Keep Our Promise to America's Military Retirees Act

Madam President, we have several pages of amendments that are out there. We repeat our invitation on behalf of myself and Senator Jeffords. We want to invite all Democrats and Republicans who have amendments to the highway bill to bring them down. It is going to get crowded later as we go on. Now we have time for adequate consideration, for deliberation, and we encourage Members to bring their amendments to the floor.

I yield the floor.

Mr. President, first I say to the Senator from Colorado, we miss him on the committee. He was an excellent member of the committee. However, he was replaced by some excellent freshmen who are as enthusiastic as was the Senator from Colorado. While we miss him on the committee, it is still a great committee, and we certainly appreciate very much the comments he made this morning and the contributions he has made to the Environment and Public Works Committee.

Mr. President, it is my understanding the regular order is the amendment offered by the Senator from Indiana. He has agreed to set his amendment aside for the consideration of other amendments as they come to the floor, with the understanding he will regain the floor after those amendments are considered and action taken, if action is taken.

We do have an amendment from the chairman of the Subcommittee on Transportation, Senator Bond, who has worked tirelessly for years on this bill. I am sure he wants to offer it at this time.

I thank the Senator from Virginia. I serve on the Armed Services Committee under his capable leadership. He chairs that committee. He is also the longest serving member of the committee that I chair, Environment and Public Works. It is very rare that I would oppose something he is in favor of. This might be that exception. But let me give him our assurance that nothing is going to happen to dispose of this amendment until he has adequate time to complete his hearing and come down and be heard on this amendment.

Mr. President, we have talked about this issue several times before. The distinguished Senator from Virginia has very strong beliefs. Those beliefs are shared by the ranking minority member and by several members of our committee. This amendment was added in committee. It is one I voted against at the time. I did oppose it. However, I know there are very strong feelings about it and I want to make sure everybody gets to be heard, and I am sure we will end up with a rollcall vote. I would only make a couple of comments.

There are flexible provisions in the underlying bill that will help States address their storm water needs and maintain their ability to determine how to spend these limited dollars. For that reason I had felt a mandatory 2-percent set-aside in this bill was not necessary.

Currently, States are allowed to use their STP funds for environmental enhancements which include a variety of projects, including storm water mitigation. Our bill gives States the option to use STP and NHS money for storm water mitigation. Our bill allows those States that wish to use highway money to address storm water runoff and help communities comply with phase 1 and 2 on clean water runoff to do so.

I think probably one of the reasons for my opposition to this is I spent 4 terms as mayor of a major city, Tulsa, OK. I have always been a strong believer that the closer you get to home, the better the decisions are. In other words, the idea that somehow Washington knows more about my State of Oklahoma than the people in my State of Oklahoma is something I have disagreed with.

If this amendment should be agreed to and the bill should become law, if we in the State of Oklahoma want to spend 2 percent or even more of our money for this purpose, we can do it. But if we have other priorities that are greater, as determined by those of us in Oklahoma, then I think that should take precedence.

For that reason I will respectfully support this amendment. I am sure there will be more discussion on it later on.

I am sure the ranking minority member will agree with me, we do not want to do anything further other than hear debate until Senator Warner, whose provision it was that was put in the bill in committee, has ample time to debate it and to come to the floor and try to work out any compromises he may be successful in working out with the author of the amendment, Senator Bond.

With that, let me renew our appeal to Members to come down with their amendments. I am glad we are finally getting some activity here, some amendments coming down. It is very important we move on with this bill. We have several pages of amendments. I know a lot of these amendments are going to be agreed to in a managers' amendment we will be propounding before too long. There are some that will have to be fought out on the floor. It is my desire, and I am sure the desire of the ranking minority member, that we get on with these amendments. I have been here long enough to know what is going to happen. We are going to have all day today to handle amendments, and tomorrow. People are not going to bring them down. Then when something happens or when cloture is filed, everyone is going to get hysterical and say, Why didn't I have time to offer my amendment?

You may not have time. We are serving warning to you right now, that could happen. Now there is time and we encourage you to come down. This amendment under discussion now, which the Senator from Indiana has graciously set aside--it is his amendment--is one that will be controversial and I suspect there will be many members on the minority side of our committee who want to be heard. I think they were unanimous in supporting Senator Warner in the committee at that time.

We hope those people will come down and get the debate out of the way so we can proceed with this amendment and with any other amendments that come to the floor. Let's keep in mind, as I said yesterday on more than one occasion, what will happen if we are not successful in getting this bill passed. We are on our sixth extension. The extensions do not work. Our money is not well spent. People are dying on the highways. There are things that are happening that will not happen unless we pass this bill. Without an extension there is not going to be any chance to improve the donor status. My State is a donor State. I remember when it was 75 percent as a guarantee to come back to the States for money paid into the highway trust fund, revenues that were collected in my State of Oklahoma. Now it is up to 90.5 percent. If we had been successful with the bill last year, it would have been 95 percent.

Senator Jeffords and I did everything we could to get our bill passed. We are going to try to make that happen this time. But for those States that are concerned about their donor status, they better be lining up and supporting this. We do not know in conference what is going to come out in terms of a number, but we do know this: Donor status of 90.5 percent will at least go up to 91 or 92 percent. So they are going to be better off, but not if we operate on an extension. If we operate on an extension, we are not going to have any new safety core programs.

They call this SAFETEA. I know there is an effort by the chairman of the committee in the other body to rename it TEALU. I do not have a real problem with that. But it is a safety bill. We have many safety provisions, core programs that respond to the thousands of deaths each year on our roadways. If we go on extensions, we are not going to make any of these safety provisions a reality.

If we go on extensions instead of a bill, there is not going to be any new streamlining. In fact, some of the current obstacles in helping us to get roads built and bridges improved can be corrected, but they can only be corrected if we are able to pass this bill. If we operate on extensions, there is no increased ability to use innovative financing, thereby giving the States more tools.

This is something that is so important. Ever since the Eisenhower administration, we haven't changed the way we fund our road program. There are a lot of ideas out there where we could use the public- private partnership to build more roads and bridges. In fact, we have in this bill a provision that establishes a commission to study various ways, innovative ways to change the way we finance our roads, highways, bridges, and infrastructure in America. But if we are on an extension, if we do not pass this bill, we are not going to be able to do that.

We have one provision in here, Safe Routes to School, which is one I felt strongly about, but I was not the leader on it. There are several on our committee as well as over on the House side. As I recall, this is one of the programs Congressman Oberstar felt very strongly about. If we operate on an extension, we are not going to have the Safe Routes to School Program. We could have deaths of young people as a result of our failure to act. That is why this is so important.

Certainty in planning: On an extension, there is no certainty. You think we are going to get the same amount of money that was already authorized previously, but nothing else has changed. We don't know what is going to happen next year. We don't know whether we are going to have a bill that will be passed a month from now or 2 months from now or a year from now. Therefore, there is no long-range planning that can take place.

I served in the State legislature in Oklahoma many years ago. I know when you start planning for the future

you have to plan for your contract season. It is not as severe in Oklahoma as it is in Vermont or some of the Northern States, but certainly these things have to be considered. We have to have our labor supply ready to absorb, to be able to accommodate a heavy schedule of construction, so we need to be able to plan for that.

In this bill we have a border program, Borders and Corridors. It is very important we do these to accommodate the States such as Texas, California, Arizona, and other border States along the northern border, to help them out with that program. Without this bill we are not going to be able to do that.

There are chokepoints. A lot of people think of the highway bill as just highways. This is intermodal transportation. It affects railroad crossings. Our State of Oklahoma is a State that has a channel. It comes all the way to my town of Tulsa, OK. A lot of people don't know that. We know there are chokepoints where barge traffic will come up; it will go to rail traffic; it will go to truck traffic. This bill addresses intermodal transportation and eliminates chokepoints.

Finally, we have the firewalls. What has bothered me more over the years than anything else I can think of is how people will raid trust funds. Politicians in State legislatures--it has happened here in Washington--when no one is looking and there is a large surplus in some trust fund, what do they do with a large surplus, I ask Senator Jeffords? They run in there and they raid it. Consequently there are no real protections under an extension. But we do have protections in the bill that is before you.

I have every confidence--I don't want to sound as though I am doubting whether we are going to have a bill. But we need to pass it in time to get it to conference, back from conference, get it voted on, and in law by May 31. That is getting very close.

In the Senate we will be going into a recess next week. We will not be here for 7 days. It is my expectation as soon as we get back, we will be in a position to finish this bill, get it to conference, and meet this deadline.

I know I speak on behalf of our minority member, the ranking member, the Democratic member on the committee, Senator Jeffords, in urging people to come down and offer their amendments.

The Senator and I know they are up there right now. Come on down.

Mr. President, I agree wholeheartedly with the comments made by the ranking member, Senator Jeffords. It is interesting when he reads off the list of people anxious for a bill.

In the case of Oklahoma, when I was mayor of the city of Tulsa, we were interested in being able to plan ahead. We have our Council of Governments saying they need to have it. We have our State department of transportation that says they are going to miss their construction season. We have to get it done.

While Senator Jeffords and I many times philosophically disagree, the fact we agree so much on getting this bill completed speaks well of what we are trying to do. It demonstrates the broad base of support. I don't have any doubt we will be able to get passage. The problem is if we do not get the amendments for consideration, it will be a logjam when we return from recess and could very well be a problem in meeting our deadline of May 31. That is what we need to focus on.

We are in agreement on most of the provisions. There is some disagreement on the formula. Formulas are always a problem. I have been very happy about the way the Senate has done this. After having spent 8 years in the other body and serving on the Transportation Committee of the House of Representatives, I remember meetings we had. I don't say this in a critical way, but they operate on the basis of projects. We do, too, except the difference is we talk about formulas and try to be as equitable as possible and let the States determine their projects.

It gets back to the argument, who is in a better position to know the needs of my constituents in the State of Oklahoma? Is it Washington or our transportation commissioners responsible to the State legislature and the needs in the State?

Some people say in an expensive bill, there is pork. There is no pork in the bill. There are only two projects in the entire bill. People need to understand that.

This will change to some degree when we get to conference because it has to be agreed to by a majority of the conferees on the House, as well as a majority of the conferees from the Senate. To devise a formula that no one will disagree with is absolutely impossible. The only choice we have if we look for unanimity in approving a formula would be to have Senator Jeffords and me go to 60 Senators and say we will take care of you and we will forget about the other 40. We would have a bill and do it and it would be perfectly legitimate and not unethical.

We take into consideration the Interstate Maintenance Program. It varies from State to State. We take into consideration the National Highway System, the lane miles, the principal arteries, excluding the interstate VMT on principal arteries, excluding the interstate diesel fuel used on highways, and total lane miles on principal arteries divided by population. All these things have gone into the formula.

The Surface Transportation Program, which we have talked about, is part of the consideration in terms of total lane miles.

The Highway Bridge Replacement Rehabilitation Program I am particularly sensitive to because Oklahoma ranks last in terms of the condition of bridges. These things have to be considered.

The Recreation Trails Program varies from State to State. There has to be something in a formula that will take into consideration these programs.

Border planning and operations: Since the passage of NAFTA and now they are considering CAFTA, there are unusual situations taking place from State to State. We have low-income States. My State, Oklahoma, is a low-income State. We have low-population States such as Wyoming, Montana, and

some of the States where they still have to have roads, but they do not have the number of people so that has to be part of the consideration and part of a formula.

They have low-population density States, high-fatality States. Some States have higher fatalities than other States. That has to be taken into consideration.

All these things--donor status, donee status--all are important. But the bottom line is, I can take all 12 or 14 factors and put them into a formula program. I can find areas where Oklahoma is not considered as well as Texas or as Vermont. I can find factors that treat Vermont worse than they treat Montana or some of the other States. If someone is looking to be ahead on all factors, there is not 1 of 50 States that can say they are.

I ask our Members to consider that. Formulas consider a lot of things. We have done a good job with the approach we have. It is a harder approach to take than the approach the other body uses. It is easier for them to get a bill on and off the floor. Timing is important. There is not a Member of this Senate who does not agree we need to get a bill passed.

Members may not like the bill as it is. Come on down with amendments. We are waiting for you. We invite Members.

I yield the floor.

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

Mr. President, while we are again encouraging people to bring amendments down to the floor, I would like to make some comments on a statement that was made yesterday that affects our committee, the Environment and Public Works Committee.

Yesterday evening, the junior Senator from Delaware discussed his hold on Stephen Johnson's nomination to be Administrator of the EPA. His main complaint about Steve Johnson is about a lack of technical data from EPA on Clear Skies. We are talking about the Clear Skies legislation we considered in our committee that the administration has come forth with.

But there has been no lack of technical data. The EPA has provided the Environment and Public Works Committee with over 10,000 pages of modeling on costs, job impacts, fuel switching, air quality, and deaths avoided for the various multi-emissions proposals.

This information provides extensive detail about the impacts on the Nation as a whole, regions, and individual States. Claims that EPA did not supply sufficient information to make an informed decision simply do not have any credibility.

In fact, this is in direct contrast to 2002, when then-Chairman Jeffords--I have been making all kinds of complimentary remarks about the ranking member, Senator Jeffords. Back in 2002, Senator Jeffords was the chairman and I was the ranking member. He came forth with something he had very strong feelings about, and that was the Clean Power Act. When he marked it up, we had less than 1 week to review a 53-page bill, without any modeling information whatsoever. Let me repeat that: less than 1 week to mark up a 53-page bill, which was substituted for the original 5-page bill. I do not say that critically because we did it. Nonetheless, we did it without the information I believed was necessary at that time. We did not have information.

In addition, the quality of information in 1990--this is back when we considered the Clean Air Act Amendments--paled in comparison to what the executive branch has been able to produce for us using today's more sophisticated models run on powerful supercomputers. The committee had far more information about the impacts of the Clear Skies legislation than the entire Senate had in 1990 during the debate on the Clean Air Act amendments of 1990.

Now, what has been particularly frustrating is that the EPA data request was used as a red herring to vote against Clear Skies. It is now being used as an excuse to oppose Steve Johnson. I do want to talk about Steve Johnson a minute because it is very unusual we have the opportunity to have a Director with the background of Mr. Johnson.

When we notified the minority last November 15 of our intentions of marking up the Clear Skies bill in February,

they never once raised the issue of needing more data from the EPA until after we delayed the first markup on February 16. Then they mentioned the need to get more data from the EPA almost as an afterthought.

When we offered to delay the markup 2 weeks, in order to negotiate a compromise, we were told they needed data from EPA, which would take 6 months to produce. This, of course, was after our committee already spent 5 years conducting 24 hearings on the topic. We were told, after all this committee work and the 10,000 pages of analysis, that the minority still needed more analysis before they would be willing to even begin negotiating.

Nevertheless, EPA has offered to spend considerable resources to analyze each of the multi-emission proposals using an identical methodology to guarantee that comparisons of the three bills are apples to apples. Yet the charge is being leveled that this offer still is not enough.

Last week, the EPA offered to conduct even more analysis to satisfy Senator Carper, offering detailed data on S. 131, the President's Clear Skies proposal; secondly, the Clear Skies manager's amendment from March 9, 2005--that was ours; S. 843, Senator Carper's Clean Air Planning Act; and, fourth, S. 150, Senator Jeffords' Clean Power Act.

The data would consist of the cost of each bill; the fuel mix for electricity production; Henry-Hub natural gas prices; average mine mouth coal prices; regional electricity prices; emission allowance prices; national and regional coal production; the response of electric generating facilities--for example, the capacity retrofitted with pollution control equipment; national and State-by-State emission levels for sulfur dioxide, nitrogen oxide, and mercury; the national aggregate CO2 emissions; public health and environmental provisions benefits of each bill, such as the total monetized health benefits, premature mortality benefits, and visibility benefits; and the effects of each bill on nonattainment areas--for example, for each current nonattainment area, EPA will list the counties in the area and project whether the area comes into attainment with ozone and particulate matter.

This is for all four pieces of legislation, not just one, everything that has been asked for. This was an unprecedented offer of information by the administration to the junior Senator from Delaware and, frankly, it is more information than I believe he needs in order to move forward on Clear Skies. This is in addition to the 10,000 pages of data the committee has already received. This information would take the staff of EPA 6 to 8 weeks to complete.

Unfortunately, even this offer is not enough. The junior Senator from Delaware is insisting on the same level of analysis that the administration conducted for the President's proposal, which would take a half a year. Strangely, he insists this would allow him to negotiate multiemissions legislation this spring.

This is a level of detail that no administration has ever conducted for a legislative proposal at this stage in the process and, quite frankly, a level of detail that is inappropriate to request. If the EPA were requested to conduct this type of analysis for every bill, we would have to double the size of the EPA, and all of their employees would be working full time on congressional requests. To suggest that a congressional committee needs this type of analysis before it can move on legislation is ridiculous.

In the history of the Clean Air Act, we have more and better quality data today than we have ever had in moving legislation, including the amendments of 1990. Those are the amendments that were so significant and have had such a positive effect on air quality. We have more data than we ever had in moving any environmental legislation.

This demand for data was an excuse for delaying the Clear Skies legislation and, quite frankly, it was an excuse to delay or obstruct Steve Johnson's nomination. This appears to be part of a larger strategy to obstruct this President's EPA nominees. Last Congress, Governor Leavitt's nomination hearing was first boycotted by the minority, then delayed for over 50 days. Today, Steve Johnson is also being obstructed.

For just a moment, I wish to say something about the nomination of Steve Johnson to be the next Administrator of the Environmental Protection Agency. It is unfortunate we find ourselves in a position of having that nomination filibustered by the Democratic side. Mr. Johnson is not a partisan politician. In fact, he is neither a partisan nor a politician. I can't tell you right now whether he is a Democrat or Republican. I don't think it makes any difference.

Steve Johnson is a career EPA employee who has risen through the ranks under both Republican and Democratic administrations. He joined the EPA during the Carter administration and was promoted to senior management posts during the Clinton administration. He has also been confirmed twice by the Senate, both times without opposition. Stephen Johnson is not a partisan. He is also a scientist and, if confirmed, would be both the first scientist and first career EPA employee to serve as the head of the agency. We never had someone who has a scientific background as Administrator of the EPA, nor have we had anyone who has gone through the ranks of the EPA. There has never before been a nominee who has known this agency so well prior to becoming Administrator.

One of the big problems we have had with Administrators who are not familiar with the agency is when we have something that needs to be done, it takes them forever to sort through to find out where the bad guys and good guys are and where the reports are coming from. He already knows. He spent 24 years doing this.

He is trained in biology and pathology. After graduating from college, he worked for the Computer Sciences Corporation at the Goddard Space Flight Center and was signed to serve as a junior member of the launch support team for the first Synchronous Meteorological Satellite, SMS-1. He joined EPA during the Carter administration as a health scientist in the Office of Pesticides and Toxic Substances. He left EPA briefly in 1982 to join a private lab and then returned in 1984 to EPA's Office of Prevention, Pesticides and Toxic Substances. Throughout the years Mr. Johnson climbed through the ranks, eventually being appointed to senior management positions by the Clinton administration, including Deputy Director of the Office of Pesticide Programs and the Principal Deputy Assistant Administrator at that time.

I have to say I was there when this happened during the Clinton administration. I asked him a lot of serious questions, and I did not object to his nomination even though it was propounded by the Clinton administration.

In 2001, he was nominated by President Bush to serve as the Assistant Administrator for that program office. He was confirmed without opposition. Just last year when Mike Leavitt became Administrator he was nominated to the No. 2 spot at the agency. Once again, he was confirmed without any opposition.

Steve Johnson's qualifications are beyond question. The question is, why are we here fighting for cloture on not just a qualified nominee but a nominee who has been consistently promoted by both Democratic and Republican Presidents? I believe Jonathan Adler did a good job describing this nomination process when he wrote the following in the National Review:

President Bush's selection of Steven L. Johnson as

administrator of the Environmental Protection Agency was

universally praised in Washington, D.C. Democrats and

Republicans, environmental activists and industry lobbyists

all hailed the pick as a positive step for the troubled

agency. Stalwart conservative Sen. James Inhofe . . .

--that's me--

applauded the choice while the Environmental Working Group's

Ken Cook called it a ``spectacularly good appointment.'' The

era of good feelings did not last long, however. Once slated

for a quick and easy confirmation, Johnson is now the victim

of an old-fashioned political obstruction as Senate Democrats

again target the administration's environmental policies.

This isn't the first time in recent history that an EPA Administrator has been held up. In fact, that precedent was set the last time someone was nominated by this President. Governor Mike Leavitt was treated with equal courtesy as Steve Johnson. I know some, including the junior Senator from Delaware, are now saying: I supported Mike Leavitt and was there for him. But that is simply not accurate.

In fact, when the committee was scheduled to vote on the Leavitt nomination, the vote was boycotted by the Democrats. Not a single committee Democrat showed up, including the Senator from Delaware. It was part of the boycott.

The three Administrators previous to Mike Leavitt took an average of 8 days to confirm. Mike Leavitt's confirmation took 50 days, 50 days to confirm a Cabinet-level position for an individual who clearly is qualified.

So this is nothing new for a qualified EPA Administrator nominated by President Bush. It has been nearly a month that Steve Johnson has awaited confirmation. The time has come to confirm Mr. Johnson.

During the debate we will likely hear some negative comments about the President's record on the environment. What you hear from the Democrats will likely be a very distorted view. The facts are very plain, very easy to understand. By virtually every measure, under this President's stewardship, our air, our water, and our land are cleaner. We have a cleaner and healthier environment than we did prior to George W. Bush taking over as President. That is simply the simple truth.

Just to highlight a few of the actions by the President, he signed into law historic bipartisan legislation that has accelerated the cleanup of brownfields--all of the States are concerned about that-- better protecting public health, creating jobs, and revitalizing communities. George W. Bush is the first President ever to require the reduction of mercury emissions by powerplants. I can remember when there were full-page ads during the campaign saying that this President is lowering the emissions. There were no restrictions before he came in. He is the one who made the first reduction in our history. This President has imposed a mandatory 70-percent reduction in mercury emissions from these sources.

Just a year ago, the President announced an aggressive new national goal, moving beyond the policy of no net loss wetlands to a new policy of an actual net increase for wetlands each year. His Great Lakes Legacy Program will help to clean up one of the largest systems of freshwater on Earth, roughly 18 percent of the world's supply. His Clear Skies initiative would have reduced SOX, NOX and mercury emissions by 70 percent--the largest mandated reduction of any President in the history of America. It wasn't Bill Clinton. It was George W. Bush.

Despite all the rhetoric to the contrary, the environment and our families are healthier because of George W. Bush. The facts don't lie.

I yield the floor.

Reserving the right to object, let me say to my good friend from Oregon that the leader is coming down to make a statement. Would he withhold his request until the leader gets here and makes his statement?

I object.

Mr. President, when the time comes I intend to vote in favor of Judge Chertoff's nomination to be Secretary of Homeland Security. There is no position in government of greater importance to the security of our country and of my home State of New York. And so I am glad that the Senate has agreed to devote some time to a discussion of the important issues that the next Secretary of Homeland Security will face.

Let me say at the outset that I have some serious concerns about this nomination. These concerns have nothing to do with Judge Chertoff's personal abilities: his professional and intellectual qualifications are beyond question, as is his commitment to public service. Rather, my concerns are based on the misguided and constitutionally infirm policies that have been drafted by the Department of Justice and implemented by the Administration in its prosecution of the war on terror and in the conflicts in Afghanistan and Iraq. Judge Chertoff was a senior DOJ official at the time that these policies were created. Because he is being nominated to a position for which respect for Constitutional and treaty obligations is especially important, his role in the formation of these policies is therefore worthy of careful scrutiny.

My primary concern relates to those policies that have undercut and placed our men and women in uniform in greater danger and diminished our standing in the international community. I feel a particular personal obligation as a member of the Armed Services Committee to do my utmost to ensure that our government does not do anything that unnecessarily puts our troops in harm's way, that diminishes our standing among our allies, or that blurs the values that distinguish us from our depraved and nihilistic enemies.

The August 1, 2002 memo from the Department of Justice's Office of Legal Counsel, with its absurdly narrow definition of torture, is the most shocking and well-known example of the administration's attempt to radically weaken this country's commitment to treat all prisoners and detainees humanely and in accordance with international agreements. Another oft-cited example is Attorney General Gonzales' January 2002 advice to President Bush that the ``war on terrorism'' offers a ``new paradigm [that] renders obsolete'' the Geneva Convention's protections.

I am satisfied by Judge Chertoff's testimony that, as Assistant Attorney General for the Criminal Division, he did not provide legal advice that strayed below the standard that is expected from senior members of the Justice Department. He testified that executive branch officials sought his views on the practical application of laws prohibiting torture and on specific techniques. And he testified that torture is illegal and wrong and that he does not believe that the definition of torture in the August 1, 2002 OLC memo is broad enough. He testified that he told executive branch officials to ``be sure that you have good faith and you've operated diligently to make sure what you are considering doing is well within the law.'' Regarding specific techniques, Judge Chertoff testified that, ``I was not prepared to say to people, to approve things in advance, or to give people speculative opinions that they might later take as some kind of a license to do something.''

These responses suggest that Judge Chertoff appreciates the importance of upholding America's long tradition of treating prisoners humanely, and of respecting international agreements that protect our men and women in uniform as well as our standing in the international community. While I would have preferred that Judge Chertoff had argued his point to the administration more forcefully, I am satisfied that he did not actively promote these wrongheaded, immoral, and counterproductive policies.

Another important concern arises from the Justice Department's treatment of more than 750 aliens detained immediately following the attacks of September 11. The department's own inspector general released a report in 2003 that acknowledged the ``difficult circumstances'' in which the department found itself, but concluded there were ``significant problems in the way that the September 11 detainees were treated.'' Among those problems were significant delays in the FBI's clearance process, hindrances in access to legal counsel, and verbal and physical abuse of detainees. The report specifically finds that the Justice Department, including Judge Chertoff, was aware of the FBI's clearance problems at the time. In fact, Judge Chertoff testified that he inquired with the FBI about the clearance delays, but the FBI's resources were ``stretched.'' The inspector general found that the Justice Department should have done more once it learned of the detainee-related problems.

When asked about this report at his confirmation hearing, Judge Chertoff acknowledged that there were ``imperfections'' in the executive branch's response. He testified that he was unaware at the time of the hindrances in detainees' access to counsel, that he was unaware of the verbal and physical abuse, and that such mistreatment is inappropriate and should not have happened. He also stated the importance of learning from experience.

I am disappointed that Judge Chertoff did not express greater regret for the department's role in the mistreatment of detainees, and that he did not testify in detail as to the status of the implementation of the inspector general's recommended 21 reforms. Nonetheless, his responses to this line of questioning are not, in my view, sufficient to oppose his nomination. I hope that Judge Chertoff will bring to bear the lessons we have learned from this experience and work to ensure appropriate reforms are successfully carried out.

After careful consideration, I am satisfied by Judge Chertoff's answers to the Senate Homeland Security and Governmental Affairs Committee regarding his conduct at the Justice Department. Despite the egregious missteps the department made during his tenure, I do not believe that his performance there disqualifies him from serving as the next Secretary of the Department of Homeland Security. And in view of his testimony and of his exceptional record during his short time on the Federal bench, I believe that Judge Chertoff understands that the next Secretary of Homeland Security must be both unflagging in his efforts to protect us from terrorist attack and steadfast in his respect for our Constitutional order.

I also believe that Judge Chertoff has a good understanding of the issues and challenges facing the Department of Homeland Security. Perhaps the biggest challenge awaiting him is the taming of the enormous bureaucratic tangle that is the current department. If confirmed, Judge Chertoff will become the head of a department that was created via the integration of 22 separate agencies and 180,000 employees. These agencies and employees engage in a wide range of activities related to securing the homeland, and they need a steady and firm hand on the tiller. They also need a creative leader who can cut through bureaucratic entanglement and get things done. As Secretary, Judge Chertoff's central task will be setting priorities and getting a vast bureaucracy to work efficiently and in a unified fashion.

I am hopeful Judge Chertoff's well-documented intellectual abilities and his long experience as a public servant will serve him well as he moves from the role of Federal judge to the head of such a large and demanding Department. He pledged at his confirmation

hearing to work ``tirelessly'' to safeguard the nation. I hope he follows through on that pledge in a variety of areas of critical importance. He will need to devote substantial energy and political capital if he is to help this still nascent Department develop to its full potential and render all Americans as safe and as secure in their liberties as possible.

I am encouraged that Judge Chertoff and I agree on a number of specific challenges facing the Department of Homeland Security. One of these issues--Federal funding formulas for state and local preparedness--is essential to protecting the homeland. I have repeatedly called upon the administration and my colleagues to implement threat-based homeland security funding, so that homeland security resources go to the states and areas where they are needed most. I have introduced legislation in this regard and even developed a specific homeland security formula for administration officials to consider.

The latest iteration of that proposal is contained in my Domestic Defense Fund Act of 2005, which I introduced on the first legislative day of this Congress. Modeled on the Community Development Block Grant program, the Domestic Defense Fund of 2005 provides $7 billion in annual funding to local communities, States, and first responders. The act requires that all of that funding be allocated using threat, risk, and vulnerability-based criteria that homeland security experts-- including the Homeland Security Independent Task Force of the Council on Foreign Relations, chaired by former Senators Gary Hart and Warren Rudman, and the National Commission on Terrorist Attacks Upon the United States--have long recommended.

I was heartened to hear Judge Chertoff testify at his confirmation hearing, that ``I think we have to have a formula for funding and a formula for lending assistance to State and local governments across the board that takes account of the reality of vulnerabilities and risks and making sure that we're making a fair allocation.'' Judge Chertoff also stated this view when I met with him. His unequivocal support for threat- and vulnerability-based funding is important for New York, and for the nation.

Another issue on which Judge Chertoff and I agree is the need for greater sharing of terrorist-related information between and among Federal, State, and local government agencies. In the immediate aftermath of the 9/11 terrorist attacks, I worked with a number of my colleagues in the Senate on a bi-partisan basis in focusing on this need. As I noted in my remarks on the passage of the Intelligence Reform and Terrorism Prevention Act of 2004, the sharing of critical intelligence information is vitally important if we are to win the War against terrorism. We need to ensure that our front line solders in the war against terrorism here at home--our local communities and our first responders--are as informed as possible about any possible threat so that they can do the best job possible to protect all Americans. It is vital for New York City and other local communities across New York State and the Nation to receive accurate and timely information from the department when a potential threat emerges. It is equally important that local communities on the front lines serve as valuable sources of information for the Federal Government.

I was pleased to learn that Judge Chertoff testified at his confirmation hearing that his personal experiences as an Assistant United States Attorney, a United States Attorney and as head of the Criminal Division on September 11, give him a thorough appreciation and respect for State and local perspectives. In his testimony, he described ``negotiating cooperation with our state and local government officials'' as one of ``the central elements of the war against terrorism. . . .'' He repeatedly referred to the need to work in partnership with State and local government.

I could not agree more. The Federal Government cannot, and should not, go it alone when it comes to securing the homeland. States and local communities must be full partners. Much more needs to be done, but Judge Chertoff's testimony demonstrates that he understands the importance of this area as a key to homeland security.

I also find it encouraging that Judge Chertoff testified that he is ``acutely aware'' of the importance of allocating resources to secure our ports. Needless to say, having a secretary of homeland security who understands the importance of the Port of New York and New Jersey is likely to be a good thing for New Yorkers, and for the entire country.

There has been little evidence to date that administration is interested in using a threat-based formula for allocating resources. Indeed, in Fiscal Year 2004, when the Administration had the opportunity to employ such a formula in allocating funds under the State Homeland Security Grant Program, SHGP, and the Law Enforcement Terrorism Prevention, LETP, grant program, it affirmatively chose not to do so, despite pleas from me and many members of Congress on both sides of the aisle. Again in Fiscal Year 2005, there was no significant effort on the part of the administration to use a threat-based formula.

I wrote President Bush imploring him to work with the House and Senate leadership on the issue of homeland security funding, but language was inserted in the Fiscal Year 2005 Homeland Security Appropriations Act to require that SHGP and LETP funds be allocated in that fiscal year as the administration chose to allocate funds in Fiscal Year 2004, which, unfortunately, was on the basis of population alone. Every homeland security expert I know has said that this makes no sense. If the terrorists are looking at things such as the presence and vulnerability of critical infrastructures as well as population and population densities, so should we.

This year, the administration is again talking a good game on homeland security grant formulas. The Fiscal Year 2006 budget request calls for more than $1 billion in grants to States for the purpose of enhancing capabilities to prevent, deter, respond to and recover from acts of terrorism, to be allocated by the Secretary of Homeland Security ``based on risks, threats, vulnerabilities, and unmet essential capabilities,'' with a 0.25 percent State minimum. In addition, more than $1 billion would go for grants to urban areas, for the same purpose, and on the same basis--minus, of course, a State minimum.

This is a step in the right direction, but we need to allocate much more funding for this purpose. Whether through direct funding--which I continue to believe is the best way to disburse homeland security funding to many communities--or funding that is sent to the states and passed through to local communities, the Federal Government should be disbursing the homeland security state and local funds to communities according to a threat- and vulnerability-based formula.

In addition, my Domestic Defense Fund Act makes it explicit that the funding provided for in my proposed legislation will not supplant or be in lieu of funding for traditional first responders programs, such as the Community Oriented Policing Services, COPS, program and the Assistance to Fire Fighters, FIRE, Act program. These Federal programs have proven successful in helping first responders perform traditional functions, such as fighting crime and responding to fires.

Unfortunately, the Fiscal Year 2006 budget request seeks to cut or eliminate a number of these essential first responder programs. Under the President's proposed budget, funding for the COPS program is reduced from $379 million to $118 million nationally, which comes on top of previous years' cuts for the COPS program, which once received more than $1.5 billion in funding. And absolutely no funding is proposed for the COPS Universal Hiring Program, the COPS MORE program, COPS in Schools program, or the COPS Interoperable Communications Technology Program.

The Fiscal Year 2006 budget request also proposes no funding for the Edward Byrne Memorial Justice Assistance Grant program, named after a New York City police officer killed in the line of duty, and the Local Law Enforcement Block Grant program. These programs in the past have provided states and local governments with Federal funds to support efforts to reduce crime and increase public safety, such

as enhancing security measures around schools, establishing or supporting drug courts, and preventing violent and/or drug-related crime.

I find that shameful, especially as our fire fighters, police officers, emergency service workers and other first responders continue to be on the front lines of our nation's homeland defense. It is imperative that Judge Chertoff, if confirmed, stand by his philosophy of risk-based allocation and appreciation for the role of state and local partners when he prepares his department's budget in coming years.

In fact, the outcome of a number of homeland security imperatives will depend to a significant extent on Judge Chertoff's willingness to fight hard during the budget process. A good example of this is the addition of new border patrol agents mandated in the recently enacted Intelligence Reform and Terrorism Prevention Act of 2004. If the goals of this legislation are realized, the security of the northern border would be improved, a result I have worked for since 2001. Among many provisions, the act calls for an increase of at least 10,000 border patrol agents from Fiscal Years 2006 through 2010, many of whom will be dedicated specifically to our northern border. And yet the FY06 budget request did not come close to seeking the 2,000 new border patrol agents authorized for this year. Judge Chertoff must be willing to fight hard for full funding of this and other programs essential to the department's mission.

I appreciate that Judge Chertoff understands the critical importance of securing chemical facilities. There are hundreds of chemical plants in the United States where a terrorist attack could threaten more than 100,000 Americans with exposure to toxic chemicals. This is a homeland security vulnerability that has been recognized by many, yet we still have no mandatory Federal standards for chemical plants, and the Department of Homeland Security lacks authority to put such standards in place. Until Congress provides the department with such authority, Americans will continue to rely on voluntary security measures at chemical plants, which have been repeatedly shown to be lax.

I believe that the best solution to this problem would be to enact the Chemical Security Act that I have sponsored with Senator Corzine. However, in order to pass this or other chemical plant security legislation, we will need stronger support from the administration and from the Secretary of Homeland Security than we have had in the past. That is why I was encouraged by Judge Chertoff's testimony that he is aware of the significant risk of that sector based on his personal experience. He also testified that ``the Federal Government needs to be able to use a whole range of tools to bring the industry up to an appropriate standard'' and that ``the President has indicated that he supports, if necessary, the use of authorities to require chemical companies to come up to certain standards, with appropriate penalties if they don't do so.''

Thus, on balance, my personal exchange with Judge Chertoff--and the testimony he gave during his confirmation hearing--speak of his commitment to threat- and vulnerability-based funding, his keen awareness of other vital homeland security issues for New Yorkers, and his intent to work tirelessly. He is from New Jersey and knows the homeland security needs of the region from personal experience. Ultimately, his roots in the region, his personal experiences, and his expressions of commitment to policies that are essential to the security of New Yorkers, are decisive factors in my decision to vote to confirm.

One of the lessons we have learned since September 11 is that constant vigilance is required of the Congress; oversight and accountability must be our watch words. Oversight requires us to demand that the rule of law be respected by the executive branch, and that we do not countenance the flouting of the law or of treaties. It requires us to hold the executive branch truly accountable for its actions. If we have learned anything since that September day in 2001, particularly with respect to this administration, it is the timeless truth that ``eternal vigilance is the price of liberty.''

It has been said before, but it bears repeating--our Nation faces a new kind of challenge to our way of life. I have no doubt we will overcome this challenge, but it will only be overcome through maintaining and strengthening our civil society and our commitment to being a force for decency and respect for law in the world.

Judge Chertoff testified that, as Secretary, he will ``be mindful of the need to reconcile the imperatives of security with the preservation of liberty and privacy.'' I agree that one of the central dilemmas of our time is balancing security with liberty and privacy. As the 9/11 Commission said, ``Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.'' I believe that Judge Chertoff is professionally qualified to be Secretary of Homeland Security, and that he understands and respects the values that the Secretary works to defend. Therefore, I will be voting in favor of his confirmation.

Mr. President, I rise today in support of the nomination of Michael Chertoff to be Secretary of the Department of Homeland Security, DHS. Chairman Stevens and I had the opportunity to meet with Judge Chertoff, and I was encouraged by his desire to work with Congress to address the nation's homeland security needs. I believe that his stated goal of resolving the internal disputes that have plagued DHS since its founding and his commitment to reduce the vulnerability of all our transportation systems to terrorist attack will serve him well in this new capacity.

Though I support Judge Chertoff's nomination, I want to take this opportunity to express some of my thoughts and concerns about the current state of DHS and the Transportation Security Administration in particular.

In the days following September 11, we all recognized the many serious flaws in our homeland security efforts. We were exposed to new and unexpected threats in ways we had never before thought possible. We committed to do everything in our power to ensure that a tragedy like September 11 would never happen again. We took bold, speedy, and necessary action. We made transportation security a national security function by enacting the Aviation Transportation Security Act and the Maritime Transportation Security Act, both considered landmark legislation.

Although a number of high profile actions have been taken to strengthen aviation security, I fear that the same zealous effort to adequately strengthen security across all modes of transportation has stalled. In the more than three years since September 11, very little has been done to aggressively promote security of our ports, our passenger and freight rail system, motor carriers, pipelines, and hazardous materials, despite very specific congressional direction.

Meanwhile, the threats to our transportation security are as serious as they have always been. From the train bombing in Madrid to the maritime attack off the coast of Yemen, the threats have not waned in the slightest.

But, based on the President's Budget, there are apparently some in the Administration who seem to believe that our work is done. The President's Budget recommends shifting critical work away from the Transportation Security Administration, TSA, to other organizations within DHS that have neither the expertise nor the necessary authority to be effective. In my view, further decentralizing the responsibilities of TSA will destroy the remaining, limited accountability that TSA provides for transportation security.

I recognize that consolidating 22 Federal agencies into one department presents significant management challenges and that growing pains are to be expected as different agencies come together. However, growing pains are not a license to continue the stovepipe behavior that existed prior to September 11. When Congress created the Department of Homeland Security and, more specifically, the Transportation Security Administration, it made clear that ``business as usual'' was not acceptable. The Department and TSA need to reread the underlying statutes and start functioning as Congress directed. It is my hope that Judge Chertoff will be a leader who understands that necessity.

Let me speak for a few minutes about the particulars of TSA and the President's budget. In truth, the difficult work of securing all of our major modes of transportation, including ports, shipping, railroads, intercity buses, motor carriers, and pipelines is just beginning, and the nation must have a robust agency within the Department dedicated to that task.

Security funding for all modes of transportation beyond aviation has been desperately lacking. The 9/11 Commission found, ``over 90 percent of the nation's $5.3 billion annual investment in the TSA goes to aviation . . . [and] . . . current efforts do not yet reflect a forward-looking strategic plan.''

According to Senate Banking Committee estimates, the Federal Government has spent $9.16 per airline passenger each year on enhanced security measures, while spending less than a penny annually per person on security measures for other modes of transportation.

Port security and safe maritime transportation is of particular interest to me. They are absolutely essential for my state of Hawaii, its economic health, and the life and livelihood of its citizens. Chairman Stevens' state of Alaska is similarly situated, and I know port security is of great importance to him as well.

Apparently, though, we need to remind the Administration--and perhaps the nominee--that 95 percent of the Nation's cargo comes through the ports. The security initiatives at most ports have been, to this point, woefully underfunded, and most are ill prepared for an attack. Unfortunately, our maritime system is only as strong as its weakest link. If there is an incident at any one port, the whole system will screech to a halt, as we scramble to ensure security at other ports. If we had to shut down our entire port system, the economic damage would be widespread, catastrophic and possibly irreversible.

Judge Chertoff has many tools at his disposal to protect our maritime and shipping interests, both through the TSA and the U.S. Coast Guard. Our national shore line extends for thousands of miles, with key cities and facilities located all along the coasts. Whether it is monitoring, credentialing, or inspecting cargo, there is no doubt, port security is a daunting and difficult task.

If Judge Chertoff has difficulty understanding the importance of improved port security, there are 14 members of our committee with major ports in their State, and I am sure each would be more than willing to help provide greater clarity.

Even though we all recognize the overwhelming task of port security, the President's Budget does not do enough. It is true that the Coast Guard increases 7.5 percent over the previous fiscal year, which seems laudable. However, when you look at the numbers, it becomes clear that the administration's request--for the third year in a row--does not recognize that in addition to the Coast Guard's ever-increasing port securities duties, it must still continue critical functions like search and rescue efforts and enforcement of coastal and fisheries laws. There is no question that we must provide for increased security, but there is also no question that other critical missions also impact the free flow of maritime commerce.

In addition to not providing enough funding for Coast Guard activities, the President's budget also proposes to develop a Targeted Infrastructure Protection Program, TIPP, within the Office of State and Local Government Coordination and Preparedness to administer $600 million in integrated grants for the protection of transit, railroads, ports, highways and energy facilities.

This odd realignment of the grant process adds layers of bureaucracy, further diminishes accountability and distribution of these critical funds, and it is directly contrary to the law Congress enacted just 6 months ago. It also shields the fact that the administration is using the same limited pot of money, extending it to a wider range of grantees, and making them compete against one another when each of their projects merit grant funding.

The administration also proposes establishing a new Office of Screening Coordination and Operations, SCO, within the Border and Transportation Security, BTS, Directorate. This new entity would purportedly coordinate procedures to identify and interdict people, cargo and other entities that pose a threat to homeland security.

This short-sighted proposal calls for cutting over 70 percent of TSA's funding for rail, trucking, pipeline, and hazmat security-related initiatives. The ``streamlining of duplicative programs and activities'' effectively eliminates TSA's role in allocating transportation security grants, maritime research and development grants, and cedes its regulatory authority to develop the Transportation Worker Identity Credential, TWIC, program. In short, this budget ignores congressional direction, transfers these functions back to agencies that operate in a stovepipe manner and do not have regulatory authority for credentialing, and decimates TSA's Office of Maritime and Land.

Regarding rail security, the administration's budget fails to propose any dedicated funding or specific programs to address rail security, and given their proposal to eliminate support for Amtrak, it is clear that the administration is not interested in rail service let alone rail security. The recent rail accident in South Carolina and the resulting chlorine gas spill remind us that our rail system presents unique vulnerabilities that, if exploited, could cause irreparable economic and physical damage to communities across the country.

TSA has undertaken several small-scale, ad hoc, efforts to strengthen rail security, from rail passenger screening pilot tests to rail corridor threat assessments in specific corridors. But the administration's lack of support for dedicated funding or programs-- beyond what the Congress has forced upon the agency through the appropriations process--reflects the low priority that TSA leadership and the administration place on this important work. They behave as if September 11 never happened.

The budget proposal for aviation security appears on paper to increase by $156 million, but this funding depends on $1.5 billion in new revenues raised through increased security fees on airline passengers.

We can debate how much we need for security, but it does not make any sense to place the burden for new DHS revenue on an airline industry that is bordering on total bankruptcy, when at the same time the administration is demanding that its unaffordable tax cuts be made permanent.

The airlines have argued convincingly that they cannot pass along increased security fees to the passengers in their highly competitive industry. Few of the carriers have managed even modest periods of profitability since September 11. I must remind people in this town, who often have a short and selective memory, that by a vote of 100 to 0 in the Senate and 410 to 9 in the House, this Congress chose to make transportation security a national security function. Funding homeland security is a Federal responsibility.

Given the many misplaced priorities that I see in the President's Budget proposal, it is clear that the Congress needs to help refocus the Department.

Let me state here before my colleagues and for the record, the Senate Commerce Committee will not stall in its efforts to continue developing comprehensive, bipartisan legislation to strengthen port, rail, and intercity bus security, regardless of the Bush administration's repeated refusal to support or properly address these critical initiatives. Our national transportation system remains an inviting target for terrorists. The system is vulnerable, and an attack could cause widespread, catastrophic economic damage. In fact, in his most recent video tape, Osama bin Laden stated plainly that bankrupting the United States was a primary, al-Qaida goal, and given al-Qaida's previous attacks, it is clear that transportation systems are high on their target list.

So I come to the floor today to inform my colleagues and the administration that, I, along with many of my fellow Commerce Committee members, will be introducing a transportation security reauthorization proposal, which will provide further direction to the Department's cargo security functions, strengthen aviation, maritime, rail, hazardous materials, and pipeline security efforts, and improve interagency cooperation.

The proposal will incorporate several Commerce Committee-reported and Senate-passed bills from the prior Congress and will also put forth new ideas to enhance transportation security across all modes of transportation.

For port security, we will seek to improve interagency cooperation by further developing joint operation command centers. Additionally, our bill will clarify the roles and responsibilities for cargo security programs, while establishing criteria for contingency response plans. Our legislation will further encourage the development of effective technologies that detect terrorist threats by setting a minimum level of R&D funding related to maritime and land security.

To address aviation, we will take several steps to strengthen the existing, professional, screening workforce through improved training of personnel and by directing a more appropriate use of TSA's resources. Additionally, we will seek to streamline and improve collection of airline and passenger security fees to promote a more efficient and healthy aviation industry.

For rail security, we will incorporate an updated version of the Rail Security Act of 2004, which the Senate passed by unanimous consent last year, and we will feature new efforts to ensure the security of hazardous materials that are shipped by rail.

To address the security needs of our other surface transportation modes, the proposal will include funding to improve intercity bus security, strengthened hazardous material transportation security efforts, new security guidelines for truck rental and leasing operations, and the development of pipeline security incident recovery plans.

I look forward to working with Judge Chertoff, the TSA, and the administration on this effort, and I remain hopeful that his new leadership at DHS will inspire the requisite commitment and dedication necessary to meet the security challenges ahead. The work will not be easy. While most of us recognize the improvements that have been made in airline security over the last few years, others are pushing to roll back the progress that we have made.

Despite that progress, there are some that continue to urge TSA to return to the days of private security screening companies, like Argenbright Security and its underpaid, poorly trained workforce. These efforts are not just shortsighted, they disregard a national imperative to treat transportation security as a national security function, and they should be quickly dismissed by the administration. I call on Judge Chertoff to clarify DHS's position on this matter quickly, so the country can continue to have faith in the security efforts we have come to expect when flying.

Similarly, TSA needs more resources and attention paid to port, rail, motor carrier, hazardous materials, and pipeline security matters, not less, and I am hopeful that Judge Chertoff will make strengthening all areas of transportation security one of his top missions.

We must take this opportunity to continue moving in the right direction and avoid taking steps backward. I support the nomination of Michael Chertoff as Secretary of Homeland Security and look forward to working with him to ensure that the American people can depend on a national transportation system that is as safe and secure as possible.

Mr. President, I yield 5 minutes to the distinguished Senator from Tennessee.

Mr. President, I yield 5 minutes to the distinguished Senator from Virginia and, from the minority's time, I will yield 10 minutes to the distinguished Senator from New York.

Mr. President, I thank my colleague from New York for his excellent statement.

I see a very valuable member of the committee, the Senator from Hawaii, is here to speak. I am prepared to yield to him 10 minutes from the minority side.

Mr. President, I thank my colleague from Hawaii for his excellent statement. He is a very valuable member of the committee, and I very much enjoy working with him.

I rise again today in support of the nomination of Judge Michael Chertoff to be the new Secretary of Homeland Security. As the Presiding Officer knows better than most, this is one of the most challenging and critical jobs in the entire Federal Government. Judge Chertoff is clearly the right person to take the helm of this Department, and it is past time to put him in that post.

The Committee on Homeland Security and Governmental Affairs held a nomination hearing for Judge Chertoff on February 2. It was a long and thorough hearing. Judge Chertoff answered every question posed to him fully and candidly. His responses to more than 250 written questions my committee presented to him were just as forthright. His nomination was endorsed by a unanimous vote.

I mention this because there should be no impression among our colleagues that our committee did not do a thorough job in questioning Judge Chertoff. To the contrary, he was subjected to hundreds of questions. He responded to every question posed to him at our committee's lengthy nomination hearing. And every member of the committee, on both sides of the aisle, had ample opportunity to question Judge Chertoff on whatever issues they wished to raise with him.

In fact, I am aware of no opposition to his nomination. Virtually the only issue we have debated during the course of these proceedings is one that I believe has no bearing whatsoever on Judge Chertoff's fitness to serve in this critical capacity. This issue is the demand, by a few of our colleagues, for information regarding the FBI's personnel working at Guantanamo Bay's detention facility and what information they may have had about interrogation techniques used on detainees by Department of Defense personnel.

Let me make clear that all of us have concerns about the proper and humane treatment of our detainees. The distinguished chairman of the Armed Services Committee, who also serves on our committee, held a number of hearings to explore the treatment of detainees. It is my understanding that the Senate Intelligence Committee is also embarking on an investigation of the treatment of detainees by CIA personnel. So this is an issue. But the problem is, this is not an issue in which Judge Chertoff has been involved in setting policy. He is being asked for information he simply does not have.

At our committee's nomination hearing, Judge Chertoff was asked about these concerns by my distinguished colleague from Michigan, Senator Levin. Judge Chertoff's answer was unequivocal. Let me read it to you. He said:

I was not aware during my tenure at the Department of

Justice that there were practices at Guantanamo, if there

were practices at Guantanamo, that would be torture or

anything even approaching torture.

He was not aware--not he did not recall not he was not sure; He was not aware. That is unambiguous testimony.

Our responsibility as Senators to advise and consent on executive branch nominees is a solemn one. It is one, as chairman of the committee, I take very seriously. If there were a good reason to delay consideration of a nomination in order to secure important information, then delay would be appropriate; it would be called for. But expecting a nominee to provide information that he has sworn under oath he does not know is not a good reason for delaying his nomination.

The questions about Judge Chertoff's knowledge of the treatment of detainees have been asked and answered, repeatedly. They have been asked in prehearing questions. They have been asked at the hearing. And they have been asked posthearing.

Judge Michael Chertoff is eminently qualified for this important position. In his distinguished career, he has established a strong reputation as a tough prosecutor. But he has established a reputation as a fierce defender of civil liberties. His position on the balance between these two critical roles was made clear in his testimony before the committee. He said:

I believe that we cannot live in liberty without security,

but we would not want to live in security without liberty.

I cannot think of a more eloquent statement by a nominee, showing us--demonstrating beyond a doubt--he clearly understands that as he increases security for our Nation, he must be ever mindful of privacy rights, of civil liberties, of the very freedoms that define us as Americans, and that we cherish. Indeed, we would be handing the terrorists a victory if we so

compromised our freedoms in the name of security. Judge Chertoff understands that tension, that balance, the need for constant evaluation.

Judge Chertoff has also demonstrated a great ability to work with law enforcement agencies at all levels of Government. He has a keen understanding of the broad range of homeland security vulnerabilities faced by States and communities throughout the country.

When I have talked to law enforcement officials from Maine to California about Judge Chertoff, they have unanimously and enthusiastically embraced his nomination. They know he will listen to State and local law enforcement, and that he views them as partners in our fight to tighten and improve our homeland security.

I point out that Judge Chertoff was confirmed three times previously by this body. He was confirmed overwhelmingly by both sides of the aisle 2 years ago for one of the highest courts in the land. And now, having attained a lifelong appointment at the pinnacle of his legal profession, he nevertheless is giving that up. He is giving up a lifetime appointment on one of the most prestigious courts in the country to step forward to serve our Nation in one of the most difficult jobs imaginable, one of the most thankless jobs in the Federal Government.

I remind my colleagues of what he told our committee when I asked him why he was willing to give up that judgeship, why he was willing to make that sacrifice. He said--and his words are eloquent--

September 11th and the challenge it posed was, at least to

my lights, the greatest challenge of my generation, and it

was one that touched me both personally and in my work at the

Department of Justice.

The call to serve in helping to protect America was the one

call I could not decline.

We are fortunate to have an individual of Michael Chertoff's quality, with his commitment to public service, who is willing to answer the call of his country. I hope he will be unanimously confirmed later this afternoon.

I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent to speak as in morning business for up to 10 minutes and that this speech not interrupt the debate on the Chertoff nomination.

Mr. President, I will withhold that request so that the Senator from New Jersey, who has just come to the Chamber, may speak on the nomination. I yield him 10 minutes from the minority side.

Mr. President, I will make clear that it is coming from the Democrats' time.

Mr. President, earlier today, the senior Senator from Massachusetts spoke on this nomination. I have enormous respect and affection for my colleague from New England, but on this occasion I believe his comments were well off the mark. Here are some of the words my colleague spoke:

Our problems with the administration on this nomination

pale in comparison with the failure of the Senate Republican

majority to carry out its own constitutional responsibilities

on this nomination. Instead of insisting on adequate answers

to questions raised by the documents, they have acquiesced in

the Government's coverup and abdicated their own independent

constitutional responsibility to provide advice and consent.

I sincerely believe that were I fortunate enough to have the senior Senator from Massachusetts serve on the committee the Presiding Officer and I serve on, he would never have said those words or reached such a harsh judgment.

He went on in his statement to call these proceedings ``a blatantly defective consent.'' Again, I so wish that the senior Senator from Massachusetts had had the opportunity to participate in our committee's process. He would have found that our committee has the most thorough process for considering nominations of any committee in the entire Senate. I believe our committee is the only one, for example, that has the staff on both sides of the aisle interview the nominee. We posed to Judge Chertoff 250 written questions, both before the hearing and after the hearing. We had a lengthy hearing in which members on both sides of the aisle were free to ask the toughest questions possible to the nominee.

There was no limit on the questions that could be submitted for the record, and the nominee sat for hours patiently, fully, and candidly answering the questions posed to him by the members of the committee. So I believe that the judgment of the Senator from Massachusetts does not reflect the process we undertook for this nominee. I truly wish he could have seen the process because I think he would have reached a different conclusion. And I say that with a great deal of personal affection for my friend from Massachusetts.

The fact is, first, that Judge Chertoff has undergone intense scrutiny by the Homeland Security and Governmental Affairs Committee. I cannot imagine how anyone could conclude, given the number and the scope of questions posed to the judge, that this was somehow ``defective consent.''

Second, on the issue of the e-mails and the nominee's knowledge of questionable interrogation techniques used by certain DOD personnel at Guantanamo, Judge Chertoff's testimony could not have been clearer. He told the committee under oath that he was ``not aware'' of any practices at Guantanamo that ``even approach[ed] torture.'' He said he had ``no knowledge'' of any interrogation techniques other than those that he described as ``plain vanilla.'' These are straightforward, plain words--``I was not aware''; ``I had no knowledge.'' They are not susceptible to multiple interpretations. They are not ambiguous. They do not suggest the need to refresh the nominee's recollection. They do not invite speculation as to what the nominee meant. And there is only one reason why some of our colleagues would feel the need to ask other people about what they said to Judge Chertoff, and that is, if we did not believe him.

This is a distinguished public servant, a sitting Federal judge who is testifying before our committee under oath. There is no reason to doubt his testimony. His testimony was clear, it was forthright, it was candid. It is demeaning to suggest that somehow we need to probe this further because we do not believe this distinguished public official.

I asked this question yesterday, but I am going to repeat it again: Since when have we become so cynical about good people who are willing to step forward, sacrifice, and serve our country? How could our colleagues from Michigan and Massachusetts come to this floor, praise Judge Chertoff, pledge to vote to confirm him, and then condemn the nomination process when we have concluded that the judge gave us truthful, straightforward answers, and we have no reason to doubt the answers he gave us? He was not evasive. He was straightforward. It does not make sense to criticize the process because the committee refuses to engage in an exercise that, at its core, is built upon the premise that Judge Chertoff is somehow being less than truthful with the committee. I reject that premise. There is no basis for it.

Let me close these remarks by saying a word about the Senate's constitutional role of advise and consent because I think a lot that has been said about this role misses an essential point.

We, the Senate, advise and consent. It is the President who appoints. We do not appoint. Sometimes I think some of my colleagues believe the Senate should do all of the appointing for the President, but that is not how the system works. That is not how our Constitution works. Indeed, as Professor Laurence Tribe has noted--and he is a liberal law scholar, not a conservative one--the appointments clause ``seeks to preserve an executive check upon legislative authority in the interest of avoiding an undue concentration of power in Congress''--in Congress--``in executing our responsibilities.''

We should do well to remember that it is the President who is appointing these positions. It is our job to advise and consent. We have performed that job well in this case. We subjected this nominee to extraordinary scrutiny, despite the fact that he has already been confirmed by this body three previous times. Nevertheless, as is appropriate, we went through a full confirmation process with a review of his biographical questionnaire, his finances, with a full FBI check, with an extensive public hearing that stretched several

hours, and with 250 written questions, primarily from Democratic members, submitted to him for response. What more can we ask? What more can we ask of a nominee who is simply stepping forward to answer the call to serve his country? And what more can we ask of a Senate committee in carrying out this solemn duty with which we are vested?

As much as I have respect and affection for my colleague, the senior Senator from Massachusetts, I cannot let his comments pass. That is why I felt compelled to explain to all of my colleagues what the process was and that the Senator's description simply does not reflect what was done. I am certain--absolutely certain--that had he been a member of the committee, had he joined with us in the nomination hearing, he would have reached an entirely different conclusion about the integrity and thoroughness of the process.

I thank the Chair.

Mr. President, I do anticipate that further of my colleagues will be coming to the floor. I will yield to them when that happens.

(The remarks of Ms. Collins pertaining to the introduction of S. 380 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. President, I ask unanimous consent the quorum call I am about to invoke be charged equally to both sides.

Mr. President, I suggest the absence of a quorum.

Mr. President, today the Senate will complete the consideration of the nomination of Michael Chertoff to head the Department of Homeland Security.

Judge Chertoff currently serves as a Federal judge on the Court of Appeals for the Third Circuit. This is a lifetime appointment that he has held for a relatively short time and that he will be abandoning to return to executive branch service. I helped expedite and voted in favor of Judge Chertoff when his nomination to the third circuit came to the Senate in 2003.

Before that he was the Assistant Attorney General in charge of the Criminal Division at the Department of Justice. I helped expedite and voted in favor of that nomination in 2001.

I have worked with Mike Chertoff and appreciate his background as a prosecutor. He is very capable. He works hard. What one sees when you consider his career is that much of the time he acts as a consummate professional in our best tradition. Although there have been times when he has shown partisanship in an apparent effort to ``earn his spurs'' with those on the extreme right, it is my hope and expectation that he will bring his better angels with him as he embarks on his new role as Secretary of the Office of Homeland Security. That is not a position that needs or deserves even a hint of partisanship. Indeed, one of the moments that marred Secretary Ridge's tenure was when he stepped out of character to make a blatantly partisan pitch during the run-up to the recent presidential election.

I was astonished when President Bush announced that he had chosen Bernie Kerik to replace Secretary Ridge. When newspapers and news magazines began looking at that nomination, it became apparent that the vetting of that nomination was shoddy and that Mr. Kerik was an unacceptable choice on a number of grounds. That misadventure cost us time and led to Judge Chertoff's nomination being made later than it should have been by the administration.

The Senate has expedited consideration of this nomination. In what I hope is a sign of better days to come and of increased responsiveness, I note that this nominee has responded in kind by seeking to answer in one day's time a letter I sent to him. I appreciate that kind of responsiveness.

In light of his effort, I will excuse his missing the point in failing to respond directly to my first question. I raised with the nominee an aspect of his conversations with representatives of the intelligence community while he was serving as a principal law enforcer charged with prosecutions under the anti-torture law. My question to Judge Chertoff was an opportunity for him to reflect on the inappropriateness of the chief prosecutor advising lawyers for possible investigatory targets regarding how he would apply the law and what might provide a safe harbor when it came to torture.

I commend Senator Levin for trying to get to the substance of those conversations during confirmation hearings. Sadly but all too characteristically, the Bush administration has refused to provide him or the Senate with the relevant materials in this regard. I am, likewise, concerned that Mr. Chertoff was not more assertive during discussions with the Office of Legal Counsel as it headed down the wrong road in trying artificially to narrow the definition of torture to provide latitude that contributed to widespread international scandals in our wrongful treatment of prisoners. I wish someone within the Bush administration at the time had stood up for the rule of law and had succeeded in derailing the search directed by Judge Gonzales to create loopholes in our law.

I appreciate that Judge Chertoff has committed to implementing the recommendations of the inspector general with respect to preserving the civil rights of those detained by the Government in his answer to my second question. That inquiry derived from his testimony to the Judiciary Committee in November 2001.

Finally, I asked a series of questions about the so-called ``wall'' between law

enforcement investigations and intelligence. The 9/11 Commission report went a long way toward dismantling the myth that former Attorney General Ashcroft had tried to perpetuate. I recall when even President Bush upbraided Attorney General Ashcroft following his assault upon Commissioner Gorelick at the 9/11 Commission hearings.

I pointed out that during the Clinton administration almost one year before September 11, 2001, the Department of Justice Office of Legal Counsel had issued an official memorandum noting the Government's position on ``Sharing Title III Electronic Surveillance Material with the Intelligence Community,'' which concluded that law enforcement officials may share surveillance information with the intelligence community to obtain assistance in preventing, investigating or prosecuting a crime, or where the information was of overriding importance to national security or foreign relations.

As Judge Chertoff recalls, it was Attorney General Ashcroft who adopted measures on January 21, 2000, and it was the memorandum issued by Deputy Attorney General Thompson on August 6, 2001, that governed information sharing in the days leading to the disaster that was September 11. Indeed, Judge Chertoff notes: ``When it was deemed to be appropriate, additional procedures were put in place in specific cases, or in sets of related cases.'' He proceeds to concede that without any change in the law, in the time between September 11 and enactment of the USA PATRIOT Act: ``With court approval, some of these procedures were modified between 9/11 and October 26, 2001, the effective date of the USA PATRIOT Act.''

The 9/11 Commission established during its investigation that in the days and months before September 11, 2001, information sharing requirements and procedures were misunderstood and misapplied at the Department of Justice. I appreciated Judge Chertoff's offering a glimpse into the inner workings of the Ashcroft Justice Department in the days that led up to 9/11 when he noted that there was a ``vigorous internal debate about the appropriate procedures for sharing information collected in foreign intelligence and counterterrorism investigations with criminal agents and prosecutors.'' That ``internal debate'' was unresolved on September 11, 2001, when terrorists struck in New York and at the Pentagon and were thwarted in the sky over Pennsylvania.

When the Justice Department came forward to work with the Senate in the weeks following the attacks, I worked with Mr. Chertoff to ensure that law enforcement and intelligence efforts were better coordinated, and I urged him, the Attorney General and the Director of the FBI to change the culture that had led to destructive and dysfunctional hoarding of essential security information.

I ask unanimous consent that copies of my letter to Judge Chertoff and his response be printed in the Record.

Heading the Department of Homeland Security is a position that may be one of the more difficult assignments in Washington and in Government. The work of the Department of Homeland Security, DHS, is crucial to the safety and security of the American people. There remain many problems in integrating the elements of the Department and in making them as effective as we need them to be. I remain concerned with a number of issues in need of greater attention at DHS and much more significant support from the highest levels of the Bush administration. Working with Secretary Chertoff, maybe we will be able to get that attention and support.

The Bush administration has failed to provide the necessary assistance for first responders throughout our Nation. As the costs borne by law enforcement agencies across the country continue to rise, we need to increase the partnership help offered to our nation's first responders. Instead, in the President's new budget, he has proposed cutting overall funding for first responders by $670 million. These cuts target vital emergency services affecting every State, regardless of size or population. The President also proposed cutting the all- State minimum for first-responder grants from 0.75 percent to 0.25 percent. That new formula would result in the loss of funds to police, firefighters and emergency rescue squads in dozens of states from coast to coast. In Vermont, this would mean a loss of at least $10 million dollars in fiscal year 2006--grant funds that are used to provide security services along thousands of miles of our border with three states. Vermont's border with Canada spans approximately 95 miles, but the Swanton Border Patrol is charged with protecting 24,000 square miles, which includes not only the entire State of Vermont, but also numerous counties in New York and New Hampshire. Within this area, the Swanton Border Patrol is required to patrol more than 261 miles of International Boundary.

Our approach to port security is also insufficient. More than 90 percent of the world's trade is moved in cargo containers. The Government Accountability Office has found that the information that the Bureau of Customs and Border Patrol uses to determine which cargo should be searched is ``one of the least reliable or useful for targeting purposes.'' In addition, our government has been slow to install radiation detection portals at our ports, leaving us vulnerable to the smuggling of a nuclear or radiological weapon.

Mass Transit Measures Idle. Our mass transit systems are similarly at risk. While we spent about $4.5 billion on aviation security last year, we devoted only $65 million to rail security, even though five times as many people take trains as planes every day. The

Madrid bombing vividly demonstrated the potential vulnerability of mass transit, and I am concerned that the administration is not responding effectively enough to this threat. This needs to be a higher priority than the administration has made it. The TSA has been slow in developing security procedures at port and rail facilities around the country, and our transit and freight transportation systems remain at risk. The recent DHS budget submission cuts funding for the following essential security programs: port security grants, port security incident response, intercity bus grants, container threat assessments, nuclear detection and monitoring, hazmat truck tracking and training, and rail security inspectors.

Air Security Concerns Linger. Despite the dedicated resources to aviation security, problems remain. There have been several reorganizations of the TSA's airport screeners program, but reports from the GAO and the DHS Office of Inspector General suggest that the screening programs for baggage and passengers at our nation's airports are not as effective as they should be. We need to ensure that the $4,734,784,000 budget request for aviation security this year is spent wisely and properly.

Secretary Chertoff, if he is confirmed, will oversee both the enforcement of our immigration laws and the granting of immigration benefits. We face a number of important choices on immigration in the coming years, and I hope that he will play a constructive role.

I urge him to support the bipartisan efforts in Congress to improve the H-2B visa program, so we can meet the needs of small employers around our nation who depend on seasonal immigrant labor to stay in business. I hope he will support the bipartisan ``AgJOBS'' bill, which provides relief both to the agriculture industry and to the immigrant farm workers who make up a majority of the farm workforce in our nation. And as the Congress debates fundamental immigration reform, I hope that Judge Chertoff will work to help ensure that any reform efforts recognize and embrace the tremendous contributions of immigrants to our economy and our culture.

I would like to note the release last week of a report by the U.S. Commission on International Religious Freedom, a bipartisan commission created by Congress that we asked to study the expedited removal system and its effect on asylum seekers. In his response to me last week, Judge Chertoff showed a commendable concern for the civil rights of those who were detained due to alleged immigration violations during the 9/11 investigation. His concern should be even more pronounced here, where the Commission found that DHS detains people who seek refuge in the United States--and are not even accused of committing any criminal or civil violation--under conditions that ``are entirely inappropriate for asylum seekers fleeing persecution.''

If we are to recapture America's rightful place as a haven for the oppressed, the tragic situation of asylum seekers must be rectified. The Commission offered a number of recommendations that can be implemented through administrative action, such as establishing an office within DHS to oversee the treatment of refugees and asylum seekers and issuing formal regulations governing when asylum seekers should be released from detention. I urge Judge Chertoff to begin the process of making these changes immediately.

As secretary, Judge Chertoff will also supervise a number of outstanding Federal employees who are Vermonters and work for various components of the Department, particularly in DHS' immigration agencies. I believe he will be pleased with their efforts and their expertise.

Secretary Ridge and I have disagreed strongly about DHS' efforts to privatize Immigration Information Officer, IIO, and other positions at the agency, and Congress has barred that privatization for the current fiscal year. Among other duties, IIOs perform background checks on applicants for immigration benefits, a function that should be performed by government employees. I urge Secretary Chertoff to consider the repeated votes of both the House and Senate to maintain these positions as government employees and to make no effort to revisit the unwise and unpopular efforts of his predecessor.

I will support this nomination. Secretary Chertoff will face great challenges ahead. I hope that he will work with me and others, on both sides of the aisle, in finding the best solutions in meeting them.