A bill to require rail carriers to develop positive rail control system plans for improving railroad safety and to increase the civil penalties for railroad safety violations.

Mr. President, today I am introducing, along with the senior Senator from California, Senator Feinstein, the OLC Reporting Act of 2008. In short, the bill would require the Attorney General to report to Congress when the Department of Justice issues a legal opinion concluding that the executive branch is not bound by a statute. Along with the Executive Order Integrity Act of 2008, which I introduced in July with the junior Senator from Rhode Island, Senator Whitehouse, this bill takes an important step toward curbing the executive branch's reliance on secret law.

The principle behind this bill is straightforward. It is a basic tenet of democratic government that the people have a right to know the law. The very notion of ``secret law'' has been described in court opinions and law treatises as ``repugnant'' and ``an abomination.'' That's why the laws passed by Congress have historically been matters of public record.

But the law that applies in this country includes more than just statutes. It includes regulations, the controlling legal interpretations of the executive branch and the courts, and certain Presidential directives. As we learned at a hearing of the Judiciary Committee's Constitution Subcommittee that I chaired in April, this body of executive and judicial law is increasingly being kept secret from the public, and too often from Congress as well. Perhaps the most troubling recent example of secret law is the elaborate legal regime constructed by DOJ's Office of Legal Counsel to justify controversial administration policies that operate outside the framework of statutory law.

An opinion issued by OLC is not just a piece of legal advice, such as the advice individuals or corporations might solicit from their lawyers. An OLC opinion binds the entire executive branch, just like the ruling of a court. If a court were to reach a different interpretation than OLC, the court's interpretation would prevail--but many OLC opinions address matters that courts never have the chance to decide. On those matters, OLC essentially steps into the role of the courts as the final interpreter of the law. In the words of Jack Goldsmith, former head of OLC under President Bush: ``These executive branch precedents are `law' for the executive branch.''

OLC opinions are ``law'' in another sense as well. Attorney General Mukasey has stated that DOJ will not prosecute a government actor for criminal conduct if he or she relied on an OLC opinion. Thus, even if a court overturns OLC's interpretation, the opinion may grant retroactive immunity for past violations of the law--effectively amending the law that existed at the time of the criminal act.

The Bush administration has relied heavily on secret OLC opinions in a broad range of matters involving core constitutional rights and civil liberties. The administration's policies on interrogation of detainees were justified by OLC opinions that were withheld from Congress and the public for several years. The President's warrantless wiretapping program was justified by OLC opinions that, to this day, have been seen only by a select few Members of Congress. And, when it was finally made public this year, the March 2003 memorandum on torture written by John Yoo was filled with references to other OLC memos that Congress and the public have never seen--on subjects ranging from the Government's ability to detain U.S. citizens without congressional authorization to the Government's ability to operate outside the Fourth Amendment in domestic military operations.

The few opinions whose content has been made public share a notable characteristic: the conclusion that various laws enacted by Congress do not apply to the conduct of the executive branch. The 2003 Yoo torture memo took the alarming position that the executive branch was not bound by the criminal statute prohibiting torture when interrogating detainees. Likewise, according to congressional testimony of former OLC head Steve Bradbury, the President's warrantless wiretapping program was supported by OLC opinions claiming that the President's wiretapping authority was not limited by the constraints of the Foreign Intelligence Surveillance Act. The titles of other OLC opinions referenced in the Yoo memo strongly suggest that other statutory constraints have been disposed of in a similar manner.

The secrecy of these opinions cannot be justified or explained away by a wholesale claim of privilege. To be sure, there are sound arguments for shielding from public disclosure deliberations among OLC lawyers, as well as final OLC opinions that are not adopted as the basis for an executive branch policy. But once a final OLC opinion is issued and adopted by an executive

branch agency or official, that opinion is no longer mere legal advice or a deliberative document--it is effectively the law. Indeed, in his testimony before the Constitution Subcommittee in April, the Deputy Assistant Attorney General for OLC acknowledged that the confidentiality interest in OLC opinions is ``completely different'' for opinions that have been implemented as policy, and that such opinions should be made public ``as fast as possible.'' The Supreme Court expressed the same sentiment in legal terms, holding that ``opinions and interpretations which embody [an] agency's effective law and policy'' are not privileged, precisely because agencies otherwise would be operating under ``secret law.''

There is an even stronger interest in disclosure when an OLC opinion concludes that the executive branch is not bound by a Federal statute. In such cases, the executive branch is no longer operating according to the rules that are on the books, and there is truly a separate--and sometimes conflicting--regime of secret law. Moreover, Congress has an obvious institutional interest in knowing when DOJ opines that the executive branch is not bound by a statute, and the reasons for that opinion. If DOJ concludes that a statute is unconstitutional, Congress may wish to challenge this position, or it may decide to simply rewrite the law to avoid the perceived constitutional problem. Similarly, if DOJ concludes that Congress did not intend for a statute to apply to the executive branch, then Congress should have the opportunity to assess this conclusion and revise the law if necessary to make its intent clear. None of this can happen when Congress is denied access to the opinion.

Recognizing Congress's strong interest in knowing when DOJ takes issue with its enactments, current law requires the Attorney General to report to Congress when DOJ decides that it will not enforce or defend a statute because the statute is unconstitutional. This reporting provision, however, does not reach situations in which OLC stops short of declaring a statute unconstitutional, and instead construes the statute not to apply to the executive branch in order to avoid a finding of unconstitutionality. At the hearing I chaired on secret law, Dawn Johnsen, who served as the head of OLC for 2 years under President Clinton, testified that the law should be amended to require reporting to Congress in these situations as well. Bradford Berenson, former counsel to President Bush from 2001-2003, agreed with this modest proposal.

The bill that Senator Feinstein and I are introducing today grew out of this bipartisan agreement. It was drafted with the substantial assistance and input of Johnsen, Berenson, and an impressive group of some of the finest attorneys to serve in OLC in past years, many of whom are now constitutional scholars. The aim was to craft a targeted bill--one that would allow Congress to be sufficiently informed when OLC purports to release the executive branch from the strictures of a statute, without encroaching on the institutional interests, prerogatives, and privileges of OLC. We took great pains to ensure that an appropriate balance of power was maintained between the legislative and executive branches. The result is an approach that is narrowly tailored and eminently reasonable.

The bill adds a new disclosure requirement to 28 U.S.C. 530D, the statutory provision that requires the Attorney General to report to Congress if DOJ decides not to enforce or defend a statute on the ground that it is unconstitutional. Under the bill, the Attorney General must also report to Congress under four circumstances. These circumstances represent the means by which OLC is most likely to exempt the executive branch from the reach of a statute, in those areas where Congress has the greatest interest in knowing about it.

First, a report is required if DOJ issues an opinion that concludes that a Federal statute is unconstitutional. Current law requires reporting only when DOJ decides not to defend or enforce a statute, which does not necessarily reach cases in which an agency policy conflicts with a statute but DOJ is not presented with the opportunity for an enforcement action.

Second, a report is required if DOJ relies on the so-called ``doctrine of constitutional avoidance'' and cites Article II or the separation of powers--in other words, if DOJ determines that applying a statute to executive branch officials would raise constitutional problems. Regardless of the validity of this determination, the effect is to exempt executive branch officials from the statute's reach--a result that Congress should know about.

Third, a report is required if DOJ relies on a ``legal presumption'' against applying a statute to the executive branch. For example, the Yoo torture memo relied on the legal presumption that laws of general applicability, such as those prohibiting torture, do not apply to the conduct of the military during wartime. The criterion of a ``legal presumption'' serves to keep the reporting requirement narrowly tailored: it captures situations in which the executive branch is exempted from a statute categorically, without requiring reporting in more run-of-the-mill cases where a particular executive action simply does not fall within the statute.

Fourth, a report is required if DOJ determines that a statute has been superseded by a later enactment, when the later enactment does expressly say so. This provision would address situations like OLC's conclusion that the Authorization for Use of Military Force superseded the constraints of the Foreign Intelligence Surveillance Act. In such cases, reporting to Congress gives Congress the opportunity to clarify its intent.

These reporting requirements are accompanied by several provisions to ensure scrupulous respect for executive privileges and prerogatives. The Attorney General would not be required to disclose the OLC opinion itself, as long as the report to Congress includes the information already required under 28 U.S.C. 530D whenever DOJ decides not to enforce or defend a statute--namely, a complete and detailed statement of the relevant issues and background. Furthermore, the bill leaves intact section 530D's provision allowing the Attorney General to exclude privileged information from the statement; the only information that could not be excluded is the date of the opinion, the statute at issue, and which of the four reporting categories the opinion falls within. No report would be required if officials expressly declined to adopt or act on the opinion, thus protecting from disclosure opinions that are truly advisory in nature.

The bill also protects the security of classified information. Information that could harm the national security if disclosed publicly could be provided to Congress in a classified annex. Classified information involving intelligence activities would be reported only to the Intelligence and Judiciary Committees--or, under appropriate circumstances, a more narrow ``Gang of Twelve,'' to parallel the more limited disclosure provisions of the National Security Act.

The bill's targeted focus and careful preservation of executive prerogatives has earned it the support of former officials from both the Clinton and Bush Administrations. Former head of OLC, Dawn Johnsen, and former counsel to President Bush, Bradford Berenson, have written a joint letter endorsing the bill. In their words: ``[W]e believe [the bill] strikes a sensible and constitutionally sound accommodation between the executive branch's need to have candid legal advice, to protect national security information, and to avoid being overburdened by overly intrusive reporting requirements and the legislative branch's need to know the manner in which its laws are interpreted.'' They write that enacting this bill ``would have the effect of enhancing democratic accountability and the rule of law.'' I ask unanimous consent to place this letter in the record along with my statement.

Of course, the bill does not represent a perfect or complete solution to the problem of secret law. For example, it would not reach the now- infamous OLC conclusion that the infliction of pain does not constitute ``torture'' unless it approaches the level associated with ``death, organ failure, or serious impairment of body functions''--an interpretation that effectively exempted the executive branch from the full scope of the anti-torture statute. Moreover, under the provisions of the bill allowing the Attorney General to withhold privileged information, Congress may

well be forced to operate under a significant informational handicap. Nonetheless, the bill represents an important and necessary step toward curbing secret law and restoring the proper balance of power between the executive and legislative branches.

When OLC concludes that a statute passed by Congress does not bind the executive branch, Congress has a right to know that the executive branch is not operating under that statute, and to be apprised of the law under which the executive branch is operating. The bill I am introducing with Senator Feinstein codifies that right. I urge all of my colleagues in the Senate to support this common-sense measure.

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

Mr. President, I would like now to address the Senate with regard to my interpretation of the many constructive efforts that have gone on with the chairman and myself and other colleagues to try to move this bill forward. As I speak for a few minutes, I urge my distinguished chairman to engage me in any questions or colloquy if he has views that could be at variance to what I express.

I have an amendment at the desk. It is No. 5569. I shall not call it up at this time. The history of that amendment is as follows:

As many of our Senate colleagues are aware, this past January 29, the President of the United States issued Executive Order No. 13457 instructing the executive branch that agency heads should not base funding decisions on language in a committee report or conference report or any other nonstatutory statement of the views of Congress. The President took this unprecedented step because he believes--and to some extent I share his concern--that it is necessary to reduce the number and cost of what we refer to as earmarks substantially; that is, to reduce them substantially and to make the origin and purpose of the earmark more transparent. To accomplish these objectives, the Executive order requires that henceforth earmarks, as well as any other funding direction from Congress in its exercise of the power of the purse, must be included in the text of the bill voted on by Congress and presented to the President.

In response to the Executive order, I offered an amendment during committee markup, on behalf of Senator McCain and myself and others, which would have put the committee's funding tables in the text of the bill. This was the most simple and direct way to comply with the Executive order. My amendment, after deliberation in committee, was defeated on a 12-to-12 vote. As a result, as reflected in section 1002 of the bill, the committee decided to incorporate our funding tables into the bill by reference; that is, by a provision that states that each funding table in the committee report is incorporated into the act and is made a requirement of law to the same extent as if the funding table was included in the text.

Once our bill reached the Senate floor for consideration by the full Senate, a colleague, Senator DeMint, filed amendment No. 5405 which, again, takes up the same issue.

Senator DeMint's amendment would strike section 1002 in its entirety from the bill, thereby removing the funding tables from the bill. The result, as I interpret it, of adoption of the amendment would be that our funding tables would remain only in the committee

and conference report, setting up a conflict with the Executive order. Direction by Congress on the specific funding levels throughout the defense budget would be advisory only.

The President's Executive order, on the other hand, would continue to require agency heads to ignore congressional funding directions unless it is in the text of bills enacted into law.

While I appreciate the efforts by our distinguished colleague from South Carolina and his concern about the use of the incorporation-by- reference technique which I opposed during committee markup, I am just as concerned about striking the reference to the funding tables in the bill and leaving them only in the committee and conference report, given the President's Executive order. While the DeMint amendment would have the positive impact of making earmarks advisory only, it would also undercut the legal authority of every other congressional funding decision which differed from the President's budget. In short, the DeMint amendment would seriously impair the ability of the Senate and Congress to meaningfully exercise the power of the purse. The Armed Services Committee and the Senate and Congress as a whole would lose the ability to direct and enforce cuts in funding, additions to funding that were, in our discretion, required in the President's budget, or to restructure programs that are part of the defense budget.

The amendment I have offered and wish to offer as an alternative to Senator DeMint is No. 5569. My amendment takes the same approach which I argued during the committee markup. It takes the funding tables from our committee report and puts them directly into the bill text. The amendment is extraordinarily long. It goes on for 225 pages, but it complies with the Executive order in the most direct way possible. As a result, all of our funding decisions are transparent, and each item of funding is subject to further debate and amendment by the full Senate. If the funding decisions are adopted by the Senate and sustained through the conference between the two Houses, they will be included in the text of the bill as passed by Congress and presented to the President. Changes to the funding decisions recommended by the committee are subject to the normal process of amending a bill under the Senate rules and procedures.

I am aware if my amendment was adopted, it would increase the burden of producing our bill and conference report by several days. Many people would be involved in that rather arduous process. We are informed that the best estimate is that about 4 additional days would be required for the committee staff, the Government Printing Office, and supporting House and Senate staff offices to process the detailed data that appears in the funding tables, if they were incorporated into the bill, assuming the Government Printing Office could prioritize its attention and resources on our bill. By ``prioritize,'' I mean what other work from other committees of the Congress, House and Senate, would be before those various administrative sections.

Given the time constraints we face, these 4 additional days add significantly to the challenges of completing a conference between the House and Senate and passing a conference report in both Chambers before the target date for adjournment. While I acknowledge these challenges, I believe my amendment will best comply with the Executive order and its laudatory purposes. We must not simply ignore the Executive order and trust the executive branch to follow congressional funding directions, when the President has emphatically said the Congress must express its direction in the text of bills enacted into law.

When Congress exercises its constitutional power of the purse, it should do so in a transparent, open way subject to full debate and amendment. When Congress speaks on its funding priorities, it should do so decisively, and its pronouncement should have the binding force of law subject only to the President's veto.

The current posture is, this is an important issue. The distinguished chairman and I, together with our staffs, have worked on it. We have recognized the precarious nature of the bill in terms of its ability to be put together, brought to the desk of Senators, and then, subsequently, the conference report, and likewise that being properly put together to comply with this amendment and others. It is a challenge. I have discussed it with the chairman. I guess perhaps being an optimist, I believe if my amendment were adopted, it would reach the result of many colleagues, and we could go forward and do our very best to shorten the time normally in the history of these bills that is used by the conference.

This is our 30th bill. Senator Levin is chairman of the conference this year. I would try in every way to support him, if he so desired to try to move, subject to the adoption of this amendment, this bill through the conference. This bill is so important to our country. It is so important to so many Members of our body. We have pending a managers' amendment which Senator Levin and our staffs have been working on for the last 4 or 5 days. It is close to 100 amendments which we have reconciled in such a way that, subject to UC, they could be adopted and immediately become a part of the bill prior to any cloture action that will take place as scheduled at 3 o'clock today. That embraces the work and the desires and the objectives of so many Members.

I am not here to fault the fact that a hold or objection is put on a UC to move that package; it is to state the fact. But that objection largely emanates from the issue which I have tried to describe in a very pragmatic and forthright way to help colleagues better understand the current procedural dilemma that faces the body with regard to the bill.

The committee and my distinguished colleagues will work as hard as we can to get this bill through. This is one roadmap; there may be a better one.

I yield the floor.

Mr. President, I am looking at a memorandum prepared by our staff, and I presume it has been shared with the chairman's staff. We should state to colleagues that what we learned by virtue of a long process that many people were involved in over the weekend is as follows:

In summary, incorporation of the funding tables into the bill would add about 4 days to the process: About a half day for committee staff to prepare the files for the GPO, although much could be done during the conference; 3 days for the GPO to convert the files and proofread them; and about half a day for the committee staff to proofread them when GPO returns the bill in printed form.

Let's sort of chart out a calendar. Today, we are, at the present time, scheduled to have a cloture vote, and if cloture comes about, there is an entirely different scenario, if it is voted in, by which we continue to address the bill. But if by any chance we could reconcile our differences--and we would want Members to know that last night the majority presented to the minority a draft UC that is now being reviewed by my leadership. I am at this moment unable to give the details of what decisions will be made or what options, other than what was presented to us, may be returned back by way of compromise. That is to take place in the coming hours, before 3 o'clock. But there is still the possibility that we could get a UC through that would resolve much of this problem. Then, if we took final passage, say, even late tonight--I mean if we can get the managers' package through, we will have close to 100 amendments in addition to those already handled, and that package is basically equally divided with Republican and Democratic amendments--let's say we have final passage tonight or tomorrow. How does the chairman then plot the timetable by which he used pretty strong language, that this amendment of mine jeopardizes the bill not being passed? Would the chairman give us his basic schedule?

I was not present when either of these Senators appeared. I am being advised by our cloakroom staff that Senator Collins came early this morning, at which time the assurance was given to her by someone that she could have 11:30. Now, I don't know quite how to sort this out.

Mr. President, if the Senator will yield, the chairman and I jointly agreed to ask our staffs to begin to preconference this bill. There has been a considerable amount of work done in the form of preconferencing a number of issues.

Once the House sees the finality of the Senate bill, I am of the view that the balance can come together fairly swiftly. So I think we have somewhat of a difference of opinion as to the ability of all people of good intention to get together and crunch this time so we can meet the projected deadline of adjournment on the 26th, as I understand it.

Yes.

Let's do that. Mr. President, couldn't we just do this informally? Once we ask unanimous consent, we are in a whole new framework of procedures. I think we recognized that, I believe, Senator Collins--and my distinguished colleague from Virginia has graciously allowed her to go first, and she would be followed by the Senator from Virginia.

We are back to UC. The word triggers----

Mr. President, I humbly thank my distinguished colleague and longtime friend. I am certain she can take my place.

Mr. President, if I might ask my colleague for 30 seconds. I listened carefully to the Senator's thoughts on the Iraqi funding issue. I commend the Senator for that. We have amendments that address it. In the managers' package are certain amendments that the Senator from Maine put in. That is a very important issue. We owe no less responsibility to the American taxpayers but to assure that every single dollar going into that area at this time is absolutely essential for the purpose of the mission of our troops and otherwise, and that the Iraqi Government be made aware that they are a sovereign government now and such expenses as can be should be borne by that Government.

Mr. President, if I may say, I have been viewing the two drafts of the UCs. Momentarily, I expect the chairman and I will decide how to deal with it. But I assure the Senator that the Webb amendment is in both drafts of UCs.

Mr. President, I humbly acknowledge the gracious remarks, and I express my appreciation.

Ten minutes.

Mr. President, I thank my colleagues for finally working this out.

I rise today in strong support of the Fiscal Year 2009 National Defense Authorization Act. Let me begin by thanking the committee's distinguished chairman, Senator Levin, for his leadership, and also Senator Warner, who is taking on double duty, acting as the ranking Republican on the committee in the absence of Senator McCain. I want to take this opportunity to thank the senior Senator from Virginia for his years of service on the committee. He has been a true friend to me and to the members of our committee and the armed services of this Nation, and his guidance, wisdom and, above all, his civility in all matters will be greatly missed. I deeply admire him, and I thank him for his leadership on this bill and on so many other issues.

I thank the Senator.

Mr. President, this legislation will provide essential training, equipment, and support to our troops as they engage in combat overseas and in exercises at home. It also offers an important opportunity for continued debate as to our Nation's strategy in Iraq, especially the cost of reconstruction in Iraq.

I am particularly pleased the legislation we are now debating contains an amendment that Senators Ben Nelson, Evan Bayh, and I offered to alleviate the burden on the American taxpayers of our operations in Iraq. It is time for the Iraqis to pay more of the costs of securing, rebuilding, and stabilizing their own country. During the Armed Services Committee markup, I joined Senators Nelson and Bayh in authoring the provisions that are in this bill which shift to the Iraqi Government the costs of securing and rebuilding Iraq in order to lift that burden from the shoulders of the American taxpayers.

While our country is struggling with a soaring deficit, the Iraqi Government is awash in oil revenues. The Special Inspector General for Iraq Reconstruction has estimated that Iraq's oil profits will reach $70 billion this year. That is far more than the Government of Iraq anticipated when it established its budget of $47 billion.

Similarly, on August 5, the Government Accountability Office issued a report that provided an in-depth examination of Iraqi revenues, expenditures, and surpluses. This GAO report underscores the need for our amendment requiring the Iraqi Government to assume greater responsibility for its own costs. The report verifies the stronger financial position of the Iraqis due to the unanticipated windfall brought about by record-high oil revenues. According to the GAO, Iraq is likely to receive between $67 billion and $79 billion in revenues from oil sales in 2008 alone--twice the average of revenues between 2005 and 2007. Yet the Iraqis still have not adequately invested in reconstruction efforts in their own country. In fact, they have spent just 28 percent of the $12 billion investment budget.

In addition, the Iraqis had approximately $29 billion in surplus funds that actually went unused during the past 2 years. When Americans are struggling with the high cost of energy, a weakening economy, and a burdensome deficit, there is simply no reason for the American taxpayers to continue paying for the major reconstruction projects, for the salaries, training, and equipping of the Iraqi security forces, or the cost of fuel in a country that has the second largest oil reserves and a burgeoning budget surplus.

Our bipartisan amendment would shift these costs to the Iraqis. Specifically, our amendment prohibits America's tax dollars from being spent on major reconstruction projects in Iraq. It requires the Iraqis to assume the responsibility of paying for the salaries, training, and equipping of Iraq's security forces, including the army, the police, and the Sons of Iraq; it initiates negotiations between our Government and the Iraqi Government on a plan to cover other expenses, such as the fuel used by American forces when they are in-country.

Our proposal was approved unanimously by the Senate Armed Services Committee, and it represents a significant bipartisan change in our policy in Iraq.

The fact is, the American taxpayers cannot wait for the administration to act. We must require this significant reform by changing the law. Asking the Iraqis to take more responsibility for their own security and for the reconstruction of their own country will give them a sense of ownership, and it makes common sense given Iraq's growing budget surplus. That is the purpose of our provision, and I urge my colleagues to support the proposal that we have incorporated into the Defense authorization bill.

The legislation before us also includes a strong commitment to strengthening Navy shipbuilding by including more than $14 billion for shipbuilding programs. It fully supports the Navy's shipbuilding priorities. The declining size of our naval fleet is of great concern to me. This legislation is an important step toward reversing that troubling decline.

The Chief of Naval Operations, Admiral Roughead, has put forth a plan for a 313-ship Navy. It would address longstanding congressional concerns that naval shipbuilding has been inadequately funded. The instability and

inadequacy of previous naval shipbuilding budgets has had a number of troubling effects on our shipbuilding industrial base and has contributed to significant cost growth in the Navy's shipbuilding programs. The 313-ship plan, combined with more robust funding by Congress, will begin to reverse the decline in Navy shipbuilding.

This bill authorizes funding for construction of a third Zumwalt class destroyer. The DDG-1000 represents a significant advancement in Navy surface combatant technology.

It is critical that the construction of the first two DDG-1000 destroyers continue on schedule without further delay. It is equally important that Congress provide full funding for the third ship.

The dedicated and highly skilled workers at our Nation's surface combatant shipyards, such as the Bath Iron Works in my great State of Maine, are simply too valuable to jeopardize with any cuts or delays in this program. To date, the Navy has spent more than $11 billion on research, development, detailed design, and advanced procurement for this program. In addition, industry, including not just our shipyards but also a multitude of vendors in over 48 States, has made significant investments in preparation for building this new class of ship. It is critically important in these tight budget times that we not throw away the investment our country has made as the Navy prepares to build the destroyer for the 21st century. That is why I am so concerned that the House version of the Defense authorization bill eliminates funding for the construction of a third ship, and even more troubling, does not provide sufficient funding for the construction of any surface combatant.

Mr. President, as the threats from around the world continue to grow, it is vitally important that the Navy have the best fleet available to counter those threats, keep the sealanes open, and to defend our Nation.

Bath Iron Works and the shipyards of this country are ready to build whatever ships the Navy needs. But it is vitally important that there not be a gap in shipbuilding that jeopardizes our industrial base. I am pleased with the funding provided in this bill. I look forward to resolving this important issue in conference.

Earlier this year, the Navy proposed to truncate the DDG-1000 program after just two ships. In July, after further evaluation, the Navy realized the terrible effect that such a decision would have on the industrial base and on our shipyards, in particular. It would have created a gap in work for Bath Iron Works because of the delays and costs inherent in restarting the DDG-51 line.

It is important to note that Bath Iron Works is prepared to build whatever ships the Navy needs, but that there must be a stable work plan to sustain the industrial base. The best way to achieve that goal, and to take advantage of the billions of dollars already invested in the DDG-1000, is to proceed with the third ship at this time even if the Navy ultimately decides to build more DDG-51s.

The House version of this bill would also require that the next- generation class of amphibious ships be powered by nuclear propulsion systems, even though the shipyard that currently builds those ships does not have either the facilities or certifications required to construct nuclear-powered ships. This provision could dramatically increase the costs of future amphibious force vessels, with some estimates stating it could be as much as $800 million more per ship. This would reduce the overall number of ships that could be built at a time when the Navy is seeking to revitalize and modernize its fleet. It is completely contradictory to the Chief of Naval Operations 313-ship plan.

I am pleased that our Senate bill also includes funding for additional littoral combat ships. While this program has suffered a number of setbacks, the Navy, with the help of Congress, has taken significant steps in order to begin to get this program under control. These ships are important for the Navy in order to counter new, asymmetric threats, and the Navy needs to get these ships to the fleet soon.

I am pleased that the Senate Armed Services Committee also agreed to my request for $25 million in additional funding to continue the modernization program for the DDG-51 Arleigh Burke class destroyers. This program provides significant savings to the Navy by applying some of the technology that is being developed for the DDG-1000 destroyer and back fitting the DDG-51, which may reduce the crew size by 30 to 40 sailors.

The Senate's fiscal 2009 Defense authorization bill also includes funding for other defense-related projects that benefit Maine and our national security.

The bill also authorizes $20.6 million for construction of a new drydock support facility at the Portsmouth Naval Shipyard in Kittery, ME. This drydock, and its accompanying support facility, are essential for the shipyard's future work on Virginia-class submarines, the Navy's newest attack submarine.

Funding is provided for machine guns and grenade launchers, both of which are manufactured by the highly skilled workers at Saco Defense in Saco, ME.

In addition, the legislation provides $1.5 million to the University of Maine for the continued research and development of modular ballistic tent insert panels. These panels provide crucial protection to servicemembers in temporary dining and housing facilities in mobile forward operating bases in Iraq and Afghanistan.

The bill also authorizes an additional $1.5 million for the University of Maine's work on high temperature sensors that is important to the Air Force. These sensors are capable of sensing physical properties such as temperature, pressure, corrosion and vibration in critical aerospace components.

The legislation also provides $3.5 million for further development of the ripsaw ground vehicle, an innovative unmanned tank-like vehicle, manufactured by Howe and Howe Technologies in North Berwick, ME. This technology will have the ability to provide force security for our troops by taking them directly out of harm's way.

Finally, I am pleased that this bipartisan Defense bill also authorizes a 3.9 percent across-the-board pay increase for servicemembers, half a percent above the President's budget request.

This bill provides the necessary resources to our troops and our Nation and recognizes the enormous contributions made by the State of Maine. The bill provides the necessary funding for our troops, and I offer it my full support.

I thank the chairman. I agree with his comments. I am delighted with the support he and the chairman have given to this effort. I thank the Senator.

Mr. President, I thank my friend from Virginia for outlining the history of this issue in which we are involved. I am particularly gratified that he now agrees the DeMint amendment will be a significant abdication of legislative power to the executive branch. The reason that would be true is, there would be no reference to the line items we have worked so hard on in law or by reference in law, and that would mean the only thing that would be remaining would be a committee report that has all the work of our committee, not just the earmarks which we have added but also the lines we have added or subtracted to what the President has requested. That is the essential point relative to the DeMint amendment. It would be an absolutely revolutionary change in the powers of the purse, shifting a great deal of that power to the executive branch.

I am delighted the Senator from Virginia has stated it exactly that clearly, or approximately that clearly, so that, hopefully, we can, if not unanimously but on a bipartisan basis defeat the DeMint amendment, if it is offered. Then the question comes up: How can we then incorporate all our effort in committee into the law? There is a lot of problems with doing it, which we pointed out during the committee debate, including the lack of flexibility that this would result in for the President in terms of reprogramming because now every line becomes a program, and that means it would be harder to shift money than it is now because it is easier to shift money within a program through reprogramming than it is between programs. That was an argument which we used in committee. We believe it is true that the executive branch will have less flexibility when it comes to reprogramming if every single line is in law. However, if that is what this body wishes to do--to make it less flexible for the President to offer reprogramming suggestions--that is a problem the executive branch should have, not ours.

Our problem is it would be difficult, if not impossible, to get a conference report--first of all, it is difficult enough to get to conference, but then it would be extremely difficult, if not impossible, to bring a conference report back in the next couple weeks. We have gone through these numbers with the minority. We have a clear assessment by the Government Printing Office that it would add about 4\1/2\ days to their work if every single line were made part of the bill rather than being

simply incorporated by reference in the bill, as it now is. We should not take a chance on jeopardizing this bill. This bill is too important to be jeopardized.

The difference between incorporating all these lines by reference in the bill and actually printing them in the bill is either minor, minute or nonexistent legally. What this bill does is incorporate by reference all these lines. They are incorporate into the bill. They are transparent--as transparent as though they were printed in the bill. This green document is no less transparent than this white document. They are both equally transparent. The work of our committee is laid out in the moment in the green document. In this white document, which is the bill, we incorporate by reference in the bill all the line items so they are in the bill, and they can be changed by an amendment which says no money will be spent or less money will be spent for a particular item. It is very readily addressable by the Senate on the floor. The transparency issue is the same. They are both transparent and should be.

So then the question becomes: Is the nonexistent or minute difference between incorporating all these charts in here by law or actually printing them in here, should that risk the passage of this bill? They can be addressed by amendment on the floor of the Senate, even though they are incorporated by reference.

Now, this bill, as my good friend from Virginia says, is too important for us not to pass. We have never not passed an authorization bill, and this should not be the first year, when we have troops in harm's way, when we do not pass a Defense authorization bill. There are hundreds of provisions in here which directly affect the troops and their families. It would be unconscionable for us not to pass a Defense authorization bill. The reason for jeopardizing it simply does not hold water.

So that is the dilemma we are in. If the Warner amendment is adopted, it would seriously jeopardize the chances of being able to pass a bill, even if we can get to conference in the next couple of days. That assessment was made over the weekend in terms of the number of days' delay that would result. That assessment was made by the Government Printing Office. They spent 700 person hours over the weekend at the Government Printing Office to give us this assessment. This is not some casual assessment off the back of an envelope; this is a very serious assessment that was made at huge expense over the weekend in order to give us the most accurate idea as to what the delay would be if we had to print each one of those thousands of lines in the bill itself, instead of incorporating them in the bill by reference. We should not jeopardize the passage of this bill.

That is the only difficulty I now have as a legislator with the Warner amendment. The other difficulty, which we pointed out in committee, has to do with the lack of flexibility that would result to the executive branch in their reprogramming requests. That is a problem the executive branch needs to face, I would think, but as a legislator, what we have to protect is the power of our purse, the power of this Congress to make changes. That is protected in the Warner amendment.

What the Warner amendment does is put at risk this bill, as it may be physically impossible to get to conference, the conference completed, and a conference report back by the end of next week. If we knew there was going to be a lameduck, there would be no problem because we could do this in a lameduck session no matter how much time it took between now and then, but we don't know that there will be a lameduck session.

So the question is whether we are willing to take this risk. I, for one, cannot in good conscience risk the passage of this bill. Although I don't have any problem now with the Warner amendment in terms of its substance, it is what it would result in, in terms of the bill not being able to be adopted as a practical matter.

My problems with the DeMint amendment are very serious and severe. I hope that amendment is not offered, and if it is, I would hope, on a bipartisan basis, it would be rejected by a Senate which has the responsibility to abide by the Constitution of the United States and maintain the power of the purse.

I thank the Senator. Before I do that, Senator Webb came to the floor when I assured him he would be able to discuss his amendment, and I am wondering if we could ask unanimous consent that Senator Webb be recognized as soon as our colloquy is completed and then that Senator Collins be recognized after Senator Webb.

I wonder if I could inquire of the Senator from Maine how much time she would be using.

If I could inquire of the Senator from Virginia how much time he would be using.

If either had said 9 minutes, they would have had a better case.

I wonder if the two Senators whom we referred to could get together and resolve this issue for us as to who would go first and who would go second. Could we ask the two Senators to perhaps help us out on that, and then I would ask that after we talk, if we could have a UC as to that procedure.

In terms of the schedule, assuming we could get the bill passed by tomorrow, which would probably be lucky because there are a number of amendments that are in that unanimous consent agreement that are referred to specifically that have time connected to them--if we could get this bill passed by tomorrow, or cloture invoked, then there is 30 hours of postcloture. We don't know whether that would be used by any of our colleagues. They have a right to do that, and around here, as we know, frequently that 30-hour period is used. If it is not used, we would then have to name conferees, which hopefully would be done fairly quickly. Then the House reviews the Senate bill and determines the committee jurisdiction and names their conferees. That, at a minimum, is

2 to 3 days for the House to do that--to go through that process to see what committees have jurisdiction over the language in our bill, other than the Armed Services Committee. Then the House and the Senate staffs have to match up these provisions for conference. That usually takes 2 days--usually takes 2 days. So if we are lucky, we could start conference 3 to 4 days after passage of this bill, although it usually takes a longer period of time. So if we pass this bill tomorrow, that would take us to the end of the--that would take the House to the end of the week to be ready for conference, if we started conference on Monday. Whatever period the conference takes, even if it took 2 or 3 days, it is the middle of next week. That is before the 4-day period is triggered.

There has.

I don't think we have any difference on that, in terms of the ability of people of good faith to get things done.

This assumes maximum crunch, what I specified for the Senator from Virginia. This is an optimistic view of the timetable, where everybody is using 24/7, to the extent that human bodies permit. We don't have any difference in terms of that.

I am wondering if our two friends from Virginia and Maine have resolved who would go first. Could we then allow them to proceed in the order they have agreed upon, and then the Senator from Virginia and I could pick this up after that.

Mr. President, I ask unanimous consent----

It shouldn't trigger a problem. We use it all day around here. I am simply stating the order for the two Senators to know.

I ask unanimous consent that the Senator from Maine be recognized for 10 minutes, and the Senator from Virginia then be recognized for 10 minutes.

Mr. President, I commend Senator Webb for this sense-of- the-Senate resolution. We have the assurance of the administration that they will share the text with the leadership of the Congress and with the chairmen and ranking members of the Senate and House Armed Services Committees and Foreign Relations Committees. But this goes beyond it and takes an essential step beyond that commitment.

We should be involved in this kind of a long-term relationship. I commend

the Senator from Virginia for his drafting of this amendment. It is very careful. I believe, based on the assurance of Senator Warner, that it will be included in any UC that is propounded. I hope that UC--any UC--can be adopted and that, indeed, it will include the Webb amendment as having the assurance of a vote.

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

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

About 10 minutes.

Mr. President, I ask unanimous consent to speak for up to 15 minutes on amendment No. 5499.

Mr. President, I will begin by associating myself with many of the remarks made by the Senator from Maine. As someone who served as the Secretary of the Navy, along with the senior Senator from Virginia, I have strong feelings about the strength of the Navy and the size of our fleet.

I introduced an amendment on Friday that I would like to urge my colleagues to examine and support. We are in an odd situation in the business of Government at the moment in that the international authority for the United States to be operating in Iraq will expire at the end of this year. The U.N. mandate, through the U.N. Security Council, expires at that time.

Since last November, this administration has been negotiating what is called a Strategic Framework Agreement that is intended to replace the

international authority of that U.N. mandate. Two questions have come up, however, with respect to what the administration is doing. The first is the timeline. This is an agreement that, by all accounts, has not yet been fully negotiated. It is being negotiated by the administration without the participation of the Congress, and there are indications from Iraq that the Iraqi Government negotiators themselves have serious questions that had not been anticipated at the beginning of this process. So we have a potential, with the timeline, that the U.N. mandate will run out at the end of the year and there will not be an agreement in place that authorizes the presence of our forces in Iraq under international law.

The larger question is constitutional. What entity of the Federal Government has the authority to enter the United States into a long- term relationship with another government? Both of these are serious issues. I submit that the conditions under which we will continue to operate in Iraq militarily, diplomatically, economically, and even culturally, are not the sole business of any administration. These questions involve the legal justification under domestic and international law for the United States to operate militarily--and quasi-militarily, by the way, given the hundreds of thousands of independent contractors that are now essentially performing military functions in that country.

There are questions about the process by which the U.S. Government decides upon and enters into long-term relations with another nation-- any nation. In that regard, there are serious questions about the very working of the constitutional system of our Government.

This administration has claimed repeatedly since last November that it has the right to negotiate and enter into an agreement that will set the future course of our relations with Iraq without the agreement, the ratification, or even the participation of the Congress.

The administration claims the justification for this authority can be found in the 2002 congressional authorization for the use of force in Iraq or, as a fallback position, the President's inherent authority, at least from the perspective of this administration, as Commander in Chief.

Both of these justifications are patently wrong. The 2002 congressional authorization to use force in Iraq has nothing to do with a negotiation of a government which replaced the Saddam Hussein government which did not exist in October of 2002, as to the future relations culturally, economically, diplomatically, and militarily between our two countries.

On the other hand, we are faced with the reality that the U.N. mandate will expire at the end of this year and that this expiration will terminate the authority under international law under which the United States is operating in Iraq at a time when we have hundreds of thousands of Americans on the ground in that country.

I and several other colleagues have been warning of this serious disconnect for 10 months. Many of us were trying to say last November that apparently the intention of this administration has been to proceed purely with an Executive agreement to drag this out until the Congress was going out of session, as we are about to do, and then to present essentially a fait accompli in the sense that with the expiration of the international mandate from the United Nations at the end of the year, something would have to be done, and that something would be an Executive agreement that to this point the Congress has not even been allowed to examine. We have not been able to see one word of this agreement.

We tried to energize the Congress. We met with all of the appropriate administration officials. There have been hearings. There have been assurances from the administration that they will consult at the appropriate time, as they define it. We have seen nothing. And so we are faced with a situation that is something of a constitutional coup d'etat by this administration.

I say to my colleagues that we all should be very concerned. At risk is a further expansion of the powers of the Presidency, the result of which would be to affirm in many minds that the President--any President--no longer needs the approval of Congress to enter into long- term relations with another country, in effect committing us to obligations that involve our national security, our economic well- being, and our diplomatic posture around the world without the direct involvement of the Congress. This is not what the Constitution intended. It is not in the best interest of the country.

This amendment, which I offered on Friday, is designed to prevent this sort of imbalance from occurring and at the same time it recognizes the realities of the timelines that are now involved with respect to the loss of international authority for our presence in Iraq at the end of this year.

The amendment is a sense of the Congress. On the one hand, it is a sense that we should work with the United Nations to extend the U.N. mandate up to an additional year, giving us some additional international authority for being in Iraq, if needed, taking away the pressure of this timeline that could be used to justify an agreement that the Congress has not had the ability to examine, but also saying that an extension of the U.N. mandate would end at any time where a Strategic Framework Agreement and a Status of Forces Agreement between the United States and Iraq would be mutually agreed upon.

The amendment also makes the point that the Strategic Framework Agreement now being negotiated between the United States and Iraq poses significant, long-term national security implications for this country, and this would be the sense of the Congress. We need to be saying that. The Iraqis need to hear it from the Congress.

The amendment also puts Congress and the administration on record regarding the many assurances that the Bush administration has made to fully consult with the Congress with respect to all the details of the Strategic Framework Agreement and the Status of Forces Agreement and that copies of the full text of these agreements will be provided to the chairmen and ranking minority members of the appropriate committees in the House and the Senate prior to the entry into either of these agreements.

It is important to say that the Strategic Framework Agreement that has been mutually agreed upon by the negotiators from our executive branch and the Iraqi Government officials will cease to have effect unless it is approved by the Congress. This amendment states that within 180 days of the entry into force of that agreement, the Congress would approve it. We are not calling for the full and complicated procedures of a treaty, but we are saying a majority of the Congress should approve any agreement that has been entered into.

On the one hand, this agreement recognizes the realities of where we are in terms of timelines, but on the other it protects the constitutional processes by which we are entering into long-term relations with other countries, whether it is Iraq or any other country around the world.

We need, as a Congress, to preserve this process. It does not operate in a way that would disrupt our operations in Iraq. I urge my colleagues to join me on this amendment and protect the prerogatives of the Congress under the Constitution.

I understand this amendment will be included in the unanimous consent request that will come for a vote later today. I hope my colleagues will support me on it.

Mr. President, I yield the floor.

I thank the chairman and the senior Senator from Virginia.