Floor Statements

Mr. President, for the past 22 years, George Weeks' column for the Detroit News has been required reading for anyone interested in Michigan politics. It has been the gold standard for fair, insightful commentary, and I am proud to have known and worked with George over these years. Our mornings--and our public life--won't be the same without him.

George Weeks' life and career have been spent in service to the people of Michigan. In a journalism career that took him to Lansing, MI; to Washington, DC; and around the world, George Weeks always put his responsibility to his readers first. And although we are honoring him today for his legendary accomplishments as a reporter and columnist, George also served his State as chief of staff to Governor William Milliken and his country in the U.S. Army.

In his work as a political columnist, it has seemed at times that George knows everything that is happening or has ever happened in Michigan. He reports on which candidate wowed the crowd--or otherwise-- at a recent dinner, what issues are resonating with voters, and who he thinks has the right stuff to go all the way--or the other kind of stuff. His column is a treasure trove of political information. And not only does he have great information, he is also able to put it into perspective. George has a deep knowledge of history. He has written a history of Michigan through the lens of its governors as well as several works on Michigan's Native Americans. Although I admire his trove of knowledge, I do wish he would quit reminding me--and his readers--of how many years I have served in the Senate, a metaphor for the aging process.

George has earned both the loyalty of his readers and the respect and admiration of those he covers. His approach is impartial, issue- oriented, and assumes good faith on the part of public figures. He starts from a belief that public officials of both parties are motivated

mostly by good intentions, not petty politics. He takes the view that politicians are like other people--no better and no worse--and that public service is a worthy calling. We in public life are grateful for that, believe me.

It is a great loss that George is retiring from the News because we need that attitude now more than ever. In recent years, there has been a coarsening of political life. These are meaner streets these days, with more personal attacks and sharp edges. With his civility and his moderation, George has been in the vanguard of smoothing out those rough edges.

In his farewell column, George referred to me as his ``most- interviewed Senator.'' That is a distinction I will wear with honor, and I want to thank him for the professional way he has treated our conversations. George is a man of his word, whom you can talk to with confidence that he will get the story straight and whom you can talk to in confidence from time to time as well. I don't know if George is counting in his tally our informal chats, including annually at the Cherry Festival in his beloved Traverse City. But I do know that I have come to look forward to those talks, and I still will.

Thank you, George Weeks, for your years of service and for your magnificent, ongoing career.

Mr. President, there is a compelling need to reform the current asbestos litigation process. This process is not fair to workers, including many who have become ill through exposure to asbestos. There are people who are not impaired who have received compensation, and there are many claimants that have been injured by asbestos exposure who have not received compensation. It is not fair to businesses for a host of reasons. The status quo is not acceptable.

I do have several substantive issues with S. 852, The FAIR Act. I have spent a great deal of time over the past few months working with the sponsors of S. 852, including Senators Specter and Leahy, seeking to make changes that would improve the bill from my perspective.

For instance, I wanted to see more money go to mesothelioma victims who have dependents and to ensure that in a budget neutral manner, the money didn't come from other terminally ill victims. The sponsors of the bill have agreed to support the following language to address my concerns:

The Administrator may increase awards for Level IX

claimants who have dependent children so long as this

provision is cost neutral. Such increased awards shall be

paid for by decreasing awards for claimants other than Level

IX, so long as no award levels are decreased more than 10

percent.

Another issue for me was to protect companies that might be required to contribute to an asbestos trust fund, and have their insurers contribute, but that have no assurance that the company's own claims will be satisfied. The sponsors have agreed to an added criteria which would allow a company to apply for a decreased payment for their annual assessment into the trust to protect again that outcome. That criteria would be:

When measured against the likely cost of past and potential

future claims in the absence of the Act.

A third problem I wanted to see addressed related to companies that should not be required to participate in the asbestos trust fund because they have disposed of all of their known previous claims. The sponsors of the bill have agreed to support the following language to address my concern:

. . . subject to the discretion of the Administrator, [a

company may] be exempt from any payment obligation if such

defendant participant establishes with the Administrator that

it has satisfied all past claims and that there is no

reasonable likelihood in the absence of the Act of any future

claims for whose costs the defendant participant might be

responsible. . . .

A fourth issue that concerns me is in the area of attorney's fees in both (a) past cases that are moved into the trust fund from the tort system and (b) new administrative claims in the asbestos trust fund. The former situation could be highly unfair and even confiscatory while in the case of the latter the fee is so low as to constitute as a deterrent to both filing future claims and appeals. The sponsors of the bill have agreed to language relative to (b) that reads in part that attorneys will be able to ``obtain a reasonable attorney's fee, which shall be calculated by multiplying a reasonable hourly rate by the number of hours reasonably expended on the individual's claim.'' My concern relative to (a) remains unaddressed.

I have additional concerns about S. 852. I am concerned about the current severability provision in the bill. There are many contentious issues in S. 852 that many observers expect will be litigated including the constitutionality of incorporating existing asbestos trust funds into this one. There are also restrictions on tort cases in this bill, which if triggered by the fund's nonviability will limit the possible venues for filing future asbestos claims. The availability of such restrictions may lead companies to resist payments to the fund, thereby contributing to its nonviability because they obtain restrictions on tort claims in that event. That is not a wise incentive. Therefore, I support a nonseverability clause for certain sections of the bill and the sponsors have indicated a willingness to consider it.

There are other issues that have been raised by a number of colleagues with this bill. Some of those issues include the constitutional issues involved in the of ``taking'' the existing asbestos trust funds; the lack of a contribution structure for the $46 billion of insurance industry contributions; the special consideration given in this bill to the residents of one community; the lack of an adequate startup provision which would trigger a return to the tort system if the trust fund never gets going and the lack of an appropriate sunset trigger which would also provide for the fund to dissolve if claims go unpaid and allow people to go back to court.

Based on my discussions with the managers, I will support the motion to proceed to S. 852. My future position on the legislation will depend on the content of the bill after it is amended.

Mr. President, several recent published reports indicate that lax gun safety laws here in the United States may be resulting in the trafficking of thousands of firearms across the border into Mexico and contributing to a surge in violence and crime in that country.

Many firearms are illegal in Mexico. In fact, there are apparently less than 2,500 licensed gun owners in the entire country. This is because such licenses take a year or more to process, cost nearly $2,000, and must be renewed every 2 years. In addition, Mexican authorities say they confiscate more than 250 illegal firearms every day from crime suspects. U.S. and Mexican law enforcement officials estimate that as much as 95 percent of these guns can be traced back to the United States.

Mexican law enforcement officials have made several major illegal weapons seizures in the last few months alone. In December, 20 assault rifles were seized in Tijuana, just across the border from California. In another seizure, police recovered a cache of weapons that included seven assault rifles and several semiautomatic handguns in the Mexican border town of Nuevo Laredo. It also should be noted that in the last year alone more than 100 people were shot to death by suspected drug cartel members in Nuevo Laredo. According to Mexican and U.S. officials, these drug smuggling operations are frequently the end users of guns illegally trafficked from the United States.

Reportedly, weak U.S. gun regulations are being exploited to help arm criminals in Mexico. One way of doing this is through the use of a ``straw purchaser'' who buys firearms legally in the United States on behalf of a Mexican gun trafficker. In one reported case last year, a handgun recovered in Reynosa, Mexico, was traced back to a Texas man who had reportedly bought more than 150 guns for criminals in Mexico. In another case, more than 80 guns were traced to a Mexican national who apparently paid Texas residents to purchase them for him. According to Mexican authorities, guns recovered in Mexico are often traced to original buyers in Texas, where ``straw purchasers'' can buy guns and ammunition in unlimited quantities.

Law enforcement authorities in Mexico say assault rifles are the most sought-after weapons by Mexican criminals. Unfortunately, these dangerous weapons are in plentiful supply here in the United States due to Congress's failure to reauthorize or strengthen the 1994 Assault Weapons Ban. On September 13, 2004, this legislation expired, allowing 19 previously banned assault weapons, as well as firearms that can accept detachable magazines and have more than one of several specific military features, such as a folding/telescoping stock, protruding pistol grip, bayonet mount, threaded muzzle or flash suppressor, barrel shroud or grenade launcher to be legally sold again. These dangerous weapons are being bought in the United States and trafficked into Mexico, where they are frequently used in violent crime, conflicts between rival drug cartels, and shootouts with Mexican law enforcement authorities.

Apparently, law enforcement officials are also concerned about the prevalence of .50-caliber firearms, which are turning up more frequently in Mexico in recent years. These high-powered weapons fire thumb-sized bullets that come in armor-piercing, incendiary, and explosive varieties and can easily punch through aircraft fuselages, fuel tanks, and engines. Under current U.S. law, .50-caliber sniper rifles can be purchased by private individuals with only minimal federal regulation. In fact, these dangerous weapons are treated the same as other long rifles including shotguns, hunting rifles, and smaller target rifles.

I am a cosponsor of the Fifty-Caliber Sniper Weapon Regulation Act introduced by Senator Feinstein. This bill

would reclassify .50-caliber rifles under the National Firearms Act, NFA, treating them the same as other high-powered or especially lethal firearms like machineguns and sawed off shotguns. Among other things, reclassification of .50-caliber sniper rifles under the NFA would subject them to new requirements, including registration with federal authorities. These additional requirements would help law enforcement officials identify ``straw purchasers'' and other sources of illegally trafficked .50-caliber rifles recovered in Mexico more easily.

The United States has a responsibility to do what it can to help prevent the illegal export of dangerous firearms outside of our borders. By enacting commonsense legislation, like the Fifty-Caliber Sniper Weapon Regulation Act and the Assault Weapons Ban, we can improve the security of communities in the United States, as well as those in neighboring countries.

Mr. President, today I am introducing ``The Medicare Part D Reform Act of 2006.'' This bill is necessary to address some of the major problems in the Medicare prescription drug benefit that took effect on January 1 of this year. As we all know, the reaction of our seniors has been widespread disappointment, mass confusion and downright anger.

Let me describe some of the problems that I am hearing from people in Michigan about this new Medicare prescription drug benefit.

First, many drug companies have previously issued discount cards and are currently providing drugs to low-income people and seniors at a nominal or no cost. These are individuals usually at 200 percent of the Federal poverty level, which is 19,600 for a single person or $26,400 for a couple, while to qualify for the Medicare low-income subsidy, their income must be $14,700 for a single person or $19,800 for a couple. Many of these programs are being discontinued, and seniors are losing a vital method of obtaining low cost prescription drugs.

Second, prescription drug plans can drop a drug from its list of covered drugs with 60 days notice at any time during the calendar year. This is particularly egregious for a senior who relied on a particular medication being available and covered when the senior chose that particular plan.

Third, the situation of so-called ``dual eligibles'' is clearly worse now than before enactment of the prescription drug benefit. These are former Medicaid beneficiaries who are being forced into Medicare prescription drug coverage, often putting them in plans with more restrictive formularies and higher co-payments, in other words leaving them worse off.

Fourth, many Michigan residents are retirees from good paying jobs and currently have a good prescription drug plan. This has changed for the worse with the creation of the new Medicare prescription drug benefit because many companies have decided to scale back or eliminate that retiree coverage. As a result, many of those retirees are worse off than they were before the bill became law.

Fifth, Medicare is specifically barred from negotiating lower drug prices for all of its beneficiaries.

Finally, the coverage gap from $2,250-$3,600 in prescription drug expenses per year, commonly referred to as the ``doughnut hole,'' is unconscionable. Many seniors do not yet understand that this huge coverage gap is looming in their future and that during this gap, they are still expected to pay their monthly premiums, although they are getting no prescription drug coverage assistance.

To address many of these concerns I, along with my colleague Senator Stabenow, today am introducing the Medicare Part D Reform Act of 2006, and I hope the Senate will immediately consider these positive reforms. My legislation has four goals and I will briefly outline them.

First, this legislation would prohibit prescription drug plans from removing drugs from the plan's list of covered drugs until January 1 of the following year. This will give seniors the opportunity to make an informed decision during open enrollment at the end of each year if one plan decides to remove a particular drug from the plan.

Second, my legislation clearly states that the discount cards that pharmaceutical companies are providing to our lower income seniors are permissible and that seniors should be allowed to participate in these programs. There has been some confusion as to whether companies can legally continue these programs and, if companies do continue their assistance, questions have arisen as to whether that assistance will count towards the ``true-out-of-pocket'' costs for that beneficiary, which plunges them into the ``doughnut hole'' when they reach $2,250. My legislation mandates that there will be no negative consequences for pharmaceutical companies continuing to provide discount cards to our low-income seniors.

Third, my legislation would allow former Medicaid beneficiaries now receiving their medications under Medicare to continue to receive their prescription drugs even if they cannot meet the worsened co-payment requirements.

Lastly, the legislation would specifically give the Federal Government the authority to negotiate lower prescription drug prices for our seniors. Current Medicare law prohibits the Department of Health and Human Services from negotiating lower prices, as we do for veterans in our VA health programs. As a result, Medicare beneficiaries do not have the benefit of the bargaining power of Medicare.

All of us are hearing from our constituents that we need to improve Medicare Part D. Congress needs to fulfill the promise it made that Medicare Part D would lower prescription drug prices, not increase them. This bill will help us begin to keep that promise.

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

Mr. President, today I am introducing ``The Medicare Part D Reform Act of 2006.'' This bill is necessary to address some of the major problems in the Medicare prescription drug benefit that took effect on January 1 of this year. As we all know, the reaction of our seniors has been widespread disappointment, mass confusion and downright anger.

Let me describe some of the problems that I am hearing from people in Michigan about this new Medicare prescription drug benefit.

First, many drug companies have previously issued discount cards and are currently providing drugs to low-income people and seniors at a nominal or no cost. These are individuals usually at 200 percent of the Federal poverty level, which is 19,600 for a single person or $26,400 for a couple, while to qualify for the Medicare low-income subsidy, their income must be $14,700 for a single person or $19,800 for a couple. Many of these programs are being discontinued, and seniors are losing a vital method of obtaining low cost prescription drugs.

Second, prescription drug plans can drop a drug from its list of covered drugs with 60 days notice at any time during the calendar year. This is particularly egregious for a senior who relied on a particular medication being available and covered when the senior chose that particular plan.

Third, the situation of so-called ``dual eligibles'' is clearly worse now than before enactment of the prescription drug benefit. These are former Medicaid beneficiaries who are being forced into Medicare prescription drug coverage, often putting them in plans with more restrictive formularies and higher co-payments, in other words leaving them worse off.

Fourth, many Michigan residents are retirees from good paying jobs and currently have a good prescription drug plan. This has changed for the worse with the creation of the new Medicare prescription drug benefit because many companies have decided to scale back or eliminate that retiree coverage. As a result, many of those retirees are worse off than they were before the bill became law.

Fifth, Medicare is specifically barred from negotiating lower drug prices for all of its beneficiaries.

Finally, the coverage gap from $2,250-$3,600 in prescription drug expenses per year, commonly referred to as the ``doughnut hole,'' is unconscionable. Many seniors do not yet understand that this huge coverage gap is looming in their future and that during this gap, they are still expected to pay their monthly premiums, although they are getting no prescription drug coverage assistance.

To address many of these concerns I, along with my colleague Senator Stabenow, today am introducing the Medicare Part D Reform Act of 2006, and I hope the Senate will immediately consider these positive reforms. My legislation has four goals and I will briefly outline them.

First, this legislation would prohibit prescription drug plans from removing drugs from the plan's list of covered drugs until January 1 of the following year. This will give seniors the opportunity to make an informed decision during open enrollment at the end of each year if one plan decides to remove a particular drug from the plan.

Second, my legislation clearly states that the discount cards that pharmaceutical companies are providing to our lower income seniors are permissible and that seniors should be allowed to participate in these programs. There has been some confusion as to whether companies can legally continue these programs and, if companies do continue their assistance, questions have arisen as to whether that assistance will count towards the ``true-out-of-pocket'' costs for that beneficiary, which plunges them into the ``doughnut hole'' when they reach $2,250. My legislation mandates that there will be no negative consequences for pharmaceutical companies continuing to provide discount cards to our low-income seniors.

Third, my legislation would allow former Medicaid beneficiaries now receiving their medications under Medicare to continue to receive their prescription drugs even if they cannot meet the worsened co-payment requirements.

Lastly, the legislation would specifically give the Federal Government the authority to negotiate lower prescription drug prices for our seniors. Current Medicare law prohibits the Department of Health and Human Services from negotiating lower prices, as we do for veterans in our VA health programs. As a result, Medicare beneficiaries do not have the benefit of the bargaining power of Medicare.

All of us are hearing from our constituents that we need to improve Medicare Part D. Congress needs to fulfill the promise it made that Medicare Part D would lower prescription drug prices, not increase them. This bill will help us begin to keep that promise.

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

We first came to know Coretta Scott King as Dr. Martin Luther King's wife, but we came to treasure her for the more than 50 years of courageous and inspiring leadership she gave to our Nation. During Dr. King's tragically brief yet profoundly important time as America's most prominent civil rights leader, Mrs. King played an indispensable role, speaking before church and community groups, serving as a pastor's wife, and raising four children. She was Dr. King's rock during one of the most turbulent times in our history.

Mrs. King's heroism and unyielding determination to continue the struggle for justice and equality for all could not be more evident than in how she responded to a despicable incident in 1956. Mrs. King was in her home with her infant daughter, Yolanda, while Dr. King was away on one of his many missions for the civil rights movement, speaking at the First Baptist Church in Montgomery, AL. Someone threw a bomb into the Kings' home, and the bomb exploded. Even though Mrs. King and little Yolanda narrowly escaped physical harm that day, the bombing failed to deter her. Instead, Mrs. King's involvement in the civil rights movement intensified.

Following her husband's assassination, Coretta Scott King picked up his mantle and made clear that his dream, of a just America, was her dream too. Over the nearly 40 years that followed, her fight for that dream took her to every corner of the world and into every heart that loved justice. She established the Martin Luther King, Jr. Center for Nonviolent Social Change. She worked to advance the cause of justice and human rights around the world, speaking out for racial and economic justice, women's and children's rights, religious freedom, full employment, health care, and education. She championed the national holiday in honor of Dr. King's legacy. And, as she carried on Dr. King's message, she became an icon of the civil rights movement in her own right.

In September 2004, the Senate passed legislation to honor Mrs. King and Dr. Martin Luther King, Jr., posthumously, with Congress's highest honor--the Congressional Gold Medal--for their contributions to the Nation. It was my great honor to deliver this news to Mrs. King the next day at an awards ceremony sponsored by the Senate Black Legislative Staff Caucus, where Mrs. King was honored with their Leadership and Achievement Award. Over the next few months, my staff worked with Mrs. King, along with the U.S. Mint and Congressman John Lewis's staff, in designing the gold medal. In March 2005, Mrs. King contributed these words, from some of her favorite lines from Dr. King's speeches, to appear on one side of the medal: ``I suggest that the philosophy and strategy of nonviolence become immediately a subject for study for serious experimentation in every field of human conflict, by no means excluding the relations between nations. This may well be mankind's last chance to choose between chaos and community.'' Mrs. King offered these lines less than a year ago, reflecting her steadfast commitment to nonviolence throughout her entire life.

Coretta Scott King moved our Nation forward, and we owe her a debt that we cannot repay. As we mourn Mrs. King's passing today, let us celebrate her exceptional life, and let us honor her by recommitting ourselves to the dream the Kings shared of freedom, justice, and equality for all people.

Our thoughts and prayers are with Yolanda, Martin III, Dexter, and Bernice King and all of the King family.

Mr. President, while I had expected that the Senate would move directly to an up-or-down vote on Judge Alito's nomination to the Supreme Court without a vote on cloture, because I strongly oppose this nomination, as I explained in my remarks last week, and because the filibuster has been a time-honored and accepted part of the checks and balances on the President's appointment powers, I will vote against cloture on this nomination.

Mr. President, for the second time, this Congress we are considering the nomination to the Supreme Court. Having confirmed Judge John Roberts as Chief Justice in September, a decision in which I joined, we are now debating the nomination of Judge Samuel Alito to the position of Associate Justice. Positions on the Supreme Court are hugely significant given their lifetime tenures, the balance on the Court, and the importance of the Court's decisions on the lives of Americans. These votes are among the most important and difficult that we cast.

Article II, section 2 of the Constitution simply provides that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court. . . .''

The Constitution gives us no guidance on the factors the Senate should consider while we carry out this constitutional duty. In the end, each Senator must determine what qualities he or she thinks a good Supreme Court Justice should have and what scope of inquiry is necessary to determine if the prospective nominee has these qualities.

This will be the 11th Supreme Court nomination on which I will have voted. With each nomination I have done my best to fairly determine if the nominee satisfies fundamental requirements of qualification and temperament, if the nominee is likely to bring to the Court an ideology that distorts his or her judgment, and brings into question his or her open mindedness and whether any of the nominee's policy values are inconsistent with fundamental principles of our Constitution.

Like Judge Roberts before him, Judge Alito has an impressive background and command of the law. He easily meets the educational and professional requirements of the position. Judge Alito has worked for the Justice Department, as the U.S attorney for the District of New Jersey, and for nearly 16 years as a judge on the Third Circuit Court of Appeals. He is respected by his peers as a very decent person and is a person of high caliber and integrity.

That Judge Alito has a keen intellect and understands the nuances of the law is indisputable. That is not enough to warrant confirmation if his discernible views on key issues are at variance with fundamental principles of our constitutional system. Because I am not convinced he will adequately protect the constitutional checks and balances that are the bedrock of our liberty, I cannot support his confirmation.

I have concerns about Judge Alito's views in a number of areas. One in which I have the greatest doubts relates to his undue deference to Executive power. In recent years, constitutional issues on the authority of the executive branch have multiplied. These include executive actions in areas of government eavesdropping, other government intrusions on personal privacy, including library records, medical records, and Internet search records, and the detention and treatment of American citizens whom the President designates as ``enemy combatants.'' Our system of checks and balances requires the Supreme Court to enforce limits on Executive power, and the nominee's views on executive authority under the Constitution are extremely important.

Judge Alito's record, however, is one of undue deference to Executive power and raises significant doubts as to whether he would adequately apply the checks and balances that the Founders enshrined in the Constitution to protect, in part, against an overreaching Executive.

For example, while serving as Deputy Assistant Attorney General in 1986, Judge Alito recommended the President use bill signing statements to influence the Court's interpretation of legislative history. He argued that ``the President's understanding of the bill should be just as important as that of Congress,'' and that his signing statement proposal would ``increase the power of the executive to shape the law.''

This issue took on renewed urgency when President Bush recently declared in a signing statement that he would ignore the ban on torture by executive branch personnel, a ban passed overwhelmingly by Congress in the very bill he was signing, if the ban hampered his actions as Commander in Chief. In a written question, I asked Judge Alito about the possible legal relevancy of Presidential signing statements. His response was erudite, as always, suggesting they might be relevant if the President participated in the crafting of the legislation.

In the case of the torture ban language, the President strongly and repeatedly opposed the language and unsuccessfully sought, at a minimum, to obtain a Presidential waiver. Yet when asked at his Judiciary Committee hearing whether a signing statement could have relevancy in that context where the President strongly opposed the language and was not involved in its crafting, Judge Alito responded:

The role of signing statements and the interpretation of

statutes is, I think, a territory that's been unexplored by

the Supreme Court.

That statement of fact was not responsive to a question about his views. Judge Alito, thereby, missed the chance to show that his views on this issue have evolved since 1986. His words in 1986 that signing statements can help achieve the goal of ``increasing the power of the Executive to shape the law'' should give us all pause.

If Judge Alito were on the Supreme Court and voted to give constitutional weight to signing statements such as President Bush made when he signed the torture ban legislation, he would be creating a new and radical expansion of Executive power.

In 1988, the Supreme Court addressed the question of executive authority in Morrison v. Olson, the decision which upheld the Independent Counsel Act. The government had argued that the act was unconstitutional because it restricts the Attorney General's power to remove an independent counsel and interfered with executive branch prerogatives, thereby disrupting the proper balance between the branches of Government.

Chief Justice Rehnquist rejected those arguments when he wrote for a 7-1 majority:

As we stated Buckley v. Valeo, the system of separated

powers and checks and balances established in the

Constitution was regarded by the Framers as ``a self-

executing safeguard against the encroachment or

aggrandizement of one branch at the expense of the other.''

Nonetheless, just a year later, in remarks to the Federalist Society in 1989, Judge Alito, then the U.S. attorney for the District of New Jersey, called the Morrison v. Olson decision ``stunning,'' and described congressional checks on broad Presidential power as ``pilfering.'' He said:

. . . the Supreme Court [in Morrison] hit the doctrine of

separation of powers about as hard as heavy weight champ Mike

Tyson usually hits his opponents.

Yet in the setting of the Judiciary Committee hearings, when asked whether the views he expressed to the Federalist Society were still his views, Judge Alito would only say:

Morrison is a settled precedent--it is a precedent of the

court. It was an 8-1 decision (sic). It's entitled to respect

under stare decisis. It concerns the Independent Counsel Act,

which is no longer in force.

He gave no indication that he has modified his earlier extreme view over time, but, again, he simply made a statement of obvious fact: that Morrison is a precedent of the Supreme Court and entitled to respect as such.

Although he has been hesitant to check Presidential power, Judge Alito has been more than willing to check congressional power. In United States v. Rybar, the Third Circuit upheld a conviction under the Federal law prohibiting the possession of machine guns. In his dissent, Judge Alito said there was insufficient evidence in the Record to determine that Congress had the power under the commerce clause to enact that legislation. Not only did the majority strongly criticize his view of congressional power, and not only did the Supreme Court decline to review the majority's ruling, thereby suggesting the majority's view was the correct view, but the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have also all found the congressional machinegun ban to be constitutional.

Undue restriction of legislative branch authority such as reflected in Judge Alito's dissent in Rybar could lead to further unwise extension of executive branch powers. For instance, Congress has voted to require the executive branch to seek a warrant to eavesdrop on American citizens. We granted broad powers to tap phone lines where there is probable cause that a person is, or is linked to, a terrorist or a spy. We allow the executive branch to go ahead and tap a phone when there is no time to seek a warrant, first, as long as it subsequently seeks a warrant within 3 days. But Congress added an explicit prohibition on the executive branch tapping phones of U.S. citizens except as provided for in that law. This was an explicit prohibition. You must follow the requirements of this law or else you must not tap American citizens' phones.

Can a President ignore that prohibition, that check on his power? The Supreme Court ruled on the issue of executive authority in the seminal Youngstown case. As Justice Robert Jackson wrote in his renowned opinion:

When the President takes measures incompatible with the

expressed will of Congress, his power is at its lowest ebb.

Three times at his hearing, however, Judge Alito characterized that circumstance where the President acts contrary to the explicit congressional prohibition as a ``zone of twilight.'' Justice Jackson reserved that zone of twilight, that zone of ambiguity, for the circumstance where ``the President acts in absence of either a congressional grant or denial of authority.''

Again, where the President acts in defiance of a congressional prohibition, Presidential power, according to Jackson, is at its lowest ebb, not in a twilight zone of uncertainty.

More specifically, Judge Alito--referring to the congressional prohibition on executive wiretapping under the Foreign Intelligence Surveillance Act, FISA, the prohibition on executive wiretapping, except as provided for in that act, spoke as follows at his hearing:

Where the President is exercising executive power in the

face of a contrary expression of congressional will through a

statute or even an implicit expression of congressional will,

you'd be in what Justice Jackson called the twilight zone,

where the President's power is at its lowest point.

And Judge Alito said:

What I'm saying is that sometimes issues of executive power

arise and they have to be analyzed under the framework that

Justice Jackson set out. And you do get cases that are in

this twilight zone.

Again, referring to the hypothetical presented to him where there was a specific congressional prohibition on wiretapping. Again, calling that a case that is in the twilight zone.

Later, Judge Alito said:

When you say regardless of what laws Congress passes, I

think that puts us in that third category that Justice

Jackson outlined, the twilight zone, where, according to

Justice Jackson, the President has whatever constitutional

powers he possesses under Article II minus what is taken away

by whatever Congress has done by an implicit expression of

opposition or the enactment of a statute.

By repeated characterizations of Presidential action in the face of a prohibition on that action, as falling into a twilight zone of uncertainty rather than a zone of dubious constitutionality, Judge Alito, unwittingly or otherwise, reflected what I fear his real view is. The twilight zone that he referenced is entered, according to the Youngstown test, when the President acts without congressional authorization, not when Congress has explicitly prohibited his actions. Again, for instance, where Congress has prohibited domestic wiretapping in the absence of seeking a warrant, Presidential power is at its lowest ebb.

In the 1981 case of Dames and Moore v. Regan, Justice Rehnquist reaffirmed the same test, writing that the zone of twilight is entered ``when the President acts in the absence of congressional authorization,'' and reaffirming

Justice Jackson's opinion. Justice Rehnquist found that ``when the President acts in contravention of the will of Congress `his power is at its lowest ebb and the Court can sustain his actions [Justice Rehnquist said] `only by disabling the Congress from action on the subject.' ''

If Judge Alito had described the status of Presidential action in contradiction of congressional prohibition only one time, it could be argued that he slipped or made a mistake. But since he repeatedly made the statement, it is more likely to represent his true feeling, particularly since Senator Leahy pointed out this mischaracterization of Justice Jackson in the Youngstown case and Judge Alito did not correct himself.

Justice Jackson is a longtime and lifelong hero of mine. He was President Truman's Attorney General when Truman nominated him to the Supreme Court. But when President Truman seized the steel mills under his claim of constitutional authority as Commander in Chief, Justice Jackson ruled against his old friend, now Commander in Chief, and wrote:

What is at stake is the equilibrium established by our

constitutional system.

Similarly, Justice O'Connor recently cast the deciding vote in Hamdi v. Rumsfeld, which made clear that the President's powers during wartime are not unchecked under our Constitution. Justice O'Connor wrote:

A state of war is not a blank check for the President when

it comes to the rights of the Nation's citizens.

The liberties of our people are in the hands of the Supreme Court. The willingness of this President and a number of Presidents before him to ignore the Constitution's limits on their power needs to be checked by the Supreme Court. While I am hopeful Judge Alito will join the long and revered list of Supreme Court Justices who have protected our Constitution's checks and balances, I have too many doubts to be confident he will do so and that he will stand up to excessive exercises of Executive power, as Justice Jackson and Justice O'Connor and other Justices have done.

Judge Alito is a personable, decent man, a man of great integrity and extraordinary intellect. His associates vouch for his collegiality and his congeniality. But I am not confident Judge Alito will help provide the essential check on executive excess that has proven throughout our history to be the bedrock of our liberty.

During his hearings, he stated time and time again that the President is ``not above the law,'' but in the end I am not persuaded there is real conviction behind that mantra.

I wish I could ignore my fears and vote my hopes. But the doubts are too nagging and the stakes are too high for me to consent to Judge Alito's nomination to the Supreme Court.

I thank the Chair, yield the floor, and suggest the absence of a quorum.

Mr. President, the 2005 Teen Gun Survey conducted by the Uhlich Children's Advantage Network, also known as UCAN, produced some very interesting and troubling results. UCAN conducts this survey each year as a way of measuring teens' attitudes about gun violence. For 2005, the sample included nearly 1,000 teenagers from around the country who responded to a variety of questions about their exposure to gun violence and its impact on their lives.

The UCAN survey makes clear that far too many teens are exposed to gun violence. According to the survey, nearly half of the respondents personally know someone who has been shot, and more than a third know another teenager who has threatened to kill someone with a gun. Almost one out of every five teenagers who responded said they heard gunshots in their neighborhood at least once a month, and 38 percent believe they could get a handgun if they wanted to. Disturbingly, 39 percent of the respondents fear they will be shot someday.

The results of the survey also raise significant concerns about the perceived safety of our schools. More than a third of respondents said that they are afraid gun violence might take place in their school, and 21 percent feel that they are safer away from school than when they are in school.

These results should be taken seriously. Many teens who are exposed to gun violence may turn to violence later in life. A study completed last year by a University of Michigan researcher

found that adolescents who were exposed to gun violence were more than twice as likely to carry out violent acts within the following 2 years. Fifty-six percent of the teens surveyed by UCAN said that they believe violent teenagers learn their behavior from their parents. We must do more to break this cycle.

Unfortunately, most of those who responded to the UCAN survey believe that the Government doesn't understand the realities of gun violence for teenagers and would not care if they were a victim of gun violence. In addition, 41 percent of the teens surveyed said they would benefit from more violence prevention programs and resources.

We should listen to what teenagers around the country are saying about guns. Their responses to the UCAN survey show that Congress is not doing enough to protect young people from the threat of gun violence. I urge the Senate to do more to help ensure our teenagers do not have to fear guns in their schools and communities by passing commonsense gun safety legislation and by supporting violence reduction programs.

Mr. President, nearly 100,000 children and teenagers have been killed by firearms since 1979. This figure underscores the inadequacy of Congress' efforts to address the issue of gun violence over this period and the continuing need for common sense gun safety legislation.

An analysis of firearm violence data by the Children's Defense Fund found

that guns kill more children between the ages of 10 and 19 than any other cause except car accidents. In 2002, the most recent data available, guns killed 2,867 children under 19 years old. Tragically, that means an average of nearly 8 children are killed by guns each day. Additionally, the CDF estimates that at least four times as many children are injured in non-fatal shootings.

The number of firearms deaths among American children is greater than any other nation in the world. In fact, the Children's Defense Fund states in its 2005 annual report that the rate of deaths among children under 15 years old is higher in the United States than in 25 other industrialized nations combined. While the gun violence epidemic in this country cannot simply be legislated away, Congress must do more to address the problem.

The Children's Defense Fund makes a number of recommendations to protect children from gun violence. Among other things, the CDF suggests removing guns from homes, providing nonviolent conflict resolution courses for all students, and creating positive community activities for children to reduce the influence of gangs and drugs on children and teenagers. Congress can take an active role in these efforts by taking up and passing common sense gun safety legislation, supporting federal funding for law enforcement and community programs, and focusing the media and public attention on the causes and consequences of gun violence.

During recent sessions of Congress, very little has been done to reduce the prevalence of gun violence. In 2004, inaction by President Bush and the Republican leadership in Congress led to the expiration of the 1994 Assault Weapons Ban. In 2005, Congress passed, and the President signed, National Rifle Association-sponsored legislation that provided blanket immunity from liability to reckless and negligent gun dealers and manufacturers. While doing so, Congress repeatedly cut Federal funding for proven local law enforcement programs and failed to close the gun show loophole.

As we begin the second session of the 109th Congress, I am hopeful greater attention will be paid to finding solutions to the gun violence problems that plague our communities. We owe it to the thousands of families who have already been impacted by firearms tragedies to help prevent such things from happening to others.

Mr. President, we all know that times have been getting tougher for low- and middle-income working families. Compared to 5 years ago, more Americans now live in poverty, the median household income has dropped, and more live without the security of health insurance. Clearly, Congress should be adopting budget policies aimed at improving these troubling trends. But instead, this misguided budget reconciliation conference report would make things worse.

This legislation takes funds from important programs like Medicaid, student loans, child support enforcement, foster care assistance, and Supplemental Security Income for the elderly and disabled poor. The stated purpose of these nearly $40 billion in cuts and harmful program changes is to trim the deficit, but we all know that these savings will not ultimately be used toward that goal; they are designed to pave the way for the $50 billion to $100 billion in new tax cuts that the majority will attempt to push through early next year. We should not be making cuts to vital services simply so the President and the majority can finance more tax cuts that mainly benefit the wealthiest among us.

Under this bill, families that rely on Medicaid will face significant increases in the costs for access to health care services and medications, which will lead many of our most vulnerable citizens to forgo needed care. The Congressional Budget Office, CBO, estimates that the increases in Medicaid copayments and premiums and the reductions in Medicaid benefits will total $16 billion over the next 10 years. Also of particular concern to Michigan is a provision that eliminates the State's provider managed care assessment. When that provision goes into effect, it will cost Michigan $280 million per year.

The conference agreement also makes things worse for those who use student loans. Despite already soaring education costs, this conference report cuts funding for student loan programs by $12.7 billion over 5 years, nearly one-third of the total cuts imposed by this legislation. Most of these reductions are achieved by increasing interest rates and fees paid by students and parents. In the fight for global competitiveness, a highly educated workforce is one of America's best assets. It

is shortsighted to cut investments in education.

This legislation will make also substantial changes to the Temporary Assistance for Needy Families, TANF, program. The changes include imposing harsh new work requirements without providing nearly enough childcare assistance. The CBO estimates that States will need over $12 billion in new funding over the next 5 years to maintain current childcare programs and meet the new work requirements by increasing participation in welfare-to-work programs. The conference agreement, however, includes just $1 billion in childcare funding over the next 5 years. The shortfall means that many States will need to scale back childcare slots for poor working families not on welfare, forcing families to choose between lower quality, less stable childcare or not working at all.

Unfortunately, this conference agreement also contains a House provision that would repeal the Continued Dumping and Subsidy Offset Act, CDSOA, of 2000, despite an overwhelming 71 to 20 Senate vote instructing conferees to reject the provision. The CDSOA was enacted in 2000 to enable U.S. businesses and workers to survive in the face of continued unfair trade by allowing Customs to distribute duties collected on unfairly traded imports to those U.S. companies and workers injured by continued dumped and unfairly subsidized imports. I do not believe we should repeal this law, nor do a bipartisan majority of Senators.

Additionally, under this bill, Federal funding for child support enforcement will be cut about $1.5 billion over the next 5 years. As a result, the CBO estimates that $2.9 billion in child support owed to children will go uncollected over 5 years.

The hardships that will be caused by this legislation are significant and broad-reaching. Yet the three-part budget reconciliation package that includes this conference report will not even make a dent in our deficits. Both the House and Senate have passed tax reconciliation bills that cut revenues far more than this bill cuts spending. As most grade school math students can tell you, when you bring in less money than you spend, you will end up in trouble. And that is where the President's tax policies have put us today.

We have got over $8 trillion in debt. Financing further tax cuts with debt is simply fiscally irresponsible. In the most recent fiscal year, we spent over $350 billion just to pay the interest on our debt. That is 14 percent of the Federal Government's spending last year. We simply cannot afford to continue building up this massive debt.

One of a few positive aspects about this conference report is the inclusion of an extension of the Milk Income Loss Compensation, MILC, Program, which was set to expire this year. Milk is Michigan's largest agricultural commodity, and the MILC Program has been essential in preserving our dairy farms in times of dairy price declines.

Mr. President, the reconciliation process is supposed to bring Government programs and tax policies passed over the years in line with the broader budgetary goals of the Congress. It should be a fiscal sanity check, making sure our policies support our goals. At a time when one in six American children lives in poverty, our budget goals should be to help, not hurt, the neediest among us. Our goals should also focus on reducing the mountain of debt that we are leaving for our children and grandchildren. Unfortunately, by cutting vital programs to finance tax cuts that mainly benefit the wealthy, this legislation moves us in the wrong direction on both counts. I will oppose this conference report.

Mr. President, parliamentary inquiry: Has the point of order been be raised against any provision that would be left in this bill?

I thank the Chair.

Mr. President, reserving the right to object, I don't plan to, and I want to make sure no one needs a rollcall vote--I do not--on the authorization bill. I want to doublecheck with a few people on this side.

Mr. President, I congratulate Senator Warner. Without his leadership we would not be here. We had a record number of amendments which we had to deal with in a record short period of time. He showed incredible tenacity and patience and wisdom, as he always does in bipartisanship. I commend him and particularly our staffs.

Mr. President, I thank our leadership as well for their staying with us on this one. There was a time earlier this year when we didn't think we were going to get an authorization bill, and except for the efforts of our leaders we would not be here either. I want to particularly thank them.

Mr. President, I am pleased to join my good friend and colleague, Senator Warner, the Chairman of the Senate Armed Services Committee, in urging the adoption of the conference report on H.R. 1815, the National Defense Authorization Act for Fiscal Year 2006. Getting this conference report to the Senate required the labors of Hercules, the patience of Job and the magic of Merlin. We would not have been able to complete conference on this important bill--made so very urgent by the fact that we are nation at war--without the tireless efforts of Senator Warner.

First, a word on the extraordinary events of the last few days.

On the Senate side, every one of our conferees--including all 11 Democrats on the Armed Services Committee--signed the conference report. Each of these Senators signed on the basis of the text of the conference report that was agreed to between the Senate and House conferees.

As is our usual practice, we delivered our Senate signature sheets to the House on Friday afternoon, with the understanding that the conference report would be filed first in the House and acted upon first by that body. The Senate stood ready to take up the conference report as soon as it came over from the House and to pass it after 1 hour of debate.

Unfortunately, the conference report was not filed on either Friday or Saturday, because the House Republican leadership was considering adding an extraneous bill to the conference report. This bill was not a part of our conference, is not in the jurisdiction of our committee, and was never considered by any of the conferees. The bill was not a part of the conference report that was agreed to by our conferees on either side of the aisle.

Senator Warner and I strongly objected to a procedure so totally destructive of bedrock legislative process. When we learned that such an attempt might be made, we joined together and retrieved the Senate signature sheets from the House. Only after we were assured on Sunday afternoon that the conference report would be voted on in the House of Representatives as agreed, with no effort to insert additional material, did we return the Senate signature sheets to the House.

I will ask unanimous consent that a copy of the cover letter that we sent to the House be inserted in the Record. I would also make reference to Senator Warner's remarks in the Record on this subject last Friday, and my remarks last Saturday.

Even before the events of the last weekend, the Armed Services Committee faced obstacles and hurdles in completing this bill that we have never faced before. For example:

It took us over 2 months from the time we reported the bill to the Senate on May 15 to the time debate initially began on July 20.

Then, after only 5 days of debate, our bill was pulled down by the majority leader on July 26 when the Senate failed to invoke cloture on the bill. We had to wait over 3 months and negotiate a very complicated unanimous consent agreement which limited the number of amendments before we were able to resume debate on the bill on November 4.

We debated the bill for an additional 7 days and finally passed it by a unanimous 98 to 0 vote on November 15, but not before disposing of a total of 261 amendments--more amendments ever considered to any Defense authorization bill since Congress passed the first annual Defense authorization bill back in 1961.

As far as completing conference this session, there were a lot of people who doubted it could be done because of the sheer size and complexity of this legislation, leaving aside some of its very contentious issues. Over the past 10 years, we have averaged a total of 70 days in conference with the House on this massive bill. Last year alone, we were in conference with the House for a total of 85 days. We completed this conference in under 1 month--29 days, to be exact. We compromised on a lot of issues, but we didn't compromise the quality of this legislation just for the sake of getting it done quickly. In short, we did it right and we are very proud of that. This year, we have produced a true holiday gift for our troops and our Nation.

This conference report contains provisions that provide well-deserved support for our military personnel and their families. In particular, the conference report will:

Increase basic pay by 3.1 percent, a half percent higher than inflation;

Increase the death gratuity for all active duty deaths from $12,400 to $100,000, retroactive to the beginning of Operation Enduring Freedom;

Authorize a new special pay of $430 a month during hospitalization for service members while rehabilitating from an injury or disease incurred in a combat zone;

Authorize a new leave of up to 21 days when adopting a child;

Provide $30 million in impact aid to local school districts, including a new $10 million authorization for schools that have a large increase or decrease in students due to rebasing, activation of new military units, or base realignment and closure;

Increase funding for military child-care services by $50 million, and for family assistance services by $10 million; and

Create a mental health task force to help military members and families deal with an increasing number of mental health issues.

The bill also contains several provisions especially designed to benefit our

National Guard and Reserve personnel and their families:

Every member of the Selected Reserve will have access to government- subsidized health care under the military TRICARE Standard medical program for themselves and their families.

Tier 1 is the TRICARE Reserve Select program that we authorized last year. National Guard and Reserve personnel who are mobilized can use this benefit for a year for each period of mobilized service, as long as they remain in the Selected Reserve. The Government pays 72 percent of their health care premium--they pay only 28 percent.

Tier II includes members of the Selected Reserve who do not have access to health insurance through their civilian employment. The Government pays 50 percent of their premium; and

Tier III includes members of the Selected Reserve who have access to health insurance through their employer but choose TRICARE. The Government pays 15 percent of their premium, they pay the remaining 85 percent.

National Guard and Reserve members who suffer an income loss when mobilized will be paid an income replacement payment after 18 months of active duty, upon completion of 24 months of active duty in a 5-year period, or when mobilized within 180 days of an earlier mobilization.

Reservists who are ordered to active duty for more than 30 days will receive a full housing allowance rather than the current 140 days.

In the bill we authorize the following end strengths for our active- duty forces: Army--512,400, an increase of 10,000 soldiers from last year's authorized end strength; Navy--352,700, 13,200 less than last year, in accordance with the Department's request; Marine Corps-- 179,000, an increase of 1,000 Marines; and Air Force--357,400, 2,300 less than last year's authorization, again in accordance with the Department's request.

We are very concerned about the Army's ability to recruit enough enlistees to make the end strength that we authorized. This bill gives the Army new tools to help it meet its recruiting goals:

A new bonus of up to $1000 for soldiers who refer a successful recruit to the Army;

New authority to experiment with innovative recruiting incentives;

Authorization for matching contributions to the Thrift Savings Plan during a service member's initial enlistment; and

An increased maximum enlistment bonus of up to $40,000.

This bill does not include everything that I fought for. For example, I am very disappointed that we were not able to eliminate the requirement that survivor benefit plan annuity payments be reduced by the amount of dependency and idemnity compensation received from the Veterans' Administration. I am also disappointed that we were not able to immediately repeal the 10-year phase-in of the concurrent receipt of military retired pay and VA disability compensation for military retirees with less than a 100 percent disability who are considered ``totally disabled'' because their disability renders them unemployable.

Before I comment further on a number of other issues in the conference report relating to support for our men and women in uniform, weapons systems and nonproliferation programs, I want to comment on provisions relating to the treatment of detainees and the sense of the Congress on United States policy on Iraq.

I am pleased that the conference report contains the full text of the McCain amendment on torture, without change. This language firmly establishes in law that the United States will not subject any individual in our custody, regardless of nationality or physical location, to cruel, inhuman, or degrading treatment or punishment. The amendment provides a single standard--``cruel, inhuman, or degrading treatment or punishment''--without regard to what agency holds a detainee, what the nationality of the detainee is, or where the detainee is held. With the enactment of this amendment, the United States will put itself on record as rejecting any effort to claim that these words have one meaning as they apply to the Department of Defense and another meaning as they apply to the CIA; one meaning as they apply to Americans and another meaning as they apply to our enemies; or one meaning as they apply in the United States and another meaning as they apply elsewhere in the world.

The McCain amendment is not only an important statement of law, it is a reaffirmation of one of the core values of our system of government and a restatement of who we are as Americans. I would not have signed or supported any conference report that did not include these provisions.

Despite repeated efforts by administration officials and their allies in the House of Representatives to amend this language, the conference report does not allow the President to authorize actions that violate the standards in the McCain amendment, or to immunize individuals who engage in such actions from either criminal prosecution or civil suit. Despite repeated efforts by administration officials and their allies in the House, the conference report does not authorize the U.S. government to indemnify individuals who are found to be liable for violating the standards in the McCain amendment, and it does not make reckless or wanton behavior a prerequisite to such liability.

The conference report would add a new section establishing a defense in any legal action against a person who engages in specific operational detention and interrogation practices that were officially authorized at the time that they were conducted, if the defendant did not know that the practices were unlawful and a person of ordinary sense and understanding would not have known that they were unlawful. This is not a new defense: it is virtually identical to the defense already available under the Manual for Courts-Martial for military members who act in reliance upon lawful orders.

It has never been my understanding that the McCain amendment would, by itself, create a private right of action. I do not believe that the amendment was intended either to create such a private right of action, or to eliminate or undercut any private right of action--such as a claim under the alien tort satute--that is otherwise available to an alien detainee. Rather, the McCain amendment would establish a legal standard applicable to any criminal prosecution or a private right of action that is otherwise available under law. That would not be changed in any way by the affirmative defense added in the new section. Nor would the McCain amendment be undermined in any way by any of the other detainee provisions in the conference report.

I opposed the initial amendment addressing the legal rights of Department of Defense detainees at Guantanamo Bay, Cuba when Senator Graham offered it on the Senate floor, because it would have stripped federal courts of jurisdiction to hear habeas corpus challenges-- including pending cases--brought by Guantanamo detainees. Unfortunately, the Senate approved that amendment by a 49-to-42 vote.

Following the Senate vote, I worked with Senator Graham to build back protection into his amendment. We did so in three ways:

First, the jurisdiction-stripping provision in the initial Graham amendment would have applied retroactively to all pending cases in Federal court--stripping the Federal courts of jurisdiction to consider pending cases, including the Hamdan case now pending in the Supreme Court. The revised amendment adopted by the Senate--the so-called Graham-Levin-Kyl amendment--does not apply to or alter any habeas case pending in the courts at the time of enactment.

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.

Second, the initial Graham amendment would have provided for direct judicial review only of status determinations by Combat Status Review Tribunals, CSRTs. By contrast, the revised Graham-Levin-Kyl amendment adopted by the Senate provided for direct judicial review of both status determinations by CSRTs and convictions by military commissions. The amendment does not affirmatively authorize either CSRTs or military commissions--instead, it establishes a judicial procedure for determining the constitutionality of such processes.

Again, this improvement is preserved in the conference report, which retains the Senate language authorizing direct review of both status determinations by CSRTs and convictions by military commissions.

Third, the initial Graham amendment would have provided only for review of whether a tribunal complied with the Department's own standards and procedures. By contrast, the revised amendment adopted by the Senate would authorize courts to determine whether the standards and procedures used by CSRTs and military commissions are consistent with the Constitution and laws of the United States.

This language has been revised in conference only to state what the intent of the amendment already was--that it was not intended to grant to an alien detainee any rights under the Constitution and laws of the United States that the detainee does not already have. Otherwise, the improved language remains intact in the conference report: The courts would be expressly authorized to determine whether the standards and procedures used in a status determination or the trial of an alien detainee at the Guantanamo are consistent with the Constitution and laws of the United States, as they apply to that detainee.

We expect that final decisions in both the CSRT process and under the military order for trials will be reached in an expeditious manner to ensure judicial review within a reasonable period of time. The statement of managers makes this point expressly with regard to CSRT determinations, because the amendment requires that CSRT procedures be submitted to Congress. The statement of managers does not make this point with regard to military commissions only because the procedures for military commissions are not in any way addressed in the conference report.

The Senate bill also contained a provision that would require the Secretary of Defense to submit to Congress a report on the procedures used by combat status review tribunals and administrative review boards for determining the status of the detainees held at Guantanamo Bay and the need to continue to hold such detainees. This provision has been expanded in the conference report to require that the report also address procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense.

Nothing in the conference report is intended to in any way authorize, endorse or approve either these procedures or Military Commission Order No. 1, which establishes Department of Defense procedures for the trial of detainees. Nor does anything in the conference report authorize, endorse or approve the administration's position on the President's authority to treat any alien or category of aliens as ``enemy combatants'' or ``unlawful combatants''. All that it does is to require that certain DOD procedures be submitted to the Congress and establishes an orderly process for the review of those procedures in the courts to determine whether they are consistent with the Constitution and laws of the United States. The conference report does not attempt to prejudge the outcome of that review.

Throughout the conference, we were pressed by administration officials and their allies in the House to make changes to the Senate language. We were asked to strip the courts of jurisdiction over pending cases; to eliminate any review of the constitutionality of procedures established by the Department of Defense; to expand the habeas limitations to detainees held anywhere in the world; to expand these provisions to strip legal rights from detainees held by the CIA and other agencies; to bar detainees from ever bringing any legal action challenging any aspect of their detention; to prohibit the courts from providing legal relief for detainees who are found to be improperly held; and to grant immunity to individuals engaged in detention and interrogation operations. We successfully opposed all of these changes.

The conference report does make two changes to the Senate language which are more complex.

First, the Senate-passed provision would have established an exclusionary rule prohibiting CSRTs from considering evidence obtained through ``undue coercion''. I was troubled by the phrase ``undue coercion'', because of the implication that there might be such a thing as ``due''--or appropriate--coercion. I do not believe that coerced testimony is ever appropriate.

We were able to modify the provision in the conference report to eliminate the word ``undue'', an improvement over the Senate language. At the same time, however, the provision was modified so that it only provides for an ``assessment'' of whether the testimony was obtained through cruel, inhuman or degrading treatment and, if so, requires the tribunal to decide if there is any probative value to the testimony. We do not authorize such testimony to be used: a reviewing court will make that determination.

It is a centuries-old principle of Anglo-American law, enshrined in the fifth amendment to the Constitution, that no person shall be compelled to be a witness against himself. Regardless whether this rule of law is expressly incorporated into CSRT procedures, I hope and believe that the courts will enforce the generally accepted rule of law and ensure that evidence obtained through coercion is excluded from any administrative or judicial proceedings.

Second, while the Senate-passed provision would have eliminated federal court jurisdiction only for habeas corpus actions, the conference report would eliminate such jurisdiction for ``any other action against the United States or its agents'' relating to detention at Guantanamo Bay, Cuba. This new language is limited to detainees who either: (1) remain in military custody at Guantanamo; or (2) although they have been released from Guantanamo, have been determined by the United States Court of Appeals (subject to Supreme Court review) to have been properly detained as enemy combatants. This language places a limitation on legal recourse available to detainees. While we do not know whether any legal remedies other than habeas corpus actions would have been available to detainees, I would have preferred not to have this limitation in the bill.

In sum, administration officials and their allies in the House have sought at every turn to deny legal rights or recourse to detainees at Guantanamo and

elsewhere. I do not believe that we should have gone down the road of limiting legal remedies for detainees in the manner that we did. However, once the Senate voted over my objection to eliminate habeas corpus relief, my effort turned toward: (1) building back access to the courts on direct appeal of administrative determinations of status or criminal conduct; (2) avoiding stripping the courts of jurisdiction over pending cases; and (3) ensuring that the provisions on detainee rights would not be used to undermine the McCain amendment.

I believe that we succeeded on all three issues. The conference report preserves a meaningful opportunity for detainees to challenge the legality of their detention or any criminal conviction in federal court. It ensures that the provisions eliminating habeas corpus jurisdiction will be prospective in their application and will not apply to pending cases. And of course we worked with Senator McCain to preserve his amendment intact and to shape the Graham-Levin language so as to avoid undermining the McCain amendment.

The conferees endorsed with minimal change the provision on United States policy on Iraq which garnered overwhelming bipartisan support from over three-quarters of the Senate. This provision shows that both houses of Congress, and both political parties, have come together with a common message to our troops, to the administration, to the American people, and, most importantly, to the Iraqi people.

Expressing the heartfelt gratitude of the American people to our troops and their families for their unwavering devotion to duty, service to the Nation, and selfless sacrifice, Congress in this conference report reiterates its support for them and for a successful conclusion to their mission.

Congress, in the provision in the conference report, notes that calendar year 2006 should be a period of significant transition to full Iraqi sovereignty, with Iraqi security forces taking the lead for the security of a free and sovereign Iraq, thereby creating the conditions for the phased redeployment of United States forces from Iraq.

Congress expresses its view that the administration should tell the leaders of all groups and political parties in Iraq that they need to make the compromises necessary to achieve the broad-based and sustainable political settlement that is essential for defeating the insurgency in Iraq, within the schedules they set for themselves.

Congress directs the administration to provide Congress and the American people specific information on its strategy in Iraq, principally the diplomatic, political, economic, and military measures that are being undertaken; whether the Iraqis have made the compromises necessary to achieve the broad-based and sustainable political settlement that is essential for defeating the insurgency; and the conditions that must be met in order to provide for the transition of additional security responsibility to Iraqi security forces, along with a plan for meeting such conditions, and an assessment of the extent to which such conditions have been met.

This provision, which has garnered broad bipartisan support, is a significant win for the American people, and a large step forward for policy for Iraq. The messages that it sends are important, and the information it demands is crucial, for establishing and advancing a strategy for completing the mission in Iraq successfully, for beginning the process of redeployment of our military forces, and for doing so in a manner that will hopefully enhance U.S. national security.

The conference report also authorizes $50 billion in supplemental funding for fiscal year 2006 to support our troops on the ground in Iraq and Afghanistan. This is consistent with the budget resolution. Included in this $50 billion is funding to support increased Army and Marine Corps personnel, funding to buy additional armor for their vehicles and to repair or replace the equipment that our troops rely on. It also includes $1 billion for our No. 1 force protection priority, the Joint Improvised Explosive Device or IED Task Force.

This bill authorizes military construction and family housing projects that will improve the quality of life of our men and women in uniform and their families. It also authorizes $1.5 billion to begin implementing the decisions of the 2005 base realignment and closure round. These funding authorizations are consistent with the military construction appropriations enacted in November and will allow those projects to proceed.

The conferees agreed to the Army's request to relax the punitive restrictions on military construction at Fort Buchanan, Puerto Rico that were enacted 5 years ago in light of the protests over Vieques. The Army activities at Fort Buchanan are not now and never were related to the Navy's activities at Vieques, and I am pleased that the conferees agreed to address these unjust restrictions.

With respect to nonproliferation programs, although I would have preferred the amendment that Senator Lugar added to the Senate-passed bill, which would have repealed all of the various conditions that the Cooperative Threat Reduction, CTR, program must meet before spending money in any given year, I am pleased that we have included permanent authority to waive on an annual basis the requirement to certify that the various conditions have been met by each country recipient of CTR funds.

The CTR program and the nonproliferation programs at the Department of Energy are all funded at the budget request. Within the Department programs we were able to address some urgent requirements by providing additional funds to accelerate the shutdown of the last plutonium- producing reactor in Russia and to accelerate the security of nuclear weapons storage at key Russian sites.

The agreement includes $4.0 million in Air Force accounts that the Air Force and the Department of Defense have the option to use to study and improve the performance of conventional, nonnuclear, penetrator weapons. I hope and urge the Department to use at least the $4.0 million to support conventional, nonnuclear weapons development.

The conference report includes a series of provisions designed to improve the management of the Department of Defense. These include provisions that would:

Help protect the Federal employee workforce from unfair competition by codifying an important set of historic precedents and commonsense principles for public-private competition;

Improve the management of DOD's major defense acquisition programs by requiring the Department to establish more realistic and achievable cost and performance estimates and tighten oversight requirements for programs that are experiencing problematic cost growth;

Improve the management of $70 billion a year of DOD contracts for services by requiring the Department to establish a new management structure for such contracts and requiring strict review of interagency contracting mechanisms that have been abused in the past;

Reduce the risk of abusive acquisition practices like those seen in the proposed tanker lease contract by requiring the Secretary of Defense or the Deputy Secretary of Defense to personally approve any proposal to purchase a major weapon system as a commercial item; and

Prohibit the Department from wasting hundreds of millions of dollars on unneeded audits of financial management systems that must be replaced because they are incapable of producing timely, accurate and complete financial data for management purposes.

I am particularly pleased that the conference report also includes a provision for disaster relief for small business concerns damaged by drought. In the same way that floods, hailstorms, tornadoes, and other natural phenomena can devastate small businesses, the harm caused by unusually low water levels on the Great Lakes can be irreparable to businesses that depend on the waterways. The Small Business Act already provides disaster assistance to businesses have been victim to a number of natural disasters, so I am grateful that we have been able to broaden eligibility for that assistance to include businesses that have been hurt by below-average water levels on the Great Lakes.

With respect to the Navy's shipbuilding accounts, the conference agreement incorporates reasonable

cost caps on Virginia-class attack submarines in the Future Years Defense Program, the fifth DD(X) land attack destroyer, to be bought in 2010, and the fifth and sixth littoral combat ships, to be bought in 2008 or 2009. The conferees did not include a cost cap on the LHA because too little is known yet about the final design. The conference agreement also reflects the fact that the House has agreed to the Senate provision preventing the Navy from conducting a winner-take-all competition for the next generation destroyer program called the DD(X). Finally, the conferees agreed to a provision requiring the Navy to maintain 12 aircraft carriers and provided funding to overhaul the USS John F. Kennedy that the Navy had planned to retire.

The conferees dealt with the Navy's program to buy a new presidential helicopter, called the VXX, by adopting compromise language that would: (1) allow production of the pilot production helicopters to go forward; and (2) require that the Secretary of the Navy submit an acquisition strategy for the full rate production aircraft, Increment Two, by March 15, 2006. This strategy would be required to include one phase of operational testing before initiation of full rate production for VXX. The agreement would fence 25 percent of the Fiscal Year 2006 R&D funding until the Secretary submits that strategy.

The conferees also dealt with the Army's future combat systems by agreeing that the entire Army future combat systems program, including the manned ground vehicles project, should remain in system development and demonstration, rather than having large portions revert to the technical base. This is a recognition of the importance of the Army's only modernization program to both the future Army, and to the spinout of FCS technologies to the current force, as well as a recognition of the need for the future combat systems to be developed as an integrated system of systems as quickly as possible.

The bill also demonstrates the conferees continued strong support for the Department's special operations, counterdrug and humanitarian operations. In particular the conferees enhanced DOD's ability to combat terrorism and the production and trafficking of illegal drugs, including: authorizing and funding five additional National Guard Chemical, Biological, Radiological, Nuclear and High Yield Explosive (CBRNE) Enhanced Response Force Package teams, in addition to sustaining the existing 12 teams--which provide support to civilian authorities in the aftermath of a WMD incident; directing the Department to report on the use of DOD aerial reconnaissance assets to support the Department of Homeland Security; authorizing use of counterdrug funding for 2 years for joint task forces combating terrorism and narcotics production and trafficking, and; designating the Chairman of the Joint Chiefs of Staff as the principal military advisor to the Homeland Security Council. The conferees also agreed to authorize increased funding for humanitarian operations, including $40 million in a future supplemental for Pakistan, and expanding the medical assistance to include related education, training, and technical assistance.

In science and technology, this year's conference report includes a number of provisions and funding measures that support the transformation of our military while improving our ability to rapidly move new technologies out of the laboratory and onto the battlefield. The conference report authorizes over $11.3 billion for science and technology research programs, an increase of $840 million over the President's budget request. It also makes permanent the SMART, Science, Math, and Research for Transformation, Scholarship for Service Program to help the DoD educate, train, and employ the highest quality technical workforce. In order to better utilize the innovative talents of our nation's small businesses, the bill establishes a pilot program to promote the transition of technologies from the Small Business Innovative Research program into DoD acquisition programs. Finally, the conference report increases funding for and establishes mechanisms to accelerate and better coordinate research in a number of priority areas including robotics, unmanned ground vehicles, IED detection and defeat, the diagnosis and treatment of blast injuries, semiconductor microelectronics, and the development and deployment of advanced fuel cell vehicles.

I ask unanimous consent that the letter I referred to be printed in the Record.

My particular thanks to my staff for their extraordinary work:

Rick DeBobes, Peter Levine, Jon Clark, Chris Cowart, Dan Cox, Madelyn Creedon, Brie Eisen, Evelyn Farkas, Richard Fieldhouse, Creighton Greene, Bridget Higgins, Mike Kuiken, Gary Leeling, Mark McCord, Bill Monahan, Arun Seraphin.

Also to Charlie Abell and others of Senator Warner's staff.

comments on final passage

I am pleased that the conference report contains the full text of the McCain amendment on torture, without change. This language firmly establishes in law that the United States will not subject any individual in our custody, regardless of nationality or physical location, to cruel, inhuman, or degrading treatment or punishment. The amendment provides a single standard--for ``cruel, inhuman, or degrading treatment or punishment''--without regard to what agency holds a detainee, what the nationality of the detainee is, or where the detainee is held.

It has never been my understanding that the McCain amendment would, by itself, create a private right of action. I do not believe that the amendment was intended either to create such a private right of action, or to eliminate--or undercut any private right of action such as a claim under the Alien Tort Statute--that is otherwise available to an alien detainee. Rather, the McCain amendment would establish a legal standard applicable to any criminal prosecution or any private right of action that is otherwise available under law. That would not be changed in any way by the affirmative defense added in the new section.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, more than 50 years ago, Justice Robert Jackson said:

With all its defects, delays and inconveniences, men have

discovered no technique for long preserving free government

except that the Executive be under the law, and that the law

be made by parliamentary deliberations.

I am deeply troubled by recent revelations that the President of the United States has apparently personally authorized spying on the private phone conversations of Americans without court approval, as is required by law. The President's decision to ignore the law Congress wrote and bypass the special court we created raises profound concerns that deserve our immediate attention.

Yesterday, I joined several of my colleagues in requesting a joint inquiry into the President's actions by the Senate Intelligence and Judiciary Committees.

Checks and balances are the bedrock of our system of government. In 1978, when Congress passed the Foreign Intelligence Surveillance Act to permit the Government to seek court orders to tap the phones of people in the United States, Congress put in the law a check--the FISA Court-- on the executive branch's authority.

Since 1979 the FISA Court has approved nearly 19,000 applications for FISA wiretaps. The Court has rejected only a handful.

Last year, at a speech in Buffalo, NY, the President explicitly cited the need for a court order as a reason why Americans should have confidence that their civil liberties are being protected. He said:

Any time you hear the United States government talking

about wiretap, it requires--a wiretap requires a court order.

Nothing has changed, by the way. When we're talking about

chasing down terrorists, we're talking about getting a court

order before we do so. It's important for our fellow citizens

to understand . . . constitutional guarantees are in place

when it comes to doing what is necessary to protect our

homeland, because we value the Constitution.

But now the President acknowledges that 4 years ago, he authorized wiretaps on Americans without court review. Now he asserts that he has the authority--without court approval--to order the wiretaps himself and we now know that the Government was conducting warrantless wiretaps when the President made the statement in Buffalo.

If the court isn't consulted, where is the check on executive power?

The President has said that he consults with executive branch lawyers and has briefed Congressional leaders about the domestic spying program. But to suggest that consulting with executive branch lawyers is a check on

Executive Branch authority demonstrates a fundamental misunderstanding of the concept of checks and balances. And notifying a few members of Congress--if that is in fact what the administration did--is not the check provided by law. That check is the court.

In the conference report that accompanied the FISA law, Congress made the Supreme Court the only body that could authorize electronic surveillance by the executive branch not explicitly authorized by the FISA law. The conference report said:

The conferees agree that the establishment by this act of

exclusive means by which the President may conduct electronic

surveillance does not foreclose a different decision by the

Supreme Court . . .

Executive Order 12333, issued by President Reagan in 1981, recognizes FISA as the governing law for foreign intelligence wiretaps. It provides that:

Electronic surveillance, as defined in the Foreign

Intelligence Surveillance Act of 1978, shall be conducted in

accordance with that Act, as well as this Order.

And, under FISA itself, a person is actually guilty of a crime if he engages in electronic surveillance except as authorized by statute.

A person is guilty of an offense if he intentionally--(1)

engages in electronic surveillance under color of law except

as authorized by statute.

The President has not provided any legal opinion that supports his claim of authority.

On Monday, the President said that the targets of the spying are ``those that are known al Qaeda ties and/or affiliates.'' But the FISA law says that wiretap orders may be issued by the court if there is probable cause to believe that the target of the wiretap is a foreign power or an agent of a foreign power. If the targets of the spying have known al Qaeda ties, why didn't he get a FISA court order?

The President has also tried to justify the warrantless spying by saying ``Sometimes we have to move very, very quickly.'' That is true. In some cases we do have to move quickly. But the FISA law addresses such occasions. It explicitly allows the Attorney General, to issue emergency wiretap orders without first obtaining court approval. His wiretap application need only be filed with the FISA court within 72 hours after surveillance is authorized.

The President claims that he has authority under the Constitution to authorize wiretaps without court approval as required by law. Yet he refuses to provide any legal opinions justifying that view.

The Attorney General is quoted in the Washington Post as saying ``This is not a backdoor approach . . . We believe Congress has authorized this kind of surveillance'' and he points to the Authorization for Use of Military Force passed by Congress in September 2001 as a source of Congressional authorization.

That Resolution states:

That the President is authorized to use all necessary and

appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11,

2001, or harbored such organizations or persons, in order to

prevent any future acts of international terrorism against

the United States by such nations, organizations or persons.

The assertion that ``necessary and appropriate force'' includes the authority to wiretap American citizens in the United States, is, on its face, without merit. And again, the President has not provided any legal opinion that would support that interpretation.

The Attorney General undermined his own statement that the Congress authorized warrantless wiretaps by telling the Post that the President had contemplated asking Congress to pass legislation granting him that authority but decided against it because it ``would be difficult, if not impossible'' to pass. Taken together, the two statements of the Attorney General make no sense. He asserts both that Congress authorized the wiretapping and that it never would. The Attorney General is trying to have it both ways. We need some straight answers.

So, why wasn't the FISA law followed?

Just this morning, the Washington Post reported that General Michael Hayden the head of the National Security Agency--the agency the President has charged with carrying out the spying--suggested that getting retroactive court approval is inefficient because it ``involves marshaling arguments'' and ``looping paperwork around.''

I would remind General Hayden--and the President for that matter--of something else Justice Jackson said. He said:

The doctrine of the separation of powers was adopted by the

Convention of 1787, not to promote efficiency but to preclude

the exercise of arbitrary power.

Just as troubling as General Hayden's reason for bypassing FISA is the Post's report that the decision to tap a phone without a warrant ``requires only the approval of a shift supervisor.''

That is outrageous. We don't let shift supervisors at the airport decide to stop screening passengers for explosives. And we shouldn't let shift supervisors at the NSA decide whether to abide by the law or not.

The President says that this is a different era and a different type of war. And he is right. But this is the same country, with the same Constitution, and the same system of checks and balances that have served us so well for more than 200 years. And even Presidents are not above the law.

Mr. President, I would like to take this opportunity to recognize Matrix Human Services, one of Michigan's oldest and largest nonprofit social service organizations, as it celebrates 100 years of tireless and dedicated service.

Matrix Human Services was founded in 1906 by a small group of Catholic women, later known as the League of Catholic Women, who recognized a growing need to provide support for low income and at-risk populations in the Detroit Metropolitan area. Over the years as the League's membership continued to grow, it was able to dedicate more resources and personnel to its mission of fostering self-sufficiency and hope to those in need. These efforts ultimately lead to a broadened scope of services that sought to address the growing and diverse needs of the community, which grew into what we now refer to as Matrix Human Services.

Today, Matrix Human Services is a diverse organization with more than 300 staff members and dedicated volunteers, serving 30 locations across the Detroit Metropolitan area. It continues to focus on its mission to help prepare individuals and families to live a more positive, productive and meaningful life. Matrix Human Services has organized educational training, childcare, social work, mentoring, abuse prevention, and housing assistance for the homeless programs. Each year, Matrix is able to serve thousands of individuals through a network of specialized divisions that include Head Start Family Service Center, Project Transition Housing, Walter and May Reuther Senior Services, Barat Child and Family Services, Casa Maria Family Services, Vistas Nuevas Head Start, and Off the Streets.

I know my Senate colleagues join me in congratulating Matrix Human Services on its many years of excellent service and wish its staff, volunteers, and community partners many more productive years of service to the community.