Global Network for Avian Influenza Surveillance Act

Mr. President, this week, the Senate considers conference reports on two pieces of legislation--the Defense Authorization and Appropriations Acts that are critical to the security of our Nation. These conference reports contain important measures for keeping our troops safe and secure, particularly provisions to upgrade body armor and protective equipment, resources to ramp-up vital construction of U.S. military ships, aircraft, and ground vehicles, and funding for research on vital defense technologies of the future.

The conference agreements also promote important quality-of-life improvements for our troops and their families, including a 3.1 percent pay raise for all military personnel and increases in compensation for survivors of military personnel killed since the onset of the wars in Afghanistan and Iraq.

These two bills could not come before the Senate at a more urgent time. Our Nation is at war, and our troops desperately need these resources to complete their missions in Iraq and Afghanistan.

This Congress owes America's fighting men and women its unconditional support for these critical defense priorities. But this year, the administration and Members of the majority in Congress have fallen far short of meeting this responsibility. They have allowed a handful of powerful special interests to impede the critically important process of funding our national defense, including America's highest security priorities. The Republican leadership's decisions to open up the Arctic National Wildlife Refuge for oil companies' exploitation and to shield drug and vaccine makers from any accountability have absolutely nothing to do with national security and have no place in bills like the defense appropriations conference report. Their willingness to risk funding for our troops in favor of these parochial priorities is indefensible.

Let me say a few words about these two specific measures.

I have consistently opposed opening the Arctic National Wildlife Refuge, ANWR, to oil drilling because I am unconvinced that the small amount of recoverable oil there outweighs the permanent damage that we would do to the area and the nearly 200 species of wildlife that live there. The process entails a web of oil platforms, pipelines, production facilities, power facilities, support structures, and roads across the entire area. I strongly believe we need to ensure our Nation's economic and energy security, but any recoverable oil in the Refuge would not begin flowing for at least 10 years. What is the urgency to include this legislation now in a bill it has no business being part--of especially when the impact of such a measure could be so remote and so damaging? There is significantly less job creation than proponents would have us believe, there is minimal

recoverable oil available, drilling in ANWR would have no impact on current energy prices or supply or even on our foreign oil dependence, and it would leave a web of infrastructure that would permanently ruin the pristine nature of the land and habitat. Moreover, if we took just a few modest steps to use energy more efficiently--such as properly inflating vehicle tires or raising engines' fuel efficiency--we would save more oil than currently exists in the ANWR. It is simply irresponsible to move forward with this legislation.

Just as irresponsible is an equally non-germane provision shielding vaccine producers from liability. This language provides sweeping legal immunity to a few companies, and relieves them of responsibility for their reckless and negligent actions. Rather than encouraging companies to make safe and effective medicines, it will provide a perverse incentive by protecting those companies that make ineffective or harmful products. That is unwise--not to mention unfair--to companies that strive for excellence, a number of which are located in Connecticut. And rather than encouraging Americans to be vaccinated or to take needed medication, it will discourage them from doing so by failing to provide even rudimentary compensation for the few who will inevitably be injured by these products. Make no mistake about it: this plan fails to protect the American people from the risk of a flu pandemic or from other biohazards.

Senator Kennedy and I spent the past several months negotiating with Senators Enzi, Burr, Gregg, Frist, and others on the Health, Education, Labor, and Pensions Committee to try to reach a bipartisan compromise on this issue. Senator Kennedy and I made several proposals, modeled on past Congressional action, to protect manufacturers from frivolous lawsuits while providing fair and adequate compensation to those who are injured. Both sides worked in good faith, and we made significant progress.

Unfortunately, my understanding is that a decision was made by leaders of the Republican caucus to forego this bipartisan process. Instead, this nongermane provision was slipped in the final hours of this session of Congress into the Defense Appropriations Conference Report. Furthermore, it is my understanding that this language was inserted after members had agreed to the Conference Report with the understanding that this language was not included. I am disturbed and disappointed by this blatant abuse of power and disregard for Senate procedures. I can only assume that the supporters of this provision are using this tactic because they know that their plan would not stand up to public scrutiny and Senate debate.

In terms of some of the germane provisions of this bill, I must also express my disappointment with the conferees' decisions to weaken important measures that were actually inserted in the Senate's defense bills to support and protect our troops. For example, I originally authored amendments to both of these bills that would ensure that our troops would be reimbursed for purchasing their own critical safety and protective gear that the Defense Department failed to provide for use in Iraq and Afghanistan. The Senate approved this measure without any dissent, having recognized the administration's inadequate compliance with current law. After failing to implement a program under a law enacted last year, the Pentagon only established the reimbursement initiative as this body considered the new provisions to extend this benefit to all military personnel deployed to Iraq and Afghanistan. Most appalling to me is that there remains little evidence that the Pentagon has acted to ensure that our soldiers, sailors, airmen, and marines receive the information that they need to take advantage of this important program. Given that the Defense Department is failing to meet its commitment to adequately equip our military personnel, the least that it can do is inform our brave men and women of the compensation due to them. In the end, I was deeply troubled that the final version of this legislation did not include adequate language to address many of the concerns originally raised on this floor just two months ago. In particular, as part of an agreement worked out with both Chairmen of the Defense Appropriations Subcommittee and Senate Armed Services Committee, we had agreed to extend the reimbursement program to troops who made purchases up until the end of the 2006 fiscal year. In both final conference reports, this deadline was cut short to April 1, 2006.

In the final analysis of the underlying bills, I can only take solace in the fact that other critically important measures in these conference reports could have been weakened even further. We in this body managed to avert grave problems posed by misplaced priorities by the administration and the Republican leadership. For example, it is my understanding that the administration's allies in the House actually attempted to slip another measure--this time, related to campaign finance--into the Defense Authorization Act after the conferees had already signed the conference report--without any hearing or public review by the appropriate committees of jurisdiction. It was only after the chairman and ranking member of the Senate Armed Services Committee intervened that this utter abuse of power was averted.

In another case, the administration and its allies in Congress sought to thwart the final approval of Senator McCain's amendment that would set standards for the interrogation of detainees in the custody of the United States, and prohibit the cruel, inhuman, or degrading treatment of these detainees. I strongly support Senator McCain's amendment because it upholds the values on which our country is based, it helps strengthen the rule of law, and most importantly, it serves to protect American troops and civilians who are currently serving and living abroad.

I regret, however, that the Bush administration attempted for so long to block adoption of this amendment. Indeed, the administration only accepted it in the face of overwhelming congressional support and in the wake of international condemnation resulting from allegations of secret CIA prisons in Europe. While I am certainly pleased that the McCain amendment was included in this conference report, I hope that the administration's stonewalling has not undermined the very things that this amendment aims to protect--American values and American lives.

In the end, it is our solemn duty as members of this institution to promote policies that will safeguard America's critical security interests. That is why I am so deeply offended by the tactics which the majority used to weaken many of these efforts. After all, most of the germane provisions of these two Defense-related conference reports will support our defense needs and protect U.S. military personnel deployed in harm's way. For example, within these germane provisions, I am particularly proud that the bills build on Connecticut's unique strengths in contributing to America's defense needs. From increases in Black Hawk helicopters to production of a new Virginia Class submarine, our troops will be better prepared to meet the security challenges of the 21st century.

Under these bills, the Army and Navy will receive 83 much needed Black Hawk helicopters to perform a variety of critical missions including medical evacuations, air assaults, and special operations. In the shipbuilding accounts, in addition to funding the procurement of another Virginia submarine, these bills will ensure that the Navy remains committed to developing new undersea technologies--including development of new submarine designs--an important element of our nation's pertinent efforts to maintain undersea dominance as countries such as China and Russia expand their own submarine fleets.

To address immediate concerns for our soldiers and marines, these bills finally contribute meaningful resources for countering the most serious threats facing our troops in Iraq--the so-called improvised explosive devices or IEDs. Devoting $1 billion to the Joint Improvised Device Defeat Task Force will help accelerate American development of new technologies and tactics for detecting, jamming, or de-activating these roadside bombs which continue to plague U.S. combat operations in Iraq. In addition, I am truly pleased with the conferees' decision to add an additional $610 million to the Administration's otherwise slow attempts at reinforcing American ground vehicles

in Iraq with state-of-the-art body armor and other protective gear. This Congress has few higher priorities than the safety and wellbeing of our troops deployed in harm's way. And I believe these measures truly are steps in the right direction.

But we must remain dedicated to such critical force protection measures, particularly as our forces battle insurgents in Iraq and Afghanistan. The Republican majority's attempts to ensnare these defense bills with unrelated political schemes gravely threatened our ability to meet this commitment and amounted to an utter abuse of power.

The United States is at war. Our troops and the American people expect that our nation's defense policy will be unfettered by special interests and untainted by political gamesmanship. I can only hope that, as we return to Capitol Hill to begin the New Year a few weeks from today, the leaders of the majority party will resolve to put national interests over narrow interests.

When the Department of Defense authorization bill passed the Senate on November 15, I spoke of my concerns about an amendment that limits the rights of detainees in U.S. custody at Guantanamo Bay, Cuba, to file habeas corpus petitions in federal court. That amendment was modified in conference to further erode these rights, and then identical text was added to the conference report on Defense appropriations to ensure that the language was enacted into law in one bill or the other.

Debates over the treatment of detainees have dominated our discussions of both the Defense authorization and appropriations bills. Senator McCain waged a battle with the White House and his own party to ensure that his amendment requiring the humane treatment of detainees was retained in the conference reports. I commend Senator McCain and the members of the Congress who have fought to address these issues. Despite calls from many of us over recent years, the legislative branch has not met its obligation of oversight and policymaking in this area. I am encouraged that more than 18 months after the revelation of atrocities at Abu Ghraib, we are finally willing to confront this issue.

The administration fought this provision for months, with the President vowing to veto any bill that contained it. But after months of threats and backdoor lobbying, the White House finally recognized that it could not win with a policy that granted itself the authority to use torture or cruel and inhumane treatment in interrogations.

Unfortunately, the positive steps we take today in adopting the McCain amendment are undercut by the modified Graham-Levin amendment in the conference report. As I just noted, I expressed concerns about the Graham-Levin text, and voted against it, when it passed the Senate. At that time, it reflected a modest improvement over an earlier version offered by Senator Graham. Now, it has come almost full circle, and is deeply troubling.

The Graham-Levin amendment as it passed the Senate would deny prisoners that the administration claims are unlawful combatants the right to challenge their detention in a petition for a writ of habeas corpus. At no time in the history of this Nation have habeas rights been permanently cut off from a group of prisoners. Even President Lincoln's suspension of habeas was temporary. The Supreme Court has held numerous times that enemy combatants can challenge their detention. The new version of this text, the text that was added to the conference report, goes even further. It prohibits any lawsuit against the United States brought by a Guantanamo detainee for any reason. This means that while the McCain Amendment requires humane treatment of detainees, the substituted text of the Graham-Levin Amendment provides no remedy whatsoever when detainees are mistreated. The result is that Guantanamo could become the legal black hole that the administration has long argued it should be. The Supreme Court rejected that argument in Rasul v. Bush in 2004.

I am also deeply troubled by other provisions added in conference. The conference report allows a combatant status review tribunal, an administrative review board, or a similar tribunal to consider statements obtained as a result of coercive interrogation, so long as the tribunal assesses the ``probative value'' of the statement. With the passage of the McCain amendment, I had hoped that the Congress was finally prepared to acknowledge that statements obtained by coercion have no value.

A prime example of how abusive interrogation techniques elicit bad intelligence was reported on December 9, 2005, in The New York Times. The article states that the ``administration based a crucial prewar assertion about ties between Iraq and al Qaida on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment.'' Just last week, at a speech in Philadelphia, a member of the audience asked the President why the administration continually seeks to link the 9/11 attacks with the invasion of Iraq in spite of the fact that Iraq was not involved in the events of 9/11.

It is beneath the values of this Nation to allow the use of coerced statements in the trials or review panels conducted on the status of detainees. It is also beneath us to strip detainees of habeas rights. Filing a petition for a writ of habeas corpus is often the detainee's only opportunity to openly challenge the basis for his detention. Providing detainees this right is not about coddling terrorists. It is about showing the world that we are a nation of laws and that that we uphold the principles that we urge other nations to follow. It is about honoring and respecting the values that are part of our heritage as Americans and that have shone as a beacon to the rest of the world. Allowing a detainee to file a habeas petition provides legitimacy to our detention system and quells speculation that we are holding innocent people in secret prisons without any right to due process.

Some members of the Senate have argued that these prisoners should be tried in the military justice system. I think that we could all agree on such a course if the administration had worked with Congress from the start and established with our approval procedures that are fair and consistent with our tradition of military justice. The Graham-Levin amendment does allow the Court of Appeals for the District of Columbia to review some of the military commission's final decisions. I am in favor of Federal court review, but Congress seems to have missed the critical step of authorizing the administration to use military commissions. I introduced a bill in the 107th Congress to do just that. So did Chairman Specter. If the administration wanted to use military commissions to try detainees, it should have sought and obtained the explicit authorization of Congress. It did not do so. The system that has been established by the administration to try individuals held at Guantanamo does not provide due process or independent review. It is not a system that reflects our tradition of justice.

Since the Graham-Levin amendment would not retroactively apply to pending cases, the Supreme Court will still have the opportunity to determine the legitimacy of the military commissions, as being litigated in case of Hamdan v. Rumsfeld. If the military commission process is rejected by the Court, I hope that the administration will work with Congress to establish a fair system for trying suspects who are captured in the war on terror. Working in this way, we can restore the reputation of our Nation for upholding the rule of law.

Everyone in Congress agrees that we must capture and detain terrorist suspects, but it can and should be done in accord with the laws of war and in a manner that upholds our commitment to the rule of law. The Judiciary Committee held a hearing on detainee issues in June. At that hearing, Senator Graham said that once enemy combatant status has been conferred upon someone, ``it is almost impossible not to envision that some form of prosecution would follow.'' He continued, ``We can do this and be a rule of law nation. We can prove to the world that even among the worst people in the world, the rule of law is not an inconsistent concept.'' I agree with Senator Graham, but I strongly believe that in order to uphold our commitment to the rule of law, we must allow detainees the right to challenge their detention in Federal court.

As Chairman Specter noted on the floor last month, there are existing procedures under habeas corpus that have been upheld by the Supreme Court that do not invite frivolous claims and that are appropriate. The Graham-Levin amendment would not only restrict habeas in a manner never done before in our Nation, but, as the chairman of the Judiciary Committee said last week, it would open a Pandora's box.

The chairman is right. We must not rush to change a legal right that predates our Constitution. Creating one exemption to the Great Writ only invites more. The Judiciary Committee has jurisdiction over habeas corpus, and it should have the first opportunity to review any proposed changes carefully and thoroughly. Although congressional action on the issue of foreign detainees is long overdue, we must not act hastily when the Great Writ--something that protects us all--is at stake.

I ask unanimous consent to place in the Record an article entitled, ``Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim,'' from the December 9, 2005, New York Times.

Late Sunday night, Republican leadership slipped language into a lengthy appropriations conference report that will immunize drug companies against reckless misconduct and will impede our ability to protect our citizens from the threatened avian flu pandemic. This provision is a gift to the drug manufacturers and will likely have a devastating effect on our ability to protect our constituents.

Under the guise of a threatened pandemic, this legislation goes far beyond the scope of vaccine preparedness and includes language that is far more sweeping than any language previously passed by the House or the Senate. Instead of focusing on protecting American families from avian flu or ensuring that victims of any untested vaccine will be compensated for their injuries, the provision simply shields drug companies from any culpability for injuries caused by its actions. The scope of this immunity is so expansive that once the Secretary of Health and Human Services has declared a public health emergency even for a future threat, drug companies would not be held accountable for any injuries or deaths caused by the drugs they manufacture, including drugs that are not specifically used in a pandemic context. This is disgraceful and will deter Americans from taking vaccines and drugs if we ever experience a health crisis.

The only exception to the broad immunity given to drug companies in this proposal is the possibility that a victim could prove that the company

acted with ``willful misconduct.'' Knowingly committing health violations would not even suffice to state a claim. Knowing violations as well as gross negligence would be immunized from accountability. Even if the drug company acted with the intent to harm people, it would nevertheless be immune from criminal conduct unless the Attorney General or Secretary of Health and Human Services initiates an enforcement action against a drug company that is still pending at the time a personal claim is filed. That is unbelievable. I question whether such a role for the Secretary of HHS is even constitutional. Since when do we in Congress allow a political appointee of the administration to determine when, and if, someone injured by willful misconduct can be compensated for their injuries? Professor Erwin Chemerinsky sent a letter yesterday that outlines his concerns regarding the constitutionality of the provision and I ask that his letter be made part of the Record.

Passage of the Defense appropriations bill is of vital importance to all of us, but the inclusion of provisions that excuse even gross and deadly negligence on the part of drug companies makes it impossible for many of us to vote for this bill in good conscience. I urge my colleagues to strike the unjustified and extraneous provisions from the Defense appropriations bill in order to act quickly on this important bill.

Mr. President, I rise to speak about the Detainee Treatment Act of 2005, which is included in the Defense Appropriations conference report.

I will submit a similar statement into the Record for the Defense authorization conference report because the Detainee Treatment Act of 2005 is also included in the Defense authorization bill.

The Detainee Treatment Act includes two provisions that were adopted in the Senate version of the Defense Authorization bill: the McCain Antitorture amendment and the Graham-Levin Detainee amendment.

I was an original cosponsor of the McCain Antitorture amendment. I have spoken at length about the vital importance of this amendment on several other occasions. At this time, I simply want to reiterate a couple of points.

Twice in the last year and a half, I have authored amendments to affirm our Nation's longstanding position that torture and cruel, inhuman, or degrading treatment are illegal. Twice, the Senate unanimously approved my amendments. Both times, the amendments were killed behind the closed doors of a conference committee--at the insistence of the Bush administration.

I am pleased that the administration has changed its position. As a result, it will now be absolutely clear that under U.S. law all U.S. personnel are prohibited from subjecting any detainee anywhere in the world to torture or cruel, inhuman, or degrading treatment.

The amendment defines cruel, inhuman, or degrading treatment as any conduct that would constitute the cruel, unusual, and inhumane treatment or punishment prohibited by the U.S. Constitution if the conduct took place in the United States. Under this standard, abusive treatment that would be unconstitutional in American prisons will not permissible anywhere in the world.

Let me give you some examples of conduct that is clearly prohibited by the McCain amendment.

``Waterboarding'' or simulated drowning is a technique that was used during the Spanish Inquisition. It is clearly a form of torture. It creates an overwhelming sense of imminent death. It amounts to a clear- cut threat of death akin to a mock execution, which is expressly called ``mental torture'' in the U.S. Army Field Manual.

Sleep deprivation is another classic form of torture which is explicitly called ``mental torture'' in the U.S. Army Field Manual. It has been banned in the United Kingdom and by a unanimous Israeli Supreme Court, and the U.S. Supreme Court has repeatedly declared it unconstitutional, once citing a report that called it ``the most effective form of torture''.

The amendment also clearly bans so-called stress positions or painful, prolonged forced standing or shackling. Again, the U.S. Army Field Manual expressly calls these techniques ``physical torture.'' Moreover, one of the most recent Supreme Court cases on the extent of the prohibitions on ``cruel and unusual'' punishments expressly

outlawed the use of painful stress positions, denouncing their ``obvious cruelty'' as ``antithetical to human dignity.''

The amendment bans the use of extreme cold, or hypothermia, as an interrogation tactic. Hypothermia can be deadly. Clearly it is capable of causing severe and lasting harm, if not death, and consequently is banned by both the Field Manual and the Constitution.

The amendment bans punching, striking, violently shaking or beating detainees. Striking prisoners is a criminal offense and clearly unconstitutional. Moreover, while assaults like slapping and violent shaking, may not seem as dangerous as beatings, shaking did, in fact, kill a prisoner in Israel, and the tactic has been banned by the Israeli Supreme Court. Numerous U.S. Supreme Court cases likewise prohibited striking prisoners.

The amendment bans the use of dogs in interrogation and the use of nakedness and sexual humiliation for the purpose of degrading prisoners.

No reasonable person, given the text of the amendment, the judicial precedents, and common sense, would consider these techniques to be permitted. Any U.S. official or employee who receives legal advice to the contrary should think twice before defying the will of the Congress on this issue.

The McCain antitorture amendment will make the rules for the treatment of detainees clear to our troops and will send a signal to the world about our Nation's commitment to the humane treatment of detainees.

I want to express again my opposition to the Graham-Levin amendment.

The amendment would essentially eliminate habeas corpus for detainees at Guantanamo Bay. In so doing, it would apparently overturn the Supreme Court's landmark decision in Rasul v. Bush.

No one questions the fact that the United States has the power to hold battlefield combatants for the duration of an armed conflict. That is a fundamental premise of the law of war.

However, over the objections of then-Secretary of State Colin Powell and military lawyers, the Bush administration has created a new detention policy that goes far beyond the traditional law of war. The administration claims the right to seize anyone, including an American citizen, anywhere in the world, including in the United States, and to hold him until the end of the war on terrorism, whenever that may be. They claim that a person detained in the war on terrorism has no legal rights. That means no right to a lawyer, no right to see the evidence against him, and no right to challenge his detention. In fact, the Government has argued in court that detainees would have no right to challenge their detentions even if they claimed they were being tortured or summarily executed.

U.S. military lawyers have called this detention system ``a legal black hole.''

Defense Secretary Rumsfeld has described the detainees as ``the hardest of the hard core'' and ``among the most dangerous, best trained, vicious killers on the face of the Earth.'' However, the administration now acknowledges that innocent people are held at Guantanamo Bay. In late 2003, the Pentagon reportedly determined that 15 Chinese Muslims held at Guantanamo are not enemy combatants and were mistakenly detained. Almost 2 years later, those individuals remain in Guantanamo Bay.

Last year, in the Rasul decision, the Supreme Court rejected the administration's detention policy. The Court held that detainees at Guantanamo have the right to habeas corpus to challenge their detentions in Federal court. The Court held that the detainees' claims that they were detained for years without charge and without access to counsel ``unquestionably describe custody in violation of the Constitution, or laws or treaties of the United States.''

The Graham amendment would protect the Bush administration's detention system from legal challenge. It would effectively overturn the Supreme Court's decision. It would prevent innocent detainees, like the Chinese Muslims, from challenging their detention.

However, I do want to note some limitations on the scope of the Graham-Levin amendment.

A critical feature of this legislation is that it is forward looking. A law purporting to require a Federal court to give up its jurisdiction over a case that is submitted and awaiting decision would raise grave constitutional questions. The amendment's jurisdiction-stripping provisions clearly do not apply to pending cases, including the Hamdan v. Rumsfeld case, which is currently pending before the Supreme Court. In accordance with our traditions, this amendment does not apply retroactively to revoke the jurisdiction of the courts to consider pending claims invoking the Great Writ of Habeas Corpus challenging past enemy combatant determinations reached without the safeguards this amendment requires for future determinations. The amendment alters the original language introduced by Senator Graham so that those pending cases are not affected by this provision.

The amendment also does not legislate an exhaustion requirement for those who have already filed military commission challenges. As such, nothing in the legislation alters or impacts the jurisdiction or merits of the Hamdan case.

Nothing in the legislation affirmatively authorizes, or even recognizes, the legal status of the military commissions at issue in Hamdan. That is the precise question that the Supreme Court will decide in the next months. Right now, the military commissions are legal under a decision of the DC Circuit, and this amendment reflects, but in no way endorses that present status. It would be a grave mistake for our allies around the world to think that we are endorsing this system at Guantanamo Bay--a system that has produced not a single conviction in the 4 years since the horrible attacks of September 11, 2001.

This provision attempts to address problems that have occurred in the determinations of the status of people detained by the military at Guantanamo Bay and elsewhere. It recognizes that the Combatant Status Review Tribunal, CSRT, procedures applied in the past were inadequate and must be changed going forward. As the former chief judge of the U.S. Foreign Intelligence Surveillance Court found, in In Re Guantanamo Detainee Cases, the past CSRT procedures ``deprive[d] the detainees of sufficient notice of the factual bases for their detention and den[ied] them a fair opportunity to challenge their incarceration,'' and allowed ``reliance on statements possibly obtained through torture or other coercion.'' Her review ``call[ed] into serious question the nature and thoroughness'' of the past CSRT process. The former CSRT procedures were not issued by the Secretary of Defense, were not reported to or approved by Congress, did not provide for final determinations by a civilian official answerable to Congress, did not provide for the consideration of new evidence, and did not address the use of statements possibly obtained through coercion.

To address these problems, this provision requires the Secretary of Defense to issue new CSRT procedures and report those procedures to the appropriate committees of Congress; it requires that going forward the determinations be made by a Designated Civilian Official who is answerable to Congress; it provides for the periodic review of new evidence; it provides for future CSRTs to assess whether statements were derived from coercion and their probative value; and it provides for review in the D.C. Circuit Court of Appeals for these future CSRT determinations.

I announce that the Senator from New Jersey (Mr. Corzine), the Senator from Connecticut (Mr. Dodd), and the Senator from Iowa (Mr. Harkin) are necessarily absent.

Mr. President, the annual Defense Appropriations bill is rightly considered a priority most years, and Congress typically completes its work on this important bill early in the year. This year, however, progress on this bill was suspended largely because of Republican political maneuvering. I supported the Senate version of this bill, but a very different bill emerged from conference. That conference report was hijacked by the Republican leadership in a cynical effort to try to pass controversial provisions that have nothing to do with our defense. By jeopardizing funding for our brave men and women in uniform, and attempting to circumvent the rules that govern the Senate, those leaders placed their own narrow interests above those of the country and this institution.

The most blatant abuse was the insertion into the conference report of a

provision that appeared in neither bill to open the Arctic National Wildlife Refuge to drilling. I have already addressed the Senate twice this week on why that provision had no place in this conference report and I am pleased that my colleagues have joined me in sending a clear message that we will not tolerate attempts to hold vital funding hostage to unrelated special interest provisions.

While we were successful in removing the Arctic provisions, I remain very troubled about provisions included in the emergency funds slated for pandemic influenza preparedness. While I have long advocated for pandemic influenza preparedness funding, and while I am pleased that $3.8 billion is provided for this purpose, I am deeply concerned about the inclusion of far-reaching liability protections for health care providers and vaccine manufacturers in this conference report. It is an abuse of the appropriations process to incorporate such sweeping legal protections into a measure providing funds for the military.

The provisions inserted in the conference report would exempt vaccine producers from civil liability for injuries caused by vaccines, unless the health care provider or vaccine manufacturer acted with willful misconduct. This language is extremely far-reaching. Plaintiffs would need to prove that the health care providers or vaccine manufacturers acted intentionally, acted without justification, and disregarded known or obvious risks that the harm would outweigh the benefit. This will be extremely difficult for plaintiffs to establish. Furthermore, disregarding the advice of public health experts, the language fails to provide meaningful injury compensation provisions to help those injured by vaccines. These protections for health care providers and vaccine manufacturers are unparalleled, and it is painfully clear that our leadership in Congress and in the White House is not listening to the concerns of first responders, families, or public and global health experts. They are listening only to the businesses and industries that would use the threat of pandemic influenza as an opportunity to help their own profit margins.

Mr. President, I also object to the inclusion of certain provisions of the Hurricane Education Recovery Act in the Department of Defense Appropriations bill. More than 370,000 elementary and secondary students have been displaced as a result of Hurricane Katrina. Schools across the country, including some in Wisconsin, have opened their doors to these students. I strongly support efforts to assist the schools that are welcoming these students as they continue to work to make this transition and school year go as smoothly as possible.

But I am troubled by key provisions of the legislation. For example, Section 107 of the Act would allocate Federal funding to go directly through State agencies to local school districts where displaced students have enrolled in public or private schools. The local school districts, which are government agencies, would then be responsible for issuing direct payments to public and private schools educating displaced students. Earlier this year, the Senate soundly defeated a proposal to provide vouchers directly to parents with little in the way of civil rights protections. The Senate subsequently passed a measure that, like the measure now before this body, would have passed taxpayer money to private schools through local public school districts. I had grave concerns about that provision, and I am even more troubled that the provisions before us do not include even the modest attempts at civil rights and other protections that were included in the Senate passed language. While I believe the supporters of this act are well- intentioned, I am concerned that Senate passage of this measure would create a troubling precedent with regard to taxpayer-funded school vouchers.

I oppose school vouchers because such programs funnel taxpayer money away from the public schools that this funding is intended to support and instead direct this funding to private schools that do not have to adhere to the same Federal, State, and local accountability and civil rights laws and regulations that apply to public schools. I strongly support providing assistance to the students and schools that have been affected by Hurricane Katrina, but we should do so within existing Federal laws that allow local public school districts to provide specific educational services--rather than direct funding--to private schools.

Mr. President, I also object to the across-the-board cut to discretionary programs, including education programs, that was inserted in this conference report. The Labor-HHS-Education appropriations bill already cuts or allows for only nominal increases in funding for education. This across-the-board cut would magnify the damage done by that appropriations bill, which awaits final action. If both the across-the-board cut and the Labor-HHS-Ed appropriations bill are adopted, total Federal education funding would be cut for the first time in a decade, Funding would be cut for No Child Left Behind, at a time that we are still requiring States to comply with testing all students in reading and math in grades 3-8 for the first time this school year. Title I funding would be cut for the first time in 13 years, hurting children that are currently eligible to receive Title I services. The Federal share of special education costs would be cut for the first time in a decade forcing States and local school districts to pick up the slack. And I regret that the maximum Pell Grant award would be frozen for the fourth year in a row at $4,050.

Mr. President, reducing funding for our nation's schools is not the message we should be sending to our youth. We need to find ways to provide an excellent K-12 education for all of America's children and find ways to make college more affordable for young people now and in the future. Cutting funding for these various programs is not the answer and this across-the-board cut is particularly regrettable. I strongly support reducing our budget deficit and have long promoted measures, such as PAYGO, that would help us toward that goal. But cutting funding for those most in need is not the solution.

I am pleased that the conference report sends such a strong message to the administration about the treatment of detainees by adopting the amendment of the senior Senator from Arizona. The lack of a clear policy regarding the treatment of detainees has been confusing and counter-productive. It has left our men and women in uniform in the lurch with no clear direction about what is and is not permissible. This failure on the part of the administration has sullied our reputation as a Nation, and hurt our efforts to promote democracy and human rights in the Arab and Muslim worlds. I have been proud to support Senator McCain's amendment on interrogation policy because it should help to bring back some accountability to the process and restore our great Nation's reputation as the world's leading advocate for human rights.

I am disappointed with the mixed messages that the Senate continues to send to the administration and the country on issues related to the detainees held at Guantanamo Bay. In addition to the important McCain amendment on torture, the conference report also includes the Graham amendment, which remains deeply troubling because of the restrictions it places on judicial review of detainees held at Guantanamo. However, it is important to note that the provision is limited in critical ways. The provision on judicial review of military commissions covers only ``final decisions'' of military commissions, and only governs challenges brought under that provision. In addition, the language in Section 1405(e)(2) that prohibits ``any other action against the United States'' applies only to suits brought relating to an ``aspect of detention by the Department of Defense.'' Therefore, it is my understanding that this provision would not affect the ongoing litigation in Hamdan v. Rumsfeld before the Supreme Court because that case involves a challenge to trial by military commission, not to an aspect of a detention, and of course was not brought under this provision. Furthermore, it is important to make clear that this provision should not be read to endorse the current system of trial by military commission for those at Guantanamo Bay. This provision reflects, but certainly does not endorse, the existing status of those military commissions, which is that they are currently legal under a decision of the D.C. Circuit.

However, the Supreme Court has not yet addressed the legality of such military commissions, and this amendment should not be read as any indication that Congress is weighing in on that issue. While I would have strongly preferred that this amendment not be included in the conference report, I think it is important to note these limitations on its practical effect.

In closing, Mr. President, I am pleased that I was able to vote for a bill to provide our brave men and women in uniform with the funding they need. But I am disappointed with the long and winding road that it took to get to this point. I hope that Republican leaders are on notice that the Senate will not turn a blind eye when they break the rules and put their own narrow interests above those of the country and the troops.

Mr. President, we are in a period of extended debate to resolve the remaining issues related to the Defense appropriations bill, so I wanted to take a minute to address the serious avian flu issue that is before us. While I am concerned that we will need the full funding request the administration sought, if we approve the avian flu proposal, we will at least be advancing some $3 billion. I want to stress the importance of global wild bird surveillance systems as part of my comprehensive flu plan.

I am pleased that the avian flu provisions include authorizing language and funds to set up a wild bird surveillance network as well as other essential elements of avian flu public health preparedness. If passed by Congress and signed by the President, this will assure that we have a comprehensive approach to what may become a real world threat. We do not want to have piecemeal solutions or be simplistically reactive when it comes to the public's health.

The avian flu provision we have been considering today states that part of $150 million is designated to carry out global and domestic disease surveillance, which includes international surveillance to track influenza strains as a way of focusing limited resources on at- risk populations. The conferees have pointed out specifically the importance of migratory bird tracking in predicting the spread of avian influenza and encourage the CDC to ensure that this important activity is part of its surveillance activities. I am pleased with this language that acknowledges a key part of the preparedness puzzle to which, frankly, few people have given attention--wild bird sentinels and the intimate connection between animal and human health. We cannot separate the two.

As we all know, the potential for an influenza pandemic is increasing as the H5N1 virus has now moved swiftly across Asia, Russia, Turkey, and now the EU, killing millions of domestic poultry and over 60 humans to date. History and science tell us that wild birds and movements of poultry have the potential to spread deadly avian influenza viruses. The 1918 influenza epidemic that killed an estimated 40 million people worldwide was an avian-origin viral strain. We must act now to ensure that this does not happen again. We have the tools to track the movement of this virus. We just need to increase and strengthen them.

In October, I introduced a bill, S. 1912, to do exactly this. This month, Representatives DeLauro and Lowey, with the cosponsorship of Representative Case, introduced an identical bill

in the House of Representatives, H.R. 4476, to provide funds supporting an early warning system and real-time data network for global avian influenza surveillance. Senator Brownback has also been supportive of these efforts to urge Congress to examine ways to boost our prevention and preparedness efforts via an international surveillance network.

In fact, the Senate passed appropriations for such an effort in the Senate Labor-HHS appropriations bill for fiscal year 2006. This was work from our colleagues Senators Specter and Harkin, who again realized the importance of fighting the threat of avian flu from multiple fronts including funds for vaccines and antivirals but also with the establishment of an international wild bird surveillance network.

The surveillance network contemplated by the avian flu proposals we have been considering should be designed to be an early warning and tracking system to monitor avian viruses and their mutations and reassortments, as carried by wild birds. The provision would require expansion the Centers for Disease Control and Prevention's Influenza Branch's wild bird surveillance program, which currently is small. Specifically, it is our intent that the Centers for Disease Control and Prevention's Influenza Branch, CDC, with expertise in analyzing ornithological and animal samples for infectious diseases, and other national partners, such as the US Agency for International Development, USAID, with expertise in working with international partners and coalitions, would partner with one or more nongovernmental organizations that meet the following criteria: have extensive global wildlife health experience in tracking disease in wild birds, including free-ranging, captive, and wild-bird species using an international and extensive field program and network with projects in 50 or more countries to allow for the collection and dissemination of data around the world; have proven ability in identifying avian influenza, specifically H5N1 and other infectious diseases, in wild birds; and have accredited zoological facilities in the United States, with the capacity to analyze, store, and interpret samples and compile data.

Such tracking allows us to predict the spread of the virus and then to focus limited resources and prepare communities in the flight path of wild birds, as the conference report notes. Potential interventions include providing available antivirals or vaccines to those at-risk, enhancing biosecurity at poultry farms, and even keeping people indoors should surveillance information warrant it. By tracking wild birds, as these provisions require, we may even be able to produce an avian flu vaccine faster by understanding which variant of avian influenza virus is the killer. The current H5N1 virus is potentially not the one that could cause widespread devastation to humans. Again, the conference report recognizes the importance of tracking viral strains and has provided the CDC with funding to do so.

Just as we track hurricanes as they begin as a tropical storm, we must track wild birds and the viral storms they carry over oceans and continents and share that data with the world.

At least $10 million of the funds available in this proposal in 2006 should be available to the CDC to work with a national partner such as USAID and one or more eligible NGOs with the expertise and the criteria previously outlined and other supporting international partners to establish a strong global wild bird surveillance system.

This proposal would help ensure we have an organized, near real-time, virtual library that would allow U.S. Government agencies, wildlife conservation organizations, and public health organizations to track both the spread of avian viruses and their reassortments and mutations, which are integral to understanding how a virus might change to permit human to human transfer.

Ten million dollars is a small sum in comparison to the tens of billions of dollars required for vaccine research and antiviral stockpiling. Vaccines and stockpiling are our current focus and we should be thinking about them--but it is equally important to think about being prepared for outbreaks and preventing a pandemic from ever becoming a reality.

As we speak, information is being collected and analyzed all over the United States and the world. But while we are collecting piles of data, it is not being stored in the kind of organized manner needed to make it available for easy study and response. The information we have, I fear, is scattered like books with no library to contain them and no librarian to locate them.

Again, I would like to thank leaders in the Senate and the House, including Senators Specter, Harkin, and Brownback, and Representatives DeLauro, Lowey, and Case, for their work in preparing our Nation for a possible pandemic. We must address the treatment, surveillance, and prevention but, also, critically the global wildfowl surveillance; this addresses a big gap that is easy to forget about. It is the big bird in the room.

Wild birds can spread this virus and could potentially carry it to the United States. I thank and urge my colleagues to continue supporting flu legislation with essential provisions such as this one, which surveys wild birds with NGOs who have the international networks and the capacity to connect all the dots, so when a flu pandemic does or does not happen, we are better prepared.