Floor Statements

Yes.

Mr. President, I rise in support of the Murray amendment to fully fund the No Child Left Behind Act. This is an important amendment. It will keep our commitment to educational reform in the United States.

There are two keys to the success of the No Child Left Behind Act: effective implementation by the Department of Education and robust funding. Both are presently lacking.

Without the needed resources, we will not meet the law's goals of closing achievement gaps and ensuring an excellent education and opportunity for all children.

When the President signed the No Child Left Behind Act into law 2 years ago, he pledged to support greater Federal investment in education. That pledge has not been kept by this President. He has proposed eliminating some of the No Child Left Behind Act programs, cutting others and only increasing title 1 by $1 billion. That is over $7 billion short of the authorized level of $20.5 billion.

The No Child Left Behind Act was a fundamental change in the way we do business. Part of that change was a commitment to fund all of our aggressive ambitions to help every child succeed. What has been left are the requirements on children but insufficient resources for school systems throughout this country to implement them.

It is no wonder general assemblies across this country, in Utah, in Virginia, Republican assemblies, are revolting against these provisions, not because it is not a good effort at reform. Rather it is because we have not provided the resources to accomplish the reforms. Senator Murray's amendment would provide the needed resources.

I believe we have to go ahead and fund these programs, and we will not do so unless the Murray amendment is accepted. I urge support of the Murray amendment. This is not just about giving individual opportunity to every child. That is central and crucial. This is also about our economic future. If we do not fully fund education now in the elementary and secondary years, we will fall further behind in a very competitive world economy. This is about giving every child a chance and making sure our economy and our society works. I commend the Senator for doing that, and I yield the floor to Senator Murray.

Mr. President, I yield myself 20 minutes from the time allocated.

Mr. President, first, I thank the chairman of the Joint Economic Committee, Senator Bennett, for arranging this discussion on the economic aspects of the budget before us. Also, I thank him for his gracious and very thoughtful chairmanship of the committee.

In 1992, it was popular to say, ``It is the economy, stupid.'' I think circa 2004 the saying is, ``It is jobs, stupid.'' I think the economy can be measured in many different ways. It can be measured by GDP, which seems to be moving along at a healthy pace. It can be measured in terms of productivity.

But for most families, the true measure is a very simple one: Do I have a good job? Will I keep this job for the next several years, hopefully until I retire? Will my children, who I have attempted to educate and give advantages to, be able to realize even better job opportunities and be able to hold those jobs in the future? Frankly, for families across this country, those questions are very uncertain at this moment as a result of the record of the last several years in terms of job creation, the record of the administration in terms of its economic stewardship of the most critical factor, and that is jobs for Americans.

There is much discussion about these numbers. For example, this morning, the distinguished Senator from Kentucky, Mr. McConnell, pointed out that in 1996 the unemployment rate was the same as it is now, 5.6 percent. He then stated that Democrats at that time argued that achieving that rate of unemployment was good news, but today we seem to be unsatisfied with the 5.6 percent unemployment rate.

First, the Senator from Kentucky is right about that fact. In January 1996, 3 full years into President Clinton's term, the unemployment rate was 5.6 percent. Now, 3 full years into President Bush's term, the unemployment rate is 5.6 percent. But that is where the similarities end.

When President Clinton took office in January 1993, he really did inherit a weak economy. The unemployment rate was 7.3 percent. Three years later, it was 5.6 percent, a drop of 1.7 percentage points. Of course, Democrats regarded that 5.6 percent unemployment rate as a significant improvement, and based on the experience of the Reagan-Bush years when the unemployment rate was always above 5 percent, it was about as good as it seemed to get.

What has been the experience under this President Bush? He inherited an

economy that was definitely slowing down from the very strong growth achieved in the late 1990s. But the unemployment rate was 4.2 percent when he took office in January, 2001. The unemployment rate had been below 5 percent for 3\1/2\ years prior to his inauguration. So 3 years later, when the unemployment rate was 1.4 percentage points higher than when he took office, a 5.6 unemployment rate doesn't look very good at all. That is because it is a sign of continued weakness in the economy.

The unemployment rate has been above 5.5 percent for over 2 years. Put simply, under President Bush, unemployment went up. Under President Clinton, it went down. Families throughout this country recognize the difference.

Let's look not just at unemployment rates, but at job creation. When the unemployment rate stood at 5.6 percent in 1996, the economy had already created nearly 7 million new jobs under President Clinton. As we all know, the unemployment rate may be the same for President Bush at a comparable point in his Presidency; but instead of presiding over the creation of 7 million jobs, he has presided over the loss of 2.2 million jobs--one of the most significant records of job loss of any President of the United States in our history.

My colleagues on the other side sometimes think it is unfair to compare President Bush's job record with President Hoover's. We are not saying that the economy today is the same as it was in 1930. We are saying what the facts show. This is the most persistent jobless recovery since the 1930s. The unemployment rate is lower now, but we are not creating jobs.

One of the worst aspects of the job slump we are experiencing is a large faction of the unemployed have been unemployed more than 26 weeks and are no longer eligible for regular State unemployment insurance benefits. This morning, Senator McConnell argued that the President and our Republican colleagues were justified in not reviewing the Federal temporary extended unemployment compensation program because the unemployment rate was so low. But here again, the numbers tell a different story.

When President Clinton discontinued the temporary Federal extended benefits in 1994, the unemployment rate was 6.4 percent, as Senators McConnell and Bennett said. But the economy was creating jobs at a rapid pace at that time. The situation is starkly different now. The official unemployment rate may be 5.6 percent, but when you include people who want to work but have dropped out of the labor force and people who are working part-time because of the weak economy, you are talking about an unemployment rate that is 9.6 percent, and that is a function of one I think important point that must be made again and again: The way we measure unemployment in the United States is based upon the number of people who are in the workforce who are actively seeking work, either have work or are actively seeking it.

What the number really disguises is the number of people--hundreds of thousands of people--who have given up or are working part time. Let me say this again. If we were looking at all the people who historically, in the last several years, have been in the workforce, and we looked at the number of jobs, the rate of unemployment would be closer to 9.6 percent.

That is the difference between creating jobs in the mid-1990s when the waiting period for a job was much shorter and today when very talented, highly trained individuals are having a very difficult time to find any employment whatsoever.

With respect to the budget resolution at hand, the President's economic policies have failed, and the budget being proposed by the majority will lock us into that failed policy.

What the economy has needed for the past few years is short-term job- creating policies and long-term growth-creating policies. What we have instead are tax cuts that go disproportionately to upper income taxpayers and create a legacy of large budget deficits and mounting debt.

Those tax cuts have provided very little job-creating stimulus relative to their huge costs, and they will depress growth in the long run.

All of the economic analysis I have seen says that when the economy is in a slump with excess unemployment--which is the situation we have been in for several years now--the immediate policy objective is to stimulate job creation. Giving tax cuts to high-income taxpayers who are more likely to save those tax cuts than to spend them is exactly the wrong approach.

If this is an investment recession, then our policies have not been particularly geared to stimulating directed investment. These large income tax cuts to wealthy Americans have not translated into jobs.

If we really were interested in creating jobs, we could have targeted much more of these tax cuts to lower income Americans who would consume and thus drive up demand. We could give specific incentives to industry to provide investments in new plant and equipment. This approach, which would make much more sense if you are trying to deal with a lack of demand and an investment slump, could have been done, but it was not.

Last year, when we debated a similar stimulus package, the President's Council of Economic Advisers estimated that nearly 2 million jobs would be created in the second half of last year, with about half a million of those jobs coming as a direct result of the tax cuts.

Again, these are the projections of the Council of Economic Advisers: 2 million extra jobs and a half million jobs directly related to the tax cut.

In fact, however, in that period, only 124,000 jobs were created. We got the tax cuts--actually most of the tax cuts went to the wealthiest Americans--but we did not get the jobs.

I do not know when we will see a truly sustainable job-creating recovery, but I know it will not erase the legacy of large structural budget deficits that the policies of the past 3 years have produced.

Economic analysis tells us that persistent structural deficits are bad for the economy. They drain national savings and slow down or crowd out private investment. That means our standard of living grows more slowly and becomes more costly.

Analysis by the Congressional Budget Office and the Joint Committee on Taxation has found that tax cuts that add to the budget deficit are, on net, harmful to long-term growth.

Some have tried to distract our attention from the deteriorating long-term budget outlook by talking about cutting the deficit in half in 5 years. Such an approach completely ignores the real story, which is what happens to the budget when the baby boom generation starts to retire in just a few years.

In my opinion, the charts Senator Bennett showed historically looking back at the highs and lows of deficits miss a very important point. In the mid-sixties, in the mid-seventies, and even in the mid-eighties, we were not on the cusp of a huge number of Americans being entitled to Social Security benefits and Medicare benefits in the foreseeable future. I think failing to recognize the onset of the baby boom generation into these programs and reserving funds to deal with it is a tremendous mistake.

I read, as many did, a book about Secretary of the Treasury Paul O'Neill's tenure in the Bush administration, and I was struck by the fact that he and Chairman Greenspan apparently saw this onslaught of the baby boom generation with respect to Social Security, and they were working very diligently to reserve $1 trillion from our surplus to do the structural reforms about which so many talk. But what happened on the way to structural reforms? That trillion-dollar surplus turned into a trillion-dollar deficit, and our opportunity to deal honestly and in a timely fashion with Social Security, and also Medicare, evaporated along with the evaporating surplus.

The budget before us represents a continuation of the failed policies of the past 3 years. It has no effective programs to provide short-term job-creating stimulus and does nothing to address the problems faced by large numbers of American workers who see their jobs disappearing.

By making the tax cuts permanent, it locks us into a legacy of deficits that could leave us unprepared to deal with the demographic challenge of the baby boomers' retirement.

Those deficits will depress future standards of living by draining national savings, discouraging investment, and adding to our foreign indebtedness.

This is a situation that argues for different policies. I agree, I think, with the Senator from Utah that we are in a different type of economic climate. The information technology has transformed radically what we do in our economy, but the policies and programs espoused by the President and embraced by this budget do not recognize, in my view, this new reality, and certainly I do not think we can content ourselves with the view that in the long run everything will be fine because, as Maynard Keynes pointed out, in the long run we are all dead.

Our constituents expect us to act in the short run prudently and realistically to help them, and I hoped we could be here debating a budget that would invest in our people, would reassure the American people that we are working to help stimulate the creation of private jobs in this economy.

Finally, I point out what was most alarming to me in the last report from the Bureau of Labor Statistics last Friday is that not only was there negligible job growth--21,000 jobs--virtually none of these were in the private sector. They were public sector jobs.

We can do more, and we should do more, to ensure that every family in this country feels confident in their job and in the ability of their children to obtain meaningful work in this country. That should be the first priority of any government. This budget does not represent that type of priority.

I yield the floor.

Madam President, we are on a very important piece of legislation. We also, on a daily basis, are confronted with a very important situation internationally, and that is our continued struggle in Iraq and Afghanistan. Today Senator Hagel and I have announced legislation that would increase the end strength of the U.S. Army by 30,000 soldiers to meet these responsibilities worldwide.

This legislation will address a serious shortcoming in our Nation's defense policy, ensuring that we have sufficient forces to carry out all of our missions around the globe, in Iraq and in Afghanistan. This legislation would increase and authorize the end strength of the U.S. Army from its present total of 482,400, to a total of 512,400.

I am introducing this legislation today not only with Senator Hagel, but also with Senator McCain, Senator Akaka, Senator Bill Nelson, and Senator Clinton.

End strength is the number of personnel permitted to serve in the military. Retired GEN Gordon R. Sullivan once stated that the objective of end strength is:

To have enough soldiers to execute Army missions at the

right time and the right place, have enough in the total to

have both tactical and operational flexibility and to have

adequate depth in numbers to support leader development,

required force structure manning and the requisite balance

needed across the ranks.

Each year in the Defense authorization bill, Congress authorizes the end strength of each branch of the military service, including the National Guard and Reserves.

The importance of the authorized end strength is that it is the number of soldiers the budget funds. On average, each soldier costs $329 a day or about $120,000 a year to fully house, pay, train, and equip.

Last October, when we were debating the emergency supplemental for operations in Iraq and Afghanistan, Senator Hagel and I offered an amendment to increase the active-duty end strength of the Army by 10,000 soldiers and to pay for that increase out of the supplemental.

At that time, the administration vehemently opposed the amendment. The Pentagon argued that an increase was not necessary, that it was too expensive, and using funds from the supplemental would disrupt current plans to win the war in Iraq. The Army stated in its message, ``Increasing end strength is a last resort to fix the challenge'' of balancing forces properly to win the war in Iraq and the global war on terrorism.

Yet on January 28 of this year, a mere 3 months later, Army Chief of Staff General Peter Schoomaker announced he had received emergency authority to add 30,000 soldiers over the next 4 years to help ``rebalance the force.'' Moreover, the Army would pay for these additional troops with funds from the fiscal year 2004 supplemental.

Needless to say, I am happy the Department of Defense has adopted the position Senator Hagel and I had last October. Indeed, they have raised our request of 10,000 up to 30,000. But it is one thing to have the soldiers--it is an important thing--but, unfortunately, the Department of Defense is using the supplemental process to avoid putting these troops in the budget, and I think that is the appropriate way to pay for it.

Our Army is the finest fighting force in the world, but it is in danger of being overextended and, in the process of that overextension, degraded in its quality and its effectiveness.

Despite the heroic efforts of soldiers every day--men and women--who sacrifice themselves for our benefit, without the assistance, the resources, the support they need, they will find it more and more difficult to do the job.

In January 2004, the National Journal summed up the serious situation facing our Army:

The occupation of Iraq, the largest single deployment since

the Vietnam war, is lasting longer than expected, and comes

on top of major deployments elsewhere around the globe. Tens

of thousands of reservists have been sent away on lengthy

tours that they never expected. Emergency ``stop loss''

orders have prevented soldiers from leaving the services

once their enlistments are up. . . . [and] demoralized

families are demanding relief.

The legislation we propose will address the major portion of that relief. On January 21 of this year, LT GEN John Riggs, the director of the Objective Force Task Force, or the Army of the future, told the Baltimore Sun:

You probably are looking at substantially more than

10,000--

Meaning 10,000 personnel.

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. . . .It's

not my intent to be provocative but to be intellectually

honest with my feelings on the strategy and commitment of the

Army.

It is not Senator Hagel's and my intent to be provocative but to be intellectually honest.

In a November 23, 2003, article in the Wall Street Journal, retired GEN Barry McCaffrey stated:

The U.S. Army is stretched to the breaking point. We do not

need more U.S. troops in Iraq. We do need to increase active-

duty strength of the U.S. Army in order to sustain the

current effort in both Iraq and Afghanistan--while remaining

prepared to counter North Korea. Many of us are concerned

that we won't be able to carry out the strategy we've

embarked on in Iraq because we won't be able to sustain it.

Next summer, we could be saying that we're breaking the U.S.

Army, and that we can't do a third rotation.

I would disagree with General McCaffrey on the need for additional troops in Iraq. This week's experience of almost 200 civilian casualties and suicide attacks on Shi'a pilgrims suggests there is perhaps a need for more U.S. security, as well as better Iraqi security.

The major point he makes is the point we are making: We have to increase the overall size of the Army if we want to carry out the strategy we embarked upon.

Jeffrey Record of the Army's Strategic Studies Institute stated in a report published in December of 2003 that the ``groundforce requirements in Iraq have forced the U.S. Army to the breaking point.'' He goes on to say that:

The Army appeared incapable of sustaining a commitment of

16 of its 33 active-duty combat brigades in Iraq absent a

reduction in commitments elsewhere or an expansion of its

force structure.

Since 1989, the Army's 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. Their force structure is going down both in terms of military and civilian personnel, but their operations tempo has increased dramatically, and they are being stretched and stretched to the breaking point.

Today the Army presently has 492,242 soldiers serving on active duty. This has been the average rate for the past few weeks. This means that on the average, the Army needs 8,000 more soldiers each day to accomplish its mission than Congress has authorized and budgeted for.

We already know there is a shortfall in troops, and unless we adopt increases as we have proposed, this shortfall will become a huge chasm between the missions and capabilities to carry out those missions.

The situation in Iraq remains uncertain, but what is certain is the Army is already planning to have a force of slightly more than 100,000 troops in Iraq through 2006. This is not just a quick spike, a month or two that you can carry out through some emergency funding mechanisms, something temporary; this is several years. Indeed, I would suggest many years to complete the missions.

In order to address the stresses caused by Iraq, the Army is intent on rebalancing its force, or transforming it. The transformation is what General Schoomaker says requires the additional forces.

The Army is caught in a very difficult situation. They have to modernize and transform themselves into a more agile, more technologically sophisticated units, but still they have responsibilities of nation building in Iraq and Afghanistan. Those responsibilities are not amenable to high-tech solutions. They require the old-fashioned solutions: troops on the ground, troops talking to civilians in Iraq and Afghanistan, gathering intelligence, analyzing intelligence and having the force, both the perception of that force and the reality of that force, to ensure our adversaries are in check.

I am glad that today the Department of Defense now agrees with the proposal that was offered last fall by Senator Hagel and myself and 51 of our colleagues who supported us that the Army needs more soldiers. What we disagree on is the way in which we should pay for these forces.

As I stated previously, every U.S. soldier costs the taxpayers approximately $120,000 per year. Therefore, an additional 30,000 troops would cost approximately $3.6 billion annually. There are two possible ways to authorize and fund an increase in end strength with its accompanying costs. One way is to put the end strength increase in the budget, raise the authorization levels in the Defense authorization bill, and find the funds in the $401 billion Defense budget to pay for the troops. That is a method used in the bill we are introducing today.

The Defense Department, however, has chosen a different route. It intends to increase end strength by using the emergency authority granted under 10 U.S. Code section 123a which waives the end strength restrictions for a fiscal year if there is a war or national emergency.

When this authority is used, the $3.6 billion cost of additional 30,000 troops is paid through supplemental or deficit funding.

This year, the extra troops will be paid for out of the fiscal year 2004 supplemental, but that supplemental will be depleted on September 30, 2004, if not earlier. So by my calculation, on October 1, 2004, there will be no funding and those 30,000 additional soldiers, or a significant portion of those troops, will still be in the field as they are recruited, trained, and deployed. That means the Defense Department will have to quickly request the Congress to provide another emergency funding for these troops, troops they know full well will be in the service or be recruited to the service or trained for the service by September 30, 2004.

Moreover, if the Pentagon persists in using this waiver, then they will repeat the scenario year after year. Pretend these troops do not exist when they send the regular budget up and then suddenly come to us with a supplemental at a convenient time and ask for additional money. That is not a way to budget for our forces.

I also point out that I am very concerned because I am hearing reports that the budget sent to us by the Budget Committee will include cuts to the overall defense line. How can the defense line overall be cut at the same time our military leaders are saying they need more troops?

There are those who are talking about the situation of abandoning Iraq. That is absolutely foolish. We are committed. Not only do we have to stay, we have to win. The only way to do that, in my view, is to maintain and provide the real resources for the troops to do their job. It is ironic to me, to say the least, that we would be contemplating a budget that cuts defense spending right now when we literally have so many unmet defense needs directly associated with Iraq and Afghanistan.

There is another problem with this supplemental approach. First, the definition of what is an emergency, the fiscal year 2000 budget resolution states that emergency funding must meet the following criteria: necessity; second, sudden, quickly coming into being, and not building up over time; third, urgent; four, unforeseen, unpredictable, and unanticipated; and five, temporary in nature.

These troops will not be temporary. The need is for several years. Certainly we know already what is coming before us. So this is not something quickly coming into being, something that is being built up suddenly.

The cost of 30,000 additional troops is now predictable and anticipated for at least the next 4 years. It does not qualify as an emergency. This device is simply hiding the true cost of ongoing operations and transformation.

As I said before, there are some who say this is a spike. It is not a spike. It is a plateau, or at least an ascending hill and a very slow decline.

This chart was presented to the Armed Services Committee staff by the Army on February 12, 2004. It shows the transformation plan. It shows the increase in the present end strength of 482,400 up to an end strength of roughly 512,400, from about 33 brigades to about 48 brigades. Then it shows the gradual decline.

I note this decline gets us back to current end strength around fiscal year 2010 or 2011. That is 7 years from now. That is not a spike. That is a tough hike up a steep hill and then a slow decline from that hill.

Also, this scenario assumes there are no other major contingencies such as North Korea; that there can be a successful transfer of military duties to more civilians; that we can reduce the time our soldiers are in training, in transit, in hospitals, and other nondeployed or nondeployable categories. These are all assumptions that might not be met.

The most prudent action today is to increase the forces that we suggest in our legislation. It is much easier to bring a force down than to build it up. When it is brought down, it saves money. When it is brought down, stop-loss orders do not have to be relied upon. These are orders which basically tell soldiers they have reached their enlistment termination date but we are not letting them go. They are no longer a volunteer, in some respects. They are with us until we tell them they can go. So that is something of which we have to be very conscious.

We have to also be concerned that these 30,000 troops might not come online at one moment. Obviously, it takes time to recruit and train. The Army may not need or be able to handle all of these troops. That does not argue against authorizing this increased end strength. What it does is argue for flexibility in the way the Army brings the troops on, and that is something I am sure we can talk about in the conduct of our discussions this year on the defense authorization legislation.

We have a point now where our Army is stretched. It is under tremendous stress, and to a degree this also applies to the Marine Corps, our land forces. We can do the responsible thing, which is to stand up and in the clear light of day increase the end strength of our military forces and pay for that end strength, or we can employ budgetary gimmicks.

We can avoid the reality. Through smoke and mirrors we can try to somehow persuade ourselves and maybe the American public that we do not have to pay for these operations in Iraq or Afghanistan. That would be wrong in terms of our responsibility to the American public and our responsibility, just as importantly, to the troops who are in the field. They have to know we are not playing budget games with our military forces. They have to know we support them, that we just cannot talk about a generational

struggle against terrorism if we have to fund that struggle.

We also have to be particularly cognizant that so many of our National Guard and Reserve forces are engaged in this conflict. Of the 100,000-plus troops who will be in Iraq in the next several weeks after this rotation, 40 percent will be Reserve and National Guard forces, the largest deployment of Reserve and National Guard forces since World War II in a combat area of operations.

What is the message we are sending to them? If we do not increase the size of our Active Forces, the message is simple: When you serve well-- and they are--and honorably, and you return home, do not unpack your bags because you are going back before you know it.

We just do not have the Active Forces to carry out the missions.

I hope in the process of our deliberations on the Defense authorization bill we can include the Hagel-Reed amendment. I thank my colleagues who supported this amendment. Certainly, I think we want to do all we can for our forces in the field.

I yield the floor.

Madam President, I rise today to introduce the Equity in Law Enforcement Act, to extend to sworn, licensed, or certified police officers serving private institutions of higher education and rail carriers, the same Federal benefits that apply to law enforcement officers serving units of State and local government.

Each day, thousands of law enforcement officers put their lives on the line to protect the public's safety on our Nation's university and college campuses and our railways.

The attacks of September 11, 2001, marked a significant change in the way the United States regarded the threat of terrorism against our homeland. These events also highlighted the important role of the nation's law enforcement officers in the security of our country.

Sworn officers on private university campuses protect the public's safety and secure assets similar to those that are found on public university campuses, including nuclear laboratories and critical research and development infrastructure. Events such as last year's bombing at Yale University have highlighted the risks facing our nation's college and university campuses.

In addition, the protection of our transportation systems, such as our railways, is now more important than ever. Railroad police officers are charged with enforcing State and local laws in any jurisdiction in which the rail carrier owns property. They attend the same police academies as State and local police in the state in which they are domiciled, and most come from law enforcement backgrounds.

The Public Safety Officers' Benefits (PSOB) Act of 1976 was enacted to aid in the recruitment and retention of law enforcement officers and firefighters, by providing a one-time financial benefit to the eligible survivors of public safety officers whose deaths are the direct result of traumatic injury sustained in the line of duty. Specifically, Congress enacted this legislation to address concerns that the hazards inherent in law enforcement and fire suppression, and the low level of State and local death benefits, might discourage qualified individuals from seeking careers in these fields.

The same risks also apply to police officers protecting our private universities and railways. Indeed, names of 59 railway officers are inscribed on the National Law Enforcement Officers Memorial in Washington, D.C. Of these 59 officers, 44 of them were shot to death, and the rest were killed in the line of duty. Since 1878, the Union Pacific Railroad has suffered the loss of 16 police officers, 10 of those killed by gunfire, and the Norfolk Southern Railroad has lost another 14 officers in the line of duty. All but one of these 14 officers were killed by gunfire. These sobering facts are evidence of the dangers faced by these officers every day.

Similar dangers face many police officers serving private institutions of higher education. Take the case of Tulane University Police Sergeant Gilbert J. Mast. On January 20, 1996, Sergeant Mast was killed while on patrol, when he was struck by a hit-and-run vehicle. The driver surrendered to officers of the New Orleans Police Department several days later. Although Sergeant Mast had bravely served as a law enforcement officer on Tulane's campus, and the Director of Public Safety at Tulane had filed the required paperwork for survivor benefits, his family was denied because he was not employed by the public sector.

Sergeant Mast is just one example of the many brave police officers who protect our railways and college and university campuses every day, yet who are not covered under the Public Safety Officers' Benefits Act, and are thus excluded from receiving the same Federal death benefits as law enforcement officers serving units of State and local governments.

I am pleased that Senators Leahy and Cornyn have joined me in introducing the Equity in Law Enforcement Act, to help remedy this discrepancy in death benefit payments for law enforcement officers.

This bi-partisan legislation will extend Federal benefits to law enforcement officers who serve private institutions of higher education and rail carriers, including line-of-duty death benefits under the Public Safety Officers' Benefits Program, and eligibility for Bulletproof Vest Partnership Grants through the Department of Justice. The bill would ensure that these public safety officers have access to the protective equipment they need, and that they and their families receive benefits if an officer is killed or seriously injured.

The bill would apply only to sworn peace officers who receive State certification or licensing, and is supported by the International Association of Chiefs of Police (IACP) and the International Association of Campus Law enforcement Administrators (IACLEA).

Indeed, the benefits of this legislation far outweigh the costs. A recent analysis by the Congressional Budget Office has found that there would be no significant budget impact by its enactment.

The importance of police officers on our campuses and railways is more apparent than ever. I believe that it is necessary that these brave men and women are able to receive the same benefits as their counterparts in State and local law enforcement units, and I am pleased that this legislation has also been introduced in the House of Representatives by Congressman Chris Bell, along with 3 bi-partisan cosponsors.

I urge my colleagues to join me, and Senators Leahy and Cornyn, in co-sponsoring and passing the Equity in Law enforcement Act, to ensure that the brave officers that serve our private college and university campuses and railways receive the benefits that they deserve. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. President, I yield myself such time as I may consume from my time.

I rise to support the McCain-Reed amendment and also the Feinstein amendment. I am a cosponsor, obviously, of both amendments.

I wish to talk, for a moment, about the gun show loophole. It is clear and obvious to anyone--at least I believe it is--that we should not have two different standards at a public gun show. We should not have a situation where you can approach one seller who is a licensed firearms dealer and in that transaction have to undergo a background check, and then, 5 feet away, have an unlicensed seller and be able to purchase a weapon without any type of background check.

These are public functions. Thousands of people stream through these gun shows. This is not a private sale where the seller and the buyer know each other, have an association to each other, and essentially do not need any kind of a background check. In order to prevent these gun shows from being exploited by criminals and terrorists, there has to be a common standard. Every transaction should be governed by a background check at a public gun show.

We know these unlicensed dealers and these gun shows have been exploited by criminals. I have mentioned, over the course of the last several days of debate, numerous examples. Let me return to one.

Nigel Bostic and two accomplices were arrested for buying 239 firearms at 11 Ohio gun shows and reselling them to criminals in Buffalo, NY.

It is a very obvious scheme. You go to a place, if you are a felon or a criminal, that requires no background checks, that are publicly advertised, that are easily accessible, you buy the weapons, take them to another State that has very tough laws, and you sell them to criminals.

One of these weapons was recovered in a homicide. It has been reported that Bostic purchased 45 firearms at one of these sales; his accomplices, 85 guns.

These are the examples that will continue to take place unless we close this gun show loophole. Indeed, it is obvious to gun owners it should be closed. More than 80 percent of gun owners surveyed indicated they support closing the gun show loophole. President Bush repeatedly, in the campaign of 2000, said he was for closing the gun show loophole.

The legislation that we present imposes no great burden on any participant at a gun show. Because of the National Instant Check System, 91 percent of these background checks are accomplished in less than 5 minutes; 95 percent are accomplished in less than 2 hours. The remaining checks reveal, in many cases, prohibitive purchases. That is the purpose of the check.

I think we can do something logical that is supported by the broad majority of Americans, including gun owners, by closing this gun show loophole. I hope we can do it today.

But let me, before I conclude, make a general comment on the underlying bill. We have heard the proponents of the bill talk a lot about responsibility, that we have all been taught as children that if we misuse a gun, we should be responsible for that.

Well, the underlying legislation is a license for irresponsibility. The most salient example is Bull's Eye Shooter Supply gun store up in Washington State, the source of the weapons for the snipers who were plaguing this Washington metropolitan area.

There, the individual gun dealer apparently let weapons lay around. He could not account for over 238 weapons. He did not inventory his weapons. That is what I call a misuse of a weapon. People were harmed by that misuse, but we are insulating that individual from any serious liability because there is no Federal law--and my colleagues on the other side are not likely to propose it--for strict control of the security of weapons.

I am amazed about the statistics my colleague from Idaho cited about the military support for no new weapons, et cetera. I tell you what. I served for 12 years in the U.S. Army. If you told an Army officer there was someone with hundreds of weapons, unsecured, lying around, subject to being shoplifted by teenagers, they would be appalled. Because the first thing you learn in the military is that you better secure those weapons, you better lock them up, you better inventory them, and do all the things you have to do, not only to protect yourself but to ensure those weapons do not fall into the wrong hands. This legislation, if passed, will be a license for irresponsible behavior, unconstrained by any civil suit that could not only compensate the victims but suggest a higher level of care. So I hope that not only we support these amendments but look seriously at the underlying bill.

I yield the floor and retain the remainder of my time.

Mr. President, I initially want to respond to some of the comments made by the Senator from Utah. I believe he read a legislative proposal that Senator McCain and I submitted last fall, not the amendment that is before us today because we specifically removed from the amendment today any requirement for the turning in of lists of vendors at gun shows to the Attorney General of the United States. That is not in this amendment.

There is no requirement for unlicensed sellers to execute any paperwork. That requirement will be undertaken by a special licensee, presumably the gun show sponsor and operator, not the unlicensed gun dealer. Furthermore, there is no requirement to seek permission from the Attorney General or any Federal authority to conduct a gun show. So I think the comments of the Senator from Utah reflect not this amendment but previous proposals. This amendment has been specifically modified to make it as easy, as efficient, and as effective as possible to conduct these background checks.

The Federal authorities have a 3-day period of time in which to execute a gun show background check, but, frankly, with the National Instant Criminal Background System, we all know the facts are clear. Ninety-one percent of these checks are accomplished in less than 5 minutes; 95 percent in less than 2 hours. If the check is not completed in 3 days, then the transaction goes through. That is just a backstop in case there is information that these Federal authorities cannot obtain.

So, frankly, the suggestion that gun shows will be put out of business is quite wrong. Those places which have even tougher standards than those suggested by the McCain-Reed bill still have gun shows, and they are still highly popular and highly successful.

I thank the Senator from Idaho for his comments about North Carolina. My comments generally talked about closing the gun show loophole. As he points out, North Carolina requires everyone who is buying a firearm at a gun show to have a North Carolina firearm permit, which is probably a more demanding standard than we are suggesting in our amendment, and we would not suggest that. That is a State prerogative. Technically, they do not require all the background checks on licensees and unlicensees, but they do in fact require any purchaser to have a permit. That is a very stringent standard.

Now, there has also been some discussion today about the fact that this is going to cause tremendous chaos because what if someone saw a weapon at a gun show and then later called a private dealer. Well, that is why the amendment clearly defines activities that are not part of a gun show subject to this amendment.

The language states:

does not include an offer or exhibit of firearms for sale,

exchange, or transfer by an individual from the personal

collection of that individual, at the private residence of

that individual, if the individual is not required to be

licensed under section 923 or 932.

For example, if someone is a private collector, if they have some guns in their home and they are selling those weapons from their home, then they are not subject to this provision.

It is as clear as we can make it to exempt the many people who are private collectors and the many people who, indeed, should not be subject to this license requirement.

Mr. President, I want to thank my colleague, Senator Reid from Nevada, for the 2 minutes.

In summary, this amendment that Senator McCain and I proposed is as sensible as I think one can ever fashion a law. When someone walks into a gun show with thousands of individuals, hundreds of booths, it makes no sense to the average person why one individual should require a background check and another does not have to conduct a background check in the sale of a firearm. It makes sense to have an even playing field.

These are public events. It is virtually impossible for a seller at a major gun show to know the background of all the potential purchasers. We know these gun shows are exploited. This is not hypothetical. They are exploited by criminals. Goodness gracious, it makes perfect sense why they would be. It is a supermarket where a person can obtain firearms without any background check. It is like a neon sign that says: Come here if you are looking to get weapons and you cannot buy them legally.

We know what happens. We also know because of the threat of terrorists that terrorists have looked at these gun shows as possible ways to obtain firearms. Frankly, I think the American public would demand, as they have in the past, anything we can do that would curtail access to dangerous weapons to terrorists.

So I hope we support closing the gun show loophole. I also hope we support the assault weapons ban. Finally, I think we have to carefully look at the underlying legislation as a severe encroachment on hundreds and hundreds of years--indeed, many years--of common law tradition.

I yield the floor.

Mr. President, let me first indicate that this legislation already includes an amendment by Senator Boxer on child safety locks, so the bill is not clean.

The question today is, Will we add additional sensible gun safety measures? One of them is the assault weapons ban. That is something that is entirely appropriate, one that has been supported by vast numbers of the American public, that we should continue.

The idea we are suddenly going to open up, once again, access to assault weapons across this country is difficult to bear, particularly by police officers. That is why they are so committed to this extension of the assault weapons ban because they are the individuals who have to face these weapons on the street.

There is another amendment which I cosponsored with Senator McCain that will close the gun show loophole. Senator McCain pointed out quite clearly the terrorists who have already been identified as exploiting this loophole or attempting to exploit it. Indeed, I suspect there are others because the nature of terrorists is that they do not go around advertising themselves too much. The loophole is there. They know it is there. They will exploit it to our detriment. It is our responsibility to do everything we can to prohibit, preempt terrorists from attacking us within the United States.

My colleague from Idaho conjured up this fear that this legislation is creeping gun control; this amendment will interfere with private sales. That is why the McCain-Reed amendment clearly specified that it does not apply to the sale, exchange, or transfer by an individual from the personal collection of that individual at the private residence of that individual. That is a private transaction unaffected by this legislation.

We know this loophole is being exploited. We know guns are going into the hands of criminal elements, perhaps terrorist elements, through the gun show, and we also know it makes no sense to anyone--forget legislative, forget advocates, the common person--to walk into a gun show and understand some people have to do background checks and others do not because those weapons are equally dangerous. The potential customers of these shows could be terrorists, could be criminals. We have to be responsible and reasonable. That is exactly what this amendment does.

This amendment does not create any new Federal bureaucracy. It does not require a gun show operator to report vendors to the Attorney General. It does not require that the Attorney General approve a gun show. It places no administrative burden practically at all on an unlicensed vendor.

Just remember, 5 years ago, two young men went into a high school and killed 13 people because they were able to exploit the gun show loophole.

Mr. President, I understand we are about to vote on the Feinstein amendment. On behalf of Senator Feinstein, I urge all colleagues to support this amendment. This amendment would continue a ban on assault weapons that has been in place for 10 years. It has ensured that military weapons will not be on the streets of America, will not be used in crimes, will not be accessible to terrorists, which will not force our police officers to confront these weapons.

I urge my colleagues to support this amendment. It is a continuation of present law. It is not a new law. I think the American public has come to understand this law and appreciate it and support it. I think they would urge its adoption and its continuation. Again, I urge a favorable vote on the Feinstein amendment.

I move to lay that motion on the table.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, despite the passage of three very important amendments for gun safety--one that closed the gun show loophole, another that extended the assault weapons ban, and a third to require child safety locks with all handguns sold in this country--the underlying bill still represents a fundamental undermining of a principle of law that has lasted for centuries, and that principle is that an individual is not just responsible to follow the statutes of this country, that individual is responsible to act reasonably. Even the most elaborate construct of statutes will never reach all the variations of human behavior. That is why this fundamental principle of responsible conduct must by maintained.

This bill turns it on its head. This bill, if enacted, will be a license to be irresponsible, and there is no more graphic example than Bull's Eye Shooter Supply in Washington State, the source of the weapons for the snipers who terrorized Washington, DC. The individual could not account for 238 weapons, had numerous citations by ATF, and was unaware that a weapon was shoplifted and had fallen into the hands of assassins. That is irresponsible conduct. That conduct would be immunized by this legislation.

I urge all my colleagues to vote no, against this legislation. We have made progress on important gun safety measures, but the underlying legislation would say to gun manufacturers: You can be irresponsible through your distribution network to whom you sell; to dealers, you can be irresponsible to the customer to whom you sell. We don't want that. The peace, security, and safety of all of us cannot tolerate that, and I urge defeat of this measure.

Mr. President, before I make some comments about the national situation, I express my thanks to Senator Craig of Idaho who is the manager on the Republican side of the bill that we considered today. I had the occasion to manage the bill for the Democratic side, and his fairness and his gentlemanlike conduct was deeply appreciated.

I also recognize two of my staff members, Neil Campbell and Steve Eichenauer, who did a superb job. Thank you very much for this opportunity to mention my respect for Senator Craig and also my appreciation for my staff.

Mr. President, Seamus Heaney, the Irish poet and Nobel laureate, wrote lines that are destined for immortality:

History says, Don't hope on this side of the grave. But

then, once in a lifetime the longed for tidal wave of justice

can rise up, and hope and history rhyme.

We all long for that day when hope and history rhyme. But it is the special province of statecraft to try to make that rhyme.

As such, one way to look at foreign policy is to determine if our policies do rhyme with history or whether they represent the triumph of hope over history. By history, I do not mean the strictly academic variety. I mean the accumulation of insight and experience that we all carry about. Perhaps it is better described as our rough sense of the way the world works.

It is particularly interesting to pose these questions in light of the Bush foreign policy since so much of it seems to spring from ideological hope, from robust attempts to reshape the world along predetermined lines.

Iraq, of course, is the crucial arena. It has been made so by the administration.

Our immediate response to September 11 was to seek out and destroy the terrorist apparatus that struck us. Our attack in Afghanistan was aimed at the heart of al-Qaida and the rogue regime that provided it sanctuary. We understood very painfully that we could not grant these terrorists safe harbor. We had to act and we had to be prepared to act preemptively to destroy al-Qaida. The threat was clear and in the context of international terrorists like al-Qaida, the doctrine of preemption was not only compelling but also inescapable.

Operation Enduring Freedom, the demolition of the Taliban regime, and the disruption of the al-Qaida infrastructure represented a shrewd use of military power to focus directly on an existential threat. The history, again, using my very nontechnical definition, clearly shows that al-Qaida could not be deterred and toleration would simply invite further attack.

Ironically, having begun the destruction of al-Qaida in Afghanistan, the administration quickly shifted its attention from the complete destruction of the al-Qaida network to Iraq. Only in the past few weeks has the Bush administration begun to realize that Afghanistan is far from secure. They are redoubling their military and political efforts to ensure that Afghanistan does not slide back into a failed state. Still, the President's recent budget request only provides about $1 billion in funding for that effort, whereas commanders in the field have said they will annually need $5 billion to ensure success.

Furthermore, regardless of the situation in Afghanistan, and indeed anywhere else, the Bush administration has never lost its preoccupation with Saddam Hussein and his Baathist regime.

Some may recall that in January of 1998, Secretary Rumsfeld, Secretary Wolfowitz, and other prominent neoconservatives wrote to President Clinton urging him to use military force to remove Saddam Hussein. In their words:

The only acceptable strategy is one that eliminates the

possibility that Iraq would be able to use weapons of mass

destruction. In the near term, this means a willingness to

undertake military action as diplomacy is clearly failing. In

the long term, it means removing Saddam Hussein and his

regime from power. That now needs to become the aim of

American foreign policy.

This letter predated the attack on Iraq by 5 years. It predated September 11 by more than 3 years.

With the publication of the first glimpses inside the Bush administration, this preoccupation with Iraq becomes more obvious. Former Secretary of the Treasury Paul O'Neill recounts that at the first meeting of the National Security Council on January 30, 2001, the discussion quickly vaulted over nagging issues of the conflict between Israel and the Palestinian Authority and landed squarely on Iraq. In an apparently scripted exchange, Condoleezza Rice and Vice President Cheney and George Tenet not only led the discussion but also concluded with an examination of grainy photos purporting to show what the CIA thought was a plant producing chemical or biological materials for weapons manufacture. According to O'Neill, ``ten days in, and it was about Iraq.''

September 11 did not put Iraq in the administration's gunsights. It was always there. It was there as a challenge, a personal one for the President, and in the view of neoconservatives, it was there as an opportunity to make hope and history rhyme.

But in focusing almost exclusively on Iraq, the administration, in my view, disregarded a great deal of history. Again, I use the term history colloquially. The justification for action was based more on assumptions than evidence. The planning for their actions was based more on hopes than experience. The end of the cold war and the demise of the Soviet Union unshackled our military power so that we are unbeatable in any conventional battle against any conventional foe.

However, it has not reversed a century in which empires collapsed and foreign colonies began a troubled but independent road. Our military power may be unchecked by any military adversary, but it is exercised in a world that has come to distrust the unilateral use of force and disbelief of the motives of those who wield such force.

The administration's insistence on an essentially unilateral approach to confronting Iraq not only increased our effort both militarily and economically, but it also defied the worldwide consensus that without an immediate threat, the unilateral action of a great power against a lesser state is a vanished aspect of the colonial epic.

Today, the United States is fervently trying to maintain the mantle of liberator and avoid the label of occupier. In large part, this is due to the overwhelming presence of the United States unleavened by a broad array of allies or the significant presence of the United States or United Nations or NATO in Iraq.

In contrast, multinational operations in places such as the Balkans managed to avoid the stigma of occupation and insurgency for almost a decade. A multilateral attack is not a talisman that will guarantee success, but it is more congruent with a world that has rejected the colonial solution in favor of multinational action.

The administration's rationale for a preemptive and virtually unilateral operation against Iraq rested on a faithful devotion to their preconceived notions and a strained reading of available intelligence. One of the more thoughtful and evenhanded military analysts, Anthony Cordesman, at the Center for Strategic and International Studies has accurately summarized the record of the administration's intelligence activities leading up to Operation Iraqi Freedom.

In his words:

[T]here are many indications that the U.S. intelligence

community came under pressure to accept reporting by Iraqi

opposition forces with limited credibility, and in some

cases, a history of actively lying to either exaggerate their

own importance or push the U.S. towards a war to overthrow

Saddam Hussein. In what bore a striking resemblance to

similar worst case interpretations of the global threat from

the proliferation of ballistic missiles under the Rumsfeld

Commission, U.S. policymakers not only seem to have pushed

for the interpretation that would best justify military

action, but to have focused on this case as if it were a

reality, rather than a possibility.

In the U.S., this pressure seems to have come primarily

from the Office of the Vice President and the Office of the

Secretary of Defense, but it seems clear that the Bush

administration as a whole sought intelligence that would

support its case in going to war, and this had a significant

impact on the intelligence community from 2002-onwards.

The administration did not use intelligence to help make a difficult decision. It used intelligence to sell a preconceived notion. The long- term fixed

view of the administration held that deterrence and international inspectors were inherently incapable of containing Saddam. Only the elimination of the regime could suffice. Moreover, regime change, in their view, could have the added benefit of precipitating a transformation of the entire region.

In effect, what the President and the administration did is present a false dichotomy to the American people--two choices, when there are many more. The two choices were: Attack Iraq or do nothing. In fact, there are many other things we could have done and perhaps should have done, including give the U.N. inspectors more time to search. They might have come to the same conclusion that David Kay did: there are no weapons of mass destruction in Iraq. We could have used not only the legitimacy but also the cooperation of the United Nations if we had pursued a course of diplomacy. But the President saw only two options: Do nothing or attack Iraq.

Of course, we could not do nothing; indeed, we were not doing nothing. We should have been actively engaged in containment, and not just containment but enforcing the U.N. resolution with inspectors on the ground. We should recall there were U.N. inspectors on the ground inside Iraq and the administration, through their actions, had those inspectors recalled prior to the inception of the military operations. That is a result of this preoccupation with Saddam, the destruction of his regime, the triumph of hope over history.

Then in planning for post-hostilities, the administration most clearly let its hopes triumph over history. They bet that Iraqi gratitude, together with a government of exiles, would provide for a cheap and easy exit strategy. They ignored a history of antagonism among the Sunni, the Shia, and the Kurds. They spoke of a rapidly emerging democracy and market economy in Iraq, a country whose civic life and social institutions had been suppressed for many years. They insinuated exiles of dubious reputations, like Chalabi, who do not command the respect of the Iraqi people. The administration entrusted post-hostility planning to the Department of Defense, not for their expertise, but for their ideological correctness.

One other aspect of the administration's hopes is that our operations in Iraq would have a transformative effect on the region, if not the world. They saw a democratic, market-oriented Iraq as an irresistible attraction and example to the masses of Arabs who hunger for a better way of life. Our success in Iraq would be emulated either by enlightened leaders or rebellious streets. Since we have yet to succeed in creating this new Iraq, it is hard to judge its transformative value. In the very short run, the jury seems to be out.

Furthermore, our engagement in Iraq has limited our strategic flexibility and narrowed our strategic focus. We are paying insufficient attention to a place that is more likely than Iraq to produce that dreaded intersection of ``nukes'' and terrorists; and that place is North Korea.

We know the North Koreans have nuclear material and the ability to make much more of it, if they have not done so already. Although there does not appear to be any direct links between North Korea and al-Qaida or other terrorist organizations, the North Koreans have a disturbing history of weapons proliferation. Inept at economic development, they have become too adept at trading dangerous weapons to stay afloat or as a means to underscore their demands for international aid.

A few days ago, we concluded another round of international talks with the North Koreans without any apparent breakthrough. As encouraging as these discussions may seem, success--meaning the complete and verifiable elimination of nuclear material and nuclear weapons held by North Korea--can come, in my view, only with more resolute and determined leadership by the President. To date, Iraq seems to have monopolized the effective attention of the President and his inner circle. Failure to resolve the situation in North Korea through diplomacy will result in an intolerable situation that could prompt the consideration of military action. A military option is not appealing, and it may be extraordinarily difficult to carry out with the current open-ended and demanding commitment to Iraq.

In addition, there has been little progress between the Israelis and the Palestinians. In another regional problem area, the Iranians have opened their nuclear program to more robust international inspection but still refuse to moderate their domestic policies and their international rhetoric. Indeed, the hardliners in Iran recently won an election, giving them more clout and marginalizing the reformers within that country, in the wake of our attack against Iraq.

Libya presents an interesting case. Our military success seems to have focused their attention on repairing their relationship with the West. One must be grateful any time a regime effectively renounces weapons of mass destruction. Nevertheless, Qadhafi's actions seem more like self-preservation than democratization. And, as previously discussed, the ``shock and awe'' in Iraq did not influence the Afghanis to be more cooperative. In fact, we lost ground in Afghanistan to reconstituted insurgent forces. In the longer run, these hopes of democratic reform and economic renewal in the region and throughout the world will battle historic and cultural forces that may yield, but not without a struggle and not without time.

There are signs that even the administration is coming to recognize that history has overtaken some of their hopes. To minimize the stigma of occupier, the Coalition Provisional Authority has accelerated the transition to sovereignty with a target date of June 30, a date that is more difficult to achieve with each passing day. It remains unclear who they will be returning this sovereignty over to. An interim constitution was adopted apparently today, but there is still a great deal of uncertainty as to who will be the ruling authority and ultimately how this sovereignty will be passed--truly passed--to the Iraqi people.

In recognition of the economic reality of Iraq, the CPA has quietly shelved plans to privatize the Iraqi economy, plans they had initially. Now this would be a wrenching exercise in unemployment since almost every Iraqi directly or indirectly seems to work for a state industry or governmental entity.

The CPA is also deferring serious land reform in a country where land was expropriated from traditional owners and bestowed upon supporters of Saddam. The CPA also seems quietly poised to allow the Kurds to develop an autonomous region under a loose federation, belying the initial commitment to a fully integrated Iraqi state. And still outstanding is whether the Shia majority will ultimately accept the governing arrangements for the new Iraq.

And, having assumed the burden of Iraq, none of these recent pragmatic adjustments are themselves without great dangers. A hasty transfer of sovereignty could lead to a government without legitimacy or one that quickly morphs into a religious and authoritarian regime that does not share our enthusiasm for democracy. This political process becomes an inviting target for insurgents who see disorder as their key ally. Leaving economic restructuring to the Iraqis is probably leaving it undone. Allowing the Kurds to create an autonomous or semiautonomous region will cause consternation within Turkey while adding to the difficulties of the new central government in Baghdad.

This administration has committed the Nation to operations in Iraq. And we cannot fail. Let me emphasize that again. We cannot fail. But we need to recognize that these ideological preoccupations that have led us to Iraq have very real costs. We are spending approximately $4 billion a month to continue our operations in Iraq and Afghanistan, the bulk of it being spent in Iraq. These costs do not include the heartbreaking loss of American service men and women.

One must question a strategy in which you cannot afford to fail, but you may not win anything. But, questioning aside, one has little choice but to support our forces in the field and insist upon a more pragmatic approach.

First, the administration must increase the overall size of our land forces, not temporarily, but in anticipation of a long deployment in both Afghanistan and Iraq.

Last fall, I was able to propose an amendment with my colleague, Chuck Hagel, to increase the size of our Army by 10,000 soldiers. It passed on the floor of the Senate but was stripped out of the conference report at the insistence of the administration. They, at that point, failed to recognize the need for more military personnel. Since that time, the administration has indicated that they now recognize a need for additional forces in the Army. But they still continue to insist that it can be paid for out of supplemental appropriations.

I believe we have to prepare for a long stay in Iraq. These new military personnel should be paid for through the budget process, not supplemental appropriations here and there on an irregular basis.

I believe also that in addition to increasing our overall end strength, the administration must increase the number of forces in Iraq and direct those forces to the protection of the Iraqi people, not just to hunt for insurgents. Today, the greatest threat to the successful reconstruction of Iraq is the rampant violence that engulfs the country. Only a small portion of this violence is directed against American forces. The greatest portion is directed against the Iraqi people, creating a daily climate of violence facing every Iraqi which saps their will to remake their country and support our efforts.

Today is a prime example. Over 140 Shiites were killed when bombs exploded in Karbala and Baghdad during a religious holy day. However, the Department of Defense still stubbornly clings to the proposition that more American troops won't help. Rather, they claim that indigenous Iraqi security forces are the answer. So they have created, mostly on paper, Iraqi security forces that are inadequate and insufficient for the critical months ahead.

``Iraqization'' has dim echoes of ``Vietnamization.'' Both are political responses to real security problems. One failed; the other is of dubious value at the moment.

Secondly, the administration must candidly and promptly acknowledge the huge costs that are necessary to pursue our international objectives. The recently submitted Presidential budget does not include any funds for operations in Iraq and Afghanistan. The President is attempting to rely on previous supplemental appropriations until the election. Recently, the chiefs of the Army, the Marine Corps, and the Air Force admitted they would run out of funds on October 1 for operations in Iraq and Afghanistan. More recently, reports have surfaced that the services may indeed run out of these funds sooner than that. They are now robbing Peter to pay Paul as they scavenge other accounts to fund operations in Iraq and Afghanistan.

In addition to funding for our military forces directly, we should understand even at the most optimal success level, military forces will buy you time to deal with the more fundamental problems that cause terrorism, that cause unstable governments, unstable regions. Those costs are also huge: costs in economic development assistance, costs in educational assistance. Those costs have to be factored in also. They are not included effectively or sufficiently in the budget the President sent to us.

As I said, this is not only poor budget policy with regard to military forces, but if we cannot even honestly budget for military operations, how can we marshal the will and the dollars to reinforce military success with the resources for economic development that will address the root causes of the animosity we are confronting.

One measure of the wisdom of any strategy is whether that strategy is sustainable. The administration's choice of a virtually unilateral preemptive attack followed by long-term and expensive nation building is not a strategy that can be easily duplicated. It is especially difficult to sustain without broad-based international support. Ironically, our preoccupation with Iraq might serve as an inhibition as we confront other adversaries. Moreover, our military advantages simply buy us time, precious time, to deal with fundamental issues that create the climate in which terrorism thrives.

Our attention to these issues of education and economic development is necessary now and not just in Iraq. These, too, are expensive undertakings that require international cooperation with strong American leadership. We face great challenges around the world and here at home. But Americans are not strangers to great challenges. We will endure. And with wisdom and courage, we will prevail--the courage we witness every day in the extraordinary valor of our fighting forces.

But the challenges before us require a strategic vision grounded on attention to the compelling threats we face, not the ideological impulses that stir our hearts. These challenges can best be faced with other nations, not alone. These challenges require huge resources and a long-term commitment, not budgetary gimmicks in the short run.

Until the administration acts on these basic principles, our response to real threats will be hobbled by ideology rather than focused by experience.

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

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

Mr. President, I ask that time allocated to Senator McCain, cosponsor of the gun show amendment with myself, be given to me for such time as I may consume.

Mr. President, we are debating legislation that is a serious encroachment on the common law of negligence. It is a legislative proposal that, in my view, is audacious in its breadth and also something that is presumptuous, presumptuous in the fact that, at the heart of this legislation, any liability for a gun dealer or a manufacturer or a trade association would rest on a violation of a statute, a Federal or State statute. Of course that presumes we are wise enough and bright enough to provide a statutory answer to every question posed by life. And I don't think we are.

That is, in effect, one of the reasons why the law of negligence arose. It was not a response to the fact that we have too many laws; it was a response to the fact we had laws that did not require a standard of care in every circumstance. This legislation presumes we will govern every conceivable item of conduct and if one of those items of conduct is violated, a statutory requirement, then liability will arise. That defies human experience.

Again, that is why our system of law over centuries developed the notion that outside of laws there is another standard. That is the standard of reasonable conduct. That is a standard that says an individual should act in a way that does not reasonably lead to the injury of another.

We are upsetting that totally with this legislation. One example of the deficiency of the current legislation that we have, the legislative framework, is the governance of gun shows. These are sales of weapons in public areas that take place in most jurisdictions of this country-- in many, many jurisdictions. We became aware of one of the glaring shortcomings of this legislative framework after the Columbine killings. There, two very disturbed young men were able to obtain a weapon through a gun show. They used this weapon and other weapons to go in to wreak havoc in Columbine High School: classmates dead, families shattered, a community in turmoil.

At that point, this body moved very appropriately to try to close the gun show loophole. What is this gun show loophole? It is very simply stated. If you are a licensed Federal firearm dealer, then you must conduct a background check upon anyone who purchases a weapon from you. But if you are an unlicensed dealer, i.e. someone who does not engage in the sale of firearms, then there is no requirement that you conduct this background check. It turns out that at gun shows there are many licensed dealers but a significant number of unlicensed dealers.

They come and sell their wares at that show. In fact, you can go up to one table at a gun show and ask about a weapon. A licensed dealer would presumably quote you a price and say, I also have to conduct a background check under Federal law. You can step 3 or 4 feet away to another table to an unlicensed dealer, someone who ``knows the business'' of selling weapons, where in fact you don't have to do a background check. He says, ``I don't have a license. This is the price I want for it.''

It is not fair. It also allows for the distribution of this weapon into society in a way that can be harmful. The Columbine case is an example of that. Senator McCain and I are proposing legislation that will close this loophole.

Again, back in 1999, in the wake of Columbine, Senator Lautenberg proposed legislation that passed this body. It was, unfortunately, stripped out of the legislation before it reached the desk of the President. We hope to offer an amendment tomorrow morning, and hopefully it will be agreed to.

It is very important to have an active framework for the regulation of firearms in the country. It is important because in many cases we have avoided subjecting firearms to the regulation which is common for other goods that are sold in commerce. Firearms are exempt from consumer product safety laws that apply to virtually every other product in the country.

I think it is important when we have public sales of firearms that we should have a situation in which every dealer is required to conduct a background check on the purchase.

The Bureau of Alcohol, Tobacco, and Firearms reported to Congress in 2000 that gun shows are a major source of gun trafficking, responsible for 26,000 illegal firearms sales during the 18-month period they studied these sales.

That suggests to me this is an issue that must be dealt with and must be dealt with in this legislation. They have told us many of these purchases are by convicted felons, domestic abusers, and other prohibited purchasers who cannot obtain a weapon if they go to a licensed dealer and have a background check.

At least three suspected terrorists that we know have also exploited the rules to acquire firearms, including one suspected member of al- Qaida.

Under Federal law, Federal firearms licensees are required to maintain careful records of their sales and, under the Brady Act, to check the purchaser's background with the National Instant Criminal Background Check

System. However, as I explained, a person does not need a Federal firearms license, and the Brady Act does not apply, if the person is not ``engaged in a business'' of selling firearms pursuant to Federal law.

These unlicensed sellers make up to one quarter or more of the sellers of firearms at thousands of gun shows in America each year. Consequently, felons and other prohibited persons who want to avoid Brady Act checks and records of their purchases buy firearms at these gun shows. It stands to reason if you are a felon and you know the system and know that if you go to a licensed dealer you have to have a background check, where do you go? You go to someone who doesn't have to conduct a background check. In many cases, it is gun shows and unlicensed dealers.

As I also mentioned, 5 years ago, Eric Harris and Dylan Klebold killed 13 people at Columbine with weapons purchased from an unlicensed seller at a gun show. The woman who purchased those guns on behalf of Harris and Klebold testified to the Colorado Legislature she would never have purchased the weapons had she been required to undergo a background check. Had we had those background checks in place, then we might have avoided a terrible tragedy at Columbine.

We are united in this bipartisan legislation, Senator McCain and myself and other cosponsors, and we have brought together provisions from several previous gun show bills to make gun show transactions safer for all Americans. The amendment we will propose tomorrow will require Brady law background checks on all firearms transactions at any event where 75 or more guns are offered for sale. Three years after enactment, States could apply to the Attorney General of the United States for certification for a 24-hour background check for unlicensed sellers at gun shows. In order to be eligible for this 24-hour certification, a State would be required to have 95 percent of its disqualifying records automated and searchable under NICS, including 95 percent of all domestic violence misdemeanor and restraining orders dating back 30 years.

If a State can show their records are accessible through the system, if they are updated, if they cover the range not only of felony convictions and other criminal convictions but also domestic violence, misdemeanors, and restraining orders, then they could have a system in which an unlicensed dealer could have the check resolved in no more than 24 hours.

Before certifying a State for this 24-hour background check, the Attorney General would be required to establish a toll-free telephone number to enable State and local courts to immediately notify the NIC system anytime a domestic violence restraining order is filed, and courts within a certified State would be required to use the telephone number immediately upon the filing of such an order to notify the NIC system.

The bill also directs the Attorney General to work with States to encourage the development of computer systems that would allow courts to provide electronic records to NICS immediately. The Bureau of Justice Statistics would conduct an interim review of all certified States to ensure they continue to meet the conditions of the 24-hour background check and certification.

The amendment Senator McCain and I will offer tomorrow differs in several respects from the legislation Senator McCain and I proposed last fall.

First, gun show operators would not be required to notify the Attorney General of plans to hold a gun show. This provision was included in previous legislation, but it has been stricken from the amendment. Thus, there will be no requirement for a gun show operator to notify any Federal agency about plans to operate a gun show.

Second, gun show operators would not be required to notify the Attorney General of vendors who sell firearms at gun shows. Again, this is a provision that has been dropped from previous legislation. The ledger of vendors at a gun show would be maintained at the permanent place of business of the gun show operator.

Let me repeat that our amendment contains no requirement for gun show operators to notify any Federal agency about the names of firearms vendors at gun shows. Therefore, the amendment would not, as the NRA has claimed, in their words, create ``gun owner registration.'' It would not do that.

Third, our amendment does not authorize the Department of Justice to draft regulations concerning how gun shows notify each gun show patron on the provisions of the law.

Again, in previous editions of legislation, there was a requirement they would inform patrons about the provisions of the law. This legislation does not contain such a provision.

The NRA has claimed, in keeping with their longstanding tradition of extreme rhetoric, our bill would create ``massive bureaucratic red tape'' and give a so-called ``antigun administration'' the power to ``regulate gun shows out of business.'' That was never true to begin with. But the changes Senator McCain and I have made to our amendment should put these accusations to rest.

The overriding purpose of our bill is to require background checks on all gun show sales in the most convenient manner possible for gun show operators, unlicensed sellers, and private citizens who seek to purchase firearms at gun shows.

I have no doubt the gun lobby will continue to say this is an attempt to end gun shows. But the experience of States that have closed the gun show loophole proves otherwise.

California, for example, requires not only background checks at gun shows but a 10-day waiting period for all gun sales. Yet gun shows continue to thrive there.

We are not trying to end gun shows. We are trying to end the free pass we are giving to terrorists and convicted felons that allows them to simply walk into a gun show, find an unlicensed fellow, buy whatever weapons they want, and walk out without a Brady background check.

In overwhelming numbers, gun owners believe a background check should be required whenever a firearm is sold at a gun show. An October 2003 poll found 85 percent of gun owners support closing the gun show loophole, that 83 percent of those who have attended gun shows support closing the loophole as well.

The people of Colorado--one of several States--confirmed this widespread support after Columbine when they approved a ballot initiative to close the gun show loophole. President George Bush said repeatedly during the 2000 campaign he supported legislation to require background checks at gun shows.

We hope tomorrow this amendment will be adopted so the President can sign a bill which he has indicated clearly and repeatedly throughout the 2000 campaign that he supports. I urge my colleagues to support the McCain-Reed amendment so we can finally close the loophole in every State and make sure that convicted felons, domestic abusers, and other prohibited persons do not use gun shows to purchase firearms without the background check.

There has been some discussion and rebuttal by those who say this is unnecessary because this is not an opportunity for felons to obtain weapons. In fact, the NRA maintains there is no gun show loophole. What is the truth? Under Federal law, licensed dealers must do background checks at gun shows, but unlicensed dealers do not. Thus, at thousands of gun shows each year, a licensed firearm dealer must conduct a background check, while 2 feet away an unlicensed dealer is able to sell a weapon without a check. That suggests strongly--it would defy common sense otherwise--that if you are looking to get a weapon and you are prohibited from having one, where would you go? Right to the unlicensed dealer, right to that loophole. Put the money on the table and take the weapon and walk out, no questions asked.

According to the NRA, they suggest hundreds of thousands of guns are sold each year at gun shows without these background checks--that is their own statement--hundreds of thousands of guns not subject to background checks.

It is not fair. I have talked to my colleagues from States that have quite a few gun shows and they simply say, what sense does it make that someone who walks into a Target or a Wal-Mart to buy a weapon has to undergo a Federal firearms check and they can just walk across the street to some type of

gun show and get one without a background check. That is not fair. It is not an even playing field. It is a loophole. We hope we can close that loophole tomorrow.

The NRA says if we adopt this legislation we will put gun shows out of business. That is not true, either. Seventeen States have closed the gun show loophole on their own. According to the Krause Gun/Knife Show Calendar, which bills itself as the complete guide for anyone who attends or displays at gun shows, States which closed the loophole hosted more gun shows each year than States which have left this loophole open: an average of 45 gun shows per year in the 17 States which have closed the loophole compared to 41 in the other 33 States.

The NRA also says lengthy background checks take too long for weekend gun shows. But thanks to improvements made by the NIC system, National Instant Recovery background system, 91 percent of the background checks take less than 5 minutes; 95 percent take less than 2 hours to complete. For 19 out of 20 background checks, instant checking is truly instant, within minutes, and no more than 2 hours. Of the remaining 5 percent that take longer than 2 hours, about one-third of these result in a denial because they have found information indicating the individual is prohibited from purchasing a weapon.

Also, as indicated, our amendment gives the State the opportunity to qualify for a 24-hour background check for unlicensed sellers at gun shows if it has automated 95 percent of its background check records. These checks can be made, they will be made, they are being made without inhibiting gun shows on behalf of licensed dealers who sell at the shows. The idea that requiring unlicensed dealers to get a background check would disrupt gun shows is, in my view, completely unsubstantiated.

The NRA says criminals do not buy guns from gun shows. The truth is, crime guns do come from gun shows and it has been documented. That is according to ATF Special Agent Jeff Fulton. In a comprehensive ATF report on illegal guns, they found gun shows were the second leading source of firearms recovered in illegal gun trafficking operations.

The NRA says also the Department of Justice survey of prison inmates found only 2 percent of prisoners obtained their firearms from the gun shows and flea markets. The 1997 survey at the NRA sites admits an obvious flaw: The gun show loophole did not exist until the Brady law passed at the end of 1993, requiring background checks by licensed dealers. Thus, any criminal imprisoned before 1994, or inmate who acquired a firearm before 1994, could go to a gun store without having to undergo any type of background check. The survey they rely upon is invalid.

We have several recent examples of gun show loopholes being exploited by criminals. Thomas Timms was arrested last October with 147 guns, 60,000 rounds of ammunition, a submachine gun, a 20 millimeter antitank rifle, a 12-gauge ``street sweeper'' and a rocket launcher. According to Federal agents, he had been selling large quantities of weapons at Georgia gun shows that were used in crimes in Washington, DC, New York, and Georgia.

Caesar Gaglio was arrested in September after selling 11 guns to undercover agents and was among 5 unlicensed sellers caught with 572 guns in an undercover sting that encompassed gun shows in Oklahoma, Kentucky, and Kansas.

John Loveall and eight others were arrested in June for selling firearms to felons or people under indictment at Tennessee gun shows. They were arrested with 500 guns in their possession. In the words of the Federal attorney, this is 500 guns that will not wind up in the hands of criminals to use, to rob, or to shoot or murder citizens of Memphis or anywhere else in the western district of western Tennessee.

Tommy Holmes pleaded guilty in October for being part of a trafficking scheme that included a known felon buying scores of guns at Alabama gun shows to sell on the streets of Chicago. Fifteen of the firearms have been recovered in the course of criminal investigations or at crime scenes.

Bud Varnadore was sentenced to prison in November for trafficking in firearms at Tennessee gun shows. He was caught in a sting that identified 23 other suspicious sellers and recovered over 1,600 firearms. Tennessee is a ``source State'' of guns for criminals, through unlicensed dealers, according to AFT Special Agent James Cavanaugh.

Nigel Bostic and two accomplices were arrested for buying 239 firearms at 11 Ohio gun shows and reselling them to criminals in Buffalo, NY. At least one was recovered in a homicide. In one instance, Bostic purchased 45 firearms and his accomplice purchased 85 guns. ``We are still finding guns that have been used in crimes and tracing them back to him,'' said Buffalo Police Lieutenant Amy Marracino.

Viktor Mascak was arrested on 56 counts of trafficking in firearms at Washington State gun shows. At least five of Mascak's guns were recovered in crimes, including one that was carried into Hanford Middle School by a 13-year-old.

Billy Gage and Lowell Ronald Wilson, a felon, were arrested at the Seagoville flea market outside of Dallas with 2 machine guns, 91 handguns, and 49 rifles. They were apprehended after a 9 millimeter pistol they sold to a felon was used to murder Garland County Police Officer Michael Moore.

This is quite a record of criminals exploiting gun shows and exploiting the current loophole. If we do not close it, there will be more to add to this infamous list.

The NRA says supporters of closing the gun show loophole are shamefully exploiting terrorism to make their case. The truth is, we know three cases where suspected terrorists exploited the gun show loophole. Ali Boumelhem, a Lebanese national and member of the terrorist group Hezbollah, was arrested and convicted of attempting to smuggle firearms he bought from Michigan gun shows to Lebanon.

Muhammed Nasrar, a Pakistani national in the country on an expired visa, admitted to buying and selling firearms at Texas gun shows. Nasrar is a suspected al-Qaida member who obtained a pilot's license, had photos of tall buildings of American cities, and, though seemingly impoverished, attempted to purchase a time share for a Lear jet.

Connor Claxton, an admitted member of the Irish Republican Army, spent over $100,000 at Florida gun shows and through other private dealers to obtain firearms to smuggle to Ireland.

The National Rifle Association says also the McCain-Reed amendment creates gun owner registration. Not correct.

The truth: Special firearms event licensees, those who are certified to perform background checks for unlicensed firearms vendors at gun shows, are required to keep the same records as federally licensed firearms dealers, no more or no less. Unless one argues that buying a firearm from a licensed dealer constitutes gun owner registration, then one cannot argue this amendment constitutes gun owner registration.

The NRA says the McCain-Reed amendment requires gun show operators to register all firearm vendor names to the Federal Government.

The truth: The amendment does not require this. Gun show operators are not required to submit a list of vendors to the Federal Government. Gun show operators are only required to maintain their own paper records of those who sell firearms at gun shows.

The NRA says the McCain-Reed amendment requires registration of gun shows.

The truth: The amendment does not require gun show operators to register or notify the Federal Government about the scheduling of any gun shows. A gun show notification requirement in our bill has not been included in this amendment. We struck it. The Federal Government has no role in approving or denying gun shows from operating in any way.

The NRA says the McCain-Reed amendment allows harassment of gun show organizers and vendors.

The truth: Federal authorities will have no more inspection authority over gun show operators than they have now with licensed firearms dealers. There is no new inspection authority over any vendors in this amendment.

The NRA also says the McCain-Reed amendment creates massive bureaucratic redtape.

The truth: This amendment is remarkably redtape free. There are no

new paperwork requirements for unlicensed sellers. The Federal Government has no role in approving or disapproving gun show events. Gun shows are under no obligation to notify Federal authorities about their intent to hold an event.

The NRA also says the McCain-Reed amendment turns casual conversations into gun show sales.

Not true. The amendment clearly defines a firearms transaction as ``the sale, offer for sale, transfer, or exchange of a firearm.''

The NRA says the McCain-Reed amendment's 24-hour maximum allowable background check is a smokescreen.

It is not. If a State wants to place a 24-hour limit on the length of background checks at gun shows, it may do so once that State has its background check records in order and automated. If a State chooses not to limit the length of background checks below the current 3 business days, it does not have to.

The NRA says the McCain-Reed amendment makes no improvements to instant check.

The truth: Legislation to improve instant check has been introduced separately by Senators Schumer, Craig, Hatch, and Kennedy. I am proud to be both a cosponsor of the legislation and a longtime supporter of the National Criminal History Improvement Program to help States get more of their disqualifying records into the system.

NRA also says the McCain-Reed amendment gives no priority to gun show background checks.

That is because it is not necessary. The NIC System currently operates from 8 a.m. to 1 a.m. 7 days a week and 364 days a year. That is why 91 percent of background checks are completed in minutes, and 95 percent are completed within 2 hours. The remaining 5 percent are 20 times more likely to turn up an illegal buyer than the rest of the checks. There is no need to put gun show checks in front of other background checks the NICS processes nationwide every day because the system is working very efficiently.

These are some of the refutations of the amendment Senator McCain and I are offering, but none of them hold any weight. This is an amendment that will close the gun show loophole without materially affecting the operation of gun shows or the conduct of unlicensed gun dealers, but it will attempt to prevent some of the rogues, whom I described, from getting access to weapons.

Once again, there is a great discussion on this floor almost every moment of the principles of law, the principles we espouse. But a lot of what we do must be common sense. I ask my colleagues, and also the people listening, to think about it. If you were a felon, or if you were a terrorist, and you were aware, as so many of them are, that you could go to a gun show, find unlicensed dealers and buy a weapon--some of them extremely dangerous weapons--without any questions asked, where would you go? You would go right there.

All the principles of law, all the principles of legal theory, have to respond to that commonsense insight. The McCain-Reed amendment seeks to make a commonsense response to this glaring omission, to close the loophole, to require anyone purchasing a weapon at a gun show must go through a background check, and to do so in a way that we do not inhibit gun shows and we do not impose undue requirements on both the operator of the gun show or those dealers, both licensed and unlicensed, who may attend.

I mentioned before discussion of the terrorist connection. It seems to me that after 9/11, when we attempted to strike an extraordinarily strong posture against any form of terrorism--where this body, in virtual unanimity, passed the PATRIOT Act, which empowers the Federal Government to take unusually strong steps with respect to individual privacy and individual protections--to now suddenly allow this loophole to exist that may be exploited by terrorists, seems to me astounding.

If we can have thousands of people at airports screening bags against terrorist threats, why can't we simply pass a gun show loophole amendment that will close a source of weapons that has been exploited in the past by terrorists?

I mentioned three cases in particular. I would like to elaborate, if I may.

The first is Ali Boumelhem, a known terrorist, connected to Hezbollah. He is currently serving prison time for attempting to smuggle guns into Lebanon. He was discovered by an informant. As a result of this information, Federal law enforcement agents trailed him, observed him, and saw him go to a gun show in Michigan. He purchased a weapon. He also involved his brother as a straw buyer, to purchase another weapon. He was caught after attempting to smuggle the weapons out of this country to Beirut.

It is important to note, because there has been some suggestion that he never actually purchased a weapon at these shows, that he always used straw purchasers to purchase them. As a result, it would foil our amendment, the McCain-Reed amendment.

But in a sworn affidavit, dated November 6, 2000, ATF Special Agent Cheryl Crockett testified agents assigned to the Joint Terrorism Task Force had Boumelhem under surveillance on October 29, 2000, when he went to the Grand Rapids Gun and Knife Show. One agent particularly, Edwin Edmunds, observed Boumelhem approach a table and examine an M-16 rifle upper receiver--that is, the receiver, barrel, carrying handle, and handguards. This configuration is a firearm under Federal law.

Boumelhem walked away, but then returned minutes later with a wad of cash, which he exchanged for the M-16. He was seen leaving the gun show with a plastic bag that, in the language of the agent, ``comports with the size and shape of an M-16 receiver.''

Mr. Boumelhem himself purchased a weapon at a gun show. Had the McCain-Reed amendment been in effect, the individual would have been required to have conducted a background check of Mr. Boumelhem, and he would have been denied the right to buy that weapon because he had already been convicted in California of an offense that would disqualify him to purchase such a weapon.

Mr. Boumelhem was involved in a conspiracy not only to purchase weapons on his own behalf but to enlist others to purchase these weapons and to ship these weapons back to Beirut. In fact, he was finally arrested after a Federal agent searched an auto park's cargo container on a ship bound for Lebanon. They found weapons and other materiel. He was attempting to flee the country, apparently, when he was arrested by the Federal agent. He had a one-way ticket to Beirut. It appeared he was not making just a business stop but, indeed, was trying to flee the country.

Our Federal agents also had witnesses and informants who had seen Boumelhem in Lebanon with, in their words, AK-47s, M-16s, explosives, grenade launchers, grenades, rocket launchers, and rockets in his possession. The press reported the FBI has a video tape apparently showing Ali Boumelhem firing automatic weapons in Lebanon and acknowledging he is a member of Hezbollah.

This is the charge--someone who, under observation by Federal agents, used the gun show loophole to acquire an M-16. He was engaged in significant conspiracy with others before to exploit gun shows or other means. His brother said Ali Boumelhem was a frequent gun show attendee. In his own words, he said his brother said he went to ``gun shows everywhere. Gun shows everywhere here, almost every week. If it's not Mt. Clemens, it's in Taylor.''

Both of them were searching out gun shows all through Michigan. This individual qualifies as a terrorist. He would have been denied the right to purchase this firearm had the Reed-McCain legislation been in effect.

There are others, too, who have been indicated as terrorists and have been involved in these details. One other is the case of Muhammad Asrar. Mr. Asrar is an illegal Pakistani immigrant who has pleaded guilty to weapons and immigration charges. At a presentencing hearing, the Government sought an ``upward departure'' from the sentencing guidelines because of Asrar's ``intent and demonstration of violent and terrorist motives.'' Asrar remains under investigation by a Federal grand jury on suspicion of involvement with al-Qaida. The Government has revealed that he was stockpiling guns he had illegally bought and sold

at Texas gun shows. Asrar had also obtained a pilot's license, collected pictures of tall buildings in the U.S., and tried to purchase a timeshare in a Lear jet.

Asrar was convicted of illegally possessing 50 rounds of 9 mm ammunition. As an illegal alien, it was illegal for Asrar to buy or possess guns or ammunition. He was also convicted on an immigration charge--illegally overstaying his student visa since 1988. He has admitted to having bought and sold guns at gun shows. Asrar told authorities that he had bought and sold a variety of guns at Texas gun shows over the last 7 years. These included a copy of a Sten submachine gun, Ruger Mini-14 rifle, two handguns, and a hunting rifle. None of the guns were in his possession when he was arrested on September 17.

In addition to the ammunition, authorities also found pictures of the tall buildings, as I indicated, and also pictures of the guns that he said he at one time purchased and had in his possession. He told the authorities he bought and sold guns at gun shows.

It appears he was stockpiling these weapons. The fact is, he had at least 16 guns, and possibly as many as 30 guns. He was arrested on September 11 when an informant had indicated he was behaving suspiciously. The informant indicated that Asrar had asked him whether or not he could help Asrar smuggle a foreign national across the border from Mexico, and if he would take pictures of tall buildings for him during his travels, and if he would mail letters for him from Pennsylvania.

Now, the Government is presently developing cases against this individual based on a theory that he is involved in terrorist activity. As I said, in a presentencing motions hearing, the Government indicated that it is conducting this further investigation. In their words, ``We are asking for upward departure based on his intent and demonstration of violent and terrorist motives.'' This is the text of the open session in court:

. . . will testify that he, there's numerous gun

transactions, there's more than what's in the presentencing

report.

This is the Federal attorney:

The presentencing report contains most of the ones that are

more well defined, but there's other witnesses who are a

little bit more vague, but they describe more gun

transactions, or gun incidents I should call them, not gun

transactions necessarily. But also the presentencing report

contains incidents where he's trying to buy explosives.

There's also the--on September 8, Your Honor, he rented a

car. He drove to Houston, Texas; he returned the car on the

11th. He met with well-known persons of middle eastern

descent there in Houston. He has obtained a flying, a pilot's

license. Although he was apparently completely broke, he was

trying to purchase a timeshare in a Lear jet. He requested a

person who was traveling to the East Coast to take pictures

of tall buildings for him and send them to his brother.

There's an incident, Your Honor, where approximately a year

before the defendant was arrested, persons had been calling

in to local authorities saying he had been involved in gun

transactions and the ATF went with, I believe it was the

TABC, or some alcohol-related agency, and they went to search

his property, and about a year before he was arrested. And

they found no guns. When we began interviewing people after

he was arrested, we looked into one, Mr. Robert Fang, who's

an admitted friend of Mr. Asrar, who says, who referred back

to that incident a year earlier and said that Mr. Asrar

brought him a case of guns, a case of guns, I believe it was

5 to 7 guns, somewhere in there, and said, ``Please hold

these for me. My place is about to get searched by agents.

Please keep these for me so they won't find them.''

Mr. President, you have someone who is behaving extremely suspiciously, is illegally in this country, who has apparent ties to terrorist organizations--at least enough to ask the Federal authorities to ask in a presentencing that he be treated as such. Of his own admission, he frequented gun shows, and bought and sold guns. Again, I think this is a strong case for closure of the gun show loophole.

Briefly, before I yield the floor, I will mention the case of Conor Claxton. Mr. Claxton is an admitted member of the Irish Republican Army. He came to the United States--specifically Florida--because he was looking to develop an arsenal of weapons to ship back to Ireland. He testified that the IRA chose Florida because ``we don't have gun shows in Ireland, and you see things here like you never imagined.'' He told the FBI it is common knowledge that obtaining weapons in the United States is easy.

Now, Mr. Claxton was involved in, apparently, using about $100,000 to assemble an arsenal for the IRA. The Irish authorities recovered 46 handguns in 1999 and more than 600 rounds of ammunition hidden inside 23 packages containing toys, computers, and other goods to be shipped from the cabal of the IRA in the United States.

Claxton usually used a straw purchaser, a naturalized American citizen, Siobhan Browne, who is also his girlfriend. She acquired many of these guns. But it appears, also, because Browne indicated that Claxton ``spent more than $100,000 off the books on semi and fully automatic weapons in sales from private dealers.'' So there is strong evidence to suggest that Claxton himself was engaged in the acquisition directly of firearms for the purpose of arming IRA members in Northern Ireland.

Now, Mr. Claxton was ultimately charged and he was convicted along with two codefendants on the gun smuggling charge of which he was accused. He is currently serving a 56-month sentence.

Despite his admission that he was a member of the IRA, he was acquitted of the charges of terrorism and conspiracy to maim and murder. That seems to be a technicality. According to the Good Friday accord negotiations, the IRA had been dropped from the Federal Government's ``Dirty 30,'' the list of officially recognized terrorist organizations. If the IRA had stayed on this list, his conviction would be automatic. Because of that delisting, however, Federal authorities had to show that the weapons had been smuggled ``with the specific intent to murder or maim.''

A specific intent offense requires a level of proof that is significant. Even though they failed in this level of proof, Mr. Claxton's contact and his own admission of the involvement with the IRA strongly suggests that he, too, was involved in terrorist activities.

We have a situation in which, because of the gun show loophole, there is mounting evidence that criminals have access to weapons and indeed terrorists have access to these weapons. The amendment Senator McCain and I will propose will close this gun show loophole without unduly burdening gun show operators. It will also not interfere with the operation of unlicensed gun dealers.

I have suggested, by pointing out specific incidents, a situation where individuals have used the gun show loophole. Let me say in conclusion that the vast majority of individuals participating in these gun shows, licensed and unlicensed dealers, are law-abiding individuals who have no intent to defeat the law. But as long as we have such a low, virtually nonexistent threshold, there will be a few--and there certainly will probably be more--criminals and terrorists who will seek to avoid the responsibilities under the gun laws.

I think it is entirely appropriate to pass this legislation to close this gun show loophole and to ensure simply that at a gun show everyone is treated the same--licensed dealers and unlicensed dealers--and that everyone knows the rules. Gun shows now will require a background check.

I retain the remainder of my time. I yield the floor.

May I inquire how much time is allocated to each individual side?

Reserving the right to object.

MR. LEVIN. I would make inquiry.

May I make a point? All of this would be subject to the underlying unanimous consent that all amendments also are withdrawn tomorrow morning.

I understand that under the controlling unanimous consent that all amendments are withdrawn tomorrow morning. So if your amendment was in order after Senator Levin, I think both amendments technically at this point would be withdrawn tomorrow morning.

Reserving my right once more to object again, the understanding, of course, is that all of these amendments are withdrawn tomorrow morning.

Madam President, could I once again determine how much time is available to all the participants?

Madam President, I ask unanimous consent that at 3:35 Senator Schumer be recognized for 5 minutes, from the time of Senator Feinstein.

I suggest the absence of a quorum.

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

Madam President, I listened quite attentively to my colleague, the Senator from Idaho, talk about gun shows and the need or lack of necessity to close the gun show loophole. It struck me there is something quite a bit different between a private

sale and a sale through a gun show. Again, not the law but the logic. Most private sales involve people who know each other. In fact, for a home sale you invite the person into the home to offer them the sale of a weapon. It is quite different from a gun show, as the picture indicated. These are huge events. These are supermarkets for firearms. No individual has the knowledge of the perhaps hundreds or even thousands of people who might come up to them and offer to purchase a weapon. In that case, the very particular specialized case of a gun show, the need for a background check seems obvious. That is why we insist that Federal licensed firearms dealers conduct such a check.

To argue that this is some aberration, that this gun show loophole amendment we are proposing somehow turns the law on its head, is completely wrong. Again, here is a situation where these unlicensed sellers have very little, if any, knowledge of the thousands of people who come up to them, which of those people is a terrorist or a criminal seeking to exploit the gun law. That is what has happened. These individuals I referred to have been captured and prosecuted. But there are, I am sure, many others who avoid capture and prosecution.

There are those today in this situation. Anyone could. Anyone listening today--I hope they don't take this as direction or guidance-- but understanding that, they could walk up to an unlicensed dealer, find an unlicensed dealer and ask to purchase a weapon and do that.

Again, the cases seem compelling. Nigel Bostic and two accomplices were arrested for buying 239 firearms at 11 Ohio gun shows. Here is a team of people systematically using gun shows to acquire 239 weapons which they then sold to criminals in Buffalo, NY. One was recovered in a homicide. I don't know how many others were involved. That is just one example, and there are more examples than this.

It seems to me this makes obvious sense that we cannot have a situation where there are two standards, for a licensed dealer and for an unlicensed dealer at the same place, in a public setting, in a place that is advertising the sale of guns. This is not a situation where you are at home or you have a weapon in your garage that you would like to sell to someone who came by. You have a friend. You were talking at the local doughnut shop and discovered that you and your friend have an interest in common, firearms, and you decide: Come back to my place; I'll show you a weapon.

That is not a gun show, and our amendment does not reach those activities.

It is clear, it is logical, it is consistent, it is fair, and it sets a common standard.

This amendment will not disrupt gun shows. California has a statute that not only requires background checks at all sales but a 10-day waiting period for gun shows, and they still have gun shows. In fact, I am told their gun shows are quite popular and quite successful. This amendment is about common sense. It is about dealing with problems which we know exist--Columbine showed us that--and the arrest of criminals who are engaged in conspiracies to exploit the gun show loophole. We have evidence of terrorists--real terrorists--who are aware of this who have tried to use it.

I don't think we can be so sanguine as to say we know how terrorists will attack us, that they will always choose an airline or they will always choose explosives. They will choose the way that is most disruptive to our life and which will cause the most damage. That could involve in some way, shape, or form exploiting the gun show loophole.

I urge my colleagues to support this amendment.

I yield the floor, retaining the remainder of my time.

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

Madam President, I make a parliamentary inquiry and ask how much time is remaining for the various parties.

Madam President, just very briefly, I would like to respond to two points that the Senator from Idaho made. One is the suggestion that the Federal study of the felons indicates a very low number of people who have used gun shows to get weapons.

I would be very curious to study State prisons because it is in the State prisons you find more people who are convicted of crimes such as homicides and armed robberies and burglaries. Federal laws usually encompass more white-collar criminals, although there are a significant number of criminals in jail under Federal drug trafficking charges.

But I think the studies we have seen suggest, very strongly--and the ATF has suggested very strongly--that gun shows are a source of a significant number of weapons.

I also point out, in response to the Senator from Idaho, the suggestion that this is going to disrupt gun shows, create very difficult matters of interpretation so that individuals will be so confused that gun shows will wither on the vine, I think that could not be further from the truth.

Let me point out that States have already stepped up and passed legislation to close this loophole, to require everyone who is selling weapons at a gun show--regardless of their license status--to involve a background check on a potential purchaser.

In North Carolina, in 2003, there were 76 gun shows. I am told, actually, North Carolina is ahead of the rest of the country in developing their data

system for instant checks. So there is one example where a State has closed a gun show loophole, but gun shows continue to thrive. In fact, North Carolina has the distinction of having the most gun shows in the year 2003, from our records. I am sorry, Wisconsin had 88. So they eclipsed them. And Florida had 111. But North Carolina is among the top 10, at least.

I think that is an example to demonstrate this will not undermine gun shows. It will not impose undue burdens on individuals, people who wish to sell weapons and people who wish, honestly and legally, to acquire them. So I believe this amendment is compelled by the evidence we have seen.

Now, the Senator from Idaho has indicated the law has worked. It certainly did not work for that police officer in Garland, TX, who was killed by a weapon that apparently flowed through people exploiting the gun show loophole. And it certainly did not work for the 13 children at Columbine High School.

I think we can make it work. I think we can make it work if we adopt the Reed-McCain amendment.

I yield the floor.

Madam President, I am informed Senator Schumer will not be arriving to the floor. Since there was a unanimous consent that allocated 5 minutes to him from Senator Feinstein's time, I ask unanimous consent I be given any time remaining of Senator Feinstein and Senator McCain.

How much time will that be?

Madam President, one of the factual points that has to be stressed again and again is the national criminal background check system is very efficient and rapid. Ninety-one percent of background checks take less than 5 minutes, so 91 percent of the checks involved in the sale under our amendment, by an unlicensed dealer, would be expedited in a matter of minutes--less than 5 minutes. And 95 percent of these checks take less than 2 hours. This is not a burden that is going to undermine the ability of a licensed or unlicensed dealer to operate at a gun show, or for a gun show to operate at all.

The evidence before us suggests that in States which have not only instant checks on all sales but also background checks, and sometimes even waiting periods, gun shows continue to operate. Again, this is not going to cause an undue burden on individuals who want to acquire a weapon.

The other factor I think has to be pointed out again is surveys of gun owners overwhelmingly support the idea of a background check applying to all sales at these shows. In a recent survey, 83 percent of gun owners said it makes sense. Again, the public nature of a gun show--the inability for an individual to screen his customers is quite different than a private sale or a transfer of a weapon between family members, and quite different than the transfer of weapons among people in a hunt club.

That is all protected in our amendment, because there is knowledge who you are dealing with. Here, you could have literally hundreds of thousands of people come to your booth, look at a weapon, and say I would like to buy. If there is no background check, how does that conscientious seller know if he is dealing with a criminal?

That is why I think the overwhelming number of gun owners and attendees at gun shows suggests this amendment would be helpful, not hurtful. And I agree. I urge my colleagues, when we lay the amendment down tomorrow and when we vote, to support this amendment. It provides a commonsense approach to ensuring there is an even and level playing field so everybody who is participating in a gun show on both sides of the transaction knows there will be a background check. I think it is particularly important because we already have evidence of individuals who are criminals who have exploited this loophole, and terrorists-- three we know by name--and, frankly, they are not in the business of broadcasting their names. They understood the loophole, sought to exploit it and indeed, in some cases, they were successful--momentarily successful.

We owe it to the safety of the public to ensure this gun show loophole is closed. The McCain-Reed amendment will do that. I urge my colleagues to support it tomorrow.

I yield the floor.

No. Senator Schumer will not be here. I asked to be given the remaining time to allocate to anybody who may come to speak.

Just very quickly because I have very little time, this amendment does not create a new Federal bureaucracy. The national instant criminal background check system exists. We simply are applying it to unlicensed dealers at gun shows.

Second, I have heard much this afternoon about the law working. It has worked occasionally to punish terrorists and criminals who have used violence and weapons, but it has not worked as effectively to prevent harm to people who have been killed, the most obvious and most notable, 13 young people at Columbine High School. The Reed-McCain, McCain-Reed amendment can help prevent, we hope, this violence that so often strikes our communities.

I yield back my time.

Madam President, the legislation before us can't be all things. It can't be an effective barrier against litigation to protect the gun industry and yet a way to protect the legitimate rights of citizens who have been harmed by guns.

In fact, it is not both; it is one of them. It is carefully, cleverly worded legislation to immunize the gun industry--dealers, manufacturers, and the National Rifle Association--from any type of liability with respect to guns, virtually.

There are perhaps minor exceptions, but the cases we see before us today--the case of the DC snipers, the case of two police officers in New Jersey--would be barred. These cases have already been filed. In fact, one of the sweeping aspects of this legislation is, it doesn't attempt to set the rules prospectively, to say as we go forward these cases would not be heard by the courts. It literally walks in and tells people who have filed cases, cases that have survived summary judgment motions already by State court judges: You are out of court.

This is sweeping, and it is unprecedented. It deals a serious blow to citizens throughout this country while enhancing dramatically the legal protections for the gun industry.

Consistently the proponents say: You can't hold someone responsible for the criminal actions of another. That is not what these cases are about. These cases suggest, declare, allege that an individual failed in his or her duties, his or her responsibility to do what is necessary, responsibility in the conduct of their activity--in the case of gun dealers, to take sensible, reasonable precautions, the standard of care that a business person would use, the standard of care that any business person must use in the United States.

The allegation is they fail to do that. The evidence is overwhelming there was no standard of adequate care. Here is a gun dealer who could not account for 238 weapons, who claims a teenager--he didn't realize it at the time--must have walked in and shoplifted an automatic weapon, a sniper weapon, and carried it away undetected. In fact, this weapon was missing without his knowledge for weeks and months, undetermined.

Is that the standard of care we would expect a businessperson to exercise, particularly one who deals in products that can kill? I don't think so. That is what this is about. This is not about punishing people for the criminal activity of others. It is about holding individuals up to a standard of conduct we expect from anyone. There are various examples. Some say, my God, if the hardware store sells a knife to somebody and it is used in a crime, they are not responsible. If you have a car dealer who leaves the keys in the cars and has no security, and a teenager takes that car and gets into an accident and harms someone, certainly I think the parents of the individuals harmed or that individual could legitimately go to court and say this dealer didn't meet the rational standard of care of anybody in the automobile industry. They have to secure these cars. You cannot make them available to people and teenagers who might steal them. That is common sense.

That would apply to the automobile dealer, but if this legislation passes, common sense doesn't apply to the gun industry in this country. In fact, this is really a license for irresponsibility we are considering today. As I said before, when they get the Federal firearms license, if this bill passes, you can get another license. You are being irresponsible. That is not to suggest all dealers are irresponsible, but many are.

We talk about junk lawsuits. It is not a junk lawsuit when your husband has been shot while sitting in the bus waiting to go to work. I don't think the Johnson family volunteered to be part of this social experiment. I think any suggestion to that effect is offensive. They have been harmed grievously. A wife has lost her husband; children have lost their father. Their livelihoods are in question. They seek redress, as anyone would. That is not a junk suit. That is someone who says I have been harmed by the negligence of someone and that person should pay.

The suggestion that this suit is in response to some avalanche of lawsuits that is devastating the firearm manufacturers is without any foundation. The industry is so stressed they have raised $100 million to protect themselves, not just legally, but also in terms of controlling the documents and communications between themselves and their attorneys. This is not an industry that seems to be without resources. But I can tell you many of the families of victims of the Washington snipers are looking forward to a lifetime where they might have the resources to send children to college and do the things they would have been able to do if their spouse was still alive. The industry, it has been suggested, is being pushed into bankruptcy because of these frivolous junk lawsuits.

Well, Savage Arms was mentioned. It is a company that was founded in 1894. It has provided firearms for now over a century. It went bankrupt in 1988 because, according to the CEO, Ron

Coburn: ``We had too many products, each of them in dire need of re- engineering.''

There is no suggestion they were being intimidated by these fancy political science lawsuits. Under the bankruptcy plan, Coburn reduced the product line and fired 400 employees. There has been contraction in this industry, as in every manufacturing industry, but it is not as a result of these suits.

Since that time, Savage has done remarkably well. They have taken the lead in many different aspects. They are a responsible company. They were honored as manufacturer of the year and in many other aspects. It has been suggested this company, in effect, is overwhelmed by these lawsuits. I don't think that is the case. I think they make business judgments as any business--based upon products, demand, and all these things.

We are not facing a situation where we would be without the benefit of gun manufacturers in the United States because of these lawsuits. The suggestion that this somehow would interfere with our national security is outlandish. The suggestion we would then have to turn to foreign suppliers for our military is rather odd. Indeed, today, many of the suppliers for our national defense are the subsidiaries of foreign companies. Browning, Winchester and Fabrique Nationale, which supplies M-16 A-4 assault rifles and the M-2 49G squad automatic weapon, are subsidiaries of Herstal, a Belgium firm. The Pentagon contracted with Heckler and Koch, a German firm, to help develop the next generation of industry weapons.

Clearly, the Pentagon doesn't feel American manufacturers are so distressed that they have to go overseas. They are going overseas because they are looking for superior weapons. They are dealing with American subsidiaries of foreign companies. This is not about preserving the defense and the ability to access weapons. This is about protecting one industry from the legal responsibility to exercise caution any individual must exercise--one industry, when all industries must do that, or indeed the vast majority. This is not about protecting the integrity of the courts. What does it say to the integrity of the courts of West Virginia when a judge already found that a suit involving these two New Jersey police officers should proceed, when we say, no, you are wrong, this case is out the door? This is not about protecting courts. It is about protecting an industry.

We have been asked to look closely at the law. We have to look closely at the law in terms of the cases we know are pending because, frankly, we could hypothesize about cases in the future. This is the law:

A qualified civil liability action may not be brought in

any Federal or State court.

That is not a particularly narrow excerpt. It is not a listing of those exemptions the gun industry made available themselves. This is broad and sweeping, barring the doors of these types of suits. In addition to that--talking about overreaching, dismissal of pending actions--it is rare indeed that this Congress could go in and tell plaintiffs who have a case in progress you are out the door, you cannot proceed. This is extraordinary, to me.

A qualified civil liability action that is pending on the

date of enactment of this act shall be immediately dismissed

by the court.

Not reviewed but dismissed. I think, again, that is extraordinarily broad and sweeping. The real aspect of this legislation goes to the definition on the next chart.

A qualified civil liability action means a civil action

brought by any person against a manufacturer or a seller of a

qualified product or trade association, for damages resulting

from the criminal or unlawful misuse of the qualified product

by the person or a third party, but shall not include--

So it is any action, again not narrowly constrained, carefully worded legislation.

Then there are several exemptions. Let me point out, if this were a narrowly crafted piece of legislation, the exemption I think should apply to the gun industry, not to the litigants. It should be those safe harbors where if they do certain things, they are protected, if they exercise due care. That is the way we want to draft narrowly worded legislation. And this is quite to the contrary.

The burden is now on the individual to show that they qualify to bring their case to court, not on the companies to show that their case is somehow outside the normal range of negligent actions.

The key provision, in terms of the sniper case--and I will talk about the sniper case in a moment--is sections ii and iii. Madam President, ii is ``actions brought against a seller for ``negligent entrustment'' or ``negligence per se.''

Negligent entrustment is a defined term in the legislation. It means:

. . . the supplying of a qualified product by a seller for

use by another person when the seller knows, or should know,

the person to whom the product is supplied to is likely to,

and does, use the product in a manner involving unreasonable

risk of physical injury to the person or others.

The key element is ``know.'' For example, in the sniper case, the dealer claims he did not know that the weapon was missing. It has been acknowledged by the sniper that the weapon was shoplifted. This theory will not provide that case to go forward.

``Negligence per se,'' again, is an element of knowledge which does not seem to exist within the facts as we know them about the Bull's Eye situation. By the way, it has been abrogated as a theory of law in Washington State which would be an appropriate forum for the trial, or at least for consideration. That doesn't work.

The next section is actions in which a manufacturer or seller of a qualified product who violated a State or Federal statute and, quite importantly, that violation was a proximate cause of the harm.

In the case of the sniper shootings, literally it would have to be shown that the individual gun dealer at Bull's Eye knew the particular weapon was missing more than 48 hours before he was confronted by the ATF and that he failed to report it and, as a result, the sniper using that weapon inflicted the harm. But, of course, the facts suggest otherwise. The weapon was shoplifted. The individual claimed he did not know it was missing at all.

All of these carefully worded exceptions do not provide relief for individual plaintiffs. They do not provide it for the plaintiffs in the case of the snipers. They do not provide relief in the case of the two police officers in New Jersey. Yesterday, we had an opportunity to correct that, just a small correction that would allow for these situations, and we failed to do that.

This legislation is designed with one purpose: to immunize the gun industry. I think it is unfortunate, it is unprecedented, and it leads to the conclusion that we are essentially encouraging the kind of reckless behavior, the kind of irresponsible behavior which is not the norm, but it is certainly present and, indeed, it is present in the context that firearms pose a particular danger to the community.

We talked about Bull's Eye Shooter Supply in Tacoma, WA, over 238 weapons missing. You are not supposed to have any weapons missing.

Then there are the situations, for example, of Buckner Enterprises, Pro Guns and Sporting Goods, D&D Discount, Hock Shop, Julie's Pawn, Kent Arms, Northwest Shooters, Woodstove Supply, and Steve's Guns and Archery, all in Michigan.

Over a 4-month period, an undercover State trooper and a 20-year-old convicted felon traveled to 14 firearms retailers and attempted to make a straw purchase. The eight stores I mentioned above agreed to make the straw deal--irresponsible and reckless and, under this legislation, perhaps invulnerable to a suit by someone who might have been hurt as a result of the potential straw sales.

Bob's Gunshop, Bristol, PA, repeatedly sold firearms to convicted felons and out-of-State residents, including a 9 mm Taurus sold to a New Jersey convicted felon. The owners of the store counseled criminals and out-of-State residents to find a local resident to complete the background check.

Is that irresponsible? Yes. Is that against the law? Perhaps not.

It goes on and on. One gun store with which I am intrigued is Illinois Gun Works in Chicago, IL. John ``No Nose'' DiFronzo, a reputed mobster, owns the property where Illinois Gun works is located. Illinois Gun Works is one of the leading suppliers of crime guns to local criminals. This is from the Chicago Sun Times.

There are gun dealers out there who are acting irresponsibly and negligently. They will escape liability if this legislation passes. There are manufacturers that are not policing the

ranks of their dealers effectively enough who continue to sell to dealers such as these, who continue to report, as Bushmaster, the company that manufactured the sniper weapon, reported in regard to Bull's Eye. They are a good company. Even after all of this, they will escape liability.

We are in an extraordinarily important moment. Will we extend this unprecedented protection to an industry, will we signal to an industry that they can be irresponsible, they can be negligent? That is what we are talking about today.

I know my colleague, Senator Levin, is here to offer an amendment. Let me ask that he be allowed to do that. I retain my time for additional comments later.

Mr. President, on Tuesday, February 24, 2004, an extraordinary resident of Newport, RI celebrated a monumental achievement, her 100th birthday.

Rita Dolan Sellar has led a full and exceptional life. She was born February 24, 1904, to Clarence Dolan and Rosalie Brown Dolan. She had two sisters, Rose and Alexandra.

As a young lady, Rita attended Foxcroft School in Virginia, where she is now the oldest living alumna. Later she married Norrie Sellar, and they traveled extensively throughout the world.

Rita and Norrie had five children: Daphne, Norrie, Rosalie, Owen, and Alexandra.

Rita was an accomplished and bold horsewoman, who in the 1930s founded and played on the first women's polo team, in Aiken, SC, and rode in fox hunts, steeplechase races, and jumping contests.

She was also an active sailor, who kept sailboats in Newport Harbor, and often sailed with her sister--one of America's first and most capable women sailors.

Her home in Newport, ``Seaweed,'' has hosted five generations of the family, innumerable cheerful parties and dinners, and an extensive array of friends, cousins, in-laws, and visitors. She is the oldest member of Newport's Spouting Rock Beach Association.

In addition to her 5 children, she has 15 grandchildren and 13 great- grandchildren, as well as 3 step-grandchildren and 6 step-great- grandchildren, of which she is the beloved, affectionate, and patient matriarch.

Rita Dolan Sellar has led a successful and remarkable life as evident by her many achievements and, more importantly, her large, loving and successful family which includes former Rhode Island Attorney General Sheldon Whitehouse.

I would like to congratulate Rita on her 100th birthday. This extraordinary moment is not about the number of years she has lived but the accomplishments she has made during those years and the excitement, pride, love, and joy she has brought to her many family and friends through her life. I wish Rita a happy birthday and many more.

Mr. President, the Senator from Idaho has indicated we worked late last evening to craft a unanimous consent that will allow several important amendments to be debated today, and continuing on through Tuesday. It represents a recognition that there are serious issues to discuss. Now we are at the stage of not only discussing those issues but also taking amendments up and voting on them. I know Senator Daschle will be here in a moment.

I would be happy to yield to the Democratic whip.

Mr. President, I yield the floor.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, Senator Mikulski is here, doing something that is, unfortunately, necessary because the underlying legislation would cause currently pending suits on behalf of the families and the estates of these victims of the snipers to be thrown out of court. That is not only unfortunate but it is unconscionable.

There are arguments that this legislation is crafted so these suits go forward. But that is not the case at all. The two salient facts in the sniper shootings with respect to this legislation are, first, the sniper, Malvo, claims he shoplifted the gun. The storeowner claims that he was unaware of these weapons being missing until he was contacted after the shooting by the ATF.

As a result, none of the appropriate exemptions from the preemption to sue would be applicable in this particular situation.

There are two particular exemptions that are often pointed to. One talks about the negligent entrustment, which is a theory of law, and negligence per se. None would apply because it requires the defendant to have knowledge of a violation of the statute or knowledge that something untoward would happen. Under the facts as we know them, the defendant alleges he was unaware of the missing weapons.

In addition, the other exemption would be if there was a violation of Federal and State statute and that violation was the proximate cause, almost direct or substantial cause of the harm caused to the plaintiff.

That, too, can be substantiated. We have a situation where this statute not only does not cover this situation and would require these cases be thrown out of court, but it raises the extraordinary question about what other cases there might be in the future that would cry out for justice, to bring a suit and demand some type of compensation because of negligence caused by a gun dealer or manufacturer or trade association. They, too, would fall. That would be as compelling as these cases of the Washington area sniper victims.

I commend Senator Mikulski for standing up for these families. They are good people. This is a cutout of these cases from law and allowing them to go forward. But it just begs the question of how many other worthy cases will be frustrated by this legislation, if we pass it. I, of course, urge that we do not pass the legislation. But I certainly urge the amendment proposed by Senator Mikulski be agreed to.

I yield my time.

Mr. President, the Senator from Idaho points to every exception because he can't point to one exception that will clearly establish the right of these plaintiffs to go forward to make their case. The way this legislation is structured, first, the qualified civil liability action may not be brought in any Federal or State court. You are thrown out of court unless you can get yourself back in by an exemption. In these cases, you are dismissed. You are already in court but you are out the door. The intent is very clear. It is to stop individuals from suing dealers, manufacturers, and trade associations.

What about these exemptions? The first exemption deals with the transferor or convicted. There have been no charges in Bull's Eye, no conviction. What happens? The case is already dismissed. Is there language the Senator from Idaho will apply reinstating the case automatically?

The second is a possibility that is negligent entrustment or negligence per se. All of these require knowledge on the part of the defendant. The facts of Bull's Eye clearly suggest there is no evidence or none so far proven that the owner knew the gun was shoplifted and, in fact, he alleges he was not aware of any missing weapons until he was confronted by the ATF after the crime. This does not apply.

Finally, there is the violation of a Federal or State statute. The Senator from Idaho often talks about, well, if there is a violation of Federal and State statute, that, of course, allows a person to go forward with this case.

But there are two parts of this test. State or Federal statute violated, and that violation causes proximately, substantially the injury. In effect, what would have to be shown for any type of liability to adhere to the Bull's Eye case under this arrangement is that he was aware of the missing weapons more than 48 hours before he was confronted by the ATF, and he consciously disregarded his obligation to report not just a missing weapon but the particular weapon that was taken by Malvo. None of these exceptions apply to Bull's Eye or, if they apply, it is a very tortured reach to make the application.

Then this amendment simply says: Well, if you fall under the statute, you get to use the statute. This is a circular, is a kind way to describe what this is. You could substitute anybody's name in the United States. It doesn't have to be John Allen Muhammad or John Lee Malvo. It could be the victim of any criminal today walking around the streets of America with a handgun. Because if you are injured by that individual with a handgun and you fall into these categories, you get to go to court.

But this is an easy amendment because very few people, if any, will qualify under these criteria. That is the whole point of this carefully worded, excruciatingly arcane approach to shutting people out of court. That is what this is about.

Essentially you can't have it both ways. You can't stand up here and claim you are protecting the industry from frivolous suits but every suit we bring up is a possible worthy and meritorious suit. Well, of course, that will get into court. Of course, it is one of the exceptions. You don't get it both ways.

You get it one way in this bill. Innocent people injured by the negligence of dealers, of manufacturers lose. And they win.

We are not just giving out Federal firearms licenses, if this legislation passes. We are giving a license to be negligent and reckless--grossly negligent and grossly reckless. That is what a Federal firearms license means, if this legislation passes.

I yield the floor and retain the remainder of my time.

I yield 5 minutes to the Senator from New Jersey.

Mr. President, how much time remains on this side?

Mr. President, before giving all the remaining time to Senator Mikulski, I would like to make one point. In the CRS report to which the Senator referred, essentially he failed to note a footnote that says essentially that it does not appear that any evidence has been produced of actual violations of these provisions by Bull's Eye in the case at hand.

If you assume they violated the law, then, of course, the exemption applies. The facts we know now suggest they knew nothing about the disappearance of the weapons, and this legislation will bar the individuals from court.

I add one simple point. Even if we are slightly in doubt debating this issue, we should support Senator Mikulski's amendment which puts them in court.

I yield the remaining time to Senator Mikulski.

Mr. President, I yield 5 minutes to the Senator from Illinois.

Mr. President, let me make two or three quick points and then yield to Senator Lautenberg and then to Senator Corzine.

First, a neutral assessment of this legislation suggests strongly that it is not just frivolous lawsuits that are going to be barred by this legislation; there are going to be many meritorious lawsuits. We already know about these suits. We know about Officer McGuire; we know about the victims of the Washington snipers. Those individuals will be barred from courts. Those are not frivolous suits.

Again, there has been discussion about junk cases. I believe there will be a lot of junk guns on the streets because essentially what this legislation does is this. When a Federal firearms dealer gets his license, he also gets a license to be negligent. He can follow the rules but he can be negligent. There is no Federal legislation or State legislation, in many cases, that requires the storage at a facility of weapons, so you can leave them lying around. That is what they apparently did at Bull's Eye.

That is negligence, and that negligence harmed several individuals. And this particular law, if adopted, will prevent people from exercising their rights for compensation based upon that activity.

All this discussion leads to the inescapable belief on my part that the proponents want it both ways. They stand here and decry the attack on the industry, the gun industry besieged by lawsuits, and then turn and say: Of course, Officer Lemongello will get to court and Officer McGuire will get to court and the sniper victims will get to court. They cannot have it both ways.

The law is not impartial. The law is what we make it. We are making a law today that favors, in an unprecedented fashion, the gun industry, gun dealers, and the National Rifle Association. That is our making. It is not some cosmic event taking place and suddenly we have the law. We are telling them, be negligent, be irresponsible, be reckless, do not worry about it, we have taken care of you.

What do we say to the victims of the crimes? Tough luck. You were in the wrong place, officer. You were in the wrong place, Conrad Johnson, starting your bus up early in the morning. Your family will never get a nickel from the companies or individuals who were negligent.

I yield 3 minutes to the Senator from New Jersey.

How much time do we have?

I yield 3 minutes to the Senator from New Jersey.

Mr. President, I yield the remaining time to the Senator from New Jersey, Mr. Corzine.

Mr. President, I rise in strong opposition to the so-called Protection of Lawful Commerce in Arms Act. At a time when this country is faced with extraordinary problems--with economic problems, international problems--we are devoting very precious time to legislation that is in behalf of a special interest rather than dealing with the broader public interest, the economy of this country and the international position and status of this country.

This is not legislation that is designed to protect the courts. This is legislation that is designed to protect gun dealers, the gun industry, manufacturers, and trade associations such as the National Rifle Association. To suggest this is simply a response to politically motivated cases flies in the face of cases that have been filed, like the cases of the victims of the sniper shootings here in Washington, DC; people like Bernice Johnson, whose husband was sitting on a bus reading his paper waiting to go on and run his route that day and was killed. It subsequently turns out the weapon that was used in this crime came from a dealer in Washington State who apparently couldn't account for 238 weapons. Mrs. Johnson is not suing to make a political point. She is suing simply because she lost her husband, the father of her children, and she would like to hold responsible those people who were negligent.

The suggestion that this is a minor exception to the law when people are acting legally, following a statute, flies in the face of our concept of civil liability. It is not a question of just following the law. It is also a question of being responsible for your actions, of not being negligent, of taking due care in the performance of your legal duties. This whole approach is something I think flies in the face of basic common sense and the basic law of this country.

We are struggling with huge problems across this Nation. Yet we are spending precious time here to try to deal with the interests of a special group of people, a very influential group of people. We are not out protecting the rights of Mrs. Johnson and others bringing this suit. We are protecting the rights, frankly, of the gun industry to be negligent and harm people through their negligence.

This legislation is not a minor, carefully crafted exception. It would wipe out virtually every opportunity to assess whether a gun dealer, a gun manufacturer, or a trade association was negligent in their activities. It would bar virtually all negligence for product liability in State and Federal courts and throw out all pending cases, cases that have already been filed prior to this date, prior to the potential enactment of this legislation. It is a sweeping immunity to gun dealers, gun manufacturers, and even trade associations such as the National Rifle Association.

It is no wonder the gun lobby dropped this legislation in the 107th Congress, because we were paralyzed here in Washington by a sniper--two snipers, it turns out--who killed people with weapons that were obtained through the apparent negligence of a gun dealer. Yet these individuals, these victims and their families, would be denied the right to go to court because of this legislation.

It is also ironic that this would be the first gun bill to be enacted since Columbine, a situation in which, again, young people, disturbed young people, were able to go to a gun show using a straw purchaser, using the loophole that exists in buying weapons without a background check, and then went into a high school in Colorado and wreaked havoc. Instead of closing the gun show loophole, we are now trying to open up a huge highway for the negligence of gun dealers, negligence of the gun industry.

Talking about the procedural correctness of this approach, this legislation did not go through the Senate Judiciary Committee. There were no hearings, no committee markups were ever scheduled. This very complicated issue of balancing the rights of plaintiffs versus the rights of defendants in the context of civil litigation was never fully assessed through hearings. Now we are here and now we must have a vigorous debate on this legislation. We must not only look to the specifics of this legislation but also to its impact across the country and address some larger issues of gun violence in the United States.

Two years ago or so, it was the Washington area snipers who paralyzed this country, certainly paralyzed this area of the country. Today there is apparently one or perhaps more gunmen who are stalking innocent people on the highways of Ohio.

Gun violence exists and we should do more to stop it. We should use this opportunity to pass provisions that will close the gun show loophole, that would reauthorize the ban on assault weapons that has operated in the last few years at least to keep the most dangerous weapons out of the hands of some very dangerous people. We should require effective safety locks on handguns. We should improve the national instant criminal background check system so there is a more accurate and more effective system of checking.

These are the things we should be doing and I hope we can have an opportunity to offer amendments in this regard. Every day there are hundreds of thousands, millions of families who struggle to do all they can to protect their children and themselves. Here we are telling the gun industry: Don't join that effort to make people safer. You can ignore reasonable, responsible actions. You can be negligent and you will not be brought to justice.

I think that is wrong. I think that is bad law, bad public policy. I urge my colleagues to oppose this legislation, to

oppose this motion to go forward. There are much more pressing demands in this country we should address today: the unemployed, those who are struggling to find jobs in a jobless economy; funding fully our national defense. We have a budget that was presented to us that does not include any money for Iraq and Afghanistan. That is something we should be focused on today.

I am happy to yield.

Reclaiming my time, I agree entirely with the Senator from Connecticut. Rhode Island, like Connecticut, is seeing its manufacturing base evaporate. These are real problems. These are problems that affect families throughout this country. This is truly in the public interest, finding an answer to disappearing jobs throughout the country. Yet today we want to protect one very special interest.

Let me add, too, as the Senator points out, not only are we trying to give an unprecedented immunity to one industry, this industry is virtually unregulated in the sense of other industries. It is not controlled by the Product Safety Commission, which would look at the product design. So one of the only recourses an individual has with respect to negligence claims is through the courts. Here we are eroding that avenue.

I will.

Mr. President, the Senator is right. There have been no hearings. This bill has been brought to the floor directly. That is why it is incumbent for us to take a greater amount of time to look over the bill.

The only exception other than Price-Anderson I can think of is General Aviation Aircraft, over 18 years old, that has special protection. That is a very narrow protection, and I think it is nothing like contemplated in this legislation.

I must also note those aircraft are supervised by the FAA. There is significant Federal involvement in the design and airworthiness, things that do not apply at all to a weapon.

That is my understanding. It is not only my understanding, but it is the understanding of various counsel who looked closely at this legislation and rendered an opinion to that effect.

That is my view entirely. That is what this legislation will accomplish. It will not only prospectively provide barriers to the courts for victims of negligence like this, but it will reach back and protect these individuals who apparently--at least arguably--were negligent in not properly controlling over 230 weapons, not just the one the snipers used, which disappeared.

I think the Senator is entirely correct. His insight also is accurate in that I cannot see that other industries, if we pass this, won't come to us and say, We have very valid reasons, too. We are being assailed every day by these claims. This sets a very dangerous and very unfortunate precedent.

Mr. President, how much time do I have remaining?

Very few suits have been filed. There is not an epidemic throughout the Nation, but probably the best evidence is from the companies themselves. Let me make reference to the 10-K report on weapons.

In the opinion of management, after consultation with

special counsel, it is not probable and is unlikely that the

outcomes of these claims will have a material adverse effect

on the results of the operations or the financial condition

of the company as managers believe it has provided adequate

reserves.

So in 10 cases, in the statement required to be sworn to under the securities laws, Smith & Wesson and other companies have essentially said there is not a material problem.

At this point, because I know there are other speakers who would like to respond----

I am aware of it. The Senator is correct. We think there are less than 100 cases.

I am aware of that. In the course of this debate, I hope we can emphasize that point.

I retain the remainder of my time and yield the floor.

Mr. President, I yield such time as he may consume to the Senator from Massachusetts.

Mr. President, the legislation before us is a benefit to special interests, the gun lobby. It will deny individual Americans the right to go to court to challenge the conduct of individuals who negligently or allegedly negligently sold weapons. It would be a great distortion of the law. I hope my colleagues will resist this legislation.

Cloture Motion

I ask unanimous consent the call of the quorum be rescinded.

Mr. President, this legislation before the Senate has been described as necessary for the gun industry. It is nothing at all like that. There is no crisis with respect to lawsuits aimed against the gun industry.

This legislation, though, poses a very serious risk to the rights of an individual citizen who is a victim of gun violence to go to a court of law in the United States and to simply ask on the facts whether the conduct of the individual gun dealer and the manufacturer represents the standard of care that is expected of every individual and corporation in this country. That is very simply what we think is inherent in our rights as citizens. This law will strike at those rights on behalf of a powerful and influential industry, in this case the gun industry.

There has been some suggestion we are trying to protect the courts from third party lawsuits when, in fact, the reality is these actions are based on the actions of the manufacturers and the dealers, not the actions of someone with a gun. This is based upon the standard of care of the manufacturer and the dealer, not what an individual may or may not have done with a firearm. These are not third party lawsuits. These are lawsuits brought by victims, Americans who have suffered themselves personally or suffered through the death or injury of their

family members. They are going to court and they are simply saying these manufacturers or these gun dealers have violated their duty to be reasonable, their duty to be prudent, the duty of every individual who lives in an organized society to behave in a way that does not unnecessarily bring harm to others. That is the essence of our law.

This legislation turns all of that on its head and says for a very special class, the gun lobby, the rules of the game do not apply. And if there is a citizen who seeks redress, then do not go to the courts of the United States.

They tried to make the point that this does not close the door on the courthouses of America. No, this bill goes much further. It takes individuals who already have cases in courts and throws them out the door. Page 5 of the bill:

DISMISSAL OF PENDING ACTIONS.--a qualified civil liability

action that is pending on the date of enactment of this Act

shall be immediately dismissed by the court in which the

action was brought.

Not shall be considered in light of this legislation and the judge may make a determination that the suit can go forward, immediately dismissed.

That is not just shutting the court door; that is evicting the plaintiffs from the court, through the door. That is just one aspect of the legislation.

There is a discussion, too, about exemptions, talk about knowing that if a gun dealer or manufacturer knowingly does something, of course, they might be liable. That is a criminal element because in our criminal law we do not choose to punish people who unwittingly or unknowingly do something. There has to be, in most cases, some intent, some knowledge. Otherwise, the criminal law is absolutely arbitrary. It captures people simply for making a mistake. That is the criminal side.

What we are talking about here is civil jurisprudence, the ability of an individual to go to court to get damages for harm against that person. That is not a criminal case; that is a civil case. That is not enforcing the criminal laws of the Nation which rest upon knowledge and intent; that is seeking redress based upon the standard of conduct, the obligation to care, to exercise an appropriate degree of care.

The opponents of this bill are bringing those two issues together, confusing and mixing them up. But there is no confusion about this bill. It takes away the civil rights of an individual to go to court and a judge and jury to decide whether the individual, the defendant, has harmed them through negligence, through their inability to actually conform to a recognized standard of care. It is an extraordinary assault on basic legal rights.

I find it amazing that at this time when there are so many problems facing this country, we are looking at legislation that is not just so overwhelmingly slanted to a particular special interest but one that disregards these basic rights that we all take for granted.

There is also a suggestion in this legislation that there is a crisis because of these suits that are driving the gun manufacturers out of business. That is not what the gun manufacturers are telling their shareholders. That is not what they are telling the Securities and Exchange Commission under the penalty of perjury. This is an excerpt from the April 30, 2001, report of Smith & Wesson:

In the opinion of management, after consultation with

special counsel, it is not probable and it is unlikely that

the outcome of these claims will have a material adverse

effect on the result of operations or the financial condition

of the company as management believes it has provided

adequate reserve.

Under the penalty of perjury, the industry is telling the SEC and the shareholders, do not worry; these are not material claims. This is nothing that is going to put us out of business. This is nothing that is going to bankrupt us. Buy our stock. We are a good deal.

But here people seem to be suggesting that they are on the verge of collapse because these lawsuits are creating so much liability for the companies that they cannot bear it. I tend to believe their own statements in their SEC filings. As a result, this is not a crisis with respect to the gun industry in the United States. This is an industry that is extremely well-heeled and very zealous in protecting their own rights and interests.

In 1999, the National Shooting Sports Foundation, an industry group, and others created the Hunting and Shooting Sports Heritage Fund. By all accounts, this fund has raised as much as $100 million. They are engaged in lobbying activities. They are engaged in promoting this legislation. They are also engaged in ensuring that their internal documents are protected from discovery by lodging them in a California attorney's office. They are guarding, in a secretive way, their activities. This is not the case of a poor victim of a sniper or an aberrant gunman who does not have $100 million, who does not have a large organization. They have one thing: Their right to go into court, as every American citizen can do, and make a simple claim. If they have been negligent, I have been harmed, they must compensate me for my damages. This bill strikes that. It tears it out of our law.

Now, this is a situation where there is no financial threat of a great magnitude to the industry. In fact, some of these suits do not even talk about monetary damages. They are asking for injunctive relief. I think it is interesting that in the other body they struck out the ability to get even injunctive relief to change the practices of these companies. So this is not about a financial crisis. This is simply about providing remarkable, unprecedented protections for one industry at the expense of the average person on the street.

Again, the suggestion that this is a situation that is required because we have to protect the whole industry from these suits that paint everyone the same way disregards the nature of our tort laws. You have to allege specific facts against a specific individual or personality or corporation--their actions. This is based upon their conduct, not some type of blanket attack on the gun industry.

But if this law passes, we will limit the rights of American citizens. We will disrupt and overturn our system of tort law, which rests upon State action as well as Federal action. This will preempt causes of action that are entirely recognized and permissible in many State courts throughout the country. We will be disregarding the States, their legal systems, their knowledge of local conditions. That is another casualty of this legislation if it passes.

But this, ultimately, is not just about the niceties of tort law and federalism and the financial impact on industries. This is about real people.

I had occasion to meet one of these individuals when I met Denise Johnson. Denise was the wife of the late Conrad Johnson. Conrad was a busdriver and was the final victim of the Washington area snipers. The snipers' Bushmaster assault rifle was one of more than 230 weapons that disappeared from Bull's Eye Shooter Supply gun store in Washington State.

Now, at a minimum, the gun store's very careless oversight of firearms raises obvious questions of negligence and deserves to be explored by the civil courts. The actions which the gun manufacturer took in placing those weapons in the hands of Bulls Eye also are appropriate for scrutiny in the courts. Yet Mrs. Johnson's case would be thrown out by S. 1805.

Now, consider also the case of David Lemongello and Ken McGuire. These are two young police officers from New Jersey, the city of Orange. On January 12, 2001, they responded to a call, as police officers do every day throughout our country. Every day they risk their lives. What they encountered in a backyard was a gunman armed with a weapon. They were both grievously wounded.

It turns out that this individual went into a store in West Virginia with a straw purchaser--a woman without a criminal record--who purchased 12 guns at one time--he was a felon--and then took those guns and went off and became involved in these crimes, became involved in the disposition of these weapons.

This individual seller in West Virginia failed to follow the guidelines that even the trade association, the National Shooting Sports Foundation, has. So here is the seller, who is not at all averse to selling 12 firearms, in cash, to an individual, who walks in, who refuses to buy them himself but has a younger person, a woman in this case, make the purchase in name because of background checks, who disregards the guidelines of the industry,

and yet this legislation would say that those two police officers, who suffered grievously, cannot seek to be compensated by that dealer. It defies common sense as well as our legal tradition.

Now, the manufacturer of those guns, Sturm, Ruger is a member of the Shooting Sports Federation. I would assume they take great pride in their advertisements and say: Look at the guidelines we have. Our sales people have to be reasonable. They have to exercise great scrutiny, good judgment, et cetera. Well, they do not really require that these guidelines be followed, even though their organization promulgated them.

Now, this case is in the courts of West Virginia. Judge Irene Berger of Kanawha County, WV, looked at the case, looked at the law of West Virginia, looked at the specific allegations against the dealers, and said this case should go forward, there are no grounds for summary dismissal. Yet this legislation, if passed, would summarily dismiss that case. It would fall, I think, squarely under section 3(b):

A qualified civil liability action that is pending on the

date of enactment of this Act shall be immediately dismissed.

. . .

Judge Berger will not have a chance to evaluate whether this legislation and the exemptions comply, not in any real sense, because the presumption, of course, is that all these suits would be barred. There are exceptions which she may consider, but, again, those exceptions are so narrowly constructed that they provide little relief, no practical relief.

Now, there is not just one case. There are multiple cases but not the thousands that the industry would lead you to believe they would be overwhelmed by--but a few cases, inconsequential in monetary effect for the industry, as they stated, but of immense consequences to the individual who has suffered financially, emotionally, personally, and to that individual's family.

This is another case. This is Guzman v. Kahr Arms, in Worcester, MA. Twenty-six-year-old Danny Guzman was fatally wounded with a 9 mm gun. It was stolen from the gun manufacturer's plant by a drug addicted employee who had a criminal record.

Stop and ask yourself: Does a gun manufacturer have a responsibility to the community to ensure that its employees who have access to firearms are not former felons or somehow at odds with the law or who is not currently addicted to drugs? Isn't that the expectation that everyone in that community and every community around the country has? Well, of course.

Any sensible employer would ensure that an employee who has access to firearms would have some type of check to ensure they are not drug addicts or former felons.

They would be amazed if this legislation passed because, frankly, what we are telling the Kahr Arms company is, no, hire anybody you want because you will have no civil liability, none whatsoever.

Now, this company had rudimentary and ineffective controls for these weapons. They had no metal detectors, security mirrors, none of these things. Is that something the citizens of Worcester, the citizens of Massachusetts, the citizens of America want?

That is common sense. These companies have to protect these weapons. They have an arsenal. They manufacture weapons.

Apparently, that was not the case. It turns out the guns were taken from the factory by felons they hired without conducting background checks.

The gun used to kill Danny Guzman was one of several stolen by Kahr Arms employees. This is not just one bad actor. And maybe that is the defense: We are really pretty good. We just made one mistake. And they were stolen before the serial numbers were etched into the weapons. They could not be traced. What kind of company is this?

But what we are telling them, if we pass this legislation, is go ahead, it is fine, no liability for that, do that every day, just one of those things.

These guns were taken and resold to criminals in exchange for money and drugs. Again, common sense suggests there has to be a civil right to go in and challenge the negligence of this company. The loaded gun that killed Mr. Guzman was found by a 4-year-old behind an apartment building near the scene of the shooting, so the gun was apparently tossed away and a 4-year-old found it. Mercifully, the child was not injured.

This company could have done a score of things to prevent the death of Danny Guzman: Screen their employees for felony convictions, screen their employees for drugs, install safety cameras. What we are telling them, if we pass this legislation, is you don't have to do any of those things, because you can do anything you want and you will never be liable in a court of law in the United States.

Will we tell that to the automobile manufacturers? Will we tell that to other industries? Absolutely not. It defies and insults common sense. But we are trying to do that today.

There is another suggestion that you are trying to punish a whole industry because of a few bad apples. Like any industry, there are some scrupulous dealers, and we hope it is the majority. In fact, it does turn out to be the majority. But according to Federal data, 1.2 percent of gun dealers account for 57 percent of all guns recovered in criminal investigations. So obviously we have a problem with a small group of dealers.

What are we telling those dealers today if we pass the legislation? Don't worry; you can't be sued. Even if you represent the worst possible dealers in the industry, even if you don't barely measure up to the standards of every other dealer, you are OK, because the rules of negligence don't apply.

This is something that confounds common sense--forget the niceties of corporate law, of consumer protection law, of the tort system.

Most people believe that if you are in the business of manufacturing and selling weapons, you have a very high standard of care, higher perhaps than other industries, because you are dealing with a weapon that has the potential to kill people, much more obviously and explicitly than perhaps any other product manufactured.

What are we telling the industry? Forget that high standard of care. Not only can you have a low standard of care, you can have no standard of care, because you can do the most outrageous things in the world and no one can sue you. There might be some criminal liability, but then again, there might not. But the people you have harmed through your negligence will remain harmed and uncompensated. Don't worry.

Most industries, manufacturers, are governed by the Consumer Product Safety Commission, which regulates the safety of nearly 15,000 consumer products used in and around the home. Guns are not regulated by the Consumer Product Safety Commission because when it was created in 1972, the gun lobby pressured Congress to specifically exempt guns and ammunition from its jurisdiction. So there is no regulation by the Consumer Product Safety Commission.

Now there is no civil liability. Whatever standard of care exists in this industry is going to further deteriorate. We are causing problems; we are not solving problems with this legislation.

There is another aspect, too. It is not just the criminal on the street who comes into control of a handgun, be it through the poor inventory controls of a Bull's Eye Shooters Company or through the lack of any apparent security procedures of the Kahr Arms Company. There were 9,485 people killed and another 127,000 wounded in unintentional shootings between 1993 and 2001. In about an 8-year period, 127,000 people were unintentionally wounded by weapons; the firearm was defective or the design was inappropriate and it contributed to their injury. Don't we want to at least ensure in the design of weapons that there is a higher standard of care?

For example, there is a case in California of a 15-year-old who was unintentionally shot and killed by a 14-year-old friend with a defectively designed gun--Kenzo Dix. His friend Michael thought he had unloaded his father's gun. He replaced it with an unloaded magazine, he thought. But he failed to realize that in the chamber of the weapon there was still one round, and when he fired the gun, it resulted in the death of his playmate.

Sadly, we read these stories too often. We read these stories about the individual who has a gun at home and

the kid find it. The kids don't realize it is loaded, and death or injury results.

Now Beretta, the manufacturer, could have easily designed the gun to have some type of indication whether there was a round in the chamber. They could have had some type of active device to prevent firing. None of that was done, and, frankly, if we pass this legislation, it will never be done because they don't have to worry about a parent coming and saying: If you had made these changes to that weapon, my son would be alive.

They don't have anything to worry about. We have to worry about it. If you are a parent and you have a firearm in your home, you have to worry about it especially. That is not right.

Again, this is not about sophisticated theories of liability, sophisticated theories of the history of tort law. It is about common sense, common decency, and common obligation. This bill violates all of them.

There are lots of experts about firearms, but there is one group that I think probably is more expert than others. That is the law enforcement community. Where do they stand on this legislation? More than 80 police chiefs, sheriffs, and State and national law enforcement organizations wrote to all of us on February 11 to express their opposition to this effort to strip away these legal rights. These are officers from Maine to Texas to Washington State to Virginia to my home State of Rhode Island, chiefs, rank-and-file police men and women.

I ask unanimous consent that a copy of this letter be printed in the Record at the conclusion of my remarks.

These law enforcement officers know a bit more about crime than we do. It is their job. They do it very well. They know about the damage to communities when guns fall into the hands of those who misuse them. They see it up close and personal.

Earlier this year, we were in a situation where previous to this bill there was an effort to destroy gun records, another effort launched on behalf of the gun lobby. These records are maintained for a few days, but they wanted to eliminate these records within 24 hours. Los Angeles Chief of Police William Bratton said: I just can't understand how Members of Congress can even consider this. Obviously, they haven't shown up to the scene of enough officer shootings.

This legislation is in a similar vein. It is not about destroying records of gun purchases. It is destroying the right of an individual to say: I have been harmed. I need redress.

Again, if you talk to the law enforcement community, they are opposed to this legislation. It is a free ride for the dealers, for the manufacturers, and for others.

In this discussion, we have heard a great deal about Bull's Eye Shooters Supply. There is some suggestion that we fixed that problem. They have closed it and everyone is being punished.

Here are the facts: Bull's Eye Shooters Supply is still open for business. The alcohol, tobacco, and firearms agency revoked the license of Bull's Eye prior owner, Mr. Brian Borgelt. Mr. Borgelt's friend, Kris Kindschuh, then took over operation of the store.

Mr. Borgelt is appealing his license revocation to the Federal district court, and that case is pending. Let me stop for a moment. This is an individual who allegedly was so negligent that he could not account for 238 weapons, a litany of problems in terms of following the law. His license is being revoked, but he has a right--and he should have the right--to go into court and say this revocation is not based upon the law or the facts.

The irony here, of course, is we are telling victims--perhaps his victims--that they do not have a right to go into court to seek redress. This, again, not only is unfortunate, it just defies a rough sense of justice and fairness.

I think Mr. Borgelt should have every opportunity to appeal this revocation to prevent an arbitration action by the Government, but don't the victims of gun violence have a right to claim they have lost a great deal and they need redress in the courts? We will protect his rights, as we should, but we are undermining the rights of so many others.

As far as we know, the ATF, the Department of Justice have not filed any criminal charges against Borgelt. So the idea that this situation has been resolved, that this is fine, justice has been done, frankly, is not the case at all.

Indeed, what I am told is Mr. Borgelt runs the shooting range upstairs above Bull's Eye Shooter Supply. The shooting range is not regulated. So for all intents and purposes, particularly if you are a victim of the sniper shootings in Washington, DC, it does not look as if much has changed out there at Bull's Eye Shooter Supply.

If the ATF had recommended to the Department of Justice that they file charges, it has been almost a year. I would hope the Department of Justice, in a case such as this, could move more promptly. But we have a situation, frankly, that even if the Justice Department acted, it still would not compensate and make whole the victims of this series of crimes in Washington.

Let me focus for a minute on some of the facts we know about Bull's Eye Shooter Supply because one of the key issues here is whether or not the Washington sniper victims will be able to go into court if this legislation passes.

Here are some of the things that have been established so far about this dealer in Washington State.

There are a large number of missing guns. Bull's Eye could not account for 238 guns that were missing from its inventory when the Bureau of Alcohol, Tobacco, Firearms and Explosives inspected the gun dealer in 2000 and 2002. Bull's Eye's missing gun rate was greater than at least 99.73 percent of all Federal firearms licensees.

There was no accounting for 238 weapons. A large number of guns from Bull's Eye appeared in crimes. Between 1997 and 2001, Bulls' Eye guns were involved in at least 52 crimes, including homicides, kidnappings, and assaults, placing Bull's Eye in the top 1 percent of all dealers nationwide in the supply of guns used in crimes. This appears to be a pretty good source of weapons for crime.

In addition, the time-to-crime ratio was less than 3 years for more than 70 percent of Bull's Eye guns that were used in crimes from 1997 to 2001. Quick time-to-crime--the time the gun leaves the store and shows up at a crime--suggests this store may be a highway for guns into the criminal system. And they have a high rate.

There were a large number of multiple firearm sales. Between 1997 and 2000, Bull's Eye sold 663 guns to 265 individual buyers, as many as 10 guns at a time. This is not the record of a scrupulous, sincere dealer who is looking to enforce the standards of the industry.

Then, of course, there were numerous ATF citations. ATF cited Bull's Eye for violations at least 15 times between 1997 and 2001 and, following the sniper attacks, revoked the license of Bull's Eye's former owner.

Bull's Eye was cited 15 times between 1997 and 2001. That is not an inspiring record of scrupulous enforcement of the laws of the country.

Yet what we are saying in this legislation is: Go ahead, you are fine; you might have your license revoked, but then you are upstairs in the shooting gallery. Or you might not. Maybe the Government will make an error. Maybe procedurally they have done something inappropriate, but certainly you are not going to be able to face justice in the sense of facing the victims of this negligence.

There is something else this record says. It begs the question, What about the manufacturer? Why did Bushmaster Firearms, the manufacturer of the sniper weapon used by the Washington area snipers, tolerate this? Don't they have an obligation to ensure that the dealers they entrust with their weapons are not violating ATF regulations--cited 15 times--that they are not selling multiple guns to individuals, sometimes 10 at a time? Apparently not. After this legislation passes, they won't have to worry at all.

Many people ask, Why would a manufacturer be involved in this issue? Why should we be able to sue a manufacturer? If a manufacturer, such as Bushmaster, not only keeps supplying weapons to dealers such as this, but then turns a blind eye to all this evidence, it suggests to me they are not conforming to a reasonable standard of commercial conduct. You would not exempt an automobile manufacturer

from potential liability if it was shown that they repeatedly sold cars to dealers that violated ATF--it would not be ATF regulations, but consistently violated regulations, that persistently allowed underage sales, for example, even though you could make the argument that as long as the 15-year-old does not drive the car, it is a legal sale. But I think they would be suspicious at least to what was happening.

As a result, there is not only a strong case but there is a necessary case that manufacturers have to be subject to a standard of care also. This legislation would strip that away.

My colleague from Idaho and my colleagues on this side who support this bill say: Listen, this is narrowly crafted; this is not going to throw any suits out of the courts. You cannot have it both ways. You cannot be claiming, on one hand, that we are protecting this industry from lawsuit and then, on the other hand, say everyone can still go to court after this legislation because they all qualify for the exemptions. It is nonsense. These exemptions have been made so they do not exempt very much, if anything at all.

There is an analysis--and I made reference to it in my discussion surrounding Bull's Eye Shooter Supply--by the law firm of Boies, Schiller & Flexner. I ask unanimous consent that at the conclusion of my remarks this analysis be printed in the Record.

Mr. President, this law firm analyzed the legislation, and their conclusion is, particularly with regard to the Washington area snipers, that their cases will be thrown out.

There are two sections of the law which provide an exemption from the categorical dismissal of these cases. They are section (5)(A)(ii) and (5)(A)(iii). Mr. President, (5)(A)(ii) says:

. . . actions against a seller for ``negligent

entrustment'' or ``negligence per se''. . . .

And (5)(A)(iii) says:

. . . actions against a manufacturer or seller who violated

a statute in the sale or marketing of a firearm or

ammunition, where that statutory violation was a proximate

cause of the plaintiff's injuries. . . .

Their analysis concludes that neither of these exemptions would apply in the case of the Washington area snipers. Those cases are already pending. They will be dismissed, thrown out.

It is interesting because we continue to talk about, well, these exemptions will take care of all these cases, but it turns out that they will not, that the various nuances, the wording, the knowing violation of a statute, for example, the arcane cases of negligence entrustment and negligence per se, which are constructs that only a lawyer could fully appreciate and enjoy, all of this is craftily designed to prevent people from going to court, not to give them a fair right in court.

Again, it goes down not to these nuances, to this legal terminology but simple common sense. How can one stand up and say this legislation is designed to protect and insulate injury from the wanton acts of these third party criminals and then also say but, by the way, all of these cases will still go through?

I suspect there are things we could do right now to help these cases go through. ``Dismissal of pending actions'' could be struck. Clearly, that would suggest that the sniper cases would be in order because this legislation is not retroactive.

The thrust is not to give people rights; it is to take them away. It is to protect this one industry at the expense of individual Americans. The legislation is unusually preferential to a small interest group. It defies my understanding of why we would try to protect this industry, which is not financially at risk by their own admissions, at the expense of individual Americans who have been harmed.

I conclude by saying I never met Conrad Johnson, but like all of us in this Chamber, I woke up one morning and read about a bus driver reading his paper, waiting to go to work. I, frankly, thought of my father, who was a school custodian who got up in the morning, read the paper, getting ready to go to work.

He was shot reading that paper, killed. He left a wife and small children. That wife and that family have gone to court to say: Where is our justice? Maybe somebody will be convicted for doing something wrong, but how are we going to live for the next 40 or 50 years? People have been negligent--at least we think they have. There is a Bull's Eye Shooters store that lost 238 weapons and was cited 15 times by the ATF. They are not going to have a day in court to answer to Mrs. Johnson? I cannot understand this legislation.

I yield the floor.

Exhibit 1

February 11, 2004.

Dear Senator: As active and retired law enforcement

officers, we are writing to urge your strong opposition to S.

659, the so-called ``Protection of Lawful Commerce in Arms

Act.'' This bill would strip away the legal rights of gun

violence victims, including law enforcement officers and

their families, to seek redress against irresponsible gun

dealers and manufacturers.

The impact of this bill on the law enforcement community is

well illustrated by the lawsuit brought by former Orange, New

Jersey police officers Ken McGuire and David Lemongello. On

January 12, 2001, officers McGuire and Lemongello were

seriously wounded in a shoot-out with a burglary suspect. The

Ruger pistol used by the suspect was one of twelve guns sold

by a West Virginia pawnshop, Will's Jewelry and Loan, to a

``straw purchaser'' for a gun trafficker. The all-cash sale,

for thousands of dollars, was so obviously suspicious that

Will's reported it to the Bureau of Alcohol, Tobacco and

Firearms, but only after the sale was consummated. The

pawnshop had every reason to believe that, as soon as the

guns left its premises, they would be sold into the

underground market, destined to threaten the lives of police

officers and ordinary citizens.

Officers McGuire and Lemongello are pursuing legal action

against Will's for negligent sales practices and against the

gun's manufacturer, Sturm, Ruger, for distributing guns

without requiring its dealers to adhere to a code of

responsible business practices that would prevent such

obvious sales to gun traffickers. A West Virginia judge

recently ruled that the officers' suit against Will's and

Sturm, Ruger is well-grounded in West Virginia law and should

be heard by a jury. If passed into law, S. 659 would override

this decision and deprive these brave officers of their day

in court.

Police officers like Ken McGuire and David Lemongello put

their lives on the line every day to protect the public.

Instead of honoring them for their service, S. 659 would

deprive them of their basic rights as American citizens to

prove their case in a court of law. We stand with officers

McGuire and Lemongello in urging you to oppose this bill.

Mr. President, I suggest the absence of a quorum.

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

Madam President, I ask unanimous consent, under rule XXII, that Senator Sarbanes' hour be yielded to me as manager on the Democratic side.

Madam President, may I inquire as to how much time is remaining overall?

Madam President, how much time is reserved for the Democratic side?

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

Mr. President, we have heard a lot today about the exceptions contained in that bill which, arguably, might result in liability to someone such as the dealer in the Bull's Eye Shooting Gallery store but legal analysis by eminent attorneys suggests they would not apply to that particular case.

Yes.

The Senator is accurate. The analysis by eminent attorneys looking at this legislation, looking at the exemptions, suggests in the case of Bull's Eye that this dealer would not be subject to liability; he would be immunized from liability because of this particular bill.

This is a situation that has to be made very clear to people. We are essentially giving this individual an opportunity to walk away from serious negligence. I don't think it is appropriate. In fact, I think it is unconscionable.

There is a factual discussion about the status of the Bull's Eye Shooting Gallery. My understanding is--and it is close, I think, to that of the Senator from Idaho with additional detail--as I understand it, the individual who was in fact the owner-operator, Brian Borgelt, had his license revoked. He is appealing that revocation in court. That is his right. He somehow transferred ownership of the store to someone we have been informed is a friend, a colleague, which is also permissible under the law. It appears, though, that Mr. Borgelt is operating a shooting gallery in the same building, but it does look as if this might be an entirely legal transaction.

The point was raised earlier, and Senator Lautenberg and I have tried to clarify, at least there was an impression this store was closed, out of business, and not operating. The agreement and the factual accuracy as of this point that we both share is the store is operating. The individual who owned it is no longer operating it because his license has been revoked and he is challenging the revocation.

That is an accurate description of the situation but, again, the imprecision was whether the store is operating, not who is operating it. The individual is not able to operate because he lost his license.

I think it is important to clarify that because it has been a matter of factual dispute.

The other issue which has to be clarified is the applicability of this legislation to that original owner-operator who had been accused of a laundry list of inappropriate actions. I had the opportunity to review some of them today.

With respect to the owner of the Bull's Eye Shooting Gallery at the time the Malvo gun was obtained, under his ownership and under his license, 238 guns were missing. Many guns between 1997 and 2001 found their way into crime scenes. A remarkable record of guns found their way from a licensed dealer to crime scenes. Many found themselves to crime scenes in a rapid period of time. The nomenclature is ``time to crime.'' Time to crime was remarkably narrow. The time to crime was less than 3 years in more than 70 percent of Bull's Eye cases between 1997 and 2001, suggesting this organization was a conduit for obtaining weapons for crimes.

There were large numbers of multiple firearms sales. Sometimes he would sell as many as 10 guns at a time. There were numerous ATF citations, at least 15 times between 1997 and 2001. That is the record of the individual whose license was suspended, finally, by the ATF.

But the issue is, with respect to this individual, if we pass this legislation, will he be immunized after this record of negligence, recklessness, irrational responsibility? Most people would say that is the record. The exemption provided by paragraph (5)(A)(iii) says, in effect, the action would be preserved in which a manufacturer or seller of a qualified product violated a State or Federal statute applicable to the sale or marketing of the product and the violation was a proximate cause of harm for which relief is sought.

Two elements: You have to violate Federal and State statutes; and that violation was the proximate cause of the damage to the individual. According to the well-settled tort law principle, proximate cause requires that the defendant's conduct was a substantial factor in bringing about the harm suffered by the plaintiff.

Remember, two elements: State and Federal statutes violated, and that violation being a proximate cause.

Here is the difficulty with respect to the situation at the Bull's Eye Shooting Gallery. Despite the evidence we have that there were certain violations, many of them record keeping, it is going to be virtually impossible that the plaintiffs in the sniper case will be able to show that Bull's Eye violated any State or Federal statute with respect to the particular gun that was used by the snipers or that any such statutory violation was a proximate cause of the sniper attacks.

The evidence concerning the acquisition of the snipers' weapon supports Bull's Eye's claim that Lee Boyd Malvo shoplifted the gun. That is not in dispute. Indeed, after his arrest, I believe Malvo admitted he shoplifted the gun from Bull's Eye. Although the plaintiffs or the family of the plaintiffs claim that Bull's Eye's lax security practice permitted Malvo to get the weapon, that would not establish a violation of any Federal or State statute.

Again, a reading of this exception would say that you have to show, first, a Federal or State statute was violated, and the violation of that statute was the proximate cause was reading to injury. It is virtually impossible in this case.

What is happening in all of these exceptions that are built into the bill is, this is a trapdoor, if you will. We have a general prohibition against any type of suit against these individuals, these dealers, these manufacturers, or trade associations; and then we have exceptions. And they point out within the exceptions, artfully constructed by very good lawyers, provisions for an escape clause for the potential defendants. Here it is, the combination of proximate cause and violation of Federal-State statute.

Again, close analysis of the evidence--and I don't think any of this evidence is in dispute; Malvo admitted he shoplifted the weapon-- suggests strongly this exception would not apply in the case of the Bull's Eye shooter. These sniper victims will be without relief. That is not just my view but the view of attorneys who have looked at it very carefully.

Now, this is a very detailed legal analysis. But, again, we so often--all of us--appeal to rather common, homely--in a literal sense-- illustrations, something with which we are comfortable. I was struck when the Senator from Idaho talked about, Goodness gracious, if someone stole a car off a lot and drove into another car and caused damage, that you could not hold that dealer responsible.

Well, I can conceive of a situation. For example, if a dealer ordinarily left the keys in all of the cars on his lot, and they were cited 15 or 20 times before for doing that, and people knew that the dealer's cars were available, and young kids came in and jumped into a car and drove off at 60 miles an hour careening into another car and killing someone, I will tell you what I think. You have a pretty good suit against that automobile dealer for negligence, for abandoning the care that any other dealer in the country would adopt. They would not be protected from a suit as we propose to protect the gun industry.

Again, this legislation is very troubling to me. I do not think it provides adequate protections for people who have legitimate claims, the most graphic example of which is the sniper victims in the Washington, DC, area. But they are not alone. Danny Guzman was killed in Worcester, MA, as a result of what I think is gross negligence. A gun manufacturer employed, without background checks, ex-convicts, drug addicts, allowing them to steal weapons from the production inventory of the company, and to sell them to criminals in exchange for cash and drugs. This involved a multiple of weapons. They got the weapons out of the factory before they could stamp the serial numbers on them. Again, common sense would say: My goodness gracious, somebody has to be able to go in and require that employer to be conscious of their weapons, their security procedures.

I also understand--and again it is an understanding that is not shaped by a footnote at the moment--there are really no effective State or Federal laws about the security of weapons. I do not think there is any requirement specifying you have to have triple locks or double locks, et cetera. I think that is left to the reasonable business standards of an individual dealer. Again, if we do not have those rules and regulations or they are not effective, how do we then insist we cannot have a negligence action, as this legislation proposes?

For these reasons and many others I reiterate my opposition to the legislation.

I yield the floor.

Mr. President, I recognize there are different legal interpretations. I recognize also the Senator from Idaho has introduced an interpretation of the Congressional Research Service. I have one, too. Theirs is dated November 3, 2003. Mine is dated October 20, 2003. We made a request. They looked at the amendment, the perfecting amendment offered by Senators Craig, Daschle, and Baucus. In the context of that correcting amendment, they opined in October:

Again, you have specifically inquired as to whether the

Amendment would alter the bill to such a degree as to allow

the pursuit of a civil action against the gun dealer from

whom the weapon used in the D.C.-area sniper shootings was

stolen. A review of federal and Washington State law

indicates that there are no statutory requirements regarding

the storage and security of firearms by licensed firearm

dealers. Accordingly, it seems evident that there would be no

basis for the application for this exception in the case at

hand, irrespective of the presence of the ``knowing and

willfully'' requirement, given that there appears to be no

violation of a relevant underlying federal or state statute.

That is an October CRS.

Obviously a second opinion was sought. That is the nature of legal opinions many times. This opinion was premised on certain facts that are not yet obvious and perhaps never to be obvious.

In fact, in reference in the report Senator Craig referred to:

Thus, in the event that it is established that Bull's Eye

was aware that the firearm was missing from its inventory

more than 48 hours prior to November 5, 2002, the Amendment

would appear to lend further support to the application of

the exception to immunity . . . of the bill.

Essentially what was done in this latest CRS was to say: We will assume hypothetically that in fact they violated the Federal statute, i.e., the requirement to report a weapon within 48 hours of its disappearance. Well, if you assume a violation of the statute, you have gotten way over the curve, because once again, Federal statute or State statute has to be violated, proximate cause.

The problem is this assumption does not have much of an evidentiary base. The footnote to the report Senator Craig referred to suggests:

These examples are pertinent to the extent--

examples of potential violations--

they could be implicated in any hypothetical sale or transfer

to the D.C.-area sniper suspects. It should be noted,

however, that it does not appear that any evidence has been

produced of actual violations of these provisions by Bull's

Eye in the case at hand.

The answer to qualifying this exemption is not to assume a violation of Federal law. There has to be some evidence. But there does not appear to be any evidence of violations of Federal statutes. There are no Federal/State statutes with respect to security of firearms, the physical security. The slender reed--no pun intended--they might hang it upon is they somehow knew the weapon was missing a long time before November 5, 2002, and they failed to report it. No evidence from Malvo suggests that. I don't know if there is, frankly. The stories we have all heard from the operator were he didn't know the weapons were missing until the day they showed up, the ATF showed up and said the weapons were missing. The practical effect of this is a judge might have the opportunity for a few minutes to look at this record, but where is the evidence?

The practical effect of this legislation is these claims will be barred. That would be a great misfortune, not only for the families involved but a misfortune in terms of setting up a very bad precedent in terms of undermining the common law sense of responsibility for your actions. Senator Craig is a very articulate advocate for his position and has referred to that several times; this is just about maintaining centuries of legal precedent about individual responsibility. I disagree. I think it is about overturning centuries of legal precedent, the precedent that an individual is responsible

for their actions, that an individual, such as the licensee at Bull's Eye, is responsible for not securing the weapons, is responsible for not knowing he has lost weapons--according to his view at this point-- for days and weeks and weeks. If we immunize the individual, we will undercut that basic principle of individual responsibility.

One of the things I find amazing in this whole discussion of the security of weapons is, I commanded a paratrooper company at Fort Bragg. I worried every day about the weapons in my outfit. We had double locks on the doors, locks on the racks, individual accounting every day of weapons. One of the things that as a young airborne captain you are worried about was showing up one day and discovering a weapon or part of a weapon or even equipment associated with a weapon was missing. That was a big deal. That is a standard of the United States Army.

We are telling people who maintain large arsenals in commercial venues that the standard for them is nothing. Miss a few weapons, don't even pay attention because, frankly, knowledge will hurt you.

This goes also to the principle of why we have laws of negligence, tort laws. It is not just for individual compensation. That is an important part of giving an individual the right to make themselves whole after they have been harmed. It is something else. It is about having a system of standards that are self-enforcing, not because there are ATF agents walking around, but because in addition to that, an owner of one of these stores will simply say: You know, I better make sure all these weapons are accounted for at least every week. I better make sure they are secure. I better make sure if people walk in who might not be eligible to purchase a weapon I at least ask them what they are doing. None of that appears to be done.

In response to the specific question of the application of the exemption, I think the proponents have tried all they can to dress it up. It just doesn't work. There is a huge trapdoor when you put together violation of State or Federal statute and that violation causes proximate cause.

Someone could go in and show they didn't file the records properly. That is a violation of Federal and State regulation. They could show perhaps they were lax in some other capacity. Then you have to make the further showing that violation was directly connected. So literally in this case you are going to have to show that particular weapon that found its way into Malvo's hands was the subject or involved with a specific violation of Federal/State law. That is why this CRS report has to assume that particular weapon, of all the 248, was noted as missing more than 48 hours before November 5, 2002. That is an extra burden of proof. That is, again, why I don't think this will work for the victims of these crimes.

I yield the floor.

Mr. President, my colleague from Idaho has invited me to look at the theory of negligent entrustment and negligence per se. I will try to do that.

Again, this is not an attempt to dispose of a case before a court. But we all have an obligation to understand what we are voting on, what these provisions will do based on the plain language of the provisions and based upon the facts as we know them in certain cases. That is why I think this is a positive exercise. It is insufficient to say that we pass laws, but we do not have to know what they mean because some judge will figure out what they mean. No, no, I think we have to know what they mean because that should drive our decision about whether this legislation will pass or fail.

Let me turn for a moment to these two theories of negligent entrustment/negligence per se.

Negligent entrustment is generally understood as ``the supplying of a qualified product by a seller for use by another person when the seller knows, or should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others.''

Again, the seller has to know, or is likely to know, that the person they transfer the weapon to or supplied it to is likely to harm himself or harm someone else.

The problem we have with respect to the sniper case is that the evidence the snipers' weapon was shoplifted from Bull's Eye would appear to preclude the plaintiffs from making the requisite showing under the statute that the gunshop knew or should have known that the recipient of the gun, Malvo, was likely to use the product in a criminal or otherwise unreasonably dangerous manner.

Malvo indicated he shoplifted the weapon. The owner said he must have taken it. He didn't know it was missing until ATF showed up.

The theory of negligent entrustment is fancy-sounding terminology, but it is another trapdoor from which the exception falls out.

Negligence per se, under most--I am a lawyer, but I am hesitant to say I am a lawyer who is familiar in every detail with Federal practice, but my assumption is since we are talking about Federal and State laws, this negligence per se is a State common law concept that would apply to the laws of Washington State because that is where the Bull's Eye shooting gallery is located.

In any event, with respect to negligence per se, it would not preserve the sniper case because even where that doctrine is recognized, it requires a violation of statute that is a proximate cause of the plaintiff's injury. Once again, you have to show not only the violation but that violation of that particular law was a proximate cause of injury. As discussed above--again I am borrowing from one of these legal analyses--that would be very difficult to show. In fact, also I think there is another problem in Washington State about the doctrine of negligence per se.

The negligence per se doctrine has been abrogated by statute in Washington State. It doesn't apply.

Once again, I think we have an exception that does not provide relief for these individuals.

I conclude by joining my colleague in hoping we have some resolution soon on the procedural process for this evening and tomorrow. I yield the floor.

Mr. President, I rise today to recall one of the most tragic events in the history of the State of Rhode Island. It was almost 1 year ago, on February 20, 2003, that a devastating fire destroyed the Station nightclub in West Warwick, RI, killing 100 people and injuring nearly 300 more. The impact of this horrific incident on our small State is beyond measure, as most Rhode Islanders either suffered a direct loss, or knew someone who died or was injured in this blaze.

The first anniversary of the fire will bring back painful memories for many in our community. I want to express my heartfelt condolences to the families of those who perished and to let them know that our thoughts and prayers remain with them and with the survivors who continue to struggle with the physical and mental toll of this horrible event.

Looking back on the West Warwick fire and its aftermath also reminds us that it brought out the best in our people. In the first minutes and hours of this tragedy, our firefighters, police, and emergency medical personnel performed heroically under terrifying circumstances, as did many of the patrons who were at the scene and helped to save others. Nearby small businesses like the Cowesett Inn restaurant were turned into triage centers, and first responders from throughout southern New England descended upon West Warwick to do whatever they could to help.

I visited victims at all of our hospitals and in Boston as well. I was inspired by their courage and the extraordinary skill and compassion of countless doctors, nurses and health professionals.

As our Nation continues to fight the war on terror, the response to the West Warwick fire provides a good illustration of the progress we have made--and

how far we have to go--in improving our emergency management capabilities. As the magnitude of the tragedy became known, the Rhode Island Emergency Management Agency and hospitals throughout southern New England activated emergency incident command systems, many of which were designed after September 11, 2001. The process of rescuing and treating victims, putting out the blaze, identifying bodies, accounting for the missing, providing crisis counseling for survivors put a tremendous strain on State and local agencies.

I have no doubt that Rhode Island's post-September 11 emergency management planning efforts, backed by Federal assistance programs through the new Department of Homeland Security, made a difference in responding to the West Warwick fire.

In the past year, Rhode Island's ability to respond to mass casualty events has been further improved with the help of Federal programs such as the State Homeland Security Grant Program, the Assistance to Firefighters Grant Program, Interoperable Communications grants, and the Department of Health and Human Services' bioterror response grants to hospitals. All told, Congress has provided more than $75 million to Rhode Island over the past 3 years for emergency management and terrorism prevention and response. Yet we continue to face tremendous challenges, and we need to do more.

I want to say a special word of thanks to my colleagues Senator Gregg and Senator Hollings for their strong support in securing funding through the Department of Justice to reimburse State and local law enforcement agencies in Rhode Island for extraordinary expenses related to the fire.

The Station nightclub fire was a catastrophe. Fault will be appointed in the days ahead by the civil and criminal courts, but Rhode Island is already taking steps to ensure that a tragedy like this never happens again. The Rhode Island General Assembly passed the Comprehensive Fire Safety Act of 2003 to repeal the ``grandfather'' exemption from modern fire codes and require more sprinklers in places of public assembly, especially nightclubs. The law also bans pyrotechnics in most indoor venues and gives greater power to fire inspectors. The State fire marshal now faces the task of training the State's fire inspectors and meeting with businesses and institutions to explain how the code applied to individual buildings.

As State and local officials across the country reexamine their fire and building codes and step up enforcement of safety practices in public buildings. Congress should do everything it can to support this effort and to encourage both State and local governments and Federal agencies to adopt and strictly enforce the most current fire and building consensus codes. I was also proud to join my colleague Senator Hollings in introducing the American Home Fire Safety Act--S. 1798--to require the Consumer Product Safety Commission to implement comprehensive fire safety standards for upholstered furniture, mattresses, bedclothing, and candles.

No one in Rhode Island will forget the tragic events of February 20, 2003, and I hope we will never forget the way Rhode Islanders came together in that dark hour to do whatever was needed to save lives and relieve the suffering of the victims. That generous spirit has continued. Over the past year, Rhode Islanders and Americans across the country have donated more than $3 million to the Station Nightclub Fire Relief Fund to help families affected by the tragedy, including children who lost parents in the fire.

We often hear that it is in times of crisis that a person's true nature is revealed. That standard applies to communities as well, and as we approach a painful anniversary that will again focus the world's attention on the sorrow and grief felt by so many Rhode Islanders, I believe the people of our State have much to be proud of for the way they responded to this tragedy. It is now our duty to do all that we can to make sure that no community ever again faces a catastrophe like this one.

I thank the Chair and I yield the floor.

I suggest the absence of a quorum.

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

Mr. President, I rise to respond to a scurrilous attack against the patriotism of a friend and former colleague, Max Cleland. In a townhall.com column by Ann Coulter, which is described as a conservative news and information Web site, scurrilous, unprincipled attacks have been leveled against a patriot, a warrior, and a friend. I want to put my response in context.

I had the privilege of serving in the U.S. Army for 12 years on active duty. I did some challenging things there: qualified as an Army Ranger, paratrooper, commanded a company in the 82nd Airborne Division of paratroopers. But I am not a combat veteran. I did not serve in a combat zone. Max Cleland, and many, many others, did. There is a difference between those who wear the uniform of the United States and those who served in a combat situation, particularly a situation such as Vietnam.

The difference is that in that situation, more than any others, you live constantly with a sense of your own mortality. At any moment, through any fire or mishap, you could die or be seriously injured. At any moment, you could see people, your fellow soldiers, die from injuries. And for officers such as Max Cleland there is a special burden that goes along with leadership--not just officers but also noncommissioned officers. You have to make tough decisions that some day could result in the death or injury of another. That is a very special type of service that is inherent in being in a combat zone.

Max Cleland served with distinction. The article that Miss Coulter wrote mocks his service, mocks his sacrifice, and, in doing so, mocks the service and sacrifice of thousands and thousands of Americans in the past and today across the globe.

For example, this is how she describes Max in some respects. In her words:

Moreover, if we're going to start delving into exactly who

did what back then, maybe Max Cleland should stop allowing

Democrats to portray him as a war hero who lost his limbs

taking enemy fire on the battlefields of Vietnam.

Let's get one thing straight right now: Max Cleland is an American hero.

Let me read from the citation he received for the Silver Star, obtained from Senator Miller's Web site.

Captain Cleland distinguished himself by exceptionally

valorous action on 4 April, 1968 . . . during enemy attack

near Khe Sanh.

When the battalion command post came under a heavy enemy

rocket and mortar attack, Captain Cleland, disregarding his

own safety, exposed himself to the rocket barrage as he left

his covered position to administer first aid to his wounded

comrades. He then assisted in moving the injured personnel to

covered positions.

Continuing to expose himself, Captain Cleland organized his

men into a work party to repair the battalion communications

equipment, which had been damaged by enemy fire.

His gallant action is in keeping with the highest

traditions of the military service, and reflects great credit

upon himself, his unit, and the United States Army.

Max Cleland is a hero. No one has to portray him as one; he is one.

With respect to how he lost his limbs, this goes on to say:

Cleland lost three limbs in an accident during a routine

noncombat mission where he was about to drink beer with

friends. He saw a grenade on the ground and picked it up. He

could have done that at Fort Dix. In fact, Cleland could have

dropped a grenade on his foot as a National Guardsman--or

what Cleland sneeringly calls ``weekend warriors.'' Luckily

for Cleland's political career and current pomposity about

Bush, he happened to do it while in Vietnam.

Yeah, Max was really lucky to be in Vietnam--really lucky.

This is what happened. In Max's book:

My tour of duty in Vietnam was now almost over. In another

month I'd be going home. I smiled, thinking of the good times

waiting stateside.

``Oh, Captain Cleland.''

I looked around. It was Major Cralle who had come up to our

position. ``The battalion needs a better radio hookup with

the vision supply area,'' he said. ``I'd like you to send a

radio relay team back there to improve communications.''

That meant setting up a radio relay station on a hill back

at the division forward assembly area 15 miles to the east.

Instead of sending a team alone, I decided to go with them to

ensure they got set up properly.

It is what is called leadership, sacrifice, being willing

to do yourself what you ask subordinates to do. That is not

routine anytime. This was a combat mission in a combat area.

With two men, I pulled together some antennas and a

generator and some radios and loaded them on a chopper. The

three of us climbed in and the helicopter lifted off. Within

minutes, we had settled down by the radio relay station. The

men and equipment were unloaded, and I climbed back into the

chopper intending to go down to battalion rear headquarters.

Then two ideas crossed my mind. First, it would be better

to work personally with my team in setting up the radio

relay. Second, I had a lot of friends at this relay station

and now was a good time to have a cold beer with them.

First: I want my men to do the job. I am going to be there with them. By the way, I have comrades that I have served with and, you know, if I have a chance to be with them, and, oh, by the way--in his characteristic honesty--have a beer with them, I was going to do that.

I called to the pilot that I was getting out. He nodded and

held the ship steady. I jumped to the ground, ran in a crouch

until I got clear of the spinning helicopter blades, turned

around and watched the chopper lift.

Then I saw the grenade. It was where the chopper had lifted

off.

It must be mine, I thought. Grenades had fallen off my web

gear before. Shifting the M-16----

Let me stop. I assume if he is carrying grenades and an M-16 this was not a recreational activity.

Shifting the M-16 to my left hand and holding it behind me,

I bent down to pick up the grenade.

A blinding explosion threw me backwards.

The blast jammed my eyeballs back into my skull,

temporarily blinding me, pinning my cheeks and jaw muscles to

the bones of my face. My ears rang with a deafening

reverberation as if I were standing in an echo chamber.

Memory of the firecracker exploding in my hand as a child

flashed before me.

When my eyes cleared I looked at my right hand. It was

gone.

I could go on, but I think that speaks volumes. Max thought, frankly, that it was his grenade. But regardless of whose grenade it was, I was always taught, as a leader, that if there was a grenade, a live grenade, somebody has to take care of it.

Now, maybe Miss Coulter would have simply said: Sergeant, go get that grenade--or maybe just turned around and run further away, leaving a live grenade, with a pin or without a pin, in the middle of a landing zone.

Max did what a good soldier does. We used to say at West Point: A good soldier marches to the sound of guns. And that is what he did when he picked up the grenade. He was horribly wounded. Everything was broken except his spirit.

But the fear that it was his grenade, that it was a dumb accident, was allayed years later. This is an article in Esquire magazine:

He lives with the fact that he asked for it. He was in

college during Vietnam and left to join the Army because he'd

always gone toward the action.

``March to the sound of the guns.''

He became the aide to a general stateside and fought to get

shipped to 'Nam.

He fought to go to Vietnam.

Once in country, he was an army captain and saw little

combat and fought to be sent into Khe Sanh.

Closer to the action--

And when Khe Sanh was over and they were mopping up, he

almost bought the farm.

For thirty-one years, he figured it was his fault. Before

he jumped out of the chopper, he'd checked his grenades to

make sure the pins that activated them were bent and could

not accidently fall out. Straight pins can get you killed.

The next thing he knew, he was on the ground and saw a

grenade beneath him. And then for thirty-one years he heard

that explosion and thought, ``I've blown myself up with my

own grenade.'' He got decorations but would have none of

them, because to Max Cleland they sure . . . didn't cover a

man who blows himself up. Then, this spring--

This was August 1999--

He was on a television show and told his story about that

day at Khe Sanh, and later a guy called up and said, Hey, I

was there, it wasn't your grenade, I saw it. And Cleland

checked the caller out, and it seems the guy really was

there. And this year--

In 1999--

Max celebrated Being Alive Day with him down in Georgia.

This is not an accurate portrayal of the service and sacrifice of Max Cleland. It is unprincipled and scurrilous. It defames him, and it defames people who wear the uniform of the United States.

She is not through yet:

Cleland wore the uniform, he was in Vietnam, and he has

shown courage by going on to lead a productive life. But he

didn't ``give his limbs for his country,'' or leave them ``on

the battlefield.'' There was no bravery involved in dropping

a grenade on himself with no enemy troops in sight. That

could have happened in the Texas National Guard----

There is plenty of bravery there, the bravery of leading men in difficult circumstances, in the sight of the enemy or out of the sight of the enemy. It was the bravery of understanding instinctively that you could not leave a live grenade rolling around in a landing zone. It was the bravery of being willing to be with his men even though he could have easily dropped them off, waved from the helicopter, and flown off to a happy life, 1 month before his return to the United States.

It disturbs me about Max, but Max is quite a man. But this also disturbs me about--what does it say about our soldiers today in Iraq, about the soldiers I visited, National Guardsmen and regular soldiers, at Walter Reed, who were injured, critically injured, in vehicle accidents and other mishaps that are part of a combat operation?

They did not sacrifice their limbs and their spines for our country? Is that what she is saying? Is that what we are going to say when we pat them on the back and say thanks for your service? There are no excuses for this kind of unprincipled attack on an individual, unsubstantiated by the record, an attack, as I say again and again, not only denigrates Max Cleland, it denigrates everyone who wore the uniform of the United States and wears it today. It denigrates particularly those individuals--and I must again emphatically say, I did not serve in combat--but those individuals who today serve in a combat area, who wake up every morning thinking it may be their last moment, who wake up every morning thinking that they may have to order people to do things that will cost them their lives.

It is an experience that I have not known, very few people in this Chamber have known. It is the mark of true heroism and courage, and day in and day out men like Max Cleland do it. And to suggest that he is not a hero, to suggest that his sacrifice was some type of stunt gone bad, some type of foolishness is beneath contempt.

I yield the floor.