Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, at least two times in the last couple of months I have come to the floor to tell my colleagues about some work I am doing on investigation of waste, fraud, and abuse in the Defense Department and primarily to focus them on the work of the Inspector General's Office in regard to how they do audits. So I come to the floor today to renew my call for better audit reports.

As a Senator dedicated to watchdogging the taxpayers' money, audits are a primary instrument in my toolbox. They are like a hammer and a wrench. They are the tools of the trade. But like other Members of Congress conducting oversight, I can't do audits. We don't have staff for that, so we must rely on the inspectors general of the various departments to do the independent audits of the work of those departments. So today I speak about the Defense Department inspector general.

The audit should be the inspector general's primary weapon for rooting out fraud, waste, and theft. Audits should be the tip of their spear, and that spear should have a very sharp point. The mere possibility of audit should have the fraudsters--people who commit fraud--quaking in their boots, but that is not the way it is, at least not at the Defense Department.

The audit weapon belonging to the Defense Department's inspector general is not as effective as it should be. This problem is not entirely the inspector general's own doing. The broken Defense Department accounting system is also to blame. It is incapable of generating accurate and complete finance and accounting data. When the books are in shambles, as they are, then there are no audit trails to follow, and following the money is how we get to the bottom of things when it comes to waste, fraud, abuse, and mismanagement. Of course, that makes the auditor's job doubly difficult. So the auditors need to adjust the audit strategy to meet the challenge that there is not a very good financial management system within the Defense Department.

As a watchdog, degraded audit capabilities give me serious heartburn. It puts the taxpayers' money in harm's way. When we have unreliable accounting data coupled with ineffective auditing, theft and waste can thrive undetected. Those concerns are the driving force behind my ongoing audit oversight review.

Starting in January of 2009, I began receiving anonymous letters from whistleblowers. They alleged gross mismanagement in the audit office. In response, my staff initiated an in-depth oversight review. It focused on audit reporting by that Inspector General's Office.

On September 7, 2010, I issued my first report. It evaluated 113 audit reports issued in fiscal year 2009. That study determined that those audits, which cost the taxpayers about $100 million, were not on target. I offered 12 recommendations for getting the audit process back on track.

Inspector General Heddell responded to my report in a very positive and constructive way. He promised to ``transform the audit organization.'' The newly appointed deputy for auditing, Mr. Dan Blair, produced a roadmap pointing the way forward. He, too, promised reform and transformation and the creation of a ``world-class oversight organization.'' All of this, of course, was music to my ears. All signals were very encouraging. But the big question before us now is this: When will the promised reforms begin to pop up on the radar screen? And that radar screen is our further reading of additional audits as they come out this fiscal year and into the future. When will we see sustained improvement in audit quality?

To establish a solid baseline for assessing the highly touted transformation plan, my staff took another snapshot of recent audits. My latest oversight review is best characterized as a report card, and it was issued on June 1 of this year. Each of the 113 unclassified reports published in fiscal year 2010 was reviewed, evaluated, and graded. After each report was graded, all the scores for each report on each rating category were added up and averaged. This created a composite score for each of the 113 reports.

Although 15 top-quality audits are highlighted in the report card, the overall score for all 113 was D-minus. That is low, I know. Maybe the score should have been a little higher. Obviously, the grading system isn't perfect. It may need some fine-tuning, and we are working on that. But I still believe it provides a rough measure of audit quality.

Clearly, none of the 2010 reports reflected any reforms that Inspector General Heddell put in place in December of 2010 because all those reports were published 3 months before the reforms went into place before October 1, 2010. That was a good 3 months before those reforms were approved.

Shortly after my report card was issued, Inspector General Heddell pounced on it. He objected to the low score. He complained that it did not adequately reflect $4.2 billion in what he calls ``achieved monetary benefits'' identified in the 2010 audits.

To address Mr. Heddell's concerns, I had my staff ask the audit office to prepare an information paper on the reported savings. That document was provided to me on June 20. I call it a ``crosswalk.'' It takes me to the exact page in each report where savings are discussed and identified. This document lists $4.2 billion in ``identified potential monetary benefits'' and $4.2 billion in ``collections.'' These alleged savings were uncovered in 19 reports, including one classified report we didn't look at.

After reviewing the crosswalk, I concluded that Inspector General Heddell

had a legitimate gripe about the report card. The report card should have included a section on savings. The first time around, we did not give sufficient credit for those accomplishments. As a practical matter, we gave those reports only partial credit for pinpointing waste. I say partial credit because six of those reports were given top scores in my report card, so they did get some credit--just not enough credit.

In order to fully assess Mr. Heddell's complaints, I directed my staff to reassess the scoring process for all 18 unclassified audits. In rescoring the reports, we asked ourselves key questions such as, Was the audit objective aligned with the inspector general's core mission? Did contract audits connect all the dots in the cycle of transactions? Did they match contract requirements with payments? Did the audits answer the key oversight question, which is, Did the government receive what it ordered at an agreed-upon price and schedule? Did the audit verify the exact dollar amount of alleged fraud and waste using primary source payment records? I do not have time to go into this, but the use of primary source payment records is very important if we are going to follow the money, and following the money is where we determine whether there is fraud, waste, and abuse.

Other key questions we asked were: Were the recommendations tough and appropriate? Did they recommend accountability for waste and mismanagement? Did they propose workable remedies for recovering improper payments? How quickly were the audits completed?

The answers to these questions take us right to the heart and the soul of an audit--any audit, in any department. They are a good yardstick for measuring audit quality.

This is my bottom line: Were the audits hard-hitting, down-in-the- trenches audits that produced results or were they softball audits with no redeeming value?

After completing the review, my staff upped the overall score of those 18 reports from a D-plus to a solid C.

Excellence in several reporting categories pushed the scores up as follows: All reports were highly relevant and were aligned with the core mission. They detected and reported $4 billion in waste. Most reports offered reasonable recommendations for recovering unauthorized payments.

Poor performance in other categories pulled scores down as follows: Most reports did not verify exact dollar amounts of waste using primary source payment records. I wish to emphasize again the necessity of using primary source pay records. Follow the money. Most dollar amounts for alleged savings were taken from untested Army budget documents. Most did not offer meaningful recommendations for holding responsible officials accountable for waste and mismanagement. Of course, in government, if people are not held responsible for what they do and accountable for what they do, then, of course, we do not see change in culture. So accountability and responsibility and holding people responsible is very important if we are going to bring changes. Then, lastly, I would say, most reports were old and stale, having taken far too long to complete.

I wish to point this out by saying, the single biggest factor that keeps dragging the scores down into the pits is timeliness or lack of it and, in most cases, the lack of it. The Audit Office continues to publish old, stale reports. Of these 18 reports we reviewed and on which I am reporting to you, they took an average of 17 months to complete. Eight took a total of 168 months to complete, and none of these numbers includes the 4 to 6 months it takes to get an audit started. So we are looking at a minimum of 2 years to complete top- quality audits.

Under my scoring system, audits completed in 6 months or less earn a grade A, those completed in 12 months earn a C, and those that take more than 15 months get an F.

These 18 reports, of course, as we can see from my comments, were over the top. So they earned a grade of F for taking so long to finish.

I have said this before, and I wish to say it again. The power of top-quality audit work is greatly diminished by stale information. Out- of-date audits have little impact--with the passage of time, records disappear, particularly financial records--because following the money is a very important part of good auditing. People retire and move on. Money cannot be recovered and no one can be held accountable, and without people being held accountable, we do not change the culture of organizations.

The new Deputy for Auditing, Mr. Blair, is part of the problem. He has not set any goals for audit completion times. I hope he will do that. Reasonable goals need to be established.

I would like to summarize. In my summarization, I would point out that I wish to talk about the $4 billion that was potential waste and was saved. These 18 reports clearly put the spotlight on $4 billion of potential waste. The auditors detected it. They reported it. They did exactly what they are supposed to do. That is a major accomplishment worthy of recognition and praise. So they ferreted out waste. They presumably saved the money.

But what happened to the $4 billion? Busting $4 billion in waste did not produce $4 billion in savings. The savings touted by Inspector General Heddell were lost, in a sense.

Then there is a technical lingo around government: The money got reprogrammed. In plain English, that means it got put to better use but not necessarily saved. As seen through the eyes of this skeptical watchdog, all the loose change got scooped up and shoveled out the backdoor and into the jaws of the Pentagon spending machine on some other program. That machine is known to have an insatiable appetite for money.

The disappearance of the savings is part semantics. The word ``waste'' is not in the audit lexicon. Sprinkling waste with perfume and calling it savings does not make it savings. Perhaps if the auditors started calling it what it is--waste--it might be easier to reach the Promised Land, but they never got there. Mr. President, 99.9 percent of the $4 billion got spent. Only in government could we spend all the money and still claim savings.

I yield the floor.

I suggest the absence of a quorum.

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

Mr. President, I don't intend to use but 1 minute because I spoke yesterday on this nomination, but I would urge my colleagues to support the nomination of Paul A. Engelmayer to be district judge. He is very well qualified, and I would encourage a ``yes'' vote.

I yield back the remainder of my time.

I ask for the yeas and nays.

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

Mr. President, today the Senate will vote on the nomination of Paul Engelmayer to be United States District Judge for the Southern District of New York and Ramona Villagomez Manglona to be Judge for the District Court for the Northern Mariana Islands. The seat to which Mr. Engelmayer is being considered has been deemed a judicial emergency. With this vote, we will have confirmed 29 article III judicial nominees. Eighteen have been for such judicial emergencies. Ms. Manglona's confirmation vote marks the second article IV judicial confirmation this year. I am pleased we are moving forward with filling two more vacancies.

We continue to make great progress in processing President Obama's judicial nominees. As of today, the Senate has confirmed 60 percent of President Obama's nominees since the beginning of his Presidency. That is not including the two Supreme Court Justices nominated by President Obama. As I am sure my colleagues recall, those nominations consumed a considerable amount of time in the committee and on the Senate floor.

During this Congress, the Judiciary Committee has held hearings on more than 72 percent of the President's nominees. Another hearing is scheduled to take place this Wednesday. During the comparable time period for President Bush, only 64 percent of President Bush's nominees had hearings by this time. We have also reported 64 percent of the judicial nominees, compared to only 56 percent of President Bush's nominees.

Let me say just a few words about Mr. Engelmayer and then Judge Manglona. Mr. Engelmayer graduated summa cum laude from Harvard University in 1983. He then graduated magna cum laude from Harvard Law School in 1987. Following law school, the nominee clerked for Judge Patricia Wald on the U.S. Court of Appeals for the District of Columbia and then for Justice Thurgood Marshall of the Supreme Court of the United States.

After his clerkships, Mr. Engelmayer joined the U.S. Attorney's Office for the Southern District of New York as an assistant U.S. attorney. In 1994, he became an assistant to the Solicitor General of the United States. In 2000, the nominee entered private practice with Wilmer Hale and was later named Partner-in-Charge of the New York office.

The ABA Standing Committee on the Federal Judiciary has given Mr. Engelmayer a unanimous ``Well Qualified'' rating. I support this nomination and congratulate him on his professional accomplishments.

Now I have a few words about Judge Manglona. Judge Manglona received her bachelor off arts degree from the University of California at Berkeley in 1990. In 1996, she graduated from the University of New Mexico School of Law. Following law school, the nominee clerked for the Superior Court of the Commonwealth of the Northern Mariana Islands. She then worked in the Attorney General's Office and in 2002, the Governor appointed her attorney general for the Northern Mariana Islands. In 2003, she was appointed to serve as an associate judge for the Northern Mariana Islands Superior Court. During her time on the superior court, she has also served as a judge pro tem on the Guam Superior Court and the Guam Supreme Court.

The ABA Standing Committee on the Federal Judiciary has rated Judge Manglona unanimously ``Qualified.'' I also support this nomination and congratulate her on her professional accomplishments.

I yield the floor.

Madam President, I come to the Senate floor to tell my colleagues why I support the issue of cap, cut, and balance.

On August 2, our Nation will be unable to borrow money to meet our current obligations. We have known for a while this was coming. Our annual deficits have been near $1.5 trillion for the past 2 years and are going to be that large this year as well.

With deficits of that size, no one should be surprised that we have hit the debt ceiling, which raises the question then: What has the President offered to confront this looming crisis?

I ask that question because people expect a President to lead, and we have had an executive budget and an executive budget law since I think the 1920s putting the President in the lead on these issues.

So I ask another question: What has the Senate Democratic majority done to address our deficit crisis? Because it is the responsibility of the majority to present a budget to the Congress of the United States, and we have not had a budget resolution for more than 800 days now. So I think you can draw the conclusion, whether it is the President of the United States or the Senate majority, the answer is simple: Not much has been done.

Last year, President Obama virtually ignored his own deficit reduction commission. Remember, in February 2010 the President appointed a lot of people to a deficit reduction commission to give us a plan of what could be done about this fiscal situation that has happened so dramatically in the last 2 years, and there was no recognition in December when they reported that the President said that is the thing that should be done in this country.

This year, he did offer a budget, as he has to do under the budget law, February 14 of this year. That budget would increase spending, increase taxes, and still add trillions to our debt.

Everybody would think that a Democratic President suggesting a budget would be well-received in a body that is controlled by the same political party. But that budget he presented in February was so ill- conceived and out of touch that it was defeated here in the Senate by a vote of 97-0.

Let me emphasize that by saying not a single Senator of either party voted for President Obama's budget. Of course, it is very obvious that every member of the President's party said no to the President's budget.

For most of this year, President Obama said we should raise the debt ceiling without taking any measures to address our long-term deficits and debt. It was the position of this administration that Congress should simply rubberstamp another debt ceiling hike with no plan in place to reduce our deficits.

That plan was voted on in the House and was soundly rejected there as well. All of the Republicans and nearly half of the Democrats in the other body voted against increasing the debt ceiling without deficit reduction.

So it seems to me we have a lot of bipartisan agreement, when people say we have no bipartisan cooperation, that with the Senate's vote on the President's budget and in the other body with nearly half of the Democrats opposing a debt ceiling without deficit reduction, that there is a clear understanding in a bipartisan way in the Senate that the President's budget spends too much, taxes too much, and leaves too much debt. In the House of Representatives, there is a strong feeling that is bipartisan that if you are going to have a debt ceiling increase, there needs to be deficit reduction. So don't ever say there is not bipartisan agreement, because it has been expressed in votes in both Houses.

The President then gave a budget speech in April, and I presume he recognized the inadequacy of his budget presented to Congress in February. He outlined a budget framework that would reduce that budget that was presented in February by $4 trillion over 12 years. So the President very quickly in about 60 days came to the conclusion that his budget was out of step with what people of even his own political party felt was necessary so he could find $4 trillion to trim out of it.

But do you know what he hasn't done yet that a President ought to do in an environment where we have an executive budget process? He still hasn't presented the details of that budget.

The Director of the Congressional Budget Office, Dr. Elmendorf--as we all know, a person who is a devoted public servant, doing what is intellectually right all the time when he tries to help us decide how much money taxes are going to bring in or how much is going to be spent on a particular policy of Congress--was asked if he could estimate the budget impact of this new framework that came with the President's speech on April 13, in which he came to the conclusion you ought to spend $4 trillion less than what he thought he could spend on Valentine's Day. That is not necessarily a Valentine's gift in his February budget.

This is what the CBO Director said in regard to that April 13 speech. He said:

We don't estimate speeches. We need much more specificity

than was provided in that speech for us to do our analysis.

But, so far, the President has not provided those specifics. We have heard a lot from the White House about the need to come up with a plan, when the President has not presented a plan. The White House itself has never offered a single debt ceiling proposal for voters, and the Senate Democratic leadership has also seriously shirked its responsibilities because, as I said once before today, they have not put forward a budget in more than 800 days, even though the law requires that they do it.

Every family in America who works hard and sacrifices to pay their bills ought to be ashamed of the failure of the Senate to offer a budget, in violation of the law. In sharp contrast, Members of the House fulfilled their responsibility and passed a budget earlier this year. So the very same majority party in this body that has not presented a budget for 800 days has done nothing in regard to the House budget but demagog.

While they can't find time to compile their own budget, they sure found time to make speeches that are derogatory about the House budget. The House budget, then, obviously means the House of Representatives did their responsibility under the law by presenting a budget and adopting a budget.

While Members on the other side come to the floor to oppose and demagog the bill I am speaking about--the cut, cap, and balance bill-- they have offered no plan of their own. While there is now a framework from the so-called Gang of 6, their plan also lacks any specificity. Perhaps that is the political strategy the other side has chosen. Voters and the American people

cannot be upset with the position you have taken if you have not taken a position. It is like a rule for political leaders: You never get in trouble for a speech you do not give. Perhaps this strategy may be politically expedient, but it is going to drive our economy and our country off the cliff.

The strategy of placing a higher priority on the next election rather than the economic and fiscal situation facing our country is how we got into this mess. Based on the lack of proposals put forth by the other side, one could assume they are perfectly content borrowing 40 cents for every dollar we spend. Are they pleased with the deficits of $1.5 trillion annually? We could conclude they must be because they have not offered a plan to reduce the deficits.

On top of that, they have argued for tax increases. They must believe we have a revenue problem. According to their argument, the American people are not handing over enough of their money to satisfy the needs of Washington to spend. I am not sure we can ever tax high enough to satisfy the attitude in Congress to spend. In fact, if somebody would tell me how much money they really need from the American people to satisfy their appetite to spend, and I could get a limit on it and it were a hard limit, I might even vote for it because I would like to have people say they are finally satisfied, that government ought to be so big but no bigger. But I never get those sort of broad statements in the Congress. So I have come to the conclusion that we cannot raise taxes high enough to satisfy the appetite to spend.

But because we are borrowing money, the economy is not growing, and jobs are not being created because Washington is spending too much. Of course, the other side believes the economy is not growing because we are not spending enough from Congress.

Remember, just a few years ago they passed the $800 billion so-called stimulus as a means to keep unemployment below 8 percent. That was early February 2009. That is when Speaker Pelosi said: Yes, we wrote the bill. We won the election.

So employment shot above 8 percent right away. It got up over 10 percent. It is at 9.3 percent. So the promise of a $830 billion stimulus keeping unemployment under 8 percent just did not work. What did they do under those circumstances? They borrowed money and spent it on government programs.

Where is the U.S. economy today? I will say it again: 9.2 percent unemployment, more than 14 million Americans out of work, and now the national debt is more than $14.3 trillion. This experiment called the stimulus proved that government spending does not stimulate private sector job growth. Do you know why? Government consumes wealth; government does not create wealth. The only jobs created by government are government jobs. They don't add value to the economy; they are a cost to the economy.

Do we have to have government? Yes. Do we have to have government employees? Of course we have to have government employees. But to think we can hire more government employees and create wealth is false. The fact is, we are the hole we are in because of our spending problems, not because we do not have enough revenue coming in.

Look at this historically. Spending has averaged about 20 percent of our gross national product. That is probably over four or five decades. Today and in recent years spending has grown to 25 percent of the gross national product. This level of spending cannot be sustained, particularly when revenue has historically been around 18 percent of GDP. This very day it is less than 18 percent because the economy is not growing, but a 50-year average is 18 percent of GDP.

For my colleagues who think we can reduce deficits by increasing taxes, they need to understand it just does not work. Professor Vedder of Ohio University has studied tax increases and spending for more than two decades. In the late 1980s he coauthored, with Lowell Galloway also of Ohio University, a research paper for a committee of Congress called the Joint Economic Committee that found that every new dollar of new taxes led to more than $1 of new spending by the Congress.

In other words, raise taxes $1 and you think we would go to the bottom line and reduce the deficit? But, no, $1 coming in, we spend more than $1, so we make the deficit worse. Professor Vedder has now updated his study. Specifically he found:

Over the entire post World War II era through 2009, each

dollar of new tax revenue was associated with $1.17 of new

spending.

History proves tax increases result in spending increases. We know increasing taxes is not, then, going to reduce the deficit. Instead of going to the bottom line, tax increases are a license for Washington to spend even more.

History also shows that tax increases do not increase revenue. Everybody thinks if we raise the marginal tax rates we will bring in more revenue. But the taxpayers, workers, and investors of this country are smarter than Members of Congress are who believe that.

Regardless of the rate, over the past 40 years--I am sorry, I don't have a chart with me. I had a chart with me a week ago that demonstrated this. But if you listen closely, you will get the message of the chart.

Regardless of the rate of taxation, over the past 40 years revenue has averaged, as I said before, about 18 percent of gross domestic product. Higher tax rates just provide incentives for taxpayers to invest and earn money in ways that reduce their tax liability. We cannot tax our way out of this problem. We have a spending problem, not a revenue problem. That is why I am supporting the only plan that has been put forth to address our deficit and debt problem: the cut, cap, and balance plan passed by the House with the bipartisan support of 234 Members.

This plan is the only plan offered to cut spending in the near term. We need to halt and reverse the trend of the last 2 years when government spending increased by 22 percent, not even counting the failed stimulus program of another $830 billion. We cannot increase expenditures 22 percent when the growth of the economy is about 2 percent. It just does not add up. That is how we get into trouble, and that is how we have increased a 50-year average of the national debt from about 35 percent of gross national product to--after 2 years, it is now 65 percent, and it is on a path to go over 90 percent.

We know where Greece is right now when they are over 100 percent. It is going to lead to failure. We are on that path right now, and we have to preempt that.

This bill before us also will impose budget caps to get our spending down to a manageable level compared to our gross domestic product.

Finally, it would impose a balanced budget amendment to our Constitution, similar to what--I don't know whether it is 46 States or 49 States--but most States have a constitutional amendment requiring a balanced budget. You know what. It works.

We have to stop to think, if a State that is as liberal as New York, if they can elect a liberal Democratic Governor, and if he can cut, cut, cut, to live within that constitutional requirement of a balanced budget, it ought to be something we can do in Washington DC. It is a discipline that works in the States. It is a discipline that we need through our Constitution so when we take an oath to uphold the Constitution, the requirement of a balanced budget is something we swear to, and we will deliver on our promise to the American people. It only makes sense to impose a requirement that we live within our means. Washington proves again and again that it needs this kind of discipline.

I say to my colleagues: If you do not support this plan, then offer your own plan. You know the debt limit must be increased, but you also know we must take action to reduce the future levels of deficits and begin to bring our debt down. Where is your plan to do that? Where is your budget resolution that has not been presented in the last 800 or more days to the Senate, violating the budget law? How will you meet the responsibilities, then, of being elected to this office where you take an oath to uphold the laws and the Constitution of the United States?

The trajectory of our debt is alarming. It will soon undermine our economy and our economic growth. If we do nothing, our children and grandchildren will have fewer economic opportunities than we have had. So this is not just an economic issue, this is not just a fiscal issue, this is a moral issue of whether this generation, my

generation and people who are even younger than me but spending a lot of money, ought to live high on the hog and leave it to young people to pick up the bill.

Without a plan to put our fiscal situation on a better path, the next generations will have a lower quality of life than the one we have experienced. We cannot let that happen. We must take action to correct our course.

I urge my colleagues to support the cut, cap, and balance plan.

I yield the floor.

Mr. President, I ask that the order for the quorum call be suspended.

Mr. President, the Supreme Court earlier this month issued a very important decision which bothered me--a decision that I think shows that dissenters in this decision are judicial activists. It is important not only on the merits of the case but because it shows how this country is only one vote away from unprecedented judicial activism.

The Obama administration is encouraging this judicial activism. The Obama administration is taking legal positions that threaten the role of Congress as a coequal branch of our government. Those positions challenge the separation of power that is designed to protect the freedom of Americans, and even the right of people to govern themselves, which is the basis of representative government and the purpose of the Congress.

The United States happens to be a party to the Vienna Convention on Consular Relations. This treaty gives rights to the citizens of countries who are parties to that treaty to have access to their country's consular officials if they are arrested abroad. There are some foreign nationals in this country who were sentenced to death without those rights being respected. All of these death sentences appear to be valid under the American Constitution.

The story is complicated, but in 2008 the Supreme Court ruled that failure to comply with the treaty was not an obstacle to the execution of a foreign national who had been sentenced to death. This was the case even if the President ordered a State to allow the criminal to challenge his sentence in light of the treaty, and even if the criminal obtained a judgment from the International Court of Justice that his conviction violated international law. The Court said that Congress could pass legislation to make the treaty apply to people on death row who had not received consular access. We in the Congress have never passed such a law.

Now to the Supreme Court case that concerns me in light of this background on the consular relations treaty. In 1994, Humberto Leal Garcia, a Mexican national, kidnapped a 16-year-old girl, raped her, and bludgeoned her to death. He did not ask for access to the Mexican consul, and he did not receive access. He did not challenge his failure to receive consular access during his trial. Only after he brought State habeas corpus litigation did he raise this claim; and even then, he did not raise consular notification as an issue in his first habeas corpus petition.

Mr. Leal did obtain a ruling from the International Court of Justice that his conviction and sentence were obtained in violation of international law. The International Court of Justice ordered that he was entitled under national law to receive another review of his conviction and sentence, regardless of whether habeas law allowed him to raise such an issue. But that ruling is obviously not binding on American courts, as no country in the world, including the country of Mexico, enforces International Court of Justice rulings as part of its domestic law.

As his execution date approached, Mr. Leal sought a stay in the Supreme Court. Since Mr. Leal received a fair trial under American law, and there was no question concerning his guilt, his request should have been rejected, and rejected unanimously. But that is not what happened. He was executed, but the Supreme Court's ruling was shockingly close--5 to 4.

The Department of Justice, through the Solicitor General, Donald Verrilli, asked the Supreme Court to grant the stay. Its brief was truly astonishing. It did not argue that there was any doubt Mr. Leal was guilty. It did not say Mr. Leal had been harmed in any way by the Vienna Convention violation. It cited no case that provided an example where a stay had been issued in similar circumstances. It raised no arguments for the stay that were based on American law, because American law did not support a stay.

Instead, the Department of Justice relied on international law and made policy arguments. It argued that Mr. Leal's execution would create negative effects on America's international relations. It argued that his execution would violate our international legal obligations, and it argued that the mere introduction of legislation--understand this, just introducing a bill and at the same time having the support of the Obama administration--

should allow the Court to issue a stay to preserve its jurisdiction if time were given to allow the bill to be enacted. This is the position that worries me and threatens the role of Congress as a coequal branch of government.

Everyone knows bills are not laws. Bills are what we introduce. If we pass bills, they become law. The Founding Fathers made it very difficult to enact laws. There are two Houses of Congress, and each has to pass the same version of the bill and the President has to sign that bill or a supermajority of both Houses must override a veto.

This was done to protect the rights of the American people. Only if a bill passes through a specified process can a bill become a law. A court following the rule of law can only enforce what actually becomes a law. There may be times when an agency might pay attention to a bill that is introduced, but that is an agency. In the case of courts, a court should only apply what has actually become law--in other words, a bill passing both Houses of Congress, signed by the President--not pay attention to a bill that has just been introduced.

The Solicitor General's brief relied on a bill, not a law. The name of the bill is the Consular Notification Compliance Act. That bill would retroactively allow prisoners on death row whose Vienna Convention rights were violated yet another bite at the apple. If the bill passed, they would be able to delay their death sentences--lawful sentences under American law--with another round of judicial review for compliance with what? International law. Although the bill is strongly supported by the Obama administration, it has not passed, so it is not law, it is a bill. It is going to have a hearing soon, but it is not scheduled to be placed on the committee agenda for markup. It is clear there is no chance this Congress would pass a law that retroactively allowed foreign nationals who face lawful death penalties another round of judicial review based upon the Vienna Convention.

Congress simply will not pass a bill that gives Federal judges another opportunity to display their dislikes of the death penalty by delaying cases for no good reason. Only Congress can legislate. But the Obama administration argued in the Court that the Supreme Court should grant a stay, even though Congress has not legislated, simply because the executive branch strongly supported the bill, which theoretically-- but only theoretically--could pass at some future time.

Do you know what disturbs me? Four Justices agreed with this outlandish position. There is absolutely no precedent for the position. These dissenters accepted an Obama position that was made out of whole cloth. When courts rule based on law, we have the rule of law. When they rule based upon policy preferences, we have judicial activism, not the rule of law.

The Obama administration asked for a stay based upon policy preferences, based on international law, and based on that administration's view that a bill it supports takes overwhelming precedence over a considered decision of Congress not to pass that legislation. Four Justices--just one short of a majority--were willing to disregard American law in favor of international law, and also in favor of policy implications, and also based upon a bill being introduced in Congress. This is not only inconsistent with the rule of law, it is a threat to American democracy. How extreme.

The American people, through their elected representatives, have enacted the death penalty and established limits on habeas corpus petitions that impede executions. The people's representatives--those of us in the Congress--also declined to enact a bill to implement the Vienna Convention. Notwithstanding that decision of the people's representatives, this administration and four Justices would have used an unpassed bill to delay a death sentence. How extreme. They would have had the courts not allow the preferences of the American people as expressed through their elected representatives but, instead, their own policy preferences. How extreme. But under our system of government, the results of the democratic process are entitled to prevail, unless the Constitution--and only the Constitution--clearly provides otherwise.

The position of the Obama administration and the four dissenting Justices also is harmful to American democracy in yet another way. If the American people dislike what Congress is doing, it is very simple. In the next election, they can elect new Representatives and Senators. They can ask that Federal judicial nominees be stopped or that laws be passed that overturn judicial decisions made under Federal law. But what are the American people to do if judges make decisions based on the views of foreign governments and international tribunals that are contrary to our very own law? What if judicial rulings are designed to enforce decisions of the International Court of Justice, rulings that are not binding as Federal law? Americans cannot influence the views of foreign governments or the rulings of international tribunals.

Had the Obama administration and the four dissenting Justices prevailed, the American people would have lost a part of the right to govern themselves. That right would have been replaced with ``obedience without recourse'' to foreign powers over whom our people exercise no voice. That is not the system the Founding Fathers bequeathed us.

The question of whether courts should apply American law or foreign law is of great concern to me and to other members of the Judiciary Committee, and maybe to a lot of Senators who aren't on that committee. Those of us on the committee have thought about this specific question long before this recent Leal case that has come, I guess within the last 3 weeks. And I have asked judicial and administration nominees about these very issues at their confirmation hearings.

For instance, just a few months ago, I posed a question to the nominee for Solicitor General, Mr. Verrilli, about an amicus brief he had filed on behalf of foreign nationals who had been sentenced to death. In that brief, Mr. Verrilli argued not that the prisoner's constitutional rights had been violated, but that ``[i]t is in the interests of the United States and the world community that the legal standards of the United States should reflect and be informed by international human rights.''

I asked Mr. Verrilli, were he confirmed, whether there were any circumstances in which he would argue before the Supreme Court in a death penalty case that the Court be ``informed by international rights?'' He responded:

I will adhere to the view that foreign law, including

international human rights law, has no authoritative force in

interpreting the Constitution and laws of the United States,

except in those rare instances where federal statutes

incorporate or make international and/or foreign court

decisions binding legal authority.

Responding to my question on the difference between international human rights and our own constitutional rights, Mr. Verrilli stated:

International human rights are set forth in international

treaties, conventions and customary international law. They

are not binding and enforceable in the United States unless

Congress has made them so.

The Leal case does not involve a Federal statute of the type Mr. Verrilli cited, nor does it concern any international standards binding and enforceable in the United States because Congress made them so. I believe Mr. Verrilli's brief as Solicitor General is very inconsistent with what he related during his confirmation hearing.

The brief relied on international human rights, and its only reference to American law was this bill that I have referred to--not a law, a bill--which, under our constitutional system, is as different from a law as night is from day.

I would also note that Mr. Verrilli stated during his confirmation hearing:

If the Attorney General [or the President] directed that I

take a position . . . one that I believe to be an

indefensible view of the law, I would not lend my name or

that of the Office of Solicitor General to carrying out the

order, and would certainly resign rather than carry out the

order.

Mr. Verrilli obviously does not believe that reliance solely on international law and a bill is an indefensible view of the law. I disagree with him on that point.

Similarly, during her confirmation hearing, Justice Sotomayor was asked about the application of foreign or American law. She was one of these dissenters. She stated:

I do not believe foreign law should be used to determine

the result under constitutional

law or American law, except where American law directs.

In the Leal case, foreign law should not have been used to resolve the case because American law did not direct that foreign law apply.

When Justice Kagan appeared for her confirmation hearing, she stated that in deciding cases, ``you're looking at law all the way down, not your political preferences, not your personal preferences.''

However, the law in the Leal case is clear. Executive branch policy arguments and unenacted bills are not law.

I am not saying the Solicitor General or these Justices who dissented lied at their confirmation hearings or made a mockery of the confirmation process, but Judiciary Committee members foresaw cases such as Leal and asked the nominees to address the role of foreign law in constitutional cases. I believe, although they do not, what these individuals wrote in the Leal case is inconsistent with what they said at the time of their confirmation hearings.

Finally, one of these issues could arise again in a different legal context. Like the death penalty cases, there is ongoing litigation challenging the constitutionality of the Defense of Marriage Act. Like the death penalty cases, the Defense of Marriage Act is the subject of a bill. The particular bill--called the Respect for Marriage Act-- notwithstanding its Orwellian name, would repeal the Defense of Marriage Act.

The Department of Justice has already decided not only to defend the Defense of Marriage Act but now argues the Defense of Marriage Act is unconstitutional. The Department, in light of its Leal brief, may be considering making the implausible argument the courts should strike down the Defense of Marriage Act simply because a bill has been introduced to repeal it--the same argument used in the Leal case before the Supreme Court.

You might well argue the introduction of a bill that is strongly supported by the administration is enough to lead courts to believe the Congress has already repealed the law anyway, so why not have the Court simply declare the law unconstitutional. The Department should not make such an argument, and I can tell the courts that, like the bill to make the Vienna Convention apply retroactively to convicted criminal defendants who face the death penalty, this Congress will not--and I repeat, will not--pass the Respect for Marriage Act and courts should not consider its introduction in resolving DOMA's constitutionality.

Mr. President, obviously, I am disappointed the Obama administration has advanced policy arguments rather than legal arguments in the Supreme Court. How ridiculous it is to try to convince the Supreme Court that just because a bill is introduced they ought to make a decision based upon that bill being introduced.

In the absence of arguments based on American law, it should not have asked the Court to rule based on policy. Rather, it should have either argued based on American law--even if American law did not conform to its view of desirable policy--or it should have declined to participate in the case.

I am also disappointed that four Supreme Court Justices voted to advance their views of policy rather than law, which is the essence of judicial activism. We were--or you could say we are--only one vote away from a Supreme Court majority that would have applied policy preferences in favor of international law rather than American constitutional law. We were only one vote away from a Supreme Court majority that would have usurped the separation of powers by considering a bill to be the same as a law that Congress passed. And we were only one vote away from a Supreme Court majority that would have applied the ruling of an international tribunal over which Americans have no say rather than a body--as in this Congress of the United States--that is representative of and answers only to the American people.

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

Madam President, now you hear the other side of the story. It is a privilege for me to come to the floor of the Senate to speak on the issue of the bill before us, which is a sense-of-the- Senate bill, which means basically the Senate is debating something that is not shooting with real bullets. In other words, it just expresses the sense of the Senate, it does not change any law, so it doesn't amount to much.

As the President and congressional leaders continue to debate how best to reduce the deficit, it seems my friends on the other side of the aisle and my President continue to demand a tax increase as part of any deal. For sure, any discussion of reducing the deficit should include a discussion of tax reform, but tax reform is different from tax increases. You heard the previous speaker speak about Republican plans that deal with reducing expenditures, and that is right, because we believe the deficit problem in this country is not because the American people are undertaxed, it is because Congress and Washington overspend. However, what is being discussed with this bill currently is tax increases on targeted groups, supposedly because they can afford it. This is not tax reform.

Professor Vedder of Ohio University has studied tax increases and spending for more than two decades. In the late 1980s he coauthored with Lowell Galloway, also of Ohio University, a research paper for the Congressional Joint Economic Committee. That study found that every new dollar of new taxes led to more than $1 of new spending by the Congress. It did not reduce the deficit then--you raise a dollar, you increase the deficit. I will be a little more specific.

Working with Stephen Moore of the Wall Street Journal, Professor Vedder updated that research last year and came to the same result. Specifically, Moore and Vedder found:

Over the entire post-World War II era, through the year

2009, each dollar of new tax revenue was associated with

$1.17 in new spending.

That is like a dog chasing its tail. Very few dogs catch them, so when you raise a dollar here, common sense might dictate it goes to the bottom line, but it doesn't work out that way. It actually increases the deficit because Congress believes we have a new dollar coming in, let's spend $1.17.

History proves tax increases result in spending increases. We know that increasing taxes is not going to reduce the deficit. History also shows that tax increases do not increase revenues. That is probably contrary to most people's common sense, but I have a chart here that I think demonstrates this very clearly. I will be somewhat repetitive because I want to leave my remarks and go to this chart, and I will refer to it again.

What this chart basically shows is that over a long period of time, going back to World War II to the present, all the taxes coming into the Federal Government have been roughly 18.2 percent of gross national product, but pretty much even-steven across the board. Sometimes it is up a little bit, sometimes down a little bit, but for 50 or more years it is averaging about 18.2 percent of gross national product.

What this chart also shows is--contrary to what you believe, that if you raise taxes you are going to bring in more revenue, and if you reduce taxes you are going to bring in less revenue--that is not true.

That gets to this issue of taxing the wealthy. It gets to the issue of raising taxes on anybody. From World War II until Jack Kennedy, President Jack Kennedy, we had 90 percent marginal tax rates. Then from President Kennedy to President Reagan, we had 70 percent marginal tax rates. Then in the last half of the Reagan administration and up until 1986 it was reduced to 50 percent, under Reagan's administration. Then Reagan had another tax bill and it was reduced to 30 percent. Then of course President Bush the dad made this promise in the campaign:

Read my lips, no new taxes.

But he didn't keep his promise so the taxes went back up to about 40 percent for a period of time until you get to a period when Bush the son comes into office and the marginal tax rate is reduced to where it is now, 35 percent.

But whether you have high marginal tax rates or low marginal tax rates, you get about the same amount of revenue. I am going to be repetitive on that point but it is very important that you understand that.

History shows that tax increases do not increase revenues. The chart here shows that revenue as a percentage of gross domestic product hovers around 20 percent as far back as post-World War II. I said in my off-the-cuff remarks it averaged out about 18.2 percent.

This chart also shows where you have high and low marginal tax rates over those same years. During the last years of World War II, we had a 94-percent tax rate. Then from 1950 through 1963, it was 90 percent, as this chart shows, and under President Kennedy--and I want to emphasize that he was a Democrat--he was smart enough to reduce marginal tax rates to incentivize entrepreneurship. He reduced the marginal tax rates to 70 percent. They stayed around 70 percent until President Reagan brought it down to 50 percent.

Let me say at this point, I gave President Reagan credit for it, but I was a brandnew Member of the Senate Finance Committee in 1981 and we had some very brave Democrats on that committee who believed that 70 percent was too high and it was going to promote entrepreneurship more if you reduced it to 50 percent. President Reagan gets credit for it. I don't think any Republican on the Senate Finance Committee could take credit for it because we would have been accused, as we have just been accused, of wanting to reduce taxes on wealthy people, so thank God there were a lot of smart, intellectually honest Democrats on the Senate Finance Committee in 1981, who said the tax ought to be reduced to 50 percent. Well, then it went down to 30 percent when we reduced marginal tax rates further during the Reagan administration. Then, as I said before, the first President Bush reneged on his promise to not raise taxes, and the marginal tax rates went back up to 40 percent and stayed there until the tax relief enacted under the second President Bush. During all of these tax increases and decreases, the amount of revenue as a percentage of GDP stayed roughly flat, with a 50-year average of 18.2 percent.

So everybody thinks that if you raise the marginal tax rates, you are going to bring in more revenue--seemingly common sense but not true because the taxpayers, the workers in America, the investors in this country that create jobs are smarter than we are, but we don't think they are smarter than we are. And we have had 93 percent marginal tax rates, 70 percent, 50 percent, 30 percent, back to 40 percent, now 35 percent. Regardless of that rate, we get roughly the same amount of revenue. Higher tax rates just provide incentives for taxpayers to invest and earn money in ways that result in the least amount of taxes paid or you might say it this way: Some people just say to themselves that they are not going to work hard because why should I work so darn hard if I am going to send the money to Washington for people in Congress to spend and waste? In other words, taxpayers have decided they are going to give us politicians in Washington just so much money to spend, and it comes out about right here.

We ought to have some principles of taxation that we abide by, and I abide by this principle that 18 percent of the gross domestic product of our country is good enough for the government to collect and to spend. That leaves 82 percent in the pockets of taxpayers for them to decide how to spend. When you send money to Washington with 535 of us deciding how to spend it, it doesn't do as much economic good or turn over as much in the economy and create jobs as it would if it was left in the pockets of the 130-some million taxpayers individually to decide how to spend it.

This benchmark of 18 percent of gross domestic product is good, and it has been consistent throughout recent history. It is a principle we should keep in mind while we debate Tax Code changes.

This level of taxation--another reason I say it is justified is it has not been harmful to the economy, as higher tax rates such as we find in Europe are harmful to the economy--much higher tax rates than we have in this country--and it seems to be a level of taxation that there has not been a great deal of revolt by the taxpayers of America against.

There is another principle I would like to have you keep in mind; that is, What is the purpose of tax law? Those who support bills such as the one we have here currently debated, this meaningless bill, assume that the key objective for our Federal Government through the Federal income tax laws should be to ensure that income is distributed equally throughout the country as opposed to government taxing for the purposes of government but not for the purposes of the redistribution of wealth. In other words, the authors of this bill believe the Federal Government is the best judge of how your income should be spent.

Bills such as the one we are considering today assume--I say it for a second time--assume that 535 Members of Congress know how to best spend the resources of this country, and presently that is about 18 percent, but that is not enough. Well, actually, they are spending more than 18 percent because the expenditures of this country add up to about 25 percent of the gross national product from the Federal Government because we borrow 42 cents out of every dollar we are spending today.

It assumes that government creates wealth and should therefore spread it around the way they do in Europe. In fact, government doesn't create wealth; government consumes wealth. Only workers and investors, laborers, and people who provide capital and, in turn, people who use their brain to invent and create, is what creates wealth. Yet, as history shows, there is evidence that tax increases lead to more spending--and I quoted Professor Vedder--and that revenues as a percentage of gross domestic product pretty much stay the same regardless, even if the marginal tax rates are very, very high.

It would be one thing for me to vote for a tax increase if it went to the bottom line: reducing the deficit. It is quite another thing to vote for a tax increase that just allows more spending and raises the deficit instead of getting the deficit down.

The resolution before us now in the Senate requires us to concede ``that any agreement to reduce the deficit should require that those earning more than $1,000,000 per year make a meaningful contribution to the deficit reduction effort.'' The bill does not state that such a ``meaningful contribution'' would be accomplished through tax increases, but how else would the authors of this bill and the taxpayers intend to or make such a contribution?

Let me make clear that I do not support this bill and will vote no on its adoption. However, I think it is a good thing we are debating such an issue. It is clear that those who support this bill believe those earning more than $1 million per year are not paying their fair share. Note, however, that just last year, these very same people believed that a single person who earned $200,000 or a married couple who earned $250,000 weren't paying their fair share.

In evaluating whether people are paying their fair share, experts frequently look at whether the proposal retains or improves the progressivity of our tax system.

Critics of lower tax rates continue to attempt to use distribution tables to show that tax relief proposals disproportionately benefit upper income taxpayers. We keep hearing that the rich are getting richer while the poor are getting poorer, don't we? Almost every day. This is not an intellectually

honest statement, as it implies--what does it imply? It implies that those who are poor seem to stay poor and that those who are rich seem to stay rich. So I want to dispute that position.

In 2007, the Department of Treasury published a report entitled ``Income Mobility in the United States From 1996 to 2005.'' The key findings of this study include the following:

There was considerable income mobility of individuals in

the U.S. economy during the period 1996 through 2005 as over

half of taxpayers moved to a different income quintile over

this period.

Roughly half the taxpayers who began at the bottom income

quintile in 1996 moved up to a higher income group by the

year 2005.

Among those with the very highest incomes in 1996--the top

1/100 of 1 percent--only 25 percent remained in the group in

2005.

One in four 10 years later. So the poor aren't always poor and the rich aren't always rich.

Moreover, the median real income of these taxpayers

actually declined over this period.

The degree of mobility among income groups is unchanged

from the prior decade (1987 through 1996).

So I used the group 1996 through 2005, and I am comparing it with the group 1987 through 1996, so I want to repeat that the degree of mobility among income groups was unchanged over a 20-year period of time.

Continuing to quote:

Economic growth resulted in rising incomes for most

taxpayers over the period of 1996 through 2005. Median income

of all taxpayers increased by 24 percent after adjusting for

inflation. The real incomes of two-thirds of all taxpayers

increased over this period. In addition, the median incomes

of those initially in the lower income groups increased more

than the median income of those initially in the higher

income group.

Therefore, whoever is saying that once rich, Americans stay rich, and once poor, they stay poor, is purely mistaken because America is a country and land of opportunity.

Now, I want to say that the Internal Revenue Service data supports the analysis I just gave. I was done quoting at that point.

A study of 400 tax returns with the highest income reported over 14 years--and I don't know whether these are the same 400 taxpayers my friend on the other side just referred to in his speech, but a study of 400 tax returns with the highest incomes reported over 14 years, from the year 1992 to the year 2006, shows that in any given year, on average, about 40 percent of the returns that were filed were not in the top 400 in any of the other 14 years. I got the impression that the top 400 taxpayers in the previous speech were maybe always the same people, but 40 percent were not in that group.

The so-called shared sacrifice bill before the Senate now does not acknowledge these trends; hence, I think it is intellectually dishonest. It presupposes that anyone making more than $1 million should be contributing more to reduce a deficit that they likely did not create in the first place. We created it.

The bill assumes that the folks in this income category have always made more than $1 million, that they haven't paid their dues on their way up the ladder of success and, as a result, should pay a penalty for their current success even if they are on the way down the ladder. The bill also assumes these folks will continue earning what they are earning now.

As I just noted, however, the Treasury report and the IRS tax data contradict this position.

I welcome this data on this important matter for one simple reason: It sheds light on what America really is all about, what this great country is all about--vast opportunities. Of course, as I just said in these statistics, but you can see it in a lot of different ways as well, we are a country of great economic mobility. This country is built by people from all over the world. Our country truly provides unique opportunities for everyone. These opportunities include better education, health care, financial security, and probably a lot of other things. But, most importantly, our country provides people with a freedom to obtain the necessary skills to climb the economic ladder and live better lives. We are a free nation. We are a mobile nation. We are a nation of hard-working, innovative, skilled, and resilient people who like to take risks when necessary in order to succeed. We have an obligation as lawmakers to incorporate these fundamental principles into our tax system.

On another matter in this debate, we have also heard much about ``closing loopholes.'' Well, that sounds good. I don't want to tell you how I believe that ought to be done. There are things that are legal, and there are things that are not legal. There are things that are legal and there are things that aren't legal. Let me say if there are, in fact, loopholes to be closed, I would support closing them.

During my tenure as chairman and then ranking member of the Finance Committee, I worked with colleagues from both sides of the aisle to cut off tax cheats at the pass. The American Jobs Creation Act signed into law in October of 2004 included a sweeping package to end tax avoidance abuses such as corporations claiming tax deductions for taxpayer-funded infrastructure such as subways, sewers, and bridge leases; corporate and individual expatriation to escape taxes; and Enron-generated tax evasion schemes. We closed them.

One of the tax avoidance provisions the jobs bill shut down was so- called corporate inversions. Average workers in America can't pull up stakes and move to Bermuda or set up a fancy tax shelter to avoid paying taxes. Companies that do this make a sucker out of workers and companies that stay here in this great country and pay their fair share of taxes. So that was closed. Corporate inversions, we called that.

We also closed loopholes used by individual taxpayers. The jobs bill contained a provision that restricted the deduction for donations of used vehicles to actual sales price. Prior to that fix, individuals were claiming inflated fair market values before they gave their car to a nonprofit organization.

Then in the Pension Protection Act, which was signed into law in August of 2006, I championed reforms to deductions for gifts of ``fractional interests'' in art as well as donations to charities that were controlled by the donor. Because if you give money away, it ought to be given away. A person should not be able to control it after they give it away. The same way with art. In both cases, individuals were taking huge deductions for donations without providing equivalent benefits to the charities to which they donated.

In addition to ensuring income and deductions are properly reported, I also supported giving the Internal Revenue Service more tools to go after tax cheats. The jobs bill contained provisions that required taxpayers to disclose to the IRS their participation in tax shelters and increased penalties for participating in such tax shelters as well as not disclosing such participation to the IRS.

I also authored the updates to the tax whistleblower provisions included in the Tax Relief and Health Care Act which was signed into law in December of 2006. There was a whistleblower statute long before that, but because of the low dollar threshold, it encouraged neighbors to blow the whistle on their neighbors. So the 2006 changes I championed increased the awards for those blowing the whistle on the big fish--individuals and businesses engaged in large-dollar tax cheating through complex financial transactions.

I don't know why it took the IRS so long to get this law under way because they have had plenty of whistleblowers come forward, but we have only had one time so far--I think we will get a lot of others now--but we have only had one time so far under this provision, which was instituted in April of this year, and we recovered $20 million for taxpayers that otherwise would have been lost to fraud--from one company.

These are just a few examples of my support for provisions to stop abuses of the Tax Code to make sure everyone pays their fair share. If and when we get around to considering comprehensive tax reform, I look forward to shutting down any other abuses that exist. But first we need to be clear on what a loophole is.

Itemized deductions are just that: itemized deductions. They are not loopholes. Similarly, deductions and tax credits that enable a corporation to zero out its tax liability are not loopholes. For instance, if a person had a loss last year, they can carry it forward to this year. The question of whether deductions and credits should be limited is a question that should be answered not to raise revenue but in

the context of comprehensive tax reform. Eliminating deductions and credits for certain taxpayers should be subject to extensive review and extensive debate. Taxpayers should not be targeted for tax increases for political sport, as this resolution before us does.

I wish to finish by summing up in three points, very quickly. First, according to this chart, tax increases don't--well, not according to this chart. That is the second point I will make. First, tax increases don't reduce deficits and they don't increase revenue as a percentage of GDP.

Secondly, we ought to have some principles of taxation. First of all, this chart shows that we get about the same amount of revenue coming in over a 50-year period of time--about 18.2 percent of gross national product. We have high marginal tax rates, really low marginal tax rates, but it still brings in about the same amount of revenue.

Second, we ought to have some principles of taxation that we abide by. Limiting revenues to the historical average of 18 percent of GDP should be one, while ensuring income equality should not be one. In other words, we raise revenue for the purpose of funding the functions of government, not to redistribute wealth.

Last but not least, it is right to consider tax reform when discussing deficit reduction. However, the proposals put forth so far, including the current bill, are political proposals--not reform proposals. Tax reform requires Presidential leadership, and we are just now seeing that. I mean, we are not seeing it on tax reform, but we are finally seeing it on deficit reduction. But I don't think it is going to last very long.

Madam President, I yield the floor, and I suggest the absence of a quorum.

Yes.

Madam President, the State of Iowa has lost one of its native sons, and the Nation has lost a true patriot. SFC Terryl L. Pasker from Cedar Rapids, IA, was shot and killed in Panjshir Province, Afghanistan, while serving with the Iowa National Guard in support of Operation Enduring Freedom. He was 39 years old and was just completing his second tour in Afghanistan. My thoughts and prayers are with his wife Erica, his parents Mary and David, and those who knew him and cared about him. Terryl Pasker is described as an upbeat, religious man. He was known as a hard worker and he owned a contracting business in his civilian life. The loss of someone in their prime, with a bright future and a whole life left to live is a tragic thing. It gives us pause to reflect on the tremendous sacrifice we ask of our servicemembers, and have since the first minutemen rallied at Lexington and Concord. I would like to pay tribute to the life and service of SFC Terryl Pasker and ask that my colleagues join me in honoring his memory.

Mr. President, I rise to pay tribute to a noble fallen warrior. CAPT Matthew Gunnar Nielson of Jefferson, IA, gave his life for his country on June 29, 2011, during an attack by insurgents in Badrah, Iraq. He was 27 years old. My prayers are with Captain Nielson's parents, Roger and Christine, and all his family and friends who are feeling his loss.

In a statement, his family said, ``Since Matt was a small boy he loved anything military, so he died doing what he loved best. Serving others was of the utmost importance to him and how he wanted to spend his life. He always gave his all, whatever he was doing. Matthew was a beloved son, brother, friend and Soldier. He's already home, and we know we'll be together again someday. Apart, but forever in our hearts. Psalms 11.'' What can I say about such selfless service and sacrifice? We just celebrated 235 years of independence and liberty, which is an occasion to reflect on the incalculable debt we owe to Matt and his comrades in arms over the years who have secured that legacy for us and for posterity. So long as we continue to have brave patriots like Matthew Nielson who are willing to give their all for their fellow Americans, our heritage as a free people will be in safe hands.

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

Mr. President, I want to extend some remarks I made on the Senate floor on June 6. The report I was reporting on on June 6 evaluated audits produced by the Department of Defense Office of Inspector General in fiscal year 2010. I called that report a report card because that is exactly what it was. Each of the 113 unclassified reports published in fiscal year 2010 was reviewed and evaluated and graded in five categories. My report was produced by the Department of Defense Office of Inspector General in fiscal year 2010. After each report was graded individually, all the scores for each report in each category were added up and averaged to create a composite score for all 113 reports.

Although 15 top-quality audits were highlighted in the report, the overall score awarded to the 113 was basically D-minus. That is low, I know. Maybe the score should have been a little higher. Clearly, none reflected any of the reforms Inspector General Heddell, DOD, put in place in December of 2010, as all were published well in advance of that date.

My oversight staff read these reports as educated consumers. We expected these reports to provide leverage in the monumental day-to-day Department of Defense oversight task. We want them to provide assurance that the Defense Department is spending taxpayers' money wisely. Some reports did that but most did not.

This report, prepared by this Senator from Iowa, is sure of one thing: The audits which are the subject of my report card are not somehow exempt from oversight and public scrutiny. In other words, these audits should just not sit on the shelf and collect dust; they need, as well, to be put under the public microscope, especially when they cost almost $1 million apiece to produce. Mr. President, $1 million for an audit report is a heck of a lot of money. So that is exactly what we did in the report card--put these reports in the public spotlight, and I will keep them there until I see sustained improvement at the inspector general of the Department of Defense.

As the report states and as I explained in my speech on June 6, this grading system was subjective and imperfect. However, as subjective and inexact as it may be, I believe it provided a reasonable and rough measure of audit quality.

Following my speech, Defense Department Inspector General Heddell pounced on my report. He expressed strong opposition to the low score. He complained that it did not adequately reflect $4.2 billion in what he called ``achieved monetary benefits,'' identified in fiscal year 2010 reports.

To address IG Heddell's concerns, my staff asked the audit department to prepare an information paper that linked the $4.2 billion in savings to the audit where those savings were reported. That information was provided to me on June 20. I call it a crosswalk. It takes me to the exact page in each report where the savings were discussed. This document listed $4.4 billion in identified potential monetary benefits and collections of $4.2 billion.

After reviewing the crosswalk, I have concluded that Inspector General Heddell had a legitimate gripe about my report card. He is right. It should have included a section that addressed potential savings. So I will address those issues right now, focusing on four reports that contain almost all of the $4.2 billion in savings listed in the collections column.

In grading these reports, we did not give sufficient credit for potential savings and inefficiencies. They were a casualty of the grading system for one simple reason: If the exact dollar amounts of the alleged fraud and waste were not verified using primary source accounting records--and using primary source accounting records is very important--then they did not pop up on my oversight radar screen.

My staff is attempting to work with the audit office to develop a mutually

agreed upon set of standards for grading audits. The purpose of these discussions would be to create a grading process that would accurately capture the true quality of all reports, including policy reviews that uncover real savings and efficiency.

From the beginning, I have been very critical of the audit office for producing far too many policy reviews and far too few hardcore contract and payment audits. For the most part, the policy audits have no measurable monetary impact whatsoever. However, I have learned recently that at least a few are important for other reasons. I am told that some of these reports are a real value in the work of our Armed Services Committee here in the Senate. Contract and payment audits are also very important and I would say most important. They go right to the heart of the IG's core mission: to root out and deter fraud, waste, and theft. If done right, they, too, can produce big payoffs. Those audits earned top scores in my report card. I am not saying the audit office should do nothing but contract and payment audits. What I am saying is this: The current mix of audits creates a huge imbalance in favor of policy reviews as opposed to monetary reviews. So a better balance needs to be established by the Inspector General's Office.

That said, I have an admission to make to my colleagues. I finally found a policy audit that I like. This report is entitled ``Recapitalization and Acquisition of Light Tactical Wheel Vehicles.'' That audit report is No. 2010-039, dated January 29, 2010. It identified potential savings of $3.84 billion. That is 90 percent of the savings uncovered in all the fiscal year 2010 audits.

In my report card, I gave this audit a low grade. This audit failed to connect the dots on the money trail and verify dollar amounts using primary source contracts and payment records, plus it took 16 months to complete. When you add the 4 to 6 months of planning that often precedes an audit start date, you are probably looking at 2 years to complete the audit, and that is far too long. But this report had other important qualities that were overlooked. It uncovered gross violation of applicable procurement regulations, including the use of sole-source contracting arrangements. It also determined that the proposed vehicle might duplicate the capabilities of existing vehicles.

In the midst of this audit, for reasons that remain unclear, the project manager decided to stop the program ``and put the $3.84 billion in funding to better use in fiscal years 2010-2013.'' This language suggests that all of the money was reallocated within Army accounts for other purposes. Clearly, the audit may have helped to stop $3.84 billion in potential waste. That is excellent. But this does not constitute savings in the classical sense, as all the money was shifted to other Army projects. Waste could have happened in those other projects as well.

It reminds me, while we are here in session in what normally would be a recess and I am reporting that the inspector general found $3.84 billion in potential waste, now that they are trying to find trillions to cut down on the budget deficit, it might be a time to look at the Defense Department and stop the reprogramming of money. If it is going to be saved, it ought to be saved, and that means it will cut down on the deficit.

I would like to continue, if there is no objection.

Using a modified grading system to reflect the good quality of this audit, it would have earned a higher score were it not for an excessively long completion time. In this particular case, however, the impact of the audit was apparently felt while the audit was still in progress, so the timeliness rule may not apply here and probably should be set aside.

There are three other audits containing savings and inefficiencies that I would like to discuss.

The next one is entitled ``Implementation of the Predator/Sky Warrior Acquisition Decision Memorandum,'' No. 2010-082, dated September 10, 2010. The purpose of this audit was to determine whether the Air Force and Army had complied with the Department of Defense directives and law to combine the Predator and Sky Warrior drone programs. The Defense Department estimated that $400 million could be saved by merging the two programs.

While the audit was in progress, the Department of Defense pulled the rug out from under the auditor. A new directive was issued stating that the two programs did not have to be combined. To counter this move, the auditors recommended administrative action against those who failed to comply with the original directive. The Department of Defense nonconcurred and tossed the auditors a bone. The Department of Defense wiggled out of harm's way by offering to do a meaningless lessons- learned exercise. In the end, the auditors caved in, agreeing that the Department of Defense plan was responsive and backed off.

Despite what appeared to be an unsuccessful outcome, the Office of Inspector General still claimed that this audit produced $60 million in savings. The audit itself indicates that the $60 million was, in fact, ``reprogrammed to meet higher priority operations.'' That means it was reallocated to other Department of Defense accounts and thus not saved.

Since this audit was all about an opportunity to save $400 million and the Department of Defense balked, maybe these so-called savings might be better characterized as lost savings. In my report card, this audit earned low scores mainly because it failed to verify actual costs of two drone contracts using primary source accounting records, and it failed to assess the validity of the Department of Defense estimated savings of $400 million. I am not convinced this audit deserves a higher score, especially since it took 22\1/2\ months to complete, and the recommendations, though initially tough, were watered down in the end.

The last one I wish to report on is entitled ``Deferred Maintenance and Carryover on the Army Abrams Tank,'' No. 2010-43, dated March 2, 2010. This report concluded that contrary to the Army's claim, depot maintenance on M-1 tanks was not deferred in fiscal year 2008. All planned overhauls were, in fact, completed, but a large sum of money was left over. The Army requested and received a formal, written waiver to carry over $346 million in unneeded and unused fiscal year 2008 M-1 maintenance funds for use in 2009 and beyond. The reason given was inadequate capacity at the Lima, OH, tank plant. Without the waiver, this money would have been canceled and lost.

The report concluded that the Army documents contained ``inaccurate, misleading'' information that may have caused a violation of the Antideficiency Act. It recommended that the waiver be rescinded and $275 million in fiscal year 2008 money be canceled and reprogrammed or reduced.

The Army appeared to agree with the recommendations to disclose the $275 million carryover to Congress but did not concur with other recommendations.

This report does not point to any real savings. This report probably deserves higher scores except for the timeliness and strength of the recommendations. It was untimely, taking 22 months to complete.

In addition, there were unresolved issues about the waiver document. Did the official who signed the waiver know that the document may have allegedly contained false and misleading information? And was he questioned about its truthfulness? If so, the report should have recommended that he be held accountable.

The last of four reports uncovered $2.2 million in purported savings, but this one appears to be more about helping the Army spend--not save--money.

It is entitled ``Controls Over Unliquidated Obligations for Department of the Army Contracts,'' number 2010-073, dated July 19, 2010.

This report deserves high scores for hitting most of the dots on the money trail, including verification of exact dollar amounts using primary source accounting records. Such nitty gritty accounting work is highly commendable.

Unfortunately, the objective of this audit appears to be questionable. The report finds that sloppy Army accounting work ``could increase the risk that funds are unavailable for other needs

because funds available for de-obligation are not identified in a timely manner.'' Now what does that really mean?

It means the money in question is no longer needed and is at risk of being ``lost'' because it is about to expire.

Having un-needed money lying around in the Pentagon is almost always a recipe for more waste. In the Pentagon, there is no such thing as un- needed money. Every dollar has a mission.

This report is all about managing money to make sure every cent is spent before it expires. Avoiding the loss of appropriations is the primary responsibility of the Army Comptroller or Chief Financial Officer--not the IG.

In this scenario, the IG's primary focus should be to ensure that ``lost'' appropriations are not used illegally--or that un-needed monies are not wasted by being shifted to another questionable project. Money that is not needed should be reported to Congress and returned to the Treasury.

Although this audit deserves high scores in several categories, its long completion time--16 months--and questionable focus lowers its overall score.

To summarize, there are two main problems with these four reports on savings and collections. The fourth one I am not going to go into now to save time, but I will include that for the Record. None was timely, No. 1. No. 2, reported savings are unverified and elusive.

First, these four reports took an average of 19 months to complete. Two took a total of 45 months, or almost 4 years, to finish. That does not include the 4 to 6 months it takes, I am told, to get an audit rolling. As I have said on other occasions, the power of top quality audit work is greatly weakened by stale information.

Secondly, these four reports supposedly produced $4.2 billion in collected savings. But all of that money appears to have been shifted to other Department of Defense accounts and spent. To the best of my knowledge, not one cent was saved or redeposited in the taxpayers' bank account. Only in government could all the money be spent and still claim savings.

What we are talking about here is lost savings that grew out of waste that was thankfully discovered and avoided. Waste that is avoided surely has monetary benefits.

In closing, I wish to share a simple observation with my colleagues. For some reason, auditors in the Office of Inspector General show a great reluctance to use the word ``waste''--w-a-s-t-e--in their reports. That word rarely, if ever, appears in their audits. At the same time, auditors seem overly eager to tout savings and efficiency. Why would that be? Could it be that their superiors in the Pentagon take a dim view of the word ``waste''?

Savings may be nothing more than the flip side of waste. Auditors detect and verify potential waste and then convert it to potential savings by proposing remedies to eliminate the waste. Maybe the auditors need to start calling it what it is--call it waste--and then talk about savings.

I yield the floor.

Mr. President, I ask for the yeas and nays.

Madam President, I would like to express my concerns with S. 679, the Schumer/Alexander Presidential Appointment Efficiency and Streamlining Act. This bill would eliminate the Senate confirmation process for approximately 200 positions. Many of the positions proposed to be eliminated from the Senate process are officers dealing with transparency matters, such as positions dealing with public and congressional affairs, as well as officers dealing with budgetary matters, such as positions dealing with finances and grant administration.

In general, I am concerned that the legislation will eliminate the Senate's ability to provide its constitutional duty of advice and consent for individuals tasked with performing important government functions, and would allow these positions to become more like czars that are unaccountable to the people.

In addition, I am concerned that the legislation will impede the Senate's ability to conduct oversight of certain department programs, as well as reduce

Senators' ability to compel executive department and agencies to testify before Congress or answer written questions. For example, DOJ has a policy of not allowing line attorneys to testify before Congress, and the Obama Administration will not allow its czars to testify--a policy that could potentially apply to these individuals.

Further, often the only tactic a Senator has for compelling an agency to produce documents or provide answers to questions is to block a nominee until documents or answers are produced. This is especially true when the member seeking to conduct oversight is in the minority party. I have frequently employed this tactic to get documents/ information from agencies, and generally have been successful when I've used this method in helping me with my oversight efforts.

As the current ranking member of the Senate Judiciary Committee, I would like to address the positions under Judiciary Committee jurisdiction proposed to be eliminated. Specifically, S, 679 would eliminate the Senate confirmation process for these 10 positions under Judiciary Committee jurisdiction:

Assistant Attorney General, Legislative Affairs, DOJ

Director, Bureau of Justice Assistance, DOJ

Director, Bureau of Justice Statistics, DOJ

Director, National Institute of Justice, DOJ

Administrator, Office of Juvenile Justice and Delinquency

Prevention, DOJ

Director, Office for Victims of Crime, DOJ

Deputy Director, National Drug Control Policy, ONDCP

Deputy Director, Demand Reduction, National Drug Control

Policy, ONDCP

Deputy Director, State and Local Affairs, National Drug

Control Policy, ONDCP

Deputy Director, Supply Reduction, National Drug Control

Policy, ONDCP

In addition, the Senate resolution would provide an expedited process for these positions under Judiciary Committee jurisdiction:

Members (2), Foreign Claims Settlement Commission

Members (11), Board of Directors, State Justice Institute

I believe that all these positions be removed from the legislation. Specifically with respect to the Judiciary Committee positions, I am concerned that several of these positions deal with policy implementation, grant administration and funding, statistics and data collection, as well as transparency and accountability. The DOJ inspector general noted that grant management was one of the top 10 challenges at DOJ. Several of these DOJ and ONDCP positions administer millions of dollars in grants. In addition, several groups have raised concerns because some of these positions compile data that can be skewed and distorted to support policy goals.

Prior nominees for some of these positions were opposed or withdrawn because they were not qualified. Further, I and others have blocked several of the nominees for these positions in the past to force agencies to comply with document production requests or to compel answers to my questions.

In addition to my concerns with the positions under Judiciary Committee jurisdiction, there are other committee jurisdiction positions in this legislation that I have a problem relinquishing my ability to review.

The bottom line is that S. 679 would hamper the Senate's ability to conduct effective oversight of the executive branch's programs. S. 679 would allow the Senate to relinquish its constitutional responsibilities of advice and consent in filling Federal offices, diminish the Senate's oversight duties, and make the executive branch less transparent and accountable to the people. While a few positions have been struck from the bill as reported out of Committee, like the Assistant Attorney General for Legislative Affairs at the DOJ, the other DOJ and ONDCP positions remain in the legislation and will now not be required to undergo Senate review. For the reasons I have just discussed, I will oppose this bill.

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

Madam President, I assume that we are now on the Cole nomination?

Madam President, earlier this year the Senate expressed its opposition to proceeding to Mr. Cole's nomination when it failed to invoke cloture. I was a strong advocate against the Senate invoking cloture on Mr. Cole's nomination because the Justice Department had failed to respond to a legitimate oversight request that both Senator Chambliss and I made relating to two separate topics.

The Justice Department was withholding vital documents related to my inquiry of the Bureau of Alcohol, Tobacco and Firearm's Operation Fast and Furious and to an inquiry by Senator Chambliss in his capacity as vice chairman of the Select Committee on Intelligence.

As ranking member of the Judiciary Committee, I have been seeking and still seek documents, information, and access to witness interviews to determine who approved Operation Fast and Furious. This was an operation that you have heard me talk about often where ATF agents were ordered to knowingly allow straw buyers to obtain weapons on behalf of criminals and traffickers intent on smuggling those weapons into Mexico.

The courageous agents who blew the whistle and testified about their efforts to warn supervisors about the dangers referred to this practice as ``walking guns.'' Of the more than 1,800 weapons allowed to ``walk,'' hundreds have been recovered in connection with crimes in the United States and Mexico, including two such weapons in connection with the murder of Border Patrol agent Brian Terry.

After seeking information from the Justice Department, I was repeatedly told that the ATF did not knowingly allow these sales. Working with Congressman Issa, who is chairman of the House Government Oversight Committee, we released information that showed that the initial denials were false. This risky policy was, in fact, implemented at ATF and the Justice Department.

Despite the seriousness of the whistleblowers' allegations and my repeated inquiries, the Justice Department continued to deny me access to the documents. As a result, I urged my colleagues to oppose cloture on James Cole to be Deputy Attorney General. Well, that cloture opposition worked. We have since reached an agreement with the Justice Department and Senator Leahy that will guarantee my access to vital document information and witnesses regarding this ATF operation.

I also understand that Senator Chambliss has reached an agreement on obtaining the information he has sought on behalf of the Intelligence Committee. Accordingly, I now lift my opposition to the Senate holding a vote on Mr. Cole's nomination. However, I want to explain that I am going to vote against his nomination for many reasons.

I oppose the nomination of James Cole to be Deputy Attorney General at the Department of Justice because I have serious concerns regarding Mr. Cole's qualifications. In addition, I am troubled by President Obama's recess appointment of Mr. Cole to this position. I have been consistent in my opposition to recess appointments over the years on committees where I have been chairman or ranking member. Whenever the President bypasses the Senate; in other words, bypasses our confirmation of a person, by making a recess appointment, such nominees will not receive my support where I have been lead on my side responsible for reviewing such nominees.

We have a process in place for nominations, and if the President is not willing to work with Senators to clear nominations, the nominee should not get a second bite at the apple. The Deputy Attorney General is second in command at the Justice Department and is responsible for overseeing the day-to-day operations of the Department.

Managing this vast bureaucracy is a difficult task that requires a serious commitment to protecting our national security, enforcing our criminal laws, and safeguarding taxpayer dollars. We need a qualified leader who has the smarts, the capability, and the willingness to manage Department programs and root out inefficiencies and abuse in those programs.

After reviewing all of his responses and his hearing testimony, I concluded that I could not support Mr. Cole's nomination to be Deputy Attorney General. In particular, I am seriously concerned about Mr. Cole's views on national security and on terrorism. Back in 2002, Mr. Cole was author of an opinion piece in the Legal Times. In that piece he stated:

For all the rhetoric about war, the September 11 attacks

were criminal acts of terrorism against a civilian

population, much like terrorist acts of Timothy McVeigh in

blowing up the federal building in Oklahoma City, or of Omar

Abdel-Rahman in the first effort to blow up the World Trade

Center. The criminals responsible for those horrible acts

were successfully tried and convicted under our criminal

justice system without the need for procedures that altered

traditional due process rights.

But I want to quote further.

The acts of September 11th were horrible, but so are . . .

other things.

The other things he referred to were the drug trade, organized crime, rape, child abuse and murder. Mr. Cole's opinion piece argued that notwithstanding the involvement of foreign organizations such as al- Qaida, we have never treated criminal acts influenced by foreign nationals or governments as a basis for ``ignoring the core constitutional protections engrained in our criminal justice system.''

Mr. Cole concluded his opinion piece by arguing that in addition to stopping future terrorist attacks, the Attorney General is a criminal prosecutor and that he has a special duty to apply constitutional protections ingrained in our criminal justice system to even including terrorists captured on foreign battlefields.

Mr. Cole wrote this opinion piece 2 days short of the first anniversary of the September 11 attacks. Given the close proximity in time to the September 11 attacks, we must accept this opinion piece as Mr. Cole's true beliefs about the application of the civilian criminal justice system to terrorism cases, including those who masterminded the 9/11 attacks.

From the opinion piece and his responses to our inquiry, it appears that if given a choice of prosecuting high-ranking terrorists in civilian courts or military commissions, Mr. Cole would likely favor civilian courts based upon his longstanding belief in the role that the Attorney General plays in protecting the principles of the criminal justice system.

Absent a clear statement from Mr. Cole about what factors would warrant selecting a civilian or a military forum, it is hard to look at his entire record of past opinion, his testimony and responses to our questions, and reach any different conclusion.

In fact, my concerns about the individuals at the Justice Department supporting prosecution of terrorists in civilian criminal court have been validated by recent events surrounding the arrest of two Iraqi nationals at Bowling Green, KY. These Iraqi nationals have admitted targeting American troops in Iraq, plotting to equip foreign fighters in Iraq with weapons such as grenades and missile launchers. They made their way to our country and somehow got past the Department of Homeland Security.

After they were identified, the Justice Department is seeking to try them in civilian court even though their activities regarded terrorist activities and took a very military approach.

Attorney General Holder has been steadfast in supporting their prosecution in civilian court. It appears to me

that no one in the Justice Department, including Mr. Cole, has objected to prosecuting these individuals in civilian court. This is despite the clear nexus to the battlefield in Iraq. So it now appears the Justice Department, where Mr. Cole currently serves as a recess-appointed Deputy Attorney General, rewards terrorists who are smart enough to evade Homeland Security's determination on whether they can come to this country, and at the same time make their way from the battlefield with the same rights and privileges as American citizens. All of this occurred on Mr. Cole's watch as Deputy Attorney General.

Military tribunals have many advantages to civilian criminal courts and are better equipped to deal with dangerous terrorists and classified evidence while preserving due process. I am troubled that Mr. Cole does not appear to share this belief. Because of his responses and testimony, I have serious concerns about his support for civilian trials for terrorists captured on a foreign battlefield. This is of particular concern, given that the Deputy Attorney General oversees the National Security Division at the Justice Department.

Now for a second reason. I have concerns about Mr. Cole's abilities relative to oversight of government programs. We asked about oversight of the Department of Justice's grant programs. When he was asked, Mr. Cole failed to commit to a top-to-bottom review of the programs, nor has he undertaken such a review since he was recess appointed. Given the enormous Federal deficits and enough examples of the tremendous inefficiencies, duplications, and waste in these programs, one would assume the Deputy Attorney General would be looking for cost savings in the Department. I am disappointed Mr. Cole has failed to recognize that there is a need for a comprehensive review of Justice's grant programs--not only for the sake of saving taxpayer dollars at a time when we face skyrocketing fiscal deficits but also to ensure that grant objectives are being met in the most efficient and effective manner possible.

A third reason. I have concerns about Mr. Cole's abilities based on his performance as an independent consultant tasked with overseeing the insurance firm AIG. By way of background, the Justice Department provided copies of the reports Mr. Cole issued when he was overseeing AIG, but they were labeled ``Committee Confidential.'' As a result of their being labeled ``Committee Confidential,'' I cannot discuss with specificity the contents of those documents publicly. Nevertheless, when taken into context with the public responses provided by Mr. Cole to my questions, a troubling picture develops about Mr. Cole's performance in his role as independent consultant. The responses and reports do not dispel the serious questions raised about Mr. Cole's independence or his completeness. Further, they reveal what appears to be a level of deference to AIG management one would not expect to see from someone tasked with the responsibility of being an ``independent'' monitor.

In order to clarify a number of questions on this matter, Senator Coburn and I sent a followup letter seeking additional answers from Mr. Cole. Mr. Cole's reply clarified that the Department of Justice, the Securities and Exchange Commission, and the New York Attorney General's Office were aware of his practice of seeking input from AIG and making modifications to the reports. He indicated that the changes AIG made were often factual changes, such as AIG employee names, dates of materials, and events. He also indicated that some of the changes requested by AIG were included in a section of the report entitled ``AIG Response.'' However, he added that ``on a few occasions'' AIG would ``suggest a stylistic change of phrasing in the analytical section of the report.'' He stated that while he included the edits made by AIG, he ``did not believe that a detailed presentation of this factual review process was necessary to an understanding of each party's position.''

As a result, the reports did not necessarily show which edits AIG made that were incorporated. Instead, he said those changes were available in working papers that were ``available to the SEC, the DOJ, and the New York Attorney General's Office.'' Unfortunately, he added, ``the agencies--which were aware of this practice--did not request such documents.''

While I appreciate Mr. Cole's responses to these clarifying questions, they raise concerns about how independent his monitoring was, what changes were ultimately requested by AIG, what changes were included, and how much the SEC and the Department of Justice knew about edits AIG was making to the ``independent'' reports.

In addition, I have serious concerns about Mr. Cole's decision to suspend compliance review at AIG's financial products division following the government bailout of AIG. In his testimony, Mr. Cole acknowledged that subsequent to the government bailout of AIG, he scaled back his efforts until the future of AIG as a corporation was determined. After Mr. Cole suspended his monitoring, AIG restructured its compliance office and terminated a number of staff overseeing the company's compliance with SEC regulations. Mr. Cole said after it was determined that AIG's financial products division would not be dissolved, the compliance and monitoring were ``revived and are being reviewed and implemented where applicable.''

Under Mr. Cole's watch, AIG not only got $182 billion of taxpayer dollars for a bailout, but was able to talk the independent consultant--Mr. Cole--out of monitoring what the company was doing.

I am concerned about Mr. Cole's ability to perform the duties required of a Deputy Attorney General. In that role, he would be in a position to potentially influence future compliance monitors appointed under settlements with the Justice Department, the Securities and Exchange Commission, and other corporations that have violated the law. Independent monitors need to be truly independent and, of course, completely transparent. They are selected and appointed to ensure the interests of the American people are protected.

For these reasons, I cannot support the nomination of Mr. Cole to be Deputy Attorney General, and I urge my colleagues to do the same.

Madam President, I suggest the absence of a quorum.