Floor Statements

Mr. President, I would like to congratulate the ThunderChickens on winning the 2006 FIRST Robotics Competition. This is a tremendous accomplishment, and I am delighted to recognize the impressive result of their hard work, dedication, and commitment.

The For Inspiration and Recognition in Science and Technology, FIRST, program provides aspiring engineers with an opportunity to develop and showcase their talents by designing and implementing original robotic designs. Teams work together to build individual robots and compete against high school participants across the country. In total, 1,130 teams competed in the 2006 FIRST National Championship in Atlanta, GA.

I am proud to have this opportunity to honor the ThunderChickens, a metro-Detroit based engineering team made up of 38 high school students. Great skill, creativity, and originality went into their highly competitive robotic design. I would like to individually honor each member of the ThunderChickens and their mentors at the Utica Center for Mathematics, Science, and Technology. The members of the 2006 ThunderChickens include Michael DelBene, Jessica Zavadil, Shannon Willaert, Gregory Petty, Annette Palazzolo, Jacob Miller, Joseph Guzzardo, Sara Craun, Nina Fabian, Kyle Yaxley, Stephanie Hasty, Sala Sadaps, Steven Perry, Joshua Bails, Brian Turoski, Irene Zhu, James Courtois, Tony Kraus, Michael Harrison, Ryan Boyle, Brett Ankawi, Michael Lee, Salvatore Mattera, Joseph Scharnitzke, Anthony Schuller, Michael Ross, Ashley VanMaldeghem, Shayna Kunz, David Orban, Paul Szymanski, Andrew Fonk, Gregory Lau, Aaron Vedolich, Brian Lademan, Mihai Bulic, Heather Hampton, Ed Lionte, and Chad Thornbro. Their teacher mentors include Ron Arscheene, Anita Stafford, Mike Attan, and Janet Kent. Their engineering mentors include Paul Copioli, Ed Debler, Bob Korson, Mike Copioli, Mike Beem, Jim Yaxley, Rick Thornbro, Omar Zrien and Bill Baedke.

This championship is a testament to and the result of many, many hours of hard work and perseverance. While the immediate result of their work is impressive, I look forward to the bright futures that are ahead of these students. They have established a solid foundation on which to develop their interest in the field of engineering. They have also gained invaluable, hands-on experience.

Once again, I would like to congratulate the ThunderChickens on their remarkable 2006 First Robotics Competition National Championship.

Mr. President, I rise today to honor Frank Fiala, superintendent of the Keweenaw National Historical Park. After nearly 32 years of Federal service, Frank will be retiring in January. Frank's service to our country began in the U.S. Air Force where he worked as a medic from 1969 to 1973. His career then transitioned to the National Park Service, where he has worked to protect our country's natural and historic treasures and to make them available for the public's enjoyment and appreciation. Frank's National Park Service career included assignments at the Lake Clark National Park and Preserve in Alaska, Wrangell-St. Elias National Park and Preserve in Alaska, Rocky Mountain National Park in Colorado, Carlsbad Caverns National Park in New Mexico, and Dinosaur National Monument in Colorado.

For the past 10 years, Frank has served as superintendent of the Keweenaw National Historical Park in Michigan's Upper Peninsula, working to preserve and interpret the region's copper mining history. I offer this tribute to Frank because of my 10 years of personal experience working with Frank and witnessing his passion and enthusiasm for Keweenaw's rich mining history of immigration, labor, vibrant cultures, and changing technologies.

Frank has been an extraordinary park superintendent at Keweenaw. Frank has successfully navigated the challenges of managing a park that owns less than 10 percent of the land within the park boundaries and requires partnering with a variety of public and private organizations. A significant milestone was reached with the completion of the park's General Management Plan, which Frank shepherded. Development of the plan was at times contentious and involved incorporating viewpoints from multiple stakeholders, including local citizens, businesses, landowners, entrepreneurs, corporations, educational institutions, foundations, and government agencies.

Frank has been an enthusiastic advocate for the park, promoting the Keweenaw Peninsula's historic and cultural riches and envisioning the park's role in the future economic development of the region. Where some saw ruined, dilapidated buildings as eyesores, Frank saw them as opportunities. To preserve the historic landscape of copper country, Frank secured funding to make several significant property acquisitions, including the Quincy Mining Company's Pay Office; the Calumet and Hecla Mining Company General Office Building, which is now the Park Headquarters; the C&H Library, which now houses the park's extensive archival collections; C&H Warehouse No. 1, and the Union Building.

A true preservationist, Frank successfully fought to stop the replacement of the city of Quincy's historic water tower, a vital part of the region's cultural landscape, with an underground storage tank. Frank personally researched and produced the original plans for the historic water tower, and now a replicated water tower stands proudly, providing water service to the area's residents and preserving a key feature of the Keweenaw landscape.

In addition to preserving historic buildings, Frank also helped save a large collection of artifacts from the Calumet & Hecla Mining company, which is being cared for and catalogued by one of the Nation's finest professional staff of archivists, curators, and museum technicians. Since Frank's arrival, the park's museum collection has grown from nothing to over 300,000 historic items.

As anyone who has had the opportunity to drive through the park with Frank knows, Frank truly is a visionary. One is quickly transported back in time to the 19th century, when the Keweenaw produced 85 percent of the Nation's copper. Frank makes the history of ``copper country'' come alive: the sounds of the immigrants arriving, the smells of pasties wafting from lunch pails descending into the deep mine shafts, the tremors from the strikes of 1913 caused by unfair labor conditions. His enthusiasm in relation to rehabilitating and interpreting the historic properties scattered across the park is contagious. Thanks to Frank, visitors to the Keweenaw can truly experience what it was like to be part of the mining community during the industrial revolution.

Frank's dedication to preserving and interpreting the history of the Keweenaw, and his many years of public service is truly an example to others. His enthusiasm, vision, and proactive approach have given the people of Keweenaw, MI and our Nation a great gift.

Thank you, Frank, for your service, and congratulations on your retirement.

Mr. President, I support the nomination of Robert Gates to be Secretary of Defense, as did every member of the Committee on Armed Services, under the leadership of Senator Warner.

Over the last few weeks, I have met personally with Dr. Gates, reviewed his record, his response to written policy questions from the Committee on Armed Services. I listened carefully to his testimony before the committee yesterday. At every stage of the process I have been favorably impressed by Dr. Gates' candor, his forthrightness, and by the direct answers he has provided to our questions.

The American people in November demonstrated their strong desire for two important changes in our Government. One is a change in policy on Iraq. The second is a change in the atmosphere in Washington. On each of these issues, Dr. Gates' performance has been exemplary.

He has also provided a dose of reality and straightforward honesty relative to Iraq. Dr. Gates' willingness to identify past mistakes was notable. He included in a list of those mistakes, when he was asked, inadequate troop levels at the outset of the operation, disbanding of the Iraqi Army, de-Baathification measures that went too far. He acknowledged we are not winning overall in Iraq, with the important caveat that our troops continue to perform superbly and have yet to lose a single battle.

He agreed we need to communicate a sense of urgency to the Iraqis and to pressure them to reach a political settlement that only they can reach, and that without it there will be no end to the violence, regardless of improvements in the Iraqi military.

Dr. Gates stated that a major change in policy is needed and that all obligations need to be on the table.

He made it clear that he intends to consult with the commanders in the field, the Joint Chiefs of Staff, and others before recommending a strategy. He stated he would consult with Members of Congress on a bipartisan basis. He agreed that we need to more clearly identify our objectives and match our forces to those objectives. He spoke favorably about the need for specific benchmarks for those efforts and the efforts of the Iraqis.

On the second issue, Dr. Gates placed a strong emphasis on the need for bipartisan solutions to our problems in Iraq and other national security issues. He spoke in favor of congressional oversight. He expressed his desire to work with Members of Congress in both political parties.

Moreover, Dr. Gates stated that our senior military leaders must be free to speak truth to power, to express their views directly to the President, the Secretary of Defense, and the Congress.

He also stated that intelligence should not be politicized and that intelligence analysts must be free to provide their unvarnished views to leaders of both the Congress and the executive branch. He stated to the extent the Office of the Under Secretary of Defense for Policy prior to the Iraq war provided a separate avenue for the analysis of intelligence information outside of the intelligence community that he has ``a problem with that.''

We will make significant progress in Iraq only if a new approach is forthcoming. We are not going to make significant progress if we insist on circling the wagons, denying any mistakes have been made, and staying the course. We are not going to make significant progress until the administration comes to grips with what is happening on the ground in Iraq and listens to the views of the Congress, the American people, and others who have had differences with the administration.

Dr. Gates' confirmation as Secretary of Defense will not by itself solve our problems in Iraq. Indeed, as he acknowledged, the key decisions on Iraq will continue to be made by the President of the United States, not by the Secretary of Defense.

On the key issues of Iraq, and the atmosphere in Washington, however, his testimony was very encouraging indeed. Dr. Gates' testimony on other issues was positive as well. For example, he stated his belief that we should engage with North Korea, Iran, and Syria, and that he is open to the possibility of doing so on a bilateral basis, even though, understandably, he does not have any great expectations that

such discussions would lead to significant improvements. This kind of willingness to engage in at least discussions with those who disagree with us has too often been hard to find in the administration.

I support Dr. Gates' nomination. I wish him luck as he undertakes these immense challenges facing the Department of Defense.

I want to comment on two other issues, one that Senator Warner made reference to, and that is the Baker-Hamilton report. That report proposes a welcome change in direction for our policy. It urges the administration and all of us to come together politically on a bipartisan basis. It also suggests that the only way we can maximize the chances of success in Iraq is if the Iraqis come together politically and take over the responsibility for their own country.

The ideas they propose in this report are totally consistent with what a number of us have been urging for a long time: that we have to pressure the Iraqis to take over, that they have to resolve their political differences, and that unless those political differences are resolved by the Iraqis that there is not going to be an end to the violence in Iraq.

The discussion in this report about reduction in forces is a tool of putting pressure on the Iraqis to take responsibility for their own future. We cannot be a security blanket in an unlimited way for the Iraqis. They, and they alone, are going to decide whether they have a nation or whether they have a civil war, and we cannot get in the way of the Iraqis if they are determined to have a civil war.

Finally, I want to say a word about Senator Warner.

The fact that this nomination is coming to this floor with a unanimous vote is, in part at least, the result of the efforts of Senator Warner. Obviously, we all have decided that Dr. Gates deserves our confirmation. But, as is always the case with Senator Warner, the process which was used here was thorough, fair, and consistent with senatorial traditions: that we look at nominees, ask hard questions, be thorough.

His respect for this institution is not exceeded by anybody, as far as I am concerned, in this institution. It is essential to the Senate that we have this kind of respect, not just for each other, as important as that is--and clearly his civility in that regard is also exemplary--but that we also have great respect for the procedures, processes of this institution.

We gave Senator Warner a little tribute yesterday as we were voting in executive session, a little plaque that had three gavels on it. Those three gavels represented the three times actually that Senator Warner has been the chairman of the Armed Services Committee; one of which was kind of unique just because for 17 days in 2001, when the Vice President of the United States was Al Gore because the President had not been sworn in until January 20, and the Congress was 50-50 on January 3, I actually was chairman for 17 days and Senator Warner was ranking member for that short period of time before he took over again as chairman of the Armed Services Committee. Because of the rules of his caucus, which are totally the business of the Republican caucus, Senator Warner will now take on other responsibilities in this institution. But his civility, his sense of this institution, his bipartisanship--which is again reflected in the remarks which he made today, and reflected in what he has urged the President to do and what he urged Dr. Gates to do in terms of discussions with Members of the Congress--that effort on his part is so totally typical of him as a human being and him as a leader, who senses that when it comes to national security policy and defense policy this country requires bipartisanship.

Maybe in other areas the danger is less of excessive partisanship. Maybe in other areas besides national security and defense we can get away with being partisan, even though we should not. But in this area we cannot, in good conscience, be partisans. We have to be patriots. We are going to have different views. Those different views are not necessarily going to be divided by this aisle, but those different views are respected, they are welcome.

Senator Warner again expressed the importance of different voices being added to a chorus. But at the end that chorus, hopefully, will be singing the same song about the security of this country, with different voices from different places but talking about the same goal, which is the national security of the Nation.

Another goal which he has championed is the support for the men and women of the Armed Forces. They never had a greater champion. They have had great champions in this body, on the Armed Services Committee, off the Armed Services Committee. They have had great champions. They deserve great champions. They have had a great champion in John Warner.

The men and women of the military who put their lives on the line for this Nation deserve the kind of support they get from John Warner. He is an example that all of us follow, I hope, or at least try to follow when we look at what the needs are of the men and women of the Armed Forces in uniform, and out of uniform, who take the risks for us and whose families take the tragic losses and have to face those losses every moment of every day in that their loved ones are in harm's way.

So I just want to--as we bring, I guess, this last nomination to the floor, which is brought to the floor by Senator Warner as chairman of the committee--pay him tribute on behalf of the whole committee. We all, in our own way, speak to him about it, sometimes privately and personally, other times very publicly, like this is. But I just want to let him know that he has not only been one great friend, his wife Jeannie and Barbara and I have been great friends, and we will continue to be.

As he frequently points out, we came here together, which is a special bond between us--which it is for all Members of the Senate. Members of their class are usually the ones they are closest to, just like in high school. That has nothing to do with party labels or affiliations. That has everything to do with relationships, going through the same process together and going through the same hoops and jumping the same hurdles together.

We have done it together. I relied on him more than he will ever know, and I will continue to rely on him as a member of the committee. But as I undertake my new responsibilities, I, again, not only will continue to cherish his advice and friendship, but I will be relying on it almost as much as ever.

I thank him, I know, on behalf of all the members of the committee.

Madam President, Senator Kennedy is here. I ask unanimous consent that after Senator Kennedy has completed, Senator Hutchison be recognized again in the event she is prepared to go at that time.

Mr. President, crime in our Nation is increasing. Too often guns are involved. In 2005, our country experienced a surge in murder and robbery rates. Unfortunately, that surge has continued in 2006. The Police Executive Research Forum, a think tank that serves many of the Nations' police departments, examined the murder and robbery statistics of 53 U.S. cities for the first 6 months of this year. In their report, ``A Gathering Storm: Violent Crime in America,'' they report that murder has increased in 26 of the 53 cities, and robberies have increased in 43 of the 53 cities.

In Boston, after a 19.6-percent increase in murder in 2005, the first 6 months of 2006 produced another 27.5-percent increase. In Memphis, murder increased 27 percent in 2005 and 43 percent in 2006. Police officials attribute these severe increases to increases in gang activity, violent offenders returning from prison and kids who have easy access to guns.

In September, the Federal Bureau of Investigation reported that in 2005 violent crime increased 2.3 percent, murder and non-negligent manslaughter increased 3.4 percent, robbery increased 3.9 percent, and aggravated assault increased 1.8 percent from 2004.

What may be even more dramatic is the fact that these statistics are not exclusive to larger cities. Smaller communities that typically had relatively low amounts of crime have also been affected. In the first 6 months of 2006, robbery was up 47 percent in Rochester, NY, 37 percent in suburban Montgomery County, MD, 36.8 percent in Minneapolis, 36 percent in Milwaukee, and 27 percent in Norfolk, VA. This translates into thousands more people being robbed, often at gunpoint.

According to a poll conducted by the Washington Post and ABC News, 61 percent of Americans favor stricter gun laws. This is up from 57 percent in 2002. The 109th Congress's record on gun safety is not one of which to be proud. It has been a ``do nothing'' Congress. I will continue in the 110th Congress to work to pass sensible gun safety legislation to help make our communities safer.

Mr. President, under the unanimous consent agreement, I have been allocated 10 minutes, at the end of which I am going to make a unanimous consent request that we proceed immediately to the Defense Authorization bill, the John Warner Authorization bill conference report, which has come over from the House. I do not know of any opposition to this bill. We have worked on it for 5 months. It has provisions in it which are critically important to our troops.

I think it is critically important before we leave--

I ask unanimous consent at this point that the conference report to accompany H.R. 5122, the John Warner National Defense Authorization Act of Fiscal Year 2007, be deemed adopted by the Senate with a motion to reconsider laid upon the table.

So we could adopt it tonight?

Mr. President, I will support final passage of the Homeland Security appropriations bill today because it includes vital funding for our first responders and our Nation's borders. Unfortunately, the bill still does not go far enough.

In particular, I am disappointed that the Senate has again included the small State funding formula for our largest first responder grant program. We need to change our approach to allocating these scarce resources by reducing the amount of funds allocated to States regardless of need and increasing the funds available to States facing the greatest threats and greatest need. I will continue to work with my colleagues in coming months to make the allocation of these scarce resources more equitable.

I am also disappointed that this bill does not take steps to establish a Northern Border Air Wing in Detroit, MI, as the Senate bill did. The Northern Border Air Wing, NBAW, initiative was launched by the Department of Homeland Security, DHS, in 2004 to provide air and marine interdiction and enforcement capabilities along the northern border. Original plans called for DHS to open five NBAW sites in New York, Washington, North Dakota, Montana, and Michigan. Michigan was originally scheduled to be the third facility opened.

The New York and Washington NBAW sites have been operational since 2004. Unfortunately, not all of the sites have been established, leaving large portions of our northern border unpatrolled from the air and, in the case of my home State, the water. In the conference report accompanying the fiscal year 2006 DHS appropriations bill, the conferees noted that these remaining gaps in our air patrol coverage of the northern border should be closed as quickly as possible. This bill does not accomplish the goals set by Congress last year.

In testimony before the House Armed Services Committee, John Bates, the Chief CBP official in the Detroit Sector said the Detroit area's international border is ``an attractive site for criminal organizations that traffic human cargo, contraband, and narcotics across our border.'' Chief Bates also noted in his testimony that the ``natural terrain and geographical nexus to the waterways'' presents a tremendous challenge to border interdiction and Law Enforcement efforts, the failure of which ``could have major national security implications.''

During Senate floor consideration, with the help of Senators Byrd and Gregg, the Senate accepted my amendment related to establishing the fifth and final Northern Border Wing. Unfortunately, this funding was taken out in conference, and the gap along the northern border will remain open for yet another year.

Given the serious threat from terrorists, drug traffickers, and others who seek to enter our country illegally, I would hope the Department uses its operating funds to open the Michigan site as soon as possible. According to the Department, establishing the NBAW will cost approximately $17 million. This would be consistent with an April 11, 2006, letter to me in which Secretary Chertoff indicated that it was his Department's plan to open the Michigan site during the 2007 fiscal year. I hope he will follow through on that promise.

Although I wish the bill did more to make first responder funding risk-based and to establish a Northern Border Wing in Michigan, there are many provisions in the bill that I support.

I was pleased to learn of the appropriators' decision to retain the Leahy-Stevens Western Hemisphere Travel Initiative deadline extension. According to the Detroit Regional Chamber of Commerce, businesses in Michigan are already being negatively impacted by concerns about crossing land borders from Canada into the United States. Extension of the implementation deadline will allow DHS and the State Department to work through a variety of issues associated with REAL ID and the proposed pass cards, as well as allow for a more effective public information campaign.

I am also pleased that the final bill includes funding for 1,500 new Border Patrol agents. I hope the Department will apportion these agents in a manner that considers the threat along the northern border, particularly in the areas around the northern border's busiest crossings. I was pleased the conferees noted the lack of experienced border agents on the northern border and that they have agreed to hold the Secretary's feet to the fire on this issue. As a member of the Homeland Security and Governmental Affairs Committee, I look forward to discussing this matter with Secretary Chertoff.

The conferees retained a provision regarding a pilot project for unmanned aerial vehicles on the northern border. The Great Lakes are almost completed unguarded at present, and UAVs are the perfect technology for surveillance along these water borders. The Great Lakes offer a unique opportunity for the Department, and I look forward to working with the Department in the coming year on this issue.

I am pleased that the bill includes language that will strengthen the Federal Emergency Management Agency, FEMA. The Federal Government's bungled response to Hurricane Katrina demonstrated incompetence at the highest levels of DHS and also demonstrated the need to strengthen our Nation's emergency response capabilities. The FEMA provision will restore the vital connection between emergency preparedness and response that Secretary Chertoff had previously severed. The bill also includes a provision for keeping families together during mass evacuations and requires DHS to establish a National Emergency Child Locator Center that will help families reunite more quickly in the event they get separated during a disaster. I hope these provisions will help prevent the reoccurrence of one of the most tragic consequences of the Katrina disaster--the thousands of children who were reported as missing in its aftermath. However, I am disappointed that the bill did not include a $3.3 billion authorization for a dedicated communications interoperability grant program. This provision had previously been included in an emergency management reform bill that we passed in the Homeland Security and Governmental Affairs Committee.

The bill also includes a provision that would authorize the Secretary of Homeland Security to issue interim regulations for high-risk chemical facilities. Although this authorization is long past due, I am disappointed that such an important provision was drafted behind closed doors, instead of being vetted with full transparency, as was the case with the comprehensive chemical plant security legislation that passed out of Senate Homeland Security and Governmental Affairs Committee unanimously on June 15, 2006. I am glad that a 3-year sunset provision was included in the bill so that the authorizing committees can make any needed improvements to ensure that the threats from chemical plants are fully addressed.

Mr. President, I ask unanimous consent that I yield 2 minutes to our friend from Delaware.

Mr. President, every year since 1961, there has been an annual Defense authorization bill enacted. This year--

I would be happy to.

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

Mr. President, every year since 1961 there has been an annual Defense authorization bill enacted. This year, like the previous 44 years, conferees and staff have worked extraordinarily hard and cooperated on a bi-partisan basis to get us to this point in our deliberations on this bill that means so much to our country. The fact that we are keeping up our decades-long tradition is reason enough to be proud, but what I am even prouder of is the leadership that our chairman and my friend, Senator Warner, has invested in getting us to this point.

This bill is essential to the men and women of our Armed Forces.

I am pleased that the conference report reflects Senate's longstanding commitment to a larger Army and Marine Corps. We authorized an increase of 1000 active duty marines for an authorized end strength of 180,000, 5,000 more than the administration requested. We also authorized an active duty end strength for the Army of 512,4000, 30,000 more than requested.

I am delighted that, after several years of fighting for it, we have finally been able to authorize the TRICARE health care benefit for all members of the Selected Reserve and their families for a reasonable premium that is 28 percent of the cost of the program. I am also pleased that the conference report prohibits the Department of Defense from increasing enrollment premiums for military retirees and cost shares for prescriptions filled through retail pharmacies while the GAO conducts an audit of the health care program and a Task Force completes a comprehensive assessment of the future of military health care.

The conference report also contains numerous other provisions to enhance the quality of life of our service members and their families, including: paying full replacement value for household goods lost or damaged in military moves; authorizing a total of $50 million in aid to local civilian schools, including $35 million in supplemental impact aid for schools with large numbers of military dependents, $5 million children with severe disabilities, and $10 million for schools affected by significant changes in military dependent students as a result of force structure changes, creation of new military units, and BRAC; and placing restrictions on payday loans to service members and their families.

The conference report also does not include a provision contained in the House Bill that would have provided that ``each [military] chaplain shall have the prerogative to pray according to the dictates of the chaplain's own conscience, except as may be limited by military necessity, with any such limitation being imposed in the least restrictive manner feasible.''

This is a lot more complicated issue than it seems at the surface. Military chaplains not only minister to members of their own faith group, they also minister to the needs of a diverse group of military members and their families, including those of other faith groups and those who claim no religious faith.

The military services respect the rights of military chaplains to adhere to the tenets of their respective faiths and give them virtually unrestricted discretion as to the content of their religious message when performing core ecclesiastical functions, including worship services, teaching, bible study, counseling, hearing confessions, preaching, and performing religious ceremonies. However, when performing functions at mandatory military events with multi-faith audiences, there is a longstanding military tradition of chaplains offering a prayer that demonstrates sensitivity, respect, and tolerance for all faiths present. Military chaplains are trained and expected to use good judgment when addressing pluralistic audiences at public, non- worship ceremonies, and they are never required to participate in religious activities inconsistent with their beliefs.

The Chiefs of Chaplains from each of the military services have advised us that, if enacted, the House provision would limit chaplain effectiveness and erode unit cohesion. They are concerned that commanders would no longer invite chaplains to pray at ceremonies where faith specific prayers might be offensive to members of other faiths who are required to participate. We have also heard from the National Conference on Ministry to the Armed Forces, an organization that represents the vast majority of military chaplains, and numerous other denominational and religious organizations that support military chaplaincy and respect religious freedom, who oppose the House provision.

The decision that this provision will not be included in the conference report is the right answer in light of the fact that neither the Senate nor the House has held hearings on this very important and complex issue.

Of course, we were not able to get everything we wanted in this conference. For example, I am very disappointed that we were not able to authorize federal pricing for prescriptions filled through the military's TRICARE retail pharmacy program.

Over my objections, the conferees agreed to a House provision regarding an existing settlement agreement between the Federal Government and two private parties regarding the removal of non-native animals from a national park on Santa Rosa Island, CA. This language is also strongly opposed by the two California Senators and by the Energy Committee, which has jurisdiction over this matter. This provision directs the Secretary of Interior not to take certain actions which were not the responsibility of the Secretary in the first place. Therefore, while I do not believe this conference agreement changes the legal obligations of the two private parties to this settlement, I believe this provision is unnecessary and misguided and that it should not have been included.

I am also disappointed that the conference report does not include the Akaka-Collins-Levin amendment on whistleblower protection. This amendment would have addressed gaps that have developed in the protection of federal employee whistleblowers since the enactment of the Whistleblower Protection Act of 1989.

However, the conferees did agree to a number of provisions designed to address wasteful practices and shortcomings in DoD management. These include: a provision prohibiting contractors who perform little or no work on a project from charging excessive ``pass-through'' fees to the Government; a provision prohibiting the ``parking'' of funds in a particular part of the Defense budget when the money is not really intended to be used for that purpose; a provision requiring contract oversight mechanisms for the acquisition of major computer systems, similar to the mechanisms already in place for the acquisition of major weapon systems; a provision limiting the use of cost-type contracts for the acquisition of major weapon systems; and a provision requiring that DOD hire and train government employees, in lieu of contractor employees, to perform critical acquisition functions.

I am also pleased that the conferees included a provision that would require a new comprehensive National Intelligence Estimate, NIE, on Iran. This provision also includes a requirement for the President to submit a report to Congress that would fully describe the U.S. policy on Iran.

The conference report also authorizes a responsible budget that tries to balance the need to support current military operations while continuing the modernization and transformation of our armed forces.

To support continuing operations in Iraq and the global war on terrorism, the conference report authorizes a $70

billion bridge supplemental for fiscal year 2007. Of this amount, $23 billion is devoted to ``reset'', that is, repair or replacement of Army and Marine Corps equipment, based on detailed requests provided by the services. The supplemental also includes a separate $2.1 billion account for the Joint Improvised Explosive Device Defeat Organization, JIEDDO, that is dedicated to countering improvised explosive devices.

The conferees agreed to an important provision that was sponsored by Senators McCain and Byrd, with the unanimous support of the Senate, that would require the President to request funds for operations in Iraq and Afghanistan in the regular budget beginning with the fiscal year 2008 budget that will be submitted next February. I strongly supported this provision. This administration has misled the American people far too often with respect to the war in Iraq. I am pleased that we have taken a major step in this bill to at least make our budgets more honest in the future by including the substantial costs we know we are going to incur in Iraq and Afghanistan. In fiscal year 2006, those costs reached a staggering $10 billion per month. It is irresponsible to make decisions on spending and taxation without including these costs in our budgets, and in this conference report we are putting an end to that practice.

With the respect to the F-22 multiyear procurement authority, the conferees agreed to provide authority for the Air Force to enter a multiyear contract for three years, subject to a certification by the Secretary of Defense that the savings are ``substantial'' in view of historical multiyear contracts.

The conferees also adopted Senate legislation that requires the Secretary of Defense to initiate an independent assessment of available foreign and domestic active protection systems to assess the feasibility of their near term and long term development and deployment. Active protection systems could be placed on vehicles like Bradleys, Strykers, and tanks to shoot down incoming threats including rocket propelled grenades, RPGs, and mortars. These type of weapons represent a real and growing threat to our deployed forces.

In the area of nonproliferation programs, I am disappointed that the conference report does not include a Senate provision, authored by Senator Lugar, to repeal all of the annual Cooperative Threat Reduction, CTR, certification requirements. These certifications have long outlived their usefulness and now only needlessly delay the CTR program. This conference report does include, however, a provision that would extend certain annual waiver authorities associated with destruction of Russian chemical weapons and fully funds the CTR programs at the Department of Defense at the budget request of $372.1 million.

Finally, the conferees authorized $11.7 billion for science and technology programs that will develop technologies to transform our military. This is an increase of $575 million over the budget request. This represents 2.7 percent of the DOD budget, still unfortunately falling short of the congressional and QDR goal of a 3-percent investment level.

On five other occasions, Senator Warner has led us as chairman in producing an annual defense authorization bill for the President to sign. Unfortunately, because of the 6-year term limitation imposed on committee chairmen by the Republican conference, this is the sixth and last defense authorization bill that Chairman Warner will shepherd through the process. He will have to step down as our chairman next year, but thankfully for the Nation and the Senate and for me personally, he will continue serving as a member of the Senate Armed Services Committee.

This year's process to produce a bill has been particularly difficult as people outside our conference sought to inject extraneous items into the conference. Throughout it all, Senator Warner refused to allow such matters to be added--in the face of enormous pressure.

We all know that Senator Warner has led a distinguished life of public service. He and I came to the Senate together in 1979 and we have served side by side on this committee continuously for the past 27-plus years. Defense authorization bills enacted over that entire period have always had John Warner's positive imprint on them.

Historically, our committee's chairmen--men such as Richard Russell and John Stennis and Sam Nunn--have been guided by one principle: Do what is right for our Nation and its military members. John Warner has followed in that fine tradition and we cannot thank him enough for it. It is very fitting that this bill is going to be named after my dear friend and our esteemed colleague, Senator John Warner. He is truly a man worthy of such a great honor.

I was keenly disappointed when the majority leader earlier tonight objected to this vital bill being acted upon. I'm hopeful that he will withdraw his objection before we adjourn, for the sake of the men and women in uniform and their families.

I suggest the absence of a quorum.

Mr. President, it is unfortunate that it sometimes seems to require high profile tragic school shootings to focus the Nation's attention on the easy access to guns by young adults and children. Sadly, we find ourselves once again examining the subject in the aftermath of not one, but two shootings.

On April 27, 1999, we paused in the Senate to observe a moment of silence in tribute to those who died at Columbine High School and to express our sympathy for their loved ones. Since that tragedy, tens of thousands of people have been killed by guns and, according to the Brady Campaign, there is an unlocked gun in one of every eight family homes.

On September 13, 2006, a 25-year-old-man opened fire in the cafeteria at Dawson College in Montreal, Canada. He began firing randomly at students killing one and injuring 19 others. Five of those injured are in critical condition. Wielding a rapid-fire rifle in addition to two other weapons, the shooter walked through the halls of the college shooting indiscriminately. Prior to the incident, the shooter had openly expressed his fondness for the events surrounding the 1999 slaughter at Columbine High School. While this episode took place in Canada, similar incidences have occurred all too frequently in the United States.

On September 17, 2006, five Duquesne University basketball players were shot while leaving a school dance. So far, two young men have been arraigned on charges of attempted homicide, aggravated assault, criminal conspiracy and weapons-related offenses. A 19-year-old woman has been arrested on charges of reckless endangerment, carrying a firearm without a license and criminal conspiracy. One player, remains in critical condition with one bullet and fragments of another in his head.

It is impossible to come to terms with these or any of the other shooting tragedies that have claimed the lives of far too many young people. Yet after such tragedies, we ask ourselves if they might have been prevented. The answer, of course, at least in part is yes. Congress can and must work to keep guns out of the hands of young people.

What will it take to pass legislation that requires firearms to be sold or transferred with storage or safety devices? What will it take to pass child access prevention legislation, which would require adults to store firearms safely and securely in places that are reasonably inaccessible to children? Congress and the President should work to enact these and other common-sense gun safety reforms that will keep our young people alive and safe.

Madam President, parliamentary inquiry: How much time is remaining to Members on this side, including on the bill?

On the Democratic side?

And on the bill itself, is there time left?

All time is allocated?

Madam President, I ask unanimous consent that I be allowed to proceed for 30 seconds.

Madam President, I wish to thank the Senator from Connecticut for one of the most passionate statements I have ever heard on this floor--heartfelt, right on target. The distinctions made in this bill which will allow statements to be admitted into evidence that were produced by cruel treatment is unconscionable. It is said that, well, statements made after December 30 of 2005 won't be allowed, but those that are produced by cruel and inhuman treatment prior to December 30 of 2005 are OK. It is unconscionable. It is unheard of. It is untenable, and the Senator from Connecticut has pointed it out very accurately, brilliantly. I thank him for his statement.

That is not a unanimous consent request, is it?

We have three Senators who have been allocated time specifically, and that time may be used relative to the amendment or in general debate on the bill. I will not agree to any restriction on the use of time that the Senator has been allocated.

Mr. President, the Democratic leader has yielded 2 minutes of his leadership time to me. I ask unanimous consent that I be allowed to proceed on that basis.

Mr. President, I support the Specter-Leahy amendment on the writ of habeas corpus. The habeas corpus language in this bill is as legally abusive of the rights guaranteed in the U.S. Constitution as the actions at Abu Ghraib, Guantanamo, and the CIA's secret prisons were physically abusive of the detainees themselves.

The Supreme Court has long held that all persons inside the United States, including lawful permanent residents and other aliens, have a constitutional right to the writ of habeas corpus. Yet, this provision purports to apply even to aliens who are detained inside the United States, including lawful permanent residents.

Unlike the provision that was included in the Detainee Treatment Act last year, this court-stripping provision would apply on a world-wide basis, not just at Guantanamo. It would apply to detainees of all Federal agencies, not just the Department of Defense. It would attempt to expressly strip the courts of jurisdiction over all pending cases.

This provision goes beyond stripping the courts of habeas corpus jurisdiction. It also prohibits the U.S. courts from hearing or considering ``any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial'' of an alien detainee. As a result, this provision would leave many detainees without any alternative legal remedy at all, even after released, even if there is every reason to believe that the detention was in error, and even if the detainee was tortured or abused while in U.S. custody.

For example, the Canadian Government recently concluded, after a comprehensive review, that one of its citizens had been handed over by U.S. authorities to a foreign country which subjected him to torture and cruel and inhuman treatment, without any evidence that he was an enemy combatant or that he supported any terrorist group. Under this habeas corpus court-stripping provision, this individual would have no legal remedy in the U.S. courts even after he was finally released from illegal detention, unless the United States acknowledges that it made a mistake when it determined that he was an enemy combatant.

The fundamental premise of last year's Detainee Treatment Act, DTA, was that we could restrict future habeas corpus suits, because we were providing an alternative course of access to the courts.

The language in the bill before us would deprive many detainees of the right to file a writ of habeas corpus without providing any alternative form of relief. For example: The provision applies on a worldwide basis, not just at Guantanamo. DOD detainees outside Guantanamo do not have access to Combatant Status Review Tribunals-- CSRTs--so they can't get to court to review CSRTs. Because this bill would deprive them of the writ of habeas corpus or any other legal remedy, they would have no access to the courts at all.

The provision applies to detainees of all Federal agencies, not just DOD. Detainees of other Federal agencies do not get CSRTs, so they can't get to court to review CSRTs. Because this bill would deprive them of the writ of habeas corpus or any other legal remedy, they would have no access to the courts at all.

The provision even applies to lawful resident aliens who are detained and held inside the United States. Because this bill would deprive them of the writ of habeas corpus or any other legal remedy, they would have no access to the courts at all.

Even in cases where DOD regulations provide detainees a right to Combatant Status Review Tribunals--CSRTs--such tribunals may not be an adequate substitute for judicial review under a writ of habeas corpus. CSRTs are permitted to use coerced testimony, hearsay evidence, and evidence that is never disclosed to the accused. Detainees before those status review tribunals are denied access to witnesses and documents needed to rebut allegations made by the government. Courts reviewing CSRT determinations are not authorized to make an independent determination whether there is a lawful basis for the detention.

The court stripping provision in the bill does more than just eliminate habeas corpus rights for detainees. It also prohibits the U.S. courts from hearing or considering ``any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial'' of an alien detainee.

A separate provision in the bill adds that no person--whether properly held as an alien detainee or not--may invoke the Geneva Conventions as a source of rights in any court of the United States. Other provisions establish new defenses for individuals who may be accused of violating standards for the treatment of detainees under U.S. and international law.

Taken together, these provisions do not just deprive detainees of the ability to challenge the basis on which they have been detained--they are an effort to insulate the United States from any judicial review of our treatment detainees, an effort to ensure that there will be no accountability for actions that violate the laws and the standards of the United States.

Last year, this Congress took an important stand for the rule of law by enacting the Detainee Treatment Act, which prohibits the cruel, inhuman or degrading treatment of detainees in the custody of any U.S. agency anywhere in the world. That landmark provision is at risk of being rendered meaningless, if we establish rules ensuring that it can never be enforced.

Earlier this month, we received a letter from three retired Judge Advocates General, who urged us not to strip the courts of habeas corpus jurisdiction. That letter, signed by Admiral Hutson, Admiral Guter, and General Brahms, stated:

We urge you to oppose any further erosion of the proper

authority of our courts and to reject any provision that

would strip the courts of habeas jurisdiction.

As Alexander Hamilton and James Madison emphasized in the

Federalist Papers, the writ of habeas corpus embodies

principles fundamental to our nation. It is the essence of

the rule of law, ensuring that neither king nor executive may

deprive a person of liberty without some independent review

to ensure that the detention has a reasonable basis in law

and fact. That right must be preserved. Fair hearings do not

jeopardize our security. They are what our country stands

for.

We have received similar letters from nine distinguished retired Federal

judges, from hundreds of law professors from around the United States, and from many others.

If we don't strike this court-stripping language in the bill before us, if instead of Congress being a check on excessive executive power, Congress attempts to write a blank check to the executive branch, our expectation is that the courts will find this provision to be a legislative excess and strike it down as unconstitutional. We have a chance to do the right thing and not just to rely on the courts. This body is the body of last resort legislatively when it comes to protecting that great writ of habeas corpus which is in the Constitution. I hope we live up to that responsibility today.

I have already accomplished that. I thank my friend.

If Senator Rockefeller is ready, I understand there is a time agreement of 1 hour equally divided.

Mr. President, that unanimous consent request was apparently agreed to and is in place right now?

Mr. President, will the Senator from Massachusetts yield for a unanimous consent request?

Mr. President, I ask unanimous consent that I be added as a cosponsor to the Rockefeller amendment.

I thank the Chair, and I thank my friend from West Virginia.

Mr. President, this amendment just simply requires regular reports on detention and interrogation programs. It will give us access to legal opinions. It is essential that this amendment be adopted.

I just want to ask my good friend from West Virginia if he heard the chairman of the Intelligence Committee say that all we have to do is ask for reports and we will get them. Did I hear that right?

Well, Mr. President, just one example here. I have been trying to get a memo called the second Bybee memo now for 2\1/2\ years. I haven't asked once, I haven't asked twice, I have probably asked a dozen times for the Bybee memo, and my good friend, the chairman of the Armed Services Committee, has asked for the Bybee memo, without any luck. So the idea that all we have to do is ask is just simply wrong.

Chairman Warner asked on May 13, 2004--2004--that all legal reviews and related documentation concerning approval of interrogation techniques be provided to the committee. It has never been provided.

On April 12, 2005, I submitted questions to John Negroponte, who was the nominee for the Director of National Intelligence, requesting to see if the intelligence community has copies of the so-called Bybee memo.

In April of 2005, I asked General Hayden, on his nomination to be Deputy National Intelligence Director, to see if he could determine if the intelligence community has a copy of the second Bybee memo and to provide it to the committee.

Then on the intelligence budget hearing, April 28, 2005, I asked Secretary Cambone: Can you get us a copy of the second Bybee memo? This has to do with what interrogation techniques are legal. This is written by the Office of Legal Counsel, this memo. He says he will get a reply to me. That was April 2005.

In May of 2005, I wrote the Director of Central Intelligence, Porter Goss, requesting the second Bybee memo. Then I get a letter from the Director of Congressional Affairs, Joe Whipple, saying the memorandum can only be released by the Department of Justice. So in July, I write the Department of Justice, the Attorney General: Can we get a copy of the second Bybee memo? Letter after letter after letter.

Then there is a hearing by the Senate Intelligence Committee, July 2005. This is a hearing on Benjamin Powell's nomination to be general counsel in the Office of the Director of National Intelligence. I asked Mr. Powell: Can you provide us for the record a copy of that second Bybee memo? That decision, we are told a week later, is not a decision he can make; that is within the Department of Justice's purview, and on it goes.

Another year of stonewalling, of denial, of coverup by the Department of Justice of a memo which is so critically important, according to press reports and according now also to the acknowledgment by the Department of Justice. It sets a legal framework for the interrogation of detainees, and the Senate can't get a copy.

Apparently, two Members of the Senate, the chairman and vice chairman of the Intelligence Committee, have seen this memo. That is it. Members of the Intelligence Committee can't get it. Members of the Armed Services Committee can't get it. All we have to do is ask? How many times do we have to ask before we get documents?

There are 70 documents we still can't get from the Department of Defense relative to the operation of the Feith shop. All we have to do is ask? There are documents we have asked of the Intelligence Committee for years beyond the Bybee amendment without any response.

I thank the Chair, and I thank my good friend from West Virginia for trying to get some institutional support behind these requests that are made by Senators and committees frequently for documents.

Mr. President, may I inquire of the Senator from West Virginia as to whether, if he has completed debate on this amendment, he would be willing to yield the balance of his time to the Senator from Michigan for use on the bill?

Mr. President, I ask unanimous consent that the balance of the time of the Senator from West Virginia minus that 1 minute be assigned to the Senator from Michigan for use or allocation on the bill itself.

Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time not be charged to either side.

Mr. President, the Kennedy amendment would require the Secretary of State to notify other countries around the world that seven specific categories of actions, each of which is specifically prohibited by the Army Field Manual, are punishable offenses under common Article 3 of the Geneva Conventions that would be prosecuted as war crimes if applied to any United States person. Those seven categories of actions are: (1) Forcing the detainee to be naked, perform sexual acts, or pose in a sexual manner; (2) applying beatings, electric shock, burns, or other forms of physical pain; (3) ``waterboarding''; (4) using military working dogs; (5) inducing hypothermia or heat injury; (6) conducting mock executions; and (7) depriving the detainee of necessary food, water, or medical care.

I listened very carefully to what my colleague from Virginia, the Chairman of the Armed Services Committee, had to say about this amendment. He stated:

Now Senator Kennedy's amendment, depending on how the votes

come, and I'm of the opinion that this chamber will reject

it, I don't want that rejection to be misconstrued by the

world in any way as asserting that the techniques mentioned

in the amendment are consistent with the Geneva Convention or

that they could legitimately be employed against our troops

or anyone else. . . . We must not leave that impression as a

consequence of the decisions soon to be made by way of vote

on the Kennedy amendment. The types of conduct described in

this amendment, in my opinion, are in the category of grave

breaches of Common Article Three of the Geneva Convention.

These are clearly prohibited by the bill.

I am in complete agreement with Senator Warner that each of these practices is a grave breach of Common Article 3. I agree that these practices are unlawful today and that they will continue to be unlawful if this bill is enacted into law.

However, I am concerned that the administration may have muddied the record on these issues through its unwillingness to clearly state what practices are permitted, and what practices are prohibited, under Common Article 3. While I reach the same conclusion as Senator Warner as to the lawfulness of the practices listed in the Kennedy amendment, I am afraid that others around the world may not.

We agree that these practices are prohibited by Common Article 3. We need to send a clear message to the world that this is the case, so that the rest of the world will abide by the same standard. That is why I strongly support the Kennedy amendment.

Will the Senator from West Virginia yield for 3 minutes?

Mr. President, I think the Senator from West Virginia is, more than any other person in the history of this body, the custodian in his person of the Constitution of the United States. The bill that is before us obviously raises a number of very significant issues involving our Constitution.

What the amendment of Senator Byrd does very wisely is say that after 5 years, let us double back and doublecheck--double back and doublecheck--so that we can be confident that what we have done comports with the Constitution of the United States. This amendment does it very carefully. It does not disturb any pending proceeding under the commission. The Senator has written this amendment so carefully that he says even though it will sunset, forcing us to go back and doublecheck, to look at our work, that it will not in any way disturb any existing or pending proceeding.

I believe this is such an important statement of our determination that we act in a way that is constitutional, not in the heat of a moment which is obviously critical to us, but that we comport in every way with this Constitution. We ought to heed the words of Senator Byrd, who understands the importance of this Constitution and that this body be the guardian of the Constitution. We are the body that must protect this Constitution.

And this, as he puts it, is an insurance policy that we will do just that.

I ask unanimous consent that I be added as a cosponsor to the Byrd amendment.

Reserving the right to object.

No objection.

Mr. President, I am afraid that the way this now is set up, the Senator from Virginia has about six speakers who will have time, and we have on this side, because of the interest in the amendment process, used up our time and had to use time on the bill, so that on our side we only have--how much time left on the bill, if I could inquire of the Chair?

And the Senator from Massachusetts has how many minutes on his amendment?

How much time all together on the majority side?

I think everybody ought to recognize the situation we are in. I hope we will withhold our comments until those on the other side who have been indicated as having time allocated to them speak so that we will have some time to respond to them.

Will the Senator withhold that request for 2 minutes? Will the Senator withhold?

I don't know if the unanimous consent agreement has been finished yet. That is our hope.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, my understanding is that was the allocation of time, not necessarily the order of speaking.

I suggest the absence of a quorum, and I ask unanimous consent that the time not be charged to either side or to any party.

Senators Warner and McCain, over the last year, you have played an instrumental role in bringing needed clarity to the rules for the treatment of detainees in U.S. custody. I understand that you also played a key role in negotiating the provisions of the military commissions bill regarding the War Crimes Act and Common Article 3 of the Geneva Conventions. As you said last year when the Detainee Treatment Act was adopted, this is not an area in which ambiguity is helpful. For this reason, I hope that you will help me in providing a clear record of our intent on these issues.

In particular, section 8(a)(3) of the bill provides that ``the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions'', that these interpretations shall be issued by Executive order, and that such an Executive order ``shall be authoritative (as to non-grave breach provisions of Common Article 3) as a matter of United States law, in the same manner as other administrative regulations.''

Would you agree that nothing in this provision gives the President or could give the President the authority to modify the Geneva Conventions or U.S. obligations under those treaties?

Would you agree that nothing in this provision gives the President, or could give the President, the authority to modify the requirements of the Detainee Treatment Act?

Would you agree that any interpretation issued by the President under this section would only be valid if it is consistent with U.S. obligations under the Geneva Conventions and the Detainee Treatment Act?

Section 8(b) of the bill would amend the War Crimes Act to provide that only ``grave breaches'' of Common Article 3 of the Geneva Conventions constitute war crimes under U.S. law. The provision goes on to define those grave breaches to include, among other things, torture, and ``cruel or inhuman treatment''. The term ``cruel or inhuman treatment' is defined to include acts ``intended to inflict severe or serious physical or mental pain or suffering.''

Would you agree that the changes to the War Crimes Act in section 8(b) do not in any way alter U.S. obligations under the Geneva Conventions or under the Detainee Treatment Act?

Would you agree that nothing in this section or in this bill requires or should be interpreted to authorize any modification to the new Army Field Manual on interrogation techniques, which was issued last month and provides important guidance to our solders on the field as to what is and is not permitted to the interrogation of detainees?

And would the Senator from Arizona agree with my view that section 8(a)(3) does not make lawful or give the President the authority to make lawful any technique that is not permitted by Common Article 3 or the Detainee Treatment Act?

Mr. President, will the Senator from Arizona yield?

Mr. President, I heartily join my good friend from Virginia in his assessment of Senator McCain. I know there has been some disagreement as to who would go first, but that should not in any way, I hope, cloud the real affection which I think everybody in this body holds for Senator McCain and the effort he has made for so long to try to bring some kind of decency to the approaches we use to people whom we detain.

I thank the Senator.

Mr. President, I believe I have 4 minutes allocated.

Mr. President, less than 2 weeks ago, the Armed Services Committee voted on a military commissions bill. The committee endorsed that bill on a bipartisan basis with a 15-to-9 vote. Yesterday, 43 of us voted for the same bill on the Senate floor.

The bill would have provided the administration with the tools that it needed to detain enemy combatants, conduct interrogations, and prosecute detainees for any war crimes they may have committed.

Unfortunately, that bill went off the tracks after it was approved by the Armed Services Committee. Instead of bringing to the Senate floor the bill that had been adopted by the Armed Services Committee on a bipartisan basis, we are voting now on a dramatically different bill based on changes made at the insistence of an administration that has been relentless in its determination to legitimize the abuse of detainees, to protect those who authorize the abuses, and to distort military commission procedures in order to ensure criminal convictions.

For example, the bill before us inexplicably fails to prohibit the use of statements or testimony obtained through cruel and inhuman treatment as long as those statements or testimony was obtained before December 30, 2005.

The argument has been made that the bill before us prohibits the use of statements that are obtained through torture. That was never in contention. The problem is that it permits the use of statements obtained through cruel and inhuman treatment that doesn't meet the strict definition of torture as long as those statements were obtained before December 30, 2005.

This is a compromise on the issue of cruelty--an issue on which there should be no compromise by our Nation or by the Senate. If we compromise on that, we compromise at our peril. The men and women who represent us in uniform will be in much greater danger if we compromise on the issue of statements obtained through cruelty and inhuman treatment.

A compromise on this issue endangers our troops because if other nations apply the same standard and allow statements or confessions obtained through cruelty to be used at so-called trials of our citizens, we will have little ground to stand on in our objecting to them.

This bill also does many other things which are dramatic changes from the bill that came out of the Armed Services Committee. For instance, the bill would authorize the use of evidence seized without a search warrant or other authorization, even if that evidence was seized from U.S. citizens inside the United States in clear violation of the U.S. Constitution.

Both the committee bill and the bill before us provide the executive branch with the tools it needs to hold enemy combatants accountable for any war crimes they may have committed. On this issue we are in agreement. We all agree that people who are responsible for the terrible events of September 11 and other terrorist attacks around the world should be brought to justice.

However, the bill before us differs dramatically from the Senate Armed Services Committee bipartisan-approved bill, particularly when it comes to the accountability of the administration for policies and actions leading to the abuses of detainees.

The bill before us contains provision after provision designed to ensure that the administration will not be held accountable for the abuse of prisoners in U.S. custody, for violations of U.S. law, or for the use of such tactics that have turned much of the world against us.

Over the last 2 days, we have debated the habeas corpus provision in the bill. Most of that debate has focused on the writ of habeas corpus as an individual right to challenge the lawfulness of detention. The writ of habeas corpus does serve that purpose.

But the writ of habeas corpus has always served a second purpose as well: for its 900-year history, the writ of habeas corpus has always served as a means of making the sovereign account for its actions. By depriving detainees of the opportunity to demonstrate that they were detained in error, this bill not only deprives individuals of a critical right deeply embedded in American law, it also helps ensure that the administration will not be held to account for the illegal or abusive treatment of detainees.

Indeed, the court-stripping provision in the bill does far more than just eliminate habeas corpus rights for detainees. It also prohibits the U.S. courts from hearing or considering ``any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial'' of an alien detainee. By depriving detainees of access to our courts, even if they have been subject to torture or to cruel and inhuman treatment, this provision seeks to ensure that the details of administration policies that appear to have violated our obligations under U.S. and international law will never be aired in court.

A number of other provisions in the bill before us appear to be directed at the same objective. For example, section 5 of the bill provides that no person--whether that person is an enemy combatant or anybody else--may invoke the Geneva Conventions as a source of rights in a habeas corpus or other proceeding in any court of the United States. Section 948b(g) of the military commissions part of the bill would similarly provide that no person subject to trial by military commission may invoke the Geneva Conventions as a source of rights. These provisions, like the habeas corpus provision, appear to be designed to ensure that administration policies that may have violated our obligations under U.S. and international law will never be aired in court.

Other provisions in the bill narrow the range of abuses that are covered by the War Crimes Act. As a result of these amendments, some actions that were war crimes at the time they took place will not be prosecutable. Indeed, because of a complex definition in the bill, some actions that violated the War Crimes Act at the time they took place and will violate that act if they take place in the future will not be prosecutable. In other words, this bill carves out a window to immunize actions of this administration from prosecution under the War Crimes Act.

The administration and its allies have argued that these provisions are necessary to protect CIA interrogators from prosecution for actions that they believed to be lawful and authorized at the time they were undertaken. However, we addressed that problem with the enactment of the Detainee Treatment Act last year. That law provides a defense to any U.S. agent who engaged in specific operational practices that were officially authorized or reasonably believed to be lawful at the time they were undertaken.

This bill, however, goes far beyond protecting the front line interrogators and agents who believed that their actions were lawful: it changes the law to ensure that the administration officials who provided the authorization and knew or should have known that there was no legal basis for that authorization, will not be held accountable for their actions.

Last year, this Congress took an important stand for the rule of law by enacting the McCain amendment, which prohibits the cruel, inhuman, or degrading treatment of detainees in the custody of any U.S. agency anywhere in the world. That landmark provision is at risk of being rendered meaningless, if we establish rules ensuring that it can never be enforced.

We need to provide the administration with the tools that are needed to prosecute unlawful enemy combatants for any war crimes that they may have committed. However, we should not do so in a way that is inconsistent with our own values as a Nation. We need to practice what we preach to the rest of the world.

The bill before us will put our own troops who might be captured in future conflicts at risk if other countries decide to apply similar standards to us, is likely to result in the reversal of convictions on appeal, and is inconsistent with American values. For these reasons, I will vote no on final passage.

Mr. President, I add my compliments and congratulations to the Senator dad. I feel so close to him that I am tempted to recuse myself, but I won't do that. Instead, I will be very happy to vote for him whether it is a rollcall or a voice vote.

Mr. President, I would like to take this opportunity to honor

the life of Betty J. Martin. Mrs. Martin passed away on August 30, 2006, at the age of 68. Throughout her life, Betty was a dedicated public servant who dedicated her life to serving less fortunate individuals in the Saginaw community. Her efforts over the years have brought aid and comfort to so many, and we should all be grateful for her work.

Betty made a meaningful impact in the city of Saginaw. Her life's work stands as a testament to her many successes. In 1979, she became the director of the Good Neighbor Mission in Saginaw, a food pantry that serves the local needy. In 1991, Betty founded the Restoration Community Outreach Center. This center has enabled thousands struggling with substance abuse, mental illness, or physical disabilities to get the necessary assistance to begin to repair their lives.

Over the years, Betty has received numerous awards for her efforts, including the 1996 U.S. Department of Housing and Urban Development Certificate of Recognition for Dedicated Service to the Homeless, the 2002 Salvation Army Appreciation Award and the 2005 Saginaw City Council Certificate of Recognition. She has created a legacy that will reverberate in the city of Saginaw for many years to come, and her commitment to serving the needy should serve as an example for us all.

Betty is survived by her husband of 42 years, Judge Martin, one son, Bernard Smith Abernathy, one step-daughter, Joyce Ann Martin, and nine grandchildren. I know my colleagues in the Senate join me in offering my condolences to her family, colleagues, and friends. I hope they take comfort in the amount of good she has done over the years.

Mr. President, I yield myself 15 minutes off the bill itself.

Mr. President, first let me begin by commending our colleagues on the Armed Services Committee, Senator Warner, Senator McCain, and Senator Graham, for their effort earlier this month to produce a military commissions bill that will protect our troops, withstand judicial review, and be consistent with American values. The administration of their own party had prepared a bill that would authorize violations of our obligations under international law, permit the abusive treatment of prisoners, and allow criminal convictions based on secret evidence. The three Senators drafted a different bill, in consultation with our senior military lawyers. When the administration objected to this bill, Senator Warner scheduled a markup in the Senate Armed Services Committee anyway, and we reported that bill out with a bipartisan vote of 15 to 9.

Unlike the administration bill, the committee bill would not have allowed convictions based on secret testimony that is never revealed to the accused. The committee bill would not have allowed testimony obtained through cruel or inhuman treatment. The committee bill would not have allowed the use of hearsay where a better source of evidence is readily available. The committee bill would not have attempted to reinterpret our obligations under international law to permit the abuse of detainees in U.S. custody.

While the committee bill was not perfect--in particular, it included a very problematic provision on the writ of habeas corpus--the military commissions it established would have met the test of the Supreme Court's decision in the Hamdan case and provided for the trial of detainees for war crimes in a manner that is consistent with American values and the American system of justice. It provided standards we would be able to live with if other countries were to apply similar standards to our troops if our troops were captured. And, of course, the committee bill provided for the interrogation, for the detention, and for criminal trials of detainees.

Unfortunately, the committee bill was not brought to the Senate. Instead, the three Republican Senators entered into negotiations with an administration that has been relentless in its determination to legitimize the abuse of detainees and to distort military commission procedures to ensure criminal convictions. The bill before us now is the product of these negotiations. I will be offering the committee- approved bill as a substitute a little later today. The bipartisan committee bill, which came from our committee just about a week ago on a vote of 15 to 9, will be offered by me as a substitute to the bill which is now before us.

The bill before us does make a few significant improvements over the administration bill. I want to begin by outlining what those improvements are.

First, while the bill before us is not as clear as the committee bill in committing us to a standard that will protect our troops by conforming to our obligations under the Geneva Conventions, it is far preferable to the administration bill in this regard. In particular, the bill before us does not reinterpret U.S. obligations for the treatment of detainees under Common Article 3 of the Geneva Conventions. It does not place a congressional stamp of approval on an executive branch reinterpretation of those obligations. All it does in this regard is to state the obvious: that the President is responsible for administering the laws and that this gives him the authority to adopt regulations interpreting the meaning and application of the Geneva Conventions in the same manner and to the same extent as he can issue such regulations interpreting other laws.

Common Article 3 of the Geneva Conventions, the Detainee Treatment Act, and the new Army Field Manual all prohibit such interrogation abuses as forcing a detainee to be naked, to perform sexual acts or pose in a sexual manner; prevent such abuses as sensory deprivation, placing hoods or sacks over the head of a detainee, applying beatings, electric shock, burns, or other forms of physical pain; waterboarding, using military working dogs, inducing hypothermia or heat injury, conducting mock executions, or depriving the detainee of necessary food, water, or medical care. Nothing in this bill would change any of the standards of the Geneva Conventions, the Detainee Treatment Act, or the Army Field Manual. Nothing in this bill would authorize the President to do so.

Second, the bill does not permit the use of secret evidence that is not revealed to the defendant. Instead, the bill clarifies that information about sources, methods, or activities by which the United States obtained evidence may be redacted before the evidence is provided to the defendant and introduced at trial. Any material redacted from the evidence provided to the defendant cannot be introduced at trial. The defendant would have the right to be present for all proceedings and to examine and respond to all evidence considered by the military commission.

This approach is consistent with the approach taken to classified information in the Manual for Courts Martial, and it ensures that a defendant could not be convicted on the basis of secret evidence, evidence that is not known to him.

Those are two positive changes from the approach which the administration has argued for and demanded, in these two cases without success.

Unfortunately, at the insistence of the administration, the bill before us contains a great many ill-advised changes from the approved bill of the Armed Services Committee. For example, on coerced testimony, the committee-approved bill prohibited the admission of statements obtained through cruel, inhuman, or degrading treatment. The bill before us prohibits the admission of statements obtained after December 30, 2005, through ``cruel, inhuman or degrading treatment,'' but, inexplicably, contains no such prohibition for statements that were obtained before September 30, 2005. As a result, military tribunals would be free to admit, for the first time in U.S. legal history, statements that were extracted through abusive practices.

On the question of hearsay, the committee bill permitted the admission of hearsay evidence not admissible at trials by court- martial, if direct evidence, which is inherently more probative, could be procured ``through reasonable efforts, taking into consideration the unique circumstances of the conduct of military and intelligence operations during hostilities.''

The bill before us makes hearsay evidence admissible unless the defendant can demonstrate that it is unreliable or lacking in probative value. Hearsay evidence is not only inherently less reliable, its use also deprives the accused of the ability to confront witnesses against him. The approach taken by this bill not only relieves the Government of any obligation to seek direct testimony from its witnesses, it also appears to shift the burden to the accused by presuming that hearsay evidence is reliable unless the accused can demonstrate otherwise.

On the question of search warrants, the committee bill, the bill which I will be offering as a substitute later on today--the committee bill provided that evidence seized outside the United States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant. The bill before us deletes the limitation so that it no longer applies to evidence seized outside the United States. As a result, the bill authorizes the use of evidence that is seized inside the United States without a search warrant. This provision is not limited to evidence seized from enemy combatants; it does not even preclude the seizure of evidence without a warrant from U.S. citizens. As a result, this provision appears to authorize the use of evidence that is obtained without a warrant, in violation of the U.S. Constitution.

On the definition of unlawful combatant, the committee bill defined the term ``unlawful combatant'' in accordance with the traditional law of war. The bill before us, however, changes the definition to add a presumption that any person who is ``part of'' the ``associated forces'' of a terrorist organization is an unlawful combatant, regardless of whether that person actually meets the test of engaging in hostilities against the United States or purposefully and materially is supporting such hostilities.

The bill also adds a new provision which makes the determination of a Combatant Status Review Tribunal, or CSRT, that a person is an unlawful enemy combatant--it makes that determination dispositive for the purpose of the jurisdiction of a military commission, even though the CSRT determinations may be based on evidence that would be excluded as unreliable by a military commission.

On the issue of procedures and rules of evidence, the committee bill provided that the procedures and rules of evidence applicable in trials by general courts martial would apply in trials by military commission, subject to such exceptions as the Secretary of Defense determines to be ``required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.'' That approach, in our committee bill, was consistent with the ruling of the Supreme Court in the Hamdan case, but built in flexibility to address unique circumstances arising out of military and intelligence operations. The bill before us reverses the presumption. Instead of starting with the rules applicable in trials by courts martial and establishing exceptions, the Secretary of Defense is required to make trials by commission consistent with those rules only when he considers it practicable to do so. As one observer has pointed out, this provision is now so vaguely worded that it could even be read to authorize the administration to abandon the presumption of

innocence in trials by military commission.

On the issue of habeas corpus, the habeas corpus provision in the committee bill stripped alien detainees of habeas corpus rights, even if they had no other legal recourse to demonstrate that they were improperly detained. It also stripped those detainees of any other recourse to the U.S. courts for legal actions regarding their detention or treatment in U.S. custody. If the committee bill had been brought to the floor, I would have joined in offering an amendment to address the obvious problems with this provision. But at least the court-stripping provision in the committee bill was limited to aliens who were detained outside of the United States. The bill before us expands that provision to eliminate habeas corpus rights and all other legal rights for aliens, including lawful permanent residents detained inside or outside the United States who have been determined by the United States to be the enemy. The only requirement is that the United States determine that the alien detainee is an enemy combatant--but the bill provides no standard for this determination and offers the detainee no ability to challenge it in those cases which I have identified.

Consequently, even aliens who have been released from U.S. custody, such as the detainee that the Canadian Government recently found was detained without any basis and was subjected to torture, would be denied any legal recourse as long as the United States continues to claim that they were properly held.

I yield myself an additional 3 minutes.

In other words, a determination by the United States could not be contested, even if there is overwhelming evidence that the claim was incorrect.

These changes in the committee bill, a bill which was approved on a bipartisan basis in our committee, the changes that appear in the bill which is now before us, taken together, will put our own troops at risk if other countries decide to apply similar standards to our troops if they are captured and detained. These changes in the bill before us from the committee bill are likely to result in the reversal of convictions on appeal, and that means that efforts to convict these people of crimes can be readily reversed on appeal because of the changes that were made in the committee bill and the fact, which seems to me to be quite clear, that they do not comply in many instances with the requirements set forth in Hamdan, and the changes in the bill before us from the committee bill are inconsistent with American values.

I particularly again highlight the search and seizure requirements of our fourth amendment and the way that seems to be abandoned in the bill before us.

I close by applauding, again, Senators Warner, McCain, and Graham for their willingness to stand up to the administration and at least at the Armed Services Committee produce a bill that we were able to approve in the Armed Services Committee on a strong bipartisan vote.

However, the administration has been even more relentless in their effort to legitimize the mistreatment of detainees and to undermine some of the cornerstone principles of our legal system. While the bill before us is a modest improvement over the language originally proposed by the administration, it has adopted far too many provisions from the administration's bill. The substitute which we will be offering later on today is the committee-approved bill. That will do a much better job, if we adopt it, of protecting our troops who might become detainees in the future and does a much better job of upholding our values as a nation.

I yield the floor.

I suggest the absence of a quorum.

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

Mr. President, I ask unanimous consent that of the time under the control of the Democratic leader, Senator Reid, that 45 minutes be allocated to Senator Leahy.

I suggest the absence of a quorum and ask that the time be charged equally to both sides.

Mr. President, I now call up amendment No. 5086, which is an amendment in the nature of a substitute.

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

Mr. President, the amendment which I have just called up would substitute a bill which was adopted by the Senate Armed Services Committee on a bipartisan vote of 15 to 9 for the pending language.

Before I outline the differences between the bill which the committee adopted and the bill before us, I want to thank my good friend from Virginia for the work he and a number of other colleagues on the Republican side put into the committee bill to make it possible for that bill to be adopted.

In my earlier statement, when the Senator was not on the floor, I commended him and Senator McCain and Senator Graham for their effort earlier this month to produce a military commissions bill that would protect our troops in the event they were captured at some point down the road that would withstand judicial review and be consistent with our values.

They produced this bill in the committee, despite huge administration opposition. The chairman of the committee actually scheduled a markup, as I indicated in my prior statement, despite the opposition of the administration. The administration did then and

continues to want to permit the treatment of prisoners which is abusive. They did then and they still want to allow criminal convictions to be based on secret evidence.

But what the chairman and a number of other Republican Senators were able to do was to make some accomplishments in those two areas: in the area of secret evidence, and in the area, to an extent, of coercive statements, statements that were obtained by coercion, depending on when the statement was obtained. I will get into that in greater detail because there is a distinction in the bill that is on the floor now as to whether the statement was obtained before or after December 30, 2005, as to whether certain types of coercive treatment would be allowed and that statement, nonetheless, be admitted into evidence. I think that distinction between a statement obtained by coercion before or after December 30, 2005, is a distinction which is totally unsustainable. But I will get into that again in a moment.

But before I begin, because my friend, Senator Graham, who is also on the floor now, and my friend from Virginia were not on the floor before--before I list a number of major differences with the pending bill that I and a number of others have with the pending bill--I want to again compliment my good friend from Virginia, Senator McCain, and Senator Graham because they had to withstand a huge amount of administration pressure to get the bill out of committee. It is a far better bill than the one which is now before us. That is why I am going to attempt to substitute it for the bill that is now before us. But, nonetheless, their effort has produced some significant gains over the administration language. I acknowledge that and I thank them for that effort before I proceed to offer the committee bill that is a substitute.

I am happy to.

If the Senator will yield?

Without losing his right to--

The time limit on the substitute amendment is also 120 minutes.

I know that I did ask unanimous consent to protect the Senator from Vermont for 45 minutes on the habeas amendment.

That is on the bill itself. And on the habeas amendment, that would be up to you and Senator Specter--right?--to control.

Mr. President, on September 14, the Senate Armed Services Committee favorably reported S. 3901, the Military Commissions Act of 2006, to the Senate floor with a bipartisan vote of 15 to 9. Supporters of the committee bill on both sides of the aisle emphasized that the bill met two critical tests:

First, that we would be able to live with the procedures we established if the tables are turned and our own troops were subject to similar procedures.

Second, that the bill was consistent with our American system of justice and would stand up to scrutiny on judicial review.

On the first point, the committee bill did not authorize departure from the requirements of the Geneva Conventions, did not authorize the abuse of prisoners in U.S. custody, did not authorize the use of testimony obtained

through abusive practices, because the standards for detention, interrogation, and trial in the bill were consistent with international norms. The bill contained no procedures that we could not live with if they were applied to our own troops who might be captured at some future time.

On the second point, the committee bill established legal procedures consistent with basic principles of the American system of justice, such as the right to examine and respond to all evidence presented, and the exclusion of unreliable categories of evidence, such as coerced statements. Because the bill took the approach outlined by the Supreme Court in the Hamdan case, a trial process based on rules and procedures applicable in trials by courts martial, subject to such exceptions as might be required by the unique circumstances of military and intelligence operations in an ongoing conflict, committee members could have confidence that these provisions would be upheld by the courts on appeal.

The committee bill was not brought to the Senate floor. Indeed, the majority leader reacted to the action of the Armed Services Committee by telling the press he would filibuster the bill if the Senate Armed Services Committee bill was brought to the Senate floor. Consequently, the three Republican Senators who had drafted the committee bill, Senators Warner, McCain, and Graham, entered into negotiations with an administration that has been unrelenting in its determination to legitimize the abuse of detainees and to distort military commission procedures to ensure convictions.

The bill before us, which is the product of those negotiations, has been changed from the committee bill in so many ways that the bill is a very different bill from the one that was adopted by the Armed Services Committee. It is the Armed Services Committee bipartisan bill that I have now offered as a substitute to this new version that is being offered today.

Let me give you some examples of the differences between the committee-adopted bill and the bill that is before us. On coerced testimony, the committee bill prohibited the admission of statements obtained through cruel, inhuman, or degrading treatment. The bill before us prohibits the admission of statements obtained after December 30, 2005, through ``cruel, inhuman, or degrading treatment'' but inexplicably contained no such prohibition for such statements that were obtained before December 30, 2005.

As a result, military tribunals would presumably be free to admit, for the first time in U.S. legal history, statements that were extracted through cruel or inhuman practices.

By the way, on that issue, if anybody wants to read the actual difference in the way in which the December 30, 2005, date was provided in this bill as a dividing line between statements that could be admitted into evidence, although they were obtained through cruel and inhuman treatment, they can refer to sections 948(R)(c), on a statement obtained before December 30, 2005, the date of the enactment of the Detainee Treatment Act of 2005, which says:

The degree of coercion in dispute may be admitted if the

military judge finds the following: Totality of the

circumstances renders the statement reliable in possessing

sufficient probative value; and, 2, the interest of justice

would best be served by the admission of the statement into

evidence.

But subsection (d) reads:

If the statement is obtained after December 30, 2005, the

date of the enactment of the Detainee Treatment Act of 2005,

the degree of coercion may be disputed and may be admitted

under those same two circumstances.

It then adds a third finding that is required:

That the interrogation methods used to obtain the statement

do not amount to cruel, inhuman, or degrading treatment,

prohibited by section 1003.

So if the statement is obtained after December 30, 2005, then if it is obtained through cruel and inhuman treatment, it is not allowable into evidence. But because that requirement is missing relative to statements obtained prior to December 30, 2005, presumably, even though a statement is obtained through cruel and inhuman treatment, it is nonetheless admissible into evidence if it meets the other two tests provided. That is an unsustainable provision. It would be the first time in American legal history that we would, in effect, be authorizing statements that were obtained through that type of coercion--cruel treatment, inhuman treatment--to be admitted into evidence. That is something we should not accept.

On the issue of hearsay, the committee bill permitted the admission of hearsay not admissible at trials by court-martial if direct evidence, which is inherently more probative, could be procured ``through reasonable efforts,'' taking into consideration the unique circumstances of the conduct of military and intelligence operations during hostilities.

The bill before us, unlike the committee bill, makes hearsay evidence admissible, unless the defendant can demonstrate that it is unreliable or lacking in probative value. Well, hearsay evidence is not only inherently unreliable, it is used to deprive the accused of the ability to confront the witnesses against him.

The approach taken by this bill not only relieves the Government of any obligation to seek direct testimony from its witnesses, it also appears to shift the burden to the accused by presuming that hearsay evidence is reliable, unless the accused can demonstrate otherwise.

Relative to search warrants, the committee bill provided that evidence seized outside of the United States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant. The bill before us deletes the limitation to evidence seized outside of the United States. As a result, the bill authorizes the use of evidence that is seized inside the United States without a search warrant. I note that the chairman of the Judiciary Committee is on the floor. I particularly point out this provision to him--that because the words ``outside of the United States'' were deleted, the bill before us would allow into evidence, for the first time in history, I believe--it authorizes the use of evidence seized inside the United States without a search warrant. It is not limited to evidence seized from enemy combatants. It does not even preclude the seizure of evidence without a warrant from U.S. citizens. That is a major departure from the committee-adopted bill. It would appear to authorize the use of evidence obtained without a warrant, in violation of the United States Constitution.

The next problem I want to address is the definition of ``unlawful combatant.'' The committee bill defines the term ``unlawful combatant'' in accordance with the traditional law of war. The bill before us changes the definition to add a presumption that any person who is ``part of'' the associated forces of a terrorist organization is an unlawful combatant, regardless of whether that person actually meets the test of engaging in hostilities against the United States or purposefully and materially supporting such hostility.

In addition, the bill also adds a new provision which makes the determination of a Combatant Status Review Tribunal, CSRT, that a person is an unlawful enemy combatant, dispositive for the purpose of the jurisdiction of a military commission, even though CSRT determinations may be based on evidence that would be excluded as unreliable by a military commission.

We should not make those findings dispositive, particularly where the CSRT findings can be based on such very unreliable evidence.

Next is procedures and rules of evidence. The committee bill provided that the procedures and rules of evidence applicable in trials by general courts-martial would apply in trials by military commissions, subject to such exceptions as the Secretary of Defense determines to be ``required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need.''

So the committee bill starts with the courts-martial, the manual, and then says that the Secretary of Defense may make such exceptions as he determines are ``required by the unique circumstances of the conduct of military and intelligence operations or by practical need.''

This approach is consistent with the ruling in Hamdan. It builds in some flexibility to address unique circumstances arising out of military and

intelligence operations. The bill before us reverses the presumption, and instead of starting with the rules applicable in trials by court- martial and establishing exceptions, the Secretary of Defense is required to make trials by commission consistent with those rules only when he considers it practicable to do so. As one observer has pointed out, this provision is now so vaguely worded that it could even be read to authorize the administration to abandon the presumption of innocence in trials by military commission.

On the issue of habeas corpus, the habeas corpus provision in the committee bill stripped alien detainees of habeas corpus rights, even if they have no other legal recourse to demonstrate that they were improperly detained. It also stripped those detainees of any other recourse to U.S. courts for legal actions regarding their detention or treatment in U.S. custody.

If the substitute amendment we are offering is approved, a further amendment will be necessary to address the obvious problems with the committee habeas corpus amendment. That habeas corpus amendment is going to be offered in either event, whether or not the bill before us remains or whether or not the committee bill is substituted for it. But at least in the committee bill, the court-stripping provision was limited to aliens who were detained outside the United States. The bill before us expands that provision to eliminate habeas corpus rights and all other legal rights of redress for wrongs committed by aliens, including lawful permanent residents detained inside or outside the United States who have been determined by the United States to be enemies.

The only requirement under the bill before us is that the Government determines that the alien detainee is an enemy combatant, but the bill provides no standard for this determination and offers the detainee no ability to challenge it. Consequently, even aliens who have been released from U.S. custody, such as the detainee that the Canadian Government recently found was detained without any basis and subjected to torture, even those kinds of aliens, such as that Canadian citizen, would be denied any legal recourse as long as the United States continues to claim in a way which cannot be contested that they were properly held.

No matter how overwhelming the evidence, there is no way to contest it, and there is no legal recourse under the bill before us. That was not true of the committee bill.

The committee bill had lots of problems, in my judgment, on habeas corpus, but the bill before us, for the reasons I just outlined, goes way beyond what the committee bill provided.

As a result of these changes, the bill that is before us does not meet either of the two tests used by the majority of members at the Armed Services Committee markup. The two tests that are not met: The bill before us places our own troops at risk if others apply similar standards, and it is likely to result in convictions by military commissions that are overturned on appeal.

For example, the provision in the bill addressing coerced testimony would prohibit the use of statements that are obtained through cruel and inhuman treatment if those statements were obtained after December 30, 2005, but again, it inexplicably contains no such prohibition on statements obtained through those same methods prior to this date. This provision, in other words, expressly authorizes military commissions to consider evidence that was obtained through cruel and inhuman treatment of defendants and other witnesses.

By expressly omitting the principle that statements obtained through cruel and inhuman treatment of detainees should be precluded from evidence--even if they were obtained before December 30, 2005--this provision would set an absolutely unacceptable and frightening standard if the rest of the world adopts this same standard. This is a standard under which our own troops could be subjected to abuse and mistreatment of all kinds in order to force them to sign statements that would then be used to convict them of war crimes.

The provision also sets a standard which will be used by our terrorist enemies as evidence of U.S. hypocrisy when it comes to proclamations of human rights. Our failure to conclusively exclude statements obtained through cruel and inhuman methods are all too likely to be seen through much of the world as a confirmation of negative views of Americans and what we stand for and that have been shaped by their views of what happened at Abu Ghraib and Guantanamo.

The administration and its supporters have argued that our military judges can be counted on to exclude statements that are based on extreme forms of abuse. That may be; that may be. We have many fine military judges, and I share the hope that these judges will be willing to stand up for the humane treatment of detainees, even where Congress has failed to do so and even when the administration is unwilling to do so.

Indeed, our top military lawyers have told us that evidence obtained through coercive techniques is inherently unreliable. The Army Deputy Chief of Staff for Intelligence, LTG John Kimmons, said the same thing when he released the new Army Field Manual on interrogation procedures. He stated:

No good intelligence is going to come from abusive

practice. I think history tells us that. I think the

empirical evidence of the last five years, hard years, tell

us that. And moreover, any piece of intelligence which is

obtained under duress . . . through the use of abusive

techniques would be of questionable credibility.

I am hopeful that our military judges will likewise reject testimony that is obtained through abusive techniques as inherently unreliable and of questionable credibility.

However, our military judges cannot protect our troops in future conflicts. If an American soldier, sailor, airman, or marine is put on trial by a hostile power, he or she will not have an American military judge to stand up for his or her rights. Our troops will face foreign judges, and if the standard applied by those judges is similar to the one proposed in this bill for statements obtained prior to December 30, 2005, they are a lot less likely to get either fair treatment or fair trials.

If statements obtained through cruel and inhuman treatment of detainees are allowed into evidence, as this provision provides, any resulting convictions are unlikely to withstand scrutiny on judicial review in our own courts.

The Supreme Court specifically addressed this issue in the Hamdan case earlier this year. In that case, the Court pointed out that Common Article 3 of the Geneva Conventions prohibits the passing of sentences ``without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.''

The Supreme Court concluded that ``[t]he regular military courts in our system are the courts-martial established by congressional statutes'' and ``can be `regularly constituted' by the standards of our military justice system only if some practical need explains deviations from court-martial practice''; and the language requiring ``judicial guarantees which are recognized as indispensable by civilized peoples'' must require, at a minimum, that any deviation from procedures governing courts-martial be justified by ``evident practical need.''

The rules of evidence reviewed by the Supreme Court in the Hamdan case, such as the rules we are considering today, would have permitted the admission of statements obtained through coercion--other than torture--into evidence if a military commission determines the statements to be probative and reliable. The plurality opinion of the Court notes that under these procedures, ``evidence obtained through coercion [is] fully admissible.'' Similarly, Justice Kennedy's concurring opinion observes that the procedures in place ``make no provision for exclusion of coerced declarations save those `established to have been made as a result of torture.' ''

The Supreme Court expressly rejected those procedures. The procedures established by the President, according to the Supreme Court, ``deviate from those governing courts-martial in ways not justified by any `evident practical need,' and for that reason, at least, fail to afford the requisite guarantees'' that are recognized as indispensable by civilized peoples.

Like the procedures previously rejected by the Supreme Court, this bill

would make evidence obtained through coercion, other than torture, admissible, at least in the case of evidence obtained prior to December 30, 2005. Given that the Supreme Court has already struck down procedures that similarly failed to preclude coerced testimony once, it is surely likely that the Court will strike them down again. Whatever minimal due process may be required in the case of an alien enemy combatant, it certainly cannot be met by procedures that, as a majority of the Supreme Court has already determined, fail to provide the ``judicial guarantees which are recognized as indispensable by civilized people.''

We should also reject this provision because it is inconsistent with American values and what we stand for as a nation. During the Revolutionary War, the British mistreated many American prisoners. But as described by David Hackett Fischer in his book ``Washington's Crossing,'' General Washington ``ordered that . . . the captives would be treated as human beings with the same rights of humanity for which Americans were striving,'' and those ``moral choices in the War of Independence enlarged the meaning of the American Revolution.''

We have always believed that we hold ourselves to a higher standard than many other nations. Others may abuse prisoners; we do not. Others may engage in cruel and inhuman practices; we do not. Others may believe that the ends justify the means; we do not. It is contrary to what we stand for as a nation.

Former Navy general counsel Alberto Mora bravely fought against efforts by others in this administration to approve cruel and inhuman interrogation techniques. Mr. Mora explained his stand when he was awarded the 2006 John F. Kennedy Profile in Courage Award on May 22. He said:

We need to be clear. Cruelty disfigures our national

character. It is incompatible with our constitutional order,

with our laws, and with our most prized values. Cruelty can

be as effective as torture in destroying human dignity,

and there is no moral distinction between one and the

other. To adopt and apply a policy of cruelty anywhere

within this world is to say that our forefathers were

wrong about their belief in the rights of man because

there is no more fundamental right than to be safe from

cruel and inhuman treatment. Where cruelty exists, law

does not.

If we enact this provision into law, giving a congressional stamp of approval to the use of cruel and inhuman methods to extract testimony from detainees, we will diminish ourselves as a people and, as Colin Powell stated in a recent letter to Senator McCain, add to the world's doubts about the moral basis of our fight against terrorism.

The bill, as reported by the Armed Services Committee, will protect our troops, will be more likely to result in convictions that are upheld on appeal, and will be more in keeping with our values as a nation. That bill allows for interrogation, it allows for detention, it allows for prosecution, and it allows for conviction.

The issue isn't whether we interrogate or detain people. We are going to do it. We need to do it. The question is whether we do it in a way which is in keeping with our values, which is in keeping with rules we have established in the Army manual, for instance, for the treatment of people who are captured by our Army. It is whether we do it in a way that is in keeping with what we would insist others follow if they capture our people, what we insist upon in the committee substitute-- that committee bill which we adopted on a bipartisan basis--our standards and rules for which we will argue if our people are captured or detained by others.

We cannot make the distinction this bill before us makes--that cruel and inhuman treatment which leads to a statement or confession is not going to be the basis for excluding a statement if that statement is made before December 30, 2005. Only after December 30, 2005, are statements excluded where they are the product of cruel and inhuman treatment. But before December 30, 2005, according to the bill in front of us now, those statements are not excluded unless they meet two other tests. We have to be very clear on this issue. After December 30, 2005, any of three tests, if met, will result in the exclusion of those statements but not before December 30, 2005, when we know as a fact that so much of the abuse took place.

So I urge our colleagues to support the substitute amendment. Again, I wish to make clear that this substitute amendment is the Senate Armed Services Committee bill which the chairman and others labored so hard to produce. It is a bill which avoids many of the pitfalls of the bill that is before us. I hope our colleagues will vote to substitute that bill for the pending language.

Mr. President, how much time do I have remaining?

I thank the Chair, and I yield the floor.

Mr. President, how much time do I have?

Mr. President, I yield 9 minutes to the Senator from New Mexico.

Mr. President, there is no question that we have to fight the war on terrorism, and we can win that war, but we can do so without compromising the very principles that govern this Nation and have given us strength and attract us to so many other nations. Those principles are compromised in the bill before us. They were not compromised in the committee bill that passed on a bipartisan vote.

Here are two quick examples of how our basic principles are compromised

in this bill: Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant. In other words, in the United States of America, evidence can be seized from an American citizen, not an enemy combatant--it can be seized from any one of us without a search warrant and used in one of these trials. This language in the bill which is before us would authorize the use of that evidence so seized. That is a fundamental compromise with the principles that have governed this Nation. We have never allowed testimony and statements that have been obtained through cruel and inhuman treatment to be introduced into evidence. Yet that is the way the bill is written.

Mr. President, I ask unanimous consent for 30 additional seconds to finish that statement.

I thank the Chair.

A second example of how a fundamental principle is compromised in the bill before us is, if a statement is obtained through cruel and inhuman treatment of somebody, for the first time in American jurisprudence, this bill would apparently say that statement is allowable in evidence if it was acquired before December 30, 2005. That is unlike statements that are acquired after December 30, 2005, where there are no ifs, ands, or buts, there are no other tests that need to be applied--if it was obtained through cruel and inhuman treatment, it is not admissible into evidence. That is a fundamental principle which is not followed for statements obtained before December 30, 2005, in the bill before us. That is another example of why the substitute, I hope, will be adopted, which is the committee bill--a bipartisan bill--that is now before us.

That is correct. That is not in dispute.

I surely do. We are talking here about cruel and inhuman treatment.

The statement is correct. The issue, of course, which we are debating is why, relative to statements obtained prior to December 30, 2005, is another test omitted, which is present for statements obtained after December 30, 2005, which are statements that are obtained through cruel and inhuman treatment. That is the issue which I raised.

I think that is true. It may or may not protect aliens, but it does protect American citizens. And the language on page 21 does not protect American citizens from seizures that are illegal. It says:

Anything which is seized without a search warrant is

allowable into these trials.

It is not limited to material that is seized from aliens or material which is seized from enemy combatants. It says illegally obtained material can be admitted into this trial, period.

We had such a restriction in the bill which came out of committee so that it was limited to evidence which was seized abroad, for instance. That would be fine because they may not have the fourth amendment that we do. But in the bill which is now before us, there is no such limitation.

I will read the one sentence:

Evidence shall not be excluded--

Shall not be excluded--

from trial by military commission on the grounds that the

evidence was not seized pursuant to a search warrant or other

authorization.

In the substitute bill, that allowance of illegally seized evidence is limited to evidence which is not seized from American citizens here. So that distinction has been obliterated in the bill which is before us.

Mr. President, I ask unanimous consent that William Johnson, a fellow in Senator Kennedy's office, be granted floor privileges during the consideration of S. 3930.

Mr. President, last month, on August 10, President Bush announced a new U.S. initiative to combat corruption around the world. He named it a ``National Strategy to Internationalize Efforts Against Kleptocracy.'' In introducing this initiative, President Bush said:

High-level corruption by senior government officials, or

kleptocracy, is a grave and corrosive abuse of power and

represents the most invidious type of public corruption. It

threatens our national interest and violates our values. It

impedes our efforts to promote freedom and democracy, end

poverty, and combat international crime and terrorism.

I couldn't agree more.

But lately, some of the President's actions are at odds with his rhetoric. The first principle of the President's initiative against corruption is to deny entry into the United States to kleptocrats, meaning high-level officials engaged in or benefitting from corruption. Yet in recent months the administration has welcomed two of the world's most notorious kleptocrats: Teodoro Obiang, the President of Equatorial Guinea, and Nursultan Nazarbayev, the President of Kazakhstan.

What do these two men have in common besides corrupt dictatorships? Oil. Both control their nations' vast oil resources. Both supply oil to the United States. By welcoming these corrupt

dictators into the United States, in contradiction to the anticorruption principles articulated by the President in August, the administration announces to the world that we will compromise our principles for a price: oil.

On April 12 of this year, at the State Department, Secretary Rice greeted the President of Equatorial Guinea, Teodoro Obiang, by saying: ``Thank you very much for your presence here. You are a good friend and we welcome you.'' In welcoming Mr. Obiang, she made no mention of the deeply troubling hallmarks of his regime, no mention of human rights abuses, no mention of election fraud; no mention of widespread and high-level corruption. Instead, a photograph of Secretary Rice shaking Mr. Obiang's hand and smiling broadly appeared in publications around the world. Mr. Obiang has undoubtedly used his visit, and that photograph, to legitimize his regime and demonstrate his favored status in the United States.

Secretary Rice said that her objective as Secretary of State is to conduct ``transformational diplomacy'' which, in her words, requires us to ``work with our many partners around the world to build and sustain democratic, well-governed states that will respond to the needs of their people--and conduct themselves responsibly in the international system.'' Under Mr. Obiang, Equatorial Guinea is nothing near democratic, well-governed, or responsive to its citizens.

Equatorial Guinea is the third largest oil producer in sub-Saharan Africa. It currently exports about 360,000 barrels per day, with much more under development. U.S. companies have invested over $10 billion to develop those oil resources. But the development of Equatorial Guinea's oil resources has not benefitted its deeply impoverished people. Though Equatorial Guinea's oil money makes it, on a per capita basis, one of the wealthiest nations in the world, the standard of living of its people is among the world's poorest. Equatorial Guinea ranks 121st on the United Nations Human Development Index. According to a 2002 State Department report, there is ``little evidence that the country's oil wealth is being devoted to the public good.''

Mr. Obiang is a principal cause of his people's misery. He took power by coup 30 years ago, his opponents have been jailed and tortured, and his most recent election was condemned by the State Department as ``marred by extensive fraud and intimidation.'' The 2005 State Department Country Report on Human Rights Practices states, that in Equatorial Guinea, ``Official corruption in all branches of the government remained a significant problem.'' In its index of corruption, Transparency International ranks Equatorial Guinea 152 out of 159 nations. In other words, Equatorial Guinea is one of the most corrupt countries in the world today.

I became familiar with the Obiang regime through my role as ranking minority member of the Senate Permanent Subcommittee on Investigations. On July 15, 2004, the subcommittee held a hearing entitled, ``Money Laundering and Foreign Corruption: Enforcement and Effectiveness of the Patriot Act.'' That hearing and an accompanying report detailed how President Obiang and his family had been personally profiting from U.S. oil companies operating in his country, established offshore shell corporations to open bank accounts at Riggs Bank here in Washington, and made large deposits, including cash deposits of as much as $3 million at a time, in transactions suggesting strongly that the funds were the proceeds of foreign corruption. In addition, over $35 million in oil proceeds were transferred to suspect offshore accounts.

President Bush has stated that his intention is to ``defeat high- level public corruption in all its forms and to deny corrupt officials access to the international financial system as a means of defrauding their people and hiding their ill-gotten gains.'' And yet, after it was revealed that Mr. Obiang misused U.S. financial institutions to launder suspect funds, the State Department actually intervened on behalf of his regime in order to convince U.S. banks to open accounts for the Equatorial Guinean Government. That bears repeating: after it was shown how Mr. Obiang used Riggs Bank to deposit and transfer suspect funds, and after Riggs shut down the accounts used by him and his regime, the State Department approached reluctant U.S. banks and asked them to open accounts for the Obiang regime. So much for ``denying corrupt officials access to our financial system.''

There is more. A few months ago, in May, the administration announced a new program directing the Defense Department to help 20 specified countries build up their military forces. One was Equatorial Guinea. Despite a terrible human rights record, a reputation for corruption, and their own oil wealth, the administration proposed spending U.S. taxpayer dollars to build up the Obiang regime's military. Indeed, President Bush asked for a provision in the DOD authorization bill approving the funding. A number of us objected, and Equatorial Guinea was removed from the provision in the Senate bill.

These and other actions taken by the administration to court Mr. Obiang are more than misguided. They supply ammunition to critics of America who claim we don't mean what we say and we don't live up to our principles, especially when oil is at stake. On the issue of foreign corruption, the President needs to play it straight. What will it be? Will we avert our eyes from Mr. Obiang's record of corruption and brutality so we can obtain Equatorial Guinea's oil? Or will we demand an end to his corrupt ways?

The President's courting of Mr. Nazarbayev of Kazakhstan is also disturbing. Mr. Nazarbayev is an iron-fisted dictator who imprisons his opponents, bans opposition parties, and controls the press. The State Department's 2005 Kazakhstan Country Report on Human Rights Practices states that ``the government's human rights record remained poor,'' and ``corruption remained a serious problem.''

That is not all. Several years ago, our Justice Department filed a criminal indictment alleging that Mr. Nazarbayev accepted tens of millions of dollars in bribes from an American businessman. The U.S. attorney of the Southern District of New York is at this very moment preparing for trial in the case, U.S. v. Giffen. The indictment targets the American businessman, James Giffen, for paying $78 million in bribes to Mr. Nazarbayev and his cronies to gain access to an oil field in Kazakhstan. It does not charge Mr. Nazarbayev with a crime, despite alleging his acceptance of the bribes. It is a sad and sorry spectacle to observe that, despite this indictment, the administration is welcoming Mr. Nazarbayev to the White House this week.

Talk about mixed messages. For paying the bribes, Mr. Giffen gets indicted for violating the Foreign Corrupt Practices Act, mail and wire fraud, money laundering, and tax evasion; for accepting the bribes, Mr. Nazarbayev gets an invitation to the White House. The President has invited to the White House a man who our very own Department of Justice accuses of accepting a $78 million bribe. Why? What could be the reason, the justification, for this White House invitation? Could it be that Kazakhstan exports 1 million barrels of oil per day?

The President has got to play it straight. The State Department says Mr. Nazarbayev is a dictator who imprisons opponents and disregards human rights. The Justice Department says he accepted $78 million in bribes from one U.S. businessman alone. The President says he is an honored guest. Which is it? Corrupt dictator or honored guest? Surely it can't be both.

President Bush said that kleptocracy ``threatens our national interest and violates our values.'' He said high-level foreign corruption ``impedes our efforts to promote freedom and democracy, end poverty, and combat international crime and terrorism.'' He is right, which is exactly why his courtship of corrupt dictators like Mr. Obiang and Mr. Nazarbayev is so deeply regrettable. To compromise our battle against corruption to gain favor with oil-producing dictators is not only morally wrong, it hands a propaganda club to our critics, it sustains brutal and corrupt regimes, and it is ultimately destructive of our efforts, in the words of Secretary Rice, to ``build and sustain democratic, well-governed states.'