Floor Statements

Mr. President, the debate on how to most effectively combat gun violence frequently centers on the ability of criminals to access dangerous firearms. Today, I would like to call my colleagues' attention to another important issue in our fight against gun violence: the ability of our teenagers and children to access firearms. Safe storage and child access prevention laws are critical steps as we seek to reduce the occurrence of accidental shootings and suicides involving guns. Such tragedies have claimed the lives of thousands of young people and destroyed families even though many of these occurrences could have been prevented by common sense legislation.

According to a Journal of the American Medical Association study released in 2001, suicide is the third-leading cause of death among youth aged 10 to 19. Between 1976 and 2001, the period of the study, nearly 40,000 youth aged 14 to 20 committed suicide using a gun. The study also found that there was a significant reduction in youth suicide rates in States that had child access prevention laws. Unlike suicide attempts using other methods, suicide attempts with guns are nearly always fatal. These children get no second chance.

The Brady Campaign to Prevent Gun Violence reported in 2004 that teenagers and children are involved in more than 10,000 accidental shootings in which close to 800 people die each year. Further, about 1,500 children age 14 and under are treated in hospital emergency rooms for unintentional firearm injuries. About 38 percent of them have injuries severe enough to require hospitalization. Blocking unsupervised access to loaded guns is the key to preventing these occurrences.

A study published last week in the Journal of the American Medical Association found that the risk of unintentional shooting or suicide by minors using a gun can be significantly reduced by adopting responsible gun safety measures. According to the study, when ammunition in the home is locked up, the risk of such injuries is reduced by 61 percent. Simply storing ammunition separately from the gun reduces such occurrences by more than 50 percent.

During the 108th Congress, I joined with 69 of my colleagues in voting for Senator Boxer's trigger lock amendment. Senator Boxer's amendment would have required that all handguns sold by a dealer come with a child safety device, such as a lock, a lock box, or technology built into the gun itself that would increase the security of the weapon while in storage. The underlying gun industry immunity bill to which this amendment was attached was later defeated in the Senate, but the need and support for this legislation is clear. In light of the bipartisan support for this trigger lock amendment during the last Congress, I am hopeful that the 109th Congress will take up and pass common sense trigger lock legislation.

While the problems of youth suicide and accidental shooting cannot be legislated away, trigger locks and other sensible gun safety measures can help limit children's access to firearms. It is clear that reducing our kids' access to guns can save lives. The time has come to support the efforts of States who have enacted common sense child access prevention laws and make responsible storage of firearms standard around the Nation.

Mr. President, I come to the floor today to introduce a bill to address an inequity to one of Michigan's Native American tribes. The Grand River Band of Ottawa Indians, commonly referred to as the Grand River Band, has been in some form indigenous to the State of Michigan for over 200 years. The Grand River Band consists of the 19 bands of Indians who occupied the territory along the Grand River in what is now southwest Michigan, including the cities of Grand Rapids and Muskegon. The members of the Grand River Band are the descendants and political successors to signatories of the 1821 Treaty of Chicago and the 1836 Treaty of Washington. They are also one of six tribes who is an original signatory of the 1855 Treaty of Detroit. However, the Grand River Band is the only one of those tribes which is not recognized by the Federal Government.

The bill I am introducing today with my colleague, Senator Stabenow, will direct the Bureau of Indian Affairs at the Department of Interior to make a recognition determination in a timely manner. Let me be clear--this bill does not federally recognize the tribe nor does it address the issue of gaming. I hope that this legislation will help to address this inequity to the Grand River Band and provide a timely remedy so that the tribe can enjoy the full benefits and status of Federal recognition.

Mr. President, I come to the floor today to introduce a bill to address an inequity to one of Michigan's Native American tribes. The Grand River Band of Ottawa Indians, commonly referred to as the Grand River Band, has been in some form indigenous to the State of Michigan for over 200 years. The Grand River Band consists of the 19 bands of Indians who occupied the territory along the Grand River in what is now southwest Michigan, including the cities of Grand Rapids and Muskegon. The members of the Grand River Band are the descendants and political successors to signatories of the 1821 Treaty of Chicago and the 1836 Treaty of Washington. They are also one of six tribes who is an original signatory of the 1855 Treaty of Detroit. However, the Grand River Band is the only one of those tribes which is not recognized by the Federal Government.

The bill I am introducing today with my colleague, Senator Stabenow, will direct the Bureau of Indian Affairs at the Department of Interior to make a recognition determination in a timely manner. Let me be clear--this bill does not federally recognize the tribe nor does it address the issue of gaming. I hope that this legislation will help to address this inequity to the Grand River Band and provide a timely remedy so that the tribe can enjoy the full benefits and status of Federal recognition.

Mr. President, during the last Session of the 108th Congress, I informed my colleagues of my intention to introduce bipartisan legislation in the 109th Congress, to authorize the awarding of the Congressional Gold Medal, collectively, to the ``Tuskegee Airmen.''

Congress has commissioned the gold medal as its highest expression of national appreciation for distinguished achievements and contributions. Today, I am pleased to be joined by Senators McCain, Stabenow, Dole, Obama, Graham, Rockefeller, Pryor, Ben Nelson, Landrieu and Kerry in introducing legislation, S. 392, that would bestow this great honor on the Tuskegee Airmen, in recognition of their extraordinary courage and unwavering determination to become America's first black military airmen.

The Tuskegee Airmen were not only unique in their military record, but they inspired revolutionary reform in the armed forces, paving the way for integration of the Armed Services in the U.S. The largely college educated Tuskegee Airmen overcame the enormous challenges of prejudice and discrimination, succeeding, despite obstacles that threatened failure. What made these men exceptional was their willingness to leave their families and put their lives on the line to defend rights that were denied them here at home. Congresswoman Helen Gahagan Douglas of California, in remarks on the floor of the U.S. House of Representatives on February 1, 1946 summed it up this way:

The Negro soldier made his contribution in World War II . .

. he has met the test of patriotism and heroism. We should be

especially mindful . . . remembering that he fought and shed

his blood for a freedom which he has not as yet been

permitted fully to share. I wish to pay him the respect and

to express the gratitude of the American people for his

contribution in the greatest battle of all time the battle

which decided whether or not we were to remain a free people.

The names of Negro heroes in this war are everlastingly

recorded among the living and the dead . . . in every combat

area, on land, on sea, in the air.

Former Senator Bill Cohen, in remarks on the floor of the Senate decades later, in July of 1995, said: ``. . . I listened to the stories of the Tuskegee airmen and . . . the turmoil they experienced fighting in World War II, feeling they had to fight two enemies: one called Hitler, the other called racism in this country.''

The superior record of the Tuskegee Airmen in World War II was accomplished by individuals who accepted the challenge and proudly displayed their skill and determination in the face of racism and bigotry at home, despite their distinguished war records. Prior to the 1940s, many in the military held the sadly, mistaken view that black servicemen were unfit for most leadership roles and mentally incapable of combat aviation. Between 1924 and 1939, the Army War College commissioned a number of studies aimed at increasing the military role of blacks. According to The Air Force Magazine , Journal of the Air Force Association, March 1996, ``. . . these studies asserted that blacks possessed brains significantly smaller than those of white troops and were predisposed to lack physical courage. The reports maintained that the Army should increase opportunities for blacks to help meet manpower requirements but claimed that they should always be commanded by whites and should always serve in segregated units.''

Overruling his top generals and to his credit, President Franklin Roosevelt in 1941 ordered the creation of an all black flight training program at Tuskegee Institute. He did so one day after Howard University student Yancy Williams filed suit in Federal Court to force the Department of Defense to accept black pilot trainees. Yancy Williams had a civilian pilot's license, and received an engineering degree. Years later, ``Major Yancy Williams,'' participated in an air surveillance project created by President Eisenhower.

``We proved that the antidote to racism is excellence in performance,'' said retired Lt. Col. Herbert Carter, who started his military career as a pilot and maintenance officer with the 99th Fighter Squadron. ``Can you imagine . . . with the war clouds as heavy as they were over Europe, a citizen of the

United States having to sue his government to be accepted to training so he could fly and fight and die for his country?'' The government expected the experiment to fail and end the issue, said Carter. The mistake they made was that they forgot to tell us . . .''

The first class of cadets began in July of 1941 with thirteen men, all of whom had college degrees, some with PhD's and all had pilot's licenses. Based on the aforementioned studies, the training of the Tuskegee Airmen was an experiment established to prove that ``coloreds'' were incapable of operating expensive and complex combat aircraft.

By 1943, the first of contingent of black airmen were sent to North Africa, Sicily and Europe. Their performance far exceeded anyone's expectation. They shot down six German aircraft on their first mission, and were also the first squad to sink a battleship with only machine guns. Overall, nearly 1000 black pilots graduated from Tuskegee, 450 of whom served in combat with the last class finishing in June of 1946,. Sixty-six of the aviators died in combat, while another 33 were shot down and captured as prisoners of war. The Tuskegee Airmen were credited with 261 aircraft destroyed, 148 aircraft damaged, 15,553 combat sorties and 1,578 missions over Italy and North Africa. They destroyed or damaged over 950 units of ground transportation and escorted more than 200 bombing missions. Clearly, the experiment, as it was called, was an unqualified success. Black men could not only fly, they excelled at it, and were equal partners in America's victory.

A number of Tuskegee Airmen have lived in Michigan, including Alexander Jefferson, Washington Ross, Wardell Polk, and Walter Downs, among others. Tuskegee Airmen also trained at Michigan's Selfridge and Oscoda air fields in the early 40's. In the early 1970's, the Airmen established their first chapter in Detroit. Today there are 42 chapters located in major cities of the U.S. The chapters support young people through scholarships, sponsorships to the military academies, and flight training programs. Detroit is also the location of The Tuskegee Airmen National Museum, which is on the grounds of historic Fort Wayne. The late Coleman Young, former Mayor of the City of Detroit was trained as a navigator bombardier for the 477th bombardment group of the Tuskegee Airmen. This group was still in training when WWII ended so they never saw combat. However, the important fact is that all of those receiving flight related training--nearly 1,000--were instrumental in breaking the segregation barrier. They all had a willingness to see combat, and committed themselves to the segregated training with a purpose to defend their country.

The Tuskegee Airmen were awarded three Presidential Unit Citations,150 Distinguished Flying Crosses and Legions of Merit, along with The Red Star of Yugoslavia, 9 Purple Hearts, 14 Bronze Stars and more than 700 Air medals and clusters. It goes without question that the Tuskegee Airmen are deserving of the Congressional Gold Medal. According to existing records, I am proud to say that 155 Tuskegee Airmen originated from my State of Michigan.

In closing, I urge my colleagues in the Senate to swiftly act on this legislation, a most deserving honor and tribute to the Tuskegee Airmen. I also ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, during the last Session of the 108th Congress, I informed my colleagues of my intention to introduce bipartisan legislation in the 109th Congress, to authorize the awarding of the Congressional Gold Medal, collectively, to the ``Tuskegee Airmen.''

Congress has commissioned the gold medal as its highest expression of national appreciation for distinguished achievements and contributions. Today, I am pleased to be joined by Senators McCain, Stabenow, Dole, Obama, Graham, Rockefeller, Pryor, Ben Nelson, Landrieu and Kerry in introducing legislation, S. 392, that would bestow this great honor on the Tuskegee Airmen, in recognition of their extraordinary courage and unwavering determination to become America's first black military airmen.

The Tuskegee Airmen were not only unique in their military record, but they inspired revolutionary reform in the armed forces, paving the way for integration of the Armed Services in the U.S. The largely college educated Tuskegee Airmen overcame the enormous challenges of prejudice and discrimination, succeeding, despite obstacles that threatened failure. What made these men exceptional was their willingness to leave their families and put their lives on the line to defend rights that were denied them here at home. Congresswoman Helen Gahagan Douglas of California, in remarks on the floor of the U.S. House of Representatives on February 1, 1946 summed it up this way:

The Negro soldier made his contribution in World War II . .

. he has met the test of patriotism and heroism. We should be

especially mindful . . . remembering that he fought and shed

his blood for a freedom which he has not as yet been

permitted fully to share. I wish to pay him the respect and

to express the gratitude of the American people for his

contribution in the greatest battle of all time the battle

which decided whether or not we were to remain a free people.

The names of Negro heroes in this war are everlastingly

recorded among the living and the dead . . . in every combat

area, on land, on sea, in the air.

Former Senator Bill Cohen, in remarks on the floor of the Senate decades later, in July of 1995, said: ``. . . I listened to the stories of the Tuskegee airmen and . . . the turmoil they experienced fighting in World War II, feeling they had to fight two enemies: one called Hitler, the other called racism in this country.''

The superior record of the Tuskegee Airmen in World War II was accomplished by individuals who accepted the challenge and proudly displayed their skill and determination in the face of racism and bigotry at home, despite their distinguished war records. Prior to the 1940s, many in the military held the sadly, mistaken view that black servicemen were unfit for most leadership roles and mentally incapable of combat aviation. Between 1924 and 1939, the Army War College commissioned a number of studies aimed at increasing the military role of blacks. According to The Air Force Magazine , Journal of the Air Force Association, March 1996, ``. . . these studies asserted that blacks possessed brains significantly smaller than those of white troops and were predisposed to lack physical courage. The reports maintained that the Army should increase opportunities for blacks to help meet manpower requirements but claimed that they should always be commanded by whites and should always serve in segregated units.''

Overruling his top generals and to his credit, President Franklin Roosevelt in 1941 ordered the creation of an all black flight training program at Tuskegee Institute. He did so one day after Howard University student Yancy Williams filed suit in Federal Court to force the Department of Defense to accept black pilot trainees. Yancy Williams had a civilian pilot's license, and received an engineering degree. Years later, ``Major Yancy Williams,'' participated in an air surveillance project created by President Eisenhower.

``We proved that the antidote to racism is excellence in performance,'' said retired Lt. Col. Herbert Carter, who started his military career as a pilot and maintenance officer with the 99th Fighter Squadron. ``Can you imagine . . . with the war clouds as heavy as they were over Europe, a citizen of the

United States having to sue his government to be accepted to training so he could fly and fight and die for his country?'' The government expected the experiment to fail and end the issue, said Carter. The mistake they made was that they forgot to tell us . . .''

The first class of cadets began in July of 1941 with thirteen men, all of whom had college degrees, some with PhD's and all had pilot's licenses. Based on the aforementioned studies, the training of the Tuskegee Airmen was an experiment established to prove that ``coloreds'' were incapable of operating expensive and complex combat aircraft.

By 1943, the first of contingent of black airmen were sent to North Africa, Sicily and Europe. Their performance far exceeded anyone's expectation. They shot down six German aircraft on their first mission, and were also the first squad to sink a battleship with only machine guns. Overall, nearly 1000 black pilots graduated from Tuskegee, 450 of whom served in combat with the last class finishing in June of 1946,. Sixty-six of the aviators died in combat, while another 33 were shot down and captured as prisoners of war. The Tuskegee Airmen were credited with 261 aircraft destroyed, 148 aircraft damaged, 15,553 combat sorties and 1,578 missions over Italy and North Africa. They destroyed or damaged over 950 units of ground transportation and escorted more than 200 bombing missions. Clearly, the experiment, as it was called, was an unqualified success. Black men could not only fly, they excelled at it, and were equal partners in America's victory.

A number of Tuskegee Airmen have lived in Michigan, including Alexander Jefferson, Washington Ross, Wardell Polk, and Walter Downs, among others. Tuskegee Airmen also trained at Michigan's Selfridge and Oscoda air fields in the early 40's. In the early 1970's, the Airmen established their first chapter in Detroit. Today there are 42 chapters located in major cities of the U.S. The chapters support young people through scholarships, sponsorships to the military academies, and flight training programs. Detroit is also the location of The Tuskegee Airmen National Museum, which is on the grounds of historic Fort Wayne. The late Coleman Young, former Mayor of the City of Detroit was trained as a navigator bombardier for the 477th bombardment group of the Tuskegee Airmen. This group was still in training when WWII ended so they never saw combat. However, the important fact is that all of those receiving flight related training--nearly 1,000--were instrumental in breaking the segregation barrier. They all had a willingness to see combat, and committed themselves to the segregated training with a purpose to defend their country.

The Tuskegee Airmen were awarded three Presidential Unit Citations,150 Distinguished Flying Crosses and Legions of Merit, along with The Red Star of Yugoslavia, 9 Purple Hearts, 14 Bronze Stars and more than 700 Air medals and clusters. It goes without question that the Tuskegee Airmen are deserving of the Congressional Gold Medal. According to existing records, I am proud to say that 155 Tuskegee Airmen originated from my State of Michigan.

In closing, I urge my colleagues in the Senate to swiftly act on this legislation, a most deserving honor and tribute to the Tuskegee Airmen. I also ask unanimous consent that the text of the legislation be printed in the Record.

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

Mr. President, let me begin by saying I intend to vote to confirm Judge Chertoff to be Secretary of the Department of Homeland Security based on what I know of him. What deeply troubles me is that information relevant to his confirmation has been arbitrarily denied to the Senate by the Justice Department.

In the course of preparing for the Homeland Security and Governmental Affairs Committee hearing on Judge Chertoff's nomination, a document came to my attention bearing on Judge Chertoff's responsibilities when he headed the Justice Department's Criminal Division. The document was recently released by the FBI in response to a Freedom of Information Act, or FOIA, request by the American Civil Liberties Union. It is dated May 10, 2004. It indicates that FBI personnel working at the Guantanamo detention facility had major concerns about interrogation techniques used on detainees from Afghanistan by Department of Defense personnel, which techniques ``differed drastically'' from traditional methods employed by FBI personnel, DOD and FBI techniques differed so drastically that FBI agents decided they had to ``step out of the picture'' so as not to participate in DOD-led interrogations.

Department of Defense interrogation techniques have been the focus of a number of investigations into detainee abuse allegations, including abuses graphically depicted in the photographs from Abu Ghraib prison. MG George Fay, who investigated detainee abuses by military intelligence personnel at Abu Ghraib, found that interrogators at that prison were improperly using harsh interrogation techniques that came from Guantanamo, including stress positions, isolation, nudity, and the use of dogs to ``fear up'' detainees.

The report of the panel chaired by former Secretary of Defense James Schlesinger found that these ``more aggressive'' interrogation techniques developed at Guantanamo ``migrated'' to Afghanistan and Iraq and contributed to widespread abuses.

The FBI document about which I am talking today makes clear that concerns about DOD's interrogation techniques in use at Guantanamo, and so strenuously objected to by FBI agents, started at least as early as the fall of 2002, before the abuses occurred at Abu Ghraib and elsewhere.

The document at issue indicates that FBI agents communicated regularly with Justice Department officials, including senior officials in the Criminal Division headed by Mr. Chertoff before he was appointed to the Federal bench. The FBI agents' communications expressed their deep concerns about techniques employed by DOD personnel.

Let me read from the document at issue that we will be referring to this afternoon which is displayed on the chart beside me. It is from an FBI e-mail to T.J. Harrington from an official whose name has been redacted. It reads in part as follows:

I went to GTMO with blank--

That is the first of many redacted items on this document.

I went to GTMO with blank early on. We discussed the

effectiveness of blank with the supervisory special agent.

We, BAU--

Which is the Behavior Analysis Unit--

and ITOS1 the International Terrorism Operations Section 1--

had also met with Generals Dunlevey and Miller explaining our

position, law enforcement techniques versus the Department of

Defense. Both agreed the Bureau has their way of doing

business and the DoD has their marching orders from the Sec

Def.

Although the two techniques differ drastically, both

generals believed that they had a job to accomplish . . . In

my weekly meetings with the DOJ, we often discussed BLANK

techniques and how they were not effective or producing Intel

that was reliable.

Then there is a series of blanks, which appear to be the individuals' names which have been redacted or withheld from release, with the abbreviation ``SES'' after the names that were blotted out, indicating that the individuals were members of the Senior Executive Service. The document then says, and these are the critical words, that all of those SES employees were from the Department of Justice's Criminal Division and that they ``attended meetings with the FBI.'' It goes on to say, ``all agreed blank were going to be an issue in the military commission cases. I know blank brought this to the attention of blank.''

Now, it is those redactions, those names, and that information which has been deleted, including the names of the senior officials in the Criminal Division of the Department of Justice participating in meetings with the FBI agents, which thwart the Senate in its constitutional role of deliberating on Judge Chertoff.

Judge Chertoff was head of the Criminal Division from April of 2001 until June of 2003. It is the division that he headed whose members are referred to here but whose names are blotted out so that we are unable to know who they are and we are unable to talk to those members of Judge Chertoff's Criminal Division.

On February 4, 2005, a little more than a week ago, Senator Lieberman and I wrote to FBI Director Robert Mueller regarding this document. A copy of that letter is displayed next to me. This is what Senator Lieberman and I wrote:

We ask that an unredacted version of this three-page

document be provided to the Office of Senate Security where

we and staff members with appropriate clearance can review

it. Please provide an unredacted copy . . . by no later than

4 p.m. on Friday, February 4, 2005. If you will not provide a

copy of this document, please provide a legal justification

for doing so.

In a letter dated February 7, the Department of Justice, not the FBI to whom we wrote but the Department of Justice, wrote back denying our request. The Justice Department claimed that an unredacted copy would not be provided to us because it contained, and it is referred to in this letter next to me, ``information covered by the Privacy Act, . . . as well as deliberative process material.''

The Justice Department's reasons for denying the request of Senator Lieberman and myself are not just unfounded and unacceptable. They are incredible. They are extreme. The Privacy Act is designed primarily to prevent the U.S. Government from disclosing personal information about private individuals who have not consented to that disclosure. It is not intended to be a means of concealing the names of public officials engaged in Government conduct funded with taxpayers' dollars.

The Department of Justice's invocation of the Privacy Act to deny the Senate relevant information regarding a nomination before the Senate is an abuse of the Privacy Act and a dangerous precedent. Denying Congress documents relevant to our functions, if sustained, would effectively end most congressional oversight because Government employees are named in thousands of documents which Congress relies on in carrying out responsibility.

Senator Lieberman and I have written to Attorney General Gonzalez requesting that he reconsider the decision to withhold this information.

When I asked Judge Chertoff about this document at his nomination hearing on February 2, he could not recall discussions between FBI and Department of Justice Criminal Division officials concerning Department of Defense interrogation techniques at Guantanamo. He stated:

I don't recall having any discussion about techniques that

the Defense Department was using in Guantanamo, other than

simply the question of whether interrogations or questioning

down there was effective or not.

Judge Chertoff could not say who were the Criminal Division officials whose names had been redacted from the document which was up here a moment ago. Nor could he even confirm that the discussions referred to in the document between people from his Criminal Division and the FBI and Defense Department officials occurred during his tenure as head of the Criminal Division.

If Judge Chertoff does not know that these discussions took place or who in his division might have engaged in these discussions or when they took place, does that not end the matter? If he is unable to say that those people whose names are blotted out talked to him or anybody in their supervisory capacity who supervised them, does that not bring this matter to an end? Of course it does not, and it cannot.

By denying the Senate access to the names listed in the document, the Department of Justice has prevented the Senate from finding out that information so we might refresh Judge Chertoff's recollection about the conversations referred to in the document, which involves senior Criminal Division personnel that he was the head of; conversations with the FBI and Department of Defense personnel regarding DOD interrogation techniques at Guantanamo.

Now, if the names of the Criminal Division personnel were known to him, which they are not--they are obviously blotted over--or if they were known to

us, surely we could ask those persons if they discussed these matters with people who are higher up in the Criminal Division, their supervisors, including possibly with the head of the Criminal Division, Judge Chertoff. We clearly have a right to find out their names to ask them the same relevant questions that we could ask them if their names were not redacted.

If we knew the names, in other words, surely it is relevant, it is appropriate for the Senate to ask these members of Judge Chertoff's Criminal Division, did you discuss these matters that you overheard and were participating in with your supervisors at the Criminal Division? Did you ever bring these to the attention of now Judge Chertoff?

If the names were not redacted, if it is appropriate for us to ask the names on that memo those questions, clearly we have a right to find out who they were so we can ask those same relevant questions.

By its contorted reliance on the Privacy Act, the Justice Department is denying the Senate information relevant to our consideration of whether to give our consent to this nominee. Our constitutional mandate is clear. The Justice Department's decision to cover up this information is deeply disturbing. Not only is the Senate being thwarted, the American public is being denied relevant information. If this misuse of the Privacy Act is not resisted, congressional oversight of our governmental activities will be controlled by the executive branch that we are supposed to oversee. We cannot allow the Department of Justice's action to stand unchallenged.

The Congress obtains thousands of documents from the executive branch as part of our oversight responsibility, and we must. We had an investigation in the Permanent Subcommittee on Investigations of the operation of the Comptroller of the Currency. Thousands of documents were obtained with names of Government employees and we reached a conclusion that one of those employees had worked so closely with one of the banks that was being investigated that, in effect, he had abdicated his responsibility as a Government employee to oversee that bank he later took a job with.

The same thing has been true with the Boeing investigation. It is true with hundreds of investigations. We must be able to obtain Government documents, and we do obtain Government documents, all the time in Congress as part of our oversight responsibility. If the names of Government employees who are paid with taxpayer dollars are redacted, are not available to Congress, because allowing their names to be in those documents violates their privacy, this will wipe out the oversight responsibility of the Congress.

Senator Lieberman and I have sought this particular document and we have done so because the document is relevant to this confirmation process. The refusal of the administration to produce this unredacted document thwarts our constitutional responsibility. There seems to be something ingrained in the administration to thwart congressional oversight, particularly on the issue of detainee abuse. The history of this detainee abuse is important as a backdrop to what my point is this afternoon.

A specialist by the name of Joseph Darby courageously came forward in the Defense Department in January of 2004 with allegations and photos of terrible abuses at Abu Ghraib. The administration did not inform Congress of the existence, the nature and the scope of these allegations and photos until April 28, almost 5 months later in 2004.

They did come forward and notify Congress because that is the day the pictures were aired on a major network news program. The Congress only learned of the report of Major General Taguba who investigated the allegations of abuse by military police at Abu Ghraib between January 31 and March 12, 2004, after his report was leaked to the press in early May of 2004. We did not learn of White House Counsel Gonzales's memo of January 25, 2002, advising the President that the protections of the Geneva Conventions were ``obsolete'' and ``quaint,'' to use his words, until that memo was obtained by the press in mid-May 2004.

We did not learn of the August 1, 2002, memo by the Office of Legal Counsel on his novel interpretation of the anti-torture statute, the so-called torture memo, until it was obtained by the press in early June of 2004. That was the memo that defined prohibited torture extremely narrowly; for example, that physical pain would have to be equivalent to organ failure, impairment of bodily functions, or death to count as torture under the anti-torture statute.

We now know of a second Office of Legal Counsel opinion from around the same time as the August 1, 2002, torture memo, which analyzes the legality of specific interrogation techniques. That memo has still not been made available to Congress.

The Armed Services Committee of the Senate made a standing request on May 13, 2004, in a letter from Chairman Warner to Secretary Rumsfeld, for ``all relevant documentation'' regarding the allegations of prisoner abuse and for ``all legal reviews and related documentation concerning approval of interrogation techniques.''

The response to date can only be considered slow and partial.

The Defense Department has engaged in considerable foot-dragging in getting to Congress the findings of its investigations into key aspects of the detainee abuse issue. Although the Department of Defense at one point estimated that the report of General Formica regarding abuse allegations against Special Operations Forces in Iraq would be ready last August, and this report was briefed to the Secretary of Defense over a month ago, only late last Friday afternoon did the Armed Services Committee receive this report. We have yet to receive the report of Navy Inspector General Vice Admiral Church in the Department of Defense interrogation techniques in Guantanamo, Afghanistan, Iraq, and elsewhere. The Defense Department initially estimated that this report would be ready 6 months ago. The Department's slow-rolling has delayed additional public hearings on the detainee abuse issue.

It is astonishing to me that only after becoming aware of the allegations of detainee abuse at Guantanamo contained in the documents produced by the FBI under this ACLU FOIA request did the Department of Defense direct that an investigation into those allegations be initiated.

The FBI documents that have been released under the FOIA request, although redacted, nonetheless describe the FBI's battles during 2002 and 2003 with Department of Defense commanders at Guantanamo regarding the use by the Department of Defense of ``aggressive'' and ``coercive'' interrogation techniques. In response to an FBI internal inquiry, allegations of detainee mistreatment at Guantanamo surfaced during the summer of 2004. This led the Bureau's Inspection Division in July of 2004 to contact all employees who served at Guantanamo after September 11, 2001, and request any information regarding detainee mistreatment at that facility.

FBI employees' responses to the FBI Inspection Division's request relating to Guantanamo indicate that FBI personnel repeatedly raised concerns regarding Department of Defense interrogation techniques, including with Department of Defense commanders at Guantanamo from late 2002 into mid-2003. One e-mail, dated May 10, 2004, described how FBI officials raised their concerns with General Dunlavey, who was in charge of interrogation operations until October 2002, and with General Miller, who was commander of the facility from October 2002 until March of 2004. In these discussions the FBI officials were told:

DOD has their marching orders from the Sec Def [Secretary

of Defense].

The agent adds:

Although the two [agencies'] techniques differed

drastically, both Generals believed they had a job to

accomplish.

Another e-mail, dated December 9, 2002, states that it has two attachments: a description of an interrogation matter raised with the commanding general at Guantanamo, presumably General Miller, and second:

. . . an outline of the coercive techniques in the military's

interviewing tool kit.

The FBI agent concludes by saying that he will bring back to headquarters a copy of the military's interview plan for an unnamed detainee, saying, ``You won't believe it!''

The responses to the FBI's internal inquiry show that FBI officials had many objections to DOD interrogation techniques. In his confirmation hearing, Judge Chertoff suggested that FBI and DOD differences regarding interrogation techniques at Guantanamo might have related to whether Miranda warnings were to be provided, but that was not the case. FBI agents had official guidance not to provide to detainees at Guantanamo Miranda warnings. The differences between the two agencies' methods were different than that, and they went much deeper.

Other FBI documents produced under the FOIA request show that agents complained about the effectiveness of DOD's methods for producing reliable intelligence compared to the FBI's interviewing techniques. One agent reported telling DOD officials that the intelligence the Department of Defense was producing was ``nothing more than what FBI got using simple investigative techniques.'' Another FBI official complained that when an agent would begin to develop a rapport with the detainee, ``the military would step in and the detainee would stop being cooperative.''

Another major FBI concern was that Department of Defense interrogators were impersonating FBI agents. In one e-mail dated December 5, 2003, an FBI agent complained that DOD interrogators had impersonated FBI agents in attempting to produce intelligence. The FBI agents expressed a concern that should this detainee's story ever be made public, the FBI would be left ``holding the bag'' because it would appear that ``these torture techniques were done [by] `FBI' interrogators.''

A couple of the FBI e-mails challenged Defense Department officials' public statements in 2004 regarding Department of Defense methods of interrogation used at Guantanamo. For example, one e-mail dated May 13, 2004, reacts to statements of MG Geoffrey Miller, who at that time had moved from commanding the Guantanamo facility to Iraq, where he was in charge of all detention facilities, including Abu Ghraib. This is what that e-mail said:

Yesterday . . . we were surprised to read an article in

Stars and Stripes in which General Miller is quoted as saying

that he believes in the rapport-building approach. This is

not what he was saying at Gitmo when I was there--redacted--

and I did cartwheels. The battles fought in Gitmo while

General Miller was there are on the record.

Constant battles between the FBI, part of the Department of Justice, and the Department of Defense officials at GTMO.

The FBI agents' responses to the Inspection Division's request regarding Guantanamo refer to other documents reflecting the FBI agents' serious concerns over Department of Defense interrogation techniques. Among the documents cited are a lengthy ``electronic communication'' drafted by the FBI's Behavioral Analysis Unit. That communication is dated May 30, 2003. It contrasts the Bureau's interrogation methodology with that of the Department of Defense.

Another document is an electronic communication by the FBI's Military Liaison and Detention Unit in November of 2003:

. . . as to FBI's disapproval--redacted--regardless of

whether they [those are the Department of Defense

interrogation techniques] were approved by the Deputy

Secretary of Defense.

Another document is a ``must read'' electronic communication from the FBI's Miami division.

A December 2003 e-mail refers to a request by the Military Liaison and Detention Unit that:

. . . information be documented to protect the FBI [because

of their] longstanding and documented position against use of

some of DOD's interrogation practices. . . .

Either these documents remain unreleased to the public or, if released, their content has been almost entirely redacted.

Reflecting the position of the documents I referred to is a May 19, 2004, memo to all divisions from FBI General Counsel Valerie Caproni. This memo states that:

Existing FBI policy . . . has consistently provided that

FBI personnel may not obtain statements during interrogations

by the use of force, threats, physical abuse, threats of such

abuse or severe physical conditions,

and that:

no interrogation of detainees, regardless of status, shall be

conducted using methods which could be interpreted as

inherently coercive, such as physical abuse or the threat of

such abuse to the person being interrogated or to any third

party, or imposing severe physical conditions.

This memo from the FBI General Counsel continues as follows: that FBI personnel who participate in interrogations with non-FBI personnel shall comply with FBI policy at all times, and specifically:

FBI personnel shall not participate in any treatment or use

any interrogation technique that is in violation of these

guidelines regardless of whether the co-interrogator is in

compliance with his or her own guidelines.

Accordingly, the guidance to FBI personnel was to remove themselves from the situation if the interrogation is being conducted in a manner not compliant with FBI policy.

In response to the FBI Inspection Division's request, several FBI agents reported observing ``aggressive treatment'' of detainees at Guantanamo. One agent reports witnessing on a couple of occasions detainees ``chained hand and foot in a fetal position on the floor, with no chair, food, or water.''

This FBI agent describes how oftentimes these detainees had urinated or defecated on themselves, having been left in this position for 18 or 24 hours or more. One detainee subjected to these techniques had apparently been ``literally pulling his own hair out throughout the night.'' The agent speculated that these techniques were being used by ``the military, government contract employees'' and a third group whose identity has been redacted.

The FBI documents indicate that Bureau officials intended to notify the Defense Department regarding the FBI Inspection Division's findings regarding Guantanamo abuse allegations. A summary of that internal inquiry states that 26 of the agents who responded to the Inspection Division's request said they had observed some form of detainee mistreatment by non-FBI personnel.

After reviewing these statements, FBI General Counsel Valerie Caproni deemed 17 of these incidents to involve ``appropriate DOD-approved interrogation techniques.'' The remaining nine were determined to require followup interviews. The summary states that the FBI Inspection Division was to prepare a report based on those followup interviews, to be forwarded to General Counsel Caproni, who would, in turn, notify the Defense Department.

It is not clear whether this report was ever prepared or provided to the Defense Department. If it does exist, the Defense Department has not provided it to the Senate Armed Services Committee.

In addition, other FBI documents released under the FOIA request include a partially redacted letter dated July 14, 2004, from Thomas Harrington, who served as the head of the FBI team at Guantanamo, to MG Donald Ryder, who is commanding general of the Army Criminal Investigation Command, detailing highly aggressive interrogation techniques at Guantanamo. The incidents witnessed by FBI agents as early as the fall of 2002 include what appeared to be a female interrogator squeezing a male detainee's genitals and bending back his thumbs and the use of a dog to intimidate a detainee. Details of a third incident were redacted from the letter, but according to the press, the letter describes a prisoner gagged with duct tape covering much of his head to prevent him from reciting from the Koran. Another incident involved a detainee suffering from extreme mental trauma after being kept in an isolation cell flooded with lights for 3 months.

The Harrington letter indicates that these incidents and other FBI concerns were discussed with two officials in the Department of Defense's General Counsel's Office in mid-2003. Despite the Armed Services Committee's standing request for ``all relevant documentation relating to the prisoner abuse issue,'' the committee was not told by the Defense Department of receiving the Harrington letter last July, nor have we been informed regarding what actions the Department took in response to these allegations.

What the documents produced under the FOIA request indicate is that the administration's policies on the meaning of torture and the legality of specific interrogation techniques had opened the door to abuses. The document that Senator Lieberman and I

have sought in the course of Judge Chertoff's nomination proceedings shows clearly that the FBI was raising its concerns about DOD interrogation techniques as early as the fall of 2002.

That would be a few months after the Justice Department's Office of Legal Counsel issued its August 1, 2002, memo interpreting the Federal antitorture statutes.

The December 1, 2002, memo by Secretary Rumsfeld put the stamp of approval on interrogation techniques that went beyond those that were in existing Army doctrine, and these were for use in Guantanamo. These included stress positions, isolation, deprivation of light, auditory stimuli, 20-hour interrogation, nudity, and exploiting detainees' phobias such as the fear of dogs.

One month later, Secretary Rumsfeld rescinded his approval of those techniques. He ultimately approved, in April of 2003, a narrower set of interrogation techniques. Regardless of which memo was in effect at the time of the FBI memo, Congress needs to find out whether the alleged mistreatment reflected the more aggressive DOD-approved interrogation techniques temporarily authorized for Guantanamo in December of 2002, or went beyond even those.

The concerns that the FBI expressed to the Defense Department were classified. But reports of abusive practices in Guantanamo were leaked to the press. The New York Times article from November of 2004 reported on a confidential International Committee of the Red Cross report which found that the highly refined system for the detention and interrogation of detainees at Guantanamo was ``tantamount to torture.'' The article also states that the report, based on an ICRC visit to the facility the previous June, notes incidents of detainees being subjected to loud, persistent music, prolonged cold, and ``some beatings.''

The New York Times article dated January 1, 2005, cited anonymous interviews with military officials who participated in interrogations at Guantanamo, confirming the use of the same kinds of aggressive interrogation techniques which the FBI agents reported. These techniques reportedly included shackling inmates for hours, leaving them to soil themselves, or subjecting them to loud music. Again, as the reports of General Fay and the Schlesinger panel concluded, it was these aggressive techniques in use at Guantanamo which migrated, in their words, to Afghanistan and Iraq that contributed to the occurrence of detainee abuse there.

It was not just the FBI that objected to those techniques. We recently learned of a June 2004 memo written by Defense Intelligence Agency Director VADM Lowell Jacoby to Under Secretary of Defense for Intelligence Stephen Cambone advising him that DIA interrogators had been threatened by U.S. special operations forces, instructed not to leave the compound, and ordered not to talk to anyone in the United States when the DIA personnel observed and sought to document and report that they had observed those personnel physically abusing detainees during an interrogation in Iraq.

The Jacoby memorandum is another example of how this Congress has not been kept apprised and is only finding out after the fact about the depth and breadth of the allegations of detainee abuse.

That is totally unacceptable and should energize the Congress. But what should doubly energize all of us is when the Department of Justice denies us information relevant to our constitutional responsibilities, particularly after there has been a specific request for that information.

My purpose in coming to the floor this afternoon is to alert the Senate to this direct challenge to our ability not only to perform our confirmation responsibilities but our ability to perform our oversight function so essential to the system of checks and balances that serve as a brake on the powers of the executive branch regardless of who is in control of the executive branch.

It is not the first time the administration has asserted broad new powers to withhold information from Congress. A broad claim of executive power was made in the letter to Senator Warner and me from the deputy general counsel of the Department of Defense on June 15, 2004. The letter referred to ``the President's constitutional authority to withhold information the disclosure of which could impair foreign relations, [or] national security, [or] the deliberative process of the Executive.''

Presidents traditionally claim the constitutional authority to assert executive privilege when personally determining that it is necessary to do so to protect their ability to receive candid advice from senior officials in the executive branch.

But that is not the issue here.

The privilege asserted by that Department of Defense letter that Senator Warner and I received is not limited to cases involving Presidential deliberations and advice given to the President himself. That letter asserts the power to make unilateral decisions to withhold documents relating to foreign relations, national security, or deliberations within all parts of the executive branch.

That is a breathtaking claim which must be resisted--resisted on a bipartisan basis--by any Congress serious about the oath we have taken to defend the Constitution.

That Defense Department letter is a bald assertion of a privilege whereby executive branch officials can withhold anything from Congress that those officials, in their sole discretion, determine to be sensitive, embarrassing, or which make such officials uncomfortable. Congress insisted on access to documents of this kind in the past because they are essential to the conduct of our oversight functions.

The document withheld from us in the confirmation matter before us goes beyond any previous assertion by any administration, as far as I can determine. There has been no claim of executive privilege here. The document itself has no bearing on any advice given to the President by anybody.

All of us should object to the withholding of the complete May 4, 2004, FBI memo which refers to the discussions at which members of the Justice Department's Criminal Division were present involving abuses at Guantanamo, when Judge Chertoff was head of the Criminal Division.

The Department of Justice's use of the Privacy Act takes the efforts to thwart congressional oversight to a new extreme. It is the latest manifestation of the executive branch's determination to seize any crumb of justification to prevent Congress access to executive branch documents relevant to carrying out our constitutional responsibilities of confirmation and oversight.

Congress should not sit idly by while the executive branch asserts sweeping authority to frustrate Congress's exercise of our constitutional responsibility. Broad executive branch assertions of privileged information and distortion of the Privacy Act threaten to reduce the Senate role in advising and consenting on senior level appointments to an exercise of rubberstamping the administration's nominees. The Senate should assert its constitutional power to get information relevant to the confirmation process and to our oversight responsibilities.

We have not carried out our constitutional oversight responsibilities, as far as I am concerned, in the area of detainee abuse as evidenced by the fresh revelations of abuse allegations in Iraq, Afghanistan, Guantanamo, and elsewhere.

Those allegations did not come from our oversight activity. That information--those allegations--came from FOIA requests and media initiatives.

The administration has not lived up to its promise to keep Congress informed on the issue of prisoner abuse. The administration has effectively stifled even modest congressional efforts at oversight.

As I said at the beginning, based on the information that is available, I will vote to confirm Judge Chertoff. I believe most or all Members will, but all Members should stand up to the administration's denial of a document which is relevant to his confirmation. We should act in unison to affirm and carry out the Senate's traditional oversight activities, regardless of which party controls this body or the White House.

I yield the floor, reserve the balance of my time, and I note 20 minutes of that time I would like to allocate to Senator Dodd.

Mr. President, first, let me comment on the statement of my dear friend, Senator Collins, that somehow or other seeking information is questioning anybody's integrity. We are seeking information because it is relevant to a confirmation process.

Senator Lieberman and I wrote a letter seeking information which relates to the confirmation process in a very important way. We are not going to get that information because the Department of Justice has decided they will not unredact the names of Government employees who were present at discussions relative to the procedures used, the techniques used at Guantanamo during the period that Judge Chertoff was head of the Criminal Division and where those Government employees were members of his Criminal Division. That is not a challenge to anybody's integrity. That is not demeaning. That is simply carrying out a responsibility that this Senate has to be fully informed as to the facts that relate to a nominee. It is that simple. It is that important.

For the Department of Justice to say the names of Government employees somehow or other should remain secret when those employees, paid by the taxpayer, were present during conversations at which the FBI strongly objected to the techniques and tactics which were being used by the Department of Defense to obtain information is simply something that we as a Senate cannot accept.

We cannot be denied relevant information. We cannot and should not be denied relevant information.

There is only one question here, it seems to me; that is, the request of Senator Lieberman and myself for relevant information. If it is relevant information, every one of us should support the request. If it is not relevant information, it is a totally different issue. But is it relevant?

If members of Judge Chertoff's staff, whose names have been covered up by the Department of Justice--if we are denied those names, is it relevant that members of the Department of Justice Criminal Division who were present during conversations apparently after conversations-- we at least know of one--where there were heated disputes between the FBI and the Department of Defense over the tactics which were used at Guantanamo Bay--Judge Chertoff doesn't remember those discussions. He said that twice in his answers. I don't disagree with him at all. If he doesn't remember, I take him at his word--he doesn't remember.

That is not the question. The question is, Are there members of his division who were present so that we can ask them whether they informed their supervisors, and whether, just possibly, Judge Chertoff, then head of the Criminal Division, was informed. If he doesn't remember being informed, I don't doubt that. I am not doubting that at all.

But I guess the most direct question I can ask is this: If those names were not redacted, if instead we had those four names there, is there any doubt in any Senator's mind that we could ask those people whose names we know whether they informed their supervisors of this heated debate between the FBI and the Department of Defense personnel?

The FBI in memo after memo after memo was strongly objecting to the practices of military members of the Department of Defense, some of whom were pretending they were FBI members. This was not one casual conversation. There was a major confrontation going on between the FBI, strongly, heatedly, telling the Department of Defense: We can't participate in what you are doing. We object to what you are doing. Those techniques are wrong. We cannot participate. We are going to withdraw from these techniques.

Then, if at least in one of these conversations--you have four SESs, executives in Judge Chertoff's division, which he headed, who were present at the discussions--he says: I don't remember. Fine. I take him at his word.

But--at least if we do not have the responsibility--we surely have the right, if we know those names, to ask those folks: Look. You were present at these conversations. You were representing the Criminal Division of the Department of Justice. The FBI was strongly objecting to what was going on.

These were abusive techniques that were being used which have created so much problem for this country and for our military. You were present. Our question to you is this, Did you inform any of your supervisors of what you heard? And, by the way, perhaps for a different hearing, if not, why not? But if they say no, that means obviously there is nothing with which to refresh Judge Chertoff's memory.

The good Senator from Maine asked a number of questions to which the answers were clearly no. Did he write these documents? He did not. Did he receive a copy of this document? He did not. But the question that yes is the answer to is, if the names of those employees of the Criminal Division were written out in this document and not redacted, would it be appropriate for a Member of the Senate or our staff to ask those employees, Did you inform your supervisors of these debates going on, which were raging debates between the FBI, the Department of Justice on one side and the Department of Defense on another? The answer to that question, I think, is yes.

I think, without any doubt, if those names were there and not covered over by the Department of Justice, that it would be perfectly appropriate for any of us to ask John Doe: Did you report those discussions in which you were participating? Were you both, apparently, putting forward objections to the techniques being used and heard the FBI objecting to those techniques? Did you let your supervisors know?

If that is a legitimate question to ask those unnamed employees, if we had their names, if that is a legitimate question to ask them, is it not legitimate to find the names of those employees so we can ask a legitimate question? I think the answer is yes.

I don't disagree at all with the Senator from Maine when she says that Judge Chertoff didn't write it--apparently didn't receive it and did not name those questions at all--and answered yes. But there are a couple of questions which also have to be answered yes. If we knew the names of those employees who were present at those discussions, could we ask them whether they notified their supervisors? I think the answer is yes. That is an appropriate question.

Second, if so, is it an appropriate question to ask, Did you ever talk to Judge Chertoff about it?

That doesn't challenge his integrity. He says on a number of occasions that he doesn't recall having any discussion about techniques. I take him at his word.

But if they recall talking to their supervisors, then, it seems to me, we are in an area which is perfectly appropriate to a confirmation process.

There is no intent to challenge his integrity. In fact, I am going to vote for Judge Chertoff based on what I know. As I explained before, I am going to vote for Judge Chertoff based on the information before us.

But I think as a body we should reject unanimously--all of us--the excuse given by the Department of Justice. If the Privacy Act is not allowed in naming Federal employees who were parties to discussions, we have to reject that argument, or else we can forget congressional oversight.

We get tens of thousands of documents a year that have names of Federal employees we need and to whom we need to talk. They cannot be protected by the Privacy Act. The Privacy Act is intended to protect the privacy of citizens of this country. It is not to protect from congressional oversight Federal employees engaged in their duties. That is a misuse of a statute by the Department of Justice that has found all kinds of reasons over the years to deny this branch of Government access to documents.

The issue here is a broader issue. This is an example of a problem that we have in terms of getting documents. I laid this out in an earlier speech this afternoon in terms of the difficulty of getting documentation from this administration and other administrations--at the moment, this administration--that is relevant to our oversight function and that is relevant to our confirmation process.

I think we have done a very inadequate job of oversight relevant to

prisoner abuse. The reasons given by myself were set forth earlier this afternoon. They are unacceptable.

We have a responsibility to our troops. Our troops are in danger because of what we did to other people. It endangers the men and women in our military. We cannot mock or demean the Geneva Convention. We cannot engage in practices which are not allowed by the Geneva Convention. When we do, we endanger not just our troops, as important as that is, but we also endanger the security of this Nation.

That is the backdrop here. This is not an oversight hearing we are talking about. This is a confirmation proceeding of one man whose reputation is superb, whose integrity is unquestioned by me. And I do not know of anyone who questions his integrity. The question is, As part of the confirmation proceeding, do we have a right--maybe not a responsibility, although I could argue that question, but clearly the right--to ask people who were in his division who were present at these discussions whether they passed along this intense conflict between the Department of Justice and the FBI on the one hand and the Department of Defense on the other hand?

The document in question is, indeed, as the Senator from Maine said, a 2004 document. But the reference is to events that occurred in 2002 and 2003. The way we know that is because the document itself makes reference to the two generals who were present in Guantanamo Bay in 2002 and 2003 and were responsible for running the detention facility. We also know it comes after the events in question because the purpose of this document is to go back into the record and to look for previous documentation that related to this subject.

Here is what triggered this document. It was an email that asked the following question: Has there been any written guidance given to FBI agents in either GTMO or Iraq about when they should stand clear because of the interrogation techniques being used by DOD or DHS?

That is what set in motion the review of prior emails that exist, prior activities that existed. So this document was clearly written when that became a major issue in 2004. But it was precipitated by the request to go back and see whether there has been any written guidance to FBI agents.

Again I expect that most or all Members will vote for Judge Chertoff. I will, based on what I know.

The disagreement I have is with the Department of Justice as to what we are not allowed to see, although it is relevant to this confirmation process.

Senator Lieberman and I wrote a letter. I ask unanimous consent this be printed in the Record, as well as the response to Senator Lieberman and my letter, along with a three-page email, May 10, 2004.

I note in closing the part of this denial of the Department of Justice that is unsustainable and should be rejected unanimously by Congress is the statement that the material cannot be released because it contains information covered by the Privacy Act as well as deliberative process material. The Privacy Act reliance is totally out of the ballpark. It is so far afield from any argument the executive branch has used that we must reject that. If we do not, if we accept the use of the Privacy Act to deny this Congress documents that relate to activities of Government employees carried out in the performance of their duties, we will have struck a major blow to the oversight responsibilities of this Congress.

As to the second reason given, deliberative process material, there are no conversations whatever that I can see that are with the President of the United States. That reference to deliberative process material also should be unacceptable to all Members of Congress regardless of what side of the aisle we happen to be sitting on.

I thank my good friend for what I think were flattering references, but in any event I thank her because she is an absolutely superb Member of this body and a great chairman of our committee. It has been my pleasure to serve with her for a long time.

On this one, there are two questions which I want to repeat. I think the answer to the questions has to be yes. The way I phrase the first question is this: If those members of the Criminal Division's names were on that document, would it be appropriate to ask them if they had any conversations with their supervisors? Is that an appropriate question? The answer is, clearly, yes.

This does not challenge anybody's integrity. As a matter of fact, Judge Chertoff said in a number of places, ``I don't recall having any discussion.'' At another point he said he did have a discussion. The question is whether his recollection is different from someone else's. That does not challenge his honesty or integrity. That simply says that people's recollections are different, and when that is true, sometimes people's recollections are refreshed.

It is a straightforward, legitimate question to ask people who worked in his division, whether they notified their supervisor of these heated conversations, these discussions that they participated in and overheard between the Department of Justice and the Department of Defense. If the answer to that question is yes, which I think it must be, that it would be legitimate to ask those people if, when they heard that debate, that heated discussion over tactics at Guantanamo, did they inform their supervisors that the FBI strongly objects to the DOD techniques and is not going to participate in any of those techniques, would it be appropriate to ask them whether they notified their supervisors if we knew their names?

The answer is yes, I think. If I am right, it is appropriate to ask those four people that question, then it is appropriate to have the names of those four people. That is as simple as I think I can make the argument.

This is not, again, a challenge to anyone's honesty or integrity. It is an effort to be thorough in a confirmation process about the events which have torn this country away from some of our strongest allies, the activities at Guantanamo which drifted over to Iraq and to Abu Ghraib. According to the generals who investigated this matter, these horrors, these abuses started in Guantanamo Bay.

Members of the Criminal Division, while Judge Chertoff was head of that Criminal Division, heard of the debate relative to these activities and these actions. They strongly objected to those actions on the part of the DOD. I spent 20 or 30 minutes or more earlier today going into the whole background of Guantanamo. This is not some minor event that occurred somewhere in dusty history or in a history book. These are recent events at Guantanamo which engendered heated discussions, debates between the FBI, on the one hand, which said we cannot participate in those techniques, and the Department of Defense, on the other hand.

Now, when the administration, the Department of Justice, denies the Congress an opportunity to ask legitimate questions, which we have the right to ask--and if my dear friend from Maine does not think we have the responsibility to ask them, that is a judgment which I do not challenge; if she does not feel the need to ask these questions of those employees, I do not challenge her decision on that whatsoever-- but given the entire setting of Guantanamo, and what it led to, and the heated discussions that occurred there, with the FBI challenging the DOD, and with Judge Chertoff's division employee members being present during those discussions, some of us feel a responsibility to ask those employees whether they passed along the information they were privy to.

So this is a bigger issue. It is a much bigger issue. As I say, I am going to be voting for Judge Chertoff based on the information I have. But we should not be denied this other information.

Again, I thank my friend from Maine. I yield the floor.

Mr. President, I will vote against the Class Action Fairness Act of 2005 because, although this bill is an improvement over previous versions, it still has significant deficiencies that would have been corrected by a number of common sense amendments that were not adopted.

For example, forty seven attorneys general, including the attorney general of Michigan, expressed concern that this legislation could limit their powers to investigate and bring actions in their State courts against defendants who have caused harm to their citizens. The attorneys general supported an amendment offered by Senator Pryor that would have exempted all actions brought by State Attorneys General from the provisions of S. 5 stating, ``It is important to all of our constituents, but especially to the poor, elderly and disabled, that the provisions of the act not be misconstrued and that we maintain the enforcement authority needed to protect them from illegal practices.'' The Pryor amendment was defeated.

Federal courts generally do not certify class actions if laws of many states are involved. However, this legislation would force nationwide class actions into Federal courts where they would likely be dismissed for involving too many state laws. This would deprive the plaintiffs from the opportunity to have their case heard. An amendment sponsored by Senator Feinstein, a cosponsor of this legislation, and Senator Bingaman would have fixed this problem by prohibiting the district court from denying class certification in whole or in part on the ground that the law of more than one State will be applied. However, that amendment failed.

Senator Feingold offered an amendment that would have set a time limit for a district court to assume jurisdiction or rule on a remand motion to State court. The amendment, which failed, would have provided protection for plaintiffs against attempts to remove cases to Federal court merely to delay the outcome.

We do need class action reform, however this bill fails to adequately protect the rights of our citizens and therefore I cannot support it.

Mr. President, last month the Brady Campaign to Prevent Gun Violence, in partnership with the Million Mom March and a number of State gun safety groups, released its 8th Annual Report Card on State Gun Laws Protecting Children. I applaud the efforts of these organizations to keep the pressure on State and local legislators to enact sensible gun safety legislation, and I encourage my colleagues to review this report.

The Brady Campaign report assigns individual States a grade of A through F on seven types of laws that protect children from gun violence. ``Extra credit'' and ``demerits'' were also assigned for other State gun safety laws.

The Brady Campaign includes in its analysis such questions as: Is it illegal for a child to possess a gun without supervision? Is it illegal to sell a gun to a child? Are gun owners held responsible for leaving loaded guns easily accessible to children? Are guns required to have child-safety locks, loaded-chamber indicators and other childproof designs? Do cities and counties have authority to enact local gun safety laws? Are background checks required at gun shows? And, is it legal to carry concealed handguns in public?

Children around the country continue to be at great risk from gun violence. This year, the Brady Campaign awarded only six States an A rating in their report. Unfortunately, 31 States received grades of D or F. Only one State improved its grade from last year, while two others took actions that will make communities less safe from the threat of gun violence. However, I was encouraged that the number of ``extra credit Sensible Safety Stars'' for protecting children from gun violence more than doubled to 21, and that the number of ``Time-Out Chair demerits'' assigned for weakening State gun laws was cut from ten to six.

While some States have taken positive steps on the issue of gun safety in the last year, more than half are still receiving failing grades from the Brady Campaign. By passing legislation that reduces child firearm deaths, Congress can help to improve the grades of these States. I urge my colleagues to take up and pass common sense gun safety legislation that will close the gun show loophole, reauthorize the 1994 assault weapons ban, and improve child gun access prevention laws.

Mr. President, I thank my friend from Utah.

Mr. President, I will vote against the nomination of Alberto Gonzales today because of the central role he played in establishing the legal framework that set the stage for the torture and mistreatment of persons in U.S. custody. That framework ignored prohibitions in our law and our international obligations. Of immense significance, this legal framework endangered American troops by making them more vulnerable to like treatment.

The shocking photographs of prisoner abuse at Abu Ghraib prison-- images of a hooded man connected to electric wires, prisoners on dog leashes, naked men in so-called stress positions, and beaten, humiliated, or murdered prisoners--are now linked with American behavior. Prisoner abuse in Iraq, Afghanistan, and elsewhere has deepened the anger and resentment that some feel toward our country and has given a propaganda club to our enemies.

Longstanding legal prohibitions against torture and inhumane treatment are pivotal to the protection of American troops engaged in combat outside the United States, because upholding our commitments to international prohibitions against torture and inhumane treatment gives us the moral and legal standing to demand that others refrain from torturing or mistreating American service men and women in their custody and to enforce those demands.

Our top military lawyers, including the Legal Adviser to the Chairman of the Joint Chiefs of Staff and the Army's Judge Advocate General, expressed reservations and concerns at various times during the development of the administration's legal policies

regarding the handling of detainees. Military lawyers warned against deviating from the standards of the Geneva Conventions. Military lawyers also reportedly argued against tough interrogation techniques advocated by civilian attorneys saying such tactics would violate established military practice and, if revealed, would provoke public condemnation both at home and abroad. In the end, Judge Gonzales sided with the civilian attorneys in opposing the recommendations of our Senior military lawyers.

Also, a group of 12 retired senior military officers, including former Chairman of the Joint Chiefs of Staff, retired Army General John Shalikashvili, took the highly-unusual step of writing the Senate Judiciary Committee a letter critical of Judge Gonzales. They expressed deep concern in particular over his role ``in shaping U.S. detention and interrogation operations in Afghanistan, Iraq, Guantanamo Bay, and elsewhere.'' Those retired military officers stated, ``Today, it is clear that these operations have fostered greater animosity toward the United States, undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world.'' They also stated that Judge Gonzales's positions were ``on the wrong side of history.''

Judge Gonzales's personal history is inspiring. However, it is not enough to qualify someone to hold the office of Attorney General of the United States. The Attorney General is our chief law enforcement officer, the leader of the Department of Justice, and the first arbiter of our laws. We rely on the Attorney General to help maintain the rule of law in this country.

The rule of law seriously broke down in our treatment of prisoners. The Defense Department's own investigations show that abuses of detainees were not restricted to the acts of a few lower-ranking Reservists working the night shift at Abu Ghraib prison. They were widespread. The panel chaired by former Secretary of Defense James Schlesinger which examined the causes of these abuses found in their August 2004 report that ``There is both institutional and personal responsibility at higher levels.''

At two critical decision points, Judge Gonzales was at the center of the administration's development of an overly aggressive legal framework for the interrogation of detainees. Their policies broke with long-standing legal doctrine regarding the treatment of detainees and exceeded the limits of the law regarding permissible interrogation techniques. In doing so, Judge Gonzales contributed to creating an environment in which the systematic and abusive behavior toward detainees in U.S. custody was either permitted or was perceived to be permitted.

The first critical point at which Judge Gonzales played a role was in formulating the Administration's policy regarding the status of al- Qaida and Taliban combatants under the Geneva Conventions on the Treatment of Prisoners of War.

Judge Gonzales's view of the Geneva Conventions was revealed in his January 25, 2002, draft memorandum to the President. In that memorandum, Judge Gonzales advised the President against agreeing to Secretary of State Powell's request that the President reconsider his determination that the Geneva Convention on the Treatment of Prisoners of War does not apply to either al-Qaida or the Taliban. The State Department's position at the time, according to the Schlesinger panel report, was that the Geneva Conventions' legal regime was ``sufficiently robust'' for effectively waging the Global War on Terrorism. The Schlesinger panel also stated, ``The Legal Adviser to the Chairman, Joint Chiefs of Staff and many service lawyers agreed with'' the State Department.

Judge Gonzales, on the other hand, argued that the situation America faced after September 11th rendered ``obsolete Geneva's strict limitations on questioning of enemy prisoners . . .'' and that other provisions of the Convention were rendered ``quaint.''

Judge Gonzales's January 25, 2002, memo could have simply advised that the protections of the Geneva Conventions do not apply to al-Qaida and Taliban fighters, if that were his conclusion. He went beyond that. Instead he denigrated the Geneva Conventions where they do apply.

To say that the Geneva Conventions are obsolete and quaint is wrong and dangerously so. Judge Gonzales tried to evade the impact of his own memo when he told the Senate Judiciary Committee at his confirmation hearing, ``Contrary to reports, I consider the Geneva Conventions neither obsolete nor quaint.'' But these were not ``reports.'' These were Judge Gonzales's own words in his own memo. The tone set by those words and the approach of that memo helped put in place an environment which spawned prisoner abuse. It was a tone that was heard around the world.

Consistent with Judge Gonzales's January 2002 memo, the President determined on February 7, 2002, that the Geneva Convention on the Treatment of Prisoners of War does not apply to the conflict with al- Qaida, and that because Taliban combatants were ``unlawful combatants'' they were not entitled to POW status under the Convention and would not be protected by the Geneva Conventions. The President determined instead that ``to the extent appropriate and consistent with military necessity,'' detainees would be treated ``in a manner consistent with the principles of Geneva.''

The President's February 7, 2002, determination created a legal vacuum--a never-never land for detainees in our custody. His determination and implementing procedures did not identify which principles of the Geneva Conventions would continued to be followed. Furthermore, the President's decision that the principles of Geneva would be followed was qualified by the words ``to the extent appropriate and consistent with military necessity,'' a qualification so broad and vague as to render the pledge to follow the principles of Geneva nearly meaningless. Major General George Fay, who investigated detainee abuses by military intelligence personnel at Abu Ghraib prison, found in his August 2004 report that, ``Specific regulatory or procedural guidance concerning either `humane' treatment or `abuse' was not available in the context of [the Global War on Terrorism] and the recently promulgated national policies.'' The vacuum General Fay referred to was created at the top. Judge Gonzales has a major role in that creation. He was present at the creation.

Judge Gonzales has adamantly denied any relationship between his advice to the President, and the Presidential decision which followed, and the horrendous abuses at Abu Ghraib prison. But the Defense Department's own investigations found a connection to the abuses in Iraq.

The Schlesinger panel found that the Command Headquarters in Iraq, Combined Joint Task Force-7, used ``reasoning from the President's Memorandum of February 7, 2002'' in approving the use of additional, ``tougher'' interrogation techniques beyond those approved under existing Army doctrine. Major General Fay's August 2004 report said that ``National policy and DOD directives were not completely consistent with Army doctrine'' on detainee treatment and interrogation, ``resulting in CJTF-7 interrogation . . . policies and practices that lacked basis in Army interrogation doctrine.'' He added that ``as a result,'' interrogators at Abu Ghraib used non-standard interrogation techniques that ``conflicted with other DOD and Army regulatory, doctrinal and procedural guidance.''

Clearly, there was a change in signals from the top about the treatment and interrogation of captured adversaries. This, combined with the failure of ``national policies'' to provide specific guidance on ``humane'' treatment, helped produce a more lawless environment which contributed to the mistreatment of enemy prisoners at Abu Ghraib and elsewhere.

The second point at which Judge Gonzales played a central role was the administration's effort to push the limits regarding permissible interrogation techniques for use against enemy prisoners. It was Judge Gonzales who requested the flawed legal memorandum by the Justice Department's Office of Legal Counsel, or OLC, interpreting the scope of the Federal anti-torture statute, 18 U.S.C. 2430-2430A. Congress had enacted this criminal statute in 1994 to implement U.S. obligations as a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The anti-torture statute prohibits any person from committing or attempting to

commit torture, which is defined in the statute as ``an act . . . under the color of law specifically intended to inflict severe physical or mental pain or suffering . . . upon another person within his custody or physical control.''

But the OLC memorandum provided in response to Judge Gonzales's request, the so-called ``Torture Memorandum'' of August 1, 2002, significantly weakened the prohibition in the statute by asserting in effect that ``Physical pain amounting to torture,'' doesn't count as torture unless it is ``equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death.'' Mental pain or suffering amounting to torture doesn't count unless it causes ``significant psychological harm of significant duration,'' that is, months or years. The memorandum also interpreted the ``specific intent'' requirement in the statute to mean that even if a person knows ``that severe pain will result from his actions, if causing such harm is not his objective,'' then he is not guilty of torture.

The legal reasoning employed by the Office of Legal Counsel has no basis in military law, the legislative history of the Federal anti- torture Statute, or the Convention Against Torture.

More importantly, it should have been apparent when the OLC Memorandum was received by Judge Gonzales in the summer of 2002 that its definition of torture, as well as other sections, were flawed. At his confirmation hearing, Judge Gonzales was asked, ``Wasn't it obvious to you that someone can suffer physical pain without being in danger of organ failure? . . . Wouldn't the removal of fingers, for example, fall outside the [memorandum's] definition of torture . . . ?'' Judge Gonzales responded, ``Obviously, things like cutting off fingers, to me that sounds like torture. . . .'' That is the Judge Gonzales at his confirmation hearing--very different from the Judge Gonzales in 2002, when the tone was set in memos to him and from him.

When the Torture Memorandum was finally leaked to the press in early June 2004, it shocked the American people and the world. The administration quickly disavowed the memorandum and the Department of Justice undertook to review all of the OLC's legal advice relating to interrogations. Finally, on December 30, 2004, shortly before Judge Gonzales's nomination hearings, the OLC issued a legal opinion superceding the 2002 memorandum.

What impact did the Office of Legal Counsel's August 1, 2002 Memorandum have on the interrogation of enemy prisoners in U.S. custody during the nearly 2 years that it was official U.S. policy? The investigative reports received by the Armed Services Committee show that OLC's legal opinions provided the legal framework for the Defense Department's approval of a number of additional interrogation techniques, beyond those in standard Army doctrine, for use with enemy combatants at Guantanamo Bay. These additional, more aggressive techniques eventually migrated to Afghanistan and Iraq, and contributed to the prisoner abuse at Abu Ghraib.

On December 2, 2002, Secretary Rumsfeld approved the use of a range of ``aggressive'' non-doctrinal interrogation techniques at Guantanamo Bay, including stress positions, isolation for up to 30 days, 20-hour interrogations, nudity and use of dogs to induce stress. However, in response to concerns raised by the Navy General Counsel, 1 month later Secretary Rumsfeld rescinded his approval and in January 2003 established an internal Defense Department Working Group to review interrogation techniques for use in the Global War on Terrorism.

According to the Schlesinger panel report, this Defense Department Working Group ``relied heavily'' on the OLC's legal opinions for the legal framework for its review of interrogation techniques. Much of the legal analysis in the Working Group's April 4, 2003 report was drawn directly from the OLC Torture Memorandum.

The Defense Department Working Group reviewed and recommended approval of 35 interrogation techniques for use against unlawful combatants outside the United States, all of which it deemed legally available subject to certain conditions. Eighteen of these were techniques not found in the standard Army doctrine of Field Manual 34- 52. Of this group, the Working Group designated nine to be ``exceptional'' techniques that should only be used with the approval of the Secretary of Defense. These included isolation, prolonged interrogations, sleep deprivation, nudity, and increasing anxiety by the use of a detainee's aversions, for example, the use of dogs. Many of these are the same techniques that had been approved by Secretary Rumsfeld for use at Guantanamo Bay in December 2002.

Secretary Rumsfeld issued a new memorandum on April 16, 2003, approving 24 interrogations techniques for use on unlawful combatants at Guantanamo Bay, 7 more than contained in standard Army interrogation doctrine. Even though Secretary Rumsfeld approved only one ``exceptional'' technique from the Working Group's report, specifically isolation, other ``exceptional'' interrogation techniques recommended by the Working Group migrated to Afghanistan and Iraq. According to the report of General Fay, military officers at the Combined Joint Task Force Headquarters in Iraq, CJTF-7, ``relied heavily'' on Guantanamo Bay operating procedures, provided by Major General Geoffrey Miller, in revising CJTF-7 interrogation policies for the conflict in Iraq.

Major General Fay found that, ``By October 2003, interrogation policy in Iraq had changed three times in less than thirty days and it became very confusing as to what techniques could be employed and at what level non-doctrinal approaches had to be approved.'' He went on to say that interrogation techniques beyond those in Army doctrine ``came from documents and personnel in Afghanistan and Guantanamo. The techniques employed in JTF-GTMO [Joint Task Force-Guantanamo] included the use of stress positions, isolation for up to thirty days, removal of clothing, and the use of detainees' phobias.''

So the prisoner abuse and mistreatment at Abu Ghraib, can be traced back to the various Defense Department memoranda approving ``exceptional'' interrogation techniques and these Defense Department memoranda relied, in turn, on the legal framework set up in the opinions of the Justice Department's Office of Legal Counsel, including the August 1, 2002 Memorandum. As the Defense Working Group report stated regarding the standards applied in evaluating specific interrogation techniques, ``Generally, the legal analysis that was applied is that understood to comport with the views of the Department of Justice.''

The OLC August 1, 2002 memorandum was addressed to Judge Gonzales. In his testimony, Judge Gonzales initially said that he was doing his ``job as Counsel to the President to ask the question'' regarding the definition of torture. However, when pressed on the issue later on in the hearing, Judge Gonzales claimed that he couldn't remember if he requested the memo, even though, again, the memo says it is addressed to him and was requested by him.

At his confirmation hearing, Judge Gonzales disclosed that discussions leading to the August 2002 memorandum on torture took place in his office, that he participated in those discussions, and that he gave his views to the OLC, although he could not recall at the hearing what those views were. When I asked Judge Gonzales in post-hearing questions to consult with his staff or other documents relating to his views at the time of these discussions to refresh his recollection, he declined to do so, claiming that to do so would involve ``predecisional deliberations'' that he was not free to disclose.

Judge Gonzales was asked at his confirmation hearing whether he agreed with the definition of torture in the August 2002 memorandum on torture. He replied, ``I don't recall today whether or not I was in agreement with all of the analysis, but I don't have a disagreement with the conclusions then reached by the Department.'' Later in the hearing, he said, ``it's a position that I supported at the time.'' In other words, Judge Gonzales concurred in the torture definition and the other legal conclusions in the August 2002 memo at the time it was circulated. So, it was only after the memorandum became public and elicited outrage that the OLC withdrew it, and the White House, with Judge Gonzales out front, withdrew support.

When asked during his confirmation hearing what were his views on whether specific interrogation techniques might constitute torture within the meaning of our laws, Judge Gonzales was evasive. He acknowledged that he discussed specific interrogation techniques with the OLC. He said that, ``As Counsel to the President, my job was to ensure that all authorized techniques were presented to the Department of Justice, to the lawyers, to verify that they met all legal obligations, and I have been told that that is the case.'' He also said, ``It is of course customary . . . that there would be discussions between the Department and the Counsel's Office about legal interpretation of, say, a statute that had never been interpreted before, one that would be extremely emotional, say, if you're talking about what are the limits of torture . . . . And so there was discussion about that.''

When asked what his views were on specific techniques, however, he did everything but give a direct answer. In response to a written question about what methods he considered to be torture Judge Gonzales wrote, ``I do not think it would be prudent for me to address interrogation practices discussed in the press and attempt to analyze them under the prohibitions of [the federal anti-torture statute]. . . .'' At another point he said, ``we had some discussions [about specific interrogation techniques] . . . [a]nd I can't tell you today whether or not I said, `That's offensive. That's not offensive.' ''

Judge Gonzales was also repeatedly evasive and nonresponsive to Senators' requests for clarifications regarding his record on specific interrogation techniques. I submitted post-hearing questions to Judge Gonzales asking him to refresh his recollection by consulting with his staff. He declined. When asked by other Senators to refresh his recollection by examining relevant documents, Judge Gonzales responded that he had not conducted a document search. Period. To my knowledge, he has since taken no actions to obtain or review documents that could refresh his recollection.

One of the reasons given by Judge Gonzales for his refusal to provide the Senate with requested documents relating to his views on torture and specific interrogation techniques was that such disclosures would involve ``predecisional deliberations that I am not at liberty to disclose.'' For instance, when asked how many meetings took place prior to development of the 2002 memo and who was present, he gave that dismissive answer. When asked whether any of his staff attended the meetings or recalled his reactions to the legal issues, Judge Gonzales again for the same reason. His stonewalling of legitimate requests for information under the claim of some newly-created ``predecisional deliberation'' privilege to withhold information relevant to the Senate confirmation process, is totally unacceptable. It is extraordinary that the ACLU and other groups have had more success in obtaining administration documents through the Freedom of Information Act than the U.S. Senate has through the confirmation process. Does the U.S. Senate have to file Freedom of Information requests to get information from nominees?

The Senate has a right and a responsibility under its constitutionally assigned role in the nomination process to know what positions Judge Gonzales took with respect to any specific interrogation techniques which violated our laws. In his testimony and responses for the record, Judge Gonzales repeatedly refused to say what position he had taken on certain interrogation techniques, including simulated drowning (``waterboarding''), stress positions, sexual humiliation, or use of dogs, as constituting either torture or cruel, inhuman or degrading treatment. He claims it is the responsibility of the Justice Department to make such determinations. How Judge Gonzales addressed those issues and his views on these issues go to the very heart of the matter before us--whether the Senate should give consent made necessary by the Constitution before he assumes the office of Attorney General.

In the end, we are left with Judge Gonzales's memo stating that provisions of the Geneva Conventions have been rendered ``obsolete'' and other provisions ``quaint.'' We are left with his statement that he supported the legal position that physical pain amounting to torture is only prohibited if it is equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. We are left with his insistence that he cannot remember important meetings and discussions relative to specific interrogation techniques, while refusing to take steps to refresh his recollection.

The record is clear that Judge Gonzales played a central role in the development of U.S. legal policy in 2002 that set the stage for torture and inhumane treatment.

By undermining the importance of the Geneva Conventions and by refusing to acknowledge ``waterboarding,'' stress positions, sexual humiliation, or use of dogs, as violations of our anti-torture statute, Judge Gonzales falls short of the high standards needed in an Attorney General, whose office is at the pinnacle of the rule of law.

Finally, just as there must be accountability for those who carried out the acts of detainee abuse and mistreatment, there must be some accountability for the people who set the policies and established the legal framework that set the stage for those abuses.

To vote in favor of confirmation of Judge Gonzales for Attorney General would be to mean endorsement of the discredited legal theories which have endangered the safety of our Armed Forces, caused severe damage to the moral standing of the U.S. and to our efforts to promote freedom throughout the world.

Our troops deserve better. The American people deserve better. For these reasons, I will vote against the nomination of Judge Gonzales.

Mr. President, I yield the floor.

Mr. President, I call the attention of my colleagues to a warning from several major police organizations that a new high powered and easily concealable handgun, known as the Five-Seven, is easily available to potential criminals and poses a significant threat to our Nation's law enforcement officers. The International Association of Chiefs of Police, the International Brotherhood of Police Officers, and the National Organization of Black Law Enforcement Executives issued the warning late last week.

Belgian firearm manufacturer FN Herstal specializes in military and law enforcement weaponry but has also made its Five-Seven handgun available to private buyers in the United States. The Five-Seven includes a 20-round clip and is capable of firing ammunition that penetrates the body armor commonly worn by law enforcement officials. The FN Herstal Web site boasts that with the Five-Seven handgun, ``Enemy personnel, even wearing body armor can be effectively engaged up to 200 meters. Kevlar helmets and vests as well as the CRISAT protection will be penetrated.''

These new guns clearly have no sporting purpose and no place on our streets. We should not ignore the concerns of our law enforcement officers with regard to these dangerous weapons.

The law enforcement community is most concerned about the Five- Seven's ability to kill police officers, even while wearing protective body armor. Bernard Thompson, director of the National Organization of Black Law Enforcement Executives, commented on the Five-Seven, ``No one is safe from a weapon like this. Police body armor won't offer protection if a criminal has this pistol.''

The legislative director of the International Brotherhood of Police Officers Steve Lenkhart called the Five-Seven ``an assault rifle that fits in your pocket.'' A recent memo by the Florida Department of Law Enforcement supports this assertion. The memo reportedly states that the Five-Seven has the capabilities of a carbine or rifle but weighs less than 2 pounds when fully loaded. The FN Herstal Web site lists the overall length of the handgun as only 8.2 inches, making it small enough and light enough to be easily concealed by criminals.

Common sense should tell us that there is no reason for civilians to have access to easily concealable handguns with the capability to shoot through body armor. It is important for our elected officials to listen to the warnings of those who put their lives on the line to help keep violent criminals off of our streets. Unfortunately, the Congress also continues its failure to pass commonsense gun safety legislation that, among other things, would reauthorize the 1994 assault weapons ban, close the gun show loophole, and regulate high-powered .50 caliber sniper rifles. I again urge my colleagues to work to pass sensible gun- safety legislation that will help protect our law enforcement officers, families, and communities from military style firearms like the Five- Seven handgun.

Mr. President, according to the highly respected Humane Society of the United States, HSUS, Canada's government has authorized the slaughter of nearly 1 million seals over 3 years, 2004-2006, most of them between 12 days and 12 weeks old. This is the largest kill quota in history, which means that Canada is facilitating the artificial extension of an industry that has ceased to exist in most developed countries.

Canada officially opened its 6 months commercial seal hunt on November 15, 2004, paving the way for hundreds of thousands of baby seals to be killed for their fur during the 2004-2005 season. Today, I am joined by Senators Collins, Lugar, Reed, Lautenberg, Feinstein, Johnson, Jeffords, Wyden, Cantwell, Dodd, Feingold, Durbin, Schumer, Murray, and Dorgan in submitting a resolution that urges the Government of Canada to end this senseless, inhumane slaughter. Last year, we submitted a similar resolution, which was favorably reported by the Senate Foreign Relations Committee.

Opposition to the seal hunt is mounting. Canada's own people don't support the hunt. Polling shows that 71 percent of Canadians--including 60 percent of Atlantic Canadians--believe the seal hunt should be banned outright or limited to seals over one year of age. Last week, Canada's conservative newspaper, National Post, called for an end to the hunt. In January 2004, the Belgian government announced its intention to prohibit the sale of seal fur; and in November 2003, 166 members of the British House of Commons signed an Early Day Motion opposing Canada's seal hunt. That motion received strong support from Britain's Foreign Office Minister, Mike O'Brien. The American people don't support it either. According to a 2002 poll conducted by Penn, Schoen and Berland, 79 percent of American voters oppose Canada's seal hunt; and the U.S. Government has gone on record in opposition to this senseless slaughter, as noted in the attached, January 19, 2005, letter from the U.S. Department of State, in response to a letter Senator Collins and I wrote to President Bush, urging him to raise this issue during his November 30, 2004 visit with Canadian Prime Minister Paul Martin.

In 2001, a group of independent veterinarians traveled to observe the seal hunt. What they witnessed was shocking to all who are concerned about the humane treatment of animals. The images are difficult to envision but harder to believe: skinning oflive animals and the dragging of live seals across the ice using steel hooks.

Few would argue that this industry still serves a legitimate purpose. Even in Newfoundland, where 93 percent of the hunt occurs, the economic contribution of the seal hunt is marginal. Exports of seal products from Newfoundland account for less than one-tenth of one percent of the province's total exports. Is that worth the damage the seal hunt causes to Canada's reputation? Out of a population of over half a million people, only about 4,000 Newfoundlanders participate in the hunt. That's a total take home pay of well under $800 per sealer.

Many believe that it makes little sense to continue an industry that only operates for a few weeks a year, in which the concentrated killings takes place. Moreover, it employs only a few hundred people on a seasonal, part-time basis.

The clubbing of baby seals can't be defended or justified, and Canada should end it just as we ended the Alaska baby seal massacre 20 years ago.

I ask unanimous consent that the January 19, 2005 letter from the U.S. State Department be printed in the Record.

Mr. President, my colleagues Senators DeWine and Voinovich of Ohio, Senator Stabenow of Michigan, and I are pleased to introduce the Great Lakes Water Quality Indicators and Monitoring Act. The bill directs the Environmental Protection Agency to develop indicators of Great Lakes water quality and related environmental factors and a comprehensive network to monitor those indicators. This bill will result in science-based assessments of the health of the Great Lakes.

The Great Lakes are a treasured natural resource. The Great Lakes contain almost 20% of the world's fresh water, and millions of people in the Great Lakes basin rely on the lakes for drinking water, for economic livelihoods such as fishing and shipping, and for recreational opportunities, including swimming and boating. Unfortunately, the Great Lakes have suffered from decades of toxic discharges, urban and agricultural runoff, and other environmental challenges. We've made some progress in improving water quality, but we know we have a long way to go.

The stewards of the lakes--at the Federal, State, and local levels-- use a variety of methods to determine the health of the Great Lakes and whether they are improving. For example, the EPA and the Fish and Wildlife Service monitor the accumulation of chemicals in Great Lakes fish. The National Oceanic and Atmospheric Administration detects changes in the ecosystem from space-based satellites and waterborne buoys. The U.S. Geological Survey samples stream flow and quality, and the States inspect for compliance with water quality standards. These efforts to collect scientific data are largely voluntary and suffer from a lack of funding and coordination. Additionally, they use inconsistent methods that often produce incompatible results.

In 2004, the General Accounting Office released a report entitled Great Lakes: An Overall Strategy and Indicators for Measuring Progress are Needed to Better Achieve Restoration Goals. The GAO looked at almost 200 Federal and State programs and found that a lack of coordination, poorly defined goals, and insufficient data make it difficult to evaluate the success of these programs. The GAO found that there are no data collected regularly throughout the Great Lakes, and that the existing data are inadequate to determine whether water quality and other environmental conditions are improving.

In 1990, I authored the Great Lakes Critical Programs Act, which strengthened the water quality standards in the Great Lakes region. In 2002, Congress passed the Great Lakes Legacy Act, to speed the cleanup of contaminated bottom sediment. Today, we need to establish a way to evaluate the impact of these and similar measures. To show results, we need science-based indicators of water quality and related environmental factors, and we need to monitor those indicators regularly throughout the ecosystem.

GAO recommends that EPA's Great Lakes National Program Office lead an

effort to develop indicators and a monitoring network. Our bill gives that office the mandate to work with other Federal agencies and Canada to identify and measure water quality and other environmental factors on a regular basis. The initial set of data collected through this network will serve as a benchmark against which to measure future improvements. Those measurements will help us make decisions on how to steer future restoration efforts. With a clear picture of how the Great Lakes are changing, we can change course when needed and spend public funds on the most effective measures to meet the most pressing demands.

This bill serves a second purpose--it provides EPA with dedicated funding to make sure that data collection can begin in a timely manner and be carried out consistently and comprehensively.

I encourage my colleagues to support this bill and help speed its passage.

Mr. President, my colleagues Senators DeWine and Voinovich of Ohio, Senator Stabenow of Michigan, and I are pleased to introduce the Great Lakes Water Quality Indicators and Monitoring Act. The bill directs the Environmental Protection Agency to develop indicators of Great Lakes water quality and related environmental factors and a comprehensive network to monitor those indicators. This bill will result in science-based assessments of the health of the Great Lakes.

The Great Lakes are a treasured natural resource. The Great Lakes contain almost 20% of the world's fresh water, and millions of people in the Great Lakes basin rely on the lakes for drinking water, for economic livelihoods such as fishing and shipping, and for recreational opportunities, including swimming and boating. Unfortunately, the Great Lakes have suffered from decades of toxic discharges, urban and agricultural runoff, and other environmental challenges. We've made some progress in improving water quality, but we know we have a long way to go.

The stewards of the lakes--at the Federal, State, and local levels-- use a variety of methods to determine the health of the Great Lakes and whether they are improving. For example, the EPA and the Fish and Wildlife Service monitor the accumulation of chemicals in Great Lakes fish. The National Oceanic and Atmospheric Administration detects changes in the ecosystem from space-based satellites and waterborne buoys. The U.S. Geological Survey samples stream flow and quality, and the States inspect for compliance with water quality standards. These efforts to collect scientific data are largely voluntary and suffer from a lack of funding and coordination. Additionally, they use inconsistent methods that often produce incompatible results.

In 2004, the General Accounting Office released a report entitled Great Lakes: An Overall Strategy and Indicators for Measuring Progress are Needed to Better Achieve Restoration Goals. The GAO looked at almost 200 Federal and State programs and found that a lack of coordination, poorly defined goals, and insufficient data make it difficult to evaluate the success of these programs. The GAO found that there are no data collected regularly throughout the Great Lakes, and that the existing data are inadequate to determine whether water quality and other environmental conditions are improving.

In 1990, I authored the Great Lakes Critical Programs Act, which strengthened the water quality standards in the Great Lakes region. In 2002, Congress passed the Great Lakes Legacy Act, to speed the cleanup of contaminated bottom sediment. Today, we need to establish a way to evaluate the impact of these and similar measures. To show results, we need science-based indicators of water quality and related environmental factors, and we need to monitor those indicators regularly throughout the ecosystem.

GAO recommends that EPA's Great Lakes National Program Office lead an

effort to develop indicators and a monitoring network. Our bill gives that office the mandate to work with other Federal agencies and Canada to identify and measure water quality and other environmental factors on a regular basis. The initial set of data collected through this network will serve as a benchmark against which to measure future improvements. Those measurements will help us make decisions on how to steer future restoration efforts. With a clear picture of how the Great Lakes are changing, we can change course when needed and spend public funds on the most effective measures to meet the most pressing demands.

This bill serves a second purpose--it provides EPA with dedicated funding to make sure that data collection can begin in a timely manner and be carried out consistently and comprehensively.

I encourage my colleagues to support this bill and help speed its passage.

Mr. President, the CBS news program ``60 Minutes'' recently aired a segment regarding the dangers that .50 caliber sniper rifles pose to the security of our Nation. In previous Congresses, I have cosponsored legislation to enact common sense regulation of these dangerous weapons. Unfortunately, the Congress has thus far failed to act. I am hopeful that the 109th Congress will address this issue for the safety of all Americans.

The .50 caliber sniper rifle is a favorite weapon of militaries around the world and is also among the most powerful weapons legally available to private individuals in the United States. According to a report released by the Violence Policy Center last year, a .50 caliber sniper rifle is capable of accurately hitting a target over 1,500 yards away, and the ammunition available for the rifle includes armor- piercing, incendiary, and explosive bullets. The report also cites the U.S. Army's manual on urban combat, which states that .50 caliber sniper rifles are designed to attack bulk fuel tanks and other high- value targets from a distance using ``their ability to break through all but the thickest shielding material.''

The previously mentioned ``60 Minutes'' program highlighted various threats that military style .50 caliber sniper rifles pose to civilians. One serious threat reported on the program is the vulnerability of commercial aircraft to terrorists with .50 caliber sniper rifles. This threat was previously addressed in a 1999 report by the minority staff of the House Government Reform Committee, which noted that the thumb-sized bullets fired by .50 caliber rifles can easily punch through aircraft fuselages, fuel tanks, and engines. Police Commissioner Ray Kelly of New York City referred to these potential threats by saying, ``Clearly, with the range that it has, and the impact capability that it has, it would put an airliner or an airplane at risk if it hit that plane.''

So the easy availability of the .50 caliber sniper rifle poses a danger to airline safety, as well as our overall security. Last September, California became the first and so far only State in the country to ban the manufacture, sale, distribution, or importation of .50 caliber sniper rifles. Unfortunately, there are few Federal regulations to protect the rest of the Nation from these dangerous weapons. Buyers need only be 18 years old, rather than the 21 years of age required for handgun purchases. And there is no minimum age requirement for possession of a .50 caliber weapon and no regulation on second hand sales.

In an interview which became part of the ``60 minutes'' report, the inventor and current manufacturer of the .50 caliber sniper rifle, Ronnie Barrett, described his product as ``a high-end adult recreational toy.'' When asked how he came up with the idea for the rifle, Mr. Barrett replied, ``I was just a 26 year-old kid, and didn't know any better.''

Mr. President, we should know better. The time has come to classify these weapons in the same common sense manner that we classify other weapons of war, including machine guns. The 109th Congress should follow California's good example and pass reasonable legislation that changes the way .50 caliber guns are regulated.

Mr. President, the President's nomination of Dr. Condoleezza Rice to be Secretary of State presents the Senate with a difficult decision. Dr. Rice will bring an impressive set of public policy and academic credentials to the job of Secretary of State. Her personal story is inspiring. Nonetheless, Dr. Rice's record on Iraq gives me great concern.

In her public statements, she clearly overstated and exaggerated the intelligence concerning Iraq before the war in order to support the President's decision to initiate military action against Iraq. Since the Iraq effort has run into great difficulty, she has also attempted to revise history as to why we went into Iraq.

I approach this issue as the ranking member of the Armed Services Committee and as a member of the Intelligence Committee. Both committees have devoted a great deal of time over the last 2 years to issues concerning Iraq, including the Intelligence Committee inquiry into prewar intelligence.

These inquiries indicated major problems with the intelligence on Iraq and how it was exaggerated or misused to make the case to the American people of the need to initiate an attack against Iraq. Dr. Rice is a major player in that effort--a frequent and highly visible public voice.

Dr. Rice is not directly responsible for the intelligence failures prior to the Iraq war. The intelligence community's many failures are catalogued in the 500-page report of the Senate Intelligence Committee. But Dr. Rice is responsible for her own distortions and exaggerations of the intelligence which was provided to her.

Here are a few of those exaggerations and distortions.

One of the most well known was the allegation that Iraq was trying to obtain uranium from Africa, which was cited to demonstrate that Iraq was reconstituting its nuclear weapons program. But our intelligence community did not believe it was true, and took numerous actions to make its concerns known--even urging the British not to publish the allegation in September of 2002.

So how did it happen that President Bush in his January 28, 2003, State of the Union speech said that ``The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa''?

When the CIA saw a draft of the President's Cincinnati speech for October 7, 2002, it asked the White House to delete the allegation that Iraq had been seeking uranium from Africa, and the White House did remove the reference entirely.

On October 5, 2002, the CIA sent a memo explaining its views to Steven Hadley, Dr. Rice's deputy. It sent another memo to Dr. Rice and to Mr. Hadley on October 6, again expressing doubt about the reports of Iraq's attempt to get uranium from Africa.

Finally, George Tenet, the Director of Central Intelligence himself, personally called Mr. Hadley to urge that the uranium allegation be removed from the speech--which it was.

This was not just some routine staff action or a low-level CIA analyst who called the National Security Council. It was a memorandum from the CIA to Dr. Rice, and the Director of Central Intelligence himself who called Dr. Rice's deputy to make it clear what his concerns were and to request the removal of the allegation.

Yet just 3\1/2\ months later the White House put the African uranium allegation back into a draft of the State of the Union speech. That draft made no mention of the British. It was a reference like the one that was removed from the Cincinnati speech a few months before. It asserted in that draft what purported to be the view of the U.S. Government--that Iraq had been trying to obtain uranium from Africa.

According to Director Tenet, shortly before the speech was delivered, the CIA received portions of the draft of the State of the Union to review, including the allegation about uranium from Africa. A senior CIA staff member called the National Security Council staff to repeat his concerns about the allegation. Instead of removing the text from the speech, the National Security Council and the White House changed the text to make reference to the British view, suggesting, of course, that the United States believed the British view to be accurate.

That formula was highly deceptive. The only reason to say the ``British have learned'' that Saddam Hussein was seeking uranium from Africa was to create the impression that we believed it.

But our intelligence community did not believe it. Indeed, they had attempted to dissuade the British from publishing the allegation in September, and they successfully made several high-level interventions with the White House in October to have the allegation removed from the President's Cincinnati speech. Concerning the British report, Director Tenet said the CIA ``differed with the British on the reliability of the uranium reporting.''

What was the role of Dr. Rice in all of this? I asked her in my questions for the record whether she was aware the intelligence community had doubts about the credibility of the reports, and if not, how she could not know, given all of the activity prior to the President's October 7 Cincinnati speech, including the memo to her.

In response, Dr. Rice said, ``I do not recall reading or receiving the CIA memo,'' and ``I do not recall Intelligence Community concerns about the credibility of reports about Iraq's attempts to obtain uranium from Africa either at the time of the Cincinnati speech or the State of the Union speech.''

Frankly, I am surprised and disappointed that the National Security Adviser would not remember an issue of this magnitude.

However, it was not only the President who made that allegation, Dr. Rice made it herself in an op-ed in the New York Times on January 23, 2003, 5 days before the State of the Union speech, and 3\1/2\ months after the same allegation had been removed from the Cincinnati speech at the CIA's request. She wrote that Iraq's declaration to the U.N. ``fails to account for or explain Iraq's efforts to get uranium from abroad.''

Another question I asked Dr. Rice for the record was whether, prior to the January 2003 State of the Union speech, she had discussed with Steven Hadley, her Deputy, the choice of wording in that portion of the speech and whether she was aware that the language had been changed to refer to the British rather than stating it as the U.S. Government's view. In her response she said:

Yes, I did discuss with Stephen Hadley concerns the

intelligence community had about protecting sources and

methods regarding reports on Iraq's attempts to procure

uranium from Africa. These concerns were addressed by citing

a foreign government service. I do not recall any discussion

of concerns about the credibility of the report.

However, the CIA requested on three separate occasions that the reference in the Cincinnati speech be removed entirely because the CIA had doubts about the credibility of the reports.

In Dr. Rice's answers to my questions, while she failed to remember all the direct interventions by the CIA to have the uranium allegation removed from the President's Cincinnati speech, including a CIA memo to her, she instead relied on a single sentence from

the October 1, 2002, national intelligence estimate, asserting that ``Iraq also began vigorously trying to procure uranium and yellow cake'' from Africa.

There are four problems with her answers. First, after that national intelligence estimate was produced, the CIA made its multiple interventions with the National Security Council, including two memos and the call from DCI Tenet to Dr. Rice's Deputy, to have the uranium allegation removed from the draft October 7 Cincinnati speech because of the doubts about the credibility of the reports. It was then removed.

So the CIA's doubts about the reporting and the White House's removal of that allegation from the Cincinnati speech came after the hastily assembled national intelligence estimate of October 1, 2002.

Second, according to George Tenet, the Director of Central Intelligence, the CIA's concerns were with the credibility of the reports, not with sources and methods. In a statement issued in July of 2003, he said the CIA received portions of the draft speech shortly before it was given and that the CIA officials ``raised several concerns about the fragmentary nature of the intelligence with the National Security Council colleagues.'' In that statement he made no fewer than five references to CIA doubts about the reliability of the intelligence. He did not mention concerns about protecting sources and methods.

Third, in relying on one erroneous sentence in the NIE, Dr. Rice did not mention the opposing sentence in that same NIE written by the State Department's Bureau of Intelligence and Research, which stated that ``the claims of Iraqi pursuit of natural uranium in Africa are, in INR's assessment, highly dubious.'' So the NIE, which she referred to, also contained an explicit dissenting view on the issue of African uranium, but she ignored that portion of the NIE.

Finally, and most significantly, if the State of the Union speech was relying upon that one sentence in the national intelligence estimate, it would have presented the allegation about Iraq seeking African uranium as something the United States believed rather than something the ``British have learned.''

That is where Dr. Rice's answers unravel. If the NIE's erroneous statement that ``Iraq also began vigorously trying to procure uranium ore and yellow-cake'' from Africa was the basis for the State of the Union speech representations, that speech would not have relied on the British view. It would have been stated as our own view. The problem is that it was not our view. The statement about the British learning of Iraq's efforts to obtain uranium in Africa was a conscious effort to create an impression that we believed something that we actually did not believe.

Now, there are other examples in which Dr. Rice exaggerated the intelligence or overstated the case to help persuade the public of the need to go to war against Iraq. Let me cite a few.

On September 8, 2002, Dr. Rice said on CNN:

We do know that there have been shipments going into . . .

Iraq, for instance, of . . . high quality aluminum tubes that

are only really suited for nuclear weapons, centrifuge

programs.

On July 30, 2003, she said that ``the consensus view of the American intelligence agency'' was that the aluminum tubes ``were most likely for this use''--meaning for centrifuges to make nuclear weapons.

However, contrary to her claim, there was no certainty and no consensus view within the intelligence community about the use of the aluminum tubes. In fact, there was a fundamental disagreement, and the Department of Energy, which has the Nation's foremost centrifuge experts, and the State Department did not believe the tubes were intended for centrifuges. They believed the tubes were intended for conventional artillery rockets. Their disagreeing views were explicitly included in the October 2002 national intelligence estimate.

In my questions for the record, I asked Dr. Rice why she had said there was a consensus when there was none. Her answer did not respond to my question. So the question remains: Why did she say there was a consensus when there was not a consensus, and why did she say they were ``only really suited for nuclear weapons'' when they were, in fact, not only suitable for other purposes but, indeed, had been used for other purposes by Iraq--namely, for conventional artillery rockets?

In summary, Dr. Rice made the public case against Iraq as having reconstituted its nuclear weapons program far stronger than was supported by the classified intelligence. She exaggerated and distorted the facts and the intelligence provided to her in order to help convince the American public of the need to go to war.

Dr. Rice has also not been forthcoming on the question of when she knew of the differences within the intelligence community relative to the intended use of the aluminum tubes. Senator Biden asked Dr. Rice in a written question before the confirmation hearings whether she knew of the long-standing debate within the intelligence community at the time of her September 8, 2002 statement that the aluminum tubes ``are only really suited for nuclear weapons programs, centrifuge programs,'' and when President Bush said four days later that ``Iraq has made several attempts to buy high-strength aluminum tubes used to enrich uranium for a nuclear weapon.''

She simply ducked the issue, and quoted a passage from the October 2002 NIE about a number of alleged Iraqi uranium enrichment activities--including the aluminum tubes--noting that the Department of Energy believed the tubes ``probably are not part of'' the nuclear program. She never answered the question of whether she was aware of the debate when she and the President made their erroneous statements.

One more example. On November 15, 2002, Dr. Rice said Saddam Hussein had been ``helping some al Qaeda operatives gain training in CBRN [Chemical, Biological, Radiological or Nuclear weapons].''

On March 9, 2003, shortly before the war, she made a statement about the links between Saddam and al Qaeda, including a ``very strong link to training al Qaeda in chemical and biological weapons techniques.''

On September 7, 2003, she said:

we know there was training of al Qaeda in chemical and

perhaps biological warfare.

Those comments indicated certainty that Iraq provided training in chemical and biological weapons to al-Qaida. But the CIA had said that the reports of training came from sources of ``varying reliability,'' and were ``contradictory,'' as the Senate Intelligence Committee report makes clear.

Dr. Rice took what was a possibility and portrayed it as a fact.

Prior to the war, senior administration officials repeatedly and publicly stated that the reason the United States had to be prepared to use military force, and then go to war against Saddam, was to disarm Iraq of its weapons of mass destruction, which Saddam was said to be likely to provide to terrorists like al-Qaida.

Before the war, Dr. Rice said the following, on September 25, 2002: ``This is a matter of disarming the Iraqi regime, because that's the danger, is that Saddam Hussein with nuclear, chemical, biological weapons will be a threat to his people, his neighbors, and to us.''

On March 9, 2003, just 10 days before the start of the war, she said: ``What the President is saying to the American people is . . . `I will not stand by until the moment when Saddam Hussein is good at delivering biological weapons, by unmanned aerial vehicles.' ''

On April 10, 2003 Ari Fleischer, the President's spokesman, summarized the point succinctly: ``We have high confidence that they have weapons of mass destruction. That is what this war was about and it is about.''

When questioned about this issue at her confirmation hearing on January 18, Dr. Rice joined the effort to rewrite the history of the publicly stated reasons for attacking Iraq. She said: ``It wasn't just weapons of mass destruction. . . . It was the total picture, Senator, not just weapons of mass destruction, that caused us to decide that, post-September 11th, it was finally time to deal with Saddam Hussein.''

The simple fact is that before the war, the administration repeatedly and dramatically made the case for war on the issue of Iraq possessing and continuing to develop weapons of mass destruction, and the likelihood that Saddam Hussein would provide those weapons to terrorists like al Qaeda. For Dr.

Rice to suggest that there were many other, equally compelling, reasons to go to war simply does not square with the reality of how the administration persuaded the American people and the Congress of the need for war. Her suggestion is an effort to revise the history of the administration's presentations to the American people.

Dr. Rice again engaged in revisionist history about the Iraq military campaign during her nomination hearings before the Senate Foreign Relations Committee on January 18, 2005. Dr. Rice claimed: ``This was never going to be easy; it was always going to have ups and downs.''

Dr. Rice's statement is striking, not because of its substance, but because of how it stands in contrast to what the administration was telling Congress and the American people in the months before the invasion of Iraq.

The administration downplayed the difficulties of invading Iraq by claiming that we would be greeted as ``liberators'' by the Iraqi people. When Army Chief of Staff General Eric Shinseki predicted that ``several hundred thousand soldiers'' probably would be needed for the occupation of Iraq following the fall of Saddam Hussein, senior Defense Department officials rejected General Shinseki's assessment. Instead, Deputy Secretary of Defense Wolfowitz told the House Budget Committee before the start of the war: ``I am reasonably certain that they [the Iraqi people] will greet us as liberators, and that will help us to keep requirements down.'' He also said that ``the notion of hundreds of thousands of American troops is way off the mark.''

Vice President Cheney also repeated this claim to downplay the cost of regime change in Iraq. During an appearance on NBC's ``Meet the Press'' on March 16, 2003, the Vice President said: ``The read we get on the people of Iraq is there is no question . . . they will welcome as liberators the United States when we come to do that.''

It was precisely the administration's rose-colored conviction that our troops would be hailed by the Iraqi people as liberators that resulted in the inexcusable failure to plan for a difficult and costly occupation of Iraq following the end of major hostilities.

Similarly, administration officials grossly underestimated the costs to the American people of rebuilding Iraq. In March 2003, Deputy Secretary of Defense Wolfowitz testified before Congress that Iraq ``can really finance its own reconstruction, and relatively soon.'' The next month, in April 2003, the head of the U.S. Agency for International Development publicly estimated that the American taxpayers' portion of Iraqi reconstruction costs would be $1.7 billion, adding that there were ``no plans for any further-on funding for this.'' Instead, Congress has approved over $20 billion in reconstruction funds for Iraq, and the final bill for the American taxpayer could reach hundreds of billions of dollars.

The Administration used the same rose-colored glasses in estimating the cost of rebuilding Iraq. Dr. Rice said there were always going to be ``ups and downs''. But before the war, the administration never talked about, never planned for, and never prepared the American people for the ``downs'' of rebuilding Iraq. It only focused on the ``ups''. So I find Dr. Rice's latest assessment that the administration never thought that the post-Saddam period was going to be easy to be startlingly at odds with the administration's claims in making the case for the Iraq war in the first place.

One of my main concerns about this administration, including Dr. Rice, is that there appears to be no accountability for the many mistakes.

Consider the case of George Tenet, the former Director of Central Intelligence, who covered the administration's exaggerations on Iraq. President Bush had been publicly saying things like ``on any given day,'' Saddam could provide WMD to terrorists, and that Saddam ``would like nothing more than to use a terrorist network to attack and kill and leave no fingerprints.'' President Bush repeatedly indicated that Saddam might give WMD to terrorists without provocation.

On October 7, 2002 DCI Tenet sent a letter to the Senate Intelligence Committee declassifying portions of its new National Intelligence Estimate on Iraq. That letter made clear that the intelligence community believed it was unlikely that Saddam would share WMD with terrorists, and said it would be an ``extreme step'' and a ``last chance to exact vengeance'' if the U.S. had already attacked Iraq.

So there was a clear inconsistency between the views of the intelligence community and the public comments of the President. Yet, incredibly, on October 8, 2002, just a few days before the Senate was to vote on the resolution to authorize the use of force against Iraq, DCI Tenet issued a statement to the press saying ``there is no inconsistency'' between the views in the letter and the President's views, which was simply false. Its motivation was transparent: An honest acknowledgment of inconsistency might have had a negative effect on the Senate vote.

Instead of being held accountable for that critical misstatement, and instead of being held accountable for the October 2002 NIE, which was rife with errors, all in the direction of making Iraq more threatening, including erroneous statements not based on the underlying intelligence, George Tenet was awarded the Presidential Medal of Freedom by President Bush. That is not accountability. Accountability for mistakes and failures, no matter how serious, is not the hallmark of this administration.

Dr. Rice's exaggerations and distortions concerning Iraq were an important part of the administration's effort to convince the American people of the need to go to war. Few things are as fateful as that decision.

Finally, Secretaries of State must be strong enough to tell a President what he may not want to hear. There is admittedly one recent glimmer of hope in that regard.

In response to my written question, Dr. Rice did acknowledge that ``there is of course a distinction'' between Saddam Hussein and al Qaeda when it comes to the war on terrorism. That stands in contrast to President Bush's claim on September 25, 2002, that ``[Y]ou can't distinguish between al Qaeda and Saddam when you talk about the war on terror.''

But that glimmer of independence is not enough to change my view that Dr. Rice should not be confirmed as Secretary of State.

The Bush administration's prewar distortions and exaggerations of intelligence concerning Iraq's weapons of mass destruction and ties to al Qaeda were the publicly stated basis for initiating the war.

I ask unanimous consent the questions and answers I asked of Dr. Rice also be printed in the Record following my statement.

Finally, I think I have 1 additional minute. I will use that to conclude.

Voting to confirm Dr. Rice as Secretary of State would be a stamp of approval for her participation in the distortions and exaggerations of intelligence that the administration used before it initiated the war in Iraq, and the hubris which led to the administration's inexcusable failure to plan and prepare for the aftermath of the overthrow of Saddam Hussein, with tragic ongoing consequences.

I believe we must do all we can to support our troops in their efforts to create a democratic government in Iraq, despite the circumstances we are in. But I cannot, in good conscience, give my approval to the mistakes and misjudgments that helped to create those circumstances. I will, therefore, vote against the confirmation of Dr. Rice to be Secretary of State.

I thank the Chair and yield the floor.

Exhibit 1

Questions for the Record From Senator Carl Levin to Dr. Condoleezza

Rice, and Her Responses (in Conjunction With Her Nomination To Be

Secretary of State)

Uranium From Africa

1. The CIA had sent a memo to you and Mr. Hadley on October

6, 2002 concerning a draft of the President's scheduled

October 7, 2002 Cincinnati speech. That memo included an

explanation of the reasons why the CIA believed the reference

to Iraq's attempts to obtain uranium from Africa should be

deleted. The CIA had sent a previous memo to Mr. Hadley (and

Mr. Gerson, who was the speechwriter) the day before that

memo sent to you, again expressing its doubts about the

reports of Iraq's attempts to get uranium from Africa.

Finally, the Director of Central

Intelligence, George Tenet, called Mr. Hadley directly to ask

that the reference to uranium from Africa be deleted from the

October 7 speech. As a result of the CIA's multiple

expressions of its doubts about these reports, the reference

was deleted, and the October 2002 speech made no mention of

Iraq's purported attempts to obtain uranium from Africa.

Given all this and other activity, were you aware at that

time (October 2002) that the Intelligence Community had

doubts about the reports of Iraq's purported efforts to

obtain uranium from Africa? Were you aware prior to January

28, 2003, the date of the President's State of the Union

speech?

Answer: I do not recall Intelligence Community concerns

about the credibility of reports about Iraq's attempts to

obtain uranium from Africa either at the time of the

Cincinnati speech or the State of the Union speech. I would

note that the Senate Select Committee on Intelligence report

on prewar intelligence assessments on Iraq stated:

``When coordinating the State of the Union, no Central

Intelligence Agency (CIA) analysts or officials told the

National Security Council (NSC) to remove the `6 words' or

that there were concerns about the credibility of the Iraq-

Niger uranium reporting.''

2. Prior to the State of the Union speech (January 28,

2003), did you ever discuss with the Director of Central

Intelligence, George Tenet, the Intelligence Community's

doubts about reports of Iraq's attempts to get uranium from

Africa? If so, when was the first time you discussed the

matter with him, and how many times did you discuss the issue

prior to the State of the Union?

Answer: I do not recall discussing Intelligence Community

doubts about such reports with Director Tenet prior to the

State of the Union.

3. Prior to the State of the Union speech of January 2003,

did you ever discuss with Stephen Hadley, your deputy, the

choice of wording for the speech concerning Iraq's purported

attempts to obtain uranium from Africa? Prior to the speech,

were you aware that the language had been changed to make

reference to the British having learned of such efforts,

rather than stating it as the US Government view?

Answer: Yes, I did discuss with Stephen Hadley concerns the

Intelligence Community had about protecting sources and

methods regarding reports on Iraqi attempts to procure

uranium from Africa. These concerns were addressed by citing

a foreign government service. I do not recall any discussion

of concerns about the credibility of the reports.

4. Were you at all involved in the decision-making process

about the phraseology of the wording for the January 28, 2003

State of the Union speech concerning Iraq's purported

attempts to obtain uranium from Africa (``The British

government has learned that Saddam Hussein recently sought

significant quantities of uranium from Africa'')? Who was the

author of the wording, and was the author aware that the CIA

had serious doubts about the claim at least as early as

September 2002?

Answer: Yes, I did discuss with Stephen Hadley concerns the

Intelligence Community had about protecting sources and

methods regarding reports on Iraqi attempts to procure

uranium from Africa. The State of the Union speech was

prepared by the President's speechwriters, in coordination

with other members of the executive branch. I do not know who

actually authored the words about Iraq's attempts to procure

uranium from Africa.

5. On July 13, 2004 you said the following on Face the

Nation: ``What I knew at the time is that no one had told us

that there were concerns about the British reporting.'' Given

all the activity indicating CIA doubts and concerns about the

claim, including a CIA memo sent to you in early October

2002, how could you not know of the doubts and concerns?

Answer: I do not recall reading or receiving the CIA memo

of October 2002. However, I was aware of the October 2002

National Intelligence Estimate stating ``Iraq also began

vigorously trying to procure uranium ore and yellowcake;

acquiring either could shorten the time Baghdad needs to

produce nuclear weapons.''

6. On June 8, 2003, on ABC's This Week with George

Stephanopoulos, you said ``At the time the State of the Union

address was prepared, there were also other sources that said

that they were, the Iraqis were seeking yellow-cake, uranium

oxide, from Africa. And that was taken out of a British

report. Clearly, that particular report, we learned

subsequently, subsequently, was not credible. . . . The

intelligence community did not know at that time or at levels

that got to us that this, that there was serious questions

about this report.''

How could you say such a thing when, before the State of

the Union speech, the CIA had told the British of its doubts

about the claim and urged them to remove it from their

dossier; when the Director of Central Intelligence had

personally called your Deputy, Stephen Hadley; when the DCI

had sent a memo on October 5 to Mr. Hadley; and when he sent

another memo to you and Mr. Hadley on October 6, all

explaining why the claim should be removed from the

President's October 7 Cincinnati speech, which it was. How

can you claim that ``the intelligence community did not know

at that time or at levels that got to us that this, that

there was serious questions about this report''?

Answer: National Intelligence Estimates represent the

authoritative judgment of the Intelligence Community. CIA

also provided information citing Iraq's attempts to procure

uranium from Africa to the White House four days before the

State of the Union speech. I would also note that the Senate

Intelligence Committee concluded that no CIA analysts or

officials expressed doubt about the uranium reporting when

coordinating on the State of the Union speech.

Iraq: Aluminum Tubes

7. On July 30, 2003, you said ``the consensus view of the

American intelligence agency'' [sic] was . . . that the

aluminum tubes ``were most likely for this use,'' meaning for

centrifuges to make nuclear weapons. However, there was no

consensus view on the use of the aluminum tubes; there was a

fundamental disagreement within the Intelligence Community,

and the Department of Energy and the State Department did not

believe the tubes were intended for centrifuges. Given that

there was no consensus, why did you say there was?

Answer: The October 2002 National Intelligence Estimate

established the Intelligence Community's authoritative

assessment on the aluminum tubes issue. It stated:

``Most agencies believe that Saddam's personal interest in

and Iraq's aggressive attempts to obtain high-strength

aluminum tubes for centrifuge rotors--as well as Iraq's

attempts to acquire magnets, high-speed balancing machines

and machine tools--provide compelling evidence that Saddam is

reconstituting a uranium enrichment effort for Baghdad's

nuclear weapons program. (DOE agrees that reconstitution of

the nuclear program is underway but assesses that the tubes

are probably not part of the program.)'' A footnote noted

INR's alternative view to the NIE's authoritative assessment.

No Distinction Between Iraq and al Qaeda?

8. Do you make any distinction between Saddam Hussein and

al Qaeda when it comes to the war on terror, or do you think

they are indistinguishable?

Answer: Yes, there is of course a distinction, but Saddam

Hussein did harbor terrorists and had many other ties to

terrorists, including contacts with al Qaeda, as the 9-11

Commission recognized. And he was an avowed enemy of America

and of our allies. The possibility that an outlaw state might

pass a weapon of mass destruction to a terrorist is the

greatest danger of our time.