[Congressional Record (Bound Edition), Volume 159 (2013), Part 2]
[Senate]
[Pages 2870-2879]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

     NOMINATION OF JOHN OWEN BRENNAN TO BE DIRECTOR OF THE CENTRAL 
                          INTELLIGENCE AGENCY

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session and resume consideration of 
the following nomination, which the clerk will report.
  The bill clerk read the nomination of John Owen Brennan, of Virginia, 
to be Director of the Central Intelligence Agency.
  Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THUNE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business for up to 12 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Economic Growth

  Mr. THUNE. Mr. President, I come to the floor to speak about spending 
and

[[Page 2871]]

its impact on economic growth. I think it is important Washington 
closely considers the true impact Federal spending and our soaring 
national debt are having on economic growth.
  Over the past few weeks, the White House and the President have been 
out campaigning across the country and making statements aimed at 
causing fear and anxiety about the sequester. The White House has 
painted the sequester--which, keep in mind, amounts to just 2.4 percent 
of all Federal spending--as something which would lead to an economic 
disaster in this country.
  The White House attempts to cause fear and anxiety have fallen flat. 
What is more, many of the claims which were made were simply false. In 
fact, the critics agree.
  Bill Keller wrote in the New York Times: ``The White House spent last 
week in full campaign hysteria.''
  The Washington Post issued four Pinocchios with regard to false 
claims made by Education Secretary Arne Duncan about the sequester's 
impact on teachers' jobs.
  The National Journal states: ``The White House's strategy to 
exaggerate the immediate impact of the cuts has backfired.''
  In Politico: ``For all the hype, spin and blame exchanged over the 
across-the-board cuts, the reality is they don't mean the sudden 
economic collapse of America.''
  It is important to see the sequester in its overall context. All the 
hype associated with this could be analogous, I suppose, to all the 
hype we had yesterday about the weather. Everybody expected we were 
going to have the blizzard of 2013, and it never materialized. All of 
the predictions with regard to doom and gloom relating to sequester 
have also not amounted to very much.
  The American people have picked up on that. I think most of them 
agree, if you look at public opinion polls, that Washington does need 
to tighten its belt. Washington does need to reduce its spending. 
Washington needs to lessen the appetite it has to take more of the 
American taxpayers' money and spend it on what most taxpayers view to 
be not really necessary.
  When you talk about a 2.4-percent reduction in overall Federal 
spending, most Americans, when they evaluate their own financial 
situations, come to the conclusion most of them probably could absorb, 
if they had to, a 2.4-percent reduction in their own spending. They 
would look at their budgets in very realistic ways. They would 
scrutinize and examine where they could find spending which is low 
priority, things they could live without. What we have seen here in 
Washington from the administration is various heads of agencies and 
departments going out and trying to identify the biggest, most high-
profile thing for dramatic effect in an attempt to scare and frighten 
the American people.
  The American people recognize, and hopefully the administration has 
come to the conclusion as well, a 2.4-percent reduction in overall 
Federal spending is something we need to absorb here in Washington, DC, 
and demonstrate to the American people we are serious about getting 
Washington's fiscal house in order.
  I have long maintained the sequester is not the best way to rein in 
Federal spending. There is a better way to do so. The reductions called 
for in the sequester disproportionately impact certain areas of the 
budget. We all know about the impact on the national security budget, 
which represents only 20 percent of Federal spending but gets 50 
percent of the cuts in the sequester.
  I would have preferred a different approach. Given the refusal of 
President Obama and Senate Democrats to come to the table and find 
alternative savings, the sequester has gone into effect. The President 
and most Senate Democrats wanted to see an increase in taxes, something 
many of us believe would be very harmful to the economy. If you look at 
what the President has already received in terms of tax increases since 
he has been in office, it amounts to about $1.7 trillion.
  If you look at the last 4 years and all the promises which were made 
about additional spending, stimulus spending, $1 trillion in additional 
stimulus spending back when the President first took office, how that 
would impact the economy, we were told it would take unemployment down 
below 6 percent. We all know what has happened. We continue to 
experience sluggish, slow, anemic growth with chronic high 
unemployment, and we continue to pile massive amounts of debt on the 
backs of our children and grandchildren.
  While the President has been seeking to cause alarm and cast blame 
with regard to the sequester, one must question the economic arguments 
he is making. The President and his allies in Congress claim he 
inherited a bad economy and increased spending is necessary to 
stimulate economic growth. President Obama's agenda, since he has been 
in office, has been to spend more, tax more, and regulate more.
  As I mentioned earlier, over $1.7 trillion in new taxes has been 
imposed to be signed into law since he took office. The most recent of 
that, the fiscal cliff, was $620 billion on January 1. If you add up 
the tax increases in ObamaCare, there is over $1 trillion there. If you 
look at the $518 billion in new regulations which have been approved 
since the President took office, you may see we put an enormous amount 
of cost, burden, new requirements, mandates, and harm to the economy 
and the small businesses which create jobs: $1.7 trillion in new taxes, 
the $518 billion in new regulations.
  What has been the impact of those policies? It is pretty clear 
average economic growth under this President has averaged eight-tenths 
of 1 percent, .8 percent of the overall share of the economy, GDP. This 
is less than 1 percent economic growth, on average, in the 4 years this 
President has been in office.
  To put it in perspective, if you look at past Presidents when we have 
had economic downturns and recessions, President Reagan inherited a bad 
economy too. When he came to office, we were faced with a series of 
real economic circumstances: high inflation, high interest rates, and 
weak growth.
  President Reagan put in place policies which were progrowth. He 
enacted progrowth tax reform, fewer regulations. The economy grew 
nearly three times as fast as it has under President Obama's watch.
  The point, very simply, is if you put the right policies in place, if 
you make it less difficult and less expensive for our small businesses 
and our job creators to create more jobs, there are more jobs and 
economic growth. If you make it more difficult, more expensive, and 
harder for our small businesses and our job creators to create jobs, 
there are fewer jobs, less economic growth, and lower take-home pay for 
American families and workers.
  If the Obama recovery was as strong as Reagan's, our economy would be 
$1.5 trillion larger today, meaning more jobs and more opportunity for 
Americans. This is assuming if you were getting a comparable level of 
growth in the economy. The fact is President Obama's spending, tax, and 
regulatory policies are hamstringing economic recovery, jobs, and 
opportunity.
  Yesterday the Federal Reserve released the latest edition of its so-
called beige book or more formally known as the Summary of Commentary 
on Current Economic Conditions. The beige book stated the 2010 health 
care law is being cited as a reason for layoffs and a slowdown in 
hiring.
  This report, which examines economic conditions across various 
Federal Reserve districts throughout the country, stated: ``Employers 
in several districts cited the unknown effects of the Affordable Care 
Act as reasons for planned layoffs and reluctance to hire more staff.''
  It is clear President Obama's policies are the real threat to our 
economy, not the sequester. A 2.4-percent across-the-board reduction in 
Federal spending here in Washington, DC, clearly--if you look at the 
rate of growth we have seen in spending since the President took office 
of over 20 percent in 2009, in the overall scheme of things, is 
something which is very reasonable. The American people see this as 
reasonable overall.
  On the contrary, if you look at policies the President has put in 
place, whether this is more stimulus spending, growing government, 
higher taxes,

[[Page 2872]]

more regulations, we are getting a very different picture of what those 
policies look like in terms of the impact on our economy. We have seen 
negative impacts, high-level spending, and high annual deficits during 
the President's first term. As a consequence of these statistics, there 
is slower economic growth.
  I ask unanimous consent to have printed in the Record an opinion 
piece by Michael Boskin, which he wrote earlier in the week. In this 
article Mr. Boskin makes the case that spending cuts will actually help 
the economy: ``Standard Keynsian models that claim a quick boost from 
higher government spending showed the effect quickly turns negative. So 
the spending needs to be repeated over and over, like a drug, to keep 
the hypothetical positive effect going.''
  Mr. Boskin points to an academic study which found returning spending 
to pre-crisis, pre-Obama levels--about a 3-percent reduction in 
spending as a percentage of our entire GDP--would increase short-term 
economic growth because expectations of lower future taxes and debt 
lead to higher incomes, more private spending, and investment.

              [From the Wall Street Journal, Mar. 4, 2013]

              Larger Spending Cuts Would Help the Economy

                         (By Michael J. Boskin)

       President Obama's most recent prescription for economic 
     growth--more government stimulus spending, new social 
     programs, higher taxes on upper-income earners, subsidies for 
     some industries and increased regulation for all of them--is 
     likely to have the same anemic results as in his first 
     administration.
       Recall: The $825 billion stimulus program did little 
     economic good at a cost of hundreds of thousands of dollars 
     per job, even based on the administration's own inflated job 
     estimates. Cash for Clunkers cost $3 billion merely to shift 
     car sales forward a few months. The PPIP (Public-Private 
     Investment Program for Legacy Assets) to buy toxic assets 
     from the banks to speed lending generated just 3% of the $1 
     trillion that the program planners anticipated.
       And now? Mr. Obama proposes universal preschool ($25 
     billion per year), ``Fix it First'' repairs to roads and 
     bridges, plus an infrastructure bank ($50 billion), ``Project 
     Rebuild,'' refurbishing private properties in cities ($15 
     billion), endless green-energy subsidies, and a big hike in 
     the minimum wage. The president and Senate Democrats also 
     demand that half the spending cuts under sequestration be 
     replaced with higher taxes.
       These proposals are ill-considered. The evidence sadly 
     suggests the initial improvement in children's cognitive 
     skills from ``Head Start'' quickly evaporates. Higher minimum 
     wages increase unemployment among low-skilled workers. A 
     dozen recent studies in peer-reviewed journals, including one 
     by the president's former chief economic adviser Christina 
     Romer, document the negative effects of higher taxes on the 
     economy.
       As for adventures in industrial policy, former Obama 
     economic adviser Larry Summers wrote a memo in 2009 about the 
     impending $527 million loan guarantee to Solyndra and other 
     recipients of government largess. ``The government is a 
     crappy v.c. [venture capitalist],'' he wrote, in what is also 
     the best postmortem. In 2010, Harvard economist Edward 
     Glaeser concluded in the New York Times that infrastructure 
     is poor stimulus because ``It is impossible to spend quickly 
     and wisely.'' Federal infrastructure spending should be dealt 
     with in regular appropriations.
       Will more spending today stimulate the economy? Standard 
     Keynesian models that claim a quick boost from higher 
     government spending show the effect quickly turns negative. 
     So the spending needs to be repeated over and over, like a 
     drug, to keep this hypothetical positive effect going. Japan 
     tried that to little effect, starting in the 1990s. It now 
     has the highest debt-to-GDP ratio among the countries of the 
     Organization for Economic Cooperation and Development--and 
     that debt is a prime cause, as well as effect, of Japan's 
     enduring stagnation.
       The United States is heading in this wrong direction. Even 
     if the $110 billion in annual sequestration cuts are allowed 
     to take place, the Congressional Budget Office projects that 
     annual federal spending will increase by $2.4 trillion to 
     $5.9 trillion in a decade. The higher debt implied by this 
     spending will eventually crowd out investment, as holdings of 
     government debt replace capital in private portfolios. Lower 
     tangible capital formation means lower real wages in the 
     future.
       Since World War II, OECD countries that stabilized their 
     budgets without recession averaged $5-$6 of actual spending 
     cuts per dollar of tax hikes. Examples include the 
     Netherlands in the mid-1990s and Sweden in the mid-2000s. In 
     a paper last year for the Stanford Institute for Economic 
     Policy Research, Stanford's John Cogan and John Taylor, with 
     Volker Wieland and Maik Wolters of Frankfurt, Germany's 
     Goethe University, show that a reduction in federal spending 
     over several years amounting to 3% of GDP--bringing 
     noninterest spending down to pre-financial-crisis levels--
     will increase short-term GDP.
       Why? Because expectations of lower future taxes and debt, 
     and therefore higher incomes, increase private spending. The 
     U.S. reduced spending as a share of GDP by 5% from the mid-
     1980s to mid-1990s. Canada reduced its spending as share of 
     GDP by 8% in the mid-'90s and 2000s. In both cases, the 
     reductions reinforced a period of strong growth.
       An economically ``balanced'' deficit-reduction program 
     today would mean $5 of actual, not hypothetical, spending 
     cuts per dollar of tax hikes. The fiscal-cliff deal reached 
     on Jan. 1 instead was scored at $1 of spending cuts for every 
     $40 of tax hikes.
       Keynesian economists urge a delay on spending cuts on the 
     grounds that they will hurt the struggling economy. Yet at 
     just one-quarter of 1% of GDP this year, $43 billion of this 
     year's sequester cuts in an economy with a GDP of more than 
     $16 trillion is unlikely to be a major macroeconomic event.
       Continued delay now leaves a long boom as the only time to 
     control spending. There was some success in doing this in the 
     mid-1990s under President Clinton and a Republican Congress. 
     More commonly the opposite occurs: A boom brings a surge in 
     tax revenues and politicians are anxious to spread the 
     spending far and wide.
       In any case, the demand by Mr. Obama and Senate Democrats 
     that any dollar of spending cuts in budget agreements this 
     spring (to fund the government for the rest of the fiscal 
     year and when the debt limit again approaches) be matched by 
     an additional dollar of tax hikes is economically unbalanced 
     in the extreme. Those who are attempting to gradually slow 
     the growth of federal spending while minimizing tax hikes 
     have sound economics on their side.

  Mr. THUNE. To wrap up and put this into perspective, Federal spending 
has increased nearly 20 percent since 2009. Sequestration, the across-
the-board spending reductions which will occur under the sequester, 
amount to a reduction of 2.4 percent out of a $3.5 trillion budget. 
Even with the sequester, the government will spend more this year than 
it did last year.
  I would hope the President would begin to be honest with the American 
people about the impact of his tax hikes, his spending, and new 
regulations are having on our Nation's economic growth and recovery; 
more important, coming to the conclusion and being honest with the 
American people about that, change his policies; actually come to a 
conclusion based on what we have seen, 4 years of his policies, which 
is slow growth, and a .8 percent economic growth on average for the 
past 4 years. There is also, as I said before, high unemployment, 
chronic unemployment--which is still around that 8-percent level--and 
massive amounts of new debt we are piling on the backs of future 
generations.
  Not only do we need the President, in terms of his rhetoric, to be 
honest with the American people, we need him to change his policies and 
take an honest look at the relationship between spending and economic 
growth. This shows the sequester will not have long-term negative 
impacts on the economy. We need to put the Federal Government on a 
stable fiscal path in order to create the kind of economic certainty 
needed in this country to grow the economy and create jobs.
  Less spending by Washington, DC, actually will lead to greater 
economic growth, a private economy, more jobs for the American people, 
and higher take-home pay.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent to address the 
Senate as if in morning business and ask to be joined in colloquy with 
the Senator from South Carolina, Senator Graham.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           The Drone Program

  Mr. McCAIN. Mr. President, I wish to quote from this morning's 
editorial in the Wall Street Journal entitled ``Rand Paul's Drone 
Rant.'' I wish to read for the edification of my colleagues the 
editorial which was in the Wall Street Journal, a credible media 
outlet, this morning.

[[Page 2873]]

  The Wall Street Journal reads:

       Give Rand Paul credit for theatrical timing. As the storm 
     descended on Washington, the Kentucky Republican's old-
     fashioned filibuster Wednesday filled the attention void on 
     Twitter and cable TV. If only his reasoning matched the 
     showmanship.
       Shortly before noon, Senator Paul began talking filibuster 
     against John Brennan's nomination to lead the CIA. The tactic 
     is rarely used in the Senate and was last seen in 2010. But 
     Senator Paul said an ``alarm'' had to be sounded about the 
     threat to Americans from their own government. He promised to 
     speak ``until the President says, no, he will not kill you at 
     a cafe.'' He meant by a military drone. He's apparently 
     serious, though his argument isn't.
       Senator Paul had written the White House to inquire about 
     the possibility of a drone strike against a U.S. citizen on 
     American soil. Attorney General Eric Holder replied that the 
     U.S. hasn't and ``has no intention'' to bomb any specific 
     territory. Drones are limited to the remotest area of 
     conflict zones like Pakistan and Yemen. But as a hypothetical 
     constitutional matter, Mr. Holder acknowledged the President 
     can authorize the use of lethal military force within U.S. 
     territory.
       This shocked Senator Paul, who invoked the Constitution and 
     Miranda rights. Under current U.S. policy, Mr. Paul mused on 
     the floor, Jane Fonda could have been legally killed by a 
     Hellfire missile during her tour of Communist Hanoi in 1972. 
     A group of noncombatants sitting in public view in Houston 
     may soon be pulverized, he declared.
       Calm down, Senator. Mr. Holder is right, even if he doesn't 
     explain the law very well. The U.S. Government cannot 
     randomly target American citizens on U.S. soil or anywhere 
     else.

  I repeat that: The U.S. Government cannot randomly target American 
citizens on U.S. soil or anywhere else.

       What it can do under the laws of war is target an ``enemy 
     combatant'' anywhere at any time, including on U.S. soil. 
     This includes a U.S. citizen who is also an enemy combatant. 
     The President can designate such a combatant if he belongs to 
     an entity--a government, say, or a terrorist network like al-
     Qaida--that has taken up arms against the United States as 
     part of an internationally recognized armed conflict. That 
     does not include Hanoi Jane.
       Such a conflict exists between the U.S. and al-Qaida, so 
     Mr. Holder is right that the U.S. could have targeted (say) 
     U.S. citizen Anwar al-Awlaki had he continued to live in 
     Virginia. The U.S. killed him in Yemen before he could kill 
     more Americans. But under the law al-Awlaki was no different 
     than the Nazis who came ashore on Long Island in World War 
     II, were captured and executed.
       The country needs more Senators who care about liberty, but 
     if Mr. Paul wants to be taken seriously, he needs to do more 
     than pull political stunts that fire up impressionable 
     libertarian kids in their college dorms. He needs to know 
     what he's talking about.

  I watched some of that ``debate'' yesterday. I saw colleagues of mine 
who know better come to the floor and voice this same concern, which is 
totally unfounded. I must say that the use of Jane Fonda's name does 
evoke certain memories with me, and I must say she is not my favorite 
American, but I also believe that as odious as it was, Ms. Fonda acted 
within her constitutional rights. To somehow say that someone who 
disagrees with American policy, and even may demonstrate against it, is 
somehow a member of an organization which makes that individual an 
enemy combatant is simply false. It is simply false.
  I believe we need to visit this whole issue of the use of drones--who 
uses them, whether the CIA should become their own Air Force, what the 
oversight is. The legal and political foundation for this kind of 
conflict needs to be reviewed.
  Relating to this, let me quote from an article by Jack Goldsmith that 
was in the Washington Post on February 5, 2013, entitled: ``U.S. needs 
a rulebook for secret warfare.''

       The legal foundation rests mostly on laws designed for 
     another task that government lawyers have interpreted, 
     without public scrutiny, to meet new challenges. Outside the 
     surveillance context, Congress as a body has not debated or 
     approved the means or ends of secret warfare. Because secret 
     surveillance and targeted strikes, rather than U.S. military 
     detention, are central to the new warfare, there are no 
     viable plaintiffs to test the government's authorities in 
     court. In short, executive-branch decisions since 2001 have 
     led the Nation to a new type of war against new enemies on a 
     new battlefield without enough focused national debate, 
     deliberate congressional approval or real judicial review.
       What the government needs is a new framework statute--akin 
     to the National Security Act of 1947, or the series of 
     intelligence reforms made after Watergate, or even the 2001 
     authorization of force--to define the scope of the new war, 
     the authorities and limitations on presidential power, and 
     forms of review of the President's actions.

  I don't think we should have any doubt there are people both within 
the United States of America and outside it who are members of 
terrorist organizations and who want to repeat 9/11. All of us thank 
God there has not been a repeat of 9/11. Most of the experts I know 
will say there has been a certain element of luck--a small element but 
still an element of luck, such as the Underwear Bomber and others--that 
has prevented a devastating attack on the United States. But to somehow 
allege or infer the President of the United States is going to kill 
somebody such as Jane Fonda or someone who disagrees with the 
government's policies is a stretch of imagination which is, frankly, 
ridiculous--ridiculous.
  I don't disagree that we need more debate, more discussion, and, 
frankly, probably more legislation to make sure America does protect 
the rights of all our citizens and to make sure, at the same time, if 
someone is an enemy combatant, that enemy combatant has nowhere to 
hide--not in a cafe, not anywhere. But to say that somehow, even though 
we try to take that person, that we would hit them in a cafe with a 
Hellfire missile--well, first of all, there are no drones with Hellfire 
missiles anywhere near. They are over in places such as Yemen and 
Afghanistan and other places around the world.
  We have done a disservice to a lot of Americans by making them 
believe that somehow they are in danger from their government. They are 
not. But we are in danger--we are in danger--from a dedicated, 
longstanding, easily replaceable leadership enemy that is hellbent on 
our destruction, and this leads us to having to do things perhaps we 
haven't had to do in other more conventional wars.
  I don't believe Anwar al-Awlaki should have been protected anywhere 
in the world, but that doesn't mean they are going to take him out with 
a Hellfire missile. It means we are going to use our best intelligence 
to apprehend and debrief these people so we can gain the necessary 
intelligence to bring them all to justice.
  All I can say is, I don't think what happened yesterday is helpful 
for the American people. We need a discussion, as I said, about exactly 
how we are going to address this new form of almost interminable 
warfare, which is very different from anything we have ever faced in 
the past, but somehow to allege the United States of America, our 
government, would drop a drone Hellfire missile on Jane Fonda, that 
brings the conversation from a serious discussion about U.S. policy to 
the realm of the ridiculous.
  I would also like to add an additional note. About 42 percent, as I 
am told, of the Members of this Senate are here for 6 years or less. 
Every time a majority party is in power, they become frustrated with 
the exercise of the minority and their rights in the Senate. Back some 
years ago, when the Republicans--this side of aisle--were in the 
majority, we were going to eliminate the ability to call for 60 votes 
on the confirmation of judges. We were able to put that aside. There 
was another effort at the beginning of this Senate to do away with 60 
votes and go back down to 51, which, in my view, would have destroyed 
the Senate.
  A lot of us worked very hard--a group of us--for a long time to come 
up with some compromises that would allow the Senate to move more 
rapidly and efficiently but at the same time preserving the 60-vote 
majority requirement on some pieces of legislation. What we saw 
yesterday is going to give ammunition to those critics who say the 
rules of the Senate are being abused. I hope my colleagues on this side 
of the aisle will take that into consideration.
  I note the presence of the Senator from South Carolina. The Senator 
from South Carolina, as many of our colleagues know, is a lawyer. He 
has been a military lawyer in the Air Force Reserve for over 20 years. 
If there is anyone in the Senate who knows about this issue from a 
legal and technical standpoint, it is my colleague from South Carolina.

[[Page 2874]]

  I ask my colleague from South Carolina, is there any way the 
President of the United States could just randomly attack someone, with 
a drone or a Hellfire missile, without that person being designated an 
enemy combatant?
  And I don't think, as much as I hate to say it, that applies to Jane 
Fonda.
  Mr. GRAHAM. I thank my colleague. That is a very good question.
  This has been a very lively debate. Senator Paul has a lot of 
passion, and that is a great thing. This is an important issue. We 
should be talking about it, and I welcome a reasoned discussion. But to 
my Republican colleagues, I don't remember any of you coming down here 
suggesting that President Bush was going to kill anybody with a drone--
I don't even remember the harshest critics of President Bush from the 
Democratic side. They had a drone program back then, so what is it all 
of a sudden about this drone program that has gotten every Republican 
so spun up? What are we up to here?
  I think President Obama has, in many ways, been a very failed 
President. I think his executive orders overstep, I think he has 
intruded into the congressional arena by Executive order, I think 
ObamaCare is a nightmare, and there are 1,000 examples of a failed 
Presidency, but there is also some agreement. People are astonished, I 
say to the Senator, that President Obama is doing many of the things 
President Bush did. I am not astonished. I congratulate him for having 
the good judgment to understand we are at war.
  To my party, I am a bit disappointed that you no longer apparently 
think we are at war. Senator Paul, he is a man unto himself. He has a 
view I don't think is a Republican view. I think it is a legitimately 
held libertarian view.
  Remember, Senator Paul was the one Senator who voted against a 
resolution that said the policy of the United States will not be to 
contain a nuclear-capable Iran. It was 90 to 1. To his credit, he felt 
that would be provocative and it may lead to a military conflict. He 
would rather have a nuclear-capable Iran than use military force, and 
he said so--to his credit. Ninety of us thought, well, we would like 
not to have a military conflict with Iran, but we are not going to 
contain a nuclear-capable Iran because it is impossible.
  What would happen is that if Iran got a nuclear weapon, the Sunni 
Arab States would want a nuclear weapon, and most of us believe they 
would share the technology with the terrorists, who would wind up 
attacking Israel and the United States. It is not so much that I fear a 
missile coming from Iran; I fear, if they got a nuclear weapon or 
nuclear technology, they would give it to some terrorist organization--
like they gave IEDs to the Shia militia in Iraq to kill Americans--and 
they would wreak havoc on the world.
  So we don't believe in letting them have it and trying to contain 
them because we believe their association with terrorism is too long 
and too deep, that it is too dangerous for Israel and too dangerous for 
us. But Senator Paul, to his credit, was OK with that; I just disagree 
with him.
  As to what he is saying about the drone program, he has come our way 
some, and I appreciate that. Before, he had some doubt in his mind as 
to whether we should have killed Anwar al-Awlaki in Yemen--an American 
citizen who had collaborated with al-Qaida and was actually one of the 
military leaders of al-Qaida in Yemen, who had radicalized Major Hasan, 
and who had been involved in planning terrorist attacks against U.S. 
forces throughout the region.
  President Obama was informed through the military intelligence 
community channels of Anwar al-Awlaki's existence, all the videos he 
made supporting Jihad and killing Americans, and he, as Commander in 
Chief, designated this person as an enemy combatant.
  Mr. President, you did what you had the authority to do, and I 
congratulate you in making that informed decision.
  And the process to get on this target list is very rigorous--I think 
sometimes almost too rigorous.
  But now, apparently, Senator Paul says it is OK to kill him because 
we have a photo of him with an RPG on his shoulder. He has moved the 
ball. He is saying now that he wants this President to tell him he will 
not use a drone to kill an American citizen sitting in a cafe having a 
cup of coffee who is not a combatant. I find the question offensive.
  As much as I disagree with President Obama, as much as I support past 
Presidents, I do not believe that question deserves an answer because, 
as Senator McCain said, this President is not going to use a drone 
against a noncombatant sitting in a cafe anywhere in the United States, 
nor will future Presidents because if they do, they will have committed 
an act of murder. Noncombatants, under the law of war, are protected, 
not subject to being killed randomly.
  So to suggest that the President won't answer that question somehow 
legitimizes that the drone program is going to result in being used 
against anybody in this room having a cup of coffee cheapens the debate 
and is something not worthy of the time it takes to answer.
  Mr. McCAIN. May I ask my colleague a question especially on that 
subject.
  A lot of our friends--particularly Senator Paul and others--pride 
themselves on their strict adherence to the Constitution and the 
decisions of the U.S. Supreme Court.
  Isn't it true that as a result of an attack on Long Island during 
World War II, an American citizen--among others--was captured and hung 
on American soil, and the U.S. Supreme Court upheld that execution 
because that individual was an enemy combatant? Does that establish 
without a doubt the fact that these are enemy combatants, and no matter 
where they are, they are subject to the same form of justice as the 
terrorists in World War II were?
  Mr. GRAHAM. It has been a long-held concept in American jurisprudence 
that when an American citizen sides with the enemies of our Nation, 
they can be captured, held, and treated as an enemy combatant; they 
have committed an act of war against our country, not a common crime.
  In World War II, German saboteurs landed on Long Island. They had 
been planning and training in Germany to blow up a lot of 
infrastructure--and some of it was in Chicago. So they had this fairly 
elaborate plan to attack us. They came out of a submarine. They landed 
on Long Island. And the plan was to have American citizens sympathetic 
to the Nazi cause--of German origin, most of them--meet them and 
provide them shelter and comfort. Well, the FBI back then broke up that 
plot, and they were arrested. The American citizens were tried by 
military commission, they were found guilty, and a couple of them were 
executed.
  Now, there has been a case in the war on terror where an American 
citizen was captured in Afghanistan. Our Supreme Court reaffirmed the 
proposition that we can hold one of our own as an enemy combatant when 
they align themselves with the forces against this country.
  This Congress, right after the September 11 attacks, designated 
authorization to use military force against al-Qaida and affiliated 
groups. So the Congress has given every President since 9/11 the 
authority to use military force against al-Qaida and affiliated groups. 
And American citizens such as Anwar al-Awlaki and that guy Hamdi who 
was captured in Afghanistan have been treated as enemy combatants, and 
if President Obama does that, he is doing nothing new or novel.
  What would be novel is for us to say that if a terrorist cell came to 
the United States, if an al-Qaida cell was operating in the United 
States, that is a common crime and the law of war doesn't apply. It 
would be the most perverse situation in the world for the Congress to 
say that the United States itself is a terrorist safe haven when it 
comes to legal rights; that we can blow you up with a drone overseas, 
we can capture you in Afghanistan and hold you under the law of war, 
but if there is a terrorist cell operating in the United States, 
somehow you are a common criminal and we will read you your Miranda 
Rights.

[[Page 2875]]

  I just have this one question to get Senator McCain's thoughts. I 
hope we realize that, hypothetically, there are patriot missile 
batteries all over Washington that could interdict an airplane coming 
to attack this Capitol or the White House or other vital government 
facilities.
  I hope the Senator understands--Senator McCain is a fighter pilot--
that there are F-15s and F-16s on 3-minute to 5-minute alert all up and 
down the east coast. If there is a vessel coming into the United States 
or a plane has been hijacked or a ship has been hijacked that is loaded 
with munitions or the threat is real and they have taken over a craft 
and are about to attack us, I hope all of us would agree that using 
military force in that situation is not only lawful under the 
authorization to use military force, it is within the inherent 
authority of the Commander in Chief to protect us all.
  Mr. McCAIN. And should not be construed as an authority to kill 
somebody in a cafe.
  Mr. GRAHAM. It should be construed as a reasonable ability to defend 
the homeland against a real threat. And the question is, Do you feel 
threatened anymore? I do. I think al-Qaida is alive and well.
  And to all those who have been fighting this war for a very long 
time, multiple tours in Iraq and Afghanistan, who have tried to keep 
the war over there so it doesn't come here, to the failed plots that 
have been broken up by the CIA and the FBI, God bless you. We have to 
be right every time; they only have to be right once.
  If you think the homeland is not a desire of al-Qaida, it is 
absolutely on the top of their list. They are recruiting American 
citizens to their cause, and unfortunately a few will probably go over 
to their side. Thank God it will be just a few.
  But to take this debate into the absurd is what I object to. We can 
have reasonable disagreements about, the regulatory nature of the drone 
program should be under the Department of Defense and what kind of 
oversight Congress should have. I think that is a really good 
discussion, and I would like to work with Senator Durbin and others to 
craft--the Detainee Treatment Act was where Congress got involved with 
the executive branch to come up with a way to better handle the 
detainee issue.
  But the one thing I have been consistent about is I believe there is 
1 Commander in Chief, not 535, and I believe this Commander in Chief 
and all future Commanders in Chief are unique in our Constitution and 
have an indispensable role to play when it comes to protecting the 
homeland. If we have 535 commanders in chief, then we are going to be 
less safe. And if you turn over military decisions to courts, then I 
think you have done the ultimate harm to our Nation--you have 
criminalized the war. And I don't think our judiciary wants that.
  So as much as I disagree with President Obama, I think you have been 
responsible in the use of the drone program overseas. I think you have 
been thorough in your analysis. I would like to make it more 
transparent. I would like to have more oversight.
  As to the accusation being leveled against you that if you don't 
somehow answer this question, we are to assume you are going to use a 
drone--or the administration or future administrations would--to kill 
somebody who is a noncombatant--no intelligence to suggest there are 
enemy combatants sitting in a cafe hit by a Hellfire missile--I think 
it is really off base.
  I have this one final thought. If there is an al-Qaida operative U.S. 
citizen who is helping the al-Qaida cause in a cafe in the United 
States, we don't want to blow up the cafe. We want to go in there and 
grab the person for intelligence purposes.
  The reason we are using drones in Afghanistan and Pakistan is we 
don't have any military presence along the tribal border. The reason we 
are having to use drones is we can't capture people. The preference is 
to capture them, not to kill them. But there are certain areas where 
they operate that the only way we can get to them is through a drone 
strike.
  Mr. McCAIN. And may I say to my friend that there are scenarios where 
there could be an extreme situation where there is a direct threat. We 
could draw many scenarios--a bomb-laden, explosive-laden vehicle headed 
for a nuclear powerplant--where the President of the United States may 
have to use any asset the President has in order to prevent an 
impending catastrophic attack on the United States of America. And that 
is within the realm of possible scenarios.
  So to somehow say that we would kill people in cafes and therefore 
drone strikes should never be used under any circumstances I believe is 
a distortion of the realities of the threats we face.
  As we are speaking, there are people who are plotting to attack the 
United States of America. We know that. At the same time, we are ready, 
as the Senator said, to discuss, debate, and frame legislation that 
brings us up to date with the new kind of war we are in. But to somehow 
have a debate and a discussion that we would have killed Jane Fonda 
does, in my view, a disservice to the debate and discussion that needs 
to be conducted.
  Mr. GRAHAM. That is a very good point.
  I look forward to a discussion about how to deal with a drone 
program. It is just a tactical weapon. It is an air platform without a 
pilot.
  Now, if there is a truck going toward a military base or nuclear 
powerplant, we have a lot of assets to interdict that truck. Maybe you 
don't need the F-16. But I guarantee you, if there was a hijacked 
aircraft coming to the Capitol, the President of the United States 
would be well within his rights to order the Patriot missile battery to 
shoot that plane down or have an F-16 shoot it down. And we are ready 
for that, by the way.
  I would just suggest one thing. The number of Americans killed in the 
United States by drones is zero. The number of Americans killed in the 
United States by al-Qaida is 2,958. The reason it is not 2 million, 20 
million, or 200 million is because they can't get the weapons to kill 
that many of us. The only reason it is 2,958 is because their weapons 
of choice couldn't kill more. Their next weapon of choice is not going 
to be a hijacked airplane up there; it is going to be some nuclear 
technology or a chemical weapon, a weapon of mass destruction. That is 
why we have to be on our guard.
  When you capture someone who is associated with al-Qaida, the best 
thing is to hold them for interrogation purposes. We found bin Laden 
not through torture, we found bin Laden through a decade of putting the 
puzzle together.
  Senator Durbin and Senator McCain, both are very effective advocates 
that we have to live within our values and that when we capture 
somebody, we are going to hold them under the law of war. We are going 
to explore the intelligence, but we are going to do it within the laws 
that we signed up to, such as the Geneva Conventions, the Convention 
Against Torture.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. GRAHAM. Absolutely.
  Mr. DURBIN. I very briefly thank my colleagues on the other side of 
the aisle. It was 12 hours ago when I was standing right here, a lonely 
voice among others who were discussing this issue, bringing up the 
points the Senator raises. The first is the drone is a weapon. There 
are many weapons that can deliver lethal force. We should view this as 
an issue of lethal force, not an issue of drones per se--although it 
may raise some particular questions in application. It is largely a 
question of lethal force.
  The second question has been raised by both Senators. What if the 
fourth airplane had not been brought down by the passengers? What if 
that plane were headed for this Capitol Building and all other planes 
had been landed across America under orders of our government and we 
knew this plane was the fourth plane in control of the terrorists, what 
authority did President Bush have as Commander in Chief at that moment?
  I don't think anyone would question he had the authority to use 
lethal force to stop the terrorists from using that plane as a fourth 
weapon against the United States.

[[Page 2876]]

  There was no debate last night about that particular point. This 
notion--and I am glad this point has been raised--that we are somehow 
going to use drones to kill people sipping coffee in cafes is 
ludicrous. It is absurd. It goes beyond the obvious. We need those 
people. Bringing those people into our control gives us more 
information.
  Second, for goodness' sake, the collateral damage of something that 
brutish would be awful. So I thank the Senator for putting it in 
perspective.
  I think Attorney General Holder could have been more artful in his 
language yesterday, but at the end of the day, even Senator Cruz 
acknowledged he said it would be unconstitutional to use this kind of 
lethal force if there weren't an imminent threat pending against the 
United States.
  Mr. McCAIN. If I may say real quickly, an imminent threat.
  MR. DURBIN. Yes.
  Mr. McCAIN. We may have to do a little better job of defining that, 
but to say imminent threat would then translate into killing somebody 
in a cafe is not a mature debate or discussion.
  Mr. GRAHAM. If I can add, let me tell the Senator about imminent 
threat and military law. In Iraq we had disabled terrorist insurgents. 
There was a big debate in the Marine Corps because under military law 
when a lawful combatant, a person in uniform, has been disabled and it 
does not present an imminent threat, we don't have the ability to shoot 
them. OK.
  The terrorists in Iraq put IEDs on wounded belligerents, unlawful 
enemy combatants. So the Marine Corps wrestled very long and hard with 
the rules of engagement. If you come upon somebody who is wounded, 
apparently was disabled, under what circumstances could you use lethal 
force because they may be booby-trapped.
  To the Marine Corps' credit, they came up with a balance between who 
we are--we just don't shoot even our enemies who are helpless and 
wounded--and the ability for force protection.
  Here is what I would say about the circumstance in question. The 
process of determining who an enemy combatant is has always been a 
military process. It is not a congressional debate. Our committees 
don't get a list of names and we vote on whether we think they are 
enemy combatants. Courts don't have trials over who is an enemy 
combatant. If there is a question about enemy combatant status under 
the Geneva Conventions, you are entitled to a single hearing officer 
and that is all. In World War II, there were a lot of people captured 
in German uniform who claimed they were made to wear the uniform by the 
Germans. All of them had a hearing on the battlefield by a single 
officer. It has been long held by military law it is a military 
decision, not judicial decision or legislative decision, to determine 
the enemy of the nation.
  So President Obama has taken this far beyond what was envisioned. 
This administration has a very elaborate process to determine who 
should be determined to be an enemy combatant. I think it is thorough. 
I think it has many checks and balances. As much as I disagree with 
this President on many issues, I would never dream of taking that right 
away from him because he is the same person, the Commander in Chief, 
whoever he or she may be in the future, that we give the authority to 
order American citizens in battle where they may die. He has the 
authority to pick up a phone, Senator McCain, and say you will launch 
today, and you may not come back.
  I cannot imagine a Congress who is OK with the authority to order an 
American citizen in battle--we don't want to take that away from him, I 
hope--that is uncomfortable with the same American determining who the 
enemy we face may be.
  As to American citizens, here is the law. If you collaborate with al-
Qaida or their affiliates and you are engaged in helping the enemy, you 
are subject to being captured or killed under the law of war. What is 
an imminent threat? The day that you associate yourself with al-Qaida 
and become part of their team, everywhere you go and everything you do 
presents a threat to the country. So why do we shoot people walking 
down the road in Pakistan? They don't have a weapon. There is no 
military person in front of them who is threatened. The logic is that 
once you join al-Qaida, you are a de facto imminent threat because the 
organization you are supporting is a threat.
  For someone to suggest we have to let them walk down the road, go 
pick up a gun and head toward our soldiers before you can shoot them is 
not very healthy for the soldier they are trying to kill and it would 
be a total distortion of law as it exists. Back here at home, and I 
will conclude----
  Mr. DURBIN. If the Senator will allow just one last comment and I 
thank him for the statement on the floor--from both my colleagues. The 
Judiciary Committee's Subcommittee on the Constitution is going to have 
a hearing, it is already scheduled, on this issue of drones. There are 
legitimate questions to be raised and answered.
  Mr. GRAHAM. There are.
  MR. DURBIN. I might add that in my conversations with the President 
he welcomes this. He has invited us to come up with a legal 
architecture to make certain it is consistent with existing precedent 
and military law and other court cases as well as our Constitution. I 
think that is a healthy environment for us to have this hearing and 
invite all points of view and try to come up with a reasonable 
conclusion.
  Mr. GRAHAM. I could not welcome that more. It worked with the 
Detainee Treatment Act, it worked with the Military Commissions Act. I 
think it is the right way to go.
  Mr. McCAIN. Madam President, I think that concludes our discussion. I 
would agree with the Senator from Illinois and my colleague from South 
Carolina that we need hearings. We need to discuss how we conduct 
this--the United States, in what appears to be, for all intents and 
purposes, an interminable conflict that we are in and we have to adjust 
to it. But that conversation should not be talking about drones killing 
Jane Fonda and people in cafes. It should be all about what authority 
and what checks and balances should exist in order to make it a most 
effective ability to combat an enemy that we know will be with us for a 
long time.
  Mr. GRAHAM. If I could just have 2 minutes of wrapup, I will. To my 
fellow citizens, the chance of you being killed by a drone--because you 
go to a tea party rally or a moveon.org rally or any other political 
rally or you are just chatting on the Internet quietly at home--by your 
government through the use of a drone is zero, under this 
administration and future administrations. If that day ever happened, 
the President of the United States or whomever ordered such an attack 
would have committed murder and would be tried. I don't worry about 
that.
  Here is what I worry about; that al-Qaida, who has killed 2,958 of 
us, is going to add to the total if we let our guard down. I will do 
everything in my power to protect this President, whom I disagree with 
a lot, and future Presidents from having an ill-informed Congress take 
over the legitimate authority under the Constitution and the laws of 
this land to be the Commander in Chief on behalf of all of us.
  As to any American citizen thinking about joining with al-Qaida at 
home or abroad: You better think twice because here is what is going to 
come your way. If we can capture you, we will. You will be 
interrogated. You will go before a Federal judge and one day you will 
go before a court and you will have a lot of legal rights, but if you 
are found guilty, woe be unto you.
  Here is another possibility. If you join with these thugs and these 
nuts to attack your homeland and if we have no ability to capture you, 
we will kill you and we will do it because you made us. The process of 
determining whether you have joined al-Qaida is not going to be some 
Federal court trial. It is not going to be a committee meeting in the 
Congress. Because if we put those conditions on our ability to defend 
ourselves, we cannot act in real time.
  Bottom line: I think we are at war. I think we are at war with an 
enemy who would kill us all if he could, and every war America has been 
in we have recognized the difference between fighting

[[Page 2877]]

crime and fighting a war. If you believe, as I do, we are at war, those 
who aid our enemies are not going to be treated as if they robbed a 
liquor store. They are going to be treated as the military threat they 
are.
  Mr. McCAIN. Madam President, I thank my colleague and also thank the 
Senator from Illinois for his engagement. In closing, I would like to 
congratulate my friend from South Carolina for his best behavior last 
night at dinner. He was on his best manners and everyone was very 
impressed.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin). The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, I rise in support of the 
nomination of John Brennan to be the next director of the Central 
Intelligence Agency. Mr. Brennan earned a bipartisan vote of 12-3 in 
the Senate Intelligence Committee, on which I serve. He is clearly 
qualified to lead the CIA and deserved that bipartisan vote in 
committee. And he deserves confirmation by the full Senate today.
  I say that in spite of the difficulties my colleagues and I 
encountered in extracting information and commitments throughout the 
confirmation process. Our concerns were less about John Brennan himself 
and more about the role that the next CIA director needs to play. And 
we believe that the information and commitments we finally secured from 
him and from the White House are extraordinarily relevant to the role 
of any CIA director.
  Alongside several of my colleagues, I fought to enhance transparency 
and preserve our system of checks and balances. The American people 
have the expectation that their government is upholding the principles 
of oversight and accountability.
  Consistent with our national security, the presumption of 
transparency should be the rule, not the exception. The government 
should make as much information available to the American public as 
possible, while protecting national security.
  We have seen during previous administrations the problems that can 
arise when even the intelligence committees are left out of the loop: 
warrantless wiretapping, extraordinary detention and torture. Ben 
Franklin put it well when he said: ``Those who would sacrifice liberty 
for security deserve neither.''
  Congressional oversight is critical to ensure that we sacrifice 
neither, as we pursue a smart, but tough, national security strategy, 
especially in this age of new forms of warfare.
  This was true over the past several months, as I joined Senator Wyden 
and others in pushing hard for access to the legal justification used 
by the executive branch to lethally target Americans using drones. The 
fact that we had to push so hard, I am sorry to say, no doubt erodes 
the government's credibility with the American people. But it also 
gives us an opportunity--and a good reason--to maintain and strengthen 
our system of checks and balances.
  I am glad the Administration met our requests and is giving members 
of the Intelligence Committee access to legal opinions on targeting 
American citizens. This is an important first step. But there is more 
to be done for Congress to understand the limits on the drone program.
  Madam President, our government has an obligation to the American 
people to face its mistakes transparently, help the public understand 
the nature of those mistakes, and then correct them. In this regard, 
the next Director of the CIA has an important task.
  The specific mistakes I am referring to are outlined in the 
Intelligence Committee's 6,000-page report on the CIA's deeply flawed 
detention and interrogation program. Acknowledging the flaws of this 
program is essential for the CIA's long-term institutional integrity as 
well as the legitimacy of ongoing sensitive programs.
  I know the Presiding Officer will take a keen interest in this as she 
is a strong supporter of civil liberties and protecting our freedoms. 
That is why I will hold Mr. Brennan to the promise he made to me at his 
confirmation hearing; that is, to correct inaccurate information in the 
public record on the CIA's detention and interrogation program. That is 
why I will continue to urge him to ensure that the Senate Intelligence 
Committee's report on this flawed program is declassified and made 
public.
  In the committee's confirmation hearing, Mr. Brennan promised to be 
an advocate of ensuring the committee has what it needs to do its 
functions. I believe Mr. Brennan is that advocate.
  I look forward to working with him and the administration with my 
goal of protecting our national security while also safeguarding 
America's constitutional freedoms and determining the limits of 
executive branch powers in this new age of warfare.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Madam President, I ask unanimous consent to speak as if 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Remembering Deamonte Driver

  Mr. CARDIN. Mr. President, I come to the floor to note a sad 
anniversary. Friday, March 1, marked 6 years since the tragic death of 
a 12-year-old Maryland child named Deamonte Driver. I have spoken about 
him many times since his passing, which happened just weeks after I 
came to the Senate.
  The death of any child is tragic; Deamonte's was even more so because 
it was entirely preventable. He died from untreated tooth decay. It 
started with an infected tooth. Deamonte began to complain about 
headaches in early January 2007. By the time he was evaluated at 
Children's Hospital's emergency room, the infection had spread to his 
brain, and after multiple surgeries and a lengthy hospital stay, he 
passed away.
  The principal at Deamonte's school, Gina James, remarked, ``Everyone 
here was shocked. They couldn't understand how he could have a 
toothache and then die. We sometimes give the little kids candy as a 
reward; well, for a while they stopped taking it because they would 
say, `if I get a cavity, will I die?'''
  Because Deamonte did not get a tooth extraction that would have cost 
about $80, he was subjected to extensive brain surgery that eventually 
cost more than $250,000. That is more than 3,000 times the cost of an 
extraction.
  After Deamonte's death, more Americans began to recognize the link 
between dental care and overall health that medical researchers have 
known for years.
  Former Surgeon General C. Everett Koop once said that ``there is no 
health without oral health.'' The story of the Driver family has 
brought Dr. Koop's lesson home in a painful way.
  Children living in poverty have twice as much tooth decay as middle- 
and upper-income children, and nearly 40 percent of black children have 
untreated tooth decay in their permanent teeth.
  This has serious implications for their overall health. Untreated 
oral health problems in children can result in attention deficits, poor 
school performance, and problems sleeping and eating. And these 
problems carry over to adulthood. Improper oral hygiene can increase an 
adult's risk of having low birth-weight babies, developing heart 
disease, or suffering a stroke.
  Employed adults lose more than 164 million hours of work each year 
due to dental disease and dental visits, and in 2009 over 830,000 
emergency room visits were the result of preventable dental conditions. 
Poor oral health is also associated with a number of other diseases, 
including diabetes, stroke and respiratory disease. In older adults, 
poor oral health is significantly associated with disability and 
reduction in mobility.
  Medical researchers have discovered the important linkage between 
plaque and heart disease, that chewing stimulates brain cell growth, 
and that gum disease can signal diabetes, liver ailments and hormone 
imbalances. Further, oral research has led to advanced treatments like 
gene therapy, which can help patients who have chronic renal failure.
  They have also discovered that oral disease is far more prevalent 
than you

[[Page 2878]]

might imagine. In fact, dental decay is the most common chronic 
childhood disease in the United States. Dental disease affects 1 in 5 
children aged 2 to 4, and more than half of all children have dental 
disease by the time they reach second grade. By the age of 17, 
approximately 80 percent of young people have had a dental cavity.
  The average 50-year-old in the United States has lost 12 teeth, and 
by age 65 over one-quarter of Americans have lost all their teeth. More 
than 10 percent of the nation's rural population have never visited a 
dentist.
  These are sobering statistics. But here is the good news: Dental 
decay is a dynamic disease process, and not a static problem. Before a 
cavity is formed in the tooth, the caries infection can actually be 
reversed. That means that we can prevent tooth decay, as long as dental 
care is made available and good oral hygiene practices are used.
  Deamonte's story was told around the world. But nowhere did it hit 
harder than in his home State of Maryland. I am proud of how the 
Maryland Congressional Delegation, Governor Martin O'Malley, and the 
Maryland General Assembly have responded to the need for better access 
to oral health care.
  In 2010 and 2011, the Pew Center on the States named Maryland a 
national leader in improving dental access for low-income Marylanders. 
We were the only State to meet seven of Pew's eight dental policy 
benchmarks, and we ranked first in the nation for oral health. CMS also 
invited our State officials to share their story at its national 
quality conference in August 2011 and placed Maryland's achievements in 
its Best Practices Guide.
  I will mention just some of what Maryland has accomplished: In 2010, 
our State secured $1.2 million in Federal funding to develop a 
statewide Oral Health Literacy Campaign, called ``Healthy Teeth, 
Healthy Kids.'' More than 368,000 children and adults in Medicaid 
received dental care in 2011; 82,000 more than in 2010. The percentage 
of pregnant women receiving dental care in 2011 was 28.4 percent, 
compared to 26.6 percent in 2010.
  Created by the Robert T. Freeman Dental Society and funded in part by 
the State, the Deamonte Driver Mobile Dental Van Project provided 
diagnostic and preventive services for over 1,000 Prince George's 
County children who live in neighborhoods where otherwise care would be 
unavailable to them.
  The Kaiser Family Foundation awarded a $200,000 grant to the Maryland 
Dental Action Coalition that funded a pilot dental screening program at 
a school-based health center in Prince George's County.
  The Dental Action Coalition also began granting and reimbursing 
primary care providers to apply fluoride varnish for children up to 3 
years of age. By June 2012, 385 primary care providers had administered 
over 58,000 treatments.
  The Maryland Community Health Resources Commission continues to 
expand oral health capacity for underserved communities. Since 2008, 
the Commission has awarded 20 dental grants totaling $4.6 million. 
These grants have funded services to more than 35,000 low-income 
children and adults in our State.
  I am also very proud of what Congress has done. In the CHIP 
Reauthorization Act passed a few months after Deamonte died, we 
established a guaranteed oral health benefit for children. With the 
leadership of Senators Baucus, Grassley, Rockefeller, Collins, and 
former Senator Bingaman, we created grants to the States to improve 
oral health education and treatment programs. We also addressed one of 
the problems that Deamonte's mother faced in trying to get care for 
him--a lack of readily available information about accessible 
providers.
  For a variety of reasons, it is difficult for Medicaid and CHIP 
enrollees to find dental care, and working parents whose children 
qualify for those programs are likely to be employed at jobs where they 
can't spend 2 hours a day on the phone to find a provider. So HHS must 
include on its Insure Kids Now Web site a list of participating 
dentists and benefit information for all 50 States and the District of 
Columbia.
  Also, in 2009, Congress passed the Edward M. Kennedy Serve America 
Act. That law created the Healthy Futures Corps, which provides grants 
to the States and nonprofit organizations so they can fund national 
service in low-income communities. It will allow us to put into action 
tools that can help us close the gap in health status--prevention and 
health promotion. For too long we have acknowledged health disparities, 
studied them, and written reports about them. With the help of the 
senior Senator from Maryland, my colleague, Senator Barbara Mikulski, 
we added language to that law specifying oral health as an area of 
focus.
  Now the Healthy Futures Corps can help recruit young people to work 
in the dental profession, where they can serve in areas that we have 
shortages of providers in urban and rural areas. It will fund the work 
of individuals who can help parents find available oral health services 
for themselves and their children. It will make a difference in the 
lives of the Healthy Futures Corps members who will work in underserved 
communities and in the lives and health of those who get improved 
access to care. Then in the 2010 Affordable Care Act, we enacted 
several landmark provisions designed to improve oral health.
  The ACA funds and encourages a number of oral health prevention 
activities. First, it directs the CDC to establish a 5-year national 
oral health education campaign. This campaign is required to use 
science-based strategies and to target children, pregnant women, 
parents, the elderly, individuals with disabilities and ethnic and 
racial minority populations, including Native Americans.
  The ACA also created demonstration grants to study the effectiveness 
of research-based oral health programs, which will be used to inform 
the public education campaign.
  The health care law expands an existing school-based dental sealant 
program to each of the 50 States and territories and to Indians, Indian 
tribes, tribal organizations and urban Indian organizations. It directs 
the CDC to enter into cooperative agreements with State, territorial 
and Indian organizations to establish guidance, conduct data collection 
and implement science-based programs to improve oral health.
  ACA also authorizes HHS to make grants to dental schools, hospitals, 
and nonprofits to participate in dental training programs. This funding 
can be used to provide financial assistance to program participants, 
including dental and dental hygiene students as well as practicing 
dentists, and for loan repayment for faculty in dental programs. The 
ACA also provides grants for up to 15 demonstration programs to train 
alternative dental health providers in underserved communities.
  The law authorizes and requires a number of public health initiatives 
that should improve access to oral health care, including an $11 
billion, 5-year initiative that funds construction, capital 
improvements and service expansions at community health centers, where 
so many oral health services are provided.
  It also establishes a National Health Care Workforce Commission to 
serve as a resource to evaluate education and training to determine 
whether demand for health care workers is being met, and identify 
barriers to improvement. We need that information. That was Senator 
Bingaman's provision and it should be funded as soon as possible.
  But perhaps the most important provision is a requirement that health 
plans cover a set of essential health benefits, EHBs, that includes 
pediatric dental care. Beginning January 1, 2014, the law says that 
oral health care for children must be part of the essential health 
benefits package that must be offered in the new health insurance 
exchanges and in the small group and individual insurance markets that 
exist outside the exchanges.
  When the ACA was passed nearly 3 years ago, I had great hopes that in 
a few years, I could stand here on the Senate floor and celebrate all 
the progress we had made in bringing affordable dental care to every 
child in this nation. I had hoped this would be

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a day to talk about what a difference Congress has made in the oral 
health of America's children. We celebrated that section of the law, 
because it meant that once and for all, oral health would be available 
to America's children. It gave many of us hope that we would be able to 
get every child basic dental care and begin to erase the epidemic of 
dental disease that still affects millions of American children. Now, 
however, the affordability of that benefit is at risk.
  The ACA includes a Finance Committee provision that allows stand-
alone dental plans to exist in the market. In a colloquy on September 
26, 2011, Senators Baucus, Stabenow, and Bingaman engaged in a 
colloquy.
  They clarified that the intent of the law in allowing stand-alone 
dental plans was not to create separate standards but to ensure 
competition in the insurance exchanges and allow choice in the 
marketplace.
  Later, I joined 10 of my colleagues in writing to HHS Secretary 
Sebelius, urging her to ensure that all children who receive their 
dental coverage through a stand-alone dental plan should have the same 
level of consumer protections and cost-sharing as those who get 
coverage through a plan that offers integrated benefits.
  Last week, HHS published a final rule on the benefits that creates a 
separate out-of-pocket limit for stand-alone dental plans, but only 
specifies that the limit be ``reasonable.'' There are two huge problems 
with this approach. First, an additional out-of-pocket limit will make 
the benefit far less affordable for many families. It was not what 
Congress intended. The whole point of adding pediatric dental benefits 
to the essential health benefits package was to make certain that oral 
health not be considered separate from overall health.
  We have been here before. This approach is similar to policies that 
were set decades ago for mental health services--separate policies to 
cover mental health treatment, separate limits on coverage, and 
separate copays. Mental health was treated as second-class health care. 
We know now that this was an injustice. It was wrong to treat those 
services, and the patients who used them, as second-class. Many of my 
colleagues were here in Congress when we fought the battles for mental 
health parity. It was a difficult battle, but we won. It seems to me 
that this is what we are doing now with dental care, rather than 
treating it as part of the Essential Benefits Package, which was our 
intent in the Affordable Care Act.
  Section 1402(b) of the law also establishes an out-of-pocket limit 
for all families and lowers that limit for families with incomes under 
400% of the Federal poverty level. By creating a separate limit, HHS is 
reducing the number of families who will be able to afford dental 
coverage for their children.
  Second, the rule has left the determination of what is a 
``reasonable'' out-of-pocket limit to each State. With pressure from 
insurance companies, a State could decide to provide an out-of-pocket 
limit of $1,000 or more per child, which could more than double out-of-
pocket costs for a family with five children.
  In the Federally run exchanges, HHS has the authority to set a 
``reasonable'' out-of-pocket limit. Last Thursday, in a Finance 
Committee hearing, I asked Jon Blum, the CMS Deputy Administrator, 
about the idea of segregating dental benefits from health benefits and 
increasing cost-sharing. This is what he said: ``Well I think one of 
the lessons that we learned within the Medicare program is that when 
the care is siloed, our benefits aren't fully integrated. That can 
often lead to worse total health care consequences. I can pledge to get 
back to you with direct answers to your questions. But I do agree with 
your general principle that when benefit design is broken up and care 
is not coordinated, that it can often lead to bad quality of care.''
  Later that day, I spoke with CMS acting administrator Marilyn 
Tavenner. I asked her to take into account the affordability of a plan 
that had separate, high cost-sharing, and she agreed to consider my 
views. Less than 24 hours later, CMS released a proposed ``guidance'' 
to insurers, setting a maximum out-of-pocket limit of $1,000. When I 
contacted HHS to ask whether this was a per-family or per-child limit, 
the expert in charge of the rule was unable to tell me. They did not 
know whether this meant extra costs per year of $1,000 or $5,000 for a 
family with five children. This tells me that the affordability of care 
was a secondary consideration when this final rule was written.
  There are still millions of American children without coverage for 
dental care. If we are to make real progress in improving the health of 
Americans, we cannot afford to continue giving oral health care second-
class treatment.
  The question now is whether the guidance to plans will go forward. It 
is contrary to Congressional intent and contrary to the best interests 
of American families to allow it to stand. On this sixth anniversary of 
the death of Deamonte Driver, let's pledge to do better for our 
children.
  Madam President, I call to the attention of my colleagues a colloquy 
between Senators Bingaman, Stabenow, and Baucus in the Record of 
September 26, 2011, at page 14371.
  With that, I yield the floor.

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