Kalaupapa Memorial Act of 2008

Mr. President, I rise today to introduce legislation to help millions of Americans overcome a deadly addiction: the addiction to tobacco. The Medicare, Medicaid and MCH Smoking Cessation Promotion Act of 2008 will help make smoking cessation therapy available to recipients of Medicare, Medicaid, and the Maternal and Child Health, MCH, Program.

More than 45 million adults in the United States smoke cigarettes. Approximately 90 percent started smoking before the age of 14. Despite the fact that we have known for decades that cigarette smoking are the leading preventable cause of death, 1,600 adults become regular smokers each day, including 4,000 kids. Depending on your race/ethnicity, socioeconomic status, even where you live, the likelihood that you are a smoker varies greatly. African-Americans are twice as likely as the general population to smoke. Communities in the South are more likely to be smoker-friendly than other communities in the U.S. While 22.5 percent of the general adult population in the U.S. are current smokers, the percentage is about 50 percent higher among Medicaid recipients. Thirty-six percent of adults covered by Medicaid smoke.

We have a moral argument and an economic argument to end the addiction to nicotine. Morally, how do we ignore the deaths of 438,000 smokers or 8.6 million Americans living with serious smoking-related illnesses? Smoking causes virtually all cases of lung cancer and contributes to primary heart disease, peripheral vascular disease, chronic obstructive pulmonary disease, COPD, and other deadly health ailments. It is too often a bleak future for smokers and their families. An American Legacy Foundation report reminds us that second- hand smoke in children of smokers leads to asthma and chronic ear infections in children but also that 43,000 children are orphaned every year because of tobacco-related deaths.

We are not only paying a heavy health toll, but an economic price as well. According to the Campaign for Tobacco Free Kids, health care expenditures caused by smoking is approaching $100 billion. Our federal government pays $17.6 billion in smoking-caused Medicaid payments and $27.4 billion in smoking-caused Medicare expenditures.

Ironically, we do not hear that much about how many smokers America-- 70 percent--want to quit. Unfortunately, they face long odds--in 2000, only about 5 percent of smokers were successful in quitting long-term. Overcoming an addiction to tobacco is arguably one of the single most important lifestyle changes that can improve and extend lives. However, most smokers who want to quit don't appreciate how hard it really is to break an addition to nicotine.

This is why it is essential that we make this decision and the courage that it takes as easy as possible. States are already stepping up to the plate when it comes to smoking cessation. Last year in my home State of Illinois, a record-breaking 36 cities and counties enacted smoke-free laws, more than any other State in the Nation. More and more Illinoisans and Americans nationwide are realizing that life without smoking is possible. And the support for cessation does not end there. In fact, in 2003, 37 States had some form of coverage under Medicaid for at least one evidence-based treatment for smoking addiction. States like New Jersey and Oregon now have some of the lowest smoking-related Medicaid costs.

Studies have shown that reducing adult smoking through tobacco use treatment pays immediate dividends, both in terms of health improvements and cost savings. Shortly after quitting smoking, blood circulation improves, carbon monoxide levels in the blood decrease, the risk of heart attack decreases, lung function and breathing are improved, and coughing decreases.

Pregnant women who quit smoking before their second trimester decrease the chances that they will give birth to a low-birth-weight baby. Over the long term, quitting will reduce a person's risk of heart disease and stroke, improve symptoms of COPD, reduce the risk of developing smoking-caused cancer, and extend life expectancy.

We are fortunate to have identified clinically proven, effective strategies to help smokers quit. Advancements in treating tobacco use and nicotine addiction using pharmacotherapy and counseling have helped millions kick the habit. An updated clinical practice guideline released in May of 2008 by the U.S. Public Health Service urges health care insurers and purchasers to include counseling and FDA-approved pharmacologic treatments as a covered benefit. The Guideline also emphasizes the role that counseling, especially in conjunction with medication, increases the odds of success in quitting. As we urge healthcare insurers and purchasers to offer this important benefit, so too should our government sponsored health programs keep pace.

I am proud to be joined by my colleagues Senators Kennedy and Lautenberg to introduce the Medicare, Medicaid and MCH Smoking Cessation Promotion Act of 2008 and require government-sponsored health programs to cover this important benefit. The Medicare, Medicaid, and MCH Smoking Cessation Promotion Act of 2008 makes it easier for people to have access to smoking cessation treatment therapies. It does three meaningful things.

First, this bill adds a smoking cessation counseling benefit and coverage of FDA-approved tobacco cessation drugs to Medicare. By 2020, 17 percent of the U.S. population will be 65 years of age or older. It is estimated that Medicare will pay $800 billion to treat tobacco related diseases over the next 20 years.

Second, this bill provides coverage for counseling, prescription and non-prescription smoking cessation drugs in the Medicaid program. The bill eliminates the provision in current federal law that allows States to exclude FDA-approved smoking cessation therapies from coverage under Medicaid. Despite the fact that the States have received payments from their successful Federal lawsuit against the tobacco industry, less than half the States provide coverage for smoking cessation in their Medicaid program. Even if Medicaid covered cessation products and services exclusively to pregnant women, we would see significant cost savings and health improvements. Children whose mothers smoke during pregnancy are almost twice as likely to develop asthma as those whose mothers did not. Over 7 years, reducing smoking prevalence by just one percentage point among pregnant women would prevent 57,200 low birth weight births and save $572 million in direct medical costs.

Third, this bill ensures that the Maternal and Child Health Program recognizes that medications used to promote smoking cessation and the inclusion of anti-tobacco messages in health promotion are considered part of quality maternal and child health services.

As Congress begins to examine more closely the impact of tobacco on our country--considering regulation by the FDA or raising taxes to pay for public health priorities--we must make sure we assist those fighting this deadly addiction. I hope my colleagues will join me in cosponsoring this legislation and taking a stand for the public health of our Nation.

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

Mr. Speaker, I fully support the provisions of this proposed bill. The bill proposes to establish a memorial to honor the memory of all those people who became victims to the dreaded disease of leprosy, commonly known as Hansen's disease. I certainly want to commend my good friend and colleague the gentlewoman from Hawaii (Ms. Hirono) and our colleague Congressman Abercrombie for their cosponsorship or sponsorship of this important legislation.

Mr. Speaker, I also want to commend the chairman of our committee, Chairman Rahall, and our ranking member, Mr. Young, for their support and their leadership in bringing this legislation to the floor.

In 1987, I was honored to be asked by the Polynesian Voyaging Society, under the leadership of my good friend and brother Nainoa Thompson, to serve as a member of the crew of the Hawaiian Polynesian voyaging canoe known as the Hokule'a on which we were able to sail from the island of Runayto near the island of Tahiti. We sailed to Hawaii by means of traditional noninstrument navigation. It took us about 27 days when we landed on the big island of Hawaii. From the island of Hawaii, we went to Kalaupapa. It's Kalaupapa, located on the northern part of the island of Molokai, one of the islands that make up the State of Hawaii. This legislation brings back one of the most memorable experiences of my life, Mr. Speaker, my visit to Kalaupapa.

Kalaupapa is not only a national historical park but a place that has received international attention on account of the circumstances and events surrounding the history of what then took place under the sovereign kingdom of Hawaii in the early 1800s. Before the arrival of the Europeans, there were some 300,000 Native Hawaiians living on these islands. The warrior chief King Kamehameha with some 20,000 warriors and some 900 war canoes finally was able to unite these islands under one rule after some 2,000 years of conflict among the ruling chiefs of these islands.

What also occurred was the illnesses and the many diseases that Europeans brought to these islands, and one of these diseases was leprosy, or Hansen's disease. And the unfortunate situation at the time, having no knowledge or understanding of how they were going to cure it, the Native Hawaiians were not immune to this kind of sickness or illness. So the only way to, in any sense, prevent a health hazard was to send them to an isolated place where many of these Native Hawaiians became subjected to this dreaded disease, leprosy.

In the process, we also had probably, in my humble opinion, Mr. Speaker, one of the great leaders in the world, a Catholic priest originally from Belgium, named Father Damien. Father Damien, if there is anything that I could ever say the epitome of what the pure love of God is, this was one man who voluntarily ministered to these people, who lived in this colony or this settlement. It was full of lepers, and he voluntarily subjected himself even to this contagious disease, after 12 years of helping the people who lived there build chapels, build schools, and even helped bury those who died as a result of this dreaded disease.

Father Damien, as you know and maybe my colleagues are aware, was given as one of the two leaders representing the great State of Hawaii right here in Statuary Hall. And the beautiful story about this Catholic priest was the fact that he voluntarily gave his life in order to serve the people who contracted this dreaded disease leprosy on this beautiful area that is called Kalaupapa.

There was also another gentleman, and it might be as a matter of knowledge to my good friend from the State of Utah. At that time, it wasn't just people who were forced to have to live in this isolated settlement, but it caused so much sorrow and sadness where even those who were loved ones, your wives, your husbands, your daughters, your sons, and one of these leaders voluntarily went because his wife eventually contracted leprosy. His name was Jonathan Napela. He was a Native Hawaiian leader and was a high priest and a member of the Church of Latter Day Saints, commonly known today as the Mormon Church. And because of the love of his wife, he voluntarily went and lived there, and he also contracted the disease of leprosy. It was known as the program of kokua.

The interesting thing about Jonathan Napela was that this Native Hawaiian was able to translate the Book of Mormon from English into the Native Hawaiian language, along with another Mormon elder from Utah by the name of George Cannon. Jonathan Napela spent the last years of his life in this leper settlement because of the love for his wife, Kitty, who also contracted this.

There was a lot of controversy about the life of Father Damien at the time. The relationships between the Protestants and the Catholics were not very positive. In fact, according to the records, a minister of the Presbyterian Church, Reverend Hyde, castigated and literally criticized Father Damien for some of the things that he did. And in response there was another noted leader at that time, an author and a Scotsman from Scotland, who happens to be Robert Louis Stevenson, who had also contracted TB, tuberculosis. And trying to help his health, he spent the last 4 years of his life in my islands, the Samoan Islands. And to this day, Robert Louis Stevenson's grave is still there. Despite the wishes and desires of the Scottish people and the government to return his remains, we said no.

But the point that I wanted to make is that in response to the criticism that Father Damien got from his fellow ministers or those men of the cloth, I want to share with my colleagues Robert Louis Stevenson's response:

``When we have failed, and another has succeeded; when we have stood by, and another has stepped in; when we sit and grow bulky in our charming mansions,'' and he's talking about this minister, now, ``and a plain, uncouth peasant steps into the battle, under the eyes of God, and succours the afflicted, and consoles the dying, and is himself afflicted in his turn, and dies upon the field of honour, the battle cannot be retrieved as your unhappy irritation has suggested. It is a lost battle, and lost forever.''

My point of this is, Mr. Speaker, this national historical park Kalaupapa, I wish every Member of Congress would go and visit, just like my colleague from Hawaii, Congresswoman Hirono. It's one of the most beautiful areas and sites that anybody would ever want to see north of the island of Molokai.

I wanted to share this with my colleagues because this Kalaupapa is not as unknown as some people may think or believe, and I thank the gentlewoman from Hawaii for having this proposed bill, that we should build a memorial to the thousands of Native Hawaiians and other races who had also contracted this dreaded disease and should be recognized for the sacrifices that they have had to make.

With that, Mr. Speaker, again, I thank my good friend from Arizona for giving me time to speak.

I thank the gentleman for yielding.

Mr. Speaker, I rise to speak in support of H.R. 3332.

Kalaupapa is a 2\1/4\-mile-wide shelf of land jutting out beneath sea cliff ranging from 1,600 to 3,000 feet in height on the island of Molokai. It is an incredibly beautiful and isolated area with a unique history.

This bill authorizes the establishment of a memorial at Kalaupapa National Historical Park in the memory of those who were forcibly relocated there because they suffered from or were suspected of having Hansen's disease, or leprosy. Once sent to Kalaupapa, most never saw their homes or their families again.

Kahauliko, Loe, Liilii, Puha, Kini, Lono, Waipio, Kainana, Kaumoana, Nahuina, Lakapu, and Kepihe. These are the names of the first 12 people who were exiled to Kalaupapa on January 6, 1886, 142 years ago.

This poster is a copy of the Kingdom of Hawaii's register, now at the Hawaii State Archives, of those sent to Kalaupapa Peninsula. These first 12 were all Native Hawaiians, nine men and three women. From that day forward until 1969, approximately 8,000 people living in the Hawaii Islands were taken from their families and isolated on Kalaupapa Peninsula, first in Kalawao, and later in the town of Kalaupapa. Because of society's fear of leprosy, which we now call Hansen's disease, food was scarce, and shelter and health care were minimal for the new arrivals. The mortality rate for exiles in the first 5 years was 46 percent due to the poor conditions.

``An Act to Prevent the Spread of Leprosy'' was first signed into law in 1865 by Lot Kamehameha, the King of Hawaii. The act essentially criminalized the disease. Children, mothers, and fathers were forcibly separated. Children born to parents at Kalaupapa were taken away from their mothers and sent to live in orphanages or with other family members outside of Kalaupapa.

The policy was continued in the Republic of Hawaii after Hawaii was annexed by the United States and into statehood. Hawaii's isolation laws for people with Hansen's disease were not repealed until 1969, 10 years after statehood, even though medications to control the disease have been available since the late 1950s.

Nearly 6,700 of the approximately 8,000 people who have died at Kalaupapa, more than 75 percent, lie in unmarked or unidentifiable graves. Their names are known only in the official records, which are not easily accessible.

A memorial listing the names of those who were exiled to Kalaupapa and died there is a fitting tribute and is consistent with the purpose of the park, to preserve and interpret the Kalaupapa settlement for the education and inspiration of present and future generations.

Many have heard of the sacrifices of Father Damien, who is represented by one of Hawaii's two statues in this Capitol, as well as those of Mother Marianne Cope and Brother Dutton, who each gave decades of their lives to care for the patients at Kalaupapa. Fewer know, however, of the courage and sacrifices of the exiles who were torn from their families and all they knew to make a life in this isolated area. It is important that their lives be remembered.

The Kalaupapa memorial will bring these people back to their rightful places in their family genealogy and history. Many families have gone to Kalaupapa to search for the graves of their ancestors; but with only 1,300 marked graves, most are disappointed.

In a letter of support for the memorial, David and Chris Mahelona explained why they, as Native Hawaiians, feel an urgent need for a monument that would list the names of everyone sent to Kalaupapa.

I quote: ``The naming process and the giving of a Hawaiian name is an important and sacred component of traditional Hawaiian culture. It is said that names carry significant mana, spiritual power, and they are actually a part of the person, just like an arm or leg. In ancient Hawaii, a person's name was one of the most precious possessions unique to that individual, and most times related to an event, an ancestor, or a personality trait. In every case, the kapuna (elders) are always consulted. It was the responsibility of the bearer of the name to carry its weight. Therefore, it is important to remember these people by their names at their final resting place.''

I would also like to read the testimony that Kuulei Bell, president of Ka 'Ohana O Kalaupapa, submitted to Congress. Kuulei, who contracted Hansen's disease at age 6, is now 74. And I recently visited her at Queens Hospital in Honolulu.

Kuulei testified: ``We need to remember the people who have dedicated their lives and came to Kalaupapa. Father Damien, who we love so much, came to take care of all those in Kalaupapa in the 1800s, and he became one of us, contracted the disease, and so we know how this is.

``And also we know that Mother Marianne gave her aloha and love with all the nuns to come and take care of the patients. They need to be remembered.

``These things are so important, and the monument is a big part of our history and our lives.

``So please consider what we are asking for is our history and for our children to know what happened to many

of our patients. How sad it was for my mother, who had to wait for me to go and she could not even touch me because of the disease. And I could not even touch my children. These are the things that we should consider, how important it is. These are the memories. So please consider these things. I say these things from my heart and I hope that you hear it.''

Kuulei ended her testimony thus: ``Thank you for listening to this. Aloha and much aloha; much, much mahalo.''

Ka 'Ohana O Kalaupapa, a nonprofit organization consisting of patient residents at Kalaupapa National Historical Park and their family members and friends, was established in 2003 to promote the value and dignity of the exiles of Kalaupapa and to make certain that the lives of these individuals are honored and remembered through establishment of a memorial or memorials within the boundaries of the park at Kalawao or Kalaupapa.

I want to thank House Natural Resources Committee Chair Nick Rahall and Parks Subcommittee Chair Raul Grijalva for helping to move this important bill to the floor, and I also want to thank my cosponsor, Congressman Neil Abercrombie, for his strong support and assistance.

Most of all, I send my heartfelt aloha and mahalo to all the members of Ka 'Ohana O Kalaupapa, to all the Kalaupapa patients and their families, and most especially to Kuulei on this momentous day.

I ask all of my colleagues to vote ``yes'' on H.R. 3332.

Mr. President, I rise today to introduce, on behalf of myself and Senators Sessions, Murkowski, and Landrieu, a bill that establishes the foundation for a sustainable nuclear fuel cycle for the U.S. A sustainable nuclear fuel cycle is the key to nuclear energy reaching its full potential to provide the large scale base load electrical generating capacity our country needs, while reducing greenhouse gas emissions. Today, nuclear energy provides nearly 20 percent of our electricity generation capacity and does so more reliably, and with a lower cost per kilowatt hour than coal, with essentially no greenhouse gas emissions. In the decades to come, we will need nuclear energy to play an even greater role, not only in electrical generation, but also in the transportation and industrial sectors, if we are to achieve the reductions in greenhouse gas emissions needed to address the challenge of global climate change. The Strengthening Management of Advanced Recycling Technologies Act, or SMART Act, represents the first important step in building the bridge to that future.

The SMART Act promotes the establishment of privately owned and operated used nuclear fuel storage and recycling facilities. These facilities will help resolve the current deadlock in spent nuclear fuel management while providing a means to extract additional energy from used nuclear fuel. I believe that a commercially viable used fuel recycling strategy, combined with a responsible waste disposition strategy, will enable the expansion of nuclear energy necessary to meet all our goals for the future of nuclear energy. The SMART Act advances this vision through incentives--rather than mandates--for both industry and local communities.

The SMART Act establishes a competitive 50-50 cost share program between the Department of Energy and private industry to finance engineering and design work and the development of license applications for up to 2 spent fuel recycling facilities. The SMART Act restricts facility designs to commercial scale facilities that do not separate pure plutonium. The recycling technology must also reduce the burden on geologic repositories used for ultimate disposal of waste and promote extraction of additional energy from used fuel stocks. Beyond these restrictions, the choice of recycling technology is left up to industry.

The resulting reference licenses for recycling facilities may then be used by industry to construct domestic used nuclear fuel recycling capacity. To assist industry in securing the necessary financing for these facilities, the SMART Act authorizes DOE to offer long term contracts for spent fuel recycling services. All construction and financing costs, however, would be born by industry.

Although ultimate geologic disposition of waste will always be needed, interim storage of used nuclear fuel is a

necessary component of the nuclear fuel cycle infrastructure. To encourage development of interim storage facilities the SMART Act establishes an economic incentive program for communities and states that wish to host a facility within their jurisdiction. All interim storage facilities would be privately owned and operated and licensed by the Nuclear Regulatory Commission. The SMART Act incentives are designed to encourage the development of two large scale facilities with enough capacity to accommodate our annual domestic used nuclear fuel generation.

As with the used fuel recycling facilities, the SMART act authorizes the Department of Energy to enter into long term contracts with storage facility operators. In addition, the SMART Act allows the Department of Energy to enter into agreements with utilities for the settlement of all future claims against the department for failure to take title to spent nuclear fuel by 1998.

Currently, the Nuclear Waste Fund established by the Nuclear Waste Policy Act of 1982 has a balance of approximately $20 billion and is growing by nearly $1.8 billion annually from fees paid by the utilities and interest on the fund. Unfortunately, this fund is currently ``on budget'' and amounts to little more than an IOU to the U.S. ratepayers. The SMART Act will allow access to a small portion of this fund so that it can begin working to resolve the nuclear waste issue as it was intended.

The SMART Act establishes a revolving fund from $1 billion of the current waste fund as well as the annual interest on the fund. The remaining 95 percent of the current waste fund, as well as all future fees, would be placed in a legacy fund for the purposes of constructing a geologic repository. Expenditures from the revolving fund for the provisions of the act could be made without further appropriations but would be subject to limitations in appropriations acts. In this way the revolving fund could be put to use without being subject to the uncertainty of the annual appropriations process while still retaining the authority of Congress to oversee the fund.

The resolution of the used nuclear fuel issue has been deadlocked for decades. Fortunately time has been on our side since nuclear energy produces so little waste. For example the nuclear waste generated by a family of four during their entire lives is only a couple of pounds. Some have even said that we do not need to begin recycling used nuclear fuel for 30 or 40 years. I do not believe we can wait that long before we resolve the used nuclear fuel issue, however. We must begin taking steps today that will place us on the path to a secure and sustainable nuclear energy industry in the future. We must demonstrate to industry and financial institutions the Government's commitment to resolving the used nuclear fuel issue. The SMART bill will place us on that path to the future.

Mr. President, I seek recognition today to introduce the Attorney-Client Privilege Protection Act of 2008, which is a modified version of my earlier legislation by the same name. This legislation, which adds original cosponsors, continues to address the Department of Justice's corporate prosecution guidelines. Those guidelines, last revised by former Deputy Attorney General Paul McNulty in December 2006, erode the attorney-client relationship by allowing prosecutors to request privileged information backed by the hammer of prosecution if the request is denied.

Like my previous bill, S. 186, this bill will protect the sanctity of the attorney-client relationship by prohibiting federal prosecutors and investigators from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation

of the attorney-client privilege, or agreement to a joint defense agreement.

The new version of the bill makes many subtle improvements, including defining ``organization'' to make clear that continuing criminal enterprises and terrorist organizations will not benefit from the bill's protections. The bill also clarifies language that the Department of Justice had previously criticized as ambiguous. The bill also makes clear in its findings that its prohibition on informal privilege waiver demands is far from unprecedented. The bill states: ``Congress recognized that law enforcement can effectively investigate without attorney-client privileged information when it banned Attorney General demands for privileged materials in the Racketeer Influenced and Corrupt Organizations Act. See 18 U.S.C. Sec. 1968(c)(2).''

There is no need to wait to see how the McNulty memorandum will operate in practice. There is similarly no need to wait for another internal Department of Justice reform that will likely fall short and be the fifth policy in the last 10 years. Any such internal reform will not address the privilege waiver policies of other government agencies that refer matters to the Department of Justice and allow in through the window what isn't allowed through the door.

As I said when I introduced S. 186, the right to counsel is too important to be passed over for prosecutorial convenience. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted. The 6th Amendment is a fundamental right afforded to individuals charged with a crime and guarantees proper representation by counsel throughout a prosecution. However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law. As the Supreme Court observed in Upjohn Co. v. United States, ``the attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.'' When the Upjohn Court affirmed that attorney-client privilege protections apply to corporate internal legal dialogue, the Court manifested in the law the importance of the attorney-client privilege in encouraging full and frank communication between attorneys and their clients, as well as the broader public interests the privilege serves in fostering the observance of law and the administration of justice. The Upjohn Court also made clear that the value of legal advice and advocacy depends on the lawyer having been fully informed by the client.

In addition to the importance of the right to counsel, it is also fundamental that the Government has the burden of investigating and proving its own case. Privilege waiver tends to transfer this burden to the organization under investigation. As a former prosecutor, I am well aware of the enormous power and tools a prosecutor has at his or her disposal. The prosecutor has enough power without the coercive tools of the privilege waiver, whether that waiver policy is embodied in the Holder, Thompson, McCallum, McNulty--or a future Filip--memorandum.

As in S. 186, this bill amends title 18 of the United States Code by adding a new section, Sec. 3014, that would prohibit any agent or attorney of the U.S. Government in any criminal or civil case to demand or request the disclosure of any communication protected by the attorney-client privilege or attorney work product. The bill would also prohibit government lawyers and agents from basing any charge or adverse treatment on whether an organization pays attorneys' fees for its employees or signs a joint defense agreement.

This legislation is needed to ensure that basic protections of the attorney-client relationship are preserved in Federal prosecutions and investigations.