National Ocean Exploration Program Act

Mr. President, I rise today to introduce with my colleagues, Senators Feinstein, Grassley, Kyl, and Cornyn, a comprehensive bipartisan bill to increase gang prosecution and prevention efforts. The bill I introduce today is identical to S. 1735 that was favorably reported by the Senate Judiciary Committee in the 108th Congress.

This legislation, ``The Gang Prevention and Effective Deterrence Act of 2005,'' authorizes approximately $650 million over the next five years to support law enforcement and efforts to prevent youngsters from joining gangs. Of that, $450 million would be used to support Federal, State and local law enforcement efforts against violent gangs, and $200 million would be used for intervention and prevention programs for at- risk youth. The bill increases funding for the Federal prosecutors and Federal Bureau of Investigation (FBI) agents needed to conduct coordinated enforcement efforts against violent gangs.

This bill also creates new criminal gang prosecution offenses, enhances existing gang and violent crime penalties to deter and punish illegal street gangs, enacts violent crime reforms needed to prosecute effectively gang members, and implements a limited reform of the juvenile justice system to facilitate Federal prosecution of 16- and 17-year-old gang members who commit serious violent felonies.

The problem of gang violence in America is not a new one, nor is it a problem that is limited to major urban areas. Once thought to be only a problem in our Nation's largest cities, gangs have invaded smaller communities. Gangs in Salt Lake County result in significant measure from the influence of gangs existing in Los Angeles and Chicago, but with local mutations.

Constituents frequently mention to me their extreme concern about gang violence in Utah. According to the Salt Lake Area Gang Project, a multi-jurisdictional task force created in 1989 to fight gang crime in the Salt Lake area, there are at least 250 identified gangs in Utah with over 3,500 members. In Utah, there are street gangs that are ethnically oriented, such as Hispanic gangs, as well as those affiliated with gangs from other cities, such as the Crips and Bloods, Folks and People, motorcycle gangs, Straight Edge gangs, Animal Liberation Front, Skinheads, Varrio Loco Town, Oquirrh Shadow Boys, Salt Lake Posse, and the list goes on. Some of these gangs are racist; some are extremist.

And what I find particularly troubling is that over one-third of the total gang membership is made up of juveniles. Thus, these crimes have a particular impact on youths.

Gangs now resemble organized crime syndicates which readily engage in gun violence, illegal gun trafficking, illegal drug trafficking and other serious crimes. All too often we read in the headlines about gruesome and tragic stories of rival gang members gunned down, innocent bystanders--adults, teenagers and children--caught in the cross fire of gangland shootings, and family members crying out in grief as they lose loved ones to the gang wars plaguing our communities.

Recent studies confirm that gang violence is an increasing problem in all of our communities. Based on the latest available National Youth Gang Survey, it is now estimated that there are more than 25,000 gangs, and over 750,000 gang members who are active in more than 3,000 jurisdictions across the United States. The most current reports indicate that in 2002 alone, after five years of decline, gang membership has spiked nationwide.

I have been--and remain--committed to supporting Federal, State and local task forces as a model for effective gang enforcement strategies. Working together, these task forces have demonstrated that they can make a difference in the community. In Salt Lake City, the Metro Gang Multi-Jurisdiction Task Force stands out as a critical player in fighting gang violence in Salt Lake City. We need to reassure outstanding organizations like this that there will be adequate resources available to expand and fund these critical task force operations to fight gang violence.

In my study of this problem, it has become clear that the government needs to work with communities to meet this problem head-on and defeat it. If we really want to reduce gang violence, we must ensure that law enforcement has adequate resources and legal tools, and that our communities have the ability to implement proven intervention and prevention strategies, so that gang members who are removed from the community are not simply replaced by the next generation of new gang members.

In closing, I want to commend my colleagues--Senators Feinstein, Grassley, Kyl and Cornyn. They have worked very closely with me as we considered these issues last Congress and I look forward to working with them and others as we proceed this year. I urge my colleagues to join with us in promptly passing this important legislation.

Mr. President, I rise today to introduce the Family Entertainment and Copyright Act of 2005. This important legislation consists of a package of smaller intellectual property bills that the House and Senate have been working to enact since last Congress. This legislation passed the Senate not once, but twice, during the waning days of the last Congress. Unfortunately, though, it was doomed by a non-germane amendment unrelated to intellectual property law. My hope is that we can work together this Congress to avoid this type of pitfall, and I commit to work with other members to do so.

Before beginning my substantive discussion of the bill, I would like to thank my colleagues Senators Leahy, Cornyn, and Feinstein for their ongoing efforts on this legislation. Just as it was last year, this legislation is a group effort, and I want to take care to recognize the contributions and their excellent work along with that of Representatives Sensenbrenner, Smith, Berman, and Conyers in the House.

Before going into a title-by-title discussion of the bill, I would like to express my particular support for the Family Movie Act, which has been included in this legislation. Chairman Lamar Smith and I worked on this bill last Congress. It's important legislation both to parents who want the ability to use new technologies to help shield their families from inappropriate content as well as the technology companies, such as ClearPlay in my home State of Utah, that are working to develop these technologies. The Family Movie Act will give parents more say over what their children see, without limiting the creative control of directors and movie studios.

Title I of this Act, the Artists' Rights and Theft Prevention Act of 2005, (the ART Act), contains a slightly modified version of S. 1932, authored by Senators Cornyn and Feinstein in the 108th Congress. This bill will close two significant gaps in our copyright laws that are feeding some of the piracy now rampant on the Internet.

First, it criminalizes attempts to record movies off of theater screens. These camcorded copies of new movies now appear on filesharing networks almost contemporaneously with the theatrical release of a film. Several States have already taken steps to criminalize this activity, but providing a uniform Federal law--instead of a patchwork of State criminal statutes--will assist law enforcement officials in combating the theft and redistribution of valuable intellectual property embodied in newly-released motion pictures.

Second, the bill will create a pre-registration system that will permit criminal penalties and statutory-damage awards. This will also provide a tool for law enforcement officials combating the growing problem of music and movies being distributed on filesharing networks and circulating on the Internet before they are even released. Obviously, the increasingly frequent situation of copyrighted works

being distributed illegally via the Internet before they are even made available for sale to the public severely undercuts the ability of copyright holders to receive fair and adequate compensation for their works.

Title II of this Act, the Family Movie Act of 2005 (the FMA), resolves some ongoing disputes about the legality of so-called ``jump- and-skip'' technologies that companies like Clearplay in my home State of Utah have developed to permit family-friendly viewing of films that may contain objectionable content. The FMA creates a narrowly defined safe-harbor clarifying that distributors of such technologies will not face liability for copyright or trademark infringement, provided that they comply with the requirements of the Act. I have been working with my colleagues in the Senate and several leaders in the House-- including, most importantly Chairmen Smith and Sensenbrenner--for the past couple of years to resolve this issue. The FMA will help to end aggressive litigation threatening the viability of small companies like Clearplay which are busy creating innovative technologies for consumers that allow them to tailor their home viewing experience to their own individual or family preferences.

The Family Movie Act creates a new exemption in section 110(11) of the Copyright Act for skipping and muting audio and video content in motion pictures during performances of an authorized copy of the motion picture taking place in the course of a private viewing in a household. The version passed last year by the House explicitly excluded from the scope of the new copyright exemption so-called ``ad-skipping'' technologies that make changes, deletions, or additions to commercial advertisements or to network or station promotional announcements that would otherwise be displayed before, during, or after the performance of the motion picture. This provision was included on the House floor to address the concerns of some Members who were concerned that a court might misread the new section 110(11) exemption to apply to ``ad- skipping''' cases, such as in the recent litigation involving ReplayTV.

In the Senate, however, some expressed concern that the inclusion of such explicit language could create unwanted inferences with respect to the merits of the legal positions at the heart of recent ``ad- skipping'' litigation. Those issues remain unsettled in the courts, and it was never the intent of this legislation to resolve or affect those issues in any way. Indeed, the Copyright Act contains literally scores of similar exemptions, and none of those exemptions have been or should be construed to imply anything about the legality of conduct falling outside their scope. As a result, the Copyright Office has now confirmed that such an explicit exclusion is unnecessary to achieve the desired outcome, which is to avoid application of this new exemption in potential future cases involving ad-skipping devices. In order to avoid unnecessary controversy, the Senate bill omits the exclusionary language with the understanding that doing so does not in any way change the scope of the bill.

That this change in no way affects the scope of the exemption is clear when considering that the new section 110(11) exemption protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture. . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply. The limited scope of this exemption does not, however, imply or show that such conduct or a technology that enables such conduct would be infringing. This legislation does not in any way deal with that issue. It means simply that such conduct and products enabling such conduct are not immunized from liability by this exemption.

This bill also differs from the version passed by the House last year in that it adds two ``savings clauses.'' The copyright savings clause makes clear that there should be no spillover effect from the passage of this law: that is, nothing shall be construed to have any effect on rights, defenses, or limitations on rights granted under title 17, other than those explicitly provided for in the new section 110(11) exemption. The trademark savings clause clarifies that no inference can be drawn that a person or company who fails to qualify for the exemption from trademark infringement found in this provision is therefore liable for trademark infringement.

Title III of this Act, the National Film Preservation Act of 2004, will reauthorize the National Film Preservation Board and the National Film Preservation Foundation. These entities have worked successfully to recognize and preserve historically or culturally significant films--often by providing the grants and expertise that enable local historical societies to protect and preserve historically significant films for the local communities for which they are most important. This fine work will ensure that the history of the 20th century will be preserved and available to future generations.

As a conservative Senator from a socially conservative state, I occasionally take a few swings at the movie industry for the quality and content of the motion pictures they are currently creating, but I will note for the record that I commend efforts to ensure that important artistic, cultural, and historically significant films are preserved for future generations. I commend my friend from Vermont for his perseverance in reauthorizing Federal funds to continue this important effort.

Title IV of this act, the ``Preservation of Orphan Works Act,'' also ensures the preservation of valuable historic records by correcting a technical error that unnecessarily narrows a limitation on the copyright law applicable to librarians and archivists. This will strengthen the ability of librarians and archivists to better meet the needs of both researchers and ordinary individuals and will result in greater accessibility of important works. I applaud my colleague in the House--Representative Howard Berman of California--for his efforts on this bill and am pleased to see it included in this Senate package.

Just to conclude, I will again thank Ranking Democratic Member Leahy, Senator Cornyn, Chairmen Sensenbrenner and Smith, as well as Mr. Conyers and Mr. Berman for their bicameral, bipartisan approach to these bills and to intellectual property issues generally.

I ask unanimous consent that the text of the bill be printed in the Record.

I would be happy to yield for a question from the distinguished Senator from Texas.

I thank my friend, the Senator from Texas, for that reminder. I would certainly have no objection to entering our previous colloquy into the Record again and ask unanimous consent that it appear after our remarks.

Mr. President, Section 102 of the ART Act establishes a new provision of Title 18 entitled, ``Unauthorized Recording of Motion Pictures in a Motion Picture Exhibition Facility.'' I ask Senator Cornyn, what is the purpose of this provision?

I have heard it said that this bill could be used against a salesperson or a customer at stores such as Best Buy or Circuit City if he or she were to point a video camera at a television screen showing a movie. Is this cause for concern?

Does the Senator from California agree with your colleague from Texas?

I have also heard some say that this statute could be used to prosecute someone for camcording a DVD at his home. Is this a fair concern?

Do the users of hearing aids, cell phones or similar devices have anything to fear from this statute?

It appears that there is no fair use exception to this provision. Is that correct?

Does the Senator from Texas agree?

My cosponsor, Senator Cornyn, raises an important point. While we removed the ``ad-skipping'' language from the statute to avoid this unnecessary controversy, you are absolutely correct that this does not in any way change the scope of the bill. The bill protects the ``making imperceptible . . . limited portions of audio or video content of a motion picture . . .'' An advertisement, under the Copyright Act, is itself a ``motion picture,'' and thus a product or service that enables the skipping of an entire advertisement, in any media, would be beyond the scope of the exemption. Moreover, the phrase ``limited portions'' is intended to refer to portions that are both quantitatively and qualitatively insubstantial in relation to the work as a whole. Where any substantial part of a complete work, such as a commercial advertisement, is made imperceptible, the new section 110(11) exemption would not apply.

The limited scope of this exemption does not, however, imply or show that

such a product would be infringing. This legislation does not in any way deal with that issue. It means simply that such a product is not immunized from liability by this exemption.

Certainly.

Yes it is. Let me ask that a copy of the section-by- section analysis of the Family Movie Act as amended by the Senate be included in the Record. This section-by-section analysis contains a more complete analysis of the bill as proposed today in the Senate, including the limited changes made by the bill Senators Leahy, Cornyn, Biden, and I offer today.

The analysis follows.

Section-by-Section Analysis of the Family Movie Act of 2004, Amended

and Passed by the Senate

overview

Title II of the Family Entertainment and Copyright Act of

2004 incorporates the House-passed provision of the Family

Movie Act of 2004, with limited changes as reflected in this

section-by-section analysis. As discussed herein, these

changes are not intended to and do not affect the scope,

effect or application of the bill.

The purpose of the Family Movie Act is to empower private

individuals to use technology to skip and mute material that

they find objectionable in movies, without impacting

established doctrines of copyright or trademark law or those

whose business models depend upon advertising. This amendment

to the law should be narrowly construed to effect its

intended purpose only. The sponsors of the legislation have

been careful to tailor narrowly the legislation to clearly

allow specific, consumer-directed activity and not to open or

decide collateral issues or to affect any other potential

or actual disputes in the law.

The bill as proposed in the Senate makes clear that, under

certain conditions, ``making imperceptible'' of limited

portions of audio or video content of a motion picture--that

is, skipping and muting limited portions of movies without

adding any content--as well as the creation or provision of a

computer program or other technology that enables such making

imperceptible, does not violate existing copyright or

trademark laws. That is true whether the movie is on

prerecorded media, like a DVD, or is transmitted to the home,

as through pay-per-view and ``video-on-demand'' services.

Subsection (a): Short Title

Subsection (a) sets forth the short title of the bill as

the Family Movie Act of 2004.

Subsection (b): Exemption from Copyright and Trademark

Infringement for Skipping of Audio or Video Content of

Motion Pictures

Subsection (b) is the Family Movie Act core provision and

creates a new exemption at section 110(11) of the Copyright

Act for the ``making imperceptible'' of limited portions of

audio or video content of a motion picture during a

performance in a private household. This new exemption sets

forth a number of conditions to ensure that it achieves its

intended effect while remaining carefully circumscribed and

avoiding any unintended consequences. The conditions that

allow an exemption, which are discussed in more detail below,

consist of the following:

The making imperceptible must be ``by or at the direction

of a member of a private household.'' This legislation

contemplates that any altered performances of the motion

picture would be made either directly by the viewer or at the

direction of a viewer where the viewer is exercising

substantial choice over the types of content they choose to

skip or mute.

The making imperceptible must occur ``during a performance

in or transmitted to the household for private home

viewing.'' Thus, this provision does not exempt an

unauthorized ``public performance'' of an altered version.

The making imperceptible must be ``from an authorized copy

of a motion picture.'' Thus, skipping and muting from an

unauthorized or ``bootleg'' copy of a motion picture would

not be exempt.

No ``fixed copy'' of the altered version of the motion

picture may be created by the computer program or other

technology that makes imperceptible portions of the audio or

video content of the motion picture. This provision makes

clear that services or technologies that make a fixed copy of

the altered version are not afforded the benefit of this

exemption.

The ``making imperceptible'' of limited portions of a

motion picture does not include the addition of audio or

video content over or in place of other content, such as

placing a modified image of a person, a product, or an

advertisement in place of another, or adding content of any

kind.

These limitations, and other operative provisions of this

new section 110(11) exemption, merit further elaboration as

to their purposes and effects.

The bill makes clear that the ``making imperceptible'' of

limited portions of audio or video content of a motion

picture must be done by or at the direction of a member of a

private household. While this limitation does not require

that the individual member of the private household exercise

ultimate decision-making over each and every scene or element

of dialog in the motion picture that is to be made

imperceptible, it does require that the making imperceptible

be made at the direction of that individual in response to

the individualized preferences expressed by that individual.

The test of ``at the direction of an individual'' would be

satisfied when an individual selects preferences from among

options that are offered by the technology.

An example is the C1earPlay model. C1earPlay provides so-

called `` filter files'' that allow a viewer to express his

or her preferences in a number of different categories,

including language, violence, drug content, sexual content,

and several others. The version of the movie that the viewer

sees depends upon the preferences expressed by that viewer.

Such a model would fall under the liability limitation of the

Family Movie Act.

This limitation, however, would not allow a program

distributor, such as a provider of video-on-demand services,

a cable or satellite channel, or a broadcaster, to make

imperceptible limited portions of a movie in order to provide

an altered version of that movie to all of its customers,

which could violate a number of the copyright owner's

exclusive rights, or to make a determination of scenes to be

skipped or dialog to be muted and to offer to its viewers no

more of a choice than to view an original or an altered

version of that film. Some element of individualized

preferences and control must be present such that the viewer

exercises substantial choice over the types of content they

choose to skip or mute.

It is also important to emphasize that the new section

110(11) exemption is targeted narrowly and specifically at

the act of ``making imperceptible'' limited portions of audio

or video content of a motion picture during a performance

that occurs in, or that is transmitted to, a private

household for private home viewing. This section would not

exempt from liability an otherwise infringing performance, or

a transmission of a performance, during which limited

portions of audio or video content of the motion picture are

made imperceptible. In other words, where a performance in a

household or a transmission of a performance to a household

is done lawfully, the making imperceptible limited portions

of audio or video content of the motion picture during that

performance, consistent with the requirements of this new

section, will not result in infringement liability.

Similarly, an infringing performance in a household, or an

infringing transmission of a performance to a household, are

not rendered non-infringing by section 110(11) by virtue of

the fact that limited portions of audio or video content of

the motion picture being performed are made imperceptible

during such performance or transmission in a manner

consistent with that section.

The bill also provides additional guidance, if not an exact

definition, of what the term ``making imperceptible'' means.

The bill provides specifically that the term ``making

imperceptible'' does not include the addition of audio or

video content that is performed or displayed over or in place

of existing content in a motion picture. This is intended to

make clear in the text of the statute what has been expressed

throughout the consideration of this legislation, which is

that the Family Movie Act does not enable the addition of

content of any kind, including the making imperceptible of

audio or video content by replacing it or by superimposing

other content over it. In other words, for purposes of

section 110(11), ``making imperceptible'' refers solely to

skipping scenes and portions of scenes or muting audio

content from the original, commercially available version of

the motion picture. No other modifications of the content are

addressed or immunized by this legislation.

The House sponsor of this legislation noted in his

explanation of his bill, and the Senate is also aware, that

some copy protection technologies rely on matter placed into

the audio or video signal. The phrase ``limited portions of

audio or video content of a motion picture'' means what it

would naturally seem to mean (i.e., the actual content of

the motion picture) and does not refer to any component of

a copy protection scheme or technology. This provision

does not allow the skipping of technologies or other copy-

protection-related matter for the purpose of defeating

copy protection. Rather, it is expected that skipping and

muting of content

in the actual motion picture will be skipped or muted at

the direction of the viewer based on that viewer's desire

to avoid seeing or hearing the action or sound in the

motion picture. Skipping or muting done for the purpose of

or having the effect of avoiding copy protection

technologies would be an abuse of the safe harbor outlined

in this legislation and may violate section 1201 of title

17.

Violating the Digital Millennium Copyright Act, and

particularly its anti-circumvention provisions, is not

necessary to enable technology of the kind contemplated under

the Family Movie Act. Although the amendment to section 110

provides that it is not an infringement of copyright to

engage in the conduct that is the subject of the Family Movie

Act, the Act does not provide any exemption from the anti-

circumvention provisions of section 1201 of title 17, or from

any other provision of chapter 12 of title 17. It would not

be a defense to a claim of violation of section 1201 that the

circumvention is for the purpose of engaging in the conduct

covered by this new exemption in section 110(11), just as it

is not a defense under section 1201 that the circumvention is

for the purpose of engaging in any other non-infringing

conduct.

There are a number of companies currently providing the

type of products and services covered by this Act. The Family

Movie Act is intended to facilitate the offering of such

products and services, and it certainly creates no impediment

to the technology employed by those companies. Indeed, it is

important to underscore the fact that the support for such

technology and consumer offerings that is reflected in this

legislation is driven in some measure by the desire for

copyright law to be respected and to ensure that technology

is deployed in a way that supports the continued creation and

protection of entertainment and information products that

rely on copyright protection. This legislation reflects the

firm expectation that those rights and the interests of

viewers in their homes can work together in the context

defined in this bill. Any suggestion that support for the

exercise of viewer choice in modifying their viewing

experience of copyrighted works requires violation of either

the copyright in the work or of the copy protection schemes

that provide protection for such work should be rejected as

counter to legislative intent or technological necessity.

The House-passed bill included an explicit exclusion to the

new section 110(11) exemption in cases involving the making

imperceptible of commercial advertisements or network or

station promotional announcements. This provision was added

on the House floor to respond to concerns expressed by

Members during the House Judiciary Committee markup that the

bill might be read somehow to exempt from copyright

infringement liability devices that allow for skipping of

advertisements in the playback of recorded television (so

called ``ad-skipping'' devices). Such a reading is not

consistent with the language of the bill or its intent.

The phrase ``limited portions of audio or video content of

a motion picture'' applies only to the skipping and muting of

scenes or dialog that are part of the motion picture itself,

and not to the skipping of commercial advertisements, which

are themselves considered motions pictures under the

Copyright Act. It also should be noted that the phrase

``limited portions'' is intended to refer to portions that

are both quantitatively and qualitatively insubstantial in

relation to the work as a whole. Where any substantial part

of a complete work (including a commercial advertisement) is

made imperceptible, the section 110(11) exemption would not

apply.

The House-passed bill adopted a ``belt and suspenders''

approach to this question by adding exclusionary language in

the statute itself. Ultimately that provision raised concerns

in the Senate that such exclusionary language would result in

an inference that the bill somehow expresses an opinion, or

even decides, the unresolved legal questions underlying

recent litigation related to these so-called ``ad-skipping''

devices. In the meantime, the Copyright Office also made

clear that such exclusionary language is not necessary. In

other words, the exclusionary language created unnecessary

controversy without adding any needed clarity to the statute.

Thus, the Senate amendment omits the exclusionary language

while leaving the scope and application of the bill exactly

as it was when it passed the House. The legislation does not

provide a defense in cases involving so-called ``ad-

skipping'' devices, and it also does not affect the legal

issues underlying such litigation, one way or another.

Consistent with the intent of the legislation to fix a narrow

and specific copyright issue, this bill seeks very clearly to

avoid unnecessarily interfering with current business models,

especially with respect to advertising, promotional

announcements, and the like. Simply put, the bill as amended

in the Senate is narrowly targeted to the use of technologies

and services that filter out content in movies that a viewer

finds objectionable, and it in no way relates to or affects

the legality of so-called ``ad-skipping'' technologies.

There are a variety of services currently in litigation

that distribute actual copies of altered movies. This type of

activity is not covered by the section 110(11) exemption

created by the Family Movie Act. There is a basic distinction

between a viewer choosing to alter what is visible or audible

when viewing a film, the focus of this legislation, and a

separate entity choosing to create and distribute a single,

altered version to members of the public. The section 110(11)

exemption only applies to viewer directed changes to the

viewing experience, and not the making or distribution of

actual altered copies of the motion picture.

Related to this point, during consideration of this

legislation in the House there were conflicting expert

opinions on whether fixation is required to infringe the

derivative work right under the Copyright Act, as well as

whether evidence of Congressional intent in enacting the 1976

Copyright Act supports the notion that fixation should not be

a prerequisite for the preparation of an infringing

derivative work. This legislation should not be construed to

be predicated on or to take a position on whether fixation is

necessary to violate the derivative work right, or whether

the conduct that is immunized by this legislation would be

infringing in the absence of this legislation. Subsection (b)

also provides a savings clause to make clear that the newly-

created copyright exemption is not to be construed to have

any effect on rights, defenses, or limitations on rights

granted under title 17, other than those explicitly provided

for in the new section 110(11) exemption.

Subsection (c): Exemption from Trademark Infringement

Subsection (c) provides for a limited exemption from

trademark infringement for those engaged in the conduct

described in the new section 110(11) of the Copyright Act. In

short, this subsection makes clear that a person engaging in

the conduct described in section 110(11)--the ``making

imperceptible'' of portions of audio or video content of a

motion picture or the creation or provision of technology to

enable such making available--is not subject to trademark

infringement liability based on that conduct, provided that

person's conduct complies with the requirements of section

110(11). This section provides a similar exemption for a

manufacturer, licensee or licensor of technology that enables

such making imperceptible, but such manufacturer, licensee or

licensor is subject to the additional requirement that it

ensure that the technology provides a clear and conspicuous

notice at the beginning of each performance that the

performance of the motion picture is altered from the

performance intended by the director or the copyright holder.

Of course, nothing in this section would immunize someone

whose conduct, apart from the narrow conduct described by

110(11), rises to the level of a Lanham Act violation. For

example, someone who provides technology to enable the making

imperceptible limited portions of a motion picture consistent

with section 110(11) could not be held liable on account of

such conduct under the Trademark Act, but if in providing

such . . .

Mr. President, I compliment my colleagues on both sides of the aisle for a very good and thoughtful debate today on this particular nominee.

I come to the Senate today to report and inform my colleagues on the Secretary of State confirmation hearings held in the Foreign Relations Committee last week.

By now, everyone knows I posed some very direct questions to Dr. Rice about her statements leading up to the Iraqi war and beyond. As National Security Adviser, Dr. Rice gave confidential advice to the President regarding the war in Iraq. She also made the case for the war in Iraq to the American people through hours of television appearances and commentary.

My questions, every one of them, revolved around her own words. As a result of my questions and comments at the hearing, I have been hailed as both a hero and a petty person. I have been called both courageous and partisan. I have been very surprised at this response. Tens of thousands of people signed a petition asking me to hold Dr. Rice accountable for her past statements.

The reason I am so surprised at this reaction is that I believe I am doing my job. It is as simple at that. I am on the Foreign Relations Committee. This is a very high profile nominee. This is a Secretary of State nomination in a time of war. My constituents want me to be thorough. They want me to exercise the appropriate role of a Senator.

Let's look for a moment at what that role is, how it was defined by our Founding Fathers. Article II, section 2, clause 2, of the Constitution, which I have sworn to uphold, says the President:

shall nominate, and by and with the Advice and Consent of the

Senate, shall appoint Ambassadors, other public Ministers and

Consuls, Judges of the Supreme Court, and all

other officers of the United States, whose appointments are

not herein otherwise provided for.

The Cabinet is covered in Article II, section 2, clause 2, of the U.S. Constitution.

Now, if you read this, it does not say anywhere in here that the President shall nominate and the Senate shall confirm. It says the President ``shall nominate, and by and with the Advice and Consent of the Senate'' shall make the appointments.

Why is it our Founders believed it was crucial for the Senate to play such a strong role in the selection of these very important and powerful members of the administration and members of the bench? It is because our Founders believed that the executive branch must never be too powerful or too overbearing.

In Federal No. 76, Alexander Hamilton wrote:

It will readily be comprehended that a man who had himself

the sole disposition of offices would be governed much more

by his private inclinations and interests than when he was

bound to submit the propriety of his choice to the discussion

and determination of a different and independent body . . .

In today's vernacular, any President needs a check and balance. That certainly applies today, and it would apply to a Democratic President as much as to a Republican President.

Our Founders are clear, and the Constitution is clear. Again, it does not say anywhere in the Constitution that a President, Democratic or Republican, has free rein in the selection of his or her Cabinet. That is exactly what the Founders did not want. They wanted the President, and I will quote Alexander Hamilton again, to ``submit the propriety of his choice to the discussion and determination of a different and independent body.'' And that body is the Senate.

It also doesn't say anywhere in the Constitution that the only reason for a Senator to vote no on a Presidential nominee is because of some personal or legal impediment of that nominee. It leaves the door open. Senators have to ponder each and every one of these nominations. It is very rare that I step forward to oppose one. I have opposed just a couple. I have approved hundreds.

Let me be clear. I will never be deterred--and I know my colleagues feel the same, I believe, on both sides of the aisle--I will never be deterred from doing a job the Constitution requires of me or it would be wrong to have taken the oath and raise my right hand to God and swear to uphold the Constitution if I did not take this role seriously.

I make a special comment to the White House Chief of Staff, who called Members of the Senate petty for seeking time to speak out on this particular nomination. It is important to know that the White House Chief of Staff does a great job for the President, but he does not run the Senate. I know he finds the constitutional requirement of advice and consent perhaps a nuisance, and others have as well in the White House, be they Republicans or Democrats. It is the system of government we have inherited from our Founders. As we go around the world, hoping to bring freedom and liberty to people, we better make sure we get it right here. This is very important, whether it is fair and free elections that really work so people do not stand in line for 10 hours and wait until 4 in the morning to vote, that we fix that, and that we, in fact, act as a check and balance in these nominations.

I have been motivated by a lot of people in my life. One of them is Martin Luther King. I wish to share something he said which is not as widely quoted as other things. He said that our lives begin to end the day we become silent about things that matter. That is important for everyone to take to heart. Sometimes it is easier to be silent, to just go along, even if in your heart you know there are certain issues that have to be put out on the table. But the fact is, our lives begin to end the day we become silent about things that matter.

Why does this nomination matter so much to me and to my constituents and to the tens of thousands who signed a petition that they sent to me? It is because we are looking at a Secretary of State nomination in a time of war, someone who is very loyal to this President. And, of course, the President picked someone loyal to him. I do not fault him for that in any way, shape, or form. But what matters is this war. A very strong majority of Americans are worried about this war, and they are worried about what comes next.

So, yes, it matters, and it is our job to look at these nominees very seriously. I think it would be terribly condescending to have someone of the caliber of Dr. Rice, with all her intelligence and qualifications and her record of public service with this administration, and not ask the tough questions. That would be condescending. That would be wrong.

Now, I am so honored to serve on the Foreign Relations Committee with the Senator from Virginia, who just made a very eloquent talk. I know he would join me in saying that Richard Lugar is one of the fairest chairmen with whom we have ever served. He allowed members on both sides of the aisle to ask any questions they wanted. He supported our right to do so. To me, Richard Lugar is a model chairman. And I want to thank my colleagues on both sides of the aisle who asked very important questions of this nominee on everything from exit strategy in Iraq, to issues surrounding the torture question, to policies in Latin America, to tsunami relief. All of these colleagues from both sides of the aisle asked very important questions. As for me, I had five areas of questioning, and I want to lay them out briefly for the Senate.

Now, one more point as to why I believed it was so important to ask Dr. Rice these questions. I think everyone remembers when Dr. Rice went on television and talked about the mushroom cloud that we could get courtesy of Saddam Hussein--an evil tyrant, absolutely. In my opinion, as I said in the committee, he ought to rot. So let's not get confused on that point. I do not know any American who feels any differently. The question is, How many people had to die? That is an important question. How many people had to be wounded? That is an important question.

Let me tell you, 1,368 soldiers are dead, as of the latest numbers that we got this morning from the Department of Defense, and 10,502 wounded. My understanding is that about a third of them may well come home in tremendous need of mental health counseling to try to help them cope with the horrors they have seen, those brave, incredible soldiers. As I said in the committee, and I say it again on the floor of the Senate, not one of them died in vain. Not one of them got injured in vain because when your Commander in Chief sends you to fight in a war, it is the most noble of things to do that. And they have done that.

President Bush, in his inaugural address, talked about bringing freedom to countries that do not have it. He did not specify how. Now, the nongovernmental organization, Freedom House, estimates there are 49 countries in the world that are not free. The group believes there are another 54 countries that are considered only partly free. I worry about sending more troops on military missions based on hyped up rhetoric. That is why these questions are so important.

So the first set of questions that I posed to Dr. Rice had to do with her comments about Saddam's nuclear program. On July 30, 2003, Dr. Rice was asked by PBS NewsHour's Gwen Ifill if she continued to stand by the claims made about Saddam's nuclear program in the days and months leading up to the war.

In what appears to be an effort to downplay the nuclear weapons scare tactics, she said:

It was a case that said he is trying to reconstitute. He's

trying to acquire nuclear weapons.

And then she says:

Nobody ever said that it was going to be the next year. . .

.

Well, that was false, because 9 months before that, this is what the President said:

If the Iraqi regime is able to produce, buy, or steal an

amount of highly enriched uranium a little larger than a

single softball, it could have a nuclear weapon in less than

a year.

So she tells the American people nobody ever said he would have a weapon within a year, when in fact the President himself made that comment.

Then, later, a year after she said nobody has ever said this, she herself says it:

. . . the intelligence assessment was that he was

reconstituting his nuclear programs;

that, left unchecked, he would have a nuclear weapon by the

end of the year. . . .

That is what she says to Fox News.

So first she says nobody ever said it. We showed her the fact that the President did. And then she contradicts herself. She contradicts the President and then she contradicts herself.

Now, this is very troubling. I wanted to give her a chance to correct the record. Did Dr. Rice correct the record? Let me tell you what she said. She had two responses. First she said to this committee, my committee:

The fact is that we did face a very difficult intelligence

challenge in trying to understand what Saddam Hussein had in

terms of weapons of mass destruction.

Notice she does not mention the word ``nuclear weapons.'' And she says: We had a very difficult challenge. But that is a contradiction because on July 31, 2003, this is what she told a German TV station:

Going into the war against Iraq, we had very strong

intelligence. I've been in this business for 20 years. And

some of the strongest intelligence cases that I've seen. . .

. We had very strong intelligence going in.

So she tells the committee: We faced a difficult intelligence challenge--when she had told a German TV station: It was the best intelligence we ever had. This is contradictory, plus she never ever addresses the issue that we asked her about. Why did you contradict the President and why did she contradict herself?

Then she had a second response. She pointed to the Duelfer report and cited it but failed to tell the whole story where the Duelfer report said:

Saddam Hussein ended the nuclear program in 1991 following

the Gulf War.

There you go. She never said that. She never cited that. She cited other quotes from the Duelfer report.

So her answers to the questions I asked her, saying once that Saddam would not have a weapon within a year, and another to me saying he would, her answers are completely nonresponsive to the question and raise more credibility lapses.

Then we have another area of aluminum tubes. On September 8, 2002, Dr. Rice was on CNN's Late Edition with Wolf Blitzer and made this statement:

We do know that there have been shipments going . . . into

Iraq, for instance, of aluminum tubes that really are only

suited to . . . nuclear weapons programs. . . .

And then President Bush repeated the same thing:

Our intelligence sources tell us that (Saddam) has

attempted to purchase high-strength aluminum tubes suitable

for nuclear weapons production.

I pointed out to Dr. Rice that the Department of Energy thought otherwise as far back as April 11, 2001. They said the ``specifications [for the tubes] are not consistent with a gas centrifuge end use. . . .''

On May 9, 2001, they said:

The Intelligence Community's original analysis of these

tubes focused on their possible use in developing gas

centrifuges for the enrichment of uranium. Further

investigation reveals, however, Iraq has purchased similar

aluminum tubes previously to manufacture chambers for a

multiple rocket launcher.

In other words, not suitable for nuclear weapons.

Then in July 2002, Australian intelligence said tube evidence is ``patchy and inconclusive.'' And IAEA said they are ``not directly suitable'' for uranium enrichment and are ``consistent'' with making ordinary artillery rockets.

So we laid this all out there for Dr. Rice, and she refused again to correct the record. She had a chance.

This is what she said at the hearing after she saw all of this:

We didn't go to war because of aluminum tubes.

That is what she said to the committee. Well, if that is the case, why did President Bush cite the aluminum tubes in his speech in which he made the case for the war? He said:

Our intelligence sources tell us that he [Saddam] has

attempted to purchase high strength aluminum tubes suitable

for nuclear weapons production.

So you can't say that the aluminum tubes were not a reason for going to war when the President used it in his speech where he was building support for the war. She doesn't answer the question. She doesn't correct the record. It is very troubling.

The third issue I raised was the matter of linking Saddam to al-Qaida which she did over and over again. I voted for the war against Osama bin Laden. I believed the President when he said we are going to get him dead or alive. I thought we wouldn't stop--we wouldn't turn away-- and that we would not end until we broke the back of al-Qaida.

Well, unfortunately, when we went into Iraq--and this was sold to us in part by Dr. Rice; she viewed that as her job; I think the President gave that job to her--we took our eye off al-Qaida. We took our eye off bin Laden. And the consequences are being seen and felt.

Dr. Rice told the committee that the terrorists ``are on the run.'' The truth is, they are now in 60 countries when before 9/11 they were in 45 countries.

I want to read to you a paragraph that best expresses my views on the impact of the Iraqi war on the war against terrorism. It was written by one of the world's experts on terror, Peter Bergen, 5 months ago:

What we have done in Iraq is what bin Laden could not have

hoped for in his wildest dreams: We invaded an oil-rich

Muslim nation in the heart of the Middle East, the very type

of imperial adventure that bin Laden has long predicted was

the United States' long-term goal in the region. We deposed

the secular socialist Saddam, whom bin Laden long despised,

ignited Sunni and Shia fundamentalist fervor in Iraq, and

have now provoked a ``defensive'' jihad that has galvanized

jihad-minded Muslims around the world. It is hard to imagine

a set of policies better designed to sabotage the war on

terrorism.

This conclusion was supported by the CIA Director's think tank.

I ask unanimous consent to print in the Record an article that describes this recent report that says Iraq has replaced Afghanistan as the training ground for the next generation of ``professionalized'' terrorists.

Here is the thing. Dr. Rice told the American people that there were strong ties between Saddam Hussein's Iraq and Osama bin Laden and al-Qaida. These are her words:

We clearly know that there were in the past and have been

contacts between senior Iraqi officials and members of al-

Qaeda going back for actually quite a long time.

And there are some al-Qaeda personnel who found refuge in

Baghdad.

Now, I want to show a map that the State Department put out, and it was accompanied by a letter from President Bush, a month after 9/11. Here is the map. The red indicates where there are al-Qaida cells. Unfortunately, we notice the United States is red. That is why we have to win this war. This is the list where al-Qaida or affiliated groups have operated, and this is a month after 9/11, put out by this administration. No Iraq. So how do you then go on television, look the American people in the eye, and tell them that in fact--and I will go back to her quote again:

We clearly know that there were in the past and have been

contacts between senior Iraqi officials and members of al-

Qaeda going back for actually quite a long time.

And there are some al-Qaeda personnel who found refuge in

Baghdad.

She did not tell the full story there, and I gave her a chance to do it.

It is really troubling to me. After all this time, these are the things she could have said: I never checked out that map. You are right, Senator, there were no al-Qaida there. But she didn't do that. She could have listened to what the experts were saying about how bin Laden loathed Saddam Hussein, two despicable tyrants who hated each other.

Peter Bergen said:

. . . I met bin Laden in '97 and . . . asked him at the end

of the interview . . . his opinion of Saddam Hussein. And

[bin Laden] said, ``Well, Saddam is a bad Muslim and he took

Kuwait for his own self-aggrandizement.''

In November 2001, the former head of the Saudi intelligence said:

Iraq doesn't come very high in the estimation of Osama bin

Laden. . . .He thinks of [Saddam Hussein] as an apostate, an

infidel, or someone who is not worthy of being a fellow

Muslim.

Then the bipartisan 9/11 Commission says there is ``no collaborative'' relationship between Iraq and al-Qaida, and Dr. Rice received that memo on September 18, 2001, and still she went before the American people. When I asked her about it, she said:

As to the question of al Qaeda and its presence in Iraq, I

think we did say that there was never an issue of operational

control . . . that Saddam Hussein had nothing to do with 9/11

as far as we know or could tell.

It wasn't a question of operational alliance. It was a

question of an attitude about terrorism that allowed Zarqawi

to be in Baghdad and to operate out of Baghdad.

Well, those statements continued to mislead. There is no question about it. When she says there wasn't an operational alliance and she believed there never was, why was it that aboard the USS Abraham Lincoln, when President Bush had that famous sign ``mission accomplished,'' he said:

The liberation of Iraq is a crucial advance in the campaign

against terror. We have removed an ally of al Qaeda.

How do you tell the committee that this administration never thought there was an operational link, when the President, standing on the USS Abraham Lincoln, was saying mission accomplished, and the major fighting is behind us?

He said:

In the war against Saddam, we have removed an ally of al

Qaeda.

It isn't right to continue this kind of talk when you already know from the 9/11 Commission that it isn't true, and you know from looking at the State Department that it wasn't true. Yet it all continues.

In her point about allowing Zarqawi to be in Baghdad, she failed to mention a CIA document that was reportedly sent to the White House in September 2004 that states there is no conclusive evidence that Saddam harbored Zarqawi.

Last October, a senior U.S. official told ABC News there was, in fact, no evidence that Saddam even knew Zarqawi was in Baghdad. So we are not being told the whole truth. We are not being given all of the facts. I have to say that I think it is a disservice to the American people.

The fourth issue I raised with Dr. Rice concerns U.S. relations with Iran during the Iraq-Iran war. That sounds like, why would I raise that because that war was in the 1980s? It is important because, in making her case for the war in Iraq, Dr. Rice cited Saddam's deplorable use of chemical weapons during the Iran-Iraq war. It certainly was a sin against humanity. She failed to mention, however, that it was Special Envoy Donald Rumsfeld--here he is in this picture--in December 1983 who met with Saddam 1 month after the United States confirmed he was using chemical weapons almost daily against Iran. In an attempt to support Iraq during that war, Iraq was removed from the terrorism list in 1982. None other than Donald Rumsfeld was giving the good news to Saddam Hussein and tried to restore full diplomatic relations. As a matter of fact, during this whole Iran-Iraq war, we all know the story that American firms were selling materials to Saddam Hussein.

Now, this is what Dr. Rice said. She said:

I will say it right now. The U.S. Government has often, as

the President said, supported regimes in the hope that they

would bring stability. We have been in the Middle East

sometimes blind to the freedom deficit. We are not going to

do that anymore. What happened with Saddam is probably

evidence that that policy was not a very wise policy.

That is an understatement. It was a horrific policy. It was a terrible policy. It was a policy of appeasing Saddam Hussein, making sure that he had the weapons, because we were essentially taking his side quietly in the Iran-Iraq war, and Donald Rumsfeld was super involved in it, and here is the picture to prove it.

Now, I do appreciate that Dr. Rice said it probably was not a very wise policy. I was glad to hear her say that. But you know what. She doesn't explain to us why. When she cited Iraq's use of chemical weapons against Iran as a justification for the U.S. attack on Iraq, she doesn't mention that the U.S. Government was working at that very same time to reestablish robust relations with Saddam. Indeed, our own Government took Saddam off the terror list, and the American people deserve to know that from her, when she advanced this issue as a reason for the war. Full disclosure. Give the whole story.

Mr. President, how much time do I have remaining?

Mr. President, I raise the issue of Dr. Rice's opposition to a provision in the intelligence reform bill that would have outlawed the use of cruel, inhumane, or degrading treatment of foreign prisoners by intelligence officials. The section of this provision is here. It was passed unanimously by the Senate. The overall amendment was written by Senators McCain and Lieberman, but this particular provision was written by Senator Durbin:

Prohibition on torture or cruel, inhumane, or degrading

treatment or punishment.

In general, no prisoner shall be subject to torture or

cruel, inhumane, or degrading treatment or punishment that is

prohibited by the Constitution, laws, or treaties of the

United States.

That is very straightforward. When I asked Dr. Rice, why did you sign a letter with Mr. Bolton and object to this provision and ask that it be stricken, she had a couple of different responses. The first response she gave me was:

This is duplicative of language that was in the Defense

Department bill.

So I checked with the authors of this provision, and I said: Is it true that this is duplicative? They said the language is in the Department of Defense, but it does not apply to the CIA and intelligence officers who work outside of the DOD. So I explained it to her, and she argued with me and she said it is not true, it is duplicative. I said: Do you think Senators McCain, Lieberman, and Durbin don't know what they are doing when they added this to the intelligence bill? She didn't answer. The fact is, this is not duplicative. This is necessary so that we cover those intelligence officials who may not be part of the Department of Defense but are part of other agencies not covered by the Department of Defense.

And then she went on and said:

We did not want to afford to people who did not--shouldn't

enjoy certain protections those protections. And the Geneva

Conventions should not apply to terrorists like al-Qaida.

They can't or you will stretch the meaning of the Geneva

Convention.

That was her second problem with it, which was that you are granting more rights than the Geneva Conventions. However, this explanation makes no sense because the following language was also part of this, which is:

Nothing in this section shall affect the status of any

person under the Geneva Conventions or whether any person is

entitled to the protections of the Geneva Conventions.

So she gave two reasons as to why she wrote a letter and demanded this be removed from the intelligence bill, neither of which is true. It is not duplicative, and there is no problem with the Geneva Conventions because we make a special exception for them.

But that is not all. The next day, Dr. Rice came back and changed what she said the day before. She said she doesn't oppose the subsection that clearly prohibited torture and cruel, inhumane, or degrading treatment. She said she opposes other provisions in the section.

Well, Mr. President, this was the operative language of the section. That second day's excuse just doesn't hold up under scrutiny because she wrote in a letter--this is what Dr. Rice wrote to the committee.

This says:

The administration also opposes [she names the section]

which provides legal protections to foreign prisoners to

which they are not now entitled under applicable law and

policy.

And she says that section 1095 of the Defense Authorization Act already addresses this issue. So Dr. Rice's own words in the letter contradict what she told the committee.

Now, this issue of torture is one that matters. It matters to me for many reasons. The first is it is about our humanity. It is about our humanity. Second is that it is about our soldiers, who may find themselves in captivity and in a circumstance where they might well get treated the way we are treating people we capture. That is why the protective words here and living up to our treaties or obligations of our Constitution and international treaties are so important. It is not some vague academic discussion; it is very serious.

Now, I went and saw, as many colleagues did, the pictures from Abu Ghraib prison. As long as I live, they will be seared in my memory. There are a lot more pictures that the public didn't see. I can tell you--and I think I can say this of most of my colleagues I was sitting with from both sides of the aisle--I could barely watch what was shown.

I am sometimes torn to talk about what I saw. I have done it in small groups where my constituents have asked me what I saw, but I will not do it today. I do not want to do it, but let it be said that the kinds of pictures that I saw do not reflect our country or our values. We have to be united on this.

Senator Dodd asked Dr. Rice to please tell us her personal views on torture, and he laid out a couple of examples of torture. She demurred and would not respond to those specific questions. I thought that was a moment in time where she could have sent out a signal to the whole world about America. She said for sure that Abu Ghraib was terrible. She was eloquent on the point. In fact, I will read to my colleagues what she said right after Abu Ghraib:

What took place at the Abu Ghraib prison does not represent

America. Our nation is a compassionate country that believes

in freedom. The U.S. government is deeply sorry for what has

happened to some Abu Ghraib prisoners and people worldwide

should be assured that President Bush is determined to learn

the full truth of the prisoner reports in Iraq.

Those comments at that time were very important. They were the type of comments that I think pull us all together. It was a comment that reflected humanity.

Then we have this language that she writes a couple of months after she makes this beautiful speech in October saying she opposes this provision that says no prisoner shall be subject to torture or cruel, inhuman or degrading treatment or punishment that is prohibited by the Constitution, laws, or treaties of the United States. She writes a letter opposing this section after she makes this beautiful speech.

When I asked her to explain it, she gives me reasons that just do not hold up, that it is duplicative, which it is not, that she really did not oppose it, which cannot possibly be true because we have her letter in writing where she did.

There is no doubt that Dr. Rice has the resume, the story, the intelligence, and the experience to be Secretary of State. She certainly is loyal to this President, we know that, and I think that is important. The President wants to have someone who is loyal. He should also want to have someone who will be independent such as Colin Powell was.

After 9 hours of grueling questions and answers before the committee, she proved her endurance for the job. In responding to me, she used a very clever tactic that we all learn in politics, which is to go after the questioner, why are you attacking me, and then do not answer the questions. It was OK that she did that. I did not mind that she did that. But she did not answer the questions. That is the point.

I believe the committee gave Dr. Rice the opportunity to speak candidly and set the record straight. It is not only my questions. Senator Biden asked her how many Iraqi security forces were trained, and without blinking an eye she said 120,000. And he said, wait a minute--and anyone who knows Senator Biden knows that he kind of roots for someone when they sit in the hot seat--let us really be candid here. He said: I went to Iraq and I was told by the military that there is nothing close to 120,000. He said he was told there were 4,000. She stuck by the 120,000.

Later, when others were asked in the administration, such as Ambassador Negroponte, he would not put out a number but he sure did not say 120,000.

Everyone with a heart and a pulse knows it is not 120,000 trained troops, because as Senator Biden said at that hearing, if there are 120,000 trained Iraqi troops to protect the Iraqi people, why in God's name are we there in the numbers we are and keeping people there, who are leaving their families, for extra tours of duty? She would not budge.

I am troubled because we gave Dr. Rice every opportunity to speak candidly, set the record straight, and she just did not do that.

In her role as National Security Adviser, she was not responsible for coming to the Senate Foreign Relations Committee or the House equivalent committee. Now she is going to be responsible for that. She could not have

a friendlier chairman than Senator Lugar in terms of being given every opportunity to work with our committee. I know Senator Biden and Senator Lugar work together just like brothers. This is a very bipartisan committee. We are going to see Dr. Rice there very often because she will be confirmed. I hope when she comes back before the committee that she will be more candid with the committee.

At this time I am judging her on her answers to these questions. She dodged so many of them and again resorted to half the story and even got herself in deeper water in some of her responses. So I cannot support this nomination.

The cost of the policy in Iraq, a policy that she embraced wholeheartedly, a policy that she did, in fact, bring to the American people and she led them to certain conclusions that turned out not to be true, whether it was the aluminum tubes, the ties to al-Qaida, whether it was her half argument on the Iran-Iraq war, whether it was her obvious contradictory statements on we never said he would have a nuclear weapon in a year one day and then the next year she said we did not say that, it is too hard to overlook these things.

I will close with the Martin Luther King quote, which I will not recite exactly but I do agree that our lives begin to end when we stop caring about things that matter. Accountability matters. Truth telling matters. The whole truth matters. Responsibility matters. The advice and consent role of the Senate is one that is really very important. I hope my colleagues on both sides will recognize that this Senate is at its best when we have some of these tough debates.

It is not as if we are having a vote to confirm a Cabinet position that will not have as much reach. It is not as if we are voting to confirm a position where the individual is brand new and does not have a record. This is a very important position in a time of war where the nominee had a record of making many statements to the American people. I believe that out of respect for the American people, out of respect for the Senate, out of respect for the Foreign Relations Committee, and out of respect to Condoleezza Rice herself, we needed to ask these questions.

Now that he is on the floor again, I would say to Senator Lugar what I said before, that he is such a fair chairman. All of us on the committee have such respect for him. I look forward to working with him on many issues. I think there will be many times where we will be voting the same way. We will not be today, but that is just one time. There will be many other occasions where we will be together.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, how much time do I have?

I thank the Chair.

Mr. President, in Federalist No. 77, Alexander Hamilton wrote:

It will readily be comprehended, that a man who had himself

the sole disposition of offices, would be governed much more

by his private inclinations and interests, than when he was

bound to submit the propriety of his choice to the discussion

and determination of a different and independent body, and

that body an entire branch of the legislature. The

possibility of rejection would be a strong motive to care in

proposing.

Although Hamilton explains the importance of the role of the Senate in the appointment of officers of the United States, neither he nor the Constitution is specific about what criteria Senators must use to judge the qualifications of a nominee. The Constitution only requires that the Senate give its advice and consent. It is therefore left to Senators to use their own judgment in considering their vote. The factors involved in such judgments may vary among Senators, among nominees, and may even change in response to the needs of the times.

The position of Secretary of State is among the most important offices for which the Constitution requires the advice and the consent of the Senate. It is the Secretary of State who sits at the right hand of the President during meetings of the President's Cabinet. The Secretary of State is all the more important today, considering the enormous diplomatic challenges our country will face in the next 4 years.

I commend the Foreign Relations Committee for its work in bringing the

nomination of Dr. Condoleezza Rice to the Senate. Chairman Richard Lugar conducted 2 days of hearings for this nominee and the debate that began in the committee on this nomination is now being continued on the floor of the Senate. Senator Biden also provided a voice in great foreign policy experience during those hearings. I was particularly impressed by Senator Boxer who tackled her role on the committee with passion and with forthrightness, as did Senator Kerry.

There is no doubt that Dr. Rice has a remarkable record of personal achievement. She obtained her bachelor's degree at the tender age of 19--get that. Speaking as someone who did not earn a bachelor's degree until I had reached 77 years of age, I have a special appreciation for Dr. Rice's impressive academic achievement. It was a remarkable achievement indeed.

She then obtained a doctorate in international studies and quickly rose through the academic ranks to become provost of Stanford University. Dr. Rice has also gathered extensive experience in foreign policy matters. She is a recognized expert on matters relating to Russia and the former Soviet Union. She has twice worked on the National Security Council, once as the senior adviser on Soviet issues and most recently for 4 years as National Security Adviser.

Dr. Rice has had ample exposure to the nuances of international politics and by that measure she is certainly qualified for the position of Secretary of State.

The next Secretary of State will have large shoes to fill. I have closely watched the career of Colin Powell since he served as National Security Adviser to President Reagan and we worked together during the Senate consideration of the INF treaty of 1988. Colin Powell distinguished himself in his service as chairman of the Joint Chiefs of Staff, particularly during the 1991 Gulf War. When his nomination came before the Senate in 2001, I supported his confirmation and I supported it strongly based upon the strength of his record.

The vote that the Senate will conduct tomorrow, however, is not simply a formality to approve of a nominee's educational achievement or level of expertise. I do not subscribe to the notion that the Senate must confirm a President's nominees barring criminality or lack of experience. The Constitution enjoins Senators to use their judgment in considering nominations. I am particularly dismayed by accusations I have read that Senate Democrats, by insisting on having an opportunity to debate the nomination of Dr. Rice, have somehow been engaged in nothing more substantial than ``petty politics,'' partisan delaying tactics. Nothing, nothing, nothing could be further from the truth.

The Senate's role of advice and consent to Presidential nominations is not a ceremonial exercise. Here is the proof. Here is the record. Here is the document that requires more than just a ceremonial exercise.

I have stood in the Senate more times than I can count to defend the prerogatives of this institution and the separate but equal--with emphasis on the word ``equal''--powers of the three branches of Government. A unique power of the legislative branch is the Senate's role in providing advice and consent on the matter of nominations. That power is not vested in the Senate Foreign Relations Committee, it is not vested in any other committee, nor does it repose in a handful of Senate leaders. It is not a function of pomp and circumstance, and it was never intended by the Framers to be used to burnish the image of a President on Inauguration Day. Yet that is exactly what Senators were being pressured to do last week, to acquiesce mutely to the nomination of one of the most important members on the President's Cabinet without the slightest hiccup of debate or the smallest inconvenience of a rollcall vote.

And so, Mr. President, we are here today to fulfill our constitutional duty to consider the nomination of Dr. Rice to be Secretary of State.

I have carefully considered Dr. Rice's record as National Security Adviser in the 2 months that have passed since the President announced her nomination to be Secretary of State, and that record, I am afraid, is one of intimate--intimate--involvement in a number of administration foreign policies which I strongly oppose. These policies have fostered enormous opposition, both at home and abroad, to the White House's view of America's place in the world.

That view of America is one which encourages our Nation to flex its muscles without being bound by any calls for restraint. The most forceful explanation of this idea can be found in the ``National Security Strategy of the United States,'' a report which was issued by the White House in September 2002. Under this strategy, the President lays claim to an expansive power to use our military to strike other nations first, even if we have not been threatened or provoked to do so.

There is no question, of course, that the President of the United States has the inherent authority to repel attacks against our country, but this National Security Strategy is unconstitutional on its face. It takes the checks and balances established in the Constitution that limit the President's ability to use our military at his pleasure and throws them out the window.

This doctrine of preemptive strikes places the sole decision of war and peace in the hands of a President--one man or woman--and undermines the constitutional power of Congress to declare war. The Founding Fathers required that such an important issue of war be debated by the elected representatives of the people, the people out there, in the legislative branch precisely, because no single man could be trusted with such an awesome power as bringing a nation to war by his decision alone. And yet that is exactly what the National Security Strategy proposes.

Not only does this pernicious doctrine of preemptive war contradict the Constitution, it barely acknowledges the Constitution's existence. The National Security Strategy makes only one passing reference, one small passing reference, to the Constitution. It states that ``America's constitution''--that is ``constitution'' with a small ``c''--``has served us well''--as if the Constitution does not still serve this country well. One might ask if that reference to the Constitution is intended to be a compliment or an obituary.

As National Security Adviser, Dr. Rice was in charge of developing the National Security Strategy. She also spoke out forcefully in favor of the dangerous doctrine of preemptive war. In one speech, she argues that there need not be an imminent threat before the United States attacked another nation. ``So as a matter of common sense,'' said Dr. Rice, on October 1, 2002, ``the United States must be prepared to take action, when necessary, before threats have fully materialized.'' But that ``matter of common sense'' is nowhere to be found in the Constitution. For that matter, isn't it possible to disagree with this ``matter of common sense''? What is common sense to one might not be shared by another. What's more, matters of common sense can lead people to the wrong conclusions. John Dickinson, the chief author of the Articles of Confederation, said in 1787, ``Experience must be our only guide; reason may mislead us.''

As for me, I will heed the experience of the Founding Fathers as enshrined in the Constitution over the reason and ``common sense'' of the administration's National Security Strategy.

We can all agree that the President, any President, has the inherent duty and power to repel an attack on the United States. He doesn't have to call Congress into session to do that. That is a matter that confronts the Nation immediately and the people and our institutions are in imminent danger.

But where in the Constitution can the President claim the right to strike another nation before it has even threatened our country, as Dr. Rice asserted in that speech? To put it plainly, Dr. Rice has asserted that the President holds far more of the warpower than the Constitution grants him.

This doctrine of attacking countries before a threat has ``fully materialized'' was put into motion as soon as the National Security Strategy was released.

Beginning in September 2002, Dr. Rice also took a position on the frontlines of the administration's efforts to hype the danger of Saddam's weapons of mass destruction. Dr. Rice is responsible for some of the most overblown rhetoric that the administration used to scare the American

people into believing there was an imminent threat from Iraq. On September 8, 2002, Dr. Rice conjured visions of American citizens being consumed by mushroom clouds. On an appearance on CNN, she warned, ``The problem here is that there will always be some uncertainty about how quickly he,'' meaning Saddam, ``can acquire nuclear weapons. But we don't want the smoking gun to be a mushroom cloud.''

Dr. Rice also claimed that she had conclusive evidence about Iraq's alleged nuclear weapons program. During that same interview, she also said:

We do know that he is actively pursuing a nuclear weapon.

We do know that there have been shipments going into . . .

Iraq, for instance, of aluminum tubes . . . that are really

only suited for nuclear weapons programs.

Well, my fellow Senators, we now know that Iraq's nuclear program was a fiction. Charles Duelfer, the chief arms inspector of the CIA's Iraq Survey Group, reported on September 30, 2004 as follows:

Saddam Husayn ended the nuclear program in 1991 following

the Gulf War. [The Iraq Survey Group] found no evidence to

suggest concerted efforts to restart the program.

But Dr. Rice's statements in 2002 were not only wrong, they also did not accurately reflect the intelligence reports of the time. Declassified portions of the CIA's National Intelligence Estimate from October 2002 make it abundantly clear that there were disagreements among our intelligence analysts about the state of Iraq's nuclear program. But Dr. Rice seriously misrepresented their disputes when she categorically stated:

We do know that [Saddam] is actively pursuing a nuclear

weapon.

Her allegation also misrepresented to the American people the controversy in those same intelligence reports about the aluminum tubes. Again, Dr. Rice said that these tubes were ``really only suited for nuclear weapons programs.'' But intelligence experts at the State Department and the Department of Energy believed that those tubes had nothing to do with building a nuclear weapon, and they made their dissent known in the October 2002 National Intelligence Estimate. This view, which was at odds with Dr. Rice's representations, was later confirmed by the International Atomic Energy Agency and our own CIA arms inspectors.

Well, Dr. Rice made other statements that helped to build a case for war by implying a link--a link--between Iraq and September 11. On multiple occasions, Dr. Rice spoke about the supposed evidence that Saddam and al-Qaida were in league with each other. For example, on September 25, 2002, Dr. Rice said on the PBS NewsHour:

No one is trying to make an argument at this point that

Saddam Hussein somehow had operational control of what

happened on September 11, so we don't want to push this too

far, but this is a story that is unfolding, and it is getting

clear, and we're learning more. . . . But yes, there clearly

are contact[s] between Al Qaeda and Iraq that can be

documented; there clearly is testimony that some of the

contacts have been important contacts and that there is a

relationship there.

Well, what Dr. Rice did not say was that some of those supposed links were being called into question by our intelligence agencies, such as the alleged meeting between a 9/11 ringleader and an Iraqi intelligence agent in Prague that has now been debunked. These attempts to connect Iraq and al-Qaida appear to be a prime example of cherry-picking intelligence to hype the supposed threat of Iraq while keeping contrary evidence away from the American people, wrapped up in the redtape of top secret reports.

Dr. Rice pressed the point even further, creating scenarios that threatened tens of thousands of American lives, even when that threat was not supported by intelligence. On March 9, 2003, just 11 days before the invasion of Iraq, Dr. Rice appeared--where?--on Face the Nation. What did she say? She said:

Now the al-Qaida is an organization that's quite dispersed

and--and quite widespread in its effects, but it clearly has

had links to the Iraqis, not to mention Iraqi links to all

kinds of other terrorists. And what we do not want is the day

when Saddam Hussein decides that he's had enough of dealing

with sanctions, enough of dealing with, quote, unquote,

``containment,'' enough of dealing with America, and it's

time to end it on his terms, by transferring one of these

weapons, just a little vial of something, to a terrorist for

blackmail or for worse.

How scary is that?

But the intelligence community had already addressed this scenario with great skepticism. In fact, the CIA's National Intelligence Estimate from October 2002 concluded that it had ``low confidence'' that Saddam would ever transfer any weapons of mass destruction-- weapons that he did not have, as it turned out--to anyone outside of his control. This is yet more evidence of an abuse of intelligence in order to build the case for an unprovoked war with Iraq.

And what has been the effect of the first use of this reckless doctrine of preemptive war? In a most ironic and deadly twist, the false situation described by the administration before the war, namely, that Iraq was a training ground for terrorists poised to attack the United States, is exactly the situation that our war in Iraq has created.

But it was this unjustified war that created the situation that the President claimed he was trying to prevent. Violent extremists have flooded into Iraq from all corners of the world. Iraqis have taken up arms themselves to fight against the continuing U.S. occupation of their country.

According to a CIA report released in December 2004, intelligence analysts now see Iraq, destabilized by the administration's ill- conceived war, as the training ground for a new generation of terrorists. That is from the report ``Mapping the Global Future: Report of the National Intelligence Council's 2020 Project,'' page 94.

It should be profoundly disturbing to all Americans if the most dangerous breeding ground for terrorism has shifted from Afghanistan to Iraq simply because of the administration's ill-advised rush to war in March 2003.

Dr. Rice's role in the war against Iraq was not limited to building the case for an unprecedented, preemptive invasion of a country that had not attacked us first. Her role also extends to the administration's failed efforts to establish peace in Iraq.

In October 2003, 5 months after he declared ``mission accomplished,'' the President created the Iraq Stabilization Group, headed by Dr. Rice. The task of the Iraq Stabilization Group was to coordinate efforts to speed reconstruction aid to help bring the violence in Iraq to an end.

But what has the Iraq Stabilization Group accomplished under the leadership of Dr. Rice? When she took the helm of the stabilization group, 319 U.S. troops had been killed in Iraq. That number now stands at 1,368, as of today, Tuesday, January 25, 2005. More than 10,600 troops have been wounded, and what horrible wounds. The cost of the war has spiraled to $149 billion. That is $149 for every minute since Jesus Christ was born. And the White House is on the verge of asking Congress for another $80 billion.

Despite the mandate of the Iraq Stabilization Group, the situation in Iraq has gone from bad to worse. More ominously, the level of violence only keeps growing week after week after week, month after month, and no administration official, whether from the White House, the Pentagon, or Foggy Bottom has made any predictions about when the violence will finally subside.

Furthermore, of the $18.4 billion in Iraqi reconstruction aid appropriated by Congress in October 2003, the administration has spent only $2.7 billion. Now, with these funds moving so slowly, it is hard to believe that the Iraq Stabilization Group has had any success at all in speeding the reconstruction efforts in Iraq. For all of the hue and cry about the need to speed up aid to Iraq, one wonders if there should be more tough questions asked of Dr. Rice about what she has accomplished as the head of this group.

There are also many unanswered questions about Dr. Rice's record as the National Security Adviser. Richard Clarke, the former White House counterterrorism adviser, had leveled scathing criticism against Dr. Rice and the National Security Council for failing to recognize the threat from al-Qaida and Osama bin Laden in the months leading up to the September 11, 2001, terrorist attack. In particular, Mr. Clarke states that he submitted a request on January 25, 2001, for an urgent meeting of the National Security Council on the threat of al-Qaida.

However, due to decisions made by Dr. Rice and her staff, that urgent meeting did not occur until too late. The meeting was not actually called until September 4, 2001.

Mr. Clarke, who was widely acknowledged as one of the Government's leading authorities on terrorism at that time, told the 9/11 Commission he was so frustrated with those decisions that he asked to be reassigned to different issues and the Bush White House approved that request.

Dr. Rice appeared before the 9/11 Commission on April 8, 2004, but, if anything, her testimony raised only more questions about what the President and others knew about the threat to New York City and Washington, DC, in the weeks before the attacks, and whether more could have been done to prevent them.

Why wasn't any action taken when she and the President received an intelligence report on August 6, 2001, entitled ``Bin Laden Determined to Attack Inside the United States''? Why did Dr. Rice and President Bush reassign Richard Clarke, the leading terrorism expert in the White House, soon after taking office in 2001? Why did it take 9 months for Dr. Rice to call the first high-level National Security Council meeting on the threat of Osama bin Laden?

As the Senate debates her nomination today, we still have not heard full answers from Dr. Rice to these questions.

In addition to Mr. Clarke's criticism, Dr. David Kay, the former CIA weapons inspector in Iraq, also has strong words for the National Security Council and its role in the runup to the war in Iraq. When Dr. Kay appeared before the Senate Intelligence Committee on August 18, 2004, to analyze why the administration's prewar intelligence was so wrong about weapons of mass destruction, he described the National Security Council as the ``dog that didn't bark'' to warn the President about the weaknesses of those intelligence reports.

Dr. Kay continued:

Every President who has been successful, at least that I

know of, in the history of this republic, has developed both

informal and formal means of getting checks on whether people

who tell him things are in fact telling him the whole truth.

. . . The recent history has been a reliance on the NSC

system to do it. I quite frankly think that that has not

served this President very well.

What Dr. Kay appeared to state was his view that the National Security Council, under the leadership of Dr. Rice, did not do a sufficient job of raising doubts about the quality of the intelligence about Iraq. On the contrary, based upon Dr. Rice's statements that I quoted earlier, her rhetoric even went beyond the questionable intelligence that the CIA had available on Iraq in order to hype the threats of aluminum tubes, mushroom clouds, and connections between Iraq and September 11.

In light of the massive reorganization of our intelligence agencies enacted by Congress last year, shouldn't this nomination spur the Senate to stop, look, and listen about what has been going on in the National Security Council for the last 4 years? Don't these serious questions about the failings of the National Security Council under Dr. Rice deserve a more thorough examination before the Senate votes to confirm her as the next Secretary of State?

Mr. President, accountability has become an old-fashioned notion in some circles these days. But accountability is not a negotiable commodity when it comes to the highest circles of our Nation's Government. The accountability of Government officials is an obligation, not a luxury. Yet accountability is an obligation that this President and this President's administration appear loathe to fulfill.

Instead of being held to account for their actions, the architects of the policies that led our Nation down the road into war with Iraq, policies based on faulty intelligence and phantom weapons of mass destruction, have been rewarded by the President with accolades and promotions. Instead of admitting to mistakes in the war on Iraq, instead of admitting to its disastrous aftermath, the President and his inner circle of advisers continue to cling to myths and misconceptions.

The only notion of accountability that this President is willing to acknowledge is the November elections, which he has described as a moment of accountability and an endorsement of his policies. Unfortunately, after-the-fact validation of victory is hardly the standard of accountability that the American people have the right to expect from their elected officials. It is one thing to accept responsibility for success; it is quite another to accept accountability for failure. Sadly, failure has tainted far too many aspects of our Nation's international policies over the past 4 years, culminating in the deadly insurgency that has resulted from the invasion of Iraq.

With respect to this particular nomination, I believe there needs to be accountability for the mistakes and missteps that have led the United States into the dilemma in which it finds itself today, besieged by increasing violence in Iraq, battling an unprecedented decline in world opinion, and increasingly isolated from our allies due to our provocative, belligerent, bellicose, and unilateralist foreign policy. Whether the administration will continue to pursue these policies cannot be known to Senators today as we prepare to cast our vote. At her confirmation hearing on January 18, Dr. Rice proclaimed that our interaction with the rest of the world must be a conversation, not a monologue, but 2 days later, President Bush gave an inaugural address that seemed to rattle sabers at any nation that he does not consider to be free.

Before Senators cast their votes, we must wonder whether we are casting our lot for more diplomacy or more belligerence, reconciliation, or more confrontation. Which face of this Dr. Jekyll and Mr. Hyde foreign policy will be revealed in the next 4 years?

Although I do not question her credentials, I do oppose many of the critical decisions Dr. Rice has made during her 4 years as National Security Adviser. She has a record, and the record is there for us to judge. There remain too many unanswered questions about Dr. Rice's failure to protect our country before the tragic attacks of September 11, her public efforts to politicize intelligence, and her often stated allegiance to the doctrine of preemption.

To confirm Dr. Rice to be the next Secretary of State is to say to the American people and to the world that the answers to those questions are no longer important. Her confirmation will almost certainly be viewed as another endorsement of the administration's unconstitutional doctrine of preemptive strikes, its bullying policies of unilateralism, and its callous rejection of our longstanding allies.

Dr. Rice's record in many ways is one to be greatly admired. She is a very intelligent lady, very knowledgeable about the subject matter, very warm and congenial, but the stakes for the United States are too high. I cannot endorse higher responsibilities for those who helped to set our great country down the path of increasing isolation, enmity in the world, and a war that has no end. When will our boys come home? When will our men and women be able to sit down at the table with their families and their friends in their own communities again? For these reasons, I shall cast my vote in opposition to the confirmation of Condoleezza Rice to be the next Secretary of State.

I yield the floor.

Mr. President, I appreciate the remarks of the Senator from Oklahoma. I, too, want to speak on the confirmation of Condoleezza Rice to serve as Secretary of State. We are all aware, because it has been the subject of quite a bit of discussion and we have seen her in action for the last 4 years at the White House and even before that, of Dr. Rice's accomplishments. She is a woman of fantastic achievement, a profoundly talented individual who has excelled at virtually everything to which she has set her mind. I dare say there are few people in this Nation's history who would make both an excellent Secretary of State and an excellent commissioner of the National Football League. I am sure Dr. Rice, in keeping with her stated aspirations, will fill both roles with dedication, intellect, and passion in due time.

Yet the reaction to this nomination, which you would think would be a cause for great celebration, given the historic nature of this particular appointment, is also sadly predictable. For example, it is a shame to think that with the overwhelming voice of the people so recently expressed in the recent national elections and with the 109th Congress just having begun, with the President having been sworn in last week, with early pledges of bipartisanship and working together in the best interest of the American people, we are yet again already seeing the specter of partisan politics being brought to bear on this nomination.

Of course, the Senate does have a very important role in the confirmation process known as advice and consent. No one is questioning the right of any Senator, indeed the duty of every Senator, to ask hard questions and to determine to the best of their ability the qualifications of a nominee to serve in the office to which the President has chosen to appoint them. But there is a difference between exercising the role of advice and consent and the line that seems to have been crossed with impunity when it comes to the attacks we have seen on some of the President's nominees. Condoleezza Rice just happens to be the one we are focusing on today. We have seen much of the same vitriol and poison used to assassinate the character of people like Alberto Gonzales, another American success story, a personification of the American dream.

I would hope that no one in this body would feel it necessary to bring all the left-over angst of the campaign season to bear against a bright and honorable nominee such as the one who is presently before us. You may disagree with Dr. Rice's view of the world. You may take issue with some of her policy preferences. But to impugn her motives or the integrity of a woman held in such high esteem is a tactic that I believe is simply unacceptable and beneath the dignity of this body. Yet we see this tactic clearly, again, in the attempt to--first in the committee hearings, the Foreign Relations Committee, and even on the floor of the Senate--try to tie her actions to the tragic events at Abu Ghraib prison, the crimes that occurred by a handful of individuals that simply crossed the line between human decency and criminality. They were acts that violated U.S. policy and basic human rights. They were disgusting actions undertaken by sick individuals who are being investigated and being brought to justice--the most recent of which, of course, was the conviction and sentencing of Mr. Graner to 10 years in prison.

Now, my colleagues know well that at no point has Dr. Rice ever supported, condoned, or advocated such acts of torture or humiliation. I believe to try to link her, through some vague references, to these crimes is nothing more than a blatant attempt to score political points, to somehow demean her in her service, and to taint her nomination. It should not be necessary to raise these points, but I realize that in politics, particularly in Washington, a charge unanswered is too often a charge believed.

Let me just refer to a brief reference in the Schlesinger report--of course, referring to the former Secretary of Defense, who served on an independent commission with former Defense Secretary Harold Brown, who served in the Carter administration, as well as a former distinguished Member of the House of Representatives. They concluded after their investigation--and this was just one of, I believe, eight investigations. There are three more that are not yet completed. But this was the conclusion of the independent Schlesinger commission:

No approved procedures called for or allowed the kinds of

abuse that in fact occurred. There is no evidence of a policy

of abuse promulgated by senior officials or military

authorities.

So to suggest, to hint, to imply that this nominee, or any senior officials in the Bush administration has condoned or adopted a policy that resulted in the criminal abuses that occurred at Abu Ghraib is simply without foundation and any fact. Indeed, it is a scurrilous allegation, and the American people need to understand that. They also need to understand the motives why such allegations are made.

In addition to these inappropriate partisan attacks against a nominee who deserves our respect, there are a handful of my colleagues who have used this opportunity to roll out the same tired, old arguments concerning the war on terror, and particularly Operation Iraqi Freedom. We know that we are in the midst of a global war on terrorism. This is not just about Afghanistan and Iraq. This is not just about isolated incidents of terrorism. This is about a conflict that has been building for more than a decade and, indeed, will likely last a generation.

Since America suffered an attack on our own soil in New York in 1993, we have been hit at our embassies in Kenya and Tanzania; we have been hit at the Khobar Towers in Saudi Arabia; our Navy was hit at the USS Cole in Yemen; of course, we had the attacks of 9/11; and Bali, Madrid, and in Beslan. The list goes on and on.

In the aftermath of the attacks of September 11, President Bush decided, with the authorization of Congress at every turn, that if diplomacy would not yield a pacified Saddam, that if the U.N. declined to enforce its own resolutions requiring inspections and disarmament, we would, when necessary, use preemptive action against those who seek to harm America and those who threaten world peace and supply sanctuary to terrorists.

We also decided that it was in America's self-interest to take the battle to the terrorists where they live, where they plot, where they plan, and where they train and build weapons--not to wait until we are attacked again and where innocent civilians' lives are lost and innocent blood is shed. The post- 9/11 reality is that America must choose to fight this terrorist threat on their ground, or they will fight us on ours.

This is not some grand conspiracy of this current administration or any policy which is really strange to history or unknown to history. It was in 1941, after Pearl Harbor, when President Franklin Delano Roosevelt said:

If you hold your fire until you see the whites of their

eyes, you will never know what hit you.

That was Israel's policy in 1981 when it knocked out Saddam's Osirak nuclear reactor. The fact that Israel continues to exist today was in part because its leaders had the wisdom and courage to take on a growing threat by the use of preemptive action--sometimes called preventive self-defense--whenever it was necessary.

No one wants to imagine what could have happened if Iraq's nuclear program, which was well documented after Saddam invaded Kuwait in 1991, when we were surprised to learn after we repulsed that attack that Saddam's nuclear program was much further along than our intelligence authorities had previously thought. But no one wants to imagine what would have happened if Iraq had continued to develop its nuclear capability, or if they had been able to reconstitute their nuclear program after we left Iraq in 1991. It was a horrific possibility for America and the rest of the world, and indeed a responsibility of the leaders of this country and the free world to eliminate this gathering threat.

Ms. Rice has also been criticized for the belief that Saddam had stockpiles of weapons of mass destruction. But you know what? And the critics know this. The truth is, virtually every intelligence service in the world believed that Saddam had these weapons of mass destruction. Indeed, this was one of the premises for the Iraq Liberation Act in 1998. It was for the authorization given to then- President Clinton to use necessary force to remove this threat. Our intelligence, though, as we all now know with the benefit of 20/20 hindsight, proved to be incorrect--at least at the time that we entered Iraq--that Saddam had stockpiles of weapons of mass destruction. Of course, we have been undertaking the necessary reforms both in this body and in the intelligence community to stop that kind of intelligence failure from ever occurring again.

The critics should not be allowed to rewrite history. The fact is that no one party or person misled the rest of us--Democrat, Republican, or Independent. The truth is, we were all misled by this erroneous intelligence, and rather than point the finger of blame where no blame is due, what we ought to be about--and, indeed, what we have been doing--is correcting the reasons for that failure and making sure that it never happens again.

Yet even though we did not find stockpiles of WMD, the bottom line is this: This was not the only reason that Congress voted overwhelmingly to authorize the use of force against Saddam Hussein. Indeed, there are numerous other reasons set out in the resolution that passed this Senate by overwhelming margins. It is beyond debate that Saddam continued to have the intent to acquire WMD and there is little doubt that but for our intervention and the fact that he was pulled from a spider hole and put in prison awaiting future accountability at the hands of the Iraqi people that he would have fully reconstituted his program just as soon as he was able.

One does not have to take my word for it. Mr. Duelfer, who succeeded Mr. Kay, and was in charge of looking into the possibility that Saddam had WMD, concluded in September 2004:

Saddam wanted to recreate Iraq's WMD capability--which was

essentially destroyed in 1991--after sanctions were removed

and Iraq's economy stabilized. . . .

Indeed, that has been the evidence we learned in the oil-for-food scandal in the United Nations, that Iraq would siphon off money to stabilize and support his failing economy, but his job, he thought, was to wait out the sanctions in such a way that once the sanctions were removed he would reconstitute Iraq's WMD capability. To somehow point the finger of blame at this distinguished nominee, where she, like all of us, was given the erroneous reports from the intelligence community, is simply unjustified and unfounded and indeed, in the end, it is revisionist history.

Lest this point be lost in the debate and the fingerpointing, we are in Iraq for our own good and for the good of the world, and I might add for the good of the Iraqi people. September 11 taught us all a very important lesson, that security in the modern world depends on taking aggressive and focused action to prevent terrorist acts before they occur, not just opening a criminal investigation after innocent blood is shed.

We have marshaled the force of freedom in this fight, one of the most powerful weapons that we have in our arsenal, and indeed on this Sunday, as has been recounted over and over again, the Iraqi people will make their first major step toward self-government as a free Iraq.

There are some who continue to argue that we did not have the right plan to deal with postwar Iraq. We have hashed that argument out a hundred times. Yes, hindsight is always 20/20, and we did not know then what we

know now, but that is no real revelation. That really suggests, again, another failure of our intelligence-gathering capability and particularly our HUMINT, our human intelligence capability, which we are fixing.

I point out that it serves no one's interests, and certainly not the national interest of this country or the interests of the Iraqi people, to continue to try to point the finger of blame at past errors, particularly in connection with our intelligence-gathering capability. Indeed, even those who did not support the resolution authorizing the use of force must now concede that it is in our best interest not to have Iraq fail and become perhaps a sanctuary for terrorists. Even those who oppose this war should acknowledge at this point that it is in our best interest for Iraq to become a working democracy and to avoid strife and become a free and peaceful nation.

It is counterproductive, unless of course one's purpose is merely partisan politics, to dwell on the past at the expense of our present duty and our plans for the future. It is time to focus on what is our duty in Iraq, along with other nations, the coalition and the Iraqi people, and that is to secure Iraq, to help this new democracy take root, and to further the cause of freedom around the globe.

There is no question that Iraq continues to be a very fragile place, but in truth, Iraq is making solid progress on a difficult road when one takes into consideration the fact that Saddam had an iron grip on power in this nation a mere 2 years ago. Consider what has been accomplished. A valid voter registration list of 14.3 million names has been completed. More than 500 voter registration centers have been established to help Iraqis verify their registration status. Iraqis will vote on election day in the thousands of voting centers across that country and in 14 other countries, including the United States of America. Candidate lists for 111 political entities have been submitted for the national elections and, in total, 256 political entities, composed of 18,900 candidates, have registered to compete in 20 different elections: The national election, 18 provincial elections, and the Kurdistan regional government election.

These 254 entities include 27 individuals, 33 coalitions, and 196 parties, all demonstrating widespread enthusiasm for this opportunity they have for free and fair elections.

I believe we will see the true ramifications of freedom in Iraq over the next generation, and I believe this first election is a watershed at the beginning of this new generation of a free Iraq.

As responsible leaders rise to the forefront and the vestiges of tyranny are replaced by a fledgling republic, we will see that the victories won, the hardship that has been endured, and the lives risked and indeed tragically lost have not been in vain.

Before this election season that just concluded, or I thought concluded on November 2 but which seems to have continued now with attacks against the President's nominees--those who were unsuccessful in persuading the American public of the correctness of their opinions on November 2--I never thought I would hear anyone utter what I think is one of the most foolish notions yet. And yet I have heard the suggestion made again and again in the context of Dr. Rice's hearing. And it is the suggestion that Iraq today and the world as a whole is worse off than it was with Saddam Hussein in power.

Have these people somehow missed the fact that we found unspeakable horrors in Saddam's Iraq, torture cells, rape rooms, execution chambers, children's prisons. We found a legacy of terror and fear and vestiges of unimaginable cruelty. We have found that more than 1 million people are simply missing; 300,000 are dead, lying in mass graves throughout Iraq in nearly 100 reported sites, including one that I personally viewed a year ago last August. These mass graves are silent monuments to Saddam's ruthlessness left behind for all to see.

With due respect for my colleagues who advanced the idea that Iraq or America was better off with Saddam Hussein in power, to suggest that the world is safer when despots rule in palaces instead of serving time, being held accountable in jails, is to ignore the bulk, if not the entirety, of human history.

It was Senator Daniel Patrick Moynihan who enjoined against similar foreign policy foolishness in an earlier era when he said:

Unable to distinguish between our friends and our enemies

[you adopt] our enemies' view of the world.

I think we must also be sobered and cautioned by that injunction, and we should all be responsible enough to not let our desire to score partisan political points lapse into adopting our enemy's view of the world.

As President Bush urged just last week, America has the moral responsibility to take a stand for liberty as the guiding force in the world and the defining principle of this age. We have the strength and the will to see this purpose through.

I urge my colleagues to support a Secretary of State who understands the stakes, who sees the right course, and has the will to follow it.

In conclusion, I have talked about the attacks that have been directed on this honorable nominee and why I believe that they are unfounded and how I believe those who are disappointed, perhaps, in the way the election turned out on November 2 have continued their sort of political insurgency directed at the President but through his nominees for his Cabinet, and particularly Condoleezza Rice and Alberto Gonzales. I have said that while it is our responsibility as Senators to exercise with diligence our advice and consent function and to ask hard questions in good faith, there is a line that should not be crossed, which I believe has been crossed in the attacks made against these nominees, including Condoleezza Rice.

One reason I believe that is true is because of the evidence that I have in my hand. This is a solicitation, a fundraising solicitation sent out by the Democratic Senatorial Campaign Committee.

I ask unanimous consent this be printed in the Record at the conclusion of my remarks.

This is over the signature of Senator Barbara Boxer, who has been one of the most acerbic critics of this nominee. But at the same time she argues why this nominee should not be confirmed, she ties this to fundraising efforts by the Democratic Senatorial Committee.

She said in part:

The Republicans were expecting the Senate to confirm Dr.

Rice with little debate and questioning from the Foreign

Relations Committee.

I think we found that already not to be true. The distinguished chairman, who is in the Chamber now, held lengthy hearings and allowed all Senators a chance to ask numerous questions of this nominee, and we know now, from the 9 hours that have been agreed to as part of this debate, that, indeed, there is substantial debate about this nominee. But she goes on, from Senator Boxer's pen:

They didn't count on me to ask the tough questions. What

the Republicans don't realize is, no matter who is in charge

in the White House, the role of Congress will always be to

act as a check on the Executive branch of government. And

when it comes to the President's nominees, the Senate must

take its ``advise and consent'' role during the confirmation

process seriously.

I agree with that. I have said as much in my comments today. But what I do not agree with, and I think where this fundraising solicitation crosses the line and where it finds itself in company with some of the partisan attacks that have been made without substance against this nominee, is when it goes on to say to contribute to the Democratic Senatorial Campaign Committee, making this part of not only a political attack but a fundraising effort by the Democrats in the Senate. That, I believe, crosses a line that should not have been crossed, and one for which I believe Dr. Rice is entitled to an apology. To tie the confirmation of the Secretary of State to a fundraising campaign and to propagate misinformation or disinformation about this distinguished nominee, who is an American success story, in an effort to raise money for the Democratic Senatorial Committee is inappropriate and I think would offend and does offend the American people.

I believe this offense deserves a quick repudiation by our colleagues on the

other side of the aisle who maybe were not involved in this and, indeed, an apology to Dr. Rice for the way she has been treated.

In conclusion, let me say that I have seen, in my relatively short time in the Senate, some pretty rough treatment of the President's nominees. We have seen filibusters of judicial nominees when there is a bipartisan majority of the Senate to confirm those nominees. Indeed, this has been a part of an unconstitutional burden that neither this President nor those nominees should have to bear.

But we have also seen sort of a character attack on nominees that I think is not only unfair to those nominees but completely unbecoming to the dignity of the Senate and the kind of respect with which they should be treated. It is one thing to disagree about policy; it is one thing to ask hard questions. No one is asking anyone to vote against their conscience on a nominee. But to abuse these nominees in a way that is unfair, not only to them and their family but one that mischaracterizes the facts and is part of a disinformation campaign which is clearly tied to politics, is something we ought to call an end to.

I had held out some hope, and increasingly it appears to be a vain hope, that somehow with the reconvening of this 109th Congress we would see a change in attitude, we would see a willingness to work together.

We have seen some comments, some speeches, some promises to that end. But when it comes to this sort of inappropriate political activity and politicizing the confirmation process for America's diplomat in chief and the President's other judicial nominees, all I can say is it is a crying shame.

I yield the floor.

Exhibit 1

Democratic Senatorial Campaign Committee

Dear DSCC Friend, The Republicans were expecting the Senate

to confirm Dr. Rice with little debate and questioning from

the Foreign Relations Committee.

They didn't count on me to ask the tough questions. What

the Republicans don't realize is, no matter who is in charge

in the White House, the role of Congress will always be to

act as a check on the Executive branch of government. And

when it comes to presidential nominees, the Senate must take

its ``advise and consent'' role during the confirmation

process seriously.

That's why I took a stand last week and voiced my concerns

about Dr. Rice's misleading statements leading up to the war

in Iraq and beyond. I will continue to make my voice heard on

the Senate Foreign Relations committee, but in order to put

the brakes on four more years of misdirection in Iraq and

reckless policies at home, we need to elect more Democrats to

the Senate during the 2006 midterm elections.

Because after Dr. Rice is confirmed, the Senate will face

many more crucial decisions in the coming months:

confirmation of President Bush's choice for Attorney General

Alberto Gonzales, social security, Iraq and possibly a

Supreme Court nomination. My Democratic colleagues and I will

hold the Bush Administration accountable for its decisions.

But we will need your help to hold them accountable in the

ultimate public hearing: the next midterm elections in 2006.

The Republicans want us Democrats to step back and pave the

way not only for this one nominee, but for their entire

social, economic and international agenda. We have a chance

during the midterm elections to make sure the Republicans

don't have four years to do so. The DSCC is working every day

to recruit the strongest candidates in every Senate race

across the country. They are fighting early and fighting

hard, but they need your ongoing support today.

So while I raise my voice on the Senate floor, I hope you

will join us on the campaign trail and send the loudest

message of all--one that the Republicans will not be able to

ignore--unseating them in the midterm elections and sending

more Democrats to the Senate.

Yours sincerely,

Senator Barbara Boxer.

Mr. President, it is my understanding that under a previous order I am allowed 20 minutes. Is that correct?

I understand Senator Reed of Rhode Island is also on the list to speak. Is he not? I make inquiry of the Chair: Under the order, is Senator Reed of Rhode Island also allotted time?

I recommend that even though he may miss part of my speech.

Thank you, Mr. President.

President Bush has nominated Condoleezza Rice as Secretary of State. It is one of the highest positions in our Government. She is a person of considerable accomplishment and formidable intellect. I have watched her service from afar, and this morning I had my first opportunity to meet her personally. Dr. Rice came by my office and we sat down for half an hour and discussed many different issues. I was impressed with her ability and with her forthright approach.

I will tell you that I am also troubled. I am troubled because I followed closely the exchange between Dr. Rice and Senator Boxer during the confirmation hearing before the Foreign Relations Committee. The reason I followed this closely was not only because it was important and it related to the issue of torture but because it involved an amendment which I had drafted. As every American I have met, I was shocked by the information and photographs that came out of Abu Ghraib; troubled by reports from Guantanamo.

As a result, I joined in a bipartisan effort in both the Department of Defense authorization bill, as well as later in the intelligence reform bill, to put a clear restatement of American law to a vote, that the United States is prohibited from engaging in torture, or cruel, inhuman or degrading treatment. It is important to restate this principle and value so there would be no questions asked as to whether the United States had deviated from the legal standard which we had held for over 50 years--a standard first embodied in the Geneva Conventions and then in the Convention on Torture, and in other places in our laws.

My anti-torture amendment passed in the Senate, went to conference on the Department of Defense authorization bill, but it was changed slightly from a prohibition to a statement of policy. I didn't care much for the change, but I accepted it because I thought it still preserved the basic goal, which was to restate our country's policy against torture. The part that did not change was my amendment's requirement that the Department of Defense report regularly on any violations of this policy against torture. That was what happened in the Department of Defense bill.

Then came the intelligence reform bill, and I felt it was important that we try again to restate our law of prohibition against torture. It was equally important that the reporting requirements for violations apply not only to the military agencies as we did in the Defense bill, but also apply to the variety of different intelligence agencies covered by the intelligence bill.

I tried with both bipartisan amendments to cover the circumstances of those who would take into detention someone during the course of war in Iraq or Afghanistan or some other place.

This amendment passed and it was sent to conference. I followed the conference closely as a Senate conferee and a member of the Governmental Affairs Committee.

I was surprised and disappointed to learn as I went to conference that a message had come down from the White House--specifically from Dr. Rice and OMB Director Joshua Bolten--which said they objected to my amendment which condemned torture by any American, including members of the American intelligence community.

I couldn't believe it--they first accepted the underlying policy goals and

the reporting requirements of this same amendment for the Department of Defense, and now they were making an exception when it came to intelligence agencies.

I have to tell you that I am very troubled by that. When Senator Boxer asked repeated questions of Dr. Rice on the issue, she received conflicting answers. So I returned to the same question this morning. I asked Dr. Rice point blank: Why did you object to that amendment? She said incorrectly: We had already taken care of that. Your Department of Defense amendment took care of intelligence agencies.

That is not the case. The Department of Defense amendment which I offered, which she should have read and apparently did not read, had reporting requirements for the Department of Defense but not for the intelligence agencies. My intelligence reform bill amendment would have extended these requirements for the intelligence agencies.

I am disappointed by that. It is not just another amendment being offered on the floor. Taking away any personal pride and authorship in this, it was a timely amendment after the Abu Ghraib prison scandal to try to restate for America and the world where we stood and where our principles are. Yet this administration opposed it. I am troubled by it. I understand Senator Boxer is even more troubled by it.

This is a critical moment in our history. It is critical because of the war in Iraq to pick up the morning paper--most Americans probably did as well--and read in this paper that the Pentagon announced there will be 120,000 American soldiers in Iraq for at least 2 more years. It is a stunning and sad admission.

I remember when the invasion took place. I remember a colleague of mine from Indiana--who happens to be the chairman of the committee before us today, Senator Lugar--and his statement. I don't know if he still holds to this position, but I have quoted him at length. He said at the moment of our invasion in Iraq that we are likely to be there for 5 years. When I repeated his statement and believed it to be true, many people said: We are sure you are wrong. We are going to be home more quickly than that. After we knock Saddam Hussein out of power, the Iraqi people will take over and we will come home.

Here we are 2 years in the conflict, 1,400 Americans have been killed, 10,000 or 12,000 injured--more by the day--hundreds of incidents of insurgency, terrorism, and we are still there.

I went to Litchfield, IL, 3 weeks ago to watch an MP Illinois Guard unit go off for their deployment for 18 months. There are 80, all men, in this unit. I shook hands with each of them and looked them in the eye and gave them all my best wishes, as did the crowd at the Litchfield High School gym. As I looked at them, I thought: Is there any possibility they will be home soon? This report in the morning paper says the answer is no.

What troubles me is not that it is a situation demanding of Americans. We have risen to challenges before. But what troubles me the most about this is I think it evidences one of the most profound failures in a democracy. When leaders of a democratic government mislead the people of the country in relation to a war and an invasion of another country, I think that is the lowest point one can reach. Note that I said misleading and not intentionally misleading. There is a big difference.

In this situation, it is the argument of President Bush and his White House that it is true--they misled the American people about the presence of weapons of mass destruction, about nuclear weapons, about aluminum tubes, about connections with al-Qaida, about unmanned aerial vehicles. The list goes on and on. But their argument is, well, we had intelligence; we received bad information. If we told the American people something was wrong, don't blame us; blame the intelligence agencies.

That has been the position of the White House. That is a sad defense when you consider where we are today, with 150,000 American troops with their lives in danger after being misled by the White House about the circumstances surrounding Iraq.

Dr. Rice, as the National Security Adviser, was in the room and at the table when decisions were made. She has to accept responsibility for what she said, which has been quoted at length on the floor. Some of the suggestions about nuclear threats, some of the suggestions about the threats of Saddam Hussein out of the mouth of Dr. Rice were just plain wrong and repeated. That, to me, is very troubling.

Five days from today, Iraq is scheduled to hold its first election in nearly half a century. It is a step forward. We want to see this move toward democracy. I hope it is just not an occasion for more bloodshed. I hope it is not just an occasion for more bloodshed. It may be.

We have to ask what kind of election this will be. How many people will vote? That is an indicator of whether the election reflects the popular will. Is it an election which will be carried out with integrity? Is it one where the people clearly have a choice and where the election ballots are counted?

We have to ask what kind of elections they will be if candidates' names cannot be published, if polling places cannot be designated, and when few Sunni Muslims are likely to participate. However successful the elections may be, we all know that the bloodshed will not end at that point. Our present policies in Iraq seem unlikely to bring an end to the killing there any time soon.

Last year, Congress allocated $18 billion for the reconstruction of Iraq for the basic necessities of life--electricity, clean water. Only $2.2 billion of that amount has been spent. Why? Because it is unsafe to spend the rest. It is so unsafe that anything we build is likely to be blown up as soon as we build it. The violence we see there reflects the frustration of the people of Iraq who think the occupying United States Army is not improving their lives. We are caught in this vicious circle. We cannot rebuild Iraq because what we build will likely be destroyed, and until we rebuild Iraq, the people will not feel their fate has improved by the occupation of the American troops. Maybe this election will change that dynamic. I certainly hope so.

Now comes the administration saying they are going to need $80 to $100 billion more to continue this war. I was 1 of 23 Senators who voted against the authorization for this war; 1 Republican and 22 Democrats voted against it. After that vote, though, we had an opportunity to vote for the money for the troops. I voted for every single penny this administration has asked for. I will tell you why. I think to myself, what if it were your son or daughter in uniforms risking their lives, would you shortchange them anything? The answer is, clearly, no.

Yet despite all the money we have put into Iraq, one of the soldiers from Tennessee stands up and asks the Secretary of Defense a few weeks ago: Why do I have to dig through junk piles to find pieces of steel to protect my humvee? What is going on, Mr. Secretary? His answer was hardly satisfying or responsive. For all the money we have given to this administration, we cannot say they have spent it well when it comes to protecting our troops.

I have a friend with a son in uniform, in service in Iraq. He and his wife came up with $2,000 to buy body armor for their son, which they sent to him in Iraq. We are spending billions of dollars, and individual families have to send body armor to their soldiers.

Humvees--I don't have to tell you the story there. In the middle of last year, this administration discontinued armoring humvees even though there were hundreds, if not thousands, still vulnerable. Now they have resumed after that one Tennessee soldier had the courage to stand up.

Dr. Rice estimates there are 120,000 trained Iraqi forces under arms. Senator Biden of Delaware and many others dispute that number. They think it is vastly inflated. When asked whether you would stand and allow one of these troops to defend you, these Iraqi forces with their current equipment and training, most people honestly answered no.

We have had many failures in Iraq. The National Security Adviser to the President who was there as we devised this strategy and executed this strategy now comes before us for a substantial promotion to Secretary of State. It is troubling.

I am also worried about this whole issue of torture. We will revisit this on

the nomination of Alberto Gonzales to be Attorney General because his fingerprints are all over this administration's torture policy.

When members of the Foreign Relations Committee asked Dr. Rice about certain interrogation techniques, whether they constituted torture, she said it would not be appropriate for her to comment. Yet, I think she understands, and we understand, that if she is to be successful as the diplomat representing the United States of America, one of the first things she has to try to dispel are those ghastly, horrible images of Abu Ghraib. Do not believe for a moment that people across the world dismiss that as an aberration of renegade night shift soldiers. They believe that this is America at work. We know better. We know our troops are better. Our men and women are much better than what was demonstrated at Abu Ghraib, but it is, in fact, an image which haunts and will continue to haunt America for years to come.

Senator Boxer asked Dr. Rice why the administration opposed the language I have talked about earlier on prohibiting torture. As I have said before, I thought her answers were, at best, confusing and unresponsive. Frankly, this administration should not waste any time restating the obvious.

Every year, our Department of State issues a report card on the world. We stand in judgment of the world on issues of human rights. We call it the ``Country Reports on Human Rights Practices.'' These reports are pretty harsh on some countries. They say about these countries around the world that they are involved in torture and degrading treatment, including beatings, threats to detainees and their families, sleep deprivation, deprivation of food and water, suspension for long periods in contorted positions, prolonged isolation, forced prolonged standing, tying of the hands and feet for extended periods of time, public humiliation, sexual humiliation, and female detainees being forced to strip in front of male security officers.

These are the charges we level against other countries around the world, saying they are engaging in inhumane practices. Do any of these techniques sound familiar? If you pick up the morning paper you will see that our military and intelligence forces were engaged in similar techniques in Iraq and other places around the world. How can we stand in judgment of other countries? How can we hold ourselves up as a model when we are guilty of the same conduct? If there is ever a time when this administration should have embraced my amendments to both the Defense bill and the intelligence bill to say what we stand for in this country, it is now. Unfortunately, they have not.

Let me say a word about a recent editorial in the Wall Street Journal which took me to task because I am condemning torture techniques and demanding accountability for agencies of government that engage in them. I would say to the editors of the Wall Street Journal, it is time for you to make a choice. If you support torture, for goodness' sake, make that your editorial policy; if not, join us in condemning those who violate the standards of this Government, which have held up for decades.

Condoleezza Rice, as National Security Adviser, understands what has happened in Iraq and what her new job will require. It will require diplomacy, a diplomacy which failed before our invasion of Iraq. Many who opposed the invasion felt at the time we needed a broader coalition. But the President and his supporters argued about the coalition of the willing--150 nations, whatever the number happened to be. But let's be very honest about that. When you pick up the morning paper, whose soldiers are being killed? When you look at the message for supplemental appropriation, whose taxpayer dollars are being spent? It is the Americans. The British have stood by us. Other countries have provided help. But when it comes to carrying this burden, it is American soldiers and American taxpayers. Diplomacy had its place before the invasion of Iraq. It will have its place in the future.

I also talked to Dr. Rice about the situation in Sudan. I commended the administration for finally crossing that difficult line which the Clinton administration refused to cross when it came to Rwanda. The Clinton administration refused to use the word ``genocide,'' and that is what happened in Rwanda. Hundreds of thousands of innocent people died. I commended Dr. Rice because the Bush administration, Secretary Powell, has stepped forward and has said clearly this is genocide. But it is not enough to just say it when civilized nations who have signed the Genocide Convention step forward and say it is taking place, it requires positive action on our part. There has been very little. Calling in the African Union forces is too little, too late. It will take much more. I tried to make that point as clearly as I could.

We also discussed at length the AIDS epidemic that faces this world. If there is one thing that Secretary Powell said that I believe will be historic in its importance, it is his reference to HIV/AIDS and the global epidemic. Here is what he said. He referred to that epidemic as ``the greatest weapon of mass destruction in the world today.'' I know he believed it. I have spoken to him about it many times. Every 10 seconds another person dies of AIDS in this world. Every 6 seconds another person becomes infected.

The President pledged $15 billion for this cause. We have fallen short in the first 2 years of reaching a $3 billion target. I have asked Dr. Rice, if she is confirmed by the Senate, whether she is committed to our meeting that obligation. She said she was.

We also talked about the role of women in the world, particularly when it comes to the AIDS epidemic. It is important that we teach abstinence and teach moral values and spiritual belief. But it is also important that we empower women around the world to control their own fate and future. We can tell women to be faithful to their partners, but what if their partners are unfaithful to them? We can encourage condom use but must remember that women may not have the ability to negotiate when it comes to that issue, even with their husbands.

It is important that our global strategies against HIV/AIDS are realistic. In a speech at the International AIDS Conference in July 2004, Nelson Mandela reminded us that:

In the course of human history, there has never been a

greater threat than the HIV/AIDS epidemic.

We have a chance in America, under the President's initiative to continue to lead, both with our own bilateral aid to individual countries and through the Global Fund. I hope Ms. Rice in that capacity will assume that leadership position.

We have to also look to economic development. I said to Dr. Rice, if I went to a struggling country anywhere in the world and could only ask one question to decide the likelihood that they would be able to control their problems and their future, it would be this: How do you treat your women? And if women are treated like chattel, like property, like slaves, I can virtually guarantee you that country has little or no chance of conquering its problems. How many girls are in school? Are there forced child marriages? Do women enjoy economic opportunities? Is maternal health care a national priority? Give me the answers to those questions and I will give you a pretty good idea as to whether I think your country is moving forward. The President created the Millennium Challenge Account, and it has many important initiatives and goals in it. I said to her, and I repeat, I think elevating the role of women around the world should be one of those goals.

The President's new foreign assistance initiative, the Millennium Challenge Account embodies an innovative and important initiative.

It is a program of immense but as yet completely unrealized potential.

The Millennium Challenge Account seeks to provide assistance to those countries with a proven record of investing in their own people, as well as meeting other criteria.

I would like to apply the same standard to our own foreign assistance programs: Are we investing enough in people?

Are we helping build the infrastructure that will help eliminate poverty and not merely ease the latest crisis for a few months?

Are we making sure that our assistance reaches women in developing nations, women who are the key to successful development?

These same principles must guide us as we seek to help those devastated by the tsunami.

For instance, half the people of Aceh, Indonesia, the region hit hardest by the tidal wave, lacked clean water before the tsunami.

Disasters hit hardest where poverty is greatest, and they affect women and children most of all.

The tsunami swept away entire villages in a matter of minutes. We must commit to helping these regions recover over a period of years.

Secretary-designate Rice steps into her position at a critical juncture.

Well over 1,300 American soldiers, marines, sailors, and airmen have died in Iraq.

Nearly 150,000 are still over there.

Mr. President, 70,000 people have died in Darfur. Thousands more are still at risk every day. In South Africa, one in three adults are HIV positive. In Botswana the numbers are even higher.

Over a billion people live on less than a dollar a day. A billion people in the world cannot write their own names or read a single sentence.

We simply cannot afford to get this wrong. We cannot afford to repeat mistakes or to fall short in our commitments. These are matters of profound moral obligation and deepest national security and interest.

I yield the floor.