Floor Statements

Mr. President, I ask my colleagues to join me in congratulating the Goodrich Aerostructures Original Equipment Manufacturer and the Alabama Service Center in Foley, AL, on their 25th anniversary. Goodrich Aerostructures became part of the Baldwin County community in 1984, originally as Rohr Industries. Twenty-two years later, Goodrich expanded significantly, and since 2005 Goodrich Aerostructures has been the second largest employer in Foley with approximately 800 people manufacturing, assembling, repairing, and servicing aircraft engine components and structures for military and commercial airplanes.

Since its inception, Goodrich Aerostructures has received numerous awards and recognition for continually providing excellent service and outstanding products. For the past 8 consecutive years, employees at Goodrich in Foley have been recognized by the Federal Aviation Administration with Aviation Maintenance Technician awards. In addition, Goodrich Aerostructures in Foley recently reached a significant milestone by delivering its 500th CF34-10 nacelle, and the company is on contract to supply the pylons and nacelle systems for the Air Force's C-5 Galaxy strategic airlifter as part of the Reliability Enhancement and Re-Engining Program to modernize the Air Force airlift fleet and improve support for our military personnel around the world.

The men and women of Goodrich have also been recognized as good corporate citizens and civic leaders in Baldwin County. The United Way of Baldwin County recognized Goodrich as the top contributing industry in the county earlier this year, and Goodrich workers actively support education, arts, and civic activities in the local community, including support for the Foley Public Library, the Center for Autism for Baldwin County, and the Baldwin County Council on Aging, and sending care packages to employees' friends and family members that are serving our country in Iraq and Afghanistan.

On behalf of my Senate colleagues and the State of Alabama, I thank the men and women of Goodrich Aerostructures in Foley.

Mr. President, I thank Senator Cantwell. I appreciate her courtesy. I just want to share a few remarks tonight.

We are now postcloture on the nomination of Judge David Hamilton to the circuit court of appeals. Cloture is a procedure in the Senate generally used to end a prolonged debate. The majority leader, Senator Reid, filed cloture on Judge Hamilton, however, before there had been even 1 hour of debate on the nomination. The cloture motion was filed before I or any of my colleagues had time set aside and had the opportunity to debate this matter.

Judge Hamilton's judicial philosophy and record as a district judge were problematic. There are important matters involved considering the fact that President Obama has nominated him to serve on the Court of Appeals for the Seventh Circuit. It is worthy of serious consideration, this lifetime appointment.

Yesterday, 28 Senators joined me in voting against cloture. I believe they voted no on cloture for a number of reasons. The first is the one I have just mentioned. Cloture is generally reserved to end a prolonged debate, and Senator Reid filed cloture without any debate, before debate had really begun.

The second is that Judge Hamilton's judicial philosophy is outside the mainstream--I think well outside the mainstream. As I have said before, if a judge is not committed to following the law whether they like it or not, then that person is not qualified to be a judge. They may be a good advocate, but a judge must, by definition, be impartial.

I think there will be more people voting against Judge Hamilton's nomination than voted against cloture--the 29 who voted yesterday. I think we need to spend some time talking about his record and his judicial philosophy.

I do not have anything against Judge Hamilton. I understand he may be a fine person, and I really mean that. But there is afoot in this country a philosophy of judging, an approach to law that I think is dangerous and strikes at the very heart of the classical American judicial philosophy and legal system that has served us so well. So that is what this is about. If judges have the wrong philosophy as they approach the bench about how they should go about deciding cases, then that can disqualify them.

As Senators, we each have a right to express our opinion on whether we believe a nominee is qualified and should be confirmed or not elevated to a higher court, but the American people expect we will not misrepresent the facts. Let's be fair to this nominee, and let's not in any way misrepresent who he is and what he did and what his philosophy is. I intend to be fair to him. I think any nominee is entitled to that. Even though I might be a critic, I should not be inaccurate in what I say.

In this case, I think the facts have been misrepresented by others, and I want to correct the record on some of the issues, where it has been suggested that I or others have been incorrect or unfair in our criticism. Accuracy goes both ways. If you are for a judge and want to move him forward, OK, let's be accurate. Those who are opposed to him, you must be restrained and accurate also.

Yesterday on the floor of the Senate, the majority leader, Senator Reid, invoked the Golden Rule. He said that when he became majority leader, he sought to ``treat [President Bush's] judicial nominees the way they would want them treated if the roles were reversed.''

Let's take a look at the way President Bush's judicial nominees were treated by the Democratic majority. Senator Reid complained that Judge Hamilton, the judge before us tonight--tomorrow--waited 166 days for this vote. If Republicans followed Senator Reid's version of the Golden Rule, would he have been confirmed earlier? No. Judge Hamilton would have waited at least another year and a half before he received consideration on the Senate floor. That is exactly how President Bush's nominees were treated for the first group of nominees he submitted to the circuit courts.

Priscilla Owen, a fabulous judge at the Supreme Court of Texas, John Roberts, now on the Supreme Court of the United States, and Deborah Cook all waited 2 years before receiving a confirmation vote.

Yesterday Senator Reid said:

It's really unfortunate we have to file cloture on a judge.

Really unfortunate that we have to file cloture on a judge? As if this was something that had never been done before. Indeed, during the Bush administration, cloture had to be filed on at least 17 different judicial nominees because Senator Reid was leading filibusters himself. The majority leader complains he could not get a time agreement. But he never offered a reasonable amount of time. I believe there were discussions about 30 hours of debate, which was rejected. Senator Reid said he was stunned that some people believed there was not enough time to debate the nomination when no debate had been had.

He accused Republicans of not entering into a time agreement. But as I said Monday, Senator Reid has a short memory. When Senator Reid was in the middle of filibustering Priscilla Owen, Senator Bennett made a unanimous consent request that the Senate spend 10 hours more debating the nomination and then vote. Senator Reid objected. When Senator Bennett asked how much time would be sufficient to debate the Priscilla Owen nomination, Senator Reid responded by saying:

[T]here is not a number of [hours] in the universe that

would be sufficient.

Later Senator McConnell sought a time agreement on Judge Owen. Senator Reid responded by saying:

We would not agree to a time agreement . . . of any

duration.

Yesterday Senator Reid said:

The Democratic majority in the Senate confirmed three times

as many nominees [under President Bush] as we have been able

to confirm in the same amount of time under President Obama.

Senator Reid left out the fact that Democrats filibustered more than three times as many nominees under President Bush. Indeed, there were 30 cloture votes on 17 different judicial nominations during the Bush administration. There were 1,044 total votes

against two filibustered President Bush's nominees. The Democrats, under Senator Reid's leadership, cast 99.9 percent of those votes.

Yesterday Senator Reid talked about the Senate and the legal precedent and advocated that Republicans follow Senate precedent in judicial confirmations. Ironically, that is exactly what Senate Republicans asked Senator Reid to do during the Bush administration. There had been 214 years of precedent of not filibustering judges. Yet Senator Reid voted more than 20 times to filibuster President Bush's judges. Everyone knows that in a court of law, you follow the most recent precedent, and the most recent precedent was established last time in the Bush administration by the Democrats in this body.

Yesterday Senator Reid also said the following:

I want to reiterate that every Senator may vote for or

against Judge Hamilton's nomination as he or she sees fit.

That's what we do here, but that is not the issue before us

today. The question before us is whether the President of the

United States deserves to have his nomination reviewed by the

Senate as the Constitution demands he does.

The fact is that Senator Reid did not feel that way about Terrence Boyle who was nominated by President Bush for the Fourth Circuit Court of Appeals and languished for close to 8 years without ever receiving a confirmation vote, even though he passed out of the Senate Judiciary Committee with a majority vote. He did not feel that way about President Bush's nominee, the superb legal mind of Miguel Estrada, unanimously voted well qualified by the American Bar Association. He was filibustered through seven cloture votes and was never confirmed, a fabulous nominee to the court of appeals and one capable of being on any short list for the Supreme Court. Or what about Charles Pickering who was filibustered and never confirmed; Carolyn Kuhl who was filibustered and never confirmed; William Myers who was filibustered and never confirmed; Hanry Saad who was filibustered and never confirmed; William Haynes who was filibustered and never confirmed?

What Senator Reid meant to say was: Do not do unto me as I have done unto you. You get it? Do not do unto me as I did to you.

I don't believe Senator Reid or President Obama would wish for us to return to the Democratic version of the Golden Rule. I don't believe we intend to do that. Republicans have not held a private retreat to figure out how to change the ground rules and to block President Obama's nominations. That is what the Democrats did. It was reported in the New York Times. We have not taken orders from outside groups to block nominees. We have not blocked nominees because we do not want them to sit on a specific case, and we had some of that in the past. We have not attempted to filibuster a nominee in the Judiciary Committee. We let them go through. That is how President Bush's nominees were treated. I am not exaggerating. I was there. Those are the facts.

I will express my opinion in more detail when I vote against Judge Hamilton. I have a right to do that, as does every Member. But I do not have a right to misrepresent the facts, and I try to be accurate in what I say. If I am in error, I look forward to being corrected. I hope my colleagues will start making an effort to do that.

The way this happened was this: After President Bush was elected, the Democrats met with Marcia Greenberg and Lawrence Tribe and Cass Sunstein. They came up with a new idea. They said: We are going to change the ground rules. We no longer are not going to filibuster, as has been done in the history of the Senate. We are going to do anything we can to block in committee and on the floor good nominees.

We had some fabulous nominees, such as Priscilla Owen, Bill Pryor. These are brilliant lawyers, proven people. They were rated highly by the American Bar Association. There was strong support in their home States and communities. They were blocked for months, even years before they could get a vote. Some got through, and some did not.

My personal view is that the President deserves deference in his nominees. I fully expect and hope to be able to vote for 90 percent of President Obama's nominees. I voted for well over 90 percent of President Clinton's nominees. But I am not a rubberstamp. I am not going to vote for a judge who I believe, by virtue of their stated judicial philosophy, thinks a judge has the right to write footnotes to the Constitution, as Judge Hamilton has said, who blocks legislation for 7 years and has to be finally slapped down hard by the court of appeals because apparently he didn't appreciate the State of Indiana's passage of a law on informed consent. He kept that bottled up for 7 years. And how much Indiana had to spend on legal fees, and how much of the will of the people was frustrated by one unelected, lifetime- appointed judge I do not know, but it was significant.

So those are the issues we will talk about in more detail. But I did want to set the record straight that I do not like not moving forward with a judge and giving them an up-or-down vote, but after the 8 years of President Bush and the repeated filibusters that occurred then, I have to agree with a number of my colleagues that, indeed, the Democrats did successfully change the standard in the Senate. We have to be careful about it. But they changed it to say that a filibuster is legitimate if you believe, according to the Gang of 14, there are extraordinary circumstances.

To me, a person can be honest and have integrity, but if they believe, as a philosophical approach to the law, they have the ability to write footnotes to the Constitution, they have an ability to actually amend the Constitution through their decisions, when the Constitution itself provides only one method to amend the Constitution, then that makes the person one who is not qualified to be on the bench.

So it is a big deal. We love the American legal system. I so truly admire it. It is based on a firm commitment to the rule of law. The oath judges take that they will impartially apply the law--not allow their personal views but impartially do it--that they will do equal justice to the poor and to the rich, that they will serve under the Constitution and laws of the United States--and not above them--that is the essence of it.

I think a judge who cannot follow that oath they must take, one whose philosophy indicates they are not committed to that oath, is not qualified.

I thank the Chair and yield the floor.

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, I wish to thank Senator Alexander for his remarks because I think I have heard it said that this new health care bill, don't worry about it, it is going to be revenue neutral. But if you create a bill that is revenue neutral by taking hundreds of billions of dollars out of Medicare, which we already know is heading into default in the next 5 or 6 years, and you do it by raising taxes, both of which are to fund a new program that we don't have the money for, then that is not, in my mind, what the average person would say in commonsense thought is revenue neutral.

I think that is what we are talking about. We need to be able to see the details of it. I appreciate Senator Alexander for that fine summary of where we are. I hope our Members will take it to heart.

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

Mr. President, I rise to share some thoughts about the Hamilton nomination in particular and some thoughts about the idea that judges can be subject to a filibuster. It is a matter that has been the subject of discussion in the Senate for a number of years. I wish to share with my colleagues how it all came about, where I think we are today, and why Mr. Hamilton does not deserve to be confirmed as a Federal judge.

I recognize he has many qualities, and I am not saying anything about him personally. But his approach to the law is unacceptable and is activist and evidences a philosophy that indicates he would not be serving under the law and under the Constitution but, as he has said, a judge is free to write footnotes to the Constitution. I don't think judges are empowered to write footnotes to the Constitution. According to their oath, judges serve under the Constitution. They don't get to amend it or footnote it, and they are not above it.

Back when President Clinton was in office, he nominated a number of judges who were activist. I voted for over 90 percent of his nominees. But I believed a number were activists, and I opposed them. There was much discussion about it. Nominees such as Marsha Berzon and Richard Paez I believed, were not going to be faithful to the law if confirmed. My instincts in that regard have been proven correct. This was in the 1990s.

Regardless, I remember then-majority leader Trent Lott, a Republican, moved for cloture on Berzon and Paez. We had votes. I and an overwhelming number of Republicans voted for cloture; that is, voted to bring up the nominees for a vote. Then a number of us voted against them. We didn't think they should be confirmed. But we didn't adhere to the view that filibustering was appropriate. That is when President Clinton, a Democrat, was in the White House.

Then, my Democratic colleagues in the Senate opposed filibusters and made all kinds of speeches against filibusters and against delaying votes.

Then President Bush, a Republican, got elected. In January, before he actually took office or about the time he took office, my Democratic colleagues had a retreat. At the retreat they met with legal scholars: Laurence Tribe, Cass Sunstein, and Marcia Greenberg. They advised them they should no longer follow tradition but should change the ground rules. In fact, they did so in a lot of areas. The New York Times reported that the decision at this meeting was about changing the ground rules on confirmations.

When President Bush started nominating judges, they were suddenly subject to filibuster--consistent, sustained filibusters, vote after vote. I believe there were 30 different cloture votes filed to move his nominees forward. That is what happened. We ended up with a series of nominees who were fabulous nominees President Bush had submitted, and they couldn't get a vote. Priscilla Owen, a member of the Texas Supreme Court, was given the highest possible rating by the ABA; Judge Bill Pryor, now Justice Bill Pryor from Alabama, a fabulous, brilliant nominee; Miguel Estrada; Janice Rogers Brown, an African-American woman who had been elected to the California Supreme Court and was a fabulous nominee. I remember her particularly since she had been born in Alabama. We couldn't bring them up for a vote. It went on and on.

Finally, the only thing that then-majority leader Bill Frist could do was to change the rules of the Senate to allow us to vote. He finally got the situation to the point that that appeared to be likely to occur.

It was at that point that the Gang of 14--seven Republican and seven Democratic Senators--got together and basically said: Too many nominees are being filibustered. We are abusing the filibuster rule, but we don't think we ought to eliminate the filibuster altogether, but only in extraordinary circumstances. If you really think this is not a good nominee who should not serve on the bench, vote no. But only if you strongly believe there is some serious flaws in this nominee's background, only then should you participate in a filibuster. It is legitimate if there is extraordinary circumstances. That is what they said.

A number of the judges got through. Several did not. There were 8 or 10 in controversy at that time for the circuit bench. Priscilla Owen, Bill Pryor, and Janice Rogers Brown were confirmed, but several others didn't make it from that group.

Now we have a Democratic President, and his nominees are coming up. Justice Sotomayor, whom he nominated to the Supreme Court, was a nice person, a capable person. She made some speeches that were troubling. We all analyzed that and studied that a good bit. What we concluded was--at least what I concluded, I think most of my colleagues did too-- that while we may have serious doubts about whether she should be confirmed for the Supreme Court, we didn't think there were extraordinary circumstances that would justify a filibuster. So she was given an up-or-down vote. I voted against her nomination, but she was confirmed.

That is normally the way things have happened. Robert Bork's nomination failed on an up-or-down vote. Justice Clarence Thomas was confirmed on an up-or-down vote. However, President Bush's nominee for the Supreme Court, Justice Alito, was filibustered. He was a fabulous nominee who was so impressive in committee, almost as impressive as President Bush's other nominee, Chief Justice John Roberts. He should not have been filibustered, but he was. President Obama was one who led the filibuster and participated in it. But it failed, and Justice Alito was confirmed.

In 1997, when a Democratic President was in office and they were trying to move his nominees forward, Senator Boxer said:

It is not the role of the Senate to obstruct the process

and prevent numbers of highly qualified nominees from even

being given a vote on the Senate floor.

That is being denied an up-or-down vote by filibuster. She opposed that. Yet when President Bush was nominating judges, she voted 35 times to block his nominees by filibuster.

During the Clinton administration, Senator Schumer said:

I also plead with my colleagues to move judges with

alacrity--vote them up or down. This delay makes a mockery of

the Constitution, makes a mockery of the fact that we are

here working, and makes a mockery of the lives of very

sincere people. . . .

Senator Schumer later voted 34 times to keep President Bush's nominees from having an up-or-down vote, in other words, to filibuster his nominees.

Our distinguished chairman of the Judiciary Committee, Senator Leahy, likewise made similar statements. I will not go into all of those, but I can do so. I can definitely state time after

time, Senator after Senator who opposed filibusters when President Clinton was sending nominees to the Senate led the filibusters against President Bush's nominees.

The Democrats have a clear majority in the Senate, 60 Members. Senator Reid recently came to the Chamber to demand a time agreement for Judge David Hamilton's nomination to the Seventh Circuit Court of Appeals. Apparently, he was not happy that some of us wanted to have more debate about it. He said:

We are going to do Judge David Hamilton [for the] Seventh

Circuit, who has been waiting since April. We have agreed to

time agreements. Do you want an hour, 2 hours, 5 hours, 10

hours of debate? No, we don't want anything.

He is speaking for the Republicans.

They don't want a time agreement. This is so important that

we will spend 2 days debating it if we can have a vote. But

that is not good enough. No time is sufficient.

That is what he grumbled about. He has a lot on his plate. But Senator Reid has a short memory. When Senator Reid was in the middle of filibustering Priscilla Owen, a fabulous nominee, and Senator Bob Bennett made a unanimous consent request that the Senate commit 10 hours to debating her nomination and then give her an up-or-down vote, Senator Reid objected. When Senator Bennett asked how much time would be sufficient for the nomination, Senator Reid responded by saying:

[T]here is not a number [of hours] in the universe that

would be sufficient.

Later, Senator McConnell sought a time agreement on Judge Owen. Senator Reid responded by saying:

We would not agree to a time agreement . . . of any

duration.

Majority Leader Reid voted 27 times to filibuster President Bush's nominees. There are a number of other statements I could cite that demonstrate how some of my Democratic colleagues have forgotten the factual record.

The truth is, my colleagues on the Democratic side fought against moving to cloture on 17 of President Bush's judicial nominees on 30 separate occasions. In doing so, they changed 214 years of Senate tradition. That is a fact.

I remember, as a new Member of the Senate, when President Clinton was in office. I believed the Senate should abide by those rules. I remember voting for cloture to move two nominations--Berzon and Paez. Although I voted against them, I did not support a filibuster. I did not think we should change the Senate tradition.

Once those debates started--colleagues will remember--it was a pretty hot debate. We believed strongly that there was no basis to block a lot of these nominees. The only thing these judges had in common was that they believed a judge should strictly apply the law, that they should be objective, that they should not allow their personal feelings to enter into their decision-making, or their empathies, and that they would be faithful to the law even if they didn't like the law. If it was passed by some legislature or the Congress, they ought to be enforcing it regardless of what they personally thought. They were not elected to make the law; they were elected to enforce the law. The American people agreed with that overwhelmingly.

One night we debated all night. We went all night long to try to encourage colleagues to give up on the filibusters. But they didn't. That is how we got the Gang of 14 came about and made the rule change.

So my Democratic colleagues are sort of suggesting, it seems to me, that it is somehow improper that on any nominee Republicans would demand they achieve a 60-vote margin to move to an up-or-down vote-- what they have been doing time after time. I will just say if we allow that to happen, this is the effect of it. It would mean for a Republican President who nominates a judge to the bench, his nominee would have to get 60 votes in the Senate to be confirmed. But if a Democrat is in office, and Republicans are not able to filibuster, it would only take 51 votes to get them confirmed.

That is the kind of situation we are in. So the answer becomes, to me, pretty obvious, and I think to others on our side. We had a full debate. We had a real battle. We went on for several years. We debated the rules of the Senate, and the Senate, in effect, established a new rule. The new rule is, filibusters are legitimate, but only if there are extraordinary circumstances. I think that is not totally improper. I guess we are stuck with it. That is where we are, and I think that is probably where we are going to stay for a while.

So as we go forward today, we will be asking--maybe each of us--what ``extraordinary circumstances'' is. There is no exact definition of it. When is it appropriate to vote against cloture on a judicial nominee? What does ``extraordinary circumstances'' mean? Each Senator will make up their own mind. There is no firm definition.

In my view, Judge Hamilton is an example of a nominee who does fit the ``extraordinary circumstances'' standard for a number of reasons. It is difficult for Members on this side of the aisle to vote to end debate on a nominee as controversial as Judge Hamilton. Indeed, we have had no debate on him at all on the floor to date. No one on this side of the aisle has made a statement similar to the one Senator Reid made about there not being enough time in the universe to debate the nominee.

If we look back and see how the decision was made on the nominees who came through when the rule was changed, maybe we can get some feeling for the appropriate way to view--based at least on what happened before--the meaning of ``extraordinary circumstances.''

As to Judge Bill Pryor, the Democrats forced three cloture votes. They blocked him three times. Many of my colleagues who are now arguing against a filibuster, saying Judge Hamilton should not be filibustered, did not hesitate to vote to block an up-or-down vote on Judge Pryor.

During his confirmation, then Alabama Attorney General Pryor was criticized because he had pro-life personal views, although he had a record of showing that he criticized an Alabama law, as attorney general, that was anti-abortion, when he felt it was unconstitutional. As attorney general, he said it was unenforceable. It was a close question, but the Supreme Court had ruled on it, and Bill Pryor said: I am a man of the law. Even though I am pro-life, I cannot enforce this law.

That was not good enough. They thought he, as a strong and practicing Catholic, was too religious. So now, if we look at Judge Hamilton--I am not sure what his religious beliefs are, and it certainly is not a matter that is important--but in Hinrichs v. Bosma, in the district court where he is a Federal district judge, in 2005, Judge Hamilton prohibited prayers in the Indiana House of Representatives that expressly mentioned Jesus Christ, saying they violated the Establishment Clause of the United States. Yet he would have allowed prayers which mentioned Allah. They had an imam pray at the legislature too.

Mr. President, I will wrap up.

In Grossbaum v. Indianapolis-Marion County Building Authority, he denied a rabbi's plea to allow a Menorah to be part of the Indianapolis Municipal Building's holiday display. The Seventh Circuit reversed him unanimously.

So I would ask, between the criticism of Judge Pryor and Judge Hamilton, who is out of the mainstream? Where is the extraordinary circumstance?

Then there was Priscilla Owen, some of my Democratic colleagues found extraordinary her dissents in close, split cases, dealing with parental consent. Judge Owen was concerned that a 16-year-old in Texas could get an aspirin at school without parental consent but, under Texas law, could have an abortion without any parental involvement. She voted to uphold the ruling of the lower court judge that parents should be at least notified before their daughters underwent an operation, and my colleagues did not like that.

Judge Hamilton, on the other hand, succeeded in blocking the enforcement of an Indiana informed consent law for 7 years. In reversing him, the Seventh Circuit noted that Judge Hamilton had abused his judicial discretion. The court of appeals said this:

[F]or seven years Indiana has been prevented from enforcing

a statute materially identical to a law held valid by the

Supreme Court in Casey, by this court in Karlin, and by the

Fifth Circuit in Barnes. No court anywhere in the country

(other than one district judge in Indiana)--

They were talking about Judge Hamilton--

has held any similar law invalid in the years since Casey. .

. . Indiana (like Pennsylvania and Wisconsin)--

According to the Court--

is entitled to put its law into effect and have that law

judged by its own consequences.

So between the criticisms of Judge Owen and Judge Hamilton, which one is outside the mainstream?

Well, there are other issues we could talk about and will talk about as the debate goes forward. But I just wanted to share that to say I am not one who believes we should lightly oppose a nominee. I think they should be given some deference, whatever a Senator believes. I believe a President's nominee should be given deference. But we are not a rubberstamp. We are being asked to give this nominee a lifetime appointment. If they believe they have the power to frustrate legislative will and popular will, when what the legislature did is not in violation of the Constitution, they do not need to be on the bench. That is my view and I think a lot of others' view too.

The American people are unhappy with judges who believe they can allow their feelings, their empathies to cause them to render opinions that do not follow the law. The great American heritage is an objective view of the law, and the oath that a judge takes is to be impartial and to serve under the Constitution and the laws of the United States.

Because I am deeply troubled by Mr. Hamilton's record--not by his personal qualities, but his record and his speeches--I will be opposing the nomination and not voting for cloture.

I thank the Chair and yield the floor.

Madam President, I would also like to speak on the Davis nomination and reluctantly I will speak in opposition to that nomination. There has been some discussion on the Senate floor today and previously in more detail about the need for the circuit judges. But I would just point out, having been through this system quite a bit, that during the 110th Congress four highly qualified consensus nominees to that court were presented to the Senate by President Bush and were not confirmed: Judge Robert Conrad, Judge Glen Conrad, Mr. Steve Matthews, and Mr. Rod Rosenstein.

I remember Judge Conrad. He is the presiding judge of his district and had been a U.S. attorney. I remember him testifying during President Clinton's difficulties, and then Attorney General Janet Reno looked all over the U.S. Federal prosecuting ranks to pick a U.S. attorney who would be a special prosecutor whom she would select to prosecute one of the allegations against President Clinton.

She chose Mr. Conrad. He concluded that there were no charges in that matter to be brought against President Clinton and was later appointed a Federal judge in the district and was confirmed, but he was blocked for the court of appeals. I always knew he would be a good decisive judge since he was a point guard on the University of North Carolina basketball team. They have to make decisions. They have to make decisions quickly.

So I would say a lot of effort went into confirming judges for vacancies that are not there today. Mr. Rosenberg was nominated to the seat as a judicial emergency in November of 2007, the very seat to which Judge Davis has been nominated. He was not confirmed. In fact, my colleagues on the other side of the aisle succeeded in holding that vacancy, this vacancy, open for 9 years.

I find it breathtaking that people would suggest that the Republicans, who tried to fill that vacancy for 9 years and had the nominees blocked, were responsible for vacancies which have been there for a long time. I find that quite an odd thing.

The ABA reported Mr. Rosenstein unanimously ``well qualified.'' In 2005 he was confirmed unanimously to be U.S. attorney for Maryland. Prior to his service as U.S. attorney, he held a number of positions in the Department of Justice under both Republican and Democratic administrations. Despite his stellar qualifications, he waited 414 days for a hearing and never got one. So his nomination expired in January of this year.

The reason, one reason, given for blocking his nomination was that he was doing a good job as U.S. attorney in Maryland, and that is where we need to keep him. Well, forgive me if I think that is a bit much, and I certainly do not think we need to have the outrage from the other side about vacancies on this court since they are a direct product of the efforts of my colleagues to keep that vacancy open.

But Judge Davis has fared much better than those four nominees did in the last Congress. He received a hearing a mere 27 days after his nomination. A committee vote occurred just 36 days later. Today the full Senate will vote on his nomination.

I would just say I think we need to take time to look at nominees and ask the tough questions. We are not a rubberstamp. Good nominees ought to

be confirmed. Sometimes we just have a disagreement, like we will about Judge Davis, and we will have a vote. They will be confirmed or not confirmed.

I would like to point out, however, that the average time from nomination to confirmation for nominees to the courts of appeals submitted by President Bush was 350 days, and that was the average. The majority of President Bush's first nominees, the first group--and Judge Davis is part of President Obama's first group--waited years for confirmation.

Some of them never even got a hearing, despite being highly qualified, outstanding nominees. So Judge Davis has done pretty well in getting his case before the Senate and being able to get a vote. The fact is, nominees are moving much faster than they did during the Bush years. But we do have a duty to fulfill in analyzing nominees because they are being considered for a lifetime appointment, an appointment to the court in which the only thing that constrains them in how they conduct their daily business is their personal integrity, their personal restraint, and the only thing that reduces the number of errors they might make is their ability and determination to do the right thing.

Judge Davis is currently a judge on the Federal trial court in Maryland. During his time on the bench, unfortunately, he has been reversed by the Fourth Circuit, the very court to which he is now being nominated, in a number of troubling cases. He has been criticized by that appellate court for misapplying the law, for throwing out relevant and lawfully obtained evidence and wrongfully dismissing cases where there were genuine unresolved issues between the parties.

If Judge Davis did not adequately assess the facts or apply the law in these fairly direct and simple cases, it raises a question as to why he would be qualified to be promoted to the Fourth Circuit, the appellate court, one step below the U.S. Supreme Court.

One of my colleagues on the Judiciary Committee argued that district judges are going to be reversed from time to time and that if we held every reversal against a nominee, no judge would ever be elevated to the court of appeals. That is a fair point. Even the best trial judge occasionally may be reversed by an appellate court. But I felt the responsibility to look at these reversals and ask whether these are normal kinds of reversals that could occur in tough cases. I have to say, I believe the cases reveal a disturbing pattern of mistakes, mistakes that consistently favor criminal defendants and evidence an anti-law enforcement tendency. That, as a former prosecutor in Federal court, makes me a bit nervous. Many of the rulings a Federal judge makes against a Federal prosecutor cannot be appealed. It is an awesome power they have.

These mistakes have real-world consequences for law enforcement officers who are out on the streets doing their best every day to follow the already complex body of law and rules required by the courts. Police train and work hard to try to do the things they are required to do by courts. Sometimes the courts have caused them to do things that are unwise, but they try to do them anyway. Yet in Judge Davis' courtroom, the rules seem to change from case to case. It is a dangerous thing. It leaves police unsure of how to comply with the law when they are trying to protect citizens from criminal activities. These kinds of mistakes and rulings in effect allow criminals to go free on technicalities.

Not only do the shifting ground rules make a police officer's job nearly impossible, these types of errors require appeals. Appeals cost money. They take time. They delay justice. Not only are many of Judge Davis' decisions wrong as a matter of law, they have an extremely detrimental impact on the workings of the criminal justice system. Within the last 5 years alone, the Fourth Circuit has reversed Judge Davis 13 times for errors that seem to consistently favor criminal defendants. Even more troubling is that those errors are basic errors of law. I have studied the cases and the issues involved. It seems to me these are errors that should not have been made. They raise doubts in my mind about whether he should be elevated--he has a lifetime appointment on the Federal district court--to a lifetime appointment on the court of appeals.

One of the most troubling cases he has ruled on was the case of United States v. Kimbrough. There the defendant was arrested in his mother's house. Police found him in the basement cutting cocaine, the ``knife on the mirror'' type cutting of cocaine. After the arrest and before police could read the defendant his Miranda warnings, the defendant's mother asked him if he had anything else in the basement-- not the police, his mother. The defendant said he had a gun. The police went down and found the gun. They charged the defendant with unlawful possession of a firearm and possession of cocaine, both. The firearm charge would normally carry a mandatory penalty in addition to the cocaine possession charge.

Apparently, the judge didn't like that. Judge Davis threw out the defendant's statement that he had a gun because he said he had not been given his Miranda warning: You have a right to remain silent. The case went to the court of appeals, and he was reversed. The court of appeals in Kimbrough, the court he wants to sit on, had this to state, which is pretty obvious to me:

The defendant's mother ``is a private citizen, her

spontaneous questioning of [the defendant] alone, independent

of the police officers, could never implicate the Fifth

Amendment.''

Of course not. The Miranda warning is a court-created rule. It is not in the Constitution. Prior to its creation, police didn't give those warnings. But it is designed to help deter police from incriminating an individual and using the power of their badge to say something they didn't want to voluntarily say. But this was a question by the mother, not the police. It can, as the court said, never implicate the Fifth Amendment. The case was reversed after how many months and how much expense, we don't know. I do find it difficult to understand how that mistake was made.

Another of Judge Davis' cases that I find extremely troubling is United States v. McNeill. In that case, the defendant threatened to kill his girlfriend while in the presence of a police officer. What did the police officers do? They arrested him. At a minimum, this is a harassment charge, I submit, to threaten someone's life in the presence of the police. What would happen if the police officers hadn't arrested the man and they had walked off and left him there with his girlfriend and he had killed her? What would the public say then about the police officers? What would the average citizen say: Did you do your duty? Didn't you have the ability to make an arrest?

Judge Davis said he didn't. Judge Davis said he had no ability to make an arrest, to intervene in that circumstance. This is how it happened. They arrested him. They took him to jail. While he was in jail, he confessed to robbing a bank. Once again, Judge Davis threw out the confession, the whole case. If the arrest was bad and he was in jail, that was a product, I guess, of the poisonous tree and the confession was bad as to the bank robbery. So even though the police officer witnessed the defendant threatening his girlfriend, Judge Davis held the officer did not have probable cause to arrest the defendant. Once again, Judge Davis, however, was reversed by the Fourth Circuit.

The judge's troubling pattern of errors in criminal cases is further reflected in United States v. Dickey-Bey. There the defendant was charged with drug trafficking after he picked up packages that contained two kilograms of cocaine. Police had more than enough evidence against the defendant. This is what they had: Before the packages were mailed or when they were being mailed, a drug-sniffing dog detected the cocaine. The police then obtained a warrant, searched the packages and discovered two kilograms of cocaine in the package. The police then resealed the packages and allowed the packages to continue through the mail, apparently to their destination in Maryland. That is what we call--and hundreds of thousands of police officers call--a controlled delivery. The cocaine is not allowed to get out on the street, but they ship it. And let's see who comes up to pick it up. This is a common police procedure.

The defendant fit the description they had of the person who routinely picked up packages such as this from

this specific mail box. At the time of his arrest, the defendant had keys in his pocket to other mailboxes which had also been known to be destinations for packages of cocaine. Pretty good case, it looked like to me. In spite of all this, Judge Davis ruled that the police lacked probable cause. Probable cause to arrest is a low standard. If the defendant had a defense, he could always present it later and go to trial and be acquitted. But it certainly met the probable cause standard to make an arrest. He had two kilos of cocaine in his hands, apparently.

I will quote from the Fourth Circuit court he wants to sit on and what they said about his decision in Dickey-Bey:

In reaching its conclusion, . . . the district court failed

to step back and look at the totality of the circumstances

and the reasonableness of the officers' belief, in light of

those circumstances, that Dickey-Bey was a knowing part of a

larger drug operation.

Pretty simple case. The impact for every police officer in America who might be listening today, the impact of this ruling, if that is not probable cause, is that controlled deliveries of this kind that occur quite frequently in law enforcement would be eliminated.

How much cocaine is two kilograms? It is a lot. Under the sentencing guidelines, two kilograms of cocaine powder would yield an offense level of 28 which means a 78 to 97 months' sentence for a first-time offender, mandatory. That is the range the judge would have to sentence within the sentencing guidelines, 78 to 97 months.

A bulk package of 2 kilograms of cocaine would sell for anywhere from $20,000 to $50,000 on the street, depending on the geographic region. According to the Sentencing Commission's 2007 Cocaine and Federal Sentencing Policy Report, the average ounce of cocaine sold on the streets of America for $1,150 in 2005. If it is broken into 1-ounce packages for resale, the 2-kilogram package could sell for over $81,000. So this is not a little bitty deal. That amounts to 10,000 to 20,000 dose units.

I am baffled how anyone could think there was not a crime being committed, how there was not probable cause to believe this individual was involved in a crime. Once again, Judge Davis was reversed by the Fourth Circuit Court of Appeals, fortunately; and, presumably, this case went on to trial.

Judge Davis threw out yet another confession in the case of United States v. Jamison. In that case, the defendant, a convicted felon, shot himself. He shot himself. He went to the hospital and called out to the police for help and confessed that it was his gun that he shot himself with. Well, he was a felon. He could not have a gun. So the police charged him with being a felon in possession of a firearm.

Judge Davis, however, threw out his confession, his statement he made to the police based on the finding that the defendant made the statement while in police custody and without the police having given him Miranda warnings. The Fourth Circuit reversed because the defendant was not in police custody; he was in the hospital. He had pretty good corroboration--the fact that he had a gun--because he had a bullet hole in himself, apparently.

This is what the court said, unanimously reversing this decision--the trial stops. Prosecutors have to appeal. The case is thrown out. They file the appeal. All this money is spent. The court pays for the defendant's lawyer to go up and argue the case. They have to write cases. Months go by.

Madam President, how much time do we have on this side?

I thank the Chair.

This is what the court said, in reversing him unanimously:

[The defendant], and the court below, however--

The ``court below'': Judge Davis--

misunderstand the reach of Miranda. . . . Miranda and its

progeny do not equate police investigation of criminal acts

with police coercion. This distinction is especially salient

when the victim or suspect initiates the encounter with the

police.

He asked for them to come and help him.

Of course, this pattern has been noted by the lawyers who appear before Judge Davis. One assistant U.S. attorney--a Federal prosecutor-- was quoted as saying:

While Judge Davis is well-respected by the defense bar for

his patience and open-minded approach to legal arguments,

Assistant United States Attorneys are often frustrated by his

rulings in criminal cases . . . and have not hesitated to

appeal.

Apparently they have been pretty successful in their appeals.

This assistant U.S. attorney also said that ``some prosecutors believe Davis doesn't trust . . . [the] police. . . .

Well, that is what I would say the record seems to indicate.

As a district court judge, Judge Davis' errors have been reviewed by the Fourth Circuit Court of Appeals. If he is elevated to that court, only the Supreme Court will then be able to review his decisions. But the Supreme Court only hears a small fraction of cases from the appellate courts and cannot continually correct garden variety legal errors.

If confirmed, Judge Davis will be the final avenue of appeal for many litigants. Of all the possible nominees who could have been submitted to this court, is this the one we believe would be best?

Courts of appeal have great power through their rulings and can create serious problems for prosecutors. So I would say, just based on my review of the cases I have mentioned, Judge Davis' decisions, if not reversed--fortunately, they were reversed--would have seriously damaged, if not eliminated, a police technique of controlled delivery of drugs to persons who would pick them up.

He seems to ignore the requirement that an individual has to be in custody by the police or be interrogated by the police before Miranda has to be given. That is a fundamental principle of universal acceptance. But, apparently, the judge is not one who follows that, and he has altered the standard for probable cause in a case that I think is troubling.

So the types of mistakes Judge Davis has made can indeed be a threat to public safety. Wasn't it fortunate they arrested the man who threatened his girlfriend and then that he blurted out he committed a bank robbery? Aren't we happy? But if his ruling had been upheld, the effect of that would be to tell every police officer if a person threatens their girlfriend in the presence of a police officer, they cannot make an arrest.

Our law enforcement officers work hard under dangerous conditions to investigate crimes and to apprehend and lock up criminals, many of whom are dangerous, carry guns, threaten girlfriends, shoot themselves. It could well have been somebody else who got shot. Yet the President is now seeking to elevate a judge who seems to have a real personal bias against the work that they do. He has nominated Judge Davis for elevation to the Court of Appeals for the Fourth Circuit--one step below the U.S. Supreme Court.

I think he does seem to have, if not a bias against, a lack of respect for clarity and consistency in the enforcement of criminal justice, and his errors tend consistently to favor the criminal defendant.

I am sure this nominee is a fine man. He has been on the bench a number of years. I have nothing against him personally. I am not questioning his integrity. But it does appear to me he has a cavalier or a lack of substantive commitment to get criminal justice matters right and has shown, by specific rulings against police and prosecutors, that he could do harm on the court of appeals.

So, Madam President, for the reasons I have stated, I am reluctantly voting against the nominee and would ask my colleagues to consider doing the same.

I yield the floor.

Madam President, I also assume we will soon be voting on Judge Honeywell for the U.S. district court in Florida. I enjoyed the dialog I had with her during the confirmation hearings. I was pleased to see good responses to questions for the record. She has served as an assistant public defender and an assistant city attorney, an associate and partner in a law firm, as well as both a county court judge and a State circuit court judge. I will be supporting her nomination.

I wish to note that when I asked her about what role empathy should play in deciding cases, she said:

Empathy does not play role in my consideration of cases.

Presently, I decide cases by applying the law to the facts of

the cases pending before me. If confirmed by the Senate to

serve as a District Court judge, I will decide cases in the

same manner.

I would expect, as I did for President Clinton, to vote for well over 90 percent of the nominees who are submitted by the President. I hope to be able to do that for President Obama. But I will say, for the reasons I gave earlier, I must oppose Judge Davis.

I ask unanimous consent that an article written by Larry Margasak from the Associated Press, dated Monday, November 9, 2009, be printed in the Record.

I thank the Chair and yield the floor.

Mr. President, I would like to speak, briefly, in support of Senator Graham's amendment dealing with the trial of 9/11 terrorists in Federal court. It, in effect, would prohibit the administration from doing that by denying funding for any such trials.

This is a very important matter. One of the things we learned when 9/ 11 occurred was that this country had made a mistake in treating people who are at war with the United States, who attempt to destroy the United States, as normal criminals and that they should be tried in court.

We learned the only effective way to deal with persons such as that is to treat them as prisoners of war or unlawful combatants, who are people who violate the rules of war--and all these individuals do, basically, with the way they conduct themselves. So we would try them according to military commissions. The Constitution makes reference to military commissions. They can be tried fairly in that method without all the rules and procedures we cherish so highly in Federal courts for the trials of normal crimes that people are accused of in this country.

I spoke about al-Marri just last week, who came to the United States on September 10. He had met bin Laden. He had been to a training camp in Afghanistan. He had a goal, pretty clearly, to participate in an attack on the United States. He seemed to be a part of that entire effort. He came 1 day before 9/11. He was tried by a Federal judge who apparently gave a conviction but sentenced him to, in effect, 7 years. He had training in bomb making and that kind of thing. He had done other acts that indicated an intent to kill American people, innocent civilians, in a surreptitious way, contrary to the laws of war. So as a result of that, I think he should have been tried by a military commission, and he was not.

As one of the professors said in commenting on this case, it raises questions about the ability of our normal Federal court system to try these people who may be subject to having the courthouse attacked in an attempt to free them. Jurors may feel threatened because they are willing to kill to promote their agenda--or their allies are. Courthouses have to be armed with guards all around and with people on top of the courthouse to protect the courthouse throughout the trial.

They can be tried effectively by military commissions. So Senator Graham is serving the national interest in raising this issue. It is not a little bitty matter. It is correct. He has a good idea about it. He has focused it narrowly on the 9/11 issue and on those who participated in that attack. I think that is at least what we should do today.

We need to have a sincere analysis of the determination by this administration to try more and more cases in Federal court when they have been

captured by the military. In fact, they say there is a presumption in their commission report to date that they would be tried in Federal courts rather than military commissions. I think that is very dangerous because military people do not give them Miranda warnings when they are arrested. They do not do the kinds of things that are necessary to maintain change of custody or to admit evidence into trials in a way we would normally do. These kinds of procedures could cause a trial to be extremely difficult. They could bring witnesses from the battlefield and the like.

It is not the way, I am aware, any country tries people who are at war with them--any country. All countries provide for military commissions against unlawful combatants.

I see my friend, Senator Chambliss, in the Chamber. I know he wants to speak on this issue.

I thank the Chair and yield the floor.

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

Mr. President, I rise to discuss a serious failure in our justice system, something we are going to need to talk and think about. It has been talked about before, but the matter drives home the issue in a specific way.

Ali Saleh Kahlah al-Marri--al-Marri, as he is now usually referred to--is a terrorist who entered the country under the instructions of 9/ 11 mastermind Khalid Shaikh Mohammed. While here, he researched hazardous chemicals and his potential targets included dams and reservoirs. He was apprehended in 2001. In 2003, he was held as an enemy combatant under the orders of the Bush administration. He was seen at that time as an individual at war with the United States since he was associated with al-Qaida and al-Qaida had declared war on the United States.

The Nation made a firm decision that these kinds of cases should not be handled in the normal course of prosecutions of crimes but should be treated under the historic and well-established rules of war for these individuals.

The Obama administration has moved him into a civilian justice system and decided they would try him for this offense as a crime. He ended up pleading guilty, which seemed dubious as a plea by the Department of Justice, but they chose to allow him to plead guilty to the charge of conspiring to support terrorists. He was sentenced yesterday. How much time will this terrorist be spending in jail? How long before he is released and then could reassume his mission of waging jihad against America? Five years. That is right, 5 years. The judge in Peoria, IL, sentenced him to only 8 years and gave him credit for time served in military prisons, apparently, and he is expected to be released in 5 years. This is an outrage. Our brave soldiers and intelligence agents risk their lives every day to find and capture these terrorists.

I received a phone call from a friend I have known for a number of years whose son is in Iraq now as a marine. He wants to talk about what we are doing there. We have American soldiers, some of the finest people this country has ever produced, at risk at this moment fighting against these kinds of terrorists who are committed to attacking us. In recent days, we have seen plot after plot, fortunately being frustrated by good investigative agents. We have investigators and our military out there at risk today. We capture terrorists. What do we do? Do we put them in jail a few years and then let them go?

Not only did the Justice Department pursue a lesser charge against al-Marri, but the judge only sentenced him to 8 of the possible 15 years he could have served on that charge.

Without doubt, as a former Federal prosecutor--and the Presiding Officer is a former U.S. attorney--there are real procedures every American is provided under our legal system for trials in Federal courts. We are proud of

those, and we adhere to them. But there is a danger of trying people who are at war with us, who want to destroy us and the government this Nation possesses, in civilian courts. They are not common criminals; they are members of global terror networks, bent on waging war against America, its allies, and our vital interests. Yet the administration has announced plans to begin trying more and more terrorists and enemy combatants through our normal Federal criminal justice system.

Our court system was never designed to prosecute terrorists and enemy combatants and soldiers attacking this country. Such trials turn the courthouse and the jury system into targets. They rely on evidence that may not be admissible, evidence seized by the military in defending the country. That evidence may not be admissible in court under our normal rules of evidence. They risk bringing confidential information to public light, including the identity of informants or even undercover agents. And it means, ultimately, that more terrorists bent on taking innocent American lives will be released to return to the battlefield-- abroad or right here in cities and towns across America. I ask, is this a risk we can afford? Is it a risk we are required to take under our laws and Constitution?

The proper setting for these prosecutions is military commissions, military tribunals. These terrorists are the most violent and dangerous killers in the world. They are not criminals; they are on an unswerving mission to spill American blood. I wish it were not so. Overwhelmingly, the Muslim community does not believe in this kind of activity. It is only a small group, but it is a very effective group because they have learned how to utilize modern capabilities, such as airplanes and poisons and explosives, to wreak untold damage, especially when they are prepared to martyr themselves.

We need to use all lawful resources at our disposal to combat and dismantle this threat. We cannot and we must not allow more enemy combatants like Ali Kahlah to use our justice system against us. We cannot and we must not be naive and think our good will and kindness will shield us from these kinds of forces, this kind of evil in the world. We cannot and we must not forget the danger we face or the imperative to use every last resource at our disposal to keep this country, its liberties, and its people safe.

There was an article in the Washington Post of today that raises an important issue about sentencing. It quotes Kirk Lippold, the commander of the USS Cole, where 17 of our sailors were murdered by an Islamic attack in the Persian Gulf in Yemen in the harbor in the year 2000. This is what he said about the verdict: The sentence was ``appalling'' and ``grossly inadequate.'' He said that if prosecutors move other defendants from the military prison at Guantanamo Bay, Cuba, for trials in regular U.S. Federal courts, it could ``create an era of unacceptable compromise to our national security.''

I have a vivid memory from several years ago, maybe 5 or 6, 7 years ago, of being at the commissioning of the Ronald Reagan aircraft carrier at Newport News as a member of the Armed Services Committee, walking out of that ceremony, not too long after the Cole was attacked and those sailors killed. And a sailor screamed out--and the hair still stands on my neck when I think about it--``Remember the Cole.''

The United States has a responsibility to defend our men and women abroad. U.S. warships ought to be able to move in peaceful commerce around the world and not be subject to attack. When they are attacked, it is the responsibility of this Nation to act against it. Commander Lippold has expressed some concern in times past about how that has been handled.

They also quote Robert Chesney, a law professor at the University of Texas at Austin who studies sentencing in terrorism cases. He said that the Marri sentence ``probably comes with the territory in switching somebody out of military detention and into the criminal justice system.'' It comes with the territory. That is exactly right. That is what a number of us have been saying for some time, why this is not a wise policy.

The article goes on to say:

The case is one of the few concrete examples, Chesney said,

of the ongoing debate over whether the U.S. criminal justice

system is ``up to the task'' of trying and convicting

terrorist suspects.

I absolutely agree with that. It is not equipped to do it. The American criminal justice system assumes that a person commits some sort of crime. They give a certain sentence, and there is a reasonable prospect that they won't commit crimes again. But when we are dealing with people who are committed to martyrdom, if we are dealing with a person who has made a lifetime oath to fight to the death to destroy Americans and who has the capability to kill not only one person in some sort of assault or fight but thousands of Americans and who is at war with the United States, we need to utilize the great and historic principles of military commissions to try them as we always have. We didn't try German prisoners of war in Federal courts. We didn't try Japanese or North Vietnamese or North Koreans in Federal court when they were captured. They were treated as they were, as prisoners of war, and detained as long as they represented a threat to the United States. That is the way this should be. Military commissions are referred to in the Constitution.

In World War II, in the famous case of Ex parte Quirin--Franklin Roosevelt was President--a submarine appeared off the Atlantic Coast, and a group of people got out who were saboteurs. They were sent by Nazi Germany to blow up places in the United States, kill Americans, and sabotage our war efforts.

That was a serious matter. They were caught. Were they tried as common criminals? No, they were not. How were they tried? They were tried by a military commission. They were tried under the laws of war that have been longstanding for quite a number of years. They were convicted within a matter of a few months, and they were executed because they were clearly in violation of the laws of warfare. They were not normal prisoners of war acting in uniform. They were acting contrary to the Geneva Conventions, contrary to the rules of warfare. They were acting in a way--they did not wear uniforms. They did not go openly about. They were targeting innocent civilians. So they violated the rules of war. They were tried and executed. The Supreme Court upheld that. This is what other nations do also. They do not try people with whom they are at war in civilian courts.

I am worried about this. I do not think it is a little bitty matter. I do not think this is the first time we are going to see this or the only time we are going to see it. I think we are going to see it more and more often. I call it to the attention of my colleagues.

One other thing I think we should point out: that unclassified declaration by Jeffrey N. Rapp, the Director of the Joint Intelligence Task Force for Combating Terrorism. This is what he said about this matter:

Multiple intelligence sources confirm that Al-Marri is an

al Qaeda ``sleeper'' agent sent to the United States for the

purpose of engaging in and facilitating terrorist activities

subsequent to September 11, 2001, and exploring ways to hack

into the computer systems of U.S. banks and otherwise disrupt

the U.S. financial system. Prior to arriving in the United

States on September 10, 2001--

Not the 11th: September 10, 2001--

Al-Marri was trained at an al-Qaida terror camp. He met

personally with Osama bin Laden and other known al Qaeda

members and volunteered for a martyr mission or to do

anything else that al Qaeda requested. Al-Marri was assisted

in his al Qaeda assignment to the United States by known al

Qaeda members and traveled to the United States with money

provided for him by al Qaeda. Al-Marri currently possesses

information of high intelligence value, including information

about personnel and activities of al Qaeda.

He goes on to say:

Al-Marri was trained by al Qaeda in the use of poisons. In

the hard drive of Al-Marri's laptop, FBI agents discovered a

folder entitled ``chem,'' which contained bookmarked Internet

sites of industrial chemical distributors. Analysis revealed

that Al-Marri had visited a number of sites related to the

manufacture, use and procurement of hydrogen cyanide.

So I do not think this is an itty-bitty matter. We have normal drug dealers going to jail every day for 10, 12, 15 years. We have somebody who is plotting to kill American citizens, who came here the day before 9/11, is part of an al-Qaida plot--and he gets 5 years? I

think it is unacceptable, and it is also an indication to us in Congress we cannot proceed further with this idea that we are going to try terrorists in Federal criminal courts.

I thank the Chair and yield the floor.

Madam President, is there a time limit on this side?

I ask to be notified after 10 minutes.

Madam President, a number of appropriations bills, as Senator Inouye has said, have moved forward this year, and I do not think it is obstructive or an effort to delay to try to make sure those bills spend the taxpayers' money at a reasonable level and for things that serve the national interest.

Let me talk about the bill before us today. It is stunning in its increase in spending at a time when we are not able to spend at this level. Some people dismiss the persons at the tea parties who have been ringing our phones and sending us messages and e-mails about the reckless rate of spending. I believe, unfortunately, that as a body this Senate is in denial. The Senate is of the belief that it is business as usual, that we will get together and have these meetings in these committees and bills will be dropped on the floor, with unprecedented rates of spending increases, and everybody will vote for it and it is OK because that is what we always do.

Actually, what we are doing today is worse than what we have been doing in the past. The spending increase levels are at rates that are breathtaking. I have to talk about it.

I would like to support the Interior bill. I know the Environmental Protection Agency is an important agency. We are not trying to eliminate them. But let's take a look at a few things. The Senate bill this year for Interior and EPA has a 16.9-percent increase. At this rate, spending for the Interior-EPA would double in only 4 to 5 years, the whole budget would double in 4 to 5 years at this rate of increase. Inflation today is less than 1 percent. The Environmental Protection Agency spending increase is 37.7 percent in this legislation, a 37- percent increase. At that rate, the whole EPA budget would double in 2 to 3 years.

You say, surely you are considering some of the stimulus money we passed, the $800 billion stimulus package that was supposed to create jobs, which was passed in February of this year. No, I am not. This is the baseline budget bill. If you add the stimulus for fiscal year 2010, we would have a 57-percent increase. The 2-year increase from 2008 to fiscal year 2010 would be 62-percent, assuming we are adding stimulus spending to FY2010. But that does not include the emergency funding that may occur for fires or floods or storms.

Some Senators have the gumption to come down here and ask: What are we doing? How can we continue to spend like this? Aren't we being irresponsible? Are you listening, fellow colleagues, to your phone calls, to your e-mails, to your letters and your townhall meetings? Are you listening to them or do you think this is just business as usual? We make a few deals and we pass a bill. Everybody is happy, and we pat everybody on the back.

Let me show a few charts that relate to that issue. This is the Environment and Interior appropriations history for the last several years. A lot of my colleagues say President Bush spent so badly. Well, sometimes he did. But from calendar year 2001 through 2009, the spending increases averaged only 1 percent in these departments. Look at this year. It was an actual reduction. Now we have a 16-, 17-percent increase, and that does not include the $11 billion from the stimulus package. That totals, then, a 57-percent increase in this Interior bill.

I can't vote for this. How can I go back home and tell my people, when I said I am concerned about spending and we have to do better, yes, constituents, I know we have to do better and then waltz into the Senate and vote for a bill such as this? No matter how much good people say is in it, we don't have the money.

This year the budget deficit hit, as of September 30, about four times the highest budget deficit we have ever had in the history of the Republic, $1.4 trillion.

Look at the Ag bill. The Agriculture bill, we were waltzing along with a 2-percent average annual increase from 2001 through 2009. That includes 2009. We end up with another 14 percent increase in Agriculture. That does not count the stimulus package. Agriculture got a good bit out of the $800 billion stimulus package.

What about the THUD? Boy, it is a thud in terms of what impact there will be on the deficit for the Nation. Discretionary appropriations from 1995 to 2009 averaged an increase of 5.2 percent. What about 2010? A 23-percent increase. That is budget baseline spending.

I ask my colleagues, is anybody listening to their constituents or are Alabama constituents the only ones who care about the financial future of this country? Are they the only ones who care about their grandchildren? I don't think so. I think my colleagues are hearing some of the same thing.

So how do we come up with these increases? Here is the State Department and the Foreign Operations bill. As I said, from 1995 through 2009, over 14 years, all our discretionary spending averaged an increase of 5.2 percent. What do we get today? Look at this, a 32 percent increase in 1 year. In 3 years, that doubles the whole foreign ops budget.

What does it mean? These are not exaggerations. I hope my colleagues and

the American people look at this chart. We ended fiscal year 2008 with a $5.8 trillion total American debt. That is how much we owed to the public. In 2013, according to our own Congressional Budget Office, based on President Obama's spending plan, it will double to $11.8 trillion, doubling the entire national debt in 5 years. By 2019, the 10-year budget window the President has submitted to us, his budget for that period, it would triple the debt to $17.3 trillion. This takes us too close to having a debt equal to 100 percent of America's gross domestic product.

According to the Heritage Foundation, there are gimmicks in these numbers. They estimate it will be closer to $20 trillion, and that is going to be about 100 percent of the entire gross domestic product, which is considered very bad in international circles and historically has always resulted in adverse economic ramifications.

One more thing. The numbers get so large. You talk about trillions and billions, and it is hard to get a grip on what we are talking about. Most of us can understand what interest is on our debt. We can understand that. We pay a mortgage. You take out a mortgage and most of the money you pay the mortgage company goes to interest until it begins to go down over a period. If we look at this chart, we will see what would happen to the government's interest payment. Despite these surging increases, the Interior budget for parks and the EPA budget combined for all this year is $32 billion. That is a huge sum of money. Alabama's total budget, including education and general funds, is about $7 billion, the whole State of Alabama. So we are spending 32 nationally on Interior and EPA. This past year, fiscal year 2009, we spent $170 billion just to pay the interest on the money we borrowed for the $5.8 trillion in debt we had when the year started. So we paid $170 billion in interest. That is more than five times the Interior budget we are passing today, as big as it is and much as it has expanded. Look how it increases in only 10 years. According to the CBO, which is by far the most conservative analysis, it ends up at $799 billion in interest in 1 year. That is not paid to some other government agency, it is paid to people who hold our Treasury bills because, during this period, instead of paying interest on $5 trillion, we will be paying interest on $17 trillion, and the interest rates are unusually low today. CBO experts expect those interest rates to increase.

The result is, we are talking about $800 billion in interest. If there are higher rates of interest, as the blue chip outside economists project, they project it would be $865 billion in interest in 1 year on the public debt, much of it interest paid to people in foreign countries, countries, states who own our treasury bills and buy our debt, leaving us weakened economically, politically, strategically, our security weakened, when we are that much in debt to people around the globe.

I believe Americans are getting it. That is why they are writing us. They would like to see us do better. Are we doing better? The charts I showed indicate we are doing worse. It is time to say: No, we don't have the money. The average household income for an American citizen fell 3.6 percent. So the average household is seeing a 3.6-percent reduction, and States all over America are reducing their spending and making improvements in efficiency and taking other tough steps to contain spending. We are spending like crazy. Remember, we passed an $800 billion stimulus package in February. That is such a huge number. It is the largest spending bill this Republic has ever passed, $800 billion in one fell swoop after a few weeks of being in session. It had to pass supposedly. Unemployment was going to go up if we didn't pass it. So in panic--not with my vote--this Congress passed that stimulus bill, and we have seen very little stimulus results from it.

Unemployment in my State is about twice what it was before this recession started. So we have a problem, and we are not going to just borrow our way out of it. In the long run, I am concerned about this spending level and the debt level because there is no plan to make it better. According to the Congressional Budget Office, in 2019, what will the deficit be? Will it be going down? Will we be beginning to pay off the debt, the money we have borrowed? No. In 2019, they project the annual deficit that year to be over $1 trillion--in 1 year, over $1 trillion--in 1 year to add to the total national debt.

This is irresponsible. There was an article in today's Washington Times by one of their economists who pointed out the tremendous--

Madam President, I thank the Chair, and I will wrap up.

He just noted the severe risk this kind of surging debt--the likes of which the country has never before seen or participated in. Those risks are real. He emphasized our national security. But many people are emphasizing the risk to our economy and our future growth. We are going to have to pay, in 2019, $800 billion, at least, in interest before we start buying the things America needs for its government to operate. Instead of $170 billion, we are going to be spending $800 billion.

Why? Because we cannot say no. Why? Because we are addicted to higher and higher spending. I think it is irresponsible. I certainly believe our colleagues who produce these bills think they are doing well and operate within reality, and it is hard, they think, to make any changes. But why can't we? States are making changes. People in their homes are making changes. Why can't we make changes?

I think we can. I do not think it is a little bitty matter. It is not a political matter. I keep hearing Democratic colleagues also expressing great concern about this debt. They try to blame it on President Bush and other things. But at some point it is our spending. President Bush did not propose to increase the Interior spending by 17 percent. The Democratic leadership proposed that, and all these other bills we have.

So we have to do better. I will be voting no, regretfully, and I hope more of my colleagues will join me because we need to begin to say: No, we cannot continue on this road. We are not in denial. We do believe our constituents have valid concerns about reckless spending, and we are going to try to act in a way that again wins their trust.

Madam President, I thank the Chair and yield the floor.

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

Mr. President, I sent to the desk earlier legislation that is cosponsored by myself and Senator Joe Lieberman and Senator Kit Bond. In essence, it reauthorizes certain provisions of the PATRIOT Act which expire, if we do not act, on December 31 of this year. It is an important matter and I am proud to be working with the distinguished chairman of the committee that has oversight over homeland security, and Senator Bond, who is the ranking Republican on the Intelligence Committee and has worked on these issues for quite a long time.

I wish to be notified after 10 minutes, if you would, please.

In recent years, Federal agents have exposed a series of potentially devastating terrorist plots across our country. If successful, these planned attacks would have caused unthinkable harm and claimed the lives of countless Americans. In the years following 9/11, there have been constant attempts to strike again on American soil. There could have been a dozen 9/11's, perhaps, were it not for the skill and courage of those who labor in defense of our country and our countrymen, and were it not for the measures passed by this Congress that have finally given them the support and the legal and financial resources they need to combat the terrorist threat.

But unless Congress acts, these very measures will soon expire. Unless Congress acts, our agents will be stripped of some of the legal tools they have used to foil attack after attack on our homeland and to avert catastrophe time and again.

Three of the most critical national security provisions passed by this body must be renewed by December 31 of

this year. Those provisions are found in the USA PATRIOT Act, which has played an essential part keeping our families and communities safe for these last 9 years. It at last gave the intelligence community the capabilities it needed to detect and deter terrorism inside our borders.

These capabilities have long been used in routine law enforcement, but could not be used in national security matters. Why would we not pursue terrorists with the same tools we can use to pursue drug dealers and mobsters?

Anyone who has followed the news in recent weeks knows just how vital these tools are. Four major terrorist plots have been foiled in the last 6 weeks--four in the last 6 weeks.

Just yesterday, we learned that two Chicago men were charged with plotting to attack the facilities and employees of a Danish newspaper that printed cartoons depicting the Islamic prophet Muhammad. The planned attack included weapons and explosives. According to reports, one of the men admitted working with a Pakistani group which has been designated by our government as a foreign terrorist organization.

The government recently charged Najibullah Zazi with conspiring to use one or more weapons of mass destruction--specifically, explosive devices--against persons or property within the United States. The New York Times described the government's case against Mr. Zazi as ``a set of damning accusations'' that begin ``with explosives training in Pakistan followed by purchases of bomb-making materials in Colorado, experiments in a hotel room, and a cross-country trip to New York, which the authorities feared might have been the target of his attack.''

According to reports, Mr. Zazi was in contact with senior al-Qaida operatives, including the leader of al-Qaida in Afghanistan. Attorney General Holder has described Zazi's plot as one of the worst since 9/ 11.

In another case, Hosam Maher Husein Smadi stands accused of conspiring to set off an explosive attached to a vehicle at the base of the 60-story Fountain Place office tower in Dallas, TX. In yet another case, Tarek Mehanna was charged with material support of terrorism related to a plot to kill U.S. troops in Iraq, assassinate top politicians, and gun down shoppers in U.S. malls.

But these attacks never occurred. They never occurred because we had the tools in place to prevent them and because of the untiring agents who carry out their noble, often thankless mission day after day. But out of an abundance of caution, Congress created a time limit on some of these investigative procedures and tools, and in 2006 those authorities were renewed because it was clear they were working and were needed.

It is worth noting that even though these authorities had not been abused by our hard-working terrorism officials, numerous revisions to them were made in 2006. Then, we reauthorized the provisions, while also strengthening civil liberties protections. That 2006 legislation was passed with overwhelming bipartisan support. It passed with 89 votes, among them our current President, who was a Member of the Senate; the Vice President, who was then a Member of the Senate; and the Secretary of State, who was then a Member of the Senate.

The PATRIOT Act is again up for renewal with three critical authorities set to expire. While we in the Judiciary Committee have been debating whether these expiring PATRIOT Act authorities should be approved for another 4 years, our agents are actively working hard to protect this country and its people from the constant threat of terrorism. Is there anyone in this Chamber who thinks that we should make it harder for our national security investigators to catch terrorists? Is there anyone here who believes the American people want us to make it harder for our investigators to catch terrorists?

I know Chairman Leahy has worked hard, as we all did, to try to come up with a PATRIOT Act reauthorization bill in the Judiciary Committee that could attract strong bipartisan support. I commend him for that effort. He really worked at that. We worked together at that. However, the bill that eventually emerged from the Judiciary Committee does not meet the key test for any national security legislation: first, do no harm. The bill reported by the committee would make the jobs of our national security officials more difficult. The Obama administration has raised serious misgivings about the legislation that passed out of the committee.

So, I think we need to make a fresh start. Let's go back and take the bill we voted so strongly for before, add the minor things that need to be added to it to make it better--to deal with recent court of appeals rulings--and then let's move that forward to make sure we get that done before the legislation expires on December 31.

The bill we introduced today represents the best parts of the legislation that emerged from the Judiciary Committee, the parts almost everyone agreed upon. I will go into some of these details later but would just say that I am honored to be able to participate in the filing of this legislation with two fine cosponsors, Senators Lieberman and Kit Bond.

I yield the floor.

Mr. President, I thank Senator Bond for his thorough analysis of the legislation that came out of the Judiciary Committee, and for bringing to bear on these great issues his vast experience as vice chair of the Intelligence Committee and his commitment to national security and protecting this country.

He and Senator Lieberman represent the best of this body. They have the ability to cut through ``flapdoodle'' and to get to the heart of matters, and I appreciate so much their leadership.

Senator Lieberman, the Chairman of the Homeland Security Committee, has been so involved in all of these matters. From the beginning, he tried to identify, as the 9/11 Commission did, the deficiencies in our system and tried to work toward a new way of doing business--all consistent with our great heritages of liberty and civil rights.

I do think it is important to recognize that when Senator Lieberman asked the Director of the FBI: Is there one thing that we can do to help you do your job, the Director's answer was: Reauthorize the PATRIOT Act.

The bill we are introducing today represents the best parts of the legislation that emerged from the Judiciary Committee--the parts almost everyone agreed upon. Our bill renews the three expiring PATRIOT Act authorities: the rolling wiretaps authority, the business records provision, and the ``lone wolf'' section of the Intelligence Reform and Terrorism Prevention Act of 2004. Our bill also fixes a deficiency in the procedure for challenging the nondisclosure requirements of a key national security tool, the national security letter.

Section 206, the roving wiretap provision, is a commonsense tool that is absolutely necessary in this day and age. It gives our agents the ability to monitor a terrorist's phone call, even when he switches phones. Director Mueller told the Judiciary Committee this authority was extremely important, considering how easy it is for terrorists to switch cell phones.

Without this authority, a terrorist would be able to switch phones and defeat any order an investigator might have to wiretap a certain telephone. As agents run back and forth to court to get repeated permissions to monitor telephone numbers, the suspect is able to avoid surveillance.

Let me note that, in 1986, Congress approved a roving wiretap statute for domestic law enforcement. As Senator Bond and Senator Lieberman said, so many of the provisions in the PATRIOT Act had already existed in the law for regular federal criminal investigations.

But it did help to create a system where national security matters could be handled expeditiously before the FISA Court, a Federal court that is experienced in these types of cases. The FISA Court maintains confidentiality without the possibility of leaks, and is readily advised on all the relevant case law involving terrorism matters.

So that is how the system works, and I think it is not at all unusual what we are proposing to do here in this bill.

Section 215--which my colleagues have referred to as the business records provision--allows agents and other Federal investigators to ask the FISA Court for permission to get certain business records. Generally, these records would be in the possession of third parties, not the individual himself or herself. Examples would include records in the possession of a phone company, hotel records, bank records, or car rental information. How important is that in a terrorism investigation? It can be absolutely critical because, for instance, terrorists often use cell phones and rental cars.

This is the type of information for which people have a diminished expectation of privacy. These are not their records, they are the rental car company's records. These are not their telephone toll records, they are the phone company's records. Everybody at the phone company or the car rental agency has access to these records. These records are not secret in the same way as something in your desk, in your home, or in your car, which would require the use of a search warrant to be obtained by law enforcement. That is why subpoenas have been issued for these types of records for years. The Drug Enforcement Administration can issue administrative subpoenas right now to obtain many of these types of records, including bank records and telephone toll records. These can be obtained by the Drug Enforcement Administration without any court approval at all.

So I want my colleagues to know that the allegation that the PATRIOT Act represents an unprecedented transfer of power to the national security investigators who are trying to protect us from terrorist attacks is not correct. The way things work in reality is that private banks, telephone companies, and motels would be perfectly willing to give records to investigators, and indeed they used to do that in days past without any subpoena because these records belong to them. But lawyers have gotten into it, and these entities have gotten worried. So very frequently today hotel chains and other companies expect a subpoena before they can turn over records pertaining to their customers. That is what section 215 is designed to deal with.

When investigating terrorism, time can be critical. Section 215 allows a court to order a company to turn over records in it possession. This key information is usually not in the possession of person under investigation, but in a third party's possession. Section 215 merely allows a court to order a business to do what is legally permitted to do anyway: help our officials pursue and catch terrorists. This is very similar--almost identical--to grand jury subpoena authority, which has been used by Federal prosecutors, State prosecutors, State attorneys general, county attorneys, and Federal investigators routinely for decades. This is not some sort of collapse of American freedoms and liberties.

The ``lone wolf'' section of the Intelligence Reform and Terrorism Prevention Act of 2004 is a commonsense provision we need to continue the fight against terrorists in the 21st century. Even though it has not been used yet, it is there to defend against a very real possibility, like the Moussaoui matter Senator Bond made reference to. It deals with the rogue terrorist who is not linked to a larger terrorist group, or at least where there is no proof of that link at a given time. In the past, the law required that national security agencies show a connection between

the terrorist and a terrorist group or foreign power in order to monitor him. This could cause a problem if a terrorist or a foreign agent left a terror group, perhaps because of a dispute. Let's say you have a lawful, court-approved wiretap and the individual being monitored says on it: You are not aggressive enough. You are too timid. I want to blow up this building in Washington, DC; you don't. Count me out. I am no longer a part of your group.

Well, since this suspect would be disconnected from a terrorist organization, under previous law he would not subject to key national security surveillance techniques. So, you can have a ``lone wolf'' under certain circumstances. In the Moussaoui case, investigators were not able to get a search warrant for his computer because it was felt that there was not sufficient proof that he was connected to a specific terrorist organization. This was even though Moussaoui's own activities created so much danger that an FBI lawyer went to great lengths to try to get approval to get that search warrant, but ultimately failed to do so. Had that search warrant been approved and that computer examined, many think 9/11 may not have occurred.

This ``lone wolf'' provision has had bipartisan support in the past. It was originally authored by Senator Schumer, our Democratic colleague from New York. It is a commonsense way to deal with this very real issue and should be reauthorized without delay.

Finally, our bill fixes the problem found by the U.S. Court of Appeals for the Second Circuit in the case of Doe v. Mukasey. That case addressed the legal standard courts use to review nondisclosure requirements: for example, where a motel would be required not to tell a terrorist staying there that it has given records to the FBI. The Second Circuit held that the legal standard at issue was too deferential to the government. Our bill would fix this problem in the same manner, almost word for word, as the legislation that emerged from the Judiciary Committee in the past few weeks. In other words, we have given more protection to civil liberties, as the court suggested.

So as the recent slew of terrorism arrests makes so painfully clear, the threat of violent Islamic extremism is severe and ongoing. We cannot afford to let our guard down for a single moment. The threat is too great and too real and the stakes too high.

Our agents risk their lives every day to investigate terrorist plots and prevent another attack against the United States. Congress must move with the same urgency to reauthorize these lifesaving provisions before they expire. I believe this bipartisan bill is basically the same bill as we approved before and provides a commonsense and noncontroversial path to a timely reauthorization, and I hope my colleagues will support it. We simply need to get busy and get this work done.

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

Mr. President, I sent to the desk earlier legislation that is cosponsored by myself and Senator Joe Lieberman and Senator Kit Bond. In essence, it reauthorizes certain provisions of the PATRIOT Act which expire, if we do not act, on December 31 of this year. It is an important matter and I am proud to be working with the distinguished chairman of the committee that has oversight over homeland security, and Senator Bond, who is the ranking Republican on the Intelligence Committee and has worked on these issues for quite a long time.

I wish to be notified after 10 minutes, if you would, please.

In recent years, Federal agents have exposed a series of potentially devastating terrorist plots across our country. If successful, these planned attacks would have caused unthinkable harm and claimed the lives of countless Americans. In the years following 9/11, there have been constant attempts to strike again on American soil. There could have been a dozen 9/11's, perhaps, were it not for the skill and courage of those who labor in defense of our country and our countrymen, and were it not for the measures passed by this Congress that have finally given them the support and the legal and financial resources they need to combat the terrorist threat.

But unless Congress acts, these very measures will soon expire. Unless Congress acts, our agents will be stripped of some of the legal tools they have used to foil attack after attack on our homeland and to avert catastrophe time and again.

Three of the most critical national security provisions passed by this body must be renewed by December 31 of

this year. Those provisions are found in the USA PATRIOT Act, which has played an essential part keeping our families and communities safe for these last 9 years. It at last gave the intelligence community the capabilities it needed to detect and deter terrorism inside our borders.

These capabilities have long been used in routine law enforcement, but could not be used in national security matters. Why would we not pursue terrorists with the same tools we can use to pursue drug dealers and mobsters?

Anyone who has followed the news in recent weeks knows just how vital these tools are. Four major terrorist plots have been foiled in the last 6 weeks--four in the last 6 weeks.

Just yesterday, we learned that two Chicago men were charged with plotting to attack the facilities and employees of a Danish newspaper that printed cartoons depicting the Islamic prophet Muhammad. The planned attack included weapons and explosives. According to reports, one of the men admitted working with a Pakistani group which has been designated by our government as a foreign terrorist organization.

The government recently charged Najibullah Zazi with conspiring to use one or more weapons of mass destruction--specifically, explosive devices--against persons or property within the United States. The New York Times described the government's case against Mr. Zazi as ``a set of damning accusations'' that begin ``with explosives training in Pakistan followed by purchases of bomb-making materials in Colorado, experiments in a hotel room, and a cross-country trip to New York, which the authorities feared might have been the target of his attack.''

According to reports, Mr. Zazi was in contact with senior al-Qaida operatives, including the leader of al-Qaida in Afghanistan. Attorney General Holder has described Zazi's plot as one of the worst since 9/ 11.

In another case, Hosam Maher Husein Smadi stands accused of conspiring to set off an explosive attached to a vehicle at the base of the 60-story Fountain Place office tower in Dallas, TX. In yet another case, Tarek Mehanna was charged with material support of terrorism related to a plot to kill U.S. troops in Iraq, assassinate top politicians, and gun down shoppers in U.S. malls.

But these attacks never occurred. They never occurred because we had the tools in place to prevent them and because of the untiring agents who carry out their noble, often thankless mission day after day. But out of an abundance of caution, Congress created a time limit on some of these investigative procedures and tools, and in 2006 those authorities were renewed because it was clear they were working and were needed.

It is worth noting that even though these authorities had not been abused by our hard-working terrorism officials, numerous revisions to them were made in 2006. Then, we reauthorized the provisions, while also strengthening civil liberties protections. That 2006 legislation was passed with overwhelming bipartisan support. It passed with 89 votes, among them our current President, who was a Member of the Senate; the Vice President, who was then a Member of the Senate; and the Secretary of State, who was then a Member of the Senate.

The PATRIOT Act is again up for renewal with three critical authorities set to expire. While we in the Judiciary Committee have been debating whether these expiring PATRIOT Act authorities should be approved for another 4 years, our agents are actively working hard to protect this country and its people from the constant threat of terrorism. Is there anyone in this Chamber who thinks that we should make it harder for our national security investigators to catch terrorists? Is there anyone here who believes the American people want us to make it harder for our investigators to catch terrorists?

I know Chairman Leahy has worked hard, as we all did, to try to come up with a PATRIOT Act reauthorization bill in the Judiciary Committee that could attract strong bipartisan support. I commend him for that effort. He really worked at that. We worked together at that. However, the bill that eventually emerged from the Judiciary Committee does not meet the key test for any national security legislation: first, do no harm. The bill reported by the committee would make the jobs of our national security officials more difficult. The Obama administration has raised serious misgivings about the legislation that passed out of the committee.

So, I think we need to make a fresh start. Let's go back and take the bill we voted so strongly for before, add the minor things that need to be added to it to make it better--to deal with recent court of appeals rulings--and then let's move that forward to make sure we get that done before the legislation expires on December 31.

The bill we introduced today represents the best parts of the legislation that emerged from the Judiciary Committee, the parts almost everyone agreed upon. I will go into some of these details later but would just say that I am honored to be able to participate in the filing of this legislation with two fine cosponsors, Senators Lieberman and Kit Bond.

I yield the floor.

Mr. President, I thank Senator Bond for his thorough analysis of the legislation that came out of the Judiciary Committee, and for bringing to bear on these great issues his vast experience as vice chair of the Intelligence Committee and his commitment to national security and protecting this country.

He and Senator Lieberman represent the best of this body. They have the ability to cut through ``flapdoodle'' and to get to the heart of matters, and I appreciate so much their leadership.

Senator Lieberman, the Chairman of the Homeland Security Committee, has been so involved in all of these matters. From the beginning, he tried to identify, as the 9/11 Commission did, the deficiencies in our system and tried to work toward a new way of doing business--all consistent with our great heritages of liberty and civil rights.

I do think it is important to recognize that when Senator Lieberman asked the Director of the FBI: Is there one thing that we can do to help you do your job, the Director's answer was: Reauthorize the PATRIOT Act.

The bill we are introducing today represents the best parts of the legislation that emerged from the Judiciary Committee--the parts almost everyone agreed upon. Our bill renews the three expiring PATRIOT Act authorities: the rolling wiretaps authority, the business records provision, and the ``lone wolf'' section of the Intelligence Reform and Terrorism Prevention Act of 2004. Our bill also fixes a deficiency in the procedure for challenging the nondisclosure requirements of a key national security tool, the national security letter.

Section 206, the roving wiretap provision, is a commonsense tool that is absolutely necessary in this day and age. It gives our agents the ability to monitor a terrorist's phone call, even when he switches phones. Director Mueller told the Judiciary Committee this authority was extremely important, considering how easy it is for terrorists to switch cell phones.

Without this authority, a terrorist would be able to switch phones and defeat any order an investigator might have to wiretap a certain telephone. As agents run back and forth to court to get repeated permissions to monitor telephone numbers, the suspect is able to avoid surveillance.

Let me note that, in 1986, Congress approved a roving wiretap statute for domestic law enforcement. As Senator Bond and Senator Lieberman said, so many of the provisions in the PATRIOT Act had already existed in the law for regular federal criminal investigations.

But it did help to create a system where national security matters could be handled expeditiously before the FISA Court, a Federal court that is experienced in these types of cases. The FISA Court maintains confidentiality without the possibility of leaks, and is readily advised on all the relevant case law involving terrorism matters.

So that is how the system works, and I think it is not at all unusual what we are proposing to do here in this bill.

Section 215--which my colleagues have referred to as the business records provision--allows agents and other Federal investigators to ask the FISA Court for permission to get certain business records. Generally, these records would be in the possession of third parties, not the individual himself or herself. Examples would include records in the possession of a phone company, hotel records, bank records, or car rental information. How important is that in a terrorism investigation? It can be absolutely critical because, for instance, terrorists often use cell phones and rental cars.

This is the type of information for which people have a diminished expectation of privacy. These are not their records, they are the rental car company's records. These are not their telephone toll records, they are the phone company's records. Everybody at the phone company or the car rental agency has access to these records. These records are not secret in the same way as something in your desk, in your home, or in your car, which would require the use of a search warrant to be obtained by law enforcement. That is why subpoenas have been issued for these types of records for years. The Drug Enforcement Administration can issue administrative subpoenas right now to obtain many of these types of records, including bank records and telephone toll records. These can be obtained by the Drug Enforcement Administration without any court approval at all.

So I want my colleagues to know that the allegation that the PATRIOT Act represents an unprecedented transfer of power to the national security investigators who are trying to protect us from terrorist attacks is not correct. The way things work in reality is that private banks, telephone companies, and motels would be perfectly willing to give records to investigators, and indeed they used to do that in days past without any subpoena because these records belong to them. But lawyers have gotten into it, and these entities have gotten worried. So very frequently today hotel chains and other companies expect a subpoena before they can turn over records pertaining to their customers. That is what section 215 is designed to deal with.

When investigating terrorism, time can be critical. Section 215 allows a court to order a company to turn over records in it possession. This key information is usually not in the possession of person under investigation, but in a third party's possession. Section 215 merely allows a court to order a business to do what is legally permitted to do anyway: help our officials pursue and catch terrorists. This is very similar--almost identical--to grand jury subpoena authority, which has been used by Federal prosecutors, State prosecutors, State attorneys general, county attorneys, and Federal investigators routinely for decades. This is not some sort of collapse of American freedoms and liberties.

The ``lone wolf'' section of the Intelligence Reform and Terrorism Prevention Act of 2004 is a commonsense provision we need to continue the fight against terrorists in the 21st century. Even though it has not been used yet, it is there to defend against a very real possibility, like the Moussaoui matter Senator Bond made reference to. It deals with the rogue terrorist who is not linked to a larger terrorist group, or at least where there is no proof of that link at a given time. In the past, the law required that national security agencies show a connection between

the terrorist and a terrorist group or foreign power in order to monitor him. This could cause a problem if a terrorist or a foreign agent left a terror group, perhaps because of a dispute. Let's say you have a lawful, court-approved wiretap and the individual being monitored says on it: You are not aggressive enough. You are too timid. I want to blow up this building in Washington, DC; you don't. Count me out. I am no longer a part of your group.

Well, since this suspect would be disconnected from a terrorist organization, under previous law he would not subject to key national security surveillance techniques. So, you can have a ``lone wolf'' under certain circumstances. In the Moussaoui case, investigators were not able to get a search warrant for his computer because it was felt that there was not sufficient proof that he was connected to a specific terrorist organization. This was even though Moussaoui's own activities created so much danger that an FBI lawyer went to great lengths to try to get approval to get that search warrant, but ultimately failed to do so. Had that search warrant been approved and that computer examined, many think 9/11 may not have occurred.

This ``lone wolf'' provision has had bipartisan support in the past. It was originally authored by Senator Schumer, our Democratic colleague from New York. It is a commonsense way to deal with this very real issue and should be reauthorized without delay.

Finally, our bill fixes the problem found by the U.S. Court of Appeals for the Second Circuit in the case of Doe v. Mukasey. That case addressed the legal standard courts use to review nondisclosure requirements: for example, where a motel would be required not to tell a terrorist staying there that it has given records to the FBI. The Second Circuit held that the legal standard at issue was too deferential to the government. Our bill would fix this problem in the same manner, almost word for word, as the legislation that emerged from the Judiciary Committee in the past few weeks. In other words, we have given more protection to civil liberties, as the court suggested.

So as the recent slew of terrorism arrests makes so painfully clear, the threat of violent Islamic extremism is severe and ongoing. We cannot afford to let our guard down for a single moment. The threat is too great and too real and the stakes too high.

Our agents risk their lives every day to investigate terrorist plots and prevent another attack against the United States. Congress must move with the same urgency to reauthorize these lifesaving provisions before they expire. I believe this bipartisan bill is basically the same bill as we approved before and provides a commonsense and noncontroversial path to a timely reauthorization, and I hope my colleagues will support it. We simply need to get busy and get this work done.

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

Mr. President, I am frustrated and disappointed that I would be in a position to vote against

cloture on this legislation. I have been a member of the Armed Services Committee now for 12 years. I have voted in favor of passing the National Defense Authorization Act each of those 12 years. I am particularly concerned that I would feel compelled to oppose the passage of this conference report this year.

I will vote against cloture because I am deeply troubled that we are moving away from the longstanding tradition of passing bipartisan legislation that sets aside partisan politics in favor of providing funding for our men and women in uniform. I am sad to say that in this case the desires of a few have overridden that tradition. The result of that decision is before us in the conference report.

The inclusion of the controversial language of the hate crimes legislation, which is unrelated to our national defense, is deeply troubling. I think we will be setting a dangerous precedent by including such extraneous legislation on a most important authorization bill the body passes every year.

I count myself as an ally of our men and women in uniform. I work for them, feel compelled to support them in every way possible. I certainly do not mean to disrespect them and all the good things that are in this bill. But let me just say, one reason we have had such good support for the Defense authorization bill and are able to pass it every year, when bills like the foreign relations authorization bill almost never pass because that bill and so many other authorization bills get larded up with all kinds of pork and special interest, extraneous legislation, and they become so controversial they do not pass--our unwritten but firm principle has been: Let's keep the Defense bill a clean bill that focuses on our men and women in uniform. And just because you or some Senator in the body has a piece of legislation they strongly favor, that does not mean it should be added to the Defense bill, because others may feel just as strongly in opposition. So it creates a real problem for us.

I will just say that the train on which this Defense bill annually moves forward is a powerful engine. It has always been known that if you are able to get your legislation on the Defense bill, then few Senators are going to vote against it even if they do not agree with that particular piece of legislation. They want to vote for the Defense bill.

In a bipartisan way, we have recognized--and not perfectly--if we want to make sure this bipartisan strength and support for our men and women in uniform and our national defense is maintained, we do not need to load up that train with extraneous, controversial pieces of legislation. That is a great disappointment to me.

I hope by raising this objection clearly--and I appreciate Senator McCain doing so--we will begin to send a message that: Let's not do this again because it can endanger the success we have had over the years.

This legislation was included despite the opposition of both the chairman and the ranking member of the House Armed Services Committee and certainly the ranking member of the Senate committee, Senator McCain. It is my understanding that the leadership--I guess the Speaker and the majority leader are the ones who insisted this legislation, this hate crimes bill, be added to it. Specifically, Chairman Ike Skelton, the Democratic chairman in the House, on October 8, said:

Finally, regarding the Hate Crimes Prevention Act, I have

said several times that I would have preferred it to have

been enacted as a stand-alone bill.

Well, I think that is certainly what we all felt. But somehow that did not happen. It has been added to the legislation.

On July 20 of this year, I gave a lengthy statement I am sure few listened to and even fewer read discussing hate crimes legislation and the constitutionality of it, the need for it or lack of need for it. I pointed out a number of things that I think were very important to considering the legislation. One of them I will just note is a report by the U.S. Commission on Civil Rights.

I oppose the legislation. I do not think there was any showing--as a matter of fact, there was no showing--of a failure of State and local prosecutors to prosecute these cases. I asked the Attorney General himself, Mr. Eric Holder, to list the cases he named, and he listed five. We checked all those cases in the last 5 years, and they were all prosecuted, and most resulted in conviction and jail time. So it is not as if these cases were not being prosecuted.

This has a political dimension to it, frankly, more than a legal dimension. Six of the eight members of the U.S. Commission on Civil Rights signed a strong letter to the President and to the Judiciary Committee opposing this legislation. They went on to say in their letter that:

While the title [of this legislation] suggests that it will

apply only to ``hate crimes,'' the actual criminal

prohibitions contained in it do not require that the

defendant be inspired by hatred or ill will in order to

convict. It is sufficient if he acts ``because of'' someone's

actual or perceived race, color, religion, national origin,

gender, sexual orientation, gender identity or disability.

The letter goes on to say:

Rapists are seldom indifferent to the gender of their

victims. They are virtually always chosen ``because of''

their gender.

A robber might well steal only from women or the disabled

because, in general, they are less able to defend themselves.

Literally, they are chosen ``because of'' their gender or

disability.

The letter goes on to say that this piece of legislation would make every rape in America be declared a crime under this bill because it is an act against someone because of their gender.

So on the merits, I am concerned about the legislation. I am concerned about its constitutionality. There is a lack of interstate nexus. Unlike the 1968 Civil Rights Act--which was needed and did fill a gap because there was clear proof that serious crimes committed against African Americans and other minorities were not being prosecuted. They had proof of that and could show that. So the Federal legislature, through narrowly crafted legislation to protect the movement and free exercise of civil rights by minorities in this country, passed a civil rights bill that I think has been upheld as constitutional. But this bill is much broader, much less narrowly tailored, and much less defensible.

So I will just say, Mr. President, I am proud we have a good pay raise in the legislation. I am proud there are some good things in it. I am disappointed, as Senator Inhofe said, about the missile defense issue and the lack of funding to update our nuclear stockpiles, which is becoming a critical issue. Overall, I am supportive of the legislation, want to be supportive of it, but I want to be crystal clear that we should not head down this road where we allow the addition, through a defense bill, of controversial legislation such as this.

Mr. President, I thank the Chair and yield the floor.

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

Mr. President, I wish to briefly make a few comments about the confirmation vote we will soon be having on supporting this nominee. I saw him, as a member of the Judiciary Committee, and we made inquiry of him. I liked him. He handled himself well.

He has been a strong and ardent Democrat all his life--an active Democrat. He was educated, I believe, at the University of South Dakota and has practiced law a long time there. I think he has the ability and the commitment--he said he did and I believe him--not to allow his politics to influence his decisionmaking once he puts on that robe; that he will be objective and fair; that he will comply with the oath a judge takes to be impartial; that he will provide equal justice for the poor and the rich; and that he will serve the laws of the United States under the Constitution. So we moved him forward, and I am glad he will be confirmed.

I will note that some nominees I will not be able to support, and I would expect some others may object as well. It is our responsibility to be careful and to be cautious in making decisions about judges because they are given a lifetime appointment. They can't be removed for bad decisionmaking. I believe the President has submitted two more nominees to the district bench. There are 74 vacancies in the Federal courts in America as of today. A few days ago, there were 9 nominations pending--this is 1 of them--and now there are 11 nominations, I understand, pending.

As the President gets his machine up and running and starts submitting nominees, I think we will have good hearings. My view is that if they are qualified, it doesn't make any difference to me if they are an active, partisan, campaigning Democrat. That is fine. The question simply is, once they put on the robe and they are required to decide cases, can they put aside their personal feelings, backgrounds, emotions, and partisanship? Most judges can.

I practiced in Alabama, where judges run on a party ticket. They run as Republicans and Democrats. Everybody knows which of them--very few-- carry those biases with them.

I thank the Chair, and I urge my colleagues to support the nomination.

I ask for the yeas and nays.

Mr. President, I thank the Senator from Georgia for his comments. Having served on the Judiciary Committee and the Armed Services Committee with Senator Chambliss, we had a number of hearings on these issues. I agree with Senator Chambliss that there is no practical alternative to the process we are using. It is right and just to do so, to use the one, at least, we have been using at Guantanamo Bay.

To create trials in Federal district court using American rules of procedure such as Miranda and the exclusionary rule is not the kind of thing that ought to be done in this case. He has given a lot of thought to it, and I appreciate it. In essence, he is disappointed that the conference committee altered language we passed by an overwhelming majority in this Senate. That is exactly what I am going to talk about today.

I am disappointed that those in the leadership in this Congress, without discussion or debate, have decided to dramatically alter the amendment I offered that was accepted unanimously to the Homeland Security appropriations bill in this Congress.

On July 8, 2009, the Senate rejected, by a vote of 44 to 53--I think at least 13 or more Democrats voted this way--a motion to table the E- Verify amendment I offered to the Department of Homeland Security bill. After the motion to table was defeated, the Senate then unanimously accepted my amendment. The amendment made the program permanent, the E- Verify Program, which allows businesses to run virtually an instant computer check to see if the person who has applied before them is legally able to work in the United States. The amendment I offered would have made that E-Verify system permanent and it would have made it mandatory for government contracts. Some States have mandatory rules; businesses are voluntarily doing it. It would simply say: You are not going to get a contract from the taxpayers of the United States if you are not legally working in the United States. How simply is that? But the version of the bill reported from conference is dramatically different. It contains only a 3-year extension of the E- Verify Program and does not include any of the Federal contractor language. We passed a lot of stimulus money to try to create jobs for Americans this year, and it should be for lawful people, not unlawful.

This is the third time this Congress and the leadership in this Congress have either removed, changed, or blocked attempts to make this successful program permanent, against the overwhelming will of the American people, actually, and against the will of the Obama administration--at least in their verbal statements--and the express will of both the House and the Senate.

So this is how things happen. I think this is one of the reasons people are angry with Congress. Some people say they are angry at immigrants. I do not think that is accurate. I think they are angry at Congress for failing to take commonsense steps to create a lawful system of immigration and end the lawlessness that exists.

The mechanism is this: We pass it. Members of the Senate vote for it. They go home and say: I voted to make E-Verify permanent. I voted to make it apply to contractors. I am sorry it did not happen. Well, who makes this happen? Who changes the language? It is done in secret in conference in a nonopen way. They meet and just change it. They think nobody is going to know and they can just get away with it. It is the reason people are not happy with Congress.

In addition, the Democratic leadership on the conference committee-- and they are all appointed by the Speaker and by the majority leader. So the majority of both Houses, the House and the Senate, are clearly Democratic Members. I do not want to make this such a partisan thing, but I guess it is an institutional thing of frustration that our Democratic Members have voted for these reforms, for these good ideas, but yet somehow it goes into conference and it gets eliminated, gets undermined so it does not become law.

There were three other amendments stripped that dealt with immigration issues that had overwhelming support: A DeMint amendment that passed in the Senate called for completing the 700 miles of double-layer fence called for by the Secure Fence Act that we passed overwhelmingly some time ago, and that was taken out. A Grassley amendment that would have allowed employers to reverify employees through E-Verify was taken out. A Vitter amendment that would have precluded the rescissions of the no-match rule was taken out.

So together with the recent actions of this administration--and they have been sending mixed signals, but their actions sometimes speak louder than words. They have backed off of the detention policy. Now I see they are putting people illegally coming into our country in hotel and motel rooms. They watered down the 287(g) Program which allows local law enforcement to work with the Federal officials to help them identify those who are illegally in the country in a way that makes sense. It is a limited power, but it is very helpful. Those are some of the things this administration has backed off on.

So I think the conclusion we reach is that the majority in control of this Congress seems to be committed to blocking any congressional action that actually seeks and is effective in enhancing law enforcement. Some say: That is a harsh thing to say, Jeff. That is not true. I will just repeat it. If you know what the system is about, you know how the debate is going on in this Senate and in the House, you would be aware of the fact that E-Verify is very important and that it should apply to people who get government contracts. Why do they keep taking it out?

Back in February, two amendments were unanimously accepted to the House stimulus bill, the $800 billion bill that was supposed to create jobs in America. Those amendments related to the E-Verify Program. One was offered by Congressman Ken Calvert of California for a 4-year extension of the E-Verify Program. It was identical to the reauthorization language that passed the House on July 31, 2008, by a vote of 407 to 2. Another was offered by Congressman Jack Kingston, and it prohibited funds made available under this $800 billion stimulus bill from being used to enter into contracts with businesses that do not participate in this E-Verify system.

It is growing. Millions of checks are being done by this system. It is no burden on businesses. So it would say, if you did not use that system, you could not get this stimulus money to do things, build things with.

The provisions of the bill were both unanimously accepted without a vote by the House Appropriations Committee. Furthermore, the provision that extended the program was also overwhelmingly approved by the House last July by a vote of 407 to 2.

One of the main purposes of the stimulus bill was to put Americans back to work. It was common sense--common sense--to include a simple requirement that the people hired to fill the stimulus-created jobs be lawfully in our country and lawfully able to work.

I tried to offer an amendment, at that time, that incorporated both the House provisions in the Senate stimulus bill when the stimulus bill was being considered in the Senate, but it was blocked on three separate occasions by the Democratic leadership. I can only conclude from that they did not want it. I knew, if we could get a vote, we would have a bipartisan Democratic and Republican vote for it.

My amendment only incorporated the short 5-year extension, but I was not even allowed to get a vote. As I predicted at that time, once the bill went to conference, the conferees would strip the E-Verify provisions from the final version of the economic stimulus package without any open discussion or debate. That is exactly what they did. I hate to say it, but the actions seem to send a clear signal that our leadership wants to use taxpayers' money to employ people who are in this country illegally.

That is a harsh thing to say. But if you do not want that to happen, why don't we take some steps to do something about it? Why wouldn't we require people who get government money--taxpayers' money that is supposed to be designed to create American jobs--why wouldn't we want to at least take this modest step to try to see that people illegally here do not get those jobs?

Furthermore, in March, when I tried to offer an identical amendment to the Omnibus appropriations bill, it was tabled by a vote of 50 to 47. This proves to me there are some powerful forces out there somewhere still alive who want to block this important step.

It is important we permanently reauthorize this successful E-Verify Program, which is currently set to expire when the current continuing resolution ends. We should do it particularly now that we are in a time of serious economic downturn and unemployment.

E-Verify is an online system operated jointly by Homeland Security and the Social Security Administration. Participating employers can check the work status of new hires online by comparing information from an employee's I-9 form--that is their employment form--against the Social Security and DHS databases. It is done like that. It takes just a few minutes.

E-Verify is free to businesses and is the best means available for determining the employment eligibility of new hires and the validity of their Social Security numbers, instead of the so many bogus numbers many of you have read about.

As of October 3 of this year--2009--over 157,000 employers, businesses, are enrolled in this program. This represents over 600,000 hiring sites nationwide. Over 8.5 million inquiries were run through the system in 2009 and over 90,000 have been run since October 1 of this year--in 20 days.

The Homeland Security Secretary--President Obama's Secretary--Janet Napolitano, has spoken highly of the E-Verify Program. She called the program ``an integral part of our immigration enforcement system''--an integral, essential part of our enforcement system. There is no doubt about it, in my view. Attempts to make the program permanent have been thwarted time and time again during this Congress.

According to Homeland Security, 96.1 percent of employees are cleared to go to work immediately under this online system, and growth continues at over 1,000 new employer users each week.

Of the remaining 3.9 percent of queries with an initial mismatch--so there are 3.9 percent who are not cleared immediately--of those, only .37 percent, about a third of 1 percent, were later confirmed to be work authorized. So it looks like about 80, 90 percent of the people who did not get immediate clearance--really, more than that--were not authorized to work legally in America. Only .37 percent of those

later were shown to be held up improperly--or not ``improperly,'' just being held up. Maybe they entered a wrong Social Security number by mistake.

Employers get an advantage. An employer that verifies work authorization under E-Verify has established a rebuttable presumption that the business has not knowingly hired an illegal alien.

Recently, the Bureau of Labor Statistics reported that the unemployment rate in the United States has jumped to 9.8 percent-- basically, double what it was a year or so ago. That is 15 million unemployed. This is the highest unemployment rate in 25 years.

Immigration by illegal immigrants has had a serious and depressing effect on the standard of living of lower skilled American workers. That is a fact, in my view. The U.S. Commission on Immigration Reform, chaired by the late civil rights pioneer, Barbara Jordan--and they had a big study of this--found that ``immigration of unskilled immigrants comes at a cost to unskilled U.S. workers.''

The Center for Immigration Studies has estimated that such immigration has reduced the wage of the average native-born worker in a low-skilled occupation by 12 percent or almost $2,000 annually.

In addition, Harvard economist and author of perhaps the most respected book on immigration--he goes into great detail of economic studies and information that he analyzed--Professor George Borjas, himself born in Cuba, has estimated that immigration in recent decades has reduced the wages of native-born workers without a high school degree by 8.2 percent.

E-Verify is working. In fact, the program is so successful that Secretary Napolitano recently said:

The Administration strongly supports E-Verify as a

cornerstone of worksite enforcement and will work to

continually improve the program to ensure it is the best tool

available to prevent and deter the hiring of persons who are

not authorized to work in the United States.

That is a strong, clear, good statement the Secretary has given, and it is common sense.

Recently confirmed Citizenship and Immigration Services Director Alejandro Mayorkas said:

I believe E-Verify is an effective law enforcement tool.

In February of 2009, Doris Meissner, former head of immigration under President Clinton, said:

Mandatory employer verification must be at the center of

legislation to combat illegal immigration . . . the E-Verify

system provides a valuable tool for employers who are trying

to comply with the law. E-Verify also provides an opportunity

to determine the best electronic means to implement

verification requirements. The Administration should support

reauthorization of E-Verify and expand the program. . . .

Alexander Aleinkoff--President Clinton's INS official and an Obama administration Department of Homeland Security transition official-- calls it a ``myth'' that ``there is little or no competition between undocumented workers and American workers.'' He is right about that. They can say this is not true all day long, but anybody who observes what is happening knows the large influx of low-skill workers pulls down the wages of hard-working Americans who did not get a high school diploma who are trying to take care of their families and survive in a competitive world. It is a fact. We need to understand that.

Even the distinguished majority leader supports the program. He wrote a letter in March of this year saying:

I strongly believe that every job in our country should go

only to those authorized to work in the United States. That

is why I strongly support programs like E-Verify that are

designed to ensure that employers only hire those who are

legally authorized to work in the United States, and believe

we need to strengthen enforcement against employers who

knowingly hire individuals who are not authorized to work. I

support reauthorization of the E-Verify program, as well as

immigration reform that is tough on lawbreakers, fair to

taxpayers and practical to implement.

This is one I hope we can all agree on. But I do not know how it came out that this language was gutted out of the conference report, once again.

Since 2006, 12 States have begun requiring employers to enter new workers' names into the system, which checks databases, including Arizona, which passed the law while our current Homeland Security Secretary, Janet Napolitano, was Governor of Arizona. Colorado, Georgia, Minnesota, Mississippi, Missouri, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, and Utah have this system where their employers that have contracts in government work--actually any employers have to use the system before they are hired.

Secretary Napolitano has also said:

I'm a strong supporter of E-Verify. . . . You have to deal

with the demand side for illegal immigration, as well as the

supply side, and E-Verify is an important part of that.

In January of 2009, the Washington Post reported that Secretary Napolitano said:

I believe in E-Verify. I believe it has to be an integral

part of our immigration enforcement system.

President Bush signed Executive Order 12989 last year. I think, in many ways, he was slow to come to realize how important creating a lawful system of immigration was. But he made some progress toward the end and he made this statement and took this action. He said:

Contractors that adopt rigorous employment eligibility

confirmation policies are much less likely to face

immigration enforcement actions, because they are less likely

to employ unauthorized workers, and they are therefore

generally more efficient and dependable procurement sources

than contractors that do not employ the best available

measures to verify the work eligibility of their workforce. .

. . It is the policy of the executive branch to use an

electronic employment verification system because, among

other reasons, it provides the best available means to

confirm the identity and work eligibility of all employees

that join the federal workforce. Private employers that

choose to contract with the federal government should meet

the same standard.

So President Bush issued that Executive Order, that private employers that choose to contract with the Federal Government should meet the same standard. Basically, what happened was, President Obama delayed it. They have since issued a policy that larger businesses should use the system, for which I give them credit. So the Federal Government should meet the same standard. He meant it should apply. The Obama administration has made, as I understand it, an executive order that requires larger businesses to use this system for the current time but not smaller businesses, and it is not a part of law.

Last June, when Homeland Security designated E-Verify as the electronic employment eligibility verification system that all Federal contractors must use, Secretary Chertoff--the Secretary of Homeland Security--said this:

A large part of our success in enforcing the nation's

immigration laws hinges on equipping employers with the tools

to determine quickly and effectively if a worker is legal or

illegal. . . . E-Verify is a proven tool that helps employers

immediately verify the legal working status of all new hires.

So some have argued it is too costly and too cumbersome. However, a letter to the Wall Street Journal from Mark Powell, a human resources executive with a Fortune 500 company, said it is free; it takes only a few minutes and is less work than a car dealership would do checking a credit score prior to selling a vehicle or taking a test drive.

Well, that is true. How else can we explain so many employers voluntarily signing up? I think the short-term extensions only discourage participation in the E-Verify Program and leave us with a lack of assurance in the future we need.

With regard to the contention that there are some mismatches, as I said, only .37 percent--less than 1 percent--of the people whose numbers don't check out are found to be improperly checked out. Truthfully, most of them got the right answer.

So I would conclude by saying a lot of progress has been made to make the system even better than it was. Over 60 percent of foreign-born citizens who have utilized this option and more than 90 percent of those phone calls have led to a final ``work authorized'' determination. I think we are on the right track. I think we should make this permanent. We absolutely should make it so that anyone who obtains a contract or a job as a result of government taxpayer money should be legally in the United States. If they are not, they shouldn't get the job. It should be set aside for American taxpayers. I thank the Chair.

Just before I conclude, once again, let me express frustration that what

was passed so overwhelmingly, somewhere behind closed doors--the same place they are meeting right now to write a health care bill. We don't know where they are or what they are talking about, but a group is meeting to try to cobble together the two or three or four bills that are pending out there with something they will bring to the floor, and nobody has even seen it yet. We are having too much of that. I think it is eroding public respect for the Congress, and I can understand why the American people are angry with us.

I thank the Chair and yield the floor.

Mr. President, will the Senator yield for a question?

The Senator has served in the House and the Senate and knows how conference committees work. Isn't it true that the majority of the Senate conferees would be appointed by the majority leader, and a majority of the House conferees would be appointed by the Speaker?

Isn't it a tradition that normally conferees appointed by those leaders tend to follow their lead in how they vote in conference?

The Senator had an amendment that was stripped out, as I did, dealing with the immigration issue. It seems to me odd that amendments receiving such high votes in both the House and the Senate would be stripped out of conference. Would you agree that is an odd thing to happen?