul majority of 
overruling Eisentrager, but he also makes clear that he only accuses it 
of overruling Eisentrager's statutory holding, not its constitutional 
holding.
  But the argument that Rasul v. Bush's holding was only statutory, and 
did not extend constitutional rights to enemy combatants, is supported 
by more than just Justice Scalia's dissent. The majority opinion itself 
repeatedly and clearly indicates that the holding in that case is only 
statutory, not based on the Constitution. For example, on page 475 of 
the opinion, for example, the majority clearly states that ``[t]he 
question now before us is whether the habeas statute confers a right to 
judicial review'' of the detention of the detainees at Guantanamo Bay. 
Thus the court was careful to make clear that it was the habeas statute 
that it was interpreting, not the Constitution.
  On the next page, when distinguishing Eisentrager, the Rasul majority 
opinion states that ``Eisentgrager made quite clear that [its analysis 
was] relevant only to the question of the prisoner's constitutional 
entitlement to habeas corpus. The court had far less to say on the 
question of the petitioner's statutory right to habeas corpus.''
  Finally, at page 478, when explaining how it would distinguish the 
holding in Eisentrager, the majority stated: ``Because subsequent 
decisions of this Court have filled the statutory gap that had 
occasioned Eisentrager's resort to ``fundamentals,'' persons detained 
outside the territorial jurisdiction of any federal district court no 
longer need rely on the Constitution as the source of their right to 
federal habeas review.''
  This statement could not be clearer that Rasul only addressed the 
petitioners' statutory right to habeas, not any constitutional right. 
The court stated that statutory changes--or rather, changes in the 
interpretation of statutes--made it unnecessary to reach any 
constitutional questions in Rasul.
  Senator Specter's other main argument for his interpretation of Rasul 
is that the majority opinion's discussion of 18th century common law is 
a constitutionally binding interpretation of the scope of the writ. My 
response is that may be so, but it is not relevant to the 
constitutionality of the Military Commissions Act. The discussion in 
Rasul that Senator Specter cites is about how far the writ applies 
overseas. It is not about whether the writ applies to alien enemy 
soldiers.
  Rasul's discussion of the common law of habeas corpus appears in Part 
IV of the majority decision--after the court had already decided that 
the statutory right extended to the detainees at Guantanamo. This part 
of Rasul is devoted to responding to the argument that the presumption 
against extraterritorial application of legislation requires that the 
habeas statute be construed to not extend to Guantanamo Bay. Justice 
Stevens stated that ``[w]hatever traction the presumption against 
extraterritoriality might have in other contexts, it certainly has no 
application to the operation of the habeas statute with respect to 
persons detained within `the territorial jurisdiction' of the United 
States.'' Justice Stevens then asserted that at common law the writ 
applied to aliens held overseas, and he went on to describe common law 
cases that he characterized as extending the writ to aliens held at 
places outside of the ``sovereign territory of the realm.''
  Whatever the merits of Justice Stevens's historical analysis, it is 
used in Rasul only to rebut the presumption against 
extraterritoriality. It is used to argue that the writ presumptively 
does extend overseas. But this part of Rasul does not address the 
central question raised by the Military Commissions Act: whether alien 
enemy soldiers, wherever they are held, are constitutionally entitled 
to seek the writ of habeas corpus. Regardless of whether the writ 
applies to other aliens held at U.S. facilities overseas, the writ does 
not--it has never been extended--to alien enemy combatants detained 
during wartime, whether those soldiers are held inside or outside of 
the United States.
  None of the common law decisions that Justice Stevens discusses in 
part IV of his opinion granted habeas relief to an alien enemy war 
prisoner. That is because, as I noted earlier, in the history of habeas 
corpus, prior to Rasul, alien enemy war prisoners have never been found 
to be entitled to the writ. Rasul's historical analysis can be cited 
for the proposition that the writ extends extraterritorially, even to 
aliens. But its discussion does not address the question that we are 
concerned with here today: whether the writ extends to alien enemy 
soldiers.
  Indeed, at one point in its discussion, the Rasul opinion does tend 
to confirm that the common-law habeas right does not extend to enemy 
soldiers. In its exploration of the scope ``historical core'' of the 
common-law writ, Rasul quotes a passage from the Supreme Court's prior 
decision in Shaughnessy v. United States, which noted that executive 
imprisonment has long been considered oppressive and lawless, and that 
no man should be detained except under ``the law of the land.'' As 
Rasul notes, this commentary on the historical scope of the writ came 
from Justice Jackson.
  Just 3 years before he wrote the passage in Shaugnessy that is quoted 
in Rasul, here is something else that Justice Jackson said about the 
scope of the writ. Here is what Justice Jackson said in Johnson v. 
Eisentrager about the notion that the writ extends to alien enemy war 
prisoners: ``No decision of this Court supports such a view. None of 
the learned commentators on our Constitution has ever hinted at it. The 
practice of every modern government is opposed to it.''
  So there you have it, from the same source that the Rasul majority 
quotes to establish the historical scope of the

[[Page 5832]]

writ. The writ upholds and enforces the law of the land, but the law of 
the land does not extend litigation privileges to aliens with whom we 
are at war.
  Let me also cite another, more recent source in support of my 
argument. Yesterday, Senator Specter quoted an editorial from the New 
York Times that, unsurprisingly, was hostile to the Military 
Commissions Act and the Administration. In response to Senator 
Specter's liberal columnist, allow me cite my own liberal columnist 
Benjamin Wittes. Mr. Wittes writes op-eds for the Washington Post, is a 
scholar at the Brookings Institution, and generally has unimpeachable 
liberal credentials. I doubt that he and I agree on very many things. 
Yet this is what he had to say, in a recent column in The New Republic, 
about the D.C. Circuit's decision in Al Odah upholding the Military 
Commissions Act:

       The [Al Odah] court held both that Congress--not the 
     executive branch--stripped the courts of jurisdiction to hear 
     lawsuits from detainees at Guantanamo, and that it had the 
     constitutional power to do so. As a legal matter, the 
     decision is correct. And, if and when the Supreme Court 
     reverses it, as it may do, the decision won't be any less 
     correct. The reversal will signify only that a majority of 
     justices no longer wishes to honor the precedents that still 
     bind the lower courts.
       As the case heads towards the Supremes, you'll no doubt 
     hear a lot about suspension of the Great Writ of habeas 
     corpus--the ancient device by which courts evaluate the 
     legality of detentions. And you'll also hear a lot about 
     Guantanamo as a legal ``black hole.'' It's all a lot of rot, 
     really, albeit rot a majority of the justices might well 
     adopt.
       Until the advent of the war on terrorism, nobody seriously 
     believed that the federal courts would entertain challenges 
     by aliens who had never set foot in this country to overseas 
     military detentions--or, at least, nobody thought so who had 
     read the Supreme Court's emphatic pronouncement on the 
     subject. ``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,'' the Court wrote in 1950. ``Nothing in the 
     text of the Constitution extends such a right, nor does 
     anything in our statutes.''

  A final passage from Mr. Wittes Commentary reads as follows:

       Notwithstanding the passionate dissent in the D.C. Circuit 
     case, the notion that [the Military Commissions Act] somehow 
     suspends the writ--a step the Constitution forbids except in 
     cases of rebellion or invasion--is not credible. As a legal 
     matter, it merely restores a status quo that had been 
     relatively uncontroversial for the five decades preceding the 
     September 11 attacks--that federal courts don't supervise the 
     overseas detentions of prisoners of war or unlawful 
     combatants. The demand that they do so now is not one the 
     Constitution makes.

  I would also like to address a point that Senator Sununu made on the 
floor yesterday. Senator Sununu argued that, because detention of the 
Guantanamo prisoners may be indefinite, these prisoners should be given 
a right to challenge their detention.
  In response, I would like to simply describe the protections that the 
CSRT process provides to Guantanamo detainees and discuss why it would 
be highly problematic to substitute that process with habeas review.
  In the CSRT system, a detainee is provided with a personal 
representative who is assigned to help him prepare his case before the 
tribunal. CSRT hearings also include a hearing officer who is required 
to search government files for ``evidence to suggest that the detainee 
should not be designated as an enemy combatant.'' Prior to the actual 
hearing, the CSRT officers must provide the detainee with a summary of 
the evidence to be used against him. CSRTs are then subject to 
administrative review, and the detainee has an appeal of right to the 
U.S. Court of Appeals for the District of Columbia, which is charged 
with evaluating whether the tribunal complied with the CSRT rules, and 
whether those rules and procedures are constitutional.
  All of the procedures described here, incidentally, are above and 
beyond what lawful prisoners of war are entitled to under the Geneva 
Conventions in an Article 5 hearing. Those hearings do not assign 
anyone to help a detainee, they do not require the government to search 
its files for exculpatory evidence, they do not require that a summary 
of the incriminating evidence be provided to the detainee, and they are 
not subject to any judicial review whatsoever.
  Indeed, the CSRTs not only provide more process than is required 
under the Geneva Conventions; the CSRTs require more process than the 
Supreme Court has suggested is required for the United States to detain 
even a U.S. citizen as an enemy combatant. In the governing plurality 
opinion in the 2004 Hamdi decision, the Supreme Court suggested that 
even a U.S. citizen could be detained as a war prisoner if his 
detention were reviewed by a ``properly constituted military 
tribunal.'' The Supreme Court expressly cited as an example of such a 
tribunal the Article 5 hearings that are conducted under the Geneva 
Conventions in cases where there is doubt about a detainee's status. 
The CSRTs are modeled on and closely track these Geneva Convention 
Article 5 hearings. And, as I just described, in several respects the 
CSRT process provides even greater protections than an Article 5 
hearing provides.
  The Military Commissions Act, of course, does not apply at all to 
United States citizens. Out of deference to the force of the legal 
argument made by Justice Scalia in Hamdi v. Rumsfeld, both the DTA and 
the MCA were drafted to only bar aliens from seeking habeas relief, not 
United States citizens. And, again, the CSRT hearings that alien enemy 
combatants do receive provide even more process than the Hamdi 
plurality suggested is owed to an American citizen.
  Nevertheless, the detainees and their lawyers are unsatisfied with 
the CSRT process. They want to give Al Qaeda detainees the right to see 
classified evidence related to their detention, and they want to allow 
the detainee to call his own witnesses.
  In a recent column in the National Journal, Stuart Taylor, Jr. cites 
a strong example of why it would be a very bad idea to share classified 
information with suspected Al Qaeda detainees. Mr Taylor writes:

       Consider the list of almost 200 un-indicted co-
     conspirators, including the then-obscure Osama bin Laden, 
     that prosecutors in the 1995 trial of 11 subsequently 
     convicted Islamist terrorists were legally required to send 
     to defense counsel. ``That list was in downtown Khartoum 
     within 10 days,'' U.S. District Judge Michael B. Mukasey of 
     Manhattan, who tried the case, recalled in a recent panel 
     discussion. ``And he [bin Laden] was aware within 10 days * * 
     * that the government was on his trail.''

  Mr. Taylor goes on to cite another example where the release of 
sensitive information to a suspected terrorist in the course of legal 
proceedings endangered national security:

       In another judge's case, [Judge] Mukasey recalled, ``there 
     was a piece of innocuous testimony about the delivery of a 
     battery for a cell phone;'' this tipped off terrorists to 
     government surveillance' and as a result [their] 
     communication network shut down within days and intelligence 
     was lost to the government forever, intelligence that might 
     have prevented who knows what.

  Mr. President, it is incidents like this that we must keep in mind 
when presented with demands that suspected al-Qaida or Taliban members 
be allowed to pursue habeas litigation. In civilian litigation, a 
criminal defendant has a presumptive right to see classified evidence 
used against him. Under CIPA, the Government must summarize or redact 
the evidence, but the summary or redaction must still provide an 
adequate substitute for the raw evidence. If the substitute is not 
deemed adequate, the Government must either show the evidence to the 
detainee or it cannot use the evidence.
  In the context of Guantanamo, where detention hearings rely heavily, 
if not exclusively, on classified evidence, applying these habeas 
litigation rules would mean that we would have to either share 
classified information with al-Qaida detainees or we would have to let 
them go. Neither of these is an acceptable option. Even the fiercest 
critics of Guantanamo must accept that the bulk of the detainees held 
there are connected to al-Qaida or other terrorist groups. We cannot 
simply seal off these detainees from all contact with the world and 
assume that we will hold them forever. We must assume that some will be 
released and that they will be allowed some communication with those 
outside Guantanamo and, under these circumstances, we

[[Page 5833]]

simply cannot hand over classified evidence to Guantanamo detainees.
  As happened during the embassy bombers' trials, we must assume that 
classified evidence provided to the detainees will go straight back to 
the rest of al-Qaida.
  I should also emphasize that denying an al-Qaida detainee access to 
classified information does not mean that such evidence will not be 
subject to any adversary review in the CSRT and DTA process. In the 
pending Bismullah case, the Government has proposed a procedural order 
under which a detainee counsel who has obtained a security clearance 
would be able to review the classified evidence in the CSRT hearing. If 
this proposed order is adopted, as I assume it will be in some form, 
the detainee's lawyer, though not the detainee himself, will have 
access to the classified information used in the CSRT.
  So when you hear evidence or arguments that the DTA review is unfair 
or that it is inadequate, keep in mind the actual stakes at issue. The 
detainee's cleared lawyer will get access to the classified 
information, but the detainee will not.
  Under these circumstances, should the Congress force the military to 
provide classified information to both the lawyer and the suspected 
terrorist?
  Another complaint about CSRTs is that the Guantanamo detainees are 
not allowed to call their own witnesses at the hearings. Just who would 
those witnesses be the detainees would call? Whose testimony would be 
most relevant to the detainee's enemy combatant status? The only answer 
to this question would be the soldier who originally captured the 
detainee.
  Here is Mr. Stuart Taylor's commentary on the proposal that 
Guantanamo detainees be allowed to compel witnesses at their CSRT 
hearings:

       Should a Marine sergeant be pulled out of combat and flown 
     around the world to testify at a detention hearing about 
     when, where, how, and why he had captured the particular 
     detainee? What if the Northern Alliance or some other ally 
     made the capture? And should the military be ordered to 
     deliver high-level al Qaeda prisoners to be cross-examined by 
     other detainees and their lawyers?

  I would suggest that simply to ask this question is to answer it.
  Here is more that Mr. Taylor had to say about such proposals:

       Many libertarians and human rights activists, on the other 
     hand, would settle for nothing less than the full panoply of 
     protections afforded to ordinary criminal defendants. They 
     should be careful what they wish for. As McCarthy points out: 
     Enemy combatants are often in a position to be killed or 
     captured. Capturing them is the more merciful option, and 
     making it more difficult or costly would almost certainly 
     effect an increase in the number killed.

  The CSRT hearings and the DTA review strike the right balance. They 
give detainees enough process to ensure that the persons held are enemy 
combatants and that they pose no threat to the United States. But this 
system does not provide a process that would undermine the war with al-
Qaida or that is inconsistent with the realities of war.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, I listened with interest to the 
contentions of the Senator from Arizona and would respond in a number 
of ways. First, the Senator from Arizona went to some length to try to 
undercut the conclusion that aliens are entitled to the same rights as 
American citizens--aliens held at Guantanamo--and made reference to no 
case before Rasul had so held.
  But the issue is what does Rasul hold? I would refer the Senator from 
Arizona to the opinion of Justice Stevens, which appears at page 2686 
of volume 124 of the Supreme Court Recorder, which says as follows:

       Aliens held at the base, no less than American citizens, 
     are entitled to invoke the Federal Courts' authority under 
     section 2241.

  Now, it is true that the Congress can change a statute, but it is 
equally true that Congress cannot change a constitutional right, and 
there is a constitutional right to habeas corpus, which is set forth 
explicitly in article I, section 9, clause 2 of the United States 
Constitution, which says:

       The privilege of the Writ of Habeas Corpus shall not be 
     suspended, unless when in Cases of Rebellion or Invasion the 
     public Safety may require it.

  Now, where the Constitution is explicit in the circumstances where 
the constitutional right can be suspended, obviously there is a 
conclusion that there is such a constitutional right.
  The Senator from Arizona goes into considerable analysis as to why 
the Eisentrager case has not been overruled by Rasul. Well, it seems 
pretty plain to me on the face that Rasul does overrule Eisentrager, 
and I cited in yesterday's argument the conclusion of Justice Scalia 
that Rasul overruled Eisentrager. Justice Scalia complains of that. If 
he had found some way to distinguish Eisentrager in the Rasul opinion, 
I think he would have done so.
  The Senator from Arizona says we can't rely on a dissenting opinion 
as to what the holding is. Well, I would disagree with that. I think a 
dissenting justice has a good bit of reliability, and especially 
Justice Scalia. When the concession is made that Justice Scalia reads 
Rasul to overrule Eisentrager, I think that is pretty good authority, 
perhaps better authority than the opinion of Arlen Specter, maybe even 
better authority than the opinion of the distinguished Senator from 
Arizona, who is a real legal scholar--on the Arizona Law Review, all 
the academic standards, but perhaps not superior in legal analysis to 
Justice Scalia.
  Mr. KYL. Mr. President, I will stipulate to that.
  Mr. SPECTER. I have just had a stipulation, may it please the court, 
that Justice Scalia's interpretation would topple Senator Kyl's 
interpretation.
  Let me pose the question directly to Senator Kyl from the debate we 
have just joined, and I thank him for coming and participating in the 
debate. It is a rarity on the floor of the Senate to have two Senators 
debating an issue.
  Isn't the flat statement by the Supreme Court, speaking through 
Justice Stevens, that ``aliens held at base, no less than American 
citizens, are entitled to invoke the Federal Courts' authority under 
section 2241''--albeit that is a statute and the Court of Appeals for 
the D.C. Circuit has tried to sidestep the court opinion in Rasul by 
saying it was a holding on a statute which the Congress can change, and 
denies the very strong language of the court in saying that there is a 
right which was established at the time of 1789, and the Constitution 
speaks explicitly of the ways to suspend the right, so there is a 
constitutional right--but taking that language, ``aliens held at base, 
no less than American citizens, are entitled to invoke the Federal 
Courts' authority under section 2241,''--isn't that conclusive that 
aliens are entitled to invoke the habeas corpus rights under the 
Constitution?
  Mr. KYL. Mr. President, first of all, I appreciate both the courtesy 
of the Senator from Pennsylvania and his important legal analysis and 
would answer the question in this way.
  I think that most observers believe that the Rasul decision is not a 
decision on the Constitution but on the statute; that it interprets 
rights based upon the statute, which Congress can change; that it is 
not a holding that provides a constitutional right to alien enemy 
combatants to litigate via habeas corpus.
  Secondly, the Great Writ that has been quoted by the Senator from 
Pennsylvania has always been understood in decisions of the court to be 
defined as it existed at the time of the Constitution. That is why 
there is always a great interest in looking back to decisions in the 
common law of England prior to the adoption of our Constitution, the 
Bill of Rights.
  I think, as I said in my statement, that there has never been a case 
that suggests that at the time the language about habeas corpus was put 
into our Constitution any court, in either the United States or 
England, at the time, had ever held that the writ applied to alien 
enemy combatants. So it has never been held that the writ applies to 
aliens. It has been held that it applies to U.S. citizens, and it has 
certainly never been held that it applies to alien enemy combatants.
  Mr. SPECTER. Well, Mr. President, may I redirect the line of 
contention

[[Page 5834]]

that if the Supreme Court said authoritatively that aliens are covered 
under a habeas corpus statute, wouldn't that apply a fortiori 
necessarily to aliens being covered under a constitutional right of 
habeas corpus?
  Mr. KYL. Mr. President, I would say to my colleague that nothing in 
the grant of the writ in the Constitution, as far as I know, would deny 
the right of Congress to expand it to include others. Certainly, one 
could not take away from the writ as it was understood when it was put 
into the Constitution. For example, we could not deny to U.S. citizens 
the writ of habeas corpus because of the constitutional provision, but 
it would not speak to the question of whether Congress could extend the 
authority of the writ to aliens.
  The case here, however, is that the decision in question was based on 
a statute which Congress had adopted, and it does not go to the 
question of whether the writ itself ever applied to aliens. In fact, it 
never applied to alien enemy combatants.
  Mr. SPECTER. Mr. President, I would ask the Senator from Arizona if 
there is anything in the legislation, 2241, statutory right of habeas 
corpus, which in any way suggests that it is an expansion of the right 
of habeas corpus to apply to aliens who were not being comprehended in 
the ordinary understanding of the constitutional right of habeas 
corpus. Anything at all in the statute or legislative history?
  Mr. KYL. Mr. President, I would have to go back and read it very 
closely, but my recollection is that the court found the statute rather 
uninformative and rather unclear, and that was part of the basis for 
the court reading it in a way that went beyond what I thought it 
provided. Nonetheless, one can understand that when the court views a 
statute that doesn't provide clear limitations, its inclination may 
well be to lean forward in its interpretation.
  Mr. SPECTER. Well, Mr. President, it may be uninformative and it may 
be unclear, but it doesn't, on a statutory basis, extend the right to 
aliens. To make the contention that a reading of the statutory right of 
habeas corpus, which goes not beyond that language, was an attempt to 
extend it, and that the Court, in Rasul, was saying, well, the statute 
gives more rights than the Constitution, I think, is an extraordinary 
stretch. But I will conclude the colloquy with the contention that 
certainly the Great Writ, the constitutional right with all its 
majesty, would be no narrower than a statute. I would concede Congress 
could extend the statute further, but there is no indication absolutely 
that the Congress did intend it. And that the court of appeals' 
decision, distinguishing Rasul as being a statutory interpretation, and 
then the court of appeals saying there is no constitutional right, is 
thinner than tissue paper. But we will hear more from Justice Stevens, 
I am sure, on this point in due course.
  Let me now move to a portion of my argument yesterday on which the 
Senator from Arizona has not commented. I will begin with the 
memorandum from the Secretary of the Navy dated July 7, 2004, which 
defines enemy combatants and then says that notice will be given to all 
detainees and they will be notified ``of the right to seek a writ of 
habeas corpus in the courts of the United States.''
  As I said yesterday, I hadn't noted this provision until we did the 
research preparing for debate on this amendment. I will first direct a 
question to the Senator from Arizona as to whether the Senator from 
Arizona was familiar, before I cited it yesterday, that the Department 
of Defense had acknowledged the rights of Guantanamo detainees to seek 
a writ of habeas corpus in the Federal courts?
  Mr. KYL. Mr. President, the answer is no, I was not. I regret I 
didn't hear the argument of the Senator yesterday.
  Mr. SPECTER. The Department of Defense concedes that detainees have a 
right to a writ of habeas corpus, that Congress has delegated to the 
Secretary of Defense the authority to promulgate rules relating to the 
detainees, and where the Secretary of Defense through the Deputy says 
they have a right to habeas corpus, that should end the discussion.
  But let me pursue one other line further here; that is, the fairness 
of what happens under the Combat Status Review Tribunals.
  The memorandum from the Deputy Secretary of Defense defines what an 
enemy combatant is. It says:

       The term ``enemy combatant'' shall mean an individual who 
     was part of supporting 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 forces.

  Then the memorandum further says that:

       A preponderance of the evidence shall be the standard used 
     in reaching this determination, but there shall be a 
     rebuttable presumption in favor of the Government's evidence.

  The first question I direct to the Senator from Arizona relates to 
the rebuttable presumption in favor of the Government's evidence, and 
note that a very basic, fundamental, Anglo-Saxon, U.S. right is the 
presumption of innocence. Does the Senator from Arizona think it is 
fair that there be a presumption of guilt articulated in a rebuttable 
presumption in favor of the Government's evidence?
  Mr. KYL. Mr. President, let me just try to respond very briefly to 
the question of the Senator. Again, I regret I didn't hear the full 
argument that was made yesterday.
  Mr. GRAHAM. Will the Senator yield?
  Mr. KYL. I am happy to yield.
  Mr. SPECTER. Wait a minute. Mr. President, regular order. The Senator 
from Arizona may yield, but I have directed the question through the 
Chair to the Senator from Arizona. Having had an extensive discussion 
on this issue yesterday--and when I say ``extensive,'' it was extensive 
by the Senator from South Carolina--all factors considered, I would 
just as soon not hear it again but would be willing to listen to it 
later.
  Mr. KYL. Mr. President, I will respond very briefly by saying, first 
of all, I fully associate myself--
  The PRESIDING OFFICER. Without objection, the Senator from Arizona 
may respond.
  Mr. KYL.--with the comments of my colleague from South Carolina 
yesterday.
  To the first point, if I could just make a brief comment, after the 
Rasul decision, after the Rasul case was decided--
  Mr. SPECTER. No coaching.
  Mr. KYL. No coaching.
  After the Rasul case was decided, I am sure, Senator Specter, you 
would agree it was important for the Department of Justice to advise 
people of the rights that were provided as a result of that decision. 
That is my understanding of what they did. They had a policy of saying: 
The Court has made this decision. They found a statutory right of 
habeas corpus, and you have the right to do the following things under 
that statute. But that would not be a pronouncement of law by the 
Department of Defense. Certainly it hasn't been relied upon, to my 
knowledge, by any court in deciding what the scope of the writ is. So, 
as to your first point, I hardly think it is good evidence of the 
constitutional application of the writ to detainees that after the 
Rasul decision, the Department of Justice properly advised people as to 
their statutory rights based upon that decision.
  As to the second question--just one quick quotation. This was 
provided to me, at my request, by Senator Graham. In the Hamdi case, in 
the O'Connor opinion, she specifically answers the question you posed, 
Senator Specter, on page 27 of the opinion, where she says:

       Likewise, the Constitution would not be offended by a 
     presumption in favor of the Government's evidence so long as 
     that presumption remained a rebuttable one and a fair 
     opportunity for rebuttal were provided.

  Mr. SPECTER. Mr. President, that is a good segue into my next 
question, as to whether the Combat Status Review Tribunals give you a 
fair opportunity. I was about to quote Justice O'Connor in support of 
my argument that there is not a fair opportunity. Let me be very 
specific. The decision of Judge Green, In re: Guantanamo Cases, which I 
cited yesterday, which appears in 355 Fed.

[[Page 5835]]

Sup. 2d 443--and I quote from her statement, at page 468. Judge Greene 
says this:

       The inherent lack of fairness of the CSRT's [Combat Status 
     Review Tribunal's] consideration of classified information 
     not disclosed to the detainees is perhaps most vividly 
     illustrated in the following unclassified colloquy, which, 
     though taken from a case not precisely before this judge, 
     exemplifies the practice and severe disadvantages faced by 
     all Guantanamo prisoners.

  In reading a list of allegations forming the basis for the detention, 
Mustafa Ait Idir, a petitioner in Boumediene--which is the case that 
went to the court of appeals; this is the case which they decided and 
upheld the procedures of the Combat Status Review Tribunal--Judge Green 
goes on to say:

       The Recorder of the CSRT asserted: ``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?

  And then the detainee later says:

       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 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 tell me the 
     name, then I can respond and defend myself against this 
     accusation.

  The Tribunal President then says:

       We are asking you the questions and we need you to respond 
     to what is on the unclassified summary.

  And the detainee later said:

       I was hoping you had evidence that you can 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 this, I would take these accusations and I 
     would hit him in the face with them. Sorry about that.

  And then in parens it says:

       Everyone in the tribunal room laughed.

  That is from the transcript. The Tribunal President said:

       We had a laugh but it is OK.

  Then Judge Green says:

       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 had the detainee's criticism of 
     the process not been so piercingly accurate.

  This tribunal, as to the detainee in the Boumediene case, that got to 
the circuit court of appeals--how the circuit court of appeals could 
say this is fair, how the circuit court of appeals could say this 
comports with the definition the Department of Defense has set out, 
that enemy combatant means ``an individual who is a part or supporting 
Taliban or al-Qaida forces or including a person who has committed a 
belligerent act or who has directly supported hostilities in aid of the 
enemy Armed Forces'' when the only thing in the transcript is ``while 
living in Bosnia the detainee associated with a known al-Qaida 
operative''--``associated with a known al-Qaida operative'' hardly 
meets the definition of the Department of Defense itself, of supporting 
Taliban or al-Qaida forces or ``associated forces that are engaged in 
hostilities'' or ``a person who has committed a belligerent act.''
  This detainee, whose detention was upheld by the Court of Appeals of 
the District of Columbia on as great a stretch as imaginable on legal 
principles, is looking at a record where all the detainee was supposed 
to have done was talked to al-Qaida. They couldn't even name the 
person. That is miles from satisfying the definition by the Department 
of Defense.
  Let me ask the Senator from Arizona, is that fair?
  Mr. KYL. Mr. President, I answer my friend and colleague from 
Pennsylvania that I disagree with a lot of jury verdicts and with a lot 
of court opinions. But once a matter is concluded, as officers of the 
court, we are supposed to respect the decision of the court. I do. I 
don't know the facts of every case that has been litigated, but they 
have done so under a procedure that has been upheld as constitutional. 
Just as I was willing to stipulate that Justice Scalia probably has a 
better handle on Supreme Court interpretation than either--well, I 
didn't stipulate that he has a better interpretation than Senator 
Specter, but I acknowledged in my case that he would--I think you have 
to say that if a court of appeals has made such a decision, then it is 
a bit presumptuous for us, with great confidence, to say that they 
necessarily were wrong.
  So I am not going to second guess a decision like that. I would 
rather simply point to the most recent decision which upheld the 
procedures in the Al-Odah case--that case will be decided by the U.S. 
Supreme Court. My colleague and I have a different view, I suspect, as 
to how that case will come out. We will just have to wait and see. If 
it turns out that I am correct, that the court of appeals' decision is 
correct, then this debate which we have had here probably won't matter. 
But I do believe that until that decision is made, it would be unwise 
for us to again change the law, thus throwing into even greater 
confusion what has up to now been a pretty confused state of affairs.
  Mr. SPECTER. Mr. President, I would not mind being a bit 
presumptuous. I wouldn't even mind being a lot presumptuous in response 
to the opinion of the Court of Appeals for the District of Columbia. 
But I don't think it is presumptuous at all to go into the facts, which 
we know from Judge Green's opinion, as to the detainee involved in the 
Boumediene case and where the only allegation is that he talked to an 
al-Qaida person and they couldn't even give the name.
  You have the definition of the Department of Defense requiring that 
there be information about the detainee supporting al-Qaida forces or 
committing a belligerent act. However, nobody said those things about 
the detainee in the case. And then there is the court of appeals, a 
split court, with the opinion of Judge Rogers in dissent, I understand 
the relative merits of a two-judge majority, one in dissent, but that 
doesn't overcome the continuing importance of the Rogers' analysis of 
the majority opinion concerning their attempt to slice the apple by 
holding that the Supreme Court's opinion in Rasul was statutory and not 
constitutional.
  The majority said that the Eisentrager case was not overruled by 
Rasul. But it obviously was, as Justice Scalia acknowledged in his 
dissent in the Rasul case. And Justice Scalia would have all the more 
reason for disagreeing if there was any basis at all to say that 
Eisentrager was not overruled.
  You have the court of appeals relying on the Eisentrager case that 
was specifically overruled by Rasul, and not acknowledging a 
constitutional right of habeas corpus and not acknowledging the fact 
that while you can change an act of Congress, a statute cannot trump 
the Constitution.
  I do not think it is presumptive at all to say that the procedures 
under the combat status review tribunal ought to be changed.
  Regrettably we are not going to get a vote on this matter on this 
bill. We are not going to get a vote because a cloture petition has 
been filed. That is arcane. But in the unlikely event anybody is 
watching on C-SPAN 2, that means nongermane amendments will fall, and 
this is nongermane for technical reasons.
  I tried yesterday to get cloture on this amendment, which would have 
enabled us to get a vote tomorrow morning at the time of the cloture 
vote on the underlying bill. However, that required getting 17 
signatures, and the majority leader was opposed, and the Democrats 
would not sign on. There are a few Republicans who were prepared to 
sign on; some did.
  But talking to Senator Leahy, who is the cosponsor, we are going to 
try to get the majority leader to bring it up free standing, or we can 
add it on to some other bill, and we will be better prepared to try to 
get cloture in the future.
  Let me say one final word, and that is, Senator Kyl and I are good 
friends. Senator Graham and I are good friends. We sit on many matters 
where we are in agreement. I have great respect for Senator Kyl. I 
already identified his

[[Page 5836]]

qualifications--law review, outstanding scholar, outstanding Senator. 
Senator Graham is an acknowledged expert in military law, knows more 
about military law than perhaps anybody else in the Chamber, not that 
he knows more about constitutional law than anybody else in the 
Chamber, but as much constitutional law as anybody else in the Chamber.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, this is going to sound too much like the 
mutual admiration society, but before Senator Specter said what he 
said, I rose because I wanted, in return, to pay him a compliment.
  As chairman of the Judiciary Committee prior to the last election, he 
performed admirable service to the Senate. I think it is not well known 
that that kind of a job requires a lot of different skills to be 
employed to deal with a lot of cantankerous Senators who have their own 
ideas about how things should be done. Senator Specter always conducted 
that committee in a way which allowed us to get business done, and 
respected the rights of Senators. Far too often, debate, or what passes 
for debate in this Chamber, is speeches given by Senators on different 
points of view, like ships passing in the night with no joining of the 
issues, and no serious discussion of complex legal issues, when that 
should be required.
  Certainly the Presiding Officer would be well qualified to judge what 
I am saying. But I always appreciated the opportunity, even when we 
were in disagreement, to discuss and to debate with the Senator from 
Pennsylvania, because he is a serious scholar who takes these matters 
seriously. He may not always come up with legal theory with which I 
agree, but it is always interesting to debate him. At the end of the 
day, I would like to think this kind of debate does add to a record 
that the Court or other observers might actually find informative and 
helpful in their decisions.
  Again, while we disagree with each other on this matter, I think it 
is apparent that we do so respectfully and with regard for each other's 
opinions.
  I want to say there is no greater expert in our body on military law 
than the Senator from South Carolina. I have always appreciated his 
wise advice and counsel on these matters as well.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from South 
Carolina.
  Mr. GRAHAM. Madam President, this is a session worthy of the Senate, 
worthy of the country, and I think incredibly important. I compliment 
Senator Kyl for what I thought was an excellent overview of what the 
law requires in this area, what the Geneva Conventions require, and how 
our country exceeds the requirement of the Geneva Conventions.
  To my good friend Senator Specter, there is no better champion of 
fairness and constitutional causes than Senator Specter. On this we 
respectfully disagree as to what the courts have said, and as far as 
the lay of the land of how you do this.
  I do not come to this body as an expert on the Geneva Conventions. I 
have had some time in the military as a military lawyer. I have a 
pretty good understanding of what is going on in some respects. But I 
ask every Senator to review what is going on and make their own 
judgments, ask their own legal friends if they are not lawyers, and try 
to be fair.
  We will all serve the country well if we will have a process that is 
constitutionally sound, that meets the test of fairness, and also 
recognizes we are at war and we are under great threat. So my basic 
presumption here as a Senator is I want to put infrastructure in place 
that recognizes the country is in an ongoing global struggle, and that 
as part of that global struggle we are dealing with people who are out 
of uniform.
  This is not a capital to conquer or a navy to sink or an air force to 
shoot down. This is a unique war in the sense that it is ideologically 
based, not a particular location we are trying to conquer and not a 
particular uniform we are trying to suppress. The global war on 
terrorism is about extreme versus moderation, and it is rearing its 
head all over the planet.
  So the battlefield in this war, from my point of view, is the globe 
itself, just as in World War II--the al-Qaida enemy. That is who we are 
talking about, people affiliated with al-Qaida, al-Qaida-like 
operatives who are going throughout the planet trying to kill 
civilians, rampantly trying to inflict harm on our own troops for an 
ideological agenda based on religion. They have no boundaries. They are 
not signatories to the convention. They do not play by the law of armed 
conflict.
  But even if they have a status in the law of armed conflict, we are 
trying to make sure their status is determined in the proper way. We 
realized in past wars that the Viet Cong and others operated outside of 
a uniform, in a guerilla-type fashion. Well, the terrorists operate out 
of uniform with absolutely no respect for any concept of the law of 
armed conflict. But once they are captured, if they are not killed, 
then it becomes about us, not about them.
  What does the United States do when it finds an enemy combatant, 
someone out of uniform, who is engaged in hostilities? See, I do 
believe 9/11 was not just a crime; this was an act of war. There are 
warriors all over this planet involved in a great struggle, in their 
minds, against moderate Muslims and every other religion, Christian, 
Jewish faith, and they have no place for the rest of us. If you solved 
the Jewish-Palestinian problem tomorrow, they would still be coming 
after us.
  The people at greatest risk are moderate Muslims in the Middle East 
who would tolerate different ways of looking at religion. So there is a 
global struggle, and when we find a person we believe to be an al-Qaida 
operative or a supplier of materials to al-Qaida, the first thing, if 
they survive the battle, is that our military must fight the war, and 
if they are captured, we have to determine their status.
  If there is a question as to whether the person captured by the 
American military is a lawful combatant, an enemy combatant, or 
nonbelligerent, who makes the decision as to what is the proper status 
for that individual?
  Well, under the law of armed conflict--and I do believe we are at 
war--it is the military. Under the Geneva Conventions, it is the 
military. Article 5 of the Geneva Conventions is very important. 
Because within that article, it informs the world at large, the 
signatories of the conventions, that a competent tribunal must be 
empaneled to determine the status. That competent tribunal panel all 
over the world is the military.
  The reason I object so vehemently to allowing habeas petitions to be 
filed to determine who is a military threat is we would be conferring 
what is a military decision, historically and under the law of armed 
conflict, and literally making it a civilian judge's decision where 
witnesses would be called and the judge would have a full-blown trial, 
with some very sensitive information.
  I do respect our judges, but with all due respect to our judges--I 
think most of them appreciate this--they are not trained as to who a 
military threat is to the United States. That truly is a military 
decision, and we are not making that up after 9/11. That has been a 
military decision under the Geneva Conventions article 5 since the 
conventions were drafted. So we are doing nothing new because we were 
attacked by an ``un-uniformed'' enemy.
  The question as to what Senator Specter has raised: What process do 
we have in place to determine if a person is truly an enemy combatant, 
a concept recognized by the Geneva Conventions, the combat status 
review tribunal to me is not only constitutionally sound, it goes 
beyond what the Geneva Conventions require. Senator Specter read a 
transcript of a case that went to the DC Circuit Court of Appeals. I 
want us to slow down for a moment and think about that. The case as to 
whether this person was an enemy combatant worked its way up through 
our Federal judiciary to the second highest court in the land.
  Under the law we passed last year, we allowed in every decision by 
the military that results in a finding that a

[[Page 5837]]

person is an enemy combatant that that individual will be able to go to 
our court system, which is not required under the Geneva Conventions 
and is done nowhere else that I know of, and the court will review that 
case on two grounds: Were the procedures in place constitutional--
Senator Specter mentioned this--and do you feel comfortable with the 
rebuttable presumption? Well, that has already been decided. In the 
Hamdi case of 2004, they specifically comment on the CSRT procedures. 
There is a preponderance of the evidence test required. The Government 
must prove by a preponderance of the evidence that the person in 
question is an enemy combatant.
  This is not a judicial proceeding, this is an administrative 
proceeding. It is like the EPA deciding an administrative question. But 
it is an important decision, because if you are an enemy combatant, you 
can be held for an indeterminate period of time. As long as you are a 
threat, you can be held as long as hostilities exist.
  The problem with this war is we do not know when the war is going to 
be over, so we want to build robust due process.
  Let me tell my colleagues without hesitation: We have let almost 
200--I can't remember the number--go from Guantanamo Bay who had been 
captured and determined to be enemy combatants. Every year their status 
was reviewed because we do not want to keep people forever unless there 
is a reason to keep them. Three things are looked at in every person's 
case administratively: Do you have intelligence value still; are you a 
threat to the country; and has anything new come into the case file to 
say you were originally misidentified as an enemy combatant? Twelve of 
the people released have gone back to the fight, have gone back to 
trying to kill Americans and civilians.
  The question for this country and the world is when it comes time to 
decide to release somebody, there is risk to be had in that decision. 
Who should share that risk the most? Is it the civilian populations 
that have been the victims of these ``un-uniformed'' killers who have 
chosen to join these organizations or support them with no boundaries 
or should it be the people who take up these causes?
  I will tell you where I am coming down. If there is a doubt as to 
whether they continue to be a threat to our country and other peace-
loving people, we are not going to turn them loose to fight us again. 
Every enemy combatant is not a war criminal. There is a separate 
proceeding at Guantanamo Bay to deal with those people involved in war 
crimes. If you start mixing the two, it will come back to haunt our 
country because we do not want to stand for the concept as a nation 
that every time an American soldier is captured in the battles of the 
future it would be appropriate to label them a war criminal. War 
criminals have to do specific things. Being part of an enemy force does 
not make one a war criminal.
  So the point I am trying to make is the administrative procedures in 
place at Guantanamo Bay have been found to be constitutional, but we 
added a provision last year that allows the court to review whether the 
tribunal's finding was supported by a preponderance of the evidence, 
and allowing a rebuttal presumption in favor of the Government's 
evidence.
  In other words, the DC Circuit Court of Appeals can look at the 
military's findings, not just the process, and they can say, as a panel 
of judges: Wait a minute, there is no competent evidence to support a 
finding that you are an enemy combatant. The court can say the case 
file is deficient. Not only was the process deficient--the process 
could be constitutionally sound--but it could result in an individual 
case where there was not sufficient evidence in the opinion of the 
court. The court does this all the time.
  The court will review administrative bodies' decisionmaking abilities 
throughout this land. It could be in the EPA, it could be in some other 
agency of the Government, where the court will be able to look at the 
hearing officer's findings and determine if there was sufficient 
evidence to support that hearing officer's finding.
  So going back to the transcript Senator Specter read, they did not 
tell him who it was. Well, maybe the reason he was not told who 
informed is because if we put out in a public setting our informant 
system, they will wind up getting killed. That is not an unknown 
concept in criminal law.
  So I would argue, there is information in these cases that will never 
be publicly disclosed because if we start publicly disclosing the 
entire network that led to this capture, we are going to get people 
killed and we will be less safe. That is why we have a classified 
portion.
  Shaikh Mohammed, the mastermind of 9/11, will be going through this 
process tomorrow, I believe, at Guantanamo Bay. Fourteen other high-
value detainees captured in the global war on terror--very significant 
players in the al-Qaida movement--will be given a hearing at Guantanamo 
Bay, where the Government will have to prove the person in question--
Shaikh Mohammed--is, in fact, an enemy combatant as defined by our own 
regulations, consistent with the Geneva Convention.
  These hearings will be closed. I applaud the fact they are closed. 
The evidence will be redacted and given to the public and the press. 
But there will be a transcript available to be reviewed by the DC 
Circuit Court of Appeals, including the classified portion, in a 
classified setting.
  I think it would be a huge mistake to disclose the methods and 
operations and the sources that led to the capture of Shaikh Mohammed 
in an administrative proceeding. Our courts will look at that evidence 
in a classified fashion because Shaikh Mohammed will be allowed to have 
his case reviewed, after the military makes their decision, in Federal 
court--something never done in any other war. The reason we did this 
last year, with Senator Levin's help, was to make sure--because we do 
not know when this war will be over--there will be a check and balance 
on a military decision never known in any other war.
  I support that check and balance. I support the idea that every 
military decision regarding enemy combatant status will work its way 
through our court system. I vehemently object to taking what is a 
military decision and giving it to a civilian judge in a habeas forum, 
which is a complete Federal trial where the civilian judge makes the 
decision, not the military. Let the judges review the military work 
product. Do not give it to the civilian judges.
  Shaikh Mohammed will be classified one way or the other. I am sure he 
will be classified as an enemy combatant. But the DC Circuit Court of 
Appeals will get to review his case. What is likely to happen in his 
case, if you believe the press reports? If he truly can be proven to be 
the mastermind of 9/11, he will be tried as a war criminal because the 
activities he engaged in--of orchestrating a series of attacks on our 
country, where you hijack civilian aircraft to go into the World Trade 
Center and to attack Washington, DC--would be a violation of war, as 
well as a crime.
  So he could work his way into the military commission trial 
procedure. ``Enemy combatant'' is an administrative determination. 
Charging somebody with a war crime is a totally different process. If 
the Government charges him with a war crime in a military commission 
setting, in a military commission format at Guantanamo Bay, they will 
not be allowed to give to the jury classified information proving he is 
guilty of what we are accusing him of doing, unless they share it with 
the accused. That was my objection to President Bush's proposal. I do 
not want to create a precedent where one of our soldiers could be tried 
in a foreign land, accused of being a war criminal, and never be given 
the evidence and be able to defend against what would be a criminal 
proceeding resulting in death or long-term imprisonment.
  So for Shaikh Mohammed or anyone else, if the Government decides to 
use classified evidence to find someone guilty, they get a chance to 
defend themselves because we are talking about a punishment that could 
include execution.

[[Page 5838]]

  There are two different concepts. The rules are different. What goes 
on in a military commission trial is consistent with what we do with 
our own troops under the Uniform Code of Military Justice when we try 
them for crimes. One is an administrative determination that exceeds 
the Geneva Convention requirements. The other is a criminal proceeding 
under the Law of Armed Conflict that I believe will be constitutional 
and the courts will say is a process worthy of this country.
  As to what the law is, I say to my good friend, Senator Specter, I 
believe the Rasul case was based on this concept. The Department of 
Justice argued that Guantanamo Bay was outside the jurisdiction of the 
United States. If that were the case, if they won that argument, the 
constitutional provisions of habeas would not apply, nor would the 
statutory provisions. But Rasul was about a statute, not about the 
constitutional provisions, in my opinion.
  Here is what the court said: They rejected the Bush position that the 
laws of the United States do not apply to Guantanamo Bay because of the 
lease and because of the relationship we have to that facility.
  Do you know what. I think the court was right. I think that was an 
ill-advised position by the Bush administration.
  So once Rasul was decided, and they rejected Eisentrager's statutory 
interpretation test, the Rasul court, in my opinion, said since it is 
within the United States, and Congress has not spoken to this in 2241--
Congress has never said because you are an alien enemy combatant at 
Guantanamo Bay you cannot have a 2241 right--we are going to confer 
that right until Congress decides otherwise.
  Mr. SPECTER. Madam President, will the Senator from South Carolina 
yield for one question?
  Mr. GRAHAM. Yes, I will.
  Mr. SPECTER. Madam President, when the Senator from South Carolina 
says, in the case cited that got to the Court of Appeals for the 
District of Columbia, where the charge was he had talked to an al-Qaida 
person, but they could not give the name--and the Senator from South 
Carolina seeks to justify that on the ground there might be some 
circumstance where disclosing the name would reveal a confidential 
source--can the Senator from South Carolina give any conceivable way 
there would be a disclosure of a source simply by identifying the al-
Qaida person this detainee was supposed to have talked to?
  Mr. GRAHAM. Madam President, if I may, just not being an intelligence 
expert, when we start naming the people involved around the individual, 
then we are talking about locations, specific sites. I would be very 
worried if we started naming in detail al-Qaida operatives, where they 
were, what they said, because that could set in effect a chain of 
events that would allow the enemy to understand what happened in that 
transaction.
  We may just disagree about this issue, but I do believe that the 
classified--that Shaikh Mohammed--maybe I can say it this way. I am 
glad that Shaikh Mohammed's case is classified, and we are not going to 
reveal to the public how we captured him, all the evidence that led us 
to find out where he was and what he was doing. I think it would be a 
nightmare for this country.
  As to the DC Circuit Court of Appeals opinion, I say to Senator 
Specter, they said the procedure was constitutional. I agree with them. 
Whether or not the individual case had sufficient evidence to support a 
finding is now subject to review by the court. This gentleman will get 
that review by the court based on what we did last year.
  Mr. SPECTER. Madam President, I find it very hard--really 
impossible--to follow that answer. I cannot conceive of what the Shaikh 
Mohammed case has to do with my question or has to do with the 
proceeding before the Combat Status Review Tribunal for the detainee 
whose case got to the court of appeals, where he was accused of talking 
to an al-Qaida person, and they could not even identify the name of the 
person. That is not asking any places and times and whatever other 
activity was taken. I would rest my case, contrary to the arguments by 
the Senator from South Carolina, on that point.
  If anybody thinks the Senator from South Carolina has given any 
reason that they could not identify the identity of the al-Qaida person 
without disclosing a confidential source--not talking about when, 
where, and under what circumstances--if my colleagues who will vote on 
this ultimately are satisfied with the answer by the Senator from South 
Carolina, then I will accept their judgment.
  Mr. GRAHAM. I appreciate that. And I will continue. I will say this 
to my good friend from Pennsylvania. You were reading the transcript of 
a case that went on appeal. You have determined yourself that an 
injustice was rendered. You have made an opinion inconsistent with what 
the court found. You have your own sense of justice. I appreciate it, I 
admire it, but I do believe the court is right and you are wrong.
  I do believe there is no constitutional right available to enemy 
combatant terrorists, noncitizens. I do not believe Rasul decided that, 
because if they had decided that, all these cases we are talking about 
would have been dismissed.
  The circuit court of appeals may not be the--they would have gotten 
that. We have a case going to the DC Circuit Court of Appeals that 
either they have no idea of what the law is or Senator Specter is 
wrong.
  So I hope my colleagues will understand the DC Circuit Court of 
Appeals is not blind to the issues in this case, they just did not miss 
the fact that the Supreme Court, in Rasul, 3 years ago, declared a 
constitutional right and the DC Circuit Court of Appeals is out to 
lunch as a group of judges who do not understand one of the biggest 
decisions in American jurisprudence. If my colleagues believe that 
Rasul created a constitutional right for an enemy combatant, 
noncitizen, and everybody in the legal system has missed it, then you 
should not trust anything coming out of the DC Circuit Court of 
Appeals, you should not trust any decision coming from district court 
judges all over the country who are dismissing these cases, and you 
should not believe a thing I say.
  But there is a reason the DC Circuit Court of Appeals did not feel 
bound by a constitutional finding in Rasul--because the court did not 
find that. There is a reason they upheld the proceedings in the case in 
question, and some of that reason may be classified. I don't know. But 
I do know this: It is not good law or public policy to take a 
transcript released by the defense counsel and read it in isolation and 
try to use that anecdotal story to say that the whole process is 
broken, when the court looked at the entire process and found that it 
was not broken. I can promise my colleagues that if the Rasul case said 
there was a constitutional right to habeas corpus by a noncitizen enemy 
combatant, it would have been a major issue in the Al Odah case. The 
reason Al Odah decided what it did is because it rejected the defense 
claim there should be, and there is no evidence in the Al Odah case 
that the DC Circuit Court of Appeals took precedent in the Rasul case 
and came out with a different finding. Don't my colleagues think there 
would have been a long discussion in the Al Odah case by the DC Circuit 
Court of Appeals that here is why the precedent set in Rasul for a 
constitutional habeas right for an enemy combatant noncitizen is wrong?
  So please give the DC Circuit Court of Appeals some credit for not 
missing the biggest issue in military law in 200 years because they 
didn't miss it. Please give the Department of Defense some credit that 
when they issued this memo to detainees and their lawyers in July of 
2004 indicating there is a habeas petition available to you, that it 
wasn't the Department of Defense's desire to create that right and that 
what they were doing was consistent with Rasul in saying that under 
2241 you now had this right. For someone to suggest that memo was a 
conscious decision by the Department of Defense to give a habeas right 
to detainees I think completely misunderstands what the

[[Page 5839]]

memo was about, distorts what it was about, and is a complete 
misunderstanding of what happened in Rasul. The Department of Defense 
had no other choice but to tell the detainees after the Rasul decision: 
You can file habeas petitions under 2241.
  The Supreme Court in three cases has told the Congress: You need to 
speak here. We found a statutory right because you haven't excluded it. 
Do you want as a Congress to confer on the Shaikh Mohammeds of the 
world an ability to go into Federal court of their own choosing, to 
find the most liberal judge they can find in this country, and take the 
military and every other intelligence agency to court and have that 
judge, in a full-blown trial, determine whether this person is an enemy 
combatant? That would be changing a process on its head. That would be 
taking away from the military the ability they have under the Law of 
Armed Conflict to decide who an enemy combatant is and give it to a 
civilian judge who is not trained in that. It would be a fundamental, 
far-reaching mistake that would haunt us and undermine our national 
security, put judges in positions they are not trained for, and take 
away from our military an obligation and right they have to defend us. 
There is a place for judges. There is a place for the Congress. There 
is a place for the President. There is a place for those fighting this 
war.
  I have one simple goal. I want to put people in the lanes where they 
can do the most good and the least harm. I do believe, if we turn this 
war into a crime and if we take the Shaikh Mohammeds of the world and 
we let civilian judges have a full-blown trial about how we found out 
they were the mastermind of 9/11 and if you take away from the military 
what a military threat is and you give it to civilian judges, you are 
going to make this war much harder to prosecute, and it will come back 
to haunt us. It has never been done before for a reason. We never 
allowed the Nazis, who are on par with al-Qaida, the ability to go into 
our Federal courts and sue the people who were fighting them--our 
troops. Because Justice Jackson in 1950 said: You would undermine the 
commander. They would be fighting the enemy on two fronts: on the 
battlefield and in the courts of the United States. It would undermine 
the commander's credibility. It would lead to chaos. There is a reason 
the Germans and the Japanese never went to Federal court. It would be, 
in my opinion, dangerous to give to al-Qaida more rights than we gave 
to the Nazis.
  This is a great debate to have, but it needs to be based on some 
sound concepts. I don't think it is a sound concept to say that Rasul 
gave a constitutional right to noncitizen enemy combatants under our 
Constitution. I don't think it is a sound concept to say that the DC 
Circuit Court of Appeals 2 weeks ago missed that. They didn't miss it. 
That is not what this debate is about. This debate is about whether 
2241--something under our control--whether we as a Congress want to 
give to enemy combatants the ability to sue our own troops. There are 
over 160 lawsuits filed. It has made a nightmare of Guantanamo Bay. 
They are suing our own troops for medical malpractice, for DVD access, 
for better exercise. You name it, they have brought a lawsuit around it 
and it has clogged our courts and it has impeded the ability to run 
this jail.
  Let me tell my colleagues, in a classified and unclassified manner, 
the intelligence we have received from people housed at Guantanamo Bay 
has helped this country defend itself. The last thing we should be 
doing in an ongoing war is hampering our ability to defend ourselves 
because we are having two fronts--the military front and the legal 
front--that confers a status on our enemy that will undermine the 
ability of our military to defend us.
  This is a statement from one of the lawyers who has filed one of 
these 160 lawsuits:

       The litigation is brutal for the United States. Boy, was he 
     right about that.

  We are having to call people off the battlefield. We are having to 
bring people off the battlefield into the new battlefield--the 
courtroom--to explain to some civilian judge why we think they are an 
enemy prisoner--enemy combatant that threatened the United States.

       It is huge. We have over 100 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 are doing.

  Boy, was that right.

       You can't run an interrogation with attorneys.

  You better believe that is right. We are interrogating to make sure 
we find out what the enemy is up to the best we can so they don't kill 
us. Now, if you want to take the interrogation process at Guantanamo 
Bay and put a bunch of lawyers in the middle of it, which we have never 
done in any other war--we never gave to the Nazis--then you are 
crippling the ability of this country to defend itself. It has nothing 
to do with fairness. You are creating a right never known in an armed 
conflict previously, and you will be criminalizing what I think is a 
war in a dangerous way.
  What are they going to do now that we are getting court orders to get 
more lawyers down there? They are going to shut off the interrogation 
and the information is going to stop.
  We have made mistakes at Guantanamo Bay. The Bush administration has 
taken legal positions that I don't think have been sound, but I believe 
we have finally got this right, and I am going to end now.
  I think after a lot of give and take and after a lot of court 
decisions, we are on the road to exactly where we need to be, and we 
have it right. Here is what we have in place: a system that is Law of 
Armed Conflict compliant, Geneva Conventions compliant, that realizes 
that fairness is part of being an American, but we are at war with 
people who want to kill us, and if they could, they would go back to 
it, some of them. Some of them are war criminals. Some of them are 
warriors who are assisting in the effort that had to be kept off the 
battlefield until they are no longer a threat. The military is doing a 
darn good job, and I stand by the men and women down there who are 
carrying out this job at Guantanamo Bay. I stand with you. I am proud 
to be your advocate in this body. You are getting good intelligence, 
consistent with lawful interrogation techniques. You are making 
decisions about who an enemy prisoner is, who a threat is to this 
country, in a sound way. Keep it up. Your work product will be going to 
court, so be mindful that what you do will get reviewed, as it should. 
Some have been let go--about 100-and-something. Most, as far as I know, 
have gone back and not been a threat. Every year, every person at 
Guantanamo Bay will get to have their case argued anew. They will get 
to make a case: I am not an enemy combatant. I am no longer a threat. I 
have no intelligence value.
  We do not want to misidentify someone. That has probably happened. 
This is a confusing war. I am not here to say there has not been 
someone sent to Guantanamo Bay who was a mistake. That is true of jails 
in Missouri, and it is true of jails in South Carolina. But you can't 
say there is no risk involved when you release somebody because I can 
tell my colleagues with certainty that 12 of the people we thought were 
no longer a threat, because we wanted to be fair and let them go, have 
gone back to try to kill Americans.
  There is no perfect outcome. You try to create a system that models 
who you are and is as fair as possible, recognizing you are at war. 
These war crime tribunals and commissions are going on during the war. 
The enemy combatant determinations are being made during the war. The 
reason we don't want to disclose how we found Shaikh Mohammed is 
because the war is going on, and we don't want to help people who are 
our enemies. So everybody caught and suspected by our military of being 
an enemy combatant involved in a global war on terror out of uniform 
supporting al-Qaida, they are going to get to go to Federal court, but 
we are going to let the military decide if they are a threat first, and 
the judges of this country can look over the military's shoulder and 
see if the

[[Page 5840]]

military got it right in that case and if the procedures are fair. If 
you are convicted of a war crime at Guantanamo Bay, as Shaikh Mohammed 
may be or someone like him, you are going to get your day in Federal 
court because it is an automatic right. Whatever procedures are used by 
our military, which is modeled after our own process to try our own 
people, will go through legal scrutiny, the procedures and the outcome.
  So if you are worried as an American that we are putting people away 
forever without due process, don't worry about it. That is something to 
be concerned about. If you are worried that your country has gotten 
somebody in the global war on terror and we house them and nobody ever 
gets to look at the work product, don't worry about it. But if you are 
worried that the Congress is about to confer a right never known in any 
other war to al-Qaida that will undermine our security, you are right 
to worry. It is all about judges: What they should do and when they 
should do it--and I respect judges. It is all about the military: What 
should they do and when should they do it. God knows I respect them.
  We have the right balance. The military fights, they kill our 
enemies, they capture our enemies, and once they are captured, they are 
going to be treated by this country under the Law of Armed Conflict, 
consistent with our values and consistent with the Geneva Convention 
and consistent with the fact that we are at war. Everything they do 
when it comes to adjudicating these prisoners' status will be reviewed 
in our Federal courts after the military acts. Every person convicted 
will have their day in court, and the courts can look and see if they 
were treated fairly. That is what America should do. That is what we 
are doing.
  Please understand this war is different, and we have to make 
accommodations in a variety of ways, but this is a war. This is not a 
crime. These people we are rounding up throughout the globe wish to 
kill us all.
  Mr. President, I yield the floor and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Salazar). Without objection, it is so 
ordered.
  Mr. GRASSLEY. Mr. President, are we in morning business?
  The PRESIDING OFFICER. We are not in morning business. We are 
considering S. 4.
  Mr. GRASSLEY. I ask unanimous consent to speak as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               The Budget

  Mr. GRASSLEY. Mr. President, today, as I did a couple days last week, 
I continue with my discussion on the issues the Senate will face as the 
Democratic leadership draws up its budget resolution, and that is going 
to be 2 days next week in the Budget Committee and then I think the 
week after next, depending on what the Democratic leader decides to do, 
we generally will have a whole week of debate on the budget and 
adoption of the budget.
  We face an important milestone because the Democratic leadership 
controls the Senate for the first time since the 2002 election. Over 
the past 4 years, there has been a lot of passionate debate over the 
fiscal policies the Republican leadership proposed and implemented over 
the last 4 years. In November, the voters sent a Democratic majority to 
Congress. The budget debate we are about to enter provides Democrats 
with their opportunity to chart a fiscal policy path for the Nation.
  Before the budget arrives, I have taken to the floor to recap and 
evaluate some of the consistent themes we have heard from the 
Democratic leadership over the past 4 years. Since the Finance 
Committee has jurisdiction over nearly all of the revenue side of the 
budget, I focused on the issues on that side of the ledger, the revenue 
side.
  Since the position of the Democratic leadership has been to let the 
bipartisan tax relief plans of 2001 and 2003 expire, I talked about the 
effects of that automatic tax increase--yes, automatic tax increase--
that happens without even a vote of the Congress if we don't continue 
this tax policy that was adopted in 2001 and 2003 beyond the year of 
2010.
  It is a very important consideration. For the last 4 years, 
Republican budgets on Capitol Hill have made it clear that our priority 
was to ensure that virtually every American taxpayer would not see that 
automatic tax increase come in their earnings of 2011, and that still 
is our policy. That is a policy reflected in the budget the President 
of the United States has sent to the Congress. So the year 2011 is the 
year the bipartisan tax relief sunsets.
  I emphasize that 2001 was the year of bipartisan tax relief. I had 
the good fortune of working that year, 2001, with Senator Max Baucus 
helping me get that bipartisan tax relief passed. He is now chairman of 
the committee, being that the Democrats are in the majority. I have the 
good fortune of maintaining a close working relationship with him.
  The President's budget, as I already said, maintains the assurance 
that these tax policies of the last 7 years will continue in place 
beyond the year 2010. During the 4-year period 2003 to 2006, the 
Democratic leadership was harshly critical of this policy which was 
passed in 2001 and 2003; that is, the Democratic leadership opposed the 
fiscal policies of preventing a tax increase on virtually every 
American taxpayer automatically because Congress wouldn't even have to 
vote on it.
  My first speech defined the tax increases built into that fiscal 
policy. My second speech highlighted some of the macroeconomic risks of 
that widespread automatic tax increase. Last week, I remarked to the 
Senate and discussed with the Senate potential omissions in the 
Democratic leadership's budget; that is, the discussion was about 
fiscal policy that was present in prior budgets. If the Democratic 
leadership's past criticisms of those budgets were carried out, the 
fiscal policy of continuing tax relief would end. This week, I am going 
to focus on the track record of the Democratic leadership and discuss 
potential problems from proposals that might be contained in that 
budget. You could say, from our standpoint, I am examining errors of 
commission this week, whereas last week I examined errors of omission.
  Today, I wish to refer to the use of revenue-raising offsets in the 
budget context. As any budgeteer can tell you, the budget resolution is 
not a law. It doesn't amend the Internal Revenue Code or Medicare law 
or appropriations. The budget resolution is like a blueprint for a 
building. The actual construction of tax and spending policies will 
occur later on this year.
  The budget resolution is, however, critical to actual tax, actual 
spending, and actual deficit decisions the Congress will undertake. The 
matter of offsets is critical in this respect: If additional spending 
is proposed in the resolution without real offsets, then deficits are 
more likely. Likewise, if popular tax relief is proposed but not offset 
with real proposals, then deficits could appear and be larger--though, 
on this last point, the track record of the last 4 years shows tax 
relief grew the economy and record levels of Federal revenue came into 
the Treasury as a direct result.
  My basic point is that if a proposed offset is not realistic and the 
proponents succeed, budget discipline could be undermined. In other 
words, phony offsets, if incorporated into the budget, can lead to 
deficits.
  Today, I am just going to follow the numbers. Just follow the 
numbers. I am not going to make any judgments or make any assumptions 
about the revenue-raising proposals. I am going to analyze these 
proposals strictly from a fiscal standpoint.
  I analyze two categories of offsets from the standpoint of whether 
the budget arithmetic adds up, and I am going to examine last year's 
record of the Democratic leadership on offsets

[[Page 5841]]

but look at it as if they were in control at the time. It is not a 
pretty picture.
  I am going to take a look at proposed offsets from a series of 
amendments, real amendments that were debated here on the floor of the 
Senate during last year's budget resolution debate. During that debate, 
virtually all Democratic members had a common theme in their purported 
offsets for their amendments to this resolution. That purported theme 
was that they would close tax loopholes to pay for whatever popular 
spending program they wanted to propose. Closing corporate tax 
loopholes was the common refrain to pay for spending.
  I will list the amendments and the popular spending proposals:

       Senator Kennedy, Vocational Education and Pell Grants;
       Senator Akaka, Veterans Medical Services;
       Senator Murray, Community Block Grants;
       Senator Stabenow, Emergency Responders;
       Senator Menendez, Port Security;
       Senator Byrd, Amtrak;
       Senator Reed of Rhode Island, LIHEAP;
       Senator Sarbanes, Corps of Engineers and other Federal 
     services;
       Senator Dorgan, Native American programs;
       Senator Stabenow, Veterans' Health Care;
       Senator Akaka, Title I Education Grants; and
       Senator Lincoln, Agriculture.

  These are all here, and more than what I gave are here.
  Mr. President, at this point I ask unanimous consent that a list of 
these amendments by vote and by amendment number, so that they are 
there for people who aren't listening to what I am saying to consider, 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Paid for by Closing Tax Loopholes

       Vote #39 Kennedy Amendment, No.3028 Vocational Education 
     and Pell Grants; Vote #41 Akaka Amendment, No. 3007 Veterans 
     Medical Services; Vote #43 Murray Amendment, No. 3063 
     Community Block Grants; Vote #45 Stabenow Amendment, No. 3056 
     Emergency Responders; Vote #47 Menendez Amendment, No. 3054 
     Port Security; Vote #51 Byrd Amendment, No. 3086 Amtrak; Vote 
     #57 Reed Amendment, No.3074 LI-HEAP; Vote #60 Sarbanes 
     Amendment, No. 3103 Corps of Engineers and Other Federal 
     Services; Vote #61 Dorgan Amendment, No. 3102 Native American 
     Programs; Vote #63 Stabenow Amendment, No. 3141 Veterans 
     Health Care; Vote #64 Akaka Amendment, No. 3071 Title I 
     Education Grants; Vote #66 Lincoln Amendment, No. 3106 
     Agriculture.

  Mr. GRASSLEY. Mr. President, as you can see, the proposed spending is 
popular and has a nice political edge. Democrats could record 
themselves as voting for the amendment, and they could criticize 
Republicans for voting against those amendments. From a political 
calculation perspective, these were profitable efforts on the part of 
the Democratic leadership. The fiscal consequences, however, were 
another story.
  If Democrats had been in the majority, as they are now, the fiscal 
effect of these amendments would have been a very big problem, and here 
is why. One-time spending increases, even if for 1 year, are built into 
the CBO baseline, and they are built in forever. This is explicitly the 
case for increases in discretionary spending. It is also implicitly the 
case with entitlement spending. If anyone disputes that point, I would 
ask them to show me the last time we reversed new entitlement spending. 
It just never happens around here is the best thing to say.
  Let's take a look at the Kennedy amendment on vocational education 
and Pell grants to which I have referred. The amendment was purported 
to be $6.3 billion, but that was for 1 fiscal year. That $6.3 billion, 
if adopted, would probably be extended in later years. It is in the 
baseline. So Senator Kennedy found his offset by closing $6.3 billion 
in what he referred to as corporate tax loopholes. I am not going to 
find fault with closing those tax loopholes. I have been involved in 
things like that for a long period of time, and successfully so. The 
fiscal and political effect, though, of Senator Kennedy's amendment was 
to identify specific popular spending and offset it with a nondefined 
tax increase. From a realistic standpoint, Senator Kennedy's amendment 
identified less than 10 percent of the gross spending burden it would 
have placed on future budgets to the extent the unspecified revenue 
offset was duplicative or not realistic. The real effect was that the 
$6.3 billion additional spending would have been added to the budget 
for that fiscal year.
  All 12 of these listed amendments used the same undefined offset.
  Several Members referred to revenue raisers in a Democratic 
substitute amendment to the 2005 Tax Relief Reconciliation bill, and 
they kept trying to spend the same money over and over again. Let's 
take a look at the list of revenue raisers in the substitute amendment.
  Mr. President, I ask unanimous consent that a Joint Committee on 
Taxation estimate of the revenue offsets to the 2005 substitute be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            Inventory of Specified Democrat Revenue Offsets

                       [In billions over 5 years]

Gross Revenue Available from Democratic Substitute                $53.6
Less Enacted Offsets                                               -9.3
Less Small Business Tax Relief Bill Offsets                        -8.7
Net Available Democratic Offsets                                   35.6
Source: Joint Committee on Taxation

       Recap of Democratic Revenue Raisers and Spending Proposals

                       [In billions over 5 years]

Net Available Democratic Revenue Offsets                          $35.6
Less Cost of Democratic Spending Amendments                      -105.2
Net Cost of Democratic Spending Amendments                        -69.6
Source: Joint Committee on Taxation
  Mr. GRASSLEY. That substitute amendment is an overinclusive inventory 
of offsets. I say ``overinclusive'' because it included the universe of 
revenue raisers that the Democratic caucus supported. Republicans 
supported many, but not all, of these offsets.
  Joint Tax scored these revenue raisers during last year's budget 
debate. According to the Joint Tax experts, that universe of Senate 
offsets raised $53.6 billion over 5 years. That is this chart right 
here: $53.6 billion. At that time, I noted that the budget resolution 
assumed several billion in revenue raisers to cover part of the 
reconciliation bill. Indeed, in the reconciliation conference, we used 
eight of these revenue raisers. They accounted for about $9 billion--
and I should say only $9 billion over 5 years. I had hoped to use 
additional raisers accounting for about $7.5 billion over 5 years, but 
the House rejected that, and we then found some offsets someplace else. 
So we will take a look at them.
  If you account for the revenue offsets left over, you can subtract 
out another 10 revenue-raising proposals that are in the Senate's small 
business minimum wage bill. Those revenue raisers--and those are things 
which had just been before the Senate--those revenue raisers included 
$8.7 billion over 5 years. That is this figure here.
  Of the raisers in the 2005 substitute amendment, about $18 billion of 
those were enacted or are in play in discussions between the House and 
the Senate. So if we review the Senate Democratic inventory of 
identified as well as scored revenue raisers and net out current law 
and Senate-passed tax legislation, we find 18 revenue proposals 
available. These are proposals the Democratic caucus has advocated that 
are left over. They raise approximately $36 billion over 5 years.
  Everyone should know there are revenue raisers in that total I just 
recited that the administration doesn't support. You don't have to let 
that detract you from it, but those would be issues which would be 
subject to, I suppose, a Presidential veto.
  Let's forget that for the moment. There are many in this total that 
the House and Senate Republicans don't support. As we have found in the 
small business tax relief discussions, House Democrats aren't keen on 
some of these proposals either. Nevertheless, to bend over backward and 
to be fair to the Senate Democratic leadership, I am going to tally the 
proposals they have supported as a caucus.

[[Page 5842]]

  Let me repeat the total corporate loophole closers and other offsets 
Democrats have defined. It is $36 billion over 5 years. Put another 
way, I would like to say it is only $36 billion over 5 years, but I 
want you to see what they want to use that $36 billion for--presumably 
to cover a lot of other expenditures they can't do because the numbers 
don't allow it. That total of $36 billion, then, provides a ceiling of 
offsets to compare to the spending amendments.
  Let's go back and match the spending amendments with the universe of 
Democratic revenue raisers. The revenue raised is a far cry from the 
cumulative demand of the amendments that were filed. The amendments 
that have been filed that propose to use those tax loophole closers as 
offsets total $105 billion in new spending. So the Senate Democrats 
propose $36 billion in revenue raisers that were supposed to offset 
$105 billion in new spending, but it doesn't add up. That means the 
spending exceeded revenue raisers by $69 billion.
  Mr. President, I ask unanimous consent that a list of the Democratic 
amendments to the fiscal year 2007 budget resolution be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page 5843]]

[GRAPHIC] [TIFF OMITTED] TS08MR07.001



[[Page 5844]]

[GRAPHIC] [TIFF OMITTED] TS08MR07.002



[[Page 5845]]

[GRAPHIC] [TIFF OMITTED] TS08MR07.003

 

[[Page 5846]]

  Mr. GRASSLEY. Mr. President, this list was prepared by analysts and 
was based upon filed amendments printed in the Congressional Record. I 
think it is interesting that only one filed amendment on this list 
would decrease taxes over 5 years, and only one amendment would result 
in decreased spending over 5 years. The amendment decreasing spending 
was filed by New York's junior Senator and would reduce spending by $1 
million. That is one-thousandth of a billion dollars.
  Put another way, if you subtract the $36 billion from the $105 
billion in new spending proposed, it means the other side's amendments 
were short $69 billion--short $69 billion. Right here. This figure. 
This money proposed for offsets, add up all of the amendments put 
before the Senate, and you come out short. Revenue neutrality? No. 
Budget neutrality? No.
  Now, that $69 billion needs to come from someplace. If the other side 
had prevailed, it would have wiped out the tax relief of last year's 
budget, including what we do to keep more Americans from paying that 
horrible tax, the alternative minimum tax. You can't have it both ways. 
Either the other side, if they had prevailed, would have added $69 
billion in deficit spending or they would have gutted the tax relief 
they claim to support.
  Budgets are about choices. In this case the choices are clear. If the 
Democratic leadership would have controlled the Senate last year, we 
would have no tax relief in that budget or we would have added $69 
billion in deficit spending. Neither choice would be the right choice 
from the standpoint of the American people.
  Defining offsets is very important. It is very important because we 
need real numbers if we are going to have intellectually honest 
budgeting. My analysis of corporate loophole closers and other revenue-
raising proposals shows the Democratic caucus has supported at most $36 
billion in specific revenue-raising proposals. By the way, that is 
about the revenue loss for last year's AMT patch. So the alternative 
minimum tax would have hit another 7 or 8 million Americans.
  Using unspecified revenue-raising proposals is not realistic. If 
Democrats intend to live by pay-go, short for ``pay as you go,'' the 
Finance Committee will need those revenue-raising proposals to handle a 
portion--and just a portion--of the demand of the tax system.
  There are two other categories of revenue-raising proposals 
identified by the Democratic leadership. One is repealing tax relief 
for higher income taxpayers. The other is reducing or closing the tax 
gap. I will talk about the tax gap in a later speech.
  When folks in the Democratic leadership talk about raising taxes on 
higher income taxpayers, it sounds as if all fiscal problems can be 
solved as long as you want to look down the road. Liberal think tanks 
and sympathetic voices in the east coast media tend to echo that 
sentiment. As a matter of intellectual honesty in budget debates, we 
ought to have an idea of how much revenue is there. Since the most 
popular proposal is to repeal the bipartisan tax relief for higher 
income taxpayers, I have asked the Joint Tax Committee to provide 
updated estimates of those proposals--such as the corporate loophole 
closer. I do not expect the revenue would cover the spending demands. I 
was pleased to see the Budget Committee chairman make a public comment 
last week that seemed to address these proposals. According to the 
March 1, 2007 edition of Congress Daily AM, the chairman indicated he 
intended to put forward a budget with ``no tax rate increases.'' I will 
have to see the budget resolution and hear the chairman's explanation, 
but I read that comment to mean the Democratic leadership will not, at 
a minimum, propose to roll back current law tax rates.
  This would be especially interesting in light of the so-called 
millionaire's tax amendment put forward in the past by members of the 
chairman's party. The millionaire's tax amendment filed for the fiscal 
year 2007 budget would have increased taxes by about $105 billion. Of 
course, those same amendments spent that money, so deficit reduction 
would not have been received.
  Today I have examined the question of revenue-raising offsets. The 
inventory of available, defined, specific revenue-raising offsets is 
relatively small. Last year, Democratic amendments overspent the 
available revenue offsets by $69 billion. The Democratic leadership has 
indicated a desire to apply pay-go, pay as you go, to the current law 
tax relief. If pay-go is to be observed with respect to the alternative 
minimum tax and other popular expiring tax relief provisions, the 
Democratic leadership will need those revenue raisers and even more to 
offset the revenue lost from these time-sensitive provisions.
  When we start to examine and debate the budget resolution, we will 
need to use intellectually honest numbers. Using the undefined 
corporate loophole closer is fiscally dangerous. It enables even more 
spending at a time when Government is at record levels as far as real 
dollars. Runaway spending is at the root of our current or future 
fiscal problems. Using phony revenue-raising offsets sets up two 
negative fiscal outcomes, an undefined tax increase and/or deficit 
spending.
  All Members, whether Republican or Democrat, ought to agree to be 
transparent with all these numbers and all these figures in the 
amendments that are posed in the upcoming budget debate.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from 
Idaho is recognized.
  Mr. CRAIG. Mr. President, I ask unanimous consent I be allowed to 
proceed for 15 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Idaho is recognized.
  (The remarks of Mr. Craig relating to the introduction of S. 815 are 
printed in today's Record under ``Introduced Bills and Joint 
Resolutions.'')
  Ms. COLLINS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. STABENOW. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Klobuchar). Without objection, it is so 
ordered.
  Ms. STABENOW. Madam President, I rise today to support the Improving 
America Security Act of 2007, the legislation in front of us. It will 
put us on a path of more security for the future by implementing the 
unfinished recommendations of the 9/11 Commission. I commend all of 
those involved in this important effort.
  As I came to speak on the floor in support of the legislation we have 
been working on for the last couple of weeks, I find myself needing to 
express great concern about the place in which we find ourselves at 
this point--unable to move forward with the final bill and the relevant 
9/11 Commission amendments that have been offered because of an effort 
by the Senate Republican leader to offer a wide-ranging number of 
unrelated amendments to this bill. So we find ourselves now stopped and 
waiting to figure out a way to resolve this effort.
  The families who lost loved ones 5\1/2\ years ago have been waiting 
for the Congress to act. The 9/11 Commission report was released. After 
it was released, I assumed we would immediately take that document and 
begin to move forward aggressively because we all want safety for our 
families. We all live in America, and we are all concerned about 
vulnerabilities and risks and what we need to be able to do to keep our 
families safe and the country safe.
  Unfortunately, things did not move under the former Congresses. We 
now find ourselves in a situation where, again, we are stalled because 
of a set of unrelated issues that have come up. I wish to share for the 
Record the deep concern of family members who lost loved ones on 9/11 
and who have written a letter to the distinguished Republican leader of 
the Senate. I think it expresses their grave concern about

[[Page 5847]]

where we are right now. They are calling on us to move forward and act.
  This reads:
       Dear Senator McConnell: As family members who lost loved 
     ones on 9/11, we support full implementation of the 9/11 
     Commission recommendations. We are writing out of grave 
     concern that your recent introduction of highly provocative, 
     irrelevant amendments will jeopardize the passage of S. 4. It 
     is inconceivable that anyone in good conscience would 
     consider hindering implementation of the 9/11 Commission 
     recommendations, delaying much-needed homeland security 
     improvements. We strongly disagree with these divisive 
     procedural tactics.
       Just as the Iraq war deserves separate debate, so do each 
     of the amendments you offered. S. 4 should be a clean bill 
     and debate should conclude this week with a straight up and 
     down vote. Each day that passes without implementation of the 
     remaining 9/11 Commission recommendations, the safety and 
     security of our nation is at risk.
       Tactics such as those you are contemplating, which endanger 
     the 9/11 bill, send a signal to America that your priority is 
     partisan politics, not protecting America against terrorism. 
     Both parties must work together to pass this critical 
     legislation.
       We, the undersigned, understand all too well the risk of 
     failure to secure our nation.
           Respectfully,
     Carol Ashley,
       Mother of Janice, 25, Member, Voices of September 11th.
     Mary Fetchet,
       Mother of Brad, 24, Founding Director and President, Voices 
     of September 11th.
     Beverly Eckert,
       Widow of Sean Rooney, 50, Member, Families of September 11.
     Carie Lemack,
       Daughter of Judy Larocque, 50, Co-founder and President, 
     Families of September 11.

  We know the job that needs to get done. I commend our Senate majority 
leader for making the wise determination, out of respect for these 
families, not to proceed with amendments relating to Iraq, which we all 
care deeply about. We want to have that debate on the policies and 
support for our troops and future direction as it relates to Iraq.
  But the distinguished majority leader made the determination not to 
proceed on this bill because the families, the communities, and the 
country have waited too long for it to pass. So I think it is very 
unfortunate that we have had to get to this point, but it is very 
important that we pass a bill of tremendous significance.
  I commend Chairman Lieberman and all of the members of the committee 
for their leadership. I commend particularly Senator Lieberman for his 
conviction to bring these issues to the Senate and for hanging in there 
and trying to get this done. The 9/11 Commission did a great service to 
our country by asking tough questions about the 9/11 attacks and then 
making recommendations to keep us safe in the future. The 9/11 
Commission not only gave a detailed explanation of how the attacks 
happened but also gave Congress and the administration detailed 
recommendations in how to fix our vulnerabilities and prevent future 
attacks. For that, we are grateful for their service.
  In December 2005, a group led by former members of the 9/11 
Commission released a report card that overwhelmingly gave the 
administration and Congress failing grades for their poor 
implementation of the 9/11 Commission recommendations. This legislation 
is intended to change those failing grades to passing grades and to 
make us more secure.
  The members of the commission gave the Government a D for improving 
checked bag and cargo screening. This bill requires all cargo and 
passenger aircraft to be screened and dedicates funding for the 
screening of checked baggage.
  The Government also received Ds for creating incentives for 
information sharing and increasing Government-wide information sharing. 
This legislation makes several changes to information and intelligence 
sharing urged by the Commission. The bill establishes incentives for 
Government-wide information sharing and makes permanent the information 
sharing environment program, which will expire next month. The bill 
also creates the Interagency Threat Assessment and Coordination Group, 
which will facilitate the production and dissemination of Federal 
intelligence products to other Federal agencies and to State, local, 
and tribal governments.
  The former Commissioners gave the Government another D for the lack 
of progress on intelligence oversight reform. However, the days of 
Congress giving President Bush a free pass are over, and this 
legislation increases Congress's oversight of the intelligence 
community and gives the intelligence community greater freedom to 
submit information to Congress, without approval by an executive branch 
officer.
  One appalling lack of progress has been in the area of first 
responder communications interoperability. The 9/11 Commissioners gave 
the Government an F for failing to provide an adequate radio spectrum 
for first responders. This lack of progress is appalling to me because 
of the shortcomings the Commission identified in this area.
  The 9/11 Commission report outlined the numerous communications 
problems first responders have had as they have tried to save lives. 
The report detailed the problem the police officers and firefighters in 
New York faced because they were on different radio systems. Over 50 
different public safety organizations from Maryland, Virginia, and the 
District of Columbia reported to the Pentagon to help, but they could 
not talk to each other.
  The 9/11 Commission concluded that:

       The inability to communicate was a critical element at the 
     World Trade Center, Pentagon, and Somerset County, 
     Pennsylvania, crash site where multiple agencies and multiple 
     jurisdictions responded. The occurrence of this problem at 3 
     very different sites is strong evidence that compatible and 
     adequate communications among public safety organizations at 
     the local, State, and Federal levels remains an important 
     problem.

  The 9/11 Commission published its final report in July 2004, but the 
men and women in the first responder community knew of the 
communications difficulties before 9/11.
  Not long after 9/11, I traveled around Michigan and held a number of 
different townhall meetings. Over and over again, I heard the same 
thing from our police officers and firefighters, our emergency 
responders. In the 5 years since the September 11 attacks, one of the 
top requests for support I receive every year from the communities in 
Michigan is for interoperable communications equipment. Nearly every 
time I meet with police and firefighters and emergency medical 
personnel, they bring up this issue.
  The 9/11 Commission is not alone in the assessment of this problem. 
In June of 2004, a U.S. Conference of Mayors survey found that 94 
percent of cities didn't have interoperable capabilities between police 
and firefighters and emergency workers; 60 percent of cities didn't 
have interoperable capability with the State emergency operation center 
in their State.
  It has been over 5 years and we now are seeing this come forward in 
this important bill. I commend everybody involved in this legislation 
for putting in the first grant program for interoperability. This is a 
program that would be dedicated to improving communications between our 
first responders and would authorize $3.3 billion over the next 5 years 
to begin to get this right.
  Our committee that has brought this forward has done an excellent job 
of presenting a package for us of which we can all be proud. It is a 
bipartisan effort. I hope we are going to see us move beyond this 
stalemate able to get the job done. The people of my State, and each of 
our States, are counting on us, and certainly the families who have 
suffered such a grave loss in the attacks on our country are counting 
on us to focus on the job in front of us and get it done.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  (The remarks of Mr. Sanders pertaining to the introduction of S. 818 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. LIEBERMAN. Madam President, I suggest the absence of a quorum.

[[Page 5848]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. 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. 313

  Mr. DORGAN. Madam President, I have an amendment pending, as my 
colleagues know, that I cannot get a vote on. I don't know whether the 
other side will relent and give us a vote on the amendment. I offered 
it a week ago today. The amendment deals with the issue of al-Qaida. 
This bill is about the recommendations by the 9/11 Commission. It has 
been, I am told, 2,002 days since 9/1/2001. I was sitting in the 
Capitol that morning at a Democratic leadership meeting on that side of 
the Capitol with windows that looked out to the east.
  We saw first on the television set the airplanes that attacked the 
World Trade Center. We saw the second plane fly into the second 
building of the World Trade Center. We then saw black smoke rising from 
the Pentagon that morning. Then this building was evacuated.
  That has been a long while ago. Yet it seems like only yesterday. We 
looked up into the real bright blue sky that morning and saw F-16 
fighter jets flying air cover over this Nation's capital.
  We discovered later, because they boasted about it, that it was al-
Qaida--Osama bin Laden, al-Zawahiri--who attacked this country and 
murdered several thousand of America's citizens. They boasted about it. 
They sent us videotapes, audiotapes telling us they were the ones who 
attacked our country.
  Well, it is not 9/1/2001 today. It is a couple of thousand days 
later. Those who boasted they attacked this country are now living in 
Pakistan. That does not come from me, that comes from the top terrorist 
official in our country. In fact, both of the top intelligence chiefs 
in our country in the last 2 months have said the following, and I will 
quote them:

       Al Qaeda is the terrorist organization that poses the 
     greatest threat to U.S. interests, including to the Homeland.

  Think of that. Nearly 6 years after we were attacked by al-Qaida, we 
are told: The greatest threat to our country--and this is from open 
testimony before the Senate Select Committee on Intelligence by Mr. 
Negroponte, the top intelligence head in this country--is al-Qaida.
  Here is what he said--this was repeated a couple of weeks ago by his 
successor:
  Al-Qaida leaders ``continue to plot attacks against our homeland and 
other targets with the objective of inflicting mass casualties. And 
they continue to maintain active connections and relationships that 
radiate outward from their leaders' secure hideout in Pakistan . . . ''
  It has been 2,002 days. Those who killed thousands of Americans, 
those who are now the greatest terrorist threat to our country are 
living in a secure hideout in Pakistan. I would like to understand what 
is a higher priority for this country than to eliminate the leadership 
of al-Qaida, if, in fact, they represent the gravest terrorist danger 
to America. What is a higher priority?
  I offer this amendment with my colleague, Senator Conrad. Incidently, 
we offered and passed an amendment on this subject last fall that got 
dropped in conference.
  This amendment that is fairly simple. It asks the administration, the 
Director of National Intelligence, and the Secretary of Defense to give 
Congress, every 6 months, a classified report telling us three things. 
First, whether the al-Qaida leadership is still in a secure hideout in 
Pakistan and, if not, where are they?
  Second, tell us where they are, based on your knowledge. 
Incidentally, as I said, we have had testimony twice now from the top 
intelligence official in the Government that they are in a secure 
hideout in Pakistan. Second, whether the countries in which they reside 
are cooperating with us in our attempt to eliminate the al-Qaida 
leadership.
  Third, our report will require the head of our intelligence and the 
head of the Department of Defense to tell us what additional resources 
they need, if they need additional resources, to capture Mr. bin Laden, 
Mr. Zawahiri, and al-Qaida's leadership.
  We are having an aggressive debate in this country about Iraq. We 
should. It is an unbelievably difficult situation. In the shadow of 9/
11, in the shadow of the terrorist threat that emerged immediately from 
9/11, we were told by our intelligence community, by the 
administration, in top secret briefings, that Iraq posed imminent 
danger to this country and possessed weapons of mass destruction.
  It turns out the intelligence was not accurate.
  There are many reasons for that, some very troubling. But it turns 
out the intelligence was wrong. Nonetheless, the President committed 
troops to battle, and we are in Iraq and have been in that war in Iraq 
longer than for the Second World War. It is a lengthy period. It has 
lasted longer than the Second World War.
  In fact, the National Intelligence Estimate was just released a 
couple months ago. A portion has been declassified. It says that most 
of what is happening in Iraq is sectarian violence. Yes, there are some 
al-Qaida in Anbar Province, but the bulk of what is happening in Iraq 
is sectarian violence. Translated, it means there is a civil war going 
on in Iraq.
  That does not surprise anybody. Watch the evening news. Read the 
newspapers. We understand and see the evidence of this civil war. The 
question now for our country is, what do we make of a circumstance 
where we now find ourselves having substantial numbers of American 
soldiers in the middle of a civil war in Iraq? How do we respond to 
that? And how do we deal with that?
  President Bush, some months ago, presented false choices to our 
country. He said the issue is just stay the course or cut and run. He 
said: I am for staying the course and they are for cutting and 
running--a completely false choice, and he knew it. Later, he said he 
never said ``stay the course,'' but, in fact, he did many times.
  But it was never the proper choice, stay the course or cut and run. 
The question is, What is a smart choice for our country? What 
represents our best interests, the best interests of our troops, the 
best interests of our own national interest with respect to the country 
of Iraq?
  We are going to leave Iraq. That is not in question. The question is, 
when and how. The American people are not going to have American 
soldiers in the middle of civil strife in Iraq for 6 months, 6 years, 
16 years. We are leaving Iraq. The question is, how and when, and that 
is a worthy debate to have. We have soldiers risking their lives.
  Our country has asked soldiers to risk their lives for deployments--
many of them multiple deployments. Yet the country has not gone to war 
with those soldiers. We send soldiers to Iraq to fight, and we are 
told: Go shopping. Soldiers go to war; we go to the mall. This country 
has not asked to be--excuse me, I should say it differently. No one has 
asked this country to be engaged in this war. We are told: Do you know 
what? In this war we should have tax cuts.
  In fact, we have already spent somewhere close to $500 billion on the 
war--none of it paid for. We send soldiers to war and then are not 
willing to pay the costs. The cost in lives and treasure for this 
country is substantial. The question that we are coming to grips with 
in this Chamber, finally, at long last, is, what do we make of all of 
this? What kind of strategy do we develop? How do we approach this in a 
way that begins to decide what makes the best sense for this country's 
national interest?
  We have had many discussions about that. I think we have arrived at 
some points in that discussion that will make a great deal of sense for 
this country. But even as we discuss Iraq, which is not the central 
front in the war on terrorism, we have people coming to the Congress 
and testifying before our committees and telling us the

[[Page 5849]]

greatest threat to our country--the greatest threat to our country--is 
al-Qaida. Then we go home, as we talk about Iraq in the Senate, and we 
turn on the television set and see that al-Qaida is reconstituting 
training camps in Pakistan, and we see that al-Qaida is ramping up an 
opportunity with the Taliban to begin operations in Afghanistan to 
threaten the Government of Afghanistan.
  So what do we make of all of that? Well, there is a giant yawn, it 
seems to me--just a giant yawn. Nobody cares. Nobody says much about 
al-Qaida. If this is the greatest terrorist threat to our country, why 
is it not No. 1 on this country's agenda--eliminating the leadership of 
al-Qaida?
  The President says:

       I don't know where bin Laden is. I have no idea and really 
     don't care. It's not that important. It's not our priority.

  ``I am truly not that concerned about him,'' the President says.
  His intelligence chief comes to us and says, ``Al-Qaeda is the 
terrorist organization that poses the greatest threat to U.S. 
interests. . . .,'' and we are not concerned about Osama bin Laden, the 
man who boasted about murdering thousands of American citizens?
  Then we read this in the morning papers:

       Senior leaders of Al Qaeda operating from Pakistan have re-
     established significant control over their once-battered 
     worldwide terror network and over the past year have set up a 
     band of training camps in the tribal regions near the Afghan 
     border, according to American intelligence and 
     counterterrorism officials.
       American officials said there was mounting evidence that 
     Osama bin Laden and his deputy, Ayman al-Zawahri, had been 
     steadily building an operations hub in the mountainous 
     Pakistani tribal area of North Waziristan.

  How many warnings do we need? How often do we have to be told? Who 
has to tell us before we understand what are priorities are?
  I have offered, with my colleague, Senator Conrad, a simple amendment 
saying: Let's keep our eye on the ball. Every 6 months we should 
receive a classified report to say what is being done about this, where 
is the leadership of al-Qaida. Are they still in a secure hideout or 
hideaway in Pakistan? If so, are the leaders of this country helping us 
to try to eliminate that leadership? What kind of resources are 
necessary?
  The President said some long while ago the issue with respect to 
terrorism is not just the terrorists but also those who harbor them. If 
the leadership of al-Qaida is in northern Pakistan, are they being 
harbored by the Government of Pakistan? Oh, I know, I am worried about 
President Musharraf. Sure. We all are. But is the Government of 
Pakistan--reportedly a government that has just made some sort of 
commitment with the Taliban, sort of a nonaggression pact with the 
Taliban, a Taliban that is likely protecting and hiding the leadership 
of al-Qaida--is that in our national interest? I don't think so.
  So I offer an amendment, a simple, tiny, little amendment that says: 
Let's keep our eye on the ball. If this is the greatest threat to our 
country, why is it not ranked No. 1? Why is it relegated to an ``I 
don't care; I don't know where he is or they are; it does not matter''?
  How about deciding this is a priority.
  Why are we not able to get a vote on this amendment? Why, after a 
week, are we not able to get a vote? Why would someone vote against 
this amendment? Why would someone oppose an attempt by our country to 
decide this is a priority? Why don't we have a vote and see if there 
are those who are opposed? I don't know. It is very frustrating. We 
bring a bill to the floor of the Senate dealing with 9/11.
  Madam President, 9/11 was very simple and tragic; 9/11 was the day 
that a terrorist organization named al-Qaida hijacked airplanes, used 
those airplanes, full of fuel, as guided missiles, low-tech weaponry, 
to murder thousands of Americans.
  We know who did it. They claimed they did it. They boasted about it. 
Now we are told by the top intelligence chief in our country we know 
where they are. And 2,002 days later, they are still there. By the way, 
we still receive messages from them from time to time. They send an 
audio tape or a video tape to Al Jazeera, and they speak to us. So they 
exist. Our intelligence chief says we know they exist and where they 
are.
  The question is, why is this country not doing what it is required to 
do to deal with the highest and most significant terrorist threat that 
exists to the United States? I do not understand it.
  So the question will be, I guess, in the coming hours, who is 
blocking this amendment? Why are they blocking this amendment? Why on 
Earth would anyone oppose such an amendment? Is the U.S. Congress 
willing to debate these issues, make decisions on these issues? I 
thought it was the great deliberative body in our country. You come to 
the floor of the U.S. Senate and exchange views, and you have a debate, 
a competition of ideas, and you select the best from each rather than 
the worst of both. That is what I thought this was about. I am 
enormously proud to be here. This is a great place. But it is 
enormously frustrating to spend a week on an amendment such as this and 
then discover that there are people who will decide you cannot have a 
vote on an amendment. Why? Because they are worried it might make 
somebody look bad.
  This amendment is not about making anybody look bad. It is about 
turning this country to aim at the greatest terrorist threat that is 
described by our top intelligence chief and deciding to do something 
about it.
  I come to the floor a third time now talking about this in the 
context of the other issues of Iraq and other matters we will discuss, 
including trying to pass the 9/11 bill. I do so recognizing a lot of 
people have a lot of ideas around here--some good, some bad. We vote on 
many of them. This is an idea we ought to vote on, and we ought to do 
it soon.
  Madam President, I yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, let me inquire of the Senator from 
Maine. The ranking member is here, but the manager of the bill is not 
here. She has heard my presentation, I guess, three times now and 
perhaps is long tired of it. But let me ask if there is an opportunity 
for me to propound a unanimous consent request to get a vote on this 
amendment. I know I visited with the Senator from Connecticut and with 
the Senator from Maine yesterday and, I think, the day before about 
this amendment.
  Could I get some expression from the ranking member of the thinking 
of the chairman and the ranking member about getting a vote on this 
amendment?
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Madam President, although it appears nothing has been 
happening today, in fact, there have been extensive negotiations going 
on behind the scenes with a list of amendments from our side and from 
the Senator's side. I know for a fact the Senator's amendment is on 
that list and is part of the discussions that are underway.
  But the system of trying to clear these amendments is a very time-
consuming one. There are Senators on the Democratic side who have 
objected to clearing the list and there are Senators on my side of the 
aisle who have objected to clearing the list.
  But I can tell the Senator I personally did ask for the Senator's 
amendment, as did the manager of the bill, to be added to the list for 
those where we would try to either clear them through unanimous consent 
or we would try to get a rollcall vote. I personally have no objection 
to having a rollcall vote on the Senator's amendment or accepting the 
Senator's amendment, but we have not yet completed the clearance 
process. The reason I have remained on the floor is in the hope that 
clearance will occur. But I will tell the Senator there

[[Page 5850]]

are problems clearing the joint list on both sides of the aisle.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Madam President, my understanding is my amendment is not 
on the list from the minority side. I do not know whether that is true 
or not, but I am told it is not on the list. If it is on the list, I am 
enormously heartened. As always, my colleague from Maine is very 
cordial, and I have always enjoyed working with her.
  My only inquiry is to try to find a way, after a week, to be on the 
list so we can move this amendment. I would say to my colleague--and I 
know she would agree with this--it is often the case, as they say, 
where appearances are deceiving. That is not necessarily the case in 
the Senate. When it looks as if we are not doing much, in most cases we 
are not doing much.
  I remain hopeful that behind the scenes we will get a list in which 
we will be able to clear a number of amendments. At the end of that, I 
will be the first to come to the floor to congratulate the chairman and 
the ranking member, who have exhibited enormous patience. I have 
complained about coming here now for a week, I guess three times. They 
have been sitting on the floor all week. So they show even greater 
patience with respect to the bill itself. My impatience is about my 
amendment.
  My hope will be that as lists are exchanged, I will find the name of 
this amendment on the list and that it will be cleared at some point.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Madam President, first I thank my friend from North 
Dakota for his empathy for what the Senator from Maine and I are going 
through. There is a particular syndrome here that probably 
psychiatrists someday will analyze. But anyway, so far we are surviving 
it. It is frustrating.
  I support the amendment of the Senator from North Dakota. It makes 
eminent sense to me in every way and it is certainly relevant to this 
bill. We have a process where we are trying to put together a group of 
amendments from both sides, and yet there are few people whose 
amendments haven't made it to that list who are refusing to consent. 
This is one of those moments of Senate gridlock, but we are going to 
continue to work at it. I in particular want to reassure the Senator, 
my friend, we are going to try to continue to work to get his amendment 
passed.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Let me thank the Senator from Connecticut and the Senator 
from Maine. No one that I know of ever has accused the Senate of 
speeding. We have never been accused of speeding. It is a slow, 
deliberate, frustrating process to get legislation done. I understand 
that. No one has to have more patience than those who have managed the 
bill on the floor.
  Let me look ahead with great anticipation of coming to the floor and 
thanking both of them for allowing me to get my amendment passed. I 
would much prefer that than coming to the floor in a crabby mood about 
an amendment I couldn't get done.
  I thank them for their patience and thank them for their work, and I 
hope later today we will be able to clear some of these amendments.
  Mr. LOTT. Will the Senator yield? Is it too late to object to the 
Senator's amendment?
  Mr. DORGAN. The Senator has a right to object to anything at any 
time. In fact, there are some professional objectors, as we know, here 
in the Senate.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Madam President, I will point out we do have 
professional objectors on both sides. We have people who are eager to 
object to amendments going forward. But the Senator from Connecticut 
and I are working hard to try to clear a list that could be accepted by 
unanimous consent without rollcall votes, and then I have just 
confirmed with my staff what I said a few moments ago, that there is a 
second list we are trying to clear for rollcall votes. I am not saying 
the Senator's amendment has cleared the UC list, but I am telling the 
Senator his amendment remains on a list we are trying to develop to 
have rollcall votes.
  Now, this is a difficult procedure because of the power of any 
Senator to throw a monkey wrench into the works, and we have a lot of 
monkey wrenches and other tools that are being thrown by Senators on 
both sides of the aisle. But I do want to assure the Senator his 
amendment is on a list the Senator from Connecticut and I are trying to 
clear for votes.
  Thank you, Madam President. I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Madam President, I am in favor of pushing this from time 
to time. Yesterday we had a vote on something that was very instructive 
and I appreciate the majority leader pushing it to a vote.
  We had for 2 years--2 years--a vacancy in the Assistant Secretary for 
Indian Affairs position--for 2 years. This is shameful. People are 
living in Third World conditions in this country and the head of the 
BIA had not been confirmed. For 2 years it was vacant. This was a 
nominee by the President, and I supported the nominee. He sent it up 
last fall. We didn't get it done. He sent it up earlier this year, and 
I immediately moved it out of my committee. This is President Bush's 
appointment, and a good one, I might add. There was a hold on it. We 
finally forced it to the floor of the Senate a couple of days ago, and 
guess what. The vote was 87 to 1. One person in the Senate puts a hold 
on something and the whole thing grinds to a halt.
  Let's force it in a vote, as my colleague Senator Reid did, and we 
will discover who is trying to hold things up. Let's move ahead on 
these amendments and have votes, and we will get the best of what both 
sides have to offer.
  I yield the floor, and I make a point of order that a quorum is not 
present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Unanimous Consent Request

  Mr. REID. Madam President, I ask unanimous consent that Monday, this 
coming Monday, March 12 at 3 p.m., the Senate begin debate on the 
following: S.J. Res. 9, sponsored by Senator Reid of Nevada; S. Res. 
101, sponsored by Senator Reid of Nevada; S. Con. Res. 7 by Senator 
Warner; S. Res. 70 by Senator McCain; S. 641 by Senator Gregg; that 
there be 6 hours for debate on these items en bloc on Monday, equally 
divided between the two leaders or their designees; that no amendments 
or other motions be in order to any of the above; that on Tuesday, 
March 13 there be 6 more hours for debate on the above, divided in the 
same way; that at the conclusion or yielding back of that time, the 
Senate vote on each of the above in the above order; and that the 
preceding all occur without intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Madam President, reserving the right to object, we 
have watched carefully our good friends on the other side of the aisle 
on this issue going back to January in an attempt to reach some kind of 
a consensus on their side of the aisle. I asked my staff to go back and 
total up the number of different proposals that have either been 
proposed here on the floor or proposed by one of our good friends on 
the other side. There are 16 of them.
  There was a Biden resolution and then there was a Levin resolution. 
Then there was a Reid-Pelosi resolution, the Murtha plan, the Biden-
Levin resolution, the Conrad funding cut. There was a waiver plan, a 
timeline plan, a Feingold resolution, an Obama resolution, a Clinton 
resolution, a Dodd resolution, a Kennedy resolution, a Feinstein 
resolution, a Byrd resolution, a Kerry resolution, and today would make 
No. 17.

[[Page 5851]]

  At this particular juncture, having just gotten this proposal, it 
would be necessary, I would say to my good friend, the majority leader, 
for me to share it with members of my conference. We also would want to 
make certain it would still be the view of my side that the Warner 
proposal, the McCain proposal, and the Gregg proposal would be the ones 
we would want to offer. That was 3 weeks ago. I was one of those 
privileged to hear a briefing from General Petraeus over at the 
Pentagon this morning. Conditions are changing. We would have to go 
through a fairly significant consultative process on this side of the 
aisle to be able to conclude exactly what we would want to offer. I am 
prepared to begin that process, but I can't today agree to this 
particular consent agreement. Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  The majority leader is recognized.
  Mr. REID. Madam President, we all recall that when we had the debate 
a couple of weeks ago, the issue was could the Republicans offer 
amendments to the antisurge resolution that was on the floor. The 
purpose of that, of course, was to divert attention away from the 
antisurge resolution. The House and the Senate voted on the antisurge 
resolution, and 56 percent of the Senate and 56 percent of the House 
voted against the surge.
  I was of the understanding that following the discussion--following 
the legislation that was completed on that matter, Republicans wanted 
the opportunity to offer McCain, which was pro-surge; Warner, which was 
middle ground; and then Judd Gregg, which was a feel-good amendment. At 
this stage it appears they have changed their opportunities.
  I say this: This war has been going on for 48 months--48 months. This 
war will soon be beginning the fifth year. As of less than 2 weeks, the 
war will be in its fifth year. When the Democrats were in the minority, 
we tried lots of ways to get the President to refocus on this war, to 
change course. We have been in the majority for 8 weeks and what have 
we done? We have had almost 50 hearings on Iraq. These are hearings 
that should have been done a long time ago. We have 3,200 dead American 
soldiers, 25,000 of them wounded. We are now focusing on Walter Reed, 
and the same type of oversight we have at Walter Reed and our other 
military facilities, taking care of our wounded veterans, and then 
being, some of them, dumped into the Veterans' Administration system 
prior to their being able to be in that system.
  We are being criticized for wanting to go forward on the debate, as 
we thought the minority wanted. General Petraeus, today, from Iraq--it 
was on all the news--what did he say? He said the war in Iraq cannot be 
won militarily. He said that. I didn't say that, he said it. It can 
only be won politically.
  We believe, as does an overwhelming majority of the American people, 
that President Bush wants to change course in Iraq. That is why we want 
to debate that. We don't want to take a lot of time. It will be very 
short. But the mission in Iraq has changed dramatically during these 4 
going on 5 years. I am disappointed that again the minority does not 
want to debate on Iraq.
  I say this: There will be a debate on Iraq. The House and Senate, a 
majority in the House and Senate agree that the course in Iraq must 
change. Today, the House propounded what they want to do. Today, we 
propounded what we want to do. They are basically the same thing. 
Theirs is a little different because they are getting on to a 
supplemental appropriations bill. We cannot do that. But it is the same 
principle--change course in Iraq and redeploy these troops.
  We will have other opportunities to debate Iraq. But at this stage I 
am very disappointed we are not going to be able to set up a time next 
week to go forward. In the meantime, I have spoken to the managers of 
this legislation now before the body. Hopefully, we can move forward.
  I say to everyone here, any bags that were packed for weekend travel 
should be put on hold. Save that for some other time. We could be in 
here over the weekend. We could have as many as three cloture votes 
over the weekend. One will be on the package of bills that has had no 
hearings or anything else. We will do that. I guess it is an 
opportunity--filing that cloture--to see if November 7 was correct; did 
the Democrats win? I guess that is what that first vote will be. I 
think it will be that they did win. Then we will go to cloture, if 
necessary, on the bill, and then on the substitute.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Madam President, let me agree with the majority leader 
that the Iraq debate will be coming. Nobody on my side objects to 
having that debate. It is about supporting the troops.
  Shortly we will have before the Senate supplemental appropriations, 
which is about funding for the troops. That debate, I am certain, will 
occur, as the majority leader indicated, before the Easter recess. We 
will take a look at the proposal he offered a few moments ago to see 
whether it is possible to have another Iraq debate next week before we 
have another one 2 weeks from now. But I cannot agree to this today, 
having just been handed the plan the majority has a few moments ago, 
and not having had an opportunity to consult with my own side about 
what proposals we might think would be appropriate to offer--some 3 
weeks after the last discussion of the possibility of entering into a 
unanimous consent agreement to handle this measure.
  With regard to the status of the war, I am certain nobody in this 
Chamber objects to the fact we have not been attacked here at home 
since 9/11. I doubt if anybody in the Chamber thinks that is a complete 
accident, some quirk of fate. It is a direct result of having been on 
offense in both Afghanistan and Iraq. Nobody is satisfied with the 
progress made in Iraq. That is why we have a new Secretary of Defense 
and why we have a new general, from whom I and others heard this 
morning, indicating there are early signs that this mission may well 
succeed.
  I don't think we ought to say to our troops in the middle of this new 
mission we are not going to support them. That is what this is all 
about. We will get back to the Iraq debate in due time. Members on my 
side of the aisle will be happy to engage. We think this is the most 
important issue in the country, and we look forward to having that 
debate, at the latest in the context of the supplemental appropriation.
  I yield the floor.
  Mr. REID. Before my friend leaves, I renew my consent making it 60 
votes rather than 50 votes. Does that affect anything?
  Mr. McCONNELL. I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. My objection is for the same reason I objected to the 
earlier consent agreement.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from California 
is recognized.
  Mrs. BOXER. Mr. President, I am sorry the Republican leader was 
unable to agree to the proposal put forward by Senator Reid on behalf 
of the Democratic majority of the Senate. It seems to me my friends on 
the other side of the aisle cannot accept yes for an answer. They have 
wanted for a long time to have a vote on the Gregg amendment. Senator 
Reid said, fine, we will vote on the Gregg amendment.
  Mr. REID. Will my friend yield for a second?
  Mrs. BOXER. Yes, I am happy to.
  Mr. REID. I want to make sure the Record is clear. Speaking to the 
majority whip, I want to make sure everybody understands we are going 
to get to this, and whether we do it next week or on the supplemental, 
we are going to do it. We can do it on both. The issue is that the 
House is on the supplemental already; therefore, they have things they 
can do on it we cannot do until we get to it.
  Thank you very much.
  Mrs. BOXER. Yes. I am glad the leader explained that. The fact is, 
with the approval of the other side, we could have taken up the Iraq 
issue on Monday, and we could all have been heard all of Monday, 
Tuesday, and then voted

[[Page 5852]]

for the resolution that represented our ideas, our thoughts, on how to 
proceed in Iraq.
  The fact is, that proposal was objected to by the Republicans. What 
was that proposal? It was everything they wanted last week. They wanted 
a vote on the Gregg amendment. We said fine, you can do it. They wanted 
a vote on the Warner amendment. Senator Reid said you got it. They 
wanted a vote in favor of the surge with the McCain amendment. Senator 
Reid had that in his proposal. We Democrats are asking for a vote on 
our proposal, which I will talk about in a minute, and another proposal 
that would be similar to Senator Gregg's.
  Republicans would have gotten three of their amendments and 
proposals, and we would have gotten, on our side, two. But the 
Republicans cannot say yes. What this means is Senator Reid is right. 
We are not going to debate Iraq next week--at least not Monday. We will 
debate it in the context of the supplemental or, if we can reach 
agreement, in the context of a unanimous consent resolution.
  I am very proud to be a cosponsor of the Reid joint resolution. I 
want to talk about what it does. It says we support the troops. It says 
the circumstances cited in the 2002 use of force authorization have 
changed substantially. We all know that. It is not the same. We went in 
to find weapons of mass destruction. Then they changed the mission to 
capture Saddam Hussein. Then they changed the mission to make it safe 
for an election. Iraq has had three. Then they changed the mission to 
train the Iraqi troops, and they have now 300,000.
  But I have to say that to see our troops in the middle of a civil war 
is not what we should be supporting. The Iraq Study Group said that, 
and this resolution says U.S. troops should not be policing a civil 
war. The American people agree with that. Further, we say U.S. policy 
in Iraq must change to emphasize the need for a political solution.
  We all know there will never, ever be a solution, no matter how many 
troops are sent to Iraq, and whether they stay there a week, a month, a 
year, or 10 years, there will never be a solution until that solution 
is a political one, where the countries in the region come forward, 
where the various parties in Iraq who are warring come to the table and 
hammer out an agreement.
  Now, we know what happened when the President chose to go into Iraq. 
He turned his back. He turned his back on the war I voted for, the war 
against Osama bin Laden. He turned his back on the people of 
Afghanistan. Yes, we are there. But if we had done with half of the 
number of troops we had in Iraq now, and if we had used those in 
Afghanistan, and if we had spent maybe a third of the funding we spent 
in Iraq in Afghanistan, we would have a different scene in Afghanistan. 
We would be in a better place in Afghanistan.
  So, clearly, what happened with the Iraq war was it took our focus 
off the war on terror. We call for the President to properly transition 
the mission of U.S. forces and begin a phased redeployment no later 
than 120 days following enactment. So we will start bringing the troops 
home. We Democrats want to start bringing the troops home and, if they 
don't come home, redeploy them out of Iraq to other places. It is our 
goal to redeploy all combat forces from Iraq by March 31, 2008.
  I have to say, what I have heard from my colleagues on the other side 
of the aisle, whenever we talk about a timeline, is it is terrible to 
set a timeline. I rhetorically ask, why? Don't we need to send a 
message to the Iraqis that we will not hold their hands forever, that 
they have to take care of their own country, that we cannot keep 
sending the treasure of our country in the form of our troops forever? 
We have lost too many. Too many are wounded. I met with paralyzed 
veterans today. I can tell you that from the look on their faces, they 
are desperate for help they are not getting. Why? Because we have so 
many wounded, this administration wasn't ready for the numbers. They 
never say that. They weren't ready. They weren't ready to support our 
troops.
  Now, we need a comprehensive strategy to ensure stability in Iraq. As 
I said, we need a mission our troops can accomplish. In our resolution, 
we call for three limited purposes: force protection, training and 
equipping Iraqi troops, and targeted counterterror operations. So we 
say, for the troops remaining, they will not be in the middle of a 
civil war, but they will protect our forces who are there, they will 
train and equip Iraqis and continue counterterror operations.
  We want to change course. We want to transition the mission and we 
want to bring civility to Iraq. Now, that is Senator Reid's proposal. I 
think the vast majority of Democrats are supporting it.
  More than 3,175 U.S. military men and women have been killed in the 
war in Iraq. More than 23,900 have been wounded. So it is not hard to 
understand why a majority of the American people now believe the war in 
Iraq was not worth fighting. The American people understand our 
military and their families are paying a very severe price for this 
never-ending war. They understand this administration's foreign policy 
decisions have not only made us less safe, but they have empowered 
dangerous leaders such as the one in Iran. It is time for us to begin 
the redeployment of our forces from Iraq, just as the Reid resolution 
recommends, so we can return our focus to the war on terror and fight 
that war from a position of strength. We cannot defeat al-Qaida while 
we are bogged down in the middle of a civil war.
  I do hope we can pass Senator Dorgan's resolution making a very 
strong point that Osama bin Laden attacked our country, and we want him 
captured.
  Our troops have performed brilliantly. They have done everything 
asked of them. They deserve the love and support of a grateful Nation. 
When you love the troops, you give them a mission they can accomplish. 
You don't give them mission impossible. You don't give them a mission 
that puts them in the middle of a civil war, and that is why the 
Democratic proposal is so important.
  As former Secretary of State Madeleine Albright recently told the 
Senate Foreign Relations Committee, on which I serve:

       We have put our forces in the absurd position of trying to 
     prevent violence by all sides against all sides. The Sunnis 
     want us to protect them from the Shiites. The Shiites want us 
     on the sidelines so that they can consolidate their power. 
     Both are divided among themselves. . . .

  This is what she said to our committee. I was there when she said it:

       If I was a soldier on patrol in Baghdad, I wouldn't know 
     whom to shoot at until I was shot at, which is untenable.

  An unclassified summary of the National Intelligence Estimate on Iraq 
states:

       The intelligence community judges that the word ``civil 
     war'' accurately describes key elements of the Iraqi 
     conflict, including the hardening of ethno-sectarian 
     identities, a sea change in the character of the violence, 
     ethno-sectarian mobilization, and population displacements.

  That is our intelligence community. There is no military solution to 
the situation in Iraq. The only sustainable solution is a political and 
diplomatic one, as I said previously.
  Some warn us we must not redeploy our troops from Iraq and take them 
out of the middle of the civil war or else there will be a larger civil 
war. But I say we should heed the advice of Ed Luttwak, a senior fellow 
at the Center for Strategy and International Studies, who said:

       By interfering with the civil war [in Iraq], we are 
     prolonging it. . . .

  Let me repeat that:

       By interfering with the civil war [in Iraq], we are 
     prolonging it . . . we are intruding in matters we cannot 
     manage successfully. And therefore, I believe, that 
     disengagement is the right way to go.

  I wish to talk about something that gets Senators in trouble, and 
that is using the words ``love the troops.''
  There is a lot of rhetoric about what it means to love the troops. I 
say when you love the troops, you give them gear and equipment they 
need, and you don't tell them to settle for less. We remember Secretary 
Rumsfeld who said,

[[Page 5853]]

when asked by the troops about body armor:

       As you know, you have to go to war with the Army you have, 
     not the Army you want.

  We will never forget that stinging rebuke to a soldier who was deeply 
fearful about the lack of armor, the lack of equipment. That arrogant 
statement shows why our service members were left scrounging for scrap 
metal for their vehicles and asking their families back home to send 
bandages and body armor.
  What was interesting about the last election is people said nothing 
will change, nothing will change if the Democrats win this election. 
The first thing that happened was Rumsfeld was gone in 5 minutes--in 5 
minutes. So elections have consequences, and I believe now we have a 
Secretary of Defense who seems to me to be trying to grapple with the 
problems he is facing. He isn't arrogant, and he doesn't tell the 
troops to go get lost if they ask a tough question.
  The President is now increasing the number of troops in Iraq. Today I 
learned that in addition to the surge, he is adding another 2,000 
troops. But we still know not all of them will have the best equipment. 
This is unacceptable, and loving our troops has to be more than a 
slogan. When you love your troops, you send them into battle adequately 
equipped.
  When you love the troops, you don't lower the standards for their 
future colleagues in arms. In order to meet recruiting goals, the Army 
has significantly lowered eligibility standards. The number of waivers 
granted to Army recruits with criminal backgrounds has grown about 65 
percent in the last 3 years. Approximately 11 percent, or 894, of the 
8,120 waivers granted in 2006 were for people with felony convictions. 
When you love the troops, do you want to put them next to someone who 
has been convicted of a felony?
  Our military men and women must trust their fellow soldiers with 
their lives. We must ensure that our military meets the highest 
standards.
  I compliment Congressman Murtha, who is known in this country as a 
war hero, who has been there, who has done that, who has seen things 
none of us would ever want to see. He says we can't keep sending our 
troops back into the field, into combat, without adequate preparation, 
training, and the highest standards--and rest.
  I say that when you love the troops, you don't send them to moldy 
hospital rooms to recuperate. You don't do it. Recent press reports 
have revealed that soldiers are languishing in substandard facilities 
at Walter Reed Army Medical Center. I thank my colleagues in the 
Congress for investigating this matter because some of us believe it is 
the tip of the iceberg.
  I have asked my State staff to go on a tour of California hospitals 
and report back to me as to conditions in those hospitals.
  An investigation by the Washington Post found vermin, leaking pipes, 
and mold at Walter Reed Building 18, an old hotel used by outpatients 
receiving care at the main Walter Reed Hospital facility.
  The Post also highlighted larger and even more disturbing problems 
related to personnel management and recordkeeping. Soldiers complained 
of lost paperwork, of difficulty locating their appointments and of 
months--even as long as 2 years--spent trying to navigate a 
bureaucratic nightmare. According to the Post, some soldiers have 
simply given up trying to receive care and have gone home.
  I wish to point out to the Senate--because we all know there are deep 
differences about this war--I want people to know that although Senator 
Lieberman and I do not see eye to eye on this war--and he will say that 
and I will say that; we see it from a different point of view--we have 
teamed up to try and make sure our soldiers on the battlefield get the 
mental health help they must have.
  We are disturbed about some of the rules, about what we have found in 
our investigation with our staffs. And that is, many times doctors are 
overruled by the officers and a doctor will say: Do not send this 
individual out because they have post-traumatic stress and sometimes, 
unfortunately, we have learned the doctor doesn't hold sway, and the 
soldier is sent out with a pocketful of antidepressants, just as you 
would give someone aspirin for a headache.
  This isn't good enough for our soldiers. Senator Lieberman and I are 
now working with Senator Murray, Senator Inouye, Senator Levin, and 
Senator Akaka to try and make sure our soldiers get the care they need, 
whether it is physical injury or mental injury.
  I went to a hospital in San Francisco. I saw x-rays of brains that 
were damaged by explosions, and then I saw x-rays of brains of people 
who had post-traumatic stress. The doctors told me that in both cases, 
you see the damage. You can't tell one from the other.
  So when you love the troops, you don't send them back into combat 
with post-traumatic stress and a bottle of antidepressants. You don't 
do it. Tragically, we know this is happening.
  As part of the 2007 Defense authorization bill, my legislation passed 
requiring the DOD to issue guidelines as to the deployability of 
servicemembers with post-traumatic stress, but the DOD has not issued 
the guidelines and servicemembers with PTSD, post-traumatic stress 
disorder, continue to be deployed.
  When you love the troops, you don't reduce the number of permanent 
disability decisions to save money, when so many of these troops are, 
in fact, permanently disabled. Recent press reports in my hometown 
paper, the Desert Sun in California, have suggested that the Army is 
trying to save money by giving our troops less of a disability rating 
than they deserve, despite an enormous spike in the number of 
battlefield injuries resulting from service in Iraq and Afghanistan.
  Now, after nearly 4 years in Iraq, which was supposed to be a walk in 
the park, a mission easily accomplished, an enemy in the last throes, 
it is time to tell this President the time is up for his ever-changing 
mission.
  Our troops, whom we all love, deserve more than broken promises, 
broken bodies, and broken dreams. It is time that Congress, following 
the will of the voters, start redeploying the troops out of Iraq now, 
as Britain has done, as Japan has done, as Italy has done, as Hungary 
has done, as Spain has done, as Portugal has done, as Norway has done.
  It is time to say to the President that the authorization you 
received from this Congress has to come to an end, just like your 
coalition of the willing is coming to an end. The American people want 
this over.
  The Democratic resolution that Senator Reid tried to get before our 
body is reasonable. It is not a cut-and-run resolution. It is a 
resolution that says: Start redeploying the troops out of there, change 
the mission, as the Iraq Study Group suggested, take our troops out of 
the middle of a civil war, give them missions they can accomplish--
force protection, training and equipping Iraqi troops, targeted 
counterterrorism operations so we can continue that war against al-
Qaida for which I voted.
  I didn't vote for this one. This one is a diversion from the war on 
terror, in my humble opinion.
  My people in California want their National Guard home protecting 
them in case of emergency. I met with my National Guard. They are short 
of equipment. In a State such as mine where we have earthquakes, fire, 
flood, drought--every kind of problem one can name--we want our 
National Guard home and ready. There are terror targets in my State. We 
do have those symbols of America that the terrorists would love to 
target.
  We want our troops back home. We are willing to say if you get them 
out of a civil war, if you want to keep them in the area to do a 
limited number of missions, that make sense, fine. It is time for 
diplomacy. It is time for a political solution. It is time for this 
Senate to take up Harry Reid's offer and allow us to vote on our 
resolution that starts redeploying the troops out of Iraq and bring up 
Senator Warner's resolution and bring up Senator Gregg's resolution and 
bring up Senator McCain's resolution--bring them

[[Page 5854]]

all to the floor of the Senate. But don't block us from having this 
debate which we were ready to start on Monday.
  I hope my Republican friends will reconsider. This is not the first 
time they have blocked us from debate on Iraq. We respect their points 
of view. We honor their points of view. We encourage them to support 
the resolutions that they support. But don't block a debate.
  In closing, I compliment my friends, the managers of this 9/11 bill. 
This is such an important bill. It is so important. I restrained myself 
from offering amendments on this bill. I had something I wanted to do 
regarding blast-resistant cargo containers, but I didn't want to hold 
up getting this bill done. We can work on some of the fine points 
later.
  I hope colleagues on both sides will vote to bring debate to a close 
on this 9/11 bill. Both our colleagues have worked so hard on it, and 
the 9/11 Commission has warned us we have work to do. We are so happy 
to see this bill on the floor. So let's get it done as soon as 
possible, and then let's go to a debate on a cloud that is hanging over 
all our heads, regardless of how one feels about this war. Let's have 
that Senate debate, that respectful debate on how to achieve success 
and bring our troops home from Iraq.
  I thank the Chair. I yield the floor.
  Mr. LIEBERMAN. Mr. President, I wish to notify our colleagues who are 
watching, or their staffs, that there is good news to report. There has 
been a break in the gridlock, and I soon will be propounding a 
unanimous consent agreement that will provide for a limited period of 
time for debate and then votes on four amendments that have been in 
dispute, perhaps one or two judicial nominations after that, and that 
will open the way for Senator Collins and me to move to adopt several 
other amendments we have been working on and on which there is 
bipartisan agreement, and those we can do by consent. So, in a few 
moments, I hope we can come forward to offer this light which suggests 
a breakthrough as we head to the cloture votes tomorrow.
  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.
  Mr. NELSON of Florida. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. I ask unanimous consent to speak as in morning 
business for no more than 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Walter Reed

  Mr. NELSON of Florida. Mr. President, we have had hearings this week 
in several of our committees on the situation at Walter Reed Army 
Hospital and the great public service that the Washington Post has done 
in their investigative piece bringing to light the conditions that our 
soldiers surely should not be in. Naturally, there is no excuse for 
there to be mold and leaking ceilings and pipes that do not work, and 
so forth. It seems to foretell a greater problem since the Post brought 
this to light. More people have asked questions about the delivery of 
health care to our wounded soldiers, sailors, marines, anyone 
representing the United States, particularly in service to the country. 
There are just too many things that keep coming up that the system is 
not working as it should.
  A major injury that we are finding coming out of Iraq and Afghanistan 
is traumatic brain injury, called TBI. If it is not diagnosed and 
treated early, then many times the effects are irreversible. Why is it 
that the inspector general of the Department of Veterans Affairs, in an 
IG report last July, July of 2006, points out that in traumatic brain 
injury, if you are in the military compared to if you have that injury 
in the private sector, it takes three times as long?
  These are the very young men and women we are supposed to be 
protecting and looking out for their health because we are so 
appreciative of their service to this country. Indeed, that inspector 
general's report points out that if you are in the private sector and 
you have a brain injury, you are at least going to get that treatment 
within 2 weeks. The IG report says that if you are in the military, you 
are not going to get that treatment on average until 6 weeks later. 
That is the difference--a lifetime of debilitation by not having the 
early treatment for that brain injury.
  So the word is out.
  I am headed to one of four trauma centers in the country. It happens 
to be in my State, a veterans hospital that is one of the specialty 
training centers, specialty centers for brain injuries. It is in the 
Tampa VA hospital, the Haley Hospital. Of course, now that this has 
been in the news, I have been getting these questions about: Are they 
getting the kind of care they should? I hear some people who say yes, I 
hear others who say it is excellent care, and I hear others who say it 
is not. Well, we are going to find out. That is the responsibility of 
this Senator from the State of Florida. That is the responsibility of 
this Senator, a member of the Senate Armed Services Committee.
  Let me tell my colleagues what else we are hearing. We are hearing 
that in this bureaucratic tape, this is what is happening: The soldier 
comes back from Iraq, is diagnosed with the traumatic brain injury, 
somebody makes a decision that they ought to go to one of those four VA 
hospitals that have a specialty for brain injury, but they do not get 
the paperwork processed to get them out of the military so that they 
are then eligible for the veterans. Believe it or not, I heard of cases 
where they send the soldier down there, they get to the veterans 
hospital for brain treatment, and they say: We cannot treat you; you 
have not been released from the military.
  How bad is that bureaucratic mumbo-jumbo? Who is the victim? The very 
people for whom we have set up a system of military hospitals and 
veterans hospitals to try to give the best care to. This nonsense has 
got to stop.
  It is my hope that as a result of the Post bringing to light 
deplorable conditions in Building 18 at Walter Reed Army Hospital, it 
is scratching back the surface to see what is underneath, and whether 
it be the conditions in a hospital, veterans or military, whether it be 
bureaucratic handling of that hospital, military or veterans, or 
whether it is the administrative bureaucratic handling of the patient 
between the two systems, that we get it straightened out. We owe no 
less to the people who are sacrificing for this country.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceed to call the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Nelson of Florida). Without objection, it 
is so ordered.
  Mr. LOTT. Well, Mr. President, here is one of my speeches I guess I 
am going to have to make every fortnight, but it is 6:20--it is on 
Thursday--and here we stand or mostly sit or hide and will not act on 
important amendments on this legislation because our colleagues will 
not come to agreement on some provision or another in the managers' 
package or some amendment.
  I say to my colleagues, this is no way to legislate. If you have a 
problem, get over here and state it. If you have an objection, have the 
courage to stand up--be the man or the woman--and express your 
objection.
  This is outrageous, and I am not blaming our leadership. It is not 
them. It is us. This whole bill has been a curiosity to me because I 
thought we were making good progress, and then we were not, and then I 
thought we were going to again, and now we are not.
  So I tell you--it is not my authority to do so--but if I had the 
ability to wave a wand, I would say we are going to vote. If you don't 
like it, vote against it, but you are not stopping these amendments.
  So I urge everybody involved--whether it is my colleagues on this 
side of the aisle or the other side--come over here and let's get going 
because we

[[Page 5855]]

look pathetic when we do this sort of thing. It is just outrageous. We 
have votes we could take. We have two judges. Let's vote. Let's have a 
vote on the judges, and it will give us a chance to explain to our 
colleagues what the problem is with these other amendments.
  So I plead with somebody: Pull the trigger. Let's have a vote. Then 
let's get some results around here. I am telling you, we all look bad. 
Did we not hear the American people? They want us to produce results. I 
have looked at these amendments. There is nothing wrong with any of 
these amendments. It is going to be injurious to the institution, to 
the Republicans and the Democrats. And, yes, I admit, I am outraged 
because I want to go home and be with my wife, have supper, and live a 
normal life. I would suggest some of our other colleagues do that. 
Maybe we could get a little more done around here and not look so bad 
in the process.
  I want to say to the managers of the bill, I love them both, and I 
think they have been doing the very best they can. They are ready to 
go. So it is a disservice to Senator Lieberman and Senator Collins, who 
have been managing this bill, which, yes, has problems, but we are 
never going to get them resolved, never going to get to a reasonable 
conclusion without actually having some votes.
  When was the last time we had a vote around here? I can't even 
remember. Yesterday?
  So Senator Lieberman, I know you would like to get the show on the 
road. I support anything you want to do. If you want to just move the 
previous question, I am for that, or any other motion you want to make 
that would get the process started. A motion to table--that would be 
good. We could get going.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I thank the Chair.
  Mr. President, I say to my friend from Mississippi, first, I want to 
congratulate you on your normalcy; that you actually want to get home 
and have dinner with your wife. That is a very healthy thing to do.
  Mr. LOTT. I know it is abnormal for Senators.
  Mr. LIEBERMAN. No, I think it is normal. But I would say--I will 
yield to Senator Collins in a moment--that we, as managers of this 
bill, really appreciate what you have said because we started on the 
bill last Wednesday. We had some good, healthy debate on a series of 
amendments that went to the heart of what the bill is about. Frankly, 
those amendments are done.
  Now this bill is ready to be adopted and sent to conference, and what 
has happened, as always happens, is people see a vehicle moving, and 
jump on it with related or unrelated amendments. Incidentally, of all 
the amendments filed, apparently only seven or eight are going to 
survive as germane, presuming cloture is invoked tomorrow.
  So people get to be--well, they see a horse moving and they want to 
jump on. Also, then others get to be quite demanding and, might I say 
respectfully, occasionally unreasonable in blocking votes on the 
amendments. It is one thing to be against an amendment, but let's come 
out, vote on it. You can have your say. The record will be established. 
But to block the amendment from coming up that then blocks this 
important bill--which most of us will support--from going forward, that 
does not make sense.
  So I appreciate the Senator's exacerbation.
  Mr. President, I yield to my friend, the ranking member of the 
committee.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I, too, want to commend the Senator from 
Mississippi for putting forth a commonsense solution to the impasse in 
which we find ourselves. The Senator from Connecticut and I have been 
on the floor all day long. We have worked with our colleagues. We have 
come up with a group of amendments which we believe could be cleared by 
unanimous consent because they are not controversial. Yet can we clear 
that package? No. We cannot because even though there is no objection 
to the specific amendments in that package, they are being held up by 
Senators who want other amendments or are trying to ensure or block 
votes on other proposals.
  We also came up with a set of amendments tonight--two Democratic 
amendments, two Republican amendments--that warrant rollcall votes. Two 
on each side, what could be fairer? Yet we cannot get rollcall votes.
  If Members are opposed to amendments, come to the floor, debate them, 
and vote no, but do not prevent us from moving forward on a very 
important bill.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. LOTT. Mr. President, I thank the Senator from Maine and the 
Senator from Connecticut for their work. I admire them both so much.
  Can I inquire, Mr. President, what is the pending business?
  The PRESIDING OFFICER. The pending question is Sununu amendment No. 
291 to the substitute to S. 4.
  Mr. LOTT. Parliamentary inquiry, Mr. President: Would a motion to 
move the previous question be a proper way to proceed?
  The PRESIDING OFFICER. There is no such motion in the Senate.
  Mr. LOTT. Would a motion to table be in order, Mr. President?
  The PRESIDING OFFICER. A motion to table is in order.
  Mr. LOTT. It is not my prerogative, but I am threatening it.
  With that, Mr. President, I yield the floor and suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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