Floor Statements

Mr. President, the outcome of today's vote on raising the debt ceiling to nearly $9 trillion is not in question, but our future economic security will be if we do not change from our current disastrous course. We will raise the debt limit today so that the United States does not default on its obligations, but we cannot for a second think that we have solved the problem or even moved in the right direction.

This will be the fourth time in 5 years that we have had to raise the amount the Government is allowed to borrow. This is a direct result of the fiscal irresponsibility of this administration. These policies have taken the Nation from 2 years of record surpluses just 6 years ago-- when we were paying down our debt--to record deficits and debt. We are passing on a crippling burden to our children and grandchildren and threatening our economic security.

Since 2002, we have increased the debt limit by an astounding $3 trillion. And unless we make a significant change in our fiscal policies, there are additional increases in our future. The Congressional Budget Office forecasts that our gross Federal debt, which includes debt the Government owes to the public plus funds owed to Federal trust funds, including Social Security and Medicare, will climb from its current level of $8.3 trillion to $12.8 trillion by 2016. Even this extraordinary estimate does not include either the coming costs of military operations in Iraq or the substantial cost of fixing the alternative minimum tax, which if left unchanged will impose unintended tax increases on middle-income taxpayers, which most agree need to be changed.

The burden this massive debt puts on our children is staggering. Today, each American citizen's share of the debt is over $27,000, and it will rise to over $39,000 by 2016. Paying off this debt will require either extraordinary tax increases or significant cuts in critical areas such as defense or Social Security. Tragically, it will mean that an increasing number of taxpayer dollars will be spent not on moving America forward but simply on treading water by making interest payments to our creditors. Even under the CBO's conservative estimates, interest payments on the gross debt will rise from $352 billion in 2005 to $662 billion in 2016. That means over the next 10 years, we will spend an estimated $5.6 trillion on interest payments alone. Making these interest payments means fewer resources are available for our national priorities such as shoring up the Social Security and Medicare trust funds as the babyboom generation begins to retire.

Equally disturbing is what this rampant borrowing will mean for our economic security. As we go deeper into debt to foreign countries we are losing control of our own destiny. Over 90 percent of our newly issued debt is being purchased by foreigners. By the end of 2004, U.S. Treasury debt held by foreigners was close to $2.2 trillion, more than double the amount that was held at the beginning of this administration. This large amount of foreign debt leaves us vulnerable to the priorities of foreign creditors. If foreign investors, including countries, were to decide, for economic or political reasons, to stop financing our debt, the U.S. economy would be in for a severe shock.

Even without a catastrophic event, our unbridled foreign borrowing erodes our power by providing other countries with leverage during trade or other negotiations. We cannot delude ourselves into thinking we can maintain our position in the world if we can't even balance our checkbook.

We need to turn away from this administration's irresponsible fiscal policies. One of the best steps we could take would be to reinstate pay-as-you-go budget enforcement rules that require tax cuts and not just spending to be paid for. This approach worked during the 1990s to help bring about the first surpluses in a generation, and it can work again.

We should also revisit this administration's irresponsible and unfair tax cuts that have driven us so deeply into this deficit ditch. It is unconscionable that middle-class Americans will be paying for years for tax cuts that went primarily to the wealthiest among us. In fact, the top 5 percent of households in our country, whose average income is more than $250,000 a year, received almost half of the President's tax cuts.

Today's action to raise the debt limit will hopefully be a reality check on what Republican fiscal policies have wrought. We need to change course. We need to return to fiscal responsibility. And we need to start climbing out of this deficit ditch before we are buried in it.

Mr. President, the Levin-DeWine amendment would provide $140 million to the Advanced Technology Program to support cost-shared industry-led research and development of cutting-edge high-risk technology with broad commercial potential and societal benefits. The amendment is fully offset with reductions in function 920.

The Senate has voted twice recently in support of this program. Last year the Senate voted to adopt a Levin-DeWine budget amendment to provide for the Advanced Technology Program, ATP. The Senate defeated an amendment that would have eliminated the ATP Program during consideration of the fiscal year 2006 Commerce-Justice-Science appropriations bill.

We have lost nearly 2.8 million manufacturing jobs since January 2001. We should be doing all we can to promote programs that help create jobs and strengthen the technological innovation of American companies and produce the systems that are defending our national security. This budget resolution includes $28 billion for agriculture but includes very little for manufacturing.

In fiscal year 2006 the Senate funded ATP at $140 million, but because the House zeroed out the program, ATP ended up with only $80 million in conference. The Senate needs to again provide $140 million for ATP to help ensure this program has at least last year's level of funding.

The ATP is a very modest program which, according to the Department of Commerce, has had a result eight times more in technologies developed than the amount of money we have put into the program. This is an eight-time return on investment in advanced technologies which is achieved when the Department of Commerce partners with industry through the ATP. I urge adoption of the amendment.

Mr. President, every year the Senate considers a budget resolution that sets forth the blueprint for the Government's spending and revenues. Unfortunately, the budget we are considering this year continues the administration's policies that have led to the deepest deficits and debt in American history. It also reflects the wrong priorities by cutting important programs like education and Medicare to fund large tax cuts which mostly benefit the richest among us.

The result of these irresponsible fiscal policies is that we are passing on a huge burden to our children and grandchildren and threatening our economic security. Our Nation is currently $8.2 trillion in debt--that's over $27,000 per person--and this astounding number is only getting worse. Earlier today the Senate voted to raise the Federal debt limit for the fourth time in 5 years, meaning we've increased our debt by $3 trillion since 2002. A sensible budget resolution would try to curb this unsustainable trend; unfortunately, this budget moves in the wrong direction. Under this budget, the national debt would grow to $11.8 trillion in the next 5 years.

Continued deficits will mean rising long-term interest rates and slower economic growth. Continued deficits will make it more expensive to buy a house, pay for college, or pay off credit card debt. Alan Greenspan recently warned that, if left unchecked, deficits ``would cause the economy to stagnate or worse.'' Continued deficits will also mean the continued use of the Social Security Trust Fund to cover the funding shortfalls.

Instead of changing course, however, this budget proposes to make the administration's tax cuts permanent.

Over 10 years, the cost of making tax cuts permanent would be approximately $2.8 trillion, or $3.3 trillion when the added interest payments on the debt are included. Although the cost of the President's tax breaks are as large as the entire budgets of the Departments of Agriculture, Labor, Education, Veterans Affairs, Transportation, Justice, Interior, Energy, State, HUD, and EPA combined, his budget cuts critical programs which are a small percentage of the deficit problems his tax breaks create.

On a positive note, I was able to get an amendment included in this budget to provide $140 million to the Advanced Technology Program to support cost-shared industry-led research and development of cutting- edge high risk technology with broad commercial potential and societal benefits. America has lost nearly 2.8 million manufacturing jobs since January 2001. We should be doing all we can to promote programs that help create jobs and strengthen the technological innovation of American companies and produce the systems that are defending our national security.

I am also pleased that the Senate agreed to my amendment to add $6 million to the budget for the establishment of new Northern Border Air Wing sites. Northern Border Air Wings have been operational in New York and Washington since 2004 and I look forward to the opening of additional sites in Michigan, North Dakota, and Montana in the coming years. These sites will help improve critical air and marine interdiction capabilities along our Northern Border.

I am also pleased that the budget includes an important amendment that Senator Stabenow and I offered that will improve inspections of trash trucks entering the U.S. from Canada. These trucks pose a threat to our security and the environment, and this amendment is a critical step towards reducing these risks.

I am also pleased that the Senate adopted an amendment to the budget resolution to fund the Low Income Home Energy Assistance Program, LIHEAP, at its full authorized level of $5.1 billion. This amendment would increase the LIHEAP funding for 2007 by $3.318 billion and offset the increased spending by closing corporate tax loopholes. The Senate has voted on five previous occasions to support full funding for the LIHEAP program, and I hope that this time the conferees on the budget resolution will retain this amendment. Full funding for LIHEAP will ensure that States are able to serve more people in need of assistance during both the cold winter months.

While there are certainly some positive inclusions in this budget package, it is entirely too fiscally irresponsible and short-changes too many important programs for me to vote to support it.

Mr. President, last week, the Violence Policy Center, VPC, released a report which analyzes statistics related to basic Federal Firearms License, FFL, holders in the United States since 1992. The report warns of a large group of current FFL holders it calls ``kitchen-table dealers.'' The VPC defines this group as ``individuals who conduct business out of their homes and offices and do not operate actual gun or sporting goods stores'' and estimates that more than half of current FFL holders fit into this group. Disturbingly, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, ATF, found in 2000 that 23 percent of its illegal gun trafficking investigations involved ``kitchen-table dealers'' who were responsible for the illegal trafficking of more than 40,000 guns.

According to the VPC, many ``kitchen-table dealers'' have no interest in actually selling firearms, but they obtain an FFL because of the exemptions it provides from Federal requirements including background checks, waiting periods, and limits on the number of guns that can be purchased. Under current law, an FFL holder must be a person who ``devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms.'' However, a February 2000 ATF report found that 31 percent of FFL holders had not reported selling a single firearm in the previous year. Unfortunately, rather than allowing the ATF to work within the law to revoke illegitimate FFLs and help to eliminate a source of illegally trafficked firearms, opponents of commonsense gun safety laws inserted a provision in the fiscal year 2006 Department of Justice Appropriations bill which prevents the ATF from denying the application or renewal of a FFL due to a lack of business activity.

In its report, the VPC calls on Congress to rescind this provision and proposes a number of other ideas to help eliminate the abuse of FFLs. Among other things, the VPC proposes that all FFL holders be required to operate from a storefront business devoted primarily to the sale of firearms, rather than a residence, and securely store inventories of firearms. Additionally, the VPC suggests an expansion of ATF's ability to inspect FFL businesses for compliance with record keeping and safety requirements.

We must do more to eliminate the abuse of FFLs in order to reduce the number of guns that are illegally bought and sold in our communities.

Mr. President, the Five-Seven handgun, manufactured by the Belgian firearms company FN Herstal, was reportedly designed to provide military and law enforcement personnel with a small, lightweight, and accurate pistol that was powerful enough to kill or seriously injure enemies wearing body armor. A January 2000 cover article in the popular American Handgunner magazine profiled the handgun and predicted that, for obvious reasons, ``neither the gun nor the ammunition will ever be sold to civilians.'' Unfortunately, the American Handgunner article was wrong and FN Herstal made the Five-Seven pistol available to private buyers in 2004. These high-powered firearms clearly have no sporting purpose and pose a great threat to the lives of our law enforcement officers.

According to the FN Herstal website, the Five-Seven weighs less than 2 pounds fully loaded and measures only 8.2 inches in length, making it easily concealable. A statement which previously appeared on the website boasted ``Enemy personnel, even wearing body armor can be effectively engaged up to 200 meters. Kevlar helmets and vests as well as the CRISAT protection will be penetrated.'' This statement has since been removed.

Ballistics tests conducted by the American Handgunner for their January 2000 article provided evidence of the armor-piercing capabilities of the Five-Seven pistol. In the tests, ammunition fired by the Five-Seven successfully pierced level IIA Kevlar body armor and penetrated 6 inches into ballistics testing gelatin behind it. According to the Brady Campaign to Prevent Gun Violence, level IIA Kevlar body armor is the kind commonly worn by law enforcement officers.

The already lethal nature of the Five-Seven handgun was amplified when Congress failed to renew the 1994 Assault Weapons Ban, allowing it to expire on September 14, 2004. Among other things, Congress's inaction resulted in the legalization of previously banned high- capacity magazines, including the 20 round clip currently sold with the Five-Seven.

The law enforcement community is rightfully concerned about the Five- Seven's ability to kill law enforcement personnel, even while they are wearing protective body armor. Last year, a coalition of law enforcement groups including the International Association of Chiefs of Police, the International Brotherhood of Police Officers, and the National Organization of Black Law Enforcement Executives issued a warning to their members about the threat posed by Five-Seven handguns.

Bernard Thompson, director of the National Organization of Black Law Enforcement Executives, warned regarding the Five-Seven:

No one is safe from a weapon like this. Police body armor

won't offer protection if a criminal has this pistol.

In addition, the legislative director of the International Brotherhood of Police Officers, Steve Lenkhart, called the Five-Seven ``an assault rifle that fits in your pocket.''

In response to concerns raised by law enforcement officials and others, Senator Lautenberg, introduced the Protect Law Enforcement Armor Act on March 3, 2005. Among other things, this legislation would prohibit the sale of the Five-Seven pistol and its ammunition to private buyers in the U.S. Unfortunately, despite the continuing threat posed by this high-powered pistol to our law enforcement officers, Senator Lautenberg's legislation has yet to receive any consideration by the Senate Judiciary Committee in the year since it was introduced.

We should not ignore the concerns of our law enforcement officers with regard to the Five-Seven pistol and other military-style firearms. Congress should take up and pass commonsense legislation banning the sale of these dangerous weapons because of the threat they pose to the safety of our communities and those who work so hard each day to protect them.

Mr. President, I would like to take this opportunity to congratulate Redford Avenue Presbyterian Church on 100 years of worship and service to the community. This milestone was recently commemorated with 2 days of events, culminating in a dance and dinner celebration that took place on March 6, 2006. This momentous occasion provides the perfect opportunity to reflect on Redford's rich history and to remember the integral role Redford has played in the community over the years.

Redford Avenue Presbyterian Church was established in March 1906 by a small congregation that served what was then known as the Sand Hill in Detroit. The church's membership grew rapidly, and as a result, in 1929, a separate addition was built to accommodate the larger congregation. Unfortunately, in 1945 the sanctuary was completely destroyed by a fire. However, this tragedy provided an important opportunity for the congregation and community to work together to rebuild the church, and by 1954, a new sanctuary, educational wing and fellowship hall was constructed. By the late 1960s, the membership had grown to more than 3,600 people.

Today, Redford Avenue Presbyterian Church has a smaller congregation but has maintained its strong spirit, deep faith and unwavering commitment to serve and minister to the greater Detroit community. For the last 30 years the church has run a daycare center that helps to meet the needs of many working parents in the community. In addition, Redford's educational building is currently being leased to a charter school and is also used by a local division of Sea Cadets.

Redford Avenue Presbyterian Church also continues to make its building available to many groups and organizations in the neighborhood. Considered a cornerstone of the community, Redford consistently provides meeting space for groups such as Narcotics Anonymous and Metro Detroit Deaf Senior Citizens. And, for 1 night each January, the church opens its doors to house, feed, clothe, and minister to the homeless.

I know my Senate colleagues will join me in congratulating Redford Avenue Presbyterian Church and wish its members, volunteers, and ministerial staff many more years of fellowship and service.

Mr. President, I take this opportunity to congratulate all of the athletes who competed in the 2006 Winter Olympic games in Torino, Italy. The Olympics provides an opportunity for athletes from many different disciplines and from around the world to display their skill and determination on a world stage. It was truly gratifying to see so many athletes from across the globe come together in peaceful competition.

Throughout the Olympics and in the many years leading up to the games, athletes must make many personal sacrifices and embody the attributes of perseverance, hard work, and determination in pursuit of personal goals and Olympic medals. Michigan was represented by a strong group of athletes competing in seven different sports, winning five medals for the United States, including one Gold, two Silvers and two Bronze Medals. The accomplishments of these men and women are impressive and an inspiration for all of us. I am extremely proud of the men and women with ties to Michigan who competed in the 2006 Winter Olympics in Torino.

Michigan continued its long tradition of sending world-class athletes to the Winter Olympic games by sending more than three dozen athletes with ties to Michigan, many of whom benefited from spending time at the Olympic Education Center, OEC, at Northern Michigan University, NMU, in Marquette. The OEC, which currently trains athletes in boxing, short track speed skating, greco-roman wrestling, and weightlifting, has been an integral part of the success of many athletes since its inception in 1985. This year, 28 athletes who utilized these facilities represented the United States in these games.

One of the games' most memorable and historic moments was provided by Northern Michigan University speed skater Shani Davis, who earned the distinction of being the first African American to medal in an individual Winter Olympic event when he secured Gold in the 1,000 meter and Silver in the 1,500 meter. Continuing our strong

speed-skating tradition, Alex Izykowski and fellow USOEC athletes J.P. Kepka, Apolo Anton Ohno, and Rusty Smith won the Bronze Medal in the 5,000 meter relay. Also representing the United States on the speed- skating track were Kip Carpenter and Anthony Lobello in the 500 meters and Kimberly Derrick in the 3,000 meter relay and the 1,000 meter. Derrick competed courageously in the 1000 meter after losing her grandfather the day before that event.

Tanith Belbin and Ben Agosto provided an especially gratifying moment in securing the first medal in ice dancing for the United States since 1976. Belbin and Agosto, skating in their first Olympics, won the highest medal the United States has ever received in ice dancing. Jamie Silverstein and Ryan O'Meara also represented the United States with grace and an abundance of pride. Training in Michigan at the same rink as Belbin, Agosto, Silverstein, and O'Meara were Canadian ice dance pair Megan Wing and Aaron Lowe. The U.S. pairs skating team of Marcy Hinzmann and Aaron Parchem from Bloomfield Hills demonstrated the skill and talent necessary to compete in this challenging sport.

The U.S. cross-country ski team included four Northern Michigan University alumni. First-time Olympians Chris Cook, Abby Larson, Lindsey Weier, and Lindsay Williams each took on the challenge of multiple events in one of the most grueling disciplines in the Winter Olympics. The Luge and Bobsled teams were led by Olympic veterans from Michigan. Waterford native Jean Prahm competed as the driver for the bobsled with partner Vonetta Flowers. Four-time Olympian and two-time medalist Mark Grimmette competed in the doubles luge.

The U.S. women's hockey team won the Bronze Medal by defeating Finland by a score of 4 to 0. Angela Ruggiero, a three time Olympian from Harper Woods, played in all five games as a defensemen, scoring two goals and tallying four assists to help the U.S. win the Bronze.

In men's hockey, Team U.S.A. was represented by Chris Chelios and Mathieu Schneider of the Detroit Redwings and by several other U.S. players with ties to Michigan, including John-Michael Liles, Derian Hatcher, Mike Knuble, Mike Modano, Brian Rafalski, Doug Weight, and Brian Rolston. Nine other Detroit Redwings participated in the Olympic games representing their home countries. Thomas Holmstom, Niklas Kronwall, Nicklas Lidstrom, Stefan Liv, Mikael Samuelsson, and Henrik Zetterberg provided the nucleus of the Sweden team that won the Gold. Robert Lang assisted the Czech Republic team to a Bronze Medal finish. In addition, Pavel Datsyuk represented Russia, and Kris Draper represented Canada.

I know I speak for all Michiganians in expressing appreciation and congratulations to all of the Michigan athletes, coaches, and administrators who took part in the 2006 Winter Olympic games. The games last a few short weeks, but the memories will be ingrained in the minds of all who saw them and shared vicariously in the efforts of these great athletes. For their commitment, drive, and competitive spirit, I congratulate all the athletes of the 2006 Olympic games, but it is with particular pride that I salute the athletes from Michigan.

Mr President, when the PATRIOT Act reauthorization bill left the Senate last July, we had a bill with provisions that protected both our security and our liberty. What came back to the Senate from the House-Senate conference committee was a bill that raised significant concerns for Senators from both sides of the aisle. As a result, the Senate did not vote to end debate in December, as Senators wanted more time to address those concerns.

The PATRIOT Act conference report which is before us leaves major problems unaddressed. Among the conference report's flaws: Section 215 of the PATRIOT Act permits the Government to seek court orders, to compel the production of any tangible thing, including library, medical and business records, in foreign intelligence investigations, including records of people who are totally innocent even of any allegation of impropriety. The conference report omits language in the Senate-passed bill establishing a reasonable standard for the FBI to obtain these sensitive records with Section 215 orders. And to make matters worse, the conference report permits the FBI to include gag orders that preclude the recipient from telling anyone they even received the order. The conference report does not even permit recipients to challenge those gag orders in court. Also, the conference report requires recipients section 215 orders to tell the FBI, if asked, from whom they have sought legal advice.

Since December, there have been a number of efforts to improve the conference report. Unfortunately, those have met with limited success. The Sununu bill, if it passes the House of Representatives, would make only minimal improvements to the conference report that the Senate considered last December.

The Sununu bill, if it passes the House, would eliminate the requirement that recipients of 215 court orders tell the FBI, if asked, whom they consulted for legal advice. This would be a worthwhile, if minor, improvement. The Sununu bill also provides people the right to challenge gag orders attached to so-called section 215 court orders. But the benefit of that is offset by the fact that the bill severely constrains the court's discretion to modify or set aside those gag orders.

Some argue the conference report is an improvement over the original PATRIOT Act. The bill before us does indeed correct some of the flaws in the original PATRIOT Act. For example, the PATRIOT Act did not require that a roving wiretap order identify a specific target--raising concerns that it could authorize so-called John Doe roving wiretaps. I am pleased that the conference accepted language that I proposed to correct that flaw.

However, too many flaws remain, the most serious of which is the standard of review section 215 court orders.

As I said earlier, section 215 of the PATRIOT Act permits the Government to seek court orders, to compel the production of any tangible thing, including library, medical and business records, in foreign intelligence investigations. No problem there. However, under section 215, the Government need not describe, much less identify, a particular person to whom the records relate, even in general terms, as linked to a terrorist groups or organization. I believe that we ought to apply the same logic to section 215 orders that the conference report applies to roving wiretaps. We ought to require that records sought with section 215 orders have some connection to an alleged terrorist or terrorist organization. Unfortunately, the standard in the conference report does not include that. It fails to narrow the scope of records that the Government can subpoena under section 215 to less than the entire universe of records of people who, for instance, patronize a library or visit a doctor's office. Instead, fishing expeditions are authorized, which could result in invasions of the privacy of large numbers of innocent Americans.

Let's assume the FBI has information that a person, whose identity is not known to the FBI, is using computers at New York public libraries to view certain Web sites.

The FBI only knows that the person has knowledge of the particular Web sites. The person is not suspected of wrongdoing himself. The FBI wants to find out the person's identity as part of a foreign intelligence investigation into those Web sites. The agency believes that they might be able to identify the person if they could review all the computer user records held by public libraries in New York.

The conference report would presumably permit the FBI to obtain a court order compelling the New York Public library to provide the records of all their patrons. That is truly a fishing expedition. The conference report would also allow the FBI to prohibit the library from telling patrons that their names had been handed over to the FBI. While the Sununu bill permits the library to challenge that prohibition in court, it does not permit meaningful court review because, under its terms, if the Attorney General or another specified senior official certifies that disclosure may endanger national security or harm diplomatic relations, the court must find bad faith on the part of the Government in making such certification for the court to modify or set aside the nondisclosure requirement. This virtually eliminates the court's discretion.

Another example. Assume the FBI has information that a person, whose identity is not known to the agency, is sending money to charitable organizations overseas. They know from a credible source that the person is being treated for HIV at a particular AIDS clinic in New York that has 10,000 patients. The FBI wants to find out the person's identity as part of a foreign intelligence investigation into links between unspecified overseas charities and terrorist organizations. The agency believes that they might be able to identify the person if they could review the AIDS clinic's 10,000 patient files.

The conference report would permit the FBI to obtain a court order compelling the AIDS clinic to provide the files of all of its patients. The conference report would allow the FBI to prohibit the AIDS clinic from telling its patients that their names had been handed over to the FBI. While the Sununu bill permits the clinic to challenge that prohibition in court, as I discussed earlier, it does not permit meaningful court review because the Attorney General's unilateral certification would have to be found by the court to have been made in bad faith for the gag order to be lifted.

It is argued in response to the fishing expedition argument that the Government must set forth ``facts'' supporting a section 215 application. But that requirement doesn't fix the fishing expedition flaw. I just set forth facts, in two hypotheticals. If those hypothetical facts would not support a broad search of the library or clinic's records, the supporters should say what language in the conference report would preclude a search.

When this bill left the Senate, it contained protections against fishing expeditions. The Senate bill required a showing that the records sought were not only relevant to an investigation but also either pertained to a foreign power or an agent of a foreign power, which term includes terrorist organizations, or were relevant to the activities of a suspected agent of a foreign power who is the subject of an authorized investigation or pertained to an individual in contact with or known to be a suspected agent. In other words, the order had to be linked to some suspected individual or foreign power. Those important protections are omitted in the bill before us.

Some kind of narrowing language needs to be included in the PATRIOT Act for section 215 orders, just as it was when this bill left the Senate. Without that language and that linkage, the PATRIOT Act authorizes the rankest kind of fishing expedition.

The conference report is also flawed in its treatment of national security letters, or NSLs. NSLs compel phone companies and banks, for example, to turn over certain customer records. The Government can issue an NSL without going to court. And, like section 215 court orders, the Government does not have to show any connection between the records sought and an individual who the Government thinks is a terrorist. And like section 215 orders, the Government can impose a gag order on the recipient of an NSL. Also, in the case of NSLs, the conference report does not permit meaningful judicial review of those gag orders.

Also troubling about the NSL authority is that there is no requirement that the Government destroy records acquired with an NSL that turn out to be irrelevant to the investigation under which they have been gathered. These are records that relate to innocent Americans, and the Government should be required to destroy them if they contain no relevant material.

It is argued that while these protections were in the bill that left the Senate, they are not in current law. That is true. But the reason we put sunset provisions in the law is so we could more reliably make changes if experience indicated the need for change. We understandably acted quickly after 9/11 to fill some holes in our laws that needed to be filled. We added sunset provisions so we could review the law we wrote with the benefit of greater thought, in an atmosphere more conducive to protecting our liberties than understandably was the situation immediately after a horrific, wrenching, deadly attack.

Finally, I must comment on a tactic used in this debate which runs against the very grain of the Senate. The majority leader used a procedural tactic to prevent any Senator from offering any amendment during consideration of the Sununu bill, amendments which could have addressed some of the flaws I just described. That tactic of stifling consideration of any amendment is contrary to the normal procedures of the Senate and reflects poorly on what is sometimes billed as the greatest deliberative body in the world. The rules of the Senate were written with the intent of allowing the consideration of amendments. In this instance, the rules were misused to block any effort to offer amendments. I voted against ending debate on the Sununu bill and against proceeding to debate on the PATRIOT Act conference report because no amendments were allowed to be considered.

This conference report still falls short of what the American people expect Congress to achieve in defending their rights while we are advancing their security. As a result, although I support many of its provisions, I must oppose it.

Mr. President, it is sometimes argued that ``prosecution is prevention'' when it comes to gun violence. While I agree that our gun laws should be strictly enforced, prosecuting criminals is only part of the solution to our Nation's problems with guns. True prevention involves reducing the likelihood of death or injury before an incident occurs. In addition, it is important to recognize that prosecution has little or nothing to do with the thousands of accidental shootings and gun suicides that occur each year. Unfortunately, we have still not done enough to prevent dangerous guns from falling into the hands of potential criminals, children, and others who may intentionally or unintentionally use them to harm themselves or others.

Physicians for Social Responsibility, or PSR, is a leading public policy organization made up of more than 24,000 medical and public health professionals which has been active in the fight to solve the problem of gun violence in our Nation. PSR is one of many groups who view gun violence as a ``preventable public health epidemic.'' As it states on its Web site:

Public health practice focuses resources on prevention,

rather than a traditional criminal justice, ``after the

fact'' method of reacting to violence through arrest,

conviction and incarceration of violent offenders. Just as

public health policy recognizes that immunizing a patient

against the measles is far superior to treating a patient

already infected, the same logic can be applied to guns.

If we are serious about preventing gun violence, we must first reduce the ability of criminals to acquire dangerous firearms. One way of doing this is by requiring background checks on all firearms sold in the United States, instead of only those that are sold by licensed dealers as is prescribed under current Federal law. According to the Coalition to Stop Gun Violence, ``two out of every five guns acquired in the United States, including guns bought at gun shows, through classified ads, and between individuals, change hands without a background check.'' The Coalition to Stop Gun Violence also estimates that ``extending criminal background checks to all gun transactions

in the United States could prevent nearly 120,000 additional illegal gun sales every year.''

Prevention of unintentional shooting and suicide by children requires that proactive steps be taken to reduce access to dangerous firearms. A study published last year in the Journal of the American Medical Association found that the risk of unintentional shooting or suicide by minors using a gun can be reduced by 61 percent when ammunition in the home is locked up. Simply storing ammunition separately from the gun reduces such occurrences by more than 50 percent.

Prosecution of gun violence perpetrators alone is not an effective means of preventing injury or death caused by guns, although opponents of commonsense gun safety legislation argue that it is. Unfortunately, our gun safety laws do not include many proactive measures that would reduce the likelihood that a gun is used to kill or injure. I hope my colleagues will join me in working to address this problem.

Mr. President, last week, Michigan lost a distinguished public servant and a visionary leader, and I lost a good friend. Ed McNamara passed away at the age of 79 after a lifetime of service to our State, including 16 years as Wayne County executive and 17 years as mayor of Livonia. He fought relentlessly to make Michigan a better place, and he succeeded in ways small and large. And as he made a difference in the lives of average people, he did so with a sparkle in his eye and humor on his lips.

Ed was an old pol in the best sense of the word. He loved his constituents, he loved serving them, and he made a difference in their lives. Ed brought health care to the poor, saved a countywide bus system, and revitalized the county's parks. He paved the roads, helped save the Rouge River, and made big investments in the people and infrastructure of Southeastern Michigan.

When Ed took office as county executive, Wayne County, which includes the city of Detroit, was facing a $135 million deficit. Ed quickly eliminated that red ink and revived the county's bond rating as a first step toward the greater revitalization he envisioned. Ed McNamara never stopped believing in Wayne County, and we will be reaping the rewards of that leadership for years to come. Just this month, Detroit hosted the Super Bowl at Ford Field, which Ed helped to build. Last year, Detroit hosted Major League Baseball's All-Star Game at Comerica Park, which Ed helped to build. And visitors to each of these events flew into the Detroit Metro Airport terminal named in his honor, which Ed helped to build.

Ed's legacy will also live on in the many people he has inspired and mentored, including the Governor of Michigan. Like them, I have learned so much from him in the years that I have known him. It has been a joy to know a man of such energy, talent, kindness, and warmth.

Ed's abundant good nature spread hope and opportunity for the multitude that he touched. His life demonstrated what a difference one person can make. He will be greatly missed by the people he loved and led. Our thoughts and prayers are with his wife Lucille and his children and grandchildren.

Mr. President, I, along with my colleague Senator Stabenow, would like to take this opportunity to bring our colleagues' attention to a tragic event that took place last month in Pittsfield Township, MI. On January 11, 2006, Eric Namesnik, a two-time Olympic silver medalist and University of Michigan swimming standout, died from injuries sustained during a traffic accident on January 7. Eric was best known in the swimming community for his discipline, toughness, tremendous dedication, and many accomplishments, most notably in the 1992 and 1996 Olympic Games. During his career, Eric broke the American 400-meter Individual medley, IM, record four times. Eric, affectionately known by many as ``Snik,'' was remembered by his family, friends and the community in a celebration of his life at Canham Natatorium at the University of Michigan on January 17.

Eric was born in Butler, PA, on August 7, 1970, and enrolled at the University of Michigan in 1988. As a Wolverine, Snik helped lead the men's swim team to four straight Big Ten Championships and enjoyed the distinction of finishing in the top six nationally during all 4 of his years at Michigan. In 1991 and 1993, Eric earned the No. 1 world ranking in the 400-meter IM. Eric won silver in the 400-meter IM in the 1992 Olympics in Barcelona and in the 1996 Olympics in Atlanta. Eric also won two silver medals at the 1991 world championships and a bronze medal at the 1994 world championships.

To give you a sense of Eric as a person, Chuck Wielgus, executive director of USA Swimming, offered these words. ``The loss of Eric Namesnik is shocking for the entire swimming community. Snik represented everything great about the Olympic movement. His work ethic, toughness and dedication were the embodiment of an Olympian, and they made him one of the most admired competitors the sport of swimming has seen.'' His long-time coach at Michigan, Jon Urbanchek, said of Eric, ``What he did for Michigan is immeasurable. It's not just how fast he swam, but the good person he was, the character. He had his life in perspective and knew that his family was at the center of his life. Eric was an unbelievable human being.''

After Eric's competitive swimming career ended, he accepted a position as an assistant swim coach at the University of Michigan. From 1997 to 2004, he helped coach 11 Olympians, and the Wolverines won three Big Ten titles. After coaching at Michigan for 7 years, Eric became the head coach of the Wolverine Aquatics Swim Club in Ann Arbor and an assistant men's swimming coach at Eastern Michigan University.

Eric's love for swimming was evidenced not only by his many accomplishments throughout his long and distinguished career in the pool, but also by his efforts to help shape the lives of many young people learning the sport. At Wolverine Aquatics, Eric served as an inspirational role model for hundreds of up-and-coming swimmers. Today, his swimmers are wearing blue wristbands inscribed ``Swim 4 Snik'' in his honor and swim caps with the words ``Snik'' and one of Eric's mantras: ``D3,'' which stands for desire, determination and dedication.

In keeping with the kind of person Eric was, his last act was to give life to others through the gift of organ donation. He is survived by his wife Kirsten, their two young children, Austin and Madison, his mother and father, Kay and John, and his sister Leesa. Mr. President, Eric Namesnik's medals may have been silver but his heart was pure gold. He will be deeply missed.

Mr. President, an analysis by the Violence Policy Center, VPC, of the most recent data available from the Centers for Disease Control and Prevention, CDC, revealed that the national per capita death rate from guns was 10.36 people per 100,000 in 2003. In addition, 10 States had per capita gun death rates of more than 15 gun deaths per 100,000 people. Not coincidentally, the States with the highest per capita gun death rates also have some of the most lax gun safety laws in the country. This is further evidence that commonsense gun safety laws do save lives.

Each year the Brady Campaign to Prevent Gun Violence produces a ``Gun Violence Report Card'' in which it assigns individual States a grade on their gun safety laws of A through F. In its analysis, the Brady campaign evaluates State gun safety laws on factors such as: whether it is illegal for a child to possess a gun without supervision; whether it is illegal to sell a gun to a child; whether gun owners are held responsible for leaving loaded guns easily accessible to children; whether guns are required to have child-safety locks, loaded-chamber indicators and other childproof designs; whether cities and counties have authority to enact local gun safety laws; whether background checks are required at gun shows and between private parties; and, whether it is legal to carry concealed handguns in public.

When the analysis of the CDC gun death data for 2003 is compared with the Brady campaign's report card for the same year, we find that the States with the lowest rates of gun deaths also received the highest grades from the Brady campaign. In fact, four of the five States with the lowest gun death rates received an ``A-,'' the highest grade awarded by the Brady campaign that year, and the fifth received a ``B-.'' These five States had an average rate of 3.81 gun deaths per 100,000 people, less than half of the national average. Conversely, four of the five States with the highest rates of gun deaths received an ``F,'' while the fifth received a ``D-.'' These five States had an average rate of 17.9 gun deaths per 100,000 people.

According to the Brady campaign, none of the top 15 States with the highest rates of gun deaths have laws requiring background checks on guns purchased at gun shows or from private sellers. Under current Federal law, when an individual buys a firearm from a licensed dealer, there are requirements for a background check to ensure that the purchaser is not prohibited by law from purchasing or possessing a firearm. However, this is not the case for all gun purchases. For example, when an individual wants to buy a firearm from a private citizen who is not a licensed gun dealer, there is no Federal requirement that the seller ensure that the purchaser is not in a prohibited category. This creates a loophole in the Federal law, providing prohibited purchasers, including convicted criminals, with potential easy access to dangerous firearms. Fortunately, some States, including the five with the lowest rates of gun deaths, have enacted laws to help close this loophole.

Congress should work to enact national gun safety standards, including mandatory background checks on all gun sales, to help reduce the high rate of gun deaths across the country. The States who have already enacted commonsense gun safety legislation have shown that their laws make a difference and we should follow their lead.

Mr. President, I am pleased today to be joined by Senators DeWine, Dorgan and Bond in introducing legislation that will save lives by increasing the number of kidneys available for transplantation. Our bill addresses relatively new procedures that did not exist when the National Organ Transplant Act--NOTA--was passed more than two decades ago. No Federal dollars will be needed to implement it. More importantly, it will make it possible for thousands of people who wish to donate a kidney to a spouse, family member or friend, but find that they are medically incompatible, still to become living kidney donors.

Kidney paired donations involve two living donors and two recipients--the intended recipient of each donor is incompatible with the intended donor but compatible with the other donor in the arrangement. For example, person A wants to donate her kidney to her husband, person B, but cannot because of a biological incompatibility. Likewise, person C wants to donate to his wife, person D, and cannot because of a biological incompatibility. However, testing reveals that A and D are biologically compatible, and C and B are biologically compatible. Therefore, a paired kidney donation can be made whereby A donates to D and C donates to B. Every paired donation transplant avoids burdening the kidney waiting list and increases access to organs for all kidney transplant candidates.

Kidney list donations involve three individuals: a living donor; the recipient of the living donor's kidney, who is allocated the organ through the waiting list; and the donor's intended recipient who receives an allocation priority on the kidney waiting list. In this circumstance, a person intends to donate a kidney to a recipient but is found to be medically incompatible, and there are no other donor- recipient pairs available for a simultaneous paired donation. The person donates his or her kidney, and the kidney is allocated to a medically suitable patient on the national Organ Procurement and Transplantation Network--OPTN--waiting list according to OPTN organ allocation policy. The donor's originally intended recipient then receives allocation priority through the national system to receive a deceased donor kidney, thus fulfilling the donor's original intent to donate to a particular person. It is estimated that clearing the way for these procedures will not only save lives, it would save Medicare tens of millions of dollars each year in avoided costs for renal dialyses of these patients. By permitting living paired donations, this bill will also have the effect of increasing the number of kidneys available to patients already on the kidney waiting list.

The legislation we are introducing removes an unintended impediment to kidney donations by clarifying ambiguous language in Section 301 of the National Organ Transplant Act--NOTA. That section has been interpreted by a number of transplant centers to prohibit such donations. In Section 301 of NOTA, Congress prohibited the buying and selling of organs. Subsection (a), titled ``Prohibition of organ purchases,'' says: ``It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration. . . . '' The legislation we are introducing does not remove or alter any current provision of NOTA, but simply adds a line to Section 301 which states that paired donations do not violate it. When we originally enacted NOTA we expressly exempted several other actions from the valuable consideration provision, such as expressly permitting reimbursement of travel and subsistence costs for living donors, and for reimbursement of their lost wages. We did not know to include paired kidney donation events with these exceptions because they were not being performed then.

Congress surely never intended that the living donation arrangements that permit either a kidney paired donation or a kidney list donation be impeded by NOTA. Our bill simply makes that clear. A number of transplant professionals involved in these and other innovative living kidney donation arrangements have proceeded in the reasonable belief that these arrangements do not violate Section 301 of NOTA, and they are being performed in many states already. This legislation is necessary because some have questioned whether these paired donation situations might somehow involve valuable consideration in that the mutual promises to donate could be considered a thing of value being given in exchange for an organ. We do not believe that this is the case. Certainly, Congress never intended to impede paired donation when it outlawed buying and selling of organs.

There is no known opposition to this legislation. It is supported by numerous medical organizations, including the United Network for Organ Sharing, the American Society of Transplant Surgeons, the American Society of Transplantation, the National Kidney Foundation and the American Society of Pediatric Nephrology.

It is important that we make the intent of Congress explicit so that transplant centers which have hesitated to implement paired donation programs can feel free to do so; and in order that the Organ Procurement and Transplant Network, which is operated by UNOS under contract with the U.S. Department of Health and Human Services, may implement a national registry of pairs who need to find other compatible pairs so that their loved ones can get the transplant they so desperately need.

The experts in the field of organ donation and transplantation estimate that our legislation will result in well over 2,000 additional transplants annually and that Medicare would save millions in kidney dialysis costs. By its own estimate, Medicare spends more than $55,000 annually for each dialysis patient, which equates to more than $3.6 billion per year. Savings to Medicare due to removal of an additional 2,000 patients from the dialysis program through living kidney donation would exceed $110 million. Since the median waiting time for each patient is four years, removal of each patient translates into a total Medicare savings of $220,000.

It is our hope that the Senate will promptly act on this necessary legislation.

Mr. President, I am pleased today to be joined by Senators DeWine, Dorgan and Bond in introducing legislation that will save lives by increasing the number of kidneys available for transplantation. Our bill addresses relatively new procedures that did not exist when the National Organ Transplant Act--NOTA--was passed more than two decades ago. No Federal dollars will be needed to implement it. More importantly, it will make it possible for thousands of people who wish to donate a kidney to a spouse, family member or friend, but find that they are medically incompatible, still to become living kidney donors.

Kidney paired donations involve two living donors and two recipients--the intended recipient of each donor is incompatible with the intended donor but compatible with the other donor in the arrangement. For example, person A wants to donate her kidney to her husband, person B, but cannot because of a biological incompatibility. Likewise, person C wants to donate to his wife, person D, and cannot because of a biological incompatibility. However, testing reveals that A and D are biologically compatible, and C and B are biologically compatible. Therefore, a paired kidney donation can be made whereby A donates to D and C donates to B. Every paired donation transplant avoids burdening the kidney waiting list and increases access to organs for all kidney transplant candidates.

Kidney list donations involve three individuals: a living donor; the recipient of the living donor's kidney, who is allocated the organ through the waiting list; and the donor's intended recipient who receives an allocation priority on the kidney waiting list. In this circumstance, a person intends to donate a kidney to a recipient but is found to be medically incompatible, and there are no other donor- recipient pairs available for a simultaneous paired donation. The person donates his or her kidney, and the kidney is allocated to a medically suitable patient on the national Organ Procurement and Transplantation Network--OPTN--waiting list according to OPTN organ allocation policy. The donor's originally intended recipient then receives allocation priority through the national system to receive a deceased donor kidney, thus fulfilling the donor's original intent to donate to a particular person. It is estimated that clearing the way for these procedures will not only save lives, it would save Medicare tens of millions of dollars each year in avoided costs for renal dialyses of these patients. By permitting living paired donations, this bill will also have the effect of increasing the number of kidneys available to patients already on the kidney waiting list.

The legislation we are introducing removes an unintended impediment to kidney donations by clarifying ambiguous language in Section 301 of the National Organ Transplant Act--NOTA. That section has been interpreted by a number of transplant centers to prohibit such donations. In Section 301 of NOTA, Congress prohibited the buying and selling of organs. Subsection (a), titled ``Prohibition of organ purchases,'' says: ``It shall be unlawful for any person to knowingly acquire, receive, or otherwise transfer any human organ for valuable consideration. . . . '' The legislation we are introducing does not remove or alter any current provision of NOTA, but simply adds a line to Section 301 which states that paired donations do not violate it. When we originally enacted NOTA we expressly exempted several other actions from the valuable consideration provision, such as expressly permitting reimbursement of travel and subsistence costs for living donors, and for reimbursement of their lost wages. We did not know to include paired kidney donation events with these exceptions because they were not being performed then.

Congress surely never intended that the living donation arrangements that permit either a kidney paired donation or a kidney list donation be impeded by NOTA. Our bill simply makes that clear. A number of transplant professionals involved in these and other innovative living kidney donation arrangements have proceeded in the reasonable belief that these arrangements do not violate Section 301 of NOTA, and they are being performed in many states already. This legislation is necessary because some have questioned whether these paired donation situations might somehow involve valuable consideration in that the mutual promises to donate could be considered a thing of value being given in exchange for an organ. We do not believe that this is the case. Certainly, Congress never intended to impede paired donation when it outlawed buying and selling of organs.

There is no known opposition to this legislation. It is supported by numerous medical organizations, including the United Network for Organ Sharing, the American Society of Transplant Surgeons, the American Society of Transplantation, the National Kidney Foundation and the American Society of Pediatric Nephrology.

It is important that we make the intent of Congress explicit so that transplant centers which have hesitated to implement paired donation programs can feel free to do so; and in order that the Organ Procurement and Transplant Network, which is operated by UNOS under contract with the U.S. Department of Health and Human Services, may implement a national registry of pairs who need to find other compatible pairs so that their loved ones can get the transplant they so desperately need.

The experts in the field of organ donation and transplantation estimate that our legislation will result in well over 2,000 additional transplants annually and that Medicare would save millions in kidney dialysis costs. By its own estimate, Medicare spends more than $55,000 annually for each dialysis patient, which equates to more than $3.6 billion per year. Savings to Medicare due to removal of an additional 2,000 patients from the dialysis program through living kidney donation would exceed $110 million. Since the median waiting time for each patient is four years, removal of each patient translates into a total Medicare savings of $220,000.

It is our hope that the Senate will promptly act on this necessary legislation.

Last week, Senator Kyl placed a statement in the Congressional Record regarding the Graham-Levin amendment, which was enacted last year as section 1405 of the National Defense Authorization Act for Fiscal Year 2006 and as section 1005 of the Detainee Treatment Act of 2005, as included in the Department of Defense Appropriations Act, 2006. Senator Kyl and Senator Reid cosponsored the Graham-Levin amendment in the Senate.

Senator Kyl argues that this provision was intended to retroactively strip the Federal courts, including the Supreme Court, of jurisdiction over pending cases. Senator Kyl's statement attached a January 18, 2006, letter from Senator Kyl and Senator Graham to Attorney General Gonzales, which makes the same argument.

As I stated when the Graham-Levin amendment was before the Senate and

reiterated when the Senate adopted the conference report containing the legislation, this is not the case. The statute that we enacted does not retroactively strip the Supreme Court and other Federal courts of cases over which they had already assumed jurisdiction at the time the statute was passed.

I do not believe that the unexpressed intentions or after-the-fact statements of Senators--Senator Kyl, myself, or anyone else--can change the facts or the legislative history that existed at the time Congress acted on a piece of legislation. The relevant considerations are the language of the law itself, the changes that were made to that law as it went through the drafting process, and what was clearly stated before the bill was voted on by the Senate. I make this statement today for the sole purpose of reiterating that history.

While section 1405(e)(1) provides that ``no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus,'' the applicability of this language to pending cases is addressed in a separate provision--section 1405(h)--the structure and history of which make it clear that the courts are not stripped of cases over which they have already assumed jurisdiction.

Section 1405(h) clearly provides that only one portion of the act applies to pending cases: sections (e)(2) and (e)(3), which govern direct appeals from final decisions by military commissions and CSRTs. The rest of the statute becomes effective ``on the date of enactment,'' which, as Justice Scalia has pointed out, ``is presumed to mean `shall have prospective effect upon enactment,' '' Landgraf v. USI Films.

At Congressional Record page S970, Senator Kyl argues that the original Graham amendment was never ``modified to carve out pending litigation.'' He is incorrect. In fact, the amendment was modified, and it was modified for the precise purpose of carving out pending litigation.

The original Graham amendment specified that all provisions-- including the restrictions on habeas petitions--applied to pending cases. On November 10, 2005, the original Graham amendment was debated and adopted by the Senate by a vote of 49-42. At that time, I objected to the Graham amendment's provision stripping jurisdiction in pending cases. In fact, I explicitly urged at Congressional Record page S12,663 that we not adopt this amendment, in part, because ``It would eliminate the jurisdiction already accepted by the Supreme Court in Hamdan.''

Because of my concerns, after the original Graham amendment was adopted, I began working on a revised version of the amendment, which became known as the Graham-Levin amendment. This new version removed the language applying the habeas restrictions to pending cases, and instead limited its retroactive effect only to the standards applicable to direct appeals of final determinations that may have been made by CSRTs or military commissions.

On November 14, 2005, Senator Graham and I introduced this new version to the Senate together. In introducing the new Graham-Levin amendment, Senator Graham did not specifically address the issue of the amendment's effect on pending cases before yielding the floor to me. I did address the issue. In particular, I explained to the Senate that one of the principal reasons that so many of us voted against the prior version of the amendment was its effect on pending cases and that this problem had been addressed in the Graham-Levin amendment that was then before us. I stated at Congressional Record page S12,755:

The other problem which I focused on last Thursday

[November 10] with the first Graham amendment was that it

would have stripped all the courts, including the Supreme

Court, of jurisdiction over pending cases. What we have done

in this amendment, we have said that the standards in the

amendment will be applied in pending cases, but the amendment

will not strip the courts of jurisdiction over those cases.

For instance, the Supreme Court jurisdiction in Hamdan is

not affected. . . . I cosponsored the Graham amendment

with Senator Graham because I believe it is a significant

improvement over the provision which the Senate approved

last Thursday. . . . The direct review will provide for

convictions by the military commissions, and because it

would not strip courts of jurisdiction over these matters

where they have taken jurisdiction, it does, again, apply

the substantive law and assume that the courts would apply

the substantive law if this amendment is agreed to.

However, it does not strip the courts of jurisdiction.

Senator Graham took the floor again immediately after I concluded my explanation of what our new amendment accomplished. He did not disagree with my statement about the effect of the revised bill on pending cases anywhere in his remarks. Indeed, neither Senator Graham nor Senator Kyl said anything at that time to contest my very clear statement that the new amendment did not retroactively strip the courts of jurisdiction over pending cases.

When the Senate approved the Graham-Levin Amendment by a vote of 84 to 14 on November 15, 2005, I explained again at S12,802 that our amendment would not strip the courts of jurisdiction over pending cases:

The Graham-Levin-Kyl amendment would not apply the habeas

prohibition in paragraph (1) to pending cases. So, although

the amendment would change the substantive law applicable to

pending cases, it would not strip the courts of jurisdiction

to hear them. Under the Graham-Levin-Kyl amendment, the

habeas prohibition would take effect on the date of enactment

of the legislation. Thus, this prohibition would apply only

to new habeas cases filed after the date of enactment. The

approach in this amendment preserves comity between the

judiciary and legislative branches. It avoids repeating the

unfortunate precedent in Ex parte McCardle, in which Congress

intervened to strip the Supreme Court of jurisdiction over a

case which was pending before that Court.

Again, neither Senator Graham nor Senator Kyl offered a contrary interpretation of the Graham-Levin amendment at that time.

The bill then went to a House-Senate conference. At this time, the inapplicability of the jurisdiction-stripping provision to pending cases was so clear that the administration's allies in the House tried in vain to alter the language of the effective date provision to make the jurisdiction-stripping provision apply retroactively to pending cases, as it had in the original Graham amendment. I objected to this language, and it was rejected by the Senate conferees.

At Congressional Record page S14,258, I explained this history when the Senate adopted the conference report on December 21, 2005:

Under the Supreme Court's ruling in Lindh v. Murphy, 521

U.S. 320, the fact that Congress has chosen not to apply the

habeas-stripping provision to pending cases means that the

courts retain jurisdiction to consider these appeals. Again,

the Senate voted affirmatively to remove language from the

original Graham amendment that would have applied this

provision to pending cases. The conference report retains the

same effective date as the Senate bill, thereby adopting the

Senate position that this provision will not strip the courts

of jurisdiction in pending cases.

Let me be specific.

The original Graham amendment approved by the Senate

contained language stating that the habeas-stripping

provision `shall apply to any application or other action

that is pending on or after the date of the enactment of this

Act.' We objected to this language and it was not included in

the Senate-passed bill.

An early draft of the Graham-Levin-Kyl amendment contained

language stating that the habeas-stripping provision `shall

apply to any application or other action that is pending on

or after the date of the enactment of this Act, except that

the Supreme Court of the United States shall have

jurisdiction to determine the lawfulness of the removal,

pursuant to such amendment, of its jurisdiction to hear any

case in which certiorari has been granted as of such date'.

We objected to this language and it was not included in the

Senate-passed bill.

A House proposal during the conference contained language

stating that the habeas-stripping provision `shall apply to

any application or other action that is pending on or after

the date of enactment of this Act.' We objected to this

language and it was not included in the conference report.

Rather, the conference report states that the provision

``shall take effect on the date of the enactment of this

Act.'' These words have their ordinary meaning--that the

provision is prospective in its application, and does not

apply to pending cases. By taking this position, we preserve

comity between the judicial and legislative branches and

avoid repeating the unfortunate precedent in Ex parte

McCardle, in which Congress intervened to strip the Supreme

Court of jurisdiction over a case which was pending before

that Court.

As a result, the language sought by the administration and its allies, which would have applied the jurisdiction-stripping provision to pending cases, was not included in the final version of the bill.

It was not until after we concluded the conference and the conference report passed the Senate on December 21,

2005, that Senator Kyl placed a colloquy in the Congressional Record arguing that Section 1005 should be interpreted to retroactively strip the courts of jurisdiction over pending cases. At the same time, a number of other Senators placed statements in the Congressional Record stating their belief that the provision would not strip the courts of jurisdiction over pending cases.

Those statements, coming as they did after the conclusion of the conference and final action on the bill in both the House and the Senate, carry no more weight as legislative history than the statement that Senator Kyl placed in the Congressional Record last week or any other after-the-fact statement in the Congressional Record. Both the contemporaneous legislative history and the language and structure of the Graham-Levin amendment itself demonstrate that this provision was not intended to, and did not, retroactively strip the Federal courts of jurisdiction over pending cases.

Mr. President, last month was declared ``Guns Aside Month'' by the DC City Council in honor of the grassroots campaign known by the same name. The Guns Aside campaign is run by a DC community organization named Reaching Out to Others Together, or ROOT.

Washington, DC, resident Kenneth Barnes established ROOT after his son was shot to death in 2001. According to its Web site, ROOT is ``committed to advocacy, education, and intervention on behalf of individuals and families who have been victimized by homicides. Its mission is to bring visibility and focus community and organizational resources on these homicides on behalf of families, while addressing the root causes of the systemic apathy that fosters a culture of violence in our communities today.''

Among other things, Kenneth Barnes and other ROOT members work with the DC police and local and national organizations to help address the needs of families who have been affected by gun violence and homicide. ROOT also works with community organizations to develop violence prevention strategies and better coordinate their efforts.

ROOT's Guns Aside campaign began in September 2004 as a multimedia outreach program targeted at young people. As part of the campaign, ROOT members have visited schools and held

workshops and mentoring programs while working to build cooperative relationships with law enforcement personnel, businesses, and local government officials. Kenneth Barnes and ROOT recently announced plans to expand the Guns Aside program to the top 15 cities affected by gun violence around the country.

Ironically, September 29, 2004 marked not only the start of the Guns Aside campaign, but also the passage of the misnamed ``District of Columbia Personal Protection Act'' by the House of Representatives. Among other things, that legislation would repeal local laws in Washington, D.C. that ban the sale and possession of unregistered firearms, require firearm registration, impose common sense safe storage requirements, and ban semiautomatic weapons.

The Senate did not make the mistake of passing that legislation during the 108th Congress. However, the bill was reintroduced last year and the National Rifle Association has labeled it a ``top legislative priority'' for this year.

I hope that the House and Senate Republican Congressional leadership will reward the work of organizations like ROOT and reject the efforts of NRA lobbyists. We should respect the will of the people of Washington, DC, with regard to local gun safety laws and work to support the efforts of antigun violence organizations around the country by passing commonsense gun safety legislation.