A resolution expressing the sense of the Senate that no action should be taken to undermine the safety of the Armed Forces of the United States or impact their ability to complete their assigned or future missions.

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, 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.

Mr. President, I am sorry the Republican leader was unable to agree to the proposal put forward by Senator Reid on behalf of the Democratic majority of the Senate. It seems to me my friends on the other side of the aisle cannot accept yes for an answer. They have wanted for a long time to have a vote on the Gregg amendment. Senator Reid said, fine, we will vote on the Gregg amendment.

Yes, I am happy to.

Yes. I am glad the leader explained that. The fact is, with the approval of the other side, we could have taken up the Iraq issue on Monday, and we could all have been heard all of Monday, Tuesday, and then voted for the resolution that represented our ideas, our thoughts, on how to proceed in Iraq.

The fact is, that proposal was objected to by the Republicans. What was that proposal? It was everything they wanted last week. They wanted a vote on the Gregg amendment. We said fine, you can do it. They wanted a vote on the Warner amendment. Senator Reid said you got it. They wanted a vote in favor of the surge with the McCain amendment. Senator Reid had that in his proposal. We Democrats are asking for a vote on our proposal, which I will talk about in a minute, and another proposal that would be similar to Senator Gregg's.

Republicans would have gotten three of their amendments and proposals, and we would have gotten, on our side, two. But the Republicans cannot say yes. What this means is Senator Reid is right. We are not going to debate Iraq next week--at least not Monday. We will debate it in the context of the supplemental or, if we can reach agreement, in the context of a unanimous consent resolution.

I am very proud to be a cosponsor of the Reid joint resolution. I want to talk about what it does. It says we support the troops. It says the circumstances cited in the 2002 use of force authorization have changed substantially. We all know that. It is not the same. We went in to find weapons of mass destruction. Then they changed the mission to capture Saddam Hussein. Then they changed the mission to make it safe for an election. Iraq has had three. Then they changed the mission to train the Iraqi troops, and they have now 300,000.

But I have to say that to see our troops in the middle of a civil war is not what we should be supporting. The Iraq Study Group said that, and this resolution says U.S. troops should not be policing a civil war. The American people agree with that. Further, we say U.S. policy in Iraq must change to emphasize the need for a political solution.

We all know there will never, ever be a solution, no matter how many troops are sent to Iraq, and whether they stay there a week, a month, a year, or 10 years, there will never be a solution

until that solution is a political one, where the countries in the region come forward, where the various parties in Iraq who are warring come to the table and hammer out an agreement.

Now, we know what happened when the President chose to go into Iraq. He turned his back. He turned his back on the war I voted for, the war against Osama bin Laden. He turned his back on the people of Afghanistan. Yes, we are there. But if we had done with half of the number of troops we had in Iraq now, and if we had used those in Afghanistan, and if we had spent maybe a third of the funding we spent in Iraq in Afghanistan, we would have a different scene in Afghanistan. We would be in a better place in Afghanistan.

So, clearly, what happened with the Iraq war was it took our focus off the war on terror. We call for the President to properly transition the mission of U.S. forces and begin a phased redeployment no later than 120 days following enactment. So we will start bringing the troops home. We Democrats want to start bringing the troops home and, if they don't come home, redeploy them out of Iraq to other places. It is our goal to redeploy all combat forces from Iraq by March 31, 2008.

I have to say, what I have heard from my colleagues on the other side of the aisle, whenever we talk about a timeline, is it is terrible to set a timeline. I rhetorically ask, why? Don't we need to send a message to the Iraqis that we will not hold their hands forever, that they have to take care of their own country, that we cannot keep sending the treasure of our country in the form of our troops forever? We have lost too many. Too many are wounded. I met with paralyzed veterans today. I can tell you that from the look on their faces, they are desperate for help they are not getting. Why? Because we have so many wounded, this administration wasn't ready for the numbers. They never say that. They weren't ready. They weren't ready to support our troops.

Now, we need a comprehensive strategy to ensure stability in Iraq. As I said, we need a mission our troops can accomplish. In our resolution, we call for three limited purposes: force protection, training and equipping Iraqi troops, and targeted counterterror operations. So we say, for the troops remaining, they will not be in the middle of a civil war, but they will protect our forces who are there, they will train and equip Iraqis and continue counterterror operations.

We want to change course. We want to transition the mission and we want to bring civility to Iraq. Now, that is Senator Reid's proposal. I think the vast majority of Democrats are supporting it.

More than 3,175 U.S. military men and women have been killed in the war in Iraq. More than 23,900 have been wounded. So it is not hard to understand why a majority of the American people now believe the war in Iraq was not worth fighting. The American people understand our military and their families are paying a very severe price for this never-ending war. They understand this administration's foreign policy decisions have not only made us less safe, but they have empowered dangerous leaders such as the one in Iran. It is time for us to begin the redeployment of our forces from Iraq, just as the Reid resolution recommends, so we can return our focus to the war on terror and fight that war from a position of strength. We cannot defeat al-Qaida while we are bogged down in the middle of a civil war.

I do hope we can pass Senator Dorgan's resolution making a very strong point that Osama bin Laden attacked our country, and we want him captured.

Our troops have performed brilliantly. They have done everything asked of them. They deserve the love and support of a grateful Nation. When you love the troops, you give them a mission they can accomplish. You don't give them mission impossible. You don't give them a mission that puts them in the middle of a civil war, and that is why the Democratic proposal is so important.

As former Secretary of State Madeleine Albright recently told the Senate Foreign Relations Committee, on which I serve:

We have put our forces in the absurd position of trying to

prevent violence by all sides against all sides. The Sunnis

want us to protect them from the Shiites. The Shiites want us

on the sidelines so that they can consolidate their power.

Both are divided among themselves. . . .

This is what she said to our committee. I was there when she said it:

If I was a soldier on patrol in Baghdad, I wouldn't know

whom to shoot at until I was shot at, which is untenable.

An unclassified summary of the National Intelligence Estimate on Iraq states:

The intelligence community judges that the word ``civil

war'' accurately describes key elements of the Iraqi

conflict, including the hardening of ethno-sectarian

identities, a sea change in the character of the violence,

ethno-sectarian mobilization, and population displacements.

That is our intelligence community. There is no military solution to the situation in Iraq. The only sustainable solution is a political and diplomatic one, as I said previously.

Some warn us we must not redeploy our troops from Iraq and take them out of the middle of the civil war or else there will be a larger civil war. But I say we should heed the advice of Ed Luttwak, a senior fellow at the Center for Strategy and International Studies, who said:

By interfering with the civil war [in Iraq], we are

prolonging it. . . .

Let me repeat that:

By interfering with the civil war [in Iraq], we are

prolonging it . . . we are intruding in matters we cannot

manage successfully. And therefore, I believe, that

disengagement is the right way to go.

I wish to talk about something that gets Senators in trouble, and that is using the words ``love the troops.''

There is a lot of rhetoric about what it means to love the troops. I say when you love the troops, you give them gear and equipment they need, and you don't tell them to settle for less. We remember Secretary Rumsfeld who said, when asked by the troops about body armor:

As you know, you have to go to war with the Army you have,

not the Army you want.

We will never forget that stinging rebuke to a soldier who was deeply fearful about the lack of armor, the lack of equipment. That arrogant statement shows why our service members were left scrounging for scrap metal for their vehicles and asking their families back home to send bandages and body armor.

What was interesting about the last election is people said nothing will change, nothing will change if the Democrats win this election. The first thing that happened was Rumsfeld was gone in 5 minutes--in 5 minutes. So elections have consequences, and I believe now we have a Secretary of Defense who seems to me to be trying to grapple with the problems he is facing. He isn't arrogant, and he doesn't tell the troops to go get lost if they ask a tough question.

The President is now increasing the number of troops in Iraq. Today I learned that in addition to the surge, he is adding another 2,000 troops. But we still know not all of them will have the best equipment. This is unacceptable, and loving our troops has to be more than a slogan. When you love your troops, you send them into battle adequately equipped.

When you love the troops, you don't lower the standards for their future colleagues in arms. In order to meet recruiting goals, the Army has significantly lowered eligibility standards. The number of waivers granted to Army recruits with criminal backgrounds has grown about 65 percent in the last 3 years. Approximately 11 percent, or 894, of the 8,120 waivers granted in 2006 were for people with felony convictions. When you love the troops, do you want to put them next to someone who has been convicted of a felony?

Our military men and women must trust their fellow soldiers with their lives. We must ensure that our military meets the highest standards.

I compliment Congressman Murtha, who is known in this country as a war hero, who has been there, who has done that, who has seen things none of us would ever want to see. He says we can't keep sending our troops back into the field, into combat, without adequate preparation, training, and the highest standards--and rest.

I say that when you love the troops, you don't send them to moldy hospital rooms to recuperate. You don't do it. Recent press reports have revealed that

soldiers are languishing in substandard facilities at Walter Reed Army Medical Center. I thank my colleagues in the Congress for investigating this matter because some of us believe it is the tip of the iceberg.

I have asked my State staff to go on a tour of California hospitals and report back to me as to conditions in those hospitals.

An investigation by the Washington Post found vermin, leaking pipes, and mold at Walter Reed Building 18, an old hotel used by outpatients receiving care at the main Walter Reed Hospital facility.

The Post also highlighted larger and even more disturbing problems related to personnel management and recordkeeping. Soldiers complained of lost paperwork, of difficulty locating their appointments and of months--even as long as 2 years--spent trying to navigate a bureaucratic nightmare. According to the Post, some soldiers have simply given up trying to receive care and have gone home.

I wish to point out to the Senate--because we all know there are deep differences about this war--I want people to know that although Senator Lieberman and I do not see eye to eye on this war--and he will say that and I will say that; we see it from a different point of view--we have teamed up to try and make sure our soldiers on the battlefield get the mental health help they must have.

We are disturbed about some of the rules, about what we have found in our investigation with our staffs. And that is, many times doctors are overruled by the officers and a doctor will say: Do not send this individual out because they have post-traumatic stress and sometimes, unfortunately, we have learned the doctor doesn't hold sway, and the soldier is sent out with a pocketful of antidepressants, just as you would give someone aspirin for a headache.

This isn't good enough for our soldiers. Senator Lieberman and I are now working with Senator Murray, Senator Inouye, Senator Levin, and Senator Akaka to try and make sure our soldiers get the care they need, whether it is physical injury or mental injury.

I went to a hospital in San Francisco. I saw x-rays of brains that were damaged by explosions, and then I saw x-rays of brains of people who had post-traumatic stress. The doctors told me that in both cases, you see the damage. You can't tell one from the other.

So when you love the troops, you don't send them back into combat with post-traumatic stress and a bottle of antidepressants. You don't do it. Tragically, we know this is happening.

As part of the 2007 Defense authorization bill, my legislation passed requiring the DOD to issue guidelines as to the deployability of servicemembers with post-traumatic stress, but the DOD has not issued the guidelines and servicemembers with PTSD, post-traumatic stress disorder, continue to be deployed.

When you love the troops, you don't reduce the number of permanent disability decisions to save money, when so many of these troops are, in fact, permanently disabled. Recent press reports in my hometown paper, the Desert Sun in California, have suggested that the Army is trying to save money by giving our troops less of a disability rating than they deserve, despite an enormous spike in the number of battlefield injuries resulting from service in Iraq and Afghanistan.

Now, after nearly 4 years in Iraq, which was supposed to be a walk in the park, a mission easily accomplished, an enemy in the last throes, it is time to tell this President the time is up for his ever-changing mission.

Our troops, whom we all love, deserve more than broken promises, broken bodies, and broken dreams. It is time that Congress, following the will of the voters, start redeploying the troops out of Iraq now, as Britain has done, as Japan has done, as Italy has done, as Hungary has done, as Spain has done, as Portugal has done, as Norway has done.

It is time to say to the President that the authorization you received from this Congress has to come to an end, just like your coalition of the willing is coming to an end. The American people want this over.

The Democratic resolution that Senator Reid tried to get before our body is reasonable. It is not a cut-and-run resolution. It is a resolution that says: Start redeploying the troops out of there, change the mission, as the Iraq Study Group suggested, take our troops out of the middle of a civil war, give them missions they can accomplish-- force protection, training and equipping Iraqi troops, targeted counterterrorism operations so we can continue that war against al- Qaida for which I voted.

I didn't vote for this one. This one is a diversion from the war on terror, in my humble opinion.

My people in California want their National Guard home protecting them in case of emergency. I met with my National Guard. They are short of equipment. In a State such as mine where we have earthquakes, fire, flood, drought--every kind of problem one can name--we want our National Guard home and ready. There are terror targets in my State. We do have those symbols of America that the terrorists would love to target.

We want our troops back home. We are willing to say if you get them out of a civil war, if you want to keep them in the area to do a limited number of missions, that make sense, fine. It is time for diplomacy. It is time for a political solution. It is time for this Senate to take up Harry Reid's offer and allow us to vote on our resolution that starts redeploying the troops out of Iraq and bring up Senator Warner's resolution and bring up Senator Gregg's resolution and bring up Senator McCain's resolution--bring them all to the floor of the Senate. But don't block us from having this debate which we were ready to start on Monday.

I hope my Republican friends will reconsider. This is not the first time they have blocked us from debate on Iraq. We respect their points of view. We honor their points of view. We encourage them to support the resolutions that they support. But don't block a debate.

In closing, I compliment my friends, the managers of this 9/11 bill. This is such an important bill. It is so important. I restrained myself from offering amendments on this bill. I had something I wanted to do regarding blast-resistant cargo containers, but I didn't want to hold up getting this bill done. We can work on some of the fine points later.

I hope colleagues on both sides will vote to bring debate to a close on this 9/11 bill. Both our colleagues have worked so hard on it, and the 9/11 Commission has warned us we have work to do. We are so happy to see this bill on the floor. So let's get it done as soon as possible, and then let's go to a debate on a cloud that is hanging over all our heads, regardless of how one feels about this war. Let's have that Senate debate, that respectful debate on how to achieve success and bring our troops home from Iraq.

I thank the Chair. I yield the floor.

Mr. President, I now call for the regular order with regard to the Sununu amendment, No. 291.

I thank the Chair.

Mr. President, that is where we will keep the Senate for some period of time as we hope people on both sides can reason together and come to some meeting of the minds that will allow us to complete work on the more than 50 amendments that are pending and in a state of suspended gridlock and, unfortunately, standing in the way of the adoption of the 9/11 bill that is before us.

I will repeat that this bill came out of our Homeland Security and Governmental Affairs Committee with a nonpartisan vote--16 to nothing and 1 abstention. It has matters that are critically important to our national security and our homeland security. It would be a shame if its passage here and movement to conference with the House, which has already passed companion legislation, is held up because of the parliamentary and procedural gridlock the Senate is in now.

I hope my colleagues on both sides can, as I said, reason together to break that gridlock so we can complete work on the pending amendments and proceed to final passage of this legislation. Pending that, the Sununu amendment, No. 291, will remain the pending business.

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

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

Mr. President, as the Chair knows, and Members of the Senate know, the Senate is unfortunately in gridlock at this moment on this important bill because of disagreements as to how to handle several of the amendments. The trouble is the essential bill that came out of our committee, on which the distinguished occupant of the chair is a member, is intact. It does a lot to support first responders at the local level, to increase information sharing within our Government to avoid the failure to connect the dots that preceded 9/11. It is full of very important unfinished business that came from the 9/11 Commission Report.

Unfortunately, in addition to the 50 amendments pending and the refusal of

some Senators to grant consent to go on to hold votes on amendments on which we actually have bipartisan agreement, yesterday the minority leader came to the floor, and in a unique action--it is not seen around here too much--filed a cloture motion on four amendments that were pending. That will now keep us, barring some break and agreement between our leaders, in this state of suspended animation until tomorrow when the vote is scheduled both on the cloture motion filed by the Republican leader and the one on the overall bill to bring us to a conclusion filed by Senator Reid, the majority leader. What is very important is to focus us back on what this is all about and, hopefully, to shake us all up to remember that we are responding to, in this legislation, 5\1/2\ years after 9/11, the unfinished business of our Nation to protect our people from another terrorist attack.

Obviously, we are building on what we did in the 9/11 Commission legislation that passed in 2004, but there is more to do; we all agree. I am about to read a letter into the Record. I hope this letter will be read by every Member of the Senate and bring us back to what this is all about and honestly force us to reason together to get over this momentary gridlock to do what is important for our country.

The letter is addressed to the Republican leader, the Honorable Mitch McConnell. It comes from a number of the leaders of groups established by family members of victims of 9/11: Carol Ashley, mother of Janice, 25, member of Voices Of September 11th; Mary Fetchet, mother of Brad, 24, founding director and president of Voices of September 11th; Beverly Eckert, widow of Sean Rooney, 50, member of Families of September 11; and Carie Lemack, daughter of Judy Larocque, 50, cofounder and president, Families of September 11. Obviously, the names I mentioned, the first names and ages, were among those who were killed by the terrorists on September 11. This is a letter from these four family members of September 11 to Senator McConnell.

The letter reads as follows:

March 8, 2007.

Hon. Mitch McConnell,

Minority Leader, U.S. Senate,

Washington, DC.

Dear Senator McConnell: As family members who lost loved

ones on 9/11, we support full implementation of the 9/11

Commission recommendations. We are writing out of grave

concern that your recent introduction of highly provocative,

irrelevant amendments will jeopardize the passage of S. 4. It

is inconceivable that anyone in good conscience would

consider hindering implementation of the 9/11 Commission

recommendations and we strongly disagree with these divisive

procedural tactics.

Just as the Iraq war deserves separate debate, so do each

of the amendments you offered. S. 4 should be a clean bill

and debate should conclude this week with a straight up and

down vote. Each day that passes without implementation of the

remaining 9/11 Commission recommendations, the safety and

security of our nation is at risk.

Tactics such as those you are contemplating, aimed at

endangering the 9/11 bill, sends a signal to America that

partisan politics is alive and well under your leadership.

Both parties must work together to pass this critical

legislation. We, the undersigned, understand the risk of

failure all too well.

Respectfully,

Carol Ashley,

Mother of Janice, 25, Member, VOICES of September 11th.

Mary Fetchet,

Mother of Brad, 24, Founding director and President, Voices

of September 11th.

Beverly Eckert,

Widow of Sean Rooney, 50, member, Families of September 11.

Carie Lemack,

Daughter of Judy Larocque, 50, Co-founder and President,

Families of September 11.

This letter should be read by every Member of the Senate, not only with regard to the cloture motion that was filed yesterday but, frankly, also to some of the normal posturing and game playing that is going on by different Members, blocking agreement and moving forward on the bill unless their particular amendment is agreed to.

It is time for us to wake up, focus on what is really important and get this bipartisan bill, S. 4, Improving America's Security Act, adopted as soon as possible.

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

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

Mr. President, I thank the Chair. While the Senate awaits resolution on the parliamentary and, I suppose, political gridlock in which we find ourselves, I thought I would say a few words to remind my colleagues of the background that led to this particular legislation, S. 4, which, I repeat, came out of our Homeland Security Committee with a unanimous, nonpartisan vote of 16 to 0 and one abstention and is before us now.

I go back to August 21, 2004. On that day, the 9/11 Commission's official mandate as an independent, nonpartisan commission ended, 1 month after the release of their final report. But the 10 Commissioners, the 10 citizens who were members of the Commission and responsible for its extraordinary work--the findings, the recommendations, many of which we adopted in legislation that followed in 2004--the 10 Commissioners decided to stay active in the public debate over the Commission's recommendations that fall. They made a real contribution to continuing to remind us why adopting--certainly considering first and then adopting--their recommendations was so important. They testified before Congress during the latter half of 2004 and played a critical role in helping bring about the passage and enactment and the signature by the President of the Intelligence Reform and Terrorism Prevention Act of 2004.

The 10 Commissioners understood the importance of keeping the spotlight on the implementation of their recommendations. They concluded that without their persistent attention, there was a risk that we in Washington would lose focus on the difficult challenges that had been highlighted in the Commission's report and that we would go on to other work--not that, obviously, we would lose our care and concern about terrorism. So these 10 Commissioners formed the 9/11 Public Discourse Project, an independent nongovernmental group that held a number of meetings in 2005 to follow up on the implementation of the Commission's recommendations.

This group, the 9/11 Public Discourse Project, held a series of public meetings to which I have referred in 2005 to gauge progress on implementation of the legislation that resulted from their initial report. In the fall of 2005, later in the year, they issued a series of report cards on intelligence, homeland security, and foreign policy that graded the Federal Government on its implementation of their recommendations.

On December 5, 2005, these Commissioners, now joined together in what they called The Project, issued their final report summarizing their grades on the implementation of the 9/11 Commission's 41 recommendations. I can't say that I agreed with all their grades, but they were certainly sobering and should also have been motivating for all of us. The Project issued 1 A, 11 Bs, 9 Cs, 12 Ds, 5 Fs, and 2 incomplete grades. That calculates out to a C-minus average--not exactly the type of grades that would make us happy if our kids brought them home, and obviously the kinds of grades that should make us not only unhappy but agitated and anxious to raise them up when the grades deal with our national security, our homeland security.

The cochairs of the 9/11 Commission who went on to be cochairs of the 9/11 Public Discourse Project, former New Jersey Governor Thomas Kean and former member of the House of Representatives Lee Hamilton, vice- chair, issued a statement on the release of the report where they lamented the progress and its implementation. I quote from the Kean- Hamilton statement on December 5, 2005. They said:

We are safer--no terrorist attacks have occurred inside the

United States since 9/11--but we are not as safe as we need

to be.

I continue quoting:

We see some positive changes. But there is so much more to

be done. Many obvious steps that the American people assume

have

been completed have not been. Our leadership is distracted.

``There is so much more to be done,'' Chairman Kean and Vice Chairman Hamilton told the Nation that day at the end of 2005. That is why our Homeland Security Committee took up the call and why we reported out S. 4, which is before the Senate today.

Chairman Kean and Vice Chairman Hamilton went on in their remarks to discuss areas that had not been adequately addressed. They focused on interoperability for first responders around the country, effective screening of visitors to the U.S. against the terrorist watch list, homeland security grant allocations, and they bemoaned what they called ``the lack of urgency about fixing these problems.''

Their statement then continued:

Bin Laden and al-Qaida believe it is their duty to kill as

many Americans as possible. This very day they are plotting

to do us harm.

On 9/11 they killed nearly 3,000 of our fellow citizens.

Many of the steps we recommend would help prevent such a

disaster from happening again. We should not need another

wake-up call.

I continue--this is all Kean and Hamilton:

We believe that the terrorists will strike again. If they

do, and these reforms have not been implemented, what will

our excuses be? While the terrorists are learning and

adapting, our government is still moving at a crawl.

Tough words from Tom Kean and Lee Hamilton.

The terrorists are learning and adapting faster than ever. We saw evidence of that last August in the United Kingdom when a terrorist plot to blow up planes using liquid explosives--those planes heading toward the United States--was thankfully disrupted. We see evidence on the Internet today which terrorist groups are using increasingly to find new recruits, to develop new capabilities, to share information, and to propagandize about their latest exploits. They are moving, these terrorists, at a rapid pace. We not only must keep up with them, we must move ahead of them and move more rapidly than they are.

Chairman Kean and Vice Chairman Hamilton went on to discuss responsibility for addressing this challenge. They said:

The first purpose of government in the preamble of our

Constitution is to ``provide for the common defense.'' We

have made clear time and again what we believe needs to be

done to make our country safer and more secure: The

responsibility for action and leadership rests with Congress

and the President.

Of course, I agree, and I presume every Member of the Senate agrees, the responsibility rests with us and with the President. We have a choice to make as we debate this bill. We can bear the burden and responsibility of action and leadership and carry out the essential reforms that will strengthen our Nation's security or we can forego our responsibilities and take a chance with the homeland security of our country and its people. That is a risk that I know no Member of this Chamber wants to take.

In the final chapter of their book, ``Without Precedent''--that is the name of the book, ``Without Precedent''--which recounted their experience leading the 9/11 Commission, Tom Kean and Lee Hamilton repeat this last statement and conclude with these powerful words:

We now call upon our elected leaders to come together again

with that same sense of urgency and purpose. We call upon

Republicans and Democrats to work together to make our

country safer and more secure. The American people deserve no

less.

That is from Tom Kean and Lee Hamilton. They are absolutely right. They deserve no less. The American people deserve no less.

So we have come together on our committee, and we are moving very rapidly on the Senate floor, beginning last Wednesday through this week. We have had some good, healthy debates, disagreements, but resolved with votes. The bill as it came out of our committee is in strong shape. It would be a tragedy if we let the procedural differences, the personal concerns about individual amendments, the inability to reason together to stop us from passing this bill and passing it urgently. I am confident that we will be able to do it, but the sooner the better.

I thank the Chair.

Mr. President, I yield the floor. I note the presence of my friend and colleague from Pennsylvania.

Mr. President, I note the presence on the floor of our colleague from Arizona. I yield the floor to him at this time.

Madam President, I suggest the absence of a quorum.

Madam President, first I thank my friend from North Dakota for his empathy for what the Senator from Maine and I are going through. There is a particular syndrome here that probably psychiatrists someday will analyze. But anyway, so far we are surviving it. It is frustrating.

I support the amendment of the Senator from North Dakota. It makes eminent sense to me in every way and it is certainly relevant to this bill. We have a process where we are trying to put together a group of amendments from both sides, and yet there are few people whose amendments haven't made it to that list who are refusing to consent. This is one of those moments of Senate gridlock, but we are going to continue to work at it. I in particular want to reassure the Senator, my friend, we are going to try to continue to work to get his amendment passed.

Mr. President, I wish to notify our colleagues who are watching, or their staffs, that there is good news to report. There has been a break in the gridlock, and I soon will be propounding a unanimous consent agreement that will provide for a limited period of time for debate and then votes on four amendments that have been in dispute, perhaps one or two judicial nominations after that, and that will open the way for Senator Collins and me to move to adopt several other amendments we have been working on and on which there is bipartisan agreement, and those we can do by consent. So, in a few moments, I hope we can come forward to offer this light which suggests a breakthrough as we head to the cloture votes tomorrow.

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

Mr. President, I thank the Chair.

Mr. President, I say to my friend from Mississippi, first, I want to congratulate you on your normalcy; that you actually want to get home and have dinner with your wife. That is a very healthy thing to do.

No, I think it is normal. But I would say--I will yield to Senator Collins in a moment--that we, as managers of this bill, really appreciate what you have said because we started on the bill last Wednesday. We had some good, healthy debate on a series of amendments that went to the heart of what the bill is about. Frankly, those amendments are done.

Now this bill is ready to be adopted and sent to conference, and what has happened, as always happens, is people see a vehicle moving, and jump on it with related or unrelated amendments. Incidentally, of all the amendments filed, apparently only seven or eight are going to survive as germane, presuming cloture is invoked tomorrow.

So people get to be--well, they see a horse moving and they want to jump on. Also, then others get to be quite demanding and, might I say respectfully, occasionally unreasonable in blocking votes on the amendments. It is one thing to be against an amendment, but

let's come out, vote on it. You can have your say. The record will be established. But to block the amendment from coming up that then blocks this important bill--which most of us will support--from going forward, that does not make sense.

So I appreciate the Senator's exacerbation.

Mr. President, I yield to my friend, the ranking member of the committee.