Electronic Employment Verification Reauthorization Act of 2008

Mr. President, I have no objection.

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

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, not counting leader time, what is the provision of time once Senator Feingold has introduced his second- degree amendment?

Mr. President, I see the Senator from Wisconsin. I ask, of the half hour on this side, that 15 minutes be given to the distinguished Senator from Wisconsin, 10 minutes to the senior Senator from West Virginia, 5 minutes to the distinguished senior Senator from Massachusetts, and that the Senator from Vermont who is a cosponsor be allowed to submit a statement as though read for the Record.

Mr. President, I support the Feingold-Reid-Leahy Amendment because it specifically requires the President to begin the redeployment of American forces in Iraq within 90 days. Within 9 months of enactment, the redeployment would be completed and funding terminated for Iraq operations with narrow exceptions for a limited number of counterterrorism, force protection, and troop training missions.

The President's so-called ``surge'' is just another word for escalation. It has failed to set the lasting conditions for peace. Violence, though down, still continues at horrifying rates. The various Iraqi factions have made little progress towards political reconciliation. The deadly rifts in that war-torn country have only grown deeper. The Iraqi government has done little to support the few encouraging trends like the willingness of some Sunni groups to turn against the insurgency.

The only thing that is going to force the Iraqis to come to terms-- the only way to get Iraq's neighbors involved in bringing about peace there--is to make clear that our country is not going to be there forever. We cannot afford to spend more of our precious resources and to spill more of the precious blood of our troops if the Iraqis will not take responsibility for their own future.

There is a way to begin to right the wrongs of the President's failed policy on Iraq. That better path involves effective diplomacy and a strong signal about our finite military presence in Iraq, not this senseless waste of money and lives. The Feingold-Reid-Leahy Amendment offers the real promise of a long-term positive outcome for our security and the people of Iraq. I urge the amendment's adoption.

Mr. President, what is the time remaining?

Mr. President, I ask unanimous consent that we have 1 minute evenly divided added to the time.

Mr. President, I came here at the time of the Vietnam war. I remember how people said maybe it should end and maybe we should do something; the Vietnam war has gone on too long. We finally stopped it. I am the only Vermonter ever to vote against the war in Vietnam. I voted against funding for it, and the funding failed in the Senate in April of 1975 by one vote. The war ended. Two years later, it was hard to find anybody who supported the war, even though we paid for it for a long time.

We have been in Iraq longer than we were in World War II. It is time to bring our brave men and women home. Let them be with their families and let the Iraqis take care of Iraq.

I yield the floor.

Mr. President, what is the parliamentary situation?

And, Mr. President, is there a time allotted on the amendment of the Senator from Michigan?

Equally divided in the usual fashion?

I thank the Chair, and I yield the floor.

the PRESIDING OFFICER. The Senator from Michigan.

Amendment No. 3876 to Amendment No. 3874

Mr. President, I am going to require 5 minutes.

Mr. President, what is the parliamentary situation on time?

Mr. President, I see the Senator from Georgia rising. Do you wish to speak?

If the Senator is willing to wait for a few minutes?

Mr. President, I commend the distinguished Senator from West Virginia. In a few weeks, I will have served with him for 33 years. Now, in Robert C. Byrd time, 33 years is but a moment. In Patrick J. Leahy's time, it is a wee bit of time. But I remember coming here as a 34-year-old Senator--Senator Byrd was the majority whip at the time--and how much he taught me, and his colleague, the leader, Mike Mansfield, and then later when he was our leader, and, of course, sat on Appropriations. He has been my leader for all of those years. I appreciate his help.

His late wife Erma was a very special friend of my wife's and mine, and I hope he does not mind me mentioning her at this time. I always thought when she and my wife Marcelle would meet at the grocery store that perhaps Bob and I were at a lower level. It went to a higher level when it was not Senator Byrd and Senator Leahy. But it was Marcelle and Erma talking about Bob and Patrick, and what should we do to take care of those folks. Well, Robert C. Byrd has taken care of all of us these years. It has been a privilege to serve on the Appropriations Committee with him. It is especially nice, because one of the closest friends I have in the Senate, Thad Cochran, has been both chairman and ranking member of that committee, and those of us who have been here for over a third of a century, as I have, know the majority and minority goes back and forth.

The thing that does not go back and forth is the friendships we have across the aisles. The distinguished Presiding Officer knows that his father and I were very close friends and served together. His mother and my wife were close friends. Those kinds of friendships go on through the years and through the decades.

We have spoken of the Senate as being a family. Indeed it is. It is probably a family that wants to go home and go to bed, so I will not push this much longer. But I think how important it is that we do have these chances to be together. So I applaud Senator Byrd, I applaud Senator Cochran, and their staffs.

Because this is the Foreign Operations Bill we are on, I want to mention my own staff: Tim Rieser, Kate Eltrich, Nikole Manatt, who handle the Appropriations subcommittee for me, and the various other matters they are involved in here; J.P. Dowd, my legislative director; Ed Pagano, my chief of staff; Bruce Cohen, who is always listed as one of the 50 most important people here in the Senate--I get listed as an asterisk--because of what he does to make sure the Judiciary matters are kept here; Jessica Berry and so many others who keep this thing going.

I said to Senator Reid, our distinguished leader, we Senators are but mere constitutional impediments to our staffs. We know they are the ones who run it. Roscoe Jones of my staff was here, probably never heard me say that. He is trying desperately to keep a straight face, but it is a fact.

We have included within this money for DNA funding $4.8 million for the Kirk Bloodsworth post-conviction DNA testing grants, and $147 million for the Debbie Smith DNA backlog grants.

I am privileged to know both Kirk Bloodsworth and Debbie Smith.

Mr. President, I am pleased to note that we included funding in the appropriations package for landmark programs created by the Justice For All Act of 2004. Specifically, we provide $2.5 million for Capital Litigation Improvement Grants to improve the quality of legal representation in State capital cases, and over $152 million to improve Federal and State DNA collection and analysis systems critical to the prosecution of the guilty and the protection of the innocent from wrongful prosecution.

The Justice For All Act capped more than 4 years of effort by a bipartisan House and Senate coalition that included both supporters and opponents of the death penalty. It is the most significant step we have taken in many years to improve the quality of justice in this country and restore public confidence in the integrity of the American justice system.

That law increased Federal resources for combating crimes with DNA technology, established safeguards to prevent wrongful convictions and executions, and enhanced protections for victims of Federal crimes.

It authorized the Debbie Smith grant program to address the DNA backlog crisis in the Nation's crime labs, and created new grant programs to reduce other forensic science backlogs, train criminal justice and medical personnel in the use of DNA evidence, and promote the use of DNA technology to identify missing persons. It also established enhanced and enforceable rights for crime victims in the Federal criminal justice system.

The law also included legislation I authored called the Innocence Protection Act. That measure provides access to postconviction DNA testing in Federal cases, helps States improve the quality of legal representation in capital cases, and increases compensation in Federal cases of wrongful conviction. It established the Kirk Bloodsworth PostConviction DNA Testing Program to help States defray the costs of postconviction DNA testing.

Getting the Justice For All Act fully-funded has proven to be tough, especially given the fiscal crunch that all criminal justice programs have faced in recent years. However, as a senior member of the Appropriations Subcommittee that sets the Justice Department budget, I have worked closely with CJS Chairwoman Mikulski and Ranking Member Shelby to include in the omnibus package roughly $155 million to advance the comprehensive and far-reaching reforms in the criminal justice system established under the Justice For All Act. I thank my colleagues for their leadership in this area.

State and local authorities will be better able to implement and enforce crime victims' rights laws, including Federal victim and witness assistance programs. They can apply for grants to develop and implement victim notification systems so that they can share information on criminal proceedings in a timely and efficient manner.

The intent of the Justice For All Act was to create a fairer and more accurate system of justice for all Americans. The spending priorities set forth in the Justice Department portion of the fiscal year 2008 Omnibus appropriations package will help protect crime victims, maximize the use of forensic DNA evidence testing, and provide safeguards to prevent wrongful convictions and executions.

I note that this bill is the product of more than 9 months of work by the Senate and House Appropriations Committees. It meets the President's arbitrary budget ceiling, but because of the arbitrary ceiling, we have had to cut a number of things. Senator Gregg, Congresswoman Lowey, Congressman Wolf, and I worked on that to agree to the numbers so that the foreign ops part is not a Democratic bill or a Republican bill, it is a bipartisan bill that attempts to address a myriad of foreign policy, national security, and domestic needs of this country.

Other subcommittees worked just as hard and in a similar bipartisan manner. None of us are completely happy with the outcome. We had to make exceedingly difficult cuts to get to the President's number. But that is the nature of this process.

It is ironic that a President who said he would veto this bill unless it was within his self-proclaimed budget ceiling because he wants to keep a lid on spending, is asking Congress for another $70 billion in emergency funding to continue the war in Iraq.

Those dollars do not score against the budget, so the White House can espouse the fiction that the President is being fiscally responsible at the same time that he piles on the debt for future generations.

Of course, he never threatened to veto any of the appropriations conference reports during the past 6 years.

It is a political ploy after inheriting a balanced budget and tripling the national debt, but it is going to be hard felt by the American people. Cuts in funding for education, health care, public infrastructure, homeland security, environmental protection, transportation--no part of the federal budget was exempted except defense.

The State and Foreign Operations portion of the bill is $2 billion below the President's budget. A full $1.3 billion of that cut was the result of the President's veto threat.

It means fewer children will receive vaccinations in the poorest countries, less money for international peacekeeping, less for HIV/AIDS prevention, care and treatment, less for non-proliferation and anti- terrorism programs, less for disaster relief, less for education, environment, energy and agriculture programs.

But, if the President gets his way, there will be tens of billions of dollars more to keep our troops bogged down in Iraq, while the Iraqi Sunnis and Shiites continue to fight among themselves.

Despite that, this omnibus bill is a far, far better outcome than continued spending at the fiscal year 2007 levels, and the dire consequences that would bring.

The State and Foreign Operations portion totals $35.1 billion in discretionary budget authority including $2.4 billion in emergency spending.

Without emergency spending, the bill totals $32.8 billion, which is $2 billion below the President's regular fiscal year 2008 request and $1.52 billion above the fiscal year 2007 level.

Here are some of the highlights:

We provide $6.5 billion for global health programs, including $345 million to combat malaria, $150 million for tuberculosis, and $5 billion for HIV/AIDS.

We provide $546 million for the Global Fund to Fight AIDS, Tuberculosis and Malaria. Added to funds in the Labor, Health and Human Services bill, this omnibus bill provides a total of $841 million for the Global Fund, an increase of $115 million above last year's level.

It includes $446 million for child and maternal health, which is almost $100 million above last year's level.

We provide $1.69 billion for United Nations peacekeeping, $550 of which will support the desperately needed UN-African Union force in Darfur.

The bill provides $1 billion to assist the world's refugees, and $100 million to help Jordan cope with the hundreds of thousands of Iraqi refugees that have flooded that country, which is already home to tens of thousands of Palestinians.

The bill provides the requested funds for Israel, Egypt, Pakistan, Afghanistan, the West Bank, Lebanon, and other needy countries.

It provides $1.54 billion for the Millennium Challenge Corporation, which is $344 million above the Senate-passed level.

It provides $501 million for Educational and Cultural Exchange Programs, an increase of $55 million above the fiscal year 2007 level.

The bill does not include the so-called Mexico City language concerning international family planning which would have led to a Presidential veto. It is regrettable that the President would rather score political points than support private organizations that would use our funds for voluntary family planning services.

The bill provides $968 million for embassy security, which is $190 million above the fiscal year 2007 level.

There are several other important provisions in the State and Foreign Operations portion of this omnibus bill.

One would make long overdue reforms to current law by allowing thousands of persecuted refugees, barred because they were members of armed groups that were allied with the U.S., or who were forced to offer food, shelter or other services to terrorist groups, to seek asylum here.

This change was worked out by myself and Senator Kyl, and would provide relief to such Vietnam-era allies as the Hmong tribesman of Laos and the Montagnards of Vietnam, and for child soldiers and others who were forced against their will to provide support to terrorist groups.

These people were there for us when we needed them, and we should not turn our backs when they need the safety of our shores. It is an affront to our values and to our reputation as a safe haven for victims of persecution.

The changes we are making will also provide relief for Iraqi refugees, some of whom have been barred for paying ransom to secure the release of a family member who was kidnapped by insurgents.

This change will not raise the number of refugees admitted to the United States, but it will bring our laws back in line with our values.

This bill contains other provisions, some proposed by Democrats, some by Republicans, which make important improvements in our foreign assistance programs.

We provide $300 million for safe drinking water and sanitation programs, consistent with the Senator Paul Simon Water for the Poor Act.

There are funds set aside for reconciliation and people-to-people coexistence programs in the Middle East, as well as in other countries divided by ethnic, religious, or political conflict.

There are new provisions which address the problem of corruption and governance in countries that receive U.S. assistance.

There are new provisions to improve monitoring of U.S. military aid to countries that have human rights problems, and to address the problem of child soldiers.

Mr. President, these are only a few of the items supported by both Democrats and Republicans in this omnibus bill, and they are only within the State and Foreign Operations portion.

There are thousands of other important domestic programs funded by each of the other subcommittees whose bills make up this omnibus appropriations bill.

Lastly, I wish the American public realized how much Senators on both sides of the aisle work together. I wish the American public realized the number of friendships there are on both sides of the aisle, both among the Senators and their families. Are we going to pass a perfect bill here? No. Am I opposed to the blank check for Iraq? Yes.

We have been in Iraq longer than we were engaged in World War II. It is time to let our brave men and women come home to their families. I believe that from the bottom of my soul. The opposition I have to this bill is because of that.

I know how proud I was when my youngest son, LCpl Mark Patrick Leahy of the Marine Corps, was one to answer the call in Desert Storm, as much as I feared for his safety, and how pleased I was that war ended so quickly, that he was not in harm's way.

I also worry that that is not something parents can say when they see parents and wives and husbands, children and brothers and sisters when they see their family members in a war that has lasted longer than World War II. It is time to say: Come home, America. Come home, America, and face the problems in our country. Let the Iraqis now face their problems. Let them stand at the plate. Let us address the fact that we have so many unanswered problems in health and science, in addressing our myriad diseases, education, infrastructure, and everything else in this country.

One thing I must say is that is in this bill, Senator Stevens and I changed the so-called WHTI provision in the omnibus. It shows some realities across the border into Canada and vice versa. There are those of us who think of Canada as that great country to the North. There are some of us who have family ties in Canada, some of us who feel that Canada is not a threat to the United States and we should not treat it as such.

Mr. President, one important issue I wish to highlight today is an international border issue with our friendly neighbors in Canada, Mexico, and the Caribbean that could have severe implications for the social and economic ways of life for communities all across our country.

In the wake of the September 11 terrorist attacks, Congress has enacted a number of new border security measures, all with the expressed goal of preventing another terrorist incident. In this bill, we have worked hard to provide the needed resources for these programs in a fair and balanced manner. Post 9/11, everyone recognizes that there are potential threats and security needs, but we must implement them sensibly and intelligently.

Over the past few years, I have heard from many Vermonters about problems they have encountered at U.S. border crossings, from long traffic backups to invasive searches and questioning to inadequate communication from Federal authorities about new facilities and procedures. Such a top-down approach does not work well in interwoven communities along the border, where people cross daily from one side to the other for jobs, shopping, and cultural events. We have hardened security around this Capitol and the White House and built fences near San Diego. But those procedures do not work on Canusa Avenue in Beebe Plain, a two-lane road where one side of the street is Vermont and the other side is Quebec, or at the Haskell Free Library and Opera House, which straddles the international border in Derby Line, Vermont, and Stanstead, Quebec.

That is why I am pleased that this bill includes a much-needed delay for full implementation of the so-called Western Hemisphere Travel Initiative, which will require individuals from the United States, Canada, Mexico, and the Caribbean to present passports or other documents proving citizenship before entering the United States. I was pleased to join with Senator Stevens and many other colleagues from both bodies in pushing for inclusion of this important provision because it is clear that the Department of Homeland Security and the Department of State are not ready for a full rollout of the new passport checks next summer.

Muddled thinking, poor planning, and administrative hubris have plagued implementation of the Western Hemisphere Travel Initiative. The Department of Homeland Security has rushed to implement the new passport checks before the necessary technology, infrastructure and training are in place at our border stations. If these critical features of the deployment are not in place when the new program starts, we will see severe delays at our border and law-abiding citizens from the United States, Canada, Mexico, and the Caribbean will have great difficulty moving between our countries. Most importantly, a hasty implementation will undermine the intended goals of the program.

The massive backlogs in processing passport applications we saw earlier this year when the Departments of Homeland Security and State started to require passports for air travel is just a taste of the chaos that is likely when they start enforcing citizenship checks at our Nation's land and sea borders in January. There is another train wreck on the horizon if these Federal agencies continue pushing forward with full implementation of the Western Hemisphere Travel Initiative before the necessary policies and procedures are in place to handle the surge in applications and the lengthy border crossing delays that are sure to come.

I appreciate the recognition by this Congress that premature implementation will recklessly risk the travel plans of millions of Americans and the economies of scores of U.S. States and communities. The Departments of Homeland Security and State have shown that they need more time to establish a set of rules and procedures that will do more than just shut our borders down to legitimate travel and trade.

Mr. President, there is one item that was in the Senate passed version of H.R. 2764, the State and Foreign Operations Appropriations bill, that the conferees agreed to address in the explanatory statement accompanying the amended bill that is Division J of the omnibus bill, relating to Uganda.

That language directs the Secretary of State to submit a report within 90 days detailing a strategy for substantially enhancing United States efforts to resolve the conflict between the Lord's Resistance Army and the Government of Uganda. The language specifies certain issues to be addressed in the strategy. It also indicates that

$5 million is provided to implement the strategy.

Due to an oversight, the $5 million was omitted from the funding table in the explanatory statement under the Economic Support Fund heading. However, it is the intent of the conferees that this amount in unallocated Economic Support Fund assistance be made available for this purpose.

Mr. President, I yield the floor. I see the Senator from Georgia is about to speak.

Mr. President, I am advised that there are between both sides nearly an hour and a half left to debate. My colleagues have been asking when we might vote on this and on the judge who is also to be voted on. If my friends on the other side are willing to yield back all their time, I am willing to yield back all time on this side and go to a vote on this measure. I am not trying to cut off anybody from their long speeches. But if they are willing to do that, we could save an hour and a half, yield back time on both sides, and then yield back everything but 1 minute per side on the judicial nomination and go straight to a vote on that. Do I hear any takers?

I ask unanimous consent that all time be yielded back on both the Republican and Democratic side.

You want to stay here for the next hour and a half and vote and the next hour or so for the judge and vote.

I recommend that the Senators, for those who wish to go home, may want to make speeches after the vote. If they would like to make them before, of course. If they would like to make them before, they have that absolute right, and we would not yield back any time.

Then I will not yield back.

Mr. President, in this discussion of earmarks, of course, the elephant in the room--and I do not necessarily mean that as a pun-- are the hundreds of billions of dollars of earmarks from the President of the United States: the blank check to the war in Iraq; the blank check to the people who are hired as contractors, various companies-- Halliburton is one that comes to mind, but many others, Blackwater and so on. These blank checks--nobody wants to talk about those.

But every President--not just this President but every President--has

hundreds of billions of dollars in earmarks in the bill. This President has had trillions of dollars. That is why this President, who inherited the largest surplus in the Nation's history, has turned it into the largest deficit in the Nation's history. And it is why? Because with the combination of his deficits and his war in Iraq, he is just paying the interest on the Bush administration's debt and the war--just the interest and the cost of the war.

Every day, 7 days a week, 365 days a year--366 in leap year--we spend $1 billion every single day--every single day--in interest and the war in Iraq. That is money that does not go to education, does not go to finding a cure for cancer or Alzheimer's or diabetes or AIDS. It is $1 billion a day that does not go to educate our children and our grandchildren. It is $1 billion a day that does not go to find a way to make sure our schools can start competing again with schools around the world. It is $1 billion a day that does not go to paying down the national debt.

So those are the earmarks we do not talk about.

Mr. President, I yield to the senior Senator from Florida.

Mr. President, I see the Senator from Iowa, who obviously has the right to speak. Let me ask again how much time remains on both sides.

Mr. President, I hope we can quickly reach a point where Senators on both sides are willing to finish speaking. Obviously, I am not going to ask to cut off anybody's time. As soon as there is no Senator seeking recognition, I will move again to yield back all time on this vote and all time on the judge's vote, so we can go to both those votes back to back.

I ask for the yeas and nays.

Mr. President, I rise to oppose the pending amendment by the Senator from Wisconsin, my friend. I strongly support the amendment that will be offered by the Republican leader that would deliver vital funding for our troops in Iraq.

The underlying House-passed bill is not only irresponsive to the facts on the ground in Iraq, it is simply irresponsible. It fails to provide any funding for our troops fighting in Iraq and actually contains an explicit prohibition against the use of funds for Operation Iraqi Freedom. The authors have compiled a bill of some 1,400 pages and an even larger joint explanatory statement chock-full of unnecessary spending, but they include not a dime for our troops in Iraq. They include not a dime for our troops in Iraq.

I would like our friends and colleagues and others to consider that the bill on the floor today contains $1.6 million for animal vaccines in Greenport, NY, but not a penny for our soldiers in Iraq; $477,000 for Barley Health Food Benefits but nothing for the troops in Iraq; $846,000 for the Father's Day Rally Committee of Philadelphia but not a dime for our sons and daughters who are fighting.

We are willing to spend $244,000 for bee research in Weslaco, TX, but not a dollar for our fighting men and women in Baghdad, Kirkuk, and Anbar. It is a sad day--it is a sad day, indeed--when in the middle of a war this country must win, the Congress provides more funds for bee research than for the brave Americans risking their lives on our behalf.

For Congress to fail to provide the funds needed by our soldiers in the field is inexcusable under any circumstances, but it is especially disappointing right now at the very moment when General David Petraeus and his troops are achieving the kind of progress in Iraq that many dismissed as impossible a few months ago, including suspending disbelief in order to believe the surge was working. One has to suspend disbelief to believe it is not.

The bill's proponents seek, I suppose, a precipitous withdrawal of U.S. combat forces from Iraq regardless of conditions on the ground or the views of our commanders in the field. If that sounds familiar, it should. It should sound familiar, my friends. The majority has thus far engaged in no less than 40 legislative attempts to achieve this misguided outcome.

The choice today is simple: Do we build upon the clear successes of our current strategy and give General Petraeus and the troops under his command the support they require to complete their mission or do we ignore the realities and legislate a premature end to our efforts in Iraq, accepting thereby all the terrible consequences that will ensue?

In case my colleagues missed it, a couple nights ago, there was a piece on the evening news of one of the major networks that pointed out that for the first time in a long time there was 24 hours in Baghdad without a single incident of violence. How you can ignore these facts on the ground is something I do not--will not--comprehend.

I had the privilege, along with my colleagues, Senator Lieberman of Connecticut and Senator Graham of South Carolina, of spending Thanksgiving with our troops in Iraq. On that trip, I saw and heard firsthand about the remarkable transformation these brave men and women in uniform have brought about this year. After nearly 4 years of mismanaged war, our military, in cooperation with the Iraqi security forces, has made significant gains under the new American counterinsurgency strategy, the so-called surge. Overall violence in Iraq has fallen to its lowest level since the first year of the invasion. LTG Ray Odierno, the second in command in Iraq, said this week this improvement is due to the increase in American troops and better trained Iraqi forces--due to the increase in American troops and better trained Iraqi forces.

Now, you can believe LTG Ray Odierno or you can believe those on the other side of the aisle who want to bring to a halt the success we have achieved.

Improvised explosive device blasts, the foremost source of U.S. combat deaths, now occur at a rate lower than at any point since September 2004. This week, MG Joseph Fil, the commander for Baghdad, stated that attacks in Baghdad have fallen nearly 80 percent since November 2006, murders in Baghdad Province are down by some 90 percent over the same period, and vehicle-

borne bombs have dropped by 70 percent.

So as Ronald Reagan used to say: Facts are stubborn things. Facts are stubborn things. These are the facts--not rhetoric but facts.

Major General Fil added that, today, there is no longer any part of Baghdad under al-Qaida control, though the terrorist group is ``still lurking in the shadows.'' I agree. They are on the run, but they are not defeated. They are on the run, but they are not defeated.

Last week, the violence in Anbar Province was the lowest ever recorded. The British handed control of southern Basra to the Iraqi Government. And in Diyala, one of most dangerous regions in Iraq, al- Qaida militants tried to retake several villages around the town of Khalis, only to see U.S.-backed local volunteers drive the terrorists away. That is the success of a classic counterinsurgency strategy. Tens of thousands of volunteers have joined ``awakening councils'' that aim to combat al-Qaida, and al-Qaida's No. 2, Ayman al-Zawahiri, has begun warning of ``traitors'' among the insurgents in Iraq.

As a result of the hard-won gains our troops have secured, General Petraeus has been able to initiate a drawdown of U.S. forces, a drawdown tied not to an artificial timetable but based on security gains in-country. This drawdown, beginning with the removal without replacement of some 5,000 American troops, has commenced following a dramatic drop in American casualty rates and enhanced security throughout the country.

Al-Qaida's leadership knows which side is winning in Iraq. It may not be known in some parts of America and in this body, but al-Qaida knows. Al-Qaida knows who is winning in Iraq. Our soldiers know they have seized the momentum in this fight. Does the majority party understand we are succeeding under the new strategy? The proponents of this bill cannot continue forever to deny or disparage the reality of progress in Iraq or reject its connection to our new counterinsurgency strategy.

As General Odierno explained, with the new counterinsurgency operations, ``we have been able to eliminate key safe havens, liberate portions of the population and hamper the enemy's ability to conduct coordinated attacks.'' General Odierno went on to add: ``We have experienced a consistent and steady trend of increased security. . . . and I believe continued aggressive operations by both Iraqi and coalition forces are the most effective way to extend our gains and continue to protect the citizens of Iraq.'' Given these realities, some proponents of precipitous withdrawal from Iraq have shifted their focus. While conceding, finally, that there have been dramatic security gains, they have begun seizing on the lackluster performance of the Iraqi Government to insist that we should abandon the successful strategy and withdraw U.S. forces. This would be a terrible mistake. Of course, there is no question that Iraq's national leaders must do more to promote reconciliation and improve governance and that the reduction in violence has created a window for political and economic progress that Iraqi leaders must seize, but let's not close that window. The likelihood that they make this progress would be vastly decreased--not increased--by a precipitous U.S. withdrawal. Whatever the failings of the imperfect democracy in Baghdad, they do not justify--either in terms of national interests or simple morality--abandoning it to the al-Qaida terrorists and Iranian-backed militias trying to destroy it.

None of this is to argue that Iraq has become completely safe or that violence has come down to an acceptable level or that victory lies just around the corner. On the contrary, the road ahead remains as it always has been: long and hard. Violence is still at an unacceptable level in some parts of the country. Unemployment remains high in many areas. The Maliki government remains unwilling to function as it must. No one can guarantee success or be certain about its progress or its prospects. We can, however, be certain about the prospects for defeat if we fail to fund our troops.

Make no mistake; despite the progress I have outlined, there is no cause for complacency. Just as we have managed to turn failure into success in 2007, we can likewise turn success back into failure in 2008, if we are not careful. As Major General Fil recently put it, progress toward securing the city remains fragile and there is ``absolutely a risk of going too quickly'' in drawing down troops. ``An immediate pullout too quickly would be a real serious threat to the stability here in Baghdad,'' he said. Al-Qaida is off balance, but they will come back swinging at us if we give them the chance.

Imagine for a moment if 1 of those 40 attempts to force a withdrawal from Iraq had been successful earlier this year. Rather than hearing from our commanders and troops in the field about the enormous progress, the decline in violence, the Iraqis seeking to return home, the decrease in al-Qaida influence, we would hear instead a very different story--a darker one--with terrible implications for the people of Iraq, the wider Middle East, and the security of the United States of America.

Some of my colleagues would like to believe that should the bill we are currently considering become law, without funding our troops in Iraq, it would mark the end of this long effort. They are wrong. Should the Congress force a precipitous withdrawal from Iraq, it would mark a new beginning, the start of a new, more dangerous effort to contain the forces unleashed by our disengagement. If we leave, we will be back. If we leave, we will be back in Iraq and elsewhere in many more desperate fights to protect our security and at an even greater cost in American lives and treasure. Now is not the time for us to lose our resolve.

That is why the Senate must adopt the McConnell amendment. The funding contained in this amendment is not as some have characterized it: ``The President's money.'' It is money for the troops. It is money for the brave Americans who are in harm's way as we speak. This funding is to provide them with the equipment and proper training they require to fulfill their mission; funding to protect our men and women from roadside bombs and other attacks; funding to enable them to bring this war to a successful and honorable end. If the funding is not included, the President will very rightly veto this omnibus measure.

I say to my friends on the other side of the aisle that I understand the frustration many feel after nearly 4 years of mismanaged war. I share their frustration and sorrow. But we must remember to whom we owe our allegiance--not to short-term political gain but to the security of America, to those brave men and women who risk all to ensure it, and to the ideals upon which our Nation was founded. That responsibility is our dearest privilege, and to be judged by history to have discharged it honorably will in the end matter so much more to all of us than any fleeting glory of popular acclaim, electoral advantage, or office. Let us not sacrifice the remarkable gains our service men and women have made by engaging in a game of political brinkmanship. There is far, far too much at stake.

I urge my colleagues to support the McConnell amendment and to reject this amendment. I urge my colleagues to fund our troops and to support them so that when they do return to us, they return with the honor and success their valiant efforts have earned. They and the American people whom they are entrusted to protect deserve nothing less.

Mr. President, I yield the floor.

Mr. President, fiscal year 2008 began 79 days ago. And yet here we are at the end of the calendar year--with Christmas one week away--and everyone scrambling to finally get our work done and get out of town. This process, and the monstrosity it has produced, is the height of irresponsibility. We owe the taxpayer more than this.

In the past, I have stood here on the Senate floor to speak about how our economic situation and our vital national security concerns require us to take greater effort in prioritizing our Federal spending and that we could no longer afford, literally, ``business as usual.'' Actually, Mr. President, what we have before us is even worse than business as usual because the bill we received from the House provides not a single penny to fund our ongoing mission in Iraq. We are at war and our men and women serving in Iraq today continue to face a fierce and determined enemy--and this bill does not fund their mission. The omission of Iraq funding is no more than a political stunt--and we all know it. What kind of message does this send to those brave men and women in the field?

Unfortunately, little has changed over the years. Here we are again, nearly 3 full months into fiscal year 2008, and we have before us another appropriations monster. Let me remind my colleagues that, because of our inability to get much done around here under the regular order, we have been forced to consider huge omnibus appropriations bills and one long-term continuing resolution in 5 of the last 6 fiscal years.

The bill before us today is more than 1,400 pages long and is accompanied by a joint explanatory statement that was so big they couldn't even number the pages. This bill consolidates 11 of the 12 annual appropriations bills with a price tag of nearly $475 billion. Amazingly, this bill contains 9,170 earmarks. Add those to the 2,161 earmarks that were contained in the Defense appropriations bill and the grand total for fiscal year 2008 earmarks stands at 11,331 unnecessary, wasteful, run-of-the-mill pork barrel projects. And that is just for the House and Senate-passed bill. I can only imagine what this will look like when it comes out of conference.

A New York Times/CBS News poll that was released today shows that the approval rating of Congress stands at 21 percent. Can we blame the American people for holding us in such low esteem? Let's look at how we are spending their hard earned tax dollars.

Here is just a sampling of some of the earmarks contained in this bill: $150,000 for the STEEED, Soaring Toward Educational Enrichment via Equine Discovery, Youth Program in Washington, DC. Basically this is an earmark of $150,000 so that disadvantaged kids can ride horses; $50,000 for the construction of a National Mule and Packers Museum in Bishop, CA; $100,000 for Cooters Pond Park in Prattville, AL; $625,000 for the Historic Congressional Cemetery right here on Capitol Hill; $1.95 million for the City College of NY for the Charles B. Rangel Center for Public Service; $975,000 for the Clinton School of Public Service at the University of Arkansas, Little Rock, AR; $1.628 million for animal vaccines in Greenport, NY; $477,000 for Barley Health Food Benefits in Beltsville, MD; $244,000 for Bee Research in Weslaco, TX; $10 million to Nevada for the design and construction of the Derby Dam fish screen to allow passage of fish; $1.6 million for sensitivity training for law enforcement in Los Angeles; $1.786 million to develop an exhibit for the Thunder Bay National Marine Sanctuary in Michigan; $846,000 to the Father's Day Rally Committee in Philadelphia, PA; $125,000 for International Mother's Day Shrine in Grafton, WV; $470,000 for an Oyster Hatchery Economic Pilot Program, Morgan State University, MD; $446,500 for Horseshoe Crab Research, Virginia Tech, VA; $125,000 for the Polish American Cultural Center in Philadelphia, PA; $400,000 for the National Iron Worker's Training Program; $350,000 for leafy spurge control in North Dakota; $1.725 million for the Hudson Valley Welcome Center in Hyde Park, NY.

This omnibus was made available just yesterday, yet approved by the House last night. Imagine that--a 1,445 page bill, with a joint explanatory statement that is nine inches tall and costs $475 billion was made available and voted on by both chambers in less than 48 hours. Simply remarkable. It is impossible for us to know exactly what is in this thing, and we are expected to simply take the appropriators word that it is all okay. Well, I have been around here long enough to know that a bill of this size, put together behind closed doors and rammed through at the last minute, cannot be all good. And I know it will be a long time before all of the hidden provisions in this legislation are exposed.

I fully recognize that it isn't necessarily the fault of the appropriators that we are forced into this new pattern of adopting omnibus appropriations measures. Overly partisan politics has largely prevented us from following the regular legislative order, and that fact must change. But while it may not be the appropriators fault that we are forced to consider omnibus appropriations measures, it is their decision to continue to load them up with unauthorized earmarks and at a rate that seems only increases year after year.

When we ram through a gigantic bill, spending hundreds of billions of taxpayer's dollars with little or no debate because we want to go home for Christmas, we send the message to the American people that we are not serious enough about our jobs. We essentially accomplish little almost all year long because everything requires 60 votes, and then, at the very last minute, we scramble around and throw together a mammoth bill like the one before us today. We are sending the signal that it is more important for us to be able to issue press releases, and I am sure hundreds of them will be going out today, about how much pork we have been able to get for our States and districts, than we are about good government and fiscal responsibility. How can we, in good conscience, defend this behavior to the American people?

Among the most egregious aspects of this bill are the so-called ``economic development initiatives'' funded under the Department of Housing and Urban Development. This account is nothing more than a slush fund for the appropriators--plain and simple. Contained

within this section of the joint explanatory statement are 741 locality-specific earmarks costing nearly $180 million. These pork barrel projects are spread out over 42 pages and fund everything from construction of coastal trails, nature education centers, public parks and renovations for museums and theaters.

On defense matters, the omnibus appropriations bill proposes funding $1.18 billion in military construction projects that were not requested by the President. Of that amount, $584 million was vetted by both the Senate Armed Services and Appropriations Committees to ensure that the services' critical unfunded priorities requirements were met. On the Senate floor, those projects were further reviewed, and approved in the Senate versions of the authorization and appropriations bills.

However, this bloated omnibus appropriations bill also includes another $580 million--for 108 military ``airdropped'' construction projects, that is, funding for projects that were not included in any previous appropriations bill passed by the House or Senate. The House appropriators have once again waited until the last minute to present these new spending items to skirt responsibility for their pork spending. Mr. President, in the ethics reform law we passed with much fanfare earlier this year, we amended Senate rule 44 specifically to discourage such ``airdropping'' of projects in the dead of night. In an unprecedented and unfortunate act, the majority accepted $328 million of airdropped military construction authorizations into the recently passed national defense authorization bill. It was in part for this reason that I reluctantly decided not to sign the defense authorization conference report. I could not then, and cannot now, support the parachuting of new spending items into final reports that have not been transparently vetted on the floor of Congress. I am very disappointed that we in the Senate continue to condone this irresponsible practice in light of our efforts to prevent it with ethics reform.

The omnibus appropriations bill also earmarks over $41 million for the planning and design of pork military construction projects requested by Members of Congress. Congress normally authorizes funding annually for each military service to plan and design their critical future military construction priorities. This bill disregards the military's priorities and earmarks funds towards specific projects-- without the Department being given the opportunity to determine whether or not those projects reflect actual military requirements.

Even more egregious is that we are proposing to pay for this airdropped pork by cutting over $900 million from the amount of $8.1 billion requested by the President to carry out the critical military construction activities related to the 2005 defense base closure and realignment round. The Department of Defense and the local communities affected by BRAC need enough funding to meet the statutory deadline of September 2011. To underfund BRAC in order to pay for earmarks is a sad reflection on the priorities of this Congress, which has again unabashedly put parochial interests above the needs of the Defense Department, our local communities and the American taxpayer.

We simply must start making some very tough decisions around here if we are serious about improving our fiscal future. We need to be thinking about the future of America and the future generations who are going to be paying the tab for our continued spending. It is simply not fiscally responsible for us to continue to load up appropriations bills with wasteful and unnecessary spending, and good deals for special interests and their lobbyists. We have had ample opportunities to tighten our belts in this town in recent years, and we have taken a pass each and every time. We can't put off the inevitable any longer.

In a report on our long-term budget outlook issued this month, the Congressional Budget Office states this: ``Significant uncertainty surrounds long-term fiscal projections, but under any plausible scenario, the federal budget is on an unsustainable path--that is, federal debt will grow much faster than the economy over the long run. In the absence of significant changes in policy, rising costs for health care and the aging of the U.S. population will cause federal spending to grow rapidly.''

The report goes on to say that: ``If outlays increased as projected and revenues did not grow at a corresponding rate, deficits would climb and federal debt would grow significantly. Substantial budget deficits would reduce national saving, which would lead to an increase in borrowing from abroad and lower levels of domestic investment that in turn would constrain income growth in the United States. In the extreme, deficits could seriously harm the economy. Such economic damage could be averted by putting the nation on a sustainable fiscal course, which would require some combination of less spending and more revenues than the amounts now projected. Making such changes sooner rather than later would lessen the risk that an unsustainable fiscal path poses to the economy.'' Again--this is not my dire prediction, it comes from our own CBO.

To underscore the urgency of the problem, in a speech at The National Press Club just yesterday, David Walker, the Comptroller General of the United States announced that--for the eleventh straight year--the Federal Government failed its financial audit. Mr. Walker said that ``the federal government's total liabilities and unfunded commitments for future benefits payments promised under the current Social Security and Medicare programs are now estimated at $53 trillion, in current dollar terms, up from about $20 trillion in 2000. This translates into a defacto mortgage of about $455,000 for every American household and there's no house to back this mortgage. In other words, our government has made a whole lot of promises that, in the long run, it cannot possibly keep without huge tax increases.''

The Comptroller General also highlighted a specific program that serves as an example of the serious problems we face. He said: ``The prescription drug benefit alone represents about $8 trillion of Medicare's $34 trillion gap. Incredibly, this number was not disclosed or discussed until after the Congress had voted on the bill and the President had signed it into law. Generations of Americans will be paying the price--with compound interest--for this new entitlement benefit.'' He went on to note that: ``Unfortunately, once federal programs or agencies are created, the tendency is to fund them in perpetuity. Washington rarely seems to question the wisdom of its existing commitments. Instead, it simply adds new programs and initiatives on top of the old ones. This continual layering is a key reason our government has grown so large, so expensive, so inefficient, and in some cases, so ineffective.''

Mr. Walker ended his speech by saying ``If all of us do our part, and if we start making tough choices sooner rather than later, we can keep America great, ensure that our future is better than the past, and ensure that our great nation is the first republic to stand the test of time. To me, that is a cause worth fighting for.'' I agree wholeheartedly. And I say to my colleagues: Let's start making those tough choices today. We have to face the facts, and one fact is that we can't continue to spend taxpayer's dollars on wasteful, unnecessary pork barrel projects or cater to wealthy corporate special interests any longer. The American people won't stand for it, and they shouldn't. They deserve better treatment from us.

St. John's Bayou/New Madrid Floodway

Mrs. BOXER, Mr. President, I wish to speak to the intent of section 123 of title I of division C of the bill, which addresses the Corps of Engineers project--Saint Johns Bayou/New Madrid Floodway. As the chairman of the Committee on Environment and Public Works with jurisdiction over the Corps of Engineers, the Clean Water Act and the National Environmental Policy Act,

I offer my understanding of section 123. Section 123 does not interfere with or overturn any court decision concerning this project with regard to either or both of the Clean Water Act and the National Environmental Policy Act. The language provides that the project as described in the June 2002 Revised Supplemental Impact Statement, as supplemented by the March 2006 Revised Supplemental Environmental Impact Statement 2 is determined to be economically justified.

The language does not affect the application of the Clean Water Act and NEPA to this project. Because of the specific reference to the project documents, the language in section 123 does not alter legal requirements regarding cost/benefit analysis for subsequent or revised project documents, including environmental impact statements, or any requirements with regard to NEPA and the Clean Water Act.

Mr. President, in a short time we will move to vote on three amendments to the Omnibus appropriations bill.

Each of them takes a different approach to funding the war in Iraq.

I will vote for the Feingold/Reid amendment, which I have cosponsored and voted for several times this year.

Feingold/Reid is the right approach to begin to responsibly end the war, and I will vote for it again today.

The second amendment is Levin/Reed, which I will also vote for.

Finally, we will vote on the McConnell amendment, which I will strongly vote against. This amendment simply does more of what congressional Republicans have done since the war began:

It rubberstamps President Bush's reckless management of the war that has cost us so dearly in lives, limbs, and treasure.

The debate over supplemental war funding is nothing new.

Every year, President Bush comes to us demanding more and more funds for Iraq, with absolutely no accountability. This year, he requested a staggering $200 billion for Iraq and Afghanistan.

At a time when he and his allies in Congress are telling us we can't invest in medical research, education, infrastructure, or public safety, they want billions and billions more for Iraq.

How will our country pay the bill for the Iraq war? A Cost that when all is done will likely exceed $2 trillion?

The President has no idea. He has no plan or intention to pay the bill. He is simply sticking it in a drawer like an overdue credit card statement, leaving it to our children and grandchildren to pay for generations to come.

That is not just fiscal irresponsibility, it is fiscal madness. But it is par for the course for a President who inherited record budget surpluses from President Clinton and turned them into record deficits.

Every year, this war gets more expensive, and the American people deserve to know why.

The answer is waste. The answer is fraud. The answer is mismanagement. The answer is incompetence.

On President Bush's watch, the companies he chooses to do business with--like Halliburton and Blackwater--have wasted billions and billions of our tax dollars.

The President has allowed billions to be spent on buildings that were never built, projects that were never seen through, and contractor military operations that did far more harm than good.

That is why he asks for more every year--because he has grossly misspent the funds he has received.

This year, we have already passed a $460 billion Defense budget--and this bill includes another $31 billion for Afghanistan and troop protection.

Democrats have fully funded the needs of our men and women in uniform and given the President more than enough to conduct the war and begin to bring our troops home.

But one thing we can't control is his reckless financial mismanagement.

We have held hearings and brought cases of waste and fraud to the light of day.

But ultimately, the inability to conduct the war with the billions already allocated is no one's fault but his.

The President and his allies here in Congress will doubtlessly push the panic button and say that if we don't approve the funds immediately, our troops will suffer.

This argument is untruthful and beyond the pale.

Our Secretary of Defense, Robert Gates--a man for whom I have great respect--told Congress that the Army has enough money to get through the end of February and the Marines have enough funds to get through mid-March.

If President Bush hadn't wasted untold billions, our troops would be funded for far longer than that.

If the President had followed the wishes of the American people by spending the funds we gave him to wind down the war instead of ramp it up, the existing funds would be more than sufficient.

But he didn't. He ignored the calls of the American people to responsibly end the war. And he should accept the consequences of his mistakes by finally changing course.

But let me be clear: Democrats will never let our troops suffer for the President's misdeeds.

Democrats always have and always will support our courageous men and women in uniform who have given so much and received so little in return.

It is Democrats who insisted upon a 3.5 percent across-the-board pay increase for everyone in uniform, which the President opposed.

It is Democrats who made right the awful conditions at Walter Reed and other veterans' health care facilities that took place on this President's watch.

It is Democrats who provided a $3.5 billion increase for veterans' health care after Republicans underfunded it for years.

It is Democrats who passed the Wounded Warriors Act to honor our servicemembers and their families.

I think we have heard enough of the tired old Bush-Republican scare tactics that Democrats are putting our troops at risk.

The facts speak for themselves.

We have always stood with our men and women in uniform. We always will.

But unlike Republicans, we believe that truly supporting our troops means beginning to bring them home to the hero's welcome they have so bravely earned.

My fellow Democrats and I come to the Senate floor more times than I can count to discuss the horrible cost of the Iraq war on our troops, our national security, and our reputation in the world.

We have lost nearly 4,000 young Americans. Tens of thousands more have been gravely wounded.

As I have said already, hundreds of billions of dollars have been spent--tens of billions have been recklessly wasted--and the total price will climb into the trillions before all is said and done.

Our military has been stretched paper thin. Colin Powell has said our Armed Forces are ``about broken.''

Every single one of our available combat units is deployed to either Iraq or Afghanistan, leaving no strategic reserves for other conflicts.

And as the situation in Iran, the faltering of democracy in Pakistan, and the escalating violence in Afghanistan show, the world can evolve literally overnight.

We must have the flexibility to respond, but right now we do not.

Our troops are being forced into repeated deployments, and the length of those deployments has gotten longer.

Military families are deeply strained, military mental health is suffering, and the Armed Forces are reporting problems with both recruitment and retention.

Just this week, General Casey acknowledged this problem, saying--``We are running the all-volunteer force at a pace that is not sustainable.''

Our National Guard is hamstrung in its efforts to keep us safe at home, because much of their equipment has been shipped to Iraq. Every natural disaster, from fire to flood, reminds us of this growing crisis.

Yet for all the cost and all the courage of our troops, this war has made us no safer.

Let me remind my colleagues of the most recent National Intelligence Estimate, which found that al-Qaida has regrouped and is now directing operations from Pakistan, stronger than ever.

Bin Laden remains free, taunting and threatening us with new videos.

Afghanistan--once viewed as a great military success--has spiraled out of control.

The opium trade there is at an all-time high, violence is at its highest level since American intervention, and recent reports indicate that the Taliban has vastly stepped up its efforts.

It is no wonder that this week has brought new reports that a panicked Bush administration is conducting a top-to-bottom review to stave off all-out chaos in Afghanistan and the backslide of all past gains.

I welcome this review. But as long as more than 160,000 troops remain caught in the crossfire of the Iraqi civil war, our ability to address conditions in Afghanistan--and elsewhere--will be constrained.

The American people are rightly frustrated that more has not been done to responsibly end the Iraqi war.

I share that frustration.

But within the confines of a stubborn, obstinate President and a Republican Congress that knows no other way but to carry his water, Democrats have made a difference--and a majority of Senators have consistently voted with us.

Before Democrats controlled the Congress, the Bush White House conducted the war with total impunity.

No dissent was tolerated. The patriotism of those who raised questions was openly attacked.

This year, Democrats have brought the President's recklessness into the harsh light of day.

We forced the President to set benchmarks for legislative and political progress and required regular reports on whether those benchmarks were being met.

These reports have shown that the surge has failed to reach the objective set forth by the President of political reconciliation.

We forced General Petraeus to testify--and he has said repeatedly that the war cannot be won militarily and must be won politically.

We brought to light the Blackwater controversy and forced Eric Prince to testify.

And we put an end to the duplicitous Republican practice of claiming to support the troops but failing to protect them in the field or provide for them back home.

Do I feel that enough has been done? Of course not.

Time after time, the Republican minority has had a choice: stand with the President or stand with the American people.

Each and every time, they have chosen the President.

I urge my colleagues to reject the McConnell amendment. The time for zero accountability is long past.

I urge my colleagues to embrace the amendments offered by Senator Feingold and Senator Levin.

Let's send our troops and all Americans a holiday gift: a message that the United States Congress is ready to bring this war, now nearly 5 years long, to its responsible end.

Mr. President, we have just a few matters left. We have a vote on AMT. This is a vote we have had before. Senator Baucus, the Finance chair, will talk about it when we get to it in a few minutes. It is an issue on which I agree with the House. I think we should have paid for it. We have had this vote several times before--at least once before. We have tried different ways of getting the matter before the Senate.

We have an agreement in the order entered earlier today that we are going to vote on whether AMT should be paid for. Senator Baucus will speak on that.

Amendment No. 3877

Mr. President, it is my understanding there is a motion to concur at the desk.

Mr. President, we have a vote on this, and we have a vote on whether we will concur with the House on a matter that we have changed and sent back to them. Then I am going to speak with the chairman of the Judiciary Committee. Under the order entered several days ago, we have a judge who is on the calendar. I will talk with the distinguished manager of this bill and the chairman of the Judiciary Committee to find out if we are going to have a recorded vote.

My point is that people should not run off after the second vote. There may be three votes tonight.

Mr. President, I move to concur in the House amendment.

Mr. President, there is a proverb from the Book of Matthew that says: ``For where your treasure is, there your heart will be also.''

In the past few weeks, as we have put together the budget that is now before us, Democrats have sought to put our hearts and our treasure where the American people need them most.

President Bush and his Republican allies in Congress have been determined from the start to stand in our way.

The President picked a top line budget number out of thin air and said he would veto any bill that invested another dime above this total in the needs of the American people--no matter how many children, students, working families veterans or senior citizens would be harmed.

This from the President who inherited record surpluses when he took office and turned them into record deficits.

This from the President who has spent nearly $500 billion--all of it borrowed--to fight a war of choice in Iraq, while ignoring the desperate needs that we face here at home.

And this from congressional Republicans who have rubber-stamped his every irresponsible, wasteful, reckless choice.

But now, this year, this President and these Bush-Cheney Republicans

claim--after years leading our country down a path of fiscal ruin--they have been baptized into the church of fiscal responsibility.

Under this false pretense, they went about to prevent us from presenting appropriations bills that help America's working families.

With the power of the President's veto and a core group of congressional Republicans willing to back it up, this fight has not been easy. That is an understatement.

Nevertheless, in the past few weeks, we have worked within the President's arbitrary top line to make it clear to the American people where our hearts and our fiscal priorities lie.

Every victory in the appropriations bills now before us--every benefit to working families, every investment in our Nation's future-- we have had to fight for, tooth and nail.

Bush-Cheney Republicans turned their backs on medical science in this budget.

They tried to cut 800 grants for medical research at the National Institutes of Health--programs that would help find cures for dread diseases.

Our Democratic priorities are different.

We want to spread hope--real scientific hope--that those who suffer from Alzheimer's, cancer, Parkinson's and diabetes and other maladies will see a brighter, healthier day.

So we restored the Bush-Cheney Republican cuts to the NIH and invested more than $600 million in medical research.

We refused to back down and we won that fight.

The Bush-Cheney Republican budget would have slashed access to health care by $600 million--leaving many of the most vulnerable Americans with nowhere to turn.

But our Democratic priorities are different.

We believe in helping the little girl with asthma, for whom the emergency room is a revolving door because her parents can't afford a doctor; or the uninsured laborer who gets injured on the job; or the senior citizen who suffers from arthritis.

We gave these Americans a better chance to live healthy lives--with $1 billion above the President's request for programs like community health centers, high risk insurance pools and rural hospitals--programs on which hundreds of thousands of low-income Americans rely.

We refused to back down on America's health care needs, and we won that fight.

If the Bush-Cheney Republicans got their way, this budget would have stripped $1.2 billion from education, eliminated major student aid programs and cut vocational education by 50 percent.

But Democrats have different priorities here, too.

We believe that education is the great equalizer in America, and that every American child deserves the right to a quality education and the keys to a better future.

We backed that commitment with major investments in Title 1, special education, teacher quality grants, after school programs, Head Start, student aid grants and technical training--all above the Bush-Cheney Republican request.

Democrats refused to back down and let Republicans rob children of the chance to succeed, and we won that fight.

Bush-Cheney Republicans talk tough on law enforcement, but when it came time to actually give our State and local law enforcement the tools they need to keep us safe, Bush-Cheney Republicans said no.

Their budget cut law enforcement funds by $1.4 billion at the Department of Justice.

Once again, Democrats' priorities are different. We invested $1.2 billion more than the President's request to help our police fight crime.

We refused to back down from our commitment to safer neighborhoods, and we won that fight.

Bush-Cheney Republicans try hard to scare us with the threat of terrorism. Did their budget match their rhetoric? No.

They cut more than $1 billion in homeland security grants for police, firefighters and medical personnel.

What are our priorities? Democrats increased our commitment to fighting terrorism by nearly $2 billion.

We refused to believe that at a time we are spending $12 billion a month in Iraq and Afghanistan, we couldn't spend an additional $2 billion per year to fight terrorism in America.

We won that fight, too, and America will be safer because of it.

The same year when the Minneapolis bridge collapse tragically reminded us that our roads, bridges and tunnels are crumbling, Bush- Cheney Republicans tried to strip critical infrastructure projects from the budget.

Democrats refused to stand by while the President spends billions to build roads in Iraq, but tells us we can't do anything about our roads in America.

We can do something and we did. We refused to back down and we won the fight for American infrastructure.

When it came time to choose between energy independence and big oil, between a clean environment and the special interests, the Bush-Cheney Republicans chose the special interests.

Our priorities are consumers who are spending more than ever to pay for gas for their cars and heat for their homes.

We take the side of cleaner air and renewable fuels by investing in solar energy, wind energy, biofuels and energy efficiency.

We stood up to Bush-Cheney Republicans, who once again turned their backs on science and cozied up to the major polluters.

We won that fight, and America will be safer and cleaner because we did.

I am so grateful for my Democratic colleagues in the House and Senate.

We have faced a level of arbitrary stubbornness from President Bush and his congressional allies that no Congress has ever faced before.

We turned a horrible budget into a budget that does some good, important things.

And we did it responsibly: without raising taxes or adding anything to President Bush's epic pile of debt.

Our country owes enormous gratitude to the senior Senator from West Virginia, Chairman Robert Byrd, for his leadership on this budget.

Chairman Obey also did a tremendous job on this legislation.

I would also like to acknowledge the work of Senator Cochran, who worked with Senator Byrd and others to move this bill through committee and to the floor.

This budget includes funds to help prevent Western wildfires and better fight the ones that do occur.

It includes vital education funding for Nevada's universities.

It invests in Nevada's renewable energy.

It provides funds for vital Nevada water projects.

And it honors our troops and veterans with more than $340 million for the southern Nevada veteran's hospital.

But let me be clear: this compromise budget could have been much, much better if not for Bush-Cheney Republicans' double standard on fiscal responsibility.

They chose to enforce an arbitrary topline on America's priorities-- even as they continue to borrow billions to fund the endless war in Iraq, to support corporate cronyism, and to look the other way on global warming and pollution.

Because Republicans have made these choices, the American people will have to keep waiting for the kind of budget they deserve.

But because Democrats refused to back down, this budget is a step forward.

The American people deserve to know that Democrats will keep taking step after step after step to set the right priorities and make the progress that our country so desperately needs.

Mr. President, as things now stand, we have about 20 minutes of talking on the Republican side and we have Senator Byrd, who has less than 10 minutes on our side. Those are the only speeches I know of.

That is what I was starting to say. On our side, we have Senator Byrd plus the manager of the bill, Senator Leahy.

Following that, there is going to be a vote on a judge. I don't know how much time Senator Leahy and Senator Specter want on the judge, but whatever time they want, they can have it. But we will have a vote on the judge.

Tonight, when these speeches are finished, we will have one final vote, a vote on the judge. We are going to be in session tomorrow. There will be no rollcall votes after 9, unless something untoward happens that Senator McConnell and I do not expect. So we will be in session if somebody wants to come in and give some speeches. We have some nominations we are trying to clear, maybe some bills from the House. I do not expect any heavy lifting tomorrow, at least I hope not.

I wish to express my appreciation to everyone for their cooperation in getting to the point where we are. As some have heard me say before, usually you recognize you have something that is OK when both negotiators are unhappy with what they have gotten. That is what we have. We are not happy with how we have been pushed into doing what we have done. The President is not happy, as his people say he has been pushed into doing things he didn't want to do. We are where we are. We are going to be able to finish our appropriations process, and we should all hold our heads high in that regard.

Again, I wish everyone a very merry Christmas, a happy New Year, and look forward to a productive year next year, the last of the 110th Congress.

Mr. President, with the Senate's passage of the Omnibus appropriations bill for fiscal year 2008 and H.R. 6, the Energy Security and Independence Act of 2007, the Department of Energy must now finally understand that its irrational hostility toward geothermal energy research and development has come to an end, pursuant to these two acts of Congress.

First, H.R. 6 will become law ahead of the omnibus and thereby controls the primary use and priorities for funds provided by Congress following its enactment. As Senators may know, the United States and particularly Nevada and the West have tens of thousands of megawatts of clean power generation potential from geothermal energy sources just waiting to be developed. In title VI, H.R. 6 contains very important research and development provisions collectively referred to as the Advanced Geothermal Energy Research and Development Act of 2007 that will help realize that enormous potential and create significant sustainable economic growth in rural areas throughout America.

The Department must, by law, comply with the program direction provided in H.R. 6. The Department staff

need not reinvent the wheel or plead that they cannot accept or acknowledge statutory direction from Congress at this point in the fiscal year, since they have not and will not have had any conflicting direction from Congress.

Second, the Omnibus appropriations bill requires that the Department cease and desist its efforts to shut down the existing geothermal program. Instead, the bill provides approximately $20 million for geothermal energy technology research. This is an increase of $20 million over the budget request for the deployment of large-scale enhanced geothermal systems, to include accelerating the development of subsurface technologies, including geological and geophysical data collection and synthesis. This direction to the Department is entirely consistent with that provided in H.R. 6.

The Congress expects the Department to use that money wisely and in a balanced fashion that comports with the direction in the appropriations bill's statement of managers and the statutory direction provided in H.R. 6. Clearly, the funds should not and cannot be used to focus on one or even a narrow set of technologies to the exclusion of the continuum of geothermal energy technologies. I also expect that next year's budget request will reflect the direction given to the Department by Congress in H.R. 6.

Mr. President, I move to reconsider the vote.

Mr. President, I rise today to introduce the Credit Card Fair Fee Act of 2008. This legislation will provide fairness and transparency in the setting of credit card interchange fees. This bill is companion legislation to a bipartisan bill introduced in the House of Representatives by Chairman John Conyers of the House Judiciary Committee and Representative Chris Cannon. The Conyers-Cannon bill currently has an additional 19 Democratic and 16 Republican cosponsors.

This legislation is supported by the Merchants Payments Coalition, a coalition of retailers, supermarkets, convenience stores, drug stores, fuel stations, on-line merchants and other businesses. The coalition's member associations collectively represent about 2.7 million stores with approximately 50 million employees.

Interchange fees may not be well known to most Americans, but they should be. Last year, U.S. retailers, and by extension their customers, paid approximately $42 billion in interchange fees to the banks that issue credit cards. The billions that are paid in interchange fees each year significantly cut into the profit margins of retailers and pinch the pocketbooks of consumers. And neither retailers nor consumers have a say in how these interchange fees are set within the Visa and MasterCard systems, which together account for over 70 percent of the credit and debit card market. The current lack of meaningful competition, negotiation and transparency in the setting of interchange fees represents a market failure, one that affects every American retailer and every American consumer.

My legislation takes a measured approach to address this market failure. My bill would identify credit and debit card payment systems that have significant market power, and would permit the retailers who use those systems to collectively negotiate with the providers of the systems over the fees for system access and use. If the retailers and providers are unable to agree voluntarily on a consensus set of fees, the bill would direct an impartial panel of judges to consider the two parties' fee proposals, and to select the proposal that most closely reflects what a hypothetical perfectly competitive market would produce. As I will discuss further below, this approach will protect retailers and consumers by preventing credit card companies from using their market power to charge unreasonable fees through an unfair process.

So what are interchange fees, and why do they pose a problem? Whenever a consumer uses a credit or debit card to make a purchase from a retailer, the banks and credit card companies involved in the transaction charge a number of fees that are passed on to the retailer and ultimately to the consumer. The interchange fee is one such fee. It is a fee charged by the card-issuing bank to the retailer's bank.

Here is an example of how an interchange fee is charged. When a consumer buys $100 in goods from a retailer using a Visa or MasterCard, the retailer first submits the transaction information to the retailer's bank (the ``acquiring bank''). The acquiring bank submits this information, via the Visa or MasterCard network, to the bank that issued the card to the consumer, the issuing bank. The issuing bank either authorizes or denies the transaction. If the transaction is authorized, the issuing bank sends to the acquiring bank, via the Visa or MasterCard network, the purchase amount minus an interchange fee that is retained by the issuing bank.

As a result of the interchange fee and other processing fees imposed upon the retailer by the acquiring bank, collectively, these fees are known as the ``merchant discount fee,'' the retailer typically only receives approximately $97.50 out of the $100 sale. In order to cover this cost and continue to make a profit, retailers typically raise the retail price of their goods, meaning that consumers must pay more regardless of whether they pay with cash or plastic.

Visa and MasterCard set the interchange fee rates for all the banks and all the retailers that participate in the Visa and MasterCard systems. Those interchange rates are frequently charged as a percentage of the sale amount plus a flat fee; for example, an interchange fee might equal 1.75 percent + 20 cents per transaction. The interchange fee rate varies for certain types of Visa and MasterCard cards and transaction categories, and is typically higher for cards that involve rewards programs for cardholders.

What is the rationale for assessing interchange fees? According to Visa, MasterCard, and the banks that issue them, these fees are used to pay for important functions within the credit and debit card systems. For example, interchange fees can be used to cover the costs of processing and authorizing credit card transactions, including the costs of ensuring data security and safeguarding against fraud. Interchange fees can also help protect an issuing bank from the risk that a consumer may not pay his or her credit card bill, which would leave the issuing bank on the hook for the amount that it gave to the acquiring bank at the time of a credit card transaction.

In addition to covering these costs and risks, interchange fees have been used to generate income for issuing banks. This income can be retained by the issuing banks as profit, or can be devoted to other uses such as consumer marketing campaigns or rewards programs for certain cardholders.

In addition to the benefits that interchange fees provide for issuing banks, Visa, MasterCard and their participating banks argue that interchange fees have also provided benefits to retailers and consumers by helping to make credit and debit card transactions more efficient and more prevalent. Visa, MasterCard and the banks claim that the growing use of credit and debit cards saves retailers from certain expenses involved with transacting business with cash or

checks. They also claim that their cards bring benefits to consumers, including extra convenience, the availability of short-term credit, and rewards programs that are offered to some cardholders.

It is clear that interchange fees do play an important part in the credit and debit card systems, and that overall these systems have created efficiencies and benefits for banks, merchants and consumers. However, it is also clear that those who must ultimately pay interchange fees--retailers and their consumers--have no say in negotiating how much the interchange fees should be. As a result, interchange fees are being set at rates that would not be agreed upon in a competitive market, and that may favor banks to the detriment of merchants and consumers.

Why are retailers unable to negotiate changes in Visa's and MasterCard's interchange fee rates? There are several reasons. First, because of Visa's and MasterCard's market power, the overwhelming majority of American retailers have no choice but to accept Visa and MasterCard as a method of payment. Credit and debit cards are currently used for over 40 percent of all transactions in the U.S., and that percentage is increasing, in part due to extensive marketing by the card companies and the banks. Visa and MasterCard control over 70 percent of the market for credit and debit cards. Most retailers simply cannot survive unless they agree to accept those cards.

Second, within an electronic payment system the only party with whom retailers are able to negotiate effectively is the retailer's acquiring bank, and interchange fees are not covered in those negotiations. In their efforts to obtain retailers' business, including the business of processing the retailers' credit card transactions, acquiring banks will negotiate and compete over many of the component fees that make up the merchant discount fee. However, the interchange fee is typically by far the largest component of the merchant discount fee, and acquiring banks do not negotiate with retailers on interchange rates nor do they compete to offer retailers lower interchange rates. Instead, interchange rates are set by Visa and MasterCard, who claim that their rates are set without the involvement of the banks. Accordingly, the acquiring banks tell their retailer customers that the interchange rate component cannot be negotiated or reduced below the level set by Visa and MasterCard.

The interchange fee thus serves as a de facto price floor for the overall merchant discount fee--a floor that is fixed in a nontransparent, nonnegotiable fashion by card companies with significant market power. Although I have asked the credit card companies on several occasions for information that would help me understand the cost components that contribute to their interchange rates, it is still unclear how much profit margin is built into that floor. The margin may be significant, and as long as issuers and acquirers are happy with it, there is no incentive for card companies to help merchants and consumers by reducing it. Additionally, it should be noted that many if not most acquiring banks also serve as issuing banks, and therefore have almost no incentive to compete to lower the interchange rates that they themselves receive. Because the acquirers and issuers are often the same banks, no one negotiates with issuers about interchange fees on the retailers' behalf, and the retailers are left to negotiate for themselves.

Third, while some retailers may try to negotiate directly with Visa or MasterCard to lower the interchange fee component of their merchant discount fees, most retailers have no leverage in these negotiations since at the end of the day they will likely have to agree to accept Visa and MasterCard in order to stay in business.

As a result of this vast disparity in negotiating power, Visa and MasterCard can essentially impose interchange rates upon retailers and those retailers have no choice but to accept them. Furthermore, Visa and MasterCard also frequently impose take-it-or-leave-it contractual terms and conditions on retailers, such as acceptance rules that require retailers to honor all cards issued by that credit card company, even if the card is a rewards card with a higher interchange rate.

Because there is no competition and no real retailer negotiation involved in the setting of interchange fees, it is not surprising that interchange fees are being charged at levels that would not be agreed upon in a fair and competitive market. This has been demonstrated in a number of ways.

For example, as economies of scale and advances in technology have brought down the cost of credit card transaction processing in recent years, normal market pressures would suggest that interchange rates would have similarly decreased. But as noted in a March 29, 2008 Wall Street Journal editorial, ``The Visa interchange fee has increased over the past decade to 1.76 percent from an average of 1.5 percent. Economies of scale should be driving fees down, as in most other service-fee industries.'' In March 2006, the American Banker reported that ``according to the credit card industry newsletter The Nilson Report, interchange rates for Visa and MasterCard International have risen steadily every year since 1997.''

Also, interchange fees continue to be charged as a percentage of the sale price, so even though the cost of processing a $1 credit card transaction is comparable to processing a $1,000 transaction, the interchange fee paid on that $1,000 sale is much higher and much more lucrative for the issuing bank.

Additionally, Americans are paying higher interchange fees than are consumers in other countries who use the same Visa and MasterCard cards. According to a report by the Federal Reserve Bank in Minneapolis, U.S. interchange fees average around 1.75 percent, while in other industrialized countries such as Britain interchange fees typically average around 0.7 percent.

In 2001, the total amount of interchange fees collected in the U.S. was $16.6 billion. By 2007, that amount grew to approximately $42 billion, an increase of over 150 percent since 2001. What are banks doing with the tens of billions of dollars they are collecting in interchange fees each year? There is a serious lack of transparency on this issue, but one study indicates that only around 13 percent of collected interchange fees are devoted to covering the cost of processing credit card transactions. According to this study, the majority of the collected fees went toward profits for the issuing banks, rewards programs that benefit mostly affluent cardholders, and marketing campaigns.

Visa and MasterCard and the banks that use them argue that their interchange fee rates are set at levels that best balance benefits and costs to card issuers and to merchants. If the card companies and the banks truly believe that interchange fee rates are already set at a level that is fair to merchants, it seems they should have no objection to formalizing a process for setting interchange rates that is fair and transparent and that gives merchants a legitimate voice in the process.

That is what the Credit Card Fair Fee Act would do. This legislation would apply to widely-used credit and debit card systems. Recognizing that these electronic payment systems have become nearly as important to our consumer economy as cash and that most retailers cannot stay in business without accepting them, the bill would ensure that retailers have access to these electronic payment systems at fair rates and terms.

Under the bill, if any electronic payment system has significant market power, i.e., 20 percent or more of the credit and debit card market, retailers would receive limited antitrust immunity to engage in collective negotiations with the providers of that electronic payment system over the fees and terms for access to the system.

The bill would establish a mandatory period for negotiations between the retailers and providers over fees and terms. If the negotiations between the retailers and providers do not result in an agreement, the matter would be brought before a panel of expert Electronic Payment System Judges, who would be appointed by the Department of Justice Antitrust Division and the Federal Trade Commission.

These Judges would conduct a period of discovery during which information about fees, terms, and market conditions for electronic payment systems

would be disclosed. At the end of the discovery period, the Judges would order a mandatory 21-day settlement conference to facilitate a settlement between the retailers and electronic payment system providers. If the settlement conference failed to result in an agreement, the Judges would conduct a hearing where each side would present their final offer of fees and terms. The Judges would then select the offer of fees and terms that most closely represented the fees and terms that would be negotiated in a hypothetical perfectly competitive market where neither party had market power.

After choosing between the two offers put forth by the parties, the Judges would enter an order providing that these fees and terms would govern access to the electronic payment system by the merchants for a period of 3 years, unless the parties supersede this agreement with a voluntarily negotiated agreement. Decisions by the Judges would be appealable to the D.C. Circuit Court of Appeals.

The Credit Card Fair Fee Act is modeled after the Copyright Royalty and Distribution Reform Act of 2004, which created a similar system for the use of copyrighted music works.

Credit card companies and banks may claim that this legislation involves government price setting, but this is not the case. This legislation does not permit the government to establish on its own accord what the fees and terms for retailer usage of credit card systems ought to be. Rather, it sets up a process whereby retailers would be able to make their case as to what fees and terms are fair, and if the retailers and credit card providers fail to agree voluntarily on those fees and terms, independent judges would evaluate the parties' offers and select the offer that most closely resembles what the result would be in a fair and competitive market. In contrast, currently Visa and MasterCard can use their overwhelming market power to establish non-negotiable interchange fees and terms, and retailers are forced to abide by these fees and terms or else be denied access to payment systems that account for a huge percentage of all U.S. transactions. This type of unaccountable fee-setting runs far more risk of harm for retailers and consumers.

Under my legislation, if the credit card companies and the banks are able to persuade the Judges that current interchange rates are justifiable, then the rates would remain as they are today. If, on the other hand, the retailers are persuasive in arguing that current interchange rates cannot be justified by competitive market dynamics, then the Judges would likely rule that alternative interchange rates would better represent the result of a perfectly competitive market. In either case, at a minimum the interests of retailers and consumers would be much better represented in this fundamentally important market.

My legislation represents a measured approach to addressing the current market failure with interchange fee-setting. Other countries have addressed the problem of unfair interchange fees through far more drastic solutions. For example, Australia has imposed a system of direct regulation of interchange fees through its central bank, and Mexico's central bank has negotiated rate reductions with the card companies. My legislation represents a middle ground between the current flawed system and these aggressive foreign regulatory frameworks.

In short, the Credit Card Fair Fee Act would address the market power imbalance between retailers and credit card companies in setting interchange fee rates. It would create a forum where these fees can be fairly negotiated by parties with equal bargaining power. It would ensure that interchange fees and terms are fair to both banks and retailers. And if retailers are able to negotiate interchange rates that reduce the transaction cost of doing business with plastic, it would be beneficial to consumers as well.

How do we know that retailers will not just pocket any savings they get through any reduction in interchange fees that they are able to negotiate? We know because unlike the credit card interchange rate- setting process, the retail industry is highly competitive, and that competition is largely based on price.

Also, sometimes we hear the banks and card companies argue that if interchange fees are reduced, they will have to raise fees and penalties on cardholders to make up for the revenue shortfall. If these companies stand by this argument, I would expect them to stand by its converse and reduce their cardholder fees and penalties whenever their interchange fee collections increase. However, interchange fee collections have increased 150 percent since 2001, and we have seen no corresponding decrease in fees and penalties imposed upon all cardholders. Unless you are one of the small percentage of cardholders with a current balance, no annual fees, and a lavish rewards program, your issuing bank is probably taking two bites at your wallet--one with interchange fees and one with the fees on your statement.

The Credit Card Fair Fee Act will protect consumers and retailers by preventing credit card companies from using their market power to charge unreasonable fees through an unfair process. This is important legislation, and I urge my colleagues to support its passage.

Mr. President, I rise today to comment on section 691 of the Consolidated Appropriations Act, 2008. This provision amends section 212(d)(3)(B) of the Immigration and Nationality Act in order to allow the executive to make REAL ID immigration bars inapplicable to individuals or groups whose presence in this country would not pose a threat to the United States, while continuing to bar from the United States all persons who are tied to the worst terrorist organizations. The provision also gives automatic exemptions to the Hmong and Montagnard soldiers who fought alongside the United States during the Vietnam war, providing overdue relief to the members of these armies. And section 691 also designates the Taliban as a Tier I terrorist organization for immigration purposes, effectively eliminating exceptions to the applicability of REAL ID immigration bars for members, combatants, and others tied to the group that harbored Al Qaeda at the time when that organization was plotting the terrorist attacks of September 11, 2001.

Section 691 is the result of a negotiated compromise between Senator Leahy and me a compromise that was encouraged and assisted by Senator Coleman and other Members who have taken an interest in this issue. The final language allows the Secretaries of Homeland Security and State to decide that the barriers to entry and stay in the United States in section 212(a)(3)(B) of the INA do not apply to certain individuals or groups. The language also clarifies that such non-applicability determinations are not subject to judicial review.

Under current law, the REAL ID immigration bars can only be deemed non-applicable to an alien if the alien is a representative of a political or social group that endorses terrorism, has himself endorsed terrorism, or has given material support to a terrorist group, and may only be extended to a group if that group is a Tier III group that only has a subgroup that engages in terrorism. The amendment expands the non-applicability determination authority to all terrorism-related bars, except that the bars cannot be deemed non-applicable if an alien is expected to engage in future terrorism, is a member or representative of a Tier I or II group, voluntarily and knowingly engaged in terrorist activity or endorsed terrorism on behalf of a Tier I or II group, or has voluntarily and knowingly received military-type training from a Tier I or II group. Also, no group nonapplicability determination may be applied to a group that attacks democratic countries or intentionally engages in a practice of attacking civilians.

Section 691's expansion of section 212(d)(3)(B) nonapplicability authority generally draws a line between Tier I and II terrorist organizations, on the one hand--groups which have been designated as Foreign Terrorist Organizations by the State Department or other agency of the Federal Government--and Tier III organizations, on the other hand, which are swept into the definition of ``terrorist organization'' as a result of their conduct. The State Department's FTO list includes some of the most bloodthirsty terrorist organizations on the planet. The list includes groups such as al-Qaida, Hamas, Hezbollah, and the Salafist Group for Call and Combat. By precluding non-applicability determinations with regard to persons tied to these groups, section 691 not only helps to protect the U.S. homeland from terrorism--it also contributes to making these groups radioactive in the foreign countries where they are based. Joining or helping one of these groups or accepting military training from them will bar an individual from ever being allowed to enter or reside in the United States, in all cases and without exception. And making these groups radioactive makes it more difficult for them to recruit members or to carry out terrorist attacks.

Information that has been developed in hearings before the Senate Judiciary Committee explains why it is imperative that the United States discourage individuals from providing any type of aid or material support to foreign terrorist organizations. In an April 20, 2005, hearing before the Terrorism Subcommittee, for example, Barry Sabin, the Chief of the Counterterrorism Section of the Justice Department's Criminal Division, explained how the provision of material aid to terrorist groups is critical to the functioning of these organizations. Mr. Sabin noted:

We know from experience that terrorists need funding and

logistical support to operate. They need to raise funds, open

and use bank accounts to transfer money, and to communicate

by phone and the Internet. They need travel documents. They

need to train and recruit new operatives, and procure

equipment for their attacks.

It is also important to emphasize that all provision of material support to terrorist organizations is bad. There is no such thing as ``good'' aid to a terrorist organization, because all aid is fungible and can be converted to evil purposes, and because even humanitarian aid can be used by a terrorist organization to help it to recruit new members. These points were developed in detail in answers to written questions provided by Chris Wray, the Assistant Attorney General for the Criminal Division, following a May 5, 2004, hearing before the Judiciary Committee. Mr. Wray explained why there is no such thing as benign material support to a designated foreign terrorist organization:

First, because material support of any kind is fungible and

frees up resources that may then be used to promote violence,

the provision of any material support facilitates and

furthers the organization's unlawful and violent activities

regardless of the benign intent of the donor. As the Ninth

Circuit recognized in rejecting the argument that 18 U.S.C.

section 2339B is unconstitutional because it proscribes the

giving of material support even if the donor does not have

the specific intent to aid in the organization's unlawful

purposes, ``Material support given to a terrorist

organization can be used to promote the organization's

unlawful activities, regardless of donor intent. Once the

support is given, the donor has no control over how it is

used. Humanitarian Law Project v. Reno, 205 F. 3d 1130, 1134

(2000).

Even support designed and intended to encourage a group to

pursue lawful, nonviolent means to achieve its ends may be

used to further the organization's violent aims.

[S]ome terrorist organizations use their humanitarian

activities as an integral part of an overall program that

includes murdering innocent civilians and assassinating

government officials. For example, one expert on terrorist

organizations, Matthew Levitt, describes in ``Hamas from

Cradle to Grave,'' Middle East Quarterly, Winter 2004, at 3-

15, that this foreign terrorist organization is one unified

body, and that its social welfare organizations, supported by

numerous charities, answer to the same leaders who set Hamas

political and terrorist policy. Levitt describes how Hamas

charity committees, mosque classes, student unions, and sport

clubs serve as places where Hamas activists recruit

Palestinian youth for terrorist training courses in Syria and

Iran, or for suicidal terrorist attacks. And, he discusses

how a single soccer team from the Jihad mosque in Hebron has

produced several Hamas terrorists responsible for five

suicide bombings in 2003.

Even more frightening, Levitt explains how Hamas charities,

social service organizations, hospitals, schools, and mosques

openly laud suicide bombings. Hamas-run schools and summer

camps begin indoctrinating children as early as kindergarten

for later use as suicide bombers. As Levitt notes,

Palestinian children raised in this environment make willing

terrorist recruits. This program is accomplished in

significant part by the multi-faceted nature of Hamas, which

gains strength through its humanitarian and charitable

activities in the community.

Thus, even if individuals are providing material support,

such as money, for groups like the Hamas, and are somehow

able to ensure that this money is spent by these FTOs only

for humanitarian activities, such as a school, the problem

remains that this money enables these groups to gain more

general support, loyalty, and popularity among the local

people and to earn a measure of legitimacy. This support and

legitimacy then allows groups such as Hamas to recruit

suicide bombers, as well as accomplices to provide critical

services such as transportation, lodging, and local

intelligence for terrorist operations. Accordingly, even

those who are providing material support with the sincere

hope and assurance that their money is not being used

directly for terrorism are nevertheless providing groups such

as Hamas with the type of overall support they need in order

to operate successfully as terrorists.

Section 691 of the Consolidated Appropriations Act also bars the extension of a non-applicability determination to any alien who has voluntarily and knowingly received military-type training from a Tier I or II terrorist organization. Again in his April 20, 2005, testimony before the Terrorism Subcommittee, Counterterrorism Section Chief Barry Sabin explained why individuals who have received such training are dangerous to the United States and why an individual's participation in such training benefits the terrorist organization. Mr. Sabin explained:

Various investigations have uncovered individuals who have

traveled overseas to training camps to receive military-style

training. These individuals, who in many cases have received

firearms and explosives training, appear to be preparing to

conduct terrorist activity or violence and pose a clear

threat here and abroad. Investigations have also disclosed

that attendees sometimes maintain longstanding relationships

with other training camp ``alumni,'' who may later seek to

recruit and utilize them in their plots. In an even more

basic way, a trainee's participation in a terrorist

organization's training camp, without more, benefits the

organization as a whole. By attending a camp, an individual

lends critical moral support to other trainees and the entire

organization, a support that is essential to the health and

vitality of the organization.

Section 691 also clarifies that the decision to extend or to not extend a non-applicability determination to a particular group or individual is not subject to judicial review. A decision as to whether a particular individual or group that would otherwise be within the scope of a section 212(a)(3)(B) bar should instead be deemed outside the scope of that bar is a decision that is inherently executive in nature. Such a decision will often involve consideration of classified information that would be compromised if litigated in open court, and it will involve sensitive judgments about which terrorist groups are more dangerous than others.

Vesting this discretion solely in the executive allows executive officers to consider the full range of information about a particular group that is available to the State Department, the Justice Department, Homeland Security, and to intelligence agencies. It allows the executive to decide that some groups are less dangerous and therefore the REAL ID bars may be deemed to not apply to activities tied to that group, and that other groups are extremely dangerous and that even tenuous connections to such a group should serve as grounds for exclusion, with no exceptions allowed.

Were decisions about nonapplicability to be made in the courts, their precedent-based system of decisionmaking would require the courts to extend the same ``rights'' to members of one group as had extended to the last group whose case was reviewed. What is sufficient to justify a nonapplicability determination with regard to the FARC in Columbia, for example, would also be good for al-Qaida. By keeping these non- applicability decisions out of the courts, section 691's amendments to INA section 212(d)(3)(B) allow the Government to take the common-sense approach of treating different groups differently based on how violent they are and how much of a threat they pose

to the United States. For that reason, section 691 does not allow judicial relief from an executive determination. Rather, it is the executive alone that will decide whether a bar should be inapplicable-- that it should not even apply to the alien in the first instance.

Subsection (b) of section 691 statutorily exempts several groups from the definition of ``terrorist organization'' for purposes of INA section 212(a)(3)(B). These groups--which include Hmong and Montagnard groups that fought alongside the United States in the Vietnam War--have already been cleared by the administration and do not pose a threat to the United States. This subsection will immediately resolve any legal ambiguity as to these groups' status.

Subsection (c) of section 691 corrects a technical error in the original REAL ID Act. With this change, the otherwise-automatically- deportable spouse or child of a barred alien is not barred if the spouse or child did not know of the husband/father's terrorist activity or has renounced that activity.

Subsection (d) designates the Taliban as a Tier I terrorist organization for immigration purposes. As a result of the distinctions drawn in subsection (a) of section 691, this designation will render individuals tied to the Taliban ineligible for most waiver authority.

Subsection (e) requires a report by the Department of Homeland Security on the use of its authority to waive material-support bars on grounds of duress.

Subsection (f) makes all of these changes apply retroactively.

I think that section 691 reaches a reasonable compromise that allows removal of the applicability of the REAL ID immigration bars for groups and individuals to whom those bars should not apply, but allows REAL ID to continue to protect the United States and its citizens from foreign terrorist organizations. I would like to thank Tim Rieser of Senator Leahy's staff, and Jennifer Daskal, on detail to Senator Leahy, for working with my staff to draft this section. Whom to exclude from the United States for terrorism-related reasons is a difficult and very serious matter, and one that I am glad has been the subject of a carefully developed bipartisan compromise in this bill.