Veterans Health Care Empowerment Act of 2007

Mr. President, yesterday afternoon, our colleague Senator Specter criticized the decision of the U.S. Court of Appeals for the District of Columbia in the Al Odah v. U.S. case. That decision upheld the recently enacted Military Commission Act's bar on lawsuits brought by enemy combatants held at Guantanamo Bay.

Senator Specter argued that the Guantanamo detainees have a constitutional right to bring these lawsuits, and he predicted that Al Odah will be overruled. He based his argument largely on the Supreme Court's 2004 decision in Rasul v. Bush. Senator Specter argued that Rasul's ruling that habeas extends to Guantanamo Bay was a constitutional ruling. Senator Specter based his argument on Rasul's discussion of the 18th century common law of habeas corpus. Senator Specter also argued that Justice Scalia's opinion in Rasul acknowledged that Rasul overruled Johnson v. Eisentrager, the landmark decision establishing that captured enemy combatants do not enjoy the privilege of litigation.

I will address each of Senator Specter's argument in turn. At the outset, however, I would like to note that last September, Senator Specter argued that a passage from the plurality opinion in the 2004 decision in Hamdi v. Rumsfeld established that all aliens held in the United States, regardless of combatant status, are constitutionally entitled to seek writs of habeas corpus. In response at that time, I argued that Hamdi did not effect such a radical result. I noted that the holding of Hamdi clearly only involved U.S. citizens; that the notion of extending habeas to aliens based on territorial distinctions was inconsistent with the logic of Hamdi; and that Senator Specter's reading of Hamdi was inconsistent with basic rules of construction that urge against reading groundbreaking new rules into obscure and ambiguous passages of opinions.

I am pleased to see that, today, Senator Specter has not renewed the argument that Hamdi extended habeas rights to noncitizen enemy soldiers. I will assume that he was persuaded by the force of the arguments that I made last September.

Today, allow me to try to persuade Senator Specter, and the rest of my colleagues, that the majority opinion in Rasul v. Bush does not require that the constitutional guarantee of habeas corpus be extended to alien enemy combatants who are being detained during wartime.

Section 7 of the Military Commissions Act, like its predecessor, the Detainee Treatment Act, is predicated on the continuing validity of Johnson v. Eisentrager's constitutional holding, on the unbroken common-law tradition of denying the privilege of litigation to captured alien enemy soldiers, and on the understanding that the holding in Rasul v. Bush was a statutory holding, not a constitutional one.

Neither Senator Specter, nor anyone else, has been able to cite a single case prior to Rasul v. Bush in which any English or American court has ever held that captured enemy soldiers who are not citizens are entitled to seek the writ of habeas corpus. Not one case can be cited that grants the writ to alien enemy soldiers. The absence of any such example over the centuries of the history of the writ of habeas corpus speaks volumes, and alone should be

conclusive of the constitutional question. Simply put, when the Constitution was adopted, the notion that the common law writ of habeas corpus could be employed by alien enemy soldiers was unheard of and it remained unheard until June of 2004, when the Supreme Court decided Rasul v. Bush.

Of course, with 5 votes, the Rasul Court could have grafted a habeas right for alien enemy combatants onto the Constitution. I believe that to do so would have been deeply irresponsible, and I believe that this is clearly not what the court did in Rasul.

In support of his interpretation of Rasul, Senator Specter argued that Justice Scalia's opinion in Rasul noted that the Rasul majority overruled Eisentrager, which had denied litigation rights to alien enemy combatants. In response, I would first note that Justice Scalia's opinion in Rasul was a dissenting opinion. As any lawyer knows, a dissenting opinion's characterization of a court's holding is hardly authoritative. An argument about what a case means that is based primarily on the dissent is inherently a weak argument.

Moreover, I do not think that Justice Scalia's dissenting opinion in Rasul is in any way inconsistent with the notion that Eisentrager's constitutional holding remains good law, and that the constitutional right of habeas corpus does not extend to alien enemy soldiers. Justice Scalia makes clear in his dissent that he is accusing the majority only of overruling Eisentrager's statutory holding, not its constitutional holding.

Justice Scalia begins at page 493 of his dissent by quoting the following passage from Eisentrager: ``Nothing in the text of the Constitution extends such a right''--a right of habeas corpus for war prisoners held overseas--``nor does anything in our statutes.'' It is Justice Scalia who italicized the absence of a statutory right when quoting this passage. He then went on to note:

Eisentrager's directly-on-point statutory holding makes it

exceedingly difficult for the Court to reach the result it

desires today. To do so neatly and cleanly, it must either

argue that our decision in Braden overruled Eisentrager, or

admit that it is overruling Eisentrager.

In this passage, Justice Scalia does accuse the Rasul majority of overruling Eisentrager, but he also makes clear that he only accuses it of overruling Eisentrager's statutory holding, not its constitutional holding.

But the argument that Rasul v. Bush's holding was only statutory, and did not extend constitutional rights to enemy combatants, is supported by more than just Justice Scalia's dissent. The majority opinion itself repeatedly and clearly indicates that the holding in that case is only statutory, not based on the Constitution. For example, on page 475 of the opinion, for example, the majority clearly states that ``[t]he question now before us is whether the habeas statute confers a right to judicial review'' of the detention of the detainees at Guantanamo Bay. Thus the court was careful to make clear that it was the habeas statute that it was interpreting, not the Constitution.

On the next page, when distinguishing Eisentrager, the Rasul majority opinion states that ``Eisentgrager made quite clear that [its analysis was] relevant only to the question of the prisoner's constitutional entitlement to habeas corpus. The court had far less to say on the question of the petitioner's statutory right to habeas corpus.''

Finally, at page 478, when explaining how it would distinguish the holding in Eisentrager, the majority stated: ``Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to ``fundamentals,'' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.''

This statement could not be clearer that Rasul only addressed the petitioners' statutory right to habeas, not any constitutional right. The court stated that statutory changes--or rather, changes in the interpretation of statutes--made it unnecessary to reach any constitutional questions in Rasul.

Senator Specter's other main argument for his interpretation of Rasul is that the majority opinion's discussion of 18th century common law is a constitutionally binding interpretation of the scope of the writ. My response is that may be so, but it is not relevant to the constitutionality of the Military Commissions Act. The discussion in Rasul that Senator Specter cites is about how far the writ applies overseas. It is not about whether the writ applies to alien enemy soldiers.

Rasul's discussion of the common law of habeas corpus appears in Part IV of the majority decision--after the court had already decided that the statutory right extended to the detainees at Guantanamo. This part of Rasul is devoted to responding to the argument that the presumption against extraterritorial application of legislation requires that the habeas statute be construed to not extend to Guantanamo Bay. Justice Stevens stated that ``[w]hatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within `the territorial jurisdiction' of the United States.'' Justice Stevens then asserted that at common law the writ applied to aliens held overseas, and he went on to describe common law cases that he characterized as extending the writ to aliens held at places outside of the ``sovereign territory of the realm.''

Whatever the merits of Justice Stevens's historical analysis, it is used in Rasul only to rebut the presumption against extraterritoriality. It is used to argue that the writ presumptively does extend overseas. But this part of Rasul does not address the central question raised by the Military Commissions Act: whether alien enemy soldiers, wherever they are held, are constitutionally entitled to seek the writ of habeas corpus. Regardless of whether the writ applies to other aliens held at U.S. facilities overseas, the writ does not--it has never been extended--to alien enemy combatants detained during wartime, whether those soldiers are held inside or outside of the United States.

None of the common law decisions that Justice Stevens discusses in part IV of his opinion granted habeas relief to an alien enemy war prisoner. That is because, as I noted earlier, in the history of habeas corpus, prior to Rasul, alien enemy war prisoners have never been found to be entitled to the writ. Rasul's historical analysis can be cited for the proposition that the writ extends extraterritorially, even to aliens. But its discussion does not address the question that we are concerned with here today: whether the writ extends to alien enemy soldiers.

Indeed, at one point in its discussion, the Rasul opinion does tend to confirm that the common-law habeas right does not extend to enemy soldiers. In its exploration of the scope ``historical core'' of the common-law writ, Rasul quotes a passage from the Supreme Court's prior decision in Shaughnessy v. United States, which noted that executive imprisonment has long been considered oppressive and lawless, and that no man should be detained except under ``the law of the land.'' As Rasul notes, this commentary on the historical scope of the writ came from Justice Jackson.

Just 3 years before he wrote the passage in Shaugnessy that is quoted in Rasul, here is something else that Justice Jackson said about the scope of the writ. Here is what Justice Jackson said in Johnson v. Eisentrager about the notion that the writ extends to alien enemy war prisoners: ``No decision of this Court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it.''

So there you have it, from the same source that the Rasul majority quotes to establish the historical scope of the writ. The writ upholds and enforces the law of the land, but the law of the land does not extend litigation privileges to aliens with whom we are at war.

Let me also cite another, more recent source in support of my argument. Yesterday, Senator Specter quoted an editorial from the New York Times that, unsurprisingly, was hostile to the Military Commissions Act and the Administration. In response to Senator Specter's liberal columnist, allow me cite my own liberal columnist Benjamin Wittes. Mr. Wittes writes op-eds for the Washington Post, is a scholar

at the Brookings Institution, and generally has unimpeachable liberal credentials. I doubt that he and I agree on very many things. Yet this is what he had to say, in a recent column in The New Republic, about the D.C. Circuit's decision in Al Odah upholding the Military Commissions Act:

The [Al Odah] court held both that Congress--not the

executive branch--stripped the courts of jurisdiction to hear

lawsuits from detainees at Guantanamo, and that it had the

constitutional power to do so. As a legal matter, the

decision is correct. And, if and when the Supreme Court

reverses it, as it may do, the decision won't be any less

correct. The reversal will signify only that a majority of

justices no longer wishes to honor the precedents that still

bind the lower courts.

As the case heads towards the Supremes, you'll no doubt

hear a lot about suspension of the Great Writ of habeas

corpus--the ancient device by which courts evaluate the

legality of detentions. And you'll also hear a lot about

Guantanamo as a legal ``black hole.'' It's all a lot of rot,

really, albeit rot a majority of the justices might well

adopt.

Until the advent of the war on terrorism, nobody seriously

believed that the federal courts would entertain challenges

by aliens who had never set foot in this country to overseas

military detentions--or, at least, nobody thought so who had

read the Supreme Court's emphatic pronouncement on the

subject. ``We are cited to no instance where a court, in this

or any other country where the writ is known, has issued it

on behalf of an alien enemy who, at no relevant time and in

no stage of his captivity, has been within its territorial

jurisdiction,'' the Court wrote in 1950. ``Nothing in the

text of the Constitution extends such a right, nor does

anything in our statutes.''

A final passage from Mr. Wittes Commentary reads as follows:

Notwithstanding the passionate dissent in the D.C. Circuit

case, the notion that [the Military Commissions Act] somehow

suspends the writ--a step the Constitution forbids except in

cases of rebellion or invasion--is not credible. As a legal

matter, it merely restores a status quo that had been

relatively uncontroversial for the five decades preceding the

September 11 attacks--that federal courts don't supervise the

overseas detentions of prisoners of war or unlawful

combatants. The demand that they do so now is not one the

Constitution makes.

I would also like to address a point that Senator Sununu made on the floor yesterday. Senator Sununu argued that, because detention of the Guantanamo prisoners may be indefinite, these prisoners should be given a right to challenge their detention.

In response, I would like to simply describe the protections that the CSRT process provides to Guantanamo detainees and discuss why it would be highly problematic to substitute that process with habeas review.

In the CSRT system, a detainee is provided with a personal representative who is assigned to help him prepare his case before the tribunal. CSRT hearings also include a hearing officer who is required to search government files for ``evidence to suggest that the detainee should not be designated as an enemy combatant.'' Prior to the actual hearing, the CSRT officers must provide the detainee with a summary of the evidence to be used against him. CSRTs are then subject to administrative review, and the detainee has an appeal of right to the U.S. Court of Appeals for the District of Columbia, which is charged with evaluating whether the tribunal complied with the CSRT rules, and whether those rules and procedures are constitutional.

All of the procedures described here, incidentally, are above and beyond what lawful prisoners of war are entitled to under the Geneva Conventions in an Article 5 hearing. Those hearings do not assign anyone to help a detainee, they do not require the government to search its files for exculpatory evidence, they do not require that a summary of the incriminating evidence be provided to the detainee, and they are not subject to any judicial review whatsoever.

Indeed, the CSRTs not only provide more process than is required under the Geneva Conventions; the CSRTs require more process than the Supreme Court has suggested is required for the United States to detain even a U.S. citizen as an enemy combatant. In the governing plurality opinion in the 2004 Hamdi decision, the Supreme Court suggested that even a U.S. citizen could be detained as a war prisoner if his detention were reviewed by a ``properly constituted military tribunal.'' The Supreme Court expressly cited as an example of such a tribunal the Article 5 hearings that are conducted under the Geneva Conventions in cases where there is doubt about a detainee's status. The CSRTs are modeled on and closely track these Geneva Convention Article 5 hearings. And, as I just described, in several respects the CSRT process provides even greater protections than an Article 5 hearing provides.

The Military Commissions Act, of course, does not apply at all to United States citizens. Out of deference to the force of the legal argument made by Justice Scalia in Hamdi v. Rumsfeld, both the DTA and the MCA were drafted to only bar aliens from seeking habeas relief, not United States citizens. And, again, the CSRT hearings that alien enemy combatants do receive provide even more process than the Hamdi plurality suggested is owed to an American citizen.

Nevertheless, the detainees and their lawyers are unsatisfied with the CSRT process. They want to give Al Qaeda detainees the right to see classified evidence related to their detention, and they want to allow the detainee to call his own witnesses.

In a recent column in the National Journal, Stuart Taylor, Jr. cites a strong example of why it would be a very bad idea to share classified information with suspected Al Qaeda detainees. Mr Taylor writes:

Consider the list of almost 200 un-indicted co-

conspirators, including the then-obscure Osama bin Laden,

that prosecutors in the 1995 trial of 11 subsequently

convicted Islamist terrorists were legally required to send

to defense counsel. ``That list was in downtown Khartoum

within 10 days,'' U.S. District Judge Michael B. Mukasey of

Manhattan, who tried the case, recalled in a recent panel

discussion. ``And he [bin Laden] was aware within 10 days * *

* that the government was on his trail.''

Mr. Taylor goes on to cite another example where the release of sensitive information to a suspected terrorist in the course of legal proceedings endangered national security:

In another judge's case, [Judge] Mukasey recalled, ``there

was a piece of innocuous testimony about the delivery of a

battery for a cell phone;'' this tipped off terrorists to

government surveillance' and as a result [their]

communication network shut down within days and intelligence

was lost to the government forever, intelligence that might

have prevented who knows what.

Mr. President, it is incidents like this that we must keep in mind when presented with demands that suspected al-Qaida or Taliban members be allowed to pursue habeas litigation. In civilian litigation, a criminal defendant has a presumptive right to see classified evidence used against him. Under CIPA, the Government must summarize or redact the evidence, but the summary or redaction must still provide an adequate substitute for the raw evidence. If the substitute is not deemed adequate, the Government must either show the evidence to the detainee or it cannot use the evidence.

In the context of Guantanamo, where detention hearings rely heavily, if not exclusively, on classified evidence, applying these habeas litigation rules would mean that we would have to either share classified information with al-Qaida detainees or we would have to let them go. Neither of these is an acceptable option. Even the fiercest critics of Guantanamo must accept that the bulk of the detainees held there are connected to al-Qaida or other terrorist groups. We cannot simply seal off these detainees from all contact with the world and assume that we will hold them forever. We must assume that some will be released and that they will be allowed some communication with those outside Guantanamo and, under these circumstances, we simply cannot hand over classified evidence to Guantanamo detainees.

As happened during the embassy bombers' trials, we must assume that classified evidence provided to the detainees will go straight back to the rest of al-Qaida.

I should also emphasize that denying an al-Qaida detainee access to classified information does not mean that such evidence will not be subject to any adversary review in the CSRT and DTA process. In the pending Bismullah case, the Government has proposed a procedural order under which a detainee counsel who has obtained a security clearance would be able to review the classified evidence in the CSRT hearing. If this proposed order is adopted, as I assume it will be in some form, the detainee's lawyer, though not the detainee himself, will have access

to the classified information used in the CSRT.

So when you hear evidence or arguments that the DTA review is unfair or that it is inadequate, keep in mind the actual stakes at issue. The detainee's cleared lawyer will get access to the classified information, but the detainee will not.

Under these circumstances, should the Congress force the military to provide classified information to both the lawyer and the suspected terrorist?

Another complaint about CSRTs is that the Guantanamo detainees are not allowed to call their own witnesses at the hearings. Just who would those witnesses be the detainees would call? Whose testimony would be most relevant to the detainee's enemy combatant status? The only answer to this question would be the soldier who originally captured the detainee.

Here is Mr. Stuart Taylor's commentary on the proposal that Guantanamo detainees be allowed to compel witnesses at their CSRT hearings:

Should a Marine sergeant be pulled out of combat and flown

around the world to testify at a detention hearing about

when, where, how, and why he had captured the particular

detainee? What if the Northern Alliance or some other ally

made the capture? And should the military be ordered to

deliver high-level al Qaeda prisoners to be cross-examined by

other detainees and their lawyers?

I would suggest that simply to ask this question is to answer it.

Here is more that Mr. Taylor had to say about such proposals:

Many libertarians and human rights activists, on the other

hand, would settle for nothing less than the full panoply of

protections afforded to ordinary criminal defendants. They

should be careful what they wish for. As McCarthy points out:

Enemy combatants are often in a position to be killed or

captured. Capturing them is the more merciful option, and

making it more difficult or costly would almost certainly

effect an increase in the number killed.

The CSRT hearings and the DTA review strike the right balance. They give detainees enough process to ensure that the persons held are enemy combatants and that they pose no threat to the United States. But this system does not provide a process that would undermine the war with al- Qaida or that is inconsistent with the realities of war.

Mr. President, I will stipulate to that.

Mr. President, first of all, I appreciate both the courtesy of the Senator from Pennsylvania and his important legal analysis and would answer the question in this way.

I think that most observers believe that the Rasul decision is not a decision on the Constitution but on the statute; that it interprets rights based upon the statute, which Congress can change; that it is not a holding that provides a constitutional right to alien enemy combatants to litigate via habeas corpus.

Secondly, the Great Writ that has been quoted by the Senator from Pennsylvania has always been understood in decisions of the court to be defined as it existed at the time of the Constitution. That is why there is always a great interest in looking back to decisions in the common law of England prior to the adoption of our Constitution, the Bill of Rights.

I think, as I said in my statement, that there has never been a case that suggests that at the time the language about habeas corpus was put into our Constitution any court, in either the United States or England, at the time, had ever held that the writ applied to alien enemy combatants. So it has never been held that the writ applies to aliens. It has been held that it applies to U.S. citizens, and it has certainly never been held that it applies to alien enemy combatants.

Mr. President, I would say to my colleague that nothing in the grant of the writ in the Constitution, as far as I know, would deny the right of Congress to expand it to include others. Certainly, one could not take away from the writ as it was understood when it was put into the Constitution. For example, we could not deny to U.S. citizens the writ of habeas corpus because of the constitutional provision, but it would not speak to the question of whether Congress could extend the authority of the writ to aliens.

The case here, however, is that the decision in question was based on a statute which Congress had adopted, and it does not go to the question of whether the writ itself ever applied to aliens. In fact, it never applied to alien enemy combatants.

Mr. President, I would have to go back and read it very closely, but my recollection is that the court found the statute rather uninformative and rather unclear, and that was part of the basis for the court reading it in a way that went beyond what I thought it provided. Nonetheless, one can understand that when the court views a statute that doesn't provide clear limitations, its inclination may well be to lean forward in its interpretation.

Mr. President, the answer is no, I was not. I regret I didn't hear the argument of the Senator yesterday.

Mr. President, let me just try to respond very briefly to the question of the Senator. Again, I regret I didn't hear the full argument that was made yesterday.

I am happy to yield.

Mr. President, I will respond very briefly by saying, first of all, I fully associate myself--

--with the comments of my colleague from South Carolina yesterday.

To the first point, if I could just make a brief comment, after the Rasul decision, after the Rasul case was decided--

No coaching.

After the Rasul case was decided, I am sure, Senator Specter, you would agree it was important for the Department of Justice to advise people of the rights that were provided as a result of that decision. That is my understanding of what they did. They had a policy of saying: The Court has made this decision. They found a statutory right of habeas corpus, and you have the right to do the following things under that statute. But that would not be a pronouncement of law by the Department of Defense. Certainly it hasn't been relied upon, to my knowledge, by any court in deciding what the scope of the writ is. So, as to your first point, I hardly think it is good evidence of the constitutional application of the writ to detainees that after the Rasul decision, the Department of Justice properly advised people as to their statutory rights based upon that decision.

As to the second question--just one quick quotation. This was provided to me, at my request, by Senator Graham. In the Hamdi case, in the O'Connor opinion, she specifically answers the question you posed, Senator Specter, on page 27 of the opinion, where she says:

Likewise, the Constitution would not be offended by a

presumption in favor of the Government's evidence so long as

that presumption remained a rebuttable one and a fair

opportunity for rebuttal were provided.

Mr. President, I answer my friend and colleague from Pennsylvania that I disagree with a lot of jury verdicts and with a lot of court opinions. But once a matter is concluded, as officers of the court, we are supposed to respect the decision of the court. I do. I don't know the facts of every case that has been litigated, but they have done so under a procedure that has been upheld as constitutional. Just as I was willing to stipulate that Justice Scalia probably has a better handle on Supreme Court interpretation than either--well, I didn't stipulate that he has a better interpretation than Senator Specter, but I acknowledged in my case that he would--I think you have to say that if a court of appeals has made such a decision, then it is a bit presumptuous for us, with great confidence, to say that they necessarily were wrong.

So I am not going to second guess a decision like that. I would rather simply point to the most recent decision which upheld the procedures in the Al-Odah case--that case will be decided by the U.S. Supreme Court. My colleague and I have a different view, I suspect, as to how that case will come out. We will just have to wait and see. If it turns out that I am correct, that the court of appeals' decision is correct, then this debate which we have had here probably won't matter. But I do believe that until that decision is made, it would be unwise for us to again change the law, thus throwing into even greater confusion what has up to now been a pretty confused state of affairs.

Mr. President, this is going to sound too much like the mutual admiration society, but before Senator Specter said what he said, I rose because I wanted, in return, to pay him a compliment.

As chairman of the Judiciary Committee prior to the last election, he performed admirable service to the Senate. I think it is not well known that that kind of a job requires a lot of different skills to be employed to deal with a lot of cantankerous Senators who have their own ideas about how things should be done. Senator Specter always conducted that committee in a way which allowed us to get business done, and respected the rights of Senators. Far too often, debate, or what passes for debate in this Chamber, is speeches given by Senators on different points of view, like ships passing in the night with no joining of the issues, and no serious discussion of complex legal issues, when that should be required.

Certainly the Presiding Officer would be well qualified to judge what I am saying. But I always appreciated the opportunity, even when we were in disagreement, to discuss and to debate with the Senator from Pennsylvania, because he is a serious scholar who takes these matters seriously. He may not always come up with legal theory with which I agree, but it is always interesting to debate him. At the end of

the day, I would like to think this kind of debate does add to a record that the Court or other observers might actually find informative and helpful in their decisions.

Again, while we disagree with each other on this matter, I think it is apparent that we do so respectfully and with regard for each other's opinions.

I want to say there is no greater expert in our body on military law than the Senator from South Carolina. I have always appreciated his wise advice and counsel on these matters as well.

Will the Senator yield?

Madam President, this is a session worthy of the Senate, worthy of the country, and I think incredibly important. I compliment Senator Kyl for what I thought was an excellent overview of what the law requires in this area, what the Geneva Conventions require, and how our country exceeds the requirement of the Geneva Conventions.

To my good friend Senator Specter, there is no better champion of fairness and constitutional causes than Senator Specter. On this we respectfully disagree as to what the courts have said, and as far as the lay of the land of how you do this.

I do not come to this body as an expert on the Geneva Conventions. I have had some time in the military as a military lawyer. I have a pretty good understanding of what is going on in some respects. But I ask every Senator to review what is going on and make their own judgments, ask their own legal friends if they are not lawyers, and try to be fair.

We will all serve the country well if we will have a process that is constitutionally sound, that meets the test of fairness, and also recognizes we are at war and we are under great threat. So my basic presumption here as a Senator is I want to put infrastructure in place that recognizes the country is in an ongoing global struggle, and that as part of that global struggle we are dealing with people who are out of uniform.

This is not a capital to conquer or a navy to sink or an air force to shoot down. This is a unique war in the sense that it is ideologically based, not a particular location we are trying to conquer and not a particular uniform we are trying to suppress. The global war on terrorism is about extreme versus moderation, and it is rearing its head all over the planet.

So the battlefield in this war, from my point of view, is the globe itself, just as in World War II--the al-Qaida enemy. That is who we are talking about, people affiliated with al-Qaida, al-Qaida-like operatives who are going throughout the planet trying to kill civilians, rampantly trying to inflict harm on our own troops for an ideological agenda based on religion. They have no boundaries. They are not signatories to the convention. They do not play by the law of armed conflict.

But even if they have a status in the law of armed conflict, we are trying to make sure their status is determined in the proper way. We realized in past wars that the Viet Cong and others operated outside of a uniform, in a guerilla-type fashion. Well, the terrorists operate out of uniform with absolutely no respect for any concept of the law of armed conflict. But once they are captured, if they are not killed, then it becomes about us, not about them.

What does the United States do when it finds an enemy combatant, someone out of uniform, who is engaged in hostilities? See, I do believe 9/11 was not just a crime; this was an act of war. There are warriors all over this planet involved in a great struggle, in their minds, against moderate Muslims and every other religion, Christian, Jewish faith, and they have no place for the rest of us. If you solved the Jewish-Palestinian problem tomorrow, they would still be coming after us.

The people at greatest risk are moderate Muslims in the Middle East who would tolerate different ways of looking at religion. So there is a global struggle, and when we find a person we believe to be an al-Qaida operative or a supplier of materials to al-Qaida, the first thing, if they survive the battle, is that our military must fight the war, and if they are captured, we have to determine their status.

If there is a question as to whether the person captured by the American military is a lawful combatant, an enemy combatant, or nonbelligerent, who makes the decision as to what is the proper status for that individual?

Well, under the law of armed conflict--and I do believe we are at war--it is the military. Under the Geneva Conventions, it is the military. Article 5 of the Geneva Conventions is very important. Because within that article, it informs the world at large, the signatories of the conventions, that a competent tribunal must be empaneled to determine the status. That competent tribunal panel all over the world is the military.

The reason I object so vehemently to allowing habeas petitions to be filed to determine who is a military threat is we would be conferring what is a military decision, historically and under the law of armed conflict, and literally making it a civilian judge's decision where witnesses would be called and the judge would have a full-blown trial, with some very sensitive information.

I do respect our judges, but with all due respect to our judges--I think most of them appreciate this--they are not trained as to who a military threat is to the United States. That truly is a military decision, and we are not making that up after 9/11. That has been a military decision under the Geneva Conventions article 5 since the conventions were drafted. So we are doing nothing new because we were attacked by an ``un-uniformed'' enemy.

The question as to what Senator Specter has raised: What process do we have in place to determine if a person is truly an enemy combatant, a concept recognized by the Geneva Conventions, the combat status review tribunal to me is not only constitutionally sound, it goes beyond what the Geneva Conventions require. Senator Specter read a transcript of a case that went to the DC Circuit Court of Appeals. I want us to slow down for a moment and think about that. The case as to whether this person was an enemy combatant worked its way up through our Federal judiciary to the second highest court in the land.

Under the law we passed last year, we allowed in every decision by the military that results in a finding that a person is an enemy combatant that that individual will be able to go to our court system, which is not required under the Geneva Conventions and is done nowhere else that I know of, and the court will review that case on two grounds: Were the procedures in place constitutional--Senator Specter mentioned this--and do you feel comfortable with the rebuttable presumption? Well, that has already been decided. In the Hamdi case of 2004, they specifically comment on the CSRT procedures. There is a preponderance of the evidence test required. The Government must prove by a preponderance of the evidence that the person in question is an enemy combatant.

This is not a judicial proceeding, this is an administrative proceeding. It is like the EPA deciding an administrative question. But it is an important decision, because if you are an enemy combatant, you can be held for an indeterminate period of time. As long as you are a threat, you can be held as long as hostilities exist.

The problem with this war is we do not know when the war is going to be over, so we want to build robust due process.

Let me tell my colleagues without hesitation: We have let almost 200--I can't remember the number--go from Guantanamo Bay who had been captured and determined to be enemy combatants. Every year their status was reviewed because we do not want to keep people forever unless there is a reason to keep them. Three things are looked at in every person's case administratively: Do you have intelligence value still; are you a threat to the country; and has anything new come into the case file to say you were originally misidentified as an enemy combatant? Twelve of the people released have gone back to the fight, have gone back to trying to kill Americans and civilians.

The question for this country and the world is when it comes time to decide to release somebody, there is risk to be had in that decision. Who should share that risk the most? Is it the civilian populations that have been the victims of these ``un-uniformed'' killers who have chosen to join these organizations or support them with no boundaries or should it be the people who take up these causes?

I will tell you where I am coming down. If there is a doubt as to whether they continue to be a threat to our country and other peace- loving people, we are not going to turn them loose to fight us again. Every enemy combatant is not a war criminal. There is a separate proceeding at Guantanamo Bay to deal with those people involved in war crimes. If you start mixing the two, it will come back to haunt our country because we do not want to stand for the concept as a nation that every time an American soldier is captured in the battles of the future it would be appropriate to label them a war criminal. War criminals have to do specific things. Being part of an enemy force does not make one a war criminal.

So the point I am trying to make is the administrative procedures in place at Guantanamo Bay have been found to be constitutional, but we added a provision last year that allows the court to review whether the tribunal's finding was supported by a preponderance of the evidence, and allowing a rebuttal presumption in favor of the Government's evidence.

In other words, the DC Circuit Court of Appeals can look at the military's findings, not just the process, and they can say, as a panel of judges: Wait a minute, there is no competent evidence to support a finding that you are an enemy combatant. The court can say the case file is deficient. Not only was the process deficient--the process could be constitutionally sound--but it could result in an individual case where there was not sufficient evidence in the opinion of the court. The court does this all the time.

The court will review administrative bodies' decisionmaking abilities throughout this land. It could be in the EPA, it could be in some other agency of the Government, where the court will be able to look at the hearing officer's findings and determine if there was sufficient evidence to support that hearing officer's finding.

So going back to the transcript Senator Specter read, they did not tell him who it was. Well, maybe the reason he was not told who informed is because if we put out in a public setting our informant system, they will wind up getting killed. That is not an unknown concept in criminal law.

So I would argue, there is information in these cases that will never be publicly disclosed because if we start publicly disclosing the entire network that led to this capture, we are going to get people killed and we will be less safe. That is why we have a classified portion.

Shaikh Mohammed, the mastermind of 9/11, will be going through this process tomorrow, I believe, at Guantanamo Bay. Fourteen other high- value detainees captured in the global war on terror--very significant players in the al-Qaida movement--will be given a hearing at Guantanamo Bay, where the Government will have to prove the person in question-- Shaikh Mohammed--is, in fact, an enemy combatant as defined by our own regulations, consistent with the Geneva Convention.

These hearings will be closed. I applaud the fact they are closed. The evidence will be redacted and given to the public and the press. But there will be a transcript available to be reviewed by the DC Circuit Court of Appeals, including the classified portion, in a classified setting.

I think it would be a huge mistake to disclose the methods and operations and the sources that led to the capture of Shaikh Mohammed in an administrative proceeding. Our courts will look at that evidence in a classified fashion because Shaikh Mohammed will be allowed to have his case reviewed, after the military makes their decision, in Federal court--something never done in any other war. The reason we did this last year, with Senator Levin's help, was to make sure--because we do not know when this war will be over--there will be a check and balance on a military decision never known in any other war.

I support that check and balance. I support the idea that every military decision regarding enemy combatant status will work its way through our court system. I vehemently object to taking what is a military decision and giving it to a civilian judge in a habeas forum, which is a complete Federal trial where the civilian judge makes the decision, not the military. Let the judges review the military work product. Do not give it to the civilian judges.

Shaikh Mohammed will be classified one way or the other. I am sure he will be classified as an enemy combatant. But the DC Circuit Court of Appeals will get to review his case. What is likely to happen in his case, if you believe the press reports? If he truly can be proven to be the mastermind of 9/11, he will be tried as a war criminal because the activities he engaged in--of orchestrating a series of attacks on our country, where you hijack civilian aircraft to go into the World Trade Center and to attack Washington, DC--would be a violation of war, as well as a crime.

So he could work his way into the military commission trial procedure. ``Enemy combatant'' is an administrative determination. Charging somebody with a war crime is a totally different process. If the Government charges him with a war crime in a military commission setting, in a military commission format at Guantanamo Bay, they will not be allowed to give to the jury classified information proving he is guilty of what we are accusing him of doing, unless they share it with the accused. That was my objection to President Bush's proposal. I do not want to create a precedent where one of our soldiers could be tried in a foreign land, accused of being a war criminal, and never be given the evidence and be able to defend against what would be a criminal proceeding resulting in death or long-term imprisonment.

So for Shaikh Mohammed or anyone else, if the Government decides to use classified evidence to find someone guilty, they get a chance to defend themselves because we are talking about a punishment that could include execution.

There are two different concepts. The rules are different. What goes on in a military commission trial is consistent with what we do with our own troops under the Uniform Code of Military Justice when we try them for crimes. One is an administrative determination that exceeds the Geneva Convention requirements. The other is a criminal proceeding under the Law of Armed Conflict that I believe will be constitutional and the courts will say is a process worthy of this country.

As to what the law is, I say to my good friend, Senator Specter, I believe the Rasul case was based on this concept. The Department of Justice argued that Guantanamo Bay was outside the jurisdiction of the United States. If that were the case, if they won that argument, the constitutional provisions of habeas would not apply, nor would the statutory provisions. But Rasul was about a statute, not about the constitutional provisions, in my opinion.

Here is what the court said: They rejected the Bush position that the laws of the United States do not apply to Guantanamo Bay because of the lease and because of the relationship we have to that facility.

Do you know what. I think the court was right. I think that was an ill-advised position by the Bush administration.

So once Rasul was decided, and they rejected Eisentrager's statutory interpretation test, the Rasul court, in my opinion, said since it is within the United States, and Congress has not spoken to this in 2241-- Congress has never said because you are an alien enemy combatant at Guantanamo Bay you cannot have a 2241 right--we are going to confer that right until Congress decides otherwise.

Yes, I will.

Madam President, if I may, just not being an intelligence expert, when we start naming the people involved around the individual, then we are talking about locations, specific sites. I would be very worried if we started naming in detail al-Qaida operatives, where they were, what they said, because that could set in effect a chain of events that would allow the enemy to understand what happened in that transaction.

We may just disagree about this issue, but I do believe that the classified--that Shaikh Mohammed--maybe I can say it this way. I am glad that Shaikh Mohammed's case is classified, and we are not going to reveal to the public how we captured him, all the evidence that led us to find out where he was and what he was doing. I think it would be a nightmare for this country.

As to the DC Circuit Court of Appeals opinion, I say to Senator Specter, they said the procedure was constitutional. I agree with them. Whether or not the individual case had sufficient evidence to support a finding is now subject to review by the court. This gentleman will get that review by the court based on what we did last year.

I appreciate that. And I will continue. I will say this to my good friend from Pennsylvania. You were reading the transcript of a case that went on appeal. You have determined yourself that an injustice was rendered. You have made an opinion inconsistent with what the court found. You have your own sense of justice. I appreciate it, I admire it, but I do believe the court is right and you are wrong.

I do believe there is no constitutional right available to enemy combatant terrorists, noncitizens. I do not believe Rasul decided that, because if they had decided that, all these cases we are talking about would have been dismissed.

The circuit court of appeals may not be the--they would have gotten that. We have a case going to the DC Circuit Court of Appeals that either they have no idea of what the law is or Senator Specter is wrong.

So I hope my colleagues will understand the DC Circuit Court of Appeals is not blind to the issues in this case, they just did not miss the fact that the Supreme Court, in Rasul, 3 years ago, declared a constitutional right and the DC Circuit Court of Appeals is out to lunch as a group of judges who do not understand one of the biggest decisions in American jurisprudence. If my colleagues believe that Rasul created a constitutional right for an enemy combatant, noncitizen, and everybody in the legal system has missed it, then you should not trust anything coming out of the DC Circuit Court of Appeals, you should not trust any decision coming from district court judges all over the country who are dismissing these cases, and you should not believe a thing I say.

But there is a reason the DC Circuit Court of Appeals did not feel bound by a constitutional finding in Rasul--because the court did not find that. There is a reason they upheld the proceedings in the case in question, and some of that reason may be classified. I don't know. But I do know this: It is not good law or public policy to take a transcript released by the defense counsel and read it in isolation and try to use that anecdotal story to say that the whole process is broken, when the court looked at the entire process and found that it was not broken. I can promise my colleagues that if the Rasul case said there was a constitutional right to habeas corpus by a noncitizen enemy combatant, it would have been a major issue in the Al Odah case. The reason Al Odah decided what it did is because it rejected the defense claim there should be, and there is no evidence in the Al Odah case that the DC Circuit Court of Appeals took precedent in the Rasul case and came out with a different finding. Don't my colleagues think there would have been a long discussion in the Al Odah case by the DC Circuit Court of Appeals that here is why the precedent set in Rasul for a constitutional habeas right for an enemy combatant noncitizen is wrong?

So please give the DC Circuit Court of Appeals some credit for not missing the biggest issue in military law in 200 years because they didn't miss it. Please give the Department of Defense some credit that when they issued this memo to detainees and their lawyers in July of 2004 indicating there is a habeas petition available to you, that it wasn't the Department of Defense's desire to create that right and that what they were doing was consistent with Rasul in saying that under 2241 you now had this right. For someone to suggest that memo was a conscious decision by the Department of Defense to give a habeas right to detainees I think completely misunderstands what the memo was about, distorts what it was about, and is a complete misunderstanding of what happened in Rasul. The Department of Defense had no other choice but to tell the detainees after the Rasul decision: You can file habeas petitions under 2241.

The Supreme Court in three cases has told the Congress: You need to speak here. We found a statutory right because you haven't excluded it. Do you want as a Congress to confer on the Shaikh Mohammeds of the world an ability to go into Federal court of their own choosing, to find the most liberal judge they can find in this country, and take the military and every other intelligence agency to court and have that judge, in a full-blown trial, determine whether this person is an enemy combatant? That would be changing a process on its head. That would be taking away from the military the ability they have under the Law of Armed Conflict to decide who an enemy combatant is and give it to a civilian judge who is not trained in that. It would be a fundamental, far-reaching mistake that would haunt us and undermine our national security, put judges in positions they are not trained for, and take away from our military an obligation and right they have to defend us. There is a place for judges. There is a place for the Congress. There is a place for the President. There is a place for those fighting this war.

I have one simple goal. I want to put people in the lanes where they can do the most good and the least harm. I do believe, if we turn this war into a crime and if we take the Shaikh Mohammeds of the world and we let civilian judges have a full-blown trial about how we found out they were the mastermind of 9/11 and if you take away from the military what a military threat is and you give it to civilian judges, you are going to make this war much harder to prosecute, and it will come back to haunt us. It has never been done before for a reason. We never allowed the Nazis, who are on par with al-Qaida, the ability to go into our Federal courts and sue the people who were fighting them--our troops. Because Justice Jackson in 1950 said: You would undermine the commander. They would be fighting the enemy on two fronts: on the battlefield and in the courts of the United States. It would undermine the commander's credibility. It would lead to chaos. There is a reason the Germans and the Japanese never went to Federal court. It would be, in my opinion, dangerous to give to al-Qaida more rights than we gave to the Nazis.

This is a great debate to have, but it needs to be based on some sound concepts. I don't think it is a sound concept to say that Rasul gave a constitutional right to noncitizen enemy combatants under our Constitution. I don't think it is a sound concept to say that the DC Circuit Court of Appeals 2

weeks ago missed that. They didn't miss it. That is not what this debate is about. This debate is about whether 2241--something under our control--whether we as a Congress want to give to enemy combatants the ability to sue our own troops. There are over 160 lawsuits filed. It has made a nightmare of Guantanamo Bay. They are suing our own troops for medical malpractice, for DVD access, for better exercise. You name it, they have brought a lawsuit around it and it has clogged our courts and it has impeded the ability to run this jail.

Let me tell my colleagues, in a classified and unclassified manner, the intelligence we have received from people housed at Guantanamo Bay has helped this country defend itself. The last thing we should be doing in an ongoing war is hampering our ability to defend ourselves because we are having two fronts--the military front and the legal front--that confers a status on our enemy that will undermine the ability of our military to defend us.

This is a statement from one of the lawyers who has filed one of these 160 lawsuits:

The litigation is brutal for the United States. Boy, was he

right about that.

We are having to call people off the battlefield. We are having to bring people off the battlefield into the new battlefield--the courtroom--to explain to some civilian judge why we think they are an enemy prisoner--enemy combatant that threatened the United States.

It is huge. We have over 100 lawyers now from big and small

firms working to represent these detainees. Every time an

attorney goes down there, it makes it that much harder for

the U.S. military to do what they are doing.

Boy, was that right.

You can't run an interrogation with attorneys.

You better believe that is right. We are interrogating to make sure we find out what the enemy is up to the best we can so they don't kill us. Now, if you want to take the interrogation process at Guantanamo Bay and put a bunch of lawyers in the middle of it, which we have never done in any other war--we never gave to the Nazis--then you are crippling the ability of this country to defend itself. It has nothing to do with fairness. You are creating a right never known in an armed conflict previously, and you will be criminalizing what I think is a war in a dangerous way.

What are they going to do now that we are getting court orders to get more lawyers down there? They are going to shut off the interrogation and the information is going to stop.

We have made mistakes at Guantanamo Bay. The Bush administration has taken legal positions that I don't think have been sound, but I believe we have finally got this right, and I am going to end now.

I think after a lot of give and take and after a lot of court decisions, we are on the road to exactly where we need to be, and we have it right. Here is what we have in place: a system that is Law of Armed Conflict compliant, Geneva Conventions compliant, that realizes that fairness is part of being an American, but we are at war with people who want to kill us, and if they could, they would go back to it, some of them. Some of them are war criminals. Some of them are warriors who are assisting in the effort that had to be kept off the battlefield until they are no longer a threat. The military is doing a darn good job, and I stand by the men and women down there who are carrying out this job at Guantanamo Bay. I stand with you. I am proud to be your advocate in this body. You are getting good intelligence, consistent with lawful interrogation techniques. You are making decisions about who an enemy prisoner is, who a threat is to this country, in a sound way. Keep it up. Your work product will be going to court, so be mindful that what you do will get reviewed, as it should. Some have been let go--about 100-and-something. Most, as far as I know, have gone back and not been a threat. Every year, every person at Guantanamo Bay will get to have their case argued anew. They will get to make a case: I am not an enemy combatant. I am no longer a threat. I have no intelligence value.

We do not want to misidentify someone. That has probably happened. This is a confusing war. I am not here to say there has not been someone sent to Guantanamo Bay who was a mistake. That is true of jails in Missouri, and it is true of jails in South Carolina. But you can't say there is no risk involved when you release somebody because I can tell my colleagues with certainty that 12 of the people we thought were no longer a threat, because we wanted to be fair and let them go, have gone back to try to kill Americans.

There is no perfect outcome. You try to create a system that models who you are and is as fair as possible, recognizing you are at war. These war crime tribunals and commissions are going on during the war. The enemy combatant determinations are being made during the war. The reason we don't want to disclose how we found Shaikh Mohammed is because the war is going on, and we don't want to help people who are our enemies. So everybody caught and suspected by our military of being an enemy combatant involved in a global war on terror out of uniform supporting al-Qaida, they are going to get to go to Federal court, but we are going to let the military decide if they are a threat first, and the judges of this country can look over the military's shoulder and see if the military got it right in that case and if the procedures are fair. If you are convicted of a war crime at Guantanamo Bay, as Shaikh Mohammed may be or someone like him, you are going to get your day in Federal court because it is an automatic right. Whatever procedures are used by our military, which is modeled after our own process to try our own people, will go through legal scrutiny, the procedures and the outcome.

So if you are worried as an American that we are putting people away forever without due process, don't worry about it. That is something to be concerned about. If you are worried that your country has gotten somebody in the global war on terror and we house them and nobody ever gets to look at the work product, don't worry about it. But if you are worried that the Congress is about to confer a right never known in any other war to al-Qaida that will undermine our security, you are right to worry. It is all about judges: What they should do and when they should do it--and I respect judges. It is all about the military: What should they do and when should they do it. God knows I respect them.

We have the right balance. The military fights, they kill our enemies, they capture our enemies, and once they are captured, they are going to be treated by this country under the Law of Armed Conflict, consistent with our values and consistent with the Geneva Convention and consistent with the fact that we are at war. Everything they do when it comes to adjudicating these prisoners' status will be reviewed in our Federal courts after the military acts. Every person convicted will have their day in court, and the courts can look and see if they were treated fairly. That is what America should do. That is what we are doing.

Please understand this war is different, and we have to make accommodations in a variety of ways, but this is a war. This is not a crime. These people we are rounding up throughout the globe wish to kill us all.

Mr. President, I yield the floor and I note the absence of a quorum.

Mr. President, in several weeks, the Senate will begin its deliberations on the fiscal year 2008 budget resolution. It is my strong belief that the Senate must pass a budget that will expand the shrinking middle class, that will reduce the enormous and growing gap between the wealthy and the poor, that will keep our promises to our Nation's veterans, that will reduce our recordbreaking national debt and lower the poverty rate. That is what this Senate should be focusing on.

Simply stated, in my opinion, the way for us to move in that direction is to repeal the President's tax breaks that have been given to the wealthiest 1 percent, the people who need it the least and, in addition, for us to take a hard look at the Pentagon, take a hard look at the waste and the fraud and the unnecessary weapons systems that are existing in the Pentagon right now. We don't need weapons systems that were designed to fight the Soviet Union; we need an approach to fight al-Qaida.

I think we can find billions of dollars in savings when we look at the military budget as well. The bill I am introducing today, the National Priorities Act, will in fact accomplish these goals.

A budget is more than a long list of numbers.

A budget is a statement about our values, our priorities, and the time is long overdue for the United States Congress to get its priorities right, to begin to stand up for the middle class and working families of this country, rather than multinational corporations and the wealthiest people who, year after year after year, have so much power over this institution.

Let me do what is too rarely done on the floor of this Senate, and that is take a hard and cold look at the reality facing the American middle class and working families of this country.

As a member of the Budget Committee, every week we have somebody from the President's administration coming before us, and they tell us the economy is doing great; it is marvelous. The people of Vermont and the middle class of this country don't believe it because every single day they are seeing an economy which is forcing them, in many instances, to work longer hours for lower wages, an economy in which they wonder how their kids are going to get decent-paying jobs, an economy which suggests that for the first time in the modern history of our country, our children, if we do not change our direction, could have a lower standard of living than we do.

What the American dream has been about is that our parents worked hard so that we could have a better life than they did, and that is what we want for our kids. But unless we make fundamental changes in the way this economy is working, the likelihood is that our kids, despite a huge increase in worker productivity, despite technology, will have a lower standard of living than we do, and we must not allow that to happen.

Since President Bush has been in office, more than 5 million Americans have slipped into poverty. We are seeing an increase in the rate of poverty in the United States, including 1 million more children. Not only does the United States have the highest rate of poverty of any major country on Earth, we also, shamefully, have the highest rate of childhood poverty in the industrialized world.

I know there is a whole lot of talk about moral values on the floors of the Senate and the House. To my mind, having the highest rate of childhood poverty in the industrialized world is not a moral value. It is a disgrace. It is a shame. It is time we in this country paid attention to the children rather than the wealthiest people.

According to the U.S. Census Bureau, the childhood poverty rate is nearly 18 percent. Other studies suggest that it might be higher.

Some people say: Well, that's the way it goes. Well, that is not the way it goes among other major countries in the world. In Germany, the childhood poverty rate is 9 percent; in France, it is less than 8 percent; in Sweden, it is less than 7 percent; in Norway, 4.2 percent; in Finland, 3.4 percent. If other countries can have childhood poverty rates of less than 5 percent, so can the United States of America.

Just one example. Our allies in Great Britain made a commitment to end childhood poverty and they have reduced the childhood poverty rate by over 20 percent since 1999. At the same time, child poverty in the United States increased by 12 percent. If we make the commitment, we can do that.

Let's take a look at our health care situation. The costs of health care, as everybody in this country knows, are soaring. The number of people without health insurance has risen to a record high of 46.4 million in the year 2005. That is an increase of almost 7 million more Americans lacking health insurance since President Bush took office.

While the President continues to cut taxes for millionaires and billionaires, the lack of health insurance kills many more Americans each year than September 11 and Katrina combined. In fact, the National Academy of Sciences estimates that 18,000 Americans die each year because they lack health insurance.

In my view, the United States of America must join the rest of the industrialized world. We must guarantee health care to all of our people as a right of citizenship. While I know some

people say we can't afford to do it, I would argue that at a time when we are spending more than twice as much per capita on health care as any major nation on Earth, we can do that. We can provide quality health care to every man, woman, and child as a right of citizenship without spending a nickel more than we are presently spending. But to do that, we must be honest. We are going to have to take on the insurance companies. We are going to have to take on the drug companies. We are going to have to take on the multinational corporations that benefit out of our health care system and say that when we spend money for health care, it should go to health care not for profiteering.

Health care is not just a human rights issue, it is not just a moral issue, it is an economic issue as well. Small businesses cannot survive if they are forced to pay huge increases in health care premiums each and every year. That is true in the State of Vermont. That is true all over America. More and more small businesses are simply saying: We can't do it; we can't provide health insurance to our workers--which is one of the reasons the number of uninsured is going up.

In addition to the health care crisis, there is an area within health care that I want to focus a lot of attention on, and that is the crisis in dental care. In rural America, in rural Vermont it is becoming very difficult for people to find a dentist. The Surgeon General has reported that tooth decay has become the single most common chronic childhood disease, five times more common than asthma and seven times more common than hay fever.

I will be introducing legislation to address the dental crisis in this country. I do not want to see kids in schools have teeth rotting in their mouths. We can do better than that.

In terms of education, millions of middle-class American families are finding it increasingly difficult to afford the escalating cost of a college education with average tuition and other costs increasing by more than $4,300 at a 4-year public university and over $8,000 at a 4- year private college since 2001.

We all understand that young people are not going to make it into the middle class unless they get a college education. We all understand that our Nation is not going to be economically competitive if our young people do not get the best college education they possibly can. Yet all over our country, middle-class families are saying: How am I going to be able to afford to send my kids to college? And young people are graduating college on average about $20,000 in debt. If they are lower income, they may come out of college $30,000, $40,000 in debt.

If we are serious in what we say about the importance of education, we have to make college education affordable to every family in this country. We don't want to lose the intellectual capital of millions of young people who are sitting there wondering: Can I afford to go to college? Do I want to come out of college deeply in debt?

Last year, 35 million Americans in our country, the richest country in the history of the world, struggled to put food on the table-- struggled to put food on the table. The Agriculture Department recently reported that the number of the poorest, hungriest Americans keeps going up.

What is going on in this great country when more and more of our fellow Americans are going hungry and are struggling to put food on the table? This should not be happening in America. But it is not only hunger, we have an affordable crisis in housing as well. Today millions of working Americans are paying 50 to 60 percent of their limited incomes to put a roof over their heads, and we have families in the United States of America--families--who are sleeping in their cars, children who are sleeping in cars, and we have people, as we all know, who continue to sleep out on the streets of cities and towns all over America.

Last year, there were 1.2 million home foreclosures in this country, an increase of 42 percent since 2005.

When we talk about the needs of the middle class, it is not just affordable housing. The issue of energy is a prominent issue that must be addressed. The cost of energy has risen rapidly. Since President Bush has been in office, oil prices have more than doubled and gasoline prices have gone up by 70 percent since January of 2001, and gas prices are soaring as I speak. In rural States, such as my State of Vermont, such as Minnesota, workers get into their cars, they fill up their gas tanks, and suddenly they are finding that increased cost is coming right out of their paycheck. They are not making much more money. The cost of gas is going up.

In America today, the bottom line is that millions of American workers are working longer hours for lower wages. The median income for working-age families has declined 5 years in a row. Husbands are working long hours, wives are working long hours, kids in high school are working trying to make ends meet, and in many instances people are falling further and further behind.

Today, incredible as it may sound, the personal savings rate in America is below zero, and that has not happened since the Great Depression of the 1930s. In other words, all over this country, working people and people in the middle class are purchasing groceries and other basic necessities with their credit cards and are going, in the process, deeper and deeper in debt.

Over the past 6 years, when we talk about the economy and decent- paying jobs, we should recognize that as a nation, we have lost 3 million manufacturing jobs which often pay people good wages and good benefits. In my own small State of Vermont, we have lost 10,000 manufacturing jobs in the last 6 years, which is 20 percent of the manufacturing jobs in our small State.

The reality is that if somebody loses their manufacturing job and they are lucky enough to find another job, in most cases, that other job will pay substantially lower wages and have worse benefits than the manufacturing job they have lost.

Today, 3 million fewer American workers have pension coverage than when President Bush took office, and half of private sector American workers have no pension coverage whatsoever. I have long been involved in the struggle to make sure that workers have been able to retain the pensions that were promised to them by their employers. But we are seeing more and more workers who have enormous pension anxiety: Is the pension that was promised to me 20 years ago when I began to work in this company going to be there when I need it, when I retire? More and more workers are finding that will not be the case.

One thing we do not often talk about is just how hard the people in our country are working. We kind of forget about that. But the fact is, the people, working people in this country, now work the longest hours of any people in the industrialized world. In my State of Vermont, it is absolutely not uncommon to see people who are working not one job, not two jobs, but on occasion working three jobs trying to cobble together an income, trying to cobble together some health care for their families. People are working 50 hours, 60 hours, 70 hours.

The New York Times reported a while back that the idea of the 2-week paid vacation is becoming something of history. So we have people who are working 51 weeks a year, and there are people working 52 weeks a year. That is what is going on in the middle class and working families of our country.

The reason I raise these issues is that it is terribly important to bring a dose of reality to the floor of the Senate.

When the President tells us the economy is doing great, the truth is that he is right, in one sense. The economy is not doing well for the middle class. It is not doing well for working families. Poverty is increasing. But the President is right when he says the economy is doing well for the wealthiest people in this country. That is true. The rich are getting richer, the middle class is shrinking, and poverty is increasing. That is the reality.

The reality is that the upper 1 percent of the families in America today, that 1 percent has not had it so good since the 1920s. According to Forbes magazine, the collective net worth of the wealthiest 400 Americans increased by $120 billion last year to $1.25 trillion. The 400 wealthiest Americans are worth $1.25 trillion.

Sadly, the United States today--and I know we don't talk about this too much, but it is important to bring it out on the table--the United States

today has, by far, the most unequal distribution of wealth of any major country on Earth and the most unequal distribution of income of any major country on Earth, and that gap between the rich and everybody else is growing wider. Today, the wealthiest 13,000 families in America earn nearly as much income as the bottom 20 million, and the wealthiest 1 percent own more wealth than the bottom 90 percent. Let me repeat that: 13,000 families earn almost as much income as the bottom 20 million, and the richest 1 percent own more wealth than the bottom 90 percent. That trend is very dangerous for our country. It suggests we are moving in the direction of an oligarchy, where a small number of people have incredible wealth and, with that wealth, incredible power, at the same time as the vast majority of our people are struggling just to keep their heads above water. We as a nation can do a lot better than that.

According to a December 2006 report by the Congressional Budget Office, the average after-tax income of the wealthiest 1 percent of households rose from $722,000 in 2003 to $868,000 in 2004. After adjusting for inflation, that is a 1-year increase of nearly $146,000, or 20 percent. This represents the largest increase in 15 years measured both in percentage terms and in real dollars.

Now, what does that mean in English? What it means in English is that the wealthiest people in this country are doing phenomenally well, that is what it means, while a lot of other people are struggling very hard to keep their families afloat.

Why have I given this overview of the state of the economy? I have given this overview because I believe we need a budget that begins to address the realities I have just discussed. We need a budget that says to the middle class and working families and low-income Americans: We know you are hurting; we are on your side. At the same time, we need a budget that says to the very wealthiest people in this country: You know what, you are part of America, too. Your incomes are soaring. If you are a CEO of a large corporation, you are making 400 times what the worker in your company is making. You know what, we want you to be part of America, and you have to make some sacrifices so the people in this country don't go hungry and so working-class kids can get a college education. Join America. Don't be separate with your huge incomes.

The President has just, as you know, introduced his budget. He has told us that in his budget, the United States does not have enough money to meet the health care needs of this country. His response is to inadequately fund the Children's Health Insurance Program and to cut Medicare and Medicaid by $280 billion over the next decade.

The President has told us we don't have enough money to take care of our veterans, and we all have seen recently what has been going on at Walter Reed Hospital. The President has said that despite the fact that we have 22,000 wounded in Iraq and that we have veterans on waiting lists all over this country, we just don't have the money to take care of our veterans.

The President has told us we don't have enough money for childcare; we don't have enough money for dental care; we don't have enough money for special education; we don't have enough money to address the crisis in global warming; we don't have enough money to make sure qualified students have access to a quality education without going deeply into debt.

The President has told us we don't have enough money to fully fund Head Start, that we don't have enough money to expand the earned income tax credit.

That is what the President has told us.

The President, in his budget, has also told us something else. The President has said we don't have enough money for the needs of the middle class and working families, but we do have enough money to provide $70 billion in tax cuts for the wealthiest 1 percent and that we really don't have to take a hard look at the Pentagon and all the waste, the fraud, and the unnecessary weapons systems that are in that institution.

In my view, these upside-down priorities have to be changed, and that is the responsibility of this Senate. The bill I am introducing today will begin to turn our national priorities in a very different direction from that which the President is suggesting.

The National Priorities Act will repeal tax breaks for the wealthiest 1 percent in 2008 and eliminate $60 billion in waste, fraud, and abuse at the Pentagon and use that money to do the following. In other words, what we are doing is we are going to ask our wealthy friends who have received huge tax breaks to start paying a little bit more in taxes. We are going to ask the Pentagon to take a hard look at their huge budget and eliminate waste, fraud, and abuse. We are going to be raising about $130 billion to do that.

Now, let me tell you what we can do with that $130 billion. We can provide health care services for over 4 million Americans by increasing investments in federally qualified health centers and by raising funds substantially for the National Health Service Corps. In my State and all over America, federally qualified health centers are providing cost-effective quality health care to millions of people. By increasing funding and expanding these programs, putting more money into these programs, we can provide high-quality health care, dental care, mental health counseling, and low-cost prescription drugs, and we can do it in a cost-effective way. We can make a serious effort to provide primary health care to every man, woman, and child in this country. That is what we can do.

We can expand access to dental care. By providing $140 million more for workforce, capital, and equipment needed, we can address in a significant way the dental care crisis in this country.

We can provide health insurance to over 8 million children not covered by expanding the CHIP program, Children's Health Insurance Program, by over $15 billion. In my State of Vermont, almost all of our kids have health insurance. The rest of our country should move in that direction. It is not acceptable that children in America do not have health insurance. We can do that through this legislation.

We can address the crisis in terms of inadequate funding in the VA and make sure that all of our veterans get the health care they were promised, the health care they deserve. That is what this budget does.

We also, in this budget, ensure that working families with children have access to affordable childcare by increasing investments in the childcare development block grant by over $2 billion. It is a national outrage that all over this country working families cannot find good, quality affordable childcare. Single moms are going off to work, and they are worried. They worry deeply about the quality of care their children are receiving. It is a major crisis. This legislation provides the funds to address that crisis.

Head Start has been a successful program. This legislation provides the funding to allow every qualified child in America to receive early education, nutrition, and health services by fully funding the Head Start Program.

In my State of Vermont and, again, all over this country, higher and higher property taxes are causing very serious problems for middle- class families, splitting communities apart. This legislation will lower property taxes by keeping the Federal commitment to provide 40 percent of the cost of special education for about 7 million children with disabilities. Mainstreaming kids with disabilities is a good idea. It is the right thing to do. The Federal Government has not kept the promises it has made to school districts all over this country. We have to increase funding substantially for special education, not, as the President wants, cut funding for special education. This bill does that.

This bill provides an additional 330,000 students with Pell grants and increases its purchasing power for over 5.4 million other students by doubling the maximum Pell grant. In other words, we want our young people to be able to go to college. We do not want them to come out in debt. This legislation does that.

This legislation instills low-income high school students with the skills and opportunity they need to go to college by increasing the TRIO and GEAR UP education programs by 50 percent.

This legislation creates more than 200,000 jobs by increasing investments in renewable energy, energy-efficient appliances, public transportation, and

high-speed rail. By making our environment cleaner, by attacking and reversing global warming, we can create hundreds of thousands of jobs. That is what this legislation does.

This legislation addresses the crisis in affordable housing by creating 180,000 jobs in constructing, preserving, and rehabilitating affordable housing rental units.

This legislation reduces taxes by $400 to $1,134 per year for 10 million American workers and families with children by expanding the earned-income tax credit.

This legislation reduces the deficit by $30 billion.

To be very honest, I do not expect this legislation to be passed tomorrow, probably not even the next day. What this legislation is doing, though, is providing the Congress with a blueprint, and it is a very simple blueprint. It says: Which side are you on? It says that when those people who come before us and say: Yes, we understand there is a health care crisis; we just can't afford to do anything about it; we understand there is a childcare crisis, there is a housing crisis, there is a crisis in terms of the affordability of higher education, but we just can't do anything about it. We just don't have the money. What this legislation does is say: Yes, we do have the money. We do have the money if we rescind the tax breaks that go to millionaires and billionaires, if we ask the Pentagon to preserve, to make sure we continue to have all the resources we need for our soldiers and the strongest military in the world but take a hard look at waste, fraud, abuse, and weapons systems we don't need. If you do those two things, we can come up with $130 billion. With that $130 billion, we can address the major problems facing our country, and we can lower our deficit.

I hope that my fellow colleagues will give serious thought to this legislation and that we can move it forward.

Mr. President, I rise today to again raise the issue of Darfur. I may not match the tenacity of former Senator William Proxmire. You see, he came to the Senate floor every day--every day-- for 19 years urging the Senate to ratify the 1948 Convention on Genocide. Finally, Senator

Proxmire prevailed. Finally, the United States became a signatory to this historic international agreement. We were one of the last, but we were on board.

The reason I come to the Chamber today to speak is because having noted the presence of the need for an international agreement on genocide, having acknowledged that a genocide is taking place in Darfur in the Sudan, a simple honest answer is we have done little or nothing about it.

I have tried each week to come to the Chamber to again highlight the situation and to propose what the United States can do. It is worth putting this matter in context. Several times in the history of this world, we have witnessed genocides of horrific proportion. One of the most recently noted tragedies, of course, involved 6 million Jews and others who were killed in the Holocaust in World War II.

When I was a young college student in Washington at Georgetown University, my first year I had an amazing professor whose name was Jan Karski. Karski was born in Poland. He was a member of the Polish underground resisting the Nazis in World War II. He used to come to our classes ramrod straight with military bearing, always dressed impeccably in starched white shirt and tie and would speak to us about government. He would intersperse his lectures with stories of his life.

I was fascinated with Dr. Karski. He told the story as a young man coming to Washington, DC, in the midst of World War II. He came here because he knew what was happening. He knew about the Holocaust, he knew about the concentration camps, and he knew something had to be done. So he came to war-weary Washington and tried to find someone receptive to his message.

He went from office to office, finally securing a meeting with President Roosevelt but never quite convincing the highest level of our Government in those days, trying to tell them, yes, there are concentration camps; yes, innocent people were being killed; yes, there was a Holocaust and something needs to be done.

Dr. Karski told us in these lectures that he left Washington empty- handed and despondent. Unfortunately, he never convinced America to act, and, unfortunately, the Holocaust continued.

I used to puzzle over this and imagine: How could it be? How could the people of a great Nation such as America stand back and not do anything if people were alerting them to the reality of genocide, the killing of innocent people? Sadly, I have come to understand it now because 4 years ago we declared a genocide was taking place in Darfur in Sudan. It was an amazing declaration, it was a courageous declaration by this Bush administration. The President, along with Secretary of State Colin Powell, and now Secretary of State Condoleezza Rice, have been unsparing in their criticism of the Sudanese Government, and they have used that word, ``genocide.'' But the sad reality is, having made this declaration, we have done nothing-- nothing.

The President said early on he would not allow a genocide to occur on his watch. I have reminded him--and I am sure it is painful to hear-- that his watch is coming to an end and the genocide continues and America continues to do nothing.

Today I am joined by my colleagues, Senator John Cornyn of Texas, Senator Specter of Pennsylvania, and Senator Lieberman of Connecticut in introducing the Sudan Divestment Authorization Act of 2007. This bill is designed to support the actions of seven States that have already passed divestment laws and the dozens more that are considering legislation.

The first of these States, I am proud to say, is the home State of this Senator and the Presiding Officer, the State of Illinois. Our friend and your former colleague, Mr. President, Jackie Collins, has led this fight. She is tenacious, and she is great to have on your team.

Over 50 universities and municipalities have also chosen to divest their portfolios of companies that directly or indirectly support the genocidal Sudanese Government. Countless individual Americans have made this same choice. These States, universities, and individuals have said they do not want their pensions or other investments to support a government that is carrying out mass atrocities against its own people.

In this morning's Washington Post, there is a graphic story written by Travis Fox of a visit to a refugee camp at Chad. I know the Presiding Officer has visited the refugee camps in Chad and has seen firsthand what is happening there: 230,000--230,000--Darfur refugees have streamed across the border and live in 12 United Nations- administered camps.

This heartbreaking story shows an emaciated young boy being fed by his mother. It goes on to say that so many of these children are dying of malnutrition, even in the refugee camps. They are trying to get this poor little boy to eat some food, which he thinks is horrible and spits out. He would rather go hungry than eat what he is being given.

These children are dying in these refugee camps and, sadly, more people are streaming to these camps because of the ongoing genocide in Darfur.

As many as 450,000 people, according to Human Rights Watch, have died from disease and violence in this genocide; 2.5 million people have been displaced since the fighting began. The United Nations reports that in the second half of the year 2006, 12 humanitarian workers were killed and 38 compounds were attacked.

This morning's paper also includes a report that members of the African Union and the peacekeepers who are valiantly trying to bring peace to this area are now being killed as well. Mr. President, 7,000 members of the African Union are there; 7,000 troops are policing an area as large as the State of Texas. Imagine, if you will, trying to contain the violence of a militia who is hellbent on killing innocent people, raping and pillaging with 7,000 soldiers. Even the best soldiers couldn't rise to that challenge. That is why America must rise to this challenge.

As I mentioned, divestment is one tool. It is not what I would prefer, but it is a move in the right direction. Our bill recognizes that divestment should be undertaken only in rare circumstances, but declarations of genocide by both the President and the Congress provide all the justification needed for these State and local efforts which our bill will support.

This bipartisan bill affirms it is the sense of Congress that States and other entities should be permitted to provide for the divestment of assets as an expression of opposition to the genocide and policies of the Khartoum Government.

It also expresses the sense of Congress that such State divestment laws are consistent with our Constitution and that, for example, they do not run afoul of the foreign commerce clause of the Federal foreign affairs power. The bill recognizes that nongovernmental organizations working in Sudan on humanitarian efforts or companies that are operating under Federal permit or to promote health or religious activities, for example, should not be classified as supporting the Sudanese Government.

We do not want to hinder the fine work that is being done by nongovernmental organizations, humanitarian organizations. What we want to do is put pressure on this Government in Khartoum to change this deadly policy which they have followed now for years.

This is a targeted bill. It is aimed at supporting State and local efforts in America to do the right thing.

Along with my colleague, Senator Brownback, last fall I sent a letter to every Governor in the country whose State had not divested urging them to do so. I sent a similar letter to every university president in my State making the same request. I am proud to say that Northwestern University in Evanston, IL, and its president, Henry Bienen, had already quietly taken steps to divest of major companies operating in Sudan. President Bienen has been to Sudan. He has had a life experience there. He understands this on a personal basis. I met with him. I applaud him for his leadership.

Sadly, some universities have said no. Incredibly, they have said no. One university president of a major university in Illinois called me to explain why they could not bring themselves to divest of their investments in Sudan where this genocide is taking place. He gave a long, tortured explanation

about university policy. I asked him one question: Do you believe there is a genocide taking place in Darfur? There was a long silence. Then he said: Well, I guess I don't know. I said: Until you can answer that question, you shouldn't make this decision. Others have looked at the facts, and they have decided that genocide is taking place. I ask you: If you come to that same conclusion that a genocide is taking place, my next question is very simple and straightforward: What are you going to do about it?

I believe we have a moral responsibility. It goes beyond any political debate and any partisanship. I am glad the cosponsors of this legislation, which I am now putting before the Senate, are bipartisan in nature.

When I sent out these letters, incidentally, I had a wake-up call personally. A reporter called and said: So you are all for divestment, are you, Senator Durbin? Oh, yes, I am committed to it. Guess what, Senator. We went through the handful of mutual funds you and your wife own and one has investments in Sudan. I was stunned. I said: I will sell immediately, which I did. It wasn't very painful to my portfolio, but I felt a little better when it was done.

It doesn't take much, but it is a reminder that change begins at home. Eleanor Roosevelt, who helped create and serve as the first chair of the United Nations Human Rights Commission once posed that famous question:

Where, after all, do universal human rights begin?

She answered:

Human rights begin in small places, close to home--so close

and so small that they cannot be seen on any maps of the

world. Yet they are the world of the individual person; the

neighborhood he lives in; the school or college he attends;

the factory, farm, or office where he works. Such are the

places where every man, woman, and child seeks equal justice,

equal opportunity, equal dignity without discrimination.

Unless these rights have meaning there, they have little

meaning anywhere. Without concerted citizen action to uphold

them close to home, we shall look in vain for progress in the

larger world.

That statement embodies the spirit that drives the divestment movement.

The Darfur movement in this country was born on college campuses with idealistic youth, but it has now spread across the Nation. The effort to divest is a struggle that students are continuing to have with the administrators in my home State and across the country.

These students are carrying on a legacy, a legacy of those students who came before them, who led the movement to divest from South Africa in order to starve apartheid, the rank discrimination and bigotry of our time in the great country of South Africa.

South Africa changed because of the courage and capabilities of people such as Nelson Mandela, who led one of the most remarkable revolutions of my time. Change will come in Sudan when Sudanese leaders are convinced or compelled to change. But the divestment movement helped to drive the process in South Africa, and it can help drive the process in Sudan today.

This bill is only a start, but it isn't the end of the discussion. Divestment is a useful tool but just that--only one tool among many we should be considering.

Yesterday, the Special Envoy to Sudan, Andrew Natsios, met with President Bashir in Khartoum. The press reported that it was a 20- minute meeting. I don't know how productive it was. It wasn't the first time they have met and, sadly, all the previous times have not led to any decision by the Khartoum Government to bring the militia under control, which is wreaking havoc and causing this genocide which is killing thousands and displacing hundreds of thousands of people.

Special Envoy Natsios has talked about what now has publicly been disclosed and described as Plan B. The biggest export of Sudan, no surprise, is oil. How is the oil exported? Through different companies--including companies owned by the Chinese, India, and Malaysia. Special Envoy Natsios told us that if the Sudanese Government did not respond by allowing U.N. peacekeepers to come in and protect these innocent people living in their villages by January 1 of this year, he would encourage the administration to move on Plan B, which calls for economic sanctions against the oil transactions coming out of Sudan.

January 1 has come and gone. According to the press reports, the President has ordered the Treasury Department to prepare a menu of options that would directly affect the Khartoum Government. I believe the President should use this list of options to enact additional meaningful sanctions immediately.

I have spoken to the President twice personally. I have spoken to Secretary of State Condoleezza Rice. I have tried to raise my voice on every occasion to urge them to do something and do it now. People are dying, people are starving to death. This genocide continues on our watch, America.

Today's sanctions program is based on Executive orders signed by President Clinton in 1997 and President Bush in 2006 and on the Darfur Peace and Accountability Act and a host of other laws that provide additional mechanisms. The menu of options is there.

Sudan produces 500,000 barrels of oil a year, 40 percent of which is exported. We can find a way to stop the revenue stream leaving Sudan and the money coming back into that country. I hope that is on the menu being presented to the Government.

New laws are not required for the President to enact these sanctions. He doesn't have to wait on Congress or a long debate. He has the power. It might, however, speed action along if Congress passed legislation to encourage him.

This week, the State Department released its annual Country Reports on Human Rights Practices. Imagine that, the United States each year boldly announces a report card on the rest of the world and how well they are doing in the area of human rights. Let me read a portion of that report on Sudan, a report from our own State Department, and I quote:

While all sides in Darfur violated international human

rights and humanitarian law, the government and the Janjaweed

militia continue to bear responsibility for genocide that

occurred in Darfur. During the year the government, Arab

militia forces, and Darfur rebel groups reportedly killed

several thousand civilians.

By year's end, there were more than 2 million internally

displaced persons in Darfur, and another 234,000 that fled

into Chad, a neighboring country, where the U.N. High

Commissioner for Refugees coordinated a massive refugees

relief effort. According to the United Nations, more than

200,000 persons have died since 2003 as a result of the

violence and forced displacement. The government continues to

support the largely Arab nomad Janjaweed militia, which

terrorized and killed civilians, raped women, and burned and

pillaged the region.

During the year, the government resumed aerial bombardment

of civilian targets, including homes, schools, and markets.

There were no reports that the government of Sudan prosecuted

or otherwise penalized attacking militias or made efforts to

protect civilian victims from attacks. Government forces

provided logistic and transportation support, weapons, and

ammunition to progovernment militias throughout the country.

That is the report of our Government about ongoing genocide to which we have not responded.

The report goes on to detail attacks by helicopter gunships and bombers as well as ground assaults by both Janjaweed militia and uniformed soldiers. It also describes widespread and systemic sexual violence against women and children, often carried out by men in uniform. Some women who reported these rapes to the Sudanese police were then arrested for reporting them. During this year of violence, the Sudanese Government conducted only one single successful prosecution of a rapist, a man who was convicted of assaulting an 11- year-old girl. It is unclear how many violations have been prosecuted.

The report from the State Department also describes how the Sudanese Government systematically restricts humanitarian access to Darfur. The Government denies and delays visas and harasses and arrests humanitarian workers. This is all part of an effort to cut off the food and medicine humanitarian groups are bringing into Darfur.

The mere presence of international aid workers helps safeguard people in the camps as well. That is one more reason Khartoum tries to keep them out. Rebel groups add to the violence by attacking humanitarian workers as well, stealing their vehicles and supplies. According to the report, both the rebel groups and the government-supported militias use child soldiers to help fight their battles.

The State Department's Human Rights Report is just the latest testament to the atrocities that continue to unfold in Darfur.

Mr. President, it is time the world brought these crimes against humanity to a halt. We do that by taking steps that we can in the United States--starting with supporting divestment and imposing tougher sanctions, and we should go to the United Nations and demand a vote. We have been told over and over again that if we ask the United Nations to get involved, it is likely that one country on the Security Council-- and many point to China--will veto that request. Well, so be it. Let us have this vote, let us be on the record, let us say that in the midst of genocide, we forced the issue to a vote and the United States voted on the side of compassion and humanity. Let those countries threatening a veto explain their position.

I thank my colleagues, Senator Cornyn, Senator Specter, and Senator Lieberman for joining me in this step we take today to support State and local divestment. Many people wonder what one or two Senators can accomplish. We are fortunate in the State of Illinois to have a legacy of some great people who have served in the Senate, from both political parties. The Presiding Officer and I were fortunate to count as a friend a former U.S. Senator, the late Paul Simon.

In 1994, when the Rwanda genocide was unfolding, Paul Simon saw it, and he went to Jim Jeffords, a Republican Senator from Vermont, and he said: We have to do something; innocent people are being hacked to death in Rwanda. He and Senator Jeffords then called Romeo Dallaire, the U.N. Peacekeeping General in Rwanda at the time in 1994, and they asked: What will it take to stop the killing? He said: It will take 5,000 equipped soldiers, and I can stop this massacre--only 5,000. So Senator Simon and Senator Jeffords called down to the Clinton White House and said: We need to talk to somebody about getting 5,000 soldiers in to stop a massacre. Their call went unheeded. There was no response. President Clinton now apologizes today, saying it was one of the worst foreign policy decisions of his administration. I respect his honesty and candor, but the fact is, no soldiers were sent.

Recently, a little over a year ago, I visited Rwanda for the first time. I went to Hotel Rwanda, made famous by the movie, Hotel des Mille Collines, where a brave little hotel manager played the role of Oscar Schindler in his time. He started harboring people who otherwise would have been killed in the streets of Kigali, Rwanda. It was harrowing to walk through the hotel and imagine what life was like; to know that 11 years before, people huddled, afraid they were about to be pulled out and killed in the streets. You would look down at this beautiful, crystal-clear swimming pool and realize it was the water in that pool that sustained them during that period.

I went down the hill from that hotel to a red brick Catholic church, known as Ste. Famille. I looked inside during the early morning, and I went back to the hotel. Someone in the hotel said: That is a famous church. A thousand people sought asylum as refugees in that church but, unfortunately, the doors were opened and a thousand people were hacked to death in that church.

That is the reality of genocide. It is the reality of Rwanda, and it is the reality of Darfur. It is a reality we cannot ignore. We have the power. The question is, Do we have the will?

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

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

Mr. President, are we in morning business?

I ask unanimous consent to speak as in morning business.

Mr. President, today, as I did a couple days last week, I continue with my discussion on the issues the Senate will face as the Democratic leadership draws up its budget resolution, and that is going to be 2 days next week in the Budget Committee and then I think the week after next, depending on what the

Democratic leader decides to do, we generally will have a whole week of debate on the budget and adoption of the budget.

We face an important milestone because the Democratic leadership controls the Senate for the first time since the 2002 election. Over the past 4 years, there has been a lot of passionate debate over the fiscal policies the Republican leadership proposed and implemented over the last 4 years. In November, the voters sent a Democratic majority to Congress. The budget debate we are about to enter provides Democrats with their opportunity to chart a fiscal policy path for the Nation.

Before the budget arrives, I have taken to the floor to recap and evaluate some of the consistent themes we have heard from the Democratic leadership over the past 4 years. Since the Finance Committee has jurisdiction over nearly all of the revenue side of the budget, I focused on the issues on that side of the ledger, the revenue side.

Since the position of the Democratic leadership has been to let the bipartisan tax relief plans of 2001 and 2003 expire, I talked about the effects of that automatic tax increase--yes, automatic tax increase-- that happens without even a vote of the Congress if we don't continue this tax policy that was adopted in 2001 and 2003 beyond the year of 2010.

It is a very important consideration. For the last 4 years, Republican budgets on Capitol Hill have made it clear that our priority was to ensure that virtually every American taxpayer would not see that automatic tax increase come in their earnings of 2011, and that still is our policy. That is a policy reflected in the budget the President of the United States has sent to the Congress. So the year 2011 is the year the bipartisan tax relief sunsets.

I emphasize that 2001 was the year of bipartisan tax relief. I had the good fortune of working that year, 2001, with Senator Max Baucus helping me get that bipartisan tax relief passed. He is now chairman of the committee, being that the Democrats are in the majority. I have the good fortune of maintaining a close working relationship with him.

The President's budget, as I already said, maintains the assurance that these tax policies of the last 7 years will continue in place beyond the year 2010. During the 4-year period 2003 to 2006, the Democratic leadership was harshly critical of this policy which was passed in 2001 and 2003; that is, the Democratic leadership opposed the fiscal policies of preventing a tax increase on virtually every American taxpayer automatically because Congress wouldn't even have to vote on it.

My first speech defined the tax increases built into that fiscal policy. My second speech highlighted some of the macroeconomic risks of that widespread automatic tax increase. Last week, I remarked to the Senate and discussed with the Senate potential omissions in the Democratic leadership's budget; that is, the discussion was about fiscal policy that was present in prior budgets. If the Democratic leadership's past criticisms of those budgets were carried out, the fiscal policy of continuing tax relief would end. This week, I am going to focus on the track record of the Democratic leadership and discuss potential problems from proposals that might be contained in that budget. You could say, from our standpoint, I am examining errors of commission this week, whereas last week I examined errors of omission.

Today, I wish to refer to the use of revenue-raising offsets in the budget context. As any budgeteer can tell you, the budget resolution is not a law. It doesn't amend the Internal Revenue Code or Medicare law or appropriations. The budget resolution is like a blueprint for a building. The actual construction of tax and spending policies will occur later on this year.

The budget resolution is, however, critical to actual tax, actual spending, and actual deficit decisions the Congress will undertake. The matter of offsets is critical in this respect: If additional spending is proposed in the resolution without real offsets, then deficits are more likely. Likewise, if popular tax relief is proposed but not offset with real proposals, then deficits could appear and be larger--though, on this last point, the track record of the last 4 years shows tax relief grew the economy and record levels of Federal revenue came into the Treasury as a direct result.

My basic point is that if a proposed offset is not realistic and the proponents succeed, budget discipline could be undermined. In other words, phony offsets, if incorporated into the budget, can lead to deficits.

Today, I am just going to follow the numbers. Just follow the numbers. I am not going to make any judgments or make any assumptions about the revenue-raising proposals. I am going to analyze these proposals strictly from a fiscal standpoint.

I analyze two categories of offsets from the standpoint of whether the budget arithmetic adds up, and I am going to examine last year's record of the Democratic leadership on offsets but look at it as if they were in control at the time. It is not a pretty picture.

I am going to take a look at proposed offsets from a series of amendments, real amendments that were debated here on the floor of the Senate during last year's budget resolution debate. During that debate, virtually all Democratic members had a common theme in their purported offsets for their amendments to this resolution. That purported theme was that they would close tax loopholes to pay for whatever popular spending program they wanted to propose. Closing corporate tax loopholes was the common refrain to pay for spending.

I will list the amendments and the popular spending proposals:

Senator Kennedy, Vocational Education and Pell Grants;

Senator Akaka, Veterans Medical Services;

Senator Murray, Community Block Grants;

Senator Stabenow, Emergency Responders;

Senator Menendez, Port Security;

Senator Byrd, Amtrak;

Senator Reed of Rhode Island, LIHEAP;

Senator Sarbanes, Corps of Engineers and other Federal

services;

Senator Dorgan, Native American programs;

Senator Stabenow, Veterans' Health Care;

Senator Akaka, Title I Education Grants; and

Senator Lincoln, Agriculture.

These are all here, and more than what I gave are here.

Mr. President, at this point I ask unanimous consent that a list of these amendments by vote and by amendment number, so that they are there for people who aren't listening to what I am saying to consider, be printed in the Record.

Mr. President, as you can see, the proposed spending is popular and has a nice political edge. Democrats could record themselves as voting for the amendment, and they could criticize Republicans for voting against those amendments. From a political calculation perspective, these were profitable efforts on the part of the Democratic leadership. The fiscal consequences, however, were another story.

If Democrats had been in the majority, as they are now, the fiscal effect of these amendments would have been a very big problem, and here is why. One-time spending increases, even if for 1 year, are built into the CBO baseline, and they are built in forever. This is explicitly the case for increases in discretionary spending. It is also implicitly the case with entitlement spending. If anyone disputes that point, I would ask them to show me the last time we reversed new entitlement spending. It just never happens around here is the best thing to say.

Let's take a look at the Kennedy amendment on vocational education and Pell grants to which I have referred. The amendment was purported

to be $6.3 billion, but that was for 1 fiscal year. That $6.3 billion, if adopted, would probably be extended in later years. It is in the baseline. So Senator Kennedy found his offset by closing $6.3 billion in what he referred to as corporate tax loopholes. I am not going to find fault with closing those tax loopholes. I have been involved in things like that for a long period of time, and successfully so. The fiscal and political effect, though, of Senator Kennedy's amendment was to identify specific popular spending and offset it with a nondefined tax increase. From a realistic standpoint, Senator Kennedy's amendment identified less than 10 percent of the gross spending burden it would have placed on future budgets to the extent the unspecified revenue offset was duplicative or not realistic. The real effect was that the $6.3 billion additional spending would have been added to the budget for that fiscal year.

All 12 of these listed amendments used the same undefined offset.

Several Members referred to revenue raisers in a Democratic substitute amendment to the 2005 Tax Relief Reconciliation bill, and they kept trying to spend the same money over and over again. Let's take a look at the list of revenue raisers in the substitute amendment.

Mr. President, I ask unanimous consent that a Joint Committee on Taxation estimate of the revenue offsets to the 2005 substitute be printed in the Record.

That substitute amendment is an overinclusive inventory of offsets. I say ``overinclusive'' because it included the universe of revenue raisers that the Democratic caucus supported. Republicans supported many, but not all, of these offsets.

Joint Tax scored these revenue raisers during last year's budget debate. According to the Joint Tax experts, that universe of Senate offsets raised $53.6 billion over 5 years. That is this chart right here: $53.6 billion. At that time, I noted that the budget resolution assumed several billion in revenue raisers to cover part of the reconciliation bill. Indeed, in the reconciliation conference, we used eight of these revenue raisers. They accounted for about $9 billion-- and I should say only $9 billion over 5 years. I had hoped to use additional raisers accounting for about $7.5 billion over 5 years, but the House rejected that, and we then found some offsets someplace else. So we will take a look at them.

If you account for the revenue offsets left over, you can subtract out another 10 revenue-raising proposals that are in the Senate's small business minimum wage bill. Those revenue raisers--and those are things which had just been before the Senate--those revenue raisers included $8.7 billion over 5 years. That is this figure here.

Of the raisers in the 2005 substitute amendment, about $18 billion of those were enacted or are in play in discussions between the House and the Senate. So if we review the Senate Democratic inventory of identified as well as scored revenue raisers and net out current law and Senate-passed tax legislation, we find 18 revenue proposals available. These are proposals the Democratic caucus has advocated that are left over. They raise approximately $36 billion over 5 years.

Everyone should know there are revenue raisers in that total I just recited that the administration doesn't support. You don't have to let that detract you from it, but those would be issues which would be subject to, I suppose, a Presidential veto.

Let's forget that for the moment. There are many in this total that the House and Senate Republicans don't support. As we have found in the small business tax relief discussions, House Democrats aren't keen on some of these proposals either. Nevertheless, to bend over backward and to be fair to the Senate Democratic leadership, I am going to tally the proposals they have supported as a caucus.

Let me repeat the total corporate loophole closers and other offsets Democrats have defined. It is $36 billion over 5 years. Put another way, I would like to say it is only $36 billion over 5 years, but I want you to see what they want to use that $36 billion for--presumably to cover a lot of other expenditures they can't do because the numbers don't allow it. That total of $36 billion, then, provides a ceiling of offsets to compare to the spending amendments.

Let's go back and match the spending amendments with the universe of Democratic revenue raisers. The revenue raised is a far cry from the cumulative demand of the amendments that were filed. The amendments that have been filed that propose to use those tax loophole closers as offsets total $105 billion in new spending. So the Senate Democrats propose $36 billion in revenue raisers that were supposed to offset $105 billion in new spending, but it doesn't add up. That means the spending exceeded revenue raisers by $69 billion.

Mr. President, I ask unanimous consent that a list of the Democratic amendments to the fiscal year 2007 budget resolution be printed in the Record.

Mr. President, this list was prepared by analysts and was based upon filed amendments printed in the Congressional Record. I think it is interesting that only one filed amendment on this list would decrease taxes over 5 years, and only one amendment would result in decreased spending over 5 years. The amendment decreasing spending was filed by New York's junior Senator and would reduce spending by $1 million. That is one-thousandth of a billion dollars.

Put another way, if you subtract the $36 billion from the $105 billion in new spending proposed, it means the other side's amendments were short $69 billion--short $69 billion. Right here. This figure. This money proposed for offsets, add up all of the amendments put before the Senate, and you come out short. Revenue neutrality? No. Budget neutrality? No.

Now, that $69 billion needs to come from someplace. If the other side had prevailed, it would have wiped out the tax relief of last year's budget, including what we do to keep more Americans from paying that horrible tax, the alternative minimum tax. You can't have it both ways. Either the other side, if they had prevailed, would have added $69 billion in deficit spending or they would have gutted the tax relief they claim to support.

Budgets are about choices. In this case the choices are clear. If the Democratic leadership would have controlled the Senate last year, we would have no tax relief in that budget or we would have added $69 billion in deficit spending. Neither choice would be the right choice from the standpoint of the American people.

Defining offsets is very important. It is very important because we need real numbers if we are going to have intellectually honest budgeting. My analysis of corporate loophole closers and other revenue- raising proposals shows the Democratic caucus has supported at most $36 billion in specific revenue-raising proposals. By the way, that is about the revenue loss for last year's AMT patch. So the alternative minimum tax would have hit another 7 or 8 million Americans.

Using unspecified revenue-raising proposals is not realistic. If Democrats intend to live by pay-go, short for ``pay as you go,'' the Finance Committee will need those revenue-raising proposals to handle a portion--and just a portion--of the demand of the tax system.

There are two other categories of revenue-raising proposals identified by the Democratic leadership. One is repealing tax relief for higher income taxpayers. The other is reducing or closing the tax gap. I will talk about the tax gap in a later speech.

When folks in the Democratic leadership talk about raising taxes on higher income taxpayers, it sounds as if all fiscal problems can be solved as long as you want to look down the road. Liberal think tanks and sympathetic voices in the east coast media tend to echo that sentiment. As a matter of intellectual honesty in budget debates, we ought to have an idea of how much revenue is there. Since the most popular proposal is to repeal the bipartisan tax relief for higher income taxpayers, I have asked the Joint Tax Committee to provide updated estimates of those proposals--such as the corporate loophole closer. I do not expect the revenue would cover the spending demands. I was pleased to see the Budget Committee chairman make a public comment last week that seemed to address these proposals. According to the March 1, 2007 edition of Congress Daily AM, the chairman indicated he intended to put forward a budget with ``no tax rate increases.'' I will have to see the budget resolution and hear the chairman's explanation, but I read that comment to mean the Democratic leadership will not, at a minimum, propose to roll back current law tax rates.

This would be especially interesting in light of the so-called millionaire's tax amendment put forward in the past by members of the chairman's party. The millionaire's tax amendment filed for the fiscal year 2007 budget would have increased taxes by about $105 billion. Of course, those same amendments spent that money, so deficit reduction would not have been received.

Today I have examined the question of revenue-raising offsets. The inventory of available, defined, specific revenue-raising offsets is relatively small. Last year, Democratic amendments overspent the available revenue offsets by $69 billion. The Democratic leadership has indicated a desire to apply pay-go, pay as you go, to the current law tax relief. If pay-go is to be observed with respect to the alternative minimum tax and other popular expiring tax relief provisions, the Democratic leadership will need those revenue raisers and even more to offset the revenue lost from these time-sensitive provisions.

When we start to examine and debate the budget resolution, we will need to use intellectually honest numbers. Using the undefined corporate loophole closer is fiscally dangerous. It enables even more spending at a time when Government is at record levels as far as real dollars. Runaway spending is at the root of our current or future fiscal problems. Using phony revenue-raising offsets sets up two negative fiscal outcomes, an undefined tax increase and/or deficit spending.

All Members, whether Republican or Democrat, ought to agree to be transparent with all these numbers and all these figures in the amendments that are posed in the upcoming budget debate.

I yield the floor.