Floor Statements

Mr. President, my colleague from Michigan is here, and I know she will probably want to speak on the three votes on judges.

The first point I make is, I would much rather be debating the Homeland Security bill than these judges. Where are our priorities in this body? What are we doing? We have had weeks and weeks where many have called for bringing Homeland Security appropriations to the Senate. Instead, we have been debating all the political footballs. I know it is a Presidential election year, I know it is election season, but some things should have a higher calling.

On this particular issue, I make one point before yielding the floor to my colleague from Michigan. Anyone who thinks this is a tit-for-tat game at least misreads the Senator from New York. Were there bad things done on judges when Bill Clinton was President by the Republican- controlled Senate? You bet. But that does not motivate me in terms of what we ought to do in the future.

What motivates me is that in the issue of appointing judges--and I remind the American people that now 200 judges have been approved and 6 have been rejected. My guess is the Founding Fathers, given that they gave the Senate the advice and consent process, would have imagined a greater percentage should be rejected.

I am always mindful of the fact that one of the earliest nominees to the U.S. Supreme Court, Mr. Rutledge, from the neighboring State of the Presiding Officer, South Carolina, nominated by President George Washington, was rejected by the Senate because they didn't like his views on the Jay Treaty. That Senate, which had a good number of Founding Fathers in it--the actual people who wrote the Constitution, many of them became Senators the next year or two--didn't have any qualms about blocking a judge they thought was unfit.

Now all of a sudden when this body stops 6 of 200, we hear from the other end of Pennsylvania Avenue: That is obstructionist.

That is not obstructionist. That is doing our job. The Constitution didn't give the President the sole power to appoint judges. It was divided. In fact, for much of the Constitutional Convention the Founding Fathers thought the Senate ought to appoint the judges and only at the last minute did they say the President, with the advice and consent of the Senate.

This President--regretfully, in many instances--has not consulted the Senate. The two Senators from Michigan--they happen to be of a different party than the President but we know they enjoy working with the other party--were not consulted. I know it can be done. We have done it in my State of New York. We don't have a single vacancy in either the district courts or the Second Circuit because finally, after I said I was not going to allow judges to go through unless I was consulted, the White House came and consulted, and there is a happy result. All the vacancies are filled. The judges tend to be conservative, but they are mainstream people. I may not agree with them on a whole lot of issues, but they have all gone forward. In Michigan we have had no consultation.

Today when I vote against these three nominations, I am not just backing up two Senators from Michigan; I am defending the Constitution. That is what all of us who vote this way will do. Because for the President to say on judges, it is my way or the highway, no compromise, is just not what the Founding Fathers intended. It is not good for America. It tends to put--whoever is President--extreme people on the bench instead of the moderate people we need.

I regret that we have come to vote on these judges, but I have no qualms that I will vote and recommend to my colleagues that we vote against all three.

I suggest the absence of a quorum.

I am very pleased to join Senators Dodd and Bennett and others in introducing a bill to extend the Terrorism Risk Insurance Act of 2002 for 2 years. I was actively engaged in the formulation of the act and this bill.

This is important, urgently needed legislation. There is a strong consensus among the affected parties that the act should be extended now. The act, without the extension, would expire at the end of 2005.

There is a mismatch. Unless TRIA is extended this year, it will be very difficult, if not impossible, to accurately price coverage on policies that extend into 2006. This will likely significantly reduce the availability of terrorism coverage. That lack of coverage could adversely affect the economy and the economic recovery.

TRIA is working. The General Accounting Office has found that: ``TRIA has improved the availability of terrorism insurance, especially for some high-risk policyholder.''

Fortunately, there have been no terrorism events on U.S. soil since 9/11. We all know that we are under a constant threat and TRIA continues to be necessary.

I noted on the Senate floor when TRIA was passed in 2002 that Government is going to have to play a larger role. TRIA establishes a public-private partnership on terrorism insurance. The private sector could not solve this problem alone in 2002, plain and simple, and it still cannot do so. We can quibble about how much and where that Federal role should be, but it is definitely needed.

This nonpartisan bill is essentially a 2-year extension of TRIA. The changes that are made are minor, they include: extending the ``make available'' provision; including group life insurance policies under the act; gradually adjusting the aggregate industry loss level used to determine mandatory recoupment; providing for a 1 year ``soft landing'' for policies written before December 31, 2007; and requiring a study addressing long-term solutions to terrorism exposure. These are worthwhile modifications.

The bottom line is a simple one, and that is, our No. 1 goal should be keeping the economy on track in this brave new post-9/11 world. If that means altering the balance between Government and private involvement, so be it.

TRIA has worked in New York City. It has translated into thousands of jobs and desperately needed economic activity for the city, the region, and the entire country. If G-D forbid, there is another terrorism catastrophe in this country I have no doubts that the Government will provide the needed aid. TRIA addresses part of that effort in an orderly manner. Our clear hope is that we will never again experience catastrophes that make this bill necessary.

I am hopeful that this bill can be quickly considered by the Banking Committee, passed by the Senate and House, and enacted into law this year.

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

Mr. President, I know my colleagues are waiting, so I will try to be brief. I have come to the floor to talk about a resolution Senator Cornyn and I are submitting on human trafficking. Before I get into that, I want to mention a couple of points in reference to my good friend from Arizona. One is a numerical question. He talked about courts of appeals

judges who have been approved under previous administrations and then mentioned the 107th Congress of this administration. It is sort of a bit of comparing not apples and oranges but apples and half apples.

I believe if you look at the number for the whole of President Bush's term, it goes up considerably. It might not be quite as high as some of the others, but it is much higher than the 53 percent Senator Kyl mentioned. Senator Kyl is a good friend of mine. I mentioned this to him while he was here.

But the second point I would make--I know my good colleague from Michigan, Carl Levin, will be bringing this up at some length--to me, the issue is not a tit-for-tat issue. They did a lot of wrongs previously when President Clinton was President and they did not let judges come through, and that created the vacancies in Michigan. But I have some sympathy for the Detroit News article Senator Kyl quoted that said there should not be tit for tat here.

Two wrongs don't make a right. It is sort of anomalous for those creating the wrong to say two wrongs don't make a right. But there is a far more important point, and that is this: The reason we have no approval of judges in Michigan is the President has ignored the part of the Constitution that talks about advise and consent. For the vacancies in Michigan, if the President sat down with the Michigan Senators, Mr. Levin and Ms. Stabenow--both reasonable people, people who have engaged in many bipartisan relationships themselves--and said: ``How do we work this out?'' it would have been worked out in the first 6 months of the President's term.

The idea that, A, previous Senates have created vacancies, and then the President says to the Senators of that State or to the Senators of this body: ``It's my way or no way. I'm picking the judges. You have no say,'' that is what has created the deadlock.

The Constitution calls for advice as well as consent. In States where there has been advice, it has worked. In my State of New York we have no vacancies. Why? Because the administration has consulted with me. My colleague Senator Clinton and I have nominated some judges to vacancies in New York. They have nominated the lion's share, but none of them would meet with this body's disapproval.

I am sure, if the President would simply sit down with Senator Levin and Senator Stabenow, and say: ``How do we work this out?'' it would be worked out, pardon the expression, in a New York minute. But they do not. They have an attitude: Here is what we want. You approve them. And if you don't approve every single one, then you are obstructionists.

As has been mentioned over and over again, of the 200 judges this body has dealt with, 6 have been disapproved and 194 have been approved. That is a darn good track record. I am a Yankee fan. The Yankees' percentage is up there around .700, .650 in terms of wins and losses. We are all proud of that. The President is doing a lot better than the Yankees.

The idea that ``It's my way or no way'' is not going to work. Furthermore, I would argue to my colleagues, it is not what the Founding Fathers wanted. If they wanted the President to appoint judges unilaterally, they would have said so in the Constitution. But they wanted the Senate to have a say.

I remind my colleagues, one of the first judges nominated by President Washington, John Rutledge of South Carolina, was rejected by the Senate because, of all things, of his views on the Jay treaty. And in that Senate were a good number of Founding Fathers, people who had actually written the Constitution, so clearly the Founding Fathers did not intend the Senate to be a rubberstamp.

Certainly they did not intend for the Senate to hold up a majority of judges, but when the President nominates people way out of the mainstream, when the President refuses to sit down and negotiate, these are the results. And I would guess--again, I defer to Senator Levin, who is on the floor--my view is, if the President or his counsel were to pick up the phone and say to Senator Levin: ``How do we work this out?'' it is still not too late, even as we enter the twilight of this Congress, to get it done.

That is all I will say on that matter. I will leave the rest to my colleague from Michigan.

(The remarks of Mr. Schumer pertaining to the submission of S. Res. 413 are printed in today's Record under ``Submitted Resolutions.'')

Mr. President, will my colleague yield?

First, I compliment my friend from Michigan for his steadfastness on this issue. Everyone knows the desire of the Senator and his colleague, Senator Stabenow from Michigan, to compromise. Over and over and over again, we on this side of the aisle have said: We don't expect the President to appoint judges that we agree with on most things. In fact, for 200 judges, the vast majority of us have voted for judges with whom we don't agree on many issues.

The point is, to blame these vacancies, as my friend from Arizona tried to do, on the Senators, when the President refuses to just pick up the telephone and call them and say, ``How do we work this out,'' is very unfair.

I ask my colleague, once again, is he willing--and is Senator Stabenow, to his knowledge, willing--to sit down with the White House and come up with a compromise to fill these vacancies and that these vacancies don't have to remain vacant except for almost the intransigence of the White House to say, ``If you don't do it our way, we are not doing it any way''? Am I wrong in that assumption?

Will my colleague yield further?

I thank the Senator for his steadfastness. He is hardly a person with a reputation of being unwilling to compromise and work things out. To my knowledge, he loves to do that kind of thing.

I will make one more point before yielding the floor. This involves my previous discussion with the Senator from Arizona, to corroborate and clarify the Record. There have been 35 court of appeals judges confirmed under President Bush. There were 65 in the 2 Clinton terms, twice as long. At least thus far, we are doing a better job confirming President Bush's court of appeals nominees than the previous Senates did in confirming President Clinton's. The numbers are fairly comparable, with President Bush doing a little bit better.

With that, I yield back to my colleague and tell him I fully support him in his quest for some degree of fairness and comity.

Madam President, I come to the floor to speak about a bipartisan measure; that is, the resolution Senator Cornyn and I are submitting on human trafficking. I thank my friend from Texas for working with me to address this growing problem that devastates the lives of so many.

Human trafficking is one of the most heinous crimes in our world today. Everyone knows it is a heinous crime to take a person, often a young woman, kidnap her, and put her into, basically, sexual servitude. It is an absolute abomination.

What I think most people are not aware of is the large number of people who are so enslaved. Our State Department estimates 800,000 people are trafficked across international borders each year. Some are for domestic slavery, some are for farm slavery, and many are for sexual servitude.

According to these State Department estimates, approximately three- quarters of those trafficked are female, and 70 percent of these women are trafficked for sexual exploitation. So a little quick math would indicate it is pretty close to 400,000 a year who are engaged in sexual exploitation, and you cannot be too relieved that the other half are in other kinds of slavery.

The victims are kidnapped or lured with false promises of money, and then thrown into slavery. Their captors subject their victims to forced prostitution. They are sexually assaulted sometimes 20 times a day. The lack of protection against HIV and AIDS means an effective death sentence for many sexual trafficking victims.

The victims of forced labor fare only slightly better.

In the vast majority of cases, they are worked to near death. They are routinely assaulted, sometimes killed. The truly sad fact is that at least half of the human trafficking victims are children, sometimes as young as 9 or 10 years old. The traffickers abuse the children, keep them in line by threatening to kill their parents or other family members if they don't comply. Beatings and rape are part of their everyday experience. Their lives are more horrific than many of us could even imagine. To think I am the father of two daughters, just think of your young children being put in this situation, and you can see the gravity and the horror of the situation.

Here is another thing I will bet most Americans are not aware of. We think maybe this is happening in Africa or Asia or Europe. No, it is also occurring

right here in the United States. Sixteen thousand people are trafficked into the United States every year. Most are forced into sexual slavery in our own country. I have read in newspapers in New York about how some of these rings have been exposed. It is often among immigrant groups, but we are not immune.

We have taken some important strides against this evil. In the year 2000, President Clinton signed into law the bipartisan Trafficking Victims Protection Act. This act gave law enforcement real tools to fight against sexual trafficking and the money to fund that fight. Last year I was proud to join Senator Brownback as the Democratic sponsor of the Trafficking Victims Protection Reauthorization Act of 2003.

Of course, with the death of Senator Wellstone, who had been such a leader on this issue, a void has been left. I am doing my best to at least fill a little bit of it. We added new tools to fight against these traffickers and refined the tools we already had created to better serve law enforcement. We have made some strides. The laws are working. But the bottom line is, there is still a whole lot more to be done.

I am pleased to join Senator Cornyn today in sponsoring this resolution. I thank him for his important work on this issue. The resolution recognizes the fact we need more awareness of this horrible crime, particularly at the State and local level. State and local law enforcement officers are often the first point of contact with victims in trafficking in the course of their normal work. This resolution puts the Senate on record supporting efforts to educate and empower State and local law enforcement officers in identifying trafficking victims. By raising awareness at the State and local level, we can better make use of the many tools we have in this fight.

T-visas are a vital part of the fight against sex trafficking. These visas enable victims of trafficking to testify against their traffickers and help put these criminals in jail. We have had the situation where we have the victims and they are sent home, and the people who did it go free. Currently, we issue less than 2 percent of the T-visas available, and yet we know that tens of thousands of victims go without T-visas every year, condemning them to lives of abuse and terror instead of the protection they deserve and that is available under the visa.

By educating and empowering State and local law enforcement officers to recognize trafficking crimes and raising awareness of this issue, we can identify more victims and get them the help they need and, most importantly, take their traffickers off the streets. We are also calling on the States to do a close examination of their current laws to see if they are adequate in the face of the human trafficking threat.

We must make sure we are prepared to deal with this crime at all levels. We must also make sure the victims of trafficking receive the same level of services regardless of what laws are used to prosecute their traffickers.

Far too often we find ourselves at odds with one another in the Senate. Our efforts on this issue show we can work together in a bipartisan way to protect some of the most endangered children in our world and put some of the most awful criminals behind bars. This resolution is an important step in the battle to save the lives of hundreds of thousands of women and children who are trafficked each year.

Along with Senator Cornyn, I urge my colleagues to support its immediate passage. Together, if we work hard, we can greatly and dramatically reduce this horrible crime.

I yield the floor.

Mr. President, I rise today to discuss the imminent release of the final report of the 9/11 Commission. The Commission's report will be the final product of a long and comprehensive process that has at times deeply touched the families of those who were lost on 9/11 and has questioned the ability of our Government to defend against a new terrorist threat.

As the Commission issues its report, the state of the Union on homeland security is not good enough. Are we better off than we were on 9/11, as my colleague from Texas has mentioned? Yes, we are. Are we doing everything we can to protect ourselves? Absolutely not. Are we putting the same energy in the homeland to defend ourselves that we are putting into the war overseas? No, unfortunately not.

Time and time again, on homeland security, we are not doing enough. And the view of the White House is that it takes a back seat to fighting the war on terror overseas. Dollars that are needed for so many projects are not

forthcoming in this administration's budget or from the Congress, for that matter. That is a bad thing and a sad thing for America.

That is why this report that the Commission is issuing is so important. It is my hope, it is my prayer, that it importunes us to do more so that another 9/11 will never happen.

First, I would like to address the Commission itself. They have done a remarkable job. This Commission, as we know, was created with a mandate of exploring how the United States became vulnerable to a terrorist attack as large and as complex as that attack which so hurt us on 9/11. The Commission was resisted by the White House and by some in this body. But it was the families that forced it to happen: the four brave widows from New Jersey who said they would not rest until there was a commission. Those families and many other families of the victims in New York, my State, were relentless in not only forcing a commission to occur, but in forcing it to be a bipartisan commission, a nonpolitical commission that had full power to get to the bottom of what happened.

I can tell you, having spoken to many of the family members, they only had one mission. They are Republicans and Democrats; they are conservatives, moderates, and liberals. Their mission was a simple one. Walking with holes in their hearts because their loved ones had been taken from us in such a cruel event, their mission was a generous one, I might say a noble one: that this never happen again. Their view, which I think America has accepted, is that the only way we can prevent a future 9/11 is to learn of the mistakes that were made before 9/11.

The Commission was led by two remarkably nonpartisan figures: Governor Thomas Kean, Republican of New Jersey; Congressman Lee Hamilton, Democrat of Indiana. They steered the Commission away from finger-pointing, away from blame, away from partisanship but, rather, toward ``just the facts, ma'am,'' as Jack Webb said on ``Dragnet.'' Just the facts is what they wanted to find out so we could then learn of the mistakes that were made--not to excoriate, not to blame, but, rather, to correct and make sure it does not happen again.

The Commission dutifully pursued this task, despite resistance from many quarters in Washington. It did not shirk from even the most troubling aspects of its investigation.

The final report is about to be released this week. It is important that every one of us, that every American, learn of its findings, and we make sure our Government, without delay, examines those recommendations and then acts to make us safer still.

There are a couple of things that have come out already about what the Commission wants. They have recommended there be a Cabinet level appointee of the President to be in charge of all intelligence. It makes eminent sense, in my judgment. We cannot even count the number of intelligence agencies there are. And so many of them are too interested in turf. One agency finds out something and does not tell another so they might gain a leg up. There is a lack of coordination, even the fact that their computers do not talk to one another. It all hurts every one of us in terms of our desire to be secure and make sure another terrorist attack does not occur.

By having one Cabinet officer in charge of all intelligence, with budgetary authority, that Cabinet officer can enforce a regime which will require all of the agencies to cooperate with one another.

There will also be some structural changes within the agencies. In the FBI, an agency I have been very interested in, I am hopeful the Commission will recommend something I know they considered, and I think may well recommend, which is there be a separate part of the FBI dealing with counterterrorism.

The FBI's mission in the past has always been to find out who did crimes and prosecute them. The FBI does a very good job of that. But counterterrorism is different. We have to prevent crimes. It requires a different mentality. It is my hope we will rearrange the FBI. Some have recommended a separate agency for counterintelligence. I think that may go too far. But to have a reorganization within the FBI makes a great deal of sense.

Now, these are a few of the recommendations that will come out. There are going to be many more. Let me just say, the tendency of some here in Washington, some in the White House, when they hear news they disagree with or that points to an error that was made, instead of responding on the merits and saying, Here is why you are wrong, or here is why we want to do it differently, they disparage the messenger. They call them not patriotic. They call them political. They call them partisan.

This Commission, if ever, is not partisan and is not political. We should listen to their recommendations, and I hope there is not delay. Some are going to say: Let's wait until next year on their clear-cut recommendations. If the rumors are correct, the Commission will be unanimous. All the Democrats and all the Republicans will have one set of recommendations. So, again, it is not partisan, and there is an equal number of each party on the Commission. We should not wait. To wait until next year--a new Congress, maybe a new President--will delay us. These recommendations should not be put in a political context and should not be looked at in light of the political calendar that is upon us. We should immediately move, in September, when we return, to enact these recommendations. We may choose to modify them. Perhaps the body will reject them.

There is a lot of talk that the Defense Department and the CIA will oppose having an overseer above them. We will have to debate that. I hope we listen to the Commission. But to delay would be delaying our safety.

So I hope and pray we will move quickly and move forward and not either kneecap the Commission--because already I saw some column by a very conservative gentleman who said: The Commission, forget about it. All this writer was interested in was saying the President did everything right.

Whether you are a Democrat or Republican, whether you are a liberal or a conservative, we know that neither this President nor prior Presidents of both parties did everything right or we would not have had a 9/11.

So, again, let us not put our defensive shields up and hunker down for a fight. Let us make this one of those rare moments of bipartisanship, as the Commission itself has, and adopt their recommendations.

Now, let me say, as somebody who cares a great deal about homeland security, there are a number of areas where we are not doing enough. I don't know if the Commission will address these, but I hope so. We have done a pretty good job on air security. Flying is a lot safer and less prone to terrorism today than before 9/11. But we have not done everything there. One big problem is shoulder-held missiles. We know terrorists have them. God forbid, they smuggle some of those into the United States and shoot down 5 or 10 planes at once in Boston, or New York, or Houston, or Seattle, or Denver, or Chicago. We are not doing enough there.

We are doing far too little on port security. The percentage of the big containers that come into our Pacific ports, Atlantic ports, and gulf coast ports that are inspected is too few. The technology has not been implemented as quickly as it might be.

On truck security and rail security, Madrid was a wake-up call. We are far behind what we should be doing.

The unfortunate problem is that the terrorists have access to the Internet just as we all do. They are on it diligently looking for where we are weak. If we strengthen air security, they will look to the ports. If we strengthen the ports, they will look to the rails. So we have to have a multifront war. We are not doing enough.

On so many of these issues, as somebody who comes from New York and still lives with the grief that so many of my constituents feel, I can tell you we are not doing close to enough. Oftentimes, it is not that we don't have the technology and not that we don't have the ability; it is that we don't put in the money that is needed. I think if you ask most Americans what their priorities are, homeland security would be at the top of the list. Unfortunately, we get a lot of talk and not much action.

Another place where we are way behind is how we give out our homeland security funds. To its credit, the first

year, the administration really allocated the money on the basis of need. My State of New York got about a third of the funds, which is probably right. But then they abandoned ship. Once Mitch Daniels left, who was head of OMB, a true conservative who didn't want to spend money, these homeland security funds became pork battle and they are spread thin.

I say to the Chair, I know everybody has some needs, but to have his State get, on a per capita basis, far more dollars than mine in terms of homeland security, I don't think seems right, much as I want to protect both. Over and over again, on homeland security funds, we have not allocated it to the places of greatest crisis. That, too, is a problem.

So the bottom line is this: I hope this report will be what it should be, a wake-up call--a wake-up call that, on intelligence, our agencies are too disparate, they don't talk to one another or coordinate with one another. They are not doing the job they should and we have to correct that. I hope it is a wake-up call that here at home on homeland security we are not doing enough. It is common knowledge that, as so many say, to win a basketball or a football game you need both a good offense and a good defense. We have an offense out there all right. I have been largely supportive of that offense. But we are not doing enough on the defense. You cannot win a game without a good defense. I hope it is a wake-up call on defense as well. I hope it is a wake-up call.

I hope the report will be comprehensive, and that it will talk about so many things--immigration, rail, port, truck security, and air security. It will talk about all of the things that we did wrong before 9/11. Again, instead of finger-pointing, instead of seeking blame, instead of ducking, let's hope this report importunes the Congress, importunes the White House to one of its finest hours in that we spend some time in September, after having had plenty of time to analyze the report, to implementing its recommendations--at least the ones the Congress sees fit. It would be unacceptable for us to just look at the report for a day and then do nothing. That would be a dereliction of our duty to our citizens to do what we are required to do, that which the Constitution requires us to do--protect the security of Americans.

I yield the floor.

Mr. President, I will be brief. I thank my colleague from Iowa. I don't want to get into a debate about the Energy bill right now. We have our differences there. The only point I would make is, without six Members on his side of the aisle, we never would have succeeded. It was not just this side of the aisle.

I definitely want to reduce energy dependence, as do most of my colleagues. The bill had virtually no conservation, which many of us are for. I am for both new production and conservation. The bill had no conservation, and, of course, there is the ``e'' word which is very good for Iowa but not so good for New York. I will not get into the ``e'' word issue here. But there are different ways to increase conservation.

In the views of many of us, this bill was not a bill that would have reduced energy dependence the way it should have. Certainly, it didn't get much bang for the buck. I don't want to get into a debate with my colleague. I know we all want to vote. I appreciate the sincerity and eloquence which he brings to all of the debates. I enjoy having them with him, but today we will not.

I rise reluctantly against the US-Australia Free Trade Agreement before us today, for one reason only. There have been other issues with this agreement. In my State, we are very concerned about dairy. But I think the people who put the agreement together were mindful of that. While the dairy farmers of New York State are not overwhelmingly pleased with the provisions in the agreement, they believe they have come a long way. I think the agreement does do some good for manufacturing export, and I care about that. But what bothers me is one provision in this agreement. It bothers me so that it leads me to vote against the agreement; that is, the provision dealing with the importation of drugs.

It has become clear in recent weeks that the pharmaceutical industry has not only done everything in its power to thwart drug reimportation legislation before this Congress, but now they have hijacked the trade agreement negotiation process as well. That practice has to end.

Given that we have fast-tracked, many of us, when we see an odious provision put into the agreement, have no choice but to vote it down and hope it will come back without that provision. Frankly, that provision has very little to do with the guts of the Australia Free Trade Agreement. Prescription drug reimportation is a policy that has gained more and more bipartisan support as this year has progressed. My guess is that if, say, the bill from the Senator from North Dakota would get a vote on the floor, it would pass. It would pass in a bipartisan way. That, of course, is because the cost of drugs is going through the roof, and it is harder and harder for our citizens to pay for these miracle drugs. They are great drugs. I salute the pharmaceutical industry for coming up with them.

But one of the great problems we face is that the research is borne not by the citizens of the world but only by the citizens of the United States, even though the drugs are sold throughout the world. We have to do something to change that.

But as usually happens these days, as a proconsumer idea such as reimportation gains more and more momentum and support, the pharmaceutical industry begins to see the writing on the wall, and they look for every way possible to prevent it from becoming reality.

Now it seems, of all things, the US-Australia Free Trade Agreement has become the perfect vehicle to begin the march to put the kibosh on importation.

It is no longer enough that this administration refuses to stand up to PhRMA and negotiate lower drug prices.

The Medicare prescription drug bill, now law, that we have before us, is a failure. It is not even being mentioned by the President in his campaign because they refuse to let Medicare negotiate with the pharmaceutical industry

for lower prices. That costs about $200 billion, and that means there was not enough money to create a good program. But that is not enough.

Now that we have come up with another way to deal with the high cost of drugs, reimportation, the administration actively, through trade agreements, is helping the big drug companies ensure that they can get the same exorbitant prices in every market around the globe, and at the same time putting up a barrier around our borders to prevent lower drug costs from coming in. That has gone too far.

The administration says it is unacceptable that foreign price controls leave American consumers paying most of the cost of pharmaceutical research and development--I couldn't agree more. That hits the nail on the head.

We have to relieve U.S. consumers of some of the burdens of the cost of research and development by making sure that other equally developed countries pay their fair share. But that is not what we are talking about with the US-Australia Free Trade Agreement. Absolutely not.

What the administration is doing is giving the drug companies the tools to raise prices in other countries while pushing policies that keep low drug costs out of this country.

Is that fair? Does that provide any relief to the American consumer? Absolutely not.

I have heard the argument that this provision doesn't have a practical effect because the Australian Government doesn't allow the exportation of its drugs anyway.

First of all, if you look closely at the way it is written, it isn't limited to restricting importation from Australia.

As they say in Shakespeare, there's the rub.

If they really were just concerned with Australia, they would say nothing in this provision would affect importation anywhere else. But that is not the case.

This proposal creates an obligation for the United States to pass laws that prohibit importation not just from Australia but from everywhere, including Canada.

If it truly doesn't have a practical effect, or if it is not reasonable to assume that Australia would hold us to our obligations-- who knows--for all we know, the Australian Government could make a deal with the pharmaceutical company to lower their prices--why is the provision in the agreement at all?

Why aren't pharmaceuticals at least exempted? Everyone knows what is going on in this Chamber about reimportation. Everyone knows what is going on in this country. In my State of New York, citizens from Buffalo, Rochester, the North Country, and even New York City get on buses and go for hours to buy drugs in Canada.

If this provision has no practical effect in this trade agreement, then its only purpose must be to make it more difficult to pass a drug importation bill. It can and might become precedential--we have it in Australia; we should put it elsewhere.

The provision was put in the Australia Free Trade Agreement to set a precedent, to lay the groundwork. The Industry Advisory Committee to the USTR on these issues has clearly stated this purpose. Their report states that ``each individual FTA should be viewed as setting a new baseline for future FTA/s''--that this should be setting a floor, not a ceiling.

If that is the case, that is bad news for the millions of Americans who must pay for prescription drugs and had hoped lower costs of imported drugs would prevail.

Simply put, this provision fortifies the administration's opposition to importation and makes the law that much harder to change. Beyond that, this trade agreement may even affect our ability to negotiate prices in the few programs in which the Federal Government still has some control.

The provision is nothing more than a backdoor opportunity to protect the big pharmaceutical companies' profits and keep drug prices high for U.S. consumers. I have had some talks with the heads of the pharmaceutical industries. Some of the more forward-looking progressive ones realize that something has to give; that the U.S. consumer cannot pay for the cost of research for drugs for the whole world; that the prices are getting so high that we have to do something; that the balance between the dollars of profit that are put into research versus the balance of dollars that are put into all kinds of salesmanship has to change. I hope those leaders in industry understand that putting this provision in this agreement undercuts that kind of view.

The nature of trade agreements is changing. They are not just about tariffs anymore. They are getting into other substantive policy issues which dictate the parameters for health care delivery around the world.

These are fundamental policy decisions with serious implications for access to affordable health care which can and will affect millions of people both overseas and, of course, here at home. Yet PhRMA is the only health care expert at the table for these negotiations. That has to end.

I also argue that adding provisions such as this, virtually extraneous provisions that come from someone else's agenda, and putting them into trade agreements hurts the argument for fast track. This is just what people who are opposing fast track said would happen. Here it is, a year later, it has.

There are all kinds of questions swirling about how this trade agreement may affect Medicare, Medicaid, the VA, and DOD programs, and to be honest, no one seems to be able to explain what its effects on these programs will be.

My view is we cannot, we must not wait until after these agreements are put together to consider their potential effects on U.S. policy. I warn my colleagues, vote for this and then you find out that you have locked yourself into something on drug policy that you never imagined. This Member is not going to do that. This Senator is not going to do that.

This provision can be stripped from the agreement and we can come back and pass it next week, next month. We cannot have it as an afterthought--something we are all scrambling to understand the day before the vote.

Frankly, drugs are not the same as tractors. There are huge public health implications to the decisions made by the USTR. It is frightening to think these decisions are being made without the input of a neutral public health advisory committee. We have to put an end to the practice of PhRMA inserting provisions into trade agreements that affect policy elsewhere. There must be someone at the table to protect access to affordable drugs and other health care in this country. The risks are too great to ignore.

For that reason, I will vote no on this agreement in the hopes we can strip out this odious provision and then move forward with the proposal which I will then support.

I ask unanimous consent that a related article from the New York Times be printed in the Record.

I yield the floor.

Mr. President, I want to follow up on what my colleague from Iowa has had to say. I thank him for his strength and leadership on this issue.

As was mentioned, it is a year ago that Robert Novak published a column outing a covert CIA agent. The next day I called for an investigation.

For about a month not much happened. Then, and I think the record should underscore this, George Tenet, head of the CIA, publicly and privately asked for an investigation, and one began.

I don't have any complaints with the investigation. I think both Mr. Comey and Prosecutor Fitzgerald have done a fine job. I have faith in what they are doing, at least from everything I have heard. But the bottom line is very simple. First, this was a dastardly crime. This is a crime of a serious nature committed by someone in the White House. We know that much. Unfortunately, the attitude of the White House has not been what it should be. There ought to be an attitude there that says this was a terrible crime. To reveal the name of an agent jeopardizes that agent's life and the lives of many others with whom they came in contact. There ought to be every effort to turn over every stone to find out who did this.

There is a lot of speculation it was done for vengeance, to get at Ambassador Wilson. It doesn't matter what the reason is, the bottom line is there is a rule of law in America, and this crime is a lot worse than a lot of crimes that we get prosecutions for. The bottom line is simple. I believe if the President wanted it to come out, and said, It doesn't matter where the chips fall, we are going to find out who did it and bring them to justice, it would have come out already as to who did it.

Instead, we first had stonewalling--no investigation. Now we have an investigation, but everyone is hiding behind the shield laws and other types of things that say this gets in the way of the sanctity of freedom of the press.

That is not true. If the President insisted that every person in the White House sign a statement--not just asked them to do it, insisted-- under oath, that they did or did not, and then released the journalists they might have talked to, we would know who did it.

Ultimately, as Harry Truman always reminded us, the buck stops with the President. This is lawbreaking. This is not just political intrigue, this is not just payback, this is lawbreaking of a serious crime. Right now, as we speak, we are trying to build up human intelligence, which fell too far in the CIA. Right now, as we speak, there are American men and women risking their lives in these undercover activities. They know that somebody who did the same has been put at risk, and there is no strong rush to find out who did it and punish them.

That hurts our intelligence gathering. It hurts our soldiers. It hurts the rule of law. On this first anniversary we make a plea to the President: It is not too late. Make every person who worked in the White House during the time of the leak sign a statement under oath either that they did or did not talk to them. If they will not sign it, they should not be in the White House anymore. This is too serious to treat as everyday politics.

I yield the floor.

Reserving the right to object, I ask unanimous consent to modify the request of my friend from Colorado that after the Senator from Texas speaks on the Hispanic convention for 10 minutes, the Senator from California and I be given an additional 15 minutes to talk about the renewal of the assault weapons ban.

Mr. President, I have no objection to the Senator from Texas speaking for 10 minutes. I ask unanimous consent that when the Senate resumes business at 2:15 p.m., at some point between 2:15 p.m. and 5 p.m. today, we be given 15 minutes to talk about this issue.

I thank the Chair.

I thank my colleague from California for her leadership and her eloquence on this issue. She has done a wonderful job, and I hope that her pleas to the White House and to the House are heeded.

We stand on the floor today debating an amendment to the Constitution for which there is already a statute that does the same thing. We are ignoring basic needs. Instead of debating this amendment, why aren't we debating homeland security? Last Friday there was a warning issued to all of us, a severe warning, yet the Homeland Security bill, despite the warning that was issued to us on Friday, languishes.

We are here today to bring up another important issue--people's lives and these kinds of weapons, which thankfully have been banned on our streets for the last 10 years and, woefully, may be back on our streets 2 months from today if we do nothing.

That is the bottom line. The assault weapons ban has been an amazing success. It is supported by the American people overwhelmingly. Yesterday a poll showed that 79 percent support renewal. Today a new poll showed that in the swing States, Midwestern and Southern States, where there are large numbers of gun owners, overwhelming majorities support the ban. Gun owners support the ban. Law enforcement supports the ban. The list that my colleague from California showed is lengthy and comprehensive.

So why wouldn't something that has saved lives, that has been so successful, that has helped bring down the crime rate not be brought up on the floor of the House and is in danger of lapsing? One simple word: Politics. Politics of a small few who seem to call the dance when it comes to dealing with issues like this Street Sweeper.

Point one is that these weapons are not made for hunting. They are not made for self-defense. They were designed by armies to kill a lot of people quickly. They are never used by good people, who certainly have a right to bear arms. In fact, recently al-Qaida told its membership in a training manual found by the U.S. military that terrorists should use America's weak gun laws to get serious weapons and to try to get assault weapons. Terrorists want these weapons, drug dealers want these weapons, criminals want these weapons. Police men and women do not want these weapons, hunters do not want these weapons, small store owners who carry a small sidearm for self-defense don't want these weapons.

Why do we have to be on the Senate floor pleading with the President and the House for renewal of a law that has been so successful? Again, one word: Politics. A small group of fanatical people somehow have an ideological mission that they must restore these weapons to our streets. They don't represent gun owners. They don't represent the North or the South or the East or the West. They represent their own misguided ideology. But the President, who is on the campaign trail talking about leadership, cowers and shakes before this small group of ideologues. He has said he is for the renewal of the assault weapons ban. But according to the House leadership, he has not mentioned once to them that he would like the bill to be on the floor of the House of Representatives. The Speaker of the House says that we need the President to get this going. The President says the House should do it. It is a classic Abbott and Costello routine, a shell game, a classic duck the consequences, or the worst aspects of politics.

The bottom line is that if George Bush wanted the assault weapons ban to be renewed, it would be. All he would have to do is pick up the phone once and call Speaker Hastert and say put it on the floor of the House; and on the floor of the House it would pass, just as it passed this body a few months ago when the Senator from California and I offered it. And then the President would sign it.

But the President thinks he can get away with this, that he can get away with this nasty little game; that he will keep happy his hard-core small number of supporters who believe these weapons should be on the streets, and he will not pay the price.

Mr. President, I cannot predict how our politics will work out in the next few months. But it is my guess that if this ban is not renewed, and AK-47s, Street Sweepers, and Uzis are back on our streets, starting 2 months from today, that the President will pay a political price for it. That is no solace to me. That is no solace to my colleague from California. We would much rather have this renewed, as everybody knows it should be.

No hunter, no gun owner has been hurt by the inability to carry an Uzi. Some criminals have been hurt, terrorists have been hurt, but no legitimate citizen who certainly has a right to bear arms. And I support the second amendment, but I don't support the view that it should be seen through a pi hole.

We make one last plea--and we have 13 legislative days left--to the President of these United States to step up to the plate, show real leadership, and ask that the assault weapons ban be put on the floor of the House of Representatives, and that it be renewed because it has been successful and good for just about everybody.

I ask unanimous consent to have several articles printed in the Record.

Mr. President, I ask to be recognized for 10 minutes.

Mr. President, I rise today to express my support for S. 2062, the Class Action Fairness Act. Until this morning, I was very hopeful we would finally have the opportunity to discuss this important issue and move the bill forward.

As is well known now, last fall I joined with my colleagues, the Senator from Connecticut, Mr. Dodd, and the Senator from Louisiana, Ms. Landrieu, to help craft a compromise that now constitutes the bill before us. Because I have worked long and hard to move this bill forward, I was very disappointed at the turn of events earlier today.

We have two strains going on here that are sort of colliding, and I do not think they should necessarily collide. One is the desire of a majority in this Chamber--62 at last count--on both sides of the aisle to move the class action bill forward, and that desire remains. That burns brightly in my breast. I think we should move this bill. There has been a lot of work put into it. There have been compromises along the road. It strikes a fair balance, and I will talk more about that in a minute.

We also have the workings of the Senate, and that always is grafted on top of whatever legislation we have. We all know the majority party is allowed to set the agenda, and next week, for instance, we are doing a constitutional amendment against gay marriage, which no one thinks will come close to the two-thirds vote, but it is the majority's right to set that agenda. That is fair. But just as it is the majority's right to set the agenda, it is the minority's right to offer amendments--some germane, some not--on whatever is before us. That is what has always kept the balance in this Chamber. The majority does not have complete control of what is on the agenda because of our nongermaneness rule. That is what distinguishes us more than anything else, at least procedurally, from the House of Representatives where the Rules Committee can block off all amendments, and the majority can have iron-tight control.

To me, this fits the Founding Fathers' basic conception of the Senate as the cooling saucer. When the majority has certain rights, it slow things down, there is no question about it.

That delay--delay is the wrong word--but that sort of more careful rendering of the process often makes better legislation. As we know, the Founding Fathers were afraid that legislation would move too quickly through the body, and the Senate embodies that.

This morning, I thought the offer of the Senator from South Dakota, Mr. Daschle, was extremely reasonable. He said let us do four or five nongermane amendments and then proceed to the

germane amendments. I do not recall if he said it on the Senate floor-- I did not hear his whole speech--but he has said to all of us on the Democratic side who want to move class action reform that we would not take hours and hours and days and days on each of the nongermane amendments; that the debate would be done rather quickly. Well, that is the minority's right. That is what it is all about.

When Senators Dodd, Landrieu, Carper, Kohl, and I, all of whom have worked so long and hard on this bill, met with the majority leader and others, we made it perfectly clear about the right of the minority to offer a limited number of nongermane amendments, not one but a number. When Senator Daschle said five, that seemed perfectly reasonable to us, and that was rejected by the majority leader. This puts us and the whole class action bill at risk.

Make no mistake about it, if we cannot work this out, we will not have a bill. Even if we do work it out, it is going to be difficult enough to get a bill. The kinds of abuses I have worried about and why I was willing to step forward and support this bill as modified will be lost.

So the first thing I will do today is make a plea to our majority leader, who I believe does operate in good faith--I realize he has a fractious caucus behind him and there are different opinions within that caucus, but I urge the majority leader to reconsider his rejection or objection to Senator Daschle's offer, which I thought was fair and reasonable. I know that my colleague from Connecticut, Senator Dodd, thinks that because I heard him speak on the floor earlier today. I think it would be seen as reasonable as well, if I am not speaking out of turn, by most of my colleagues on this side of the aisle, the 10, 11, or 12 of us who support class action reform.

So make no mistake about it, if the bill does not move forward, it is because the majority was unwilling to allow the Senate to proceed as usual, which is to allow some nongermane amendments.

For many on our side of the aisle--not me because I support it--this is a bitter pill to swallow. To then add insult to injury saying no nongermane amendments are allowed will be the straw that breaks the camel's back. Even allowing one nongermane amendment would not be enough.

So, again, I renew my plea to the majority leader--and I want to underscore, again, I met with him numerous times on this legislation, and I believe he is functioning in good faith and he wants a bill--to reconsider Senator Daschle's offer. It will not take much time. My guess is we can consider those amendments quickly.

Of the five that I have heard about, two are Republican amendments. We all heard the good Senator from Idaho who seems to want to be able to offer his amendment, an amendment that I support on the floor, and I think one of the others is from the Senator from Arizona, Mr. McCain. So it is hardly that the nongermane amendments are a Democratic wish list. If there are five, and two are Republican and three Democrat, that seems to be a pretty fair division.

I renew my plea to the majority leader to accept Senator Daschle's offer, which I think was fair and reasonable. If not, we risk having no bill, despite the efforts of many of us.

I want to discuss for a minute why I support this legislation. I have been concerned for some time that lawsuits have gotten out of control in America. I am not one of those who think lawsuits have no use. I think they have plenty of use and they are needed. Often those without power, it is their only bit of power to get redress. There is no question about it.

At a time when we are pulling back from governmental regulation--I would much prefer to see government regulate, whether it is pollution, health care, or other things, than have lawsuits do it. Lawsuits are sort of a hit-or-miss way. But the impetus for lawsuits increases as the impetus for government regulation decreases, and obviously in this administration it has.

Having said that, I still believe we need lawsuits, but they should be done fairly. One of my big beefs is that for some time now too many lawsuits have been filed in local State courts that have no connection to the plaintiff, the defendant, or the conduct at issue. This allows forum shopping. Forum shopping is something that undercuts the basic fairness of our justice system.

Certain courts in certain places--and people have talked about it earlier today--have become magnets for all kinds of lawsuits. Some of these lawsuits are meritorious; some are not meritorious. In either scenario, my strong belief is that if the case affects the Nation as a whole, it should be heard in Federal court. One should not have a judge in a small county make law for all of America. Maybe that judge will make good law, but the odds are that parochial concerns will be too strong in that type of decision.

For that reason, I agreed with my colleagues who support this bill that something needed to be done to rein in forum shopping and abusive class action litigation tactics. When consumers allege that a product sold nationwide to consumers in all 50 States is defective, it ought to be a Federal court to decide that case. Actually, my belief is that probably there should be Federal law to decide those kinds of cases, and eventually we will probably move in that direction, but at the very least it ought to be the Federal court.

This bill does not take away anyone's right to sue or his or her ability to bring a suit as a class action. I oppose such legislation. I would not want to eliminate class actions. Instead, the bill ensures that consumers, employees, and all citizens have an opportunity to have their class action heard in court, but it is a Federal court.

We worked hard to improve the bill. The agreement that we have struck on class action lawsuits preserves the ability of Americans to bring lawsuits in a fair and responsible way, while doing away with forum shopping and other abusive tactics. This is why the three of us, Senators Landrieu, Dodd, and myself, were willing to stick our necks out a little bit and work on this compromise with Senator Kohl, who has been a leader on this issue on the Judiciary Committee, and Senator Carper, who has championed the proposal for so long. We want to see the bill move forward.

The bottom line is that it will not unless the Democratic leader--and I want to salute the Democratic leader. He does not like this.

I ask unanimous consent for an additional 3 minutes.

I salute our Democratic leader. I know, because he has expressed it to me in very clear terms, how much he dislikes this bill. Instead of trying to delay, he has come up with a reasonable proposal.

As I said, the bill is a bitter pill for many to swallow. They have a different view on class action lawsuits than I do or my good friend from California, who just came into the Chamber, but they are willing to do it because they know there is a majority of 61 or 62 who basically support this proposal.

So the bottom line, again, is the Senator from South Dakota has made a reasonable proposal. He is not offering dilatory tactics, and I hope that proposal will be accepted.

I have not been a Member of this body as long as many of my colleagues, but in my 6 years, I have come to appreciate that the Senate is designed to be a deliberative body. Sometimes the Senate lives up to this grand tradition of debate and process very well, but at other times, and that is what it looks like is happening up to now today, we fail. We have to let the deliberative process of the Senate take its course if the Class Action Fairness Act is to become law.

Mr. President, I yield the remainder of my time and yield the floor.

Mr. President, I am not sure I will take my entire 7\1/ 2\ minutes, but I do wish to speak for a minute regarding this nomination.

Let me say before we begin that judging a potential judge is not an easy question. The question many of us grapple with is, Would this judge follow the law or would this judge impose his or her own views instead of the law? That is a difficult question for most nominees. I think both sides of the aisle think that way.

Senator Hatch said a few years ago:

I believe the Senate can and should do what it can to

ascertain the jurisprudential views of a nominee, that a

nominee will bring to the bench, in order to prevent the

confirmation of those who are likely to become judicial

activists.

Activists go both ways. You can be an activist and want to move the clock way ahead or you can be an activist and want to move the clock way back. If you want to move the body politic further to the left or further to the right, then jurisprudence would dictate. In my judgment, if you use that standard, it is not very difficult to come to the conclusion that Mr. Holmes does not deserve to be on the Federal bench.

It is true that when we evaluate candidacies of judges--at least some of us on this side; I for one--the fact they are district court nominees rather than court of appeals nominees means I give them a little extra room because they have less say and it is not an appellate court. But I think that Holmes is so far over, one of the most far over we have seen, that even though he is a district court judge, he did not deserve nomination, and he does not deserve approval by this body.

Mr. Holmes clearly has been an ardent and passionate advocate for causes in which he genuinely believes. I respect that advocacy. But some of the rhetoric he has used, some of the arguments he has advanced should give one real pause--they sure give me real pause--as to who cares about the impartial enforcement of the rule of law.

Mr. Holmes said that our Nation's record on abortion is comparable to our Nation's record on slavery. Perhaps even more disturbingly on this count, he said that rape leads to pregnancy about as often as snow falls on Miami. That last comment isn't about choice or abortion. It is offensive, it is disturbing, and it shows a pattern of thought. If it were a total aberration, then one might say, well, it is a mistake. But it wasn't.

According to the weather almanacs we have consulted, it snowed once in Miami in the last 100 years. According to a study published by the American Journal of Obstetrics and Gynecology, over 32,000 women a year become pregnant as a result of rape or incest. I would say to Mr. Holmes, those 32,000 women a year are not a myth. If you were looking at the facts, not what you want to believe because of your deeply held views but the facts, you wouldn't have said that. And certainly you wouldn't have said it casually without doing some research. These 32,000 women are not red herrings. They are real women in real pain, making traumatic decisions about whether to give birth to their tormentor's child.

Unfortunately, that remark may be the most egregious but it is hardly isolated. He said that it is a woman's duty to subordinate herself to her husband and to place herself under the authority of the man. You can see, I hope, why we might be concerned that he is insufficiently attuned to women's rights.

I know the President is going to go tomorrow to Michigan to speak on the issue of judicial nominees. I would like him to tell all the women in the audience what his nominee said about women and their rights. Let's see if he will talk about that tomorrow.

My guess is that 99 percent of the women would be aghast that he said that--whether they are Democrats, Republicans, liberals, or conservatives. I asked Mr. Holmes in written questions whether he was concerned that, for example, a woman advancing a battered woman's defense against her husband would lack confidence in his impartiality. He said he doesn't see why anything he has written would justify any concern that he could not be impartial.

Not only does Mr. Holmes not disavow his assertion that women are bound to subordinate themselves to men, he doesn't see why women should be troubled by this. To paraphrase Sir Arthur Conan Doyle, ``It is elementary, Mr. Holmes.'' It is pretty basic stuff. This is not a great epistemological argument. It is very simple why women could be offended. If you cannot see it, you should not be on the bench. If I were a woman in a dispute with a man, and my case was assigned to Mr. Holmes, I would be worried that Mr. Holmes could not even see why I had these concerns. That is troubling.

There is a lot more to be worried about when it comes to the Holmes nomination. In his comments, which have already been printed in the Record, just over and over again he defended and endorsed Booker T. Washington's view that slavery was a consequence of divine providence, designed to teach white people how to be more Christ-like. Is the President going to mention that when he goes to Michigan? See what people think of that one. He said of all the cases in history, he would want to have argued the creation case. It is right at the top of the list. I don't know why he said that, since John Scopes was convicted. I guess Mr. Holmes thinks he could have done a better job teaching the evolutionary theory in the public schools. More egregious, in not any of these instances, with maybe the exception of the first, has he disavowed them; he stands behind them. These are not slips of the tongue. This is a man caught, when you look at his writing, in almost a time warp. This man probably doesn't even want to turn the clock back to the 1930s or 1890s but somewhere way back in the 1600s.

Holmes said he believes he possesses sufficient self-transcendence-- his words--to be able to set aside his views and judge cases impartially. I don't think it is enough to get up and just say: I will follow the law.

I don't mean to be flip, but it is just not that easy.

In conclusion, if moderation is a criteria in choosing judges--and it is one of mine--Mr. Holmes abjectly fails the test. I urge that he be defeated.

Mr. President, I rise today in support of the tradition of line-item funding for cancer research programs in the Department of Defense, DOD, appropriations bill. This practice has been abandoned in the fiscal year 2005 legislation before us now, and I fear that this could do great damage to the advances in cancer treatment that our scientists are working so hard to achieve every day.

The DOD Peer-Reviewed Research Programs provide funding for critical, life-saving research on breast cancer, prostate cancer, and ovarian cancer. Each of these is a devastating illness that challenges hundreds of thousands of new patients and their families every year. The Peer- Reviewed Research Programs are essential to bringing these families hope and new opportunities in cancer treatments.

The prostate cancer research program uses an innovative grants structure that brings scientists and consumers together to make key policy decisions about prostate cancer research. Since its inception 8 years ago, this far-reaching, influential program has literally changed the way prostate cancer research is done. It has become a model that other research programs have sought to replicate.

In recent years, the DOD breast cancer program funded groundbreaking research, such as the discovery of the drug Herceptin, which prolongs the lives of women with a particularly aggressive type of advanced breast cancer. This drug could not have been developed without research that was funded in part by the DOD breast cancer research program.

Like its counterparts for prostate cancer and breast cancer, the Ovarian Cancer Research Project fosters collaborative efforts and long- term institutional commitments to ovarian cancer research focusing on prevention and early detection, which are key to the development of a sustained commitment to ovarian cancer research.

Not only am I deeply disturbed by the cuts to these programs in the Senate bill, but it is my belief that given the Department of Defense's proven track record in conducting effective, efficient research to combat cancers and find new cures, the Department's efforts should instead be expanded to include desperately-needed research on other forms of the disease, including kidney cancer.

For a disease that has received very little research funding to date, kidney cancer affects a surprisingly large number of people. In 2003, 36,000 new cases were diagnosed, an increase of 12 percent over the previous year, while more than 12,000 individuals died of the disease. Supplementing current kidney cancer research funding with additional money from the Department of Defense would be a significant step toward providing meaningful treatments for kidney cancer patients.

My colleagues on both sides of the aisle have shown broad support for these programs in the past, urging the Senate to continue its support of each individual program. Many of us signed letters requesting that each program continue to receive at least the same amount of funding it received last year, which would have been consistent with the bill passed earlier this week by the House of Representatives.

The House language is not ideal. It funds each of the three Peer- Reviewed Research Programs at last year's levels, ignoring inflation and the increased cost of research. However, the House provision is far superior to a Senate version that forces cancer research programs to compete for a decreased amount of funding.

As the Department of Defense Appropriations Act for Fiscal Year 2005 goes to conference, I urge my colleagues to support the language passed in the House and preserve the integrity of each of these critical Peer- Reviewed Research Programs.

(At the request of Mr. Daschle, the following statement was ordered to be printed in the Record.)

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

Mr. President, I would like to acknowledge Senator Warner and Senator Levin for their efforts on this legislation, which is vital to the men and women of our military and our national security. At this time, I, along with my colleague Senator Clinton, would like to engage Senators Warner and Levin in a colloquy regarding the needs of employees who worked in Department of Energy, DOE, and DOE-contractor facilities on atomic weapons-related production in New York and throughout the United States.

I thank my esteemed colleagues, Mr. Warner and Mr. Levin, for recognizing the common plight among sick workers throughout our great Nation. In my home State of New York, thousands of nuclear workers labored for decades during the cold war in hazardous conditions at DOE and contractor facilities unaware of the health risks. These workers helped to create the huge nuclear arsenal that served as a deterrent to the Soviet Union during the cold war, but many paid a high price in terms of their health. It is now our obligation to assist them in all possible ways, so that their sacrifices do not go unrecognized.

I agree, and hope that when the Bond-Harkin amendment is discussed in conference, the Senators from Virginia and Michigan will take into consideration the workers in New York and throughout the country who share a similar set of circumstances to those workers in Iowa and Missouri. In particular, I would ask that they look at how the special exposure cohort issue can be addressed in the most equitable way possible, and contemplate options that would provide for equitable access to the special exposure cohort for New York's workers.

Madam President, I thank my colleagues for this debate. The bottom line here to me is simple. That is, I must disagree with my good friend from Utah. I think transparency is to be preferred. Maybe it should not be in all instances but that ought to be the presumption and there ought to be strong argument before any transparency is not done.

Why is transparency important? I will tell you why: Because it makes better law. It makes better rules. The whole foundation of our Government has been based on openness--open debate, open discussion. When that happens, we end up with better laws. Time and time again throughout the over 200-year history of this Republic, when things are done in secret, it leads to trouble.

This is a very delicate issue. There is no question about it. Obviously, we are in a new world, in a new situation. I don't think absolutes always govern in these kinds of situations. That is for sure. I am not sure exactly where the line is to be drawn. I don't think anyone is. But I am certain of one thing and that is you will draw the line a lot better when there is open debate and open discussion. After all, we are talking about the place where liberty and security clash.

The beauty of our system of government is that it is able to handle clashing values such as this in an extremely successful way, and has been almost certainly or almost universally for all the years of the Republic. Particularly the Founding Fathers, who debated these issues over and over again, wanted transparency when they were debating. That is why there is separation of powers. That is one of the reasons the whole system was set up with a legislative body and an executive branch. If, indeed, the Founding Fathers thought this all should be done in the executive branch behind closed doors, we would have had a totally different system.

Yet what we have found in this Justice Department all too often, in this administration all too often, when the vital issues of liberty versus security should be decided, there is an aversion to debate. There is a preference for doing this in secret, in the dark, behind closed doors. On issue after issue after issue, when that has been done, a bad result occurred.

My colleague from Utah seems quite certain what happened at Abu Ghraib and other places. He may be the only one in this Chamber who is. I don't know how far the chain of command went. I don't know which memos exist and don't exist and what they say and which were dispositive. I have real doubts that it was the noncommissioned officers at the bottom of the chain who were the only ones who had anything to do with this, but who knows? Who knows? We are not going to know anything until we get these memos.

If they have things that should be classified, let those be redacted. If there are certain things that would damage the security of our soldiers, of our country, let those be redacted.

But I doubt even my colleague from Utah, who stated that no one in this Chamber feels we should not have transparency and debate--I think we mistake two things. There are the difficulties and practicalities of living in this real world, this post-9/11 world, and I have spoken about that at the hearing and everywhere else. There is the leap in logic, the incorrect logic, that says because those issues are difficult they should be decided in the dark, in secret. The two don't follow. In fact, I would argue the opposite follows. The more difficult the issue, the more dangerous it is to either liberty or security or to both, as in this case it may be, the more we need openness, the more we need discussion.

Again, if this were the first time that this Justice Department had decided to deal with terribly sensitive and difficult issues in secret I don't think there would be such a brouhaha in this Chamber or in the country. But it is a pattern that happens over and over and over again. Our Attorney General has come to testify before our Judiciary Committee twice since his ascension to that high office. When we ask questions, we routinely get no answer, or answers that do not deal with the questions. There is almost a mistrust of open debate, a mistrust of the legislative body, a mistrust that the American people ultimately in their wisdom will come to the right conclusion.

It is almost a sort of ``We know best we can't trust you to know anything'' type attitude. I am surprised to see so many of my colleagues defending that attitude.

Again, let's not mistake where we come down on the substance of this issue, where there will be variation--my colleague from Illinois and my colleague from Utah had different views--with the need for openness, the need for transparency, the need for debate, and the faith that certainly George Washington and Thomas Jefferson and James Madison and Alexander Hamilton had, that we should have as well, and that is that open debate will lead to the right conclusion. That is democracy. It is faith in the people and ultimately their ability to make the right decisions after open, fair debate, after both sides are presented.

That faith has been sadly lacking by the Attorney General and, I regret to say, in good part by this administration. So we come tonight, trying to force the issue. We believe we are living up to our constitutional responsibilities. We believe that if the Founding Fathers were looking down on this Chamber they would say: You are doing the right thing to get these documents and make them public, to have an open debate.

I hope and pray some of my colleagues on the other side of the aisle will see this.

When Attorney General Ashcroft came before our committee and didn't claim executive privilege and didn't claim what he was talking about was classified, but said he would refuse to answer the committee anyway, that is not what this Chamber is all about, or these hearings are all about, or this Government is all about. That is why when that has happened in the past, there have been discussions of contempt of Congress. We wish to avoid those kinds of confrontations. We want to come to an honest discussion.

Everyone will admit there were problems. My colleague from Utah said

that. Well, do you think those problems were sui generis? I would argue those problems could well have resulted because of a tendency for secrecy, or because of the aversion to open debate. For all we know, there were contradictory memos floating around the Department of Justice and floating around the Department of Defense. For all we know, majors, captains, and colonels who had to interpret these things on the ground were totally confused. We should find out all of this.

Again, to my colleagues, I hope we will agree to the Leahy amendment; I hope we will agree to the Reid amendment to the Leahy amendment; we will get to the bottom of this and come up with a policy in this difficult world and difficult position that is satisfactory, or at least the best solution where there may be no solution that satisfies everybody.

I yield the floor.