Floor Statements

Mr. President, today, March 1, is National Sportsmanship Day. A project of the Institute for International Sport at the University of Rhode Island, National Sportsmanship Day is the largest initiative of its kind in the world. Now in its 15th year of promoting the highest ideals of sportsmanship and fair play among America's youth, the day will be observed in over 13,000 schools in all 50 States. The day will involve more than 5 million students, teachers, administrators, coaches, and parents in discussions on the issue of sportsmanship.

National Sportsmanship Day was first championed by Rhode Island Senators Claiborne Pell and the late John Chafee. This year, National Sportsmanship Day will honor these Senators; USA Today, which conducts an annual National Sportsmanship Day essay contest, and its sports editor Monte Lorell; the President's Council on Physical Fitness; the Old Dominican Athletic Conference, which has reinforced the values of sportsmanship among its teams; and Playing for Peace, an international organization which uses basketball and sportsmanship to bring young people together from communities such as Belfast, Northern Ireland and Johannesburg, South Africa.

I am proud Rhode Island is home to the Institute for International Sport and National Sportsmanship Day, and pleased to see the positive influence it has had on youngsters across the Nation during its 15 years of promoting the best in athletics.

Mr. President, I rise to speak about S. 5, the Class Action Fairness Act.

First and foremost, I want to commend both the Republican and Democratic Leaders for all the work they did to bring this bill before the Senate. In particular, I am pleased that the consent agreement allowed all relevant amendments to be offered and debated.

I believe many of these amendments would have improved the underlying legislation without threatening its reforms. In particular, I think we should have adopted the Feinstein-Bingaman amendment, which would have given federal judges clear guidance about how to apply state consumer laws in multi-state class action lawsuits. This would have permitted more multi-state consumer class actions to be certified in federal court and resolved on their merits.

After S. 5 is enacted into law, I believe we should rapidly revisit this issue and make sure that consumers are actually getting their day in court and not having their class action cases thrown out because Federal courts are deeming them too complex or unmanageable to certify.

That being said, I think this legislation benefited greatly from the negotiations entered into by Senators Dodd, Landrieu and Schumer with the bill's major sponsors, Senators Grassley, Kohl, Hatch and Carper. Although S. 5 is not the bill I would have written, I do think it will address some of the well-documented problems created by overlapping class actions in State and Federal courts.

In particular, the Dodd-Landrieu-Schumer language included in S. 5 addressed some of my biggest concerns about moving class actions to Federal court. Many class actions involve only State law issues, are brought by plaintiffs from the same geographical area and have a defendant who is based within that same community. Moving these cases to Federal court is inappropriate, especially if they do not involve issues of national importance. In many cases, it is our State judges who are in the best position to make determinations about State law. The Dodd-Landrieu-Schumer compromise created a new exception for keeping cases like this in State court. Under the bill, if two-thirds of the plaintiffs are from a given State, the injury happened in that State and at least one significant defendant is from that same State, then the class action can remain in State court. As a result, I believe S. 5 ensures that ``nationwide'' class actions are separated from those that should continue to be heard in State courts.

I also believe that any attempt to stop forum shopping by plaintiffs should minimize forum shopping by defendants. The Dodd-Landrieu-Schumer compromise in S. 5 addressed this issue by making it clear that there is a firm 30-day deadline for the removal of nationwide class actions to Federal court once the plaintiffs have filed papers that create conditions for removal.

I also am pleased that the Dodd-Landrieu-Schumer compromise dealt with one of the most serious abuses in class action cases, certain types of collusive coupon settlements. S. 5 clarified that if a settlement provides coupons as a remedy, attorneys' fees will only be paid in proportion to the redemption of the coupons. A provision like this does not prohibit coupon settlements, but practically speaking, attorneys will not agree to such settlements unless the coupons are actually valuable. S. 5 also requires that a judge may not approve a coupon settlement until a hearing is conducted to determine if the settlement terms are fair, reasonable, and adequate for class members.

Finally, I believed that is important to preserve the ability of the Advisory Committee on the Federal Rules, the U.S. Judicial Conference, and the Supreme Court to amend the class action rules or procedures to the extent necessary to accomplish their purposes more effectively or to cure any unanticipated problems. S. 5 also included a provision saying that the Federal courts could make such changes as appropriate.

As a result of all of these improvements, I believe S. 5 is legislation that addresses serious problems in our nation's class action system and will make the system fairer for both plaintiffs and defendants.

Madam President, I rise to commemorate the life and accomplishments of Stan Kimmitt, former Secretary of the Senate Majority and Secretary of the Senate, retired Army colonel and loving husband and father. On December 7, 2004, the Senate and the Washington community lost a devoted friend, one whose work honored the institution of the Senate and the value of bi-partisanship.

Throughout his careers in the military, political and corporate worlds, Stan Kimmit dedicated his life to public service and democratic ideals. He first served our Nation in WW II and Korea, then as Majority Leader Mike Mansfield's senior staff member for 11 years and later for 5 years as Secretary of the Senate and finally as a consultant.

Stan was born on April 5, 1918 in Lewistown, MT. His father was a wheat farmer until drought destroyed the family's crop in the early 1920s. The family moved to Great Falls, MT, where Stan spent the remainder of his childhood. He enrolled at the University of Montana where he took an Asian history class taught by a man who would be very influential in his life, a man named Mike Mansfield.

In June of 1941, Stan was drafted out of college and began what would become a 24-year Army career. He was sent to Europe where he was a combat commander and fought in the Battle of the Bulge. He crossed the bridge at Remagen and was part of the first U.S. division to occupy Berlin. Stan entered the Korean War as a first lieutenant, where he served as an artillery officer at Pork Chop Hill. After completing his bachelor's degree at Utah State University, he went back to the Army to serve in Europe. The Army later assigned him to serve as secretary of the Army office of legislative liaison to the Senate, his first of three terms in this post. During his assignment to the Senate, he renewed his connection to the Senate Majority Leader from Montana, Senator Mike Mansfield.

By the time Stan retired from the Army in 1966 as a colonel, he was decorated with the Silver Star, the Legion of Merit, the Bronze Star for Valor with Three Oak Leaf Clusters and was inducted into the Field Artillery Officer Candidate School Hall of Fame.

He approached his career in the Senate in the same manner with which he approached his commitment to the Army, with integrity, with fairness, and with an enormous deal of respect for the institution. Stan was always troubled by the partisanship in Washington because he thought of the institution as a family. He honored the principles of the party, but always knew that it was part of a bigger picture. He was grateful for the opportunity to have served Senator Mansfield but, above all, Stan was grateful to have served in the United States Senate.

Even after many years in Washington, true to his roots, Stan always considered himself ``a gopher-shooting Montana boy at heart.'' I had the privilege of knowing Stan through his sons Robert, Jay and Mark, they were contemporaries of mine at West Point.

They established extraordinary careers in their own capacity. Bob Kimmitt was former Ambassador to Germany under President Bush. Jay Kimmitt served this institution as a member of the Appropriations staff. Mark Kimmitt is today a general officer to the U.S. Army.

Stan had a large family. He leaves behind his wife Eunice, his 5 children, his 12 grandchildren, and 1 great-grandchild. I extend my deepest condolences to his friends and his family. Stan Kimmitt served this Nation with distinction; the Senate shall miss such a devoted friend and such a humble servant.

I yield the floor.

Mr. President, I rise to recognize my friend John Holt, who is one of the great leaders of our faith community in Rhode Island. In many dimensions, his efforts have made our State a much better place, more decent, more noble, and more caring. He is somebody who recognizes that faith is not just words but it is actions, and each day he tries to put those faithful actions into the lives of the people of Rhode Island. With great pride, it is a pleasure and a real privilege to recognize today his serving as the Chaplain of the Senate.

Madam President, every 4 years an individual chosen by the American people steps forward to assume the awesome responsibilities as President of the United States. His first act is to take this oath:

I do solemnly swear that I will faithfully execute the

office of the President of the United States and I will, to

the best of my ability, preserve, protect, and defend the

Constitution of the United States.

George W. Bush took this oath on January 20, 2001, and again a few days ago on January 20, 2005. His overarching responsibility is to preserve, protect, and defend the Constitution. In order to protect, preserve, and defend the Constitution, you must understand what it says. As such, a President must rely on the advice of his legal counsel.

Alberto Gonzales has served as President Bush's legal counsel since 2001. In this capacity, he has provided advice to him that, in my view, ignores both the letter and spirit of the Constitution and the President's critical responsibility to preserve, protect, and defend it. Through his advice, he has set in motion policies that have harmed our interests at home and abroad.

Our Nation was founded by men and women fleeing severe political and religious persecution. Wary of authoritarian government or religious leaders, they created a nation by and for the people, a nation committed to the rule of law and the notion that every person has certain inalienable rights. Our Founding Fathers very deliberately did not create a new monarchy. They did not crown a king. Instead, they created a new system of government that relied on the rule of law that was agreed upon by representatives of the people.

As article VI of the Constitution states so eloquently:

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof, and all Treaties made, or

which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land. . . .

The Constitution is the supreme law, not the word of the President. I would also emphasize the language here includes all treaties, including the Geneva Conventions and the Convention Against Torture.

They are not extrajudicial. They are part of the Constitution. They are part of the responsibility of all of us to defend.

In the United States of America, the Constitution, our Federal laws and our treaty obligations are the means by which we as a people, in this grand experiment we call democracy, have agreed to rule ourselves.

The President, all Senators, all Representatives, the members of our state legislatures, and all executive and judicial officers, both of the United States and the individual states, are bound by an oath to support our Constitution.

This oath to defend and support our Constitution was also taken by Judge Gonzales in his current position as counsel to the President.

Now, Judge Gonzales is being considered to serve as the Attorney General of the United States, the chief law enforcement officer of the United States.

It is Judge Gonzales's failure to defend and support our Constitution, our federal laws, and our treaty obligations that leads me to believe he does not have the wisdom or judgment to be our next Attorney General.

Our Nation's Attorney General must ensure that no person is above the law--including the President of the United States--and that no person is outside the law, whether that person is deemed an enemy combatant, or held outside the United States.

Judge Gonzales's record does not justify such an appointment.

I recognize that much of the advice that Judge Gonzales gave was in the aftermath of the attacks of 9/11 and the emergence of the al-Qaida network as a grievous threat to the United States. Small terrorist cells dispersed worldwide and committed to suicide attacks producing mass casualties represented a new and disturbing threat to our country. The possibility that al-Qaida or other terrorist cells might acquire weapons of mass destruction, including nuclear devices, added an even more frightening element to the dangers we faced. We had to face this threat realistically. The policies of deterrence that served us well in the Cold War are difficult, if not impossible, to apply to these ruthless groups of terrorists. With respect to al-Qaida, we had to take preemptive action. And, we did in Afghanistan.

But the nature of this threat did not relieve us of our responsibilities to the Constitution and the structure of international treaties embodied in the Constitution. This is not being naive or sentimental. The durability of the Constitution testifies to both its strength and its wisdom. The structure of international treaties reflects hard won agreements based on experience. The Constitution requires careful and sincere interpretation when new challenges arise. It cannot be ignored or trivialized.

When it comes to the issue of the conduct of war, legal guidance must be particularly clear and it must recognize that the fury of war too often brings out the worst.

Ages ago, Thucydides wrote:

War, depriving people of their expected resources, is a

tutor of violence, hardening men to match the conditions they

face . . . Suspicion of prior atrocities drives men to

surpass report in their own cruel innovations, either by

subtlety of assault or extravagance of reprisal.

Shakespeare captured the essence of this visceral violence in his immortal phrase, ``Cry Havoc, and let slip the dogs of war.''

Abraham Lincoln understood the passions and emotions that grip the warrior. Writing to a friend in the midst of our Civil War, President Lincoln declared:

Thought is forced from old channels into confusion.

Deception breeds and thrives. Confidence dies, and universal

suspicion reigns. Each man feels an impulse to kill his

neighbor, lest he be first killed by him. Revenge and

retaliation follow. And all this, as before said, may be

among honest men only. But this is not all. Every foul bird

comes abroad, and every dirty reptile rises up.

Yet, the guidance provided by this Administration was confused at best and relied on the fine parsing of legal terms which may pass muster in the contemplative chambers of a judge but fails miserably in the crucible of war. This advice was a disservice to the men and women of the Armed Forces.

It is clear that as White House counsel, Judge Gonzales has been one of the architect's of the Administration's post 9/11 policies. In particular, he has helped craft or agreed to policies regarding the treatment of individuals captured and detained in the wars in Afghanistan and Iraq. These policies have denied detainees the protections of the Geneva Conventions, permitted them to be interrogated under a dramatically narrowed definition of torture, and denied them access to counsel or judicial review.

In at least one memorandum, Judge Gonzales apparently agreed that the President has the ability to override the U.S. Constitution and immunize acts of torture.

Although supporters of Judge Gonzales will point out that only one of five memoranda discussed at his nomination hearing were written by Judge Gonzales, he clearly acquiesced to the conclusions in the other memos.

As White House counsel, Judge Gonzales's role was to decide what legal advice was needed from the Department of Justice and then to weigh and distill that advice before giving his opinion to the President.

It is clear from the record that Judge Gonzales either agreed with the legal advice dispensed in these memoranda, or allowed poor legal advice to be passed onto the President.

Either way, I believe Judge Gonzales has been deeply involved in policies that have undermined our standing in the world and our historic commitment to the rule of law.

I think we must first put these memos and decisions in historical context.

The issue of the treatment of detainees in war is not a new one and an extensive legal framework has been developed to guide a nation's behavior during conflict.

The most well known and comprehensive are the Geneva Conventions, created in 1948, to mitigate the harmful effects of war on all persons who find themselves in the hand of a belligerent party. 192 countries, including the United States and Afghanistan ratified the treaty.

The Geneva Conventions were created in the aftermath of World War II and the Nuremberg Trials, by a world which had just experienced warring armies, the systematic rounding up and extermination of millions of innocent civilians, squalid POW camps, death marches, resistance movements and the aftermath of two nuclear bombs. Those who drafted the Geneva Conventions had pretty much seen it all, and they accounted for all of it in the Conventions.

The United States clearly took the Conventions seriously and made them the part of the law of our land by incorporating them as part of our legal system.

The War Crimes Act, passed by Congress and signed by the President in 1996, makes ``a grave breach'' of the Geneva Conventions a crime punishable by prison and even the death penalty.

Adding to this legal structure, the United States ratified the United Nation's International Covenant on Civil and Political Rights in 1992. The ICCPR prohibits arbitrary detention and ``cruel, inhuman or degrading treatment.'' The United States notified the UN that it interprets ``cruel, inhuman or degrading treatment or punishment'' to mean cruel and unusual treatment or punishment prohibited by the First, Eighth and/or Fourteenth Amendment to the Constitution.

Furthermore, in 1998, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention requires parties to take measures to prevent torture from occurring within any territory under their jurisdictions, regardless of the existence of ``exceptional circumstances'' such as a war or threat of war, internal political instability or other public emergency. The U.S. Congress implemented the treaty by enacting 18 U.S.C. sections 2340-2340A. Torture is defined in this statute as ``an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering upon another person within his custody or control'' outside the United States. Offenders can be subject to imprisonment and the death penalty.

The laws of warfare are also an integral part of military training and conduct. The Uniform Code of Military Justice, or UCMJ, was a law enacted by Congress in 1950. The mistreatment of prisoners may be punishable as a crime under article 93, UCMJ, which forbids a soldier to act with ``cruelty toward, or oppression or maltreatment of, any persons subject to his orders.'' Article 97 prohibits the arrest or confinement of any person except as provided by law. The UCMJ also punishes ordinary crimes against persons such as assault, rape, sodomy, indecent assault, murder, manslaughter, and maiming. Article 134 also punishes ``all disorders and neglects to the prejudice of good order and discipline in the armed forces'' and ``all conduct of a nature to bring discredit upon the armed forces.''

The Army also has regulations implementing the laws of war, including regulation 190-08, which implements the Geneva Conventions. All soldiers are expected to abide by Army regulations and if a soldier violates a regulation, he or she is subject to punishment under the Uniform Code of Military Justice.

Despite the Constitution's clear prohibition on cruel and unusual punishment, despite law after law, treaty after treaty prohibiting torture, the President's chief counsel, Judge

Gonzales, requested a series of legal memos regarding the applicability of treaty provisions and permissible interrogation techniques in the war on terrorism.

One of these memos, the August 1, 2002, Bybee Memorandum, was apparently written to explore what coercive tactics U.S. officials could use without being held criminally liable.

This memo created a new and radically narrow definition of torture. It stated that torture would require interrogators to have specific intent to cause physical pain that ``must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death.'' Mental torture is defined in the statute but the Justice Department memo states that mental torture must result in ``significant psychological harm lasting for months or even years.''

According to Harold Koh, Dean of the Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, and an international law expert, this memo is ``the most clearly erroneous legal opinion'' he has ever read. In testimony before the Judiciary Committee he stated:

In sum, the August 1, 2002 OLC memorandum is a stain upon

our law and our national reputation. A legal opinion that is

so lacking in historical context, that offers a definition of

torture so narrow that it would have exculpated Saddam

Hussein, that reads the Commander-in-Chief power so as to

remove Congress as a check against torture, that turns

Nuremberg on its head, and that gives government officials a

license for cruelty can only be described--as my predecessor

Eugene Rostow described the Japanese internment cases--as a

``disaster.''

One would have expected the Counsel to the President to

have immediately repudiated such an opinion. Judge Gonzales

did not.

Instead, this memo was endorsed by Judge Gonzales as the legal opinion of the Justice Department on the standard for torture.

Now, over 30 years ago, the U.S. Navy vessel USS Pueblo was sent on an intelligence mission off the coast of North Korea. On January 23, 1968, it was attacked by North Korean naval and air forces. Eighty-one surviving crewmembers of the USS Pueblo were captured and held captive for 11 months. One survivor, Harry Iredale, related his experiences with a North Korean interrogator named, ``The Bear:''

The Bear proceeded to yell at me to confess. He had me

kneel on the floor while two guards placed a 2-inch diameter

pole behind my knees and other guards jumped on each end of

it several times. Then the Bear picked up a hammer handle and

proceeded to smash it onto my head, completely encircling my

head with lumps as I screamed in pain.

I think most of us would consider this graphic description one of torture. But under the Bybee memorandum's definition, this would not constitute organ failure or death, so it would not be considered torture.

More importantly, perhaps, is that the North Korean regime still exists and thousands of American soldiers line the border. Our soldiers could still be captured. And now we cannot hold the North Koreans to a higher standard of conduct, because ours is the same.

The August Bybee memorandum also enumerated reasons that American officials could not be held criminally liable for coercive interrogation tactics that fell outside of this new narrow definition of torture.

It also posits that officials can invoke ``necessity'' or ``self- defense'' as a defense against prosecution for such acts, despite the fact the Convention Against Torture clearly states there are no ``exceptional circumstances'' that may be invoked as justification for torture.

Although the torture provisions of the August 2002 Bybee memo were rescinded and replaced four weeks ago by a new December 30, 2004 memo, the Bybee memo was Administration policy for almost 2\1/2\ years and has had extremely harmful effect on both our military and intelligence communities.

If this memo with its narrow definition of torture was so wrong on its face that it had to be rescinded, why didn't Judge Gonzales know it was wrong at the time he requested and endorsed it?

One of the most disturbing parts of the August Bybee memorandum is the suggestion that the President and other executive officials can escape prosecution for torture on the ground that ``they were carrying out the President's Commander-in-Chief powers.''

By adopting the doctrine of ``just following orders'' as a valid defense for United States soldiers and officials, the opinion undermines the very underpinnings of individual criminal responsibility set forth after World War II, and now embodied in the basic instruments of international criminal law.

This memorandum basically puts the President, and his subordinates, above the law, as it states, ``any effort to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President.''

This is antithetical to everything we know about our founding document and the rule of law.

It ignores the fact that the Convention Against Torture and other treaties have been approved by Congress, elucidated by statute and become the law of the land.

The Bybee memo's reading of the President's powers as Commander-in- Chief essentially would allow him to ignore or order that the criminal prohibition against torture in the United States code be set aside. The President could trump Congress' power under Article I, section 8, clause 10 to ``define and punish . . . offenses against the law of nations'' such as torture.

Interestingly, nowhere does the August Bybee memorandum mention the landmark Youngstown Steel & Tube Co. v. Sawyer decision in which the Supreme Court explained why the President's Commander-in-Chief or inherent executive power were not enough to allow him to take over the American steel industry during a time of crisis. In his concurring opinion, Justice Jackson eloquently discussed the limits on such Presidential powers, especially when the ``President takes measures incompatible with the express or implied will of Congress.''

In fact, Bybee cites no precedent for his unique enhancement of the President's Commander-in-Chief power other than:

In light of the President's complete authority over the

conduct of war, without a clear statement otherwise, we will

not read a criminal statute as infringing on the President's

ultimate authority in these areas. We have long recognized,

and the Supreme Court has established a canon of statutory

construction that statues are to be construed in a manner

that avoids constitutional difficulties so long as a

reasonable alternative construction is available.

This is nonsense. There are statutes on the book outlawing torture. There is no precedent cited because scant precedent exists, it any.

Now if this Commander in Chief override exists, if the President can exercise his Commander-in-Chief power to ask his subordinates to engage in torture to protect the national security of our country, how would this be done? One would think the Commander-in-Chief would have to order his subordinates to engage in such conduct for it to be legal. So where are the orders? And if there are no orders, aren't U.S. soldiers and intelligence officers still subject to the supreme law of our land--our Constitution, our statutes and our treaty obligations--and can they not be prosecuted for violations of this law? How would Judge Gonzales approach this dilemma, created by his own legal reasoning, if he is nominated-confirmed Attorney General? Would he prosecute subordinates of the President who engaged in what most rational people would consider torture during the past 2\1/2\ years and then defend themselves with the reasoning in the Bybee memorandum?

In addition, at this time there are over 20,000 private contractors in Iraq. Many of them are engaging in ``military functions'' in support of U.S. forces. These civilians are currently liable for prosecution in U.S. courts for various offenses, under the U.S. laws implementing the Convention on Torture. In addition, persons who are ``employed by or accompanying the armed forces'' may be prosecuted under the Military Extraterritorial Jurisdiction Act. Now, many such offenses are permitted by the Bybee memorandum but are prohibited by other U.S. law.

Again, would Judge Gonzales vigorously prosecute violations of law that, either through his advice or the legal reasoning he deemed were acceptable practices activities?

Now the creation of this so-called Commander-in-Chief override power has created some consternation in

legal circles. But neither Judge Gonzales nor the Justice Department has backed away from it.

The December 30, 2004, memo declares that it supersedes the August 2002 Bybee memo in its entirety. However, the Office of Legal Counsel has not yet clearly and specifically renounced the parts of the August 2002 memorandum concerning the Commander in Chief's power stating:

Consideration of the bounds of any such authority would be

inconsistent with the President's unequivocal directive that

United States persons not engage in torture.

Judge Gonzales's own public statements have also urged a broad view of the President's power to conduct the war on terror. In a June 2004 speech before the American Bar Association's Standing Committee on Law and National Security, Judge Gonzales stated:

[The President] has not had to--as I indicated, in terms of

what he has done or has not done, he has not exercised his

Commander-in-Chief override, he has not determined that

torture is, in fact, necessary to protect the national

security of this country.

But it seems that Judge Gonzales's statement is at least providing for a situation in which the President could make that determination, but under what constitutional principle I do not know.

Furthermore, Judge Gonzales was unwilling to repudiate the Commander in Chief override power when asked directly about it during his confirmation hearing, saying that it was a hypothetical question about a hypothetical situation and he was ``not prepared in this hearing to give you an answer to such an important question.''

Now, I always assumed the purpose of a hearing to confirm a Cabinet official was that he would answer, after preparation, important questions involving his proposed responsibilities. Apparently, Judge Gonzales did not believe that was the role of the hearing. He provided no answer.

In addition, in responding to a followup question submitted by Senator Leahy, Judge Gonzales refused to answer in the affirmative that the President could not override the Convention Against Torture and any implementing legislation and immunize the use of torture under any circumstances, stating again:

[T]he President does not intend to use any authority he

might conceivably have to authorize the use of torture.

I guess it is one of those situations where torture is in the eye of the beholder. Much of what seems to have happened to those crew members of the Pueblo looks to us as torture, but I guess it was not torture under the Bybee memorandum.

As Attorney General, Judge Gonzales will be responsible for enforcing the laws of our land. But he himself created an exception to these laws for the President. He not only allowed torture to be redefined, he also agreed to a new, unchecked power for the President that no President before ever had.

Now, I would like to discuss two memoranda Judge Gonzales requested from the Department of Justice Office of Legal Counsel regarding U.S. treaty obligations in the war in Afghanistan. Specifically, he asked if treaties forming part of the laws of armed conflict applied to conditions of detention and procedures for trials of members of al- Qaida and the Taliban militia. He also asked that if the Geneva Conventions did apply in Afghanistan, would the Taliban, the military force of Afghanistan, qualify for prisoner-of-war status.

As I noted earlier, after World War II, the United Nations drafted, and most of the world, including the United States and Afghanistan, ratified the Geneva Conventions. There are four conventions. The third convention defines six classes of persons who, if captured, should be considered as prisoners of war. The most protected class under the Geneva Conventions is the prisoner-of-war category. Civilians and spies are protected as other classes in the fourth Geneva Convention. Running through all of these conventions is common article 3, which prohibits:

[O]utrages upon personal dignity, in particular,

humiliating and degrading treatment.

Most experts would agree this is the minimum standard for the treatment of all detainees.

As I stated in the beginning of my remarks, September 11 did usher in a new era. It was reasonable for Judge Gonzales to wonder if perhaps a group such as al-Qaida was one of those categories of individuals or groups that was not authorized automatic protection under the Geneva Convention. However, the Geneva Conventions maintain if the status of a captured individual is in doubt, a competent tribunal must decide that status. Furthermore, the Geneva Conventions are only one part of the law of armed conflict. The Convention Against Torture and the assurance of basic human rights remain in place at all times.

On January 22, 2002, the Justice Department sent a memo to Judge Gonzales regarding treaty obligations. Also signed by Jay Bybee, the Assistant Attorney General, the memo analyzed the War Crimes Act and the Geneva Conventions and concluded:

[N]either the federal War Crimes Act nor the Geneva

Conventions would apply to the detention conditions of al-

Qaida prisoners. We also conclude that the President has the

plenary constitutional powers to suspend our treaty

obligations toward Afghanistan during the period of conflict.

A memo sent 2 weeks later concluded that the Taliban did not qualify for prisoner-of-war status.

Now, legal experts can and have disagreed about the conclusions reached by the Department of Justice. But what I find deeply disturbing is the questionable judgment and cavalier attitude Judge Gonzales used outlining his recommendations as White House legal counsel.

On January 25, 2002, Judge Gonzales drafted a memorandum to the President agreeing with the January Bybee memorandum. He states two positive aspects of this decision. First, he finds that suspending these treaty obligations ``preserves flexibility,'' which, I would note, is not a legal conclusion. He then states that the war on terrorism is a new kind of war, a ``new paradigm that renders obsolete Geneva's strict limitation on questioning of enemy prisoners and renders quaint some of its provisions.'' A second positive aspect Judge Gonzales concluded is that since the Geneva Conventions do not apply to al-Qaida and the Taliban, it ``substantially reduces the threat of domestic criminal prosecution under the War Crimes Act.''

Judge Gonzales then goes on to list seven negative points about suspending the War Crimes Act and the Geneva Conventions in these circumstances, including:

The U.S. had abided by the Geneva Conventions since their creation in 1948.

The U.S. could then not invoke the Geneva Conventions for U.S. forces captured or mistreated in Afghanistan.

The War Crimes Act could not be used against the enemy.

The position would ``likely provoke widespread condemnation among our allies and in some domestic quarters.''

In the future, other countries may look for ``loopholes'' to avoid complying with the Geneva Conventions.

The determination ``could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct of combat, and could introduce an element of uncertainty in the status of adversaries.''

Remarkably, after weighing the pros and cons, Judge Gonzales found the negatives of such a decision by the President were ``unpersuasive.'' He concurred in the Justice Department's decision that the Geneva Convention did not apply to al-Qaida and the Taliban.

On January 26, 2002, Secretary of State Powell objected to the presentation and conclusions in the Gonzales memo. Secretary Powell sent his own memo to Gonzales, stating:

I am concerned that the draft does not squarely present to

the President the options that are available to him. Nor does

it identify the significant pros and cons of each option.

Secretary Powell lists as cons, in his words:

It will reverse over a century of U.S. policy and practice

in supporting the Geneva Conventions and undermine the

protections of the law of war for our troops; it is a high

cost in terms of negative international reaction, with

immediate adverse consequences for our conduct of foreign

policy; it will undermine public support among critical

allies, making military cooperation more difficult to

sustain; and Europeans and others will likely have legal

problems with extradition.

At a February 4, 2002, National Security Council meeting to decide this issue and make recommendations to the President, the Department of State, the Department of Defense, and

the Chairman of the Joint Chiefs of Staff were in agreement that all detainees would get the treatment they are or would be entitled to under the Geneva Conventions.

Now Judge Gonzales was faced with two opposing opinions: one, from the Department of Justice, which offered a new and untried approach to international law; and the other which was supported by decades of precedent and the entire military establishment, which was actually going to be on the front lines of the conflict. Judge Gonzales had to choose what he was going to advise the President.

On February 7, 2002, President Bush, presumably following the legal advice of his counsel, issued a memorandum stating that the Geneva Conventions did not apply to al-Qaida, and that while the Taliban were covered by the Geneva Conventions, they did not qualify for POW status. The fact that the third Geneva Convention requires a competent tribunal to determine this fact was ignored. Furthermore, President Bush stated that the Geneva Conventions' common article 3, the minimum standard of human rights for noncombatants, including prisoners, did not apply to either al-Qaida or the Taliban.

Mr. President, these questionable decisions of Judge Gonzales have profound effects. What he found unpersuasive was the most correct statement in his memo--that his advice would, in his words, ``undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat and could introduce an element of uncertainty in the status of adversaries.''

In January 2004, the Pentagon announced that they were investigating reports of abuse of prisoners in Iraq. In May 2004, the world was horrified when pictures of some of the abuses at Abu Ghraib prison became public. Now for many months, DOD officials have maintained that such abuses were the acts of a few depraved, low-ranking individuals, but reports of abuses in other prisons, such as Guantanamo and the Adhamiya Palace in Baghdad, are coming to light.

To date, the Pentagon has initiated several investigations into these abuses. Only some of the investigations have been completed, and they all concern Abu Ghraib. However, they have startlingly similar findings. President Bush's February 7, 2002, memorandum set new policy that conflicted with longstanding Army doctrine based on established laws of war, and this conflict caused confusion and ultimately a corrosion of standards.

The Schlesinger report, released on August 24, 2004, was written by an independent panel chaired by the former Secretary of Defense, Jim Schlesinger, to review DOD detention operations. In fact, the report was essentially commissioned by the present Secretary of Defense, Mr. Rumsfeld. Dr. Schlesinger pointedly blamed the administration for confusion in the ranks. The Schlesinger report found ``Lieutenant General Sanchez signed a memo authorizing a dozen interrogation techniques beyond standard Army practice, including five beyond those applied at Guantanamo . . . using reasoning from the president's memo of February 7, 2002.''

Another report, completed by Lieutenant General Jones, stated that confusion over different standards for detainee treatment and interrogation, dictated by the administration and followed through by the Army, led to ``a permissive and compromising climate for soldiers.''

In order to overcome these problems, the Schlesinger report recommended that ``the United States should further define its policy applicable to both the Department of Defense and other Government agencies, on the categorization and status of all detainees as it applies to various operations and theories. It should define their status and treatment in a way consistent with U.S. jurisprudence and military doctrine and with the [United States] interpretation of the Geneva Conventions.''

It is a fact of life that there are always going to be abuses of human rights in time of war. But the abuses I have discussed above, and that are still, unfortunately, coming to light, are systemic. I would argue that they are the result of a corrosive trend started by the President's February 7 memo, which was based on advice given by Judge Gonzales in consultation with the Department of Justice. This is not the type of legal thinking and judgment that I find suitable for the Office of Attorney General.

There is one final issue that needs to be mentioned. That is the deeply disturbing issue of ``ghost detainees.'' The Bush administration has always maintained that the Geneva Conventions are in force in Iraq. Article 49 of the fourth Geneva Convention prohibits ``individual or mass forcible transfers, as well as deportations of protected persons from occupied territory . . . regardless of their motive.''

Yet an October 24, 2004, Washington Post story states that a confidential March 19, 2004, Justice Department memorandum granted permission to the CIA to take Iraqis out of their country to be interrogated for a ``brief but not indefinite period.'' It also said the CIA can permanently remove ``illegal aliens.'' Other reports state that as many as a dozen detainees were moved under this policy.

In addition, the third and fourth Geneva Conventions maintain that international organizations such as the Red Cross must have access to prisoners. Two generals investigating the abuses of Abu Ghraib, Major General Taguba and General Kern, noted in their reports that the U.S. hid prisoners from Red Cross teams. General Kern stated that the number of ghost detainees ``is in the dozens, perhaps up to 100.''

The role of Judge Gonzales in the production and approval of this memo is yet unknown. But given his participation in other decisions made about the wars in Iraq and Afghanistan, it is not irrational to assume that he had some participation.

The existence of ghost detainees is a violation of the Geneva Convention. Someone is responsible for this decision and must be held accountable. If Judge Gonzales is confirmed as Attorney General, will he pursue these types of investigations and potential prosecutions?

Some of my colleagues will likely state that opposition to Judge Gonzales is partisan politics. But we are not alone in opposing this nomination. Twelve retired admirals and generals sent a letter to the Judiciary Committee expressing deep concerns about the nomination of Judge Gonzales. This letter includes the following statement:

During his tenure as White House Counsel, Judge Gonzales

appears to have played a significant role in shaping U.S.

detention and interrogation operations in Afghanistan, Iraq,

Guantanamo Bay, and elsewhere. Today it is clear that these

operations have forced a greater animosity towards the

[United States], undermined our intelligence gathering

efforts, and added to the risks facing our troops serving

around the world.

These are the words of distinguished general officers who have served their country in uniform upwards of 30 or more years.

A group of 17 religious leaders and organizations also sent a letter to the Judiciary Committee expressing concern about Judge Gonzales's nomination and his role, in their words, in ``sanctioning torture.'' Another group of more than 200 religious leaders sent a letter to Judge Gonzales stating:

We fear that your legal judgments have paved the way to

torture and abuse.

Even his colleagues in the legal community have doubts. A group of 329 prominent lawyers sent a letter to the Judiciary Committee stating that Judge Gonzales's purported role in deciding the treatment of detainees ``raises fundamental questions about Judge Gonzales's fidelity to the rule of law, about his views concerning the responsibility of a government lawyer, and about the role of the Department of Justice.''

Much has been made and much should be made about Judge Gonzales's rise from very humble beginnings. There is no disputing this fact. There is no disputing that the nomination of a Latino to such an August position is a significant, notable moment in our Nation's history. Indeed, there are many people in my State who see their deepest hopes and dreams for their children and grandchildren in the story of Judge Gonzales's rise. Such a sense of pride is no small thing. But our duty as Senators is to advise and consent on the fitness and skills of nominees. And there are few positions in the Cabinet that are as sensitive and important as that of Attorney General.

As heartening as Judge Gonzales's personal story is, like the congressional Hispanic caucus and a number of civil rights groups such as the Mexican American Legal Defense Fund, I believe that Judge Gonzales has left too many important questions unanswered.

Indeed, as The congressional Hispanic caucus has pointed out:

[T]he Latino community continues to lack clear information

about how the nominee, as Attorney General, would influence

policies on such important topics as the Voting Rights Act,

affirmative action, protections for persons of limited

English proficiency, due process rights of immigrants, and

the role of local police in enforcing federal immigration

laws.

The right to vote, protection from discrimination, and assistance for those who have yet to master the English language are issues of great importance to Latinos in my State, and they deserve real answers. Despite Judge Gonzales's superb academic credentials and his record of achievement, I have too many concerns about his decisions made on legal matters, particularly in his role of the past 4 years as White House Counsel, to vote for his confirmation.

The genius of our Founding Fathers was not to allow power to be concentrated in the hands of a few. They were particularly concerned about a concentration of power in the President. Although they made the President the Chief Executive Officer of our Government and the Commander in Chief, the Founding Fathers constrained the President through the very structure of our Government, through both law and treaty. The Attorney General has a duty not just to serve the President but, also and ultimately, to support, protect, and defend the constitutional commitment to a system of checks and balances. I do not feel comfortable with Judge Gonzales's ability to do this.

After studying his record, I do not believe that Judge Gonzales has demonstrated the judgment necessary to perform the duties of the highest law enforcement officer of our land.

Mr. President, I ask unanimous consent to have printed in the Record a number of articles bearing on Judge Gonzales's role in torture policies, as well as recent statements by the Leadership Conference on Human Rights and the Center for Constitutional rights opposing this nomination.

I suggest the absence of a quorum.

Mr. President, may I inquire how much time I have been allotted?

Mr. President, I rise today to join my colleagues in discussing the nomination of Dr. Condoleezza Rice for Secretary of State of the United States. I must confess, after careful deliberation I intend to oppose this nomination.

There is no doubt that Dr. Rice is an extraordinarily talented, capable individual. Her credentials as an academic are impeccable. She has a compelling life story. She has done remarkable things in her life. But I believe the best way to judge what would be her performance as Secretary of State is looking closely at what she has done as a National Security Adviser under this Bush administration. I think in that regard she leaves some very troubling questions unanswered as her nomination comes before us this day.

Most of what she did with the President, obviously, as his National Security Adviser, was confidential and necessarily is not subject to public view. But she has not, in my view, successfully responded to obvious questions about inconsistencies in her statements, about policies she advocated, apparently, and about her role in marshaling information for the President of the United States. In a very simplistic view, I think the National Security Adviser's chief role is to make sure the President has every bit of information he needs to make very difficult judgments--not just the information that favors one side or the other but all the information. Indeed, not just the bold strokes but the nuances. My sense is that this mission was not adequately performed by Dr. Rice.

She has been a key figure in the Bush foreign policy establishment going back years when Governor Bush decided to run for President. She is someone who is very close to the President. Again, I think she has to be judged on the result of that partnership.

One of the aspects that is troubling to me is the fact that Dr. Rice has maintained that Iraq is the central arena in the war on terror, when, in fact, this is a global, international threat to the United States and that, in fact, it appears that Iraq was not the global center, the central arena in this war on terror.

She applied a doctrine of preemption which is applicable to terrorist cells, but I believe she applied it incorrectly in the case of Iraq--at least the administration did, and she was the principal architect or one of the principal architects of that policy.

Many people expressed alternate views about the role of Iraq as a center of terror. Brent Scowcroft, a predecessor as National Security Adviser, pointed out in an editorial:

An attack on Iraq, at this time, would seriously

jeopardize, if not destroy, the global counterterrorist

campaign we have undertaken.

To this date I think it certainly has not advanced the policy we are actively pursuing throughout the world.

She suggested on several occasions there are strong links between al- Qaida and Saddam Hussein. On March 9, 2003, on ``Face the Nation,'' Dr. Rice declared:

Now the al-Qaeda is an organization that's quite disbursed,

and quite widespread in its effects, but it clearly has had

links to the Iraqis, not to mention Iraqi links to all kinds

of other terrorists.

On ``Meet the Press'' on September 28, 2003, Dr. Rice said:

No one has said that there is evidence that Saddam Hussein

directed or controlled 9/11, but let's be very clear, he had

ties to al Qaeda, he had al Qaeda operatives who had operated

out of Baghdad.

That, in my view, is not accurately reflecting what many other sources subsequently confirmed, that, in fact, any ties Saddam Hussein had with al-Qaida were very tenuous if they existed at all.

On June 27, 2003, the New York Times reported:

The chairman of the monitoring group appointed by the UN

Security Council to track al Qaida told reporters that his

team had found no evidence linking al Qaida to Saddam

Hussein.

And 6 months later, the New York Times further reported:

CIA interrogators have already elicited from the top al

Qaida officials in custody that, before the American-led

invasion, Osama bin Laden had rejected entreaties from some

of his lieutenants to work jointly with Saddam.

As far back as November 2002, Europe's top investigator of terrorism told the LA Times:

We have found no evidence of links between Iraq and al

Qaeda. If there were such links, we would have found them.

But we have found no serious connections whatsoever.

But what I think Dr. Rice did publicly, and perhaps even within the confines of the West Wing, is to make the case for these links when the case was at least highly questionable. None of that questioning, none of that nuance seemed to have been presented effectively to the President, certainly not effectively to the public.

During her confirmation hearings, Dr. Rice asserted her belief, reiterated her belief on the topic of troop strength, that she believed that the levels in Iraq were sufficient from the beginning of the war up to and including phase IV operations. Phase IV operations are those posthostility operations to stabilize the country. In her phrase she said that they were ``adequately resourced.''

What we have discovered in the months since the successful action leading to the fall of Saddam is instability, violence--demonstrating, I think, less than adequate forces there in country to deal with these problems.

It turns out that in March 2003 when a lieutenant colonel was briefing the issue of phase IV, the postoperation activities of our military forces, phase 4-C, the chart was very simple. It said, ``To Be Provided.'' Again, I think this is a glaring error. If you are the National Security Adviser, you have to be able to assure the President of at least a plan for every contingency, thorough, adequate, with sufficient resources and sufficient troops. Since the success of the military campaign, we have been, in my view, plagued by insufficient troops. Indeed, it was interesting to note that Ambassador Bremer, just last October, stated:

We never had enough troops on the ground.

This, I think, is a glaring mistake. It might have been the decision of a principal to overrule their best advice, but that is not the case she is making today as she seeks this nomination for Secretary of State.

There is another troubling issue and that, of course, is the one that received quite a bit of notoriety--the appearance in the State of the Union speech of a reference to Iraq attempting to buy yellow cake from Africa even though weeks before that, many weeks before that, the CIA claimed that such an assertion was unsubstantiated.

In a July 2003 interview with Jim Lehrer, Dr. Rice stated she either did not see or could not remember reading this CIA clearance memo.

I would argue if a piece of information is going to be uttered by the President of the United States in a State of the Union speech dealing with the critical issues of peace and war, of weapons of mass destruction, of the attempt of one nation to obtain nuclear material from another, that is a point of information that has to be of concern to the National Security Adviser.

She claims she delegated it to her deputy, Stephen Hadley. But still it is her responsibility. That was a misstatement--a misstatement that had already been pointed out by the CIA before the President made such a statement before our colleagues in the State of the Union Address.

The interesting point to make also is that Mr. Hadley now apparently has been selected to be the National Security Adviser even though if there was a mistake he apparently is the one who is determined to be responsible--at least in Dr. Rice's recollection.

There is another issue, too. In October 2003, the White House announced the creation of an ``Iraq Stabilization Group,'' recognizing that something more had to be done to stabilize the situation. Dr. Rice was charged with leading this stabilization group. This group was designed to coordinate activities there. She was in charge. There were four coordinating committees on counterterrorism, economic development, political affairs, and creation of clearer messages to the media both in the United States and within Iraq.

There has been no product of this committee, no apparent impact on policy. It is a void in terms of what it has done. Yet this was one of her major responsibilities.

I think these are serious issues about her stewardship of the very critical role as National Security Adviser and raises serious questions in my mind of her capacity to do differently as Secretary of State.

She also indicated many times that prior to 9/11 the policy of the Bush administration--and her advice by inference--was a strong focus on counterterrorism. Yet I understand Dr. Rice was scheduled to deliver a speech on September 11 at Johns Hopkins in which she would indicate the cornerstone of the Bush foreign policy was missile defense.

Having served in this body during that period of time, I can tell you the emphasis was on missile defense. It was not on counterterrorism. It was not on the old-fashioned kind of boots on the ground, intelligence, striking brigades. It was a multibillion-dollar effort on developing a national missile system. I think her speech scheduled for that day was emblematic of what the focus was.

Also, before 9/11, the Bush administration was preparing significant cuts in the counterterrorism program. Those cuts were obviously obviated by the terrible attacks on New York on that dreadful day.

Richard Clarke, the counterterrorism expert in the Clinton administration, sent an urgent memo to Dr. Rice directly asking for a meeting of principals about the impending attack by al-Qaida. That was January 24, 2001--days after the President took office. There was no meeting with her on such topic until 1 week before 9/11.

Internal Government documents show that the Clinton administration officially prioritized counterterrorism as the ``tier I'' priority, but when the Bush administration took office, top officials downgraded counterterrorism. Even Dr. Rice admitted, ``We decided to take a different track.''

There again, was the President given the best advice? Was all the information marshaled so he could make good judgments? Were the people who had viewpoints that might be inconsistent with the group think of the time allowed in? That is a special role of the National Security Adviser, and a very difficult role.

These are a few of the issues which I think have to be considered with this nomination. There are other issues, too.

The President, in my view, is basically replicating his inner circle now in the broader context of the Cabinet. This raises an issue that was identified by John Prados, a senior fellow at the National Security Archive at George Washington University. What he said is:

The administration is setting itself up for a very closed

process of creating foreign policy. It's going to eliminate

consideration of wider points of view.

In effect, we are in danger of creating an echo chamber of foreign policy in which one loud voice carries because it reverberates without check. That, I think, would be a very dangerous situation.

There are other areas of concern that I have with respect to Dr. Rice's nomination. She has excellent access to the President. There are friends of hers who say she and the President have a ``mind meld.''

I guess they think alike. But being Secretary of State or being any Cabinet Secretary is not just having access, rapport, and a sense of what the boss wants; it is also having the ability and the interest to tell hard truths which you know are not going to be accepted well. That is something that is important.

Again, I don't know. It is hard to predict these things--whether she possesses that kind of ability to tell someone whose mind is melded with hers that he is wrong, or she will even understand where policy requires a different perspective.

As the New York Times editorial characterized her first term as National Security Adviser, according to their words:

She seemed to tell [President Bush] what he wanted to hear

about the decisions he's already made, rather than what he

needed to know to make sound judgments in the first place.

That type of approach will not serve a Secretary of State very well.

She has also broken a longstanding precedent recognized by preceding National Security Advisers who refrain from partisan politics. She gave speeches espousing the administration's policy in key battleground States of Ohio, Florida, and Pennsylvania beginning in May 2004. Her actions were sharply criticized by her predecessor, Zbigniew Brzezinski, National Security Adviser for President Carter. He stated that ``the national security adviser is the custodian of the nation's most sensitive national security secrets and should be seen as an objective adviser to the President'' and not just another member of the political team.

We have I think serious issues raised by this nomination. No one can deny her ability. But I think she has not successfully explained these inconsistencies of statements and these policy mistakes which I believe have seriously eroded our position in the world.

She has, along with the President, apparently espoused a unilateral policy that has isolated many of our traditional allies. It has us going it alone in Iraq at a huge cost. The President is sending up to us a supplemental budget of $80 billion. Today, the operations officer for the U.S. Army indicated they assume they will have over 100,000 troops in Iraq not just this year but next year. That means--just doing the arithmetic--that we can expect another $80 billion-plus bill next year, and still we are in a difficult and confusing situation.

I think Dr. Rice's nomination recognizes and represents a continuation of a policy which has us bogged down in Iraq while Iran and North Korea continue to advance their nuclear ambitions and while a diminished but still dangerous al-Qaida continues to plot against us.

These facts--this strategic situation--I believe requires if not a change in direction at least a realistic reassessment of where we are and how we got there.

Dr. Rice's nomination does not appear to give hope to this change in direction or realistic reassessment. Therefore, I will vote against this nomination.

I yield the remainder of time. I suggest the absence of a quorum.

Mr. President, I rise to express my support for S. 2845, the intelligence reform bill.

I first want to commend the 9/11 families who have worked so tirelessly to ensure that necessary reforms were implemented through the formation of the 9/11 Commission and the enactment of this bill.

I believe this bill is an important first step toward needed intelligence reform. As we are all aware, intelligence is the key to keeping America safe and winning the global war on terrorism. I think that there are many provisions of this bill which will improve U.S. intelligence. It creates a Director of National Intelligence who has personnel and budget authority; establishes an Information Sharing Environment to facilitate the sharing of terrorism information among all appropriate Federal, State, local, tribal and private sector entities; provides for training and education to meet linguistic requirements; and emphasizes the use of open intelligence, a resource I believe we have overlooked recently to our detriment.

I am also pleased that this bill establishes a National Counterproliferation Center since I believe the proliferation of weapons of mass destruction and the potential for terrorists and rogue states to obtain these weapons are the greatest threats facing us today.

In addition, I commend the House and Senate for providing for a Privacy and Civil Liberties Oversight Board within the Executive Office of the President that would ensure that privacy and civil liberties concerns are appropriately considered in the implementation of laws, regulations, and executive branch policies related to efforts to protect the Nation against terrorism. While Americans are more willing to give up some of their privacy after 9/11, necessary intrusions must be carefully balanced against the rights of U.S. citizens and I believe the Board will help maintain the balance.

Again, this bill is simply a first step. The United States remains vulnerable in many areas. I do not believe the bill does enough to provide for transportation security such as for ports, public transportation and railroads. In addition, it does not address other asymmetrical threats such as food safety. Two days ago Secretary of Health and Human Services Thompson noted how easy it would be to tamper with and poison our food supply.

Finally, I would like to express my disappointment with the administration's and Republican congressional leadership's participation in this undertaking. The administration originally did not want a 9/11 Commission and its support of this bill was lukewarm at best. The tragedy of September 11 made it clear that our Nation was not as secure as it could be and changes needed to be made. It is the duty of the administration to make those changes as quickly as possible. September 11 was over 3 years ago and we are just now enacting the first changes. The process certainly could have proceeded more quicky if the administration had been more actively engaged throughout the process.

But we have a bill which is a good first step. I support this bill and look forward to working with my colleagues on future reforms.

Mr. President, I rise to commend J.B. Hudson, who is retiring after 42 outstanding years of Federal service to the United States Army.

In 1962, Mr. Hudson began his Government career at Fort Eustis, VA, as a management analyst with the Office of the Assistant Chief of Staff, Comptroller. While pursuing his civilian career, Mr. Hudson also served as an Army reservist, 1963-1969, and continued his post graduate education earning a masters of personnel administration from George Washington University, 1969. In 1966, he accepted a position at Fort Monroe, VA, where he served as a management analyst with the Office of the Deputy Chief of Staff, Comptroller; and later, as chief, Management Improvement Branch, Office of the Deputy Chief of Staff, Resource Management from 1973-1975.

Since 1975, Mr. Hudson has been with the Office of the Administrative Assistant to the Secretary of the Army serving in a number of senior leadership positions, including deputy director and director, studies and analyses staff, 1975-1977; director, plans and projects, 1977-1979, director, policy and plans/safety, security and support services-- Washington, 1979-1995, and deputy administrative assistant, 1995-1996. In over 42 years of Government service, Mr. Hudson has received numerous honors and awards, including the Meritorious Civilian Service Award and the Decoration for Exceptional Civilian Service.

Mr. Hudson is an extraordinary leader who recognizes that people are his most important resource. He epitomizes leadership by example, perpetuating a work environment in which harmony, resilience, and productivity reign. In the days following the terrorist attack on the Pentagon, he faced his toughest leadership challenge. Not only did he have to deal with the tragic loss of 40 staff members and the injury of many more, he also had to lead the effort of restoring calm and productivity to the agency, the Army, and the Pentagon, minimizing any disruption of support to the Army and OSD.

As the overseer of the Defense Post Office, Mr. Hudson faced the possibility of receiving mail contaminated with chemical or biological agents since the Pentagon's mail is processed through the same facility where two United States Postal Service workers died from exposure of mail contaminated with anthrax spores. Working in collaboration with Defense Department and White House officials, Mr. Hudson quickly assessed the threat and developed courses of defense.

His reputation for initiating leading-edge business practices is widely recognized. His vision, adaptability, and passion for customer success have enabled him to gain recognition for the Office of the Administrative Assistant to the Secretary of the Army as a preferred support provider throughout Headquarters, Department of the Army, and Defense Department activities within the Pentagon and the National Capital Area.

Mr. Hudson has been a focused and competent defender of the Army's limited resources and is absolutely committed to achieving operational excellence. In more recent years, he consistently used his keen business acumen, technical expertise, political savvy, and resourcefulness to proficiently position the agency for the best business results.

Mr. Hudson is a superior advisor, astute negotiator, and superb administrator who can operate comfortably in all environments. His ability to bring divergent parties together and forge a common vision to achieve desired outcomes is renowned. His mastery of unique Defense Department and National Capitol Region relationships has enabled him to consistently produce quality results, even on the most contentious and complex issues. Perhaps the best examples of Mr. Hudson's ability to build coalitions and achieve results for the Army and the Department of Defense are evident in his management of the Army's executive aircraft fleet and his championing of the Pentagon Athletic Facility. In the first initiative, Mr. Hudson worked with Defense Department and Congressional representatives to acquire two state-of-the-art executive airplanes. As the overseer of the Pentagon's 55-year old athletic center, Mr. Hudson realized that the aging infrastructure of the current facility and the growing demand for fitness facilities in support of the Army's readiness mission required quick action. Once again, he negotiated prime real estate at the Pentagon for the construction of a new facility and fought for and won funding for the $19 million project that offers a state-of-the-art facility comparable to well-known commercial fitness facilities.

Mr. Hudson's distinctive accomplishments, selflessness, dedication, commitment to excellence, and willingness to ``go the extra mile'' in supporting the Department of the Army, the Department of Defense and Joint Service activities in the Pentagon truly set a standard of excellence for others to follow. Mr. Hudson's distinctive accomplishments and selfless service in support of the Defense of our great nation truly set a standard of excellence worthy of emulation. I thank him on behalf of a grateful Nation and wish him well in his retirement.

Mr. President, today the Senate will pass H.R. 1350, the Individuals with Disabilities Education Improvement Act of 2004, legislation which has my support.

This important legislation, which reauthorizes the Individuals with Disabilities Education Act, is a compromise that protects the civil rights of children with disabilities, while ensuring that teachers, principals, and administrators have the essential tools to improve these children's academic or functional skills and knowledge. It is the culmination of months of hard-fought bipartisan and bicameral negotiations in an attempt to strike the balance between these competing interests and overall. This bill improves upon current law.

As an original cosponsor of the Senate version of this bill and the sponsor of an earlier bill on personnel preparation and development, I am pleased that most of the provisions I authored on the recruitment, preparation, support, and professional development of special education teachers, general education teachers, principals, administrators, related services personnel, and others working with children with disabilities have been included in the final version of the bill before us today. First, the bill requires states, through the renamed State Personnel Development Grants, to target 100% of the funding under this competitive grant for professional development activities--an increase of 25% from current law. These grants will help achieve our goal of ensuring that there is a highly qualified teacher in every classroom in America. Furthermore, the bill sends funding to states via a formula once funding reaches $100 million, ensuring that teachers in every state benefit. Additionally, as a condition of receiving a State Personnel Development Grant, a state educational agency must submit a comprehensive plan that identifies and addresses the state's personnel needs. This and other new requirements will ensure that the state educational agency has the necessary expertise and strategies in place to boost the skills of teachers and in turn improve the education of children with disabilities.

Retaining special education teachers new to the profession is a particular area of concern in our States. According to data from the National Clearinghouse for Professions in Special Education, the turnover rate of special education teachers in their first 3 years of teaching is exceptionally high--much higher than the comparative rate for general education teachers. Annual attrition rates for special education teachers are 6 percent for those who leave the field entirely and an additional 7.4 percent who transfer to general education. High turnover is costly both for school districts, which must repeatedly fill the same positions, and for students, who lose the advantage of being taught by experienced special education teachers. As such, I am pleased that the bill establishes a new grant program for institutions of higher education to help beginning special educators. Funding is authorized for incorporating an extended, such as a fifth year, clinical learning opportunity to existing special education preparation programs or for the creation or support of teacher-faculty partnerships, such as professional development schools, that provide high-quality and ongoing mentoring to new special education teachers so that they will remain in the field.

The legislation also enhances existing IDEA personnel preparation programs to ensure that all teachers and other personnel have the skills, knowledge, and leadership training to improve results for students with disabilities, including working collaboratively in regular classroom settings, addressing the needs of limited English proficient students with disabilities, preventing the misidentification of children with disabilities, working with parents to improve the education of their children, and utilizing positive behavioral interventions to address the conduct of children with disabilities that impedes their learning or that of others in the classroom.

There are other highlights as well. This bill aligns the Individuals with Disabilities Education Act with the No Child Left Behind Act by requiring states to ensure that all special education teachers are highly qualified by the 2005-2006 school year, including allowing teachers to meet the standard through the high objective uniform state standard of evaluation or HOUSSE; requires the uniformity of electronic versions of instructional materials and provides for the establishment of a National Instructional Materials Access Center to give schools a one-stop shop for textbooks and other educational materials for students who are blind or possess another disability which necessitates alternate formats; expands the current definition of related services to include school nurse services; strengthens early intervention and preschool programs for infants, toddlers, and preschoolers with disabilities, including permitting states to create a system that gives parents the choice to have their child continue early intervention services until the age of five; establishes a new program aimed at developing and enhancing behavioral supports in schools while improving the quality of interim educational settings; enhances planning and transition services for children with disabilities; advances the monitoring and enforcement of IDEA; and improves services for homeless and foster care students with disabilities.

Teachers, principals, and administrators are also given flexibility to more effectively provide an education to all students. There are new approaches to resolving complaints to head off litigation and to reducing paperwork, along with a clearer framework for the discipline of children with disabilities.

I thank my colleagues, Senators Kennedy and Gregg, and their staffs, for their excellent work on this important bipartisan legislation. One staff member, Connie Garner, deserves special recognition for her tireless efforts to make this law work for students, parents, teachers, and schools.

This is significant legislation for the people of Rhode Island and across the nation, and I am pleased to support it. I will also continue to press for full funding of IDEA to provide 40% of the excess cost of providing special education services--a promise Congress made in 1975 when IDEA was first enacted. Funding for IDEA services has only recently reached nearly 19 percent--just under halfway to fulfilling that promise. While we have taken a number of positive steps with this bill to ensure a high quality, free appropriate public education for children with disabilities, we must bridge the funding gap so these children receive the educational assistance and support they need and deserve.

teachers

Mr. President, I am pleased that our bill now requires special education teachers to be fully certified by the state. Prohibiting temporary or emergency certification is an important step forward and one that brings IDEA in line with NCLB. It is important that teachers who are fully certified in special education have the unique knowledge and skills needed to effectively teach students with disabilities. Parents should know that the label of ``fully certified special education teacher'' means that the teacher has demonstrated both knowledge and skill in special education practices. Senator Kennedy, is it your understanding that full state certification in special education includes a demonstration of such knowledge and skill?

I thank Senator Kennedy for that clarification.

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

Mr. President, I thank Chairman Warner for his consideration in arranging this opportunity to discuss the nomination of Dr. Harvey to be the Secretary of the Army. First, let me say it is obvious Dr. Harvey is an admirable person with experience and skill. In my view, this debate is less about Dr. Harvey and more about the United States Army; whether he is prepared to take the necessary steps to respond to severe crises that affect the Army today. The Army is extended across the globe. The Army is engaged in Iraq and Afghanistan.

I just returned from a trip to both Iraq and Afghanistan. I have seen these magnificent soldiers serve us with distinction and courage, but it is a very stressful and demanding responsibility that each day they discharge, and, indeed, for the Army the stresses are beginning to build.

I think we have to recognize affirmatively that the Army must be bigger, not on a temporary basis but on a permanent basis. I think we also need to recognize the Army needs additional resources. Senator Levin, in his comments, pointed out the shortfall between the money the Army has estimated is necessary to recoup and repair their equipment and the actual funds they have available. If we do not address these issues, I believe we will begin to expose the Army to irreversible damage which certainly no one here in this body wants to see happen.

One inescapable conclusion of my trip to Afghanistan and Iraq is that we will be in these countries for years; not months but for years. The cost, the human cost and the financial cost to the country and to the Army particularly, will be substantial.

I have no doubt Dr. Harvey is a consummate professional. He is very skilled in managing organizations. I know he is committed to doing his best as Secretary of the Army, but I believe the Army needs a leader, not necessarily a manager. Also, I think we need an aggressive advocate for the Army. I hope that perhaps the result of this debate, if Dr. Harvey is confirmed, is that he will become that aggressive advocate for the Army. I know advocacy has to be appropriate. He has to be loyal to his civilian superiors. But he has to be someone who will take the case of the Army to the Secretary and, if necessary, beyond. Also, I believe any Secretary of the Army has to be cooperative with this Congress. He has to respond candidly and directly to our questions and our comments.

One of the issues we all have as leaders is the necessity to speak truth to power on occasion. One of the observations I would make is that we have seen, in the experiences of General Shinseki and Secretary Tommy White, occasions where they gave us their best opinion and they effectively were punished for those views.

I think that is wrong. I think that attitude has to be corrected. That is another responsibility of the Secretary of the Army, to ensure that uniformed officers have the opportunity to express themselves appropriately and not fear retribution. All of us will benefit from the advice the uniformed officers of this country can so wisely give to us.

Secretary White was discharged many months ago as Secretary of the Army. It took a very long time for the Secretary of Defense and the President to nominate Dr. Harvey. In the interim we were extremely well served by Acting Secretary Les Brownlee. I don't have to add more than what the chairman and the ranking member have said about the qualities of that individual. I just had the privilege about 10 days ago to be with Secretary Brownlee up in West Point where he represented the Army at the Board of Visitors meeting. He is a consummate professional, someone who has rendered extraordinary service to the Army and to the Nation. But one of the issues I find somewhat disturbing is that even though we were well represented by Secretary Brownlee, it took so long for the Secretary of Defense to nominate a permanent Secretary. I think that I can put it this way: I find that doesn't suggest the importance the job must bear. That is another reason I found it somewhat unusual, at the very end of our session, before the election, there was a sudden rush to confirm Dr. Harvey.

I had the occasion to speak with Dr. Harvey.

Yes.

I thank the chairman. I reclaim my time, and I thank him for that important and accurate input. I think, though, we have been so many months without a Secretary, and even when the nomination of Secretary Roche seemed to be in doubt, there was not the kind of response I thought necessary to show we had a permanent Secretary in place.

Then, of course, Dr. Harvey was nominated in July. The chairman is absolutely right. After it became apparent that Secretary Roche would not lead the Air Force--but, July until, again, September or October, there was no movement to get someone confirmed in an office that is vital. The chairman is correct. He is entirely accurate and I accept that gratefully.

One of the real issues that we have to deal with is the situation in the Army, and I think there are three areas that are of critical importance. First is end strength. Senator Levin has spoken to that. Second is the recapitalization issue, how do we repair this equipment and how do we buy new equipment. Again, Senator Levin has talked to that. Finally, there is this issue of leadership, of making sure that the Army is accountable to its peers in the legislative branch, accountable to Congress, and accountable to the values that we have all seen as the hallmark of the military.

These are critical issues that the next Secretary will have to address.

On the issue of end strength, during the last several months it has become increasingly clear to me, at least, that the Army needs to increase defense. It needs more Active-Duty soldiers in its ranks.

Since 1989, the Army military end strength has been cut by more than 34 percent, and civilian end strength by more than 45 percent, while undergoing a 300-percent increase in mission rate. That is not illogical.

At the end of the Cold War--1989-1990--with the vanishing of the Soviet threat, the notion that we needed a heavy-armored corps in Europe to stop the potential thrust into Central Europe was no longer operative. So the Army was reduced. That logic was apparent.

Then mission rate began to increase not just a few years ago but through Somalia, Haiti, and the Balkan threat. Just as there was logic in the early 1990s to reduce the size of our Army, I believe there is a compelling logic today to increase the size of our Army.

For the past several years, the Army end strength has been virtually constant at 418,400. In December 2001, for example, with the 482,400 end strength, there were about 100,000 Army personnel stationed abroad. Today, there are about 330,000 Army personnel stationed abroad.

You can see the tremendous increase in demand for these troops to be taken from home stations and deployed overseas.

Similarly, in 2004, 26 of the Army's 33 active combat brigades were deployed overseas at least once, and in 2003 and 2004 all 33 of the active Army combat brigades will have been deployed.

We all recognize that our operations in Iraq were conducted by extraordinarily brave troops, and extraordinarily effectively in the opening phases. In a matter of days, the Iraqi military was destroyed. Saddam was toppled from power. Then we began what in retrospect was the most critical part of the campaign--the occupation and reestablishment of civil society in Iraq.

One of the aspects of this phase is the growing recognition that it was not well planned. And we are indeed paying for that in terms of American military on the ground. Mistakes were made in the planning process.

According to a recent article in the Philadelphia Inquirer, when a lieutenant colonel briefed war planners and intelligence officers about phase 4-C--not the combat but the occupation operations, both civilian and military operations after the battle is won--he was briefing them in March 2003. But he was a little bit reticent because the slide he had simply said this: ``To be provided.''

We did not have good plans to occupy the country of Iraq. Today, we are paying for that lack of planning.

The same Philadelphia Inquirer article pointed out that it is not because we didn't recognize there were potential problems in Iraq, but in the words of the article, there was a ``foot high stack of material'' discussing the probability of stiff resistance in Iraq. A former senior intelligence official stated, ``It was disseminated. And ignored.''

But we see at least some indication of the difficult path ahead when the office referred to the comments General Shinseki made in February 2003. Senator Levin asked him how many troops it would take. He said, ``Something on the order of several hundred thousand soldiers.'' He was immediately castigated by Secretary Rumsfeld, saying this estimate was ``far from the mark.'' Secretary Wolfowitz called it ``outlandish.''

And, once again, it raises another challenge for the next Secretary of the Army to deal with.

How do we ensure that military officers will give their best advice and not suffer adverse consequences when they are asked by the Congress? We have a role to play. In fact, I think when many of us looked back, we hoped we had played a more significant role, particularly about the postwar occupation of Iraq.

I think it is important for this next Secretary to develop a situation where these officers feel confident of being candid with their superiors in uniform and with Members of Congress.

I know it has been pointed out that General Shinseki already had announced his plans to retire, or the Secretary had announced his plans for him. But, nevertheless, I think the treatment he received after his candid response to the committee was shabby and not comparable with the service this gentleman rendered the U.S. Army and the Nation.

We understand, given the occupation unanticipated in many respects, we are going to require a significant number of soldiers in Iraq. This, again, should not come as a surprise to many people.

This chart is illustrative. It basically compares the ratio of soldiers in Iraq with historical records. The first line--the blue line--is the occupation of Germany. Again, we had huge numbers of soldiers on the ground in Germany. The red line shows the troop level for Japan. The next is the Somalia level, then Haiti, and noticeably the successful operations in the Balkans. This horizontal line represents our troop levels in Iraq today, 142,000.

History should have shown us that we would need a much larger Army to carry off this occupation in Iraq.

You might say, Well, we succeeded in Japan. But we succeeded by essentially preempting the entire Japanese Government. Once the Emperor made his fateful visit to General MacArthur and bowed to him, our problems with insurgency and rehabilitation of the Japanese were all but over. It took years but not militarily successful; again, in Somalia and Haiti. In Somalia, we left abruptly without a great deal of grace despite the courage of soldiers who performed magnificently there. Haiti might be a special case. But it should be clear that we need more troops on the ground.

If you need more troops on the ground, then you just simply need a larger Army.

That is something that we have to confront. That is just one.

Last summer, Secretary Rumsfeld asked the Defense Science Board, an independent group of experts, to study the transition from hostilities. Do we need more troops or less? Can we rely on technology or troops? They took a comprehensive look at missions and initiatives to reduce strain on the Army. Again, these are very sophisticated individuals selected by Secretary Rumsfeld. Their conclusion:

A smaller force may be needed to defeat opponents than that

needed for stabilization and reconstruction operations.

Technology has not had the same leverage in stabilization

sales and reconstruction that it has in conflict. Warfighting

transformation is not likely to save manpower needed for

stabilization and reconstruction.

Consistent with history, consistent with what military officers tell us and presumably telling the Department of Defense, we need more troops for operations such as stabilization operations.

We also understand that there are roughly 138,000 troops stationed in the country today. And in anticipation of the election, in January the Pentagon announced they were going to try to increase that size.

Again, I think the inescapable conclusion from history and from uniformed military leaders candidly telling us their best judgment and from the result of the Defense Science Board is that we need more troops. We need a larger Army for these missions.

But there are other issues that should suggest to us that we could use more troops effectively. We recently heard about a huge ammo dump that was discovered. It was apparently looted, and apparently unguarded for many months.

When I was in Iraq traveling with the chairman and ranking member in July, we were in Kirkuk. I was amazed to hear a general of the 4th Infantry Division talk about the hundreds and hundreds of unsecured American ammo dumps. I don't believe they were unsecured because we believed there was no danger. It is simply because they did not have sufficient forces then to guard every ammo dump. They didn't have loyal Iraqi forces to support their efforts.

Again, we have seen a situation in the last few days where we have conducted very successful and very difficult operations in Fallujah. Once again, the courage of the marines and the soldiers has been extraordinary--house-to-house fighting, difficult fighting. They have endeavored and succeeded in many respects not only in taking valuable terrain but also sparing innocent civilians with extraordinary demonstration of courage and skill.

But as they reduce Fallujah, the insurgents again move operations into Mosul and Bogoba. They span out and spread out and hit us. Frankly, one of the reasons they were successful in Mosul was because there was no significant American forces there. And the local police-- some fought valiantly and a few others disappeared. Over a period of time, the whole town was under the control of the insurgents.

When we went into Mosul and started injecting American forces and more reliable Iraqi forces, they now hit Bogoba and other parts of the Sunni triangle. That is another strong suggestion that more American forces might be useful in country.

Finally, the borders of Iraq remain very porous. Smuggling is a venerable tradition in that part of the world, and the smuggling trade continues to operate.

Could we use more troops? Yes. The administration and the Department of Defense have said that our future and our salvation is with the Iraqi security forces. I believe they are right, but that is the long term. That is years from now. We are training an Iraqi national army force. And, frankly, the training is at the level of squads and platoons. They haven't reached the level of companies or battalions that can effectively replace American units. They do not have the kind of equipment we have. The prospect of reliable, well-trained and well- disciplined Iraqi forces is many months if not years away.

We have a large number in Iraq already. Some might say: Goodness gracious, you have a bigger army than the

130,000 troops that are there right now--140,000 troops. But I don't think people recognize that the troops that are deployed are just, if you will, the tip of the spear. They are behind in administration, behind in troops that are training there, and there are troops that are recovering from being there.

It is important to recognize that even though there are roughly 140,000 troops in Iraq, it is clearly tasking our Army.

An observer of the scene, former Army officer Phillip Carter, tried to put this in perspective. Even the simplest military task, such as moving a unit from point A to point B, requires a Herculean logistical effort. Planes have to be scheduled; trains have to be contracted and loaded; ships must be diverted and filled with equipment. Just consider what it takes to move a single tank company from Fort Stewart to Fallujah. Soldiers have to spend days inspecting and packing their vehicles before loading them onto trains to take them to port. The trains will be met by more soldiers at dockside, who will work with longshoremen and contractors to put the tanks on a ship. Then the ship has to sail across to Kuwait where it will be met by more troops and contractors. Only then can they roll them north to Iraq. Moving one tank company costs a fortune and requires hundreds of people.

Now imagine you want to move an entire unit such as the 3rd Infantry Division with hundreds of tanks and thousands of other vehicles. The size and complexity of the task is staggering. It may cost as much as $1 billion to send a division to Iraq. And it can't be done quickly.

Major bases in the United States have a finite ``throughput'' capacity, meaning that they can only squeeze so many pieces of equipment out the door any given day.

The tip of this spear is in Iraq. But whatever we have there, we need many more back here, again raising, I think, the obvious need for additional end strength for our Army.

In January 2004, LTG John Riggs, in charge of the Army of the future, stated:

I have been in the Army 39 years, and I've never seen the

Army as stretched in that 39 years as I have today.

In July, LTG Jay Garner, who was the Bush administration's first generation in postwar Iraq, stated:

I think people are worn out, equipment is run down, and

we've overstressed the reserves. We're drastically short [of]

infantry and MPs because the Army is too small.

But all of this seems to have not made an impression on the Department of Defense with respect to the need to increase the size of the Army.

I think it is not just a question of numbers. It is a question of the stress being borne by soldiers and their families.

Approximately 16,000 Active-Duty soldiers have had two tours in Iraq, and if they stay in the service longer, they will have another.

That is a very significant statement.

In June of 2004, DOD projected that over the next 3 to 5 years it will continuously have 100,000 to 150,000 Reserve component members mobilized.

It has been estimated that if we do not increase the Army size, forces that have already been deployed to Iraq will have to return two more times. Mr. President, 3,600 troops normally stationed in Korea to protect us against North Korea, a country that arguably is a dangerous threat to us with their nuclear weapons and their mentality, have been redeployed to Iraq.

On July 6, the Defense Department stated it was calling up 5,674 members of the Individual Ready Reserve soldiers who have completed active duty, were in an 8-year period to be recalled, and they are being recalled, but they do not drill on a regular basis and some have not put on a uniform in 3, 4, 5, 6 years.

The DOD also implemented a series of stop-loss policies, what some might call a backdoor draft. Since September 11, DOD has announced six stop-loss policies for the Army, two for the Navy, five for the Air Force, and two for the Marine Corps. Only the Army still has a stop- loss policy, which means, effectively, once the unit is alerted, until 90 days after they return, that individual soldier cannot leave the Army even if his enlistment is up. These tours are increasingly longer. It is not just 12 months in-country; it is also the training beforehand and the demobilization after.

As many have pointed out, a great burden is falling on our Reserve and National Guard units. Men and women who have full-time jobs, men and women who have families far away from their mobilization point. Today, frankly, we cannot meet our requirements in the Army without the Guard and Reserve. These are extraordinarily talented, consummate professionals. The citizen soldiers have done a remarkable job for us, but the strain is immense on the Reserve and National Guard, once again suggesting we need a larger regular force. We have adopted all sorts of measures, stop-loss, relying heavily on the Reserves, but the underlying point which has to be confronted by the next Secretary is how do we increase permanently, with regular budget authority, the Regular Forces of the United States. The average mobilization for members of the Reserves and National Guard has increased to 342 days this year from 156 during the Persian Gulf, again corresponding to the increased reliance we are placing on the Reserve soldiers.

As we pointed out previously, the DOD mobilization authority states that the members of the Reserve component can be mobilized for no more than 24 months. Currently, 30,000 Reserve component members are up against this 24-month cap. But in 2005, indeed, a large portion next year will bump up against this cap. So we are using the Reserves and National Guard, and they are performing well, but this underscores the need for a large regular force. A larger regular force is included in the budget, but not funded by emergency provisions through supplemental appropriations.

We are beginning to see, as a result of the stress on the Guard particularly, an erosion in terms of recruitment and retention. The Army National Guard ended fiscal year 2003 approximately 7,800 soldiers below the recruiting goal. Last month, the Army National Guard announced it expected to fall 5,000 short of the goal of 56,000 soldiers. A survey by the Army Research Institute for Behavioral and Social Sciences reported to us that more than one in three Army reservists plan to leave or transfer to the inactive reserve when the current enlistment ended; only a quarter will reenlist.

The Active Army made the reporting goal, but they did this by pulling forward one-half of the delayed entry program. Each year, they sign up young men and women who do not expect to report until the next year. In order to make the goal, they counted those soldiers in this year's accounting. So they start off essentially in a hole for this year because they cannot double-count those soldiers.

The other factor I see potentially damaging in the longer run, for the first time in a very long time, a small fraction of soldiers is being led into the Army who are normally rejected because of lower qualifications. It is roughly 2,000 out of 100,000, but that is a trend that certainly we do not want do see grow or continue, and it is illustrative of the need to make the totals because of the stress our military is under.

The other aspect is we are committed to making sure that the Army is there and we are trying to do that through incentives and bonuses, which puts additional financial stress on the budget of the Army. Again, this is something we can't avoid. That is the way we have to fund and maintain a volunteer force, but it is an issue in terms of long-term ability of the Army to find the resources so that they can pay these bonuses, they can pay the benefits, they can enlist the force.

One other final aspect of this issue of reliance upon a force which I believe is too small. We have seen, for the first time in a notable way in Iraq, reliance and overreliance on contractors--not contractors who do the mess halls. By the way, they are doing a magnificent job over there. The quality of life of soldiers is first-rate. But I am taken aback when I see private contractors providing security. We all recall that even Ambassador Bremer's security was provided not by military people but by private civilian contractors. That is another indication to me that we have to increase the Regular Army.

Part of this was a result of a plan that did not anticipate a long- term, intensive involvement in Iraq. As mentioned before, this has been pointed out

by others. In December of 2003, Jeffrey Record, of the Army's own Strategic Studies Institute, published a report that stated the ground force requirements in Iraq have forced the U.S. Army to the breaking point. He says the Army appears incapable of sustaining a commitment of 16 of its 33 active-duty combat brigades in Iraq absent a reduction elsewhere or expansion of its force structure.

Again, the Defense Science Board stated that current and projected force structure will not sustain our current projected globalization. There are inadequate total numbers of troops and a lack of long-term endurance. The board recommended adding troops or cutting back missions. It is very difficult to cut back missions.

I should point out that the board was aware of the attempts to reform the military, the modularity that is going on within the military. Again, this is a very positive development. I commend the Chief of Staff, General Schoomaker, and those who are trying to reforge the Army to be more efficient, but the Defense Science Board recognized these efficiencies and still stated that we need more troops.

We have in the Senate, with the cooperation of the chairman and ranking member, tried to do this. Again, going back a year or so ago, together with Senator Hagel, we introduced legislation that would increase the Army by 10,000. It passed this Senate, but the Department of Defense objected to it, and it fell out of the conference report. We were successful in the last authorization to include an increase of 20,000 end strength, but once again the Department of Defense insisted that these troops be paid through emergency procedure.

We have to have a situation where the end strength is increased but it is also paid for through the regular budget process. My fear is that eventually it will get more difficult to pass supplementals. Senator Levin pointed out how the Army will rethink the demand of a significant amount of money next year in the supplemental for 2005. Yet even with that money they might not be able to sustain all their needs, equipment, or otherwise.

Unless we have an authorized end strength that is paid for through the regular budget process, we may end up leaving the Army in the lurch in the years ahead. When the budget comes down, the supplementals are not as robust, and they still have the missions and the troops they need to conduct those missions. That is a critical issue that the Secretary must address. I raised these issues with Dr. Harvey. He certainly listened attentively, but I received no commitment that he was going to move aggressively to do this.

The other issue of equipment, which has been addressed by the ranking member, is the Army has sustained 1.6 billion in equipment battle losses in Afghanistan and Iraq. Presently it has an unfunded requirement of 1.3 billion for ammunition. The Army estimates a third of the equipment is either already in Southwest Asia or en route. In fiscal year 2005, approximately 1.6 million pieces of Army equipment will be sent back to the United States from Iraq and Afghanistan for repairs, upgrade, or replacement. The Army expects to need $7 billion for this effort.

We have an extraordinary demand to keep Army equipment going, and the requests, so far, the supplemental requests have not met those demands. I personally believe we have to have a robust, dedicated fund from sources outside the Army so we can fund the simple recapitalization of the equipment needs of the military.

There is another aspect of the equipment demand. We have taken a great deal of equipment from the National Guard and forces in the United States, moved it overseas, leaving our National Guard back here with a fraction of their critical equipment. As my colleagues recognize, the National Guard plays a critical role in homeland security, a critical role in aiding States and localities with disaster assistance, and they are not only deployed overseas but many of the guardsmen left behind do not have the full complement of equipment-- another issue we have to deal with.

I could go on at great length talking about recurring equipment needs. There are other examples that are critically important. Nearly all the equipment, for example, in our stockpiles in Southwest Asia has already been deployed forward. We do not have those robust stockpiles of equipment necessary if there is another contingency in the area. The only area where stocks appear to be untouched is Korea, which I think is a very prudent decision. This is another example of the issues we are facing in terms of equipment.

As we go forward, we have endeavored to provide the resources to our military to conduct the important operations overseas. In the past 17 months, President Bush has requested and Congress has appropriated $187 billion for Afghanistan and Iraq. We also anticipate an additional request of $70 billion in the next few weeks or months. We are spending a great deal of money, but still the needs of the Army are unmet. We have to provide for the needs. We have to provide for the necessary equipment.

We have a crisis in end strength. We have a crisis in recapitalization of equipment, and we also have an issue of leadership. I have stressed this before so I will be brief.

We have had two individuals serving the Army in this administration. General Shinseki and Secretary White were called upon to give their best views to the Congress. They did, and essentially they were punished for those views. That, to me, is not an effective way to use the offices of the Army or to get the kind of cooperation within the executive branch and the kind of cooperation between the Congress and the military service that is so necessary. Again, I feel the inhibitions that resulted from that very dramatic public behavior might have prevented individuals from appropriately sharing with us information about the planning problems for postwar Iraq, about the need for additional forces, about the need for recapitalization of equipment. In the long run, it is a very destructive and corrosive force. The next Secretary has to deal with that on an individual basis and on a collective basis in the Army and within the Department of Defense.

Also, too, an issue that has concerned many, and one that we were shocked by, was the scenes of the Abu Ghraib prison, where individual soldiers have been held accountable, enlisted people, E-5s, E-6s, E-4s, but anyone who has read the reports and anyone who has been in the area in which the chairman has conducted it in a very professional and very courageous fashion has to understand that accountability does not stop here.

We have had numerous reports by the IG, by General Taguba, by General Kern, and by others which suggests at least people at ranks beyond noncommissioned officer have to be held accountable. Yet to date there has been no accountability, in my mind.

I was curious as to just simply who had the responsibility to press court-martial charges against some of the individuals notified in the report by General Karpinski. Now, that is, I am told no general officer can go before a court-martial without an IG report. The IG has conducted a report. I found out that the IG, General Mikolashek, is scheduled to retire in a few days. I don't know what the status of his report is, whether he forwarded it to the convening authority and whether the convening authority is taking steps. The convening authority is General Helmsley, who is the Reserve component commander. Colonel Pappas, who is out of the 5th Military Intelligence Brigade, and General Sanchez was originally the convening authority--he decided because of appearances, and I think appropriately, that he shouldn't be involved. It was then sent to General Bell, the USAREUR commander, and now it has been delegated to General Benny Williams. It seems to me in the course of trying to establish responsibility beyond the company grade level that we have not made much progress.

I believe the next Secretary of the Army has to deal with this issue directly because it would be unfortunate--more than unfortunate--if individual soldiers were punished and it appeared that seniors who might be culpable--not directly involved in brutality but for dereliction of duty or for failure to follow the law of warfare--simply walked away or were lost in the shuffle of paperwork and reports. That is the challenge this Secretary has to deal with because the essence, in my

mind, of a military officer is accountability and responsibility, and you do not get that by pushing reports and pushing paper and suddenly trying to make it go away.

Maybe I am just premature in my demands for some type of finality to this situation. I don't think so. Again, I believe the next Secretary of the Army has to establish a very simple rule: Soldiers are responsible for what they do and commanders are responsible for their commands. I hope that is done because, if not, all the issues I have talked about--the lack of troops, the need for new equipment and refurbishment of equipment--will pale in comparison if people can draw the lesson that only soldiers are punished and superiors are somehow able to escape, at least the opportunity to be held accountable.

Mr. President, I reclaim my time. Let me, once again, commend the chairman because he took a position that was very difficult.

Let me add, honestly, without his sensitivity to the importance of this issue, to the long run values of the military, it would not have received any attention. I commend the chairman for continuing his efforts.

I just point out, all this might be coincidental. General Kern retired on Saturday, I believe. I hope the report and response is ready and en route to the chairman. I hope he, too, agrees with me that this is not an issue that we can ignore.

I must say also this is not just an Army issue. I think there was a tendency initially to portray this as the aberrant behavior of young soldiers. As we now know, there was much more complicated and high- level involvement. What involvement is still unclear, but we cannot walk away from this issue. And because the next Secretary of the Army will have so much authority with respect to reports, with respect to reviewing at least court-martial proceedings or involved in these decisions, this issue has to be addressed. And that is one of the major challenges I think Dr. Harvey will address, I hope, if he is confirmed.

Let me again conclude by thanking the chairman not only for his leadership but for the gracious way he has helped today to illustrate these issues and to assist me in my presentation. I thank him. I yield the floor.

I don't have the document, but an article in the Philadelphia Inquirer of October 17, 2004 made several references. First:

Franks' Central Command did have an extensive plan to

restore order and begin rebuilding the country, called

Operation Desert Crossing, said retired Marine Gen. Anthony

Zinni, who drew up the plan and updated it continuously when

he led Centcom until 2000. It was never used.

Further in the story:

Central Command originally proposed a force of 380,000 to

attack and occupy Iraq. Rumsfeld's opening bid was about

40,000, ``a division-plus,'' said three senior military

officials who participated in the discussions. Bush and his

top advisers finally approved the 250,000 troops the

commanders requested to launch the invasion. But the

additional troops that the military wanted to secure Iraq

after Hussein's regime fell were either delayed or never

sent.

I ask unanimous consent that the article be printed in the Record.

Mr. President, I ask unanimous consent a fellow in my office, Seth Gerson, be granted the privilege of the floor for the remainder of today's session.

Mr. President, this week, a conference committee filed its report on legislation that was originally designed to repeal provisions in the tax code that have been found by the World Trade Organization to be illegal export subsidies. Months ago the European Union began imposing retaliatory tariffs on select American exports, including such important Rhode Island exports as machinery and jewelry. The targeting of the jewelry industry is especially troubling because Rhode Island is among the three biggest jewelry-producing States, and this sector accounts for 36 percent of the total trade targeted by the retaliatory duties. Without congressional action to repeal these export tax provisions, these tariffs would grow progressively until reacing 17 percent by March of 2005.

Unfortunately, I have serious concerns that the conference agreement before us today would not even provide immediate relief to our jewelers and other businesses targeted by these tariffs. The Senate-passed JOBS Act included a carefully crafted transitional benefit for those firms currently receiving FSC/ETI assistance. However, the bill before us includes transitional relief that is still export-contingent and could be challenged by the EU as still not being WTO-compliant. In fact,

according to an article yesterday in the Washington Post, EU spokesman Anthony Gooch suggested that this legislation would not accomplish its central goal of lifting European sanctions due to the transitional assistance. This is the reason we have this legislation in the first place, and I am disappointed that the House conferees have potentially set up a repeat of tariffs on our Nation's domestic manufacturers and exporters.

That brings me to the other compelling reasons for the original JOBS Act: the bill, as passed by the Senate, replaced the Foreign Sales Corporation and Extraterritorial Income regimes with a more robust set of incentives for domestic manufacturing. At a time when domestic manufacturing, long the backbone of the American economy, is bleeding prized jobs to foreign countries, it is incumbent on Congress to put forward a responsible economic plan and provide important assistance to manufacturers that keep their operations here in the United States.

While the conference agreement does include a tax deduction to provide assistance to a broad-based group of manufacturers, unlike the Senate-passed legislation, it does not make a distinction between manufacturing domestically or abroad. It removed the so-called ``haircut'' that would have provided an incentive for companies to do their manufacturing here at home instead of shipping it abroad. Yet again, we see that House Republicans are unwilling to stand up for those manufacturers, small and large, that have kept their operations here in the United States.

In fact, if we look at the bill as a whole, we see that of the broad- based tax incentives, a larger net amount of money would be dedicated to international provisions than those targeted at production here at home. It is difficult to reconcile the very real challenges facing domestic manufacturers with the inclusion of huge tax breaks for multinational corporations. Ultimately, providing tax breaks to multinationals means that manufacturing jobs are going overseas.

The corporate repatriation provisions in H.R. 4520 are responsible for a significant amount of these costs, but there is little evidence that they will ultimately help to create jobs. Even Secretary Snow, speaking for the Administration, seemed to understand this inequity. He wrote in a letter to Chairman Grassley, and I quote:

[T]he Administration also has concerns regarding the

fairness of the repatriation provision included in both

bills. This provision would offer international

corporations a partial ``tax holiday'' for repatriating

foreign income that is currently held overseas. U.S.

companies that do not have foreign operations and have

already paid their full and fair share of tax will not be

able to benefit from this provision. Moreover, the Council

of Economic Advisers' analysis indicates that the

repatriation provision would not produce any substantial

economic benefits. The Administration believes the $3

billion revenue cost of this provision could be better

used to reduce the tax burden of job creators in the

United States.

This is not the only place where this bill failed to live up to its full potential to help domestic manufacturers. I am deeply disappointed several months ago that last-minute lobbying by multinational corporations were effective in removing from the Senate bill a commonsense provision to help reduce offshore outsourcing termed contract manufacturing.

Similarly, House Republicans voted to leave out the Dodd offshoring amendment, which would have prevented Federal taxpayers' dollars from being used to support outsourcing in future government contracts. This is a commonsense measure to make sure that the Government does not actively contribute to outsourcing, and its rejection by the conferees is a sign of their strong disregard of the practice of ``buying American.''

This brings me to the subject of corporate tax shelters. We have been fighting to close these loopholes benefiting large companies for a decade. A recent study commissioned by the IRS estimated that abusive corporate tax shelters cost honest Americans as much as $18 billion annually, or $180 billion over 10 years. Put another way, every month that the majority and the administration obstruct efforts to shut down corporate shelters, it costs honest taxpayers over $1.5 billion. It has been several years now since the Enron debacle, and yet the majority has still not sent to the President a tax bill to shut down these shelters. While the Senate has taken actions over and over again to target shelters, they have been blocked by the majority party.

For example, in June 2002, the Senate passed tax shelter legislation as a stand alone bill and as part of the CARE Act. The other chamber did not. The Senate passed it again in April 2003 as part of the CARE Act; and the other body rejected it. The Senate passed shelter legislation as part of the energy bill in July 2003, and the other chamber rejected it. The Senate passed shelter legislation as part of the Jobs and Growth stimulus bill in May 2003, and it was stripped out in conference.

So I was pleasantly surprised to hear that tax shelter provisions were included in the conference agreement. Then I had a chance to look a little more closely. The conference bill is a shadow of the Senate- passed version, raising $40 billion less by closing corporate tax loopholes than the Senate-passed version. $15 billion of this lost opportunity to make the Tax Code fairer for all Americans would have eliminated phony transactions that have no economic substance and have been used by companies like Enron to avoid taxes. Another measure modified by the majority conferees would continue to allow those individuals who promote tax shelters to make profits while doing so. In contrast, the Senate would have levied a 100 percent penalty to prevent them from making any such profit at the expense of taxpaying Americans.

Sadly, while the underlying core components of the bill are flawed at best, much of the rest of the bill is deeply defective. I am perhaps most disheartened over the section on tobacco--and the notable absence of language authorizing the FDA to regulate it. This might just be the largest children's health issue facing Congress. The tobacco industry spent more last year than ever before on advertising--over $11.5 billion--and children continue to become hooked on smoking while they are young and unable to understand the health ramifications of smoking. It is now believed that smokers could lose on average 10 years off their lifespan--an entire decade. At a time when we are talking about soaring health care costs, it is vital that we regulate a substance that causes 440,000 deaths each year and results in more than $75 billion in direct medical costs annually--much of which is paid for by taxpayer-financed health care programs.

The Supreme Court has acknowledged that tobacco is ``perhaps the single most significant threat to public health in the United States'' and has effectively reaffirmed that the FDA is the most appropriate agency to regulate tobacco products, given the general scope of its authority and its emphasis on protecting the public health. It is now that Congress must act to clearly give the FDA the long overdue authority it requires to protect Americans, and particularly our children.

I was willing to accept the inclusion of a tobacco buyout under the clear understanding that it would remain linked to giving the FDA regulatory authority over tobacco. Americans want us to take this important step, and but this report falls short. We all know that tobacco is a substance that reduces the quality of life and results in untimely death with lifelong use. We had a unique opportunity with this bill to make a real difference in helping to protect our nation's children and the majority conferees killed this bipartisan effort that Senators Kennedy and DeWine spearheaded.

The conference agreement left out other very important and widely supported worker protections that would have prevented President Bush's regulations that will deny overtime protections to 6 million hard- working men and women, including registered nurses, cooks, clerical workers, nursery school teachers, and many others from taking effect.

The Senate has voted against the Bush overtime rule three times, and the other Chamber twice. The Senate FSC bill included two amendments that preserve workers' overtime--the Harkin amendment that would block only the parts of the overtime rule that strip workers of overtime rights, and the Gregg amendment that passed 99 to 0, which would preserve overtime

for 55 job categories. Majority conferees, at the behest of the White House, stripped the overtime protections from the report. Even after the Senate conferees voted yet again to retain the Harkin amendment, it was stripped out.

The Fair Labor Standards Act was enacted in the 1930's to create a 40-hour workweek, and it requires workers to be paid fairly for any extra hours. American workers work more hours than any others in the world--1,900 hours per year. Yet, still, they need more to get by and make ends meet. With 8 million Americans out of work, and with so many other families struggling to make ends meet, cutbacks on overtime are an unfair burden that America's workers should not have to bear. Especially in times like these, it's an incentive for job creation, because it encourages employers to hire more workers, instead of forcing current employees to work longer hours.

I am amazed that the majority has again stripped this provision which has overwhelmingly passed both the House and the Senate on 5 separate occasions. This is a clear example of how the majority and this administration continue to turn their backs on working families.

Now, in addition to leaving out a number of the important provisions that I've just enumerated, it also contains many costly and extraneous ones; $101 million for NASCAR by changing the tax treatment of grandstand facilities; $44 million for importers of Chinese made ceiling fans; $28 million for cruise ship operators; $231 million in taxpayer funds to finance bonds for four so-called ``Green Bond'' mall developments; $247 million in bonus depreciation of some jets and planes; $5 billion over only two years for a new deduction for state and local sales taxes in a select few states; and $27 million for horse and dog gamblers. This one is especially interesting because it exempts foreign gamblers from paying taxes up front on their winnings at horse and dog tracks.

My question is: Where's the special tax break that will help struggling working families in my state? How does it help American workers by giving tax breaks for Chinese fans to be imported tax free to the United States? The Administration seems to agree, and Secretary Snow also wrote in his letter to Chairman Grassley that:

Both the House and Senate-passed bills include a myriad of

special interest tax provisions that benefit few taxpayers

and increase the complexity of the tax code. Legislation

taking up more than 1000 pages of statutory language (or even

400 pages) goes far beyond the bill's core objective of

replacing the FSC/ETI tax provisions with broad-based tax

relief that is WTO-compliant.

At the same time, the majority party voted to strip the legislation of an amendment offered by Senator Landrieu that would provide a tax break to companies for paying the salaries of activated National Guardsmen and Reservists.

Lastly, it continues to employ the same budget gimmickry as previous tax bills put forward by the majority party and the administration over the past 3 years. For example, a dozen of the tax cuts in this report will expire between 2005 and 2008. Assuming that these provisions are extended, the cost to the Treasury will increase by an estimated $80 billion!

This bill could have been an ideal vehicle for bipartisan efforts to shape a comprehensive economic policy for our nation's manufacturing sector. Unfortunately, it proved to be too alluring for the special interests who just could not restrain themselves. At a time of a record Federal budget deficits--most recently pegged at $422 billion for Fiscal Year 2004--this bill contains too many giveaways to corporations and not enough to help domestic manufacturers and working families. Most regrettably, its passage does not seem to guarantee that the EU will lift its harmful sanctions against numerous United States products. Companies in our home states are hurting from EU retaliatory tariffs, like jewelry manufacturers in Rhode Island, and the conferees should have taken the responsible path in assisting those who are struggling. But they did not.

Mr. President, today I, Senators Collins, Mikulski, Bond and over 35 cosponsors are supporting a resolution designating the week of October 24-30, 2004 as National Childhood Lead Poisoning Prevention Week.

The need to combat the severe threat of lead poisoning to our children's health has never been greater. It is estimated that 25 million homes nationwide have lead hazards. Many of those homes were built before 1950 when paint contained as much as 50 percent lead. Peeling chips and dust from deteriorating lead-based paint are the most common sources of childhood lead poisoning. According to the latest national health estimates, nearly half a million children under the age of 6 suffer from lead poisoning, with these children eight times more likely to come from low-income working families than wealthy families.

Unfortunately, except for severely poisoned children, there is no medical treatment for this disease. Even then, for severely poisoned children treatment may only reduce the level of lead present in the body, not reverse the harm already caused. Research shows that children with elevated blood lead levels are seven times more likely to drop out of high school and six times more likely to have reading disabilities. In addition, it costs an average of $10,000 more a year to educate a lead poisoned child.

We need to find the will and the resources to eradicate childhood lead poisoning in this country. Designating the week of October 24, 2004 through October 30, 2004 as ``National Childhood Lead Poisoning Prevention Week'' will help shine a light on this terrible problem, energize the Federal Government into playing a more active role in eliminating, and help improve local, State and Federal cooperation on this issue. With concerted effort, we can eliminate the tragedy of childhood lead poisoning so that no family in our country has to live in unsafe housing. I am committed to addressing this crisis, and I believe this resolution can encourage more communities to focus on solving this terrible problem.

s. res. 458

Mr. President, I support the limited effort before us today to close a loophole in Federal student loan policy that has cost taxpayers billions of dollars over the past decade.

In the 1980s, when there were fears that student loans would become scarce due to high interest rates, Congress provided lenders participating in the Federal Family Education Loan, FFEL, program a guaranteed minimum 9.5-percent return on student loans generated from tax-exempt bond funds. Congress did so to ensure that there would be lenders willing to make affordable loans for students.

In 1993, Congress sought to end the 9.5-percent guaranteed return on what had become a small subset of student loans due to a much lower national interest rate environment, the growth in availability of other private bank and government-subsidized student loans, and the creation of Federal direct loans.

In doing so, a grandfather clause was enacted for outstanding 9.5- percent return, tax-exempt bond generated student loan funds. Rather than end the 9.5-percent loans, this grandfather clause has worked as a loophole. Owners of 9.5-percent guaranteed loans continually recycle proceeds from tax-exempt bonds originally issued before 1993--creating in effect a revolving loan fund--and the Federal Government continues to guarantee a 9.5-percent rate of return on what is today approximately 1 out of every 20 student loans. Lenders of the remaining 19 out of 20 student loans receive a much lower guaranteed interest rate--less than 4 percent.

This overpayment has grown dramatically over the past few years, as this administration and Department of Education have failed to intervene and stop it. According to the Government Accountability Office, GAO, the overpayment cost taxpayers well over $600 million by the end of June 2004, up from $209 million in Fiscal Year 2001.

To finally close this loophole once and for all, I joined Senator Kennedy in introducing S. 1793, the College Quality, Affordability, and Diversity Improvement Act last October, which among many provisions to expand access to higher education, would eliminate the 9.5-percent giveaway. More recently, I cosponsored legislation introduced last week by Senator Murray--S. 2861, the Student Loan Abuse Prevention Act-- which would also permanently fix the abuse of the 9.5-percent rate and redirect the estimated savings of $5 billion over 10 years to increase the maximum Pell grant for low-income students.

Regrettably, the bill before us today does not contain such a comprehensive and permanent fix. This more limited effort provides only a temporary 1-year solution and it continues to allow ``recycling'' of loans, as opposed to the bonds, by which the lender uses the income from current 9.5-percent guarantee. And, instead of using the more modest savings from this bill to boost grants for low-income students struggling to afford college, the savings will be used for a different but important cause--providing help to certain teachers through loan forgiveness.

Considering how long it has taken the majority to act on this situation, I am pleased we are taking this first, although, limited step. I will be working with my colleagues to fully close this costly loophole in the upcoming Higher Education Act reauthorization process and capture these savings for students. I thank Senators Kennedy and Murray and their staffs for their leadership and work on this matter.

Madam President, I understand there is a unanimous consent agreement. I ask unanimous consent it be modified so I may be recognized now according to the time allocated under the unanimous consent agreement.

Madam President, as a preliminary point, let me say I had the privilege yesterday to go up to Walter Reed Army Hospital to visit soldiers who have been injured in action defending this country and also to visit the rehabilitation facilities there. And any time you go to Walter Reed, you are inspired by the courage, the selfless service, and the sacrifice of these outstanding young men and women. But I

want to relay something I think is particularly appropriate but is not often said.

As I was leaving the room of an injured soldier from the 509th Parachute Infantry Regiment, his parents--his mother and father--were there, and his father stopped me and said: Senator, I want to make sure you know something. The people in this hospital are extraordinary. They have treated my son with extraordinary care. He is my child, but all the people I have known here in this hospital treat my son as if he was their child.

That is an extraordinary compliment to the men and women of Walter Reed, the Army Medical Corps, the doctors, the nurses, the technicians, the occupational therapists, the janitors, the clerks. And it is not just Walter Reed, it is Bethesda, it is the Air Force Health System.

I do not think we spend enough time thanking those valiant soldiers, sailors, and air men and women for what they do. And certainly those soldiers who have suffered and are being treated, rehabilitated, we owe them more than we can ever repay. We have to match their courage with wise and thoughtful policy.

Operational Deployment of the Ground-Based Missile System

Madam President, I am going to spend a few moments talking about a policy which I do not consider to be the wisest and the most thoughtful, and that is the President's likely declaration, within a few days, of the operational deployment of the ground-based missile system. We have constructed a test bed in Alaska. We are trying to assemble a system that will work to protect this country. I think operational testing is in order. In fact, I would hope that the administration would actually follow the law more rigorously and provide for a scheme of operational testing. But that is not the case.

To declare this immature, technologically challenged system as deployed and operational today is a political judgment, not a military judgment. I think we should refrain from blatant political judgments when the security of the United States is in the balance.

Simply stated, this system is so immature and technologically challenged that they canceled the last test. And it defies me to understand how, after cancelling the test, you can turn around and say: It will work. It is operational. It defies common sense. It defies logic. It is something I think, again, that simply is a political statement.

Now, intercept tests are the critical means by which a missile system, any military system that is technologically sophisticated, must be validated, must be tested. It is the only way we can truly assess whether a system will work, whether it meets a minimum criteria for deployment, to put it in the hands of American fighting forces.

The last intercept flight test of the system was conducted almost 2 years ago in December 2002. It was a failure.

Six days after the test failed, the President announced that the U.S. would deploy the missile defense system by the end of 2004. It is almost like watching a piece of military equipment crash and burn and then suddenly say it is operational. Again, it defies logic. It defies common sense.

Since the time of the last test failure in 2002, there have been seven other planned tests. They have all been canceled. Again, we are not able to test this system. How in good faith can we say it is operationally workable? The tests have been postponed, deferred. None of these tests have taken place.

None of the major components of the system, neither the new operational interceptor, nor the operational radar, nor the operational battle management system have ever been tested at all against a real test target. Yet the President will say, I assume in a few days, this system is capable of protecting the United States.

In addition to all these test delays and cancellations, the administration has essentially eliminated any effective oversight over the missile defense test program, avoiding standards and laws that have been on the books for at least 20 years.

Years of hard experience have shown that it is much more expensive to fix a problem with a military system after you have built and deployed it than it is to fix it before it is deployed. Because of this, more than 20 years ago, Congress passed laws which required all major defense systems to undergo a full set of realistic operational tests prior to spending large amounts of money on full production and deployment of the system. These tests were to be judged by an independent test authority called the Director of Operational Test and Evaluation. This law is still in effect today.

Thanks to this law, we have been able to avoid some of the mistakes we made in the 1970s and the 1980s, where we declared systems deployed and operational without adequate testing. These are high-profile systems, like the B-1 bomber, the Sergeant York gun, and the Bradley Fighting Vehicle. We were able to make certain corrections to the B-1 and the Bradley. They were eventually fixed at a cost of billions of dollars. The Sergeant York gun was unable to be fixed. That was canceled. But we wasted billions of dollars by deploying these systems prematurely.

If the missile system is truly as important as the administration thinks, then we should take the time to test this system to make sure it works instead of trying to convince people, by press release, that it does work.

The missile system has been exempted by the administration from the oversight of the independent Director of Operational Testing, and they have plunged ahead with full-rate production of the program with no independent testing at all. Incredibly, the administration has no plans to ever conduct realistic independent operational tests on this missile defense system. This avoids 20 years of law, practice, and indeed common sense. The politics of deploying a missile defense at any cost prior to the election has trumped any desire to make sure the system actually works and, if history is any guide, will likely result in the waste of a large amount of money to fix the system after it has been deployed.

If we can--and I think we should, indeed, with deliberate speed-- deploy a system that is operationally effective, we should do that. But to take a system where the major components haven't even been tested and say it works is being intellectually dishonest and deceptive to the American people.

On August 18, Secretary Rumsfeld described the missile defense deployment as the ``triumph of hope and vision over pessimism and skepticism.'' Actually it is a triumph of best wishes over reality. And hope is not a plan. We found that out in Iraq. Only a system that is rigorously tested, where improvements are made test by test by test, will get us to where we want to go and must be, a system that we are confident will work if it is called upon to defend the country.

Now this lack of testing is not a result of any lack of funds. The administration has lavished funding on this system. The budget request for fiscal year 2005 is $10.2 billion. It is the largest single-year budget request for any weapons program in the history of the United States. For perspective, the fiscal year 2005 budget request for missile defense is more than the Army's total research and development budget for this year. And we know we have an Army engaged in combat, in trying circumstances, that needs to develop new approaches, new sensors for the troops, new observation devices, new ways to deal with insurgencies in built-up areas, new ways to deter and defend against improvised explosive devices. Their budget is a fraction of the budget that is being lavished upon this system. It is twice the budget for the Bureau of Customs and Border Protection in the Department of Homeland Security, and it is nearly twice the Department's allocation for the Coast Guard--two times Coast Guard, two times Customs and Border Protection.

The ultimate costs of this system are unknown because the administration steadfastly refuses to provide to Congress any information on how much missile defense they want to buy and how much it will cost. Recent estimates by the Congressional Budget Office indicate the Bush administration's Missile Defense Program could exceed $100 billion. Nowhere is that $100 billion being factored into ongoing defense budgets as we move forward over the next 5 to 10 years, and it will have to come from somewhere. Again, we

need a system, but we have to be honest about how much it will work and how we are going to pay for it. That honesty is not present today.

The other factor--and this is interesting--in contrast to the numbers that are being allocated for the Coast Guard and the Customs Service is that an intercontinental launch against the United States is probably less likely than other means of detonating a weapon of mass destruction in the United States. First of all, there are only two countries that currently have the capability: Russia and China. The Bush administration points--and I think rightfully so--with concern to North Korea. But that country has never successfully launched any missile capable of reaching the United States. Furthermore, North Korea has observed a self-imposed moratorium on long-range missile testing for 6 years since their last test failed in 1998.

But even if North Korea develops such a capacity, why would they launch a missile against the United States? Our early warning satellites will pick up the launch. It will tell us definitely and decisively where it is coming from, and we will retaliate swiftly and with devastating force that will likely destroy that regime. Why would they want to do that, particularly if they could attack us by other means, perhaps concealing a weapon of mass destruction in a container that comes to the United States since only a small percentage are opened?

Again, the budget for the Customs Service and the Border Protection Service is a fraction of what we are spending on this particular threat.

Now, that is not just my conceptual view. In December 2001, the U.S. intelligence community completed an assessment of the foreign ballistic missile threat to this country. The assessment was entitled ``Foreign Missile Development and the Ballistic Missile Threat Through 2015.'' Their conclusions:

[T]he intelligence community judges that U.S. territory is

more likely to be attacked with [weapons of mass destruction]

using nonmissile means, primarily because such means: Are

less expensive than developing and producing ICBMs; can be

covertly developed and employed; the source of the weapon

could be masked in an attempt to evade retaliation; it

probably would be more reliable than ICBMs that have not

completed rigorous testing and validation programs; and

probably would be much more accurate than emerging ICBMs over

the next 15 years.

This is what the intelligence community said in 2001 looking forward to 2015. Yet since that time, the Bush administration has spent billions of dollars more on the development of this untested, unproven missile defense than it has on protection of our ports and borders where the real threats are likely to come from.

We should be very careful about making sure we take scarce dollars and apply them to the most likely threats. Some have said: Well, don't make those comparisons. We to have defend against every threat. Frankly, the simple contrast between the money we are spending on missile defense versus the Coast Guard and border patrol seems to be directly in contradiction to the intelligence community estimate of what the most likely threat would be. That is not wise policy.

There is also a huge opportunity cost for us. While we are lavishing money on this system, there are other programs--for example, the Department of Energy program called the Global Threat Reduction Initiative--which are not being adequately funded. This Department of Energy program is designed to help secure loose nuclear materials that are around the globe so that terrorists don't get their hands on them. And what is the most vital threat to the United States today? A terrorist group could obtain nuclear materials or a nuclear device, smuggle those materials into the United States, and attack us here. That is what the intelligence community assumes is the most likely threat. Yet we are not going to the source and securing and eliminating the nuclear material that is too abundant in the world.

There is another program that the administration is proposing, which is the airborne laser program, another part of this elaborate construct of missile defenses. The airborne lasers are designed to shoot down ballistic missiles in their first stage as they blast off and start going into space. This program has been plagued by problems throughout, problems which have delayed the program by a year, reduced the laser power by more than half, and have many wondering whether this program is doomed to fail.

By the way, using the same criteria of missile defense--i.e., test failures followed by numerous cancellations--I wonder why the administration doesn't declare the airborne laser operational. It works perhaps as well as our national missile defense.

During the same time the administration has been spending far less on security for our Nation's ports, it has been spending a great deal of money on the airborne laser. The Bush administration's fiscal year 2005 budget proposes a $50 million cut to the 2004 level of U.S. port security funding, the grant funding that we use to help our ports all across this country. Yet there they are still investing extraordinary amounts, almost a half a billion dollars, in the airborne laser. So while it is a risky, possibly doomed program, the money keeps flowing while we do not have adequate resources to protect our ports.

The other aspect of this dilemma is that the administration has never been able to open up this process to a transparent approach, where scientists can look at this data. Of course, we are going to protect the security and the proprietary information here, but they have been overly secretive. And the reason is obvious: it doesn't seem to work, and they don't want that information out as they are getting ready to declare it operational.

They also never really had the opportunity or the will to have realistic tests. All of these tests have been carefully scripted. All of these tests have relied upon nonrealistic scenarios. The incoming missile has a homing beacon on it to help guide the interceptor to it. They don't use realistic decoys, which any country attacking the United States, you would have to assume, would have decoys as well as a real warhead. And there is no element of surprise. A real enemy missile attack would not be scripted, would not have a convenient homing beacon on the target, would likely have realistic decoys and would be a surprise attack.

Frankly, if we had warning of the pending attack, we would take preemptive action immediately, take out the missile on the launch pad.

During the entire time of the Bush administration, there has been essentially no progress made toward the goal of realistic missile defense tests against realistic targets.

An effective missile defense is something we should all work for. But a missile defense that is based upon a press release and not tested is not an effective missile defense. Saying it is operational doesn't make it operational. What makes it operational is rigorous testing under realistic circumstances. This administration has never done that.

I believe we should proceed forward with all deliberate speed to develop and deploy a missile system. I don't think we should allow ourselves to make a political judgment and declare it operational by press release and not validation through testing.

I yield the floor.