[Congressional Record (Bound Edition), Volume 155 (2009), Part 19]
[Senate]
[Pages 25117-25132]
[From the U.S. Government Publishing Office, www.gpo.gov]




 DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2010--CONFERENCE 
                           REPORT--Continued

  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Oklahoma is recognized.
  Mr. COBURN. Mr. President, I believe we are going to be considering 
the Homeland Security conference report. I want to spend a few minutes 
talking about that so that the American public might realize what we 
are doing. This year's spending totals have averaged, on individual 
appropriations bills, anywhere from a high of 24 percent to a low of 
about .6 percent, on one bill that had received twice its annual 
appropriation in the stimulus. We have of course a conference report 
that is $42.7 billion. That is a 6.5, almost 7-percent increase over 
last year, the same the year before, and a 23-percent increase the year 
before that. There is no question, homeland security is an important 
part.
  The issue I want to raise with my colleagues and the American people 
is, we had inflation of 1.5 percent last year. We do have one bill, one 
bill that has come in at inflation or less. All the rest are averaging 
around 10, 11, 12 percent increases. We ought to be concerned about 
what the Congress is doing in terms of increasing the spending in light 
of the fact that we have just finished a year in which we had a 
published $1.4 trillion deficit. But those are Enron numbers. That is 
Enron accounting because we didn't recognize all the money we borrowed 
from trust funds that don't go to the public debt, that are internal 
IOUs that our children nevertheless will still have to pay back.
  The real reason I want to talk about this bill is because it purports 
to have an amendment on competitive bidding. I will grant that the 
amendment is better than no amendment, but the American people should 
be outraged at what we have done on competitive bidding in this bill. 
What we have said is we want competitive bidding--except for our 
friends. If you are connected to a Senator through an earmark or if you 
are connected through a grant process, what we have done is taken a 
large number of grants and directed them specifically without 
competitive bidding. What does that mean to the process? What does that 
do to the integrity of the process? It says if you are well heeled and 
well connected, then in fact you can have what you want on a 
noncompetitive basis, because that is what the amendment in the bill 
says. But if in fact you are not, then you will have to compete on the 
basis of merit and price like everybody else in the country.
  Once again we have earned our lack of endorsement by the American 
public because of what we have said: ``Unless otherwise authorized by 
statute without regard to the reference statute.'' Those are fancy 
words for saying we want competitive bidding on everything except 
earmarks and the congressional directive we have in this bill.
  That means if you have a business and you have an earmark, you didn't 
have to be the best business to get that, to supply the Federal 
Government whatever it is. If you are a grant recipient and got 
earmarked, you didn't have to be the one with the greatest need, No. 1, 
or the most efficient way to generate the dollars through that grant. 
What it does is it puts on its ear any semblance of fair play, No. 1; 
and, No. 2, it takes away the initiative for everybody else who now is 
going to get a competitive bid. What it is going to do is drive a 
greater demand for earmarks in the future.
  We ought to ask ourselves the following question: If this is taxpayer 
money and our grandchildren's money--because 43 percent of this bill is 
going to be borrowed--is it morally correct, is it intellectually 
honest that we would say: If you are connected, if you have an ``in,'' 
you don't have to meet the same level of responsibility and 
accountability as those who are well connected? I think that is a great 
question for us to debate.
  Unfortunately, a real competitive bidding amendment was not agreed to 
in this bill that would put all of it at competitive bidding. Senators 
have the right to say we ought to do something. But they don't 
necessarily have the right to say we ought to do something and this 
person ought to benefit from it. It is not ours to give away. When we 
do things as we have done in this bill to protect those most well 
heeled, those most well connected to the Congress, by saying everybody 
else is going to play under one set of rules but if, in fact, you have 
a friend or a connection or an earmark or a directed grant, you don't 
have to play by those rules, not only is it unfair to everybody else 
who does not have to play by those rules, it actually undermines the 
value of what we do.
  On the basis of that and the spending levels, I plan on opposing the 
Homeland Security conference report. My hope is that we will get 
better, that in fact we will not play games with the American public, 
that we will not say our friends get to get treated differently than 
anybody else in this country and that every dollar we spend we can 
assure to the American taxpayer is going to go to the best firm to do 
that based on a competitive bid so we actually get the best value for 
the hard-earned dollars that are being spent.
  I yield the floor.
  Mr. LIEBERMAN. Mr. President, I rise to urge my colleagues to vote 
for passage of the fiscal year 2010 appropriations bill for the 
Department of Homeland Security.
  First, I want to thank my colleagues on the Appropriations 
Subcommittee on Homeland Security, Chairman Byrd and Ranking Member 
Voinovich, as well as full Committee Chairman and Ranking Member Inouye 
and Cochran for all the hard work and consideration they brought to 
this bill.
  The overall bill, which provides $42.776 billion in discretionary 
funding for DHS in fiscal year 2010, is $151 million less than the 
total provided in the Senate bill, but $159 million higher than the 
House funding total, and seems to me to be a fair compromise.
  The resources provided in the bill are sufficient to carry out the 
Department's core missions of protecting the homeland against the 
threat of terrorism, securing our borders, enforcing our immigration 
laws, and preparing for and responding to terrorist attacks and natural 
disasters.
  While there are many programs and activities at DHS deserving of 
funding above the level provided in this bill, we are in a time of 
serious economic challenge, and obviously tough choices had to be--and 
were--made in putting this legislation together.
  This bill reflects the priorities of a department that has made great 
strides in the last 6 years but still faces many hurdles in fulfilling 
the mission Congress laid out for it in 2002. Senator Collins and I 
have worked together since DHS was created--alternating as chairman and 
ranking member of the primary authorizing committee for the 
Department--to strengthen the Department's ability to carry out its 
many national security assignments, to strengthen its management, 
facilitate its integration, and to hold its leadership accountable to 
an American public that has a right to be safe and secure within the 
borders of our own Nation.
  In May, I wrote to Chairman Byrd and Ranking Member Voinovich setting 
forth what I believed to be the most significant appropriations 
priorities for the Department, and I am grateful that a number of my 
recommendations have been incorporated into this bill. Let me briefly 
discuss a few sections of this bill that I believe are particularly 
important to our homeland security.
  First, I am pleased the Appropriations Committee recognized that the 
Department's management and operations accounts need adequate funding 
if DHS is to succeed as it must. Secretary Napolitano has emphasized 
the need to create ``One DHS'' where the Department's many components 
are working closely together. To accomplish this, the offices for 
policy, human capital, acquisition, and information technology need 
additional resources, and all received significant increases in their 
budgets. The additional investment in acquisition oversight is 
particularly gratifying, as it will improve the Department's ability to 
oversee the

[[Page 25118]]

$12 billion it spends each year on contracts with the private sector to 
better ensure our tax dollars are not wasted on bloated or ineffective 
programs.
  Second, this bill, together with the funding provided in the fiscal 
year 2009 supplemental, significantly increases resources for combating 
violence on our southern border and includes the bulk of the $500 
million increase in border security funding Senator Collins and I 
successfully added to the Senate budget resolution in March.
  The FBI has said that the Mexican drug cartels are the number one 
organized crime threat in America today, replacing the Mafia. The kind 
of targeted and grisly violence we are seeing in Mexico is 
unprecedented. Thanks to this funding, DHS will be able to send almost 
300 additional law enforcement officers to our ports of entry in order 
to conduct southbound inspections and interdict the illegal flow of 
cash and guns into Mexico that is fueling the cartels' ruthless attacks 
against the Mexican Government.
  The funding will also add hundreds of ICE investigators to work on 
drug, currency, and firearms cases in the border region, and will 
expand the Border Enforcement Security Task Force fusion centers that 
ICE has established along the southwest border. This funding was badly 
needed to help Federal, State, and local law enforcement agencies take 
down these sophisticated and dangerous drug and human smuggling 
networks. The Mexican drug cartels represent a clear and present threat 
to homeland security, and I remain fully committed to working with the 
administration to support our Federal law enforcement agencies in this 
crucial fight.
  Third, this bill continues funding for the Homeland Security grant 
programs that our first responders need to prepare for acts of 
terrorism and natural disasters at the State, local, and tribal levels. 
Funding for the State Homeland Security Grant Program, which provides 
basic preparedness funds to all States and is the largest of DHS's 
grant programs, remains steady from last year at $950 million, 
including $60 million for grants focused on border security, 
essentially the full level authorized by Congress in the Implementing 
Recommendations of the 9/11 Commission Act of 2007. Funds for Urban 
Area Security Initiative, UASI, grants, which provide resources to the 
Nation's highest risk metropolitan areas, are increased by nearly $50 
million over last year.
  I am also pleased that funding for SAFER grants which assist local 
fire departments with the cost of hiring new firefighters was doubled 
to $420 million for fiscal year 2010. In this era of budget 
constraints, this funding will help ensure that communities are able to 
continue to staff their local firehouses.
  The Appropriations Committee has also wisely restored a significant 
portion of the funding cut from the President's budget for assistance 
to firefighter grants. These grants fund essential equipment, vehicles 
and training for firefighters. However, the $390 million for these 
grants still represents a cut of nearly one-third below the fiscal year 
2009 appropriation. I hope that next year the funding for this 
important program will be brought fully up to its previous level.
  Fourth, this bill wisely supports the administration's request for a 
significant increase in funding for cybersecurity at DHS which has been 
identified as one of our top national security priorities. The 
Department needs resources to protect Federal civilian networks from 
cyber-related threats and to work with the private sector to protect 
their networks and infrastructures. The Homeland Security and 
Governmental Affairs Committee is currently working to develop 
legislation that strengthens the government's authorities with respect 
to cybersecurity, so this funding decision is particularly important.
  Fifth, this bill adds $25 million above last year's appropriation to 
support coordination, management and regulation of high-risk chemical 
facilities and brings DHS regulator staff to 246--an increase of 168 
over the 2009 staffing level.
  This bill makes other essential homeland security investments in port 
security, transit security, science and technology, and biosecurity, 
all of which are critical to the overall security of the Nation.
  I believe that overall this is a strong and essential piece of 
legislation. I thank the leadership and the members of the 
Appropriations Committee for their work on this bill and strongly urge 
my colleagues to support its passage.
  Mr. INOUYE. Mr. President, I submit pursuant to Senate rules a 
report, and I ask unanimous consent that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Disclosure of Congressionally Directed Spending Items

       I certify that the information required by rule XLIV of the 
     Standing Rules of the Senate related to congressionally 
     directed spending items has been identified in the conference 
     report which accompanies H.R. 2892 and that the required 
     information has been available on a publicly accessible 
     congressional website at least 48 hours before a vote on the 
     pending bill.

  Mr. LEAHY. Mr. President, I am pleased that the Senate has passed the 
Department of Homeland Security appropriations conference report. This 
legislation contains important funding for the Department of Homeland 
Security to carry out its various responsibilities. I commend Chairman 
Inouye and Subcommittee Chairman Byrd for their hard work on this 
legislation, and also for their support of a vibrant immigration 
program that fosters direct investment in U.S. job creation that is 
extended through this legislation.
  The conference report we will pass today contains a 3-year extension 
for the EB-5 regional center program. This extension will bring badly 
needed stability to this program. Foreign investors who look to the 
regional center program must have the confidence that the Federal 
Government supports and believes in this program. Stakeholders that 
rely on financing through this program must have the predictability 
that this 3-year extension will help provide. As the U.S. Citizenship 
and Immigration Services expressed to the Senate Judiciary Committee 
during a recent hearing about this program, the biggest impediment to 
the EB-5 regional center program is its lack of permanence. I have long 
believed in the potential of this program as an economic engine for 
America's communities. Given the recent and rapid expansion in the 
number of approved regional centers around the country, it is clear 
that many Americans recognize this potential, as well.
  In an effort to make this program an integral part of our immigration 
system, I offered an amendment to the Homeland Security appropriations 
bill on the Senate Floor to provide for its permanent authorization. 
That amendment was overwhelmingly adopted. Unfortunately, the 
conference committee did not retain that permanent authorization, and 
once again, irrational immigration politics got in the way of good 
policy. Instead of making permanent a program that has created 
thousands of American jobs and brought more than $1 billion of capital 
investment into our communities since 2006, the conference was 
compelled to sacrifice this opportunity for no legitimate reason. 
However, it is still heartening to know that over the next 3 years the 
citizens who are working to better their communities through the 
regional center program will be able to do so without the fear of 
constant interruption and uncertainty.
  I want to take a moment to commend all of the resourceful business 
people who have turned to this program to finance key economic 
development projects in their communities. Despite the hurdles that 
have continually hampered the efforts I have led to renew the program, 
the stakeholder community has not only continued to work hard on 
improving local economies across the country, but has directly engaged 
Members of Congress to ensure that this program does not wither away. 
As a result of their efforts to retain a strong extension in the 
conference report, I am confident that many more Members of Congress 
have a better understanding of this

[[Page 25119]]

program's potential and importance in their own communities.
  These stakeholders all deserve thanks for the jobs and capital 
investment they are bringing to their communities. In Vermont, people 
like Bill Stenger at Jay Peak Resort and Win Smith at Sugarbush Resort 
have used the EB-5 program to keep Vermont's ski industry a vibrant and 
foundational part of the Vermont economy. As a direct result of the EB-
5 regional center program and in a very difficult economic environment, 
dozens of subcontractors in Northeastern Vermont are hard at work on a 
project financed through the EB-5 Regional Center program. And in an 
effort to build on these successes, the State of Vermont is actively 
involved in working to expand the business sectors covered by Vermont's 
regional center so that technology firms and other diverse Vermont 
business enterprises can market their investment opportunities to a 
global audience. My efforts will continue in support of the regional 
center program. I look forward to helping Vermont and States across the 
country realize the full potential of this program through a permanent 
authorization.
  I am also pleased that the conference retained an important measure 
to correct a serious inequity in immigration law commonly known as the 
widow penalty. Prior to the corrective amendment contained in this 
legislation, a foreign national widow or widower of a U.S. citizen was 
put into the untenable position of not only losing their spouse but 
losing their lawful permanent residence and path to U.S. citizenship. 
To underscore the nature of this injustice: In cases where a marriage 
was entered in good faith and without any fraud or ill intent, if the 
U.S. citizen spouse passed away during the period of conditional 
residency, the immigration agency took the position that the widow or 
widower no longer had standing to become a lawful permanent resident. 
This is wrong, and for a society that places such great value on 
family, a truly unfortunate position. The amendment in this 
legislation, which I and other Senators worked hard to ensure was 
retained in the conference report, will end this injustice.
  The conference report also contains an amendment to extend a visa 
program that allows individuals from around the world dedicated to 
working on behalf of their religious faiths to come to the United 
States to do just that. I am pleased that the efforts I and others made 
to ensure this measure was retained have resulted in its adoption.
  Finally, I commend the conference committee for rejecting an 
amendment that would have done little more than waste taxpayer dollars 
and cause further harm to the rights of property owners and the 
environment along our southern border. The conference committee wisely 
rejected an amendment that would have, in effect, required the 
Department of Homeland Security to tear down and rebuild hundreds of 
miles of barriers between the United States and Mexico that have 
already been constructed, at enormous expense to taxpayers. The Secure 
Fence Act, a piece of legislation I strongly opposed, directed the 
Department of Homeland Security to build border fencing and other 
barriers as a response to illegal border crossings. The Department 
carried out this legislative command during the Bush administration and 
constructed pedestrian fencing with vehicle barriers and other 
infrastructure. The amendment that was rejected by the conference 
committee would have compounded the negative effects that attended the 
border fence's original construction, and wasted taxpayer dollars in 
the process. I commend the conference for its wisdom in not accepting 
this amendment.
  Mr. President, I commend the Senate for enacting the Leahy-Cornyn 
OPEN FOIA Act--a commonsense bill to promote more openness regarding 
statutory exemptions to the Freedom of Information Act, FOIA--as part 
of the Department of Homeland Security Appropriations Act, H.R. 2892. 
This FOIA reform measure builds upon the work that Senator Cornyn and I 
began several years ago to reinvigorate and strengthen FOIA by enacting 
the first major reforms to that law in more than a decade.
  The Freedom of Information Act has served as perhaps the most 
important Federal law to protect the public's right to know for more 
than four decades. The OPEN FOIA Act will help to ensure that FOIA 
remains a meaningful tool to help future generations of Americans 
access government information.
  The OPEN FOIA Act will make certain that when Congress provides for a 
statutory exemption to FOIA in new legislation, Congress states its 
intention to do so explicitly and clearly. In recent years, we have 
witnessed a growing number of so-called ``FOIA (b)(3) exemptions'' in 
proposed legislation--often in very ambiguous terms--to the detriment 
of the American public's right to know.
  During a recent FOIA oversight hearing held by the Judiciary 
Committee, the president and CEO of the Associated Press, Tom Curley, 
testified that legislative exemptions to FOIA ``constitute a very large 
black hole in our open records law.'' The Sunshine in Government 
Initiative, a coalition of media groups dedicated to improving 
government transparency, has identified approximately 250 different 
statutory exemptions to FOIA that are used by Federal agencies to deny 
Americans' FOIA requests. This is an alarming statistic that should 
concern all of us, regardless of party affiliation or ideology.
  By enacting the OPEN FOIA Act, Congress has taken an important step 
towards shining more light on the process of creating legislative 
exemptions to FOIA, so that our government will be more open and 
accountable to the American people. I thank Senators Lieberman, Graham 
and Cornyn, and Representative Price, for working with me on this 
measure. I also thank the distinguished chairmen and ranking members of 
the Senate and House Appropriations Committees--Senators Inouye and 
Cochran and Representatives Obey and Lewis--for their support of this 
open government measure.
  President Obama--who supported the OPEN FOIA Act when he was in the 
Senate--has demonstrated his commitment to enacting this measure, as 
have the many FOIA, open government and media organizations that have 
tirelessly supported this measure since it was first introduced in 
2005, including OpenTheGovernmnet.org, the Sunshine in Government 
Initiative, the National Security Archive and the American Civil 
Liberties Union.
  I have said many times before--during both Democratic and Republican 
administrations--that freedom of information is neither a Democratic 
issue nor a Republican issue. It is an American issue. I commend the 
Congress for taking this significant step to reinvigorate FOIA and I 
urge the President to promptly sign this provision into law.
  Mr. CONRAD. Mr. President, I rise to offer for the record, the Budget 
Committee's official scoring of the conference report to accompany H.R. 
2892, the Department of Homeland Security Appropriations Act for fiscal 
year 2010.
  The conference report provides $42.8 billion in discretionary budget 
authority for fiscal year 2010, which will result in new outlays of 
$25.5 billion. When outlays from prior-year budget authority are taken 
into account, discretionary outlays for the conference report will 
total $46.6 billion.
  The conference report includes $242 million in budget authority 
designated as being for overseas deployments and other activities for 
the Coast Guard. Pursuant to section 401(c)(4) of S. Con. Res. 13, the 
2010 budget resolution, an adjustment to the 2010 discretionary 
spending limits and the Appropriations Committee's 302(a) allocation 
has been made for this amount in budget authority and for the outlays 
flowing therefrom.
  The conference report matches its section 302(b) allocation for 
budget authority and is $2 million below its allocation for outlays.
  The conference report includes provisions that make changes in 
mandatory programs that result in an increase in direct spending in the 
9 years following the 2010 budget year. These provisions are subject to 
a point of order established by section 314 of S. Con. Res. 70,

[[Page 25120]]

the 2009 budget resolution. The conference report is not subject to any 
other budget points of order.
  I ask unanimous consent that the table displaying the Budget 
Committee scoring of the conference report be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   H.R. 2892, DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2010
   [Spending comparisons--Conference Report (in millions of dollars)]
------------------------------------------------------------------------
                                                     General
                                          Defense    Purpose     Total
------------------------------------------------------------------------
Conference Report:
    Budget Authority...................      1,567     41,209     42,776
    Outlays............................      1,395     45,239     46,634
Senate 302(b) Allocation:
    Budget Authority...................  .........  .........     42,776
    Outlays............................  .........  .........     46,636
Senate-Passed Bill:
    Budget Authority...................      1,582     41,335     42,917
    Outlays............................      1,404     45,296     46,700
House-Passed Bill:
    Budget Authority...................      1,553     41,064     42,617
    Outlays............................      1,390     44,931     46,321
President's Request:
    Budget Authority...................      1,365     41,473     42,838
    Outlays............................      1,219     45,168    46,387
                     Conference Report Compared To:
Senate 302(b) Allocation:
    Budget Authority...................  .........  .........          0
    Outlays............................  .........  .........         -2
Senate-Passed Bill:
    Budget Authority...................        -15       -126       -141
    Outlays............................         -9        -57        -66
House-Passed Bill:
    Budget Authority...................         14        145        159
    Outlays............................          5        308        313
President's Request:
    Budget Authority...................        202       -264        -62
    Outlays............................        176         71       247
------------------------------------------------------------------------
Note: The table does not include 2010 outlays stemming from emergency
  budget authority provided in the 2009 Supplemental Appropriations Act
  (P.L. 111-32).
The conference report includes $242 million in budget authority
  designated as being for overseas deployments and other activities for
  the Coast Guard.

                   Air force Aerial Refueling Tanker

  Mr. HATCH. Mr. President, I rise today with my fellow cochair of the 
Senate Tanker Caucus, Senator Conrad, to lend my support to the 
expedited acquisition of the next aerial refueling tanker for the Air 
Force. We were pleased to hear Secretary Gates announced on September 
16 that he was giving oversight authority back to the Air Force for 
this vital procurement program. This program will ultimately produce 
179 new KC-X aerial refueling tankers through one of the largest 
military procurement contracts in history, worth approximately $35 
billion.
  Mr. CONRAD. While it is important to acknowledge that the KC-135 
replacement flight path was turbulent at times, we rise to commend the 
Air Force for its plan to carry out the service's No. 1 
recapitalization priority. The Air Force has presented a revamped KC-X 
plan after a rigorous review of previous acquisition strategy. The new 
plan belies the fact that the Air Force is committed to a fair, open, 
and transparent competition. On September 25 the draft Request for 
Proposal was released, restarting the process to ensure our men and 
women in uniform have an aerial refueling tanker that will continue our 
unmatched Global Reach anywhere on the planet. It goes without saying 
now is the time to produce a timely, cost-effective, war-winning system 
for the war fighter. The operations our nation is conducting today and 
will conduct for the foreseeable future and require our airmen, 
soldiers, sailors, and marines to operate in remote locations that need 
to be supplied and defended without delay.
  Mr. HATCH. The current KC-X proposal has been refined to 373 key 
mandatory requirements that will allow this new tanker to ``Go to War'' 
on day 1. There are 93 additional areas that will enable offerors to 
enhance their proposals. If the bids are within 1 percent of one 
another, the 93 additional capabilities will be analyzed to break this 
virtual tie. If a competitor has a score that wins by more than one 
point then the award will go to that contractor. If the tally of 
additional requirements score is less than a one point difference, the 
contract will be awarded to the contractor with the lowest proposed 
price. After reviewing this process, we believe it is very clear and 
transparent. The contract award has been projected for May 2010.
  Mr. CONRAD. Mr. President, we are concerned that the plan is only 
projected to purchase 15 tankers each year from the winning offeror. As 
you remember, the last contract was structured to purchase 19 tankers 
per year. It is imperative we find a way to increase the rate at which 
we purchase this new tanker especially given the time we have lost. If 
we stay on the current course, we will be relying on 80-year-old KC-
135s when the last new KC-X comes off the assembly line--an absolutely 
unprecedented age for operational aircraft, especially such a critical 
enabler that we rely on to ensure America's Global Reach. We must 
accelerate this purchase.
  Mr. HATCH. Mr. President, we are in great need of a new aerial 
refueling tanker now. No one can dispute this fact; the President, the 
Secretary of Defense, and the Secretary of the Air Force have all said 
so. President Eisenhower was our first President to see the current 
refueling tanker in service and it has served through every contingency 
for over almost 50 years. The venerable KC-135 is by far the oldest 
airframe in our inventory. The generation of men and women that defend 
our freedom deserve an aerial refueling tanker that capitalizes on the 
innovations of today while providing the taxpayer the best value.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent to speak for 7 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Ryan White Authorization

  Ms. MIKULSKI. Mr. President, I want to talk today about the Ryan 
White authorization. The Ryan White authorization passed last night by, 
really, unanimous approval. As many people know, the Ryan White 
legislation is one of the most important pieces of legislation to fund 
help for those people living with HIV and AIDS.
  I want to comment on the importance of the bill, but essentially, in 
today's world, remind people of where we were and how far we have come. 
I want to talk about the importance of the bill. I could cite 
statistics from my own State. I have a State with one of the largest 
numbers of surviving AIDS patients, for which we are so happy and 
grateful. I have over 34,000 Marylanders living today with HIV and 
AIDS.
  As I said, the passage was almost unanimous. The debate was 
noncontroversial. It was the same way in

[[Page 25121]]

our Health, Education Committee. Our debate was quite civil. It was 
even policy wonkish. We were focusing on the details of funding, how to 
include more assistance for rural communities where there is a spike in 
the number of AIDS cases. It was actually quite civil and collegial--
robust as it always is in the HELP Committee. But as I sat there and 
listened to my colleagues--and it was somewhat dull, the usual--I 
thought back to 1990 when it was not like that at all.
  I say that today as we take up health reform. We are gripped by fear, 
we are gripped by frenzy where all kinds of myths and misconceptions 
are out there. The debate is prickly. It is tense. We don't listen to 
each other. We are out there, hurtling, hurling accusations.
  I want to go back to a day in 1990, a day in the HELP Committee 
chaired by Senator Kennedy, when this young boy, Ryan White, came to 
testify. Ryan White was diagnosed with AIDS at age 13. He came to 
testify at the committee when we were trying to figure out what to do 
with this new disease that was gripping the land, where people in our 
urban communities were dying, adults who contracted it. Here was this 
little boy who came, who was so frail, who was so sick, and he wrenched 
our hearts that day as he talked about this new disease that he had 
gotten. He had gotten it through a blood transfusion.
  But what he also told us about was what he was going through. He 
testified that day, mustering every bit of energy he had, speaking with 
verve and pluck about his plight, he told us about what had happened to 
him--how he was shunned in the class, how he was locked in a room, how 
children were forbidden to play with him. He lived a life of isolation 
and a life of desolation. He was treated like a pariah.
  He wasn't the only one. Anyone who had AIDS in those days was greeted 
as if they were the untouchables. I remember it well. If you had AIDS, 
you were hated, you were vilified, you were viewed as a pariah. People 
were afraid to get near you, afraid to use the water fountain. If you 
heard someone in our office had AIDS, you didn't want to use the same 
bathroom.
  Firefighters and emergency people were afraid to touch people 
bleeding at the site because they were concerned they could get it. 
Funeral homes would not bury people who had AIDS. I remember a little 
girl who died in my State who had AIDS, and only one funeral home in 
the Baltimore area would bury her. This is the way it was then.
  As that little boy spoke, we were gripped by tears and we were 
gripped by shame, we were so embarrassed at what was happening in our 
country. Both sides of the aisle were touched. The Senate stepped up 
and they did it on a bipartisan basis. I was so proud that day when 
Senator Ted Kennedy, whom we miss dearly, said: Tell me, young man, 
what can we do for you?
  And he said: Help the other kids. Help the other people who have 
AIDS.
  Ted said: I certainly will.
  And Senator Orrin Hatch immediately stepped up--sitting next to 
Kennedy--and said: I want to be involved. I want to work on that 
legislation.
  Ted Kennedy, Orrin Hatch, Chris Dodd, Tom Harkin, Barbara Mikulski, 
Nancy Kassebaum--we all came together. We worked on a bipartisan basis 
and we did move the Ryan White bill against the grain of many people in 
this country and in the face of the fear and frenzy.
  As Ryan White left with his mother that day, as he walked out in a 
very halting way, he was gripped by a media frenzy. The noise went on. 
They were pushing and shoving to try to get a picture of this poignant 
little lad. Senator Kennedy jumped up, built like the linebacker he 
once was in Harvard, and ran out and he said, ``Barb, come with me; 
Chris, get over there; Orrin, grab that chair.'' We all ran out and Ted 
Kennedy literally threw himself in front of Ryan White to protect him 
from being run over by TV cameras.
  Again, both sides of the aisle, we were there--Ted, calling this 
out--Chris, you go there; Barb, open the door; Orrin, stick with me, 
and Orrin stuck with him. They put their arms around him and got him 
into a safe haven in one of our offices.
  Ted Kennedy literally put himself on the line that day of fear and 
frenzy, and Republicans were right there with him, helping him out to 
get that young man to a safe room. Ted Kennedy protected that little 
boy that day, literally and figuratively, and he had the support of the 
committee.
  So as we move ahead today, as we reauthorize the Ryan White program 
for 4 more years, remembering that it is the largest source of Federal 
funding for HIV/AIDS programs, I want us to remember how we worked 
together, what it is like when we literally stand up for each other. 
Ted Kennedy literally protected that child 19 years ago. He stood up 
and protected the people who count on us to protect them every day. It 
was a moving day. It was a lesson to be learned today--Ted Kennedy 
leading the way, the ranking member by his side, all of us coming 
together.
  What I also remember that day was not only our bipartisanship and our 
compassion and our civility with this little boy and with each other, I 
remember the angry mob out there, worrying about people who had AIDS, 
finger pointing. I guess the lesson of today is don't listen to the 
mob. Don't be swayed by fear and frenzy. Let's get rid of 
misconceptions and stop accusing each other. Let's start to work 
together. Let's listen to each other.
  Maybe 20 years from now when we look back on the debate of health 
insurance reform, we will pass it and make it, and it will be so usual 
and customary, and we will be proud of what we did as we are proud of 
what we did today. Ryan White is no longer with us. But what he helped 
inspire a nation to do is. I thank him and his family and all who 
endured during that time.
  Now I call upon us again. Let's return to civility, bipartisanship. 
Let's stick to the facts. Let's stick with each other.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. CHAMBLISS. Mr. President, I rise today to speak about the 
conference report to accompany the Department of Homeland Security 
Appropriations bill.
  When this bill was originally before the Senate, I joined 83 other 
Members of this body in supporting it.
  But at this time I cannot support the conference report because it 
includes language that was not included in the Senate-passed bill 
relating to the detainees being held at the Guantanamo Bay Naval 
Facility, or Gitmo.
  This bill would prohibit the transfer, release or detention in the 
United States of any of the detainees held at Gitmo as of June 24, 
2009. However, it does allow detainees to be brought into the U.S. for 
prosecution. I cannot support this. I have been very outspoken on this 
issue and believe it is wrong to bring these detainees into our country 
to try them in our criminal courts. These terrorists have committed 
violations of the laws of war and should be held and prosecuted 
according to the procedures Congress laid out in the past.
  Prosecuting these individuals in our U.S. courts simply will not work 
and there is too much at stake to grant the unprecedented benefit of 
our legal system's complex procedural safeguards to foreign nationals 
who were captured outside the United States during a time of war. 
Allowing these terrorists to escape conviction, or worse yet, to be 
freed into the U.S. by our courts, because of legal technicalities 
would tarnish the reputation of our legal system as one that is fair 
and just. Prohibiting the detainees from entering into the U.S. is one 
small step in the right direction. However, this legislative loophole 
is a step in the wrong direction.
  In May, the Senate voted 90 to 6 to prohibit any of these hardened 
terrorists from being brought to the United States. Despite this clear 
objection, the administration transferred one detainee, Ahmed Ghailani, 
to New York City in June. He is facing a trial in the Southern District 
of New York for his role in the August 7, 1998 bombings of two U.S. 
embassies in Africa. Some of my colleagues in the Senate have touted 
this as an example of how we can

[[Page 25122]]

bring criminal charges against the Gitmo detainees and try them in our 
courts. However, Ghailani was indicted on March 12, 2001, a full 6 
months prior to the terrorist attacks of 9/11 and after a full 
investigation by the Federal Bureau of Investigation. The case against 
Ghailani was built long before he was transferred to Gitmo in 2006. To 
imply that other detainees, many of whom the FBI has not investigated 
or collected evidence against, may be prosecuted similarly in U.S. 
courts is naive. Worse yet, just recently, the Attorney General ordered 
the U.S. attorney not to seek the death penalty in this case, despite 
the fact that his participation in the bombings resulted in the death 
of over 200 people and injured over 4,000. In contrast, six of the 
charges brought against Ghailani in his military commission carried the 
death penalty.
  Now there are press reports that the administration is considering 
transferring Khalid Sheikh Mohammed or KSM to the United States. KSM is 
the self-proclaimed, and quite unapologetic, mastermind of the 9/11 
attacks. KSM admitted he was the planner of 9/11 and other planned, but 
foiled attacks against the U.S. In his combatant status review board, 
he admitted he swore allegiance to Osama bin Ladin, was a member of al-
Qaida, was the Military Operational Commander for all foreign al-Qaida 
operations, and much more. These admissions are unlikely to be admitted 
in a Federal court. Bringing KSM to a U.S. court will do nothing but 
allow defense lawyers to expose our intelligence sources and methods 
used in interrogating KSM to the world.
  Time after time since President Obama's January 22, 2009 announcement 
stating that he would close Gitmo within a year, I have seen hasty and 
ill-advised comments and action taken with respect to the Gitmo 
detainees. The detainees at Guantanamo are some of the most senior, 
hardened, and dangerous al-Qaida figures we have captured. It is 
imperative that the President satisfy the concerns of Congress and the 
American public before we should fund the transfer of any of these 
detainees to U.S. soil for any reason.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank the Senator from Georgia for his 
comments. Having served on the Judiciary Committee and the Armed 
Services Committee with Senator Chambliss, we had a number of hearings 
on these issues. I agree with Senator Chambliss that there is no 
practical alternative to the process we are using. It is right and just 
to do so, to use the one, at least, we have been using at Guantanamo 
Bay.
  To create trials in Federal district court using American rules of 
procedure such as Miranda and the exclusionary rule is not the kind of 
thing that ought to be done in this case. He has given a lot of thought 
to it, and I appreciate it. In essence, he is disappointed that the 
conference committee altered language we passed by an overwhelming 
majority in this Senate. That is exactly what I am going to talk about 
today.
  I am disappointed that those in the leadership in this Congress, 
without discussion or debate, have decided to dramatically alter the 
amendment I offered that was accepted unanimously to the Homeland 
Security appropriations bill in this Congress.
  On July 8, 2009, the Senate rejected, by a vote of 44 to 53--I think 
at least 13 or more Democrats voted this way--a motion to table the E-
Verify amendment I offered to the Department of Homeland Security bill. 
After the motion to table was defeated, the Senate then unanimously 
accepted my amendment. The amendment made the program permanent, the E-
Verify Program, which allows businesses to run virtually an instant 
computer check to see if the person who has applied before them is 
legally able to work in the United States. The amendment I offered 
would have made that E-Verify system permanent and it would have made 
it mandatory for government contracts. Some States have mandatory 
rules; businesses are voluntarily doing it. It would simply say: You 
are not going to get a contract from the taxpayers of the United States 
if you are not legally working in the United States. How simple is 
that? But the version of the bill reported from conference is 
dramatically different. It contains only a 3-year extension of the E-
Verify Program and does not include any of the Federal contractor 
language. We passed a lot of stimulus money to try to create jobs for 
Americans this year, and it should be for lawful people, not unlawful.
  This is the third time this Congress and the leadership in this 
Congress have either removed, changed, or blocked attempts to make this 
successful program permanent, against the overwhelming will of the 
American people, actually, and against the will of the Obama 
administration--at least in their verbal statements--and the express 
will of both the House and the Senate.
  So this is how things happen. I think this is one of the reasons 
people are angry with Congress. Some people say they are angry at 
immigrants. I do not think that is accurate. I think they are angry at 
Congress for failing to take commonsense steps to create a lawful 
system of immigration and end the lawlessness that exists.
  The mechanism is this: We pass it. Members of the Senate vote for it. 
They go home and say: I voted to make E-Verify permanent. I voted to 
make it apply to contractors. I am sorry it did not happen. Well, who 
makes this happen? Who changes the language? It is done in secret in 
conference in a nonopen way. They meet and just change it. They think 
nobody is going to know and they can just get away with it. It is the 
reason people are not happy with Congress.
  In addition, the Democratic leadership on the conference committee--
and they are all appointed by the Speaker and by the majority leader. 
So the majority of both Houses, the House and the Senate, are clearly 
Democratic Members. I do not want to make this such a partisan thing, 
but I guess it is an institutional thing of frustration that our 
Democratic Members have voted for these reforms, for these good ideas, 
but yet somehow it goes into conference and it gets eliminated, gets 
undermined so it does not become law.
  There were three other amendments stripped that dealt with 
immigration issues that had overwhelming support: A DeMint amendment 
that passed in the Senate called for completing the 700 miles of 
double-layer fence called for by the Secure Fence Act that we passed 
overwhelmingly some time ago, and that was taken out. A Grassley 
amendment that would have allowed employers to reverify employees 
through E-Verify was taken out. A Vitter amendment that would have 
precluded the rescissions of the no-match rule was taken out.
  So together with the recent actions of this administration--and they 
have been sending mixed signals, but their actions sometimes speak 
louder than words. They have backed off of the detention policy. Now I 
see they are putting people illegally coming into our country in hotel 
and motel rooms. They watered down the 287(g) Program which allows 
local law enforcement to work with the Federal officials to help them 
identify those who are illegally in the country in a way that makes 
sense. It is a limited power, but it is very helpful. Those are some of 
the things this administration has backed off on.
  So I think the conclusion we reach is that the majority in control of 
this Congress seems to be committed to blocking any congressional 
action that actually seeks and is effective in enhancing law 
enforcement. Some say: That is a harsh thing to say, Jeff. That is not 
true. I will just repeat it. If you know what the system is about, you 
know how the debate is going on in this Senate and in the House, you 
would be aware of the fact that E-Verify is very important and that it 
should apply to people who get government contracts. Why do they keep 
taking it out?
  Back in February, two amendments were unanimously accepted to the 
House stimulus bill, the $800 billion bill that was supposed to create 
jobs in America. Those amendments related to

[[Page 25123]]

the E-Verify Program. One was offered by Congressman Ken Calvert of 
California for a 4-year extension of the E-Verify Program. It was 
identical to the reauthorization language that passed the House on July 
31, 2008, by a vote of 407 to 2. Another was offered by Congressman 
Jack Kingston, and it prohibited funds made available under this $800 
billion stimulus bill from being used to enter into contracts with 
businesses that do not participate in this E-Verify system.
  It is growing. Millions of checks are being done by this system. It 
is no burden on businesses. So it would say, if you did not use that 
system, you could not get this stimulus money to do things, build 
things with.
  The provisions of the bill were both unanimously accepted without a 
vote by the House Appropriations Committee. Furthermore, the provision 
that extended the program was also overwhelmingly approved by the House 
last July by a vote of 407 to 2.
  One of the main purposes of the stimulus bill was to put Americans 
back to work. It was common sense--common sense--to include a simple 
requirement that the people hired to fill the stimulus-created jobs be 
lawfully in our country and lawfully able to work.
  I tried to offer an amendment, at that time, that incorporated both 
the House provisions in the Senate stimulus bill when the stimulus bill 
was being considered in the Senate, but it was blocked on three 
separate occasions by the Democratic leadership. I can only conclude 
from that they did not want it. I knew, if we could get a vote, we 
would have a bipartisan Democratic and Republican vote for it.
  My amendment only incorporated the short 5-year extension, but I was 
not even allowed to get a vote. As I predicted at that time, once the 
bill went to conference, the conferees would strip the E-Verify 
provisions from the final version of the economic stimulus package 
without any open discussion or debate. That is exactly what they did. I 
hate to say it, but the actions seem to send a clear signal that our 
leadership wants to use taxpayers' money to employ people who are in 
this country illegally.
  That is a harsh thing to say. But if you do not want that to happen, 
why don't we take some steps to do something about it? Why wouldn't we 
require people who get government money--taxpayers' money that is 
supposed to be designed to create American jobs--why wouldn't we want 
to at least take this modest step to try to see that people illegally 
here do not get those jobs?
  Furthermore, in March, when I tried to offer an identical amendment 
to the Omnibus appropriations bill, it was tabled by a vote of 50 to 
47. This proves to me there are some powerful forces out there 
somewhere still alive who want to block this important step.
  It is important we permanently reauthorize this successful E-Verify 
Program, which is currently set to expire when the current continuing 
resolution ends. We should do it particularly now that we are in a time 
of serious economic downturn and unemployment.
  E-Verify is an online system operated jointly by Homeland Security 
and the Social Security Administration. Participating employers can 
check the work status of new hires online by comparing information from 
an employee's I-9 form--that is their employment form--against the 
Social Security and DHS databases. It is done like that. It takes just 
a few minutes.
  E-Verify is free to businesses and is the best means available for 
determining the employment eligibility of new hires and the validity of 
their Social Security numbers, instead of the so many bogus numbers 
many of you have read about.
  As of October 3 of this year--2009--over 157,000 employers, 
businesses, are enrolled in this program. This represents over 600,000 
hiring sites nationwide. Over 8.5 million inquiries were run through 
the system in 2009 and over 90,000 have been run since October 1 of 
this year--in 20 days.
  The Homeland Security Secretary--President Obama's Secretary--Janet 
Napolitano, has spoken highly of the E-Verify Program. She called the 
program ``an integral part of our immigration enforcement system''--an 
integral, essential part of our enforcement system. There is no doubt 
about it, in my view. Attempts to make the program permanent have been 
thwarted time and time again during this Congress.
  According to Homeland Security, 96.1 percent of employees are cleared 
to go to work immediately under this online system, and growth 
continues at over 1,000 new employer users each week.
  Of the remaining 3.9 percent of queries with an initial mismatch--so 
there are 3.9 percent who are not cleared immediately--of those, only 
.37 percent, about a third of 1 percent, were later confirmed to be 
work authorized. So it looks like about 80, 90 percent of the people 
who did not get immediate clearance--really, more than that--were not 
authorized to work legally in America. Only .37 percent of those later 
were shown to be held up improperly--or not ``improperly,'' just being 
held up. Maybe they entered a wrong Social Security number by mistake.
  Employers get an advantage. An employer that verifies work 
authorization under E-Verify has established a rebuttable presumption 
that the business has not knowingly hired an illegal alien.
  Recently, the Bureau of Labor Statistics reported that the 
unemployment rate in the United States has jumped to 9.8 percent--
basically, double what it was a year or so ago. That is 15 million 
unemployed. This is the highest unemployment rate in 25 years.
  Immigration by illegal immigrants has had a serious and depressing 
effect on the standard of living of lower skilled American workers. 
That is a fact, in my view. The U.S. Commission on Immigration Reform, 
chaired by the late civil rights pioneer, Barbara Jordan--and they had 
a big study of this--found that ``immigration of unskilled immigrants 
comes at a cost to unskilled U.S. workers.''
  The Center for Immigration Studies has estimated that such 
immigration has reduced the wage of the average native-born worker in a 
low-skilled occupation by 12 percent or almost $2,000 annually.
  In addition, Harvard economist and author of perhaps the most 
respected book on immigration--he goes into great detail of economic 
studies and information that he analyzed--Professor George Borjas, 
himself born in Cuba, has estimated that immigration in recent decades 
has reduced the wages of native-born workers without a high school 
degree by 8.2 percent.
  E-Verify is working. In fact, the program is so successful that 
Secretary Napolitano recently said:

       The Administration strongly supports E-Verify as a 
     cornerstone of worksite enforcement and will work to 
     continually improve the program to ensure it is the best tool 
     available to prevent and deter the hiring of persons who are 
     not authorized to work in the United States.

  That is a strong, clear, good statement the Secretary has given, and 
it is common sense.
  Recently confirmed Citizenship and Immigration Services Director 
Alejandro Mayorkas said:

       I believe E-Verify is an effective law enforcement tool.

  In February of 2009, Doris Meissner, former head of immigration under 
President Clinton, said:

       Mandatory employer verification must be at the center of 
     legislation to combat illegal immigration . . . the E-Verify 
     system provides a valuable tool for employers who are trying 
     to comply with the law. E-Verify also provides an opportunity 
     to determine the best electronic means to implement 
     verification requirements. The Administration should support 
     reauthorization of E-Verify and expand the program. . . .

  Alexander Aleinkoff--President Clinton's INS official and an Obama 
administration Department of Homeland Security transition official--
calls it a ``myth'' that ``there is little or no competition between 
undocumented workers and American workers.'' He is right about that. 
They can say this is not true all day long, but anybody who observes 
what is happening knows the large influx of low-skill workers pulls 
down the wages of hard-working Americans who did not get a high school 
diploma who are trying to take care of their families and survive in a 
competitive world. It is a fact. We need to understand that.

[[Page 25124]]

  Even the distinguished majority leader supports the program. He wrote 
a letter in March of this year saying:

       I strongly believe that every job in our country should go 
     only to those authorized to work in the United States. That 
     is why I strongly support programs like E-Verify that are 
     designed to ensure that employers only hire those who are 
     legally authorized to work in the United States, and believe 
     we need to strengthen enforcement against employers who 
     knowingly hire individuals who are not authorized to work. I 
     support reauthorization of the E-Verify program, as well as 
     immigration reform that is tough on lawbreakers, fair to 
     taxpayers and practical to implement.

  This is one I hope we can all agree on. But I do not know how it came 
out that this language was gutted out of the conference report, once 
again.
  Since 2006, 12 States have begun requiring employers to enter new 
workers' names into the system, which checks databases, including 
Arizona, which passed the law while our current Homeland Security 
Secretary, Janet Napolitano, was Governor of Arizona. Colorado, 
Georgia, Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, 
Rhode Island, South Carolina, Tennessee, and Utah have this system 
where their employers that have contracts in government work--actually 
any employers have to use the system before they are hired.
  Secretary Napolitano has also said:

       I'm a strong supporter of E-Verify. . . . You have to deal 
     with the demand side for illegal immigration, as well as the 
     supply side, and E-Verify is an important part of that.

  In January of 2009, the Washington Post reported that Secretary 
Napolitano said:

       I believe in E-Verify. I believe it has to be an integral 
     part of our immigration enforcement system.

  President Bush signed Executive Order 12989 last year. I think, in 
many ways, he was slow to come to realize how important creating a 
lawful system of immigration was. But he made some progress toward the 
end and he made this statement and took this action. He said:

       Contractors that adopt rigorous employment eligibility 
     confirmation policies are much less likely to face 
     immigration enforcement actions, because they are less likely 
     to employ unauthorized workers, and they are therefore 
     generally more efficient and dependable procurement sources 
     than contractors that do not employ the best available 
     measures to verify the work eligibility of their workforce. . 
     . . It is the policy of the executive branch to use an 
     electronic employment verification system because, among 
     other reasons, it provides the best available means to 
     confirm the identity and work eligibility of all employees 
     that join the federal workforce. Private employers that 
     choose to contract with the federal government should meet 
     the same standard.

  So President Bush issued that Executive Order, that private employers 
that choose to contract with the Federal Government should meet the 
same standard. Basically, what happened was, President Obama delayed 
it. They have since issued a policy that larger businesses should use 
the system, for which I give them credit. So the Federal Government 
should meet the same standard. He meant it should apply. The Obama 
administration has made, as I understand it, an executive order that 
requires larger businesses to use this system for the current time but 
not smaller businesses, and it is not a part of law.
  Last June, when Homeland Security designated E-Verify as the 
electronic employment eligibility verification system that all Federal 
contractors must use, Secretary Chertoff--the Secretary of Homeland 
Security--said this:

       A large part of our success in enforcing the nation's 
     immigration laws hinges on equipping employers with the tools 
     to determine quickly and effectively if a worker is legal or 
     illegal. . . . E-Verify is a proven tool that helps employers 
     immediately verify the legal working status of all new hires.

  So some have argued it is too costly and too cumbersome. However, a 
letter to the Wall Street Journal from Mark Powell, a human resources 
executive with a Fortune 500 company, said it is free; it takes only a 
few minutes and is less work than a car dealership would do checking a 
credit score prior to selling a vehicle or taking a test drive.
  Well, that is true. How else can we explain so many employers 
voluntarily signing up? I think the short-term extensions only 
discourage participation in the E-Verify Program and leave us with a 
lack of assurance in the future we need.
  With regard to the contention that there are some mismatches, as I 
said, only .37 percent--less than 1 percent--of the people whose 
numbers don't check out are found to be improperly checked out. 
Truthfully, most of them got the right answer.
  So I would conclude by saying a lot of progress has been made to make 
the system even better than it was. Over 60 percent of foreign-born 
citizens who have utilized this option and more than 90 percent of 
those phone calls have led to a final ``work authorized'' 
determination. I think we are on the right track. I think we should 
make this permanent. We absolutely should make it so that anyone who 
obtains a contract or a job as a result of government taxpayer money 
should be legally in the United States. If they are not, they shouldn't 
get the job. It should be set aside for American taxpayers. I thank the 
Chair.
  Just before I conclude, once again, let me express frustration that 
what was passed so overwhelmingly, somewhere behind closed doors--the 
same place they are meeting right now to write a health care bill. We 
don't know where they are or what they are talking about, but a group 
is meeting to try to cobble together the two or three or four bills 
that are pending out there with something they will bring to the floor, 
and nobody has even seen it yet. We are having too much of that. I 
think it is eroding public respect for the Congress, and I can 
understand why the American people are angry with us.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The Senator from 
Louisiana.
  Mr. VITTER. Mr. President, I rise to join my distinguished colleague 
from Alabama, as well as our colleague from South Carolina, who will 
come to the floor soon to talk about this Department of Homeland 
Security Appropriations conference report and specifically the major 
provisions which had broad bipartisan support which were stripped out 
of the conference report in the dead of night. I wish to thank my 
colleague from Alabama for all his work on this issue in general, 
particularly the E-Verify system. I strongly support the E-Verify 
system. I strongly support expanding it aggressively. It is part of a 
solution. It is not the whole solution; no one item is. But it is an 
important part of the solution to get our hands around immigration 
enforcement, particularly at the workplace. So I thank my colleague for 
that work.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. VITTER. Absolutely, I will yield.
  Mr. SESSIONS. The Senator has served in the House and the Senate and 
knows how conference committees work. Isn't it true that the majority 
of the Senate conferees would be appointed by the majority leader, and 
a majority of the House conferees would be appointed by the Speaker?
  Mr. VITTER. Absolutely.
  Mr. SESSIONS. Isn't it a tradition that normally conferees appointed 
by those leaders tend to follow their lead in how they vote in 
conference?
  Mr. VITTER. Absolutely.
  Mr. SESSIONS. The Senator had an amendment that was stripped out, as 
I did, dealing with the immigration issue. It seems to me odd that 
amendments receiving such high votes in both the House and the Senate 
would be stripped out of conference. Would you agree that is an odd 
thing to happen?
  Mr. VITTER. I absolutely agree with my colleague.
  I would point out in that vein, the Sessions amendment got broad 
support. When the Democratic leadership handling the bill on the floor 
asked to table the amendment, that was rejected 53 to 44. In a similar 
way, they attempted to table the amendment of our colleague from South 
Carolina, and that motion was defeated 54 to 44. My amendment was 
adopted by unanimous consent. Yet with that clear support from the 
Senate floor, the leadership on the other side apparently went to

[[Page 25125]]

conference and took out those amendments in the dead of night. I find 
that worrisome. I find it worrisome in terms of the process. I find it 
worrisome in terms of immigration reform and where we are apparently 
headed.
  Again, as I said, these were three significant amendments put in this 
bill on the Senate floor. All three have been stripped out of this 
conference report.
  Let me focus for a minute on my proposal. When the bill was on the 
Senate floor, my amendment, which was Senate amendment No. 1375, was 
passed by unanimous consent. So literally no one in the entire body, 
Democratic or Republican, objected. Essentially, everyone agreed to put 
this amendment on the bill. The amendment was to prohibit funding to 
the Department of Homeland Security if they implemented any changes in 
a final rule requiring employees to follow the rules of the Federal 
Social Security no-match notices. This, as E-Verify, is an important 
piece of the puzzle. It is an important piece of the solution.
  In August of 2007, the Department of Homeland Security introduced its 
no-match regulation. This clarified the responsibility of employers who 
receive notice that their employees' names and Social Security numbers 
don't match up with the records at Social Security.
  So under the rule, employers receiving these notices who did not take 
corrective action would be deemed to have constructive knowledge that 
they are employing unauthorized aliens. So, in other words, the intent 
and the way the rule worked was very simple and straightforward. If 
records went in to the Department of Homeland Security, if a name and a 
Social Security number didn't match according to Social Security 
records, then the Federal Government would notify the employer and 
would say: Time out; you have a problem. You need to do something about 
it. If it is a mistake, we need to figure that out, but otherwise it 
seems as though you are hiring an illegal. So stop and either clear up 
the mistake or do not hire that person.
  This rule provided employers with clear guidance on the appropriate 
due diligence they should undertake if they received that sort of 
letter from the Federal Government. So employers who received no-match 
letters would know they have a problem: Either their record keeping 
needs to be improved or they have hired illegal workers. The DHS no-
match rule gives companies that want to follow the law a clear path to 
safety. Companies that prefer to ignore the problem or have chosen to 
run their business with illegal labor cannot be forced to act 
responsibly, so they do so at their peril under this rule. Since the 
Social Security letter leaves a clear record for DHS investigators to 
build a case against employers, it makes the entire system far more 
workable.
  My amendment simply said we are going to keep that new rule in place. 
It is important for enforcement. It is important for workplace 
enforcement. It is important to get our hands around the problem of 
illegal immigration because of the common sense behind that concept. My 
amendment was adopted on the Senate floor unanimously, by unanimous 
consent.
  As I said, Senator Sessions had an important amendment which he just 
talked about to expand the E-Verify system. That amendment was actually 
opposed by some, and there was a motion to table the amendment, but 
that motion to table was defeated 53 to 44. Similarly, Senator DeMint 
of South Carolina had an important immigration enforcement amendment. 
He will be coming to the floor to talk about that this afternoon. His 
amendment required the completion of at least 700 miles of reinforced 
fencing along the southwest border by December 31, 2010. Again, his 
amendment was opposed by some liberals on the Senate floor. They moved 
to table that amendment but, again, by a significant vote that motion 
to table was defeated 54 to 44.
  So if these amendments are adopted by comfortable, if not unanimous, 
margins in the Senate, why are they being stripped in the dead of night 
in the conference committee report? Unfortunately, I think it is clear 
this Congress, under the Democratic leadership, and this administration 
want to take a very different approach to immigration, and they are not 
serious about any of these enforcement measures.
  I think that is a shame because these three amendments and other good 
enforcement ideas I believe represent the common sense of the vast 
majority of the American people. To me, this harkens back to the major 
immigration reform debate we had in the summer of 2007 when a big so-
called comprehensive immigration reform bill came to the floor of the 
Senate. It didn't have enough enforcement, in my opinion. It did have a 
huge amnesty program instead. So by the end of the debate, the American 
people spoke loudly and clearly. They said: No, we want enforcement. We 
want to do everything we can on the enforcement side first. We don't 
want a big amnesty.
  That so-called comprehensive bill was defeated by a wide margin. 
After that seminal event, so many on the Senate floor, including many 
who had backed that bill, Senator McCain among them, said: OK, we heard 
the American people. We heard you loudly and clearly. We need to start 
with effective enforcement. We need to start with commonsense measures, 
such as a certain amount of fencing, such as E-Verify, such as the 
Social Security no-match rule. Yet when we put those commonsense 
measures in this bill, what happened? In this Congress, led by 
Democratic leadership, under this administration, it was just stripped 
out of the conference committee report.
  Sure, it got big votes on the Senate floor; sure, it has widespread 
House support; sure, the Vitter amendment was adopted by unanimous 
consent. We don't care. We are going to strip it out.
  The message is loud and clear. The message is, we don't care what the 
American people have said. We don't care what they said in the summer 
of 2007. We don't care what they say over and over and over again about 
these issues--no-match, E-Verify, fencing--we are just going to oppose 
any of those commonsense enforcement measures.
  I truly believe the second half of where the leadership in this 
Congress and this administration is coming from is the same thing as 
the second half of that immigration reform bill in 2007: a big amnesty 
program with little to no enforcement, a big amnesty program.
  We need to listen to the American people. We don't need to play games 
and say we are supporting provisions and then have them stripped out of 
conference reports. We need to be more straightforward, more honest in 
what we are truly about in attacking this problem. Unfortunately, this 
conference report is an example of exactly the opposite.
  I urge my colleagues to pay attention to what is happening because so 
many folks in this body are speaking out of both sides of their mouth. 
They are saying: Oh, yes, fence, sure; E-Verify, absolutely; social 
security no-match, sure. Then they get certain leaders of the 
conference committee to do their dirty work and just strip those 
provisions. They are ignoring the will of the American people. They are 
rejecting commonsense enforcement, and according to many reports, the 
Obama administration and its leaders in the Congress are going to 
attempt another push for broad-based amnesty.
  We need to listen to the American people and not play games. In 
particular, we need to stop this game playing overall. Senator 
Sessions, my distinguished colleague from Alabama, was right when he 
said these sorts of antics--talking out of both sides of our mouths on 
this issue, stripping so-called popular amendments from a conference 
committee report--these antics are exactly what is eroding confidence 
in Congress overall. This is exactly what the American people are so 
frustrated and, in fact, so scared about with regard to many other 
issues, such as health care.
  I believe this is of real concern as we go into the health care 
debate because, quite frankly, what does it matter what we adopt on the 
Senate floor when the conference committee work is going to be handled, 
perhaps, just like this Homeland Security conference committee was. 
People can have little confidence based on our

[[Page 25126]]

votes on the Senate floor. The conference committee work can be 
diametrically opposed to it on significant issue after significant 
issue, just as it was on no match, on E-Verify, on fencing.
  We need to stop eroding public confidence in that way. We need to do 
what is, in fact, our first job in the Congress, House and Senate, 
which is to listen to the American people and, yes, represent the 
American people.
  I am afraid this DHS conference report, with its significant 
omissions in the area of Social Security no match, E-Verify, and 
fencing, is a sign that this leadership in Congress and this 
administration are not prepared to do any of that. I lament that.
  I urge all of our colleagues to come back together and demand 
progress on E-Verify, on no match, and on fencing, and to stop this 
game playing as we move to other crucial issues, including health care.
  Mr. President, I yield the floor.
  THE PRESIDING OFFICER. The Senator from Delaware is recognized.
  Mr. CARPER. I thank the Chair.
  (The remarks of Mr. Carper and Mr. Kaufman pertaining to the 
introduction of S. 1801 are printed in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. CARPER. I thank the Chair, and with that, I suggest the absence 
of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the time 
during the quorum call be equally divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DeMINT. 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. DeMINT. Mr. President, I apologize for your having to listen to 
me again this week, but I thank you for recognizing me, and actually I 
want to talk about something pretty serious.
  I think as Americans look in--and I guess in our relationships here--
cynicism is becoming so much a part of what we are doing. As a matter 
of fact, trying to stop cynicism here in Washington is like trying to 
stop water from flowing downhill. Every time the American people 
succeed in forcing sunlight and transparency on the political process, 
politicians find another corner to hide in. The latest trick is the 
majority's practice of accepting popular amendments to legislation 
while fully intending to strip those amendments out of the final bill 
that we send to the President. There were at least four of these 
amendments stripped from the conference report that is in front of us 
today.
  One of the amendments--authored by Senator Sessions--permanently 
authorized the E-Verify Program and made it mandatory for all 
government contractors. That is very important to the American people, 
very important to employers, to be able to determine whether they are 
hiring a worker who is here legally. That was thrown out.
  Senator Vitter had an amendment which allowed the implementation of 
what is called the ``no match'' rule, which essentially says that if a 
name and a Social Security number don't match, that the employer is 
immediately identified. That was thrown out.
  Senator Grassley had an amendment to allow employers to voluntarily 
verify the status of current employees. That was thrown out.
  Then there was my amendment to require the Department of Homeland 
Security to complete the 700-mile reinforced fence along the Southwest 
border by the end of 2010. It passed on this Senate floor 54 to 44. 
This amendment was stripped, along with all the others.
  As always, Washington politicians respect the people's wrath when the 
cameras are on us, but they do not respect the people's opinions when 
the cameras are turned off. As everyone here is aware, the American 
people are adamant about securing our southern border. It is a matter 
of security, it is a matter of jobs, it is a matter of drug trafficking 
and weapons trafficking. Thousands of Mexicans have been killed because 
of our unwillingness to control our own border.
  In 2006, overwhelming public opinion forced Congress to order the 
construction of a 700-mile reinforced double fence by 2010. Both the 
Bush administration and the Obama administration have dragged their 
feet, and so far we only have 34 miles actually completed. The 
Department of Homeland Security claims 661 miles are completed, but 
that is not according to the law we passed because they count single-
layer fencing and vehicle barriers, which do nothing to stop pedestrian 
traffic. My amendment would have reasserted a promise--a law--that 
Congress has already passed. Leaders of both parties have repeatedly 
tried to break this promise.
  We are learning there is almost nothing that politicians won't do to 
get out of promises they make in the daylight, especially if they can 
pretend to keep the promises. This is staggering cynicism, and it is 
undemocratic. It violates our whole principle of the rule of law. But 
this problem goes well beyond our unkept promises to cure our southern 
border. Earlier today, we considered the conference report on Energy 
and Water--the Energy and Water spending bill. That report also 
stripped out a popular amendment offered by Senator Coburn to require 
all reports under the law to be made available to the public.
  The majority is now so afraid of public scrutiny that they have to go 
behind closed doors to complete amendments they earlier accepted to 
guarantee transparency. This is now a pattern and a practice of the 
least transparent Congress in American history. That should give all of 
us pause, especially when we consider these same politicians are right 
now behind closed doors planning the takeover of one-sixth of our 
economy, if this health care bill succeeds.
  They have promised the bill won't add to the deficit, promised it 
won't force people off their health care plans, promised it won't pay 
for abortions or cover illegal immigrants, and promised thousands of 
other things. The problem is we don't know what is in the bill. In the 
context of this back-room amendment stripping, these promises cannot be 
delivered, and this process cannot be trusted.
  I encourage my colleagues to recognize that we need to make good on 
our promises. Both parties in this Congress have talked a lot about 
ethics and transparency. When we accept a bill on the floor, with the 
American people looking, but then strip it when the American people are 
not looking, our whole process is denigrated. This bill in particular, 
containing issues that deal with illegal immigration, which our country 
is so engaged in--and particularly at a time when people are losing 
their jobs, many times to workers who are not legal--is a very 
sensitive issue to the American people.
  For this amendment to be voted on and passed and then stripped out 
makes no sense at all. I encourage my colleagues not to support this 
conference report. It has stripped out the will of the American people.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, I rise to speak on this bill, on a 
particular issue of interest to my State

[[Page 25127]]

and I think to the country on a new National Bio-Agriculture facility 
to research new diseases and problems that can come in on animal 
health. In this particular bill, Senator Roberts and I have been 
working for some period of time to get funding for this facility to go 
forward. This was a national competition that took place for the 
location of the NBA facility. A number of States competed for it. It 
was determined that Kansas would be the primary location for this to 
occur. The initial funding of $32 million is in this conference report. 
I am delighted that the National Bio-Agriculture facility, to be 
located in Kansas, is getting its initial funding.
  As one of the responsible acts of this body, the fullest amount of 
the funding for this will not come until the Plum Island facility is 
sold. When that is sold, then that money is to go to build this 
facility that will research a number of different, difficult diseases 
in the animal health industry--foot-and-mouth disease and a number of 
other ones are to be researched. The facility has to be built safely so 
the containment facility, its initial design, is a metal structure on 
top of a concrete structure on top of another concrete structure in 
which the animals and the pathogens will be contained.
  To make sure this structure is safe, the facility design will be 
reviewed by the Department of Homeland Security and the DHS review will 
also be reviewed by the National Academy of Sciences, so it is an 
additional review on top of a review process. That may seem like 
redundancy to a lot of people, but there has been a lot of concern 
about moving FMD research into the mainland from Plum Island off of New 
York.
  I think it is prudent for us to do this research. I think it is 
important for us to research cures in this area. I think it is also 
prudent for us to make sure that the facility is well built and one 
from which we can be certain these pathogens will not be released.
  The passage of this final bill is a huge step in locating this NBA 
facility in Kansas, providing additional funding for this. I believe 
there is no better place than in Kansas to do this research. I am not 
just saying that because it is my State--although that is a big part of 
it--but 30 percent of the animal health industry globally is located 
within 100 miles of Kansas City. It is a place where there is a lot of 
this research taking place. The scientists are already there, the 
companies are already developing these products to take care of animal 
health problems. They are there and we can build on that success at a 
national level.
  I am delighted to see this moving forward in a responsible fashion. 
This is the initial piece. The bigger piece comes after the sale of 
Plum Island, which is appropriate. I am hopeful my colleagues will see 
fit to doing that this next year.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, later today--in fact, as I understand, in 
a very short time--the Senate will vote on the conference report to 
accompany the fiscal year 2010 Department of Homeland Security 
appropriations bill. This conference report spends approximately $42.7 
billion, 6.6 percent above last year's bill. I am sure many American 
households would love a 6-percent increase in their budget but cannot 
afford it. The Federal Government can't afford it either.
  Specifically, this conference report contains 181 congressionally 
directed spending items totaling over $269 million. As far as I can 
tell, none of these projects was requested by the administration, 
authorized, or competitively bid in any way. No hearing was held to 
judge whether these were national priorities worthy of scarce 
taxpayers' dollars.
  By the way, as I recall, when we first started with the Homeland 
Security Appropriations bills, we had decided at that time there would 
be no earmarks. So the next time we didn't do them. Then there are a 
few more. Now there are 181 of them--181, totaling over $269 million. I 
do not need to remind Americans--I might want to try to keep reminding 
the appropriators--the Federal deficit now stands at $1.4 trillion. It 
is an all-time high. Americans are losing their jobs and their homes at 
record rates. What are we doing? We just keep on spending.
  Let's take a look at some of the earmarks included in this conference 
report: $4 million for the Fort Madison Bridge, in Fort Madison, WI. 
How is that related to homeland security? There is $3.6 million for a 
Coast Guard Operations Systems Center in West Virginia. Why would the 
Coast Guard Operations Systems Center be located in a landlocked State? 
There is $200,000 to retrofit a college radio station in Athens, OH. 
Let me be clear here. This is to appropriate funds for homeland 
security. Obviously high on somebody's list is $200,000 to retrofit a 
college radio station. My, my, my.
  There is $900,000 for the City of Whitefish Emergency Operations 
Center in Whitefish, MT. The population is 5,849. That comes out to 
$153.87 per resident which is paid for by my taxpayers and all American 
taxpayers.
  There is $250,000 to retrofit a senior center in Brigham City, UT. 
The last time I checked, senior centers are important but they have 
very little relation to homeland security. There is $125,000 to replace 
a generator in La Grange Park, IL. I have to say, maybe there is 
something we don't know here. Maybe there is a reason why we need to 
retrofit a college radio station in Athens, OH; maybe there is a reason 
we need to replace a generator in La Grange Park, IL; maybe there is a 
reason why we have to spend $250,000 to retrofit a senior center in 
Brigham City, UT in the name of homeland security; maybe there is a 
reason to spend $130,000 to relocate the residents of 130 homes in 
DeKalb, IL. But we will never know because we don't have any hearings, 
we don't have any authorization. We just go ahead and spend the money--
6.6 percent over last year. The original intent was there were not 
going to be any earmarks. Amazing.
  In addition to the earmarks contained in the conference report, 
Congress continues to fund programs that the President, as part of his 
budget submission, had recommended terminating or reducing. This is the 
President's budget submission. These are the requests of the President 
that certain programs be terminated because they are unnecessary and 
unwanted and redundant. Remember, this is in the face of a $1.43 
trillion deficit. We are still funding them, no matter what the 
President of the United States says and no matter what good sense says.
  The first amendment I tried was to terminate a terrestrial-based, 
long-range maritime radio navigation system called the LORAN-C. The 
Bush and Clinton administrations sought to terminate the program. They 
tried. The current administration states in its budget that, although 
the program is not fully developed, it is already ``obsolete 
technology.'' This is what the President says:

       The Nation no longer needs this system because the 
     federally supported civilian global positioning system, GPS, 
     has replaced it with superior capabilities.

  Is there anybody who doubts that GPS is a superior capability?

       The elimination of this program, according to the 
     President, would achieve a savings of $36 million in 2010 and 
     $190 million over 5 years.

  Those are not my words, those are the words of the administration. So 
what have the appropriators done? They continued to fund it. When I 
offered an amendment to eliminate that obsolete technology that the 
Nation no longer needs, 36--count them--36 of my colleague also 
supported it. The majority party in the Senate did not support the 
administration's view that this program should be eliminated and this 
conference report continues to fund the program into next year, rather 
than cutting funding immediately--as we should have done a long time 
ago.
  My other attempt to support the President's effort to eliminate 
wasteful government programs also failed. The administration proposed 
in its 2010 budget to cut the Over-the-Road Bus Security Program 
because the money was not awarded based on risk, as recommended by the 
9/11 Commission, and the program has been assessed as not effective.

[[Page 25128]]

  The appropriators have now gone against the recommendations of the 9/
11 Commission, they have gone against the recommendations of the 
President of the United States, and we will continue to spend another 
$6 million. I offered the amendment to eliminate the program. The 
amendment was defeated by a vote of 47 to 51, so we will spend another 
$6 million that the administration says we do not need and that clearly 
is unnecessary to be funded.
  During the Senate consideration of the bill, I filed a total of 28 
amendments to strike earmarks and end funding for programs that the 
President had sought to terminate. Not surprisingly, my efforts were 
rebuffed each time by the members of the Appropriations Committee. The 
American people are tired of this process, they are tired of watching 
their hard-earned money go down the drain. Earlier this year, the 
President pointedly stated, and I quote him:

       We cannot sustain a system that bleeds billions of 
     taxpayers dollars on programs that have outlived their 
     usefulness, or exist solely because of the power of 
     politicians, lobbyists or interest groups. We simply cannot 
     afford it. . . . We will go through our Federal budget--page 
     by page, line by line--eliminating those programs we don't 
     need, and insisting those we do operate in a sensible and 
     cost-effective way.

  This is the document. The President went through it line by line. So 
we offered amendments to eliminate these programs. So of course the 
appropriators won again. They not only voted against my attempts to 
strike wasteful and unneeded spending, they also eliminated a provision 
that was supported by 54 Members of the Senate to mandate the 
completion of 700 miles of fence along the Southwest border by December 
31, 2010. This elimination will only serve to weaken our efforts to 
secure the border. We know that fencing alone is not a panacea to every 
security issue on the border, but there is no doubt that increased 
fencing bolsters Customs border patrol efforts to secure our border.
  Additionally, the other body's leadership added language that 
prohibits use of the funds in this act or any other act for the release 
of detainees held at Guantanamo into the United States, its territories 
and possessions. By extending this prohibition to U.S. territories and 
possessions, the conference report further restricts the release of 
detainees enacted into law in the supplemental appropriations act for 
fiscal year 2009. The conference report also restricts transfers of 
detainees from Guantanamo, limiting them to only transfers for the 
purpose of prosecution or detention during legal proceedings, and 
requires the President provide a plan to Congress 45 days prior to 
transfer. These provisions allow detainees to be tried for acts that 
amount to war crimes in Federal criminal courts and would authorize 
bringing detainees into the United States for that purpose.
  I will continue to believe that war crimes--and by that I include the 
intentional attacks by civilians that resulted in the loss of nearly 
3,000 lives on September 11, 2001--should be tried in a war crimes 
tribunal created especially for that purpose. The Military Commission's 
Act of 2009 is a result of extensive input and coordination with the 
Obama administration. It should be the vehicle for the trial for the 
horrendous war crimes committed against thousands of innocent American 
civilians, rather than bringing detainees from Guantanamo to the United 
States to face trial in a domestic Federal criminal court.
  I am sure that many of my colleagues read with interest the views of 
former Attorney General of the United States Michael Mukasey in the 
Wall Street Journal on Monday, October 19, in which he opposes trial of 
these detainees who are suspected of being responsible for the 9/11 
attacks in Federal criminal court. He says:

       The Obama administration has said it intends to try several 
     of the prisoners now detained at Guantanamo Bay in civilian 
     courts in this country. This would include Khalid Sheikh 
     Mohammed, the mastermind of the September 11, 2001 terrorist 
     attacks, and other detainees involved.

  The Justice Department claims our courts are well suited to the task. 
This is the former Attorney General of the United States who says:

       Based on my experience trying such cases and what I saw as 
     Attorney General, they are not.

  That is not to say civilian courts cannot ever handle terrorist 
prosecutions, but rather their role in a war on terror--to use an 
unfashionable phrase--should be as the term ``war'' would suggest, a 
supporting and not a principal role.
  I ask unanimous consent the article from the Wall Street Journal by 
the former Attorney General of the United States saying, ``Civilian 
Courts Are No Place To Try Terrorists,'' be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Oct. 19, 2009]

             Civilian Courts Are No Place to Try Terrorists

                        (By Michael B. Mukasey)

       The Obama administration has said it intends to try several 
     of the prisoners now detained at Guantanamo Bay in civilian 
     courts in this country. This would include Khalid Sheikh 
     Mohammed, the mastermind of the Sept. 11, 2001 terrorist 
     attacks, and other detainees allegedly involved. The Justice 
     Department claims that our courts are well suited to the 
     task.
       Based on my experience trying such cases, and what I saw as 
     attorney general, they aren't. That is not to say that 
     civilian courts cannot ever handle terrorist prosecutions, 
     but rather that their role in a war on terror--to use an 
     unfashionably harsh phrase--should be, as the term ``war'' 
     would suggest, a supporting and not a principal role.
       The challenges of a terrorism trial are overwhelming. To 
     maintain the security of the courthouse and the jail 
     facilities where defendants are housed, deputy U.S. marshals 
     must be recruited from other jurisdictions; jurors must be 
     selected anonymously and escorted to and from the courthouse 
     under armed guard; and judges who preside over such cases 
     often need protection as well. All such measures burden an 
     already overloaded justice system and interfere with the 
     handling of other cases, both criminal and civil.
       Moreover, there is every reason to believe that the places 
     of both trial and confinement for such defendants would 
     become attractive targets for others intent on creating 
     mayhem, whether it be terrorists intent on inflicting 
     casualties on the local population, or lawyers intent on 
     filing waves of lawsuits over issues as diverse as whether 
     those captured in combat must be charged with crimes or 
     released, or the conditions of confinement for all prisoners, 
     whether convicted or not.
       Even after conviction, the issue is not whether a maximum-
     security prison can hold these defendants; of course it can. 
     But their presence even inside the walls, as proselytizers if 
     nothing else, is itself a danger. The recent arrest of U.S. 
     citizen Michael Finton, a convert to Islam proselytized in 
     prison and charged with planning to blow up a building in 
     Springfield, Ill., is only the latest example of that 
     problem.
       Moreover, the rules for conducting criminal trials in 
     federal courts have been fashioned to prosecute conventional 
     crimes by conventional criminals. Defendants are granted 
     access to information relating to their case that might be 
     useful in meeting the charges and shaping a defense, without 
     regard to the wider impact such information might have. That 
     can provide a cornucopia of valuable information to 
     terrorists, both those in custody and those at large.
       Thus, in the multidefendant terrorism prosecution of Sheik 
     Omar Abdel Rahman and others that I presided over in 1995 in 
     federal district court in Manhattan, the government was 
     required to disclose, as it is routinely in conspiracy cases, 
     the identity of all known co-conspirators, regardless of 
     whether they are charged as defendants. One of those co-
     conspirators, relatively obscure in 1995, was Osama bin 
     Laden. It was later learned that soon after the government's 
     disclosure the list of unindicted co-conspirators had made 
     its way to bin Laden in Khartoum, Sudan, where he then 
     resided. He was able to learn not only that the government 
     was aware of him, but also who else the government was aware 
     of.
       It is not simply the disclosure of information under 
     discovery rules that can be useful to terrorists. The 
     testimony in a public trial, particularly under the probing 
     of appropriately diligent defense counsel, can elicit 
     evidence about means and methods of evidence collection that 
     have nothing to do with the underlying issues in the case, 
     but which can be used to press government witnesses to either 
     disclose information they would prefer to keep confidential 
     or make it appear that they are concealing facts. The 
     alternative is to lengthen criminal trials beyond what is 
     tolerable by vetting topics in closed sessions before they 
     can be presented in open ones.
       In June, Attorney General Eric Holder announced the 
     transfer of Ahmed Ghailani to this country from Guantanamo. 
     Mr. Ghailani

[[Page 25129]]

     was indicted in connection with the 1998 bombing of U.S. 
     Embassies in Kenya and Tanzania. He was captured in 2004, 
     after others had already been tried here for that bombing.
       Mr. Ghailani was to be tried before a military commission 
     for that and other war crimes committed afterward, but when 
     the Obama administration elected to close Guantanamo, the 
     existing indictment against Mr. Ghailani in New York 
     apparently seemed to offer an attractive alternative. It may 
     be as well that prosecuting Mr. Ghailani in an already 
     pending case in New York was seen as an opportunity to 
     illustrate how readily those at Guantanamo might be 
     prosecuted in civilian courts. After all, as Mr. Holder said 
     in his June announcement, four defendants were ``successfully 
     prosecuted'' in that case.
       It is certainly true that four defendants already were 
     tried and sentenced in that case. But the proceedings were 
     far from exemplary. The jury declined to impose the death 
     penalty, which requires unanimity, when one juror disclosed 
     at the end of the trial that he could not impose the death 
     penalty--even though he had sworn previously that he could. 
     Despite his disclosure, the juror was permitted to serve and 
     render a verdict.
       Mr. Holder failed to mention it, but there was also a fifth 
     defendant in the case, Mamdouh Mahmud Salim. He never 
     participated in the trial. Why? Because, before it began, in 
     a foiled attempt to escape a maximum security prison, he 
     sharpened a plastic comb into a weapon and drove it through 
     the eye and into the brain of Louis Pepe, a 42-year-old 
     Bureau of Prisons guard. Mr. Pepe was blinded in one eye and 
     rendered nearly unable to speak.
       Salim was prosecuted separately for that crime and found 
     guilty of attempted murder. There are many words one might 
     use to describe how these events unfolded; ``successfully'' 
     is not among them.
       The very length of Mr. Ghailani's detention prior to being 
     brought here for prosecution presents difficult issues. The 
     Speedy Trial Act requires that those charged be tried within 
     a relatively short time after they are charged or captured, 
     whichever comes last. Even if the pending charge against Mr. 
     Ghailani is not dismissed for violation of that statute, he 
     may well seek access to what the government knows of his 
     activities after the embassy bombings, even if those 
     activities are not charged in the pending indictment. Such 
     disclosures could seriously compromise sources and methods of 
     intelligence gathering.
       Finally, the government (for undisclosed reasons) has 
     chosen not to seek the death penalty against Mr. Ghailani, 
     even though that penalty was sought, albeit unsuccessfully, 
     against those who stood trial earlier. The embassy bombings 
     killed more than 200 people.
       Although the jury in the earlier case declined to sentence 
     the defendants to death, that determination does not bind a 
     future jury. However, when the government determines not to 
     seek the death penalty against a defendant charged with 
     complicity in the murder of hundreds, that potentially 
     distorts every future capital case the government prosecutes. 
     Put simply, once the government decides not to seek the death 
     penalty against a defendant charged with mass murder, how can 
     it justify seeking the death penalty against anyone charged 
     with murder--however atrocious--on a smaller scale?
       Even a successful prosecution of Mr. Ghailani, with none of 
     the possible obstacles described earlier, would offer no 
     example of how the cases against other Guantanamo detainees 
     can be handled. The embassy bombing case was investigated for 
     prosecution in a court, with all of the safeguards in 
     handling evidence and securing witnesses that attend such a 
     prosecution. By contrast, the charges against other detainees 
     have not been so investigated.
       It was anticipated that if those detainees were to be tried 
     at all, it would be before a military commission where the 
     touchstone for admissibility of evidence was simply relevance 
     and apparent reliability. Thus, the circumstances of their 
     capture on the battlefield could be described by affidavit if 
     necessary, without bringing to court the particular soldier 
     or unit that effected the capture, so long as the affidavit 
     and surrounding circumstances appeared reliable. No such 
     procedure would be permitted in an ordinary civilian court.
       Moreover, it appears likely that certain charges could not 
     be presented in a civilian court because the proof that would 
     have to be offered could, if publicly disclosed, compromise 
     sources and methods of intelligence gathering. The military 
     commissions regimen established for use at Guantanamo was 
     designed with such considerations in mind. It provided a way 
     of handling classified information so as to make it available 
     to a defendant's counsel while preserving confidentiality. 
     The courtroom facility at Guantanamo was constructed, at a 
     cost of millions of dollars, specifically to accommodate the 
     handling of classified information and the heightened 
     security needs of a trial of such defendants.
       Nevertheless, critics of Guantanamo seem to believe that if 
     we put our vaunted civilian justice system on display in 
     these cases, then we will reap benefits in the coin of world 
     opinion, and perhaps even in that part of the world that 
     wishes us ill. Of course, we did just that after the first 
     World Trade Center bombing, after the plot to blow up 
     airliners over the Pacific, and after the embassy bombings in 
     Kenya and Tanzania.
       In return, we got the 9/11 attacks and the murder of nearly 
     3,000 innocents. True, this won us a great deal of goodwill 
     abroad--people around the globe lined up for blocks outside 
     our embassies to sign the condolence books. That is the kind 
     of goodwill we can do without.

  Mr. McCAIN. Finally, I hope we will have the opportunity to come back 
to this debate during the floor consideration of the Commerce-Justice-
State appropriations bill in the context of the Graham amendment on 
this issue, which I am proud to cosponsor along with Senator Lieberman.
  I am concerned, however, because I understand the administration will 
soon announce its decision on prosecuting the 9/11 detainees, and 
indications are the administration will seek such prosecutions in 
Federal criminal courts. Congress should have the opportunity to speak 
on this issue before the administration embarks on a course with which 
I and many law and national security experts strongly disagree.
  I am also pleased this conference report does contain a provision 
that will allow the Secretary of Defense to prohibit the disclosure of 
detainee photographs under the Freedom of Information Act if he 
certifies that release of the photos would endanger U.S. citizens, 
members of the Armed Forces, or U.S. Government employees deployed 
outside the United States.
  I do not have to, nor should I have to, remind my colleagues about 
the seriousness of the fiscal crisis our Nation is facing. There is no 
better way to prove we are serious about getting our country back on 
the right path than by ending the wasteful practice of earmarking funds 
in appropriations bills, especially a bill as important as this one 
that provides for funding of our critical homeland security programs.
  Our current economic situation and our vital national security 
concerns require that now more than ever we prioritize our Federal 
spending. But this conference report does not do that. We cannot 
continue to spend taxpayer dollars in such an irresponsible manner. So, 
obviously, I am unable to support this legislation. I encourage my 
colleagues to vote against it, and if it is passed, I urge the 
President of the United States to send a message that this is going to 
stop and veto this bill and every other bill that is larded down with 
earmarked porkbarrel projects. It is time for a change, a real change.
  Finally, there are some angry people out there. They call them tea 
parties. They come to the townhall meetings in huge numbers. They 
write. They call. They e-mail. They Twitter. They tell us they are sick 
and tired of this. I urge my colleagues to vote no.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, the junior Senator from South Carolina 
earlier raised concerns about dropping his amendment concerning the 
fence on the southwest border. He asserted that the decision to drop 
the language was made behind closed doors. To be clear, the conference 
met in public session on October 7 during the full light of day.
  As to the DeMint amendment, I fully support the goal of the amendment 
that was offered by the Senator from South Carolina. I am one of the 
strongest proponents in the Senate of securing our southwest border. 
That is why I supported legislation in 2006 to build the fence. I have 
led the effort to increase border security and immigration enforcement 
efforts.
  However, the amendment that was offered by the able Senator from 
South Carolina is too prescriptive and too costly. Instead, in 
conference I worked to provide real resources to secure our borders. 
The conference agreement before the Senate today sustains the 
bipartisan congressional effort begun by the Byrd amendment to the 
fiscal year 2005 supplemental and continued in the fiscal year 2006-
2009 appropriations acts to provide substantial increases in border 
security and immigration enforcement.
  The number of Border Patrol agents has increased from 11,264 to a 
level of

[[Page 25130]]

20,019 agents, by the end of this year. Under this agreement, the 
conferees added over $21 million above the request to hire an 
additional 144 agents. There will be 20,163 agents onboard at the end 
of fiscal year 2010.
  Similarly, the number of detention beds has increased in the same 
time period from 18,500 beds to 33,400 beds. The agreement fully funds 
33,400 detention beds and includes statutory language to maintain that 
level of bed space throughout the fiscal year.
  The agreement also adds $25 million to the President's request of 
$112 million to expand the capacity of the E-Verify Program and 
increases its compliance rate.
  The miles of fencing that have been constructed have increased from 
119 miles in 2006 to more than 629 miles. The number of miles of the 
southwest border that are under ``effective control,'' as determined by 
the Border Patrol, has grown from 241 miles to almost 700 miles this 
year. That is an increase of almost 80 miles since the end of the last 
fiscal year.
  More than 655 miles of border fence will be complete in early 2010. 
The agreement provides $800 million or $25 million above 2009 for the 
deployment of additional sensors, cameras, and other technology on the 
southwest border. Since beginning major border fence and security 
construction along the southwest border in fiscal year 2007, when 
combined with the $800 million in this bill and the $100 million 
provided in the Recovery Act, nearly $4.1 billion--spelled with a 
``b''--nearly $4.1 billion has been appropriated for this purpose. That 
$4.1 billion is a lot of money, a lot of money. That is $4.10 for every 
minute since Jesus Christ was born the way I figure it.
  However, it is estimated it could cost $8.5 billion to construct the 
additional fencing required by the Senator's amendment. That is money 
we do not have. The conference report strongly supports all aspects, 
all aspects of border security and immigration enforcement, and I urge 
my colleagues to support it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, how much time is remaining on the 
Democratic side?
  The PRESIDING OFFICER. There is 3 minutes remaining.
  Mr. DURBIN. I ask unanimous consent to have 5 additional minutes, for 
a total of 8 minutes allocated for us.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I rise today to speak in support of a provision in this 
bill and thank the chairman of this committee, Senator Robert C. Byrd 
of West Virginia, for his fine work not only on this bill but for his 
amazing contribution to America and to this institution of the Senate.
  I rise today to speak in support of a provision in the bill which 
allows detainees held at Guantanamo to be transferred to the United 
States to be prosecuted and held responsible for their crime. The 
President has been clear. It is a priority of this administration to 
bring to justice those responsible for 9/11 and other terrorists who 
have attacked our country.
  The conference report which we are considering would allow those 
people responsible for acts of terrorism to be brought here to be tried 
for their crimes. Unfortunately, some people on the other side of the 
aisle have spoken today and have a different view.
  Earlier today, my colleagues, Senators Chambliss and Sessions, argued 
that we should not transfer suspected terrorists from Guantanamo to the 
United States to be prosecuted for their crimes.
  Senator Chambliss said, ``Prosecuting these individuals in our United 
States courts simply will not work.''
  Senator Sessions said, ``There is no practical alternative'' to 
prosecuting detainees in military commissions at Guantanamo Bay.
  Those statements are very clear but they are also wrong. Look at the 
record. For 7 long years the Bush administration failed to convict any 
of the terrorists planning the 9/11 attacks. And for 7 long years only 
three individuals were convicted by military commissions at Guantanamo. 
In contrast, look at the record of our criminal justice system when it 
came to trying terrorists accountable for their crimes. Richard Sabel 
and James Benjamin, two former Federal prosecutors with extensive 
experience, published a detailed study of the prosecutions of 
terrorists in the courts of the United States of America. Here is what 
they found: From 9/11 until June 2009, 195 terrorists were convicted 
and sentenced for their crimes in our courts.
  When the Senator on the other side says, ``Prosecuting these 
individuals in our United States courts simply will not work,'' he 
ignores 195 successful prosecutions.
  According to the Justice Department, since January 1, 2009, more than 
30 terrorists have been successfully prosecuted or sentenced in Federal 
courts. It continues to this day.
  When you compare the record at Guantanamo, where Senators from the 
other side of the aisle say all these cases should be tried, it is 
clear the only way to deal with this is through our court system--not 
exclusively, but it should be an option that is available to the 
Department of Justice.
  Recently, the administration transferred Ahmed Ghailani to the United 
States to be prosecuted for his involvement in the 1998 bombings of our 
Embassies in Kenya and Tanzania, killing 224 people, including 12 
Americans.
  My colleagues on the other side of the aisle have been critical of 
the administration's decision to bring this man to justice in America's 
courts. For example, Eric Cantor, who is a Member of the House on the 
Republican side, said:

       We have no judicial precedents for the conviction of 
     someone like this.

  The truth is, there are many precedents for the conviction of 
terrorists in U.S. courts: Ramzi Yousef, the mastermind of the 1993 
World Trade Center bombing; Omar Abdel Rahman, the so-called Blind 
Sheikh; Richard Reid, the ``Shoe Bomber;'' Zacarias Moussaoui; Ted 
Kaczynski, the Unabomber; and Terry Nichols, the Oklahoma City 
coconspirator.
  In fact, there is a precedent for convicting terrorists who were 
involved in the bombing of the United States Embassies in Tanzania and 
Kenya, the same attack Ahmed Ghailani was indicted for. In 2001, four 
men were sentenced to life without parole at the Federal courthouse in 
lower Manhattan, the same court in which Mr. Ghailani will be tried.
  I will tell you point blank: If they on the other side of the aisle 
are trying to create some fear that we cannot bring a terrorist to the 
United States of America, hold them successfully, try them in our 
courts, convict them and incarcerate them, history says otherwise.
  Over 350 convicted terrorists have been tried in our courts and are 
being held in our prisons today successfully--held every single day. Is 
America less safe because of it? No. We are safer because would-be 
terrorists are off the streets, convicted in our courts, serving time 
in prison--exactly where they belong.
  To argue we should eliminate this administration's right to try a 
terrorist in a U.S. court is to deny to our government a tool they need 
to fight terrorism. We also know that not a single person has ever 
escaped from maximum security in the Federal prisons of America. 
Somehow, to create the notion that the people tried in our courts are 
somehow going to be released in America--President Obama has made it 
clear, that will never happen. He is not endorsing that, never has. And 
to suggest that is to suggest something that has never been endorsed by 
the administration. Furthermore, we know they can be held successfully 
in our courts.
  This bill does the right thing. It gives the President the option, 
when the Department of Justice believes it is the most likely place to 
try, successfully, those accused of terrorism--to bring them into our 
court system, to detain them in the United States for that purpose.
  There is nothing in this bill which would give the President--or 
anyone, if he wanted it--the authority to release a Guantanamo detainee 
in America. This is something that has been created, unfortunately, by 
a lot of talk

[[Page 25131]]

show hosts who do not read the bill and do not understand the law and 
certainly do not understand what Guantanamo does to us today.
  What does it cost for us to hold a terrorist at Guantanamo today? Mr. 
President, $435,000 a year. That is what it costs--dramatically more 
than the cost of incarcerating in America's prisons.
  I want to make it clear that I endorse the position not only of the 
administration but also of GEN Colin Powell; Republican Senators John 
McCain and Lindsey Graham; former Republican Secretaries of State James 
Baker, Henry Kissinger, and Condoleezza Rice; Defense Secretary Robert 
Gates; ADM Mike Mullen, the Chairman of the Joint Chiefs of Staff; and 
GEN David Petraeus, who have all said that closing Guantanamo will make 
America a safer place.
  There are some on the other side of the aisle who have not accepted 
that. I do not believe they understand the threat which the 
continuation of Guantanamo as an imprisonment facility challenges us to 
acknowledge in this day and age when we face global terrorism.
  Guantanamo must be closed because it has become a recruiting tool for 
al-Qaida and other terrorists. That is not just my opinion; it is the 
opinion of significant leaders of this country, such as former GEN 
Colin Powell.
  I think we should endorse the language in this conference report. We 
should move forward with the adoption of this conference report, give 
the President another tool to fight terrorism.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Kaufman). The Senator from West Virginia.
  Mr. BYRD. Mr. President, as we complete the debate today on the 
fiscal year 2010 Homeland Security Appropriations bill, I again thank 
the very able Senator from Ohio, George Voinovich, the ranking member, 
for his many contributions to this bipartisan legislation.
  I thank all Senators. This conference report provides the Department 
of Homeland Security with the resources it needs to succeed in its 
critical missions. I urge support for the conference report.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I thank the chairman of our 
subcommittee, Senator Byrd, for the outstanding job he has done in 
finally putting together this conference report so it can be considered 
by the Senate.
  I also acknowledge the tremendous help we have gotten from our staff 
on this piece of legislation. I am sorry that Carol Cribbs cannot be 
here today. Carol worked very hard on this legislation. She is at home 
after taking a big fall and cutting her face, and I want to mention her 
name and let her know we miss her and we appreciate the good job she 
has done for us. Rebecca Davies has worked very hard on this 
legislation, and I appreciate it. She was bringing in a neophyte. This 
is my first opportunity to be on the Appropriations Committee.
  There have been several issues raised here by some of my colleagues 
on our side of the aisle that are things that should be taken into 
consideration. The Senator from Arizona continues to make the case in 
terms of earmarks, and I am sure he will continue to do that, and we do 
respect what he has to say about that issue. But I believe the way this 
legislation is put together carefully justifies people on my side of 
the aisle supporting this legislation, in spite of some of the things 
the Senator from Arizona talked about.
  In addition to the provisions that deal with Guantanamo Bay, I wish 
to point out that the language in this conference report is the same 
language that appeared in the June Defense supplemental that was passed 
in 2009, which continues to be the law under the continuing resolution. 
Fundamentally, what we do is put that same language here in this 
conference report.
  If somebody reads the conference report, on page 38, they can see, in 
spite of the fine words of the Senator from Illinois, there is a large 
barrier the President has to go over before he could let anyone here 
into this country. And if he does let them here, as Senator Durbin has 
said, they would be here for prosecution. But there are seven hurdles 
that have to be met by the President. Once he does that, then 45 days 
thereafter he could bring someone in for prosecution. So I think anyone 
who is concerned about bringing a bunch of the Gitmo people here in the 
United States for any other reason but prosecution should be comforted 
by the fact of this language. Also, I point out, there is language in 
the Senate Defense appropriations bill that also deals with this 
subject.
  So for all intents and purposes, I think we have done a fairly good 
job. Frankly, I wish we had adopted this conference report a month and 
a half ago. But we did not. I urge my colleagues to support the 
conference report.
  The PRESIDING OFFICER. The majority whip is recognized.
  Mr. DURBIN. Mr. President, unless someone is seeking recognition--and 
I do not believe they are--I ask unanimous consent that all time be 
yielded back, and the Senate vote on adoption of the conference report, 
with no points of order in order.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The question is on the adoption of the conference report.
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from North Carolina (Mrs. 
Hagan) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 79, nays 19, as follows:

                      [Rollcall Vote No. 323 Leg.]

                                YEAS--79

     Akaka
     Alexander
     Baucus
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Cornyn
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Harkin
     Hatch
     Inouye
     Johanns
     Johnson
     Kaufman
     Kirk
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--19

     Barrasso
     Bayh
     Bunning
     Burr
     Chambliss
     Coburn
     Corker
     Crapo
     DeMint
     Ensign
     Enzi
     Hutchison
     Inhofe
     Isakson
     Kyl
     McCain
     Risch
     Sessions
     Wicker

                             NOT VOTING--2

     Hagan
     Kerry
       
  The conference report was agreed to.
  Mr. COCHRAN. Mr. President, I move to reconsider the vote.
  Mr. BAUCUS. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. GRASSLEY. Mr. President, while I voted in support of the fiscal 
year 2010 Homeland Security appropriations bill, I do want to take this 
opportunity to express my frustrations with the fact that many good 
provisions were taken out of the final bill by the House-Senate 
conference committee. The provisions I want to talk about were intended 
to improve our ability to enforce immigration law in the interior and 
to secure the border to protect the homeland.
  First, I want to talk about the amendment I pushed for during Senate 
consideration of the appropriations bill. It would have given 
businesses the tools to ensure that they have a legal

[[Page 25132]]

workforce. My amendment would have allowed employers to voluntarily 
check their existing workforce and make sure their workers are legally 
in this country to work. It said that if an employer chooses to verify 
the status of all their workers--not just new hires--then they should 
be allowed to do so. And, it had protections in place. If an employer 
were to elect to check all workers, they would have to notify the 
Secretary of Homeland Security that they plan to verify their existing 
workforce. The employer would then have 10 days to check all workers. 
This short time period would prevent employers from targeting certain 
workers by claiming that they are ``still working on'' verifying the 
remainder of their workforce. And, my amendment would have required the 
employer to check all individuals if they plan to check their existing 
workforce. If they check one, they check them all.
  Employers want to abide by the law and hire people that are legally 
in this country. Right now, E-Verify only allows them to check 
prospective employees. But, we should be allowing employers to access 
this free, online database system to check all their workers.
  Second, while I am grateful that the committee recognizes the need to 
keep E-Verify operational and that the bill includes a three year 
reauthorization of the program, I am disappointed that the conference 
committee stripped an amendment to permanently reauthorize E-Verify. 
The amendment authored by Senator Sessions was passed with bipartisan 
support. The administration and the majority leadership claim they 
fully back the E-Verify program, but their actions don't show it. Our 
businesses need to know that this program will be around for the long-
term, and that they can rely on the Federal Government to make sure 
that the workers they hire are legally in this country.
  The third amendment stripped by the conference committee would have 
increased our ability to secure the border by putting funds into 
fencing to reduce illegal pedestrian border crossings. The DeMint 
provision would have required 700 miles of reinforced pedestrian 
fencing to be built along the southern border by December 31, 2010.
  Finally, an amendment to allow the Department of Homeland Security to 
go forward with the ``no match'' rule was stripped. This amendment by 
Senator Vitter would have blocked the Obama administration from gutting 
the ``no-match'' rule put in place in 2008 to notify employers when 
their employees are using a Social Security number that does not match 
their name. These ``no match'' letters help employers who want to 
follow the law and make sure they are employing legally authorized 
individuals.
  I voted for this bill on the Senate floor because homeland security 
is not something we should play politics with. Defending our country is 
our No. 1 constitutional priority. Taxpayers expect us to get these 
bills passed and we have that responsibility. I voted for this bill 
today because it includes funding for essential border security and 
interior security efforts. However, there are a number of problems with 
this bill despite my vote for it. I am concerned that the House and 
Senate conference committee did a disservice to the American people by 
taking out language preventing illegal aliens from gaining work in this 
country. The conference committee, had they kept the provisions I 
talked about, would have helped many Americans who are looking for work 
and struggling to make ends meet. The provisions would have also held 
employers accountable for their hiring practices. It's my hope that 
this body will work harder to beef up our immigration enforcement 
efforts, and ensure that Americans are given a priority over illegal 
aliens during this time of high unemployment.

                          ____________________