[Congressional Record (Bound Edition), Volume 154 (2008), Part 10]
[Senate]
[Pages 13979-14010]
[From the U.S. Government Publishing Office, www.gpo.gov]




             FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to H.R. 6304, 
which the clerk will report.
  The legislative clerk read as follows:

       Motion to proceed to Calendar No. 827, H.R. 6304, an Act to 
     amend the Foreign Intelligence Surveillance Act of 1978 to 
     establish a procedure for authorizing certain acquisitions of 
     foreign intelligence, and for other purposes.

  The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I thank our leaders for getting us on this 
very important bill.
  As we have discussed before, the failure to modernize and authorize 
the Foreign Intelligence Surveillance Act last summer has caused 
serious gaps in our intelligence capability.
  When the Protect America Act that was introduced by our Republican 
leader, Senator McConnell, and me last year finally passed, we put the 
intelligence community back in the business of intercepting critical 
intelligence communications from foreign terrorists talking to each 
other about possible activities in the United States, or against our 
troops and our allies elsewhere, and obviously any of those who were 
threatening the United States.
  I can tell you, without going into detail, that the foreign 
intelligence collection from these has been about the most valuable 
piece of information we have with respect to terrorist intent. So I 
appreciate the fact that this body is ready to move forward.
  I hope we will have a way forward to get it done by the time we leave 
for the Fourth of July recess. It is critical we get this done 
promptly. If we go into late July or even into August without getting 
it done, serious consequences will start to impact our ability to 
collect intelligence.
  Again, I thank our minority leader, Senator McConnell, for his kind 
words, especially about my very capable staff who have worked very 
hard, not only to help put this bill together, but we have briefed 
Members of both sides of the aisle, their staffs. We have spent a lot 
of time doing that.
  Of course, as I outlined yesterday, we spent a very long 2\1/2\ 
months working with the House. As I indicated, the bill this body 
passed, the FISA amendments, we passed 68 to 29 in February with the 
good, strong support of the chairman of the committee, Senator 
Rockefeller. We worked on a bipartisan basis. We worked with and 
listened to the intelligence community to do several things that were 
critical.
  No. 1, we wished to make sure there was protection for the privacy 
and constitutional rights of Americans and U.S. persons here and 
abroad. For the first time, we included that. We also needed to protect 
the telephone companies or carriers who have participated in the 
terrorist surveillance program under the lawful orders issued by the 
President, under his constitutional authority in article II, an act in 
good faith by those carriers.
  We provided that immunity, or retroactive liability protection, more 
accurately, that was critical to ensuring that they can continue to 
participate. They are loyal American citizens, and they wanted to be 
able to help. But when frivolous lawsuits, seeking billions of dollars 
in damages, are filed against them, whether they participated or not, 
and there is no assurance that any telephone company so sued has 
participated. They cannot use a defense that they did not participate. 
They have to have protection.
  We built in that protection in a way that was acceptable to both 
sides in this body in the FISA amendments and also satisfied the 
concerns of the majority party in the House, which, as Leader McConnell 
said, had the votes, if they had wished to pass our FISA amendments.
  We believe this new bill we are considering, H.R. 6304, which passed 
the House with a strong majority vote of 293 to 129 last Friday, should 
be passed here.
  As with the Senate's original FISA bill passed several months ago, 
the compromise that is before us required a little give-and-take from 
all sides. But, in essence, what we have before us today is basically 
the Senate bill all over again.
  I am aware that some on the far left wish to paint this as some 
radical new legislation. But if you read the language, it is not 
different. The press picked up on this straight away last week and kept 
asking me to help them find the purported ``big changes'' in this bill 
that no one can find. I have not been much help to them because the 
answer is, there is not much that is significantly different, save some 
cosmetic fixes that were requested by the majority party in the House.
  For example, I am pleased that the strong retroactive liability 
protections that the Senate bill offered are still in place, and our 
vital intelligence sources and methods will be safeguarded. I am 
pleased this compromise preserves the ability of the intelligence 
community to collect foreign intelligence quickly and in exigent 
circumstances without any prior court review.
  I am also pleased the 2012 sunset, 3 years longer than the sunset 
previously offered in any House bill, will give our intelligence 
collectors and those parties we need to have cooperate with us the 
certainty they need in the tools they use to keep us safe.
  I am confident the few changes we made to the Senate bill in H.R. 
6304 will in no way diminish the intelligence community's ability to 
target terrorists overseas, and the Director of National Intelligence 
and the Attorney General agreed. That had to be the test. They worked 
with us. They made compromises. When we had a proposal for additional 
protections for Americans, they agreed. But we had to work out the 
language to make sure we provided protections without destroying the 
basic integrity of the bill.
  I believe we did that. We did that with the Senate bill, and we did 
it again with the minor changes the House wanted to make.
  Let me address, for the time being, the banner issue of the 
legislation, which is Congress's affirmation that the telecom providers 
that may have assisted the Government after 9/11 should have the 
frivolous lawsuits against them dismissed.
  I am confident in the standard of review in title II of the bill on 
which we agreed with Congressman Hoyer and Congressman Blunt, his 
counterpart in the House, namely, a ``substantial evidence'' standard, 
which will ensure that those companies that assisted the Government 
following the September 11 terrorist attacks obtain the civil 
retroactive liability protection they deserve.
  Unlike the amendment we defeated in the Senate that asked for the 
court to determine whether the providers acted in ``good faith,'' we 
affirm in this legislation, as we did in the previous Senate bill, that 
the providers did act in good faith, and that the lawsuits shall be 
dismissed unless the judge finds that the Attorney General's actions 
were not ``supported by substantial evidence.''
  The focus is on the Attorney General's certification to the court, 
not

[[Page 13980]]

the actions of the providers. We know the providers operated in good 
faith, and they deserve liability protection. We are allowing, however, 
the court to review the Attorney General's role in that.
  Another way to describe it is that we have essentially provided the 
district court with an appellate standard of review, just as we did in 
the Senate bill. Congress affirms in this legislation that the lawsuits 
will be dismissed, but then we give the district court an opportunity 
to change that outcome if the judge determines the Attorney General's 
certification was not supported by ``substantial evidence'' based on 
the information the Attorney General will provide to the court. So the 
intent of Congress is clear: the companies deserve liability 
protections. That principle has been approved overwhelmingly on a 
bipartisan basis in both the Senate when we adopted our bill in 
February and the House when it adopted its bill last Friday.
  Also, there are clear limits on what documents the court may review 
and the extent to which parties may participate in legal arguments. 
Because of these important limitations, I am confident that neither the 
standard of review nor the court processes will jeopardize liability 
protections or our intelligence sources and methods. Thus, Congress is 
again positively reaffirming that these companies should have the 
lawsuits dismissed.
  Mr. President, for the record, I thank publicly these providers--and 
they know who they are--who came to our Nation's defense in a time of 
national peril. Thank you for ensuring that our Government could keep 
Americans safe. Thank you for withstanding years of frivolous lawsuits 
that you did not deserve. But, unfortunately, that has been your 
penalty for your patriotism. You are a big factor in why America has 
not been hit with another terrorist attack since September 11, 2001. 
You helped keep us safe for nearly 7 years since that terrible day, and 
you did so without legal relief. I thank you, and those who stand with 
me today thank you. The least we can do in Congress is to provide you 
with the legal protections you so rightly deserve.
  Now, some Senators would like to strip the providers' civil liability 
protections in the bill. Some believe the thanks these providers 
deserve should come in the form of billions of dollars of penalties 
through frivolous lawsuits that threaten their business reputation. 
Having reviewed the underlying authorities, the certifications, as one 
who has practiced a little bit of law in this area, I can tell you 
there is no way they could or should be held liable for any monetary 
damages, much less the billions of dollars irrationally requested in 
the lawsuits.
  What these lawsuits do is seek to undermine our program by laying out 
who participates in it. By getting at the details of the program, we 
would provide those who seek to do us harm with information on how we 
collect the information on them that is needed to prevent their 
attacks. Just as important, bringing them, dragging them through the 
mud of trials in court would simply assure that their business 
reputation would be severely damaged in the United States and 
potentially obliterated abroad. In addition, there is a real likelihood 
that terrorist activities or other extremists would turn on and attack 
their property or even their personnel.
  I believe seeking to strip liability protection is void of any mature 
understanding of the threats this Nation faces. That sort of 
shortsighted pandering to far-left political interest groups endangers 
our citizens and pays back patriotic service with politically motivated 
penalty.
  I do not join with those who want to treat those who responded to our 
call for help with disregard and disrespect. I thank the providers for 
responding to the call, and I will join many others in passing this 
legislation who will be thanking them with their vote on this important 
national security legislation.
  For those who want to challenge the program, note that we did not ban 
civil suits against the Government or against any officer of the 
Government. And criminal suits--if there are any criminal penalties--
are not banned. They could be instituted by the appropriate 
jurisdictions with law enforcement responsibility.
  So, Mr. President, there are lots of other points to consider, and 
when we get on the bill I will be happy to join in discussing any 
further questions that are raised.
  Again, I thank my staff, I thank Senator Rockefeller and his team for 
having passed the FISA bill. I am very grateful to Mr. Hoyer, the 
majority leader in the House, whose efforts were essential to passing 
this bill and bringing it to us. We have thanks also for the ranking 
member of the House Intelligence Committee, Peter Hoekstra, who worked 
with us day in and day out on all of the changes that were requested. 
Lamar Smith, the ranking member of the House Judiciary Committee, he 
and his staff and his team worked with us throughout.
  We have before us not a perfect piece of legislation--I do not think 
on this Earth we will ever see a perfect piece of legislation. But for 
the challenges we had to go through and the compromises we had to make, 
this is the best possible product we can produce that has already 
gained an overwhelming bipartisan majority in the House. I hope it will 
also get the same kind of response in the Senate.
  Our intelligence community deserves it. The citizens of the United 
States deserve not only their rights protected, but they need and 
deserve the protection this act will give them from further attacks 
like 9/11.
  Mr. President, I do not see anyone seeking the floor, so I suggest 
the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRAHAM. Mr. President, if I could, I would like to be recognized 
for 15 minutes to speak on the FISA legislation.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. GRAHAM. Mr. President, the Senate is taking up a matter that I 
think is very important to the American people and our national 
security, and that is to pass the compromise reached by the House and 
the administration regarding the FISA program.
  I want to briefly lay out my view of how the law works in this area. 
The initial approach by the Bush administration that there was no 
requirement to comply with the FISA statute, the Foreign Intelligence 
Surveillance Act, because of inherent authority of the Executive in a 
time of war I didn't agree with, quite frankly. The idea that an 
American would be travailed by an agency of our Government if that 
American citizen was suspected of being involved with the enemy--a 
fifth column movement, for lack of a better term--and there would be no 
court review was unacceptable to me.
  If an American citizen is suspected of collaborating with the enemy, 
I think there is a requirement for the Government to have its homework 
checked, have a judge authorize further surveillance in a kind of 
balanced approach. Once there is a reasonable belief that an American 
citizen may be involved with enemy forces, that becomes a crime of 
treason, potentially.
  I do think it is appropriate for Congress to pass a statute that 
would say when an American citizen is suspected of being involved with 
an enemy force, taking up arms against the United States--uniformed or 
not--the FISA statute applies. The inherent authority of the Executive 
to conduct surveillance in a time of war is limited, or can be limited 
by the other branches of Government.
  Having said that, this idea that at a time of war you need a warrant 
to surveil the enemy, when no American citizen is involved, is crazy. 
We have never in any other war gone to a judge and said: We are 
listening to enemy forces--for instance, two suspected

[[Page 13981]]

members of al-Qaida, non-American citizens--and we need a warrant. You 
don't need that. That is inherent in the ability to conduct military 
operations, to monitor the enemy.
  Those who want to basically criminalize the war, I disagree in equal 
measure. We are at war, and there is an effort by our intelligence 
agencies out there to monitor phone calls and other electronic 
communications of a very vicious enemy that is intent on attacking us 
again. That program has been shut down because of this dispute.
  We have finally found a compromise which would allow the program to 
move forward, protecting American citizens who may be suspected of 
being involved with enemy forces, and also allowing the Commander in 
Chief and our military intelligence community to aggressively monitor 
networks out there that wish us harm. In this global world in which we 
live, the technology that is available to the enemy is different than 
it was in 1978. So we have modernized FISA and made it possible for our 
intelligence community to be able to keep up with the different 
technologies that enemy forces may be using to communicate.
  I can assure the American people that this program has been of 
enormous benefit, the terrorist surveillance program. It has allowed us 
to stay ahead of enemy activity, and with terrorism you do not deter 
them by threatening them with death. That is something they welcome. 
Other enemies in the past have been deterred from attacking America 
because they know an overwhelming response will come their way. In the 
Cold War, it was called mutually assured destruction. With terrorist 
organizations that would gladly forfeit the lives of mentally 
handicapped young people, and others, you have no idea what they are up 
to, and you just try to isolate them the best you can. Finding out what 
they are up to and following their movements is essential because you 
have to preempt them before they are able to attack.
  We have a compromise that has come from the House to the Senate that 
I can live with. The sticking point was the role our telecommunications 
companies played in the terrorist surveillance program. It is my 
understanding that the Attorney General--the chief law enforcement 
officer of the land--and the Department of Justice gave a letter to the 
telecom companies involved, saying: Your cooperation with our 
intelligence communities and military surveillance program is legal and 
appropriate, and we need your help because a phone call made in 
Afghanistan, because of the global economy in which we live, may be 
routed through an American system here, and the two people talking are 
not citizens, but there may be a telecommunications involvement in 
terms of routing of the phone call, and we need assistance from the 
telecom companies to be able to track the technology that exists today 
that is being used by the enemies of the country.
  The idea that somebody would want to sue them because they broke the 
law, after they have been told by the Department of Justice and the 
Attorney General their help was needed and it was lawful for them to 
help, misses the point.
  What are we trying to do as a country? Are we trying to avoid the 
fact that we are at war by talking about lawsuits that undermine the 
ability of our country to protect itself? I am very much for civil 
liberties. I don't want any American, as I said before, to be followed 
by an agency of our Government, suspecting they are cooperating with 
al-Qaida or another terrorist group, and not have the Government's work 
looked at by a judge. I would not want that to happen to anybody. If 
you think anybody who is an American citizen is helping the enemy, you 
ought to be able to go to a judge and get a warrant. But this idea of 
having the American telecommunications companies, which were 
cooperating with the Government in a fashion to help our forces and our 
intelligence community stay ahead of an enemy, be subject to a civil 
lawsuit is riduculous. That is not the appropriate remedy.
  If we allow these companies who have been asked by their Government, 
through the chief law enforcement officer of the land, to participate 
in the program--if we ask them to participate and then sue them, who is 
going to help us in the future? This is pretty basic stuff for me. If 
we do not protect these companies from lawsuits that are existing out 
there, when they were willing to help the Government--if we don't give 
them protection, nobody in the future is going to come and help us. We 
need all the help we can get. We need help from banks, 
telecommunications companies, and we need help from all kinds of 
different corners of the private sector to beat this enemy. We are all 
in it together.
  The terrorists use banks to funnel money. Well, the banks can help us 
if we suspect that an account exists that is being used by a terrorist 
organization. We should be able to track that down. We are all in this 
together.
  The private sector plays a role in the war on terrorism. Every 
citizen can play a role in the war on terrorism by being vigilant. We 
finally reached a deal that would allow the program to be reauthorized, 
protecting civil liberty and telling the telecommunications companies 
that helped us: You are not going to get sued.
  To my dear friend, Senator Specter--his solution is to let the 
lawsuits come forward but shield the companies by having the Government 
take legal responsibility and be subject to being sued. That is not the 
right answer either. Our Government wasn't doing a bad thing. Our 
Government was doing a good thing. Our Government was trying to find 
out what enemies of this Nation were up to before it was too late.
  We have had a lot of warnings in the past that were ignored. How many 
times do we have to deal with this terrorist problem through the law 
enforcement model to only wake up and find out that we were wrong? The 
law enforcement model will not work. The law enforcement model punishes 
people after they commit the crime. We are at war. Our goal is to keep 
them from attacking us. The military model is the one we should pursue. 
In every other war, the private sector itself has helped the Government 
defeat the enemies of this country.
  When Senator Obama says he would like this provision taken out of the 
bill--protection for telecommunications companies from lawsuits--that 
he would like that taken out of the bill, what he is telling the 
Senate, the House, and the country is that this deal will fall apart. 
If we took this provision out, there would be no deal. People like me 
would not allow this process to go forward--and we had to give some. 
There was a give on the part of the administration and people like 
myself. There are some programs that I think are inherent to fighting 
the war that now have to be reviewed by the court. But that was a 
compromise.
  So for Senator Obama to come and say that he would take this 
provision out is saying that he does not believe in a bipartisan deal 
on the subject matter in question. The left has gone nuts over there--
the hard left. They think this is totally unacceptable. So, apparently, 
he is going to tell them: I don't support this. I am sure that is what 
they want to hear. But I say to my colleague, deals require giving and 
taking. It requires sometimes telling your friends what they don't want 
to hear. This is an example, in my opinion, of trying to tell your 
friends what they want to hear and positioning yourself in a way to 
look good with the public in general.
  That is not leadership. Leadership requires the common good to trump 
special interests. It requires political leaders to turn to their 
allies at times and say: No, your suggestion cannot win the day because 
if I give you what you are insisting on having, there will be no 
movement forward.
  Senator Obama is willing to give the left what they want. The 
consequence of that would be that the deal would fall apart because 
many people like me believe if you allow these companies to be sued for 
helping their country, then nobody will come forward in the future to 
help their country from the private sector.
  In this war, we are going to need support from the private sector, 
not only

[[Page 13982]]

in telecommunications but in banking and other areas. So I hope the 
amendment to strike the retroactive immunity for telecommunications 
companies will be defeated because, if it is passed, the deal fails, 
the movement forward stops, and America is harmed. I am here to support 
the deal.
  Understand that I didn't get all I wanted, but America will be safer 
if we can get this program reauthorized. Our civil liberties will be 
better protected, and the ability to understand what our enemies are up 
to will be greatly enhanced. Every day that we move forward as a nation 
with this program being compromised is a day that the enemy has an 
advantage over us. We know what happens if this enemy is not dealt with 
firmly and quickly. They are lethal, they are committed, and they will 
do anything to harm our way of life.
  We have an opportunity to come together as Republicans and Democrats 
and move forward on a surveillance program that is vital to our 
national security, and those who want to undo this deal because of 
special interest pressure are not exercising the leadership the 
American people need in a time of war.
  With that, I yield the floor.
  The PRESIDING OFFICER (Mr. Brown). The Senator from Washington is 
recognized.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business for 10 minutes and that the time be counted against 
the bill.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Refueling Tankers

  Mrs. MURRAY. Mr. President, 4 months ago when the Air Force announced 
that Airbus, not Boeing, would supply the next generation of aerial 
refueling tankers, Air Force acquisition officials declared that the 
contest had been fair, open, and transparent. They said they made no 
mistakes, and they boasted that the decision could withstand any level 
of scrutiny.
  The Government Accountability Office called all of that into question 
in a 67-page decision that shows the Air Force competition was unfairly 
skewed toward Airbus from the very beginning.
  The decision, responding to Boeing's protest of the Air Force 
competition, was damning. The GAO described the contest as 
``unreasonable,'' ``improper,'' and ``misleading.'' It found that the 
Air Force significantly overestimated the cost of the Boeing tanker, 
that it misled Boeing while helping Airbus, and that the Air Force 
selected Airbus even though the company failed to meet key requirements 
of the contract. It concluded that:

       But for these errors, we believe that Boeing would have had 
     a substantial chance of being selected for the award.

  It is unclear at this point whether those errors were due to 
incompetence or to impropriety. But one thing is definite: This contest 
was anything but fair or transparent.
  I want to know how the Air Force got this so wrong. I have already 
asked for a meeting with Defense Secretary Gates so he can tell me how 
the Pentagon plans to respond. I will make it clear that the Air Force 
cannot go forward with this contract and that I expect it to follow the 
GAO's recommendations. The Air Force must return to the original 
request for the proposal, rebid the contract, and get this right.
  The difference between what the Air Force said about the acquisition 
process and the GAO's findings are startling.
  On February 29, Sue Payton, who is the Air Force's Assistant 
Secretary for Acquisition, said at a DOD news briefing:

       We have been extremely open and transparent. We have had a 
     very thorough review of what we're doing. We've got it 
     nailed.

  A week later, she told the House Appropriations Subcommittee on 
Defense:

       The Air Force followed a carefully structured source 
     selection process, designed to provide transparency, maintain 
     integrity, and ensure a fair competition.

  And throughout the last 4 months, Air Force officials have insisted 
that they selected the cheapest plane that best met their criteria and 
that they made no mistakes.
  The GAO's decision paints a very different picture of the contest 
and, as I said, it raises serious questions about how the Air Force 
conducted this competition. The GAO found the Air Force made a number 
of errors that unfairly helped Airbus and hurt Boeing. The GAO found 
that the Air Force changed direction midstream about which criteria 
were more important. It did not give Boeing credit for providing a more 
capable plane according to the Air Force description of what it wanted. 
Yet it gave Airbus extra credit for offering amenities for which it did 
not even ask.
  The GAO found that the Air Force ``treated the firms unequally'' by 
helping Airbus at Boeing's expense. The GAO found that the Air Force 
misled Boeing about whether it had fully met the requirements in the 
RFP, all the while keeping up conversations with Airbus and giving it 
the correct information.
  The GAO said the Air Force deliberately and unreasonably increased 
Boeing's estimated costs. When the mistake was corrected, it was 
discovered that the Airbus A330 actually cost tens of millions of 
dollars more than the Boeing 767. The GAO said the Air Force accepted 
Airbus's proposals, even though Airbus could not meet two key contract 
requirements. First, Airbus refused to provide long-term maintenance, 
as was specified in the RFP, even after the Air Force asked for it 
repeatedly. Second, the Air Force could not provide that Airbus could 
refuel all of the military's aircraft according to procedure.
  Let me say that again. The Air Force selected the Airbus A330 even 
though Airbus refused to agree to a key term in the contract and even 
though the Air Force failed to show that the A330 was even capable of 
refueling our military's aircraft by the books.
  These are serious findings. No matter how one looks at it, this 
competition was anything but transparent. Even though the Air Force 
declared its contest was fair, it appears it had its thumb on the 
scales for Airbus all along.
  But the last findings could be the most damaging of all of them. If 
Airbus cannot actually prove its tanker can do the job or that it will 
fulfill its obligations, how can it possibly be awarded that contract?
  Today the Air Force is contemplating what to do next. As I said, I 
think the answer is clear. This contract should be rebid. I agree with 
those who have said we need to get these planes into the hands of our 
air men and women as fast as possible. I represent Fairchild Air Force 
Base in Washington State. Those air men and women fly those refueling 
tankers. I know how important this decision is to them.
  This was not an acceptable acquisition process, and it would be 
unconscionable to go forward with this selection without first 
addressing the questions that were raised by the GAO's decision. In 
order to do that, we must have a competition that is not overshadowed 
by questions of ethics or competence, and we have to get the right 
plane.
  These tankers we are talking about refuel planes and aircraft from 
every single branch of our military. They are the backbone of our 
global military strength. We need a competition where the criteria are 
clear, where the participants can earn credit that is spelled out in 
the contract and there is no extra credit that is awarded unfairly, and 
we need a fair evaluation of all the costs.
  We need to go back and start with a clean slate, hold a truly 
transparent competition that does our air men and women justice. That 
is what our American taxpayers expect, and our American servicemembers 
deserve nothing less.
  I yield the floor. 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. ROCKEFELLER. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.

[[Page 13983]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. Mr. President, I am going to talk a little about the 
FISA amendment and the protection of civil liberties of Americans. Some 
people who are concerned about this bill don't recognize that there 
have been enormous changes made that specifically speak to civil 
liberties, and so I would like to talk about that. I wish to take the 
time to explain how the negotiators of the FISA bill have taken great 
care in protecting the constitutional right of privacy of American 
citizens in crafting this agreement, which was a heavily discussed and 
worked over matter.
  The FISA Amendments Act of 2008 includes strong protections of civil 
liberties of Americans while still allowing the Government to collect 
the foreign intelligence it needs to protect the country, literally. 
Maintaining this balance between civil liberties for Americans and 
protecting our Nation against foreign attack was obviously my utmost 
priority, as well as Senator Bond's, during the lengthy negotiation 
process that produced what I think is historic legislation in 
modernizing FISA for the first time in 30 years.
  The FISA bill protects Americans in a lot of ways by ensuring FISA 
Court involvement in any aspect of the new procedure for targeting 
foreigners outside the United States that could involve U.S. persons. 
It does so in four significant ways:
  First, the bill requires the FISA Court to approve procedures used to 
determine whether the foreign target of the surveillance is outside of 
the United States. The court's assessment of the adequacy of these 
procedures will ensure that the new authorities cannot be used for 
domestic surveillance.
  Second, the bill requires the court to approve the procedures used to 
address any incidental acquisition, retention, or dissemination of U.S. 
person information. These procedures protect the privacy of any 
Americans who might be in contact with a foreign target.
  Third, by explicitly asking the court to assess whether the 
procedures comply with the fourth amendment, the bill requires the 
court to determine whether the privacy interests of U.S. persons are, 
in fact, adequately protected.
  Finally, the bill requires the court to approve targeting and 
minimization before collection begins, in most instances. The court 
would be required to review and approve the procedures at least 
annually. This is called prior approval, and it was something that was 
not welcomed by some, but through the negotiation process, the prior 
approval process was incorporated in the bill, and it means that the 
court has to approve targeting and minimization before collection. The 
Director of National Intelligence and the Attorney General would only 
be able to proceed prior to a court order if emergency circumstances 
exist but for a period of time no greater than 7 days before being 
required to seek the approval of the court and no more than 30 days 
while the court is considering the request. Sometimes, but very rarely, 
emergencies do take place.
  The FISA bill also provides unprecedented new privacy protections for 
Americans abroad. This may be the most important part. For the first 
time, Americans traveling or working abroad are entitled to the same 
protection from surveillance and search that they would have if they 
were in the United States. There are 4 million Americans at any given 
moment who are outside of the United States, which is equal to the 
total population of our Nation when it was founded. The requirement is 
that the Government obtain a court order prior to targeting them for 
any foreign intelligence collection. So they get the same type of 
protection as does anybody in the United States. That is a first. 
Before, the Attorney General could pretty much just say: We want to 
target these people overseas, and there was no court involved, there 
was no approval process involved legally. Now that cannot happen. So 
they are protected, indeed, the same as anybody in the United States.
  The bill requires the court to make an individual determination of 
probable cause before a U.S. person overseas may be targeted for any 
electronic surveillance or other foreign intelligence collection. Each 
court order is valid for no longer than 90 days. This is an important 
new protection that has never before been in place.
  Apart from the court review I have detailed, the FISA bill also 
protects the privacy interests of Americans through other provisions.
  The bill prohibits the new procedure for targeting foreigners outside 
the United States from being used to target anyone inside the United 
States or from being used to acquire entirely domestic communication. 
The way it is now--and it is called reverse targeting--within the 
United States, you take out of the air some communication of somebody 
overseas who may be contacting somebody in the United States, and that 
potentially puts the U.S. person at risk. That is reverse targeting. So 
there is a prohibition now which explicitly includes reverse targeting, 
where the purpose of targeting somebody outside the United States is to 
target somebody in the United States. I know it is complicated, but it 
is important.
  Because of the importance of the prohibitions in the bill, the bill 
requires the Attorney General to adopt guidelines that ensure that the 
Government obtains individual court orders when required and does not 
engage in any prohibited conduct, such as reverse targeting, which, in 
effect, disappears from the lexicon of telecommunication collection. 
The bill also requires the Attorney General and the Director of 
National Intelligence to certify to the FISA Court, under oath, that 
the acquisition complies with the prohibitions in the bill and that the 
procedures and guidelines are consistent with the requirements of the 
fourth amendment.
  To ensure there are no unintended consequences relating to when a 
warrant must be obtained under FISA or how information obtained using 
FISA can be used, the bill does not change the definition of 
``electronic surveillance'' in FISA. It is left exactly as it is. 
People say: Well, why is that? Everything has changed. Well, there can 
be legislative authorizations to make changes, but only if those 
legislative authorizations are made can there be changes in electronic 
surveillance. So the definition remains the same--a good, solid base.
  The bill requires extensive reporting to Congress about the 
implementation of the new provisions, compliance with the prohibitions 
in the bill--that is important; we have not had that--and the impact of 
the new provisions on U.S. persons.
  The bill sunsets on December 31, 2012, a date which ensures that the 
reauthorization of the FISA bill will be addressed, in fact, by the 
next administration.
  In addition to protecting the civil liberties of Americans in the new 
procedures, the bill seeks to prevent any future circumvention of FISA 
and to ensure that Congress has a complete set of facts about the 
President's surveillance program.
  Well, one might question: How does that happen? In title III of the 
FISA bill that is before us, we direct the inspectors general of 
relevant agencies--and that is a whole bunch of intelligence agencies--
to complete a comprehensive review of the President's warrantless 
surveillance program. Then, within a year, the inspectors general must 
submit an unclassified report to Congress, with a classified annex, if 
necessary. This IG review provides an important vehicle for ensuring 
that a comprehensive set of facts about the President's program is 
available to Congress and, to the extent the classification permits, to 
the American public itself.
  A comprehensive review of the President's program is particularly 
important given the possibility the courts will dismiss ongoing 
litigation due to title II. It also ensures that accountability for the 
program will be directed at the Government, where it belongs.
  To ensure that the Government never again relies on an inapplicable 
statute to argue that warrantless wiretapping is permissible, the bill 
strengthens the

[[Page 13984]]

requirements that FISA and specific chapters of title XVIII are the 
exclusive means by which electronic surveillance and criminal law 
interceptions may be conducted. The act provides that in addition to 
the specifically listed statutes, only an express statutory 
authorization passed by the Congress for surveillance or interception 
may constitute an additional exclusive means for that surveillance or 
for that interception. It is a very strong protection against abuse.
  Finally, the bill clarifies that criminal and civil penalties can be 
imposed for any electronic surveillance that is not conducted in 
accordance with FISA or the specifically listed criminal intercept 
laws.
  In summary, the FISA bill has a multitude of statutory provisions 
that provide the judicial and congressional oversight that is essential 
to protecting the civil liberties of all Americans, both here and 
abroad. They were not protected abroad. They are now. The House did not 
pass this bill because they believed there was an insufficiency of 
civil liberty protections--and they may have been right. So we hammered 
these out in long meetings in which the White House, all the 
intelligence agencies, and the leadership--Republican and Democratic--
of the House and the Senate were there.
  It is a much stronger bill. People will argue that people like me 
talk about a balance between being able to collect--which is the only 
way you are going to know if you are going to be attacked--or civil 
liberties. So people tend to go all the way this way or all the way 
that way, not recognizing or not being willing to accept that there can 
be a balance. We have created that balance in our bill. I am proud of 
that. It is one of the many reasons I am for the bill.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Alaska is recognized.


                     HONORING ELLADEAN HAYS BITTNER

  Mr. STEVENS. Mr. President, I never thought I would have this 
occasion, but I want to speak today to honor the life of a great woman, 
my mother-in-law, Elladean Hays Bittner.
  Ellie was born February 1, 1919, in Phoenix during the great flu 
pandemic. She often remarked on why she had no birth certificate--the 
hospital did not expect her to survive.
  Ellie grew up and worked on her family's ranch in Arizona. She 
studied home economics at the University of Arizona, graduating in 
1939. During college, she rode with the U.S. Army cavalry and was 
chosen to be a member of the Mortar Board, a national honor society.
  Ellie married William-Bill-Edward Bittner in 1944 in Arizona. They 
honeymooned to Alaska, traveling by Alaska steamship and train to 
Anchorage to meet her in-laws. In 1950, Ellie moved to Alaska with Bill 
and their children, Catherine--my wife, William, and Judith. Ellie 
worked for the Anchorage school district, teaching home ec. She started 
a boys' cooking class and an early childhood education program.
  Governor Hickel appointed Ellie to a position with the Alaska 
Department of Education. She traveled extensively, interviewing women 
in remote villages and towns and published a study that was a pioneer 
effort to identify economic opportunities for women.
  Ellie and Bill were very active in Alaska, entertaining frequently at 
their downtown log house in Anchorage and flying all over the territory 
in their Cessna 180 with their children.
  The family began splitting their time between Alaska and Arizona in 
the 1970s and Ellie returned to ranching. She established the ``Quien 
Sabe'' outfit, which she was featured with in 2002 at the Cowgirl 
Museum and Hall of Fame, and is included in ``Hard Twist'', a book on 
western ranching women. Ellie remained active in ranching until her 
death.
  She was a great lady. She passed away on June 10 in our hometown of 
Anchorage, AK, surrounded by her family. I had the honor to be with her 
for part of that time. I speak for all of us and many more when I say 
this. There is a hole in our lives that will never quite be filled. 
Ellie left us with wonderful memories. Through these, she will live on.
  Every time I hear Willie Nelson I am going to remember Ellie. She 
loved Willie Nelson. I think the only difference she had with Willie is 
she hoped her children, her babies, would grow up to be cowboys.


                            Leave of Absence

  Mr. President, I ask unanimous consent I be excused from attendance 
of the Senate following today's session, until the first vote in July.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                       Honoring William Sheffield

  Mr. STEVENS. Mr. President, I rise today to pay tribute, on his 80th 
birthday, to a great American and a great Alaskan, Governor Bill 
Sheffield. My friend Bill Sheffield was the Democratic Governor of 
Alaska from 1982-86, which was just a short episode in a lifetime of 
service to Alaska both in government and in the private sector.
  Governor Sheffield came to Alaska in 1953, the same year I moved to 
our great State, to handle television sales for Sears and Roebuck. His 
exceptional intellect and work ethic were easily recognized. Quickly, 
he took leadership positions in the Chamber of Commerce and other 
business groups in Alaska, eventually becoming president of the Alaska 
State Chamber of Commerce and, in 2006, being awarded the Lifetime 
Achievement Award in Business by the Alaska Business Monthly. By 1960, 
he had entered the hotel industry by purchasing his first hotel in 
Anchorage. The day before the Good Friday Earthquake in 1964, Bill 
Sheffield had just opened a new hotel, but it would take more than that 
earthquake to stop Bill. His hotel business continued to grow until he 
owned 16 hotels throughout Alaska and the Yukon Territory.
  As Governor, Bill Sheffield was focused on ``Bringing the State 
Together,'' the theme of his campaign. His reputation as a problem-
solver and his pledge to unite Alaskans resulted in a landslide 
victory. Governor Sheffield's experience as a businessman served him 
and Alaskans well during his time in the Governor's Office. His efforts 
reduced excessive spending in State government and helped save Alaska's 
natural resources for the use of all Alaskans for generations yet to 
come.
  After leaving government, Governor Sheffield continued his service to 
Alaskans, taking seats on several private and nonprofit boards of 
directors. Currently, he is the director of the Port of Anchorage, 
where he has developed a master plan for expansion of the port through 
2014. Governor Sheffield's vision for this expansion of the State of 
Alaska's largest port will not only serve Anchorage, but nearly the 
entire geographic area and population of our State. Mr. President, over 
90 percent of the goods that come into my State come through the Port 
of Anchorage. Furthermore, this expansion will serve the national 
defense needs of the United States by providing vital transportation 
support and access to four major military installations in Alaska, 
including the Stryker Brigade at Fort Wainwright. I am proud to have 
supported the port expansion project and I am proud of Governor 
Sheffield and the work he is doing for Alaska and all of the United 
States.
  Governor Sheffield's continuing service does not end with the Port of 
Anchorage. Additionally, he is a trustee of Alaska Pacific University, 
a member of the advisory board of ENSTAR Natural Gas, a charter member 
of Commonwealth North, past chairman of the Federal Salary Council and 
a member of the board of directors of the Alaska Railroad and formerly 
the railroad's president & CEO. As Governor, Bill Sheffield was 
instrumental in saving the Alaska Railroad, purchasing it from the 
Federal Government and then providing the necessary investment in 
Alaska's infrastructure to assist in our development. In recognition of 
his service to the railroad and to the State of Alaska, the Alaska 
Railroad Depot at the Anchorage International Airport was named after 
Governor Sheffield in 1999.
  Most importantly to Alaskans, Bill is also a skilled fisherman and 
avid outdoorsman. A love of bush Alaska runs

[[Page 13985]]

through every aspect of this man. I know firsthand of his love for the 
bush areas of our home State. He and I have enjoyed many days together 
out on the water whether fishing for salmon on the Kenai River or 
elsewhere in Alaska.
  In this Chamber today, we see a lot of partisan fighting. One of the 
greatest qualities of my friend Bill Sheffield is the ability to get 
past the labels of Democrat and Republican. Bill Sheffield is a 
lifelong Democrat. While he was the Governor of Alaska and I was here 
in Washington as Senator, we always found a way to work together. As 
Governor, Bill Sheffield was able to identify what needed to be done 
for the greater good of Alaska. More importantly, he pushed aside the 
partisanship, went ahead and did what needed to be done for Alaskans. 
In both business and government, Governor Sheffield is a leader and a 
doer. He is a fine example for all of us. I am honored to count Bill 
Sheffield a friend and I hope the entire Senate will join me in wishing 
him a happy 80th birthday. Happy birthday, Billy.
  Ms. MURKOWSKI. Mr. President, it is with great honor and respect that 
today I acknowledge the 80th birthday of a great friend and leader in 
Alaska. Governor William ``Bill'' Sheffield has been a leader in 
business and government for most of the 55 years he has lived in 
Alaska. He served as Governor from 1982 to 1986, following a business 
career in which he built a company that became one of the largest 
private employers in Alaska and the Yukon Territory.
  Governor Sheffield came to Alaska in 1953 as a regional sales 
representative for Sears Roebuck in charge of television sales and 
service. He became one of the top salesmen in the nation during the 
1950s and began his leadership in business groups such as the Jaycees 
and the Chamber of Commerce. In 1960, he purchased an Anchorage hotel, 
and founded Sheffield Enterprises. In 1964, literally the day before 
the great Alaska earthquake of March 27, 1964, he opened a new hotel in 
Anchorage. This began an expansion that eventually saw his company grow 
to 16 hotels with 750 employees. He sold the company in 1987 to Holland 
America Line-westours, one of the major players in Alaska's growing 
tourism market. While in business, Sheffield served as president of the 
Alaska State Chamber of Commerce and the Alaska Visitors Association.
  As a candidate for Governor in 1982, Bill Sheffield's theme was 
``bringing the state together'', a reference to a pair of divisive 
ballot initiatives that same year. His message of inclusion and 
cooperation helped him win the governorship in a landslide. Governor 
Sheffield then turned his attention to curbing the runaway growth in 
State government, promoting efficient business-style management of 
public works projects and saving more of Alaska's energy revenues for 
future generations.
  Currently, Governor Sheffield serves as port director of the Port of 
Anchorage, where he oversees a critical and all-encompassing port 
expansion. The port is a military strategic port and serves 80 percent 
of Alaskans with 90 percent of their goods. He is also a trustee of 
Alaska Pacific University, a member of the advisory board of ENSTAR 
Natural Gas, and a charter member of Commonwealth North, one of 
Alaska's leading public affairs forum. He is the past chairman of the 
Federal Salary Council; recently he received the Lifetime Achievement 
Award in Business from the Alaska Business Monthly; the former 
president and CEO of the Alaska Railroad Corporation and now serves on 
its board of directors. In recognition of his service to the railroad 
and to the State of Alaska, the Alaska Railroad Depot at the Ted 
Stevens International Airport was named in his honor in 1999.
  Governor Sheffield has always believed that wisdom comes with the 
experience of making your own payroll. He credits his success in 
business and government from having the experience of workers depending 
on him alone for their paycheck.
  Lastly, Bill Sheffield, a lifelong Democrat, is one of the best 
examples of someone who puts partisanship aside, rolls up their sleeves 
and works with anyone who is also dedicated to achieving important 
goals for the greater good. Whether in business, politics, education or 
many other endeavors that have benefited so many people, he is a leader 
and example for all of us.
  I would also be remiss if I didn't mention that Bill is an excellent 
duck hunter, fisherman and avid outdoorsman. Mr. President, I am proud 
to call Bill Sheffield a friend and I hope the entire Congress will 
join me in wishing him well on the 80th anniversary of his birth. Happy 
Birthday, Bill.
  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. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tester). Without objection, it is so 
ordered.
  Mr. BROWN. Mr. President, I ask unanimous consent to speak for up to 
10 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Student Aid

  Mr. BROWN. Mr. President, as I travel my State, I have held close to 
100 roundtables of 15, 20 people gathered together as a cross section 
of the community in some 65 or 70 Ohio counties.
  I hear more and more people talking about how difficult it is for 
middle-class kids, for kids from working families, especially for 
first-generation and potential first-generation students being able to 
go to college.
  We have made some progress in the Senate in the 15, 16, 17 months 
since the Presiding Officer and I and others have been in this body. 
One was the College Cost Reduction Act, an investment in America's 
students. It was a promise that I and my other freshman colleagues 
campaigned on 2 years ago. We have delivered.
  The increases in student aid that are beginning to go into effect 
next week are a downpayment of America's future prosperity, on its 
future competitiveness. This investment could not have come at a better 
time. With college costs at an alltime high, neither student aid nor 
family incomes have been able to keep up.
  In my home State of Ohio, between 2001 and 2006, the cost of 
attending college increased 53 percent at 4-year public colleges and 
universities, and almost 30 percent at 4-year private colleges, 53 
percent at public universities, close to 30 percent at 4-year private 
schools.
  During this same period, the median household income in Ohio 
increased only 3 percent. In the 2004-2005 school year, 66 percent of 
students graduating from 4-year institutions in my State graduated with 
student loan debt. The average debt was $20,000.
  This bill will help students manage the debt they are incurring and 
give them more options after they leave school. One of the most 
important provisions of the bill is a new income-based repayment 
program that will allow students to pay their debt as a percentage of 
their income. This initiative, along with the Public Service Loan 
Forgiveness Program, will help students manage their debt and allow 
them to pursue careers in public service without fear of student loan 
payments they simply cannot afford.
  In April, I held a Health, Education, Labor, & Pensions Committee 
public hearing at Ohio State University to discuss student debt issues. 
One of the witnesses we heard from was a young woman from Cincinnati 
whose distraught mother wrote me about the crippling debt her daughter 
had accrued trying to pay for college.
  She testified she never believed an education could cost so much and 
how she worried about how she was going to help her family and advance 
her career now that she was saddled with so much student loan debt.
  As I said, as I travel the State, I hear stories such as these from 
students and parents who tell me it is becoming harder and harder to 
afford a college education for those Ohioans, for millions of others 
across this country. This bill will finally provide some

[[Page 13986]]

much-needed relief. I would add that as Governor Strickland, the new 
Governor of the State who has been in office some 17 months or so, has 
frozen tuition at public universities, which has made a big difference, 
obviously, in the affordability of college. And coupled with what the 
State is trying to do now in Ohio, after the State did very little to 
rein in college costs, coupled with what we are doing here, it will 
make a big difference, particularly for first-generation students, but 
for all people who want to go to college whose parents do not make 
quite enough for them to be able to afford it. This is a major step, a 
positive step, in changing the direction of our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Medicare Advantage

  Mr. DURBIN. Mr. President, pending before the Senate is an important 
measure about compensating medical providers who treat Medicare 
patients. Medicare patients, of course, are the elderly and the 
disabled. This program that was started over 40 years ago reaches 40 
million Americans. It is an important lifesaver. It is a lifeline for 
many people who have reached a point where they can no longer afford to 
pay for their own major medical bills. Many of these people are on 
fixed incomes. Many of these folks have no health insurance, other than 
Medicare. They are desperate to find the kind of care they need.
  Medicare, a program that was once criticized as being too much 
government and socialism, has turned out to be one of the most valuable 
programs the Federal Government offers. For 40 million Americans, it 
means they have the peace of mind that when they are sick, there is a 
place to go and someone to pay for it, that they will not sacrifice 
their savings and everything they have because of a medical 
catastrophe. There is a suggestion of cutting the compensation to 
Medicare providers by 10 percent. The fear is, if we cut that pay to 
these Medicare providers, fewer doctors will take Medicare patients; 
they will decide that the economic benefits are with other patients who 
might be paying more through private health insurance or even out of 
their own pockets.
  We have a deadline. On July 1, this 10-percent cut goes into place. 
We have been trying, week after week, month after month, to pass in the 
Senate a provision that will protect these Medicare providers from this 
proposed cut of 10 percent. Imagine, if you will, that seniors who have 
doctors' appointments in the first or second week of July call to find 
that the appointments have been canceled because their doctor no longer 
takes Medicare patients. I don't want that to happen in Illinois. I 
don't think it should happen anywhere across this country.
  A bill comes through the House of Representatives which proposes that 
we stop this 10-percent cut and make sure Medicare does not suffer this 
change and that the Medicare beneficiaries are not disadvantaged. The 
vote was called earlier this week in the House of Representatives. The 
final vote was 355 to 59. By a margin of 5, or 6 to 1, a bipartisan 
vote in the House of Representatives, they voted to take care of this 
problem and do it now before the July 1 deadline kicks in. The bill 
that passed in the House is supported by physicians, consumer groups, 
pharmacists, hospitals, and many others. Who opposes this bill? Two 
groups. I should say two entities--the health insurance industry and 
the White House. Why? Because the bill provides for savings from 
private fee-for-service Medicare plans. In other words, the additional 
10 percent that is going to be paid to these Medicare providers, part 
of it at least is offset by saying that private health insurance 
companies are going to receive less in reimbursement for treating 
Medicare patients.
  Why should they receive less, you ask? Because the so-called Medicare 
Advantage plans, private health insurance plans providing benefits that 
look a lot like Medicare, charge more than the Medicare plan, 12 to 13 
percent more. Those aren't figures dreamed up by Congress. They come to 
us from the executive branch of Government. We suggested some savings 
in the amount of money paid to private health insurance companies and 
the resistance comes, obviously, from those companies, the White House, 
and this morning from the Republican side of the aisle. They refuse to 
let us cut any reimbursement to the private health insurance companies 
that charge more for the same services that Medicare is providing.
  So we have reached an impasse. It is an impasse that has to be broken 
to the benefit of Medicare beneficiaries. I think we should be guided 
in breaking it by what happened in the House of Representatives by a 
vote of 355 to 59. Private fee-for-service plans are paid more than 
what it costs to treat the same Medicare patient in the traditional 
Medicare Program. We are paying these private insurance companies more 
than the ordinary Medicare reimbursement.
  For some on the other side of the aisle, this is all well and good. 
They want to privatize Medicare. They want to end this so-called 
Government health insurance plan. I am not one of those. After more 
than 40 years of success in Medicare, I don't want to see this program 
go away. This program has been a lifeline when all else has failed. 
Medicare Advantage plans, those private health insurance company plans 
I talked about, cost taxpayers, on average, 13 percent more than 
Medicare for the same benefits. Private fee-for-service Medicare 
Advantage costs even more, 19 percent. This payment disparity gives 
private fee-for-service plans a competitive advantage over traditional 
Medicare. In other words, they can offer a little bit more, some bells 
and whistles, and they charge dramatically more when it comes to 
billing taxpayers and the Government for their services. We are trying 
to trim that back a bit.
  The howls and screams from the other side of the aisle come because 
they want to protect these private health insurance companies. These 
unjustified higher payments are fueling large increases in enrollment 
in these types of plans that charge more because they offer a little 
bit more here and there. Even CMS has been concerned about the 
marketing practices of these private fee-for-service plans. Understand, 
these private health insurance companies, trying to enroll Medicare 
beneficiaries into their private health insurance alternative to 
Medicare, are going door to door, using telephone, mail, soliciting 
many seniors. Some of them are misled. Some of them are confused by the 
solicitations. There is outright fraud taking place. There have been 
numerous reports of sales agents using strong-arm tactics to enroll 
Medicare beneficiaries in these plans without the beneficiaries 
understanding how the plans differ from traditional Medicare.
  Yesterday, the Government Accountability Office released a report 
that shows that private Medicare Advantage plans spent less on medical 
care than they report to the CMS which, in turn, earned them $1.14 
billion in additional profits over what was expected. This is money 
going directly into the pockets of the insurance industry, not for the 
health benefits of Medicare patients. This report confirms the deal 
that was offered to Medicare beneficiaries and American taxpayers by 
these private plans is even worse than we thought. Yet today, on the 
Republican side of the aisle, they are objecting to this fix in 
Medicare to protect these private health insurance plans that have been 
found over and over again to charge too much, to be abusive in their 
marketing and, frankly, to provide less medical care than they 
promised.
  In this report, for the first time in the history of the Medicare 
Advantage Program, GAO compared the private plans' projected spending 
on medical care and profit margins with their actual profit margins and 
spending on medical care. They found that in 2005, the Medicare 
Advantage plans projected spending 90.2 percent of total costs on 
medical services but actually spent 85.7 percent. By spending less on

[[Page 13987]]

helping Medicare patients, these plans increased their profits. That is 
what it is all about--giving the Medicare patients as little as 
possible.
  These private health insurance plans are big winners when it comes to 
making money but at the expense of medical care for the Medicare 
patients. These are the same companies Republicans are trying to 
protect by objecting to our fixing this Medicare reimbursement problem.
  It is a shame we are putting the health of America's seniors on the 
line for the profit of a handful of private insurance companies. The 
Bush administration is disguising the truth. They claim the Medicare 
Advantage plans are helping, when they aren't doing a good job. This 
GAO report is more evidence of waste and abuse in this program, 
evidence which those who object to our moving forward refuse to even 
read or acknowledge. The changes in this bill are modest. They are 
nowhere close to payment cuts the House approved earlier this year. 
What Republicans and the White House are objecting to is taking away 
another special advantage that private fee-for-service plans have been 
given, the ability to deem a doctor or hospital as part of its 
necessary work. This bill merely requires private fee-for-service to 
enter into contracts with health care providers, as all other private 
Medicare plans already do. This reform is good for patients, good for 
health care providers, and good for taxpayers.
  The overwhelming vote in the House for this bill shows Congress will 
no longer allow the Bush administration, as it is packing to leave town 
over the next 6 months, to protect the health insurance industry at the 
expense of Americans, our families, and Medicare beneficiaries.
  I urge my colleagues, support the Medicare Program, make sure 
Medicare providers are adequately funded. Don't stand in defense of 
private health insurance at the expense of this valuable program.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.


                  Unanimous Consent Request--H.R. 2264

  Mr. KOHL. Mr. President, I rise today to ask unanimous consent that 
the Senate take up the No Oil Producing and Exporting Cartel Act, 
NOPEC. This legislation will authorize our Government, for the first 
time, to take action against the illegal conduct of the OPEC oil 
cartel. It is time for the U.S. Government to fight back on the price 
of oil and hold OPEC accountable when it acts illegally. Our amendment 
will hold OPEC member nations to account under U.S. antitrust law when 
they agree to limit supply or fix price in violation of the most basic 
principles of free competition.
  NOPEC will allow the Attorney General to file suit against nations or 
other entities that participate in a conspiracy to limit the supply, or 
fix the price, of oil. In addition, it will specify that the doctrines 
of sovereign immunity and act of state do not exempt nations that 
participate in oil cartels from basic antitrust law. This legislation 
will not create any private right of action nor require any action by 
the Attorney General, it will simply give the administration the option 
to bring an antitrust action against OPEC member nations. Passage of 
this legislation will mean that OPEC member nations will face the 
possibility of real and substantial antitrust sanctions should they 
persist in their illegal conduct.
  I have introduced this legislation in each Congress since 2000. This 
legislation passed the full Senate by a vote of 70 to 23 last June as 
an amendment to the energy bill before being stripped from that bill in 
the conference committee. The identical House version of NOPEC passed 
the other body as stand alone legislation in May 2007 by an 
overwhelming 345 to 72 vote. It is now time for us to at last pass this 
legislation into law and give our Nation a long needed tool to 
counteract this pernicious and anticonsumer conspiracy.
  As we consider the causes of rising gas prices--now exceeding the 
once unthinkable $4 per gallon level, up 74 percent since the beginning 
of last year--one fact has remained conistent--any move downwards in 
price ends as soon as OPEC decides to cut production. And whIle the 
OPEC nations enjoy their riches, the average American consumer suffers 
every time he or she visits the gas pump or pays a home heating bill. 
The Federal Trade Commission has estimated that 85 percent of the 
variability in the cost of gasoline is the result of changes in the 
cost of crude oil.
  The most fundamental principle of a free market is that competitors 
cannot be permitted to conspire to limit supply or fix price. There can 
be no free market without this foundation. And we should not permit any 
nation to flout this fundamental principle.
  Mr. President, the suffering of consumers across the Nation in the 
last few years has made me more certain than ever that this legislation 
is necessary. When I first introduced this legislation in June 2000, 
the worldwide price of crude oil was $29 per barrel. It has now more 
than quadrupled. How much longer must consumers wait for us to take 
action? I believe we need to take action now.
  I ask unanimous consent that the Senate proceed to the consideration 
of Calendar No. 169, H.R. 2264, at a time to be determined by the 
majority leader, following consultation with the Republican leader, and 
that the bill be considered under the following limitations: that no 
amendments be in order to the bill; that there be 2 hours of debate, 
with time equally divided and controlled between the leaders or their 
designees; that upon the use or yielding back of the time, the Senate 
proceed to vote on passage of the bill without further intervening 
action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. DOMENICI. I object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Nevada.


                              Clean Energy

  Mr. ENSIGN. Mr. President, in the last few days, we have been talking 
about the housing bill. Last night I got to speak as I had the day 
before about an amendment I have been trying to get onto the housing 
bill. I would like to speak about the importance of that amendment, 
once again.
  This country is facing high energy costs right now, with gasoline 
over $4 a gallon. Home heating oil is being affected by the price of 
energy. Natural gas prices have gone up by over 70 percent. It is 
affecting literally every single family and business in the United 
States. We need to have a broad-based approach to finding all the 
sources of American energy we can possibly find to help make us less 
dependent on Middle Eastern oil and other energy supplies coming from 
outside the United States. It is important for our national security, 
and it is also important for our economic security.
  The amendment I wanted to offer to the housing bill deals with 
alternative renewable energies. These are energies such as solar, wind, 
geothermal, and many others. This amendment is identical to a bill 
Senator Maria Cantwell, a Democrat, and myself worked on together. In 
total, 45 Members have cosponsored this bill. We actually offered this 
legislation as an amendment to housing bill the last time that bill was 
on the Senate floor in April.
  At that time, our amendment passed with 88 yea votes and only 8 nay 
votes. Rarely does something around this body pass 88 to 8 in such a 
bipartisan fashion in these partisan days. We should take advantage of 
that bipartisanship and do something right for the American people.
  Not only do we want more American energy, but whenever we can, we 
should certainly try to incentivize bringing more green energy to the 
United States. That is the reason we introduced this bill, and it is 
the reason there was such a strong vote on it.
  There have been a couple of objections as to why we should not 
include this amendment on the housing bill. It has been said that this 
amendment has nothing to do with housing. I would beg to differ. First 
of all, the stronger the economy, the more people will be able to 
afford to buy and retain homes. This renewable energy tax bill 
literally will produce probably 100,000 to 200,000 jobs

[[Page 13988]]

in the United States and billions of dollars worth of investment in the 
United States. When people have jobs, there is a better chance they can 
afford homes.
  Second, there are many provisions in our renewable energy tax bill 
that directly relate to housing. My amendment provides incentives to 
expand energy efficiency in new homes, existing homes, and appliances 
used in homes. For example, if you want to invest in solar energy in 
your home, if you want to help the country out by taking some of your 
electricity demand off of the power grid and actually produce your own 
electricity with solar energy in your home, we have tax credits to 
encourage this activity. If somebody is building a more energy-
efficient home, we have tax credits in there to do that. In addition, 
we encourage the production of more energy-efficient appliances for 
your home. So this amendment is directly related to housing.
  One of the other provisions the managers of this bill--and especially 
the Democratic leadership--do not want this amendment attached to the 
housing bill is that it is ``not paid for.'' Well, there are already 
$2.4 billion in tax-related items that are not paid contained in this 
housing bill. I will not go into the details because they are fairly 
complicated, but know there is almost $2.4 billion in unpaid-for tax 
incentives in this bill.
  The Democratic manager of this bill said the Democrats in the House 
of Representatives would not go for our particular renewable tax credit 
legislation because it was not paid for, that there were too many 
Democrats in the House of Representatives who would object to it. Well, 
how do they expect $2.4 billion in other tax incentives that are not 
paid for to be accepted over there and then argue that ours would not 
be accepted as well? So I think we should do absolutely everything we 
can at this time--with high energy prices on gasoline, home heating 
oil, and natural gas going up in the United States--we should do 
everything we can to get Senator Cantwell's and my amendment on 
renewable energy tax credits put onto this housing bill.
  Another reason it is important to have this amendment on this bill, 
instead of waiting for another bill in the future, is that a lot of the 
contracts and the financing of renewable energy projects--whether they 
are solar, geothermal, wind, or any of the other clean energy we have 
in the United States--it is critical for the financing of these 
projects that we have predictability and we get the Clean Energy Tax 
Stimulus amendment done as soon as possible. For each quarter that 
passes--and the Senator from Washington has spoken eloquently about 
this--that is more projects that do not get financed. Projects will not 
always be financed in the future if they have lost their financing now. 
Investors lose confidence.
  So we need to have predictability, and we need to enact my amendment 
soon as possible. The housing bill, everybody around here knows, is 
going to be one of the few bills that will be signed into law this 
year. So we need to have the renewable energy tax credits on a bill 
that is going to be signed into law. If we actually care about 
advancing use of renewable energy in this country, if we care about 
jobs in the renewable energy sector of our economy, then we need to 
have this amendment passed into law.
  The Democratic leader has already said he is going to pull the bill 
and we are going to come back to the housing legislation after the 
Fourth of July break. I encourage all Americans to contact their 
Senators and Representatives in the House, and let their voices be 
heard that this is an important issue to them. Write in, e-mail--do all 
the types of things that are necessary to participate in our democratic 
process, to say yes to renewable energy, to say yes to jobs in America.
  Let's put this amendment on the housing bill when we get back after 
the Fourth of July recess. Let's do it as quickly as possible. Let's 
get the House of Representatives to cooperate with us on something that 
is good for America. I happen to be a Republican Senator but this is a 
bipartisan issue. In fact, this should be nonpartisan. This should be 
something that is done forgetting about whether you are a Republican or 
Democrat. Let's do something that is good for America. Let's do more of 
that around this place, and I think we will all be better off for it.
  I conclude by imploring my colleagues: Think about this during the 
break. Think about what is at stake with the tens and tens of thousands 
of jobs, the billions of dollars in investment in renewables, and the 
chance that we can do something good for America and bring more green 
energy, more clean energy to the United States.
  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.
  Mr. BROWN. 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. BROWN. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Paul Laurence Dunbar

  Mr. BROWN. Mr. President, I rise today to honor the birth of Paul 
Lawrence Dunbar.
  It was the African-American poet Maya Angelou who made the verse ``I 
know why the caged bird sings'' widely famous, but it was Paul Laurence 
Dunbar from Dayton, OH, who penned that powerful poem more than a 
century ago. That seems to be the true story of Paul Lawrence Dunbar, 
as a trailblazer who paved the way for later generations of African-
American poets and writers.
  While academics continue to debate Dunbar's stature in the pantheon 
of American poets, there is wide agreement that he is a seminal figure 
in African-American literature, the first to achieve national--and some 
would argue international--recognition among African Americans.
  Paul Lawrence Dunbar was born into meager circumstances in Dayton, 
OH. His birthday we honor tomorrow on June 27, 1872. He was the son of 
former slaves who escaped to freedom. He was raised by his mother 
Matilda, who had little to give him in terms of material wealth. Her 
job as a washer woman provided little more than food and clothing for 
Paul and his four brothers and sisters. Instead, she instilled in him 
something much greater. Paul's mother taught him the arts of song and 
storytelling and instilled in her son a lasting love of poetry and 
literature. Because of his mother, the poet fell in love with the power 
of words at a very early age, some accounts having him reciting and 
writing poetry as early as age 6. This love for literature grew over 
the years as his mother encouraged him to read and reinforced the 
importance of school.
  By the time young Paul reached high school, he was the only African 
American in his class at Dayton Central High. While he faced so many 
difficulties because of his race, he achieved so much during this time 
in his life. In the face of prejudice, he became a member of the 
debating society, editor of the school paper, and president of the 
school's literary society. Working with his classmates and his friends 
in Dayton, Orville and Wilbur Wright, Paul Laurence Dunbar published an 
African-American newsletter. All the while, he helped support himself 
by working as an elevator operator in Dayton's Callahan Building.
  Dunbar's birthday, June 27, came to be a very important day for the 
poet, as it was on that day when his abilities to write were first 
showcased in his hometown and then many years later again on his 
birthday when he received national recognition--it was June 27, 1892, 
when giving the opening welcome before the Western Writers Conference 
at the Dayton Opera House.
  As the story goes, Paul was asked by his teacher Helen Truesdell only 
days before to give the opening remarks. He was nervous not only about 
writing the remarks but also about enough time away from his job as an 
elevator operator to give them.
  As Jean Gould describes in her book, ``That Dunbar Boy":


[[Page 13989]]

       Speaking to the Western Writers Conference afforded Paul 
     his first opportunity to be heard by writers beyond the 
     Dayton region, a special birthday gift that began the 
     launching and the cementing of his writing career. His 
     welcoming address received a burst of eager applause as he 
     bowed and made a dash for the backstage exit of the Opera 
     House--he was due back at the Callahan Building as the 
     elevator operator in just 10 minutes!

  This experience for Paul underscored his love of writing and his 
desire to make it his career. Soon after, he published his first book 
of poems, ``Oak and Ivy.''
  It was on June 27, 1896, that William Dean Howells, a prominent 
literary critic of the times, published a column in Harper's Weekly 
enthusiastically praising Dunbar's second book, ``Majors and Minors.''
  Howell stated:

       There has come to me from the hand of a friend, very 
     unofficially, a little book of verses, dateless, placeless, 
     without a publisher, which has greatly interested me.

  So that established Dunbar as a national literary figure. From there, 
he went on to write four collected volumes of short stories, four 
novels, three published plays, lyrics for 12 songs, 15 books of poetry, 
400 published poems, 200 unpublished poems, uncounted essays on social 
and racial topics in periodicals and newspapers in a career of less 
than 13 years.
  Literary critics to this day continue to debate Paul Lawrence Dunbar. 
It has been argued that the author should be considered one of the 
earliest crusaders for equal rights and that his work belongs in the 
long tradition of protest writing. Other critics argue against this 
sort of designation--a controversy that speaks to the complexity and 
richness of his writing.
  There is no debate that Paul Lawrence Dunbar and his works have 
enriched the history and character of his hometown, Dayton; his State--
my State--Ohio; and our great country. Paul Lawrence Dunbar is known 
throughout the world for his literary genius. He is recognized as a man 
of humanity and integrity and determination, thus becoming the first 
African American to be accepted by the discipline of American 
literature.
  Tomorrow, actually, is the date of his birth, but I stand today to 
honor this Ohioan and his work.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KERRY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senate is postcloture on the motion to 
proceed to the FISA bill.
  Mr. KERRY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Zimbabwe Elections

  Mr. KERRY. Mr. President, we are known happily as the world's 
greatest deliberative body and the world's greatest democracy. There 
are times when I have been here when we have indeed lived up to that 
reputation, and it has been exciting and rewarding. We also are blessed 
to serve in an institution where very frequently we extol the virtues 
of our commitment to spreading freedom around the globe. We take that 
seriously. I don't think there is a Senator here who doesn't believe in 
our responsibility to do that and who isn't proud of America's role in 
being able to do that in many parts of the world where we have made a 
difference.
  However, in recent days here in Washington, the news earlier this 
week that Morgan Tsvangirai, the leader of Zimbabwe's main opposition 
party, was forced to withdraw from a runoff election that was scheduled 
for tomorrow, that news was regrettably met by an absence of the kind 
of outrage that it demands and, frankly, by an absence of action of any 
kind in the global community.
  It is important for the Senate, in my judgment, to forcefully condemn 
a shockingly brutal campaign, an overt, visible for everybody to see, 
disdainful, arrogant campaign of violence and intimidation that has 
been launched by President Robert Mugabe and his henchmen which 
rendered free and fair elections in Zimbabwe impossible.
  Morgan Tsvangirai's courageous decision not to put his supporters at 
further risk in an election that Mugabe explicitly said he would not 
respect if he did not win ought to be a wake-up call for the world and 
especially to the African leaders who have the most influence over 
Zimbabwe.
  Action is long overdue. For months now, Mugabe's thugs have savaged 
opposition politicians, civil society activists, and anyone else who 
dared to dream of a peaceful end to his rein of terror. Villagers have 
literally been handed bullets by soldiers and told to choose between 
democracy or their lives.
  Since the initial balloting in March, the MDC--the Movement for 
Democracy--believes that at least 86 of its supporters have been 
killed, over 10,000 have been injured, 2,000 unlawfully detained, and 
200,000 have fled their homes. In fact, the details of this campaign of 
violence and intimidation are even more horrifying than the statistics 
convey. Women have been burned to death. Young men have been tortured 
and dismembered, and the elderly have been savagely beaten.
  In fact, it is hard to imagine a campaign of political murder as 
brazen and visible to everybody as the one that has been unleashed on 
unarmed innocents, with a sense of complete inability to be touched by 
any civil forces outside. Mugabe very matter of factly stated last 
week:

       We are not going to give up our country because of a mere X 
     on a ballot. How can a ballpoint pen fight with a gun?

  I believe someone with that kind of attitude--willing to strip away 
democracy that all of the African nations, European nations, civilized 
nations of the world, and United Nations have agreed is the right of 
the people of Zimbabwe--that kind of attitude deserves the outrage and 
action that it asks for.
  We know that even if Tsvangirai had not withdrawn, there was a 
unanimous consensus that Mugabe would have stolen the election by 
simply rigging the ballots. Once again, this unapologetic dictator 
telegraphed his intentions, saying that only God, not the voters of 
Zimbabwe, could remove him from office.
  Democracy in Zimbabwe is not the only casualty of the news this week. 
Every bit as damaged, frankly, is the moral authority of the 
international community. Make no mistake, Mugabe is thumbing his nose 
at the international community. Daring them, with a sense of complete 
impunity, he is inviolable in whatever thuggery he wants to engage in. 
That is because he has heard the world say ``never again'' again and 
again. Then he has watched the world engage in collective hand-wringing 
as mass atrocities unfold and nothing happens, just like the last time.
  Well, this can't be allowed to continue. Until recently, there was 
little hope of vigorous international response. But Tsvangirai's 
selfless act of courage hopefully now can act as a catalyst for change.
  On Monday, the United Nations Security Council, including China and 
Russia, issued its first condemnation of violence, acknowledging it 
would be impossible for a free and fair election to take place. A day 
later, some of Africa's influential leaders called Mugabe out for the 
savagery of his intentions in this free election process. That has now 
made it, thankfully, more difficult for him to try to disguise the 
violence as a struggle against postcolonial bullying. Yesterday, that 
international community demanded that he postpone the runoff elections 
and negotiate with Tsvangirai.
  Just yesterday, on his 90th birthday, Nelson Mandela lent his voice 
of moral authority to condemn what he called the ``tragic failure of 
leadership in our neighboring Zimbabwe.'' Those are strong words, and I 
think obviously those words--coming from Nelson Mandela, the former 
President of South Africa and really founding President of their 
democracy today--those words diminish Mugabe's legitimacy.
  Obviously, words aren't going to save Zimbabwe's people. The 
international community needs to take action, and it needs to take 
action that sends the regime in Zimbabwe a simple, unequivocal message: 
Mugabe must go. If he thinks only God can remove him and shows such 
extraordinary disrespect

[[Page 13990]]

for the people of his country, clearly the international community has 
a responsibility to make it impossible for him to do anything else but 
go.
  The Senate passed a resolution that I submitted in late April, but, 
frankly, resolutions don't get the job done. They indicate an intent, a 
desire by the Senate, perhaps; they indicate that we are taking notice 
of what is happening. But this is now a matter of life and death. It is 
also a matter of the credibility of the international community.
  If words such as ``never again'' with respect to a holocaust mean 
something or if the lessons of Bosnia, Herzegovina, and the other 
disruptions that we have seen in other parts of the world mean 
anything, then we have to do whatever is necessary to be able to bring 
about a timely end to the violence and a peaceful transition to 
democracy.
  The U.N. Security Council needs to impose, immediately, quickly, 
targeted sanctions on Mugabe. It needs to impose them on his cronies 
and his family. It needs to make it clear to them that they cannot do 
what they are doing with impunity. Freezing bank accounts and imposing 
further travel restrictions are punishments that may lead those around 
Mugabe to begin to reassess their own self-interests, without doing 
harm to the people who have already had harm done to them by this 
dictatorship.
  The real leverage and legitimacy to motivate, mediate, and monitor a 
negotiated solution lies in the heart of Africa itself. The Southern 
Africa Development Community and the African Union have, frankly, too 
often been willing to sit on the sidelines. They need to play a 
sustained and active role in resolving this crisis in a way that 
respects the will of Zimbabwe's people. They need to do that now with 
the help of the European Community, ourselves, and the U.N. itself.
  If Mugabe refuses to step down, both the Southern African Development 
Community and the African Union should suspend Zimbabwe's membership 
immediately and consider applying their own sanctions. I met the other 
day with the ambassadors from Botswana in South Africa and Zambia, and 
they agreed that if Mugabe stays now in a situation where he has 
nullified unilaterally the ability to have an election, he is, in fact, 
an unconstitutional leader of the country. Under the charter of the 
African Union, the Constitution, they would be completely within their 
rights--in fact, it would be imperative that they move to isolate him 
because he no longer would be a legal leader of that country.
  The United States and the European Union need to stand squarely 
alongside African governments in withdrawing recognition from the 
illegitimate Mugabe regime and impose additional sanctions targeting 
his criminal cabal. Until recently, a few African leaders have proven 
to be an obstacle to the crisis. South Africa's President Thabo Mbeki 
is perhaps the most prominent example, sadly. I think many people had a 
much higher expectation of President Mbeki. I have known him and worked 
with him. I regret that in this situation Mr. Mbeki has chosen to 
ignore the warnings of his predecessor and icon and of others. It has 
been some time now that the world has been waiting for Thabo Mbeki in 
South Africa to weigh in squarely with respect to Zimbabwe's future.
  I believe President Mbeki is going to be judged by history for his 
response to this crisis. As the leader of the region's powerhouse in 
the southern African community, the development community's mediator in 
this crisis, President Mbeki still has an opportunity to turn up the 
heat on Mugabe, while also helping facilitate a respectable way out.
  The world cannot afford for President Mbeki to remain out of step 
with other countries in the region, not to mention his own political 
party, in condoning Mugabe's brutality. If he chooses to continue on 
this ineffectual path, then President Mbeki will remain, in fact, 
complicit in the tragic events in Zimbabwe and risk isolating himself 
internationally, as well as in his own country. If Mugabe surrenders 
and a genuinely democratic government, committed to implementing the 
needed economic and political reforms, is formed, Zimbabwe's new leader 
will be left to pick up the pieces of an economy that has been run into 
the ground by Mugabe.
  Annual inflation is reportedly running at over 150,000 percent. 
Unemployment stands at over 80 percent. Hunger grips 4 million people. 
An estimated 3,500 people die each week from hunger, disease, and other 
causes related to grinding poverty. The United States and the 
international community must be prepared to provide a comprehensive, 
economic, and political recovery package that will help the people 
recover from so many years of abuse and neglect.
  Right now, our most urgent challenge is to protect the innocent 
people in Zimbabwe who have been devastated by violence, starvation or 
inadequate access to essential care and services. We need to do that by 
pushing Africa's leaders to restore and expand humanitarian aid, 
deploying a civil protection force to prevent attacks, help victims, 
and pursue vicious criminals. Matching words with action is a great 
challenge of this body, the Senate, and particularly it is the 
responsibility of this administration. This is a test for our 
collective moral authority, our willingness to lead with our values, 
and a test of whether we are going to send the strong, necessary 
message to the people of Zimbabwe, and indeed the people in all of 
Africa, that we support their aspirations for a free and democratic 
country.
  We are losing lives almost every single day in Iraq. We are spending 
$12 billion a month. We invaded that country, purportedly, to bring 
them democracy. We support other countries in the Middle East--Lebanon 
and others--that are struggling to have democracy. We can't be 
regionally selective about where the virtues of democracy make a 
difference. In Africa, where for too long people have been neglected, 
even abandoned--and too many times they believe the rest of the world 
doesn't care--this is an opportunity for us to send a different kind of 
message and make a different kind of difference. I hope they will know 
that the free world will stand with the aspirations of those who are 
willing to risk their lives to have a better future and to actually 
give meaning, through our support, for free elections and democracy 
everywhere in the world.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.


                         Winning in Afghanistan

  Mr. CASEY. Mr. President, today, I rise to convey my growing 
concern--and I think the American people share this concern--on an 
issue that the three major television networks' evening newscasts 
devoted just 46 minutes of coverage to so far this year: The war in 
Afghanistan.
  The White House has become distracted and weighed down by the war in 
Iraq. It has knowingly ignored dealing with the real threats that 
endanger American interests. It is time now to refocus our efforts and 
concentrate on the real front in the war on terror, and it is time to 
get serious about winning in Afghanistan.
  The United States has one overarching priority when it comes to this 
region: to ensure that al-Qaida or any other terrorist group does not 
gain the sanctuary it requires to plot, plan, or train for another 
terrorist attack on American soil or against our allies.
  However, despite some 62,000 NATO troops in Afghanistan, including 
approximately 34,000 American forces, and more than 140,000 Afghan 
troops and police, Taliban and al-Qaida forces have regrouped and 
become stronger over the past 2 years. Finding sanctuary in the 
southern and eastern parts of the country and along the border with 
Pakistan, Taliban and pro-al-Qaida forces are threatening to undermine 
hard-fought international efforts to bring stability and peace to 
Afghanistan.
  The assessment from our top experts in the field is bleak. Retired 
General James L. Jones, who until the summer of 2006 served as the 
supreme allied commander of NATO, found in one report that:

       NATO is not winning in Afghanistan. . . Afghanistan remains 
     a failing state. It could become a failed state.


[[Page 13991]]


  2007 was the deadliest year since the fall of the Taliban, with over 
6,000 people killed. Violence continues in 2008. Secretary Gates 
reported in May that for the first time, more coalition troops were 
killed in a month's fighting in Afghanistan than in Iraq.
  As of this week, at least 451 members of the U.S. military have died 
in Afghanistan, including at least 20 from my home State of 
Pennsylvania. Overall, violence has risen 27 percent in Afghanistan in 
the past year, with a 39-percent increase in attacks in the eastern 
region--where most U.S. troops operate--and a 60-percent surge in 
Helmand province, where the Taliban resurgence has been the greatest. 
Suicide bombings rose to 140 in 2007, compared with 5 between 2001 and 
2005.
  The news in recent days has also been especially troubling. Over the 
weekend, militants operating in sanctuaries in Pakistan launched rocket 
and artillery attacks into Afghanistan killing four Afghan civilians, 
including two children. NATO forces, whose patience has been repeatedly 
tested by escalating insurgent violence along the Afghan-Pakistani 
border, have since retaliated by shelling guerrillas along the 
Pakistani border.
  Last week, hundreds of NATO and Afghan forces engaged in one of their 
biggest battles in years against approximately 400 Taliban fighters in 
Kandahar. These fighters had bombed the main city jail and freed 
hundreds of their comrades. One report says that those who have been 
freed are among the most dangerous.
  These setbacks emerged as the Government Accountability Office, GAO, 
released its latest report concluding that despite spending $16.5 
billion, the Pentagon and State Department still lack a ``sustainable 
strategy'' for developing the Afghan National Security Forces. Only two 
of the Afghan Army's 105 units are fully capable of fulfilling their 
mission. No police unit is fully capable. Today, I sent a letter to 
Secretary Gates and Secretary Rice asking for answers on why our 
progress in building Afghanistan's security forces is so stunted.
  I ask unanimous consent that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    June 26, 2008.
     Hon. Robert M. Gates,
     Secretary, Department of Defense,
     Washington, DC.
     Hon. Condoleezza Rice,
     Secretary, Department of State,
     Washington, DC.
       Secretary Rice and Secretary Gates: I read with great 
     concern the U.S. Government Accountability Office's (GAO) 
     June 2008 report on the Afghan National Security Forces 
     (ANSF). Despite investing approximately $16.5 billion to 
     train and equip the Afghan army and police forces over the 
     past six years, I am alarmed to learn that the United States 
     still lacks a comprehensive interagency plan to build the 
     Afghan army and police. More troubling is the fact that only 
     two of 105 army units and zero police units are considered 
     fully capable of conducting their primary mission. I am 
     writing you today to ask a simple question: why are we so 
     behind in this fundamental task?
       Building sustainable peace requires having a national army 
     and local police that can provide and maintain security once 
     international forces leave. In the case of Afghanistan, this 
     is especially crucial as terrorists could easily reestablish 
     a safe haven. I recognize and appreciate that building 
     capable and effective security forces is a difficult and 
     complex undertaking, especially given the well-documented 
     challenges we face in Afghanistan. However, this task must 
     remain an urgent priority at the highest levels of this 
     Administration. The security services, especially the local 
     uniformed police, are the face of the Afghan Government and 
     will determine the fate of security in Afghanistan.
       I have several specific concerns regarding our efforts to 
     build and sustain the Afghan National Security Forces.
       First, the costs for maintaining the security forces are 
     estimated at approximately $2 billion per year. Given the 
     Afghan government's limited financial capacity, are these 
     costs sustainable or will the international community be 
     supporting the Afghan army and police for the foreseeable 
     future?
       Why is the United States' timeline for completion of a 
     fully capable Afghan police force (2012) different from the 
     benchmark used by the Afghan government and the international 
     community (2010)?
       How are we effectively evaluating the capability of the 
     army and the police? How are the Defense Department's 
     ``capability milestones'' being evaluated? Too often, we are 
     overly concerned with quantitative indices (i.e. number of 
     troops, weapons, uniforms, etc.) rather than taking a 
     qualitative approach. The United Nations Police (UNPOL) has 
     begun developing a Rule of Law Index (ROLIX) to help 
     qualitatively measure the progress of security sector 
     institutions in their work to establish the rule of law that 
     may be of great value here.
       The importance of civilian mentors in building the Afghan 
     security forces cannot be overstated. As the GAO has stated, 
     international peacekeeping efforts in Bosnia, Kosovo, and 
     East Timor have shown that field-based training of local 
     police by international police mentors is critical to the 
     success of establishing professional police forces. Why is 
     there still such a shortage of police mentors? How will this 
     be remedied?
       Equipment shortages plague both the Afghan army and police. 
     Combined Security Transition Command--Afghanistan (CSTC-A) 
     officials have stated that equipment shortages are due to 
     competing U.S. priorities in Iraq. Why are the Afghan 
     security forces facing such massive equipment shortages? Why 
     is this not a major priority for the U.S. government?
       I look forward to reading your report to Congress on our 
     efforts to assist the Government of Afghanistan in increasing 
     the size and capability of the Afghan Security Forces, 
     including assessments of key criteria for measuring the 
     capabilities and readiness of the Afghan Security Forces. I 
     cannot overemphasize how important it is that we get this 
     right and not squander any further opportunities to help 
     build these basic institutions in Afghanistan. The security 
     of the Afghan and American people depends on it.

  Mr. CASEY. The problems plaguing Afghanistan are well documented: a 
resurgence of pro-Taliban forces, a burgeoning narcotics trade, rampant 
government corruption, insufficient resources for reconstruction, 
stalled development, fragile political and security institutions, and 
sheer, mind-numbing poverty. I spent a day in Kabul last month, where I 
had the good fortune of visiting with the chairman of the Armed 
Services Committee, Senator Levin, and even during this short amount of 
time, the magnitude of the challenges we face there was clear.
  But what I also discovered is that despite these awesome challenges, 
there is a strong spirit amongst Afghans and coalition troops to 
persevere in the face of overwhelming odds. Afghans do not want the 
Taliban to come back. They may be disappointed by the results of 
President Karzai's government and broken promises by the international 
community. But they have been fighting for over 30 years for peace and 
stability. And they are not going to stop now. Not when they are this 
close to achieving those goals.
  So it is now up to us to demonstrate true global leadership and 
finish what we started in 2001. This means, as the Afghanistan Study 
Group so aptly said, replacing the ``light'' footprint approach this 
administration has taken with respect to Afghanistan with the ``right'' 
footprint approach.
  There is a common sentiment here in Washington that what is needed 
the most in Afghanistan is resources. If only we had more money, more 
troops, and more trainers on the ground, we would see more positive 
results.
  It is true that we need to devote more resources to Afghanistan. That 
is why I was pleased to see that the recent international donors 
conference in Paris secured about $20 billion in commitments from more 
than 60 countries and international institutions, including a previous 
pledge of $10.2 billion from the United States. And that is why I 
applaud Secretary Gates' and Secretary Rice's repeated efforts in 
Brussels and other European capitals to secure additional Allied troops 
for the coalition in Afghanistan, troops that are free to wage combat 
where they are needed. We do need more to accomplish our mission.
  But I do not want to engage in the transatlantic blame-game of which 
country could be doing more because it glosses over the underlying 
fault lines that have plagued our strategy in Afghanistan from day one. 
Ultimately, the real problem is not just one of troops or money or 
resources.
  Rather, our mission in Afghanistan is in jeopardy because we still 
have not defined our long-term U.S. strategic objective in Afghanistan 
and, by implication, across South Asia.
  We have not linked our relevant military security operations to a 
political strategy, and, most importantly, we have not made a long-term 
strategic

[[Page 13992]]

commitment to Afghanistan in the eyes of the Afghan people. We have 
decoupled Pakistan from Afghanistan instead of formulating a strategy 
that would address the inherent and historic relationship between the 
two nations.
  It is time to reformulate our basic fundamentals on how to approach 
this war. First and foremost, any strategy for turning the tide in 
Afghanistan must incorporate what is happening in Pakistan. To date, 
this administration has not fully appreciated Pakistan's security 
paranoia and the duplicity it has generated. Fueled by a credible fear 
that the U.S. will once again leave Pakistan in the lurch, as it did in 
the seventies and nineties, credible evidence exists that Pakistani 
security forces have renewed their ties to the Taliban to preserve 
their options.
  We must redraw our map of this war to include the border region 
between Afghanistan and Pakistan. U.S. Army COL Thomas Lynch, a leading 
Afghan expert, has declared:

       The future of Afghanistan can be lost in Afghanistan, but 
     it can only be won in Pakistan.

  GEN Dan McNeill, who briefed both Senator Levin and me when we were 
in Afghanistan--he recently left after 16 months of service commanding 
NATO's international security force--warned that success in Afghanistan 
would be impossible without a more robust military campaign against 
insurgent havens in Pakistan.
  Second, we must take advantage of the opportunity to work with Afghan 
security forces. They remain nascent and fragile at this moment, but 
they have significant potential with the proper investment of training, 
manpower, and equipment. As our military leaders in Afghanistan told me 
last month, the Afghan army is made up of proud soldiers who want to 
fight for their nation and who have a can-do spirit. But we must 
provide them the tools they need.
  We cannot underestimate the importance of properly training the 
Afghan security forces. Last week, a GAO report said:

       Without capable and self-sustaining Afghan army and police 
     forces, terrorists could again create a safe haven in 
     Afghanistan and jeopardize efforts by the United States and 
     international community to develop the country.

  In particular, as Senator Levin and I recommended upon our return 
from Afghanistan, we need to assist the Afghan army to take over 
responsibility for border security functions in the territory adjoining 
Pakistan. Today, a lightly armed Afghan border police patrols this 
vital region, and this border police remains underequipped and 
underarmed. This is unacceptable. The United States and NATO allies 
should work together with the Afghan army to assume that critical 
national security function.
  Finally, our strategy in both Afghanistan and Pakistan must focus on 
sustained development assistance. Former U.S. commander, GEN Karl 
Eikenberry, used to say, ``The Taliban begins where the roads end.''
  Despite a massive influx of money into Afghanistan, we are not moving 
quickly enough to demonstrate to the Afghan people concrete results 
that improve their lives--building roads, schools, and hospitals.
  We need to decouple our military activities from reconstruction 
assistance and bring our development experts from the U.S. Agency for 
International Development to the table where they belong. Our 
development approach thus far has overrelied on private contractors 
whose goals, missions, and timelines do not correspond with our own.
  I have one more paragraph. We have to recognize that this battle 
against extremism is not going to be won in 2 or 4 or 10 years. It is 
not going to be won on the military battlefield. It is a generational 
challenge, a battle for the ages that will require significant 
resources in basic human development. Extremists exploit poverty, 
ignorance, and anger. The task before us is to defuse the igniters of 
that anger before they explode in the form of another failed state in 
Afghanistan or a terrorist attack in the United States.
  We have a great history in this country of helping rebuild societies 
from ashes. It is time for a new Marshall Plan for Afghanistan, one 
that links the necessary resources with the right institutional 
expertise. It is time for us to do what we do best in the world.
  In concluding, I go back to the work of the 9/11 Commission. In 
analyzing the many unexplored connections that led to that fateful day, 
September 11, 2001, the independent, bipartisan 9/11 Commission found:

       The most important failure was one of imagination. We do 
     not believe leaders understood the gravity of the threat.

  That is what was said after 9/11. The same can be said today. Our 
brave men and women, the troops and diplomats who serve every day in 
Afghanistan get the picture. They see what this administration chooses 
to ignore. Failure in Afghanistan is not an option. Our national 
security, the safety of our families here, depends on what we do in 
Afghanistan, and preventing another terrorist attack here depends on 
what happens in Afghanistan and all of South Asia. We cannot fail in 
Afghanistan.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.


                             Food vs. Fuel

  Mr. GRASSLEY. Mr. President, for the past few weeks, I have been 
leading an effort to dispel the myths surrounding the impact of 
biofuels policies on our food prices. You may remember that back on May 
15, I came to the Senate floor to announce to my colleagues that the 
campaign to smear ethanol is a well-funded and seemingly well-
coordinated campaign. It is being led by none other than the Grocery 
Manufacturers Association.
  In the weeks since that floor statement, I have been using every 
opportunity I can to beat back this smear campaign and inject the facts 
into the debate.
  Biofuels are being scapegoated for rising wheat prices, even though 
the 2007 crop was the largest planted in 4 years. Biofuels are being 
blamed for the increased price of products such as rice and bananas, 
which have no correlation to corn production or our biofuels policies.
  According to economists across the administration, biofuels have 
caused a tiny fraction of the increase in global and domestic food 
prices. They are also responsible for only a small portion of even the 
increase in the price of corn.
  The fact is, the increased cost of oil is the biggest driver behind 
the increased price of food. In other words, energy and how energy fits 
into the food chain and the dramatic increase in the price of oil to 
$130, $140 a barrel is the biggest driver in the increased price of 
food.
  But we also have drought in wheat-producing countries, such as 
Australia last year, adding to this increase. We have also had 
increased demand by the middle class of China and India for meats in 
their diet to a greater extent than ever before. Yet the grocery 
manufacturers and their association have focused the entire effort on 
ethanol. They see ethanol and renewable fuels as the root cause and 
most vulnerable to their attack.
  Even with oil at $135 a barrel, they see their victory in undermining 
biofuels policies. It is important to note that biofuels are actually 
working to lower the price of gasoline at the pump. In fact, in Iowa, 
you can buy gasoline with biofuels in it for about 13 cents a gallon 
cheaper than you can 100 percent gasoline.
  So while high energy costs are driving increases in food prices, the 
grocery manufacturers would have you believe that the solution is less 
energy supply. That is counterintuitive.
  The Grocery Manufacturers Association does not seem to care much 
about facts. Their criticism and talking points are not based on sound 
science, sound economics, or even common sense.
  While biofuels are easy to blame, it is intellectually dishonest to 
make these claims. But maybe intellectual dishonesty does not make any 
difference to the Grocery Manufacturers Association.
  They have indicated that they fully support advanced biofuels from 
biomass rather than food crops, and

[[Page 13993]]

maybe with ethanol we think of that as cellulosic ethanol, and of 
course, we are all supportive of efforts to promote the next generation 
of biofuels. But undercutting the current industry is not the way to 
get fuels into that second generation coming from biomass instead of 
from grain.
  Those who are determined to pull the rug out from under today's 
biofuels should know that the next generation will not exist if the 
current generation is undermined.
  I hope the Grocery Manufacturers Association has taken notice that I 
am not going to sit quietly while they try to undermine 30 years of 
public policy. In other words, 30 years ago, we decided in this 
Congress we needed more emphasis on renewable fuels because God only 
made so much fossil fuel. So you have to get to what you are going to 
do postpetroleum, and it is renewables. Of course, conservation is the 
other part of that as well.
  So 30 years ago, we started out with incentives for biofuels. It is 
still not a mature industry, but it is maturing very quickly. If you 
cut the legs out from under that industry right now and the agriculture 
that supports it and the jobs in rural America that do the work, you 
are not going to have the next generation.
  I sometimes think, even though I blame the Grocery Manufacturers 
Association because they announced this campaign of scapegoating 
ethanol, that somehow it is not just the Grocery Manufacturers 
Association. I cannot help but think that big oil is back there 
applauding everything the grocery manufacturers are doing.
  Until now, in fact, the only significant opposition to developing 
renewable fuels over the past 30 years has come from big oil. I was not 
afraid to stand up to big oil over the last 30 years, and I am not 
going to stand by while the Grocery Manufacturers Association, with 
their smear tactics, destroy what the American people have been calling 
for--an industry so we can produce renewable fuels. And because of our 
national defense, the stakes are too high.
  The Grocery Manufacturers Association's efforts, if successful, will 
raise prices at the pump in Iowa. I said 13 cents higher if you have 
100 percent gasoline instead of 10 percent ethanol and 90 percent 
gasoline. And in the process, we would be increasing our dependence on 
foreign oil. Why not keep the money in the United States instead of 
spending $130 a barrel and sending it over to the Arabs where they will 
allow terrorists to train against us? Is risking our national and 
economic security worth the bottom line of a few multimillion-dollar 
food companies? Don't be fooled. Their campaign is not altruistic. It 
came directly from their mouths that this campaign is about their 
``bottom line.''
  Where is the outrage? American consumers need to know that a few big 
food companies are jeopardizing our efforts toward energy independence 
so that they can raise the price of food and increase their profits. 
They want to do away with this industry and, in the process, as Iowa 
State University tells us, without ethanol, gasoline would be on 
average about 30 cents higher per gallon. If the increased price of 
energy goes up, and energy is the cause for about one-third of the 
increase in the cost of food, then obviously food is going to go yet 
higher.
  We are on a path, from the standpoint of national security and 
economic security, to reduce our dependence on oil from the likes of 
Venezuela and Iran. The Grocery Manufacturers Association wants to put 
the brakes on our efforts toward energy independence. They apparently 
prefer putting our economic security in the hands of crazy people, such 
as the President of Venezuela and the President of Iran, rather than 
putting their economic security in the hands of American farmers 
growing renewable fuels.
  The Grocery Manufacturers Association, through their president and 
CEO, Cal Dooley, requested to have a meeting with me to discuss the 
impact of food-to-fuel policies. Given the association's objectives to 
``obliterate whatever intellectual justification might still exist for 
their corn-based ethanol among policy elites''--and that is what their 
public relations firm said about ethanol--I was pleased to accept 
former Congressman Dooley's efforts to talk to me about it.
  U.S. Secretary of Agriculture Ed Schafer was also kind enough to 
accept my offer to participate in that meeting. However, I thought to 
have a meaningful discussion on their campaign to smear ethanol and my 
justification for renewable fuels, and so I requested the attendance of 
chief executives of 15 of the GMA's member companies. I thought it 
would be important for the CEOs of these companies, who are members of 
the association, to speak for themselves about the impact biofuel 
policies are having on their businesses. The companies themselves are 
in a much better position to explain why they believe the anti-ethanol 
campaign they have underwritten would be warranted. So I invited the 
CEOs of Campbell's Soup, Del Monte Foods, Lakeside Foods, Sarah Lee, 
Dean Foods, Hormel Foods, Procter & Gamble, Kellogg's, Land O'Lakes, 
ConAgra Foods, General Mills, Kraft, Ralston Foods, Cargill, and Archer 
Daniels Midland to come to the meeting. I expected to have many of the 
CEOs jump at the opportunity to tell me I am wrong. I thought I would 
hear firsthand how the increase in corn prices was affecting the bottom 
line of General Mills or Kellogg's or Kraft.
  Many of the CEOs I invited are members of that trade association's 
board of directors. Naturally, I expected the CEOs to want to defend 
their association's campaigns and its tactics. Unfortunately, that is 
not what I got. Only one CEO--Chris Policinski of Land O'Lakes--agreed 
to attend, and Cargill offered a senior executive in place of their 
CEO. But of 15 companies, only one CEO thought it was worth their time 
to come to Washington and visit with me and Secretary of Agriculture 
Schafer about their trade association's campaign to smear ethanol. So I 
had no choice but to cancel the meeting.
  They have hired a high-priced public relations firm to coordinate 
their campaign. One would assume they believe in the policies they are 
promoting. So why wouldn't they take advantage of this opportunity to 
convince Secretary Schafer and me that we have it all wrong? This is 
clearly a high priority for them. They seem to have invested a great 
deal in it, and a lot of dollars in it. Why wouldn't they attend the 
meeting? Don't they believe in what they are doing?
  It appears all they want to do is to give a thumbs-up to their trade 
association's hiring of expensive PR firms to do their dirty work, 
instead of entering into real dialog with those of us who feel strongly 
that this country needs a policy of renewable energy, and more 
renewable energy every day.
  I don't know whether GMA encouraged these CEOs not to attend. My 
colleagues might find it amusing, however, that two companies declined 
my invitation with a form letter. The letter from Mr. Conant, CEO of 
Campbell's, and the letter from Mr. Mackay, CEO of Kellogg's, used the 
same text declining my invitation. Now isn't that something? CEOs of 
two major companies coming up with exactly the same words in letters 
signed by them to decline. I don't know who wrote it first, but I might 
expect CEOs of such primary companies to be a little more original in 
their communication with me. It makes one wonder who wrote the letter.
  Mr. President, I ask unanimous consent to have printed in the Record 
at the end of my remarks these two letters.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. GRASSLEY. Mr. President, I am going to keep pounding home the 
facts behind the relationship between food prices and biofuels, because 
it is not supported by economics, it is not supported by common sense, 
and it is not supported by sound science. The fact is, biofuels are 
increasing our national security, biofuels are helping our balance of 
trade, and they are reducing our dependence on Middle East oil and the 
whims of big oil. Every barrel we use of biofuels is $135 not going to 
some foreign land where they train terrorists to kill Americans.

[[Page 13994]]

  So it is time we cleared the air, it is time we looked at the facts, 
and it is time we recognize, once again, that everything about our 
domestic renewable fuel industry is good, good, good. I emphasize it is 
good for the environment--less CO2 in the air--it is good 
for good jobs in rural America, because a lot of these ethanol 
refineries are in rural America, where we never thought we would have 
good-paying jobs, and a lot of these refineries respond to another 
problem--we don't have enough oil refineries in this country. In a 
sense, every ethanol plant, every biofuels plant is a refinery. It is 
good for our national security, which I think I have made very clear, 
and it is good for agriculture. It is good that we don't have 
Government supporting surplus grains. We are not having taxpayers' 
money go out to farmers. Farmers are getting their money from the 
marketplace now that prices are higher.
  So I don't know how many times I have to say it, but there are no 
negatives about biofuels and everything about them is good, good, good.

                               Exhibit 1


                                        Campbell Soup Company,

                                        Camden, NJ, June 18, 2008.
     Hon. Charles Grassley,
     U.S. Senate,
     Washington, DC.
       Dear Senator: Thank you for your invitation to meet 
     regarding the relationship between US biofuels policies and 
     their impact on commodity and food prices. Regrettably, I am 
     unable to attend.
       In my stead, however, the Grocery Manufacturers Association 
     and a number of other organizations with similar concerns 
     plan to participate. I also unders1and GMA will extend to you 
     an invitation to attend the November meeting of the GMA Board 
     of Directors, where we can have a full and productive 
     discussion regarding our nation's energy policy.
       As you know, GMA is working with many farm organizations, 
     including the National Turkey Federation, the National 
     Chicken Council, and the National Cattleman's Beef 
     Association, to improve our federal food-to-fuel policies by 
     accelerating the development of biofuels made from crop 
     wastes and other energy feedstocks. Many experts have 
     concluded that cellulosic biofuels hold enormous promise and 
     will not pit our energy needs against the needs of food 
     companies, livestock farmers and consumers. The Campbell Soup 
     Company strongly supports biofuel policies that boost the 
     income of farmers and simultaneously meet the needs of food 
     companies and consumers.
       In light of growing prices for corn and other commodities, 
     we support policies that will reduce the use of food and feed 
     crops to produce fuels. Although there are many factors 
     contributing to rising commodity prices, federal policies 
     that divert one-third of the U.S. corn crop is the only 
     factor legislators have the power to change. Recent studies 
     by the World Bank, the United Nations, and America's leading 
     agricultural think tanks have linked rising commodity prices 
     to these federal food-to-fuel policies.
       Again, I thank you for your kind invitation to join you and 
     Secretary Schaffer to discuss these concerns and regret that 
     I am unable to attend. If appropriate, I would be happy to 
     offer Kelly Johnston, Campbell's Vice President--Government 
     Affairs, whom you know, to represent our company. The 
     Campbell Soup Company looks forward to working with you and 
     all interested parties to craft sensible and sustainable 
     energy policy.
           Sincerely,
                                                      D.R. Conant,
     President and Chief Executive Officer.
                                  ____



                                              Kellogg Company,

                                  Battle Creek, MI, June 17, 2008.
     Charles E. Grassley
     U.S. Senator,
     Washington, DC.
       Dear Senator Grassley: Kellogg Company strongly supports 
     biofuel policies that boost the income of farmers and 
     simultaneously meet the needs of food companies and 
     consumers. I sincerely appreciate your invitation to meet 
     regarding these policies on June 24th, Regrettably, I am 
     unable to attend.
       In my stead, however, the Grocery Manufacturers Association 
     and a number of other organizations with similar concerns 
     plan to participate. I also understand GMA will extend to you 
     an invitation to attend the November meeting of the GMA Board 
     of Directors, where we can have a full and productive 
     discussion regarding our nation's energy policy.
       As you know, GMA is working with many farm organizations, 
     including the National Turkey Federation, the National 
     Chicken Council, and the National Cattleman's Beef 
     Association, to improve our federal food-to-fuel policies by 
     accelerating the development of biofuels made from crop 
     wastes and other energy feedstocks. Many experts have 
     concluded that cellulosic biofuels hold enormous promise and 
     will not pit our energy needs against the needs of food 
     companies, livestock farmers and consumers.
       In light of growing prices for corn and other commodities, 
     we support policies that will reduce the use of food and feed 
     crops to produce fuels. Although there are many factors 
     contributing to rising commodity prices, federal policies 
     that divert one-third of the U.S. corn crop is the only 
     factor legislators have the power to change. Recent studies 
     by the World Bank, the United Nations, and America's leading 
     agricultural think tanks have linked rising commodity prices 
     to these federal food-to-fuel policies.
       Again, I thank you for your kind invitation to join you and 
     Secretary Schaffer to discuss these concerns and regret that 
     I am unable to attend. Kellogg Company looks forward to 
     working with you and all interested parties to craft sensible 
     and sustainable energy policy.
           Sincerely,

                                            A.D. David MacKay,

                                                        President,
                                          Chief Executive Officer.

  Mr. GRASSLEY. Mr. President, I yield the floor, and I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MURKOWSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the time until 2:15 is under the control of 
the junior Senator from Alaska or her designee.
  The Senator from Alaska.


                           Alaskan Statehood

  Ms. MURKOWSKI. Mr. President, today is an opportunity for us in the 
next 45 minutes to talk about a celebration. We have had some pretty 
serious business under discussion here on the Senate Floor, and today I 
and my colleague, Senator Stevens, joined by others, rise to celebrate 
the 50th anniversary of the Senate passage of the Alaska Statehood Act, 
the act which eventually conveyed statehood upon the great State of 
Alaska after a fight for equal rights and representation that lasted 
literally decades.
  After a long and contentious battle, both in Congress and across the 
country, the Senate passed the Alaska Statehood Act 50 years ago, on 
June 30, by a vote of 64 to 20. The act was signed into law 7 days 
later by President Eisenhower, and Alaska officially became a State on 
January 3, 1959. This was the headline in the Anchorage Daily News 
announcing, ``We're In.'' Our territorial Governor, Mike Stepovich, 
President Eisenhower, and Secretary Seaton are in this photo that we 
look to in our State's very young history with great fondness.
  This year across the State, there will be celebrations all over put 
on by communities, by clubs, by businesses, by the State government. To 
help kick off this celebration, I would like to briefly remember a 
little bit of the history of a very rough journey toward statehood.
  The territory of Alaska was bought from Russia in 1867. I know many 
students, when they are looking at their history books, learn that it 
was dubbed ``Seward's Folly.'' It was World War II and the Cold War 
that really transformed the face of Alaska, however. Having a 
strategically critical location for both wars, Alaska saw a large 
increase in Federal money and population in the 1930s and the 1940s.
  While the aspiration for statehood had existed for many years and 
though Alaska had a delegate to Congress since 1906, it was during this 
time period that a serious and motivated and modern statehood movement 
rose up and captured the attention of Alaskans across the State.
  The Alaska Statehood Committee was formed in 1949. This committee of 
11 Alaskans was bipartisan. No more than six could belong to the same 
party, and at least two members had to come from each of the four 
judicial districts Alaska had at the time. They were given the task of 
publicizing and educating the public on statehood, both in Alaska and 
nationally, as well as framing a State constitution.
  As early as 1946, though, 3 years before the Statehood Committee was 
formed, there was a large majority of Americans who were already very 
supportive of Alaskan statehood. A Gallup

[[Page 13995]]

Poll that year indicated that 64 percent of Americans were in favor of 
statehood, with only 12 percent opposed. The percentage of supportive 
Americans grew to 81 percent by 1950. But even then, nearly a decade 
still remained in what became a bitter battle against special 
interests.
  The wealthy salmon canning industry was the primary lobbying group 
that opposed statehood at the time. The salmon canners would put fish 
traps at the mouth of some of Alaska's largest rivers, and they caught 
nearly 30 percent of Alaska's salmon every year, sending the yearly 
salmon catch plummeting from 924 million pounds to 360 million pounds 
over a 20-year period. Alaska was in a tough spot. They were powerless 
to resist. With 99 percent of the territory's land owned by the Federal 
Government and with very little control over resource policy, the 
industry was pretty much free to devastate one of the State's most 
valuable renewable resources, and that was our Alaskan salmon.
  This desire for a say in our own affairs only grew the intense desire 
of Alaskans to attain statehood for themselves. The newspaper the New 
York Journal-American summed up the situation this way:

       Alaska wants statehood with the fervor men and women give 
     to a transcendent cause. An overwhelming number of men and 
     women voters in the United States want statehood for Alaska. 
     This Nation needs Alaskan statehood to advance her defense, 
     sustain her security, and discharge her deep moral 
     obligation.

  In 1950, after years of thwarted attempts to bring an Alaska 
statehood bill to the floor of either Chamber of Congress despite the 
strong support of President Truman, a bill actually got a floor vote. 
It passed the House of Representatives, but it failed over here in the 
Senate.
  Frustrated by repeated legislative defeats, Alaskans decided to write 
a State constitution. This was done in 1955. We decided to do it to 
show the country that we were politically mature and genuinely ready 
for statehood.
  After a 75-day Constitutional Convention at the University of Alaska 
Fairbanks, a constitution was adopted by the delegates and ratified by 
Alaskans. It was later described by the National Municipal League as 
``one of the best, if not the best state constitutions ever written.''
  The way it dealt with natural resources was particularly distinctive 
and ingenious. The State's natural resources were viewed as a public 
trust and were required to be developed for ``maximum use consistent 
with the public interest [and] for the maximum benefit of its people.'' 
Development based on ``sustainable yield'' was constitutionally 
mandated. To this day, the State continues to operate on this principle 
in our fisheries, minerals, fossil fuel development, and our timber. 
One example of the results of this policy is that Alaska is the only 
region in the United States that has no overfished fish stocks.
  Two years after the constitution was ratified and 50 years ago, on 
May 28, the House of Representatives voted on the bill that would 
eventually confer statehood upon Alaska. The bill passed the House 210 
to 166. The Senate passed it 64 to 20, and then President Eisenhower 
signed it into law. Over 15 years passed between April 2, 1943, when 
the first bill was introduced, and June 30, 1958, when the final bill 
was passed. We were officially a State on January 3, 1959.
  I have been perusing the Congressional Record to kind of get a sense 
of the Senate debate at the time, the debate that preceded Alaska's 
entry into the American Union. I am a born and raised Alaskan. I have 
found the record absolutely fascinating. It includes enthusiastic and 
very passionate arguments in favor of statehood but also countered by 
lawmakers who saw Alaska's entry into the Union as being a huge 
mistake. There is even an occasional Communist threat reference, a 
reminder that this debate occurred against the backdrop of the Cold 
War.
  Some of the arguments against statehood included the fact that Alaska 
was not contiguous with the rest of the United States; Alaska was not 
sufficiently developed economically or politically to be ready for 
statehood. There was also a reference to the fact that Alaska doesn't 
produce enough agriculture.
  There were provisions granting Federal land to the State. They 
alleged it was a huge Federal giveaway, but keep in mind that the 
Federal Government still owns over half of the State of Alaska. But 
really the argument centered around the concern that Alaska would be a 
huge burden on the Federal Government financially.
  Senator Richard Neuberger of Oregon, who was a supporter and was 
presiding over the Senate during the historic Alaska statehood rollcall 
vote, said that Alaska statehood would afford the United States the 
opportunity to show that ``we practice what we preach.''
  Neuberger said:

       For decades we have preached democracy to the rest of the 
     world, yet we have denied full self-government to our vast 
     outposts to the north, despite many assurances that such 
     would not be the case.

  He continued on by saying:

       The voice of America may talk of democracy, but its message 
     will ring hollowly through the rest of the Free World if 
     America fails to practice democracy. In the crucible of world 
     opinion, we shall be tested by deeds and not words. Statehood 
     for Alaska will be a tangible deed.

  Among Alaska's greatest friends in the Senate were both Senators from 
Washington State, Henry ``Scoop'' Jackson and Warren Magnuson. Jackson 
told his colleagues that the time was ``past due'' for the admission of 
Alaska to the Union, while Magnuson said it in another way. He said:

       Alaska has sat impatiently in the anteroom of history for 
     42 years.

  These comments represent only a fraction of the Alaska statehood 
debate which began years before the last frontier became the 49th 
State, but still they offer some valuable perspective on the challenges 
and obstacles our forefathers faced on the road to statehood.
  A few of my colleagues will be joining us over the next half hour or 
so to help remember and reenact the debate that occurred 50 years ago. 
I am grateful for their willingness to join me in celebrating our 50th 
anniversary of the 49th star on the flag.
  I mentioned that Alaska has been referred to as ``Seward's Folly.'' I 
don't think many people know that we also were referred to as 
``Icebergia,'' obviously a reference to the colder environment up 
there. But Alaska has since made incredibly significant contributions 
to our great Nation. I do not think anyone considers Alaska a folly. We 
provide 55 percent of America's seafood, we attracted 1.5 million 
tourists last summer to the State, and we have been a stable domestic 
supplier of U.S. oil needs for the past 30 years.
  Alaska is proud to be ``the Great Land'' in the greatest Nation in 
the world. I am privileged to represent its people here in the United 
States.
  With that, I yield the floor to my senior colleague, Senator Stevens.
  The PRESIDING OFFICER (Mr. Salazar). The senior Senator from Alaska 
is recognized.
  Mr. STEVENS. I believe I have been allocated 20 minutes to speak.
  The PRESIDING OFFICER. There is no previous order.
  Mr. STEVENS. Mr. President, that photograph brings back many memories 
to me. The gentleman on the right was my employer at the time, the 
Secretary of Interior, Fred Seaton. As a matter of fact, I was standing 
right behind him at the time that photograph was taken.
  I remember the debate here on the floor of the Senate on the Alaska 
statehood bill. On the day the vote was taken, I was standing up where 
those people are right now in the Press Gallery. That was unheard of, 
but I was standing beside my good friend who was the editor of the 
Fairbanks Daily News-Miner, C.W. ``Bill'' Snedden. He had bought this 
newspaper. He purchased it a few years before we got statehood, and he 
turned its policy around to support statehood.
  One of the things he created was a cartoon they put on the front page 
of the paper every day. It was a small thing down at the bottom. This 
was Sourdough Jack. Sourdough Jack had wise sayings every day. This one 
day he published this, it was:


[[Page 13996]]

       All of the valid arguments against Alaska statehood are 
     listed in full on pages 2, 3, and 4.

  All blank. That was the attitude of Alaskans. There really was no 
valid opposition to our becoming a State.
  However, I think the Senate should know what the Senate did then and 
the role of the Senate in Alaska becoming a State--and Hawaii, too, 
later the same year.
  Our delegate at that time in the House of Representatives, Democrat 
Bob Bartlett, discovered an old rule in the House that permitted 
matters of constitutional import to be taken to the floor of the House 
and worked on solely by the Committee of the Whole of the House, 
bypassing the Rules Committee. So after having tried since 1913 into 
1958 to get statehood, our delegate made the motion to bypass the Rules 
Committee. With a vote of the House, they approved going right to the 
floor with the Alaska statehood bill. That was an achievement no one 
could even have expected. But it showed the power of the press at that 
time. The American press took up the cudgel, they took up the sword to 
have both Alaska and Hawaii become States. It was really great to see 
Hearst and Luce and so many of the leaders of the newspaper profession 
joined together to urge the American people to swell up and demand 
these bills be passed.
  As the bill passed the House and came over here, there was a great 
problem because the Rules Committee chairman made it very plain that if 
there was an attempt to have a conference committee on this bill 
admitting Alaska to the Union, he would see to it that it would never 
see the light of day in the House. So our job at that time was to get 
the statehood bill passed by the Senate without one single change--not 
a comma, no paragraphs, nothing altered, and nothing changed.
  I think the Senate today would appreciate that problem because those 
were the days of the true filibusters. Those were the days before the 
current rule on cloture. At that time, it took two-thirds to stop 
debate. It was something to behold, sitting in the gallery as I did, to 
see the power of Senator Scoop Jackson on the one hand and Senator 
Norris Cotton on the other--Norris Cotton being a Republican from New 
Hampshire, Scoop Jackson being a Democrat from Washington--guide that 
bill through the Senate and overcome the filibuster that was led by my 
late good friend Strom Thurmond.
  It is a total tribute to the democracy we represent that this 
enormous act of admitting a State--there had not been another State 
admitted since Arizona had been admitted in 1913. Here we were in a 
post-World War II period, when part of the momentum for our getting 
statehood was, in fact, the people who had served in the Armed Forces 
and were stationed in Hawaii or in Alaska--many of them had been 
stationed in the territories and went back to the territories after 
they were released from service after we won World War II.
  But this day, the day the Senate finally passed this bill, was a 
unique one.
  The galleries were full. That is one reason I was up in the press 
gallery rather than over in the normal gallery for visitors. But, very 
clearly, we knew it was going to be a difficult day for us. We had 
counted votes and all of the rest trying to predict what was going to 
happen. But when it happened, I want the Senate to know, this was 
something significant that happened. The people in that photograph, 
except for the President, gathered right out in the reception room of 
the Senate. Then we went to--Republican and Democratic alike--members 
and people from the gallery, we went to the then-chapel of the Senate, 
and we offered a prayer to thank the people who had given us this new 
right.
  It was one of the most significant days that I can remember in my 
life. I am proud of my colleague who has brought upon the Senate the 
idea of having some remembrance here of what went on in those days. Our 
State has become a State. We have developed our economy to be one of 
the great producers of natural resources. Many people have challenged 
that, and we are currently blocked in exploring the Outer Continental 
Shelf off our State. Two-thirds of the Continental Shelf of the United 
States is off our State.
  Every well so far that has been tried has been blocked. We have been 
blocked now for 25 years at getting the right. We thought we achieved 
it in the 1980 act which set aside 1.5 million acres of the Arctic for 
oil and gas exploration and development.
  I hope we will come to a time where we will realize the errors of our 
past and we will find that the day will come when the Arctic Coastal 
Plain will be opened. Once it is, the Alaska oil pipeline, which was 
built to carry 2.1 million barrels a day--it is carrying less than 
700,000 barrels a day now--will be full. Because we know from 3-D 
seismic and from the well that was drilled, there is no question that 
there is oil on the Coastal Plain that some people call ANWR. But the 
development of that plain will bring us, both the Federal Government 
and the State, billions of dollars that we want to dedicate to the 
development of renewable and alternative resources.
  For instance, we have half the coal of the United States. We should 
have mine-mouth conversion for coal gasification, coal liquefaction.
  We have those magnificent five military bases in our State. They all 
need lots of energy. We have to find some way to assure they will have 
energy for our national defense. I think we are proceeding to the point 
that the American people know what we must have; that is, we must have 
the right to proceed to develop our resources.
  Fred Seaton, whose picture was photographed there as the Secretary of 
the Interior, was an appointed Senator from the State of Nebraska. He 
made only one statement on the floor of the Senate. He was absolutely 
convinced that Alaska should become a State.
  Let me read a portion of what he said:

       Alaska is as deserving of statehood, and as ready for 
     statehood, and as greatly in need of statehood, to come into 
     her own, as were any of the present States when it was their 
     turn before the bar of the Senate.
       Let us deal with the American citizens in Alaska no less 
     generously in this manner than were our forbearers dealt with 
     in their respective territories. Alaska, like all other 
     States will keep the faith and carry the grand old United 
     States tradition. Alaska's star has for too long been denied 
     its rightful place on the glorious flag of the United States 
     of America.

  We, as Alaskans, are proud of what we have done. From the days we 
became a part of the United States in 1867 when Secretary Seward led 
the negotiations to buy the Territory of Alaska from Russia for a mere 
2 cents an acre, we have contributed substantially to the income, the 
resources, and to the well-being of our people.
  We are the northern territory for the defense of this country. Our 
national missile defense site at Fort Greely, AK, has the capability of 
defending the whole United States, 360 degrees around, from Maine to 
Florida, from the tip of California to the tip of Alaska. That national 
missile defense site defends America.
  We have committed ourselves to support those in uniform who defend 
this country and defend our way of life. So I think this is a wonderful 
thing to celebrate, the fact that the Senate took the action it did in 
approving the basic approach of the House to take the initiative to 
bring Alaska into the Union.
  We were followed by our great and dear friends from Hawaii. And many 
people wonder why we are so close, those of us from Hawaii and Alaska. 
We represent offshore States. When we got here, many of the laws that 
applied to the 48 States did not apply to us. The effect of our working 
together has been that Hawaii has four Senators and Alaska has four 
Senators because we have a lot in common. We do not vote together on 
issues of national issues, that is not a position. But when it comes to 
the rights of our States, we have shown what can happen in the Congress 
of the United States when two delegations say: We are together. And as 
new States, we deserve to be recognized and treated as equal partners 
in this Union.
  I am proud to speak of the alliance that we have with Senators Inouye 
and Akaka--that has been achieved in my almost 40 years here.

[[Page 13997]]

  As I have said, Mr. President, for many days in June of 1958 I 
watched from the gallery as the Senate debated and finally passed the 
Alaska Statehood Act. That vote marked the end of our long and 
difficult road to self-determination.
  Alaska was my home. I had been U.S. Attorney in Fairbanks. Working in 
Washington as Assistant to the Secretary of the Interior, Fred Seaton, 
I became involved in the battle for statehood.
  Some Americans believed Alaska was too remote and too politically 
immature to become a full partner in the Union.
  Alaskans worked tirelessly to show the American people and Congress 
that the Union would benefit from Alaskan statehood. My friends, Bill 
Snedden, publisher of the Fairbanks Daily News Miner, and Bob Atwood, 
publisher of the Anchorage Times, wrote to almost every paper in the 
U.S. setting forth our positions for statehood and requesting support 
for our efforts.
  Alaskans reached out to their friends and family in the lower 48 
asking them to write their Senators requesting they support statehood.
  Fifty-five men and women met at our constitutional convention in 
Fairbanks and devoted themselves to creating what has been called ``the 
best state constitution ever written,'' proving Alaskans had the 
political maturity to join our union.
  I worked with the Secretary of the Interior, Fred Seaton, and members 
of the Eisenhower administration to explain the President's support of 
Alaska being a State.
  Six years earlier Secretary Seaton had been a Senator from Nebraska. 
He served for only 1 year being appointed to fill the vacancy caused by 
the death of Senator Wherry. In his first address to this body, Senator 
Seaton spoke strongly in support of statehood for Alaska, recalling the 
doubts and objections raised when his own State of Nebraska was 
struggling for statehood.
  Senator Seaton said:

       Alaska is as deserving of statehood, and as ready for 
     statehood, and as greatly in need of statehood, to come into 
     her own, as were any of the present States when it was their 
     turn before the bar of the Senate.
       Let us deal with the American citizens in Alaska no less 
     generously in this matter than were our forbearers dealt with 
     in their respective territories. Alaska, like all the other 
     States, will keep the faith and carry on the grand old United 
     States tradition. Alaska's star has for too long been denied 
     its rightful place on the glorious flag of the United States 
     of America.

  Our delegate to the House of Representatives, Bob Bartlett and our 
``Tennessee Plan'' Senators and Representatives, and Alaskan pioneers 
Ernest Gruening, Bill Egan and Ralph Rivers met with Members of 
Congress to convince them to support Alaska statehood.
  After the House passed our statehood bill on May 28, 1958, opponents 
in the Senate tried to stop the bill by attaching controversial, 
unrelated amendments.
  Our good friend from Washington, Senator Henry ``Scoop'' Jackson led 
a bipartisan effort to fend off changes to the bill.
  In the 6 days of debate prior to the vote, Senators carefully weighed 
the prospect of granting statehood to Alaska.
  Alaskans are proud of all we have accomplished in the 50 years since 
that historic vote.
  Through responsible development of our vast natural resources we are 
working to build a strong and vibrant economy.
  Prudhoe Bay and the 800 mile Trans-Alaska Pipeline, completed in 
1977, have delivered more than 15 billion barrels of oil to the 
American economy.
  In 2007 alone, Alaska's mining industry contributed an export value 
of $1.1 billion to the national economy.
  Through science-based management, our fisheries have been protected 
and rehabilitated. Because of our success, Alaska's fisheries 
management principles are now used as models for fisheries across the 
country. Today half our Nation's total domestic seafood production 
comes from Alaska.
  Modern water and sewer facilities and health care clinics are now 
located in most rural Alaskan communities. Through these and other 
projects and development of our natural resources, Alaskans are 
creating educational and job opportunities in the most remote corners 
of our state.
  Alaskans proved our strategic military value to the Nation during 
WWII when our Territorial Guard provided a first line of defense and 
protected the terminus of the lend lease Aerial Bridge at Fairbanks.
  Today Alaskans welcome and support the men and women of the 1st of 
the 25th Stryker Brigade Combat Team based in Fairbanks, the 4th of the 
25th Airborne Brigade Combat Team based in Anchorage and the 11th Air 
Force based at Elmendorf.
  They, and our Alaska National Guard, have served our Nation bravely 
in Afghanistan and Iraq and around the world. Our strong tradition of 
service has resulted in more veterans per capita living in Alaska than 
in any other State.
  While Alaskans have much to celebrate on our 50th anniversary of 
statehood, we continue working to accomplish more.
  The Alaska Natural Gas Pipeline will deliver 4 billion cubic feet of 
domestically produced natural gas each day to homes and businesses 
throughout the United States. Our pipeline will also create 400,000 new 
jobs nationwide.
  Continued development of Alaska's resources, including oil and gas 
development on the arctic coastal plain and our outer continental 
shelf, could also help deliver the energy needed to power our Nation's 
economy.
  Recent estimates show that the arctic coastal plain alone could 
deliver 1.5 million barrels of oil a day to market and contribute 
billions of dollars in corporate income tax revenues and royalties to 
the U.S. Treasury.
  Alaskans began our journey to statehood in 1867 when the Secretary of 
State William Seward advocated for the purchase of the territory from 
Russia for a mere 2 cents an acre. At the time the decision was 
ridiculed as ``Seward's folly.''
  Alaskans have worked hard to realize the full potential of our land 
and our people. There is no doubt Alaskans have lived up to the faith 
the Senate showed in us 50 years ago when it voted to grant us 
statehood. Alaskans have earned the name of our State, ``the Great 
Land.''
  Ms. MURKOWSKI. Mr. President, I want to thank my senior colleague for 
his comments. It is rare that we have an opportunity to speak from such 
personal knowledge about the battle for statehood.
  As he spoke, I imagined Senator Stevens sitting up there in the 
galley watching this debate anxiously as the future of Alaska was being 
decided. So it is an honor to work with him representing the people of 
Alaska. But for him to be able to share this historical perspective is 
wonderful. Our neighbors to the south in Washington have worked with us 
on so many different issues over the years.
  As I mentioned in my comments, Senator Jackson and Senator Magnuson 
were big advocates for statehood for the State of Alaska.
  I am delighted that our colleague, Senator Murray, has agreed to join 
us in talking about Alaska's statehood.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. ``Mr. President, let us vote for the 49th star in the 
flag.'' Those were the words from the great Senator from the State of 
Washington, Warren Magnuson, spoken on this floor in 1958, just before 
this body finally agreed to make Alaska one of the United States.
  Today, I am very pleased to join our colleagues from the north in 
Alaska to say a warm congratulations to the people of Alaska on this 
50th anniversary of their statehood. Alaska's statehood, as you heard, 
was controversial a half century ago. But I think time has proven that 
the United States is a greater Nation thanks to the Land of the 
Midnight Sun.
  As Senator Murkowski has said, Washington State's Senators, Warren 
Magnuson and Henry Jackson, were some of Alaska's greatest friends. 
Their advocacy helped to sway this Senate that Alaskans were ready to

[[Page 13998]]

join the Union. Today I want to give you a flavor of that debate at the 
time and their role in it.
  Back in 1958, Alaska's statehood had already been an issue for 42 
years, and legislation to make it a State had been introduced in every 
Congress since 1943.
  As Senator Jackson said in one speech that led up to that final vote 
that Congress had held 11 hearings, two of them in Alaska, and others 
here in Washington, DC. And more than 4,000 pages of testimony had been 
published.
  ``It was time to put the issue to rest,'' he argued, and I quote:

       There can be no doubt that the record is complete. Our 
     objective is statehood. It can be achieved now.

  Those were the words of Senator Jackson back then. And as the debate 
continued, Senators Magnuson and Jackson were confident that Alaska was 
ready.
  Senator Magnuson argued that with 180,000 citizens, Alaska had more 
residents than Missouri, Kansas, Arkansas, Alabama, Nevada, Idaho, and 
21 other States when they were admitted into the Union. He pointed out 
to this body that Alaska was strategically located between the United 
States and the Soviet Union and that it was home to two important 
military bases at the time right when the Cold War was escalating.
  He dismissed the argument that Alaska could not support itself as a 
State because that argument had not held up when it was used for his 
own State of Washington.
  He said:

       Alaskans feel confident that they can lick this problem as 
     they have met and solved others. I say, we should give them 
     that opportunity.

  So in Senator Magnuson's mind, the controversy was very similar to a 
family argument about whether a child was ready to leave home. He said:

       These United States, like fearful parents, can waver 
     further in indecision, and allow our lack of confidence to 
     undermine Alaskans and say, ``You will be ready for statehood 
     someday, but not now.'' Or we can be proud of Alaskans' 
     determination to strike out for their true independence 
     through their own real self government.

  ``The United States should follow through the second course,'' 
Magnuson said.
  He said:

       The territory feels entitled to sit and deliberate with 
     us--be one of us. Alaska wants to work out her own future, 
     just as each of the other 48 partners in our nation have been 
     allowed to do. Alaska's hopes, aspirations, and quiet self-
     confidence are understandable. She knows that her resources, 
     her people, and their combined potential spell a brilliant 
     future.
       Alaska has sat impatiently in the anteroom of history for 
     42 years. Alaska should be a State.

  I am very proud of the role Washington's two Senators played in this 
debate at the time. Alaska's road to statehood was long and it was 
hard. But Alaskans are some of the toughest people around. They fought 
for their rights. They did not give up. And they prevailed.
  So as they celebrate across their State I wish them a happy and a 
successful future. I want to close by once more quoting Senator 
Magnuson's words to the people of Alaska.
  He said:

       We approve and commend your vision, understand and believe 
     your hopes, know that your mission and goal can and will be 
     reached, so good luck and godspeed.

  Mr. CRAPO. Mr. President, I am honored to stand and speak today on 
the occasion of the 50th anniversary of the legislation establishing 
Alaska as our 49th State. I continue a tradition of sorts: A former 
Idaho Senator, Frank Church, stood in this same chamber 50 years ago, 
May 5, 1958, to be exact, to call for Alaska's statehood.
  Let me begin, if I may, with the words Senator Church recited that 
day:

     Wild and wide are my borders,
     Stern as death is my sway,
     And I will wait for the men who will win me--
     And I will not be won in a day;
     And I will not be won by weaklings,
     Subtle, suave and mild,
     But by men with the hearts of Vikings
     And the simple faith of a child;
     Desperate, strong and restless,
     Unthrottled by fear or defeat,
     Them I will guild with my treasure,
     Them I will glut with my meat.
     Send me the best of your breeding,
     Lend me your chosen ones,
     Them I will take to my bosom,
     Them I will call my sons.

  These lines come from a poem entitled, ``The Law of the Yukon,'' and 
were written by Robert W. Service, a Canadian poet who traveled north, 
caught up in the fever of the Klondike Gold Rush. The poem was inspired 
by the majesty of the land of the Northwest Territories and the Alaska 
territory, and for Senator Church set the stage for an impassioned, 
intricately argued plea for Alaska's statehood.
  Senator Church spoke that day of taxation without representation. He 
referenced the treaty by which the United States acquired Alaska which 
said that the inhabitants of the Territory ``shall be admitted to the 
enjoyment of all the rights, advantages and immunities of citizens of 
the United States, and shall be maintained and protected in the free 
enjoyment of their liberty.'' Senator Church asked this body the 
question: ``Can it be that ours, too, will be the error of the Roman 
senate, which sapped the vitality and strength from the Roman Republic, 
refusing to extend the right of franchise, until government became a 
mockery, empty of empty of principle . . .?''
  Fortunately for the United States in this matter, right prevailed 
that year, and those calling for Alaska's statehood were vindicated in 
their tireless quest.
  The admission of Alaska into the Union represents a rejection of the 
status quo, a manifestation of the very American tendency to look 
beyond what is to what could be, and Alaska has exceeded all 
expectations. That historic 1958 debate about Alaska's statehood 
mentions things familiar today which remain the backbone of Alaska's 
economy and, by extension, are integral to the U.S. economy, salmon, 
oil and natural gas to name a few. Alaska enriched our inventory of 
public land immeasurably: forests rich in wildlife; the majestic 
mountains of the Denali and the breathtaking flanks and soaring peak of 
Mount McKinley; glaciers of incredible beauty; rivers teeming with 
salmon; and bays and harbors with orcas and other ocean wildlife. 
Alaska holds beauty and riches beyond measure above and below the land, 
rivers and oceans.
  Periodically, the U.S. Senate does something that, in the words of 
Senator Church that year, falls outside the realm of meeting exigencies 
of the present. When the Senate bestowed statehood upon Alaska 50 years 
ago this week, it grasped the brief shining moment history had granted 
it and looked beyond partisan politics to do something great and 
glorious for the good of our Nation.
  I appreciate the Senator from Alaska's invitation to speak during 
this auspicious time in Alaska's history. I am proud of the role of 
Idaho lawmakers in the history of Alaska's statehood, particularly 
Senator Church, and also Congresswoman Gracie Pfost who also supported 
Alaska's statehood that year. In fact, an editorial in the Fairbanks 
News-Miner on May 6, 1958 called Senator Church ``one of Alaska's 
greatest champions in Congress.''
  Idaho and Alaska will always have much in common. Both western Rocky 
Mountain States, we face similar land use, wildlife and natural 
resource issues and we both celebrate the staggering beauty of our 
land. While Idaho does have the largest amount of wilderness area in 
the continental United States, it is dwarfed, of course, by Alaska 
which has the largest amount of Federal land of any State. Idaho and 
Alaska lawmakers can be proud of half a century of working together for 
the good of our States, our constituents and the mountain west.
  Congratulations, Senator Murkowski and Senator Stevens, on the 
birthday of your great State.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Ms. MURKOWSKI. Mr. President, I thank my colleague from the State of 
Idaho. As he indicated, Senator Church was a great leader in the 
statehood fight. Idaho and Alaska have long since

[[Page 13999]]

maintained that good relationship from five decades ago. I also 
recognize the comments of Senator Murray from Washington. The 
relationship our two States have had throughout the years through trade 
and commerce has provided issues on which we have worked jointly. 
Again, I thank them for taking the time to help Alaska commemorate its 
50th anniversary celebration.
  I will tell my colleagues, as the first Senator serving in the Senate 
to ever have been born in the State of Alaska--I was actually born just 
a little bit before statehood, born in the territory--I am fiercely 
passionate about my State. My mother was born in the community of Nome 
in the early 1930s, at a time when Alaska was pretty rough and tumble. 
My family on both sides was involved in the issues that led to 
statehood. I am very proud of how we as a State have advanced over 
these 50 years. To be able to recognize that progress and then look 
forward with anticipation as we forge the next 50 years, a State that 
has so much to offer this country, not only our natural resources but 
the ingenuity and resourcefulness of our people, the fact that our 
Alaska Natives per capita serve at record numbers in our military, 
providing for the defense of this country, we are full participants in 
this great Nation. Even though our geography separates us, there is a 
sense of patriotism and love for this country that does not go without 
recognition.
  I am honored to stand before the Senate today to celebrate the battle 
that led to statehood and the recognition of decades of good work.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I ask unanimous consent to print in the 
Record the names of distinguished young Alaskans who have been 
permitted to be on the floor today to witness the celebration of our 
50th anniversary.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            Senator Murkowski's Interns and Their Hometowns

       Brian O'Leary--Kodiak, Rochelle Hanscom--Fairbanks, Nychele 
     Fischetti--Anchorage, Taryn Moore--Anchorage, Lyndsey Haas--
     Petersburg, Kristen Coan--Palmer, Wes Stephel--Soldotna, 
     Haleigh Zueger--Unalaska, Kelsey Eagle--Sitka, Samantha 
     Novak--Anchorage, Cameron Piscoya--Nome, and Alexis Krell--
     Wasilla.

              Senator Stevens' Interns and Their Hometowns

       Bennett Clare--Nikiski, Castillo Serame--Anchorage, Choi 
     Claire--Anchorage, Downey Michael--Anchorage, Hein Dyle--
     Juneau, Horstkoetter Paul--Anchorage, Johnsen, Jakob--
     Fairbanks, Lettow Jaimee--Wasilla, Malmberg Cort--Kodiak, 
     Syversen Karmel--Anchorage, Alguire Coleman--Ketchikan, Eby 
     Eryn--Anchorage, Gilman Rebecca--Kenai, Joynt Marshall--
     Wasilla, Kazmierczak Jessica--Salcha, Mallipudi Andres--
     Anchorage, Oh Samuel--Wasilla, Osterman Thomas--Kasilof, and 
     Welch Alisha--Bethel.

  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I wonder if I could add a word to my two 
distinguished colleagues. I have had the good fortune--and it is good 
fortune--to have visited every State in the United States and the 
territories in my nearly 82 years of wonderful life that the good Lord 
has given me. I would think every American would deem, every American 
who has a feeling for the outside and the magnificent beauty of nature, 
that their education would not be complete unless they visit Alaska and 
see with their own eyes and breathe the air, see the water, all the 
magnificent beauty. I have enjoyed a number of trips to Alaska, largely 
sponsored by my dear friend Senator Stevens, through the years. We have 
been there together many times, many times in connection with the U.S. 
military, which finds a wonderful home in Alaska. Alaskans have taken 
such good care of them.
  But you have a great strength. Those of us in the Senate are proud to 
serve with two fine Senators from the great State of Alaska.
  Mr. President, I ask at this point in time if I could address the 
FISA bill. Is that the pending business or may I ask to speak on that 
business now?
  The PRESIDING OFFICER. The Senate is postcloture on the motion to 
proceed to the FISA bill.
  Mr. WARNER. So it is appropriate at this time to deliver remarks with 
regard to that bill?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. WARNER. I thank the Chair.
  Mr. President, this is one of the most important subjects I have had 
the privilege of addressing in my 30-some years in the Senate. I and 
many others will rise in connection with this bill in support of the 
FISA Amendments Act. It is a critical piece of legislation for 
America's present and future security. It achieves an important balance 
between protecting civil liberties and ensuring that our dedicated 
intelligence professionals have the capabilities they need to protect 
this Nation.
  Currently, Admiral McConnell is Director of our intelligence system. 
I have had the privilege of knowing him for over 30 years, working with 
him. We are fortunate that he and General Hayden and many others are 
carrying the torch for our Nation's intelligence. They have worked very 
hard on this piece of legislation, as has my dear colleague from 
Missouri, Senator Bond. I am on the Intelligence Committee. He has done 
a splendid job in negotiating the conference--hopefully, what will be a 
settlement. He was supported by our chairman, Senator Rockefeller. It 
has been a team, with the two of them achieving the juncture we are at 
now in the consideration of this bill.
  The bill ensures that the intelligence capabilities provided by the 
Protect America Act, enacted in August of 2007, remain sealed in 
statute. I cannot overemphasize how important that is to ensuring our 
Nation's security. I wish to underscore, once again, the importance of 
legal protection for the telecommunications carriers that have 
voluntarily--underline voluntarily--come forth for the private sector 
and have assisted our Government with the terrorist surveillance 
program, commonly referred to as TSP, which was originated and 
authorized by the President under appropriate sections, in my judgment, 
of the Constitution, particularly article II.
  I wish to emphasize that I was privileged to be Secretary of the Navy 
in the period of the 1970s, when the All-Volunteer Force was conceived. 
That force of young men and women, each of whom raised their hands and 
said, I volunteer to serve in uniform, is not unlike the issue today 
with elements of corporate America, the private sector, who have come 
forward to volunteer to assist this Government in performing the 
intelligence responsibilities undertaken which guarantee the freedoms 
and safety we enjoy every day here at home. The extensive evidence made 
available to the Senate Intelligence Committee shows that carriers that 
participated in this program relied upon our Government's assurances 
that their actions were legal, authorized by the President, and in the 
best interests of the security of our Nation.
  In brief, our Government provided the carriers with essential 
assurances, and the carriers responded to our Government's request for 
help. These carriers must be protected from costly and damaging 
lawsuits. Such lawsuits could end the current level of participation in 
the vital intelligence programs by these carriers and will likely deter 
other companies and private citizens who might like to step forward and 
volunteer in helping us protect ourselves by virtue of the essential 
intelligence we must monitor and collect every day. After all, these 
carriers are corporations in most instances, if not all. They are 
beholden, the executives of these corporations, to the stockholders. 
That is the system of free enterprise we have in the United States. 
Consequently, they, on behalf of their stockholders--and the 
stockholders could be the pension funds, could be a stock held by any 
number of people and entities in our system of Government--are coming 
forth simply asking for codification of assurances having been given by 
the Government so they can go back to their stockholders and explain 
that: We are doing this to protect America. We now have, by virtue of 
the actions of the Congress, signed and sealed by the President, the 
law that

[[Page 14000]]

will protect your interests in this country from lawsuits which have no 
foundation in law.
  I would like to share a ``Dear Colleague'' letter which all Members 
of our Chamber some months ago received from the esteemed chairman and 
vice chairman of the Intelligence Committee, Senators Rockefeller and 
Bond.
  I ask unanimous consent that the full text of the letter be printed 
in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. WARNER. The letter discussed the Senate Intelligence Committee's 
extensive and bipartisan review of the TSP, which included dozens of 
briefings, hearings, and interviews, as well as extensive document 
reviews. As a result of this more than 10-month comprehensive 
examination, the committee concluded--and I quote what was written and 
published to our colleagues by the committee--
       Irrespective of one's opinion of the President's reliance 
     on Article II authority to justify the TSP, those companies 
     that assisted with the TSP did so in good faith and based 
     upon the written--

  I repeat: ``written representations''--

     from the highest levels of government that the program was 
     lawful. The Committee's bill reported out on a strong, 
     bipartisan vote of 13-2--

  I wish to repeat that. That is a strong vote. I have served on the 
Intelligence Committee. This is my third tour of duty, you might say, 
given that we have, under our leadership, stipulated periods to serve. 
That is a big, strong vote. At one time, I was ranking member, as is 
Mr. Bond, of that committee, and that is about as strong a vote as you 
can get among the diversity of the wonderful people who have, 
throughout my years in the Senate, served on that committee.

       [That vote] reflects our determination that companies that 
     cooperated with the government in good faith should be 
     protected from time-consuming and expensive litigation. It is 
     a matter of fundamental fairness.

  End quote by the committee.
  Another item which played a key role in my thinking about the issue 
was a thoughtful article published in a newspaper by private citizens 
with past distinguished careers in public service relating to 
intelligence. The first is Benjamin Civiletti, U.S. Attorney General 
under President Jimmy Carter; followed by Dick Thornburgh, U.S. 
Attorney General under President George Herbert Walker Bush; and Judge 
William Webster, a very distinguished gentleman I have known personally 
for many years, former Director of the CIA and former Director of the 
Federal Bureau of Investigation.
  Now, there are three diverse public servants, with different 
political backgrounds, but they came together for the common purpose of 
trying to strengthen America's intelligence system. The article, 
entitled ``Surveillance Sanity,'' appeared in the October 31, 2007, 
edition of the Wall Street Journal. I have spoken on the floor 
previously about this article and their contribution, but because of 
its direct relevance to the issue we are now deliberating on and 
hopefully will vote on today, I ask unanimous consent that a copy of 
the article be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. WARNER. Let me share with you some of their thoughts. Regarding 
the Intelligence Committee's carefully crafted and limited liability 
provision, which is very similar to the provision in the bill currently 
before us, these three distinguished public servants--now private 
citizens--said:

       We agree with the Committee. Dragging phone companies 
     through protracted litigation would not only be unfair, but 
     it would deter other companies and private citizens from 
     responding in terrorist emergencies whenever there may be 
     uncertainty or level risk.

  Unfortunately, our committee has already heard testimony that without 
such protections, some companies believe they can no longer continue 
their cooperation and assistance to our American Government, 
particularly the intelligence sections.
  Messrs. Civiletti, Thornburgh, and Webster also wrote:

       The government alone cannot protect us from the threats we 
     face today. We must have the help of all of our citizens. 
     There will be times when the lives of thousands of Americans 
     will depend on whether corporations such as airlines or banks 
     are willing to lend assistance. If we do not treat them 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.

  That is very strong language, very clear language. I urge my 
colleagues, once again, to look at their article.
  As the Senate considers this bill, it should reject any amendments 
which would put the carriers and their millions of shareholders in 
legal limbo, waiting while the Government litigates unrelated 
constitutional claims. Lawsuits against the companies would likely 
continue in the interim which would: have negative ramifications on our 
intelligence sources and methods; likely harm the business reputations 
of these companies; and cause the companies to reconsider their 
participation--or worse--cause them to terminate their cooperation in 
the future.
  The Senate Intelligence Committee, by a vote of 13 to 2, stated its 
belief that the carriers acted in good faith and that they deserve to 
be protected.
  Clearly the issue of whether the President acted within his 
constitutional authority in authorizing the TSP can and should be 
addressed in a separate context from this bill.
  Even the exclusive means provision in this bill favored by my 
Democratic colleagues in the House and Senate acknowledges the 
President's constitutional authority in stating that certifications to 
companies for assistance shall identify the statutory provision on 
which the certification is based, ``if a certification . . . is based 
on statutory authority.'' This clearly indicates that the certification 
could be based on the President's constitutional authority.
  But, even if one did not agree that the President acted within his 
Article II powers, why would anyone want to punish the carriers for 
something the Government called on them to do and assured them was 
legal?
  Individuals who believe that the Government violated the civil 
liberties can pursue legal action against the Government, and the bill 
before us does nothing to limit that legal recourse.
  As stated so eloquently by Messrs. Civiletti, Thornburg, and Webster, 
I quote the following:

       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. . . . Because a 
     private person cannot have all the information necessary to 
     assess the propriety of the government's actions, he must be 
     able to rely on official assurances about need and legality.

  I strongly believe that the President did act within his Article II 
executive branch authority in authorizing this program. Even the 
exclusive means provision in this bill favored by my Democratic 
Colleagues in the House and Senate acknowledges the President's 
constitutional authority in stating that certifications to companies 
for assistance shall identify the statutory provision on which the 
certification is based ``if a certification . . . is based on statutory 
authority.'' This clearly indicates the certification could be based on 
the President's constitutional authority.
  But even if one did not agree that the President acted--acted--within 
the confines of the U.S. Constitution--particularly article II outlines 
the executive branch's power under the President--why would anyone want 
to punish the carriers for something the Government called on them to 
do and assured them was legal? Individuals who believe the Government 
violated their civil liberties can pursue legal action against the 
Government, and the bill before us does nothing--I repeat: does 
nothing--to prohibit a citizen to bring that legal recourse against 
their Government, the U.S. Government.
  As stated so eloquently in the Messrs. Civiletti, Thornburgh, and 
Webster document, I further quote:

       Whether the government has acted properly is a different 
     question from whether a

[[Page 14001]]

     private person has acted properly in responding to the 
     government's call for help. . . . Because a private person 
     cannot have all the information necessary to assess the 
     propriety of the government's actions, he must be able to 
     rely on official assurances about need and legality.

  I agree with the conclusions of these three eminent private citizens.
  I would like to also call your attention to an important letter sent 
last week--June 19, 2008--to Senate and House leadership from the 
Attorney General of the United States and the Director of National 
Intelligence--that is GEN Michael Mukasey and ADM Michael McConnell--
two distinguished public servants now serving America.
  Mr. President, I also ask unanimous consent that this letter be 
printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 3.)
  Mr. WARNER. These gentlemen said:

       [P]roviding this liability protection is critical to the 
     Nation's security.

  They confirmed that the intelligence community cannot obtain the 
intelligence it needs without--I repeat, without--the assistance from 
these carriers, companies, and other segments of the private sector. 
They noted:

       It is critical that any long-term FISA modernization 
     legislation contain an effective liability protection 
     provision.

  It should be clear from this letter that the Director of National 
Intelligence and the Attorney General of the United States could not 
support the bill without explicit retroactive legal protection for the 
carriers and other segments of the private sector.
  It is for these reasons that I urge my colleagues to support H.R. 
6304, the FISA Amendments Act, as passed by the House, and to vote 
against any amendments that intend to strip out or alter the critical 
civil liability provision or any other section of the bill that is 
essential to our intelligence community.
  Mr. President, I yield the floor.

                               Exhibit 1

                                                      U.S. Senate,


                             Select Committee on Intelligence,

                                 Washington, DC, February 1, 2008.
       Dear Colleagues: The FISA Amendments Act, S. 2248, provides 
     limited and narrowly-drawn retroactive civil liability 
     protection to those telecommunication companies that 
     allegedly assisted the government with the President's 
     Terrorist Surveillance Program (TSP). An amendment has been 
     offered to this Act to strike these liability protections in 
     favor of ``substitution,'' a legal mechanism for replacing 
     the companies in the ongoing TSP litigation with the 
     government.
       The Senate Intelligence Committee conducted a comprehensive 
     and bipartisan review of the President's TSP, including the 
     issue of carrier liability. The Committee reviewed numerous 
     documents, including the Department of Justice legal opinions 
     and the letters from the government to the companies. The 
     Committee held a number of briefings and hearings involving 
     government and company officials. The Committee also visited 
     the National Security Agency to see firsthand how the TSP 
     worked.
       As a result of this extensive review, the Committee 
     concluded that, irrespective of one's opinion of the 
     President's reliance on Article II authority to justify the 
     TSP, those companies that assisted with the TSP did so in 
     good faith and based upon the written representations from 
     the highest levels of government that the program was lawful.
       The Committee's bill, reported out on a strong, bipartisan 
     vote of 13-2, reflects our determination that companies that 
     cooperated with the government in good faith should be 
     protected from time-consuming and expensive litigation. It is 
     a matter of fundamental fairness. The Committee rejected the 
     broad immunity proposal sought by the Administration. Our 
     limited immunity provision only covers assistance provided 
     from September 11th to when the TSP was put under court 
     authorization in January of last year. It does not provide 
     protection from criminal prosecution or extend protections to 
     government officials. Any litigation against government 
     officials will continue.
       In concluding that civil liability protection for those 
     companies was appropriate, the Committee recognized that 
     allowing the current litigation to continue could: (1) 
     compromise our intelligence sources and methods through 
     ongoing discovery and other litigation proceedings; (2) 
     result in significant loss of business reputation or 
     financial loss for those companies that participated in good 
     faith; (3) jeopardize the personal safety of overseas 
     employees of these companies if it becomes known that the 
     companies assisted the government in fighting terrorism; (4) 
     put taxpayers' dollars at risk for dubious legal claims; and 
     (5) lead to reluctance by these and other companies to 
     cooperate with legitimate requests for assistance in the 
     future.
       The substitution amendment sponsored by Senators Specter 
     and Whitehouse does not alleviate any of these concerns. Even 
     if the companies are removed directly from the litigation, 
     discovery would still be allowed to proceed against them. In 
     short, the conduct of the companies would continue to be 
     litigated, raising significant concerns that their identities 
     or details about their assistance will be disclosed. Given 
     the essential role that our private partners play in 
     intelligence collection, we believe that this is simply too 
     great a risk to our national security.
       We believe, therefore, that the ongoing litigation against 
     the telecommunication companies should be brought to an 
     immediate close and that the Intelligence Committee's 
     bipartisan determination of good faith should stand. We urge 
     you to support the Intelligence Committee's bill and oppose 
     any effort to modify or strike its civil liability provision.
           Sincerely,
     John D. Rockefeller IV,
       Chairman.
     Christopher S. Bond,
       Vice Chairman.

                               Exhibit 2

             [From the Wall Street Journal, Oct. 31, 2007]

                          Surveillance Sanity

      (By Benjamin Civiletti, Dick Thornburgh and William Webster)

       Following the terrorist attacks of Sept. 11, 2001, 
     President Bush authorized the National Security Agency to 
     target al Qaeda communications into and out of the country. 
     Mr. Bush concluded that this was essential for protecting the 
     country, that using the Foreign Intelligence Surveillance Act 
     would not permit the necessary speed and agility, and that he 
     had the constitutional power to authorize such surveillance 
     without court orders to defend the country.
       Since the program became public in 2006, Congress has been 
     asserting appropriate oversight. Few of those who learned the 
     details of the program have criticized its necessity. 
     Instead, critics argued that if the president found FISA 
     inadequate, he should have gone to Congress and gotten the 
     changes necessary to allow the program to proceed under court 
     orders. That process is now underway. The administration has 
     brought the program under FISA, and the Senate Intelligence 
     Committee recently reported out a bill with a strong 
     bipartisan majority of 13-2, that would make the changes to 
     FISA needed for the program to continue. This bill is now 
     being considered by the Senate Judiciary Committee.
       Public disclosure of the NSA program also brought a flood 
     of class-action lawsuits seeking to impose massive liability 
     on phone companies for allegedly answering the government's 
     call for help. The Intelligence Committee has reviewed the 
     program and has concluded that the companies deserve targeted 
     protection from these suits. The protection would extend only 
     to activities undertaken after 9/11 until the beginning of 
     2007, authorized by the president to defend the country from 
     further terrorist attack, and pursuant to written assurances 
     from the government that the activities were both authorized 
     by the president and legal.
       We agree with the committee. Dragging phone companies 
     through protracted litigation would not only be unfair, but 
     it would deter other companies and private citizens from 
     responding in terrorist emergencies whenever there may be 
     uncertainty or legal risk.
       The government alone cannot protect us from the threats we 
     face today. We must have the help of all our citizens. There 
     will be times when the lives of thousands of Americans will 
     depend on whether corporations such as airlines or banks are 
     willing to lend assistance. If we do not treat companies 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.
       This concern is particularly acute for our nation's 
     telecommunications companies. America's front line of defense 
     against terrorist attack is communications intelligence. When 
     Americans put their loved ones on planes, send their children 
     to school, or ride through tunnels and over bridges, they are 
     counting on the ``early warning'' system of communications 
     intelligence for their safety. Communications technology has 
     become so complex that our country needs the voluntary 
     cooperation of the companies. Without it, our intelligence 
     efforts will be gravely damaged.
       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. From its 
     earliest days, the common law recognized that when a public 
     official calls on a citizen to help protect the community in 
     an emergency, the person has a duty to help and should be 
     immune from being hauled into court unless it was clear 
     beyond doubt that the public official was acting illegally. 
     Because a private person cannot have all the

[[Page 14002]]

     information necessary to assess the propriety of the 
     government's actions, he must be able to rely on official 
     assurances about need and legality. Immunity is designed to 
     avoid the burden of protracted litigation, because the 
     prospect of such litigation itself is enough to deter 
     citizens from providing critically needed assistance.
       As the Intelligence Committee found, the companies clearly 
     acted in ``good faith.'' The situation is one in which 
     immunity has traditionally been applied, and thus protection 
     from this litigation is justified.
       First, the circumstances clearly showed that there was a 
     bona fide threat to ``national security.'' We had suffered 
     the most devastating attacks in our history, and Congress had 
     declared the attacks ``continue to pose an unusual and 
     extraordinary threat'' to the country. It would have been 
     entirely reasonable for the companies to credit government 
     representations that the nation faced grave and immediate 
     threat and that their help was needed to protect American 
     lives.
       Second, the bill's protections only apply if assistance was 
     given in response to the president's personal authorization, 
     communicated in writing along with assurances of legality. 
     That is more than is required by FISA, which contains a safe-
     harbor authorizing assistance based solely on a certification 
     by the attorney general, his designee, or a host of more 
     junior law enforcement officials that no warrant is required.
       Third, the ultimate legal issue--whether the president was 
     acting within his constitutional powers--is not the kind of 
     question a private party can definitively determine. The 
     companies were not in a position to say that the government 
     was definitely wrong.
       Prior to FISA's 1978 enactment, numerous federal courts 
     took it for granted that the president has constitutional 
     power to conduct warrantless surveillance to protect the 
     nation's security. In 2002, the FISA Court of Review, while 
     not dealing directly with the NSA program, stated that FISA 
     could not limit the president's constitutional powers. Given 
     this, it cannot be said that the companies acted in bad faith 
     in relying on the government's assurances of legality.
       For hundreds of years our legal system has operated under 
     the premise that, in a public emergency, we want private 
     citizens to respond to the government's call for help unless 
     the citizen knows for sure that the government is acting 
     illegally. If Congress does not act now, it would be 
     basically saying that private citizens should only help when 
     they are absolutely certain that all the government's actions 
     are legal. Given the threats we face in today's world, this 
     would be a perilous policy.

                               Exhibit 3

                                                    June 19, 2008.
     Hon. Nancy Pelosi, Speaker,
     House of Representatives,
     Washington, DC.
       Dear Madam Speaker: This letter presents the views of the 
     Administration on the Foreign Intelligence Surveillance Act 
     of 1978 (``FISA'') Amendments Act of 2008 (H.R. 6304). The 
     bill would modernize FISA to reflect changes in 
     communications technology since the Act was first passed 30 
     years ago. The amendments would provide the Intelligence 
     Community with the tools it needs to collect the foreign 
     intelligence necessary to secure our Nation while protecting 
     the civil liberties of Americans. The bill would also provide 
     the necessary legal protections for those companies sued 
     because they are believed to have helped the Government 
     prevent terrorist attacks in the aftermath of September 11. 
     Because this bill accomplishes these two goals essential to 
     any effort to modernize FISA, we strongly support passage of 
     this bill and will recommend that the President sign it.
       Last August, Congress took an important step toward 
     modernizing FISA by enacting the Protect America Act of 2007. 
     That Act allowed us temporarily to close intelligence gaps by 
     enabling our intelligence professionals to collect, without 
     having to first obtain a court order, foreign intelligence 
     information from targets overseas. The Act has enabled us to 
     gather significant intelligence critical to protecting our 
     Nation. It has also been implemented in a responsible way, 
     subject to extensive executive, congressional, and judicial 
     oversight in order to protect the country in a manner 
     consistent with safeguarding Americans' civil liberties. 
     Since passage of the Act, the Administration has worked 
     closely with Congress to address the need for longterm FISA 
     modernization. This joint effort has involved compromises on 
     both sides, but we believe that it has resulted in a strong 
     bill that will place the Nation's foreign intelligence effort 
     in this area on a firm, long-term foundation. Below, we have 
     set forth our views on certain important provisions of H.R. 
     6304.


               Title I--Foreign Intelligence Surveillance

       Title I of H.R. 6304 contains key authorities that would 
     ensure that our intelligence agencies have the tools they 
     need to collect vital foreign intelligence information and 
     would provide significant safeguards for the civil liberties 
     of Americans.
       Court Approval. With respect to authorizations for foreign 
     intelligence surveillance directed at foreign targets outside 
     the United States, the bill provides that the Foreign 
     Intelligence Surveillance Court (FISC) would review 
     certifications made by the Attorney General and the Director 
     of National Intelligence relating to these acquisitions, the 
     reasonableness of the procedures used by the Intelligence 
     Community to ensure the targets are overseas, and the 
     minimization procedures used to protect the privacy of 
     Americans. The scope of the FISC's review is carefully and 
     rightly crafted to focus on aspects of the acquisition that 
     may affect the privacy rights of Americans so as not to 
     confer quasi-constitutional rights on foreign terrorists and 
     other foreign intelligence targets outside the United States.
       We have been clear that any satisfactory bill could not 
     require individual court orders to target non-United States 
     persons outside the United States, nor could a bill establish 
     a court-approval mechanism that would cause the Intelligence 
     Community to lose valuable foreign intelligence while 
     awaiting such approval. H.R. 6304 would do neither and would 
     retain for the Intelligence Community the speed and agility 
     that it needs to protect the Nation. The bill would establish 
     a schedule for court approval of certifications and 
     procedures relating to renewals of existing acquisition 
     authority. A critical feature of the H.R. 6304 would allow 
     existing acquisitions, which were the subject of court review 
     under the Protect America Act or will be the subject of such 
     review under the H.R. 6304, to continue pending court review. 
     With respect to new acquisitions, absent exigent 
     circumstances, Court review of new procedures and 
     certifications would take place before the Government begins 
     the acquisition. The exigent circumstances exception is 
     critical to allowing the Intelligence Community to respond 
     swiftly to changing circumstances when the Attorney General 
     and the Director of National Intelligence determine that 
     intelligence may be lost or not timely acquired. Such exigent 
     circumstances could arise in certain situations where an 
     unexpected gap has opened in our intelligence collection 
     efforts. Taken together, these provisions would enable the 
     Intelligence Community to keep closed the intelligence gaps 
     that existed before the passage of the Protect America Act 
     and ensure that it will have the opportunity to collect 
     critical foreign intelligence information in the future.
       Exclusive means. H.R. 6304 contains an exclusive means 
     provision that goes beyond the exclusive means provision that 
     was passed as part of FISA. As we have previously stated, we 
     believe that the provision will complicate the ability of 
     Congress to pass, in an emergency situation, a law to 
     authorize immediate collection of communications in the 
     aftermath of an attack or in response to a grave threat to 
     the national security. Unlike other versions of this 
     provision, however, the one in this bill would not restrict 
     the authority of the Government to conduct necessary 
     surveillance for intelligence and law enforcement purposes in 
     a way that would harm national security.
       Oversight and Protections for the Civil Liberties of 
     Americans. H.R. 6304 contains numerous provisions that 
     protect the civil liberties of Americans and allow for 
     extensive executive, congressional, and judicial oversight of 
     the use of the authorities. The bill would require the 
     Attorney General and the Director of National Intelligence to 
     conduct semiannual assessments of compliance with targeting 
     procedures and minimization procedures and to submit those 
     assessments to the FISC and to Congress. The FISC and 
     Congress would also receive annual reviews relating to those 
     acquisitions prepared by the heads of agencies that use the 
     authorities contained in the bill. Congress would receive 
     reviews from the Inspectors General of these agencies and of 
     the Department of Justice regarding compliance with the 
     provisions of the bill. In addition, the bill would require 
     the Attorney General to submit to Congress a report at least 
     semiannually concerning the implementation of the authorities 
     provided by the bill and would expand the categories of FISA-
     related court documents that the Government must provide to 
     the congressional intelligence and judiciary committees.
       Title I also includes provisions that would protect the 
     civil liberties of Americans. For instance, the bill would 
     require for the first time that a court order be obtained to 
     conduct foreign intelligence surveillance outside the United 
     States of an American abroad. Historically, Executive Branch 
     procedures guided the conduct of surveillance of a U.S. 
     person overseas, such as when a U.S. person acts as an agent 
     of a foreign power, e.g., spying on behalf of a foreign 
     government. Given the complexity of extending judicial review 
     to activities outside the United States, these provisions 
     were carefully crafted with Congress to ensure that such 
     review can be accomplished while preserving the necessary 
     flexibility for intelligence operations. Other provisions of 
     the bill address concerns that some voiced about the Protect 
     America Act, such as clarifying that the Government cannot 
     ``reverse target'' without a court order and requiring that 
     the Attorney General establish guidelines to prevent this 
     from occurring. We believe that, taken together, these 
     provisions will allow for ample oversight of the use of these 
     new authorities and ensure that the privacy and civil 
     liberties of Americans are well protected.

[[Page 14003]]




    II. Title II--Protections for Electronic Communications Service 
                               Providers

       Title II of the bill contains, among other provisions, 
     vital protections for electronic communications service 
     providers who assist the Intelligence Community's efforts to 
     protect the Nation from terrorism and other foreign 
     intelligence threats. Title II would provide liability 
     protection related to future assistance while ensuring the 
     protection of sources and methods. Importantly, the bill 
     would also provide the necessary legal protection for those 
     companies who are sued only because they are believed to have 
     helped the Government with communications intelligence 
     activities in the aftermath of September 11, 2001.
       The framework contained in the bill for obtaining 
     retroactive liability protection is narrowly tailored. An 
     action must be dismissed if the Attorney General certifies to 
     the district court in which the action is pending that 
     either: (i) the electronic communications service provider 
     did not provide the assistance; or (ii) the assistance was 
     provided in the wake of the September 11 attack and was the 
     subject of a written request or series of requests from a 
     senior Government official indicating that the activity was 
     authorized by the President and determined to be lawful. The 
     district court would be required to review this certification 
     before dismissing the action, and the provision allows for 
     the participation of the parties to the lawsuit in a manner 
     consistent with the protection of classified information. The 
     liability protection provision does not extend to the 
     Government or to Government officials and it does not 
     immunize any criminal conduct.
       Providing this liability protection is critical to the 
     Nation's security. As the Senate Select Committee on 
     Intelligence recognized, ``the intelligence community cannot 
     obtain the intelligence it needs without assistance from 
     these companies.'' That committee also recognized that 
     companies in the future may be less willing to assist the 
     Government if they face the threat of private lawsuits each 
     time they are believed to have provided assistance. Finally, 
     allowing litigation over these matters risks the disclosure 
     of highly classified information regarding intelligence 
     sources and methods. As we have stated on many occasions, it 
     is critical that any long-term FISA modernization legislation 
     contain an effective liability protection provision. H.R. 
     6304 contains just such a provision and for this reason, as 
     well as those expressed with respect to Title I above, we 
     strongly support its passage.


               III. Title III--Review of Previous Actions

       Title III would require the Inspectors General of the 
     Department of Justice, the Office of the Director of National 
     Intelligence, and of certain elements of the Intelligence 
     Community to review certain communications surveillance 
     activities, including the Terrorist Surveillance Program 
     described by the President. Although improvements have been 
     made over prior versions of this provision, we believe, as we 
     have written before, that it is unnecessary in light of the 
     Inspector General reviews previously completed, those already 
     underway, and the congressional intelligence and judiciary 
     committee oversight already conducted. Nevertheless, we do 
     not believe that, as currently drafted, the provision would 
     create unacceptable operational concerns. The bill contains 
     important provisions to make clear that such reviews should 
     not duplicate reviews already conducted by Inspectors 
     General.


                     IV. Title IV--other Provisions

       Title IV contains important provisions that will ensure 
     that the transition between the current authorities and the 
     authorities provided in this bill will not have a detrimental 
     effect on intelligence operations.
       Title IV also states that the authorities in the bill 
     sunset at the end 2012. We have long favored permanent 
     modernization of FISA. The Intelligence Community operates 
     more effectively when the rules governing our intelligence 
     professionals' ability to track our enemies are firmly 
     established. Stability of law also allows the Intelligence 
     Community to invest resources appropriately. Congress has 
     extensively debated and considered the need to modernize FISA 
     since 2006, a process that has involved numerous hearings, 
     briefings, and floor debates. The process has been valuable 
     and necessary, but it has also involved the discussion in 
     open settings of extraordinary information dealing with 
     sensitive intelligence operations. Every time we repeat this 
     process it risks exposing our intelligence sources and 
     methods to our adversaries. Although we would prefer that 
     H.R. 6304 contain no sunset, a sunset in 2012 is 
     significantly longer than others that were proposed and it is 
     long enough to avoid impairing the effectiveness of 
     intelligence operations.
       Thank you for the opportunity to present our views on this 
     crucial bill. We reiterate our sincere appreciation to the 
     Congress for working with us on H.R. 6304, a long-term FISA 
     modernization bill that will strengthen the Nation's 
     intelligence capabilities while respecting and protecting the 
     constitutional rights of Americans. We strongly support its 
     prompt passage.
           Sincerely,
                                               Michael B. Mukasey,
                                                 Attorney General.
                                                   J.M. McConnell,
                                Director of National Intelligence.

  The PRESIDING OFFICER. The Senator from Michigan.
  Ms. STABENOW. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. Thank you, Mr. President.


          Medicare Improvements for Patients and Providers Act

  We are at a critical point today for 44 million Medicare 
beneficiaries--seniors, people with disabilities--and the physicians, 
the health care providers, who serve them. We are at a critical point.
  I am very hopeful we are not going to see this number go up--the 
number of filibusters that have been done on the other side of the 
aisle. I am very hopeful this number is not going to go from 78 to 79 
over the Medicare legislation that is in front of us.
  We have already seen a filibuster in a successful effort to stop the 
Medicare bill that would make sure that the 10-percent cut for 
physicians does not take place and that other preventative and other 
access issues are addressed. That is already part of these 78 
filibusters. We have already seen the Medicare bill filibustered.
  But today we are hopeful, based on the wonderful bipartisan vote of 
355 Members of the House of Representatives, that as we come back with 
their bill that was passed--and I should mention, based on the bill 
that was crafted by Senator Baucus; and I wish to give him tremendous 
credit for all the hard work he has done; and I am proud to be a member 
of the Finance Committee, as the distinguished Presiding Officer is--
but the House, based on the work of the Senate, as well, has passed, 
with 355 votes, on a bipartisan basis, a bill to make sure 44 million 
seniors and people with disabilities do not find themselves worse off 
as it relates to being able to get a doctor or being able to get the 
care they need.
  So we are at a crossroads right now. The time is up. As of next 
Tuesday, July 1, a cut will take effect if we do not act. On top of 
that, we will not see the other beneficial parts of this bill take 
effect for our seniors, for people with disabilities, for their 
families. So we are now at a point where it is decisionmaking time. The 
House has acted. It is my understanding they will, in fact, be 
adjourning at the end of today, and we will be in a situation to either 
act, based on a strong bipartisan vote and a tremendous amount of work 
that has been done in the Senate, or we will see devastating 
consequences in the Medicare system.
  I do not want to see this number go from 78 to 79 because of a 
filibuster on a critically important Medicare bill. That is what we are 
talking about. This legislation itself is good public policy. That is 
why it received the 355 votes that it did, because it not only stops 
the cut, the 10-percent cut that is scheduled to take place next 
Tuesday, July 1--which, by the way, is the result of a fatally flawed 
sustainable growth rate formula, which I have talked about many times 
on this floor--we have to change the way what is called the SGR is set 
up in terms of physician payments--this would not only stop a major cut 
for physicians that translates into cuts in service for Medicare 
beneficiaries, but it also does some other very important things that 
relate to increasing service.
  First, let me say that if the cut were to take effect, we are talking 
about in Michigan alone losing $540 million--$540 million--for the care 
of seniors and people with disabilities over the next 18 months--only 
18 months, $540 million, if we do not act before next Tuesday.
  Right now, as to the 20,000 M.D.s and D.O.s in Michigan who provide 
high-quality care to 1.4 million seniors and people with disabilities 
and the over 90,000 TRICARE beneficiaries--our men and women in the 
military--we would see cutbacks in their staffing, in their ability to 
provide service.
  I have heard so many stories from physicians' practices about what 
all of this means. At a time when more and more people are going into 
Medicare, as our country is aging, we do not need

[[Page 14004]]

to see cutbacks that mean there are fewer physicians available to treat 
our senior citizens and people with disabilities. That is what that 
means. That is what this will mean if we do not act.
  Additionally, the bill provides important and meaningful protections. 
We are looking at increasing help for low-income seniors, low-income 
individuals on Medicare who will be able to get additional assistance. 
It also improves coordination in a number of areas and addresses what 
we call mental health parity--being able to make sure that mental 
health services are treated in the same way as public health services. 
This is something we have gone on record to address in this body in a 
bipartisan basis on more than one occasion. In this Medicare bill, we 
address discrepancies between mental health services and physical 
health services, all of which are the same thing, in my mind. This is a 
continuum of care in terms of health care. But that is addressed in 
this bill and has very strong support.
  The bill also addresses very important investments in technology for 
the future--investments that won't take place, such as electronic 
medical records that will not be developed if, in fact, we see huge 
cuts in Medicare, rather than investing in the future and investing in 
technology.
  The legislation in front of us would do two things in the area of 
technology. We would provide additional opportunities for telehealth--
more providers, more facilities that would be able to use and be 
reimbursed for telehealth--and we focus on e-prescribing, which is the 
first stage of health information technology, bringing it into the 21st 
century in terms of our health care system and technology.
  I am very proud of Michigan. We have been one of the leaders in both 
of these areas. In telehealth, in the upper peninsula of Michigan, we 
have had 15 counties that have been connected through the health care 
system. We have had the opportunity to see how well telemedicine works 
for all of our seniors, for people with disabilities, for families in 
general in the UP, as well as in northern Michigan and all around 
Michigan, including our rural communities, as well as in many of our 
urban communities. Telehealth is very important and it is expanded in 
this Medicare bill with more access to care.
  We also address the first building block of health information 
technology, and that is e-prescribing. There are incentives for 
physicians to use e-prescribing and there is accountability in that 
arena. This is another area I have to say that I am proud of my State 
of Michigan for, because we have spent a lot of time and effort, and we 
have gotten real results for people, in terms of saving lives and 
saving money as it relates to e-prescribing. We have a group called the 
Southeastern Michigan E-prescribing Initiative, our auto industry, the 
United Auto Workers, BlueCross and BlueShield, and many of our 
businesses and providers have come together and found extraordinary 
results.
  One of the things that I think is so important about e-prescribing is 
when you have an e-prescribing system, an electronic system where your 
current medicines can then be compared with any new prescription that 
the physician wishes to write, they are finding very important safety 
and quality results. For instance, 423,000 prescriptions that were 
originally written by physicians were changed or canceled by the doctor 
once they received very important information about potential allergic 
reactions or some other interaction with the other medicines their 
patient was on. So this is very important information that is 
available. We also know that 39 percent of the time, the physician, 
given more information, changed the prescription to save the patient 
and the employer money; being able to offer the option of more generic 
drugs. So there are huge benefits to e-prescribing. On top of that, you 
can read the physician's handwriting, and I say that lovingly to all of 
my physician friends.
  But we are in a situation now where we have a bill in front of us 
that not only stops cuts that would be devastating but looks to the 
future in terms of electronic e-prescribing, in terms of telehealth, 
preventive services, helping low-income seniors and people with 
disabilities, being able to provide mental health parity; a number of 
areas that while they overall are low in cost are huge in benefit in 
terms of savings lives. In fact, there are many places in this bill 
where we are talking about saving dollars at the same time we are 
saving lives.
  I am also very pleased with the fact that the bill addresses a number 
of health disparities that face those who receive Medicare based on the 
legislation I have introduced with, in fact, all of the women Members 
of the Senate--all 16 women Members. We have cosponsored the HEART for 
Women Act, which begins to gather gender and race data to determine 
gaps in coverage around heart disease. We are now using similar 
language in the Medicare bill to collect more data for researchers 
about disparities around health treatments and so on.
  The bottom line is this is a must-pass bill, and we need to pass it 
now. Time is running out. In fact, in my mind, time has run out. It is 
now time to act today. When our leader, Senator Reid, who is very 
committed to this legislation, committed to Medicare, came to the floor 
and asked for unanimous consent to be able to take up the Medicare 
bill, there were objections again. I am very concerned that those 
objections are going to be leading to another filibuster, another 
filibuster vote coming in the next day or few days.
  I hope colleagues are aware that the American Medical Association 
strongly supports this bill and has been actively involved in promoting 
the bill and urging all of us to support the bill. The AARP, a leading 
seniors' organization, has endorsed the House bill as well. I will read 
a portion of their letter. AARP's letter notes:

       Our members have also stressed strong interest in knowing 
     how their elected officials vote on key issues that affect 
     older Americans. Given the importance of the Medicare 
     legislation, we will be informing them how their Senators 
     vote on this legislation when it comes to the Senate floor.

  There is great concern among people around the country watching and 
waiting. People are asking what is taking us so long and why haven't we 
acted. We have legislation that we worked through on a bipartisan basis 
here in the Senate, and it has now passed by 355 votes in the House of 
Representatives. You can't get much better than that vote. This bill 
has now come over to us and it is time for us to act.
  I thank again Chairman Baucus for his leadership and his hard work. I 
also thank my good friends in the House, Chairman Rangel and Chairman 
Dingell, for their work on behalf of Medicare beneficiaries and 
physicians. I stand squarely behind this bill. I was proud to introduce 
legislation a number of months back to address the question of 
physician payment and the need to change the process and the way this 
is done fundamentally. I am so pleased that the bill in front of us 
mirrors the 18-month bill I introduced and adds to it some critically 
important changes, critically important incentives to modernize the 
system with telehealth and more access to health care, modernize the 
system as it relates to electronic prescribing, and does more to make 
sure our low-income seniors receive the help they need, and makes sure 
that we are, in fact, providing a more equitable system where mental 
health and physical health payments and services are looked at in the 
same kind of way. This is very important. Focusing more on prevention 
is very important.
  The bottom line is we have 44 million Americans who rely on Medicare 
every day. Medicare is a great American success story. It passed in 
1965. It is a great American success story that has brought healthier 
lives through better medical care as well as opportunities for longer 
lives for millions and millions of Americans. Access to those services 
is jeopardized seriously if we do not pass this bill. The ability to 
expand on services and prevention is also in jeopardy if we do not pass 
this bill.
  I am hopeful we will come together, as our House colleagues have 
done, and stand on a bipartisan basis in support of our providers, our 
health care providers and, most importantly, those

[[Page 14005]]

men and women who are counting on us to keep the Medicare system strong 
for the future. I am hopeful we will not see another filibuster 
stopping us from addressing the important issues of Medicare. This 
needs to be done today.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I ask unanimous consent to speak as in 
morning business for a few minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                      Tanker Aircraft Competition

  Mr. SESSIONS. Mr. President, we heard a good bit recently and there 
has been some discussion in the Senate about the competition for the 
tanker aircraft that was decided by the Air Force in favor of the 
Northrop Grumman team.
  The Government Accountability Office team of lawyers--not 
technicians--conducted a review of the procedures utilized in that 
selection process, in light of 111 objections filed by the losing 
Boeing team. They concluded that eight objections were merited against 
the procedural conduct of the competition by the Air Force. Now the 
ball is back in the lap of the Air Force to review those objections and 
to take appropriate steps to make sure this is a fair and just 
competition.
  I will just say that I was committed in the beginning and throughout 
this process that it should be a nonpolitical decision, a decision made 
by the U.S. Air Force based on the criteria set out in law, based on 
the fact that the Congress, after an attempt had been made to carry out 
a sole-source lease agreement for the Boeing aircraft--after that was 
rejected and after great embarrassment to the Air Force and Boeing, we 
ordered that a bid take place.
  I want my colleagues to understand the posture we are in. At the end 
of the bid process, the Air Force concluded this:

       While [the] KC-767 offers significant capabilities, the 
     overall tanker/airlift mission is best supported by the KC-
     30.

  The Northrop team.
  They go on to say:

       [The] KC-30 solution is superior in the core capabilities 
     of fuel capacity/offload, airlift efficiency, and cargo/
     passenger/aeromedical carriage.

  On the most important factors, the core capabilities, they found that 
the Northrop team's aircraft was superior.
  GAO did not overrule those findings. In fact, the contrary is the 
case. What GAO said was in this very long, complex RFP request for 
proposal--and legal requirements of bidding processes, the Air Force 
made some errors. Mr. President, 111 complaints were raised against the 
Air Force, but 8 were found to be worthy of objection.
  In the course of GAO's evaluation of the procedural conduct of the 
bid process, they reached these conclusions that I think have been 
overlooked as people have discussed this issue. For example, the GAO 
stated and did not dispute this:

       Northrop Grumman's proposed aircraft exceeded to a greater 
     degree than Boeing's aircraft a key performance parameter 
     objective to exceed the RFP's identified fuel offload to the 
     receiver aircraft versus the unrefueled radius range of the 
     tanker.

  In other words, GAO concluded and agreed that the KC-45 is more 
capable at refueling than the Boeing aircraft, which is what the Air 
Force found. They did not object to that point.
  In addition to carrying more fuel, which clearly the Northrop team's 
aircraft does, the GAO also agreed with the Air Force's professional 
conclusion that it would be easier--and this is important--it would be 
easier for pilots to refuel their jet fighters, for example, from the 
Northrop KC-45. This is an important issue.
  The GAO said:

       Boeing also protests the Air Force's conclusion in the 
     aerial refueling area that Northrop Grumman's proposed larger 
     boom envelope--

  The spread of the refueling booms--

     proposed larger boom envelope offered a meaningful benefit to 
     the Air Force. From our review of the record, including 
     hearing testimony on this issue, we do not find a basis to 
     object to the Air Force's judgment that Northrop Grumman had 
     offered a larger boom envelope and that this offer provided 
     measurable benefit.

  Further, the GAO also supported the Air Force's conclusion that 
Northrop's KC-45 was a better airlifter.
  GAO said:

       Boeing also challenges the Air Force's evaluation judgment 
     in the airlift area that Northrop Grumman's proposed aircraft 
     offered superior cargo, passenger, and aeromedical evacuation 
     capability than did Boeing's aircraft. From our review of the 
     record, including the hearing testimony, we see no basis to 
     conclude that the Air Force's evaluation that Northrop 
     Grumman's aircraft was more advantageous in the airlift area 
     is unreasonable.

  That is a big issue. Every combatant commander with whom I have 
talked and who has had to move troops, cargo, personnel, and equipment 
to the battlefield knows the critical need for as much airlift 
capability as they can have. These refueling tankers can also serve as 
a cargo aircraft and a troop movement aircraft. Clearly, the Northrop 
Grumman aircraft is more advantageous, according to the Air Force's 
professional finding. And that was approved by the GAO's analysis.
  The GAO also found and upheld the Air Force's holding that Northrop 
Grumman had a higher ``fleet effectiveness'' rating. Fleet 
effectiveness--also called IFARA--reflects ``the quantity of an 
offeror's aircraft that would be required to perform the scenarios in 
relation to the number of KC-135R aircraft that would have been 
required.'' Put simply, to boil that down, the Air Force judged that 
one Northrop plane could do more refueling more efficiently than one 
Boeing plane. And the GAO upheld that finding.
  GAO found no fault with the Air Force's conclusion that Boeing's 
proposal was more risky in certain areas and that their past 
performance on similar contracts was ``marginal.''
  The GAO said:

       We find from our review of the record no basis to object to 
     the Air Force's past performance evaluation, under which both 
     firms' past performance received a satisfactory confidence 
     rating. We also find no basis to question the SSA's judgment 
     that, despite equal confidence ratings that the firms 
     received under this factor overall, Northrop Grumman's higher 
     ``satisfactory confidence'' rating, as compared to Boeing's 
     ``little confidence'' rating, under the program management 
     area, was a reasonable discriminator. The Air Force evaluated 
     Boeing's past performance as marginal in this area . . . We 
     have no basis, on this record, to find the Air Force's 
     judgment unreasonable.

  What that means is they evaluated how well both of the bidders, 
Northrop Grumman and Boeing, have performed in other contracts in the 
past and found that Boeing's record was less sound. They were less 
reliable in performing the contract once they had been awarded it, and 
they gave extra points for that. That was affirmed by the GAO.
  Amidst all the discussion of procedure and KKPs, RFPs, and dotted i's 
and crossed t's, what did the GAO say in this matter? They said the Air 
Force picked a plane that could carry and offload more fuel more 
efficiently and in a more desirable way for the pilots. They also found 
that the plane's secondary mission, airlift, that can be very critical 
in a national emergency when we have to move cargo and personnel 
rapidly around the world would be accomplished more effectively by the 
Northrop aircraft. Finally, GAO agreed that the Northrop plane was 
lower risk and that Boeing had marginal past performance.
  So as we allow this process to proceed, as it should, as we expect 
the Air Force to take seriously the matters raised by the GAO, we will 
adhere to one overriding principle; that is, Congress ordered that the 
Air Force conduct a bid of which would be the best aircraft. This bid 
process was conducted by the Air Force as we as Members of Congress 
directed. I, as a lawyer, am not capable of flying an aircraft. Nor am 
I capable of analyzing aerodynamics and validating how much weight or 
wingspan or how much boom coverage is needed to safely refuel multiple 
aircraft at one time. I cannot

[[Page 14006]]

fully evaluate how valuable the ability to carry large amounts of fuel 
is as compared to an aircraft that carries less, but the Air Force is. 
What we need to do is make sure the Air Force does its job and selects 
the best aircraft. I strongly object to any attempt to politicize this 
process.
  Finally, I note that this aircraft would be constructed in Alabama, 
my home State. It is not going to be built around the world in some 
foreign land. It is a team headed by Northrop Grumman, also the EADS 
team. It will be an aircraft constructed in our country, with tens of 
thousands of jobs created in our country.
  I thank the Chair for the opportunity to share these remarks. I hope 
my colleagues will allow this process to proceed in a professional, 
lawful way and respect and honor the professional decision of the Air 
Force, which will have to live with this choice of tanker for perhaps 
another 50 years, like the current tanker.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Klobuchar). The Senator from Oklahoma is 
recognized.
  Mr. INHOFE. Madam President, so that we can lock in a couple of 
things, I ask unanimous consent to speak as in morning business, and 
then I would be followed by the junior Senator from Pennsylvania.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                Zimbabwe

  Mr. INHOFE. Madam President, I thank the junior Senator from 
Pennsylvania for allowing me to go ahead of him on something I think is 
very significant and something with which I am sure he agrees.
  Today, I want to call attention to a place that has been lost in the 
sea of many other conflicts and crises plaguing our world--Zimbabwe, a 
country slightly bigger than the State of Montana which sits in the 
southeastern portion of Africa. It has faced and continues to face 
difficult challenges and untold sufferings caused by an authoritarian 
and corrupt leader, Robert Mugabe.
  After fighting a long battle and civil war, Zimbabwe gained 
independence in 1980 from the white Rhodesians. Independence came with 
an envisioned sense of hope. Everyone thought good things were going to 
happen, and the President that was elected was a man named Robert 
Mugabe. But the honeymoon quickly ended with the realization that newly 
elected President Mugabe had fought the war to gain personal power and 
control rather than to provide freedom and democracy for its people.
  In the 1990s, the country continued to weaken under the self-centered 
leadership of Mugabe. As the Book of Proverbs--Solomon--tells us: 
``Where there is no vision, the people perish.'' That is what is 
happening in Zimbabwe.
  Robert Mugabe failed to provide a vision for his country, focusing 
solely upon himself and his ability to remain in power. The people of 
Zimbabwe have suffered dramatically as a consequence.
  In a country that once showed evidence of steady economic growth--a 
country, I recall, that was considered one of the wealthiest countries 
in Africa; that was considered to be the bread basket of Africa--it has 
now been named the world's fastest shrinking economy.
  In 2007, inflation rose above 8,000 percent. Unemployment is 
estimated at 80 percent, and 80 percent of the population lives on less 
than $2 a day. Mugabe's leadership has been such a disgrace. Throughout 
almost 30 years of his leadership, nearly 28 years, he has worked to 
tighten his rein over the nation by intimidation, violence, and 
oppression.
  In 2002, the Government initiated a farmland redistribution program 
which resulted in 400,000 farmers losing their homes and livelihood. 
The program resulted in scandal and embarrassment to Mugabe when 
investigations revealed that more than 300 farms were intended for his 
senior officials and ministers rather than for resettlement. In other 
words, these were payoffs to his political friends.
  In 2005, Mugabe initiated one of the most inexcusable incidents of 
his Presidency. Operation Murambatsvina--or translated, Operation Clean 
Out the Filth--was a demolition project the Government claimed was 
designed to reduce crime in the major city. It resulted in an estimated 
700,000 Zimbabweans losing their homes. Twenty percent of the 
population has been reported as affected by the demolitions.
  Many people thought this was a political move aimed at squashing any 
potential protests or uprisings against the regime and displacing the 
opposition party base. Not only has Mugabe's actions displayed his 
blatant disregard for the well-being of his people, but he has also 
expressed this in his own words. In August of 2006, after a violent 
crackdown on a peaceful protest by the Zimbabwean union, Mugabe said he 
had warned, prior to the incident, that security forces ``will pull the 
trigger'' against the protesters.
  Mugabe said this:

       Some people are now crying foul that they were assaulted. 
     Yes, you get a beating. When the police say move, move, if 
     you don't move, you invite the police to use force.

  Many believe that the farmland redistribution and Operation Clean Out 
the Filth contributed drastically to the poverty affecting the 
Zimbabweans. The Government has accused food aid agencies of using food 
to turn Zimbabwe away from Mugabe's ruling party, and, in turn, 
continues to maintain tight control of food distributions.
  The totalitarian regime has, not surprisingly, placed a very 
significant emphasis on their military and security forces. In 2006, 
the Government reportedly spent more than $20 million--that is 20 
million U.S. dollars--to purchase new cars for police, military, and 
intelligence officers. In a dying economy, it is stunning that Zimbabwe 
is able to buy high-priced military articles, to include their recent 
purchase of fighter jets from China costing more than $240 million.
  As you know, Madam President, China has an increasing influence on 
the continent of Africa, but their relationship and long support of 
Mugabe's ZANU-PF Party is concerning. China is currently Zimbabwe's 
largest investor and second largest trading partner. As most Western 
countries, including the United States, enforce an arms embargo against 
the country, China continues to sell defense articles to the regime. 
Most recently, South Africa refused to let a Chinese cargo ship unload 
because it was carrying more than 70 tons of small arms destined for 
Zimbabwe.
  China has also played a significant role in diplomacy in Zimbabwe. 
China was Mugabe's key supporter through the international outrage in 
response to Operation Clean Out the Filth. China worked to quiet the 
U.N. condemnation of the incident and is now expected to veto any 
proposed action by the Security Council to punish Mugabe's 
administration--which, of course, they can do under the rules of the 
United Nations. China's persistent support and supply to Mugabe's 
regime demonstrates their indifference to the violence, oppression, and 
potential civil war looming in the country.
  On March 29, 2008, Zimbabwe held Presidential elections along with 
parliamentary and local elections. I am very familiar with this, Madam 
President, because I was there when it happened. I was actually in 
Tanzania, and we were watching very carefully, with all the countries, 
all hoping that they would have an honest election. Sure enough, Mugabe 
lost. The incumbent President Mugabe ran for the ZANU-PF Party, and a 
man named Morgan Tsvangirai for the Movement for Democratic Change 
Party.
  The election process was tainted with intimidation of voters and 
violence against the opposition party and supporters of the opposition. 
Political rallies were banned. The opposition party's secretary general 
was jailed, denied bail, tried for treason, and may face the death 
penalty. There are also reports that the regime is restricting access 
to food in opposition areas, threatening already hungry people to 
either vote for Mugabe or to starve.
  The results of the race, finally released in May, indicated that the 
MDC opposition leader won the election but didn't quite reach the 50 
percent, so

[[Page 14007]]

 there was a runoff that was scheduled for Friday--that is this Friday, 
the 27th. Sadly, this week, the opposition leader, because of threats 
on his life, pulled out of the race and refused to take part in what he 
calls ``a sham of an election process.'' He said he cannot ask 
Zimbabweans to vote ``when that vote could cost them their lives.'' He 
has taken refuge now in the Embassy of the Netherlands.
  Mugabe has clearly stolen the election, and the outlook for true 
reform for democracy for the people of Zimbabwe looks very bleak at 
this time.
  As I have traveled across the continent--and I have traveled across 
Africa more than any other Member probably in the history of America--I 
have seen wonderful things happening on the continent. Whether it is 
Rwanda, Burundi, Tanzania, Uganda, Ghana, Benin, or Cote d'Ivoire, in 
these countries wonderful things are happening. They are making great 
strides everywhere except Zimbabwe. While Mugabe leads Zimbabwe away 
from reaching its full potential, there are other leaders on the 
continent who have chosen a vision of democracy, freedom, and progress 
in their countries. And while not perfect, each is making improvements 
and taking strides to improve democratic practices and exercising the 
free political will.
  Mugabe will never allow his people to decide the next phase and 
direction of their country. I think we should call on the African 
leaders, which I have done personally in Africa--many of whom are my 
friends and brothers--and leaders all over the world to do what we can 
to help the people of Zimbabwe.
  I have to say, Madam President, and I speak firsthand because I was 
there when this happened, that Zimbabwe was once the bread basket of 
sub-Sahara Africa, and I have seen Zimbabwe now, the most devastated of 
all the 52 countries of the continent of Africa.
  With that, I yield the floor, and again I thank my friend from 
Pennsylvania for allowing me to go before his presentation.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Madam President, the Senator from Pennsylvania is now, 
under previous consent, going to be recognized, and it is my 
understanding as well that the Senator from Rhode Island, Senator 
Whitehouse, would like to follow him. I ask unanimous consent that 
following both Senator Casey and Senator Whitehouse that I be 
recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania is recognized.


                           Rising Gas Prices

  Mr. CASEY. Madam President, I rise today to talk about a problem so 
many of our families are facing and so many of our businesses, and that 
is the problem of rising gas prices. Unfortunately, we have seen an 
increase of at least $1 at the pump in just 1 year.
  Like a lot of my colleagues in the Senate, I just received a letter 
from a woman in Pennsylvania, 86 years old, from Bucks County, PA, and 
she talked about, in her letter, the Great Depression, when she was 
describing how people had nothing and how worried she is about our 
current economic crisis, especially in light of these gas prices. She 
reminds us that, just as in the Great Depression, we need to have 
commonsense solutions to dig ourselves out of the economic trauma so 
many families face.
  Today, whether it is on gas prices, the cost of health care, or the 
mortgage foreclosure crisis that has gripped the country, we do need 
commonsense solutions. We don't need more gimmicks, we don't need more 
partisan bickering, we need commonsense solutions. And those solutions 
on gas prices are not a magic wand. No piece of legislation in the 
Senate will bring down gas prices immediately. We know that. Anyone who 
says otherwise is not speaking the truth. But there are things that we 
can do to at least begin the process, or go down that road, I should 
say, of bringing those prices down.
  We have to move in a direction that focuses on short-term solutions 
as well as long-term--short term and long term. We will talk about 
those in a couple of moments, but, in particular, I think we should 
focus on one problem where I think there is even some bipartisan 
agreement on, and that is speculation in the oil futures market. We 
have never seen it like it is now, where profiteers from places in this 
country but also from around the world, literally make money, in some 
cases millions of dollars, every time that price of gasoline goes up.
  So we have to bring some discipline and some accountability and some 
transparency to the marketplace. And speculation is one area where we 
need to have legislation. That would help more short term than long 
term.
  How about big oil? They have a role to play. By one estimate, the 
five biggest oil companies, over 5 years, have seen their profits go up 
by five times. I don't think there are many families in America who 
have seen their bottom line, their family income, go up by five times 
over 5 years, and big oil has seen that. Just since 2001, their profits 
have increased over $600 billion. Now, if their profits are going up at 
that rate since 2001, and if the price of gasoline under this 
administration went up from $1.46 or $1.47 to $4--and on top of all 
that, in addition to those oil company profits, the previous Congress 
gave them $17 billion in tax breaks--something is wrong. This is beyond 
inequitable; it is just bad policy. It is not working.
  What we are seeing is the status quo. We keep giving oil companies 
tax breaks hoping their hearts are big enough to help us and it will 
all work out, but that hasn't happened, and it will never happen in 
light of what we have seen in recent history. So it is about time for 
big oil to do what President Kennedy implored us to do many years ago, 
and that is to do something for their country at this time of record 
profits for them and pain at the pump and this economic squeeze that so 
many families and small businesses face.
  What can we do? A couple of things. First, we could enact legislation 
such as the legislation I proposed in 2007, way back in the spring of 
2007. My bill was the Energy Security and Oil Company Accountability 
Act. It would do basically two things. I will describe it very quickly.
  First, end those tax breaks for big oil. They have gotten enough and 
we have not seen any results for those tax breaks. End those breaks and 
other credits our Government gave them and use those savings to our 
Government not just to sit there, but use those savings to invest in 
research and development on alternative fuels and the infrastructure we 
need to bring alternative fuels to the marketplace and to help us with 
our energy challenges. That is No. 1: End the breaks.
  No. 2, under my legislation, impose a windfall profits tax on big oil 
and use that savings to redirect those dollars for relief for our 
families, especially low-income families who are trying to make ends 
meet. They are trying to pay for health care, they are trying to pay 
for a mortgage, trying to pay for higher education, and on top of that 
they are paying $4 or more at the pump. It is time oil companies helped 
us in this process.
  My legislation would do those two things. I was happy the major part 
of my legislation from 2007 made its way into what Democrats in the 
Senate proposed a couple of weeks ago, legislation that was blocked and 
obstructed by the Republicans in the Senate. The Consumer First Energy 
Act would do a number of things. I will describe that quickly.
  First, getting back to our point about speculation, this legislation, 
the Consumer First Energy Act, would finally at long last do something 
about market speculation. Why should we sit back and say: Gas prices 
are too high; it is too bad; there is nothing we can do about it.
  There is something we can do about it. One part of the solution, one 
part of the commonsense approach--and I think my colleagues on the 
other side would agree with this for the most part--is we should bring 
more transparency to these transactions. This raw speculation is all 
over the world, but it is even here in America, where

[[Page 14008]]

profiteers are making money while the price of gasoline goes up for our 
families. They are literally trading in the dark.
  You know the old expression that sunlight is the best disinfectant to 
corruption--which is one of the best ways to describe what is happening 
here. To take the corruption out of that marketplace, we need to apply 
some sunlight to those transactions. If the transactions are OK and 
people want to make a lot of money, why shouldn't we have information 
about those transactions? Apply some sunlight and transparency to those 
transactions. If people are going to make money, they ought to do it in 
the light of day, not under cover of darkness. If it is so good to do 
and they want to make money, these profiteers, and do well in the 
marketplace, we ought to require them to have more stake in the 
transaction, more skin in the game, so their margins, what they have to 
put down, should be a much higher number. If they want to make money, 
we want more transparency on those transactions and we want them to put 
down more money. If they do that, they will have the opportunity to 
make money.
  The first thing this legislation does is crack down on speculation. 
The legislation the Senate Democrats offered, the Consumer First Energy 
Act, also made it very clear that, at long last, in American law, price 
gouging is illegal. It is at best murky right now. We have to be very 
clear about what price gouging is and what it is not, and make it 
illegal.
  The other thing this legislation did was adopt the idea I had, and 
many others had--I am not the only one--on the issue of the windfall 
profits tax, saying to oil companies: You can have profits; there is 
nothing wrong with that; but if you are going to have record profits 
while American families do not have their income going up, you have to 
help us. You have to do, as I said before, something for your country, 
Mr. Oilman, Mr. Oil Company. You have to do something to help your 
country.
  If you are diversifying and helping us reduce our dependence on 
foreign oil, if you are giving us options to reduce our dependence and 
have a long-term energy strategy, then maybe the profits tax on your 
company wouldn't be as high. But if you are going to turn a blind eye 
to this problem and say you are going to make record profits and not 
help, we are going to impose a tax on you and make sure you are doing 
your share--especially when the oil companies have made $600 billion 
since 2001.
  There are other parts of the Consumer First Energy Act I will not go 
into in the interest of time. But there are things we can do. These are 
short-term strategies. But the long-term solution here we know is 
committing ourselves to future of energy independence. That means 
investing dollars, using the Tax Code, using incentives to do what 
Americans do best. When Americans have an opportunity to use their 
brainpower and their innovation and their ingenuity to help on a 
problem, we have to make sure our Government is backing them up.
  We are not doing nearly enough to invest in the new technologies--
whether it is clean coal technology or whether it is investing in 
biofuels, all kinds of alternatives, and renewable sources of energy. 
Our Government is not doing enough to incentivize the marketplace to 
come up with a solution long term so we do not face this problem in the 
future.
  Before I conclude, I want to address a couple of arguments. One of 
the arguments we hear time and again is about drilling. Over and over 
we hear about drilling from some people here in Washington, some people 
here in this body. I do not think many people believe the basic 
argument that we can drill our way to energy independence. No one 
believes that. But the argument is made over and over again. I think in 
the interests of putting facts on the table, we ought to put a few on 
the table right now. Here are some facts important in this debate about 
``we can just drill our way out and all our problems will go away with 
lower gas prices.''
  Fact No. 1, the percent of America's recoverable oil reserves already 
open for drilling--79 percent.
  Fact No. 2, America has 3 percent of the world's oil reserves. That 
is not nearly enough to impact world oil prices. We have 3 percent of 
the reserves, yet we consume 25 percent of the world's oil. There is no 
way, no matter what we do on drilling, that we can drill our way out of 
this.
  Fact No. 3, oil companies already have access to 45.5 million acres 
of Federal land to drill for oil and natural gas. They should tell us 
why they are not drilling in those areas.
  Oil companies, fact No. 4, are only drilling on 21 percent of the 
leases they currently have offshore in Federal waters. Why is that, Mr. 
Oil Company? Why are you not drilling on more than 21 percent?
  The last fact: Oil companies have refused to invest in refining 
capacity. They have lost 4 percent of refining capacity since 2001. 
Since 2001--remember those profits I talked about? Since you were 
making, oil companies, $600 billion in profits since 2001, why did you 
lose 4 percent of refining capacity? Why are you crying crocodile tears 
right now that you need more land when you have all those acres?
  These are questions the oil companies should answer. These are facts 
that are not making their way into the debate.
  I think we have not a magic wand to propose, but we have short-term 
relief we can provide and long-term strategies to reduce our dependence 
on foreign oil; to literally not just commit ourselves to an energy 
future that is good for our families and for our country but is about 
national security in the end. Unless we can do that over time, and 
unless we commit ourselves to these strategies, we are not only going 
to be dependent on other countries for our oil but we will be less and 
less safe because of that dependence.
  I think it is critically important that we take action instead of 
blocking legislation, as happened earlier this month on so many of 
these short- and long-term solutions.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Madam President, before I discuss for a moment the 
Foreign Intelligence Surveillance Act, I applaud my colleague, the 
distinguished Senator from Pennsylvania, for his remarks. In the year 
and a half we have served together in this body, he has stood out as a 
powerful advocate for consumers, particularly Pennsylvania consumers. 
He has always had a very thoughtful, helpful, and productive approach 
to the solutions he has put forward and espoused. It is an honor for me 
to follow him on the Senate floor here.
  On the question of the Foreign Intelligence Surveillance Act, I will 
talk about the immunity question for telecoms at another time. It is 
not yet clear what amendment will be allowed to be offered. I thought I 
would talk about two other issues at this point. The first is the 
process that has got us here. I do wish to pay particular tribute to 
the chairman of the Senate Select Committee on Intelligence, Jay 
Rockefeller, for how steadfast he has been in pushing through this 
process.
  We in the Senate have also been done a great service by our 
colleagues in the House of Representatives, who stood fast against the 
Bush administration efforts to stampede this legislation through 
without proper negotiation and without the basic process of back and 
forth that ordinarily improves legislation. It has made for a better 
piece of legislation. It also makes for a notable contrast with what 
happened a year ago, when we first took up this legislation.
  I wish to talk for a minute about that because it was a very 
disappointing episode, I believe, in the Senate's history, and it is 
one I wish to make sure we chronicle because it should not be repeated.
  In order to understand what I am going to say, it will be important 
to remember the schedule at the time. I have just replicated July of 
2007, and the early days of August here. The first time the big sort of 
stampede push began, for me at least, was when the Director of National 
Intelligence, Admiral McConnell, met with me on July

[[Page 14009]]

11 in the secure confines of the Senate Intelligence Committee to tell 
me what he wanted. There had been a big FISA bill that had everything 
but the kitchen sink in it. It was clearly going no place. He realized 
he would have to focus on what he wanted, and he said three things. 
These are from my notes of that meeting.
  No. 1, we need to compel the telecoms to help us; No. 2, we need to 
get foreign-to-foreign conversations, not Americans, foreign-to-foreign 
conversations without having to go to the FISA Court; and No. 3, we 
need a warrant if we are going to wiretap Americans. We accept that.
  So I said to him: That is fine, but you do not have any legislation. 
We are suspicious of what is going to be in this legislation when it 
shows up, so the sooner you can get it written and the sooner you can 
get it to us the better, because the devil is going to be in the 
details and we need a chance to look it over. That was on July 11.
  The draft legislation was circulated on July 27. It was circulated, 
at least to me, by mail, so I didn't get it on July 27. I got it over 
the weekend, the following Monday, on July 30. The Friday from Monday 
delivery stunt is one we have seen before. But what concerned me was 
that once that legislation was delivered, the Bush administration began 
to whip up everything they could do to try to panic Americans about 
what was going on.
  On July 28, that Saturday, President Bush gave a radio address, 
saying:

       Our intelligence community warns that under the current 
     statute we are missing a significant amount of foreign 
     intelligence that we should be collecting to protect our 
     country. Congress needs to act immediately to pass this bill 
     so that our national security professionals can close 
     intelligence gaps and provide critical warning time for our 
     country.

  He asked us to work together to pass FISA modernization now, before 
we leave town, and said our national security depends on it. That is 
what he said here.
  The Senate promptly picked up the chorus with one of my colleagues 
saying we would be deaf during August to discussions of threats being 
carried on by al-Qaida and others seeking to do us harm if we did not 
pass the legislation.
  Another colleague said:

       This is a time when the Director of National Intelligence 
     and the Secretary of the Department of Homeland Security have 
     said it is a high threat month and it is imperative for 
     national security that we adopt this now.

  Another one of our colleagues said:

       Make no mistake, inaction on our part needlessly subjects 
     every American to increased danger. We need to act.

  Those are just several high points of a real campaign to try to drive 
this issue by public fear.
  Well, here is what concerned me. If, when the President spoke on July 
28, national security was that vitally affected by the speed of this 
legislation; if every day that went by we were missing intelligence, 
because of an intelligence gap, of al-Qaida plots that were being 
developed then and there to attack us; if that were true also on the 
3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and 
all the way through here when they circulated the draft on July 27?
  Here is what they sent us. This. It is 12 pages. That is it. Double 
spaced. I could write 12 pages of legislation double spaced in 17 hours 
if our national security depended upon it. It would not take me 17 
days. So when it takes them 17 days to write 12 pages of legislation 
and then deliver it on the Monday before we recess and suddenly there 
is an explosion of concern about immediate al-Qaida attacks that are 
being planned that we need to get into, something does not add up. I 
believe the result was what I call the August stampede, and as a result 
we passed, bluntly, a very poor piece of legislation, the so-called 
Protect America Act.
  This piece of legislation does a number of very good things to repair 
some of the damage in the Protect America Act.
  The first is protection for Americans when we travel abroad. 
Americans travel a lot now. They travel on business, they travel on 
vacation. It is a lot more expensive now given the Bush 
administration's oil prices, but people still travel a lot. The rule 
had been, under the Protect America Act, that if you were traveling 
abroad, you had no statutory or judicial protection of your privacy, 
none whatsoever. They could listen to your telephone calls, they could 
take your BlackBerrys, e-mails, anything--it was open season. There 
were no statutory or judicial protections for Americans once they set 
foot outside of the country. The only protection was an executive 
order, 12333, which said that if the Attorney General determined that 
you as an American were an agent of a foreign power, then they could 
listen, then they could surveil, then they could intercept, but only if 
the Attorney General made that determination. So there was a 
protection, but it was only an executive order--nothing statutory, 
nothing judicial. Then we looked into the opinions that underlie the 
Bush warrantless wiretapping program, and here is what I found.
  The flaw in the Protect America Act is that it contained no 
statutory, no judicial protections for Americans once they were 
traveling abroad and put them at the mercy of the executive branch of 
Government to be wiretapped at will, protected only by an Executive 
order. Our discovery, in the course of looking at the classified legal 
opinions that supported the warrantless wiretapping program, we 
discovered this rule that had been inserted by the Office of Legal 
Counsel:

       An executive order cannot limit a President. There is no 
     constitutional requirement for a President to issue a new 
     executive order whenever he wishes to depart from the terms 
     of a previous executive order. Rather than violate an 
     executive order, the President has instead modified or waived 
     it.

  Well, as a theory, I think that is, frankly, deeply flawed legally.
  In my examination of Attorney General nominee Mukasey, I asked him 
what the force of an Executive order was. He answered me saying:

       Should an executive order apply to the President and he 
     determines that the order be modified, the appropriate course 
     would be for him to issue a new order, or amend the prior 
     order.

  I think that is not only the correct but the obvious solution. But we 
were left in a situation in which an American traveling abroad, without 
statutory protection, without judicial protection, and with the only 
protection from the executive being a protection that the President 
cannot be limited by and that he can ignore at will--frankly, that was 
no protection at all.
  So we worked very hard in the committee--and it has persisted through 
the entire lengthy process we have been involved in--to make sure that 
an American, whether you are in the United States or traveling abroad, 
has the protection of a judicial order before your Government can 
wiretap you. And that has been achieved. That has been an important 
achievement.
  A second achievement has been in the area of minimization. I know the 
Presiding Officer was a prosecutor in Minnesota. I have run wiretap 
investigations as a U.S. attorney, I have run wiretap investigations as 
an attorney general, and I have seen firsthand how important 
minimization is to a wiretap investigation.
  Minimization is what happens when you have the authority to wiretap 
somebody, but because you have the authority to wiretap one person, 
they could be talking to somebody else who is not part of the criminal 
or national security activity involved, and if that proves to be the 
case, you have to minimize that to protect the rights of the third 
person they are talking to. In the old days, the FBI agents would 
literally sit there with their earmuffs on listening and flip the 
switch on and off to see whether the conversation was still an innocent 
conversation or related to some criminal matter.
  Now it is more complex, but those minimization procedures did not 
previously have any judicial oversight. They only were required to be 
filed. Under this bill, the Attorney General shall adopt minimization 
procedures. It is mandatory. But more than that, the Foreign 
Intelligence Surveillance Court is given authority to review those 
minimization procedures; specifically, to determine whether those 
procedures meet the statutory standards

[[Page 14010]]

we require for minimization procedures. So that is particularly 
important.
  Finally, this statute for the first time recognizes ``the inherent 
authority of the FISA Court to determine or enforce compliance with an 
order or a rule of such court.'' So they not only get the minimization 
procedures, they get to approve the minimization procedures. If it is 
determined that the executive branch isn't following them, they can 
check for compliance, and they can enforce the procedure. That is a 
substantial, additional improvement that brings this in line with the 
traditions of wiretap surveillance within the United States.
  Another significant improvement has been in the area of exclusivity. 
FISA has always said that ``it shall be the exclusive means by which 
electronic surveillance . . . and the interception of domestic wire, 
oral, and electric communications may be conducted.''
  That was clearly the intent of Congress, as courts, including in the 
Andonian decision, have agreed. However, we have a problem again with 
the Office of Legal Counsel. The Office of Legal Counsel said this:

       Unless made a clear statement in the Foreign Intelligence 
     Surveillance Act that it sought to restrict presidential 
     authority to conduct wireless searches in the national 
     security area--which it has not--then the statute must be 
     construed to avoid a reading.

  I don't know how you get ``which it has not'' out of the clear 
language of the Foreign Intelligence Surveillance Act saying this is 
the exclusive means. But once we found out that in these classified 
opinions the Office of Legal counsel had suggested this language right 
here either didn't exist or didn't mean anything, it had to be solved. 
Thanks to the leadership of Senator Feinstein, in particular, there has 
been great energy put into improving the exclusivity provision. I think 
it is now an exclusivity provision that would defeat this type of, 
frankly, improbable legal analysis and clearly define that it is 
Congress's intent in the FISA statute to take every possible avenue it 
can to limit executive surveillance activities to those that are 
performed within the statutory authority of this particular 
legislation.
  The last thing is reverse targeting. There has been considerable 
concern about allowing the Government to identify a foreigner who is in 
touch with Americans regularly and target that foreigner with the 
reverse targeting purpose to actually pick up the conversations of the 
American and dodge the requirement for a warrant for judicial review 
vis-a-vis the American. There are strong provisions in here that 
require that regulations and procedures be developed to prevent that.
  I hope to be able to discuss the statute further, as we get to the 
discussion about immunity. But I will conclude by summarizing that the 
process we went through to get to this piece of legislation, 
particularly article I of this bill, was a very proud moment for this 
Senate and for this caucus, for Chairman Rockefeller. It has been 
infinitely better than the degraded process we went through last August 
in the atmosphere of stampede. I think the quality of the underlying 
legislation shows it. I hope as we continue to work together in the 
Senate on other issues, we continue to follow the process that took 
place with respect to this iteration of the FISA bill, and we never go 
back to the kind of hectic, imprudent stampede we were put through last 
August. Second, the elements of article I are improved. This is, in 
article I, a bill we can we very proud of. We will have our dispute 
about the immunity provisions. I will have my thoughts on that for 
later. But there is much that has been accomplished and great credit is 
due particularly to Chairman Rockefeller for those accomplishments.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative 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.

                          ____________________