A resolution expressing the sense of the Senate on the assassination of former Prime Minister of Pakistan Benazir Bhutto, and the political crisis in Pakistan.

Madam President, I have sought recognition to debate amendment No. 286, which would reverse the provision in the Military Tribunal Act which has limited the jurisdiction of the Federal courts in habeas corpus proceedings.

The essential question at issue is whether the combatant status review tribunals are adequate and effective to test the legality of a person's detention.

What we are dealing with here is an examination of the issue as to whether the procedures are fundamentally fair. Congress should repeal the provisions of the Military Commissions Act which limit Federal court jurisdiction on habeas corpus.

The decision by the court of appeals, I submit, will be overturned by the Supreme Court of the United States because of Circuit Court's ruling that the Rasul case dealt only with the statutory provisions on habeas corpus. The Circuit Court ignored the binding language of Rasul, which said that the habeas corpus rights were grounded in common law in effect in 1789 and were, in fact, part of the Constitution. Where habeas corpus is a right in the Constitution, and it is such a right because the Constitution expressly states that habeas corpus shall not be suspended except in cases of invasion or rebellion--and no one contends that there is either invasion or rebellion at issue--

Congress cannot legislate a derogation of that constitutional right. Any act of Congress is obviously trumped by a constitutional provision. Where you have habeas corpus in effect in 1789 and the constitutional provision prohibiting its suspension, the legislation passed in the Military Commission Act I think ultimately will be determined by the Supreme Court to be unconstitutional, pretty clearly on the face of the opinion of the Court articulated by Justice Stevens.

The Congress ought to reverse the provision of the Military Commission Act which strikes or limits Federal court jurisdiction on habeas corpus because the provisions--the way the detainees are being dealt with, simply stated, is not fundamentally fair. It does not comport with due process of law, and due process is a right even without specific enumeration in the Constitution.

The order establishing the Combat Status Review Tribunal provides as follows:

For purposes of this order, the term ``enemy combatant''

shall mean an individual who was a part of or supported

Taliban or al-Qaida forces or associated forces that are

engaged in hostilities against the United States or its

coalition partners. This includes any person who has

committed a belligerent act or who has directly supported

hostilities in aid of enemy forces.

The fact is that people are detained as enemy combatants without any showing of those basic requirements.

The next section of the order establishing the Combatant Status Review Tribunal provides:

All detainees shall be notified--

Skipping some language--

of the right to seek a writ of habeas corpus in the courts

of the United States.

I have not seen any reference to this provision in any of the adjudications, and I found this on the very extensive research which my staff and I have undertaken to prepare for this debate. But there you have it. The order itself setting up the Combat Status Review Tribunal says that the detainees have the right to seek a writ of habeas corpus. The Secretary of Defense has the authority to establish the rules, and he has established the rule which gives the detainee the right to seek a writ of habeas corpus. That ought to end the argument right there.

Let's proceed further to see, in fact, what happens when these matters are taken before the Combat Status Review Tribunal. We have the opinion of U.S. District Judge Green in a case captioned, ``In Re: Guantanamo Detainee Cases,'' in which Judge Green writes as follows:

The inherent lack of fairness of the CSRT's consideration

of classified information not disclosed to the detainee is

perhaps most vividly illustrated in the following

unclassified colloquy which was taken from a case not

presently before this judge which exemplifies the practical

and severe disadvantages faced by all Guantanamo prisoners.

[I read] a list of allegations forming the basis for the

detention of Mustafa Ait Idir, a petitioner in Boumediene v.

Bush case--

And that parenthetically is the case decided by the Court of Appeals for the third circuit.

This is what Judge Green goes on to point out in her opinion in the Federal Reporter:

While living in Bosnia, the detainee associated with a

known al-Qaida operative.

In response, the following exchange occurred:

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Skipping some irrelevant language, the detainee goes on to say:

I asked the interrogators to tell me who this person was.

Then I could tell you if I might have known this person, but

not if this person is a terrorist. Maybe I knew this person

as a friend. Maybe it was a person that worked with me. Maybe

it was a person that was on my team, but I do not know if

this person is Bosnian, Indian, or whatever. If you can tell

me the name, then I can respond and defend myself against

this accusation.

Tribunal President: We are asking you the questions and we

need you to respond to what is in the unclassified summary.

Skipping some irrelevant materials, the detainee then goes on to say:

But I was hoping you had evidence that you could give me.

If I was in your place--and I apologize in advance for these

words--but if a supervisor came to me and showed me

accusations like these, I would take these accusations and I

would hit him in the face with them. Sorry about that.

Then, parenthetically, Judge Green's opinion notes that ``Everyone in the tribunal laughs.''

Tribunal President: Well, we had to laugh, but that is OK.

A little later in the opinion--

The detainee says: What should be done is you should give

me evidence regarding these accusations, because I am not

able to give you any evidence. I can just tell you no, and

that is it.

Then Judge Green goes on to say:

The laughter reflected in the transcript is understandable.

And this exchange might have been truly humorous had the

consequences of the detainee's enemy combatant status not

been so terribly serious, and the detainee's criticism of the

process had not been so piercingly accurate.

Well, this case illustrates the fact that the provisions in Guantanamo on the detainee status review tribunal is a laughing stock. It hardly comports with what the Secretary of Defense said was required: that there has to be evidence that the individual supported Taliban or al-Qaida forces or committed a belligerent act.

The Judiciary Committee held a hearing and one of our witnesses was a distinguished attorney, Thomas Sullivan, who made available a series of cases before the Combat Status Review Tribunal. This is one illustrative case involving a man named ``Abdul-Hadi al Siba.'' I take this from the extract of what the witness provided:

The Combat Status Review Tribunal stated that al Siba was

charged with being captured in crossing the border into

Pakistan with having volunteered for a charity that was

funded by al-Qaida. That is all that is in the summary.

Again, this hardly comports with the standard by the Department of Defense itself that there is supposed to be evidence which would show the detainee was engaged in hostilities against the United States or committed belligerent acts.

The provisions of the Department of Defense establishing the Combat Status Review Tribunals is fundamentally unfair under the most basic principle of Anglo-Saxon American jurisprudence. The rules are:

Preponderance of evidence shall be the standard used in

reaching the determination, but there shall be a rebuttable

presumption in favor of the government's evidence.

That is the most extraordinary standard which I have ever seen, and it is bedrock Americana that people are presumed innocent. But instead, when a detainee faces a Combat Status Review Tribunal, the presumption is that he is guilty. That hardly comports with a standard of fundamental fairness or due process.

The rules promulgated by the Department of Defense call for a preponderance of evidence, so even if there is a presumption of guilt, the standards do require some evidence. But that was not present in the case cited by Judge Green, not present in the cases cited by Thomas Sullivan at our Judiciary Committee hearing.

Madam President, I ask unanimous consent that the summary of other cases provided by Mr. Sullivan be included in the Record at the conclusion of my presentation.

The standards which have been established, which would, under some circumstances, permit a substitute procedure for habeas corpus were articulated by the Supreme Court of the United States in the case of Swain v. Pressley. In that case, the Supreme Court said there could be a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's contention.

But the collateral remedy which was present in Swain v. Pressley is a far cry from the provisions of the Combat Status Review Tribunal.

What the Supreme Court was dealing with in the Swain case was habeas corpus before a State court as opposed to habeas corpus before a Federal court. In Swain, the Supreme Court said that the ``relief available in the Superior Court is neither ineffective nor inadequate simply because the judges of that court do not have life tenure.''

So here we have a State court functioning under the rules of habeas corpus and the Supreme Court says that is an equivalent of Federal court habeas corpus because State court judges can make that determination and the only difference is that the State court judges do not have wide tenure.

In Swain, the Supreme Court went on to say:

It is a settled view that elected judges of our State

courts are fully competent to decide Federal constitutional

issues.

So there you have the constitutional issue decided. But the only difference is that it is a State court. Well, that has absolutely no resemblance to the combat status review tribune. It hardly qualifies as an adequate substitute.

I want to proceed now to the issues that were articulated by the Supreme Court of the United States in Rasul, where I believe it is very clear cut that there is the ignoring of the language of the Supreme Court, and a constitutional right and a right that was in effect in common law in 1789 will certainly be utilized by the Supreme Court in dealing with the circuit court opinion, which is directly inconsistent with the language of Justice Stevens. This is what Justice Stevens said in the Rasul case, speaking for the Court:

Application of the habeas corpus statute to persons

detained at the base [referring to the Guantanamo base] is

consistent with the historical reach of the writ of habeas

corpus. At common law courts exercise habeas corpus over the

claims of aliens detained within the sovereign territory of

the realm, as well as the claims of persons detained in the

so-called ``exempt jurisdictions'' where ordinary writs did

not run, and all other dominions under the sovereign's

control. As Lord Mansfield wrote in 1759, even if a territory

was ``no part of the realm'', there was ``no doubt'' as to

the Court's power to issue writs of habeas corpus if a

territory was under the subjection of the crown.

The Supreme Court had already held in the trilogy of cases in 2004 that the United States Government controlled Guantanamo Bay, so it was within the jurisdiction of the United States.

Justice Stevens goes on to point out that:

Later cases confirmed the reach of the writ depended not on

formal notions of territorial sovereignty, but rather on the

practical question of ``the extent and nature of the

jurisdiction or dominion exercised in fact by the crown.''

There again is the reference to the undeniable fact that the United States controls Guantanamo and it is under United States dominion. The court of appeals concluded that the language about the existence of the writ when the Constitution was adopted and the constitutional right of habeas corpus was not resolved by Rasul, because the specific holding in Rasul was on the statutory provisions of section 2241.

The Stevens opinion says:

We therefore hold that section 2241 confers on the district

court jurisdiction to hear petitioner's habeas corpus

challenges to the legality of their detention at Guantanamo

naval base.

Now, the circuit court said that, well, is a holding based upon the statute, but its limitation does not apply to a constitutional right or the reach of the writ in effect in common law in 1789. How can it be that the Supreme Court would say Guantanamo Bay is under United States jurisdiction for the statutory right but outside of the jurisdiction for the constitutional right? It stands the English language on its head.

There have been a number of situations where--especially in the fifth circuit--on death penalty cases the circuit has, in effect, ignored what the Supreme Court has had to say. It has been a highly critical Supreme Court which has then come to review those decisions. I suggest that that would be the response when the Supreme Court comes to review the circuit court opinion which ignores the plain language of the Supreme Court of the United States.

In dissent, Justice Scalia recognized the fact that the case of Johnson v. Eisentrager had been overruled. The court of appeals relies upon Johnson v. Eisentrager to hold that there is no jurisdiction over Guantanamo Bay. But this is what Justice Scalia, in dissent, had to say about the overruling of Johnson v. Eisentrager. He called it ``overturning of settled law.''

But the court of appeals did not view it as such. So when this case comes before the Supreme Court, I think it is patently obvious that the language of the Court will require reversal of the circuit court decision.

I have been asked if I will yield for a unanimous consent request by Senator Lieberman, and I will do so.

Mr. President, the failure of the Court of Appeals for the District of Columbia to recognize the settled principles was the subject of an analysis by the distinguished constitutional scholar Adam Liptak in the New York Times yesterday. It is worth notice. The analysis said that:

what the Supreme Court says goes. Usually. But in a defiant

decision 2 weeks ago, a Federal Court of Appeals in

Washington conceded that it was ignoring parts of the 2004

Supreme Court decision on the rights of a man held at

Guantanamo Bay, Cuba. That can make the Supreme Court testy

and it may help the detainees.

The analysis goes on to paraphrase the powerful dissent of Judge Judith Rogers, who said her colleagues were thumbing their noses at the Supreme Court. Liptak notes that:

[Rogers stated that her colleagues] ``were ignoring the

Supreme Court's well-considered and binding dictum''

concerning the historical roots and geographical scope of the

prisoner's basic rights and she cited the case from her own

court that said that such statements ``generally must be

treated as authoritative.''

The analysis goes on to say that:

almost 3 years ago, the Supreme Court ruled in Rasul that the

detainees possessed an ancient and fundamental right, the

right to challenge the justice of their confinement in court

by filing petitions for writs of habeas corpus.

In a crucial aside, in Rasul, Justice John Paul Stevens,

writing for the majority, said this right was not just a

result of a law passed by Congress but was grounded in the

Constitution. ``Application of the habeas statute to persons

detained in the base,'' he wrote, ``is consistent with the

historical reach of habeas corpus.''

Well, that lays it out in a pretty conclusive way that when the Court rules on a statute but says that the same right is embodied in the Constitution, Congress cannot pass a law which trumps the constitutional provision, as articulated by the Supreme Court of the United States.

The Liptak analysis goes on to note this:

If that is a right, a new law pushed by the Bush

administration's Military Commissions Act could not have cut

off detainees' rights to habeas corpus. In a footnote, the

appeals court basically acknowledges that. But it ruled that

the Supreme Court's historical analysis was wrong and that

Justice Stevens' dictum could be ignored.

In the analysis commenting on the Johnson v. Eisentrager case, Liptak noted as follows:

All of the points which were relied upon by the circuit

court, as Justice Stevens wrote in Rasul, counted in favor of

the Guantanamo detainees. ``They were not nationals of

countries at war with the United States''--

Which was the case in Eisentrager--

They have not been engaged in plotted acts of aggression

against the United States. They have never been afforded

access to any tribunal, much less charged with and convicted

of wrongdoing, and for more than 2 years they have been in

prison in territory over which the United States exercises

exclusive jurisdiction and control.

Well, this is a fairly brief analysis in the time which I have. But the essence of it boils down to this: The Supreme Court--Justice Stevens speaking for a majority--has ruled that the Federal habeas corpus statute covers Guantanamo, that the rights were violated, and that the statute carries out the constitutional law and the scope of the writ in 1789, when the Constitution was adopted. And the Court of Appeals for the Third Circuit, in order to uphold the act, says the holding by Justice Stevens was only to a statute--and it is true Congress can change the statute--but ignores the plain language of Justice Stevens speaking for a majority of the Court that it is a constitutional right.

That cannot be changed by an act of Congress, and the Supreme Court will tell the court of appeals that when they get the case. Aside from the issue of constitutionality, which will be decided by the Court, as to the procedures that are in effect in these combat status review tribunals, they do not measure up to the requirements of fundamental fairness. They do not honor what the Department of Defense laid down as the basic rule that detainees are entitled to ``the right to seek a writ of habeas corpus in the courts of the United States.''

That ought to be the end of it because the Secretary of Defense was given the responsibility to decide what

the rules were, and he said one of the rules is that these detainees can go to court. That is what an act of Congress has taken away, and that is what ought to be reversed.

Then if we take a look at what has to happen in these proceedings before the Combat Status Review Tribunal, the term ``enemy combatant,'' which would qualify for detention, means an individual who was part of or supporting the Taliban or al-Qaida forces or has committed a belligerent act or has directly supported hostilities in aid of enemy forces.

The individual in the court of appeals case cited by Judge Green, which I read at length, was only supposed to have talked to somebody from al-Qaida, and they couldn't even produce the identity of the individual, which hardly measures up to the Department of Defense's standard. It is just absolutely ludicrous. Then for the Department of Defense provisions to say that there is a presumption of guilt just turns American justice on its head. Even with a presumption of guilt, the requirements are that there be evidence, and there is none in the case cited by Judge Green and by Mr. Sullivan.

This is just the beginning of the argument. We will have other Senators come to oppose.

Let me advise my colleagues that there will be a portion of the debate conducted in Room S-407, which is the room where we can discuss classified information, because Senator Leahy and I have been reviewing the rendition in the Arar case, and we have found that there was a determination that Arar had a status--which I cannot discuss in this Chamber but can discuss only in S-407--which would warrant sending him to Syria. Arar was a Canadian citizen who came to the United States and was detained for questioning at an airport in New York City when he wanted simply to transit and go to Canada. He was questioned by the

In the absence of any other Senator seeking recognition, 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 have a couple supplemental comments I would like to make.

The requirement established by the Department of Defense that a detainee shall be notified ``of their right to seek a writ of habeas corpus in the courts of the United States'' was given to all the detainees. So they have had it and relied upon it. I suggest that while not legally the same, that any change in that policy is really in the nature of ex post facto, which is changing a rule and establishing criminal liability after the fact, which is prohibited by the Constitution. It isn't quite that, but it has the same flavor, and it is the nature, also, of a bill of attainder, which is legislation that establishes guilt as opposed to a judicial proceeding. What we have had here, in effect, is legislation which has changed what the Department of Defense said the rights of the individuals would be.

I wish to cite, in addition, a quotation from Justice O'Connor in the Hamdi v. Rumsfeld case, talking about combat status review boards, in which she said:

Any process in which the executive's factual assertions go

wholly unchallenged or simply presumed correct without any

opportunity for the alleged combatant to demonstrate

otherwise falls constitutionally short.

Justice O'Connor restates in shorthand the traditional presumption of innocence which is turned on its head by the DOD regulations and says as a matter of Supreme Court ruling that without any opportunity to defend, those presumed conclusions can't stand.

We saw the case of Judge Green, we saw the case cited by the witness before the Judiciary Committee, all of which shows the basic unfairness of what is going on in Guantanamo. The only way to correct it is through the traditional habeas corpus rights in Federal court.

I yield the floor.

Mr. President, I ask my colleague from South Carolina if he would be willing to respond to a few questions.

I will begin with the subject matter brought up by the Senator from Connecticut about the status of aliens. I would note that in the Rasul case, the Supreme Court, Justice Stevens speaking for a majority, answered this categorically:

Aliens held at the base, like American citizens, are

entitled to invoke the Federal courts' section 2241

authority--

Which is the habeas corpus statute.

So the court has dealt with that conclusively in Rasul much the same way that Justice O'Connor did speaking for plurality in an earlier case.

Addressing the question to the Senator from South Carolina, earlier today I noted the order establishing Combat Status Review Tribunals, and it provided that:

All detainees shall be notified--

Leaving out some irrelevant material--

of the right to seek a writ of habeas corpus in the courts of

the United States.

Is the Senator familiar with that provision?

Well, I hadn't been until a few days ago. But this is the Deputy Secretary of Defense, Paul Wolfowitz, in a memorandum dated July 7, 2004, to the Secretary of the Navy.

The Senator from South Carolina made the argument that the judges were not appropriate to make determinations of reviewing the orders or the conclusions of the Combat Status Review Tribunal. How would the Senator from South Carolina account for the acquiescence by the--

Well, the question about the Department of Defense agreeing to allow habeas corpus rights was not taken up by the Circuit Court for the District of Columbia and the Detainee Treatment Act. Congress gave the Department of Defense the right to establish the rules, and that is one of the rules. Wait a minute. The question hasn't come yet.

Is it fair to change the rules in the middle of the process after the Department of Defense has stated that they think it is appropriate for a Federal court--they specifically talk about courts of the United States--to make a determination under habeas corpus to see if the definition which they set for enemy combatants has been followed. They have specified that there has to be evidence. To the definition of what or who is an enemy combatant:

An individual who was part of or supporting the Taliban or

al-Qaida forces, or associated forces that are engaged in

hostilities against the United States or its coalition

partners. This includes any person who has committed a

belligerent act or has directly supported hostilities in aid

of enemy armed forces.

Now, the Department of Defense who promulgated this order concluded that it was within the purview of the Federal courts, and that is really a judicial function to determine whether the definition for enemy combatant has been achieved, isn't it?

Well, if I may respond, when the Supreme Court said Congress should act, they were saying that Congress should legislate on how a military commission should be tried. But moving to your argument about the issue of constitutional right, how could it be that if the Constitution says that the right of habeas corpus can be suspended only in the event of invasion or insurrection? How can it be argued that there is no constitutional right?

That is the argument that the Attorney General made in the Judiciary Committee hearing. Where the Constitution explicitly says the constitutional right of habeas corpus can be suspended only in invasion or insurrection, and no one says that either of those factors is present here, isn't that a flat-out statement that there is a constitutional right?

Wait just a minute. Make your answers a little more responsive and brief, and I won't keep you too long. I will keep you just a few more minutes.

The Court of Appeals for the District of Columbia said that the Supreme Court, speaking explicitly through Justice Stevens, only dealt with a holding on the statute.

They classified it as dictum when they said there was a constitutional right. Let me move on quickly to a couple of other points.

As to the adequacy of proceedings in the combat status review tribunals, you have the case involving In re: Guantanamo, which I cited this morning, where Judge Green dealt with the precise case in the District of Columbia Circuit Court, the Boumediene case, which had a procedure where the detainee was charged with talking to somebody who was from al-Qaida, and he asked who it was and they could not identify the person. There was laughter in the courtroom, and Judge Green said it is understandable that there was laughter in the courtroom because nothing had been established.

I ask a very simple, direct question, and maybe you can even answer it yes or no. Was that a fair proceeding?

I have one more thing. I take your last extended statement to be a ``no,'' am I right?

One last question. I still take that to be a ``no.'' It was not a complex question. Do you think it is fair where the Department of Defense sets the rules, contrary to your assertion, that they think Federal judges can decide whether the evidence establishes the standard for an enemy combatant, do you think it is as fair under American justice to have a presumption of guilt?

Let me say, in conclusion, that bombast and oratory and repetition cannot undercut a few very basic facts. One is that the Department of Defense established a rule to give Guantanamo detainees the right of habeas corpus. They set out a standard as

to what would constitute being an enemy combatant. These are rules, when they call for evidence, that judges are equipped to decide. When there is a rebuttable presumption of guilt, undercutting the basic principle of America, the presumption of innocence, that is basically unfair.

When you talk about the decision by the Court of Appeals for the District of Columbia, where they limited the Supreme Court opinion to a narrow holding on the statute, although the court then went on to say there was a constitutional right, that will not pass muster when it comes back to the Supreme Court. It is fallacious to the utmost to argue that there is no constitutional right to habeas corpus, when the Constitution explicitly says the right of habeas corpus may be suspended only in time of invasion or rebellion. It simply cannot be contended rationally that there is no constitutional right to habeas corpus.

I am as concerned as the Senator from South Carolina about protecting America. I led the fight to reauthorize the PATRIOT Act. But the question is, is there some reason to hold the detainees? In the case that went to the District of Columbia Circuit Court of Appeals, you had the District Court looking at the information--it wasn't evidence-- which was that the detainee had a conversation with an al-Qaida member, but they could not identify him. The proceeding was a laughingstock. That is the detainee in the District of Columbia Circuit Court case which is going to the Supreme Court.

I don't think this Congress ought to wait or punt to the Supreme Court. We passed a statute which takes away Federal court jurisdiction to make the simple determination: Is there a reason to hold them? We ought not to let that stand.

I ask unanimous consent that a letter dated today, received by Senator Leahy and myself, be printed in the Record. It sets forth eloquently the reasons why habeas corpus for detainees should be reinstated by the Congress. It is signed by RADM Don Guter, who was the Navy's Judge Advocate General; RADM John Hutson, the Navy's Judge Advocate General at an earlier period; BG David Brahms, who was the Marine Corps senior legal adviser from 1983 until 1988; and BG James Cullen, who was the chief judge of the U.S. Army Court of Criminal Appeals.

Madam President, while the Senator from New Hampshire is still on the floor, I thank him and commend him for his statement directly to the issues. He has articulated them very well. It is a different circumstance and what we are looking at is the issue of indefinite detention and some process where there has to be some reason given for the detention. It doesn't haven't to comply with the technical Rules of Evidence, although the Department of Defense regulation calls for evidence, and evidence is a work of art comprehending competency of items to establish a fact. But without moving into the full range of evidence for some reason to hold them-- and I agree with the Senator from New Hampshire that we are not looking for a remedy to test living conditions or to test food or test a wide variety of items that may be comprehended in other habeas corpus situations, but just detention--that is all--just detention.

I am agreeable to modifying the amendment to specifying just detention. The Senator from New Hampshire raises a valid point that there may be other Senators--he estimates as many as 10--who are inclined to support an amendment which directed itself only at detention.

There is the right of modification. I am going to talk to more of my colleagues to see if that would produce a significantly different result.

I thank the Senator from New Hampshire.

I yield the floor, and in the absence of any Senator seeking recognition suggest the absence of a quorum.

Yes.

Madam President, while the Senator from Illinois is still on the Senate floor, I want to thank him for those eloquent remarks going right to the core of the issue, the importance of protecting America from terrorists and at the same time a balance in protecting Americans' constitutional rights.

When he refers to Tom Sullivan, the very distinguished Chicago attorney, I might note that Mr. Sullivan testified at a Judiciary Committee hearing and brought forth a number of examples, which I put into the Record earlier today, where it is recited in some detail people who were detained at Guantanamo for very long periods of time. One specifically commented about crossed the border, was supposed to have been associated with someone from al-Qaida, no reason for keeping him was given, no evidence to that effect, but was kept for 5 years and then released.

Let me express a concern I have, which I discussed earlier with the Senator from Illinois, and that is I am concerned that this amendment will not receive a vote. Last year, the Senate voted on a 51-to-48 vote, to include language in the Military Commissions Act that limited Federal court habeas jurisdiction. I have suggested that there be a cloture petition filed on this bill, if we are going to vote on cloture later this week on the underlying bill, and that would be a case where we might vote on cloture on this amendment. I would structure it in that fashion only as a way to get a vote so that people will have to take a position, and I simply wanted to make reference to that.

Madam President, I yield the floor.

Amendment No. 312

Mr. President, I would like to thank Senator Lieberman for working me into the line here. What I am rising to talk about is a very important issue for how we conduct this war, for how the law works in a time of war, for the values Americans would like to embrace when we are under siege as a nation, and try to give my explanation to what Senator Specter's amendment would do and why I oppose it so vehemently.

To give a little background and history of this issue, at least from my perspective--and I would ask every Senator to look at this very closely because this is a very important concept we are talking about-- the Guantanamo military installation to house enemy combatants, people determined by our military to be enemy prisoners of war out of uniform, meeting the Geneva Convention's definition of an enemy combatant--the administration chose Guantanamo as the jailing site. There were prisoners there who brought actions in our Federal court, arguing that their confinement needed to be reviewed by Federal courts. The administration took the position that Guantanamo was outside the United States. They lost. I think the administration should have lost. To me, Guantanamo, because of the lease and the relationship the U.S. military has to that installation, is clearly part of the infrastructure of the United States.

The reason they made the argument is it is a long-held concept in law that habeas rights do not apply to people overseas, that our constitutional provisions granting to American citizens the right to bring a habeas petition when they are confined does not apply extraterritorially. The administration lost on the argument that Guantanamo was outside the United States, and the Federal court said: Okay, it is within the United States.

What habeas rights would attach to someone at Guantanamo Bay? Here is where Senator Specter and I dramatically differ. Senator Specter reads the Rasul case to say that someone confined at Guantanamo who is a noncitizen enemy combatant has a constitutional right under our Constitution to petition Federal courts, to have a district court judge review their confinement. I think that is completely wrong.

The D.C. Court of Appeals recently held in a 2-1 decision that people detained at Guantanamo Bay do not have constitutional rights under our Constitution to petition for habeas.

Rasul was about 2241, section 2241 of the U.S. Code, a congressional enactment that creates statutory habeas rights. That statute has been amended in many different forms--restricting habeas, granting habeas, allowing States appellate procedures postconviction relief to be substitutes for habeas.

The Supreme Court said: Since Congress has not spoken as to whether detainees at Guantanamo will be covered by 2241, we are going to allow a case to go forward under that statute until Congress tells us otherwise.

It was Justice O'Connor who was suggesting to the Congress we need to speak. The administration at the time of the Rasul case had no infrastructure in place to give due process to someone who is accused of being an enemy combatant. Justice O'Connor, in another case--I don't remember the name now--said: What you need to look at is Army Regulation 190-1, which is a procedure to guide military members how to determine who an enemy prisoner may be from a civilian who is an innocent person involved in war. So what the military did, after the second Supreme Court case, was come up with a Combat Status Review Tribunal. Now the Combat Status Review Tribunal is the due process right given to suspected enemy combatants.

To me, 9/11 was an act of war. It was also a crime, but it was an act of war. I believe the people housed at Guantanamo Bay are warriors, not common criminals. They will be afforded the due process rights of wartime law of armed conflict, not domestic criminal law.

What is the law of armed conflict when it comes to status? Article V of the Geneva Convention says that if there is a question of status, the country which houses the person, is in charge of the person, will conduct a competent tribunal. A ``competent tribunal'' all over the world is a military proceeding where the military of that country will determine if the person in front of them is a civilian, uniformed person, or enemy combatant.

The Combat Status Review Tribunal is well beyond the due process requirement of the Geneva Conventions. What happens at the Combat Status Review Tribunal, first of all, is that the enemy suspect prisoner will go before a panel of three military officers trained in who presents a military threat--an intelligence officer, a combat officer, and a legal officer. I think tomorrow or Friday, the 14 high- value detainees who have been in CIA custody will go through this process.

The question for this Congress is, Do we want the military to make the initial decision on who an enemy prisoner is based on what a military threat is to our country and the expertise the military has in determining if this person

is an enemy prisoner, enemy combatant, or do we want to give that to a district court judge who has absolutely no training?

Enemy prisoners during World War II were not allowed to file habeas petitions and come into our Federal courts and sue the military during a time of war to be released. Chief Justice Jackson said: Wait a minute. This is not our job. We are not trained for this. If we allow enemy prisoners detained by our military during a time of war to have access to our Federal courts, Federal judges are taking over a job the military is trained for and we are not trained for.

Here is what Justice Jackson said in the Eisentrager case:

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.

Nothing in the text of this Constitution extends such a right nor does anything in our statute.

So the Eisentrager case in 1950 clearly said habeas does not apply to enemy prisoners. I cannot find the language--it talks about why it is a bad idea--but it is forthcoming. So as early as 1950, the courts rejected enemy prisoner petitions in the Federal court.

Now, the question for Congress is, after 9/11--5 years later--do we as a Congress want to confer onto people classified by our military to be enemy combatants a Federal court right never known in the law of armed conflict at any other time in our history? Do we want to be the first Congress in the history of the United States to take away from our military the ability to determine who a military threat is and make literally a Federal court trial out of that decision?

There had been 160 habeas petitions filed before we acted last year. Let me tell you, they have sued our own military for everything imaginable: the quality of the food, DVD access, not enough exercise, judge-supervised interrogation. Some of the people who have brought these cases are accused of killing Americans in the most brutal way.

One of the lawyers, Mr. Michael Ratner, who filed habeas petitions on behalf of enemy combatants held at Guantanamo Bay, publicly stated:

The litigation [for the United States]. . . . It's huge. We

have over one hundred 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're doing. You can't run an

interrogation . . . with attorneys. What are they going to do

now that we're getting court orders to get more lawyers down

there?

It is clear that it does--according to one of the lawyers representing detainees--make it very difficult for the military to do their job when it comes to intelligence gathering. I will have an unclassified summary to put into the Record at the end of my time that talks about the information gained at Guantanamo Bay.

But here is what Justice Jackson said would be the real big mistake for the Federal courts if you start granting habeas petitions and give enemy prisoners a right to sue our own people about their status in a time of war:

The writ, since it is held to be a matter of right, would

be equally available to enemies during active hostilities as

in the present twilight between war and peace. Such trials

would hamper the war effort and bring aid and comfort to the

enemy. They would diminish the prestige of our commanders,

not only with enemies but with wavering neutrals. It would be

difficult to devise more effective fettering of a field

commander than to allow the very enemies he is ordered to

reduce to submission to call him to account in his own civil

courts and divert his efforts and attention from the military

offensive abroad to the legal defensive at home. Nor is it

unlikely that the result of such enemy litigiousness would be

a conflict between judicial and military opinion highly

comforting to enemies of the United States.

Was he prophetic? These 160 cases have created a nightmare for the military at Guantanamo Bay. Medical malpractice suits have been filed, $100 million money-damage lawsuits have been filed. It has been a legal nightmare.

So what I am trying to persuade the Congress to do is not grant in statute a right never given to any other enemy prisoner during any other war, because it is dangerous to do so.

What did we do to accommodate the unique needs of this war, a war potentially without end? For the first time in the history of our country, we are allowing Federal courts to review whether a person has been properly classified as an enemy prisoner. Once the military decides Shaikh Mohammed's status Friday, the mastermind allegedly of 9/ 11, can you imagine 5 years after 9/11 the Congress would open up any Federal courtroom that a lawyer could shop to find--whatever judge the lawyer could find in the country--and allow Shaikh Mohammed to sue our own military about his status, creating a nightmare zoo courtroom trial, bringing people from all over the world to determine his status, where the judge would have a say, not the military? That would be a mistake of monumental proportions.

What will happen is Shaikh Mohammed, in a classified setting, will have evidence presented by the Government to show he is an enemy combatant. He will have a chance to rebut that. When his case has been decided, he will have an automatic right of appeal to the DC Circuit Court of Appeals, where the DC Circuit Court of Appeals will look at the military decision in question and find out whether two things occurred. Were the due process rights given Shaikh Mohammed and other enemy combatant suspects consistent with our own Constitution? Secondly, was the evidence introduced sufficient to support the finding he is an enemy combatant?

That is the proper role for a judge. That is what judges are trained to do. It would be a monumental mistake to allow a habeas petition to be filed, where literally you could go to any court in the land and have a full-blown trial, calling people off the battlefield to make the case that this person was an enemy prisoner and give that decisionmaking ability to a judge not trained in who is a military threat to our country and take it away from the military.

That is why I am so passionate about this issue. I do believe in due process at a time of war. I have been a military lawyer for well over 20 years. I believe our country should adhere to the Geneva Conventions, that we should be a standard-bearer for what is right. But we should not cripple our military's ability to defend us in a way that makes absolutely no sense.

We should not put Federal judges on the frontlines in deciding who is a threat to this country, when the military is trained to do that. Let the judges look over the military's shoulder and in a proper way, consistent with their training.

Now, what is going to happen? The case is going to go to the Supreme Court soon. If I am wrong, I will take the floor and say so. Senator Specter has a belief there is a constitutional right to habeas. I do not believe that. But if the Court holds so, then I would be wrong. I would argue that the DC Circuit Court of Appeals is an adequate substitute for habeas, but that will be up to the Court.

All I am asking is to allow the work product of last year that has gone before the DC Circuit Court of Appeals that has been upheld to go through the system. I will gladly sit down with Senators Specter and Levin to see if we can work on better due process rights for people accused of being an enemy combatant. I think we can do that as a Congress without turning that decision over to Federal judges. It is a very dangerous thing we are proposing to do, to take away from the military to determine who a threat is and to give it to a Federal judge.

Finally, I would like to say: I know this is a war without end. Two hundred-and-something people have been released from Guantanamo Bay because they get an annual review board to look at their status anew. We do not want to keep people who have been misidentified who are not a threat. But we do not have the choice of ``try them or let them go.'' This is a war, and we can keep warriors off the battlefield as long as they are a threat. When it comes time to determine who should bear that risk, who should bear the risk of letting someone go at Guantanamo Bay--the innocent civilian populations of the world who have been a victim of people out of uniform wreaking havoc or the people who started this whole mess to begin with--if you are going to proportion risk, I think it should fall on the people who created the problem to begin with.

Twelve people have been released from Guantanamo Bay under the annual review process of the 200-and-something. Twelve have gone back to the battle. Three have been killed. So you make mistakes both ways. I don't want to hold one person down there who should not be held, but I don't want to let anybody go who is a threat to our country because we are at war.

Due process rights attach to people in war, but we cannot criminalize what has been an act of war beginning on September 11, 2001. The people down there will have their day in court. They will have a chance to have a say about who they are and what the facts are. But I do believe there are people down at Guantanamo Bay who are warriors. If they ever got out, they would try to kill us again.

Yes, sir.

The Senator is absolutely right; any American citizen. The Padilla case is the best example you could give. Padilla was charged as an enemy combatant, a U.S. citizen. It is true American citizens in the past have been held indefinitely as enemy combatants. But I do believe they should have access to our courts as a member of citizenship. And they would have a constitutional right to seek relief from a Federal judge to determine whether the military or law enforcement officers make that decision. We are talking about people in the same status as the Germans and the Japanese. There was a reason the thousands of enemy prisoners housed in the United States never had access to our Federal courts. It is what Justice Jackson was saying. The Federal judiciary would make a mockery of the military's ability to run the war if you turned every military decision into a Federal court trial as to who an enemy prisoner is. Justice Jackson, in the most eloquent fashion, told us what could come if you conferred these rights on enemy prisoners.

Here is what is odd. If I am a lawful combatant, if I am captured tomorrow as a member of the uniformed services of the United States, I do not have any rights under the Geneva Conventions to go to the host country's judiciary. We are creating, for unlawful combatants, enemy combatants, a right greater than someone who is captured as a lawful combatant.

Under the Geneva Conventions, there is no right to go to a court in any land to ask to be released. But in America, if you are an unlawful combatant, we are giving you your day in Federal court, after the military acts, which I think is an accommodation for the fact that this war is different. It is not lost upon this Senator this war is different. There will be no signing on the ``Missouri.'' I do not know when this war is going to end. I do not want an enemy combatant decision to be a de facto life sentence without robust due process. But I do believe, if the choice is between letting them go or having them die in jail, if they are still a threat, let them die in jail.

I do believe every enemy prisoner is not a war criminal, and the choice for the country is not ``let them go or try them.'' Because that is a false choice in the law of armed conflict. It would not serve us well to say that every American captured in the next war is a war criminal because they are performing their duties. You only confer war criminal status on someone who goes outside the law of armed conflict. So we are making some decisions for the ages.

I am all for due process. I am all for scrutiny and transparency because I want my country to win the war not changing whom we are. But I do not want us to fundamentally change the relationship between the military and military threats. Our judges have a role to play. The Congress has a role to play. The military has a role to play. Keep everybody in their lanes, and this will work.

The Senator is correct in two fashions. It says no military commission can try an American citizen. A military commission at Guantanamo Bay cannot, as a matter of law, try an American citizen, even if they are an enemy combatant. Someone from America could join al-Qaida, but they are going to be tried in our Federal courts if they are caught.

What we are trying to do is have a military commission consistent with the Uniformed Code of Military Justice to try people. The difference between now and Nuremberg, I say to the Senator, is the war is still ongoing. The reason we are not going to release all the information as to why Shaikh Mohammed is an enemy combatant is because that is very sensitive information. We will give a summary to the public. And the courts will get to review that decision in full in a classified setting. But I cannot stress to you enough we are at war.

The last time we had a Federal trial where somebody tried to blow up the World Trade Center in the early 1990s, some of the information in that courtroom setting that had to be released wound up in a cave in Afghanistan. I will talk about that later. We are trying to balance the need to be safe and the obligations we have under the law of armed conflict. I think we have struck a good balance. If I am wrong, the Supreme Court will tell me. Please, just to my fellow Senators, let this case go to the Supreme Court, see what they say, and we can fix it if we need to. That is all I am asking.

I am the biggest advocate that an American citizen such as Mr. Padilla should be tried in Federal court. The man who was caught working with the Taliban in Afghanistan was in Federal court. Moussaoui was in Federal court because we didn't have the Military Commissions Act. An American citizen will be tried in Federal court with all the rights of an American citizen available to them.

Well, that is a very good question, and I think that is something we actually need to sit down and look at, that situation where you are not a citizen, but you are here on a legal status. I would be, quite frankly, very comfortable to clarify that, if anyone ever finds themselves in that category, to say, no, you are going to have all the rights of an American citizen.

What I am trying to do is make sure that we don't change 200 years of history. The people who assassinated President Lincoln, within 30 days they were caught, tried, and executed in a military commission format. We have had American civilians tried in military commissions in times of war, but they were reviewed by our Federal courts. Some of the German saboteurs who landed during World War II, I

think one or two of them actually were American citizens who left to go back to Germany to aid the enemy. They got tried by military commissions, and the Supreme Court reviewed their case.

What I am saying is that an enemy prisoner, a noncitizen, since time began in our country and in every other country, has been treated under the law of armed conflict, not domestic statutes. That is a distinction of great significance, and we don't need--the due process rights these enemy combatants, noncitizens, have are greater than the Geneva Conventions require, and every enemy combatant had their day in Federal court but in a way consistent with what judges are trained to do.

I don't believe it is in our national interests during ongoing hostilities to take away from the military the ability to classify who they believe to be a threat, what status that person has acquired based on their activities. I do believe the courts can look at every case and see: Was due process afforded? Did the evidence support the finding? That, to me, is the magic combination, and habeas destroys that combination.

It is a great area to discuss. I thank the Senator. I yield the floor.

I would be honored to respond to my friend from Pennsylvania.

No, sir, I am not.

I have been told that the order the Senator is talking about was implemented in the Rasul decision, and it would be a correct statement of Mr. Wolfowitz to make.

Rasul said that habeas rights attached to Guantanamo Bay

detainees until Congress says otherwise, and that is the

difference we have. I read Rasul to say, since Congress

hasn't spoken under 2241, Guantanamo Bay is within U.S.

jurisdiction and the statute would apply to anybody held

at Guantanamo Bay. It is not an overseas location. Until

Congress speaks, under 2241 you will have the right.

Congress has spoken. We spoke last year. We took 2241 and changed it. We excluded noncitizens and any prisoners from the habeas rights under 2241 and, quite honestly, that issue has gone to the D.C. Circuit Court of Appeals, and we won last week.

OK.

If I may respond, I think it is not remotely fair to say that the Department of Defense has conceded that habeas corpus rights should be given to detainees at Guantanamo Bay. Once Rasul was decided and the Government lost, that it was outside the jurisdiction of the United States, the Rasul case said: Until Congress acts, you will have a habeas right. The administration has come to me and other Members of this body since that decision and has been begging us to address 2241. The Supreme Court, in three separate decisions, has said Congress needs to get involved. The administration's theory was, there is no room for Congress in the courts.

Here is where the Senator and I have been partners. I have always believed the executive branch has to collaborate with the Congress, and they have been hard-headed about this and they wound up losing in court. They lost on whether it was outside the United States. Once the court ruled 2241 applied, the DOD had no other choice but to tell people: This is a statutory right. They were telling people at Guantanamo Bay: This is your statutory right. They were coming to me and other Senators saying: Please change 2241 because it is hampering the war effort.

That is exactly where we find ourselves. We took the input of the administration, we voted last year, we stripped habeas from 2241 where district court judges could make military decisions, and we are replaced in the appeals process where Federal courts do look at what the military does after they have decided. I think not only did the D.C. Circuit Court of Appeals uphold that as a proper thing to do but the Supreme Court will also.

So my belief is that it was our decision as Congress as to whether to give these enemy prisoners habeas rights, unlike any other war. We decided with Rasul we didn't want to do that. I think it is the best decision we have ever made. If you had asked this Congress on September 30, 2001: Would you want to create a Federal court action for any al- Qaida member caught to go into Federal court and bring lawsuits against our own troops alleging not enough exercise, bad DVD access, you name it, we would have said no. That would have been crazy. Why would we want to give this group of people who are trying to kill us all rights that we didn't give the Japanese and the Nazis who were trying to kill us all?

So now we find ourselves in Congress filling in the gap that the court found. The Congress has spoken. We told the courts, D.C. Circuit Court of Appeals: No habeas rights under 2241. We substituted another procedure that I think makes sense, and the court found out that we did it in a constitutional manner, and I think we are going to win at the Supreme Court.

But having said that, if there are other ways to improve due process where the Congress can make this CSRT process better, count me in. But I am not going to sit on the sidelines and watch the Federal courts do something they are not trained to do before Congress blesses it. If the Senator is

right that the Supreme Court says apart from 2241 an enemy prisoner, noncitizen, has a constitutional right to habeas, then I would be wrong. I would argue that our procedures under the D.C. Circuit Court of Appeals method of going to challenge the military is an adequate substitute. But I am firmly convinced that our courts are going to say there is no constitutional right for these prisoners, like there was none for Japanese and German prisoners, and that Congress has made a good decision to take the Federal courts and put them behind the military, not in front of the military.

All I can tell my colleague is that issue went up to the D.C. Circuit Court of Appeals 2 weeks ago and they said just as clearly as you can say it that there is no constitutional right for a noncitizen enemy prisoner classified as such by our military during hostilities to come into our Federal courts. Just like Justice Jackson said in 1950, that would be a disaster. I just can't believe any Federal court is going to say that Sheikh Mohammed, the mastermind of 9/11, who is an al-Qaida member, gets more rights than the Nazis. I just don't believe they are going to do that. If I am wrong, I will come to the floor of the Senate and say I am wrong. But I think I am right. The D.C. Circuit Court of Appeals agrees with me, and I believe we are going to win at the Supreme Court, if we can let these judges look at something without changing it every 30 days.

Let's give this a shot and see what happens. We will know soon. I apologize, but I have to go.

I can tell you that the Court will soon tell us. If I can give you what I think is the right answer, the combat status review tribunal, as to whether they provided adequate due process is on appeal now to the Supreme Court. The Supreme Court will soon tell us not just about war crimes legislation but about the CSRT provisions and whether they are constitutional.

I argue we are going to win on that one because 190-1 of the Army manual was the model that set up the combat status review tribunal. What right does a person have under the Geneva Conventions, in a time of war, when it comes to the question of status? Article 5 says competent tribunals--and all over the world that competent tribunal is not a Federal judge or the equivalent in another country, it is a military tribunal. If the Court rules the combat status review tribunal doesn't afford due process, I will sit down with you and others to make it comply to the Court's decision. I have no desire to take somebody from any part of the world and put them at Guantanamo Bay if they should not be there. That doesn't make America better or stronger. I do believe, contrary to the laughter in the courtroom, that the people best able to determine whether an enemy prisoner is a threat to our country or, in fact, an enemy prisoner is not some circuit judge or district court judge anywhere in America who was never trained in this, but military officers who are trained in making those decisions. They are the ones I trust. They have done it in every other war; they should do it in this war. I am willing to have their work product looked at by the Federal courts, and that is going on right now. We will soon know the answer to that question. Are CSRTs constitutional? If not, we will fix them.

I hate to leave. I have enjoyed this debate.

I believe they will be constitutional. If you think there has been a miscarriage of justice in any case, that will go to court. If you think something happened in the CSRT that is laughable, then the Federal court is going to get to look at every case. I can assure you and every other American that every decision made by the military on Guantanamo Bay will work its way to the Federal court, and our judges will look at the record and the process, and they will tell us in individual cases and as a group whether this works. Give them a chance to do it.

With that, I have to leave.

No. This is an administrative hearing. The enemy combatant status determination is not a criminal decision. It is, in an armed conflict, an administrative decision where the procedure is set up. I will get you the regulation and we will introduce it, but it is article 5 on steroids. It has presumptions, rebuttable presumptions, and you have an annual review board on what should be determined to be a enemy combatant. You have a new hearing every year on whether new evidence came in, whether you are still a threat to the country, and whether you have intelligence value. Two hundred people have been released at Guantanamo Bay because they have gone through the process and the military determined they are no longer a threat. Twelve of the two hundred have gone back to killing Americans.

There is no perfect system. We are trying to be fair. God knows we want to be fair, but I tell you what, in close calls between letting someone go who the military thinks is a member of al-Qaida and killing other Americans and innocent people, I am going to make sure they stay in jail and let the judges determine if we have done it fairly. I will not sit on the sidelines and open the gates to people who have been caught in the process of aiding the enemy or becoming the enemy just because we are trying to create new rules for this war that we have never had in any other war because some people don't like Bush. Bush made a lot of mistakes, but this war is going to go on long after Bush is gone.

If you let these people out of jail, at least 12 of them are going to come back and kill you.

With that, I must leave. We will continue the debate.

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

Mr. President, I have spoken to the manager of the bill, and I am--with his permission and their permission--going to speak. But as soon as they are ready to reclaim the floor, to close this down, I am prepared to stop at that point, or before.

Mr. President, I know there is not a lot of time, but the amendment that is at the desk, No. 383, that I have--I ask it be called up and be considered.

This is all about rail safety. The Federal Government currently has no say on where 90-ton rail tankers, filled with chlorine or other hazardous chemicals, are shipped around the Nation. The Naval Research Laboratory, at my request, some months ago, issued a report. The context of my inquiry with them was: What would happen if one of these 90-ton chlorine gas tanker cars exploded--for example, where a terrorist put C-2 underneath there in a populated area and blew it up?

What made me think of it was, you may remember almost 2 years ago now, out in North Dakota, one of these tankers leaked, and the end result was a number of adjoining towns, small towns, had to be evacuated because it was so deadly.

So I asked the question of the Naval Research Center. As you know, some of our best scientists in the world are there. I asked: What would happen? What would happen if a 90-ton tanker containing chlorine were to be blown up in a major metropolitan area?

Mr. President, I ask unanimous consent that the report submitted to me be printed in the Record.

Let me summarize the report.

The answer was ``over 100,000 people could be seriously harmed or even killed in the first half an hour.'' Let me say that again. One of these tankers filled with chlorine gas--and there are hundreds, up and down the road, going through major metropolitan areas, from Los Angeles to New York and everywhere in between--what would happen if a terrorist were to explode one of those in a major metropolitan area? The answer was: ``over 100,000 people could be seriously harmed or even killed in the first half an hour.''

Said another way: What happens if one of these is blown up in a freight yard in Philadelphia, PA, right along the Schuylkill River, 10 blocks, 15 blocks from City Hall, the University of Pennsylvania, Drexel University--a very populated area? Within one-half hour, 100,000 people could be seriously harmed or even killed.

How long would it take to evacuate that area? Imagine evacuating downtown New York City, Baltimore, Miami, Seattle--you name the city.

So what is the problem? Well, the problem is--and we have seen in recent reports--insurgents in Iraq are using chlorine in their attacks on civilians. There is little doubt terrorists who are targeting us here at home are paying attention. In these roadside bombs, they are-- thank God they have not gotten it down very well yet--but they are injecting chlorine into that carnage they cause because they know the consequence of the dissemination of the highly toxic substance in a populated area.

Nevertheless, we continue to allow these 90-ton--that is a standard: 90-ton--rail tanks containing chlorine and other hazardous chemicals to roll unprotected through the hearts of our largest cities in high- threat areas. We know the rail industry has adamantly opposed any attempt to allow local officials, in conjunction with the Department of Homeland Security and security people, to reroute these tankers.

Now, again, look where this tanker is sitting, as shown in this picture. Do these buildings look familiar to you? This is an actual photograph of a 90-ton chlorine gas tanker car sitting in the direct view--if you look over the top of it, you can see the Hart Building, you can see the Dirksen Building, and you can see the U.S. Capitol.

By the way, I know my friend, the Presiding Officer, a former board member of Amtrak, a guy who has fought very hard to protect Amtrak--we take the train almost every day together back and forth to and from Delaware--I say to my colleagues, go on down to the station this afternoon and follow us down whenever we finish and get on the train. If it is not an Acela, stand in the back car of an Amfleet train. You can look out the back window. Watch as we pull out of the station. Tell me how many cops you see. Tell me how many cameras you see. Tell me how much protection exists there.

Look at this tanker car, shown in this picture, sitting right out there--in the middle of nowhere, in the middle of everywhere.

So, folks, the idea we do not even have as an option the ability of our security people and the mayors and local

officials to suggest these tankers bypass their cities so, God forbid, if something happens, they are not as high a prize of a target--by the way, the less sensational damage able to be done, the less likelihood it will be picked as a target.

Because someone could legitimately argue: Biden, you are taking this out of the route--and we have other maps showing the routes of the various alternative routes that could be used to avoid the major cities. Now, they could say: You are going to be going through more rural areas. Yes, serious damage could be done in rural areas, but the prize for the terrorist is much lower. The likelihood of them concluding that instead of coming down from, for example, Newark, NJ, all the way down into Augusta--you can, in fact, reroute these on Norfolk Southern, which goes through much less populated areas.

People legitimately say: Aren't you putting those folks at risk? No matter where these cars are, we are at risk. But again, where is the likely target? Where are terrorists going to risk their lives to be able to go in and do damage? They will do it where the most people are.

So I know the rail industry, as I said, is adamantly opposed to amendment No. 306, and is likely opposed to the updated version we will vote on today. But in the face of such risks, I do not know how we can let their opposition determine whether we go forward.

This amendment is very limited. It simply states the Secretary of Homeland Security, not the rail industry--the rail industry is not the bad guy--should determine the most secure routes for the shipments of the most dangerous chemicals, and that ownership of the track is not to be considered in making this risk-based determination; meaning, if you have something going down on a CSX track that is owned by CSX, they should be able to use and be diverted to a Norfolk Southern track. I could give you examples all across the country, as the Presiding Officer knows.

Again, all I am saying is, let the Department of Homeland Security determine whether the most dangerous chemicals are able to be diverted around the most populated areas in our country. And do not--do not--in fact, use as an impediment the idea the track upon which it is being carried is not owned by the company whose car is on that track.

That is all we are doing, Mr. President. The amendment would apply to only .36 percent--less than a third of a percent--of all the shipments that occur on our rail system. It only applies to through-shipments; it does not apply to the destination city. Some of this stuff goes into large populations, where that is the end point. It doesn't say it cannot go there, but it does say we should reduce the probability of catastrophic damage by allowing them to be rerouted, if that is the judgment of the Department of Homeland Security.

A similar amendment was passed by voice vote in the House Homeland Security Committee today. Not one Republican or Democrat spoke in opposition to this measure. This amendment will ensure that the Senate is on the right side of the issue as well.

Mr. President, I was asked by my colleague from Connecticut, one of the two managers, that he be added as a cosponsor. I ask unanimous consent his name be added.

Mr. President, I understand that a man with whom I hardly disagree, Senator Inouye, has reservations. I hope he will reconsider those reservations. Again, all we are doing is letting the Department of Homeland Security, in conjunction with local officials, make the judgment whether the risk is so high that it warrants it being rerouted. Of all the cargo on all of the tracks in America, we are talking about .36 of 1 percent, all that is transported on rail. So we are not asking much. The downside of us being mistaken is significant.

I close by quoting from the rail industry's letter opposing this amendment. They say:

Rerouting would not eliminate the risk, but instead shift

it from one population to another.

That is true, but this amendment says the Department of Homeland Security, not the rail industry, should determine how to weigh and respond to this known potentially catastrophic risk. What did we just debate last week on the floor? The allocation of resources for Homeland Security should be going toward the danger lines. There is nothing that is risk free--nothing. It is a little like my friend from Delaware and I have heard so much every time we come up with rail security legislation. We are told we cannot secure every mile of track. That is true, we can't, but there is a big difference with a terrorist taking a single train off a track somewhere in rural America and a terrorist taking a train at 140 miles an hour into the most visited area in Washington, DC, Union Station, at a high speed.

There is a difference between blowing up a tunnel underneath the Chesapeake Bay or the Hudson River and blowing up a tunnel in the middle of some rural area. Terrorists pick targets for the greatest effect. So the idea that we would not reroute--if the Department of Homeland Security determined it made sense--a series of chlorine gas tankers from a major metropolitan area to a more rural area seems to me to be such a silly argument to make.

The idea is, how do we reduce the risk for the most people of the United States of America? Again, I will end where I began. When this was called to my attention some years ago, I went to the Naval Research Laboratory and I asked them--and I have included this in my statement-- to tell me what would happen--and, again, it doesn't take much for terrorists to figure out a way to puncture a hole in the bottom or the side of one of these tanks by use of explosives or other devices. The answer was that if that were to occur in a highly populated area, ``over 100,000 could be seriously harmed or even killed in the first half hour.''

Imagine how many people we get to evacuate reasonably so that there is essentially no one left in a half hour. If the gun goes off right now, how long does it take downtown Manhattan or downtown Washington, DC, or Capitol Hill to evacuate people so they are not around? If you don't evacuate--to say it another way--within a half hour, a whole lot more than 100,000 people will be seriously injured or will die.

I know the Senator from Connecticut supports this amendment. I don't know what the view of our colleague from Maine is. I hope they understand how limited this amendment is, how consequential it is. I hope my colleagues, when it comes time to vote, will vote in favor of this amendment.

I thank the Chair and I thank the managers. I yield the floor.

Mr. President, I appreciate the comments of the Senator from Maine. She may have misunderstood two aspects of the amendment. One, it doesn't mandatorily require rerouting at all. It says the Department of Homeland Security can reroute, if they determine it should be rerouted.

No. 2, the freight industry, where they made the judgment on how much further in distance it would travel if, in fact, you were to reroute, factored in only that it had to be rerouted on their own tracks. So the idea being that they would not be able to--this happens all the time, where other tracks are used; for example, the Chesapeake using Norfolk Southern track.

No. 3, the Chamber of Commerce is opposed because it costs more money. A lot of these things cost more money. Will it cost more money to be able to reroute up to one-third of 1 percent of the freight on rail? Yes. But I ask the rhetorical question: What will it cost if one of these tankers goes off in a populated area? What will the cost then be to the very businesses that are most concerned about it?

Fourth, this doesn't affect destination. If the chlorine gas tanker car is going to a water treatment facility, it still goes to that facility. Nothing changes. What we could have changed is what we did in Delaware, not use chlorine. There are other means by which water can be purified. We have done it in our home State. That is what you should do. But that doesn't stop this car, or any other car, from going to such a facility.

Let me emphasize again that there is no prohibition on end point distribution. If the car is designed to go to a facility in the center of a city, it goes to the center of the city. There is nothing you can do about that. That is very different than--I am making up these numbers for illustration--you may have one of these tankers going in once a month versus 50 going through the same city in a month or 100 in a month. This is all about percentages. You play the percentages. Again, it is true, rerouting may render cities in North Dakota--well, they would not be rerouted in North Dakota, but I referenced the small towns. There was a chlorine gas tanker car going across the top of the Nation and, thank God, what happened was it went off in a rural part of the world. You were able to evacuate the three cities and nobody died. Had that same thing occurred in the middle of Chicago, you would not be able to evacuate the city. We would not have had time.

So, yes, it is true. Are you going to put a different population at risk? Yes, about one-tenth, one-twentieth, one one-hundredth or one one-thousandth of the population, depending on where it is rerouted. So it is a little bit like saying: Why do we spend so much money worrying about the Sears Tower? It is there, it is big, and it is a target. Is it possible that a terrorist would go into a building that is two stories and blow it up? Yes. Can they fly an aircraft into a rural town grain elevator? Yes. But that is not what we are worried about. They are not likely to do that. They are likely to fly a plane, plant a bomb, do something devastating where the most people are.

So I find it to be a totally disingenuous argument. This is about the bottom line. I measure the bottom line--as I suspect all of us would if we thought about it--in human life.

The bottom line, in terms of the dollars, the impact that would occur in a catastrophic circumstance is if there is a town of 1,000 people and a town of 6 million people, there is a phenomenal difference whether that chlorine gas tanker car gets exploded.

Let me summarize. It is indicated by the Department of Homeland Security again that an explosion of a rail tanker carrying chlorine would kill 17,500 individuals, require the hospitalization of another 100,000--and only then if we evacuate within a half an hour. We can evacuate a city of 1,000 people in half an hour. We cannot evacuate a city of 4 million people in half an hour. So it matters.

If this rail tanker goes off in New York City, my friend from New York is going to be on the floor again pointing out the catastrophic impact. If it goes off in rural Delaware, it will be a tragedy for me and my constituency, but there will be a significant magnitude of difference.

So everything we do in terms of allocation of resources goes in this place to deal with protecting the most people who can be protected: The shipment originates or the point of destination is in the high-threat corridor; no practical alternative routes exist. If they don't exist, it doesn't get rerouted. Rerouting would not increase the likelihood of an attack. It would decrease the likelihood of an attack because people attack targets that have the maximum impact. This would not increase the total number of cars on the track. It would allow the potential for homeland security to reroute them away from the places that would do the most damage.

I thank the Chair and yield the floor.

Mr. President, if the Senator will yield, she is correct, but it only requires the Secretary to do it if he or she concludes that there is a safer way to reroute the shipment. If the conclusion made by the Secretary is that in a high-risk corridor the rerouting would not result in an increased safety margin for the shipment, then he or she need not reroute it. But it is correct, the presumption is, in a high- risk corridor we reroute if it is not a point of destination or origin but only if the determination by the Secretary is that the shipment, in fact, would be safer to be rerouted. It is on page 4 of the amendment. It is section 2, subparagraph E, ``Transportation and Storage of High Hazard Materials through High Threat Corridor'' areas. It says:

In General.--The standards for the Secretary to grant

exceptions under section

(d)(4) shall require a finding by the Secretary that--

(A) the shipment originates or the point of destination is

in the high threat corridor;

(B) there is no practical alternative route;

(C) there is an unanticipated, temporary emergency that

threatens the lives of persons or property in the high threat

corridor;

(D) there would be no harm to persons or property beyond

the owners or operator of the railroad in the event of a

successful terrorist attack on shipment; or

(E) rerouting would increase the likelihood of a terrorist

attack on the shipment.

The bottom line is that it should be left to the discretion of the Secretary to decide not to reroute rather than the privately owned railroad. I thank the Senator for her clarification.

I yield the floor.

Mr. President, there is no question that unions have these rights for TSO agents. This is a commonsense approach. What is not common sense is to put in jeopardy every traveling American for the sake of paying back a raw political debt. That is what this debate is about. Do we jeopardize safety, do we jeopardize the flexibility, do we jeopardize the fine work that has come from an incentivized system that has very low turnover now compared to the rest of the industry, that has a bonus system for great performance, a performance-based system, to give them what they need and not jeopardize the traveling American public? The McCaskill amendment actually hurts our flexibility and our security.

As a matter of fact, we had a hearing after this bill was on the floor, wherein Mr. Hawley and Mr. Gage came before us and talked about union representation of the TSO officers. Very revealing statements were said, especially by Mr. Gage. When we raised concerns about flexibility during emergencies and complicated issues that required absolute flexibility to move people around at all times, it was the testimony of Mr. Hawley who said they have to plan, that they are in an emergency all the time, which means they have to have the flexibility all the time. Mr. Gage's response to that was: These are sometimes bogus emergency situations.

Well, the reason we have had such an effective airline screening program is because we call everything an emergency and plan for it as an emergency, so we never have an emergency.

This amendment will gut the flexibility of the TSA in doing the very thing we have asked them to do; that is, protect us and have an institution that is viable, responsive, and nimble to protect us, without having to have a shop steward ask them what we can do and when we can do it.

Now, the McCaskill amendment says we will let you do that in an emergency, but the fact is, we are in an emergency mode all the time. So whatever contract we might have signed is not going to have any bearing anyway. So the contrast for the American public on this vote-- and we know this is going to be a party-line vote. Even those Members who want to vote the other way have been told not to vote the other way. We know this is a party-line vote about paying back, so Mr. Gage and his associates can have 40,000 people a month pay $30 a month to put $12 million to $17 million in the coffers of the employees union. That is what this is about.

This is not about security for this country and flexibility with the TSA. I urge a vote against the McCaskill amendment and a vote for the Collins amendment.

I yield the floor.

Mr. President, on rollcall vote 62, I voted ``yea'', it was my intention to vote ``nay''. I ask unanimous consent that I be permitted to change my vote since it will not affect the outcome.

Mr. President, first of all, let me compliment the chairman and ranking member for their foresight in making sure we have the capability to have interoperability, with the wisdom of taking spectrum and putting it specifically for that.

I want to answer several of the questions that have been raised because they are somewhat peculiar to me.

But before I do that, Mr. President, I ask unanimous consent that Senator Kyl be added as a cosponsor to this amendment.

Mr. President, I say to the Senator, I would also like to note that one of the members of your committee, who was instrumental in bringing this interoperability grant program to the floor, is also a cosponsor of my amendment, realizing we do not need both programs and that they need to be combined.

Now, what does DHS tell us about the present grant program? Here is what they tell us. And I say to the American public, you ask yourself if you want your Government to run this way. What they say is: We can meet the September 30 deadline, and we may be able to tell you who is going to get grants, but we are not going to be able to tell you, anywhere close, how much money they are going to get. So they can tell them who will get the grants because that is what the law says, but they will never have the capability, for several months thereafter, to know how much money they are going to get. So nobody is going to buy anything until the actual grants are going to be awarded.

Let's clear up the difference between the Departments of Commerce and Homeland Security. No. 1, Homeland Security has the authority for interoperable communications. I do not care where this grant program is, quite frankly. I do not care if it is at Homeland Security or at Commerce. I do not care. But what I do know is, out of that $1 billion, the only thing the Department of Commerce is going to keep is $12 million with which to use to announce the grants. That is what they have told us. So $988 million out of that--the rest of that money--is going to go for grants, administered by, controlled by, run by Homeland Security.

So if the problem with my amendment is that the money isn't going to get out there to do it, Homeland Security has already said the money isn't going to get out there to do it. Commerce has already said the money isn't going to get out there to do it. We know who will get money, but the money won't get out there regardless of what they have said, because they just came to an understanding of the agreement 3 weeks ago on administering this money.

I think it is very wise what the chairman and ranking member have done in terms of allocating resources. As a matter of fact, I applaud them for that. I think it is wise to dedicate resources to certain things when we sell spectrum. I would tell my colleagues most Americans would say: You are going to give grant money, but you don't know how much you are going to give and you are not going to give it on the basis of competition in allocation of those resources because you have a date to meet that doesn't fit with fiscal responsibility. It doesn't fit with the best outcome or the ability to follow up to see what happened with the money. So we do have a date in the law by which they have to do it. But how are they going to do it, because the date in there is wrong. They are liable to give the wrong people too much money and the right people not enough, because we are telling them what they have to do.

The second thing--let me put up a chart. These programs are identical, even though you claim they are not. Let me show my colleagues how they are identical. Under the PSIC grant programs, they are State and regional planning; under the DHS program, they are State and regional planning. Under the system design and engineering, PSIC; same thing under DHS. System procurement and installation; same thing under DHS. Technical assistance, the same. Implementing a strategic technology reserve is the only difference, but guess where it is made up. ``Other appropriate uses as determined by the administrator of FEMA.'' Do you think they are not going to put in that reserve there? They certainly are. They are going to do it.

So there is no difference in the grant programs whatsoever, other than the deadline, which isn't going to be followed anyway. Like I say, I don't care if this is at Homeland Security or Commerce, I would as soon it be at Commerce in terms of the spectrum.

But the fact is the American people shouldn't have to pay for the administration of two separate programs running parallel with two separate sets of requirements to Congress. We ought to get them together. We ought to figure out how we do it so we have one grant, and if, in fact, we need $4.3 billion. The problem is, we don't know how much money we need. We are throwing money at it.

The second question I would ask is if this program belongs at Commerce, why Commerce agreed to give 99.9 percent of it to FEMA and to the Department of Homeland Security. They don't think it belongs there.

The other point I would make in rebuttal to the Senator from Hawaii is this amendment doesn't decrease funding at all. This takes $3.3 billion and an amount greater than $1 billion and combines it so the same amount of money is there, except it is going to make the money be spent better. It is going to allow us the time to do it.

I agree we need to get money out to our primary responders. This isn't about trying to hold that up. I am not trying to do that. But the Department of Homeland Security has already said the money isn't going to go out by your day. There isn't one application right now at the Department of Homeland Security for this money. We all know how Washington works. They haven't even written the requirements for the grant applications yet, which will take another 90 to 120 days. So we have a laudable goal that is not going to be accomplished, and if it is going to be accomplished, it will be accomplished in a very inefficient and wasteful way, which the American people don't deserve.

I think this is a very good chance for us to talk about what is wrong with us in the Congress. We are working at cross purposes. We have one committee working here and one committee working here, rather than solving those problems for the best interests of our country. I want Hawaii to have everything it needs in terms of tsunami prevention, in terms of interoperability. I know there are special requirements in the State of Alaska because line of sight can't be used and much of our emergency frequencies require some of that. I believe we can take care of those problems and combine these grant programs in a way that the American taxpayer gets value, in a way where we can measure the accountability of what we do, in a way in which we can have transparency for the dollars we get in reauctioning the spectrum, and plus the other $3.4 billion that is going to come out in terms of appropriated funds for these other grant programs. The American people want that. They deserve that.

To me, this isn't about a turf battle of control. To me, this amendment is about common sense for the American public to combine two programs into one so we spend less money, and we don't duplicate things and we don't duplicate efforts.

I understand and appreciate very much the long service of Senator Inouye and Senator Stevens and their commitment to making sure these things are coming through. I am not trying to be a fly in the ointment to mess up what are very good-intended results, but I am a realist. The very things my colleagues have asked to happen in the Budget Act that was passed are not going to happen. Homeland Security has said that. So if those things aren't going to happen, and if the fears of what isn't going to happen can be allayed, can we not figure out a way to put these programs together where the American people get the best value, and also as a part of my amendment which says: Can we look to the private sector to not just give us interoperability in Hawaii among National Guard and first responders, but how about between California and Arizona, or Texas and Oklahoma, or Maryland and New York, if they need Maryland first responders there, which has not been addressed in any of the legislation that has been put forward. There is great technology out there. There are great companies out there that could do that.

Again, without desiring to interfere or upset, I believe the application of some pretty commonsense principles ought to be applied to these two grant programs. I am willing to discuss with the chairman and the ranking member how to do this a different way. I am raising it on the floor because I think the taxpayer is not getting good value, and I think we ought to talk about that.

The National Taxpayer Union endorses this amendment. The Citizens Against Government Waste endorses this amendment. Your very own committee member, who was one of the first people to say we should have auctioned spectrum for first responders, is a cosponsor of this amendment. So I am willing to defer to what the ranking member and the chairman of this committee want to do, but I think we ought to stick it out here until we can work a way for the American people to get better value, better clarity, better transparency, and better accountability for these funds.

I yield the floor.

First, let me sincerely apologize to the Senator from Hawaii if he took my words to mean that. I did not mean that. I referred to his words in terms of tsunami. I have no inference whatsoever that this has any parochial interest of either the Senator from Hawaii or the Senator from Alaska. But it is interesting that the debate doesn't ever come back to the fact of whether we have two programs; it is all about the money. The fact is the money will not get out there. Homeland Security has already said that.

Now, the reason the $350 million--not thousand--was chosen is because at the same time this happened, you are going to have another $1 billion come through in--the fiscal year is going to be over this year on September 30 of 2007. The worst problem that happens in our Federal Government today is the indiscriminate, rushed issuing of grants, of throwing money at something, rather than a measured response of grants.

These aren't competitive grants, I would remind the people who are listening to this debate. There is no competition for this money. You don't have to compete by saying you have a greater need than somebody else or you have a greater risk than somebody else. This is money that is going to go out, period. It is not based on competition for the greatest need or the greatest risk.

The last thing we need to be doing is having a grant program that is rushed so we are not making sure the money is well spent. In the last 2 years we have discovered $200 billion of waste, fraud, abuse, or duplication in the discretionary budget of the Federal Government--$200 billion. We would have enough money to pay for the war, pay for expanding the military in this country, and cutting our deficit in half if we would do our job in terms of eliminating duplication, fraud, abuse, and waste.

What this amendment is about is let's don't waste any of this $1 billion these two gentlemen have so wisely put for one great purpose.

So that is my intention today, I assure the Senators from Alaska and Hawaii. We all know how homeland security works. We have seen all too well some of the failings and lack of efficiency and lack of responsiveness in that agency. To now assume the other side of that, that that is going to happen overnight because we have mandated by law--if it does, it will be a very poor choice of the use of this money.

I thank the Senator from Hawaii and the Senator from Alaska for their debate on this issue. My goal was to have a debate about whether we should have two programs and whether we should waste money. It is not about the debate of whether we need to have 911 interoperability and the functionality that needs to be there in all the States. But we should look at the whole as well as the individual. I compliment them on finding a funding stream that doesn't add to our children's debt. Unfortunately, we have not done that in this bill with the other grants, which I think is a mistake.

My hope is we will be able to have a vote on this amendment before we go to cloture--or even after cloture--because it is germane, and we can defend the germaneness of this amendment.

With that, I yield the floor.

Mr. President, I send to the desk two amendments. I am only going to speak to one, but I would like to send both to the desk so I have them offered. One is an amendment relating to funding of the homeland security effort, and the other is one relating to

the ability for cities and States to reroute hazardous waste around their major metropolitan areas.

Mr. President, I ask unanimous consent that the reading of the amendments be dispensed with.

Mr. President, with regard to the first amendment, No. 383, which I am not going to take time to speak to today, is an amendment that allows cities and States to reroute hazardous material around their cities. In a nutshell, and I know no one knows this better than the Chair, and I mean that sincerely, these are 90-ton chlorine gas tank cars that go rolling through Newark on their way down through the corridor into my State and across my State.

I once asked, not too long ago, the Naval Research Institute to give me an analysis of what would happen if one of those were to blow up in a metropolitan area. They said that 100,000 people would die--100,000 people would die. Yet this administration has opposed and we have not committed to allowing cities to reroute this hazardous material around their major metropolitan areas.

That is one amendment which I will come back to at another time.

At this moment I want to now speak to an amendment that is much broader, Amendment No. 384.

We often say that September 11 changed everything. Well, it changed everything except it didn't change our behavior. It changed everything except

when we look at the budget of this administration in the last 6 years, or 4 years since then, and if we look at our tax policy since then, we look at what hasn't changed.

My dad used to have an expression, Mr. President. You probably heard me say it before: Show me your budget, I will tell you what you value.

Tax cut after tax cut, overwhelmingly tilted to those who were at the highest end of the tax bracket, is what this outfit has valued. The truth is, we seem not to value protecting our cities, our homeland. The truth is, as the Presiding Officer knows better than anyone, living on the east coast in a State such as mine, only much larger, you know what the costs of the 9/11 Commission recommendations are. You know how few dollars we have spent implementing the recommendations. Literally from your home county, you could see the buildings collapse, the World Trade Center towers collapse. Thousands of people from your State were significantly affected, many were killed.

We all ripped out our hair about how this was so terrible; we were going to not let this happen again. We went out there and took a real good look at what needed to be done when the 9/11 Commission came along. Precious little was done. Yet during the same period of time we made sure to help people earning more than a million dollars a year. I am not picking on them. I am happy. I hope my grandkids make over a million dollars a year. I hope everybody in America can. I have no problem with anybody making hundreds of millions of dollars.

One of the things we forget on the Senate floor is that those folks are just as patriotic as poor folks. Those folks are just as patriotic as middle-class folks. They didn't ask for these massive tax cuts. They are prepared to give some of them back in order to make the country more safe, but we don't ask anything of them. So what happens? Just for this year, for households making more than $1 million a year, to put this in perspective, they are going to get a tax cut of $45 million. If you look at it from 2008 to 2017, that aggregate tax cut, if you are at an income where you make more than a million dollars a year, is going to be $739 billion. Households with incomes of that magnitude obviously take a big chunk of what are the fiscal priorities of this Nation.

We just had a long discussion here about the grant programs and how we allocate funding to the various States. We debated that. But it is like rearranging the deck chairs on the Titanic unless there is actual money dedicated to provide for these needs. What we have not done is we have not ensured a funding source. We have not provided the money needed to implement the 9/11 Commission recommendations.

I say to my colleagues that we have money to fund these programs. When I raised this last year and I talked about how much money was needed, as my friend from New Jersey has, they said: Oh, we can't afford it.

Give me have a break. We can't afford it? We can afford over $700 billion in tax cuts for people making over $1 million a year, and we can't afford it? I will point out that it comes to about a $50 billion price tag over 5 years to implement all the 9/11 Commission Report. Can't afford it?

Let me point out that the Congressional Budget Office recently released a study indicating H.R. 1, the House counterpart to this bill, will cost $21 billion, but the Senate bill we have here only costs $17 billion. There are a few comprehensive estimates of what all the 9/ 11 recommendations would cost, but I did what you did, I say to the Presiding Officer, and what others did--I went to a bunch of very smart people. I have been involved in this, as you have, from day one. We went in and costed it out, what it would cost for the main recommendations of the 9/11 Commission. The truth is, we are easily able to fund it. It is a lot more than that; it is $50 billion over 5 years, roughly.

In addition we are not prepared in terms of homeland security relating to local cops, sheriffs--local police. If there is going to be somebody who is trying to put sarin gas into a complex in your State or mine, it is not going to be some brave special forces soldier in fatigues wearing night-vision goggles who is going to figure this thing out; it is going to be a local cop riding behind the arena and seeing someone getting out of a dumpster. If we are going to break up these rings, it is going to be intelligence, but also it will be a local cop walking a beat in Newark, NJ, or Wilmington, DE--or Newark, DE. ``By the way, those three apartments that have been vacant for the last 7 years, there are lights on in the window.''

What have we done? We slashed spending for local law enforcement. We slashed it $2.1 billion a year since this President has become President.

Show me your budget, I will tell you what you value. It is a little bit like taking care of veterans. Show me your budget, I will tell you what you value.

In addition, the study by the U.S. Conference of Mayors found that 75 percent of the cities in America do not have interoperable communications--75 percent. This is a disgrace. What do we need? We had Hurricane Katrina, we had 9/11--what else do we need to demonstrate that it is useful to have a local cop be able to speak to the National Guard that is called in, to be able to have somebody in the command center who can talk to everybody? Yet 75 percent of the cities do not have interoperable communications capability--one of the strongest recommendations made by the 9/11 Commission.

As I said, while there is not a comprehensive assessment, I have spent a lot of time talking to experts and found that roughly for an additional $10.3 billion a year, we can implement all of the 9/11 recommendations--all of them, including provisions in this title--and do other commonsense things we know will make us more safe, such as reinvesting in local police.

The bottom line is this: If we simply commit to taking back a small fraction of the cuts for those making over $1 million a year, we can pay for all the security upgrades we need. Here is how it would work. My amendment simply puts the Senate on record calling for the Finance Committee to report legislation to provide $53 billion in funding for homeland security to be placed in the homeland security trust fund. It is called a Homeland Security and Neighborhood Safety Trust Fund. From this trust fund, we require that spending be dedicated toward initiatives and grant programs authorized in this legislation, including the Urban Area Security Initiative, the State Homeland Security Grant Program, emergency management performance grants, and rail and transit security grants. It would reinstate the COPS Program, the FIRE Act grants, SAFER grants, and the Justice Assistance grants, which provide essential support to State and local police, allowing them to coordinate with the Federal Government. It would be funding enhancements in interoperable communications, improve port security, including working toward 100 percent scanning of cargo containers, and upgrade and better prepare the Nation's public health sector to respond to acts of bioterrorism and nuclear terrorism.

I ask all my colleagues in earshot of my voice, go to the largest cities in your States and go to the emergency rooms in your hospitals. Ask how many times they have to close down their hospitals. They send out to all the ambulance drivers in the entire region that would be serviced by them a statement saying: We can't take any more today. What in God's name are we doing to prepare these hospitals and infrastructure for a terrorist attack?

We also have to upgrade and develop new scanning technology to detect dangerous substances. That is what this money would be allowed to be used for.

When I introduced this legislation last year and got a vote, I explained how I would allocate the $10.3 billion. I put $1 billion in here for interoperability, I put in $1 billion to promote 100 percent cargo container scanning, $500 million to bolster the public health infrastructure, and $100 million to improve government-wide information sharing. In order to leave what should be left--I took out these specific allocations in order to give to my colleagues on the Appropriations Committee and the Homeland Security Committee more discretion on how to spend the additional money in the outyears. I withheld the specifics. It is just an order to the relevant committees to come up with how to spend that money.

Any way you slice it, this will leave the most fortunate among us still very fortunate but will take, from over $736 billion, $52 billion. No one in this Chamber can tell me that there is anyone out there who is going to say that is not fair. No one can tell me that will have a scintilla of a negative impact on the economy. No one can argue, I respectfully suggest--and I invite them to do it--that, in fact, these things are not needed, what I am talking about here. These were all talked about by various Senators.

The numbers are clear. Those who need the least help are getting the most from the current tax cuts, and those fortunate Americans are twice blessed. They are blessed by our efforts in this bill, and they are blessed by the fact that they are doing very well through their own hard work.

I have said before, of the many opportunities squandered since 9/11, the most tragic opportunity squandered by this administration is the failure to call our country together, to give all of us a part to play in response to the new threats we face, not just middle-class folks who are sending their husbands, wives, sons, and daughters to Iraq and Afghanistan to try to protect us.

But despite the rhetoric that calls upon the proud recollections of our national purpose in conflicts such as World War II and the Cold War, on this floor there has been an incredible vacuum of leadership. Those Presidents asked something of the American people. What has been asked except forfeit commitments to health care, education, and energy security? And where does that burden fall? It falls on working women and men.

Let me just say as my time begins to expire that I know those who are very well off. I know they are willing to do this. I had an opportunity to speak to a group of 50 people advertised to me as among the most wealthy people in the nation. It was a group of investors. I spoke before them, and I said to them that this is what I wanted to do. I said: Does anybody in here disagree with that? It was advertised to me that a significant portion of these people were actually billionaires. When I raised that question, there was silence in the room, and finally one guy honestly put his hand up.

He said: I am not too sure I am. I am not too sure you won't go out and waste the money.

I said: Will you support it if I come forward and do what I did in the crime bill I wrote years ago, I drafted years ago--set up a trust fund, and the money we take from this tax cut to get this $50 billion- plus will be put into a trust fund, and it can only be used for homeland security and neighborhood safety? Would you support it then?

I got an ovation, literally an ovation, mostly a standing ovation, I say to you, Mr. President, from these extremely wealthy people. The wealthy are ready to commit just as the middle class and poor are.

Mr. President, I end where I began. As my dad used to say, don't tell me what you value, show me your budget. Don't anyone on this floor presume to tell me, in the years I have spent here, that this country cannot afford to spend, over the next 5 years, $10.2 billion a year to make this Nation safer. Please don't anyone suggest that it is not possible to pay for this when, in fact, you have a tax policy that is so out of whack that even the people who are benefiting the most from it are willing to contribute to our national security. If we ask the sons and daughters, husbands and wives, mothers and fathers in each of our towns and cities to send their children, their husbands and wives to protect us abroad, we sure in the devil can ask the people making over $1 million a year--a total tax break of over $736 billion over the next several years--to contribute $10.2 billion a year out of that tax cut. I am confident they are ready. They just need to be asked.

I hope, when the appropriate time comes, my colleagues will favorably consider my amendment.

I yield the floor.

Amendments Nos. 316 and 342