[Congressional Record (Bound Edition), Volume 156 (2010), Part 7]
[Senate]
[Pages 9009-9014]
[From the U.S. Government Publishing Office, www.gpo.gov]




   MAKING EMERGENCY SUPPLEMENTAL APPROPRIATIONS FOR FISCAL YEAR 2010

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of H.R. 4899, which the clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 4899) making emergency supplemental 
     appropriations for disaster relief and summer jobs for the 
     fiscal year ending September 30, 2010, and for other 
     purposes.

  Pending:

       Reid amendment No. 4174, to provide collective bargaining 
     rights for public safety officers employed by States or their 
     political subdivisions.
       Sessions/McCaskill amendment No. 4173, to establish 3-year 
     discretionary spending caps.

  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I have conferred with the distinguished 
chairman of the Appropriations Committee, Senator Inouye. There is no 
objection that I ask unanimous consent to continue for a few minutes as 
in morning business. I make such a request.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                         Ending Discrimination

  Mr. LEAHY. Mr. President, I support congressional action to move past 
the policies that discriminated on the basis of sexual orientation 
against men and women serving and wanting to serve in our Nation's 
military.
  I commend Admiral Mullen, the Chairman of the Joint Chiefs of Staff, 
Defense Secretary Gates, and the President for their leadership on this 
important issue. America is defended by the finest military in the 
world.

[[Page 9010]]

There should be no place in America, including in our military, for 
discrimination.
  While the country and Congress work to move the country forward and 
open the doors of opportunity to all Americans, some still choose to 
sow division and partisan conflict. How ironic that the policy of 
nondiscrimination that Elena Kagan sought to encourage while serving as 
the Dean of Harvard Law School is poised to become the law of the land, 
while those who oppose her nomination continue to distort her lawful 
actions to ensure that the school followed its nondiscrimination 
policy.
  I support the reversal of the don't ask, don't tell policy. I hope 
all Senators will.
  Two weeks ago, President Obama nominated Elena Kagan to succeed 
Justice John Paul Stevens as Associate Justice of the Supreme Court of 
the United States. Much has been written and said about this nomination 
during the last 2 weeks and more will be said over the next month, as 
we prepare for the Judiciary Committee's hearing, which will begin on 
June 28. So far, there has been far too much talk about the process and 
too much partisanship surrounding this important matter. Among the most 
serious constitutional duties entrusted to the Senate is the 
confirmation of Supreme Court Justices. So let us refocus on the 
qualifications of this extraordinary nominee, remembering that a 
Supreme Court Justice is there not to serve a Republican or a 
Democratic administration but all 300 million Americans.
  When the President announced his choice back on May 10, he talked 
about Solicitor General Kagan's legal mind, her intellect, her record 
of achievement, her temperament, her fairmindedness. No one can 
question the intelligence or the achievements of this woman. She is at 
the top of the legal profession. She is no stranger to breaking glass 
ceilings. She was the first woman to be dean of the prestigious Harvard 
Law School. It was from Harvard Law School that she earned her law 
degree magna cum laude. Previously, she earned a degree from Oxford 
University and graduated summa cum laude from Princeton University. She 
clerked for two leading judicial figures--Judge Abner Mikva on the 
Court of Appeals for the District of Columbia Circuit and then on the 
Supreme Court for one of the most extraordinary lawyers and judges in 
American history, Justice Thurgood Marshall.
  As an advocate, Thurgood Marshall helped change America for the 
better by bringing cases that challenged racial discrimination. He won 
an extraordinary 29 of the 32 cases he argued before the Court, one of 
the most outstanding records of advocacy before the Court, including 
the landmark case of Brown v. Board of Education which helped bring an 
end to racial segregation in education in America, a blot on our 
country that was finally removed by that case.
  Despite his obvious legal qualifications, when Thurgood Marshall was 
nominated to the Second Circuit Court of Appeals by President Kennedy 
in 1961, his nomination was stalled by opponents in the Senate before 
he was eventually confirmed by a bipartisan vote of 54 to 16. He gave 
up that lifetime appointment when called upon by President Johnson to 
serve as Solicitor General of the United States, the top legal advocate 
for the United States. Now, 40 years later, it is Elena Kagan who is 
serving as the Solicitor General of the United States, the first woman 
in America's history to serve as Solicitor General.
  Two score and 3 years ago, President Johnson nominated Thurgood 
Marshall to be the first African American to serve on the U.S. Supreme 
Court. President Johnson said that it was ``the right thing to do, the 
right time to do it, the right man and the right place.'' President 
Johnson was right, and that nomination helped move the country forward. 
The nomination was confirmed by a bipartisan Senate vote of 69-11.
  The American people have now elected our first African-American 
President, a leader who is committed to the Constitution and rule of 
law. With his first selection to the Supreme Court, he named Justice 
Sonia Sotomayor, the first Hispanic to serve on the high Court. She was 
confirmed last year and has been a welcome addition to the Supreme 
Court. Now he has nominated only the fourth woman in the Court's 
history, a nominee who when confirmed will bring the Court to a new 
high water mark of three women serving as Justices. Yet Senate 
Republicans seem to want to shift the standard from when the Senate was 
considering President Bush's nominees to the Supreme Court--John 
Roberts and Samuel Alito--and to apply a new standard to President 
Obama's nomination of Elena Kagan.
  I have long urged Presidents from both political parties to look 
outside what I have called the judicial monastery and not to feel 
restricted to considering only Federal appellate judges as potential 
Supreme Court nominees. When confirmed, Elena Kagan will be the only 
member of the Supreme Court who did not serve as a Federal appeals 
court judge. When confirmed, she will be the first nonsitting Federal 
judge to be confirmed to the Supreme Court in almost 30 years, since 
the appointment of Justice Sandra Day O'Connor.
  When the President introduced Elena Kagan to the country, I was 
interested in him talking about learning from Justice Marshall that 
``behind law, there are stories--stories of people's lives as shaped by 
the law, stories of people's lives as might be changed by the law.'' 
The President said that her understanding of law is not merely 
intellectual or ideological but how it affects the lives of people.
  We heard Solicitor General Kagan earlier this month talk about the 
importance of upholding the rule of law and enabling all Americans to 
get a fair hearing. She said, ``law matters; because it keeps us safe, 
because it protects our most fundamental . . . freedoms; and because it 
is the foundation of our democracy.'' Like her, I believe law matters 
and matters in people's lives. The Constitution is our protection.
  Since her nomination, Solicitor General Kagan has met with dozens of 
Senators. I understand she will conclude her meetings with the Senators 
serving on the Judiciary Committee in the coming weeks. We have each 
had a chance to meet with her, speak with her, ask her questions, and 
learn more about her. At our Judiciary Committee hearing next month, 
the American people will have the chance to see her, hear her, and get 
to know her.
  Fourteen months ago, the Senate considered Elena Kagan's impressive 
legal credentials when we confirmed her in a bipartisan vote to be the 
Solicitor General of the United States, the Nation's top lawyer. The 
person filling that vital post is informally referred to as the ``tenth 
Justice,'' because the Solicitor General works so closely on 
significant cases before the Supreme Court. Solicitor General Kagan has 
now argued a broad range of issues, including her successful defense of 
Congress's ability to protect children from pedophiles.
  With this nomination, Elena Kagan follows in the footsteps of her 
mentor, Thurgood Marshall, who also was nominated to the Supreme Court 
from the position of Solicitor General. She broke the glass ceiling 
when she was appointed as the first woman to serve as Solicitor 
General, as she did when she was named the first woman to serve as dean 
of the Harvard Law School. They are historic accomplishments. In fact, 
as dean, Elena Kagan worked well with all ideological components of the 
faculty at Harvard. She took action to bring more conservative 
viewpoints to the institution and encouraged civil discourse. Those are 
skills that will be useful in what often appears to be a sharply 
divided Supreme Court.
  Having counseled the President to look outside the judicial 
monastery, a recommendation I have made to every President since I have 
been here, beginning with President Ford, I was struck that the first 
wave of attacks by Senate Republicans to this nomination was that she 
lacked judicial experience. These attacks ignored Senate Republicans' 
own recent statements

[[Page 9011]]

praising President Bush's nomination of Harriet Miers for being someone 
who had not served a judge, calling her a ``wonderful choice'' who 
would ``fill very important gaps in the Supreme Court.'' Now that a 
Democratic President is nominating, they reverse themselves to contend 
that lack of judicial experience is a matter for ``concern,'' is 
``troubling,'' and a matter that ``warrants great scrutiny.'' Ralph 
Waldo Emerson once said that a foolish consistency is the hobgoblin of 
little minds. They are not suffering hobgoblins, but the Senate 
Republicans are moving the goalposts, and shifting the standard from 
when the Senate considered the Roberts and Alito nominations. 
Republicans should not apply a double standard to the nomination of 
this qualified woman.
  Of course this Republican criticism ignores another key fact: They 
are themselves responsible for her lack of judicial experience. 
President Clinton nominated her to the DC Circuit in 1999 and it was 
Senate Republicans who refused to consider her nomination. Had they 
done so she would have more than 10 years of judicial experience.
  Republican Senate leadership staff was recently quoted as admitting 
that these early attacks on Solicitor General Kagan's experience were 
really just a ploy in what they view as a partisan game. ```The lack of 
experience isn't the put-away shot,' the aide said. `It's the door we 
use to get into her record.''' This is from Roll Call, May 12, 2010. I 
wish Senate Republicans would not approach our constitutional 
responsibilities with respect to judicial confirmations as a partisan 
game.
  This feigned criticism of her that somehow she is unqualified because 
she lacks judicial experience is ignorant of our history and 
constitutional government. It is very recently that the path to the 
Supreme Court has become so narrow. Indeed, nearly half of our Supreme 
Court Justices were nominated to the Court from a position other than a 
judgeship. Fifty-four of our 110 Supreme Court Justices were not 
serving as judges when nominated. Forty-one justices had no judicial 
experience at all. Let me mention a few of the distinguished Justices 
without prior judicial experience: Chief Justice John Marshall, Justice 
Louis Brandeis, Justice Felix Frankfurter, Justice Byron White, Justice 
Robert Jackson, and Justice William Rehnquist.
  Chastened after having been reminded of their recent support for 
President Bush's nomination of Harriet Miers, who had not been a judge, 
Senate Republicans abandoned this poll-driven line of attack. They are 
now trying a different tack. They contend that the President should not 
be nominating someone who has served in the government or his 
administration.
  Of course, Senate Republicans did not voice any such concern before 
the American people elected President Obama. The most obvious example 
is, again, that of President Bush's nomination of Harriet Miers. Senate 
Republicans did not object to Ms. Miers' nomination because she had 
served in the government or because she was serving as counsel to the 
President. They did not object that she was too close to the President 
and could not be independent. To the contrary, they objected and joined 
with extreme right-wing activists to force the President to withdraw 
that nomination because they feared they could not count on her enough. 
She did not pass their ideological litmus test. They could not be 
certain how she would vote and whether she would carry out their 
judicial agenda.
  Nor did Senate Republicans express any concern when President Bush 
made other nominations to the Federal courts from his close advisers 
and team. Senate Republicans supported his nominations of Brett 
Kavanaugh, who was serving as his Cabinet Secretary, Jim Haynes, the 
loyal general counsel of the Defense Department, and Jay Bybee from his 
Office of Legal Counsel. The issue I raised in connection with the 
nomination of Alberto Gonzales to be Attorney General was his 
unfettered loyalty to President Bush and his lack of independence. No 
Republican joined in my concern then, but most soon after had to 
acknowledge that many of us had been right when we investigated White 
House influence in the firing of U.S. attorneys for political reasons. 
I hope that Senate Republicans will not apply a new standard to Elena 
Kagan's nomination that was not applied when the Senate considered the 
nominations of those men.
  Unlike these Republican critics, I have always championed judicial 
independence. I think it is important the judicial nominees understand 
that as judges they are not members of an administration, but they are 
judicial officers. They should not be political partisans but judges 
who uphold the Constitution and the rule of law for all Americans. That 
is what Justice Stevens did in Hamdan, which held the Bush 
administration's military tribunals unconstitutional, and tried to do 
in Citizens United, the Supreme Court's recent narrow decision in which 
five Justices opened the door for massive corporate spending on 
elections. That is why the Supreme Court's intervention in the 2000 
presidential election in Bush v. Gore was so jarring and wrong.
  I welcome questions to the Solicitor General about judicial 
independence. But let us be fair. Let us listen to her answers. Let us 
set this overheated rhetoric aside. Let us be fair to Solicitor General 
Kagan, fair to her distinguished record. There is no basis to question 
her integrity, no reason to presume she would not be independent.
  Thurgood Marshall was the Solicitor General of the United States when 
President Johnson nominated him to the Supreme Court. Does anyone think 
Justice Marshall lacked independence? Earl Warren had been designated 
to be Solicitor General when President Eisenhower nominated him to be 
Chief Justice. Does anyone contend that Chief Justice Warren lacked 
independence? Robert Jackson was serving as Attorney General when 
President Franklin Roosevelt nominated him. Does anyone contend that 
Justice Jackson lacked independence? Justice Byron White was serving as 
the Deputy Attorney General when President Kennedy nominated him. Does 
anyone contend that Justice White lacked independence? And, of course, 
John Marshall was serving as Secretary of State when President Adams 
nominated him to be Chief Justice. Does anyone contend that Chief 
Justice Marshall, the person who established the principal of judicial 
review, lacked independence? Chief Justice Roberts, Justice Alito and 
Justice Scalia all had significant experience working in the Justice 
Department but no Republican questioned their independence. In fact, 
Solicitor General Kagan is the 19th Supreme Court nominee to be named 
directly from a significant executive branch position.
  Before someone questions the independence of this nominee, they 
should have a basis. I know of none. No one should presume that this 
intelligent woman who has excelled during every part of her varied and 
distinguished career lacks independence. I know of no basis for such 
contention.
  I look forward to the beginning of the Judiciary Committee hearings. 
I was amazed, flabbergasted to hear concerns about the schedule I set 
for her nomination. I tried to set the same schedule as that I agreed 
on for Justice Roberts during the Bush administration and Justice 
Sotomayor during the Obama administration.
  I have to admit, I did not hit it exactly. We are taking a day longer 
to begin hearings for Elena Kagan than for John Roberts or Sonia 
Sotomayor. To do it exactly on the same day, we would have to start on 
a Sunday, and I did not think that would be fair. So we are adding a 
day, and we are starting on a Monday.
  I only note that when a Republican President nominated a man to the 
Supreme Court, the schedule was fine. When a Democratic President 
nominated women to the Supreme Court with exactly the same schedule, 
suddenly it is not a fair schedule. Maybe I am old fashioned. Maybe I 
am influenced by my wife, my daughter, my three granddaughters. But I 
think the rules ought to be the same for men and for women. That is why 
her schedule is the same.
  Let us stop the crocodile tears on the other side about schedules. 
They did

[[Page 9012]]

not complain when it was a Republican man being nominated with that 
schedule. Do not complain when a Democratic President nominates a woman 
and it is the same schedule.
  I look forward to these hearings. That is when Solicitor General 
Kagan will finally be given the opportunity to answer questions and 
will, based on all I know about her, give the American people and open-
minded Senators confidence in her legal knowledge and abilities. I 
expect that after reviewing her record and hearing from her during the 
Judiciary Committee's hearing, Senators on both sides of the aisle and 
the American people will conclude that the President has nominated an 
outstanding future Justice.
  Mr. LEAHY. Mr. President, I appreciate the never-ending courtesy of 
the Senator from Hawaii to a more junior Senator.
  Mr. INOUYE. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The Sessions amendment is the pending question 
on the Supplemental Appropriations Act.
  The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INOUYE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           amendment no. 4173

  Mr. INOUYE. Mr. President, this will be the fourth time this year the 
Senate has faced an amendment from the Senator from Alabama which seeks 
to constrain discretionary spending. Each one of the amendments has 
been similar.
  The Senator from Alabama uses last year's budget resolution as his 
starting point. He argues that since Congress agreed to this level last 
year that we should stick with it.
  His goal is to mandate that the Congress hold the line on 
discretionary spending at these levels.
  I would remind my colleagues that the Budget Committee had the 
ability to make these caps binding when they passed this resolution 
last year, but they chose not to.
  Instead they put these notional targets in the resolution.
  However, since the last time the Senate defeated the amendment, one 
important change has occurred. The Budget Committee has now reviewed 
the President's budget request for fiscal year 2011 and has marked up a 
new budget resolution. They have changed their recommendation.
  Since the committee has determined the levels that it believes should 
be adhered to, I am not sure what benefit the Senate would have in 
agreeing to the notional targets in last year's resolution.
  Moreover, like the last three times, there simply is no justification 
for the rest of the amendment.
  We all understand that discretionary spending is likely to be frozen 
this year as the President has proposed. Our Budget Committee 
recommends it be cut by an additional $4 billion.
  This proposal goes way beyond what the President or the Senate Budget 
Committee recommends.
  The President has proposed a modified spending freeze which caps non-
security related spending.
  The president's proposal allows growth in Homeland Security; this 
amendment does not assume growth.
  The President has requested more than $732 billion in his budget for 
national defense for fiscal year 2011, including the cost of war. This 
amendment only allocates $614 billion.
  While the proponents of this amendment note that it waives the $50 
billion war allowance, why does the amendment not support the full 
request? Some interpret the provision to mean if we want to support our 
men and women deployed overseas we would need to get 60 votes.
  Does the Senate really want national defense to be hostage to a 60-
vote threshold?
  This is not the same as President Obama's plan.
  Over the three years in the Sessions amendment, the caps he would put 
into place are $141 billion below President Obama's 3-year plan, $50 
billion below defense and $91 billion below non-defense spending. 
Moreover, this is not the Budget Committee's plan.
  The Sessions amendment is $82 billion below the budget resolution 
which the committee adopted--including a cut of $50 billion from 
Defense over 3 years.
  There can be no argument about this point.
  The level in the Sessions amendment will require the Appropriations 
Committee to cut defense spending in fiscal year 2011 by $9.5 billion 
and nondefense spending by about $11 billion.
  If you vote for this measure while seeking program increases this 
year, you can forget about such increases. Instead, in a budget that 
already freezes nondefense spending, we will cut another $20 billion.
  If we adopt the Sessions caps we will not be able to fund the 
priorities of our colleagues, and we will have to gut the President's 
agenda for discretionary spending, including education, green jobs, and 
homeland security.
  As I have said now several times before, the critical flaw in this 
amendment is it fails to do anything serious about deficits. It fails 
to address the two principal reasons why our fiscal house is out of 
balance.
  It is a fact that the growth in the debt has resulted primarily from 
unchecked mandatory spending and massive tax cuts for the rich. This 
amendment fails to respond to either of those two problems. In short, 
this amendment is shooting at the wrong target.
  Moreover, this amendment also wants to raise the threshold on 
discretionary spending increases to a 67-vote approval, allowing one-
third of the Senate to dictate to the majority.
  We already have a threshold of 60 votes required to increase 
discretionary spending above the budget resolution.
  I, for one, cannot believe the Senate wants to let a mere one-third 
of the Senate dictate to the other two-thirds whether there is a bona 
fide need for increased spending.
  This is the wrong direction for this institution. Mandatory spending 
has increased substantially the last few years.
  Tax cuts for the rich have constrained revenues, but neither tax cuts 
nor mandatory spending increases would be subject to the 67-vote 
threshold.
  The Senator from Alabama says this approach worked to help balance 
the budget in the 1990s; Well, that is only partially correct, and here 
is the difference.
  In the 1990s our budget summits produced agreements to cap 
discretionary spending, but they also decreased mandatory spending and 
increased revenues at the same time.
  It was only by getting an agreement on all three areas of the budget 
at the same time that we were able to achieve a balanced budget.
  Let's be clear. Many of our colleagues on the other side of the aisle 
are happy to put a cap on discretionary spending, but they do not want 
to put policies in place to make sure we have enough revenues to reduce 
the deficit.
  Any honest budget analyst can tell you we will never achieve a 
balanced budget just by freezing discretionary spending. We could 
eliminate all discretionary spending increases for defense, other 
security spending, and nondefense spending and still not balance the 
budget.
  Moreover, if we cut discretionary spending without reaching an 
agreement on mandatory spending and taxes, we will find it very hard to 
get those who do not want to address revenues to compromise.
  I want to remind my colleagues that the deficit reduction commission 
is tasked with helping us get our financial house in order. They will 
look at both revenue and spending and find the right balance to restore 
fiscal discipline.
  They will make their recommendations to the Congress, and the 
Majority Leader has committed to bringing the recommendations of that 
Commission to the Senate for a vote.

[[Page 9013]]

  Rather than rushing to address only one small portion of the issue, 
the Senate should await the judgment of the Deficit Reduction 
Commission, which will cover all aspects of the problem.
  As chairman of the Appropriations Committee, I agree that everyone 
should tighten their belts.
  The problem with this amendment is that all the tightening will be 
done on a small portion of spending, while revenues and mandatory 
spending will still be unchecked.
  The Senate has already rejected this flawed plan three times this 
year. This amendment has not gotten any better in the intervening 
period.
  However, we know that it is not only out of step with the 
administration, but it is also out of step with our Budget Committee.
  It is still shooting at the wrong target. It still fails to address 
the real causes of our deficits and national debt. It would provide far 
less funding than either the President or the Senate Budget Committee.
  I urge my colleagues once again to vote no.
  I yield the floor.


                  Appointment of Conferees--H.r. 4173

  The PRESIDING OFFICER. Pursuant to the order of May 20, 2010, the 
Chair appoints Mr. Dodd, Mr. Johnson, Mr. Reed, Mr. Schumer, Mr. 
Shelby, Mr. Crapo, Mr. Corker, Mr. Gregg; from the Committee on 
Agriculture, Nutrition and Forestry, Mrs. Lincoln, Mr. Leahy, Mr. 
Harkin, and Mr. Chambliss, conferees on the part of the Senate.
  The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRANKEN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              START Treaty

  Mr. FRANKEN. I rise today to speak about the New START treaty that 
President Obama and President Medvedev signed in Prague on April 8. In 
fulfilling the Senate's constitutional responsibility to offer our 
advice and consent on the treaty, we must give it our diligent and 
timely consideration.
  I have previously spoken about the fundamental justification for the 
New START treaty. It serves our national security interests. What I 
want to address in this and succeeding statements are some of the more 
significant specifics of the treaty and the arguments we are likely to 
hear about them. Today, I am going to focus on the strength of the 
treaty's monitoring and verification regime, which is established in 
the treaty itself, given more detail in the Protocol, and even more 
detail in the annexes.
  The verification regime in the New START treaty is extensive, 
elaborate, and appropriate to the treaty's central limits and today's 
world. Secretary Gates has testified that when we hear from the 
intelligence community, they will tell us they are confident they can 
monitor it. The verification regime speaks strongly for ratification, 
and sooner rather than later.
  Ronald Reagan once said, ``Trust but verify.'' The verification 
regime established by the treaty is the means for ensuring that Russia 
is complying with the limits on strategic nuclear arms in the treaty: 
800 deployed or nondeployed intercontinental ballistic missile 
launchers, submarine-launched ballistic missile launchers, and heavy 
bombers equipped for nuclear weapons.
  Within that limit, each side can have 700 deployed ICBM missiles, 
SLBMs, which are, again, the submarine-launched ballistic missiles, and 
heavy bombers. We can each have 1,550 total warheads on the deployed 
delivery vehicles.
  The original START treaty, which expired in December, was widely 
valued for its verification regime. It effectively ensured that 
military significant violations of the treaty would be detected in a 
timely way, and therefore be deterred.
  It also gave us real insight into the Russians' strategic forces and 
helped to establish a relationship of greater trust, transparency, 
cooperation, and confidence between our two nations.
  The verification regime established by the New START treaty is 
modeled on the original one, but it is updated because the central 
limits of the treaty are different and because we are in different 
times. Our relationship with Russia is different. We are less 
suspicious of Russian intentions and much less uncertain about Russian 
capabilities.
  But the bottom line is the same: the verification regime under the 
new treaty will ensure compliance and sustain a more stable, 
transparent, and cooperative relationship with the world's other great 
nuclear power.
  A very strong foundation for monitoring and verification of the 
treaty limits is established by the provision on the use of and non-
interference with National Technical Means of Verification, such as 
satellites and remote sensing equipment. The provision in the New START 
is virtually identical to that of the original START Treaty. Without 
the new treaty, we lose a major obstacle to Russian interference with 
National Technical Means of Verification; without this check, they 
might attempt to conceal their forces.
  The New START treaty also provides for extensive exchanges of data on 
the numbers, locations, and technical features of weapons systems and 
facilities--including telemetry on up to five ICBM and SLBM launches 
per year. The U.S. and Russia will have to share large amounts of 
information on treaty-limited items, which has to be updated regularly. 
In addition, the Russians will be obligated to provide us notifications 
on the movements and production of their long-range missiles and 
launchers.
  For the first time, Russia and the U.S. will also record and share 
unique identifiers on all ICBMs, SLBMs, and heavy bombers covered by 
the treaty--not just mobile missiles, as in the original START treaty. 
These unique identifiers--in effect, serial numbers--will go a long way 
toward enabling us to track both deployed and nondeployed Russian 
missiles. They also serve as a deterrent against treaty violation.
  All the information we will receive forms the basis for further 
verification through on-site, short-notice inspections at Russian 
operating bases, storage facilities, test ranges, and conversion and 
elimination facilities. The treaty provides for 18 inspections per 
year.
  If the inspections don't match the information that has been shared, 
that is a violation of the treaty. For instance, if we were to find a 
deployed missile that had been identified by the Russians as 
nondeployed, that would be a violation. Thus, the inspections can serve 
as a deterrent against cheating, as well as providing yet another, 
continuously updated source of information on Russian forces.
  Finally, the Bilateral Consultative Commission set up by the treaty 
is a forum for the two nations to raise and address issues of 
compliance as well as implementation.
  There can be little question that without these extensive 
verification measures, we will be less safe. To be sure, thanks to the 
verification regime of the original START treaty, we have extensive 
knowledge of Russian nuclear forces, and that will not disappear. We 
know far more than we did in 1991. But that knowledge will degrade much 
faster and more completely without the successor treaty's verification 
regime. Without the new treaty's verification regime in place, a major 
source of strategic stability, transparency and communication with 
Russia would be lost.
  Some critics, however, have suggested that there are monitoring gaps 
in the verification regime that call the New START treaty into 
question. Two issues in particular have been raised: the limitation on 
telemetry, and the loss of portal and perimeter monitoring at the 
Votkinsk missile assembly facility in Russia. I want to say a little 
about each of these. Both criticisms are, in my mind, misguided, though 
for different reasons.
  The criticism of the treaty's provisions on telemetry appears to 
neglect

[[Page 9014]]

relevant differences between the New START treaty and the old START 
treaty. Telemetry is the information generated and transmitted during 
missile test flights. In the original START treaty, each side was 
prohibited from encrypting or otherwise denying access to its 
telemetry. The telemetric data helped us understand, for verification 
purposes, the capabilities of the missiles tested. The article-by-
article analysis of the original START treaty singled out missiles' 
throw-weight and the number of reentry vehicles as central items 
telemetry helped verify.
  The New START treaty allows for a more limited exchange of telemetry, 
on no more than five ICBM and SLBM launches each year. Critics have 
seized on this reduction. The limited telemetric exchanges under the 
new treaty are an important source of ongoing transparency and 
confidence-building between our two countries.
  However, the simple fact is, as Secretary Gates and Admiral Mullen 
have both testified, we don't need telemetry to monitor compliance with 
this treaty. Unlike the original START, the new treaty has no limits on 
missile throw-weight. Hence, we don't need to verify compliance with 
such limits. We also don't need telemetry to help attribute a number of 
warheads to a missile type. The new treaty doesn't use such an 
attribution rule the way the old treaty did. Instead, we actually count 
the number of warheads on a missile. This is both more precise and 
eliminates a problem we had run into with the old treaty's rule, which 
forced us to overcount the number of warheads that are actually on our 
missiles.
  The other alleged monitoring gap has to do with the loss of the 
perimeter-portal continuous monitoring system--or PPCMS--at Russia's 
Votkinsk missile production facility. That loss is unfortunate, but 
probably inevitable after our previous administration expressed to the 
Russians its intention to bring the monitoring at Votkinsk to an end.
  However, thanks to our existing knowledge of Russian missiles and 
launchers, the verification measures in the treaty, and our National 
Technical Means, the treaty makes up for the loss of the Votkinsk 
portal monitoring. In particular, the new treaty requires the Russians 
to notify us 48 hours in advance of any missile leaving the Votkinsk 
facility, which allows us to cue our National Technical Means.
  They also must notify us when the missile arrives for deployment or 
storage. In this way, we can in fact achieve birth-to-death insight 
into their missiles. The unique identifiers and inspection system will 
also deter cheating. Finally, the Russians are producing few enough 
missiles, and their existing ones are few enough in number, that it is 
hard to envision a realistic breakout scenario.
  The loss of the Votkinsk portal monitoring is thus unfortunate, but 
compensated for by other provisions of the treaty. And if Members are 
concerned about the loss of Votkinsk, think about how much worse it 
would be if we didn't ratify the New START treaty--that is, the loss of 
all monitoring and verification measures and the treaty's central 
limits themselves.
  To sum up, our negotiators got a very good deal on verification, and 
I commend them. There simply are not monitoring gaps opened up by the 
treaty. On the contrary, the verification regime established by the 
treaty is a significant reason to support it. It serves to ensure 
compliance with the central limits in the treaty. It also will pay off 
by boosting transparency and confidence in our relationship with Russia 
and sustaining our insight into Russian forces.
  What would open up a significant monitoring gap over time would be 
the failure to bring this treaty into force. For the same reason, we 
should move without delay in our consideration of the treaty. The old 
treaty expired last December. The longer we go before we establish the 
new verification regime, the more our insight into Russian forces will 
degrade. We need to diligently consider all the materials the 
administration has furnished us. We also need to do it without 
unnecessary delay. There is no question we are better off with the 
verification regime under the new treaty than without it.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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